'.:r<'SiRa'iX!s;j,'aisK;;;:':";^.':.':;. MMif ' ^' h TO g gJ !l ***» *''*****?VW OJnrnpU ICam ^rlynnl Hibraty VJ®1 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022836534 '•»c. 4- DICTIONARY OF LAW, CONSISTING OF JUDICIAL DEFINITIONS AND EXPLANATIONS 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 to Webster'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 at length. 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, or by 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 of questions 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. A, or a, the first letter of the alphabet, is used in legal, legislative, and judicial writ- ings as a numerical character, as an abbrevi- ation, and as a word : 1. The capital serves for marking — (1) the first division, chapter, or other large portion of a legal treatise or digest ; (3) the first ap- pendix in a report: of cases, or of a commission or committee ; (3) the first schedule to a con- stitution or a statute ; (4) the first series of an issue of corporate or governmental bonds; (5) the first distinct portion of any other tab- ulated statement. The small letter designates — (1) in old law- books, the first page of a leaf or folio (6 des- ignating the second page); (3) in modern works, the first paragraph of new matter in- serted in the body of a volume : as, of a new section printed between older sections; (3) the first foot-note to a page in the first edi- tion of a book: in enlarged editions, espe- cially those prepared by annotators, a note subjoined to such foot-note is designated as a*, or (a)', a^, etc. The other letters, capital and small (in the language of printers, upper case and lower case), are used in the same manner. 3. Indicates the first of a number of docu- ments or other proofs: as. Exhibit "A," or "Al," "A 3," etc. The other letters, in their order, are similarly em- ployed. See further Exhibit, 2. In the old States, Tolumes containing recorded in- struments were formerly, and perhaps are still, desig- jiated by letters, or by letters and numbers; as, A, or A 1 ; B, or B 1 ; A 2, B 2; AA, BB. To avoid errors and confusion in copying references, some of the letters, as J, K, N, XT, V, Y, were not used.' ' In the superior court of Baltimore, city, Md., this 2>ractice, which was begun in 1651, continued to 1797; (1) 3. As an abbreviation, usually denotes American, anno, appeal, article, assistant, associate, attorney. Has been used for al in the expression et alA See Auns. Formerly stood for adversus {versus); as. Cockle o. Underwood.^ Among the Puritans, a convicted adultress wore an A upon the front of her dress, in Plymouth colony by law of 1658, or earlier, and in Vermont as late as 1785. A. D. Anno Domini, in the year of our Lord. See Year. A. G. AttorneyTgeneral. A. J. Assistant, or associate, judge or justice. A. J J. Associate judges or justices. A.L.J, Associate law judge or justice. See Judge. A. R. Anno regni, in the year of the reign. A 1. Of the highest class. Originated with. underwriters in rating vessels: the A denoted that the hull of a particular ship was well built and seaworthy for a voyage of any length; the 1 the efficient state of her tackle, sails, apparel, and other appurtenances. B, C, and other letters, indicated lower conditions of seaworthiness; 2, 3, and perhaps other numerals, inferior or insufScient appurte- nances.' 4. The indefinite article a or an. Often used in the sense of any, and then applies to more than one individual object.* in the office of the recorder of deeds for Philadelphia county. Pa., it continued from 1683 to 1799; in the county court of Augusta, Va., from 1745 to 1879; in the office of recorder of deeds for Allegheny county, Pa., from 1788 to 1849. In the last county there is a deed book N 5, or volume 86. In the department of internal affairs at Harrisburg, Pa., the patent books (early numbers of which contain the giants from Willitun Penn) are designated as A 1 to 20, AA 1 to 16, P 1 to 65, H 1 to 74; and there is also in use a second series of account books designated as AA, BB, etc., to HH 4, which last is in use in 1888. 1 58 N. H. 3, 4, 8, 7, et seg. ' 1 Abb. Pr. B. o. s. 1; id., vols. I-ZIX. " See Webster's Diet. p. 1782; Chambers' Ency., tit. A. * Nat. Union Bank v. Copeland, 141 Mass. 266 (1886). ABANDON Where directors are empowered to issue a note or accept a bill of exchange, they may give several notes or bills, equal to the sum specified.' See Atrz; The. 5. The Latin preposition : from, away from, by, in, on. Compare AB. A fortiori. With stronger (reason) ; with more right ; much more. A private person, and a fortiori a peace-officer, present when a felony is committed, is bound to arrest the felon. 2 A multo fortiori. By far the stronger— reason, right, equity.': * A gratia. Out of favor ; from mere in- dulgence, and not of right. See Gkace. A latere. By the. side: collaterally. Said of succession to property; but now of rare oc- currence. A meusa et thoro {toro). From table and bed : from bed and board. A vinculo matrimonii. From the bond of matri- mony. The former describes a " partial " divorce: separa- tion of the parties by law, with all rights preserved; the latter, a "total " divorce: complete dissolution of the marriage relation with all incidental rights. See further Divorce. A nativitate. From birth, from infancy. The legal settlement of an idiot a nativitafe is that of his father. 5 A posteriori. From what comes after — the effect. A priori. From what goes be- fore — the cause. Beasoningfrom an effect back to its supposed cause is described as a posteriori; reasoning or argument from an assumed cause to the result it may or must produce is termed a priori.* ' A prendre. F. See Profit, A prendre. A quo. From which. As, the court a quo a cause has been removed, by an appeal or a writ cf error. Correlative ad guem, to which. See further Qui, Quo. A retro. In arrear, q. v. A sOciis. From its associates ; from its surroundings; from the context. See fur- ther NOSCITUB. A teneris annis. From tender years ; by reason of youth. See NEauGENCE. A verbis legis. See Lex, A verbis, etc. > Thompson v. Wesleyan Association, 65 E. C. L. 849 (1849). See also Sharfl v. Commonwealth, S Binn. *B16, 519 (1810). 2 4 Bl. Com. 293. » 100 U. S. 633. * Although strictly terms in logic, these expressions are so common in law language that they may be con- sidered quasi legal. ' Shippen v. (Jaines, 17 Pa. 42 (1851). A vinculo. See A mensa, etc. AB. L. From. Takes the place of a before a vowel sound. See A, 5; Abs. Ab assuetis. See Injtdeia, Ab assuetis. Ab inconvenient!. From hardship, q. v. Ab initio. From the beginning ; from in- ception. A contract is said to be illegal, a writ, an action, or a service, irregular or .void, ab initio. See Trespass. Ab initio. Ab intestate. From an intestate (owner). Ab invito. By one unwilling: unwill- ingly. See Im VITUS. Ab irato. By one in anger — displeased. A gift, bequest or devise, adverse to the interest of any heir is sometimes said to be made ab irato. ABAWDON.i To relinquish, surrender, disclaim, desert, forsake, give up wholly. Whence abandonment, non-abandonment, and (though rare) abandoner, abandonee. As, to abandon property, a relation, a proceeding — any species of right. "Abandon" Includes the intention and the external act by which it is carried into effect.^ To constitute an abandonment of a right, there must be an unequivocal and decisive act of the party showing a determination not to have the benefit designed.' See Es- toppel. For example, a homestead is abandoned by an act which shows an intention wholly to relinquish it; not by temporary absence.^ A statute may require that this intention be proven by a declaration duly executed and recorded.^ There is a difEerence between " abandon- ing" and "surrendering" a right or thing; between giving it up because regarded as use- less, and assigning or transferring it to an-' other as valuable. When one surrenders a thing by solemn agreement in writing, he certainly does not " abandon" it in the sense in which that word is generally under- stood. ^ 1. Property. An object of property re- mains the owner's till such time as he does some act which shows an intention to aban- don it ; then it becomes publici juris once 1 F. a, to; fcaTir, to proscribe, give up. See Ban. " Livermore v. White, 74 Me. 465 (1883), Appleton, C. J. s [Dawson v. Daniel, 2 Flip. 309 (1878), Hammond, J. [Moore v. Stevenson, 27 Conn. 25 (1858), Ellsworth, J. A feme-sole trader law. = [Washburn v. Washburn, 9 Cal. 476 (1858), Field, J. A divorce case. s Levering v. Levering, 16 Md. 219 (1860), Bartol, J. A divorce case. 4 See State v. Davis, 70 Mo. 468 (1869); 4 Bl. Com. 198. • F. abattre: L. ab-batuere, to beat down, prostrate. ' Case V. Humphrey, 6 Conn. 140 (1826). ' [3'Bl. Com. 168. Abatement. Demolition, destruction, diminution, removal, suspension. In equity pi'actice, a suspension of pro- ceedings in a suit from want of parties capable of proceeding therein, i 1. Abatement of a freehold ; of an es- tate. Where a person dies seized of an in- heritance, and, before the heir or devisee enters, a stranger, who has no right, makes entry and gets possession of the freehold.^ Compare Amotion, 1. 3. Abatement of a legacy. The re- duction of a legacy, in case of insufficiency of assets to pay all debts and other legacies. First, general legacies, and then specific legacies, abate proportionately. The rule is that where bequests are made in the form of a general legacy, and are pure bounty, and there is no expression in or inference to be drawn from the will manifesting an intention to give them priority, in case of a deficiency of funds to pay them in full, they abate ratably; on the principle that equality is equity.' See Legacy. 3. Abatement of a nuisance. The re- moval of a nuisance. Whatever unlawfullyannoys or doeth dam- age to another may be abated, i. e., taken away or removed by the party aggrieved thereby, he committing no riot.* An injunction may prevent, and a verdict for dam- ages may punish, but neither will " abate " a nui- sance.5 See further Nuisance. 4. Abatement of a writ. Quashing or setting it aside on account of some fatal de- fect init.^ A plea in abatement is one mode. Sometimes it is the duty of the court to abate a writ ex officio. Where the writ is a nullity, so that judgment thereon would be incurably erroneous, it is de facto abated.' Plea in abatement. Matter of defense which defeats an action for the present, be- cause of a defect in the writ or declaration.s Such plea is: (1) of the writ — tor an irregularity, defect, or informality, in its terms, form, issue, serv- ice or return, or for want of jimlsdictiou m the court; (2) to the action — as misconceived, or because the right has not yet accrued, or because another action is pending;! (3) fg j^g declaration, on account of — (a) > See Story, Eq. PI. §§ 20, n, 854. = 3B1. Com. 168. ' Titus V. Titus, 26 N. J. E. 114, 117-19 (1875), cases, Runyon, Ch. ; Brown v. Brown, 79 Va. 650 (1884), cases « [3 Bl. Com. 5, 168. = Rufl V. Phillips, 50 Ga. 132 (1873). ' [3 Bl. Com. 168, 302.] ' Case V. Humphrey, 6 Conn. 140 (1836). 8 [3 Bl. Com. 302. See also Steph. Plead. 47- Gould Plead. 235. ABBREVIATIONS ABET the misnomer of a party; (b) the disability ot a party: ' alienage, infancy, coverture, lunacy, im- prisonment, non-existence of a corporation ; (c) a privilege (g. v.) in the defendant; (d) non-joinder or mis-joinder of parties; (e) a departure as between the writ and the declaration; (f) a variance between the writ and the instrument sued upon. If the action be such as survives (g. v.), the repre- sentative of a deceased party may be substituted.^ Pleadable to an indictment, but chiefly for mis- nomer.'* 1 Because they are dilatory, pleas in abatement are not favored. Each plea must give a better writ, i. e., show how the writ may be amended. Each must also precede a plea to the merits,^ i and a plea in bar;* and be verified by af&davit. Judgment upon a plea is, for the plaintiff — re- spondeat oiister, that the defendant answer anew; for the defendant — quod billa cassetur, that the writ be made void or abated.* See Amendment, 1; Quash; Plea; Pleadino; Re- vive, 1. Compare Bab, 3, Plea in. ABBREVIATIONS. A judge may, without proof, determine the meaning of the customary abbreviations of Christian names,^ names of offices,' names of places,^ and com- mon words. 9 See Ambiguity; Name, 1. See, in this book, particular words, and the collec- tions of abbreviations at the beginning of each letter. In declaring upon an instnament containing abbre- viated terms, extrinsic averments may be used to make them intelligible; and evidence of the sense in which the parties were in the habit of using the abbre- viations, and of their conventional meaning, is admis- sible, but not to show the intention of one party in using them.^° Generally, in indictments, common words are to be used as descriptive of the matter. Abbreviations of terms employed by men of science or in the arts will not answer, without full explanation of their meaning in common language. The use of A. D., year of our Lord, because of itsTiniversality, constitutes an excep- tion. Arabic figures and Roman letters have also become indicative of numbers as fully as words writ- iCookv. Burnley, 11 Wall. 668 (1867). " Society for Propagation of the Gospel v. Town of Pawlet, 4 Pet. 501 (1830;. MBl.'Com. 334. 4 Baltimore, &c. R. Co. v. Harris, 13 WaU. 84 (1870;; Pomter v. State, 89 Ind. 267 (1883). <'3 Bl. Com. 803-3. See generally Gould, Plead. 235-78; Stephen, Plead. 47-51. • Gordon's Lessee v. Holiday, 1 Wash. 289 (1805); Weaver v. McElhenon, 13 Mo. 90 (1850); Stephen v. State, 11 Ga. 241 (1852). ' Moseley's " Adm'r " i). Mastin, 37 Ala. 221 (1861). 8 Ellis V. Park, 8 Tex. 205 (1862); Russell v. Martin, 15 id. 238 (1855). ■ ' •Jaqua v. Withara, &c. Co., 106 Ind. 547-48 (1886); Dana v. Medler, 12 N. Y. 40, 46 (1854); 1 Greenl. Ev. § 282; 2 Whart. Ev. § 1003; Best, Ev. 232, 262. >» Jaqua i;. Witham, &c. Co., 106 Ind. 547-48 (1886), cases; Robinson v. Kanawha Bank, 44 Ohio St. 441 ten out could be. Their general use makes them known to all men. But unexplained initials, as, for example, initials referring to public land sm^eys, may not be employed in an indictment, i ABDUCTION.2 Taking away a wife, child, or ward, by fraud and persuasion, or open violence. 3 In private or civil law, the act of taking away a man's wife by violence or persua- sion.* In criminal law, the act of taking away or detaining a woman either against her own will, or, in the case of a minor, against the will of her parents or other person having the lawful cliarge of her.* Any unlawful seizure or detention of a female. 6 The taking may be accomplished by solicitations or inducements, as well as by force. This, at least, is the intention of the California statute which punishes abductions for purposes of prostitution.'^ In New York, also, it must be proved that there was persua- sive inducement on the part of the accused, for the purposes of prostitution; mere permission or allow- ance to foUow such a life is not enough. And proof must be given, aside from the testimony of the alleged abducted female, of the taking and the specific intent.' Harboring against the will is abduction. Not, pro- tection against abuse, nor shelter given after the par- ent or guardian has relinquished the right of control. Every abduction includes a false imprisonment. The remedies are trespass vi et artnis for damages, and indictment for the assault and battery.' See Kidnap- ing; Sekvitcde, 1. ABET.ii* To aid, encourage, promote the commission of an offense ; to incite a person to commit a crime. Whence abettor, abet- ment. See Accessary; Aid, 1. If men who are present at a quarrel encourage a battery, they thereby assume the consequences of the act, equally with the party who does the beating; often, indeed, they are more culpable. It is not nec- essary that encouragement should consist of appeals. It is enough that they sanction what is being done, and I United States o. Reichert, 32 F. R. 147 (1887), Field, J. See Bish. Contr. g 377 " L. ab-ducere, to lead away. sSee 8 Bl. Com. 139; Carpenter v. People, 8 Barb. 606 (1850); State v. George, 93 N. C. 670 (1885). 4 3 Stephen, Com. 437. " [Sweet's Law Diet. "See 1 Russell, Crimes, 9 Am, ed., 940; 5 Strob. (S. Car.) 1. ' People V. Marshall, 59 Cal. 388 (1881). » People V. Plath, 100 N. Y. 590 (1885), oases, Ruger, C. J. ; Penal Code, | 282; Laws 1884, c. 46, § 2; amended, Laws 1886, c. 31. » 3 Bl. Com. 139-41. As to place, see 6 Cr. L. Ht. 357-60 (1884), cases. "> F. a-beier, to bait, lure on. ABEYANCE ABORTION manifest this by demonstrations of resistance to any who might desire to interfere to prevent it; or by words, gestures or acts, indicating approval.' ABEYAJJTOE.^ In expectation, remem- brance, and contemplation of law; in sus- \ pense.3 Subsisting in contemplation of law.* In abeyance : undetermined. Said of a fee or a freehold when there is no person in esse in whom it can vest and abide : though the law considers it as always poten- tially existing, and ready to vest when a proper owner appears.' Thus, in a grant to A for life and then to the heirs of B, the fee is not in A or B, nor can it vest in the '* heirs " of B till after his death : it therefore remains in waiting or abeyance, during the life of B.^ It is a maxim of the common law that a fee cannot be in abeyance. The maxim rests upon reasons that have now no existence, and it is not now of universal application. Even where it still applies, being a com- mon-law maxim, it must yield to a statutory provision inconsistent with it — as, the Confiscation Act of 1862. ^ The franchise of a corporation may be in abey- ance; ' so may a grant of land to a charity.^ In this category, also, are all property rights pf a bankrupt until final adjudication; ? and, a capture unti} a prize court has passed upon it.'" ABIDE. To await; as, in saying that costs abide the event of the suit. Abide by. To conform to, obey. " To abide by an award " is to stand by the determination of the arbitrators, and take the consequences of the award ; to await the award without revoking the submission ; not, necessarily, to acquiesce in, or not to dispute the award.ii The language employed in arbitration bonds, " to abide by the award," is to prevent the revocation or breaking of the contract of submission, rather than to apply to the actual finding of the arbitrators.''' In a bond " to appear and abide the order of the court," means to perform, to execute, to conform to, such order. An obligation to appear and abide the final order anU judgment (in force through the entire ' Frantz v. Lenhart, 56 Pa. 367 (1867). See 50 Conn. 101, 93. 2r. abeiance, suspension, waiting: abayer, to ex- pect. 3 2B1. Com. 107, 216, 318. ' i Kent, 260. li 2 Bl. Com. 107. « WaUach v. VanEiswick, 92 XT. S. 212 (1875). ' Dartmouth College D.Woodward, 4 Wheat. 691 (1819). "Town of Pawletu. Clark, 9 Cranch, 333 (1815). » Bank v. Sherman, 101 U. S. 406 (1879). ' » 1 Kent, 103. See also 5 Mass. 555; 16 id. 464. "Shaw V. Hatch, 6 N. H. 163 (1833). '"Marshall v. Eeed, 48 N. H. 40 (1868); 17 id. 461; 35 id. 198. proceedings), although it does not oblige the defend- ant to attend court personally and consecutively, yet it does require him to take notice, by himself or his representative, of each step in the proceeding, and to attend personally when by law necessary.' " To abide and satisfy " a judgment or order is to perform, execute, conform to, and to satisfy it; that is, to carry it into complete effect.'' Abiding conviction. Of guilt — a set- tled and fixed conviction, a conviction which may follow a careful examination of the whole evidence in the case.' ABILITY. See Capacity; Disability; Pecuniary; Rehabilitate; Responsible. ABLEGATUS. See Minister, 3. ABODE. The place where a person dweUs. Prescribed as the criterion of the residence required to constitute a legal voter, nothing more than a domicil, a house, which the party is at liberty to leave, as interest or whim may dictate, but without any present intention to change it.* The place where a college is situated may or may not be a student's permanent abode. To such as are free from parental control, and regard the place as their home, having no other place to which to return in case of sickness or affiiction, it is, pro hoc vice, their home, their permanent abode.* A college student may be both a voter and a stu- dent; and if he in good faith elects to make the place his home, to the exclusion of all other places, he may acquire a legal residence, although he may intend to remove from such place at some fixed time, or at some indefinite period in the future.' See Domicil. ABOE.TIOlf.6 The act of miscarrying, or producing young before the natural time, or before the foetus is perfectly formed ; also, the foetus itself so brought forth.'' "Miscarriage" means bringing forth the foetus before it is perfectly formed and ca- pable of living. The word "abortion" is equivalent to miscarriage in its primary meaning ; but it has a secondary meaning, in which it is used' to denote the off-spring.8 At common law an indictment will not lie for an at- tempt to procure an abortion with the consent of the ' Hodge V. Hodgdon, 8 Cush. 297 (1851), Shaw, C. J.; 108 Mass. 585; 30 Kan. 88; 13 E. 1. 125; 7 Tex. Ap. 38. " Erickson v. Elder, 34 Minn. 371 (1885), Berry, J. s [Hopt V. Utah, 120 U. S. 439 (1887), Field, J. « Dale V. Irwin, 78 HI. 181 (1875): 111. E. S. 1874. See Fry's Election Case, 71 Pa. 302 (1872); McCrary, Elec- tions, § 34. spedigo V. Grimes, Ind. Sup. Ct. (Nov. 1887), cases; Sanders v. Getchell, 76 Me. 165 (1884); Vanderpoel v. O'Hanlon, 53 Iowa, 249 (1880), cases. 8 L. abortio, untimely birth. ' [Butler V. Wood, 10 How. Pr. 224 (1854). 8 Mills V. Commonwealth, 13 Pa. 633 (1850), Coulter, X ABOUT ABRIDGE mother, until she is " quick with child." It was con- sidered that the child had an independent existence only when the embryo had advanced to the degree of maturity designated by that phrase, although, in ref- erence to civil rights, an infant in ventre sa mere was regarded as a person in being.' See Quiokenimo. It is a flagrant crime at common law to attempt to procure a miscarriage or an abortion. By that law it is not the murder of a living child which constitutes the offense, but the destruction of gestation by wiclsed means and against nature. =* Notwithstanding an infant in ventre is treated by the law, for some purposes, as born, or as a human being, yet it is otherwise with reference to maldn^ the act of causing its miscarriage murder, unless so de- clared by statute. When the infant is born it becomes a human being, within the meaning of the law; and if it should die by reason of potions or bruises received in the womb, it would be murder in the person who administered or gave them, with a view of causing a miscarriage.' See Malice, Constructive. Abortion, as a crime, is found only in modern stat- utes and treatises. No mention is made of it in the ancient common-law writers.* The intent not being specifically to talie life, some States have made the offense a statutory felony, and pimish any unlawful attempt to procure a miscarriage. ° The woman cannot be indicted as an accomplice.* Abortionists^ articles are non-mailable,^ and non- importable.^ See Attempt; Decoy. ABOITT. 1. Carrying weapons concealed "about" the person means: near, in close proximity, within convenient control and easy reach. 9 2. In close proximity to ; closely approxi- mating. An agreement to furnish "about 1000 tons" of metal per month will not allow the shipment of 1 Commonwealth v. Parker, 9 Mete. 360 (1845), Shaw, C.J. 2 Mills V. Commonwealth, ante. Commented on in cases below, especially in Mitchell v. Commonwealth, 78 Ky. 206-7 (1879). 'Abrams v. Foshee, 3 Iowa, 278-79 (1856). To same effect. State v. Cooper, 22 N. J. L. 63-58 (1849), cases; Smith V. State, .33 Me. 54-55 (1851), cases ; State v. Moore, S5 Iowa, 131-37 (1868), cases; Evans v. People, 49 N. Y. 88 (1872); State v. Dickinson, 41 Wis. 309 (1877), cases; Mitchell V. Commonwealth, 78 Ky. 204 (1879); State v. Slaglo, 88 N. C. 653 (1880). And see 10 Cent. L. J. 338; 4 Bl. Com. 201; S Whart. Cr. L. § 1220. * State V. Cooper, 22 N. J. L. 55, 53-58 (1849), cases; 3 Coke, Inst. 60; 1 Bl. Com. 129. 'See Commonwealth v. Wood, 11 Gray, 85 (1858); Commonwealth v. Boynton, 116 Mass. 343 (1874); Com- monwealth V. Felch, 132 id. 22 (1882); Commonwealth V. Taylor, ib. 261 (1882); State v. Watson, 30 Kan. 281 (1883); Commonwealth v. Bailing, 113 Fa. 37 (1886); 3 Whart. Cr. L. §§ 1220-28. « People V. Tedder, 98 N. Y. 630, 632 (1885), cases. ' Act 3 March, 1879; 1 Sup. E. S. p. 229. fR. S. |§ 2491-93; Act 3 March, 1883, 22 St. L. 489, 490. « State V. McManus, 89 N. C. 668 (1883). a" quantity materially less than that number of tons.' " About forty acres " Implies that the actual quan- tity is a near approximation to forty acres." See Estimate; Moke or Less. ^3. Imports not only nearness of time, qual- ity, or degree, but, also, making preparation to do a thing, or being actually engaged in ' doing it.* A man is about to convert his property into money when he is near doing it, is making preparations to do it, is actually about to dispose ot the property.* See Abscond. ABOVE. Upper, higher; superior. "Above all iucmnbrances " means in excess of such incumbrances.* Court above. The court to which a cause is removed. Defendant above. The party who is de- fendant before an appellate court. Plaint- iff above. The plaintiff in an appellate court. Opposed — court, plaintiff, and defendant below. See Bail Above. Compare Supra. ABBIDGE.5 1. To shorten, condense; to epitomize, reduce, contract. A reasonable abridgment of a copyrighted publi- cation is permitted as a new production, involving in its preparation intellectual labor. Not so as to a inere colorable reduction, which is not real nor fair and does not require invention and judgment. What con- stitutes a fair and reasonable abridgment is a ques- tion difficult to answer. But a mere selection, or dif- ferent arrangement of parts, so as to bring the work into a smaller compass, is not such abridgment. There must be real, substantial condensation of the materials, and intellectual labor and judgment be- stowed thereon; and not -merely the facile use of scissors, or extracts of the essential parts.' A "compilation" consists of selected ex- tracts from different authors; an "abridg- ment " is a condensation of the views of one author.7 The former cannot be extended so as to convey the same knowledge as the original work; the latter con- 1 Norrington v. Wright, 115 U. S. 204 (1885). And see Brawley v. United States, 96 id. 171-72 (1877). » Stevens v. McKnight, 40 Ohio St. 341 (1883). See also Baltimore Land Society v. Smith, 64 Md. 208 (}880); 16 C. B. 36; 44 L. T. R. 153. = [Hockspringer v. Ballenburg, 16 Ohio, 308, 312 (1847): 69 Tex. 385. See also Von Lingen v. Davidson, 4 F, R. 350 (1880); s. c. 11 Rep. 5. * Williams v. McDonald, 42 N. J. E. 395 (1886). ^ F. abregier, to shorten. • Folsom V. Marsh, 2 Story, 107, 115 (1841), Story, J. Concerned letters reprinted from "Sparks' Life of Washington." ' Story's Executors v. Holcombe, 4 McLean, 308-14 (18471, McLean, J. Concerned an abridgment of " Story's Commentaries on Equity Jurisprudence." ABEOAD ABSOLUTE tains an epitome of tlie work abridged, and, conse- quently, conveys substantially the same knowledge. The former cannot adopt the arrangement of the works cited, the latter must adopt the arrangement of the work abridged. The former infringes the copy- right if the matter transcribed, when published, im- pairs the value of the original work ; but a fair abridg- ' meut, though it injures the original, is lawful. To " abridge " is to epitomize, to reduce, to contract. To copy certain passages from a book, omitting others, is in no sense an abridgment: the judgment is hot exer- cised in condensing the author's views; his language is copied, not condensed. To " abridge " is to preserve the substance, the essence of the work, in language suited to such purpose.' An abridgment of an original work, where intellect- ual labor and judgment are involved, made and con- densed by another person, without the consent of the author, is not an infringement of a copyright on the original, especially as to histories, translations, and abridgments not of a character to supersede the orig- inal.' See further Compile; Piraot, 2. 2. "Abridgment" has also been used to describe a book in which the substance of reports, or of the rules of law to be' de- duced from them, are concisely and more or less systematically stated. ^ Compare Di- gest. 3. To subtract, diminish, limit, curtail, re- strict, discriminate against. " No State shall make . . . laws which shall abridge the privileges or immunities of citizens of the United States." < The exercise of any right may be regulated by law. The right to pursue a lawful employment is not "abridged," within the Fourteenth Amendment, by an ordinance which merely prescribes the reasonable conditions under which such business may be carried on.' See Citizen. ABROAD. In English chancery law, be- yond the seas. See Deposition ; Sea. ABKOGATE. See Repeal; Eescind. ABS. The form of a or db (from) in com- position. See A, 5. ABSCOiND.e To hide, conceal or absent one's self clandestinely, with intent to avoid legal process.' In an attachmeut-of-debtor law, may not apply to an act.'about to be done.' See About, 3. ' Story's Executors v. Holcombe, 4 McLean, 308-14 (1847), ante. " Lawrence v. Dana, 4 Cliff. 79-86 (1869), cases, Clif- ford, J. Concerned an infringement of the copyright 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. * Constitution, Amd. XIV. » Re Bickerstafl, 70 Cal. 88-40 (1886), oases. * L. dbs, away; condere^ to hide. 'Bennett v. Avant, 2 Sneed, 153 (1854). An absent and absconding debtor is one who lives without the State, or intentionally conceals himself from his creditors, or with- draws himself from the reach of their suits, with intent to frustrate their demands, i It a debtor departs from his usual residence, or re- mains absent therefrom, or conceals himself in his house, so that he cannot be served with process, with intent unlawfully to delay or defraud his creditors, he is an absconding debtor." See Absent. ABSENT. Being away : away, not pres- ent; not at one's domicil or usual place of business; out of the jurisdiction. Compare Presence. Absentee. A person who has resided ia the State and has departed without leaving any one to represent him ; also, a person who was never domiciliated in the State and re- sides abroad. 2 Absence does not necessarily mean out of the State; it may refer to cases of default without service of pro- cess. Where the presence of a defendant is not se- cured by appearance or service of summons to appear, a judgment rendered upon his involuntary default is rendered " in his absence." ^ See Abscond. Notice by publication (g. v.) is often given to absent defendants. Brief or temporary absence from a dwelling-house, in the law of arson, burglary, and insxu'ance (gg. v.), does not, as a rule, affect the owner's rights. ABSOLUTE.* Exclusive; without con- dition or incumbrance ; complete ; perfect ; final ; opposed to conditional, qualified, rela- tive: as. Absolute or an absolute — acceptance, alienation, allegiance, bail, bond, confirma- tion, conveyance, decree, delivery, divorce, estate, fee, guaranty, nullity, ownership, possession, privilege, property, right, rule, sale, waiver, warranty, qq. v. Absolute means complete, unconditional, not relar tive, not limited, independent of anything extraneous. In the sense of " complete, not limited," distinguishes an estate in fee from an estate in remainder. In the sense of " imoonditional," describes a bond, a convey- ance, or an estate without condition. In the sense of " 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 a pure estate, unmixed and unconnected with any peculiarities or aualiflcations; a naked estate, freed from every qualification and restriction, in the donee- Thus, it may describe an estate given to a married > Fitch V. Waite, 5 Conn. 121 (1823). 2 Morris v. Bienvenu, 30 La. An. 880 (1878): Civ. Code, art. 3556. s James v. Townsend, 104 Mass. 371-78, 369 (1870). * L. ab-solvere, to free from, set free. ' ABSQUE ACADEMY woman, without the exclusion of the husband, in dis- tinction from an estate qualified with that exclusion. The most usual acceptation, when used of estates, is, not independent, but the opposite of partial or Condi- tional.^ Absolute is often used as the opposite of "condi- tional " and in the same sense as " perfect." It signi- fies without any condition or incumbrance.' That is an absolute interest in property which is so completely vested in the individual that he can by no contingency be deprived of it without his own con- sent. " Absolute " may be used synonymously with "vested," and as contradistinguished from contingent or conditional ; as in speaking Of the absolute property of an assured.' ABSQUE. L. Without; except. Absque hoe. Without this. Absque tali causa. Without such cause. Technical words of denial at common law. The former introduces the negative part of a special traverse and follows the affirmative part or induce- ment. The latter denies the matter of a plea by which defendant seeks to excuse a tortious act. See further, Traverse. ABSTBACT.* 1, v. To take or withdraw from ; to remove or take away. Under § 5209, Rev. St., an officer of a national bank may be guilty of " abstracting " funds, money, and credits, without any animus furandi. The stat- ute may be satisfied with an intent to injure or de- fraud some company, body politic or corporate, or individual person, other than the banking association whose property is abstracted, or merely to deceive some other officer of the association, or an agent ap- pointed to examine its affairs." To abstract a public record for the purpose of de- stroying or mutilating it has been generally made a criminal offense. 2, n. That which is drawn off: an epit- ome, a summary. Referring to records, ordinarily a brief, not a copy, of that from which it. is taken.6 But may be used in the sense of " copy." ' Abstract of title. A concise statement of the record evidence of one's title or inter- est in realty. Frequently spoken of as an " abstract." In conveyancing, an abstract or summary 1 Johnson's Adm. v. Johnson, 32 Ala. 640-42 (1858), cases, "Walker, J. a Converse v. Kellogg, 7 Barb. S97 (1850); 2 N. Y. 857. a Hough V. City Fire Ins. Co., 29 Conn. 20 (1860), San- ford, J. ; Williams v. Buffalo German Ins. Co., 17 F. B. 65 (1883), cases. * L. abs-tTahere, to draw away or off. ' United States v. Northway (President Second Nat. Bank of Jefferson, Ohio), 120 U. S. 327, 334-36 (1887), Matthews, J. ' [Dickinsou v. Railroad Co., 7 TV. Va. 413 (1874). ' Wilhite V. Barr, 67 Mo. 286 (1878). of the most important parts of the deeds and other instruments composing the evidences of a title to real estate, arranged usually in chronological order, and intended to show the origin, course and incidents of the title, without the necessity of referring to the deeds themselves. It also contains a state- ment of all charges, incumbrances, and lia- bilities to which the property may be sub- jected, and of which it is in any way material for purchasers to be apprised.! The person preparing a perfect abstract must fully understand all the laws on the subject of convey- ancing, descents, uses, trusts, devises, — every branch of the law that can affect real estate in its mutations- from owner to owner.* ABUNDANS. See Cautela. ABUSE.3 1. An improper use ; a custom or practice contrary to the intendment of law or to good morals. Common expressions are: the abuse of authority, of discretion, of a thing bailed, of process, of a dis- tress, of a prisoner; of the hberty of free speech; of a, witness, qq. u. 2. The synonym of injure; in its largest sense, ill-use or improper treatment of another person or of a dumb animal. Compare Cru- elty. In a statute punishing the deflowering of a female child, is limited by the words with which it is con- nected referring to the same subject-matter. The term itself includes physical injury, which is also- included in the words " carnally knew." Our statutes, following the English, describe the offense by the words " unlawfully and carnally know and abuse any woman child under the age of ten years." * See Sesjuo- TION. ABUT. To touch or meet. Compare Adjoining. Abutment. The part of a bridge which touches the land. See Bridge. Abuttal. The point at which tracts of land meet ; the butting or bounding of lands. Abutting. Usually, although not neces- sarily, imports "in contact" with.* Properties abut upon a street; and their owners are (ibutting owners. See further Street. AC. See Ad. ACADEMY. See Abode; Cadet; Col- lege, 2 ; School, Public. > Burrill's Law Diet. ; Warvelle, Abstr. Title, § 2. 2 Banker ti. Caldwell, 3 Minn. 101 (1859); 7 W. Va. 413. * L. ab, amiss; uti, to use. < Dawkins v. State, 58 Ala. 379, 378 (1877), Brickell, C. J. See generally Commonwealth v. Roosnell, 143 Mass. 32 (1887). • Cohen v. Cleveland, 43 Ohio St. 197 (1885). ACCELERATE 10 ACCEPTANCE ACCELERATE. To shorten the period after which an interest or estate is to vest in possession or enjoyment. ACCEPTANCE.! A receiving — with approval, or conformably to the purpose of a tejider or offer ; receiving with intention to retain. Whence acceptor, non-acceptance. A person is said to accept the service of a notice, an offer, a bid, the terms of a contract, a guaranty, a charter, rent, goods delivered, a bill of exchange. 1. At common law, a, sale of goods, wares, or mer- chandise was complete upon acceptance of the offer to sell. The Statute of Frauds requires that before an action can be maintained there must have been both a delivery and an acceptance «)f the article by the purchaser or by his duly authorized agent. In deter- mining, in a particular case, whether there was a binding acceptance, the courts consider the intention of the parties and the nature of the property.^ It is a question for the jury whether, under all the circumstances, the acts which the buyer does or for- bears to do amount to a receipt and acceptance. But where the facts are not in dispute it is for the court to determine their legal effect; also when the facts are- not such as can in law warrant finding an accept- ance. To take the contract out of the operation of the statute, there must be " acts of such a character as to place the property unequivocally within the power and imder the exclusive dominion of the buyer as absolute owner, discharged of all liens for the price.", ^ See Frauds, Statute of; Offer, 1. 3. Acceptance of a bill of exchange is an assent or agreement to comply with the re- quest or order contained in the bill, or, in other words, an assent or agreement to pay the bill according to the tenor of the accept- ance, when due.* An engagement to pay the bill according to the tenor of the acceptance ; a general ac- ceptance being an, engagement to pay accord- ing to the tenor of the bill.' " Accepted," on a bill of exchange, is an engage- ment to pay the bill in money when due. Indorsed 1 L. accipcre, to receive. 2 See Bullock v. Tschergi, 1.3 F. E. 345 (1882); Mahan «. United States, 16 WaU. 146 (1872); 1 Eped, St.Fr. §§ 258-303, oases; 28 Minn. 854; 2 Kent, 494; 3 Pars. Contr. 39; 2 Bl. Corfi. 447. s Hinchman v. Lincoln, 124 U. S. 38 (1888), cases, Mat- thews, J., quoting Marsh v. Eouse, 44 N. Y. 617 (1871), cases. See also Shindler v. Houston, 1 id. 265 (1848): 49 Am. Dec. 325-40(1883), cases; Eemick v. Sandford, 120 Mass. 316 (1876), oases; Baldey v. Parker, 3 Bam. & C. *40 (1823); Benj. Sales, § 187; Browne, Stat. Fr. §317 a. 4 Gallagher u. Nichols, 60 N. T. 445 (1875), Miller, J.; 12 Barb. 669; 1 Pars. N. & B. 281. ' Cox 11. Nat. Bank of New York, 100 U. S. 712 (1879), Clifford, J. upon non-negotiable paper, would not import a .con- sideration.! The bill itself, after acceptance, is also called " an acceptance." Acceptor. He who accepts a bill of ex- change, — usually the drawee. An acceptance is commonly naade by writing "ac- cepted " upon the face of the bill and signing there- under the acceptor's name; but there is no particular place, and no uniform formula, observed. Acceptances are: express, and implied; verbal, and written; prior to drawing the bill ; before or after maturity ; for accommo- dation; after protest; absolute, qualified, conditional; by all the drawees, by one or more of them, by a person not a drawee for the honor of the drawer or of an indorser. They are "complete," when in exact con- formity with the tenor of the bill; " quali- fied," when the engagement is to pay at a different time, place, or manner, from the tenor; and " conditional," when the obliga- tion to pay is to commence on the happening of some event or circumstance. ^ Every act giving credit to a bill amounts to an ac- ceptance; and this, once fairly and fully made and consummated, cannot be revoked. But the drawee has a reasonable time in which to obtain desired and pertinent information.' Unless forbidden by statute, a promise to accept an existing bill is an acceptance whether the promise is in writing or by parol. The acceptor is to the drawer as the maker of a promissory note is to the payee, i. e., he is tlie prin- cipal debtor, and the drawer is his surety. His lia- bility is governed by the terms of the acceptance.' Acceptors of a bill of exchange by, the act of ac- ceptance admit the genuineness of the signatures of the drawees, and the competency of the drawers to assume that responsibility. Such an act imports an en- gagement, on the part ot;the acceptor, with the payee or other lawful holder of the bill, to pay the same if duly presented, when it becomes due according to the tenor of the acceptance. He engages to pay the holder, whether payee or indorsee, the full amount of the bill at maturity, and if he does not, the holder has a right of action against him, and he may also have one against the drawee. Drawers of bills of exchange, however, are not liable to the holder, under such cir- cumstances, until it appears that the bill was duly presented, and that the acceptor refused or neglected to pay according to the tenor of the instrument; their liability is contingent and subject to those conditions 1 Cowan V. Halleck, 9 Col. 578 (188G), eases. 2 See 1 Pars. Contr. 267; 2 Pars. N. & B. 281; 1 Daniel, Neg. Inst. I 496; 64 Ala. 38-33; 109 Mass. 414. ' 3 Kent, 82-88. « Scudder v. Union Nat. Bank, 91 U. S. 413-14 (1875), cases; Cox v. Nat. Bank of New York, 100 id. 713, 712-18 (1879), cases. ACCESS 11 ACCESSARY piaecedent.! SeeCEECEjExcHAHOS, 2, BUI of ; FiAcs, 1, Of payment; Protest, 2. ACCESS.2 Going to or with: approach, intercourse, or opportunity therefor. Op- posed, non-access. In a special sense, refers to sexual inter- course between a husband and wife, and im- ports its occurrence or opportunity of com- municating for that purpose. The presumption that children bom in lawful wed- lock are legitimate, may be rebutted by evidence show- ing that there could have been no intercourse. Where there were opportunities for intercourse, evidence to establish impotency is generally not admitted. Non- access is not presumed from the mere fact that the parties lived apart in the same country.^ A parent will not be permitted to prove non-access for the purpose of bastardizing issue bom in wedlock. The admission of such testimony would be unseemly and scandalous; it would reveal immoral conduct in the parents, and the child, who is in no fault, would be the chief sufferer. Modem statutes allowing par- ties to testify in their own behalf have not changed this rule of law.* ACCESSABY.s He who is not the chief actor in an offense, nor present at its pei"- formance, but is in some way concerned therein, either before or after the fact com- mitted.* If a person does no more than procure, advise or assist, he is only an accessary; but if he is present, consenting, aiding, procuring, advising, or assisting, he is a "principal." ' Accessary before the fact. One who, being absent at the time of the crime com- mitted, doth yet procure, counsel, or com- mand another to commit the crime.' Accessary at the fact. An aider and abetter was formerly defined to be an "ac- cessary at the fact." He is now spoken of as a principal in the first or second degree.^ Accessary after the fact. One who, knowing a felony to have been committed, > Hoffman u Bank of Milwaukee, 13 Wall. 186, 193 (1870), aifford, J. ^Ac-cess', or ac'-cess, — Webster. ' 2 Greenl. Ev. §§ 150-51 ; 1 id. § 88; 1 Whart. Ev. § 608; 2 id. § 1298; 1 Bl. Com. 457. * Tioga County v. South Creek Township, 75 Pa. 430- 37 (1874); Boykin v. Boykm, 70 N. C. 263-64 (1874), cases; Melvin v. Melvin, 58 N. H. 570 (1879), cases; King 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. « 4 Bl. Com. 35; 3 Cliff. 227. 'United States u. Wilson, Baldw. 103 (1830). See also Speer v. Hiles, 67 Wis. 363 (1886), oases. » 4 Bl. Com. 37: 1 Hale, P. C. 615. • United States v. Hartwell, 3 Cliff. 226 (1869). receives, relieves, comforts, or assists the felon. 1 In treason and misdemeanors, all participants are principals. The nearest relatives dare not aid or re- ceive one another. Mere presence makes an accessary before the fact a principal in the second degree. An accessary before the fact is liable for all that ensues from the unlawful act. The manner of executing his command is simply a collateral circumstance. Any assistance given a felon to hinder his being appre- hended, tried, or pimished, makes the a«sister an ac- cessary after the fact. A person acquitted as a principal may be indicted as an accessary after the fact; and one may be indicted as an accessary both before and after the fact.* Whatever will make a party an accessary before the fact in felony will make him a principal in misde- meanor, if properly charged as such. . The acts, conduct, and declarations of each confederate, made during the pendency of the enterprise, are evidence, as part of the res gestae, against all concerned; but a con- fession made subsequently to the crime affects only him who makes it. . . . Where the accessary is tried with the principal, the confession of the latter is admissible to prove his own guilt, and where he con- fesses by pleading guilty and retiring, the record of such conviction is prima facie evidence of his guilt at the trial of other defendants. Evidence of the confes- sion of an accessary, to prove the guilt of the prin- cipal, cannot be admitted under' an indictment against the accessary, unless the guilt or conviction of the principal is alleged in the indictment. The rule at common law was that the accessary could not be con- victed until the guilt of the principal was established; so that the principal was first to be convicted or both indicted and tried together. . . . When the acces- sary is indicted before the principal ha.s been con- victed, the indictment, whether separate or joint, must allege the guilt of the principal, as the offense of the accessary depends upon the principal's guilt and is never to be regarded as complete unless the chief offense was actually committed. When principal and accessary are indicted together, the regular course is to introduce all substantive evidence against all the parties before they are required to state their defense. Then the jury are instructed to consider the case of the principal defendant in the first place, and, if they find him not guilty, that it is their duty also to acquit the accessary; but if they find him guilty, they are to proceed to examine the charge against the ac- cessary, and declare whether it is sustained.' Every accessary after the fact to murder, robbery, or piracy, shall be imprisoned not more than three years, and fined not more than five hundred dollars. Every accessary after the fact to any robbery of the carrier, agent, or other person intrusted with the mail, of such mail or of any part thereof, shall be fined not MBl. Com, 37; 14 R. I. 283. = 4 Bl. Com. 36-40. See also State v. Davis, 14 R. I. 283 (1883). 'United States v. Hartwell, 3 Cliff. 826-31 (1869), cases, Clifford, J. See also 2 Steph. Hist. Cr. L. Eng. 239. ACCESSIO 13 ACCIDENT more than two thousand dollars, and be imprisoned at hard labor not more than two years; ' and for stealing any letter, or other mail' matter, or inclosure therein, not more than five years imprisonment and one thou- sand dollars fine.^ Accessaries to murder, robbery or other piracy upon the seas, shall suffer death.' " An accessary is he who stands by, and aids, abets, or assists, or who, not being present, aiding, abetting, or assisting, hath advised, encouraged, aided or abetted the perpetration of the crime. He who thus aids, abets, assists, advises or encourages shall be con- sidered as principal and punished accordingly. Every such accessary, when a crime is committed within or without this State by his aid or procurement in this State, may be indicted and convicted at the same time as the principal, or before, or after his conviction, and whether the principal is convicted or amenable to justice, or not, and punished as principal." * See Abet; accomplice; Aid, 1; Anarchists' Case; Decoy; Husband; Presence; Principal, 5. ACCESSIO, L. Increase ; accession, q. v. Accessio cedit priucipali. Increase goes with the principal. Any addition belongs to the owner of the principal object. See Accessorium. ACCESSION". Addition, increase; aug- mentation. See Accessio. Specifically, the right to all that which one's own property produces, whether that property be movable or immovable, and the right to that which is united to it, either i>at- urally or artificially. ^ The fruits of the earth, produced naturally or by human industry, the increase of animals, new species of articles made by one person out of the materials of another, and increments to land, are embraced within the definition.' The doctrine of property arising from accession is groimded on the right of occupancy. By the Ropian law, if any corporeal substance received an accession by natural or artificial means, the original owner of the thing, by virtue of his right of possession, was en- titled to the thing in its improved state; but if the thing itself became changed into a different species, as by making wine out of another's grapes, it be- longed to the new operator, who was only to make satisfaction to the former proprietor for the materials so converted. These doctrines have since been con- firmed by the courts." The rule is that the accession goes with the princi- pal thing.' See Accessoriitm: Accessory; Accretion; Inci- dent; Partus. Compare Confusion, Of goods. 1R.S.§§ 6533, 5473. aR. S. §§ 5535, 5467, 5469, 5471. ' s R. s. §§ 5323-34. *I11. Kev. St., Cothran's ed., p,506, cases. On casual connection, see 20 Cent. Law J. 3-6 (1885), cases. » [3 Kent, 360. « 2 Bl. Com. 405. '3 Kent, 360. ACCESSORIUM. L. An accessory^ thing ; the incident. Accessorium seqiiittir principale, or prineipalem, or naturam sui princi- palis. The accessory follows the principal thing, or the principal, or the nature of the principal. The incident follows the principal. The more worthy draws to itself the less worthy.' See Acces- sion. ACCESSORHrS. L. An accessary; an assistant. Aecessorius sequitur naturam sui principalis. An assistant follows the char- acter of his chief. An accessary follows the nature of his principal — in treason and misdemeanors: he cannot be guilty of a higher degree of crime.^ See further Accessary. ACCESSORY.!! 1. Accompanying ; inci- dental; subservient; appurtenant: as, an ac- cessory contract or obligation, gg. v. 2. "Whatever is connected as an incident or subordinate thing to another as the principal. See Accession. 3. An accessary, q. v. Accessorial. Going with some other as the chief or more important thing : as, an of- fense of an accessorial nature,* an accessorial service. 5 ACCrDENT. See Accideeb. An event or occurrence which happens un- expectedly, from the uncontrollable opera- tions of nature alone, and without human agency ; or an event resulting undesignedly and unexpectedly from human agency alone, or from the joint operation of both.^ An event from an unknown cause, or an unusual and unexpected event from a known cause; chance, casualty.' In equity, includes not only inevitable cas- ualties and such as are caused by the act of God, but also those that arise from unfore- seen occurrences, misfortunes, losses, and acts or omissions of other persons, without the fault, negligence, or misconduct of the party. 8 See Mistake ; Relief, 3. 1 See 8 Bl. Com. 11, 36, 176; Broom, Max. 497. ' See 3 Inst. 139; 4 Bl. Com. 36; Broom, Max. 497. 3 Ac-ces'-sory, — "Webster. 4 18 Wheat. 476; 1 Greenl. Ev. § 294. ■ 6 2 F. E. 478. « Morris v. Piatt, 38 Conn. 85 (1864;, Butler, J. ' Crutohfield v. Richmond, &c. R. Co., 76 N. C. 322 (1877), Reade, J. \ 8 Bostwlck V. stiles, 35 Conn. 198 (1868), Park, J.; ACCIDENT 13 ACCIDENT Avoidable, unavoidable, and inevi- table accident. Accidents are : (1) Such as are " inevitable" or absolutely unavoidable, because effected or influenced by the uncon- trollable operations of nature. (3) Such as result from human agency alone, but are " unavoidable " under the circumstances. (3) Such as are " avoidable," because, in a given case, the act was not called for by any duty or necessity, and the injury resulted from the -want of that extraordinary care which the law reasonably requires of one doing such a lawful act, or because the accident was the result of actual negligence or folly, and might, with reasonable care adapted to the emergency, have been avoided. " Unavoidable accident " does not mean an accident which it is physically impossible in the nature of the things to prevent ; but an accident not occasioned in any degi'ee, re- motely or directly, by the want of such care or skill as the law holds every man bound to exercise. 1 No one is responsible for that which is merely the act of God or *' inevitable accident." But when human agency is combined with it and neglect occurs in the employment of such agency, a. Uability for -31 (1869), Paine, J. ACCIDENT 14 ACCOMPLICE chance, or which does not take place accord- ing to the usual course of things.i When the object of a company is to insure against bodily injuries produced by external, violent, and ac- cidental means, all combined, there can be no recov- ery where an assured innocently drank poison.^ "Within a policy against injury or death from "ex- ternal, violent, and accidental means," excepting injury or death from " poison," a recovery was had for death from poison absorbed into the system by handling hides. ^ See Poison. ' A policy against " bodily injuries, effected through external, accidental, and violent means," occasioning death or complete disability to do business, providihg that " this insurance shall not extend to death or dis- ability caused by bodily infirmities or disease, by sui- cide, or self-inflicted injuries," — covers a death by hanging one's self while insane.* See Suicidb. The burden of proof rests upon the insurer to show that the assiu'ed did not use the required degree of * diligence for his personal safety.' . . . The use of the word " accidental " will not prevent recovery for injuries to which the negligence of the assured con- tributed.^ Within the meaning of the rules of a bene- ficial society, an "accident" has its usual signification of an event that takes place without one's foresight or expectation.^ In this sense it includes an injury received by one in a common affray, when no fault on his part is shown.* A " railway accident " is any accident hav- ing its essence in the peculiarities or proper- ties of railway traveling;' an accident at- tributable to the fact that the injured party is a passenger on the railway, and arising out of an act immediately connected with his being such a passenger. 8 See Oashalty; Cause, 1, Proximate; Convetanoe, 1 ; Injury; Negligence; Kbs, Perit, etc. • North American Life, &c. Ins. Co. v. Burroughs, 69 Pa. 51 (1871), Williams, J. Approved, Bacon v. Acci- dent Association, 44 Hun, 607, infra. ' Pollock V. United States Mut. Accident Association, a02 Pa. 334(1683). s Bacon v. United States Mut. Accident Association, 44 Hun, 699 (1887), cases. ■> Accident Ins. Co. u. Crandal, 180 U. S. 587, 531-38 (1887), cases. Gray, J. 6 Freeman v. Travelers' Ins. Co., 144 Mass. 575 (1887), cases; s. c, 36 Alb. Law J. 1S7. As to "total disabil- ity," see Saveland v. Fidelity & Casualty Ins. Co., 67 Wis. 176 (1886). ' Supreme Council of Chosen Friends v. Garrigus, 104 Ind. 140 (1884), ZoUars, J. ' Theobald v. Eailway Passenger Assur. Co., 26 E. L. & Eq. 437 (1854), Alderson, B'. ^Ibid. 440, Pollock, 0. B. That accidents are not crimes, see 81 Cent. Law J. 264-70 (1885), cases. ACCIDEEE. L. To fall upon : to come to, arrive at ; to come to hand ; to fall out, come to pass, happen. Quando aeciderint. When they (assets) come to hand. Where an executor or an administrator pleads plene administravit, the plaintiff may pray judgment of assets quatido aeciderint^ or traverse the plea.* ACCOMMODATION". Convenience, fa- vor, benefit. An engagement made as a favor to another, and without consideration ; some- thing done to oblige another ; as, a loan of money or credit. Accommodation paper. A loan of the maker's credit, without restriction as to the manner of its use, by means of a bill of ex- change or a promissory note, and by making, accepting, or indorsing the same, as the case may be. A payee may use such instrument, as the name im- ports, for his own benefit, in any manner he may judge best calculated to advance his interests. Thus, he may pay an existiug debt with it, sell or discount it, or pledge it as collateral security. A holder for value may recover, though he knew that no consideration passed between the parties to the paper; if otherwise, the purpose of the paper would be defeated. But the want of a consideration is a good defense as against the party accommodated.* Being out of the regular course of business, a part- ner, unauthorized, may not thus loan the name of his firm. 3 See Accommodatum. ACCOMMODATUM. L. A loan for use without pay, the thing to be restored in specie. A species of bailment, g. v. The same as commo- datum* ACCOMPIiICE.5 One who is in some way concerned in the commission of a crime, whether as principal or as an accessary. . . . One of many equally concerned in a felony, the term being applied to those who are ad- mitted to give evidence against their fellow criminals for the furtherance of justice.^ 1 See 1 Pet. C. C. 443, n; 67 Ga. 49; 19 S. 0. 851. SAppleton v. Donaldson, 3 Pa. 386 (1846); Lord v. Ocean Bank, 20 id. 386 (1853), Black, C. J.; Moore v. Baird, 30 id. 139 (1858); Dunn v. Weston, 71 Me. 283 (1880), Appleton, C. J.; 109 U. S. 667; 65 Pa. 75; 3 Kent, 48, 86; Byles, Bills, 131-32, note by Sharswood. » 1 Daniel, Neg. Inst. 272; 1 Pars. N. & B. 259; 1 Bates, Partn. § 349, cases. 4 8 Kent, 573. ^F. accomplic, coiiiplice^ a confederate: L. com- plicem, folded with, interwoven; involved. « Cross V. People, 47 111. 158 (1868), Breese, C. J. And see People v. Smith, 88 Hun, 627 (1883), Daniels, J.; Cooku State, 14 Tex. Ap. 101 (1883), White, P. J. ; ib. 591. ACCOMPLICE 15 ACCORD One who in any manner participates in tlie criminality of an act, either as a principal or an accessary. 1 One who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of a crime. ^ ■Wliether to allow an accomplice, who has turned state's evidence, a separate trial, or to enter a nolle prosequi and admit him as a witness, is discretionary with the court. He is serviceable as a witness until sentenced. To bring the chief offender to justice jus- tifies the practice. Accomplices never eon'oborate each other; but an informer is not subject to this rule; = and the rule is not applicable to civil issues.* The corroboration ought to be as to some fact the truth or falsehood of which goes to prove or disprove the charge.' But the testimony of a feigned accom- plice does not need corroboration. Whether or not one is a feigned accomplice is for the jury.* Accomplices, not previously convicted of an infa- mous crime, when separately tried, are competent vritnesses for or against each other; and the imiversal usage is that such a party, if called and examined by the public prosecutor on the trial of his associates in guilt, will not be prosecuted for the same offense, pro- vided it appears that he acted in good faith and that he testified fully and fairly. But it is equally clear that he cannot plead such fact in bar of an indict- ment against him, nor avail himself of it upon his trial, for it is merely an equitable title to the mercy of the executive, subject to the conditions stated, and can only come before the court by way of application to put off the trial in order to give the prisoner time to apply to the executive for that purpose. Some of the elements of the usage had their origin in the ancient practice of approvement. . . It is regarded as the province of the public prosecutor to determine whether or not the accomplice shall be examined for the state. In order to acquu-e the information neces- sary to determine the question, the prosecutor will grant the accomplice an interview, with the under- standing that any communication he may make will be strictly confidential. Interviews are for mutual ex- planation, and so do not absolutely commit either party; but if the accomplice is subsequently called and examined, he is entitled to a recommendation for executive clemency. The accomplice may be par- doned prior to conviction, or the public prosecutor may twI. pros, the indictment, or advise the prisoner to plead guilty with the right to retract and plead to the merits if his application for pardon shall be un- 1 Polk V. State, 36 Ark. 128 (1880), Eakin, J. See too Euss. Crimes, 26; 4 Bl. Com. 34, 331. 2 People V. Bolanger, 71 Cal. 20 (1886): Whart. Cr. Ev. § 440. = 1 Greenl. Ev. § 379. *Kalckhoffl v. Zoehrlaut, 43 Wis. 379 (1877). See 71 N. T. 137. 'State V. Miller, 97 N. C. 488 (1887); Commonwealth V. Bosworth, 22 Pick. 399 (1839), cases; State v. Maney, 54 Conn. 190 (1886); People v. Flath, 100 N. Y. 593 (1886). L 'People V. Bolanger, 71 Cal. 19-20 (1886); 30 id. 316. successful. Where attempt is made to put him {o trial in spite of his equitable right to a pardon, the prisoner may move that the trial be postponed, supporting his motion by his own afiidavit, when the court may in- sist to be informed of all the circumstances; or the court may order that he be acquitted at the trial. ^ See Accessary; Approve, 5; Paedon; Particeps. ACCORD.2 Agi-eement; satisfaction. A satisfaction agreed upon between the party injuring and the party injured.' An agi-eement, in the case of a contract, where the creditor agrees to accept some other thing in lieu of that which is contracted or promised to be done.* Used in the plea " accord and satisfaction." When performed, constitutes a bar to all actions. The money or property must be offered in satisfac- tion of the claim, and upon the condition that i£ ac- cepted it is a satisfaction, and the claimant must be made to understand that he takes it subject to such condition.' The bar rests on the agreement and not on the mere reception of property ; for whatever amoimt may have been received, the right of action will not be extin- guished, unless it was agreed that the property should be received in satisfaction of the injury. An accord by parol, or by writing not under seal, cannot be set up as a bar to an action of debt founded on a record, or to a judgment in the nature of a record, nor to a debt by specialty, where the debt arises upon the deed ; but it may be interposed as a bar to a claim for damages founded upon the breach of a specialty.' Furthermore, an accord must be legal, reasonable, advantageous to the creditor, certain, complete, and be made by the debtor. It may proceed from a part- ner or a joint wrong-doer for him and his associates, and may be accepted by one co-plaintiff. When a definite sum of money is agreed upon, a, less sum is not considered a satisfaction, unless there is an addi- tional benefit.'' The technical rule, that an unsealed agreement to accept a smaller sum than the entire debt does not bind the creditor, has been falling into disfavor. It is now held that where a new element enters into the 1 Whiskey Cases (United States v. Ford), 99 U. S. 595, 699-606 (1878), cases, Clifford, J. See also Bex v. Eudd, 1 Cowp. 336 (1775), Mansfield, C. J.; Commonwealth V. Knapp, 10 Pick. 492-94 (1830); Commonwealth v. Holmes, 127 Mass. 429-45 (1879), cases, Gray, C. J.; State V. Graham, 41 N. J. L. 16-22 (lb79), cases; Oliver v. Com- monwealth, 77 Va. 590 (1883); 66 Ga..346; 133 Mass. 402. 2 F, accorder, to agi'ee. ' 3 Bl. Com. 15-16. < Way V. EusseU, 33 F. E. 7 (1887): 1 Swift's Dig. 499 24 Conn. 613; 75 N. Y. 574. 'Preston i;. Grant, 34 Vt. 203 (1861); Bull v. Bull, 43 Conn. 468 (1876). ' Mitchell V. Hawley, 4 Denio, 417-18 (1847). ' See Cumber v. Wane, 1 Sm. L. C. 604 [•445], cases; 20 Wall. 309; 40 Ark. 184; 6 Col. 162; 44 Conn. 541; 87 Ind. 256; 88 id. 45; 29 Minn. 264r^5; 38 Pa. 147; 1 Wash. T. 328; 2 Pars. Contr. 193; 1 Greenl. Ev. § 28. ACCORDING 16 ACCOUNT a^eement of oompromise, the entire debt is satisfied; as, for example, a promise to pay at an earlier day, at a. different place, in a different thing, or a promise by a new party. 1 ACCORDING. Compare By, S ; Secun- dum. Where a mortgage is conditioned for the payment of money " according to " the tenor of a note, to se- cure which the mortgage is given, the terms of the note are viewed as imported into the mortgage." See VBRBnM, Verba illata, etc. According to la^w. After the ending of a hfe estate, land was to go to the male heir nearest the tes- tator "according to law." Held, that the estate was to descend as the law would have given it to the heir.* Since, after a verdict and judgment, a reasonable intendment will be made, on error, in favor of a com- plaint which shows a substantial cause of action, an averment that an affidavit was made " according to law " will be held to mean that it was made in the time required by law.* In 1809 a testator devised land to his son for life, and then to his children "according to law." The testa- tor died in 1812, and the son in 1860 leaving children. Held, that the children were to take equally as the law stood in 1860, when the distribution was to be made." Where, in an appeal from the judgment of a justice of the peace, the docket entry showed that bail had been given " according to the act of assembly," the recognizance was held to be sufficient.^ A bond conditioned for the faithful discharge of the duties of an offtce "according to law," embraces duties required by laws in force during the term of the officer, whether enacted before or after the exe- cution of the bond.^ An administrator is to administer "according to law," that is, to fulfil his functions, to perform all his duties.^ See Duly; Lawful; Valid; Void. ACCOiriirT.9 1. The primary idea is, some matter of debt and credit, or demand in the nature of debt and credit, between parties. It implies that one is responsible to another for moneys or other things, either on the score of contract or of some fiduciary rela- tion, of a public or private nature, created by law or otherwise. 1" 1 Seymour v. Goodrich, 80 Va. 804-5 (1885), cases; Bish. Contr. § 50, cases. On paying a part for the whole debt, see 24 Cent. Law J. 175 (1887). » Scheibe v. Kennedy, 64 Wis.- 569 (1885). s Mclntyre v. Ramsey, 23 Pa. 319 (1854). •• McElhaney v. GUleland; 30 Ala. 183, 188 (1857). ' Van Tilburgh v. Hollingshead, 14 N. J. E. 38 (1861). = Harvey v. Beach, 38 Pa. 500 (1861). ' Dawson v. State, .38 Ohio St. 3 (1882). See also 18 N. Y. 115; 32 Minn. 162. 8 Balch V. Hooper, 32 Minn. 162 (1884). ^ F. aconter, acompter: L. ad-con-putare, to reckon up together. See Computabb. 1° Whitwell V. Willard, 1 Mete. 217 (1840), Shaw, C. J. Some matter of debt and credit, or of a demand in the nature of debt and credit, between parties, arising out of contract, or of a fiduciary relation, or some duty imposed by law.i Current or running account. An ac- count to which items are being added at in- tervals ; an account open to further charges. First account ; partial account ; final account. Designate the number or com- pleteness of accounts presented to a court for confirmation. Mutual accounts. Those having origi- nal charges by persons against each other; accounts kept between merchants. Open account. An account with one or more items unsettled ; also, an account with dealings still continuing. Account rendered. An account ex- hibiting the creditor's demand delivered to the debtor — as a basis for settlement. Account stated. An account rendered by the creditor and assented to by the debtor. An account to be " continuous " must be without break or interruption. " Open " means not closed; " current," running, passing, a connected series. A " continuous, open, cun-ent account " is an account which is not interrupted or broken, not closed by set- .tlement or otherivise; a running, connected series of transactions. 2 Death " closes " accounts in one sense, that is, there can be no further additions on either side, but they still remain " open " for adjustment and set-off, which is not the case with an account " stated; " for that supposes a rendering of the account by the party who is the creditor, with a balance stnick, and assent to that balance, expressed or implied.* In the statute of limitations, the exception in favor of "merchants' accounts" applies to actions of as- sumpsit as well as of account. It extends to all accounts " current " which concern the trade of mer- chandise between merchant and merchant. An ac- coimt " closed " by the cessation of dealings is not an account "stated."* An " account concerning the trade of merchandise between merchant and merchant" is not barred by the statute of limitations, tho That being the law in England in 1776, such action cannot be prosecuted in the name of an mformer imless the right is distinctly given by stat- ute. = Heal action. An action whereby the plaintifiE claims title to lands or tenements, rents, commons, or other hereditaments, in fee-simple, fee-tail, or for term of life. Per- sonal action. Such action whereby a man claims a debt, or a personal duty or damages in lieu thereof, or damages for some injury to his person or property. Mixed action. Partakes of the nature of both of the for- mer — by it real property is demanded, with personal damages for a wrong sustained.^ A "real action" is brought for the specific recov- ery of lands, tenements, or hereditaments. It in- cludes every form of action where the judgment is for the title and possession of the land demanded; as, ejectment. A " mixed action " is brought for the spe- cific recovery of land, as in a real action, but has joined with this claim one for damages in respect to such property; as, actions of waste and dower. A "personal action " is brought for the specific recovery of chattels, or for damages or other redress for breach of contract and other injuries of every description, the specific recovery of lands and tenements only ex- cepted.* See Actio,' Personalis, etc. EigM of action. Eight to bring, a suit ; such right as will sustain a suit ; in particu- lar, a right of remedy or recovery at law.5 See Actio; Book- Account, Action of; Cikohity; Commence; Consolidate; Disoontikuance: Form, 2; Gist; Issue, 3; Multiplicity; Party, 2; Pend; Pro- ceeding; Process, 1; Ees, 2. ACTIVE. 1. Produced by exertion; re- sulting from intentional action; opposed to passive : as, active — deceit, waste, gg. v. 3. Eequiring intelligent direction, personal 1 3 Bl. Com. 161-62. 2 O'Kelly V. Athens Manuf . Co. 36 Ga. 53 (1867). a [3 Bl. Com. 117-18. ♦ [HaU V. Decker, 48 Me. 255-56 (1860). » As to premature actions, see 21 Cent. Law J. 401-12 (1885), cases. ACTOR 28 ADDITION exertion ; opposed to passive : as, an active — trust, use, gg. v. ACTOR. 1. Lat. A doer; a plaintiff. See Caveat, Actor. Actor sequitur forum rei. The plaint- i£E follows the forum of the thing — the thing in suit, or the residence of the defend- ant.! Personal actions are to be brought before the tribu- nal of the defendant's domicil. Actions for collisions between vessels may be brought where neither party resides: on the ground that a quasi-contract arises on the part of the wrong-doer to pay the damage he has caused, and that the place of performance is taken to be the port at which the injured vessel first arrives.^ See Action, 2, Local. Actori incumbit probatio. On the plaintiff rests the proving — the " burden of proof," q. V. 2. Eng. (1) A doer, a performer: as, the chief actor in a crime. ^ See PRliiciPAL, 5. He who institutes a suit; a plaintiff,* q. v. He who avers a matter as a fact or law. (3) A stage-player. See Review, 3. I ACTUAL. Existing in act ; really acted ; I real, at present time; as a matter of fact. ! Opposed, constructive: speculative, implied, legal. An assault with " actual " violence is with physical force put in action, exerted upon the person assailed.* It is common to speak of an actual or the actual — annexation of a fixture, appropria- tion of a thing, attachment, battery, break- ing, close or curtilage, cost, costs, damage, delivery, escape, eviction, fraud, knowledge, levy, loss, malice, notice, occupation, pay- ment, possession, presence, seizure, use, value, violence, qq. v. ACTUM; ACTUS. L. A thing done: an act ; action. Acta exteriora indicant interiora se- creta. Outward acts evince the inward pur- pose. See bvEET ; Will, 1. Actus curiae neminem gravabit. An act of the court shall oppress no one. A court will not suffer a party to be prejudiced by its own action, as, by delay. On this principle orders are sometimes entered nunc pro func^^ q. v. 1 2 Kent, 462. ^Thomassen v. Whitwell, 9 Bened. 115 fl877). ~ s See 4 Bl. Com. 34. ■iSeeSBl. Com. 25. ■= State V. Wells, 31 Conn. 313 (1862). See 16 Op. Att- Gen. 447, 445. « See Cumber v. Wane, 1 Sm. L. C. •44445; 103 U. S. 65; 119 id. 596; 3 Col. 236; Broom, Max. 122. Actus Dei nemini facit injuriam. An act of God does wrong to no one. No one is responsible in damages for the result of an inevitable accident, g. v. Actus legis nemini facit injuriam. An act of the law wrongs no man. An act of the law is to be so limited in its operation that no right shall be prejudiced. ^ Actus non facit reum, nisi mens sit rea. An act does not make a man a crimi- nal, unless his intention be criminal. To constitute a crime the intent and the act must concur; a mere overt act, without wrongful intention, does not malre guilt.^ See Consequences ; Malice. . AT) . L. At, to, for; according to; on ac- count of. In compounds assimilates with the consonant fol- lowing, becoming ac-, af-, ag-, al-, an-, ap-, ar-, as-, air. Ad colligendum. For collecting (the goods). See under Administer, 4. Ad damnum. To the loss. See Dam- num. Ad diem. On the (very) day. See Dies. Ad fllum. To the line. See Filum. Ad hoc. On this (subject). Ad idem. To the same (thing or effect). See Assent. Ad interim. In the meantime; tempo- rarily. Said of one, as an assignee, who serves in the place of another; also, of a receipt for a premium paid, pending the approval of a risk in insurance against fire. See Interim. Ad litem. For the suit. See Guardian, 3. Ad majorem cautelam. For the sake of caution. See Cautela. Ad medium fllum. To the middle line. See Filum. Ad pios usus. For religious purposes. See Usus. Ad quaestionem. See Qu^stio. Ad quem. To which. See A, 5, A quo. Ad quod damnum. To the loss which. See Damnum. Ad sectam. At the suit of. See Suit, 1. Ad valorem. According to valuation. ■ See Duty, 3. ADDITIOIT.s 1. Under a statute allow- ing a mechanic's lien upon an "addition to a former building," the new structure must be a lateral addition. It must occupy ■ 2 Bl. Com. 123 ' 4 Bl. Com. 3, 2 3or. ° L. ad-dare, to add to. 9 Ga. 400; Broom, Max. 127, 409. 4 N. Y. 159, 163, 195; Broom, Max. ADDRESS S9 ADEQUATE ground beyond the limits of the original building. 1 A change in a building by adding to its height, or depth, or to the extent of its interior accommodations, is an *' alteration," not an addition.^ Additional. Given with, or joined to, some other : as, an additional — building, legacy, security. Embraces the idea of joining or uniting one thing to anotlier so as to form an aggregate.^ "Additional security " is that which, imited with or joined to the former security, is deemed to make the aggregate sufBcient as a security from the beginning.' 3. A word or title added to the name of a person to help identify him. Addition of estate (staitts): yeoman, gentleman, es- •quire. Addition of degree: knight, earl, marquess, duke — names of dignity. Addition of domicil: place of residence. Addition of mystery or trade: scriv- ener, laborer, etc.^ By 1 Hen. V. (1413), u. 5, an indictment must set forth the Christian name, surname, and the addition of degree, mystery, place, etc.* See Name, 1. ADDBESS. 1. The part of a bill in equity which describes the court.s 2. The name and residence of the drawee in a bill of exchange. See Protest, 3. ADEMPTIOlSr.6 The act by which a tes- tator pays to his legatee, in his life-time, a general legacy which by his will he had pro- posed to give him at his death ; also, the act by which a specific legacy has become inop- erative on account of the testator having parted with the subject." Whence adeem, adeemed. When a parent gives a legacy as a portion, and, afterward, advances in the same nature, the latter presumably satisfies the former.^ The ademption of a legacy of personalty is not usu- ally called a "revocation." When ademption is not used the act is called "satisfaction," "payment," "performance," "execution." But these terms, so used, have not their ordinary sense ; for their primary relation is to some debt, duty, or obligation resting ab- solutely upon a party ; whereas a will, having no effect in the maker's life-time, does not bind him to anything. " Ademption " is the most significant." See Bevoke. 1 [Updike V. SkiUman, 27 N. J. L. 132 (1858), Green, C.J. 2 State V. Hull, 63 Miss. 645 (1876); 139 Mass. 356. ' [Termes de la Ley. *i Bl. Com. 306; 1 id. 407; W Cush. 402; 1 Mete., Mass., 151. BSeeStory, Eq. PI. §26. » L. adimere, to take away. ' See 3 Will. Exec. 1330. 'Strother v. Mitchell, 80 Va. 154 (1885); Trimmer v. Bayne, 7 Ves. *515 (1802). « Langdon v. Astor's Executors, 16 N. Y. 39-40 (1857), If a horse, specifically bequeathed, die during the testator's life-time, or be disposed of by him, the legacy will be lost or adeemed, because there will be nothing on which the bequest can operate. The only question, in such case, is, whether the specific thing remains after the death of the testator. ADEQirATE.2 Equal, proportionate, fully sufficient, complete. Opposed to in- adequate. . 1. If a consideration has some value it need not be adequate. Inadequacy is regarded only when gross and when i|nposition is apparent; but it may prevent specific performance, amd justify small damages for a breach of contract."* The immediate parties to a bargain are the judges of the benefits derivable therefrom. To avoid a bar- gain for inadequate consideration the inadequacy must be so great and manifest as to shock the conscience and confound the judgment of common sense.* See Bid. Gross inadequacy alone does not constitute a suffi- cient reason to impeach the genuineness of a sale made by a trustee. The inadequacy must be such as to shock the conscience or raise a presumption of fraud or unfairness.' Where gross inadequacy of price is coupled with accident, mistake, or misapprehension, caused by a purchaser or other person interested in a public sale, or by the officer conducting the sale, a court of equity will set the sale aside." See Influence. 3. Where there is an adequate remedy at law for the redress of an injury, resort may not be had to a court of equity. This means a remedy vested in the complainant to which he may at all times resort at his own option, fully and freely, without let or hindrance.' The remedy at law must he plain, adequate, and complete, and as practical and efidcient to the ends of justice and to its prompt administration as the remedy in equity. In that case the adverse party has a right to a trial by a jury." But a judgment and a fruitless execution at law are not necessary." The absence of a plain and adequate remedy at law affords the only test of equity jurisdiction; the appli- cation of the principle to a particular case must de- Denio, 0. J.; Same v. Same, 3 Duer, 541 (1854); Beck v. McGUlis, 9 Barb. 56 (1850). I Ford V. Ford, 23 N. H. 215-17 (1851), cases, Gilchrist, C.J. ' L. adcsquatus, made equal. s 1 Pars. Contr. 438, 492, cases. * 1 Story, Eq. §§ 244-47; Lawrence u McCalmont, 2 How. 452(1844). » Clark V. Freedman's Sav. & Trust Co., 100 U. S. 152 (1879), cases; Cleere v. Cleere, 82 Ala. 588 (1880); Garden V. Lane, 48 Ark. 219 (1886), cases. • Cole County v. Madden, 91 Mo. 614 (1887), cases; 20 Cent. Law J. 850 (1888), cases. ' Wheeler v. Bedford, 54 Conn. 249 (1886), Park, C. J. "Morgan v. City of Beloit, 7 Wall. 618 (1868), cases. » 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. ADHERrCfG-. See Treason. ADIT. A horizontal entry to a mine. A statute which provides that " an adit at least ten feet in, along the lode, from the point of dlscoTery , shall be equivalent to a discovery shaft," contemplates that the ten feet may be wholly or in part open or under cover, dependent upon the nature of the groimd.^ ADJACENT.3 Near, but not touching. Applied to lots, is synonymous with " con- tiguous." In another relation it might have a more extended meaning.* See Adjoining; Contiguous; Vicinity. Certain acts of Congress authorized the defendant to take from public lands " adjacent " to its road materials necessary for the construction and repair of its railway. Held^ that the reference was to such ma- terials as could be conveniently reached by ordinary transportation by wagons, and that the privilege did not include the right to transport timber to distant parts of the road.» Whei*eth6 "adjacent" ends and the non-adjacent begins may be difitlcult to determine. On the theory that the material is taken on account of the benefit resulting to the land from the construction of the road, the term ought not to be construed to include any land save such as by its proximity to the line of the road is directly and materially benefited by its construction.* ADJOINING-.' Touching or contiguous, as distinguished from lying near or adjacent ; in contact with.s In popular use seems to have no fixed meaning. Frequently expresses nearness. ^ What is " adjacent " may be separated by the inter- vention of a third object. What is "adjoining " must touch in some part. What is "contiguous," strictly speaking, should touch along one side.° Towns contiguous at their corners are adjoining. i" The whole yard of a house of correction, though di- vided by a street, from which it is fenced off, is ad- joining or appurtenant to the house.'' V Compare Abut; Adjacent; Appertain. ' Watson V. Sutherland, 5 Wall. 79 (1866). 2 Electro-Magnetic Mining, &c. Co. v. Van Auken, 9 Col. 207 (1886); Gray v. Truby, 6 id. 278 (1883); Gen. Ldws Coi: 630, § 7. 8 L. adjacere, to lie near. * Municipality No. Two, 7 La. An. 79 (1852), Eustis, C. J. See Continental Improv. Co. v. Phelps, 47 Mich. 899 (188«). s United States v. Denver, &o. E. Co. 3i F. E. 886, 889 (1887), Hallett, J. 'United States u Chaplin, 31 F. E. 890, 896 (1887), Deady, J. ^ F. adjoinder: L. ad-jungere, to join to. e Be Ward, 52 N. Y. 397 (1873); MUler v. Mann, 55 Vt. 479 (1882); Akers v. United E. Co., 43 N. J. L. 110 (1881). "Peverelly v. People, 3 Park. Cr. E. 69, 73 (1855); Crabbej Syn. " Holmes v. Carley, 31 N. Y. 289, 293 (1865). " Commonwealth v. Curley, 101 Mass. 25 ADJOUIlTJ'.i To put off, or defer to an- other day specified; also, to suspend for a time, to defer, delay. 2 Eeferring to a sale or a judicial proceeding, may include fixing the time to which the postponement is made.^ Adjournment. Putting off untU another time and place.' A continuation of a previous term of court.* A continuance of a session from one day to another. 5 See Vacation. ADJUDGE. To decide judicially ; to ad- judicate ; sometimes, to declare or deem, but not implying any judgment of a judicial tri- bunal. As in a statute declaring that "all lotteries are hereby adjudged to be common nuisances." ' Com- pare Deem. ADJUDICATA. See Adjudicatus. ADJUDICATE. To determine in the exercise of judicial power; to pronounce judgment in a case. Adjudicated. Judicially determined : as, an adjudicated — case, bankrupt. Adjudication. Determination by judi- cial authority. Former adjudication. Judicial determi- nation of a matter previously in litigation. When the judgment, rendered in the former trial between the same parties, is used as a technical es- toppel, or is relied upon by way of evidence as conclu- sive per se, it must appear, by the record of the prior suit, that the particular controversy sought to be con- cluded was necessarily tried and determined — that is, if the record of the former trial shows that the ver- dict could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as between the parties ; and where the record does not show that the matter was necessa- rily and directly found by the jury, evidence aliunde consistent with the record may be received to prove the fact; but, even where it appears extrinsically that the matter was properly within the issue controverted in the former suit, if it be not shown that the verdict and judgment necessarily involved its determination, it will not be concluded.^ The former adjudication is a finality, concluding ' P. ddjorner, to put off to another day. ' La Farge v. Van Wagenen, 14 How. Pr. 58 (1857). "Wilson V. Lott, 5 Fla. 308 (1863). •Van Dyke v. State, 22 Ala. 60 (1853); 6 Wheat. 109. » Trammell v. Bradley, 37 Ark. 379 (1881); 1 Bl. Com. 187. •State V. Price, 11 N. J. L. 818 (1830); Blaufus v. People,'69 N. Y. Ill (1877). ' Packet Company u. Sickles, 5 Wall. 598 (1866), cases. Nelson, J.; Aurora City v. West, 7 id. 102-3 ), cases; Goodenow v. Litchfield, 59 Iowa, 831 i; ib. 549. ADJUDICATUS 31 ADMINISTER parties and privies, as to every matter received to sus- tain or to defeat the claim, and as to what might have been offered for that purpose. But where the second action is upon a different demand, the former judg- ment is an estoppel only as to the matters in issue upon the determination of which the finding was rendered.^ A judgment of a court of competent jiirisdiction, upon a question dh'eotly involved in one suit, is con- clusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, from the face of the record or be shown by extrinsic evidence, that the precise ques- tion was raised and determined in the former suit. If there be any uncertainty on this head in the rec- ord, — as, for example, if it appears that several dis- tinct matters may have been litigated, upon one or more of which the judgment may have passed, with- out indicating which of them was litigated and upon which the judgment was, rendered, — the whole 'sub- ject-matter of the action will be at large, and open to new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point in- volved and determined. To apply the judgment and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible.^ When the second suit involves other matter as well as the mattei's in issue in the former action, the former judgment operates as an estoppel as to those things which were in issue there, and upon the deter- mination of which the first verdict was rendered. Extrinsic evidence, when not inconsistent with the record and not impugning its verity, is admissible to show that a former action involved matters in issue in the suit on trial, and were necessarily determined by the first verdict.^ If a former adjudication is not pleaded as an es- toppel evidence may be received to show the truth.* It cannot be said that a case is not an authority on one point because, although that point was properly presented and decided, something else was found in the end which disposed of the whole matter.' See Adjo- DiOATtjs, Res, etc. ADJUDICATUS. L. Decided, settled, adjudged, adjudicated, q. v. Res adjudicata, or res judicata. A thing adjudicated ; a case decided ; a matter settled. Plural, res adjudicatce or judioatce. 1 Cromwell v. Coimty of Sac, 94 U. S. 351-58 (1876), cases. Field, J.; ib. 364-66, cases; Lumber Company r. Buchtel, 101 id. 639 (1879); Litchfield v. Goodenow, 183 id. 660-51 (1887): 1 Greenl. Ev. § 623; Qflmer v. Morris, 30 F. E. 469 (1887), oases. 'Eussell u Place, 94 U. S. 608 (1876), cases. Field, J. ; Corcoran v. Chesapeake, &o. Canal Co., ib. 745 (1876). See also Foye v. Patch, 133 Mass. 109-11 (1883), cases; MoCalley v. Robinson, 70 Ala. 433 (1881); Moore v. City of Albany, 98 N. Y. 410 (1885); Withers v. Sims, 80 Va. 651 (1885); Bennitt v. Star Mining Co., 119 111. 14-15 ' WUson's Executor v. Been, 131 U. S. 536, 533 (1887). 4 Meiss V. (Jill, 44 Ohio St. 3B8-60 (1886), cases. 'Railroad Companies v. Schutte, 103 U. S. 143 (1880). To make a matter res judicata there must be con- currence of four conditions: identity — in the thing sued for, of the cause of action, of the parties to the action, and of the quality in the persons.' Transit in rem judicatam. It passes into a thing adjudicated; it becomes a judg- ment. Applies to a contract upon which a judgment has been obtained. ^ ADJUST.!" To determine what is due; to settle ; to ascertain : as, to adjust a claim, a demand, a right. Adjuster. He who determines the amount of a claim ; as, a claim against an insurance company. Adjustment. Settlement of the relative rights of parties, of a demand or cross-de- mands of any nature; in particular, the settlement of the claim of an insured party after a loss.* Unadjusted. Applied to a demand — that the amount is uncertain, not agreed upon.5 ADMEASUREMENT. Ascertainment ; apportionment. A writ which lay against one who usurped more than his share; as, of pasture, dower or other right." ADMINICULAR.' Supporting; aiding; strengthening. Describes testimony adduced to explain or complete other testimony.' ADMINISTER. 1. To dispense, supply, furnish, give: as, to administer poison, or a stupefying mixture. Not simply to prescribe or give a drug, but to di- rect and cause it to be taken." That offense is not to be confined to the manual ad- ministering of poison. So construed, the law would be substantially without effect, and would not reach the large class of offenders at whpm it is aimed. ' ' Administer " has a far more extended meaning — to furnish or cause to be furnished and taken, to give or cause to be taken, by any mode.'" Etymologioally, applicable to anything that can be done by the hand to or for another. Neither fraud 1 Atchison, &o. R. Co. v. Commissioners, IS Kan. 135 (1873). a See 11 Pet. lOO; 3 Sumn. 436; 16 F. R. 800; 88 Minn. 179, 180; 76 Mo. 38; 86 N. C. 466; 43 N. J. L. 117; 18 Johns. 483; 19S. C. 166. ' L. ad-justus, according to right. ' See 3 Kent, 340, 335; 2 Phillips, Ins. §§ 1814-16. » Richardson v. Woodbury, 43 Me. 214 (1867). « 3 Bl. Com. 183, 238; 3 Kent, 418. ' L. adminiculum, a prop. » See 1 Greenl. Ev. § 606. » [Robbins v. State, 8 Ohio St. 165 (1857). i» [La Beau v. People, 34 N. Y. 233-33 (1866). ADMINISTER ADMINISTER nor deception is a necessary ingredient in the act of administering poison. To force poison into the stom- ach of another; to compel another by threats of vio- lence to swallow poison; to furnish poison to anottier for the purpose and with the intention that the person shall commit suicide therewith, and wliich poison is accordingly taken for that purpose; or to be present at the taking of poison by a suicide, participating Sn the taking by assistance, persuasion, or otherwise, although the party intends and agrees himself also to commit suicide, — each is a mode of *' administering " poison. The word does not then always imply serv- ice. ^ See Attempt; Noxious. 3. To dispense, direct the application of: as, to administer the law, justice. 2 Administrable. Capable of being ad- ministered or rendered effective: as, an administrable decree or law. 3. To propound the form of ; to give, ten- der: as, to administer an oath. 4, To manage, to settle : as, to administer the estate of an intestate or of a testator who ' has no executor. Administered. Applied to legal ends or uses; opposed to unadministered: as, the administered or unadministered effects of a decedent.3 Administrator, A man appointed by a competent court to settle the affairs of a dece- dent's estate. Administratrix. A woman ' charged with that duty. The former word is generally used, in statutes and decisions, to designate the officer. Administration. The service rendered, or the charge or duty assumed, in the settle- ment of a decedent's estate.^ While administratoi- designates a representative named by the court, in opposition to an executor, who is designated by will, administraiwn may mean the , management of an estate by either an executor or an administrator. See Repbesentative, (1). Maladministration; misadministra- tion. In law-books, in which they are often interchanged, these words mean wrong ad- ministratipn.5 Waste and embezzlement are examples.' Administration ad colligendum. For col- lecting — and preserving perishable goods. 6 Administration coeterorum. Of the rest — 'Blackburn v. State, 23 Ohio St. 163-84 (1872); 11 Fla. 266; 4 Car. & F. 868. ' See 3 Bl, Com. 72. » See United States v. Walker,. 109 U. S. 263-64 (1883). < See 3 Bl. Com. 490; 92 N. Y. 74; 18 S. C. 351. 'Mmkler v. State, 14 Neb. 183 (188.3); Martin v. El- lerbe, 70 Ala. 339 (1881); 37 id: 399; 108 U. S. 199, 206. •2B1. Com. 505. of the goods which cannot be administered under the limited power already granted.^ Administration cum testamento annexo. With thb will attached — to the letters. The Latin words are abbreviated c. t. a. Obtains either when no executor is named or when he who is named will not or cannot serve. The incumbent follows the statute of distributions, unless otherwise directed by the will. The administrator, in such case, succeeds to all the ordinary powers of the executor. When the will ex- pressly constitutes the executor a trustee for some special purpose, or vests in him a discretionary power in reference to some matter outside of the ordinary powers and duties of an executor, or charges him with some duty indicating a special confidence re- posed in him, such duty or power does not pass to an ordinary administi^ator.^ Administration de bonis non. Concerning goods not — ah-eady disposed of. The Latin words are abbreviated d. b. n. Occurs where another administrator has died, or been dis- charged, leaving a part of the estate unsettled. Administration de bonis non, cum testa- mento annexo. Upon goods not adminis- tered, and with the will annexed to the letters. The Latin words are abbreviated d. b. ?i., c. t. a. Oc- curs where an executor h^s died, or been discharged, leaving a part of the estate yet to be settled. An administrator de bonis non cannot sue the for- mer administrator or his representative for a devas- tavit or for delinquencies in office, because the latter is liable directly to creditors and the next of kin. The former has to do only with the goods of the intestate unadministered. If any such remain in the hands of the dischai'ged administrator or his representative, in specie, he may sue for them either directly or on the bond. Eegularly, a decree against the administrator for an amount due, and an order for leave to prosecute his bond, are prerequisites to the maintenance of a suit thereon.s But otherwise, under statutes.^ The preceding administration must have became vacant by resignation, removal, or death.' Administration durante absentia. During absence — when the absence of theproponent of a will or of the executor delays or imperils settlement of the estate. * Administration durante minori cetate. During minority — while the executor named is under lawful age ; at common law seven- teen. ' See 1 Will. Exec. 685. ' Pratt V. Stewart, 49 Conn. 339 (1881). Powers as to realty, 24 Am. Law Reg. 689-706 (1885), cases. ' Beall V. New Mexico, 16 Wall. 540-42 (1872), cases; United States v. Walker, 109 U. S. 260-61 (1883), cases. * Sims V. Waters, 65 Ala'. 443 (1880). See also Conklin V. -Egerton, 21 Wend. 432 (1839); Zebach v. Smith, 3 Bum. *69 (1810) ; 10 Ark. 465. » See 5 Eawle, 264; 16 Wall. 5M. ADMINISTER 33 ADMINISTEARE His guardian, or other suitable person, may tlien take out letters cum teatamento annexo. AdministrMion pendente lite. While a suit continues — over an alleged will or the right of an appointment. The incumbent's duty is limited to filing an inven- tory, caring for the assets, collecting and paying debts.' Ancillary administration. Subordinate to another administration, and for collecting the eflEects of a non-resident. ^ Any surplus beyond the claims of local creditors is paid over to the domiciliary representative.' Foreign administration. Granted at dece- dent's domicil in another State or country. Ground for a new probate, ancillary in nature. But a few courts hold that new letters need not be issued.* Letters confer no authority beyond the limits of the State granting them. The title acquired by the ad- ministrator of the domicil is a fiduciary one, enforce- able in another State only by permission of its laws. No State can be required to surrender the effects or debts due to an intestate domiciled elsewhere to the prejudice of its own citizens. Although the right of the domiciliary administrator may be recognized ex comitate, it is subject to the rights of creditors where the assets exist or the debtor resides.' Limited administration. Restricted in time, power, or as to effects.'' Public administration. Conducted by a special public ofiScer, or the guardians of the poor, where there is no relative entitled to apply for letters. Special administration. Limited, either in time or in power. The instrument given by the oflBcer of pro- bate to the person who proposes to adminis- ter upon the estate of an intestate is called the letters of administration. This instru- ment confers authority to take charge of and to settle the estate, collecting dues, paying debts, etc. ; and comprises : a copy of the will, if there be a will and no executor ; a copy of the decree of allowance of such will in probate ; a certificate of the name of the appointee, his rights, duties, etc. The faith- ful' discharge of his duties is secured by an 1 See 4 Watts, 36; 16 S. & E. 420. ' 21 Cent. Law J. 186-90 (1886), cases, s See 11 Mass. 268; 138 id. 452; 44 111. 202; 32 Barb. 190; 88 Fa. 131. • See Wilkins v. Ellett, 108 U. S. 858 (1883); 2 Ala. 429; 18 B. Mon. 582; 18 Miss. 607; 18 Vt. 589. • Moore, Adm'x, v. Jordan, 36 Kan. 276 (1887), cases, Johnston, J.; Story, Confl. Laws, § 612; Wyman v. Halstead, 109 U. S. 654 (1884), cases. • See MoArthur v. Scott, 113 U. S. 899 (1883), cases. (3) administrator's bond, — an obligation entered into by the nominee, with sufficient sureties, and approved by the court.' As against strangers letters of administration are not evidence of death, but merely of their own exist- ence; i. e., that the proceedings have been regularly had, and that the appointee is entitled to the office. Being like an exemplification, they need not be proved.^ Compare Letters, 4; Testamentary. An administrator represents the personal property of his decedent. He is a trustee thereof for creditors, distributees, and heirs; and is an officer of the court. He takes title from the time of his appointment. He stands in privity with the deceased, succeeding to all his rights, but not to his contract duties of a purely per- sonal nature. He is liable to the amount of the assets. The nearest of kin is preferred for the offlce : descend- ants to ancestors; males to females; and, where there is no kin, a creditor or the estate. He is held to the care of a man of ordinary prudence,' and to the ut- most good faith. Where there are two or more ap- pointees, each is the other's agent; and all sue and are to be sued. The chief duties of an administrator are to bury the deceased; give public notice of the grant of let- ters; make an inventory; collect the assets: pay the debts. He may not buy any part of the estate for himself; nor mix the estate's funds with his own; nor let the assets lie idle; nor use them to his own gain. On the more important matters he should seek and follow the direction of the court. For debts and im- provements he is to first exhaust the personalty ; after that he may convert realty. The law of the decedent's domicil governs the disposal of his personalty, the law of the place where situated his realty.* See Adminibtiiare; Assets; Compromise; Exec- tJTOR; Improvident; Incapable; Perishable; Priv- ity; Settle, 3; Trust, 1; Voucher; Witness. ADMINISTBABE. L. To wait upon, serve ; to dispose of, administer. Plene administravit. He has fully ad- ministered. Plene administravit prseter. He has fully administered except — . The emphatic words of pleas by an exec- utor or administrator : the former plea mean- ing that he has lawfully disposed of all assets that have come into his hands; the latter plea, that he has administered aU as- sets except an amount which is not sufficient to satisfy the plaintiff's claim. 1 See Beall v. New Mexico, 16 Wall. 543 (1872); Stov aU V. Banks, 10 id. 583 (1870). » Mutual Benefit Life Ins. Co. v. Tisdale, 91 U. S. 243 (1875); Devlin v. Commonwealth, 101 Pa. 276 (1882), "See Moore v. Randolph, 70 Ala. 584 (1881); Bower- SOX'S Appeal, 100 Pa. 437 (1882). *8ee generally Williams, and Schouler, on Exec- utors, &c. ; 2 Bl. Com. 489; 2 Kent, 409; 1 Pars. Contr 127; 13 How. 46ft-«7. ADMIRALTY 34 ADMIEALTY Unless the defendant falsely pleads plene adminis- travit he is not liable to a judgment beyond the as- sets in his hands. The plea is not necessarily false because not sustained. The jury, if no devastavit is averred, must find the amount of the assets, it any, before a judgment can be rendered.^ See AcciDKKE, Quando, etc.; Bona, De bonis; Det- ASTAVIT. ADMIRALTY. A court exercising jaris- diction over controversies arising out of the navigation of public waters ; also, the system of jurisprudence which pertains to such con- troversies. So named because, in England, originally held be- fore the lord high admiral.^ " The judicial Power shall extend ... to all cases of Admiralty and maritime Jurisdiction." ^ The principal. subjects of admiralty jurisdiction are maritime contracts and maritime torts, including captures jure belli^ and seizures on water for munici- pal and revenue forfeitures. (1) Contracts, claims, or service, purely maritime, and touching rights and duties appertaining to commerce and navigation. (3) Torts and injuries of a civil nature committed on navi- gable rivers. Jurisdiction in the former case depends upon the nature of the contract, in the latter entirely upon the locality.' The jurisdiction is not limited to tide-waters, but extends to all public navigable lakes and rivers, where commerce is carried on between different States, or with a foreign nation — wherever ships float or navi- gation successfully aids commerce.^ Courts of admiralty exist in all commercial coun- tries, for the safety and convenience of commerce, the speedy decision of controversies where delay would often be ruin, and to administer the laws of nations in seasons of war, as to captures, prizes, etc. . . A wide range of jurisdiction was necessary for the bene- fit of commerce and navigation; these needed courts acting more promptly than courts of common law and not entangled with the niceties and strictness of com- mon-law pleadings and proceedings. . . . The acts of 1789 and 1845 save a concurrent remedy at common law in any Federal or Stats' court, and secure a trial by jury as a matter of right in the admiralty courts. Congress may modify the practice in any respect it deems conducive to the administration of i justice.^ By the act of September 24, 1789, § 9, the district ' Smith V. Chapman, 93 U.' S. ^ (1876); 8 Wheat. 676; 5 Cranch, 19; 15 Johns. 333; 89 N. C. 416; IS S. C. 352; 2 Kent, 417. 2 4B1. Com. 268. 3 Constitution, Art. m, sec. 2. ' The Belfast, 7 Wall. 637 (1868), cases, Clifford, J. ; New England Ins. Co. v. Dunham, 11 id. 29, 31 (1870). >The Genesee Chief v.- Fitzhugh, 12 How. 454-59 (1851), Taney, C. J.; The Hine v. Trevor, 4 Wall. 562-70 (1866), cases; The Belfast, 7 id. 639-41 (1868) ; The Eagle, 8 id. 20-36 (1868); New England Ins. Co. v. Dunham, 11 id. 23-39 (1870); Mxp. Easton, 95 U. S. 70 (1877). •The Genesee Chief, supra; N. E. Ins. Co. v. Dun- ham, supra; 3 Story, Const. § 1672; 1 Brown's Adm. 553; 30 F. B. 63. courts have exclusive original cognizance " of all civil causes of admiralty or maritime jurisdiction; saving to suitors in all cases the right of a common-law rem- edy, where the common law is competent to give it." ' The saving does not authorize a proceeding in rem to enforce a maritime lien, in any common-law ~ court. Common-law remedies are not applicable to enforce such a lien, but are suits in personam, though such suits, under special statutes, may be commenced by attachment of property. = The act of February 26, 1845, limits the powers granted by the act of 1789, as regards cases arising upon the " lakes, and navigable waters connecting said lakes;" limits jurisdiction, to vessels of twenty tons burden or upward, enrolled or licensed for the coast- ing trade, or employed in commerce between places in different States;, and grants a jury trial if either party demands it. The jurisdiction is expressly inade concurrent with such remedies as may be given by State laws. Otherwise, the jurisdiction granted by the act of 1789 is exclusive in the district courts.' Jurisdiction, in "civil cases," extends to all con- tracts, claims, and services essentially maritime: among which are bottomry bonds, contracts of af- freightment and contracts for convej'ance of passen- gers, pilotage on the high seas, wharfage, agreements of consort-ship, surveys of vessels, damages by the perils of the seas, the claims of material-men and others for the repair and outfit of ships belonging to foreign nations or to other States, and the wages of mariners; and also to civil marine torts and injuries, among which are assaults and other personal injuries^ collisions, spoliation and damage, illegal seizures or other depredations of property, illegal disposition or withholding possession from the owners of ships, con- troversies between part owners as to the employment of ships, municipal seizures of ships, cases of salvage and marine insurance.* Admiralty courts are international courts. As orig- inally constituted they are the appropriate tribunals for controversies between foreigners.* They hav^ jurisdiction of collisions on the high seas between vessels owned by foreigners of different nationalities. • They may estimate damages for death by negli- gence, when the court has jurisdiction of the vessel ajod of the subject-matter.' In England there are two courts: the "instance" and the " prize " court, qq. v. The same judge presides in both. In the United States this double jiu'isdiction is vested in the district court.* 1 R. S., § 563, (8). 2 The Belfast, 7 Wall. 644, 625 (1868); The Moses Tay- lor; 4 id. 428-31 (1866); The Hine, ib. 568 (1866). s R. S. § 566; The Hine, 4 Wall. 569(1866); The Eagle, 8 id. 20-26 (1868); 3 Kent, 365. < Exp. Easton, 96 U. S. 68 (1877), Clifford, J. See also De Lovio V. Bolt, 3 Gall. 398 (1815), Story, J.; 4 Woods, 367; 17 F. B. 387-88, cases. ^Thomassen v. Whitwell, 9 Bened. 115 (1877); The Belgenland, 114 U. S. 355, 361 (1886). « The Luna, 13 Rep. 6 (E. D. Pa., 1881). ' Exp. Gordon, 104 U. S. 517-18 (1881), cases. 9 1 Kent, 363. ADMISSION 85 ADMISSION A "mixed case "in admiralty is a contract ■which does not depend altogether upo^i locality as the test of jmisdiction; as, a contract for supplies, a charter- party, and the like; but not a tort begun on land and completed on navigable water,' nor a policy of insur- ance upon a ship and its cargo against marine perils.* The libelant propounds the substantive facts, prays for appropriate relief, and asks for process suited to the action, which is in rem or in personam. The re- spondent answers those facts by admitting, denying, or declaring his ignorance thereof, and alleges the facts of his defense to the case made by the libel. The proofs must substantially agree with the allegations. There are no common-law rules of variance or depart- ure. The court grants relief on the case made out.' The criminal jurisdiction of the Federal courts does not extend to the Great I^akes and their connecting waters; as, for example, the Detroit river. See Ska, High.* See further Accident; Canal; Collision, 2; CoN- soKT, 2; Damages; Fidejdssok; Lakes; Libel, 4; Marine; MAHrriME; Monition; Navigable; PETrroRT; Res, 2; Sea; Stipulation, 1; Tide; Tort, 2. ADMISSION.' 1. Receiving: reception. Whence admit, admissible, inadmissible, non- admission. Used of assenting to, allowing, or receiv- ing — a claim, a will to probate, any other writing, or testimony. Also applied to making a person a member of a privileged class or body, as of the legal profession, or of a partnership or association. See Delectus. 2. Recognition as fact or truth ; acknowl- edgment, concession; also, the expression in which such assent is conveyed. In evidence, applied to civil transactions, and to facts, in criminal cases, not involving criminal intent.* In pleading, what is not denied is taken as admitted. Direct or express admission. An ad- mission made openly and in direct terms. Implied admission. Results from an act done or undone ; as, from character assumed, from conduct or silence. Incidental admission. Is made in an- other connection, or involved in some other fact admitted. Judicial or solemn admission. So plainly made in pleadings filed, or in the progress of a trial, as to dispense with the stringency of some rule of practice. ' The Plymouth, 3 Wall. 34-35 (1865), cases. 2 New England Ins. Co. v. Dunham, 11 Wall. 1 (1870). "Dupontde Nemours v. Vance, 19 How. 171 (1656); The Clement, 2 Curtis, 366 (1855). * Exp. Byers, 32 F. R. 404 (1887), Brown, J. * L. ad-mittere, to send to: receive. * 1 Greenl. Ev. § 170. Partial admission. In equity practice, delivered in terms of uncertainty, with ex- planation or qualification. Plenary admis- sion. Without any qualification.! Admissions are treated as " declarations against in- terest " and, therefore, 'probably true. In the absence of fraud they bind all joint parties and privies.* The credibility of an admission is a question of fact. The admission of a right is not the same as of a fact. All the words must be considered. May be by a document, conduct, predecessor in title, agept, at- torney, referee, joint party, trustee, officer, principal, husband, wife.^ Where the act of the agent will bind the principal, his admission respecting the subject-matter will also bind him if made at the same time, and constituting part of the res gestae.* But an act done by an agent cannot be varied, qualiHed, or explained, either by declarations, which amount to no more than a mere narrative of a past ' occurrence, or by an isolated conversation held, or an isolated act done, at a later period. The reason is, the agent to do the act is not authorized to narrate what he had done or how he had done it, and his dec- laration is no part of the res gestae.^ For example, the declaration of the engineer of a train which met with an accident, as to the speed at which the train was running, made from ten to thirty minutes after the accident occurred, is not admissible against the company in an action by a passenger to recover damages for injuries sustained. " His declara- tion, after the accident had become a completed fact and when he was not performing the duties of en- gineer, that the train, at the moment the plaintiff was injured, was being run at the rate of eighteen miles an hour, was not explanatory of anything in which he was engaged. It did not accompany the act from which the injuries in question arose. It was, in its essence, the mere narrative of a past occurrence, not a part of the res gestae — simply an assertion or repre sentation, in the course of a conversation, as to a mat- ter not then pending, and in respect to which his authority as engineer had been fully exerted. It is not to be deemed part of the res gestae simply because of the brief period intervening between the accident and the making of the declaration. The fact remains that the occurrence had ended when the declaration in question was made, and the engineer was not in the act of doing anything that could possibly affect it. It his declaration had been made the next day after the ac- cident, it would scarcely be claimed that it was admis- sible evidence against the company. And yet the circumstance that it was ihade between ten and twenty miiiutes — an appreciable period of time — after the » See I Greenl. Ev. §§ 194-211 ; 1 Chitty, PI. 600. ' 1 Greenl. Ev. § 169. ' See Whart. Ev. Ch. XIU. * Story, Agency, § 184. See also 1 Greenl. Ev. g 113. 'Packet Company v. Clough, 20 Wall. 540 (1874), Strong, J. ; American Life Ins. Co. v. Mahone, 21 id. 157(18741; Barreda v. Silsbee, 21 How. 164-65 (1858), cases; Whiteside v. United States, 93 V. S. 247 (1876); Xenia Nat. Bank v. Stewart, 114 id. 228 (1885), cases. ADMISSION 36 ADOPT accident, cannot, upon prWoiple, make this 6ase an exception to the general rule. If the contrary view should be maintained^ it would follow that the declara- tion of the engineer, if favorable to the company, would have been admissible in its behalf as part of the res gresice, without calling him as a witness — a proposition that would find no support in the law of evidence. The cases have gone far enough in the ad- mission of the subsequent declarations of agents as evidence. against their principals. These views are fully sustained by adjudications in the highest courts of the States." Contra. " As the declaration was made between ten and thirty minutes after the accident, We may well conclude that it was made in sight of the wrecked train, in the presence of the injured parties, and whilst surrounded by excited passengers. The en- gineer was the only person from whom the company could have learned of the exact speed of the train at the time. . It would seem, therefore, that his dec- laration, as that of its agent or servant, should have been received." '* The modem doctrine has relaxed the ancient rule that declarations, to be admissible as part of the res gestae, must be strictly contemporaneous with the main transaction. It now allows evidence of them when they appear to have been made under the im- mediate influence of the principal transaction, and are so connected with it as to characterize or explain it. . . . What time may elapse between the hap- pening of the event . . and the time of the decla- ration, and the declaration be yet admissible, must de- pend upon the character of the transaction itself. . . The admissibility of a declaration, in connection with evidence of the principal fact, as stated by G-reenleaf , must be determined by the judge according to the degree of its relation to that fact, and in the exercise ot a sound discretion; it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description. The principal points of attention are, he adds, whether the declara- tion was contemporaneous with the main fact, and so connected with it as to illustrate its character." i See Acquiescence; Compromise; Confession, 2; Declaration, 1; Demurrer; Estoppel; EvinENCE; Part, 1; Silence. ' Vicksburg & Meridian E. Co. v. O'Brien, 119 U. S. 99, lOM (Nov. 1, 1886), oases, Harlan, J.; Bradley, Woods, Matthews, and Gray, JJ., concurring; Waite, C. J., Field, Miller, and Blatchford, JJ., dissenting,— opinion, pp. 107-9, by Field, J., citing, as in point, the declaration of the engineer and the ruling in Han- over R. Co. V. Coyle, 55 Pa 396, 402 (1867). And see Northern Pacific E. Co. v. Paine, 119 U. S. 560 (1877); N. J. Steamboat Co. v. Brockett, 121 id. 649 (1887). " The true rule is correctly stated by Greenleaf, with its limitations." Darling u. Oswego Falls Manuf. Co., 30 Hun, 279, 280-83 (1883), cases. See further, as to res gestae. Little Eock, «fec. B. Co. v. Leverett, 48 Ark. 338-43 (1886), cases — declaration by injured brake- man; Keyser v. Chicago, &c. E. Co., Sup. Ct. Mich. (1887), cases — declaration by an engineer: 36 Alb. Law J. 202, 203, cases; Williamson v. Cambridge E. ADMIXTTJHE. See Accession; Con- fusion, Of goods. ADMONITION.i A judicial reprimand to an accused person about to be discharged. Whence admonitory. ADOPT.2 To choose: take, receive, ac- cept. Whence adoption. 1. To make as one's own what formerly was not so; to appropriate: as, to adopt a symbol or design for a trade-mark, q, v. 2. To assent to what affects one's right ; to approve, ratify: as, to adopt the unauthor- ized act of an agent ; to adopt a by-law, a charter, a constitution, an amendment. To " adopt " a route for the transportation of the mails is to take the steps necessary to cause the mail to be tnansported over that route. ^ 3. To take a strange): into one's family as son and heir ; to accept the child of another as one's own child and heir.< " Adopted child " and "adopted parent" are cor- relative expressions. "Adopting parent" and (but less frequently) " adopter " are also used. Adoption, in this sense, is regulated by statute in' each State. The child becomes in a legal sense the child of the adopted parent. At the same time it remains the child of its natural parents, and is "not deprived of the right of inheriting from them, unless expressly so provided by statute.^ In the Eoman law adoption was an act by which a person undertook to rear the child of another and ap- point such child as his heir. Some special authority of law was necessary to constitute the relation. No right to adopt a child exists at common law. The methods known in modern law are by a decree of a competent court and by indenture.^ Adoption was unknown to the common law, butwas recognized in the civil law from its earliest days. The effect was to make a stranger the son and heir of the adoptmg person. The stranger entered the family and came under the power of its head; he became as 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- imate child living could adopt a stranger as co-heir with his child. The statute law of that State has im- ported the civil law, modified in important respects. It gives the adopted party the position of a child so Co., 144 Mass. 160 (1887) — declaration by conductor of a street car. 1 L. ad-monere, to advise. 2 L. adoptare, to choose. 3 Ehodes v. United States, 1 Dev. 47 (1856). See Guaranty, 2. Advancement. Giving, by anticipation, the whole or a part of what it is supposed a child will be entitled to on the death of the giTer.2 A pure and irrevocable gift made by a par- ent to a child in anticipation of such child's future share of the parent's estate.' A giving by a parent to a child or heir, by way of anticipation, of the whole or a part of what it is 'supposed the donee will be en- titled to on the death of the party making it.* " Advancements " means money or property given by a father to his children as a portion of his estate, and to be taken into account in the final partition or distribution thereof. "Advances" has a broader sig- nification; it may characterize a loan or a gift, or money advanced, to be repaid conditionally.* There is no intention to have a " gift " chargeable on the child's share of the estate. In " debt " the rela- tion of debtor and creditor still exists.^ If, after an advancement, a will be made, the inten- tion of the testator with respect thereto is a matter of fact determinable from the will and extrinsic testi- mony.^ Proof that gifts were made is not suiflcient: it must appear that they were intended as advancements. ^ Advancement is always a question of intention ; and this must be proven to have existed at the time of the transaction. Thus, declarations of a parent .that money, for v^hich he held a note, was an advancement will establish it as such. The declarations must be of the res gestce, accompanying the act.* See Hotchpot. ADVANTAGE. See Benefit; Commo- ddm; Interest, 1. ADVENTURE.io 1. An enterprise of hazard. 1 Lawrence v. Tucker, 33 How. 27 (1859), cases; Jones V. Guaranty, &c. Co., 101 U. S. 636 (1879); Nat. Bank of Genesee v. Whitney, 103 id. 99 (1880). " [Osgood V. Breed's Heirs, 17 Mass. 358 (1881), Par- ker, C. J. s Yundt's Appeal, 13 Pa. 580 (1850); 89 id. 341. * Wallace v. Eeddick, 119 lU. 166 (1886), Scott, C. J. ; Grattan v. Grattan, 18 id. 170 (1856), cases, Skinner, J. ; Kintz V. Friday, 4 Dem., N. Y., 548-4.3 (1886), cases. » Chase v. Ewing, 51 Barb. 612 (1868). •Weatherhead i-. Field, 26 Vt. 668 (1S54). ' Wright's Appeal, 89 Pa. 70 (1879). « Comer v. Comer, 119 111. 180 (1886). " Merkel's Appeal, 89 Pa. 343 (1879) ; HoUiday v. Wing- fleld, 69 Ga. 208 (1877) ; Dillman v. Cox, 23 Ind. 442 (1864) ; Fellows V. Little, 46 Vt. 36 (1865); Clark v. Wilson, 27 Md. 700 (1867); Eshleman's Estate, 74 Pa. 47 (1873); Dunham v. Averill, 45 Conn. 87 (1877); Eickenbacker v. Zimmerman, 10 S. C. 115-16 (1877), cases; 67 Law Times, 261. ^"W. aventure, chance: L. adventurus^ about to hap- pen. Compare Misadventuhb. 3. A partnership for a single transacfion. 3. Goods sent abroad to be disposed of for the benefit of the owner. Also called a marine adventure ; and evi- denced by a hill of adventure. In marine Insurance, synonymous with "perils." Describes the enterprise or voyage insured against.' ADVERSARY. See Adverse, 2. ADVERSE.^ 1. Acting against or in a contrary direction; opposed to; conflicting with, contrary to, the interest of another. In some senses, opposed to amicable. As, an adverse — claim, conveyance, em- ployment, enjoyment, interest, judgment, party, possession, proceeding, service, suit, title, verdict, use, qq. v. 2. Biased, hostile: as, an adverse witness, Adversary.3 Having an opposite party ; adverse ; not amicable. As, an adversary — action, judgment, pro- ceeding. ADVERSUS. See A, 3; Versus. ADVERTISEMENT.* Information given by hand-bill or newspaper. See Let- ter, 8; Reward, 1. Ofllcial advertisement. Such as is made by some public authority and in pur- suance of law. Advertisement in a newspaper, under direction of law, is equivalent to notice; as, of a proceeding in coiu-t, of the dissolution of a partnership. See Pub- lication, 1. The exclusive right to employ a particular method of advertising, as by a card displaying paints of vari- ous colors, is not the subject of a copyright.* ADVICE. Counsel, opinion ; information given, or, perhaps, consultation had, as to action or conduct. Compare Advise ; Inops, Gonsilii. See Influence. As per advice. On a bill of exchange, deprives the drawee of authority to pay the bill until in receipt of the letter of ad- vice: the drawer's letter containing informa- tion as to paying the bill.<> See under Let- ter, 3. ADVISE. Where a statute authorizes a trial judge to "advise " the jury to acquit an accused person, a request by counsel that the 1 Moores v. Louisville Underwritera, 14 F. E. 233 (188 J), Hammond, J. '^ L. adversus, opposed to. 8 A^d'versary. < Advertise' ; adver'tisement or -tise'ment. 'Ehret v. Pierce, 18 Blatch. 302(1880). ' See Byles, Bills, 91. ADVOCATE 89 AFFIDAVIT court "instruct" the jury to acquit should be denied.' Compare Advice; Instruct, 3. Advisable. See Discretion, 2. Advisor. See Communication, Privi- leged, 1 ; AXTOKNEY. Advisory. Containing counsel or a sug- gestion, yet not concluding or binding. The verdict of a jury on an issue out of chancery is advisory;* a judge's opinion on the facts in «- case may be regarded as advisory; ^ a nomination to an office may be an advisory designation. ADVOCATE.'! See Judge-Advocate. An assistant ; an associate in conducting a lawsuit. ^ person who makes a profession of pre- senting cases orally. '• Of advocates, or (as we more generally call them) coimsel, there are two species or degrees: barristers and sergeants." ° In the United States no distinction is made between an advocate and an attorney, q. v. ADVOWSON'.*' Taking into protection. The right of presentation to a church or ec- clesiastical benefice. Advowsons are (were) appendant, or in gross; and presentative, coUative, or donative.^ ^DLPICATA. See Solum, ^diflcata. .ffiQUITAS. L. Equity. .Squitas sequitur legum. Equity fol- lows the law. Where the law, or the commor^ law, is in- effectual, equity affords relief, following at the same time the rules of law.8 See Equity. AEROLITE. See Accbetion. ^S. L. Money. ^s alienum. Another's money. Ma suum. One's own money. The principle of bankrupt and insolvent laws is fairly expressed by the phrase "ces alienum" which, in Roman law, signified a debt. The property of a debtor, to the extent of Ms indebtedness, belongs to his creditors." ^STIMATIO. See Caput, ^stimatio. AFFAIRS. Things done or to be done ; business interests. A word of large import. A receiver who has the management of the "affairs of tt railroad com- ' People V. Horn. 70 Cal. 18 (1886); Cal. Penal Code, § 1118. 2 Watt 1'. Starke, 101 U. S. 252 (1879). « Nudd 1). Burrows, 91 U. S. 439 (1875)-. * L, advocatuSf one called upon. » 3 Bl. Com. 20. ' Advow'zfln. L. advocatio, patronage. ' 3 Bl. Com. 21-22; 21 E. L. & Eq. 417. ^2 Bl. Com. 3S0; 3 id. 441; 1 Story, Eq. § 64; 10 Pet. 210; 15 How. 299. > 3 Pars. Contr. 428. pany" must necessarily have control and manage- ment of the road. ^ AFFECT. Toact upon; to concern: as, cases affecting public ministers. Often used in the sense of acting injuri- ously upon a person or thing ; as in a proviso that an act shall not affect any confirmed claim to lands.2 AFFECTION. See Consideration, 2. AFFIDAVIT.^ A voluntary oath, before some judge or oiBcer of a court, to evince the truth of certain facts ; as, the facts upon which a motion is grounded.'' Afflant. One who makes an affidavit. An affidavit is simply a declaration, on oath, in writing, sworn to by the declarant before a person who has authority to admin- ister oaths.5 It does not depend upon the fact whether it is " en- titled " in any cause or in a particular way. Without a caption it is an affidavit.'' It is not necessary that the party sign the state- ment, unless a statute expressly so require. It is the official certificate which gives authenticity to the written oath." * In common parlance, any form of legal oath which may be taken.'' Hence, in a statute, may mean simply an oral oath. ^ The officer must sign the jurat; otherwise the doc- innent is not an affidavit.'' The certificate is no part of the affidavit, but the prima facie evidence that it is the affidavit of the person by whom it purports to have been made." Counter afO-davit. An affidavit made or filed in opposition to the averments con- tained in another affidavit. Supplemental a£B.davit. An affidavit containing averments upon the same subject- matter as another affidavit previously pre- sented, and designed to remedy some defect in that other." 1 Tompkins v. Little Hock, &c. R. Co., 15 P. E. 13 (1883). « Ryan v. Carter, 93 U. S. 83 (1876). ' L. affidavit, he has made oath: ad fldem dare, to pledge faith for. • 3 Bl. Com. 304; 3 Tex. Ap. 503. » Harris v. Lester, 80 111. 311 (1875), Scott, C. J. •Hagardine «. Van Horn, 72 Mo. 371 (1880). See 8 Iowa, 3M; 16 N. J. L. 125. ' Baker v. WUliams, 12 Barb. 5-57, 530 (1850). See 77 N. C 331; 28 Wis. 463. 8 Morris v. State, 2 Tex. Ap. 503 (1877) ; State v. Rich- ardson, 34 Minn. 118 (188.5); 18 id. 90. » Hitsman v. Garrard, 16 N. J. L. 125(1837); Hagar- dine V. Van Horn, 72 Mo. 371 (1880;. i» See Callan v. Lukens, 89 Pa. 136 (1879); 1 T. & H. AFFILIATION 40 AFFIEM Among the more common affidavits in use in civil practice are : Affidavit of cause of action, which avers that a just cause of action exists. Affidavit of claim, which verifies the state- ments of facts upon which a claim or demand is made. Affidavit of defense, which ■verifies the statements of facts upon which a defendant resists a demand made upon him. See De- fense, 3, Affidavit, etc. Affidavit of or to the merits (q. v.), which is to the sufficiency of the facts whicli con- stitute a defense in a civil action, instead of resistance upon technical grounds. Affidavit to hold to bail, which is that tlie cause of action, brought for a civil injury, is valid. ; Affidavits serve to verify allegations of fact not already matters of record, and tliereby qualify them for judicial action; also, to initiate remedies, giving to statements the impress of good faith and probable cause. They are no part of the record in a case unless specially made so.^ Compare Complaint, 2; Deposition. See Apparere, De non, etc. ; Caption, 2 ; Jurat ; Knowi.edoe, 1 ; Oath ; Becord. AFFILIATIOIT. See Filiation. ArFINITAS. L. Nearness; affinity. AfiB.uitas afllnitatis. The tie between ' the respective kindred of a married couple. Afflnes. Kelations by marriage. AFFINITY. Relation by marriage. See Affinitas. The tie which arises from marriage be- tween the husband and the blood relations of the wife, and between the wife and the blood relations of the husband.^ Opposed, consan- guinity. There is no affinity between the blood relations of the husband and of the wife.' See Consanguinity; Relation, 3. AFFIRM.* 1. To aver a thing as estab- lished or certain, or as existing, or as prov- able as a fact. Whence affirmative, affirma- tion. Afl&rmative (1), adj. Asserting as true ; declaratory of what exists or is to be or to be done; positive. Opposed, negative. As, affirmative or an affirmative — allega- 165 Pa. 31; 103 U. S. 832. = 1 Bl. Com. 434. s Paddock v. Wells, 2 Barb. Ch. 333 (1847); 1 Denio, 26, 187; 29 Me. 545. *F. afermer, to ftx: L. ad-firmus, steadfast. tion, averment, condition, covenant, defense, evidence, pleading, representation, statute, warranty, words, qq. v. (2), n. The affirmative : the party who maintains or supports. Opposed, the negative. The burden of proof rests upon him who holds the affirmative of an issue.> See Proof, Burden of. Affirmative pregnant. An affirmative allegation implying a negative in favor of the adverse party. Opposed, negative pregnant: a negative allegation involving or admitting of an affirmative implication, or, at least, an implication favorable to the adverse party. = See Neoative. AfiQrmatively. (1) In positive terms ; by positive testimony, and not by way of infer- ence. Error in judicial action, not being presumed, must be shown affirmatively.' (3) In favor of what is proposed ; approv- ingly. A legislative committee is said to report a bill affirmatively, or negatively. 3. To make binding what before was not obligatory, but voidable; to confirm, to ratify, qq. v. Opposed, disaffirm. Whence affirmance, disaffirmance. An infant, to avoid a deed, must. disaffirm within a reasonable time after his majority is attained. While the decisions differ as to what constitutes a disaffirm- ance, the preponderance of authority is that mere inertness or silence, continued for a period less than prescribed by the statute of limitations, unless ac- companied by voluntary affirmative acts manifesting an intention to assent to the conveyance, will not bar his right to avoid the deed. He cannot disaffirm while infancy continues.* See Disability; Rescis- sion; Voidable. 3. To support or confirm : as, for a court of review to affirm the judgment or order of a lower court. Opposed, reverse. Whence affirmance, affirmed. See Curia, Per curiam. 4. To attest by a solemn declai-ation, made in a judicial inquiry, to speak the truth. Whence affirmant, affirmation. An affirmation, which is generally made by such persons as interpret the words of Scripture "Swear 1 1 Greenl. Ev. § 74; 119 111. 357. 2 Gould, Plead. 296; Steph. PI. 381. s 101 U. S. 601. < Sims V. Everhardt, 102' U. S. 309, 312 (1880), cases; Brazee v. Schofield, id. (1883); Dawson "u. Helmes, 30 Minn. 118 (1882), cases; Wilson v. Branch, 77 Va. 71-72 (1888), cases; Catlin v. Haddox, 49 Conn. 492 (1882), cases; Nathans v. Arkwright, 66 Ga. 186 (1880); Adams ■0. Beall, Sup. Ct. Md. (1887), cases: 8 Atl. Rep. 664; 20 Am. Law Eeg. 713-15 (1887), cases; Bishop, Contr. §§ 936-44, cases. AFFIEMANTI 41 AGE not at all," etc., as proliibitory o£ an oath, does not, like an oath, involve an appeal to the Supreme Being. A common form is, '' You do solemnly, sincerely, and truly declare and affirm, that you will state the truth," etc. Upon assent to this interrogation the a£9rmant is bound as by oath, and liable to punish- ment as for perjury. See Oath ; Pekjtoy. APFTRMANTI. See Probare, Probatio. AFFIX. See Fixture; Seal, 1. APFKAY.i The fighting of two or more persons in some public place to the terror of his majesty's subjects. ^ When persons come together without a premeditated design to disturb the peace, and suddenly break out into a quarrel among themselves.3 More of a private nature than a " riot." ^ If the fighting be in private it is an "assault." Actual or attempted violence is essential ; the " terror " is presumed. An abettor is a principal. ^ See Abet; AccmENT. AFFREIGHTMENT. See Freight. AFOKE. Before; formerly; previously. Aforesaid. Spoken of formerly. See Said. Aforethought. Conceived beforehand. See Malice. AFRICAJST. See Citizen; Color, 1; Slavery. AFTER. Further off, behind: subse- quent to a date or event ; exclusive of ; sub- ject to. Where time is to be computed "after" a day that day is excluded.* • In the devise to A, " after " providing for B — sub- ject to, after taking out, deducting or appropriating.* Does not necessarily refer to time; may refer to order in point of right or enjoyment. "After settling my estate" is equivalent to "subject to the settle- ment." • "After the charges herein," and "after the pay- ment of my debts," means subject to the charges, subject to the payment of the debts. ^ See On. A contract to pass a title "after" payment of the IF. affraier, to teiTify,— 4 Bl. Com. 145. "It af- frighteth or maketh afraid," — 3 Coke, 158. L. L. ex frediare^ to break the peace: disturb, frighten, — Skeat. L. frigus, shudder from fear, — Webster. "4 Bl. Com. 145; Order of Friends v. Garrigus, 104 Ind. 139 (1884); 70 Ala. 28; 33 Ark. 178; Rose. Cr. Ev. 270; Arch. Cr. PI. 1709. = People V. Judson, 11 Daly, 83 (1819), Daly, J.— Aster Place Elot Case. « Sheets v. Selden, 2 Wall. 190 (1864) ; 2 Hill, 355. « Hooper t). Hooper, 9 Cush. (1851); 9 Pet. 470. » Lamb v. Lamb, 11 Pick. »378 (1831), Shaw, C. J. ; Minot V. Amory, 2 Cush. 387 (184S). 'King V. King, 14 B. 1. 146 (1888); ib. 516. See also 63 Wis. 301. 673, 588: 9 H. L. Cas. 1. purchase price is to be understood as if it read " upon " payment, i See Maturity, 2. After-acquired. Obtained after some event: as, property acquired after a will was made, or after an adjudication in bank- ruptcy, or after a judgment is repovered. See Acquire. After-discovered. Came to light or was disclosed after an event or occurrence : as, after-discovered evidence, an after-dis- covered principal. See Agent; Audita Querela; Discovery, 3. AFTERNOOM". See Day. A complaint for not closing a saloon "at nine o'clock " and keeping it open till " past eleven in the afternoon " is not bad for failing to show that nine o'clock at night was meant." AGr. Against; agreeing. AGAUfST. In opposition to; opposed; contrai-y to; adversely to. Compare Con- tra. An enactment that neither party shall be allowed to testify "against" each other, as to any transaction with the deceased person whose estate is interested in the result, has been construed to allow the repi'esentative of the decedent to compel the opposite party to testify for the estate.^ A verdict in disobedience of instructions upon a point of law may be said to be "against law." * Against the form of the statute. In an indictment alleges that a statute has been broken. See further Form, 2, Of stat- ute. Against the peace. Words in use to charge a breach of the peace. See Peace, 1. Against the will. Words used to charge vfolence. See Will, 1. AGE. A period in life at which a person may do an act which, before that time, he could not do; "of age." The period at which one attains full per- sonal rights and capacity. The time of life when a particular power or capacity becomes vested; as, in the phrases age of consent, age of discretion, qq. v.^ Full age. Twenty-one ; majority. Attained the day preceding the anniversary of birth. Considered as arbitrarily fixed, but very gen- erally adopted.' An infant is liable, as for deceit, for an injury re- 1 Hawley v. Kenoyer, 1 Wash. T. 611 (1879). ' People V. Husted, 52 Mich. 624 (1884). s Dudley v. Steele, 71 Ala. 426 (1882). • Declez v. Save, 71 Cal. 553 (1887); 40 id. 545; 4 Bosw. 202. ' [Abbott's Law Diet. • 1 Bl. Com. 463; 2 Kent, 233. AGENDO 4a AGENT ulting from hia f ra\idulent representation that be is 'f full ageiji See Acknowledomeht, 2; Mutual, 1. Lawful age. The period in life when a jersou may do a particular act, or serve in a ;iven relation. Non-age. Under the age at which the aw has conferred ability to perform an act ; ninority. At common law a male at twelve may take the lath of allegiance; at fourteen choose a guardian, -nd, if his discretion be proved, make a will of person- .Ity; at seventeen be an executor; at twenty-one is .t his own disposal, may alien his property and make ,11 contracts. A female, by the common law, may, at even, be -betrothed or given in marriage; at nine is ntitled to dower; at twelve is of years of maturity, aay consent to marriage, and, if proved to Iiave sufifi- ;ient discretion, may bequeath her personalty; at ourteen is of years of legal discretion, and may ihoose a guardian; at seventeen be an executrix; at wenty-one dispose of herself and her lands.^ A male f I'om eighteen to forty -five is liable to mili- ary service; at twenty-five is ehgible as a Represent- ative, at thii'ty as a Senator, and at thirty-five as 'resident. See Adult; Infant; Influence; Insanity; Sedco- 'IOn; When. AGENDO. See Akeest, 2 (3). AGENT.s A person employed by another act for him. Opposed, principal. Agency. The relation between two per- lons as principal and agent. , The term agent includes many classes of persons to vhich distinctive appellations are given; as, a factor, )roker, attorney, cashier, du-ector, auctioneer, clerk, )artner, supercargo, consignee, ship's husband, master (f a vessel, qq. v. The relation is founded upon contract, but not for he doing of an unlawful act or an act of a strictly )ersonal nature. General agent. An agent empowered to .ransact all business of a particular kind. Special agent. An agent employed to do 1 single act or for a special transaction. A "special agency" exists when there is a lelegation of authority to do a single act ; a ' general agency" when there is a delegation ,0 do all acts connected with a particular rade, business, or employment.* To constitute one a general agent it is not necessary hat he should have done before an act the same in pecie with that in question. 'It is enough if the trans- > Eioe V. Boyer, 103 Ind. 473-80 (1886), cases. ■' 1 Bl. Com. 463. 2 L. agens, agentis^ doing, acting. " Story, Agency, § 17; ib. §§ 137, 133; Keith v. Hersch- lerg Optical Co., 48 Ark. 146 (1886), cases, Smith, J. ; :1 Ind. 2BB; 35 Iowa, 281; 103 Mass. 235; 9 N. H.363; 4 N. Y. 431; 16 id. 133, cases. action involves the same general power that he has usually exercised, though applied to a new subject- matter, i The principal is responsible for the acts of his gen- eral agent when acting within the general scope of his authority, and the public cannot be supposed to be cognizant of any private instructions; but where the agency is special and temporary, and the agent ex- ceeds his employment, the principal is not bound.^ The doctrine of general agency does not apply to non-trading partnerships: as to them there is no pre- sumption of authority to support the act of a partner. 3 Public agent. A person by whom a power of government is exercised. Public agents represent the legislative, judicial, and executive departments of government. They have such power only as has been specifically conferred upon them.* Sub-agent. A person selected by an agent to perform a part or all of the duties of the employment. An agent is answerable to his principal for the act of his sub-agent although the principal knows that the sub-agent has been employed.^ When an agent has power to employ a sub-agent the acts of the latter, or notice given him in th(: transaction of, the business, have the same eflfeot as i done or received by the principal.* Universal agent. One who is appointed to do all the acts which the principal person- ally can do, and which he may lawfully dele- , gate the power to another to do.'^ Such agency may potentially exist ; but it is difdcult to conceive of its practical existence, since it puts the agent completely in the place of the principal.' An infant, or /erne covert (her husband consenting), may serve another as agent; but not so a person who has an adverse interest or employment.^ 1 Commercial' Bank of Erie v. Norton, 1 Hill, 504 (1841); Merchants' Bank v. State Bank, 10 Wall. 650 (1870); Mining Co. u. Anglo-Calif ornian Bank, 104 U. S. 193(1881).^ 2 Minn v. Commission Co., 15 Johns. 54 (1818); Scott V. McGrath, 7 Barb. 55 (1849), cases; Adriatic Ins. Co. V. TreadweU, 108 U. S 365-66 (1883); Bohai-t v. Obeme, 36 Kan. 289 (1887); Bickford v. Menier, Ct. Ap. N. Y.' (Deo. 13, 1887): 26 Cent. Law J. 236; ib. 239-41 (1888), cases; 3 Kent, 6^0; Smith, Contr. 363; cases ante. s Pease v. Cole, 53 Conn. 60-65 (1885), cases. The question was whether one member of a partnership for conducting a theater could bind his partner by- a promissory note in the name of the firm, the copart- ner having no Imowledge of the transaction. •> Whiteside v. United States, 93 U. S.257 (1876), cases- Anthony V. County of Jasper, 101 id. 699 (1879); Exp. Virginia, 100 id. 347 (1879) : Virginia v. Rives, ib. 313 (1879)! ' Barnard v. Coffin, 141 Mass. 40 (1886), cases. 'Hoover v. Wise, 91 U. S. 310 (1876), oases; Story Agency, §§ 452, 464. ' Story, Agency, § 21. swharton, Agency, § 14; Story, Agency, §,4. AGENT 43 AGENT The act of an agent, done in the usual way in the line of his employment, binds the principal. ' His au- thority is limited to the usual and ordinary means of accomplishing the business intrusted to him.^ Knowledge in the agent is knowledge in the prin- cipal. * The rule that notice to the agent is notice to the principal applies not only to knowledge acquired by the agent in the particular transaction, but to knowl- edge acquu'ed in a prior transaction and present to his mind at the time he is acting as agent, provided it be of a character he may communicate to his principal without breach of professional confidence. The gen- eral rule, that the principal is bound by the knowledge of his agent, is based on the principle of law that it is the agent's duty to communicate his knowledge and the presumption that he will perform that duty.* Where the principal has employed the agent to do an act upon the existence of a fact peculiarly within the latter's knowledge, and of the existence of which the execution of the power is a representation, a third person, dealing with the agent in good faith, may rely upon such representation, and the principal be es- topped fi'om denying the truth of the representation.^ But where communication by the agent would pre- vent him from consummating his own fraudulent pur- pose, the knowledge he possesses will not be imputed to the principal. In this sense, for example, a diiector of a corporation, acting wholly for himself, cannot be treated as the agent of the corporation. Uncommuni- cated notice received by the agent in prosecuting his private business will not bind the employer.* An agent's act affecting negotiable paper requires specific authority.' He is to exercise the highest good faith toward his principal. He may make no profit secretly out of funds be- longing to the principal.** See Trust, 1. The principal is answerable for the agent's act of negligence (g. v.) done in the course of the employ- ment." 'Ean-eda v. Silsbee, 31 How. 164-65 (1838), cases; Hoffman v. Hancock Mut. Life Ins. Co., 92 U. S. 104 (1875), cases; Whiteside v. United States, 93 id. 257 ( 1876), cases. a Williams u Getty, 31 Pa. 481 (1858). 3 Hoover v. Wise, 91 U. S. 310 (1875), cases; Smith v. Ayer, 101 id. 320(1879); Vicksburg, &c. R. Co. v. O'Brien, 119 id. 105 (1886). ■• The Distilled Spirits, 11 Wall. 360-68 (1870), cases, Bradley, J. s Bank of Batavia v. New York, &c. B. Co., Ct. Ap. N. Y. (1887): 7 Cent. Rep. 822. Cases pro and con, 26 Am. Law Reg. 576-81 (1887), cases. » Innerarity v. Merchants' Nat Bank, 139 Mass. 333-35 (1S85), cases; Wilson v. Second Nat. Bank of Pitts- burgh, Sup. Ct. Pa. (1886): 6 Cent. Rep. 756; Frenkel V. Hudson, 82 Ala. 162-63 (1886), cases. ' 1 Pars. Contr. 62; The Floyd Acceptances, 7 Wall. 676 (1878); Anthony v. County of Jasper, 101 U. S. 699 (1879). 8 Northern Pacific R. Co. v. Kindred, 3 McCrary, 631 (1881), cases. ' Philadelphia,. &c. R. Co. v. Quigley, 21 How. 209-10 He should name the principal as the contracting party in the body of a contract, and sign as agent.' A note made by an agent with the principal un named in the fjody, but signed " B, agent for A," or " B for A," is the note of A, ths principal. But m- serting " for," " in behalf of," or " as " the principal, and signing the name of the agent, does not make the contract the principal's.^ In a bill payable to and indorsed by " B, agent," the word " agent " is a designatio pei'sonce, and he may show by parol that he was merely an agent, as the plaintiff knew.^ Only where the power as given is under seal need the agent use the principal's name with a seal,* See further Seal, 1. Under a deed of trust a person may be the agent of another to buy and sell, without exposing the donor's bounty to liability for the agent's former debts.' See further Tbdst, 1. An agent who discloses the name of his principal is not liable on a contract, unless he agrees to be held.* The principal may sue on a contract made in the name of his agent.' But where a third party dis- covers the undisclosed principal he may sue either the principal or the agent.* Where the principal and the agent are liable on a contract, each continues liable until satisfaction is made.' An agency is dissolved (1) by revocation — (a) by the principal, except when the power is *' coupled with an interest " or given for value, is part of a security, or a severable portion is executed and there exists no indemnity forthe rest. Revocation takes effect from the time of notice. (6) The agent may renounce at any time, paying damages, if any, as to the part un- executed. (8) By termination — by insanity or death, except when coupled with an interest; not, neces- sarily, by marriage or bankruptcy. (.3) By extinction of the subject-matter or of the principal's power over the same. (4) By operation of law, in various ways. (5) By complete execution of the trust. '* See further Aomission, 2; Attoknet; Collection; (1858), cases; The Clarita, 23 Wall. 12(1874); The Ca- hill, 9 Bened. 353-54 (1878), cases. 1 Gottfried v. Miller, 104 U. S. 527 (1881), cases. 2 Barlow v. Congregational Society, 8 Allen, 460, 463-64 (1864), cases. Gray, J. s Bartlett v. Hawley, 128 Mass. 92 (1876), Gray, C. J. ; 29 Minn. 121 ; 38 Ohio St. 444-45. < Stanton v. Camp, 4 Barb. 276 (1848); 'Whitney v. Wyman, 101 U. S. 392 (1879). » Nichols V. Eaton, 91 U. S. 725-30 (1875), cases. "Whitney v. Wyman, 101 U. S. 392, 396 (1879); Cragin V. Lovell, 109 id. 194, 198 (1883), cases. ' New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 381 (1848); Ford v. Williams, 21 id. 289 (1858). "Wharton, Agency, §464, cases; Merrill v. Kenyon, 4S Conn. 317 (1880), cases; Beymer v. Bonsall, 79 Pa. 300(1875); N. Y., &c. Steamship Co. v. Harbinson, 15 F. R. 683 (1883), cases; ib. 694-96, cases. ".Story, Agency, § 295; Wharton, Agency, § 473; Beymer v. Bonsall, 79 Pa. 300 (1875). i» Story, Agency, §§ 462-500; Frink v. Roe, 70 C!al. 309 ; 2 Kent, 643; 4 Pet. 344. AGGRAVATION 44 AGREE LEGATUs; Descriptio; Director; Disability; Fa- ke, Qui facit; Interest, 2 (2), Coupled, etc. ; Liveey- n; Managing; Partnership; Principal, 4; Proxy; .tification; Ees, 2, Gestae; Servant, 3; Tort. 2. AGGRAVATION.! Whatever adds to e weight of an act — in its consequences or lilt. Opposed, mitigation. Something done by the defendant, on e occasion of committing the trespass, hicli to some extent is of a different gal character from the principal act com- ained of. As, where a plaintiff declares in trespass for enter- ^ his dwelling-house, and alleges in addition that e defendant also destroyed goods in the house and saulted the domestics. ^ See Damages, Special. Aggravated. Increased, in severity or lormity: as, aggravated assault and bat- ry, which is a more seriqus offense than mple assault and battery, q. v. AGGREGATE. See Corporation, Ag- •egate. AGGREGATIO MENTIirM. L. Col- ction of purjioses; collected intentions; jreement. Essential to a contract; where there is a misunder- mding, wanting.^ Not the origin of "agreemejit." That derivation IS suggested by the harmony of intention which is sential.'' See Agreement; Assent. AGGRIEVED.' Damaged, injured, ex- )sed to loss: as, that the party aggrieved ay appeal or have a writ of error. The " party aggrieved " is he against whom 1 appealable order or judgment has been itered;* a party prejudiced by the judg- ent;'i one against whom error has been immitted by a decree or judgment entered ; s le whose pecuniary interest is directly af- cted by the order or decree — whose right ■ property may be established or divested 7 the order or decree.' Before a person can be said to be " aggrieve(i," so 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 3 property. The fact that an order may remotely ' L. aggravare^ to add to a load: gravis, heavy, i Hathaway v. Eice, 19 Vt. 107 (1846), Royce, C. J. e also Steph. Plead. 267; 3 Am. Jur. 287-^13. lUtley V. Donaldson, 91 U. S. 49 (1876). 1 Pars. Contr. 6. 'F. agrever, to overwhelm: L. axi-gravis. ' Ely V. Frisbee, 17 Cal. 261 (1861). People V. PfeitEer, 69 Cal. 91 (1881); 8 id. 315 ' State ex rel. v. Boyle, 6 Mo. 59 (1878). Dietz V. Dietz, 38 N. J. E. 485 (1884). or contingently affect interests which a receiver rep- resents does not give him a right of appeal. ^ In the New York act of 1858, the party aggrieved by proceedings relative to any assessment for local im- provements in the city of New York may apply to vacate the same. This refers to the person injured by the proceedings. The injury must be a direct, not a remote or consequential, result. ^ AGIST.3 Originally, to feed cattle in the king's forest : a service performed for a con- sideration by ofBcers called "agisters" or "gist-takers." Now, to pasture animals for pay. Agistmeixt. Where a man takes in a horse or other cattle to graze arid depasture in his grounds.'' Agister. One who takes the cattle of an- other into his own ground to be fed for a consideration to be paid by the owner. He has a lien for the keep; and may maintain tres- pass or trover against a stranger for taking the ani- mals away. ^ While he does not insure the safety of an animal he is responsible for ordinary negligence in the care he takes of it." He, and not the owner, is liable for injuries done by beasts prone to commit trespasses.^ AGNATI. See Natus, Agnati. AGNOSTIC. See Oath. AGREE.8 To concur in thought ; to unite in mental action, be of oije mind, assent. Opposed, disagree. May be read "grant;" as where a grantor agrees that no building shall be erected on an adjoining lot." Arbitrators, judges, and jurors, are said to agree, and to disagree. Agreed balance. See Balance. Agreed statement of facts. Facts sub- mitted as true to a court, for an opinion upon the law in the case. See Case, 3, Stated. Agreement. Union of minds to a thing ; concurrence of intention; mutual assent. More specifically, a mutual agreement, a contract. Consists of two or more persons being of 1 Boss V. Wigg, 100 N. Y. 246 (1885), Earlj J. ' Matter of Walter, 75 N, Y. 357 (1878); 91 id. 8; 100 id. 246; 141 Mass. 208; 143 id. 235. ^F. giste. abode: L. jacere, to lie. «2B1. Com. 452. ' Bass V. Pierce, 16 Johns. 596 (1863). ■* Story, Bailm. § 443, cases. 'Bossell V. Cottom, 81 Pa. 526-29 (1858), cases- Red- dick V. Newburn, 76 Mo. 424 (1882); Kemp v. Phillips, 55 Vt. 69 (1883). Case of agistment of 1,200 head of cattle. Teal v. Bilby, 123 U. S. 573 (1887). 8 F. ag/eer, to receive with favor. » Hogan V. Barry, 143 Mass. 533 (1887). AGRICULTURE 45 AID the same mind, intention, or meaning, con- cerning the matter agreed upon.i The expression by two or more persons of a common intention to affect their legal re- lations.2 See Understanding. In the Statute of Frauds is not understood in the loose sense of a promise or undertaking, but in its more proper and legal sense of a mutual contract on consideration between two or more parties.^ In a popular sense frequently declares the engage- ment of one person only. When a man "agrees" to pay money or to do some other act, the word is synonymous with ''promise," "engage."* In popular signification means no more than con- cord, the imion of two or more minds, concurrence of views and intention. Every thing done or omitted by the compact of two or more minds is universally and familiai'ly called an agreement. Whether a consider- ation exists is a distinct idea which does not enter into the popular notion. In most instances any considera- tion, except the voluntary impulse of minds, cannot be ascribed to the numberless agreements that are made daily. . In its broad sense, synonymous with the concord of two or more minds, or mutual as- sent. If there is nothing to limit the meaning, regards promises only, not their consideration.* In which ever sense understood in the Statute of Frauds the requirement is that it be in writing — if not to be performed within a year.^ The meaning of the contracting parties is their agreement.^ Also, the writing which preserves the evi- dence of the reciprocal promises. Articles of agreement. The memorandum of the terms of an agreement ; an agreement in writing. Should state the names and residence of the par- ties, the subject-matter, the promises to be performed, the date, and any other elements of the contract. See Aggregatio; Assent; Contract; Conventio; Party, 2; Merger, 2; Performance; Eescission. AGRICULTURE. A person engaged in agriculture is engaged in raising cereals and stock. "Agriculture," in its general sense, is the cultivation of the ground for the purpose of procuring vegetables and fruits for the use of man and beast ; or, the 1 Leake, Contr. 12. ' [Anson, Contr. .3. s [Wain v. Warlters, 5 East, *17 (1804), EUenborough, C.J. « Packard v. Richardson, 17 Mass. 131 (1821), Parker, C.J. "Sage V. Wilcox, 6 Conn. 85-94 (1826), Hosmer, C. J. See also Packard v. Richardson, 17 Mass. 131-34 (1821); Marcy v. Marcy, 9 Allen, 10-U (1864), Bigelow, C. J. ; Woodworth v. State, 20 Tex. Ap. 3S2 (18S6); 31 F. R. 249. ' Marcy v. Marcy, 9 Allen, 10-11 (1864). 'Whitney v. Wyman, 101 U. S. 396 (1879), Swayne, J. act of preparing the soil, sowing and planting seeds, dressing the plants, and removing the crops. In this sense the word includes gar- dening or horticulture, and the raising or feeding of cattle and other stock. In a more common and appropriate sense — that species of cultivation which is intended to raise grain and other field crops for man and beast ; " husbandry," as defined by "Webster.' A person who cultivates a one-acre lot and is also a butcher and a day laborer is not " engaged in agri- culture," within the meaning of an exemption law.* A person is "actually engaged in the science of agriculture " when he derives the support of himself and family, in whole or in part, from the tillage and cultivation of fields. He must cultivate something more than a garden, though it may be less than a field. If the area cultivated can be called a field, the em- ployment is "agriculture," as well in contemplation of law as by the etymology of the word. This condi- tion being fulfilled, the uniting of other business not inconsistent with the pursuit of agriculture will not take away the protection of a law exempting one horse, harness, and a plow from levy and sale.'' See Crop; CuLTrvATioN ; Horse ; Implements ; Tools. AID.' 1. Help; assistance; support. Aid and abet. In common parlance, as- sistance, co-operation, encouragement.* Assistance rendered by acts, words of en- couragement, or support ; or presence, actual or constructive, to render assistance should it become necessary.^ See Decoy. Aider and abettor. One who assists an- other in the accomplishment of a common design or purpose. He must be aware of and consent to the design." Mere presence is not enough: something must be said or done sliowing consent to • the felonious pur- pose and contributing to its execution.' Aiders and abettors cannot be punished under a statute which creates a felony, unless the statute ap- plies to all who are guilty, and not alone to the person actually committing the offense. Thus under a statute for confining in the penitentiary " any woman who shall endeavor to conceal the birth of her bastard child," aiders and abettors cannot be punished." See Conspiracy; Felony; Principal, 5; Liquor, ad fin. 1 Simons v. Lovell, 7 Heisk. 515 (1872), Sneed, J. " Springer i>. Lewis, 22 Pa. 193 (1833), Woodward, J. ; 62 Me. 526; 64 Ga. 128. ' F. aider: L. adjutare iad-jnrare), to help. 'United States v. Gooding, 12 Wheat. 476 (1827), Story, J. » Rainford v. State, BO Ala. 108 (1877), Stone, J. » Adams V. State, 05 Ind. 674-T5 (1879), cases. Hawk, J. ; United States v. Snyder, 14 F. R. 556 (1882): 1 Sup. E. S. 358; 127 Mass. 17. ' Kemp V. Commonwealth, 80 Va. 450 (1885), cases. 8 Frey v. Commonwealth, 83 Ky. 190 (1885). See gen- erally 18 Cent. Law J. 446 (1884) — Canad. Law Times. AID 46 ALCOHOL Aid and comfort. In treason, any overt let which, if successful, would advance the nterests of a treasonable design, i Actual assistance is not essential.' The subject of a foreign nation who furnished mu- litions of war to the Confederates, or did an act Thich would have rendered him liable to punishment lor treason had he owed allegiance to the United 3tates, gave "aid and comfort" to the rebellion, within the meaning of the act of March 12, ISfS (12 3t. L. 830), and cannot recover the proceeds of prop- erty captured and paid into the treasury.'^ Municipal aid. Assistance rendered by i municipal or SLquasi municipal corporation, IS, a township or a county, toward some svork of internal improvement. Whence ltd bonds.^ A steam grist-mill may or may not be a work of 'haX nature.* The legislature of a State, unless restrained by the jrganic law, has the right to authorize a municipal iorporation to take stock in any work of internal im- provement,, to borrow money to pay for it, and to levy I tax to repay the loan. And this authority can be lonferred in such a manner that the object may be ittaiued with or without the sanction of a popular rote.^ See Bond, Municipal; Corporate, Purpose. 2. Cure, remedy, supply. Whence aid ind aider by vei-dict. See Verdict. Aid societies. See Benefit, Society. AIR. A qualified property may be had in the air or atmosphere." The private owner of property has a natural right to purity of air; and, formerly, a like right to its free passage. Easements relative thereto are; a right to pollute it to an extent justified by the customary busi- less of the locality ; and, to send noise through it.^ Ko man niay so use the air as to injure his neighbor. To poison or materially change it is a nuisance. ^ > [United States v. Greathouse, 4 Saw. 4S8 Field, J. » Young V. United States, 97 U. S. 68 (1877). " See 4 Neb. 455; 101 111. S85. * Township of Burlington v. Beasley, 94 U. S. 810 :i876); Osborne v. County of Adanjs, 106 id. 181 (1882). 'Thomson v. Lee County, 3 Wall. S.30 (1865); James s. Milwaukee, 16 id. 159 (1878); Kenicott v. The Super- visors, ib. 452 (1872); Railroad Co. i). County of Otoe, [6. 667 (1878); Town of Concord v. Savings Bank, 92 U. S. 625 (1875); Fairfield v. County of Gallatin, 100 id. 17 (1879); .Quincy v. Cooke, 107 lU 649 (1882); Ottawa v. 3arey, 108 id. 123 (1S83); Lewis d. City of Shreveport, :b. 286 (188-3); City of Savannah v. Kelly, ib. 184 (1888); Jrenda County Supervisors ti. Bragden, 112 id. 861 1884), cases. «3B1. Com. 14. ' 10 A. & E. 590; 4 DeG. & S. 315; 11 H. L. C. 650; 10 :!. B. 268; 19 W. E. 804; 4 Bing. N. C. 183. 8 Appeal of Penn. Lead Co., 96 Pa. 116, 123 (1880); 2 :.d. Ray. 1163. An easement in the air coming over another's land cannot be acquired in the United States.' Upon a conveyance, the right to air coming over other land of the grantor is implied as an easement of necessity." The right to pure air is an incident to land. "While in cities the causes of pollution cannot be as easily tracefl as in sparsely inhabited places, yet, when the source of a well-defined nuisance is definitely known, the courts will protect the rights of any person injured by it. Each case must rest upon its own merits. The rule by which a court will be guided is the maxim that every one must so use his own property as not to injure another. ^ See Health; Nuisance; OconpANcr; Property, Qualified; Utere, Sic, etc. A; J. See A, 3. ALASKA. See Territory, 2. Congress has power, in its discretion, to prohibit the importation, manufacture, and sale of intoxicating liquors in the district of Alaska, and to make the vio- lation of the prohibition a crime.* ALCOHOL. See Distiller; Liquor. An act of Congress approved May 20, 1887 (24 St. L. 69), the substance of which has been enacted in many of the States, provides — " Section 1. That the nature of alcoholic drinks and .narcotics, and special instruction as to their effects upon the human system, in connection with the several divisions of the subject of physiology and hygiene, shall be included in the branches of study taught in the common or publie schools, and in the military and naval schools, and shall be studied and taught as thoroughly and in the same manner as other like re- quired branches are in said schools, by the use of text- books in the hands of pupils where other branches are thus studied in said schools, and by all pupils in all said schools throughout the Territories, in the military and naval academies of the'United States, and in the District of Columbia, and in all Indian and colored schools in the Territories of the United States. " Sec. 2. That it shall be the duty of the proper offi- cers in control of any school described in the fore- going section to enforce the provisions of this act; and any such officer, school director, committee, su- perintendent, or teacher who shall refuse or neglect to comply with the requirements of this act, or shall neglect or fail to make proper provisions for the in- struction required and in the manner specified by the first section of this act, for all pupils in each and every school under his jurisdiction, shall be removed from office, and the vacancy filled as in other cases. "Sec. 3. That no certificate shall be granted to any person to teach in the public schools of the District of Columbia or Territories, after January 1. 1888, who has not passed a satisfactory examination in physiology and hygiene, with special reference to the nature and 'Randall v. Sanderson, 111 Mass. 119 (1872), oases; 64 N. Y. 489; 25 Tex. 238; 17 Am. L. Eeg. 440, note. "Washb. Easem. 618; 115 Mass. 204; 34 Md. 1. "Sellers v. Parvis, &c.X)o., 80 F. R. 166 (1886). * Nelson v. United States, 30 F. E. 112 (1887). ALDERMAN ALIEN the effects of alcoholic drinks and other nai'coticB upon the human system." AIiDEBMAIT.i Originally, a senior: a superior in wisdom or authority. A word of frequent occurrence among the Anglo- Saxons. All princes and rulers of provinces, all earls and barons, were aldermen in a general sense: but the word applied more particularly to certain chief officers. In modern times, an officer in municipal corporations who is a kind of "assessor" to the chief magistrate.^ In England he sat with the bishop at the trial of causes, applying the common, while the latter ex- pounded the ecclesiastical, law. Aldermen also sat as justices of assize, and exercised such powers of gov- ernment as were conferred by the charters of their cities or towns, in that character talcing (Jbgnizance of both civil and criminal matters. The term has desig- nated an offlcer having judicial as well as civil power, in England from a period beyond the Conquest. ^ In American cities "the aldermen" are a legislative body with limited judicial power, as, in matters of internal police ; in some cities they hold separate courts and exercise magis- terial authority.* In some cities their sole functions are those of a magistrate of a court not of record and of limited statutory jurisdiction in civil and criminal matters: corresponding, in these respects, to justices of the peace in boroughs and townships. See Council, 3; JosTicE, 2; Magistrate. AIiE. See Liquor. ALEATORY.-^ Depending upon an event the outcome of which is unknown ; resting upon a contingency. Applied, mainly, to annuities and insurance con- tracts. It is of the essence of all aleatory contracts that there should be risk on one side or on both sides.° AT.TA . See ALIUS. AT.TA S. L. 1. Otherwise ; also used for — Alias dictus. Otherwise called. Alias, in the expression " A, alias B," denotes that those names are different descriptions of the same per- son. The word was formerly employed in connection with A. S. ealderman, elder-man, elder: eald, old. » Brown's Law Diet. ; Spelman, Gloss. s Purdy v. People, 4 HHl, 409, 38r (1842), Walworth, Ch. See 1 Hume, Eng. 69. * [Bouvier's Law Diet.] ' Pronounced a'-le-a-to-ry. L. alea, a die: chance. •Moore v. Johnston, 8 La. An. 489 (1852); Henderson V. Stone, 6 Mart. 690 (1823); May, Ins. § 5. 'Kennedy v. People, 39 N. Y. 250-52 (1868); 3 Salk. 238; 4 Johns. 118. 3. At another time ; formerly ; before. An alias execution is a process issued, upon a scire facias or othei-wise, where the original execution has been returned, lost, or legally extinguished as a writ. It is another and different execution actually issued at a different time.' ALIBI. L. In another place ; elsewhere. The defense that at the time laid in the charge of an offense the accused was in another place. Being proven, the conclusion is " not guilty." The evidence on the part of the defendant must outweigh the testimony that he was at the place charged.'* ' The defense must cover the time when the offense is shown to have been committed, so , as to preclude the possibility of presence at the locus in quo. This impossibility is to be proven like any other fact." The court, without discrediting the defense in the particular case, may obseiwe generally that the de- fense is open to suspicion, because it offers opportu- nity and tenxptation to employ false witnesses, and because it may mislead through a mistake of honest witnesses as to the precise day and hour.* ALIElf.s 1, n. One born in a strange country under obedience to a strange prince, or out of the liegeance of the king." One born out of the king's dominion or al- legiance." A citizen or subject of a foreign state.^ In California a " non-resident alien " who may take by succession is one who is neither a citizen of the United States nor a resident of that State." Alienage; alienism. The legal status or condition of an alien. Alien born. A naturalized citizen or subject. Alien enemy. One who owes allegiance to an adverse belligerent.'" Alien Mend. A citizen or subject of a friendly power; one whose country is at peace with ours." By the common law a person born within the do- minion of the United States is a natural-born citizen 1 Eoberts v. Church, 17 Conn. 145 (1845). ' Commonwealth v. Webster, 5 Cush. 3J9, 323 (1850). sBriceland v. Commonwealth, 74 Pa. 469 (1873); State V. Northrup, 48 Iowa, 583 (1878); Peoples. O'Neil, 59 Cal. 259 (1881); Ware ti. State, 67 Qa. 349 (1881); Sav- age V. State, 18 Fla. 975 (1882); State v. Beaml, 84 La. An. 106 (1882). < See State v. Blunt, 69 Iowa, 469 (1882); Dawson v. State, 62 Miss. 243 (1884) ; 6 Crlm. Law Mag. 6.55-63 (1885), cases; 22 Am. Law Eev. 297-98 (1888), cases. •L. alienus, strange, a stranger. • [Coke, Litt. 128 6. ' 1 Bl. Cora. 373. 8 Milne v. Huber, 3 McLean, 219 (1843); 2 Kent, 50. • State V. Smith, 70 Cal. 156 (1886); Civil Code, S 672 101 Kent, 72. " [1 Bl. Com. 372. ALIENATE 48 ALIENATIO whatever the status of his parents. An exception is made of the children of ambassadors! i *, "An " alien born " may not purchase lands for his own use, for the king is thereupon entitled to them:' One reason is that if he could purchase, the nation might in time become subject to foreign influence. But he may acquire personalty, which is of a movable natiu-e; besides that, trade demands this indulgence. As a consequence he may maintain actions concerning personalty, and dispose of it by will. An "alien enemy," however, has no rights unless by the sover- eign's special favor.* By the common law an alien may take lands by purchase, though not by descent; in other words, while he cannot talre by the act of the law he may take by the act of the party. But he has no capacity to AoZc2'lands, and they may be seized into the hands of the sovereign. Until so seized, the alien has com- plete dominion over them. In this regard alien friends and alien enemies are alike. The title is devested by offlce-found,' 3. v. Disabilities as to holding realty have been removed in the States. See Land, Public. At common law an alien is protected in his person, as to such property as he may own, in his relative rights, and in his reputation. In return for protection he is required to pay taxes. He cannot become Pres- ident, nor, in some States, governor. Seven years after he has been naturalized he may be elected to Congress. Unnaturalized, he could not be adjudged a bankrupt, he cannot take out a copyright, nor can he exercise any political right. See Patent, S; Trade-mark. See further Allegiance; Citizen; Denizen; Immi- gration; Naturalize. Alien and sedition laws. See Sedition. 2, V. To transfer; to alienate, q. v. Alienable. Admitting of transfer from one person to another. Inalienable, less frequently unalienable, not Subject to transfer or devestment. " Inalienable rights " are such rights as cannot be bartered, given or taken away except in punishment of crime.^ An '' unalienable right " is one which cannot be sur- rendered to government or society, because no equiv- alent can he received for it, and one which neither the government nor society can take away, because they can give no equivalent. Of such is the right of conscience.' ALIENATE. See Alienatio. To transfer jjroperty to another ; to make a thing another man's. ' Town of New Hartford v. Town of Canaan, 54 Conn. 40-45 (1886), cases. " 1 Bl. Com. 373. 3 Fairfax v. Hunter, 7 Cranoh, 619-21 (1813), Story, J. ; Conrad v. Waples, 96 U. S. 289-90 (1877); PhiUips v. Moore, 100 id. 212 (1879); Hauenstein v. Lynham, ib. 484 (1879). « Butchers' Union Co. v. Crescent City Co., Ill U. S. 756 (1884), Field, J. 6 Hale V. Everett, 53 N. H. 60 (1868). In common law to alienate realty is volun- tarily to part with ownership in it, by bar- gain and sale, conveyance, gift, or will.i The right, originally, was a right in the owner of realty to divert it from his heir.' To transfer or convey a title. 2 An entry to foreclose does not do this.* Alienee. He to whom property — realty, is transferred. Alienor. He by whom realty is transferred. Alienation. Any method whereby an estate is voluntarily resigned by one man and accepted by another, whether that be effected by sale], gift, marriage, settlement, devise, or other transmission of property by the mutual consent of the parties.^ An act whereby one man transfers the property and possession of lands, tenements, or other things, to another. * A transfer short of a conveyance of the title is not an alienation of an estate.' Absolute alienation. A transfer of realty without condition or qualification. Conditional alienation. A transfer of realty made to rest upon some event yet to happen, or upon some act yet to be done; as, a covenant to convey an estate. See Con-'' DITION. Blackstone describes four modes of alienation or transfer of title to real estate which he calls " com- mon assurances: " by matter «n pais or deed; by mat- ter of record in the courts; by special custom; by devise.' See Conveyance, 2; Mortgage; Transfer. ALIENATIO. L. Transfer, alienation. From alienare, to make to be the property of an- other: aliemi^, another; Alienatio rei praefertur juri aceres- cendi. The alienation of a thing is preferred in law to its accumulation. Alienation, rather than the accumulation, of property is favored.' Limitations upon alienation, imposed by public poUcy or by general statutes, are designed to prevent perpetuities and accumulations of realty in corpora- ' [Burbank v. Rockingham Mut. Fire Ins. Co. 24 N. H. 558 (1862). See also Lane v. Maine Mut. Fire Ins Co., la Me. 48 (1835); 13 E. I. 622. ' Huntress v. Place, 137 Mass. 409 (1884). 3 2 Bl. Com. 2S7. * Boyd V. Cudderback, 31 111. 119 (1863); 1 N. T. 48. ' Masters v. Madison County Ins. Co., 11 Barb 680 629 (1853). " United States v. Schurz, 102 U. S. 397 (1880)- 2 Bl Com. 204. ' 'See 2 Bl. Com. 175, 288; 3 Kent, 507; 4 fd. 131 ui- 59Pa. 342; 76Va. 144. ' ' ALIEN! 49 ALL tions and ecclesiastical bodies, and to protect cred- itors against fraud by debtors; But there is no reason why a person who is solvent should not make another, who parts with nothing, an object of bounty, thereby protecting him from the ills of life, the vicissitudes of fortune, improvidence, etc.' See AooDMnLATioN; Tkdst, 1, ALIEJJl. See under Alius. ALIKE. See Equal; Equivalent. ALIMONY.s Support; provision; allow- ance for necessaries or maintenance. 1. An allowance made to a woman for her support out of her husband's estate, after a divorce a mensa et tlioroj Applicable to all allowances, whether annual or in gross, made to a wife upon a decree of divorce — either from bed and board or from the bond of matrimony.* Alimony pendente lite or temporary. An allowance at the institution of the suit to pay the expenses thereof and to supply the wife with necessaries. Permanent ali- mony. An allowance for future mainte- nance at the time a divorce is decreed. Originally allowed because the wife was without other means of support or of obtaining the money necessary to defray her expenses in the suit, the hus- band owning everything. Where she has sufittoient separate property that reason does not exist, s Not the separate property of the wife, but a portion of the husband's estate for her subsistence. At her death arrears belong to the husband, subject to the payment of her debts.* The amount, which is largely discretionary with the court, is usually proportioned to the rank of the par- ties, and is, ordinarily, about one-third of their joint income.^ The allowance is based upon the existence of the marriage relation, the ability of the husband, and the circumstances of the wife.* To entitle the wife to permanent aJimony there must have been a valid marriage; by the common law the marital relation must continue to exist -^ a rule generally changed by statute; the separation must be by decree; and she must not be the guilty party — except in a few of the States. An independ- ent suit for an allowance is not maintainable. In a few States a gross simi is given. The right ceases upon re-cohabitation. A wife under sentence of separation from bed and » Nichols V. Eaton, 91 V. S. 725 (1876). As to re- straints in wills, see 18 Cent. Law J. 307-8 (1884), cases. ' L. alimonia: alere, to nourish, support, supply. 3 1 Bl. Com. 441; 1 Kent, 128; 36 Ga. 319; 18 Bl. 40; 93 N. C. 480. 4 Burroughs v. Purple, 107 Mass. 432 (1871), oases. Gray, J. 'Westerfleld v. Westerfleld, 36 N. J. E. 197 (1882); ColUns V. Collins, 80 N. Y. 1, 11-12 (1880). « Holbrook v. Comstock, 16 Gray, 110 (1860), cases. ' 1 Bl. Com. 441-42; Bacon v. Bacon, 43 Wis. 203 (1877). » Daniels v. Daniela, 9 Col. 160-51 (1886), cases. (4) board is entitled to make a domicil for herself; and, by her next friend, she may sue her husband for the alimony decreed.' Consult the statutes and decisions of each State. See DjvoROB. 2. In Louisiana the necessary expenses of a municipality ; also, funds therefor. The duty of levying a tax to pay registered judg- ments is subordinate to the duty of first providing for " the necessary alimony or support of the city."" " The duty of providing for the alimony of the city is lodged in the discretion of the common council, in the legal exercise of which tho com-ts may not interfere." ' ALIO; ALITEE. See under Alius. ALIUD. See Conceal. 5. ALIUNDE. See under Alius. ALIUS. L. Another, other; different. Plural, alii. Alia enormia. Other wrongs. SeeENOEr MIA ; Inter, Alia, Alieni generis. Of another kind. Alieni juris. Under another's right or authority. See Jus, Sui, etc. Alio intuitu. Under another aspect. Alios. Other persons. Whence et al., and et als., q. v. See also A, 3. A liter. In another manner ; otherwise -r- held or decided. Introduces an exception to a rule or general prin- ciple. Aliunde. From another — person, place, or source. Designates evidence derived from an extrinsic source; as, testimony offered to contradict, vary, or explain the temjs of a written instrument, or to ex- plain an ambiguity therein.* Compare Dehors. See Parol, 2, Agreement. ALIVE. See Death. When an animal is stolen " alive " it is not neces- sary, in the indictment, to state the fact: the law pre- sumes it; but when dead, that fact must be stated.^ ALL. Compare A, 4 ; Every ; Omnis. May mean "each " or "every one."' In the acts of legislatures, as in common parlance, "all, "being a general rather than a imiversal term, i^ to be understood in one sense or the other according to the demands of sopnd reason.' I Barber v. Bafber, 21 How. 590-98 (1868), cases. As to right to, afteij divorcp, see 24 Ahi. I (1885), cases; and generalto- 26 id. 83-37 (1887), cases. s Marchand v. New Orltos, 37 La. in. 18 (1886). « United States v. New Orleans, 81 F. E. 637 (1887). « 1 Greenl. Ev. § 291. / / 'KoUenberger v. Petiple, 9Col. 286 (1886); 1 Wha^ Cr. L. § 369. / ' « Sherburne v. Sj&sho, 143 Mass. 44? (1887); Towle v. Delano, 144 id. lOi (1887). 'KiefEer v. Ehler, 18 Pa. 391 (1852); Stone v. Elliott, 11 Ohio St. 858 ( ' ALLEGAEE 50 ALLEGIANCE All cases. See Case, 1. All faults. See Fault, 3. All-fours. Entirely alike. Cases or decisions are said to be or to run " upon all- fours" when alike in such circumstances as affect their determiiiation. The expression is metaphorical — from the running of mated quadrupeds. All rights reserved. See Reserve, 2. ALLEGABE. L. To lay before one : to relate, allege. Allegans eontraria non est audien- dus. He who alleges contradictory things is not to be listened to. "A man shall not blow hot and cold." In Scotch phrase, no man may "approbate and reprobate.'" See Estoppel. Allegans turpitudinem. See Tuepi- TUDB, Allegans, etc. Allegata, et probata. Allegations and proofs. A rule of evidence is, that the allegata and thepi-o- bata must agree: the proofs must correspond with the averments.'' See Allegation. ALLEGATIOM". Statement of what one can prove-, positive assertion; an averment in pleading. See Allegaee. Alleged, Asserted; claimed, claimed to be; charged: as, an alleged — fact, forgery, offense, deed, will, signature, execution. Material allegation. Such an averment in the' pleadings of an opponent as requires answer — by explanation or denial. Opposed, immaterial allegation. A material allegation is one which is essen- tial to the claim or defense, which could not be stricken from the pleading without leaving it insufficient. 3 Defensive or responsive allegation. An averment by way of defense. Eejoining allegation. Complainant's reply to a de- fensive allegation.^ The rule is that the proof must correspond with the allegations in a declaration (or bill), but the re- quirement is fulfilled if the substance of the declara- tion is proved. The purpose of the rule is that the opposite party may be fah-ly apprised of the specific nature of the questions involved in the Issue. For- merly the rule was applied with great strictness, but the modern decisions are more liberal and reasonable. The rule established by recent statutes and de- ' See Broom, Max. 169, 294; 60 Cal. 600; 10 Mass. 168; 50 Mich. 126; 70 Pa. 274; 61 Wis. 261; 62 id. 67, 326. = 10 Pet. 209; 2 Sumn. 209; Story, Eq. PI. § 257; 71 Ala. 80. ■ [Ehemke v. CUnton, 2 Utah, 236 0879): Civil Pract. Act, § 66; Lusk v. Perkins, 48 Ark. 247 * See 3 Bl. Com. 100. cisions is that no vaiianeq between the allegation of a pleading and the proofs offered to sustain It sha; be deemed "material" unless of a character to mif lead the opposite party in maintaining his action or d'( f ense on the merits. Irrespective of statutes, howevei no variance ought ever to be regarded as materia where the allegation and proof substantially corre spond.i See Answer, 3; Description, 4; Redundancy; Said Varunoe. ALLEGHENY CITY. See Common, 3 ALLEGIANCE.2 The tie, or ligamen which binds the subject to the king in returi for that protection which the king aflfordi the subject,^ When acknowledgment was made to the absoluti superior, who was vassal to no man, it was in earlj times no longer called the oath of fealty (g. i;.), bm the oath of allegiance: therein the tenant swore t( bear faith to his sovereign lord, in opposition to al men, without any saving or exception. . . There ii an implied, original, and virtual allegiance owing from every subject to his sovereign, antecedently tc any express promise. ^ Acquired allegiance. Such allegiance as is due from a naturalized citizen.* Local allegiance. Such allegiance as is due from an alien, or stranger born, as long as he continues within the king's dominions and protection.* Natural allegiance. Such allegiance as is due from all men born within the king's dominions, immediately upon their birth, Also csWbA absolute or permanent aWegiaace.' Allegiance is nothing more than the tie or duty oi obedience of a subject to the sovereign whose protec tion he is imder. Allegiance by birth arises from being born within the dominions and under the proteO' tion of a particular sovereign. . A person born on the pcean is a subject of the prince to whom his parents owe allegiance. The child of an ambassadoi is a subject of the prince whom he represents, al though bom imder the actual protection and in the dominions of a foreign prince.^ Allegiance is the obligation of fidelity and obedience which the individual owes to the government undei which he lives, or to his sovereign in return for the protection he receives. . It may be an absolute and permanent obligation, or a qualified and tempo rary one. The citizen or subject owes an absolute anc permanent allegiance to his government or sovereign, or, at least, until, by some open and distinct act, he re nounces it and becomes a citizen or subject of anothei i-Nash V. Towne, 5 Wall. 698-99 (1866), Clifford, J. Brown v. Pierce, 7 id. 211 (1868). 'F. a-ligance, homage: L. ad-ligare, to tie, bind. 3 1 Bl. Com. 366-69; 20 Johns., 191-93. «1 Bl. Com. 369-70; 44 Pa. 501. 'Inglis V. Trustees of Sailors Snug Harbor, 8 Pet 155 (1830), Story, J.; Shanks v. Dupont, ib. 242 (1830). ALLEY 51 ALLOW government or sovereign. " An alien whilst domiciled in tlie country owes a local and temporary allegiance, which continues dm'ing the period of his residence.* At common law natural sillegiance could not be re- nounced except by permission of the sovereign to whom it was due.' This was changed by the act of Congress of July S7, 1868,= and by statute of 33 Vict. i;. 14, kay 10, 1870. Whether natural allegiance revives upon return of the naturalized citizen to his native country is not settled.* See ExPATKLiTioN; Indian; Naturalization; Trea- son: War. ALLEY. See Road; Wat. When not qualified by " private," is conventionally understood, in its relation to towns and cities, to mean a narrow street in common use.^ ALLISION. See Collision. AT.T. DfiATTTR. L. It is allowed. The name of a writ permitting a thing re- quested. As, an order or proceeding — to remove an indict- ment, to stay execution of a sentence, that special bail be furnished, that a quo warranto issue, that a bill of costs be referred to an auditor. ITon allocatur. It is not allowed. Special allooatur. The allowance of a writ of error required in particular cases. AT.T. OT) TAT. .6 From the low Latin allo- dium: every man's own land, which he pos- sesses in his own right, without owing any rent or service to a superior — property, in the highest degree. Opposed, feodum, a fee.' Wholly independent, and held of no supe- rior. ' Held in free and absolute ownership. ^ " All lands . . are declared to be allodial, and 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- ship," as contradistinguished from feudal tenures, the prohibition of which, with their servitudes and attend- ant hindrances to free and ready transfer of realty, constituted the chief object of the provision.'" See Fee, 1 (1); Tenure, 1. I Carlisle w. United States, 16 Wall. 154 (1872), FiHld, J. »1 Bl. Com. 369; 3 Kent, 449; 8 Op. Att.-Gen. 139; 9 id. 356. "B. S. §1999. » Howard v. Ingei'SoU, 13 How. 416-17 (1851). ALS 53 ALTER AIiS. See Altos, Alios. AIjSO. In wills, most frequently points out the beginning of a new devise or be- quest. Imports no more than "item," and may mean the same as " moreover," but not the same as "in like manner."! Compare Likewise. AIiTEE.2 To make a thing diflerent from what it was; as, by cutting out a brand- mark.' The word implies "another." A thing which ceased to exist can in no proper sense be said to be " altered. " If altei'ed it has merely changed its form or nature, but still has an existence. Thus, in forgery making may be by an original fabrication or by merely chang- ing a thing already made into another thing. An altered note is still a note.* To " alter judicial districts " means to change them. It is not a violation of usage to speak of the increasing or diminishing of a given number as an alteration or change in the number.' Alteration. 1. A change or substitution of one thing for another : as, the alteration of a way.6 See Addition, 1. 2. An act done upon an instrument by which its meaning or language is changed. If what is written or erased has no tend- ency to produce this result or to mislead it is not an "alteration." The term applies to the act of the party entitled under the in- strument and imports some fraud or im- proper design to change its effect. The act of a stranger is a mere "spoliation" or mu- tilation of the instrument, and does not change its legal operation as long as the original writing remains legible, and, if it be a deed, any trace of the seal remains.' Material alteration. Such alteration as changes the language or meaning of the con- tract in a material particular. Immaterial alteration. Such merely verbal change as does hot vary the contract in an essential particular.8 Suspicioiis -alteration. Such change, ap- parent upon inspection, as would lead a man of ordinary caution to infer that the instru- > Evans v. Knorr, 4 Rawle, 68-70 (1883), cases; 22 ni. 366., = L. L. alterare; L. alter, other, another. ' Smith V. Brown, 1 Wend. 236 (1838). » Haynes v. State, 15 Ohio St. 467 (1804). 6 People V. Sassovich, 29 Cal. 4S4 (186G). » Johnson v. Wyman, 9 Gray, 189 (1837), Shaw, C. J. ^[1 Greenl. Ev. §566. 8 See Woodworth v. Bank of America, 19 Johns. 891 (1821): 10 Am. Deo. 267-73 (1879), cases. ment had been illegally tampered with; or such apparent change in the language as would deter such person from accepting the instrument as reliable evidence of indebted- ness or of an oblfgation. That is a "material alteration'' which causes the instrument to speak a language different in legal effect from what it orig- inally spoke ; i or which gives the instrument a different legal effect.^ A material alteration made without consent after execution avoids the instrument; but not so as to words which the law would supply. The question of materiality is for the coiu't. If attested as made before execution does not detract from credit; nor, if it is against the interest of the holder. If suspicious upon its face, the law presumes nothing, but leaves questions of time, person, and intent, to the decision of a jury. If immaterial, presumed to have been made before execution. But some authorities require ex- planation before any altered instrument can be ad- mitted in evidencp.^ It will not be presumed that a party would sign a, document with material clauses interlined or in the margin. The rule is strict as to negotiables. The burden of explaining alterations in ancient writings is not imposed when they are taken from their proper repository. Formal blanks may always be filled.* The material alteration of a written contract by a party to it discharges a party who does not authorize or consent to the alteration, becaiise it destroys the identity of the contract and substitutes a different agreement. Any change which alters the contract, whether increasing or diminishing liability, is " mate- rial." ' Some authorities hold that where there are no par- ticular circumstances of suspicion the presumption of law is that the alteration was made contempora- neously with the execution, giving as a reason that a deed cannot be altered after its execution without fraud, which is never assumed without proof; other authorities hold the presumption to be the other way, and require an explanation of the alteration before the deed can be admitted in evidence.' In the absence of proof the presumption is that a correction by erasure in a deed (a patent to land) was made before execution. This doctrine rests upon principle. " A deed cannot be altered after it is exe- cuted without fraud or wrong; and the presumption is against fraud or wrong.'' The cases are not uniform in this country, but the most stringent ones leave the question to the jury.' 1 1 Greenl. Ev. § 505; Baxt. 402. 2Eckert v. Piokel, 59 Iowa, 547-48 (1882); 51 id. 675; 30 Minn. 154; 76 Va. 545, 544; 18 Ot. 01. 565, 3 1 Greenl. Ev. §§ 564-08; 01 Ala. 269; 2 Bl. Com. 303. « 1 Whart. Ev. §§ 621-33, ?32, cases. 'Mersraan v. Werges, 112 U. S. 141 (1884), cases, Gray, J. ; Angle v. Northwestern Mut. Life Ins. Co., 92 id. 342(1875). • Malarin v. United States, 1 Wall. 388 (1863), Field, J. ' Little V. Herndon, 10 Wall. 81 (1869), cases, Nel ALTERNATIVE 54 AMBIGUITY A voluntary alteration of any instrument under seal, in a material part, to the prejudice of the obligor or maker, avoids it — Unless done with the assent of the parties affected. Such act differs from spoliation by a stranger, or accidental alfteration by mistake, in which case the instrument retains its effect. In re- spect to commercial paper the rule is more stringenjb, the la'W casting on the holder the burden of disproving any apparent material alteration on the face of the paper. The ground of the rule is public policy to in- sure the protection of the instrument from fraud and substitution. The purpose is to take away the motive for alteration by forfeiting the instrument on discovery of the fraud. 1 See Forge, 2; Note, 2, Raised; Katifioation. AIiTEENATIVE.2 Offering a choice between two acts, courses, or things : as, an alternative— covenant, obligation, judgment. An alternative writ commands the respondent to do a certain, thing or show cause why he should not do it: as, an altei-native TnandamiLS,^ q. v. Alternative pleadings are ill; and alternative judg- ments, decrees, and sentences are, as a rule, invalid. See Or, 2; Relief, 3. ALWAYS. See Provided. AM, Amended, amendment; American. AMALGAMATE. See Consolidate, Associations. AMBASSADOR. See Minister, 3. AMBIGUITAS. See Ambiguity. AMBIGUITY.^ The eflfeot of words that have either no definite sense or a double sense.^ Ambiguity or duplicity are predlcable' only of lan- guage as to which it is needful to make a choice of readings; while "indistinctness," "obscurity," and " uncei'tainty " incliide these, and also cases of lan- guage devoid of sense or which does not present any meaning with clearness or precision. The case of a blank left for a name should be deemed an uncer- tainty." Patent amtaigmty. Such ambiguity as appears upon the face of the writing itself. Latent ambiguity. Where a writing is perfect and intelligible upon its face, but, from some circumstance admitted in proof, sou, J., quoting Campbell, C. J., in Doe v. Catomore, 71 E. C, L. 746 (ISai). I Neft V. Homer, 63 Pa. 330-^1 (1869), cases. See also Batchelder v. White, 80 Va. 108 (1885), cases; Fuller v. Grfeen, 64 Wis. 165 (1885), cases; State v. Churchill, 48 Ark. 437-40 (1880), cases; 3 Daniel, Neg. Inst. K 1373-75, cases; 30 Alb. Law J. 245-49 (1884), cases; Bishop, Contr. §§ 745-76, cases. ^ L. alt&r, other. = [3 Bl. Com. 373, 111. *L. ambiguus, doubtful. ' [Ellmaker v. Bllmaker, 4 Watts, 90 (1835), Gibson, C. J. ' Abbott's Law DictT la doubt arises as to the applicability ■of the language to a particular person or thing.i AmMguitas patens is that which appears to be ambiguous upon the instrument. Am- Mguitas tatens is that which seems certain and without ambiguity for anything that appears upon the instrument, but there is some collateral matter out of the deed that breeds the ambiguity. ^ A " latent ambiguity " is where you show that words apply equally to two different things or subject-matters. 3 Evidence is then admissible to show which thing or subject was intended.^ Difficulty in applying the descriptive portion of a deed to the external object usually arises from a latent ambiguity, which, having its origin in, is to be solved by, parol evidence.* ' A "patent ambiguity" means an inherent ambiguity which cannot be removed either by the ordinary i-ules of legal construction or by the application of extrinsic and explan- atory evidence, showing that impressions pHma /acie unintelligible are yet capable of conveying a certain, definite meaning.^ The court has to do with cases of patent ambiguity; the jury with a case of latent ambiguity. When the intention cannot be ascertained the defect is incurable. Ambiguitas verborum latens verificatione supple- . twr; nam guod ex facto oritur ambiguum verifica- tione facti tollitur. A latent ambiguity of words is supplied by evidence; for whatever arises ambiguous from a fact [extrinsic] may be removed by evidence of the fact.' Quotles in verbis nulla est ambiguitas, ibi nulla expositio contra verba flenda est. As long as in the words there is no ambiguity, then no interpretation contrary to the words is to be made.' A cardinal canon of interpretation, both of deeds and of statutes. The words, the context, an^ the sub- jeotmatter, are to be considered equally with the effect and consequences or the spirit and reason. If not before them." 1 Stokeley v. Gordon, 8 Md. 505-9 (1855). .2 [Lord Bacon, Max. Eeg. 28 (26), Law Tracts, 99-100. Approved, Lathrop v. Blake, 23 N. H. 60 (1851); Ly- coming Mut. Ins. Co. V. Sailer, 67 Pa. 112 (1870); Deery V. Cray, 10 Wall. 270 (1869); Hawkins v. Garland, 76 Va. 152 (1882). ' See 1 Greeul. Ev. §§ 297-300; 1 Whart Ev. §§ 966-57, 961, 1008. » Smith V. Jeff ryes, 15 M. & W. •662 (1846), Alderson, B. ; Webster v. Paul, 10 Ohio St. 534 (1860); 40 Ark. 241.' *Eeed v. Proprietors of Locks, 8 How. 290 (1850)- Moran v. Pi-ather, 23 Wall, 601 (1874). 6 Brown v. Guioe, 46 Miss. 302 (1872), Peyton, C. J. « Bacon, Max. 23; Broom, Max. 608; 2 Kent, 557; 13 Pet. 97; 100 Mass. 60; 8 Johns. 90; 67 Pa. 112. ' Broom, Max. 617; 2 Bl. C(jm. 379; 8 Mass. 201. 8 Dame's Appeal,, 62 Pa. 420 (1869), Sharswood J • 66 id. 136, 251; 84 La. An. 227, 957. AMBULATORY 55 AMENDMENT A latent ambiguity in a will, which may be removed by extrinsic evidence, may arise: (1) When the will names a pereon as the object ot a gift, or a thing as the subject of it, and there are two pei*sons or things that answer such name or description ; or (3) when the will contains a misdescription of the object or subject, 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 careful study of the testator's language, applied to the circumstances by which he was surrounded, dis- closes an inadvertency or mistake in a description of a person or thing which can be corrected without add- ing to his language — thus making a different will, — the correction should be made.i One Gilmer, after making bequests to two Presby- terian churches in Illinois, and other bequests, left the rest of his estate " to be divided equally between the board of foreign missions and the board of home missions." Held, that there was a latent ambiguity respecting the object of the residuary gift, but that the ambiguity could be removed by extrinsic evidence ; that the evidence introduced, taken in connection with the bequests to the Presbyterian churches, showed that the testator meant the Board of Foreign Missions and the Board of Home Missions of the Presbyterian Church of tlie United States ot America, of which he was a member and an ofSoer, and not any board of missions controlled by the Baptist, Methodist, Episco- palian, or other denomination.' AMBUIiATOB.T.3 1. Moving about from one place to another ; not held in any one place ; not stationary. The court of common pleas while it followed the king's household was said to be ambulatory. 3. Not fixed in legal character; not yet settled past alteration ; revocable. In this category is a sheriff's return until filed; and a will, to the last moment of testamentary ration- ality. Voluntas testatoris est ambulatoria usque ad mor- tem. The will of a testator is ambulatory (alterable, revocable) up to his death.* AMBUSH. The act of attacking an enemy unexpectedly from a concealed sta- tion. A concealed station where troops or enemies lie in wait to attack by surprise ; an ambuscade. Troops posted in a concealed > Patch V. White, 117 U. S. 217-19 (1888), cases, Brad- ley, J. See also Senger v. Senger's Executor, 81 Va. 694-97 (1886), cases; Webster v. Morris, 66 Wis. .397 (1886), cases ; 64 id. 355. a Gilmer v. Stone, 120 U. S. 586, 588-90 (1887), cases, Harlan, J. In Hannen v. Moulton, 23 F. R. 6-11 (1886), a devise of 1,500 acres of land was held defective on accotmt of a latent ambiguity. See generally 5 Am. Law Reg. 140-43 (1866), cases. s Am'bulatory. L. ambulare, to walk or move about. 4 Coke, Litt. 112 6; 2 Bl. Com. 603; 4 Ves. 210; 10 id. 379; "148 ISJass. 221; 1 Story, Eq. § 606 a. place, for attacking by surprise. ' See Dis- guise. AMENDMENT.2 1. Correction of a fault ; the curing of a defect ; alteration for the better ; improvement. Whence amenda- tory. " Amend," in its most comprehensive sense, means to better. . . When a defendant is allowed to withdraw one plea or answer and to substitute another which rightly sets out his defense, it is a change for the better — an " amendment." ^ Also, the writing or instrument made or proposed, which embodies the improvement. Used of the correction, proposed or actu- ally made : of an error in the pleadings or proceedings in a pending cause ; of changes in bills, statutes, and ordinances, by law- makers; of altei'ations in charters and by- laws : of changes in constitutions. Material amendment. In pleading, such change in the substance of a party's case as destroys its former identity and oc- casions surprise {q. v.) in his adversary. At common law, proceedings being in fieri till judg- ment, the coin'ts allow amendments up to that point. After judgment enrolled, no amendment is permitted at a subsequent term; for only during the first term is the record in the breast of the court.* See further Record, 2. An indictment, being a finding upon the- oaths of the grand jury, can be amended only by their consent. See Indictment. Allowipg amendments is incidental to the exercise of all judicial power, and indispensable to the ends of justice. Usually to permit or refuse any particular amendment rests in the discretion of the court; the result is not assignable for error.' An appellate court wUl regard as made such amend- ment to a verdict as should have been made in the court below." A bill in equity may be amended, when found de- fective in parties, in prayers for relief, or in the omis- sion or mistake ot some fact or circumstance con- nected with the substance of the case, but yet not forming the substance itself, or for putting in new matter to meet the allegations m the answer. That is to say, by amendment the plaintiff may not make a new bill.' " Dale County v. Gunter, 46 Ala. 142 (1871), Peck, C. J. 2 F. amender: L. emendare, to free from fault. ' [Diamond v. Williamsburg Ins. Co., 4 Daly, 500 (1873), Daly, C. J. ■1 3 31. Com. 407-8. »Tilton V. Cofield, 93 U. S. 166 (1876); International Bank-u. Sherman, 101 id. 406 (1879); Tiernan v. Wood- ruff, 5 McLean, 138 (1860), cases; 11 F. R. 781; 13 id. 663-55, cases; 132 Mass. 194. » Shaw V. North Penn. R. Co., 101 U. S. 567 (1879). ' Shields v. Barrow, 17 How. 144 (1854); Story, Eq. PI. I 884. AMENDMENT 56 AMENDS In reference to amendments of equity pleadings generally, the courts have found it impracticable to lay down a rule for all cases. Their allowance, at every stage, must rest in discretion — a discretion depending largely upon the special circumstances of each case. But the ends of justice should never be sacrificed to mere form, nor by a too rigid adherence to technical rules of practice. Where the application comes after the litigation has continued some time, or when granting it would cause serious inconvenience or expense to the opposite side, great caution should be exercised. Where it would materially change the very substance of the case made by the bill, and to which the parties have directed their proofs, an amendment should rarely, if ever,be"permitted.^ -See JEOFAIL. 3. Amendments to constitutions are made in pursuance of directions contained in the instruments themselves. ^ What here follows relates, as will be seen, to the Constitution of the United States. " The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legis- latures of two thirds of the several States, shall call a Convention for proposing ^.mendments, which, in either Case, shall be vahd to all Intents and Purposes, as Part of this Constitution, when ratified by the Leg- islatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Eatiflcation may be proposed by the Congress; Provided . that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." ' The President's approval of a proposed amendment is not necessary.* The amendments themselves thus far made (May, 1888) are designated as " Articles in Addition to, and Amendment of the Constitution," etc., and are num- bered " Articles I, II," etc., up to XVt Upward of one himdred amendments were pro- posed by the minorities In the several conventions that adopted the Constitution. The First Congress referred them to a committee of one member from each State. Twelve articles were agreed to for submission to the States. The first two, relating to the number and the pay of the members of the lower House, were re- jected, and the remaining ten ratified, December IB, 1791.0 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 for carrying into Execution" other powers. . . They 1 Hardin v. Boyd, 113 U. S. 761 (1885), Harlan, J. Ap- proved, Richmond v. Irons, 181 id. 47, 46 (1887); Cou- brough V. Adams, 70 Cal. 378 (1886); 17 id. 235. 2 See Prohibitory Amendment Cases, 24 Kan. 709-12 (1881); Be Constitutional Convention, 14 K.I. 651(1883). 3 Constitution, Art. V *Hollingsworth v. Virginia, 3 Dall. 378 (1798). » See 1 Story, Const. |§ 301-5; 1 McMaster, Hist. Peop. U. S. 501, 555. While the proposed Constitution was before the people for adoption, the explanation that it tend to show that in the judgment of those wl adopted the Constitution there were powers creatf by it which grew out of the aggregate of powers co ferred upon the government, or out of the sovereignl instituted. ' They left ,the authority of the States where the found it, and added noticing to the already existk powei-s of the United States.^ The feeling that the Constitution as proposed fc ratification contained no formal Bill of Rights led 1 the adoption of the ten amendments. All are designe to operate as restraints upon the general Governmen most of them are for the protection of the prival rights of persons and property. Notwithstanding th reproach, however, there are many provisions in th original instrument of this latter character.* The provisions of the fifteen amendments will t found quoted and commented upon under the follov ing titles: 1 — Assembly; Liberty, 1, Of speech. Of the presi Religion. II, m — Militia. rv — Search, Warrant. V — Criminate; Indictment; Jeopardy; Process, : Due, etc.; Take, 8. VI — Crime. VII — Jury, Trial by. . Vin — Bail, 2; Fine, 8; Punishment, Cruel, etc. IX, X — CoNSTrruTioN, p. 238; Power, 3. XI --Suit, p. 990, XII — Electors, Pi-esidential. XIH, XIV, XV — Citizen. And see generally Constitdtiok; Expressio; Got ernment; State, 3 (2). AMBIIDS. Reparation ; compensation f o wrong done ; satisfaction. By 84 Geo. H (1751), c. 24, re-enacted in severs States, a tender of amends to the party injured by mistake made by a magistrate, acting as such, is a ba to a contemplated action.* Any sum may be tendered, because, in torts, th standard of damages is uncertain and the party is a likely to recover at trial less than more than the sui tendered. 5 In some States a like tender may be made by a mil ister or a magistrate who marries a minor without th consent of the parent or guardian; also, forinvolui tary trespasses committed by constables, revenu officers, and perhaps some other ministerial ofiacers. See Compensation, 2-4; Distress; Tender, 2. did not need a BiU of Bights— the Government bein " limited," having only such powers as were speciall granted to it — " satisfied not one State." 2 Bancrof Const. 241-42, et seq. ' Legal Tender Cases, 12 Wall. 535 (1870), Strong, ; s United States v. Cruikshank, 92 U. S. 528 (1875 Twitchell v. Pennsylvania, 7 Wall. 325-37 (1868), casei s Kring v. Missouri, 107 U. S. 286 (1882), Miller, J. Se also Spies v. Illinois (Anarchists' Case), 123 id. IE (1887), cases; 8 Saw. 262. ' ■> 3 Bl. Com. 16. » 3 Shars. Bl. Com. 16; 3 Watts, 317; 5 S. & E. 209, 51 » See Arch. Pract. 1378, 1174, 1273^ AMERCE 57 AMOTION AMEBCE.i To be amerced, or d mercie, is to be at the king's mercy with respect to a fine to be imposed. Later, simply to be fined. Whence amercement. Before the jury deliver their verdict the plaintiff is to appear in court, by himself or attorney, to answer the amercement to which he is liable in case he fails in his suit, as a punishment for his false claim. The amercement is disused, but the form remains. It was an arbitrary amount, unliquidated; u "fine" was a fixed sum imposed upon one not a party for some fault or misconduct." Now used of a mulct or penalty imposed by a court upon its owh ofiicers for neglect of duty. In several States, also, amerce- ment is the remedy against a sheriff for fail- ing to levy an execution or make return of proceeds of a sale according to statute.' AMERICA. See Discovery, 1 ; State, 3 (3), p. 966. American. In the general mind now de- scribes a descendant of Europeans, born in America, and is especially applied to an in- habitant of the United States.* AMI. F. A friend. Also spelled amy. Compare Amicus. Alien ami. An alien friend. See Alien, 1. Prochein ami. Next friend. One admitted by a court to prosecute for an infant, because otherwise the infant might be prejudiced by the refusal or neglect of his guardian. He is a species of attorney; and the court controls his actions." See Fbiend, Next; GtrAKDLAN, Ad litem. AMICABIiE. Friendly ; agreed to ; pros- ecuted by consent of all parties ; opposed to adverse, adversary: as, an amicable action, an amicable saire facias to revive a judg- ment, mortgage, or other lien. An amicable lawsuit is a suit instituted seriously but in a friendly spirit, that some matter in contro- versy, by judicial decree, may be settled definitely, as cheaply and with as little delay as possible.' AMICUS. L. A friend. Compare Ami. Amicus CTirise. A friend of the court. Imports friendly intervention of counsel to remind the court of some matter of law which has escaped its notice and in regard to which it appears to be in ' F. ainercier^ to fine: L. merces^ wages, detriment, pains. 2 3 Bl. Com. 376, 275; 4 id. 379-80. ' Abbott, Bouvier, Law Diets. » [Beardsley v. Bridgeport, 53 Conn. 493 (1885), Par- dee, J., where the word is used in a charitable bequest. ' Tidd, Pract. 100, n ; Tucker v. Dabbs, 12 Heisk. 19-20 (1883); 10 Abb. Pr. 40. 'Thompson v. Moulton, 8 La. An. 537 (1868); Lord v. Teazle, 8 How. 855 (1850), Taney, C. J. danger of going wrong. It is not his function to take upon himself the management of a cause. > AMNESTY. Has no technical meaning in the common law : is merely the synonym of " oblivion," which, in English law, is the synonym of "pardon." The literal meaning is " removal from memory." 2 Properly belongs to international law, applying to rebellions which by their magnitude are brought within that law." " Pardon " i$ remission of guilt; " amnesty " an act of oblivion or forgetfulness.' By act of May 22, 1872, the political disabilities im- posed by the third section of the XlVth Amendment were removed from all persons except members of the thirty-sixth and thirty -seventh Congresses, officers in the judicial, military, and naval service, heads of departments, and foreign ministers, of the United States.* See Oath, Of office; Pardon. AMONG. Intermingled with. Commerce among the States cannot stop at the ex- ternal line of each State, but may be introduced into the interior. . . Comprehensive as "among "is it may properly be restricted to that commerce which concerns more States than one. . . Commerce among the States must of necessity be commerce with the States." See Commerce. Each child has a share where a power is distrib- uted " amongst " children.' See Between. AMORTISE. See Mortmain. AMOTION.^ Turning out; removal. 1. Turning out the legal proprietor of an estate in realty before the termination of the estate; 8 an eviction. See Eviction; Duster. 3. Removal of a corporate officer from of- fice, as distinguished from depriving a mem- ber of his privilege of membership 9 — expul- sion, disfranchisement. This right, for just cause, is a common-law incident to all corporations. Where the appointment is during good behavior, or the removal is for a specified cause, an opportunity to be heard should be afforded.' Among the various causes are — firsts such as have no immediate relation to the office yet are in them- >Taft V. Northern Transp. Co., 66 N. H. 416 (1876), Gushing, C. J. See also 11 Pitts. Leg. J. 321-28 (1864); 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 Op. Att.-Gen, 228 (1865). * 17 St. L. 142. See, as to President granting a gen eral amnesty, 8 Am. Law Reg. 513-32, 577-89 (1869), 'Gibbons v. Ogden, 9 Wheat. 194, 196, 227 (1821), Marshall, C. J.; 14 How. 573; 8 Wall. 783; 9 id. 43. •4 Kent, 343: ' L. a-movere, to move from, remove. » [3 Bl. Com. 198-99. » See 3 Kent, 397; Bouvier, cases. AMOUNT 58 ANCIENT selves of so infamous a nature as to render the of- fender unfit to execute any public franchise — but indictment and conviction must then precede ; second, such as are only against his oath and the duty of his oiHce as a corporator and amount to a breach of the tacit condition annexed to his office; third, such as are offenses not only against the duty of his ofiflce, but are indictable at common law, ^ See T^enijre, Of office. AMOtrifT. See Description, 1, 4; Dis- pute; Exceeding; More or Less; Sum. AMPLIARE. See Judex, 3, Boni, etc. AMTTSEMENT. See Entertainment; Game, 3 ; Eight, 3 (3), Civil rights ; Theater ; Ticket. AN. See A, 4; Ad; Ante; Ant. ANALOGY. See Argumbntum, A simile. ANAECHY.2 The absence of govern- ment ; a state of society in which there is no law or supreme power. 3 " K the conspiracy had for its object the Hestruetion of the law and government, it had for its object the bringing about of practical anarchy. And when mur- der has resulted from the conspiracy and the perpe- trators are on trial for the crime, whether or not they were anarchists may be a proper circumstance to be considered in coimection with other circumstances, with a view,of showing what connection, if any, they had with the conspiracy and what were their purposes in joining it." 3 See further as to case cited, Accessary; Chal- lenge, 4; Character; Charge, 3 (2, c); Conspiracy; Courts, United States; Criminate; Doubt, Reason- able; Jury; Malice; Opinion, 2. Alf CESTOR.4 The last person actually seized of an inheritance.^ In the law of descents the prepossessor of an estate. 6 The ascendant of an intestate in the right line, as father, mother, grandfather, grand- mother.'' The person from whom an estate descends ; not a progenitor, in the popular acceptation. 8 It is the immediate, and not the remote, ancestor from whom the estate descends.* 1 Eex V. Richardson, 1 Burr. B3B (1758), Mansfield, C. J.; 1 B. & Ad. 936; L. E., 5 H. L. 636. See gener- ally 34 Cent. Law J. 99 (1887), cases. ^ Gk. anarchi'a, lack of government: an'archos, without a chief. ' [Spies et al. v. People, 122 HI. 253 (Sept. 14, 1887), Magruder, J., — " Anarchists' Case." . [Webster's Diet. Same case, 9 Cr. Law Mag. 839, 926-35, cases; 12 N. E. Eep. No. 16; 18 Chic. Leg. News, 809, 411. *F. cmcessour, a fore-goer: L. antecessor: ante ce- dere, to go before. = 3 Bl. Com. 209, 443; 2 Kent, 404, 419. « [McCarthy v. Marsh, 5 N. T. 375 (1851). ' [Valentine v. Wetherill, 31 Barb. 659 s Bailey v. Bailey, 25 Mich. 188 (1872). « Murphy v. Hemy, 35 lud. 450 (1871). After the rule was adopted that inheritances might ascend, tbe ancestor was the person from whom the inheritance devolved upon the heir, and a child might, therefore, be the ancestor of his parent.' ' Common ancestor. The parent from whom designated persons have sprung. In the Ohio statute of descents the ancestor is any one from whom the estate is inherited. The ancestor from whom it must " have come to the intestate "is he from whom it was immediately inherited. Such ancestor takes the place of the first purchaser under the English canons of descent. . No remote an- cestor has any favorable estimation here. Neither the primary definition nor the legal sense of the word agrees with the most popular and obvious significa- tion. He from whom the estate was immediately in- herited is the ancestor, the propositus, from whom the estate came.^ Embraces collaterals as well as lineals through whom an inheritance is derived, and refers to the im- mediate ancestor.'' Uncles, aunts, and other collateral " antecessors " who are not in fact "ancestors " are sometimes desig- nated as " collateral ancestors." In its ordinary import " ancestors " includes only those from whom the per- son spoken of is lineally descended on the father's or the mother's side. When used in a sense different from its ordinary import of lineal antecessors, so as to embrace all the blood relatives preceding the per- son referred to, it is qualified or enlarged by some other t6rm.* " Maternal ancestor " in the Massachusetts statute of 1851, u. 311 (relating to illegitimate children), is limited to progenitors in the direct ascending line, ac- cording to the common meaning and the only sense in which "ancestor" is used throughout the statute of descents and distributions.^ See further Consanguinity; Descent; Heir;- In- herit. AWCHOE. See A, 3, A 1; Appurte- nance ; Furniture, Of ship. A vessel fastened to a pier is not "lying at an- chor;"'' nor is a vessel purposely beached, though having an anchor out for caution.' ANCIENT.8 1. Created, made, con- ceded, or established at a day now long past ; beginning with a period indefinitely early; dating from a time so remote as to acquire or have attached some right or privilege ac- accorded in view of long continuance: as, ' Lavery v. Egan, 143 Mass. 391 (1887), Field, J. 'Lessees of Prickett v. Parker, 3 Ohio St. 396-97 (1854). See also Gardner v. Collins, 2 Pet. 91 (1839). 'Wheeler v. Clutterbuck, 53 N. Y. 71 (1873). < Banks u. Walker, 3 Barb. Ch. 446-47 (1848), Wal- worth, Ch. s Pratt w. Atwood, 108 Mass. 42 (1«71), Gray, J. • Walsh V. n'. Y. Floating Dry-Dock Co., 7? N. T. 453 (1879). 'Eeid V. Lancaster Fire Ins. Co., 19 Hun, 386 (1879). " F. ancien. L. antianuLS, of a former time, old. Formerly, aniient,— 3,B1. Com. 99; 3 id. 374; 4 id. 380. ANCILLARY 59 ANIMAL ancient — demesne, house, lights, wall, writ- ings, qq. V. 3. A corruption or misprint of enceinte, j)regnant — infirm : as, an ancient witness. See Deposition. ANCILLAHY.i Auxniary;-subordinate; incidental; additional. The king's court is not ancillary to any other.^ Thus also are or may be related — one constitutional po^ifer to another; ^ implied powers in a corporation; * a writ ot certiorari to a writ of habeas corpus; a capias^ originally, to a summons, judgment or decree, to se- cure obedience or enforcement; a sequesti'ation to preserve from waste movables on mortgaged prop- erty; * a commission to aid the court by hearing and report; ' one bill in equity to another bill; ^ an attach- ment to another proceeding; ^ an action in aid of an execution at law to the original suit; ^ an act toward the performance of an agreement; i° an administra- tion (q. V.) subordinate to another; " parol testimony in some relations; ^"^ an outbuilding, to a dwelling- house; a statute, to a constitutional amendment. ^^ AlfCIPITIS. See Usus, Ancipitis. AHU. Compai'e Et. Construed to mean " or " (and " or " to mean " and ") when necessary to give effect to the intention — of par- ties to contracts, of testators, of law-makers ; but not so when the evident intent would thereby be defeated.'* See further Or, 2. AH'GEB. See Assault ; Malice. A'M TM'AT. . Any irrational being, as dis- tinguished from man. In a common sense, a quadruped; not, a bird or a fowl. '^ In discussions in the cases as to what is included by " animals " in the law of property and of larceny, in duty laws, in statutes punishing malicious mischief, and the like, the term is limited by notions of prop- erty. . . Steadyprogresshasbeenmade toward the recognition of all sentient life as deserving legal pro- tection, irrespective of the property aspect. >» ' An'-cil-la-ry, L. ancillaris, ancilla, a handmaid. »3B1. Com. 98. = Legal Tehder Cases, 12 WaU. 535 (1870). * 1 Pars. Contr. 141. 'Dupasseur v. Eochereau, 21 Wall. 136 (1874). •Forbes Street, 70 Pa. 138 (1871). ' Christmas v. Eusaell, 14 Wall. 83 (1871). 8 Cooper V. Reynolds, 10 Wall. 314 (1870). ' Claflin V. MoDermott, 12 P. E. 375 (1882). ■"IStory, Eq. §762. " 1 Story, Eq. § S83. 12 Wall V. Dovey, 60 Pa. 213 (1869). " 109 V. S. 20; 111 id. 522. So also an attachment may be, 48 Ark. 200; and one section in a charter to another section, 31 F. E. 318. >« Litchfield v. Cudworth, 15 Pick. 27 (1833); 14 id. 453; United States v. Fisk, 3 Wall. 447 (1865); Dumont v. United States, 98 U. S. 143 (1878); 65 Vt. 470. "Eeiche v. Smythe, 13 Wall. 165 (1871). " [Abbott's Law Diet. While the use in a particular context or statute may be limited by the general mean- ing and purpose, the term, in jurisprudence, may include any living creature not human or rational.! In a statute against cruelty to animals includes wild and noxious animals, unless -the purpose of -the statute or the context indicates a limited meaning." Animals are distinguished as domitce na- turce, of a tame disposition ; and feroe naturce, of a wild disposition — wild by nature. Animals of a ".base" nature are such as are not fit for food, but are kept for pleasure, curiosity or whim. In such animals as are of a tame nature, a man may have as absolute a property as in any inanimate being; because they continue pei-petuaily in his occu- pation, and will not stray from his house or person unless by accident or fraudulent enticement, in which cases the owner does not lose his property. The steal- ing or forcible abduction of such property is also felony: for these are things of intrinsic value, serving for the food of man or for the uses of husbandry. But in animals /erce naturce a man can have no absolute, merely a qualified, prop6];ty — per industriam^ by re- claiming and making them tame by art, industry, train- ing, or by so confining them within his own immediate power that they cannot escape and use their natural Uberty \— propter impotentiam or ratione impotentiaz^ on account of their own inability, as, in yoxmg ani- mals, imtil they can fly or run away; — propter privi- legium, by virtue of privilege, as of game within a liberty. While these creatures, reclaimed from the wildness of their nature, thus continue qualified or defeasible property they are as much under the pro- tection of the law as if the owner's absolutely and indefeasibly. It is also as much a felony to steal such of them as are fit for food as to. steal tame animals; but not so if they are kept only for pleasure, curiosity or whim, as dogs, bears, cats, parrots, singing-bii'ds:. because their value is then not intrinsic, but depends purely upon the caprice of the owner, though the taking is such an invasion of property as may amoimt to a civil injmy and be redressed by a civil action.' At common law larceny may be committed of a collar or chain attached to an animal not itself the subject of propertl.' A property in dpgs (g. v.) is now recognized under laws providing torjtheir registration and taxation." 7" — / ' [Abbott's Lay Diet.] 2 Conlmonweal'th v. Turner, 145 Mass. 300 (Nov. 23, 1887): f ub. Sts. ch. 207, § 53. ' 2 Bl. Com. 390-94. See also 3 Kent, 349-60; Buster V. Newkirk, 20 Johns. *75 (1822) — as to a deer wounded by one and captured by another person; State v. Ki-idJr, 78 N. C. 482 (1878) — as to fish (in a pond?); Swift u Giflord, 2 Low. 112-15 (187J), cases,— as to a harpooned whale; Ghen v. Rich, 8 F. R. 159 (1881), oases,— as to a dead whale found floating. 7i Bl. Com. 235. '« See Morewood v. Wakefield, 133 Mass. 241 (1882); / ANIMAL 60 ANNEX The owner of an animal or the person who has the xclusive control of it is liable for injuries which he egligently suffers it to commit. This liability stands pon the ground of actual or presumed negligence. E the injury is committed while trespassing upon md the owner is responsible for damage directly re- alting as a natural consequence. In other cases he lay be liable although there is no trespass and the nim^l-is rightfully in its place; as where the injury omes from the vicious disposition or mischievous abits of the animal of which the owner had previous ctual notice; or where, without • actual notice, the. Isposition and habits are so universal among the pecies that notice is presumed, as in the case of wild nd savage beasts. The owner or keeper of such nimals, without actual or implied notice of their haracter, is bound at his peril to keep them at all imes and in all places properly secured, and is re- ponsible to any one who without fault in himself is ajured/by them.^ Animals fer(z w'otwrce, as a class, are known to be lischievous; and the rule is well settled that whoever ndertakes to keep any such animal in a place of niblic resort is or may be liable for injuries inflicted y it on a party who is without fault. It is not neces- ary to aver negligence in the keeper, as the burden is ■pon the defendant to disprove that implied imputa- ion; it is enough to aver ferocity in the animal and ihowledge of that fact in the defendant. Cei'tain ani- nals /ercE yiaturai may doubtless be domesticated to uch an extent they may be classed with tame ani- aals; but as they are prone to relapse into their rild habits and to become mischievous, the rule is hat if they do so, and the owner becomes notified, hey will thereafter be viewed as not having been horoughly and safely domesticated. ^ See Accession; Agist; Alive; At Large; Bait, 2; Uttle; Cruelty, 3; Damage, Feasant; Distress; 2stray; Fence; Game, 1; Implements; Levant; Iaim, 2; Nuisance; Oyster; Partus; Pound, 2; iouND, 8 (2); Stock; 1; Team; Trespass; Vicious; Vakton; Waiiranty, 2; Warren; Worry; Wound. larrington v. Miles, 11 Kan. 483^84 (1873), oases; 15 Am. lep. 356, cases; State v. Doe, 79 Ind. 9 (1881), cases; Temison v. Southwestern E. Co., 75 Ga. 445 (1885). 1 Lyons v. Merrick, 105 Mass. 76 (1870), Colt, J. ; Hewes \ McNamara, 106 id. 281 (1871); Mann v. Weiand, 81* >a. 258-55 (1875), cases; Marble v. Ross, 124 Mass. 47-49 1878), cases; Linnehan v. Sampson, 126 id. 510-11 1879), cases ; Muller v. McKeeson, 73 N. Y. 198-204 (1878), lases; Lynch v. McNaUy, ih. 349 (1878); State u. Har- Iman, 75 Me. 662 (1884); 56 Ala. 402; 49 Conn. 113; 69 }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. r. 101; 20 id,. 6, 104; 46 Am. E. 425. As to animals trespassing on a railroad track, see Cansas City, &c. E. Co. v. Kirksey, 48 Ark. 376 (1886), ;ases. 2 Congress & Empire Spring Co. v. Edgar, 99 U. S. 31-66 (1878), Clifford, J., citing many cases. The plaint- £f below, one Mrs. Edgar, while visiting Congress Spring park, Saratoga, N. Y., was, injured by a deer. The jury awarded her $6,600 damages, and the judg- nent therefor was affirmed by the circuit court for AIMTMns. L. Mind; disposition; in- tention, win. Animo. With, from, or in, mind or in- tention: as, in eo animo, ex animo, malo animo, quo animo, qq. v. Auimus, animuin (objective form), mind or intention, animo, with intention or de- sign — caneellandi, of canceling; oapiendi, of seizing or taking; dedicandi, of dedicate ing or donating; defamandi, of defaming; donandi, of giving; ferandi, of stealing; lucrandi, of gaining; manendi, of remain- ing ; movandi, of staying, remaining ; pos- sidendi, of possessing, appropriating; re- cipiendi, of receiving; republicandi, of republishing; revertendi, of returning; rev- ocandi, of revoking : testandi, of making a will. ANNEX.i To put in permanent connec- tion with ; to attach. As, to annex — a fixture to a freehold; a condition to an estate; a covenant to land; one writing to another, as, an exhibit to a petition or affidavit of claim; one town to another town.^ Figuratively, a penalty or punishment is said to be annexed to an act.^ Annex incidents. To show what things are customarily treated as incidental and accessorial to the principal thing.* Actual annexation. Such annexation as exists in point of fact ; as, that of a fixture to a freehold. Constructive annexation. Exists in inference of law; as, that of a deed to land, that of a key to a house. 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- hold, does not amount to an annexation.* A deposition taken under a commission is. suffi- the northern district of New York and by the United States Supreme Court. See also Twigg v. Eyland, 62 Md. 385-88 (1884), cases: 24 Am. Law Eeg. 191, 196-97, oases; Meracle v. Down, 64 Wis. 323 (1885); Laherty v. Hogan, 18 Daly, 533 (1886); State v. Donahue. N. J. L. (1887), cases: 10 Atl. Eep. 150; 26 Am. Law Eeg. 773-78 (1887), cases. "If an ox gore a manor a woman that they die . . and if the ox were wont to push with his horn in time past, and it hath been testified to his owner and he hath not kept him in, but that he hath killed a man or a woman, the ox shall be stoned, and his owner also shall be put to death." Exodus xxi 28,' 29. ■ F. annexer: L. annectere, to knit, tie, bind to; 2 100 U.S. 630; 74 Me. 180. s 1 Bl. Com. 415. < 1 (Jreenl. Ev. § 894. = Merritt v. Judd, 14 CaJ. 64 (1859): 8 Sm. L. C. 296. ANNI 61 ANSWER ciently annexed or connected to the commission by the envelope and official seal.' Will annexed to letters. See Administer, 4. AM"NI; ANNO. See Annus. ANNOYANCE. See Nuisance; Usrs, Sio utere, etc. ; Wahton. ANNITALLT. Applied to the payment of interest imports, not an undertaking to pay at the end of a year, but at the end of every year during the period of time, fixed or contingent. 2 A note payable in five years from date " with inter- est annually" implies that the interest begins to run from the making of the note.' See Annds; Year. ANNUITY.'' A yeai-ly sum stipulated to be paid to another in fee or for life or years, and chargeable only on the person of the grantor. 5 A yearly sum chargeable upon the person of the grantor. 6 A " rent-charge " is a burden imposed upon lands.* An annuity is a stated sum payable annually, unless otherwise directed. It is neither "income" nor "profits," nor does it vary with them, though a cer- tain fund may be provided out of which the smn is payable.' See Ihdian. Anntdtant. One who is entitled to an annuity. Altmiity table. A table exhibiting the probable longevity of a person at any par- ticular age. Based upon statistics, and of use in matters of life Insurance and dower. See further Table, 4. Iiife annuity. An annuity limited upon another's life — the engagement or the sum of money promised.' An annuity payable to the annuitant and his heirs is a personal fee; neither curtesy nor dower are inci- dents thereto. It is assignable, and bequeathable; and may be an asset in case of Insolvency. Kemedies for its non-payment are: debt, covenant, action of annuity at common law.* It is also apportionable; and may be paid to a widow in lieu of dower.'" ' Savage v. Bircldiead, 20 Picli. 167 (1838); Shaw v. MoGregory, 105 Mass. 100 (1870). ' Sparhawk v. Wills, 6 Gray, 164 (1856); Westfleld v. Westfleld. 19 S. C. 89-90 (1883). 5 JNTinchell v. Coney, 54 Conn. 26, 30 (1886). < L. L. annuitas: L. annuSy a year. "Coke, Litt. 144 6; 3 Kent, 460; 24 N. J. E. 358; 33 Barb. 316. «2B1. Com. 40; 10 Watts, 137; 33 Barb. 318. ' Booth 1). Ammerman, 4 Bradf. 133-35 (1856), cases; Pearson v. Chace, 10 R. I. 456-57 (1873), cases; Bartlett V. Slater, 53 Conn. 107 (1885), cases. 8 See 3 Bl. Com. 461. •3 Kent, 460,471; Coke, Litt. 385; 4 Ves. 763; 5 id. 708. '» Blight V. Blight, 51 Pa. 420 (1866); Rudolph's Appeal, Since an annuity may be regarded as a legacy pay- able by a yearly instalment, the word " legacy," as used in a will, may comprise the word annuity." ANNUL. See Nuix; Repkal; Rescis- sion ; Vacate. ANNUS. L. A year. , Anni nubiles. Marriageable years. Infra annos ntlbiles. Within marriageable years — at common law the age of twelve in girls." Anno Domini. In the year of our Lord. Abbreviated A. D. See Abbreviations; Tear. Annus luctus. The year of mourning. Infra annum luctus. Within the year of mourn- ing — sometimes called the "widow's year." Roman and early Saxon law ordained that a widow should not remarry within a year after her husband's death: an inhibition which seems to have had refer- ence to ascertaining the paternity of children.^ Supposed to be the origin also of a custom of wear- ing mourning dress. Annus utilis. A serviceable year. Anni utiles. The years during which a right may be asserted; as, the period during which one is not prevented by disability from availing himself of a statute of limitations. ANONYMOUS. Designates a case re- ported with the names of the parties omitted. Abbreviated Anon. ANOTHER. One other ; any other Larceny of the "personal goods of the United States" is within the words "personal goods of an- other " in the act of April 30, 1790.< In the sense of another person, a co-party, is used in the titles of cases: as "A. B. u. C. I), and another." Compare Alios, Alios. ANSWER. Response, reply; defense. Compare Responderb. 1. In the sense of a response to a written or oral communication, see Letter, % ; Silence. 3. A statement made in response to a question or interrogation propounded to a suitor, witness, or garnishee, in the course of a judicial inquiry. See further Ques- tion, 1. 3. The formal written statement made by a defendant — to charges in a bill in equity, to a libel in admiralty or in divorce. An answer is the most usual defense made to a bill inequity. It is given in upon oath; but where thei-e are amicable defendants their answer may be taken without oath by consent of the plaintiff. This method 10 id. 34 (1848); Lackawanna Iron, &c. Co.'s Case, 87 N. J. E. 27 (1883). 'Rudolph's Appeal, ante; Exp. M'Comb, 4 Bradf. 153 (1856); 12 N. Y. Leg. Obs. 182. 2 1 Bl. Com. 436; 2 Kent, 78. 8 1 Bl. Com. 467. < United States v. Maxon, 6 Blatch. 363 (1866); 1 St. L. 116. ANSAVER 63 ANY of proceeding was borrowed from the ecclesiastical courts.^ The parts of an answer are: the KiZe, which tells whose answer it is and to whose bill; a reservation of advantages from any defects in the bill; the substance, whether the facts be of personal knowledge or rest upon Information and belief; and a general traverse to the whole bill. An answer must be responsive to all the material allegations in the bill.' Unless the complainant have two witnesses, or one witness and corroborative circumstances, he will not be entitled to relief. The reason is, by calling upon the respondent to answer his allegations, the complainant admits that the answer will be evidence — equal to the testimony of any other witness ; so that he cannot pre- vail unless the balance of proof is in his favor; to turn the scales, he must at least have circumstances which corroborate such single adverse witness.^ The answer must be responsive to the bill, and be sustained by the testimony of two witnesses, or of one witness corroborated by circiunstances equivalent in weight to the testimony of another witness.* If the alleged facts are not known to the defendant he should give his belief, if he has any; if none, he should say so and call for proof; otherwise he waives that branch of the controversy. A mere statement that he is without loiowledge is not such admission as waives full proof. ^ The answer of one defendant cannot be received against another, except where one so succeeds the other that his right devolves on the latter, maldng theih privies in estate.^ An answer in eqtdty must be signed by counsel. It must also deny or confess the material parts of the bill; it may confess and avoid (g. v.) the facts. If one of these things is not done the answer may be ex- cepted to for insufficiency, and the defendant be com- pelled to put in a sufficient answer. A defendant cannot pray anything but to be dismissed the comi;; 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 biU; and the defendant must then answer afresh. If "the plaintiff finds sufficient confessed in the answer upon which to ground a decree he may proceed to a hearing upon the bill and answer; and in that case he takes the answer as true. Otherwise he replies gen-' erally, averring his bill to be true, certain, and suffi- cient, and the answer the reverse, as he is ready to prove: to which the defendant rejoins, averring the like on his side.' See Admiraltt; Admission", 2; Allegation; Amend- ment, 1; Equity, Bill; Master, 4; Plea, 2; Sham. > 3 Bl. Com. 446-47. "Eoach V. Summers, 20 Wall. 170 (1873). STobey v. Leonards, 2 Wall. 430 (1864): Moore v. tUl- man, 80 Va. 310-11 (1885), oases; 9 Cranch, 160; 6 Wheat. 468; 4 Cliff. 266-67, 458-69, cases; 107 U. S. 233; 13 Pa. 70. <"Vigel V. Hopp, 104 U. S. 441 (1881); Morrison v. Dttrr, 123 id. 518 (1887); 109 id. 103; 3 Story, Eq. § 1538. 5 Brown v. Pierce, 7 Wall. 211-13 (1868); 1 Johns. (3h. «107; 5 id. *248. « Osborn v. United States Bank, 9 Wheat. 833 (IBM). »3B1. Com. 447^9. AlfTAGOinSM. See Repeal; Repug- nant. ANTE. L. Before; hereinbefore. Older form, anti, against. In compound words, ante, anti, ant, an. Anglo-Saxon, 11 Wall. 899-301. a Chesterfield County v. Hall, 80 Va. SZi (188S). s Lord V. Ocean Bank, 20 Pa. 384 (1863). ••McNitt V. Turner, 16 Wall. 361 (1873). "See generally Broom, Max. 163, 166; 103 TJ. S. 802, 42t; 104 id. 439; 4 Mass. 685; 8 id. 401; 5S Pa. 57; 76 Va. 301. * L. appellare, to call upon, address. ' Leach v. Blalcely, 34 Vt. 136 (1861). 'Exp. Virginia, 100 U. S. 342 (1879). » See Hubbell u MoCourt, 44 Wis. 587 (1878), cases; Auditor v. Atkinson, &c. E. Co., 6 Kan. 505 (1870); Piqua Bank v. Knoup, ftOhio St. 391 (1856). subordinate officials exercise " supervisory " ra than appellate power in the sense in which " a] late " is employed in defining the powers of cour justice.^ Appeal {appellatio in civil law) is defi ab inferioris judicis sententia ad superio provocare: the removal of a cause from sentence of an inferior to a superior juc or, as Blackstone expresses it, a compli to a superior court of an injustice done an inferior court. ^ The remedy as known in England ife in a g measure confined to causes in equity, ecclesiast and admiralty jurisdiction: as to each of whicl jury intervenes. In courts proceeding accordin the civil law an appeal removes the whole of proceedings and usually, though not invariably, O] the facts as well as the law to re-examination. 2 A process of civil law origin. Removes a ci entirely, subjecting the fact and the law to review retrial. A " writ of error, ' ' which is of common-law gin, removes nothing for re-examination but the li Whfie perhaps in most States an appeal fro: court of general jurisdiction is in the nature of a of error, — whereby the appellate court passes v the record as to facts and law, does not hear a tional evidence, but confines its adjudication to er appearmg upon the record, — in Ohio the appeal 11 vacates without revisal all proceedings, and the t is heard upon the same or other pleadings and u such testimony as may be offered in that court, subject is taken up de novo, as if the cause had n( been tried.-* A £nal decree in chancery is taken to a higher ct for review by appeal.* The object of removing a cause from a justic( the peace by an appeal is to obtain a new trial, u the same issue, in the higher court." In States which have adopted the name " appe for the review allowed of judgments governed by C( of procedure, the' proceeding is subject to so m statutory regulation, and in effect is so assimilate "writ of error," that it seems no longer possibl give a descriptive definition which shall be correct the various States and distinguish the two mode review.' If a party to a suit is in no manner affected by v is decided he cannot be said to be a party to the cree, and, therefore, cannot appeal the case.' 1 Hestres v. Brennan, 50 Cal. 217 (1875); E. S. §§ 453, 2478. " United States v. Wonson, 1 Gall. 13 (1812), Stoi-; s Wisoart v. Dauchy, 3 Ball. 327 (1796), Elswo C. J. See also United States v. Goodwin, 7 Oranch (1812); 22 How. 138; 103 U. S. 611. As to reviev facts in actions at lalw, see 22 Am. Law Eev. 26 (1888), cases. * Mason v. Alexander, 44 Ohio St. 328 (1886), Spea ' McCollum V. Eager, 2 How. 61 (1844); 21 id. 445 ' Bawson v. Adams, 17 Johns. *13l (1819). ' [Abbott's Law Diet. See 13 Mo. Ap. 186; 30 Minn. ' Farmers' Loan, &o. Co. u Waterman, 106 U S (1883); 108 id. 168. APPEAR 65 APPEAR Appeal bond. An obligation, with sure- ties, given by an appellant in order to remove a cause by appeal, and conditioned for the payment of damages and costs if he fails to " prosecute the appeal with effect," q. v. If the judgment is afBrmed the sureties, propria vigore, become liable to the same extent as the prin- cipal for the damages and costs. In an appeal to a still higher court new sureties are, required.^ An appeal bond, or a bond in error, is a formal in- strument required and governed by the law, and, by nearly a century's use, has become a formula in legal proceedings, with a fixed and definite meaning. As the important right of appeal is greatly affected by it, it is not allowable, in practice, by a change in phrase- ology, to give it an effect contrary to what the statutes intend — as, in Federal practice, the acts of 1789 and 1803: R. S. §§ 1000, 1007, 1010, 1018. It would be against the policy of the law to suffer such deviations and ir- regularities. The rule followed in some States is a sound one, that if the condition of the bond substan- tially conforms to the requirements of the statutes it is suificient, though it contain variations of language; and that if further conditions be superadded the bond is not therefore invalid, so far as it is supported by the statute, but only as to the superadded condi- tions.'* Court of appeals. Any court ordained to review the final decrees of another court ; in several States the tribunal of last resort. The highest court in Kentucky, Maryland, and New York. In Virginia and West Virginia it is known as ttie "supreme court of appeals;" in Delaware and New Jersey, as the " court of errors and appeals " In Texas the court is inferior to the supreme court. In England designates one of the two subdivisions of the supreme court of judicature as constituted by the acts of 1873 and 1875. See Error, 2 (2, 3), Court of. Writ of; Finai., 3; Paper, 5; Supersedeas. 3. In old English law an accusation by a private subject against another of a heinous crime, demanding punishment on account of the particular injury suffered, rather than for the offense against the public. Appellor: the accuser; appellee: the accused. Originated, probably, when a private pecuniary satisfaction, called toeregild, was paid to the party in- jured or to his relatives to expiate enormous crimes.' Abolished in 1819, after the case of Ashfard v. Thorn- ton. See Battel. APPEAR. The right to ' ' appear " before a tribunal engaged in the transaction of par- ticular business implies the right to be heard > Babbitt v. Finn, 101 U. S. 16, 13 (1879); BeaU v. New Mexico, 16 Wall. 539 (1872). = Kountze v. Omaha Hotel Co., 107 U. S. 395-96 (1882), cases; 11 Lea, 72. » 4 Bl. Com. 312-17; 110 U. S. 526. (5) thereabout, — so far, at least, as the party is interested.! Appearance. 1. Being apparent, q. v. 2. Having the form or semblance of. See Color, 3 ; Facies. 3. Coming into court as a party to a suit ; presence in court as a suitor. Used, particu- larly, of a defendant's presence, in person or by, attorney.2 Opposed, non-appearance. An entry of appearance upon the record of a cause is to be interpreted by the practice of the particular court. Whatever is held to be a submission to its au- thority in the caxise, whether coerced or voluntary, will be deemed an appearance.' Made by entering of record the name of the party or his counsel, and at the request of either; also, by entering bail, answer, demurrer, or by any other act admitting that the defendant is in court, submitting to the jurisdiction. Originally, when pleadings were oral, made by actual presence in court. An appearance may be general or common, or special or conditional, according as it is unqualified or unrestricted, or made for a specific purpose — as, to make a motion, or , is coupled with a condition; de bene esse, when provisional on an event; voluntary, compulsory, or optional, according as it is entered freely, is compelled by plaintiff's ac- tion, or is made by one not obliged to appeal', but who applies to do so, to save a right ; in person, by attorney, by next friend, by guard- ian, or by committee, according as the party himself defends, or employs or is represented by another ; pro hac vice, when in some spe- cial relation; corporal, when by defendant in person. Corporal appearance is generally required in a criminal trial. In modern practice In civil actions appearing may be constructive or figurative. An appearance is to be entered by a cer- tain day, called the appearance day; to which day writs are made returnable. It is "general" when it is the stated day ordi- narily observed; and " special " when some other day, as, the day appointed in a par- ticular case. On every return day in the term the person, at common law, had three days of grace beyond the day named in the writ in which to appear, and if he ap- peared on the fourth day inclusive, quarto die post, it » Dundee Mortgage Trust Invest. Co. v. Charlton, 32 F. R. 194 (1887). a See Schroeder v. Lahrman, 26 Minn. 88 (1879); Lar- rabee v. Larrabee, 33 Me. 102 (1851). 'Cooley V. Lawrence, 5 Duer, 610 (1855); Grigg v. Gilman, 54 AJa. 430 (1875). APPENDAGE 60 APPLICATION was sufficient. Therefore, usually the court did not sit till the fourth or appearance day.^ An appearance is also entered in a book called the appearance docket, which exhibits, in a brief abstract, all the proceedings had in a cause. For failure to appear after legal notice given, in cases, judgment may be taken " in default " of an ap- pearance. On cause shown, by petition to the court, an attor- ney may be penjaitted to *' withdraw " his appear- ance, timely notice having first been given to the client.2 An appearance by a person admitted to practice is received as evidence of his authority; otherwise as to an attorney in fact.^ A general appearance waives all questions as to the service of process, and is, moreover, equivalent to a personal service. Its effect is not disturbed by the withdrawal of the attorney. The question of juris- diction alone is saved.* But, ,under the privilege of a special appearance, a person cannot avail himself of the advantage of a general appearance.^ See Abide* Venire. APPEWDAGE. See Appendant; Inci- dent ; Railroad. Where the question was whether a stereoscope, with views, was a "necessary appendage " to a school- house, the court said that the words quoted, as used in a statute, referred to things connected with the build- ing or designed to render it suitable for use as a school- house.^ Under the same statute charts and maps to be hung upon the walls may be called *' appendages " or " ap- paratus."' Certainly a well would be a necessary appendage; ^ and, also, a fence aroimd the school building." APPENDAITT.H' Annexed to another and superior thing; belonging to something as the principal thing ; also, the thing itself thus attached : as, an incorporeal inheritance to another inheritance, one powen to another .power. 11 Said of a thing which belongs to another 1 3 Bl. Com. 278, 290. J" United States v. Yates, 6 How. 608 (1848). •■' See Osbom v. United §tates Bank, 9 Wheat. 830 (1884); Hill v. Mendenhall, 21 Wall. 454 (1874), [Meek v. Breckenridge, 89 Ohio St. 448 (1876). = Leonard v. White, 7 Mass. 8 (1810) ; Coke, Litt. 121 6, 122 a; 3 N. H. 192. ' Miller v. Mann, 65 Vt. 479 (1882), Veazey, J. « See 85 Minn. 639; 133 Mass. 85. ' United States v. Britton, 107 U. S. 669 (1838); R. S. » Harker v. Conrad, 12 S. & R. 304 (1884), Gibson, J. ; Pierce «. Sweet, 33 Pa. 157 (1859). APPOINTMENT 67 APPORTIONMENT itor; and it he fails in this respect the law will moke the application according to its own notions of justice. Neither party can make it after a controversy upon the subjecthas arisen between them,^ APPOINTMENT. Fixing, establishing : limitation, selection, designation. 1. Selection for the duties of an office or place of trust. Appointee. The person so designated, until qualified. A commission, regularly issued, is conclusive evi- dence t)f an appointment." Where a common council voted to ballot for a mu- nicipal officer, in pursuance of a power conferred by charter to " appoint " such officer, it was held that the ballot taken was intended to be an election, that is, an appointment. 3 Appointments to office are intrinsically executive acts, whether made by a court, a municipal council, an executive officer, or other person or body. A par- ticular appointment is complete when the last act reauired of the appointing power is performed." See Office, 1 ; Resignation. 2. Exercise of the right to designate the person who is to take the use of realty.'' An authority given to another to be exer- cised over property in a manner and to an extent which he would not otherwise possess.^ Also Qalled power of appointment. Appointor. He who executes the power ; the donee. He who confers the power is the donor. Appointee. He in whose favor the power is executed.* General appointment. Such appoint- ment as enables the donee to name, as ap- pointee, whom he pleases — even himself. Special appointment. Such as restricts the donee to naming one or more appointees from among particular persons. The latter dates from the creation of the power; the former from its exercise. > 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- fornia V. Webb, 94 N. Y. 472 (1884), eases; McCurdy v. Middleton, 82 Ala. 137 (1886), cases; Sanborn r. Stark, 31 F; E. 18 (1887); 21 Cent. Law J. 473-79 (1885), cases. See also 9 Wheat. 720; 6 Cranch, 8; 1 Mass. 323; 88 Ind. 68-69, cases; 62 Miss. 8, 121, 500; 7 Oreg. 228; 59 Tex. 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. Contr. 629. 2 United States v. Le Baron, 19 How. 79, 73 (1856); 1 Cranch, 137; 10 Pet. 313; 10 Oreg. 520. » State ex rel. Coogan v. Barbour, 63 Conn. 83, 85-90 (1885), cases. « [2 Washb. Real Prop. 302. » [Blagge V. Miles, 1 Story, 442 (1841), Story, J. • [4 Kent, 316.] Where a person, having a general power of ap- pointment, by deed or by will, executes it, the property is deemed in equity a part of his assets, subject to the demands of his creditors in prefer- ence to the claims of voluntary appointees or of legar tees.i niusory appointment. Allotment of a nominal, not of a substantial, interest.^ The rule at common law was to require some allot- ment to each person where several appointees were intended. But the rule in equity requires a real, sub- stantial portion in each appointee — a merely nominal allotnlent being viewed not only as illusory but as fraudulent.* A devise to a corporation for a charitable use is an appointment rather than a bequest.* The donee must be competent to dispose of an estate of his own In like manner. All donees, or their survivors, must join in executing the power. The donor's intention is to be strictly observed. A partial execution may be upheld. The estate vests in the ap- pointee as if conveyed immediately by the donor. ^ See further Power, 2; Use, 3. APPORTIONMENT. A division into shares, portions or proportions; distribution into proportionate parts. Division of a fund, or property, or other subject-matter, in shares proportioned to dif- ferent demands, or appropriate to satisfy rival claims.* Whence non-apportionable, unapportionable. Thus, we have the apportionment — of an annuity to a part of the year; of a contract, not entire, to the part performed; of dividends, or money, in stocks;' of sums payable toward the support or removal of an incumbrance; of freight earned previoiisly to a disaster to an abandoned ship;* of loss and damage caused by a collision of vessels, both parties being in fault; » of rent, where the leasehold or reversion is transferred, partitioned, levied on for debt, or setr off in dower, or where there are several assignees, or the premises become untenantable; i" of Repre- sentatives, decennially, according to the increase of population;" of corporate shares, when more have been subscribed for than the charter allows to be issued."' 1 Brandies v. Cochrane, 112 U. S. 352 (1884), cases; Sewale v. Wilmer, 132 Mass. 134-35 (1882), cases. 2 See 3 Kent, 843; In^aham v. Meade, 3 Wall. Jr. 40 (1855). » Sugden, Powers, 489; 4 Kent, 342. < 2 Bl. Com. 376. »4 Kent, 324; 2 Stoiy, Eq. §§ 1061-63; 2 Washb. B. P. 317-22, 298, 337. ' Abbott's Law Diet. ' 3 Kent, 470. 8 3 Kent, 333. » 93 U. S. 302; 10 Bened. 658. 1" 3 Kent, 469-71. 11 1 Kent, 230; Act 25 Feb. 1882: 22 St. L. 5. 121 Johns. Ch. 18; 1 Edw. 308. APPEAISE APPROBARI At common law periodical payments, due at set times, were not apportionable.^ Guilt and negligence are unapportionable. See Contribution. APPRAISE.2 To value; to estimate at a price, by authority of law. Appraisement; appraisal; apprizal. The worth of property as estimated by an authorized person ; also the act or proceeding by which the estimate is made. An " apprizal " of property signifies a valua- tion of it, an estimation of its value, unless some other sense is plainly indica'ed.^ Appraisements are made — o£ the goods of a de- ceased; of articles set apart for the share or exemp- tion of a widow; of the assets of an insolvent who has assigned his property for the benefit of creditors or who claims exemption of his statutory amomit under proceedings in execution of a judgment; of property taken for public uses; of goods distrained for rent; of the goods of an importer. Appraiser. One authorized to determine the value of an article or articles of property. See Indifferent, 1. Mercantile appraiser. An officer whose duty it is to ascertain the amount of business done by persons in the different mercantile pursuits and to regulate the tax or license fees to be paid by them on their business. Government appraiser. The incumbent of a permanent office, selected by a collector of customs, and charged with the duty of valu- ing dutiable merchandise. Merchant appraiser. An appraiser se- lected by an importer to act with a govern- ment appraiser.* Re-apprais,er. One chosen to make a sec- ond appraisement of dutiable goods. The importer has a right to be present when re- appraisers view his goods. The re-appraisement is an apprizal on view, and the re-appraisers may ascertain the value of the merchandise by reasonable means, and determine what witnesses, if any, they will ex- amine. The merchant appraiser who may be called in is not an " ofttcer " within the meaning of Art. n of the Constitution; and the exaction of a fee for his compensation is not authorized. ^ APPKEHENSIOW.e Strictly, seizing and taking hold of a man, but may apply to ' 3 Kent, 469. ^F. apreiser, to value: L. pretium^ price. » Cocheco Manuf . Company v. Strafford, 51 N. H, 483 (1871), Doe, J. * Belcher v. Linn, 34 How. 532 (1860): E. S. |§ 3609-10, 2946. See also Oelbermann v. Merritt, 19 F. B. 409 (1884); Oelbermann v. Merritt, 12.3 U. S. 356 (1887). ' AufE Mordt v. Hedden, 30 ¥. E. 360 (1886), Wheeler, J. " L. adrprehendere, to lay hold of. detaining a person already in custody.'' f Arrest, 3, 3 ; Attach, 3. APPEENTICE.2 A learner: a spec of servant usually "bound" for a term years, by indenture, to serve his master a be maintained and instructed by him.' One bound to service for a term of ye: in order to learn a trade or art.* Wher apprenticeship. "Apprentice" is aLso us in a verbal sense. " A young person bound by indenture ti tradesman or artificer who, upon certi covenants, is to teach him his mystery trade. " To constitutean apprenticeship son thing is to be learned: this is the charact istic mark of the service to be performed.' Ex vi termini implies service in some specific p fession, trade, or employment.* , This form of binding is usually done to persons trade in order to learn their art and mystery: bu may be done to husbandmen and others. The child: of poor persons, till twenty-one years of age, may apprenticed by the overseers of the poor to such are thought fitting; and these in turn maybe cc pelled to take them.'' The " teacher " is called the Tnaster. The contr is signed by the immediate parties. The period c tiniies till twenty-one in a male and eighteen ii female, or longer by consent. The master takes place of the parent. He may discharge the apprent for reasonable cause. Each party is supposed to wi for the other's interest. At common law the contr is not assignable.^ Apprenticeship had its origin in days when the v! ous trades were encompassed with restrictions as the persons who might enter them. Modem custo] which have so greatly relaxed the rules governing ' exercise of the arts and trades, have correspondini modified the strict characteristics of apprentlceshi Local statutes and decisions should be consultec APPRIZAL. See Appraise. APPROACH. See BRmaE. APPROBARE. L. To approve; lit ally, to test, try, prove good. Qtil approbat, non reprobat. He w approves cannot reject. One cannot both accept and reject the same thi One may not both affirm and deny. ' Begina v. Weil, 47 L. T. B. 633 (1883); s. c. 15 Eep. ■ 'F. apprendre, to learn: L. apprehendere, to hold of, grasp. = [1 Bl. Com. 436; 3 id. 26. ' [2 Kent, 361. « Hopewell v. Amwell, 3 N. J. L. •425 (1808). See i State ex reV. v. Jones, 16 Fla. 316-18 (1878). « Be Goodenough, 19 Wis. 317 (1865), Dixon, C. J. ' 1 Bl. Com. 426. 8 2 Kent, 261 ; 1 Bl. Com. 460. ' Abbott's Law Diet. APPROBATE 69 APPEOVE APPROBATE. See Allegaee, AUe- gans conti-aria, etc. APPROPRIATE.! 1, V. (1) To take to one's self ; to take as one's own — for one's self : 2 as, to appropriate running water ; to appropriate the personalty of another is a con- version, an embezzlement, or larceny, qq. v. Whence appropriation, appropriator, appro- priable. Compare Aoqtjire ; Occupy. To appropriate another's goods against his will is to take them from him to one's self with or without vio- lence.' See Conversion, 3. (3) To adopt as distinctively one's own : as, to appropriate a design or symbol for a trade- mark,* q. V. (3) To reserve for a distinct purpose; to destine to a particular end : as, to appropriate property to an exclusive use, or a fund to the discharge of special demand. A space is not appropriated to the use of passengers on board a vessel as long as one person is allowed an individual use of it.^ "Appropriated lands," in a pre-emption law: land applied to some' specific use or piu:pose by virtue of law.* In the expression " appropriate property of any in- dividual to public uses," the term embraces every mode by which property may be applied to the use of the public. Whatever exists which public necessity demands may be thus appropriated.' See further Domain, 1, Eminent. A direction to an executor to " appropriate " funds is an implication that he is assumed to hold that which he is directed to appropriate." '* Appropriations " in a will means a designation to a particular exclusive use.* The " appropriation of public money " is the dispo- sition of public moneys from the treasury by law ; » — an authority from the legislatm-e, given at the proper time and in legal form, to the proper officers, to apply sums of mone.y out of that which may be in the treas- ury in a given year to specified objects or demands against the State.'" While, as referring to funds, "appropriate" and " apply " are often interchanged, " appropriate " may mean rather to decide that a certain fund shall be de- voted to a specific purpose, and " apply " to make the expenditure in fact. See further Application, 2. 1 L. appropriare, to make one's own — proprius. 'See 8 Oreg. lOi; 9 id. 231. 3 [Waters v. United States, 4 Ct. CI. 393 (1868). <100U. S. 95; 101 id. 53. 'United States v. Nicholson, 8 Saw. 164 (1882); R. S. ^4253. « McConneU v. Wilcox, 2 HI. 380, 359 (1837). ' Boston, SCO. B. Corporation v. Salem, &c. E. Com- pany, 8 Gray, 35 (1854), Shaw, C. J. 8 Blake v. Dexter, 12 Cush. 668 (1853), Shaw, C. J. • Whitehead v. Gibbons, 10 N. .). E. 235 (1854). '" Ristine v. State, 80 Ind. 333 (1863), Perkins, J. APPROPRIATE. 2, adj. Adapted to the purpose : proper, fit, suitable, q. v. : as, the ap- propriate departments of the government ; i appropriate legislation ; 2 an appropriate rem- edy " or decree.-' APPROVE. 1. To accept as good or suffi- cient for the purpose intended. Opposed, disapprove. See Approbarb. Public sales are made on "approved, indorsed notes " when the purchaser gives his promissoiy note for the amount of a purchase. Indorsed by another and approved by the seller. The approval of the note ratifies the sale." See Sale, On approval; Ratification. 2. To deem of sufficient security: as, to approve a bond. " Approved " indorsed on a bond by the judge of a court does not necessarily import more than that the bond is deemed a sufficient, security to be accepted. It does not include a direction that the bond is to stand in lieu of another bond and that the other is discharged." 3. To affirm as lawful and proper ; to give ,iudicial sanction to : as, to approve the report of an auditor, a master, or trjustee. See Con- firmation, 3. 4. To concur in the propriety or expediency, the legality or constitutionality of ; to give executive sanction to : as, to approve an or- dinance proposed by the councils of a city, to approve an act of an Assembly or of Con- gress. See Act, 3 ; Pass, 3 ; Veto. 5. To confess a felony or treason and ac- cuse another as accomplice in order to obtain a pardon. Approvement. The confession made in such case, and the act of making it. Approver. He who makes such a con- fession. The accused is the "appellee." When a person indicted for treason or felony was arraigned he might confess the charge before plea pleaded and appeal or accuse some other as his ac- complice, in order to obtain a pardon. This, allowed in capital cases only, was equivalent to an indictment, as the appellee was required to answer the charge. It proven guilty the judgment was against the appellee; and the approver was entitled to a pardon ex debito justitioB; but if the appellee was acquitted the judg- ment was that the approver be condemned.' See Accomplice. 1 101 U. S. 770. a 100 U. S. 345. 3 100 U. S. 311. < 101 U. S. 338. •Mills V. Hunt, 80 Wend. 435 (18-33); Guier v. Page, 4 S. & R. 1 (1818). 8 United States v. Haynes, 9 Bened. 25 (1877). ' 4 Bl. Com. 330; Rex v. Rudd, 1 Cowp. 335 (1775); APPURTENANCE 70 AQUA APPUE.TElfANCE.1 A right connected with the enjoyment or use of another thing as principal; also, the thing itself out of which the right grows as an incident. App-ortenant. Connected with or per- taining to a thing of superior nature. In strict legal sense land can never be appurtenant to land. A thing to be appurtenant to another thing must be of a different and congruous nature; such as an easement or servitude, or some collateral incident belonging to and for the benefit of the land. In Coke, Litt. ISl b, it is said that nothing can be appurtenant unless the thing agrees in quality and nature to the thing whereunto it appurtaineth; as a thing corporeal properly cannot be appurtenant to a thing corporeal, nor a thing incorporeal to a thing incorporeal. There are many other authorities to the same effect. In a case, therefore, where the words of a grant pass land " with its appurtenances " the law, in the absence of controlling words, will deem "appurtenances " to he used in its technical sense; and that construction will not be displaced untU it is made manifest from other parts of the grant that some other thing was actually intended.^ Something appertaining to another thing as principal, and passing as an incident to such principal. 3 A right not connected with the enjoyment or use of a parcel pf land cannot be annexed as an incident to that land so as to become appurtenant to it.* The expression " appurtenances of a ship " is not to be construed with reference to the abstract naked idea of a ship. The relation which the equipment bears to the acttial service Is to be looked at. " Ap- purtenances '^ is a word of wider extent than " furni- ture " (g. V.) and may be applied to many things which could not be so described with propriety in a contract of insurance. The tackle, apparel, and furniture form a part of every ship, but that is not a part which is only appurtenant as necessary for a special voyage. ^ Compare Appendant; Incident. AQUA. L. Water. Aqua cedit solo. Water passes with land : a grant of land conveys water rights. One cannot bring an action to recover possession of a piece of water by the name of water only, by calcu- Whiskey Cases (United States v. Ford), 99 U. S, 599 (1878); Oliver v. Commonwealth, 77 Va. S93 (1883). 1 F. apartenir, to belong to: L. ad-per-tinere, to ex- tend through to. 2 United States v. Harris, 1 Sumn. 87-38 (1830), Story, J. See also Whitney ■». Olney , 3 Mas. 281-83 (182.3), Story, J. ; 39 Ark. 135; 15 Cal. 186; S7 id. 14; 8 Allen, 291, 895; 23 Minn. 362; 53 N. H. 508; 15 Johns. 447; 93 N. T. 549; 29 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. ' [Harris v. Elliott, 10 Pet. *54 (1836), Thompson, J. * Linthicum v. Eay, 9 Wall. 241 (1869), Field, J. » Swift V. Brownell, 1 Holmes, 473-74 (1875), cases, Shepley, J.; The Witch Queen, 3 Saw. 802-3 (1874), cases; 2 Low. 40. lating its capacity, by superficial measurement, or 1 a general description, as for a pond, a water-cours etc. His action must be for so much land coven With water. 1 Aqua currit, et debet currere,ut cuj rere solebat. Water runs and should ru as it has been used to run : a running streai is to be let flow in its channel as nature hi provided. Running water must be used according 1 the order of nature. Thus, rain-water an drainage are to follow nature's channel — tl course jn which the water, peaceably an openly, has long been permitted to run.^ By the common law all riparian owners on tl same stream have an equality of right to the use t the water as it naturally flows, in quality and withoi diminution in quantity except as created by a reaso: able use for proper purposes. Hence, one may m throw back, nor divert, nor unreasonably detain, n( deteriorate or poison the water. But exclusive use f< twenty years may constitute a conclusive presumptio of right. 3 A riparian owner on a stream must so use his rigl as not to injure the concomitant right of anothf owner, and subject to statutory regulations. Whei he owns land on one side his use extends to the middJ thread of the stream. The right includes a right t erect mill dams and rights of fishery — both whic have their source in the ownership of the soil.* A land owner has no better right to stop the flow c a water-course which has its' origin on his land than : it arose elsewhere.' No action can be maintained for changing th course or obstructing the flow of mere surface- wate by erections on adjoining land. A party cannot b his own act alone convert a flow of s\u:tace-water int a stream with the legal incidents of a natural watei course, but the right may be acquired by adverse use for the proper period.* The courts will enjoin as a public and a private nu sance hydraulic mining which becomes injurious t navigation and destructive to the farms of riparia owners.^ A person operating a coal mine in the ordinary an usual manner may, upon his own land, drain or pum the water which percolates into the mine into a strear 1 2 Bl. Com. 18. = Kauffman v. Griesemer, 25 Pa. 418-16 (I&56); Blancl ard V. Baker, 8 Me. *865 (1838): 2 Bl. Com. 395. 'Atchison v. Peterson, 20 Wall. 511 (1874), cases Tyler v. Wilkinson, 4 Mas. 40O-8 (1827), cases, St'oiy, X Silver Spring Bleaching, &c. Co. v. Wanskuck Co i R. I. 615 (1882); 3 Kent, 439. ■> Holyoke Company v. Lyman, 15 Wall 506 (1878' Clifford, J. ' Howe V. Norman, 13 R. I. 488 (1882). « Dickinson v. Worcester, 7 Allen, 28 (1863), eascE Stanchfield v. Newton, 148 Mass. 110 (1886). ' Woodruff u. North Bloomfleld Gravel Mining Co 18 F. R. 753 (1884); 16 id. 35. See also 6 Col 447 530 92 N. Y. 480. AQUA ARBITRARY which forms the natural drainage of the basin, al- though the quantity of water may thereby be in- creased and its quality rendered unlit for domestic pm-poses by lower riparian owners. The use of the stream by such owners must ex necessitate give way to the interests of the community, in order to permit the development of the natural resources of the coun- try and make possible the prosecution of the business of mining coal.^ On the mineral lands of the public domain m the Pacific States and Territories the doctrines of the common law are inapplicable, or applicable only in a very limited extent, to the necessities of miners, and inadequate to their protection; there, prior appropri- ation gives the better right to running waters to the extent in quantity and quality necessary for the uses to which the water is applied. What diminution of quantity or deterioration in quality will constitute an invasion of the rights of the first appropriator will depend upon the special circumstances of each case; and in controversies between him and parties subse- quently claiming the water the question for determi- nation is whether his use of the water to the extent of the original appropriation has been impaired by the acts of the other parties. Whether a court of equity will interfere to restrain acts of invasion upon the rights of the first appropriator will depend upon the character and extent of the injury alleged, whether it be irremedial in its nature, whether an action at law would afford adequate remedy, jvhether the parties are able to respond for the damages resulting from the injury, and other considerations ordinarily gov- erning a court of equity in the exercise of its preven- tive process of injunction.' The civil law acts upon the maxim that water is de- scendible by nature, that its usual flow should not be interfered with, and that its burden sho.uld be borne by the land through or over which it naturally flows, rather than by land through which it can be made to flow only by artificial means. The common law does not recognize this principle as to surface-water, but permits one to protect his premises against it, not re- garding as injury any resulting inconvenience. The maxim of the civil law, aqiM currit, etc., applies gen- erally, in both systems, to running water, subject to such reasonable qualifications as the interests of agri- culture require and the enjoyment of private prop- erty will permit. As an owner has the right to protect his lands from the violence of the current, or to im- prove the same by erecting embankments, and as this cannot be done without increasing the flow upon the opposite side, it follows that this must be permitted to some degree by all persons owning lands upon the stream, else the right cannot be exercised by any one of them.' See Alluvion; Ice; Mill, 1; Biparl*n; Spring; Thkead; Water; WATER-conasE. ' Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 14S-63 (1886), cases. "Atchison V. Peterson, 20 Wall. 507, 511-16 (1874), oases. Field, J.; Bosey v. Gallagher, ib. 681-85(1874), cases; Tartar v. Spring Creek Water & Mining Co., 5 Cal .397 (1885); Sanford v. Felt, 71 id. 250 (1880), cases. s Crawford v. Eambo, 44 Ohio St. 384, 882-87 (1886), Aquarium. See Entertainment. AQUATIC. ; See Aqua ; Riparian. ABBITRAEY.i Not governed by fixed rules; not defined by statute; discretionary: as, arbitrary punishment. See Discretion; Judge. Without cause or reason shown; as, an arbitrary challenge.^ Arbitrarily. In a covenant not " arbitrarily " to withhold assent to an assignment of a lease means, without fair, solid, and substantial cause, and without reason given. A refusal grounded upon advice was held not arbitrary.' Compare Satisfactory. ARBITRATION.'' Wlien the parties injuring and injured submit all matters in dispute, concerning any personal chattel or personal wrong, to the judgment of two or more arbitrators who are to decide the con- troversy. 5 A like submission of any matter in dispute. Although some jealousy is felt in allowing refer- ences of questions regarding realty, yet references have been had in cases of partition, disputed bound- aries, waste by tenant, title of devisees, and generally upon titles. But crimes and misdemeanors are not subjects.' Arbitrator. A private extraordinary judge chosen by the parties who have a mat- ter in dispute, and invested with power to decide the same.^ Compulsory arbitration. When assent in one party is enforced by law, under a rule to refer. Volimtary arbitration. A ref- erence freely consented to by both parties. At common law, was in pais — by agree- ment out of court, with no compulsory power over witnesses. In pursuance of 9 iind 10 Will. Ill (1698), c. 15, is by rule of court — by order of a court directing that a submission upon a matter not yet in court shall be made a rule of the court. The statute enacts that all merchants and others who desire to end any controversy, suit, or quarrel (for which there is no remedy but by personal action or suit in equity) may agree that their submission of the suit to arbitration or umpirage shall be made a cases, Minshall. J. See also Barklej v. Wilcox, 86 N. Y. 143-48 (1881), cases. 1 L. arbitrarius, capricious. a 4 Bl. Com. 333. a Treloar v. Bigge, L. R., 9 Ex. 154 (1874). < L. arbitrare, to act as umpire: arbiter, a witness, a judge. » 3 Bl. Com. 16. « Brown's Law Diet. ' [Gordon v. United States, 7 Wall. 194 (1868), Grier, J. : Bouvier; 17 How. 394; 53 Barb. 595. ARCHITECT 73 ARM! rule of the klng^s courts of record, and may insert such agreement in their submission or promise, or as the condition of the arbitration-bond; which agreement being proved upon oath by a witness thereto, the court shall make a rule that such submission and award shall be conclusive.' A bond to abide the decision may be required. The arbitrators are the judges of both the law and the facts. They are not bound to disclose the grounds of their finding. They cannot modify or go beyond the precise question submitted; nor can they do gen- eral equity.^ Irregularities in appointing arbitrators, or in their proceedings, when apparent on the record, may be corrected by a writ of error; but those which are made so by extrinsic proof can be corrected only by the court below. Every presumption is made in favor of the award, unless flagrant error appears on the - record. While the proceedings remain in court (that is, unci! the arbitrators are appointed), it must appear by the record that everything is regiUar, but after they are appointed the proceedings are out of court and need not be reduced to writing.^ The powers and duties of arbitrators are regulated by statute, and explanatory decisions, in each State. Arbitrations are regarded favorably. If they settle the rights of the parties, and their award can be rendered certain by reference to documentary evi- dence, they will be sustained. An award which leaves nothing to be done to dispose of the matter except a ministerial act is sufficient.* See further Abide; Award, 2; Refer, 1; Umpire. Arbitration of exchange. See Ex- CTHANQB, 3. ARCHITECT. See Laborek. Every person whose business it is to plan, design, or superintend the construction of buildings, ships, roads, bridges, canals, or railroads, shall be regarded as an architect and civil engineer: Provided, That liiis shall not include a practical carpenter who labors on a building.** See Specification. ABGrUENDO. See Argumentum. ARGUMENT. Proof or the means of proving, or inducing belief ; a course or pro- cess of reasoning ; an address to a jui'y, or a court. See Argumentum. When a controverted question of fact is to be sub- mitted to a jury for its determination either party has an absolute right to be heard in argument thereon. The power of the court is limited to imposing reason- able restrictions as to the time to be occupied.^ See AITORNEY. ■ 3 Bl. Com. 1". " 1 Morse, Arb. & Award, 181-83, cases. ? Wilcox V. Payne, 88 Pa. 157 (1878); Tobey v. Covmty of Bristol, 3 Story, 800, 822 (1845); Corbin v. Adams, 76 Va. 61 (1881); Gaylord v. Norton. 130 Mass. 74(1881). * Cochran v. Bartle, 91 Mo. 646 (1887), cases. » [Revenue Act, 13 July, 1866: 14 St. L. 121. "Douglass V. Hill, 29 Kan. 529 (1883), cases; Foster v. MagiU, 119 m. 82 (1886); 18 Cent. Law J. 363-68 (1884), cases. Argument list. A calendar of cau for discussion and determination before court in banc, upon questions of law. { BEiEr, 3. Argumentative. By way of reasonii as, that a plea must not be argumentati^ Re-argument. A second or additioi argument. Sometimes ordered by a court of review when court wishes to hear counsel upon a material qi tion of law either not fully discussed in the first ar ment or passed by unnoticed and developed later the deliberations of the coiu't. ARGUMENTUM. L. Argument: 1 erally, that which makes clear or prov Arguere, to argue. Arguendo. In reasoning, arguing. A breviated arg. Applied to an observation made by a jud in rendering an opinion, incidental to t point under discussion and, therefore, r authoritative. Argumentum a simile. Argume from a like case — from analogy. Argwmentum a simile, valet in lege, i argument from an analogous case has weig in law. See SiMllJS. Argumentum ab ineonvenienti. I gument from a hardship, q. v. ARISE. See Judicial, Power. ARIZONA. See Territory, 2. ARM OP THE LAW. See Injuncxic ARM OF THE SEA. See Sea. ARMA. L. Weapons; war, warfai See Arms, 3 ; Lex, Silent leges, etc. ; V Vi, etc. ARMED REBELLION. See War. ARMS. Weapons, offensive or defensi^ See Arma. 1. Aggressive weapons ; instruments of i tack. At common law one may carry arms for def en But going armed with dangerous or imusual weapo by terrifying the people, is a crime against the peac See Defense, 1. Playfully or wantonly pointing fire-arms at anoth which was an assault at common law, has been mi a statutory offense with increased punishment. Discharging fire arms within the limits of incor rated towns and cites is generally prohibited. " A well regulated Militia, being necessary to i security of a free State, the right of the people to k( and bear Ai-ms, shall not be infi-inged." ' ' 3 Bl. Com. 308. "IBl. Com. 143; 4 id. 149. ' Constitution, Amd. Art. II. Ratified Dec. 15. 17< ARMY 73 AREEAK This right is preserved, also, by the Bill of Eights of each State, and the exercise regulated by statute. The right to bear arms is not a right granted by the Constitution; nor is it dependent upon that instrument for its existence. The Second Amendment declares tliat it shall not be infringed — by Congress.' See Amendment, 2; Police, 2. TWiile it is true that that Amendment is a limitation upon the powers of Congress only, nevertheless, since all citizens capable of bearing arms constitute the re- served military force of the National' government, a State cannot prohibit the people from keeping and car- rying arms so as to deprive the United States of their rightful resource for maintaining the public safety.'^ The right to bear ai*ms for the common defense does not mean the right to bear them ordinarily or commonly, for individual defense, but refers to the right to bear them for the defense of the community against invasion or oppression. In order that he may be trained and efficient in their use, the citizen has the right to keep the arms of modern warfare and to use them in such manner as they may be capable of being used, without annoyance and hui't to others." By arms, in such connection, is meant such as are usually employed in civilized warfare and constitute the ordinary military equipment.* See Treason; War; Weapon. 2. Anything that may be used for defense or attack : as, staves, Sticks, or ^other mis- siles, as well as fire-arms. Whence " force and arms." See Force, 2; Violence. ARMY. See Enlistment ; Martial Law ; Naturalizaiton (R. S. §2166); Reinstate; Station, 1 : War. AHPEN; AEPENT. A measure of land in use in this country, in the early French and Spanish times, nearly corresponding to the English acre.5 AERAIGN.* To call upon to account or answer.' To call a prisoner to the bar of the court to answer the matter charged upon him Jn the indictment. 8 Arraignmeiit. The act or proceeding of arraigning. 1 United States v. Cruikshank, 92 U. S. 553 (1875), Waite, C. J. ^ Presser v. Illinois, 116 U. S. 265 (1886), Woods, J. 'Andrews!). State, 3 Heisk. 177-89 {Ky., 1871), Free- man, J. * Andrews v. State, 3 Heisk. 184, supra; 2 Humph. 158-53. See also State v. Eeid, 1 Ala. ai4-22 (1840), Col- lier, C. J.; Wright V. Commonwealth, 77 Pa. 470 (1875); SPhila.eiO; 2Litt.,Ky.,90; 1 Kelly, Ga., 247-61; 2 Story, Const. §§ 1889-90; 8 Am. Rep. 22; 14 id. 380. 6 See 12 How. 438; Pet. 769; 4 Hall, L. J. 518. » L. ad rationem ponere, to call to account,— 2 Hale, P. C. 216. F. aranier, to speak to, cite: raison, reason. ' State V. Weber, 22 Mo. 325 (1855). »4B1. Com. 322. At common law the arraignment of a prisoner consists in calling him to the bar ; in his holding up his hand — for identifica- tion ; in reading the indictment to him — that he may understand the charge; in delnanding, whether he is guilty or not guilty; and in inquiring how he will be tried — the common answer being " By God and my country." l Constitutes no part of the trial, but is a prelimi- nary proceeding. Until the party has pleaded, it can- not be known whether there will be any trial or not.^ In a State in which the constitution provides that the trial of crimes shall be by jury and the prisoner pleads " not guilty," it is mere mockery to ask him how he will be tried, for the constitution has already declared how that shall be. As soon as it judicially appears of record that the party has pleaded not guilty there is an issue which the com't is bound to direct to be tried by a jury.' Though a formal arraignment may be proper it is not essential to the power of the court to convict, when expressly waived by the accused; especially so since there are no longer the same reasons for the for- malities of an arraignment that there were In ancient practice when proceedings were in Latin, and the ac- cused could not appear with counsel, and, after a plea of not guilty, he was required to elect between trial by jury and ordeal or wager of battel.* See Battel. The ancient formality is disused. The statutory requirement of furnishing the prisoner with a copy of the indictment takes the place of reading the indictment to him. The record should show that what took place amounted to an arraignment — as. the mention of the prisoner's presence in court, and that he was called upon to plead to the indictment.' ARRAY." Order; arrangement. The whole body of jurors as arranged upon the panel. Whence challenge to the array.' See Challenge, 4. ARREAR.8 Back, remaining back : un- paid, though due. Arrears. Money unpaid after it is due ; as, of interest, dividends, rent, taxes, wages, pensions, alimony, dower. " In arrear" — overdue and unpaid. ^ 1 4 Bl. Com. .32a-24. See 1 Steph. Hist. C. L. Eng. 297. , » United States v. Curtis, 4 Mas. 236 (1820), Story, J. 3 United States v. Gilbert, 2 Sumn. 69 (1834), Stoiy, J. ; State V. Weber, 23 Mo. 3S5-27 (1865). * Goodwin v. State, 16 Ohio St. 346 (1863), Day, J. » Fitzpatrick v. People, 98 111. 260 (1881), Sheldon, J. See also Lynch v. Commonwealth, 88 Pa. 193 (1878); Ray V. People, 6 Col. 231 (1882). • F. arrai, preparation, order. '3 Bl. Com. 369; 4tU352. 8 Old Eng. arere, rare, in the rear: F. rtej-e; L. retio, baclrward. » Hollingsworth v. Willis, 64 Miss. 1B7 (1886). ARREST 74, ARREST Said of money unpaid at the time it is due, that is, past due.i "Arrear" impliesthat no part has been paid; "ar- rears" and "arrearage," that some part has been paid." See Eies. AREEST.s 1, V. To delay, detain, stay, stop, withhold. Arrest of judgment. If, while an issue of fact is regularly decided, it appears that the complaint was either not actionable or was not made with sufficient precision, the defeated party may supersede it by arresting or staying the judgment.* Arrests of judgment arise trom intrinsic causes appearing upon the face of the record. As, where the declaration varies totally from the original writ ; where the verdict materi- ally varies from the pleadings and issue thereon ; or, when the case laid in the decla- ration is not sufficient in law upon which to found an action.* An invariable rule is that whatever matter of law is alleged in arrest of judgment must be such matter IS, upon demurrer, would have been suf&cient to over- ihrow the action or plea.* A defendant in a criminal prosecution, at any time jefore sentence, may offer exceptions to the indict- nent in arrest or si-ay of judgment; as, for want of sufficient certainty in setting forth either the person, :he time, the place, or the offense." The motion should be predicated upon some defect which appears upon the face of the record,' 2, n. Taking a thing or a person into the 3ustody of the law. (1) In admiralty practice the technical term tor an actual seizure of property. 8 After an order of discharge from arrest the marshal s to restore the party to formal possession.* See At- tach, 2; Res, 2; Seizure. (2) In civil practice apprehension of a person by virtue of lawful authority to inswer the demand against him in a civil iction.i" 1 Wiggin V. Knights of Pythias, 31 F. E. 135 (1887), lammond, J. ' Webster's Diet. ^F. areater, to stay: L. re-stare, to stand bAck, to emain. < [3 m. Com. 387. ■3B1. Com. 893-94. '4B1. Com. 375. See also Delaware Canal Co. v. Joramonwealth, 60 Pa. 371 (1869). 'Rountree v. Lathrop, 69 Ga. £39 (1882); People v. Zelly, 94 N. Y. 526 (1884). spelham v. Rose, 9 Wall. 107 (1869), Field, J.; The iOttawanna, 20 id. 221-28 (1873). » The Marys, 10 Bened. 561-6:3 (1879). 11 [Gentry v. Griffith, 27 Tex. 462 (1864), Moore, J. Restraint of the person — restriction of the right of locomotion,! The causes are mainly torts— as, frauds upon cred- itors, breaches of promise to marry, non payment of taxes, non-compliance with the order of a court, pro- fessional or official misconduct. May be made upon original, mesne, or final process. (3) In criminal practice apprehending or detaining one's person in order to be forth- coming to answer an alleged or suspected crime.2 "Apprehension" (q. v.) is sometimes used distinctively for this species of arrest. Taking, seizing, or detaining the person of another, touching or putting hands upon him in the execution of process, or any act indi- cating an intention to arrest, constitutes an arrest.3 Usually effected by means of a — Warrant of arrest. A written judicial order for the arrest of a person accused or suspected of having committed a crime. This must be in writing, under the hand and seal of the magistrate, a.nd state the cause of commitment, that it may be examined lnto,| if necessary, upon ii writ of habeas corpus.* All processes for the arrest of a party are not in- cluded in the word " warrant " as used in the constitu- tional provision that no warrant shall issue for the arrest of a person but upon probable cause supported by oath or affirmation, A capias, or writ of aiTest in a civil action, is not a warrant in the sense intended, and it is issued, at common law, as a matter of course, vrithout oath. The warrant meant is an authority for the arrest of a person upon a criminal charge with a view to his commitment and trial. The arrest of a person upon a charge of insanity, tor the purpose of his confinement, partakes more of the nature of a criminal than of a civil proceeding,* Double arrest. Twice holding a defend- ant to bail for the same cause of action. Not allowed except under very special circum- stances. There cannot be an arrest in two places for the same cause of action." raise arrest. Any restraint upon the liberty of a person without lawful cause; false imprisonment. Malicious arrest. An arrest made with- out probable cause. The malice necessary to sustain an action is not ex- press malice or the specific desire to vex or injure 1 [Hart V. Flynn, 8 Dana, 192 (Ky., 1839), Ewing, J, 2 [4 Bl. Com. 289; Montgomery County v. Robinson 85 111. 176 (1877). ' United States v. Benner, Bald. 239 (1830), Baldwin J «1B1. Com. 137; 4 id. 290-91; 71 N. T, 376; 93 id ^0- 4 Cr, L, M, 193-99. » Sprigg V. Stump, 7 Saw, 289 (1881), Deady, J, "See Hernandez v. Canobeli, 4 Duer,'642 (1855)- 14 Johns, *347; 4 Yeates, 206. ' ARREST 73 ARRIVAL another, but the willful doing of an unlawful act to the prejudice or injury of another, i All persons within the jurisdiction of the court are liable to ai-rest on civil process, except — an ambas- sador and his servant; an attorney, suitor, or sub- poenaed witness as such attending a lawful tribunal ; a clergyman at divine service; an elector at a public election; a married woman on her contract; a law- maker in attendance upon the legislative body; a soldier on military duty; sovereigns, governors of the States; and other persons, as provided in local statutes. In the case of persons attending a tribunal or a legislature the privilege protects them not only during attendance, but also during the reasonable period re- quired for going and returning,— citJido, morando, et redeundo, going, remaining, and returning." All persons in the public service are exempt, as a matter ot public policy, from arrest upon civil pro- cess while thus engaged. The rule is dKTerent when the process is issued upon a charge of felony.' May not be made in the presence of a court; nor on Sunday; nor, generally, at night. When made upon final process merely giving bail does not authorize a discharge. An unauthorized arrest renders the ofldcer liable to trespass. This occurs when the process is materially irregular or informal, or issued from a court which has no jurisdiction, or when the wrong person is taken imder legal process.* All persons are liable to arrest on criminal process — except ambassadors and their servants. It may be made: 1. Under a warrant issued by a justice of the peace when he has jurisdiction; in a case of sus- picion he is the sole judge of the probability. 3. By an oflacer without a warrant — v^hen the peace is broken in his presence; and whenever he has prob- able cause to suspect that a felony has been commit- ted and that the person he arrests is guilty; also, by watchmen, who keep watch and ward in towns, of all offenders, particularly night-walkers. 3. By a private person without a warrant — when the peace is broken in his presence ; and whenever a felony has actually been committed and he has probable cause to know that the person he arrests was the perpetrator. 4. By lue and cry,' q. v, ' Johnson v. Ebberts, 11 F. E. 129 (1880), cases. 2 See Bridges v. Sheldon, 18 Blatch. 516 (1880), cases; Atchison v. Morris, 11 F. R. 582 (1882), cases; Lamed v. Griffin, 12 id. 590 (1882), cases: s. c. 14 Eep. 253; Nichols V. Horton, 14 F. E. 327, 3i9 (1882), cases; Jones u. Knauss, 31 N. J. E. 211-16 (18791, cases; Greer v. Young, Sup. Ct. 111. (1887), cases: 26 Am. Law Reg. 372(1887); ib. 377-82, cases; 11 N. E. Eep. 107; Palmer v. Eowan, Sup. Ct. Neb. (1888): 22 Am. Law Eev. 278-80 (1888), cases; 1 Greenl. Ev. §§ 318-17; 1 Whart. Ev. §§ 389-90. s United States v. Kirby, 7 Wall. 486 (1868). ' 3 Bl. Com. 288-89; 1 Bouv. 183, cases. '4B1. Com. 289-94: Mitchell v. Lemon, 34 Md. 181 (1870), cases: Fleetwood v. Commonwealth, 80 Ky. 5 (1882): Neal v. Joyner, 89 N. C. 383-90 (1883), cases; Staples u. State, 14 Tex. Ap. 139-41 (1883), cases; Mor- ley V. Chase, 143 Mass. 398 (1887), cases; Cooley, Torts, 174-75, cases. May be made at night, and, for an indictable of- fense, on Sunday. Must be, made within the jurisdic- tion of the court or at least of the State. The officer may use necessary force; but he may not kill one charged with a misdemeanor, in the act of escaping, and, rarely, one charged with a felony.' One who is not a peace officer, de jure or de facto, by assuming to exercise the duties of such officer does not acquire more authority to make an arrest than any other private individual. In resisting arrest by such a person one may use only force enough to pro- tect himself from the assault,— unless it is necessary to save his own life, or his person from great harm, in which case he may take iife.^* See further Bail, 1 (2); Capere; Dokess; Escape, 3; House, 1; Imprison; Obstruct, 3; Pbosecutiok, Mali- cious; Eesist; Reward, 1; Sakctuary; Suspicion; Warrant, 2. AIlRrVAIj.3 Under a law imposing a forfeiture there may be an arrival of a Tes- sel at a port without an actual entry or an attempt to enter the port.* Perhaps an arrival " within " a port cannot be with- out an entry into the port.* In navigation and revenue laws is some- times used in the common sense of coming into port, and sometimes in the sense cf coming into a port of entry or destination for a particular object connected with the voyage.5 Sometimes refers to a coming into a port for any cause or purpose. This may be the literal and general meaning with the lexicographers, but, in several cases, the term denotes a coming in for certain special ob- jects of business and remaining there long enough to render an entry of the vessel proper, and a deposit of her papers with a consul prudent and useful. Thus it is when the vessel enters a port or harbor to close an outward or inward voyage. It is usually a coming to the place of the vessel's destination for her business and waiting to transact it." A vessel arrives at a port of discharge when she comes or is brought to the place where it is intended to discharge her and where the customary place of discharge is.^ As to arrival at destination of goods bailed to a common carrier, see Carrier. >'4B1. Com. 293; United States v. Rice, 1 Hughes, 662-06 (1875), cases; Reneau v. State, 2 Lea, 720 (1879). On federal arrests ot State prisoners, see 18 Cent. Law J. 168-65 (1884), cases. » Creighton v. Commonwealth, 63 Ky. 142 (1885). ' F. ai-river: L. L. ad-ripare, to land, come to shore. * [United States v. Open Boat, 5 Mas. 132 Story, J. ; United States v. Shackford, ib. 447 ( Parsons v. Hunter, 2 Sumn. 422-23 (1836), Story, J. •Harrison v. Vase, 9 How. 379-81 (1850), statutes, Woodbury, J. ' Simpson v. Pacific Mut. Ins. Co., 1 Holmes, 137-13 (1872), cases, Shepley, J. See also Gronstadt v. Witt- hofl, 15 F. E. 269, 271 (1883). AES 76 ART AHS. L. Skill in fitting or joining : skill, ■ade, calling, art. Cuique, or euilitaet, in sua arte perito, redendum est. To one practiced in his rt, confidence sliould be given. The opmiOD of a person versed in a caUing is to be iceived as evidenGe. Every one, also, is presumed to assess the skill ordinarily requisite to the due dis- large o£ the demands or duties of his vocation, i See irther Expert. ARSEWAL. See Land, Public. ABSOU .2 The malicious and willful burn- ig of the house or out-house of another.^ The malicious burning of another's house.* Burning any building so situated as to en- anger a dwelling-house was felonious arson t common law.* In some States statutes divide the offense into de- :ees, punishing most severely burnings which involve le greater danger to life. Statutes also impose pun- hments for the malicious burning of structures not le subject of arson at common law, without extend- ig that name to include them. At common law an offense against the right of habi- ;tion. Actual destruction of some integral part of le wood-work, not personalty, is necessary. 'Die iming is " willful and malicious " when not acciden- I nor for the public welfare. By " house " is meant dweUing-house or any out-building within the curti- ge, q. V. Brief absence from the house is not re- irded. If homicide results the act is also murder. The olTense may be committed by willfully setting :e to one's own house and thereby burning a neigh- >r's house. ^ Burning ones own house to defraud insurers has ;en made indictable.' See Belong; Burn. ART. 1. A principle put into practice by leans of some art, machine, manufacture, r composition of matter. See Aks. " The Congress shall have Power . . To promote le Progress of Science and Useful Arts, by securing 1 Inventors the excltisive Kight to their . . iscoveries."^ In speaking of patenting an " art " the reference is >t to an art in the abstract, without a specification of le manner in which it is to operate as a manufacture • otherwise, but to the art thus explained in the speci- :ation, and illustrated, when of a character so to ;, by a machine or model or by drawings. It is the ■t so represented or exemplified, like the principle 1 1 Bl. Com. 75; 2 Kent, BSS; 21 How. 101; 9 Mass. 227. 2 F. arson, incendiarism: L. ardere, to bum. = 4 Bl. Com. 220; 40 Ala. 664; 20 Conn, *246. < 2 Bishop, Cr. L. §8. "HiU V. Commonwealth, 98 Pa. 195 (1881); State v. cGowan, 20 Conn. *246-47 (1850). n 4 Bl. Com. 220-23. '1 Whart. Cr. L. § 813; 32 Cal. 160; 51 N. H. 176; 19 Y. 637. : ° Constitution, Art. 1, sec. 8, cl. 8. so embodied, which the patent laws protect. In the English patent acts the word " art " is not used at all. And in ours, as well as in the Constitution, the word refers to a "useful art," or to a manufacture which is beneficial, and which, by the same law, is required to be described with exactness as to its mode of operation.' " Useful art " is the general term used in the patent laws. An art may require one or more processes or machines to produce a certain result or manufacture. The arts of tanning, dyeing, making water-proof cloth, vulcanizing India-rubber, smelting ores, and numer- ous others, are usually carried on by processes, as distinguished from machines.^ Without attempting to define the term " art " with logical accuracy we take as examples of it something which. In their concrete form, exhibit what all con- cede to come within a correct definition, such as the art of printing, that of telegraphy, or that of photogra- phy. The art of tanning leather might also come within the category because it requires various pro- cesses and manipulations.^ Centuries ago discoveries were made in certain arts the fruits of which have come down to us, but the means by which the work was accomplished are at this day unlinown. It would hardly be doubted, if one dis- covered an art thus lost, and it was a useful improve- ment, that he would be entitled to a patent. He would not literally be the original inventor; but he would be the lirst to confer on the public the benefit of the invention.' See Design, 3; Patent, 2; Process, 2. 2. A description of the art of book-keeping, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is explanation; of the other use. The former may be secured by copyright; the latter, if at all, by letters-patent.* A copyright may be secured for models or designs intended to be perfected as works of the fine arts — painting and sculpture.^ See Copyright. American works of fine arts are importable free of duty.' See Furniture. 3. Trade; business; calling. Words of art are imderstbod as in the art or sci- ence ; other words, in their popular or received import " When parties who are engaged in a particular busi- ness use terms which have acquired a well-defined meaning in that business, the supposition is that they intended the terms to have their ordinary technical meaning.* A vessel was chartered to carry a cargo of oranges. 1 [Smith V. Downing, 1 Fish. P. C. 70-71 (1830), Wood- bury, J.; French u Rogers, ib. 142 (1850). = Corning v. Burden, IB How. 267 (18S3), Grier, J. ' Jacobs V. Baker, 7 Wall. 397 (1868), Grier, J. * Gayler v. Wilder, 10 How. 497 (1S60), Taney, C. J. « Baker u Selden, 101 U. S. 105 (1879), Bradley, J » R. S. § 4952. ' Act 22 March, 1883: 22 St. L. 521. e Maillard v. Lawrence, 16 How. 261 (1853); Moran v Prather, 23 Wall. 499 (1874); Greenleaf v. Goodrich lOI U. S. 284 (1879). " South Bend Iron Works v. Cottrell, 31 F. E. 256 (1887). ARTICLE 77 ASCERTAIN the captain engaging to " take the nortliem passage." The cargo becoming damaged, the charterer hbeled tlie vessel for the loss. The court below found that " northern passage " appeared to be a term of art, un- intelligible without the aid of testimony, that the evi- dence concerning it was conflicting, but that it was immaterial to decide What it meant as the claimant was entitled to the least strict deflnitlon and the actual course of the vessel came within that definition. Held, that if the term was a term of art it should have been found by the court; and that if there was no passage known as the ''northern," the vessel was bound to take the one which would carry it in a northerly direc- » tion through the coolest waters, and the court should have ascertained from the proof what passages vessels were accustomed to take and which passage the con- tract permitted.^ See Abbeeviations; Expert; Science; Technioal; Teem, 1. ARTICLE.^ 1. "A distinct portion or part, a joint or a part of a member, one of various things.'' A word of separation to individualize and distinguish some particular thing from the general thing or whole of which it forms a part : as, an article in a newspaper, an article of merchandise. 3 The radical word in the Greek means to join or to fit to as a part. It is only recently that it has been ap- plied to goods or physical property, and then only in the sense of something that is separate and individual in itself, as salt is a necessary article, or a hammer is a useful article.' When a carrier stipulates that he will not be liable in the carriage of baggage for an amount exceeding fifty dollars "upon any article," the reference is to any article coming under the denomination of bag- gage. The limitation would apply to the articles in a trunk, but not to the trunk as one article. " The article forwarded,' in a similar special contract, may cover each of several articles so strapped together as to form one package. ' 2. In the sense of a distinct portion, one of separate yet co-related parts, a clause in a contract, compact, or other formal docu- ment, is used in the expressions : An article or articles— of agreement, of amendment, of ^sociation, of confederation, of impeachment, of partnership, of peace, of war, of separation, of shipping, qq. v. In popular parlance "to article "< means to make and become bound by an article of agreement, q. v. Articled clerk. In England a person bound by indenture to a solicitor, that he may acquire the knowledge pertaining to the business of a solicitor. Articulately. By separate or distinct propositions : as, to articulately propound in a libel in admiralty. See Libel, 2. 3. Precise point of time ; the exact moment : as, to be in the article of death — in articulo mortis. ARTIFICE. See Communication, Priv- ileged, 1; Deceit; Fraud. ARTIEICIAL. 1. Pertaining to an art, trade, or profession ; technical. See Art, 2, 3. Artificially. AwUl is said to be "arti- ficially" or " inartificially " drawn, accord- ing as it employs or does not employ technical or legal words and phrases and a lawyer- like arrangement of the matter. See Con- struction. 2. Made or devised by human law ; opposed to natural — formed by the laws of God: as, an artificial body or person, q. v.; an arti- ficial day, q. v. ■ 3. Estabhshed by agreement between men ; conventional; opposed to natural — ina.de hj nature : as, an artificial boundary, q. v. ARTS. See Art. AS. Compare Such. While the omission of this word is not conclusive when the body of a complaint discloses a representa- tive capacity in the defendant as the ground of action, where the scope and averments of the complaint har- monize with the omission the action may be consid- ered against the defendant as an individual.' As near as may be. See Procedure. As soon as. See Immediately ; Possible ; Soon ; Whenever. As to. Compare Quoad. Eecurring at the commencement of several de- vises does not necessarily mdicate the commencement of a complete devise, independent of other limita- tions.'' ASCERTAIN. 1. To render definite or fixed : as, to ascertain the relief due.' " The use in pleading of an averment is to ascertain that to the court which is generally or doubtfully ex- 1 The John H. Pearson, 121 U. S. 469, 473 (1887), Waite, C. J. Appeal from the Cir. Ct. for Mass. 2F. article: L. articulus, a small Joint, a joint: Gk. arein', to fit to as part. 3 Wetzellr. Dinsmore, 4 Daly, 193 (1871), Daly, C. J. See also 6 Blatch. 68; 8 id. 2,57. < Seel Story, Eq. 5 790. 1 Bennett v. Whitney, 94 N. Y. 305 (1884). See also Cook V. Gray, 13.3 Mass. 110 (1882); 3 Cranch, C. C. 459. 2 Goi-don V. Gordon, 5 L. R., H. L. 264 (1871). = See 2 Bl. Com. 65, 465. Swift wrote " A Proposal for correcting and ascertaining the English Tongue," and South (Sermons, V, 286) says that " success is intended for the wicked man. to ascertain his destruction." » Van Vechten v. Hopkins, 5 Johns. 219 (1809). ASIDE 78 ASSEMBLY To make sure or certain; to establish, de- termine, settle.! This would seem to de,inand the observance of the usual mode of investigation, to determine the matter in question. Hence, where rent is to be " ascer- tained " by persons selected by the parties, notice of the time and place of hearing, with an opportunity for offering proofs, should first be given to the parties interested. 2 3. To acquire information as to a fact ; to become possessed of knowledge respecting an event or transaction ; to learn the truth as to a matter capable of proof. See Inquiry, 1 ; KNOWtEDGB, 1. ASIDE. See Set Aside; Stand Aside. ASPECT. A bill in equity may be framed with a "double aspect," embracing alterna- tive averments, provided that each aspect entitles the complainant to substantially the same relief, and that the same defenses are applicable to each.3 See Relief, 2. ASPORTARE. L. To carry away. Cepit et asportavit. He took and car- ried away. Words formerly used to charge an unlawful removal of personalty. De bonis asportatis. For goods carried off. The name of an action of trespass for pex'sonalty unlawfully removed, withheld or converted. See Aspoetation. ASPORTATIOlf. Carrying away or re- moving a thing — a chattel. In larceny there must not only be a taking, but a carrying away. Cepit et asportavit was the old law- Latin expression. A bare removal from the place in which the goods are found is a sufficient asportation.* See ASFORTARE. ASS. See Cattle; Hoese. ASSAULT.' An attempt or offer to beat another, without touching him.* If one lifts up his cane or his fist, in a threatening manner at another, or strikes at but misses him — this is an assauli, insultus, which Finch describes to be "an unlawful setting upon one's person." 6 It is also inchoate violence, which is considerably higher than bare threats; and, therefore, though no actual suffering is proved, the party injured may have redress by action of trespass vi et armis, wherein he recovers damages as compensation for the injury. ^ f Worcester's Diet. ' Brown v. Luddy, 11 Hun, 466 (1877). = Adams v. Say re, 70 AJa. 385 (1881) ; Fields v. Helmes, ib. 460 (1881); 17 How. 130. * 4 Bl. Com. 232; Croom v. State, 71 Ala. 14 (1881). * L. ad-aaltitSj a leap at: satire, to leap, spring. •8 Bl. Com. 180; 9 Ala. 83; 89 Miss. 534; 30 Hun, 437. An offer or attempt by force to do corporal injury to another.' As if one person strike at another with his hand or a stick, and miss him. If the other be stricken, it is a battery. Or it he shake his flst at another, or present a gun, or other weapon, within such a distance that a hurt might be given; or draw a sword and brandish it in a menacing manner. An intent to do some corporal injury must be coupled with the act.' Any attempt or offer with force or violence ■to do a corporal hurt to another, whether from malice or wantonness, with such cir- cumstances as denote at the time an intention to do it, coupled with a present ability to carry the intention into effect. ^ An unlawful attempt, coupled with a pres- ent ability, to commit a violent injury upon the person of another. ' Assailant and the assailed designate, re- spectively, the person injuring and the person injured. Abusive words cannot constitute the offense; nor can an act in defense of one's self, wife, child, servant, or property; nor an act in obedience to legal process. Unlawful imprisonment, undue liberty taken by an employer, teacher, physician, dentist, car conductor, or other person in a like position, is, or includes, an assault. An assault with intent to commit a felony is a higher offense than simple assault.* Remedies: indictment for breach of the peace; ac- tion for damages. Son assault demesne. F. His own as- sault ; his assault in the first instance. "If one strikes me first, I may strike in ray own de- fense; and, if sued for it, may plead son assault demesne: that it was the plaintiff's own' original as- sault that occasioned it. " ' Compare Manus, MoUiter. See further Battekt; Defense, 1; Indecent; Provo- cation. ASSAYER. See Coin. Any person or persons or corporation whose busi- ness or occupation it is to separate gold and silver from other metals or mineral substances with which such gold or silver, or both, are alloyed, combined, or united, or to ascertain or determine the quantity of gold or silver in an alloy or combination with other metals, shall be deemed an assayer.' ASSEMBLY. An intentional meeting, gathering, or concourse of people : of three or > 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). ' Traver v. State, 43 Ala. 356 (1869), Peck, C. J. ; Hays V. People, 1 Hill, 353-53 (N. Y., 1841). »Cal. Penal Code, § 340; People d. Gordon, 70 Cal ' 468 (1886). * People V. Devine, 59 Cal. 680 (1881). » 3 Bl. Com. 120-21 ; 4 Blaokf . 546 ; 4 Denio, 448. • Revenue Act, 18 July, 1866, § 9: 14 St. L. 131. ASSEMBLY 79 ASSESS more persons in one body ; — of any number of persons in one place. Assemblage. May be composed o( things as well as persons.* — respects things only,^ Lawful assembly. Any congregating of people or citizens directed or permitted by the law of the place. Civil assembly. A meeting of persons for purposes of trade, amusement, worship, or the like. Political assembly. Any meeting of per- sons required bs' the constitution and laws of the place: as, that of law-makers — whence "Assembly" and "General Assembly" — also, that of the Federal electors, and that of voters at "primary assemblies." Assemblyman. A. member of the legislature of a State — possibly, by restriction, of the lower house. See Legislature. Popular assembly. Any meeting of the people to deliberate over their rights and duties with respect to government ; also, the House of Eepresentatives in Congress, and the more numerous body in the legislature of a State. " Congress shall make no law " prohibiting or abridging " the right of the people peaceably to as- semble, and to petition the Government for a redress of grievances." * The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution. It is and always has been one of the attributes of citizenship under a free government. It was not therefore a right granted to the people by the Constitution. The government of the United States, when established, found it in existence with an obli- gation on the part of the States to affprd it protection. The First Amendment operates upon the National government alone.* See Petition, Bight of. In eveiy meeting assembled for a lawful purpose "there must necessarily exist an inherent power to pre- serve order and to remove by force any person who creates a disturbance. If it were not so, the guaranty of the constitution would be idle mockery. Beligious meetings, tor example, would lose their solemnity and usefulness if they could be turned into halls of dispu- tation at the will of any individual.' See Worship. Unlawful assembly. When three or more do assemble themselves together to do an unlawful act, . . and part without ' Webster's Diet. ' Crabbe's Syn. ' Constitution, Amd. I. Eatifled Dec. 15, 1701. * United States v. Cruikshank, 93 U. S. 551-63 (1875), Waite, C. J. » Wall V. Lee, 36 N. Y. 142-46 (1865), cases. See also 21 Wend. 149; 1 Gray, 183; 63 Pa. 474; 80 Alb. L. J. 124 (1879), cases. doing it or making any motion toward it.i See Mob ; Riot ; Rout. ASSENT.^ Agreement; approval; com- pliance ; consent ; willingness declared. Op- posed, dissent. Implies more than mere acceptance, — is an act of the understanding; while "con- sent" is an act of the feelings and will.« "Assent" respects matters of judgment; "consent" matters of conduct.* Acceptance, approval, consent, ratification, and assent, are often interchanged.' Express assent. Assent openly declared, in words spoken or written. Implied as- sent. Assent inferred from conduct. Mutual assent. Assent given by all the parties to an act or contract; the meeting of the minds of the parties to any transaction. Unless dissent is shown acceptance of a thing done for a person's benefit will be presumed; as in the case of a conveyance or a devise of land. Assent must be ad idem — to the same thing, and in the same sense.* *' Mutual assent," which is the meeting of the minds of both of the parties to a contract, is vital to the existence of the contract. The obligation must be correlative: if there is none on one side there can be none on the other. Moreover, this requisite asseqt must be the work of the parties themselves: the law cannot supply it.' Mutual assent of the parties to a modification is as indispensable as to the original making of a contract. Where there is a misunderstanding as to anything material the requisite mutuality of assent is wanting, the supposed contract does not exist, and neither party is boimd. In the view of the law in such case there has been merely a negotiation resulting in a failure to agree. What has occurred is as if it were not.' See Kkowledqe, 1 ; Ikquirt,!; Permit; Protest, 2; Eatification; Satisfy, 1; Silence; UuDERSTANnrNG. ASSERTORY OATH. See Oath, Offi- cial. ASSESS.' 1. To rate or fix the propor- tion which each person is to pay of a tax ; to » 4B1. Com. 14«: 3 Coke, Inst. 176. ' L. assentire, to agree to. ' Webster's Diet. * Crabbe's Syn. » 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. ' Mutual Life Ins. Co. v. Young, 23 Wall. 107 (1874), Swayne, J. » Utley V. Donaldson, 94 U. S. 47-49 (1876), cases, Swayne, J. ; First Nat. Bank of Quincy v. Hall, 101 id. 49-60(1879); 109 id. 97. • From L. assessor, an adjuster of taxes; originally a judge's assistant, one who sat by him: ctssidere, to sit near to. Compare Assize. ASSESS 80 ASSETS tax. To adjust the shares of a contribution by several persons toward a common object according to the benefit received. To fix the value or the amount of a thing.i To detei-mine by rules of law a sum to be paid; to rate the proportional contribution due to a fund ; to fix the amount payable by a person or persons in satisfaction of an es- tabhshed demand. 2 Assessor. (1) An adviser to a court ; an expert. Nautical assessor. A person, possessing special knowledge in matters of navigation and of maritime affairs, who assists, a court of admiralty.'^ Compare Alderman. (2) One who makes assessments for pur- poses of taxation or contribution. ' A person charged by law with the duty of ascertaining and determining the value of property as the foundation of a public tax.-" Assessment. The act or proceeding by which a sum due or payable is determined ; also, the sum itself as a payment or obligation. As^ an assessment — of the damages suf- fered by a plaintiff ; of the value of property taken for public use ; of money as the equiv- alent of a benefit or burden caused by a mu- nicipal improvement ; of losses in insurance ; of installments payable upon stock subscrip- tions ; of a sum to be raised by taxation, and of the portions due from individuals. Strictly speaking, an assessment of taxes is an official estimate of the sums which are to constitute the basis of an apportionment of a tax between the individual subjects of taxation within a district. As more com- monly employed, consists in listing the per- sons, property, etc., to be taxed, and in estimating the sums which are to be the guide in an apportionment of the tax between themi ; — valuation is a part of it.''' In a broad sense taxes undoubtedly include assess- ments, and the right to impose assessments has its foundation in the taking power of the government; but there is also a broad distinction between them. " Taxes " are public burdens imposed generally upon the inhabitants of the whole State, or upon some civil ' [Bouvler's Law Diet. ^ [Abbott's Law Diet. ' See The Clement, 2 Curt. 369 (1865); The Empire, 19 F. E. 559 (1884), cases. ■• Savings, &o. Society v. Austin, 46 Cal. 509 (1873), Wallace, C. J. s [People V. Weaver, 100 U. S. 546-46 (1879), Miller, J. : Cooley, Tax. 868; Bur. Tax. 198, %M. division thereof, for governmental purposes without reference to peculiar benefits to particular individuals or property. "Assessments" have reference to im- positions for improvements which are specially bene- ficial to individuals or property and which are imposed in proportion to the particular benefits supposed to be conferred. They are justified when the improvements confer special benefits and are equitable only when divided in proportion to such benefits. ' See Install- ment; Just, 2; Tax, 2; Value. Used of a business corporation, a rating or fixing, by the board of directors, of the pro- portion of his subscription which every sub- scriber is to pay, when notified of it and called upon.2 See Call, 3 (1). Political assessment. See Obticek. 3. To decide the degree of; to determine the extent of : as, to assess a punishment. A statute providing that issues of fact in criminal cases shall be tried by a jury, " who shall assess the punishment in their verdict," refers to offenses as to which the limits of pimishment are fixed by law and within which a discretion may be exercised.' ASSETS.* Property sufficient to answer a demand — made by a creditor or a legatee upon an executor or administrator, or by a creditor upon an insolvent or a bankrupt. Also, all the property of the estate of a de- qedent or of an insolvent. "All the assets" of an insolvent company, of which a receiver takes possession in New York, means all the property, real and personal, of the company.* The property of a deceased person appro- priable to the payment of his debts ; also, the entire property of a mercantile firm or trad- ing corporation.* Whatever is recovered that is of a salable nature and may be converted into • ready money is called " assets " in the hands of the executor or administrator; that is "suffi- cient" or "enough" (French assez) to make him chargeable to a creditor or legatee, as far as such goods and chattels extend.'' Originally, that which is sufficient or > Roosevelt Hospital v. Mayor of New York, 84 N. Y. 112-13 (1881), cases, Earle, J.; Palmer v. Stumph, 29 Ind. 333-36 (1868), cases; Chamberlain v. Cleveland, 34 Ohio St. 661-65 (1878), cases; Stephani v. Bishop of Chicago, 2 Bradw. 252-53 (1878); 1 Handy, 473; 3 Col. 462; 6 id. 113; 1 Wash. T. 676; Cooley, Tax. 147. = [Spangler v. Indiana, &c. R; Co., 21 ni. 278 (1859), Breese, J. 'Territory v. Romine, 2 N. M. 128(1881); ib. 467. * F. assez, sutScient: L. ad, to, for; satis, enough. 'Attorney-General t). Atlantic Mut. Life Ins. Co., 100 N. Y. 283 (1885). » Vaiden v. Hawkins, 59 Miss. 419 (1882), Ohalmers,C. J. ' 2 Bl. Com. 510, 244. ASSETS 81 ASSIGN enough in the hands of the executor or ad- ministrator to malie him chargeable to the creditors, legatees, and distributees of the deceased, so far as the personal property of the deceased, which comes to the hands of the ex- ecutor or administrator, extends for purposes of administration. In an accurate legal sense, all the personal property of the de- ceased which is of a salable nature and may be converted into money is deemed assets. But the word is not confined to such prop- erty ; for all other property of the deceased which is chargeable with, and applicable to, his debts or legacies is, in a large sense, assets, i Though generally used to denote things which come to the representatives of a deceased person, the word includes anything, whether belonging to the estate of a deceased person or not, which can be made available for the payment of debts. Hence we speak of the as- sets of a money corporation, of an insolvent debtor, of an individual, of a private partnership. The word is likewise used for the " means " which a party has as ■compared with liis liabilities.'* In the bankrupt law " assets " included all property chargeable with the" debts of the bankrupt that came into the hands or imder the control of the assignee.^ IiOgal assets. That portion of the assets of a deceased party which by law is directly liable in the hands of his executor or admin- istrator to the payment of debts and legacies. <3enerally speaking they are such as can be reached by a suit at law against the executor or administrator, either by a common judg- ment or by a judgment upon a devastavit. More accurately speaking they are such as come into the hands and power of an ex- ecutor or administrator, or such as, virtute officii, he is intrusted with by law to dispose of in the course of administration, — what- ever he takies as executor or administrator, or in respect to his office. Equitable assets. All assets, chargeable with the payment of ■debts or legacies in equity, and which do not fall under the description of legal assets.^ Termed " equitable " because (1) to obtain payment ■out of them they can be reached only through the in- strumentality of a court of equity, and (2) the rules of 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 party or result from the nature of the estate made ■chargeable.* 1 [1 Story, Eq. § 531. s [Stanton v. Lewis, 36 Conn. 449 (1857); Hall v. Mar- tin, 46 N. H. 342 (1865). 3if« Taggert, 16 Bankr. Eeg. 353 (1877). ■> [1 Story, Eq. §§ 651-62. (6) The property of a decedent available at common law for satisfying creditors is called "iegal assets," and will be applied, at common law and in equity, in the ordinary course of administration, which gives debts of a certain nature priority over others. Where, however, the assets are available only in a court of equity they are termed " equitable assets," and, ac- cording to the maxim, that equality is equity, will, after satisfying those who have liens upon any spe- cific property, be distributed among the creditors of all grades pari possit, without regard to legal priority.' "Equitable assets "are such as the debtor has made subject to his debts generally, which would not be thus subjected without his act, and which can be reached only by a court of equity. They are divisible among the creditors in ratable proportions.^ Personal assets. Assets to which the executor or administrator is entitled; per- sonalty. Beal assets. Such assets as go to the heir by descent ; assets by descent ; ' also, landed property. " Personal assets " are chattels, money, and evidences of debt available for paying the debts of a bankrupt, insolvent, or decedent. "Real assets" are such portion of the property of any such individual as consists of realty. Assets ai-e also immediate and future.* At common law (originally for feudal reasons) lands in the hands of the debtor himself were not as- sets for the payment of debts; creditors could reach only the personalty and the profits of realty. Upon the death of the debtor, in case of intestacy, the land descended to the heir and the personalty to the exec- utor. A creditor by a simple contract debt for satis- faction could look only to the personalty in the hands of the executor; while a creditor by a specialty in which the heir was named could reach the land itself in such heir's possession — his assets by descent. By will, however, the debtor might charge land with the prior payment of a debt.^ For the purpose of founding administration all simple contract debts are assets at the domicil of the debtor. A note given is merely evidence of the 'debt.' See AcoiDERE, Quando; Accoubt, 1 ; Administeb, 4; Bankeuptot; Bona; Conpobmity; Cbeditob's Bill; Insolvency; Legacy; Marshal, 2. ASSIGN.' To point out, specify, signify which of several things; to select, appoint, fix. Whence assignable, assignment. As, to assign — the particular in which a ' [Silk V. Prime, 2 L. Cas. Eq., 4 Am. ed., 358, 353, oases. " Oatlin V. Eagle Ba,nk, 6 Conn. 243 (1826), Hosmer, C. J. See also Freedman's Sav. & Trust Co. v. Earle, llOU. S. 712-20 (1884); 2 Johns. Ch. 677. » [2 Bl. Com. 244, 340, 510.] * 4 Kent, 354. » Hall II. Martin, 46 N. H. 341 (1865). » Wayman v. Halstead, 109 U. S. 656 (1884), cases. ' F. oMigner: L. asaignwe, to mark out to, ASSIGN ASSIGN contract has been broken, that is, "the breach ; " the matter in which alleged error was committed by an auditor, master, ref- eree, com-t; dower, or the third of the de- ceased husband's realty ; counsel for a pris- oner on trial; a day for a hearing, trial, argument. Assignment of errors. A pleading filed in an appellate court by a party who com- plains of errors committed by the cdurt below. 1 See Error, 2 (3). ' New or novel assignment. When a plaintiff in his replication, after an evasive plea, reduces a general wrong, as laid in his declaration, to a more particular certainty , by assigning the injury afresh, with all its specific circumstances, in such manner as clearly to ascertain and identify it , consist- ently with his general complaint. ^ Not an admission of the facts alleged in the plea; merely an assertion that the plaintiff will not investi- gate the subject-matter. ' 2. To set over something to another per- son ; to transfer, convey. Generally implies a writing. It is of all the right one has in any particular piece or pieces of property.* Compare Lease. The meanings vary with the subject-matter, but the general one is to set over or to transfer. As applied to movables, satisfied by a delivery.^ Assignable. Subject to lawful transfer; also, so transferable as to vest a right of ac- tion.* Opposed, non-assignable. Assignor. He who transfers property to another person. * Assignee. He to whom property is trans- ferred ; more particularly he to whom an in- solvent or a bankrupt makes over his whole estate for the benefit of his creditors. In patent law one who has transferred to him in writing the whole interest of the orig- inal patent or any undivided part of siich whole interest, in every portion of the United States. Compare Grantee (2) ; Licensee, 2. In strict legal parlance does not designate an "in- dorsee " of paper.' Assignee in fact. A person made an as- signee by the act of another. I [Associates of the Jersey Company v. Davison, 29 N. J. L. 418 (1860). «3 Bl. Com. 311. See also 20 Johns. 43; Steph. PI. 241. s Norman v. Wescombe, 2 M. & W. 360 (1837). 12 Bl. Com; 327; 21 N. J. L. 889. ' Watkinson v. Inglesby, B Johns. *591 (1810). • [Thacker v. Henderson, 63 Barb. 279 ' Palmer v. CaU, 2 McCrary, 530 (1881). Assignee in law. A person made an as signee by the act of the law ; as, an execu- tor, an administrator, a trustee for creditors.- An executor, as taking by operation of law, maj be deemed the assignee in law of the testator. But s legatee or devisee occupies no such position. ^ Provisional assignee. One to whom the estate of a bankrupt is conveyed until th« permanent assignee can be appointed. Assigns. Assignees — persons to whom a grantee may potentially convey ; as, in the phrase in deeds "heirs, executors, adminis- trators, and assigns." ' Comprehends a line or succession of persons.* Those to whom rights have been trans- mitted by a particular title, as by sale, gift, legacy, or other transfer or cession. Tech- nically, designated the grantees of real estate in fee-simple ; for convenience, came to em- brace in its spirit all who succeeded to the title by any other means than by descent. 5 Comprehends all those who take, immedi- ately or remotely, from or under an assignor, whether by conveyance, devise, descent, or act of the law.6 In the phrase " lawful assigns or legal representa- tives," is used in a cognate sense with "legal repre- sentatives." Thus construed it means not assignees in fact, but assigiiees in law — those upon whom the right is devolved and vested by law, as, assignees in bankruptcy.' Neither the word " assigns " nor the words " assigns forever " have any popular or technical meaning that could qualify a devise to a man and his " heirs." ^ Includes a mortgagee.' See Eeprbsentati-ve (1). Not necessary in a deed as a word of limitation indicating the quantity of the estate granted or to empower the grantee to dispose of the estate. ^^ Assignment. A transfer of property to another for himself or creditors; also, the writing containing the evidence thereof. The idea is essentially that of a transfer 1 See 3 Pars. Contr. 480. 2Hight V. Sackett, 34 N. T. 451 (1866); 3 Hun, 419; 46 Dl. 31; 23Wis. 29B. s See Baily v. De Crespigny, L. R., 4 Q. B. *186(1869); Grant v. Carpenter, 8 E. I. 38 (1864); 34 Ala. 349; 28 Miss. 246; 19 N. Y. 844; 1 Curtis, 193. * Ogden V. Price, 9 N. J. L. 169 (1827). » [Watson V. Donnelly, 28 Barb. 668 (1859). « Baily v. De Crespigny, L. E., 4 Q. B. *186 (1869), Hannen, J. ; Bro-wn v. Crookston Agricul. Association, 34 Minn. 547 (1886). ' South Pass of Mississippi, 16 Op. Att.-Gen. 157 (1878). Compare United States v. Gillis, 95 U. S. 407 (1877). ' Lawrence v, Lawrence, 105 Pa. 840 (1884). » Brown v. Crookston Agr. Assoc, 34 Minn. 546 (1886). '» Salem Capital Flour Mills Co. v. Stay ton Water- Ditch & Canal Co. , 33 F. E. 154 (1887), Deady, J. ASSIGN 83 ASSIGN by one party to another of some species of property or valuable mterest.i When commercial paper, payable to bearer, is transferred by delivery, both the right of property and the right to sue pass thereby to the transferee; and this is frequently called an " assignment " of such chose in action. But such use of the term, which has grown up under the usages of commerce, is scarcely correct. Assignment proper is a transfer by writing." See BsAREK. Domestic assignment. An assignment for the benefit of creditors, made by a debtor at the place of his domicil. Foreign assign- ment. Such assignment made in another State or county. * Legal assignment. An assignment of an interest or of property, particularly of per- sonal property, cognizable or enforceable in a court of law. Equitable assignment. A like transfer, and in a special sense refer- ring to a chose in action or a thing not in esse, cognizable by a court of equity. An "equitable assignment" is an agree- ment in the nature of a declaration of trust which a chancellor, though deaf to the prayer of a volunteer, never hesitates to execute when it has been made on a valuable or even good consideration.* 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 support assignments not only of choses in action and of contingent interests and expectancies, but of things which, having no present actual or potential existence, rest in mere possibility ; not indeed as a present posi- tive transfer operative in prcBsenti, for that can only be of a thing in esse, but as a present contract to take effect and attach as soon as the thing comes in esse: as, an assignment of the oil to be obtained in a whaling voyage noi? in progress.' To constitute an assignment in equity of a debt or other chose in action no particular form is necessary. Any order, writing, or act which makes an appropria- tion of a fund amounts to an equitable assj^nment of the fund. The reason is, the fund being a matter not assignable at law, nor capable of manual possession, an appropriation of it is all that the nature of the case 1 [Hight V. Sackett, 34 N. Y. 451 (1866). 2 Enloe V. Eeike, 56 Ala. 5M (1876), Stone, J. See also Andrews v. Carr, 36 Miss. 578 (1853). s As to effect of, see generally 36 Am. Law Eeg. 509- 12 (1887), cases; May v. First Nat. Bank of Attleboro, Sup Ct.'lll. (1887), cases: 13 N. E. Bep. 806. * Nesmith v. Drum, 8 W. & S. 10 (1844); Guthrie's Ap; peal, 93 Pa. 273 (1879); 2 Story, Eq. § 1040. «3 Story, Eq. §§ 1039-40; Mitchell v. Winslow, 2 Story, E. 638-44 (1843); Butt v. EUett, 19 WaU. 544 (1873); Traeri;. Clews, 115 U. S. 540 (1885), cases; Hol- royd V. MarshaU, 10 H. L. 209-20 (1862); 2 Bl. Com. 442. admits of, and therefore it is held good in a court of equity. As the assignee is generally entitled to all the remedies of the assignor, so he is subject to all equities between the assignor and his debtor. But, in order to perfect his title against the debtor, it is indispensable that the assignee should immediately give notice of the assignment to the debtor, for otherwise a priority of right may be obtained by a subsequent assignee or the debt be discharged by a payment to the assigned before such notice.^ An agreement to pay out of a particular fund, how- ever clear in terms, is not an equitable assignment; a covenant in the most solemn form has no greater effect. Such intent and its execution are indispensable. The assignor must not retain control over the fund — an authority to collect, or power of revocation. The transfer must be of such a character that the fund- holder can safely pay, and is compellable to pay, though forbidden by the assignor. Then the fund- holder is bound from the time of notice. A bill of exchange or a check is not an equitable assignment pro tanto. But an order to pay out of a specified fund has always been held to be "■ valid assign- ment in equity and to fulfill all the requirements of the law. 2 May be of part of a debt, without the consent of the debtor.' See Deposit, 2; Gift, 1. Preferential assignment. An assignment with preferences : made to a trustee in favor of the claim of a particular creditor or cred- itors; as, that one or more creditors shall be paid in full before others receive any- thing.'' In the nature of a special, rather than of a general, assignment. But the latter is also opposed to a particular assignment or a transfer of part of the debtor's property. In the absence of prohibitory legislation preferential assignments are valid.^ Voluntary assignment. Made of a debtor's own free will, for the benefit of creditors. Compulsory assignment. Made in pursuance of the mandate of law.^ A " voluntary assignment " means, presumably, an assignment of all of the debtor's property in trust to pay debts; as contradistinguished from a sale to a creditor in payment of his claim, and from a pledge 'Spain V. HamUton, 1 Wall. 6^4 (1863), Wayne, J. ; Laclede Bank v. Schuler, 120 U. S. 516, 514 (1887), cases; 2 Story, Eq. § 1047, cases. » Christmas v. Eussell, 14 WaU. 84 (1871), Swayne, J. See also Wright v. Ellison, 1 id. 16 (1863); Trist v. Child, 21 id. 447 (1874), cases; Ketohum v. St. Louis, 101 U. S. 316-17 (1879), cases; Basket v. Hassell, 107 id. 614 (1882); Florence Mining Co. v. Brown, 124 id. 391 (1888); Lewis V. Traders' Bank, 30 Minn. 134 (1883), cases; Goodsell V. Benson, 13 E. I. 230 (1881), cases. s James v. Newton, 142 Mass. 370-78 (1886), cases. t See 2 Kent, 532. ' 1 Story, Eq. I 370; 2 id. § 1036. « See 2 Kent, 397, 632. ASSIGN 84 ASSIZE or hypothecation as a security in the nature of a mortgage.' A voluntary assignment for the benefit of creditors is a contract — a transfer in trust for a nominal con- sideration and the further consideration of a distribu- tion of the proceeds of the assigned property among all the creditors.^ An assignment by a defendant, pendente lite, does not necessarily defeat the suit, but his assignee is bound by what is done against him. The assignee may come in by appropriate application and make himself a party, or he may act in the name of his assignor. Such assignment carries with it an implied license to use the assignor's name to protect the right assigned.^ Every demand connected with a right of property, real or personal, is assignable. But not — an ofBcer's pay; a Judge's salary; a soldier's pensiori; an action for fraud, negligence, or tort; a personal service or trust; a naked power; a right of entry for a condition broken; nor, without notice to the insurer, a policy of insurance; nor, at common law, a chose in action, or any right pendente lite.* "Where there is no restriction in any statute, in the articles of association or the by-laws, as to the dispo- sition of property, the directors of a corporation may make an assignment for the benefit of its creditors. ^ The assignee is bound by a covenant tliat inms with the land. See Covenant. An assignee for the benefit of creditors is a trustee for the creditors mainly, but, in some respects, for all parties.* He is but the hand of the assignor in the distribu- tion of his estate among his creditors. He enjoys the rights of the assignor only; he is bound wher^the assignor would be bound. He is not the representa- tive of the creditors, and is not therefore clothed with their powers; nor is he a bona fide purchaser for value, but a mere volunteer only,' After the trust has been executed the assignor's former interest revests in him, as if it had never been out of him. 3 The title which vests in an assignee in bankruptcy by the assignment relates back to the date of filing the petition.' Such assignee represents the general or unsecured creditors, and his duties relate chiefly to their interests. As to every thing, except fraudulent conveyances and preferences, he takes as a purchaser 1 [Dias V. Bouchand, 10 Paige, Ch. 461 (1843), Wal- worth, Ch. 2 Blackbume's Appeal, 39 Pa. 165 (1861), Thompson, J. = jE»p. South & North Alabama E. Co., 95 U. S. 226 (1877), Waite, C. J. <1 Pars. Contr. 223; 3 id. 480. » Hutchinson v. Green, 91 Mo. 375-76 (1886), cases. «2 Bl. Com. 480; 3 Pars. Contr. 465, 489. 'iJe Fulton's Estate, 51 Pa. 211-12 (1865), Agnew, J.; Mellon's Appeal, 3 id. 129 (1858), Strong, J. » Jacoby v. Guier, 6 S. & E. 451 (1821). As to the ef- fect of assignor's fraud upon the assignment, see 21 Am. Law Eev. 901-35 (1887), cases; as to conflict of laws respecting assignments for creditors, 1 Harv. Law Eev. 259-64 (1888). « Conner v. Long, 104 U. S. 230-44 (1881), cases; Inter- national Bank v. Sherman, 101 id. 406 (1879). from the bankrupt with notice of all outstandii rights and equities. Whatever the bankrupt could c to make the assigned property available for the ge: eral creditors he may do, and he may recover pro] erty conveyed in fraud of the rights of creditors ar set aside fraudulent conveyances.' To place parties on equal terms, an assignor of chose in action cannot be a witness against his a signee unless both are living and the latter's testimon can he obtained. Where there is entirety of interes declarations of the assignor, made previous to tl transfer, bind the assignee; but, otherwise, he cannc disparage the title of an innocent assignee or vendee Compare Conveyance, 2; Transpek. See Chosi Bankruptcy; Damnosa, Hsereditas; Lis, Pendens Novation; Pekishable; Prefer, 2; Trust, 1; Witnesi ASSISE. See Assize. ASSISTANCE. Help, aid ; furtherance. "Writ of assistance. A process issuer from a court of equity to enforce a decree as; to place in possession a purchaser of mort gaged premises sold for a mortgage debt after he has received a deed. Power to issue the writ results from the principl that jurisdiction to enforce a decree is co-extensiv with jurisdiction to hear and determine the rights o the parties — that the court does complete justice b; declaring the right and affording a remedy for its er joyment. But, as the execution cannot exceed th decree, the writ can issue only against a party boun by the decree. •> A purchaser under a decree for the foreclosure o a mortgage has a right to the writ to obtain possessioi as against parties and persons made tenants or trans ferees after the suit was begun.s ASSIZE.6 Originally, an assembly me for the purpose of ascertaining somethitij judicially: a jury, or court; a session or sit ting ; then the place where, as also the tim ■when, the session was held, the writ unde which it convened, the finding or resolution and the proceedings as a whole. Hence — i regulation, an ordinance, a statute, — some thing determined and established ; a tax o tribute of a definite amount ; also, the reduc ing a thing to certainty — in number, quan tity, quality, weight, measure, time, place. At first, the jury who tried a cause, " sitting tc gether" for that purpose. Then, by a figure, th 1 Dudley v. Easton, 104 U. S. 103 (1881), Waite, C. J ' 1 Greenl. Ev. §§ 190, 172. 3 L. assistere, to approach; ad-stare, to stand by. < Terrell v. Allison, 21 Wall. 291 (1874), cases. Field, J. Howard v. Milwaukee, &c. E. Co., 101 U. S. 849 (18791 Boyd V. United States, 116 id. 625 (1886). •2 Jones, Mort. § 1663; Watkins v. Jerman, 36 Ear 467 (1887), cases. « P. assise, assembly— of judges; decree; impost 0. P. asseoir, to sit near, assist a judge: L. assidert to sit near or together. ASSOCIATE 85 ASSOCIATE . y/ court or jurisdiction wMch summoned the jury by a commission of assize. Hence, the judicial assemblage held by the king's commission in the various counties were (and still are) termed, in common speech, '^the assizes." By still another figure, an action for recov- ering possession of lands — because the sheriff sum- mons a jui'y or assize.^ Designates the court, thp place, or the time where the judges of the superior courts of Westminster try questions of fact, issuing out of those comis, ready for trial by jury. "The assizes" are the sittings of the judges at the various places they visit on their circuits, four times a year in vacation. "As- size " also sometimes denotes a jury, and sometimes a writ.' ' ' Assizes "is the word most in use in modem books. It often signifies a single court, ASSOCIATE.' A person united with an- other in business, office, enterprise, or other interest. Associates are persons united, or acting together by mutual consent or compact, in the promotion of some common object.' Associate attorney or counsel. A law- yer who assists another in a cause ; co-coun- sel ; a colleague. Associate in crime. A confederate in the commission of a criminal offense ; an ac- complice, q. V. Associate judge or justice. A judge who serves with another on the same bench, in distinction from the "chief" justice, the "president" or "presiding" judge, g. i'. Association. 1. The act or state of being joined in common interest. 2. An organization of persons without a charter, for business, humanity, charity, cult- ure, or other purpose; any unincorporated society or body. 3. A body of persons invested with some, yet not full, corporate rights and powers : as, a joint-stock association ; a buUding and loan association. When improvement of the members is the pre- dominant idea, "society" seems to be the preferred •B^ord; and "company" or "partnership," when the idea is the making of profits. "Association" ex vi termini implies agreement, compact, union of minds, purpose, and action. May apply to those who are already associated with per- 1 3 Bl. Com. 186, 57, 60; 4 id. 369, 434; 3 id. 331; 1 id. 148, 411. a 3 Bl. Com. 58-59. ' Til. associatus, joined to; ad, to; socius, a follower, companion. 4 [Lechmere Bank v. Boynton, 11 Cush. 383, 379 (1853), Shaw, C. J. sons named or those who may come in afterward: as, in acts of incorporation." Articles of association. The instrument which creates the union between the mem- bers of an incorporation, specifies the object and form of organization, the amount and shares of capital, the place of business, the corporators, etc. ; and is distinguishable from the charter and the by-laws. Where individuals volimtarily associate together and adopt a name or description intended to embrace all of its members, and under which its contracts are made and its business carried on, such company can neither sue nor be sued by the name adopted, but in the individual names as partners. = To constitute a "partnership " there must be a com- munity of interests for business purposes. Hence, voluntary associations or "clubs," for social and benevolent purposes and the like, are not proper part- nerships, nor have their members the powers and re- sponsibilities of partners. Thus, for example, while the members of a Masonic lodge may not be held as partners for a debt incurred by the lodge, each mem- ber who assented to or advised the outlay may be held liable as an individual. ^ Associations for mutual benevolence among their own members are not associations for purely " chari- table uses." • The members of a committee, authorized to effect the incorporation of a voluhtary association, who neg- lect to perfect the re-organization, may be held as partners as between themselves, and non-partici- pating members of the association be relieved from liability.^ See Bank, 2 (2); Building; By-Laws; Charter, 2; Chohch; Clubs; Company, 3; Corporation; Partner- ship; Stock, 3(3). 4. Association of words, see NosciTtJB. ' [Lechmere Bank v. Boynton, 11 Cush. 330, ante. ' Covington Drawbridge Co. v. Shepherd, 20 How. 233 (1857), Taney, C. J.; Beatty v. Kmtz, 2 Pet. *SS5 (1839), Story, J.; 27 Alb. Law J. 336-29 (1883), cases. s See Thomas v. Ellmaker, 1 Pars. Sel. Eq. Cas. 98, 104, 111-12 (1844), cases; Laford v. Deems, 81 N. T. 614 (1880); Ash v. Uuie, 97 Pa. 490 (1881), cases; Be St. James's Club, 13 Eng. L. & Eq. 689 (1852); 3 Kent, 23; cases infra. 4Babb V. Eeed, 5 Eawle, 160 (1835); Gorman v. Rus- sell, 14 Cal. *53."j-38 (1860), cases. But some cases hold that Masonic lodges are "charities," — Duke v. Fuller, 9 N. p. 536 (1838); Burdine v. Grand Lodge, 37 Ala. 478 (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) — the funds of a " public charity " are derived from gifts and devises, and it is open to the whole public,— Ap- pleton, C. J. 5 See Ward v. Brigham, 127 Mass. 24 (1879) ; Volger v. ■Ray, 131 id. 439 (1881) ; Ferris v. Thaw, 72 Mo. 446 (1880). As to unincorporated associations, see generally 17 Cent. Law J. 343-46 (1883), cases. ASSUME AStEEISK ASSUME. To take to or upon one's self. See Assumpsit. A person who *' assumes a lease " takes to himself or accepts the obligations and the benefits of the lessor under the contract.^ "Assumed " may be used in the sense of claimed; as, in saying that assumed facts must be proved before the main fact can be inferred." (Compare Presume. ASSUMPSIT.' He engaged or agreed to do a thing. Describes a contract, not under seal, made ■witli another for his benefit^ also, the com- mon-law form of an action of trespass upon the case for damages or failure to perform' such coiitract.* " Debt " lies for an ascertained sum. originally lay for an unascertained-sum, but may now be brought for a fixed sum. Express assumpsit. An engagement in positive terms to do some particular thing ; a^, a!n obligation to pay a promissory note. Implied assxunpsit. An engagement which the law will infer from circumstances ; such obligation as reason and justice dictate, and as the law presumes a man has con- tracted to perform ; as, to pay a judgment, a forfeiture, or a penalty.* The presumption in such case is that every man engages to do what duty or justice requires him to do. " Indebitatus assumpsit. He, being in- debted, undei'took. The species of the action which charges a promise to pay from the mere fact that an indebtedness exists. Rests upon an implied promise to pay what in good conscience ought to be paid.^ Called also common or general assuTnpsit The promise, the consideration (the facts oiit of which the obligation grows), and the breach, should be averred-* Special assumpsit. The agreement, and the form of action therefor, which rests upon an express undertaking. In declaring upon a special assumpsit, the under- taking should be set out in the precise terms used. The action of assumpsit lies for — the worth of work done; the value of goods bought and delivered; money received which shoidd not be retained; money ■ Cincinnati, &c. E. Co. v. Indiana, &c. E. Co., 44 Ohio St. 314 (1886). , ■ V ' Jenkins v. State, 63 Wis. 63 (1885). s L. assumpsit, he has undertaken, he undertook: assumere, to take upon one's self. < See 8B1. Com. 168-67; Carrol v. Green, 92 U. S. 513 (1875); Hendrick ■!). Lindsay, 93 id. 143 (1876); Boston, &c. Smelting Co. v. Smith, 13 E. 1. 36 (1880), cases. '3 Bl. Com. 158, 169, 162; Lloyd v. Hough, 1 How. 169 (1843); Wallis v. Shelly, 30 F. E. 748 (1887). • 3 Bl. Com. 155, 168. spent for another at his request; a balance due on account; damages for Injury fromfwant of integril or of care or skill assumed to be possessed or exerte( See CouBT, 4 (1), Common. Indebitatus assumpsit is founded on what the l£ terms an implied promise on the part of the defenda to pay what in good conscience he is bound to pay the plaintiff. . . The law never implies a promise pay unless someduty creates the obligation; and nev a promise to do an act contrary to duty or to lav Nunquam indebitatus, he never undertook, is t name of the general issue in the indebitatus specie but has been used, like nil debet, in debt on simi contract. Non assum.psit. He has not unde taken, or did not undertake. The name i the general denial in the foregoing actions. Non assumpsit infra sex annos. He d not undertake within six years. The plea < the statute of limitations in these actions Compare Actio, Nonaccrevit, etc. See further Action, 3; Case, 3; Contract; Cc enant; Debet; Debt; Promise. ASSUEAWCE.4 Certainty; warrant; indemnity. 1. Legal evidence of the transfer of titl whereby eveiy man's estate is assured him, and all controversies, doubts, and dif culties are prevented or removed. 5 The com/mon assurances of the realm are by matt in pais, by matter of record, by special custom, aj by devise.' Collateral assurance. An assurance : addition to, or over and above, some oth assurance ; as, a bond, to the covenants in mortgage. Future assurance. Such transfer in tl future as will cure a defect in a title, — a by removing an incumbraiice, by procurii a quitclaim deed. Whence " covenant fi future assurance." « 3. Insurance; in England, llfe-insuranc Whence assurer, the assured, re-assuranc See further Insurance. ASTERISK. Indicates the words which the pages of the first edition of a tes book or volume of reports began ; enlarg( 13 Bl. Com. 162; Dermott v. Jones, 8 Wall, 9 (188 Nash V. Towne, 5 id. 702 (1866); Gaines ■«. MiUer, ] U. S. 397 (1884); National Trust Co. v. Gleason, 77 N. 400 (1877). = Bailey v. N. T. Central E. Co., 82 Wall. 63& (1874), cases," Clifford, J. s See 3 Bl. Com. 305, 308. * F. asseiXrer, to make secure: L. ad-sine-cura. = 2 Bl. Com. 294. « [4 Kent, 468. ASTUTE 87 AT or annotated editions being printed as ex- plained under A, 1, par. 3. ASTUTE. When it is said that the courts are "not astute" to do a thing, (as, to infer fraud from negligence), the meaning is that they are disinclined, not disposed, to do the particular thing. Thus, they are not only not predisposed but are re- luctant or avei-se to accepting a conclusion involving intended wrong. ASYIiUM.i Retreat, refuge ; protection, immunity. 1. A place of refuge and protection for criminals, and debtors. ** Asylum " includes not only place, but shelter, se- cimty, protection. Thus, within the meaning of the extradition treaty ot 1868 (15 St. L. 029), a fugitive from justice in Italy " seeks asylum " in this country when he claims the use of a Territory as an asylum.^ See Extradition. 2. Immunity from law ; as, the status of a public minister. 3. An institution for the unfortunate. See Sectaman. AT. 1. The prefix at-, the Latin ad, q. v. 2. The English preposition, expressing the relation of presence, nearness in place or time, direction toward. 3 The word is somewhat indefinite ; it may mean "in," "within," or "near." Its pri- mary idea is nearness, and it is less definite than in or on.* " At the terminus " of a road may mean near the terminus.* In ordinary speech, "at "more generally means " within " than *' without." Thus, at a town or at a county means at some .place within the town or county, rather than at a place without or even at the outermost verge of, but not in, such town or county. In indictments, where the utmost precision is neces- sary, the fact is generally stated to have been done at the place; and, if it were not done in the place, the venue would be wrong. " At," like "from," has not then, generally speaking, an exclusive signiflcation: as, in the expression that a canal shall begin "at the District of Columbia." ' " L. asylum, » place of refuge: Gk. a'aylos, imde- spoiled, unharmed. ' Be De Giacomo, 12 Blatch. 395 (1874), Blatchf ord, J. » Webster's Diet. * State (West Jersey B. Co.) v. Receiver of Taxes, 38 N. J. L. 802 (1876), Dixon, J. ; State v. Bay, 50 Ala. 178 (1873), Peters, C. J. 'Chesapeake & Ohio Canal Co. v. Key, 3 Cranch, C. C. 606, 604 (1829), Cranch, C. J. ; The Mohawk Bridge Co. u. Utica, &c. E. Co., 6 Paige, 562 (1837); Mason v. Brooklyn, &o. E. Co., 35 Barb. 377 (1861); Homer u. Homer, L. E., 8 C. D. 764 (1878); 28 Alb. L. J. 44. That " at a place " may not be equivalent to in the place, see In, 1 (1). Authority to construct a railroad from A to B, or beginning at A and running to B, confers authority to commence the road at some point within A, and to end it at some point within B. "At," like "from" and 'to," is to be taken exclusively, according to the sub- ^ject-matter.i The description of a survey as beginning " at " a tree does not necessarily fix the point at the center of the tree. The deed may be interpreted in conformity with the practical effect given it by the parties, as by actual occupancy to a line beginning at the surface of the tree.' Compare By; In, 1; Into; Near; On; To: Upon, 1; Within. At interest. See Interest, 3. At large. 1. In the full extent; infuU; at length ; in extenso: as, for a court to state at large that a thing should not be done ; or for proceedings to be recorded at large, in- stead of by memoranda.' 2. Representing a State or district in its ■whole extent : as, a delegate, elector, or Con- gressman at large. 3. Applicable to all of a State, all the States, or the whole territory of the United States; general: as, statutes at large, the United States Statutes at Large. 4. In general ; general, as opposed to spe- cial, particular, preferred, secured: as, the bearer at large, creditors at large.* 5. Unconfined; unrestrained; in the free exercise of natural freedom or propensities: as, an animal suffered to run at large. " Eunning at large " means strolling about without restraint or confinement, as, wandering, roving, or rambling at will, unrestrained. The restraint need not be entirely physical; it may depend much upon the training, habits, and instincts of the animal. The sufficiency of the restraint is to be determined more from its effect, its controlling and restraining influ- ence, than from the nature or kind of animal.' Whether, in a given case, physical or moral power over the animal is necessary, depends upon its nature, age, character, habits, discipline, use, and other cir- cumstances.* 1 Union Pacific E. Co. v. Hall, 91 U. S. 348 (1875), Strong, J.; Mason v. Brooklyn City, &c. E. Co., 33 N. Y. 377-78 (1861;. . . ^ 2 Stewart v. Patrick, 68 N. Y. 454 (1877). s See 3 Bl. Com. 392; 95 U. S. 420. * See 2 BI. Com. 407. 'Eussell V. Cone, 46 Vt. 004 (1874), Peck, J.; Bert- whistle V. Goodrich, 53 Mich. 459 (18S4). i, 'Jennings v. Wayne, 63 Me. 470 (1874), Dickerson, J. See also 52 Cal. 653; 49 Conn. 113; 53 Iowa, 632; 70 id, 403; 26 Kan. 868; 10 Mete. 382; 10 Allen, 151; 26 Minn. 157; 21 Hun, 249; 50 Vt. 130. ATHEIST ATTACH At law. 1. According to the course of the common law; in law, as opposed to "in equity" or according to the principles and procedure in courts of equity or chancery. 3. For the practice of law : as, an attorney or counselor-at-law. See Attorney. At least. Compare More oe Less. A publication sixteen months before a certain day ■was held valid under a statute directing tliat the pub- lication should- be made " at least six months " prior to that day.i When a city charter requires that a resolution ordering work on a street shall lie over " at least four "Weeks after its ^troduction," a resolution introduced on a Monday may be acted upon on the fourth Mon- day thereafter.* At length.. See At Large, 1 ; Entry, II, 6. At matuxity. See Maturity, 3. At once. At one and the same time.3 At par. Of nominal value ; worth the face value. See Par, 3. At sea. On the voyage. See Sea. At sight. On view ; on presentation. See Sight. ATHEIST. One who disbelieves in the existence of a God who is the rewarder of truth ajid the avenger of falsehood.* See Ihpidel; Oath; Religion. ATIiANTIC. See Cable, Submarine. The Gulf of Mexico is not the " Atlantic coast." * ATMOSPHERE. See Air. ATS. At suit of; equivalent to ads — ad sactam. ATTACH.6 1. To tie to, fasten to, aflBx, annex, q. v. 2. To lay hold upon by legal authority ; to seize, take, arrest. To take or touch, — a pre- cise expressioil of the thing actually done.' When used without qualification in a stat- llte refers to the taking and holding of the per- son or property on mesne process, subject to the further order of the court or to the final judgment in the case.s ' HpfEman v. Clark Coufity, 61 Wis. 7 (1884); Ward ti. Walters, 63 id. 43 (1885); ib. 314. 'Wright V. Forrestal, 65 Wis. 348 (1886). ' Platter v. Green, 26 Kan. 868 (1881). 'Commonwealth v. HiUs, 10 Cush. 533 (1862), Dewey, J. 5 New Haven Saw Mill Co. v. Security Ins. Co., 7 F.E. 847(1881). » F. attacher, to fasten, tack to: L. attingere, to touch,— 8 Conn. 334. ' HoUister v. Goodale, .8 Conn. 334 (1831), Hosmer, C. J. ; Pennsylvania R. Co. v. Pennock, 51 Pa. 253 (1865). " [Beardsley v. Beecher, 47 Conn. 414 (1879), Loomis, J. Attachment of the person. A writ in the nature of a capias, directed to the sher- iff, and commanding him to attach or take up the defendant, and bring him into court;' also, the summary proceeding itself. Employed to compel the appearance of a defend- ant; to enforce! the attendance of a juror or a wit- ness;'' to bring before the court one charged with contempt. 3 The ofScer makes caption of the person named in, the same manner as upon an ordinary process for ar- rest. Instead, however, of holding him to bail he brings him corporally before the court, that he may do the thing required or show cause why he has not or should not do it. Fines for disobedience are often imposed. See Contempt. Attachment of property. An actual seizure of goods, that they may be held to satisfy the judgment which the plaintiflE may recover. < The object is to take out of the defendant's possession and transfer into the custody of the law, acting through its legal ofiicer, the goods attached, that, if necessary, they may be seized in execution and be disposed of and delivered to the purchaser. Hence, in this sense, to attach is to take actual possession of the property. 5 Originally, a writ issued out of the court of common pleas, grounded upon the non-appearance of the de- fendant at the return of the original writ. The sheriff was then commanded to attach him by taking gage, that is, certain of his property, which the defendant forfeited if he did not appear; or by making him find safe pledges or sureties for his appearance.* Also the first and immediate process, without previ- ous summons, upon actions of trespass vi et armis or for other injuries— trespasses against the peace, as, deceit and conspiracy, where the violence of the wrong requires a speedy remedy. « Upon execution of a bond to discharge the attach- ment the latter becomes discharged, the grounds thereof are no longer in controversy, and the obligors become bound absolutely to pay such judgment as may be recovered.^ Attachment of vessel. Allowed after libel fiJed for work done, materials or supplies 1 3 Bl. Com. 443. ''SBl. Com. 369. 3 4 Bl. Com. 283. » Dunklee v. Fales, 5 N. H. 528 (1S31), Richardson, C. J. ; Bryant ii. Warren, 51 id. 215 (1871). 'HoUister v. Goodale, 8 Conn. 334 (1831), Hosmer^ C. J. See also Adler v. Roth, 2 McCrary, 447 (1881), cases; 5 Mass. 163; 12 id. 497; 3 Minn. 406; 51 Pa. 263- 55 Vt. 423; 76 Va. 318; 21 W. Va. 211. ' ' " 3 Bl, Com. 280; Bond v. Ward, 7 Mass. *128 (1810). ' Ferguson .,. Glidewell, 48 Ark. 201-4 (1886), cases pro and con. ATTACH ATTAINDER furnished, wharfage due, etc., and is upon the interest of the owner or part-owner. Domestic attachment. Issues against a resident of the State who is charged with fraud in contracting a debt or with remain- ing absent or absconding to defraud his creditors. Foreign attachment. Issues against a non-resident who evades service of process — in the view that a levy and sale of his property will serve the purpose of an ap- pearance by him and meet the ends of justice. A "foreign attachment" is a suit against a per- sonal defendant by name; and, because of inability to serve process on him on account of non-residence, or for other reason mentioned in a statute, the suit is commenced by a writ directing the proper officer to attach suflcient property of the defendant to answer any judgment that may be rendered against him. It is lilce an admiralty proceeding m remA The foundation of the proceeding is that the de- fendant is beyond, while his property is within, the reach of process. ^ Attachment of property was introduced at an early date in London, chiefly to operate upon debtors who covdd not be arrested because not subject to jurisdic- tion. As these persons were " foreigners " the process was called /or-etpm attachment or attachment of for- eigners' goods. ^ Execution-attachment. An attachment in execution of a judgment. A proceeding in satisfaction of a judgment — by seizing property, rights, or credits in the hands of a debtor or bailee of the defendant. The proceeding of attachment of property was de- rived from the customary law of foreign attachment in London, legislatures having modtfled the use of it, from time to time, as seemed proper. At first it was merely ancillary to other proceedings — in the nature of a proceeding in equity intended to enjoin a person from parting with the property of an absent debtor in order to compel the debtor's appearance, and being, in default of an appearance, an adjudication of the property toward the liquidation of the demand.^ Proceedings by attachment are not purely in rem; they are rather proceedings against the interest of the defendant and those claiming under him.' In New England attachment of a defendant's prop- erty, rights, and credits is an incident to a summons in all actions based upon contract. Elsewhere, the writ seeoiB to issue only upon cause shown by affi- davit, accompanied by a bond designed to secure the defendant in such damage as he may sustain on ac- 1 The Hine v. Trevor, 4 Wall. 571 (1866), Miller, J. "Pennsylvania E. Co. v. Pennock, 51 Pa. 2S0 (1865); Fiteh V. Boss, 4 S. & R. '564 (1818). » See Brandon, For. Att. 4. *See Brandon, For. Att. 4; Drake, Att. |§ 4-5; Waples, Att. §§ 3-4. sMegee v. Beime, 39 Pa. 62 (1861); Doe v. Oliver, 2 Sm. L. C, 7 Am. ed., 809, cases. count of the proceeding. The ground upon which the writ may be obtained and the details of practice vary in the different States. Speaking generally, the rem- edy is allowed for an ascertainable amount due; the plaintiff acquires such rights as the defendant had at the time of the levy; the levy itself constitutes a lien; and attachments levied simultaneously share pro rata. In many States the defendant may substitute a bond with sureties, and thereupon resume possession of the property. An attachment is " dissolved " by final judgment entered for the defendant, or, on motion, for a substantial defect apparent upon the face of the proceedings. 1 See Garnish; Oedbe, 2, Charging; Receiptor; Res, 2; Seizure. ATTACK. See Assault ; Collaterally. ATTAINT)ER.2 Staining; corrupting; pollution of blood; extinguishment of in- heritable quality of blood. When sentence of death is pronounced the immediate, inseparable consequence at com- mon law is attainder: the condemned is without the protection of the law, his estates are forfeited, his blood corrupted. 3 The word is derived from attiricta; the stain or corruption of a criminal capitally condemned. The party attainted lost all inheritable quality — he could neither receive nor transmit property or other rights- of inheritance.* Bill of attainder. A legislative act which inflicts punishment without a judicial trial.*' If the punishment be less than death, the act is termed a bill of pains and penalties.^ Bills of attainder (or acts of attainder as they were called when passed into statutes) were laws which declared certain persons at- tainted — their blood corrupted so that it lost heritable equality.* " No Bill of Attainder . . shall be passed." » " No Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted." ' "No State shaU . pass any Bill of Attainder." ' Within the meaning of the Constitution bills of at- tainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and offices of a judge: it assumes judicial magistracy; it pronomices upon ■ See Brandon; Drake; 1 Bouvier, 202-3. On attach- ing debts, see 18 Cent. Law J. 468 (1884), cases. "F.ateindre, to convict,— Skeat. F. attaindre, to stain, accuse: L. ad-ttngere, to reach to, touch,— Webster. L. attinctxis, stained, blackened,— 4 Bl. Com. 380; 39 N. Y. 430; 4 Wall. 387. 3 4 Bl. Com. 380-89; 2 id. 251-56. ' [Exp. Garland, 4 Wall. 387 (1866), Miller, J. 6 Cummings v. Missouri, 4 Wall. 323 (1866), Field, J. « Constitution, Art. I, sec. 9, cl. 3. ' Ibid., Art. in, sec. 3, cl. 2. "Ibid., Art. I, sec. 10. ATTEMPT 90 ATTEMPT the guilt of the party, without any of the forms or safeguards of trial; it determines the sufSoiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense. Such bills are generally di- rected against individuals by name, but they may be against a whole class; and they may infli ct punish- ment absolutely or conditionally.! ' In England attainders of treason worked corrup- tion of blood and perpetual forfeiture of the estate of the person attainted to the disinherison of those who would otherwise be his heirs. Thereby innocent chil- dren were made to suffer because of the offense of their ancestor. When the Constitution was framed this was felt to be a hardship — rank injustice. The provision was intended for the benefit of the chil- dren and heirs alone,— a declaration that the children should not bear the iniquity of the fathers. In this light is to be construed the Confiscation Act of 1882.2 Courts of justice were employed only to register the edict of Parliament and to carry the sentence into execution. 8 In England bills of this sort have been usually passed in times of rebellion, of gross subserviency to the crown, or of violent political excitements.* Shortly after the Eevolution, acts of attainder were passed in several of the States. In England, by 33 and 34 Vict. (1870), attainder upon conviction is abolished. See Test, Oath, ATTEMPT. 1, V. To perform an act toward accomplishing a purpose ; to do any- thing by physical exertion tending to produce an unlawful result. To make an efifort to effect an object; to make a trial or experiment ; to endeavor ; to use exertion to a purpose. 5 3, n. In its largest signification, a trial or physical effort to do a particular thing.c ■ Can only be made by an actual ineffectual deed done in pursuance and in furtherance of the design.^ Consists of an act of endeavor to commit a particular offense, and an intent by that act alone, or in conjunction with other necessary acts, to commit it.^ Both these elements must be specifically charged.' It is impossible to comprehfend all cases in a defini- tion that does not necessarily run into a mere enumer- ation of instances. There must be a combination of 1 Cummings v. Missouri, 4 Wall. 323 (1866), Field, J. ' Wallach ii.Van Eiswick, 92 U. S. 210 (1875), Strong, J. See also 2 Bl. Com. 256. » Drehman v. Stifie, 8 WaU. 601 (1869). * 2 Story, Const. § 1344. s Commonwealth v. McDonald, 5 Cush. 367 (1850), Fletcher, J. « Lewis V. State, 35 Ala. 387-^ (1860), cases. Stone, J. ' Uhl II. Commonwealth, 6 Gratt. 709 (1849). s State V. WeUs, 31 Conn. 212 (1863), Butler, J. ; Gray v. State, 63 Ala. 73 (1879). intent and act — an intent to commit a crime and an afct, done in pursuance thereof, which falls short of the thing intended. While preliminary preparations,— conditions not causes, — may co-exist with a guilty in- tent, they may not advance the conduct of the party beyond the sphere of mere intent. ^ While "attempt" conveys the idea of physical ef- fort to do an act, or to accomplish an end, " intent " ex- presses the quality of mind with which the act is done. ^ An "intent" implies purpose only; an "attempt" both purpose and actual effort to carry the intent into execution.^ "Intent" indicates the purpose existing in the mind; "attempt" the act to be committed.* A statutory punishment for an attempt to poison is not incurred by an unexecuted determination to poison, though preparation is made for the purpose; nor by the actual administration of a substance not poisonous, though believed to be so.' Merely delivering poison to a person and soliciting him to place it in a spring is not " an attempt to ad- minister poison" — the act not approximating sufft- ciently near to the commission of murder to establish an attempt to commit it, within' the Pennsylvania act of March 31, 1860, § 82, which is a copy of 1 Vict. (1837), c. 85, sec. 3.8 When the attempt to commit the principal or ulti- mate offense is made, the distinct offense of attempt- ing is complete.' Every attempt to commit a felony not murder is a misdemeanor; and, generally, an attempt to commit a misdemeanor is a misdemeanor 'of the same nattn:e. But merely "soliciting " another to do an act is not an attempt to do that act.s It cannot be maintained as a universal principle that an attempt to commit a misdemeanor is, by the common law, a misdemeanor. The law has declared many acts to be misdemeanors where the purpose of the offender was not consummated, although, if con- summated, it would have been an offense only of this grade. In such cases there must be an unlawful pur- pose and an act committed which would carry it into immediate execution, unless prevented by some coun- teracting force or circumstance.' See Administer, 1. 1 United States v. Stephens, 12 F. E. 55 (1882); Dea(}y, D. J.; 14 Cal. 160; 60 id. 71; 62 id. 297; 1 Whart. Cr. L. §§178,181; 1 Bish. Cr. L. § 668. = [State V. Marshall, 14 Ala. 414-15 (1848). = Prince v. State, 35 Ala. 369 (1860); 14 Ga. 59. * Stabler v. Commonwealth, 95 Pa. 321 (1880). » State V. Clarissa, 11 Ala. 60 (1847). ' Stabler's Case, supra. See also Eegina v. Williams, 47 B. C. L. 689 (1844); Eegina v. Lewis, 38 id. 207 (1840); Eegina v. St. George, ib. 193 (1840). Compare People V. Bush, 4 HiU, 133 "(1843). See 2 Steph. Hist. Cr. L. Eng. 221-25. ' State V. Decker, 36 Kan. 720 (1887); Kan. Crim. Code, §§ 283, 121. B4 Bl. Com. 221, 241; Stabler's Case, supra; Smith •«. Commonwealth, 54 Pa. 211-13 (1867), cases; Kelly u Commonwealth, 1 Grant, 484 (1858); Eex v. Butler, 25 E. C. L. 441 (1834). » Lamb v. State, Sup. Ct. Md. (1887), Bryan, J., decid- ing that the solicitation of a woman to take drugs to pro- ATTEST 91 ATTORNEY ATTEST.i To bear witness to : to signify, by subscription of his name, that the person has witnessed the execution of the particular instrument. Compare Sign; Subsceibe, 1. In its strict sense to witness or bear wit- ness to. The principal object in requiring that an instrument shall be executed in the presence of witnesses is that they may see that the same is properly and fairly executed. But the ordinaiy use of the word, as applied to the execution of deeds, requires that ihe witnesses should attest in writing : the prin- cipal end of which seems to be to preserve evidence that the instrument was executed in the presence of the required witnesses.^ To "attest" the publication of a paper as a last will, and to " subscribe " to that paper the names of the witnesses, are different things. Attestation is the act of the senses; subscription, the act of the hand: the one is mental, the other mechanical. To " attest " a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to "subscribe" a paper pub- lished as a wiU is only to write on the same paper the names of the witnesses for the purpose of identifica- tion. There may be a perfect attestation in fact with- out subscription.3 An " attesting " witness, under the Statute of Wills, is one who at the time of attestation would be compe- tent to testify in court to the matter.* The last requisite to the validity of a deed is the attestation or execution of it in the presence of wit- nesses; necessary rather for preserving the evidence than for constituting the essence of the deed,* The number of witnesses necessary to a valid will, and whether there shall be any at all to a deed, and the particular facts to which they must certify, vary in the different States. • See further Deed, 2; Presence; Will, 2; Witness. 2. To certify to the verity of a copy of a public document. Eeferring to judicial writings or copies thereof, as the copy of the record of a judicial process, seems to cure an abortion is not withm the act of 1868 of that State,^that the common-law rule was not altered by the act. Same case, 26 Am. Law Reg. Ml (1887); ib. 645-54, cases. See generally 17 Cent. Law J. 26-88, 45-50 (1883)— Irish Law Times (1882). ■ L. attestari, to be a witness to. See Testis. » Wright V. 'Wakefield, 4 Taunt. *223 (1812), Mans- field, C. J. s [Swift V. Wiley, 1 B. Mon. 117 (Ky., 1840), Eobert- fion, C. J . See also Be Downie's WUl, 42 Wis. 76 (1877) ; 49 Conn. 249: Webster. * [Jenkins v. Dawes, 115 Mass. 601 (1874), Gray, C. J.; S Kok. 350. » 2 Bl. Com. 307. See also Ladd v. Ladd, 8 How. 31-39 (1860), cases. "See Lord v. Lord, 58 N. H. 7 (1876); Dyer v. Dyer, S7Ind.l7(1882). intend an authentication by the clerk of the court so as to make them receivable as evidence.' ATTOB.N.^ To turn over: to transfer service to a new lord ; to recognize as land- lord the ti-ansferee of a leasehold. Attornment. The consent of a tenant to the grant of his landlord. 3 The acknowledgment by a tenant of a new landloi'd, and an agreement to become ten- ant to the purchaser.* As the feudal obligation between lord and vassal was reciprocal, the lord could not alien his seigniory without the consent of the vassal. This consent was expressed by what was called " attorning " — profess- ing to become the tenant of the new lord: a doctrine afterward extended to all leases for life or years. By 4 and 5 Anne (1706), c. 16, no longer necessary to com- plete a grant or conveyance. * ATTOENEY.6 One who is put in the place, stead, or "turn" of another to man- age his affairs of law.' An attorney-at-Jaw ; a lawyer. A person employed by another to act in his behalf; an agent. Formerly, one who in any manner acted in behalf of another. 8 Attorney-at-law. A person whose pro- fession is to represent litigants in the man- agement of their causes before the courts. Attorney-in-faot. One who serves an- other as agent in the doing of a particular thing;, an agent for the transaction of an act specified in a sealed instrument called a "letter" or "power" of attorney. An attomey-at-law may act as an attorney-in-fact. Any one who may serve another as agent may be made an attorney-in-fact. Persons are often ai>- pointed attorneys-in-fact to transfer certificates of stock, to acknowledge satisfaction of mortgages, to transfer realty, to collect rents, — to attend to all one's business generally in a particular place or country. See Delegatus. Persons acting professionally in legal for- malities, negotiations, or proceedings by ' Gass, &c. Manuf. Co. v. People, 4 Bradw. 615 (1879), cases, McAllister, J. ' At-turn'. F. atorner, to prepare, direct, dispose. 3 Soudei-s V. Vansickle, 6 N. J. L. 317 (1826). * I jndley v. Dakin, 13 Ind. 389 (1859). See also Willis V. Moore, 59 Tex. 636 (1883); Lyon v. Washburn, 3 Col. 204-6 (1877); 1 Washb. E. P. 28. » 2 Bl. Com. 288-89, 72. ' F. attorner, to attorn, g. v. ' 3 Bl. Com. 85. ^ » ■■' Our only High Bishop, only attorney, mediator,"— A Short Catechism (1553). " Attomies are denied me, and therefore personally I lay my claim,"— Shakes- 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 regarded as " attorneys-at-law " within the meaning of that designation in this country.! An attorney may be an " attorney-in-fact " or "private attorney," or an " attorney-at- law" or "public attorney." The former is one who is given authority by his principal to do a particular act not of a legal char- acter. The latter is employed to appear for the parties to actions, dr other judicial pro- ceedings, and is an officer of the courts.^ The word " attorney " alone does not necessarily import tliat the person is an oii&cer of a court; ^ but, standing unqualified, ordinarily it refers to an attor- ney-at-law.= In this country the distinction between " attorney " or " solicitor " and " counsel " is practically abolished. The lawyer in charge of a case acts both as solicitor and counsel. His services in the one capacity and in the other cannot be distinguished.^ In practice when a member of the bar signs a common -law pleading it is as "attorney; "when he signs an equity pleading it is as " solicitor." The dis- tinction arises merely from the two modes of proceed- ing. He is counsel and attorney of the court in either case.' In courts of admiralty his title is " proctor." February 5, 1790, the Supreme Court " ordered that counsellors shall not practice as attomies nor attor- nies as counsellors in this court." August 12, 1801, it was " ordered that counsellors may be admitted as attornies " on taking the usual oath.^ Compare Advocate; Barrister; Counsel; Lawter; Proctor; Sergeant. 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. The form of oath taken and subscribed by a per- son applying for admission to practice before the Supreme Court is as follows: "I, , do solemnly swear (or af&i'm) that I will demean myself, as an at- tomey and counsellor of this coui-t, uprightly and ac- cording to law, and that I will support the Constitution of the United States." The order admitting an attorney to practice is a judgment of the court that a party possesses the req- uisite qualifications and is entitled to appear and to conduct causes. By virtue of this order he becomes 1 Savings Bank v. Ward, 100 U. a 199 (1879), Clif- ford, J. 2 [Hall V. Sawyer, 47 Barb. 119 (1866), Potter, J. 8 Ingram v. Richardson, 2 La. An. 840 (1847); Clark u.- Morse, 16 La. •576 (1841); 6 La. An. 706; People v. May, 3 Mich. 605(1855). *iJe Paschal, 10 Wall. 493 (1870), Bradley, J. See 19 Am. Law Eev. 677 (1885) — as to relation in England; also The Nation, No. 964, p. 503. " Stinsonu. Hiklrup, 8 Biss. 378 (1878), Drummond, J. See 8 Bl. Com. 25-29. » Bules and Orders of the Supreme Court, 1 Cranch, XV, xvii. 'B. S. §747. an ofHcer of the court, holding office during good be- havior. ^ He is an agent to conduct a suit to judgment and execution. The utmost good faith is exacted of him toward- the court and his client. The authority in the court to remove him is intended to secure the exercise of this degree of fidelity. = He is liable in damages for the want of such skill and care as members of the profession commonly possess and exercise in like matters.* He is not answerable for anything said relative to the cause in hand, although it should reflect upon the reputation of another and even prove groundless; but otherwise if he goes out of the way of legitimate comment and willfully asperses character. ^ See Slander. Wittiout consent he cannot buy, except as trustee, an adverse iuterest touching the thing to which his employment relates.' He has a lien on papers or on a fund in his hands, as well as a right of action, for the worth of his serv- ices.' His fee cannot be included in damages sustained. The reasons are: there is no standard by which fees are measured, some attorneys charging more, and some clients being willing to pay more, than others; more counsel are sometimes employed than are neces- sary; and, if the rule were otherwise, the amount charged by attorneys and allowed by successful clients would be abused.^ He is answerable to the court for any misconduct calculated to bring discredit on the court and reproach upon the administration of justice.^ The power in a court to remove an attorney is in- cluded in the power to admit him to practice. This power win be exercised where his continuance in ' Exp. Garland, 4 Wall. 378,(1866), Field, J. , 2 Rogers ti. The Marshal, 1 Wall. 651 (1863), cases; Randall v. Brigham, 7 id. 540 (1868), cases; Be Paschal, 10 id. 491, 496 (1870), cases. ' Savings Bank v. Ward, 100 U. S. 198, 195 (1879); Dundee Mortgage Co. v. Hughes, 20 P. R. 39 (1884): 34 Am. Law Reg. 197, 202-7 (1885), cases; Shattuck v. Bill, 142 Mass., 63-64 (1886), cases; 21 Am. Law Rev. 238-57 (1887), cases; 22 Cent. Law J. 60 (1886),— from Law Times (Eng.). ■• 3 Bl. Com. 29; Munster v. Lamb, 49 L. T. R. 253 (1883): 28 Aib. Law J. 445; Stewart u Hall, 83 Ky. 380-81, 383 (1885), cases; Weeks, Att'ys, § 110, cases; Cooley, Const. Lim. 443. 'Baker v. Humphrey, 101 U. S. 501 (1879), cases, Swayne, J.; Eodgers v. Marshall, 3 McCrary, 76, 82-85 (1881), cases. • Re Paschal, 10 Wall. 483 (1870), cases; McPherson V. Cox, 96 U. S. 417 (1877); 2 Kent, 640. As to his lien for services, see generally 18 Abb. New Cases, 23-40 (1886), cases ; as to his general or retaining lien, 20 Am. Law Rev. 727-40 (1886), cases; as to his speeial'lien on judgments, ib. 821-47 (1886), cases; 21 id. 70-88 (1887), cases ; acting for married women, 20 Cent. Law J. 365- 368 (1885), cases. ' Oelrichs v. Spain, 15 Wall. 231 (1873), Swayne, J. 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 profession, and where reprimand, suspension, or fine will not accomplish the end. Gtenerally, opportunity to explain his conduct will be afforded him: the pro- ceedings being quasi criminal ; but for an act done in the presence of the court no formal allegation is nec- It is laid down in all the books that a court has power to exercise summary jurisdiction over its at- torneys to compel them to act honestly toward their clients, to punish them by fine and imprisonment for misconduct and contempts, and, in cases of gross mis- conduct, to strike their names from the roll. If reg- ularly convicted of a felony, an attorney's name will be struck oft the roll as of course; because he is rendered intamoiis. If convicted of a misdemeanor which imports fraud or dishonesty, the same course will be taken; as also for gross malpractice or dis- honesty in his profession, or for conduct gravely Affectiag his character. Although it is not strictly regular not to grant a rule to show cause why he should not be struck ofl, without an afSdavit making charges against him, yet, under the circumstances of .a particular case, the want of an affidavit may not render disbarment proceedings void as coram non judice. Where an attorney commits an indictable of- fense, not in his character of attorney, and does not admit the charge, the rule is not inflexible that the court will not strike his name from the roU until he has been regularly indicted and convicted: there may be cases in which it is proper for the court to proceed without such previous conviction, — as where an at- torney who had participated in " lynching " a pris- oner made an evasive denial of the charge and failed to offer counter testimony to the evidence of his guilt, in itself clear. The proceeding is intended to protect the court from the official ministration of persons unfit to practice as attorneys therein. It is not a criminal proceeding and does not therefore violate the right of trial by jury. The proceeding, furthermore, when in- stituted in proper cases, is " due process ot law." Special proceedings are provided for by statute in some of the States, requiring a formal information under oath to be filed, with regular proceedings and a trial by a jury. In the Federal courts the circum- stances ot each case must determine whether and when it is proper to dispense with a preliminary con- viction.2 . See further Admission, 2; Aobnt; Care; Cham- perty; Communication, Privileged, 1; Compensation, 1; Compkomisb; Feb, 3; Contempt, 1; Knowledge, 1; Maintenance; PETTipoGOEa; Stipulation, 2; Tbusteb; Woman. 1 Bradley v. Fisher, 13 Wall. 354 (1871); Be Paschal, 10 id. 491 (1870); Bandall v. Brigham, 7 id. 540 (1868); Exp. Garland, 4 id. 378 (1866); Exp. Steinman, 95 Pa. 230-39 (1880), cases, Sharswood, C. J. 2 Exp. WaU, 107 U. S. 265, 273, 280, 287 (1882), cases, Bradley, J. ; s. c. 13 F. E. 814, 820-23, cases. See also People V. Appleton, 105 111. 474 (1883); Farlin v. Sook, 30 Kan. 409 (1883). See generally, Weeks, Attorneys; Forsyth, Hist. Lawyers. Attorney-general. 1. King's counsel.i 2. The head of the department of justice in the government of the United States. The chief law-officer in the government of each State. The former has a deputy in each judicial district, known as the " United States district attorney ; " and the latter has a deputy in each county, known as the "district" or " county attorney," the attoi-ney for the people, Commonwealth, State, or govern- ment. The attorney representing the United States is also often referred to as the at- torney or counsel for the government. In the capacity of accusing and trying alleged violators of the criminal law, they are sever- ally spoken of as the "prosecuting attor- ney " 2 or attorney for the prosecution. The attorney-general of either government may ap- pear by a special deputy attorney-general; and their subordinates, in districts and counties, by assistant district attorneys. The attorney-general of the United States is not authorized, by the law creating and defining his office, to give legal opinions at the call of Congress. His duty to render such opinions is limited to calls from the President and the heads ot departments,^ q. v. He manages government suits before the Supreme Court. His opinions are preserved in a series of re- ports known as the Opinions of the Attorneys-General, which include decisions rendered from 1791 to date. The attorney-general of a State advises the governor, and exhibits informations in the name of the State. Attorney, letter of, or power of. The instrument by which the authority of an at- torney-in-fact is set forth. This is general, when the authority is to act generally in the premises ; and special, when limited to a particular act or acts. The for- mer may be, in addition, limited or unlimited. A power ot attorney which authorizes the agent to vote is called a " proxy," q. v. The authorization may be by parol or under seal: the latter is the method when an act under seal is to be done. The expression "letter" or "power" im- ports a sealed instrument. All powers are strictly construed; general terms, in subordination to the particular subject-matter.* The intention of the parties, not the letter, should control. The instrument should be construed to effect- uate the object, if it can be ascertained.' See Seal, 1. '3 Bl. Com. 27, 261; 4 id. 308; 1 Steph. Hist. Cr. L. Eng. 499. 2 People V. Hallett, 1 Col. 359 (1871). sDuty of Attorney -General, 15 Op. Att.-Gen. 475 (1878), cases; 1 Kent, 306; R. S. § 68. «See Story, Agency, §§ 462, 600; 2 Kent, 643-46; 1 Pars. Contr. 94; 8 Pick. 493. s Commonwealth i;. Hawkins, 83 Ky. 261 (1885). AUCTION 94 AUCTION Attorney, warrant of. An instrument authorizing an attorney-at-law to appear in an action on behalf of the maker, or to con- fess a judgment against him. The universal rule is to permit gentlemen of tlie bar to appear in causes without first procuring a warrant of attorney to appear.^ Frequently authorizes any attorney of a court of record to confess a judgment against the maker, in favor of a person named. It is generally under seal; and it must be for a sum certain. A common use is as a security in the hands of a creditor; it is then in some places popularly called a "judgment-note." May recite an accompanying bond, stating the terms upon which that was given; and be available only upon a breach of the condition in the bond — as, upon a default in paying money, in which event the cred- itor may procure a judgment at once without the delay of a suit, and, after that, have execution, etc. The form in general use also provides for the payment of costs and an attorney's commission out of the maker's property; releases the right to claim advan- tage from errors made in the proceedings ; and waives stay of execution and exemption of property from levy and sale. The entry of one judgment exhausts the authority; after that the warrant is merged into the judgment — a higher species of security.^ See Cognovit; Confession, 1, Judgment. AUCTION.s A public sale of property to the most favorable bidder. A sale by consecutive bidding, intended to realize the highest price by competition for the article.* When the law requires a sale of property to be made at public auction after due no- ticje, it is for the purpose of inviting compe- tition among bidders, that the highest price may be obtained.' Auctioneer. A person who conducts an auction. May refer to one who sells his own goods, as well as one who sells the goods of another, at public auction. 6 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 executive officers., and executors, administrators, and guardians, acting in their of&cial capacity.^ An " auction " sale is a public competitive sale. The person who conducts it is an " auctioneer." It is part of his engagement to invite and excite competition, and 1 Osborn v. United States Bant, 9 Wheat. 830 < = See 8 Bl. Com. 397. = L. audio, increase: augere, to Increase. 4 [Hibler v. Hoag, 1 W. & S. 653 (1841); CampbeU v. Swan, 48 Barb. 113 (1865). 6 Porter v. Graves, 104 U. S. 174 (1881), Miller, J. « City of Goshen v. Kern, 63 Ind. 473 (1878), Howk, 0. J. ' Bevenue Act, 13 July, 18(i6: 14 St. L. 119. to dispose of the property to the highest bidder. The practice originated with the Eomans, who gave it the descriptive name of audio, an increase, because the property was sold to him who offered the most for it. Military spoils were thus disposed of, the sales being conducted sub hasta, under a spear — stuck in the ground. (A modern popular phrase Is "under the hammer.") Later came into use sale "by the can- dle " — while a candle burned one inch; and still later " Dutch auction " — an offer at a price above its value with a gradual lowering until some person purchased the article. In each method competition has been a necessary element. ' There may be a sale to the lowest bidder, as when land is sold for non-payment of taxes to any one who will take it for the shortest term, A price may be set imder which no sale will be permitted, provided public^ notice thereof be given beforehand. Parties may unite to purchase in good faith. = The conditions of sale should state whether or not the sale Is "without reserve " and whether a right to bid is also reserved. A material error in the descrip- tion of realty makes the sale voidable, g. v. A default- ing pm-chaser may be made to pay a deficiency on a resale, subject to the former conditions." The auc- tioneer may not bid for himself nor by an agent, even though he offer a fair price: the reason being, the law will not permit a test to be made between interest and duty. Till a sale has been made he acts for the vendor ; after the sale, for some purposes, as, to take the case out of the Statute of Frauds, he is agent for the buyer.* To exempt a sale of realty from the operation of that statute he must write the buyer's name In the memo- randum of sale.* He has a special property in goods, and a lien for costs and commissions. If the vendor is undisclosed, he is liable as vendor. He is also liable for the want of due care and skill.' He has all the liabilities of an ordinary agent. If he sells goods "as auctioneer," without naming the principal, he is liable as if selling for himself; and If the title proves defective, independently of the doc- trine of Implied warranty, he may be sued by the pur- chaser, as for money had and received, on the ground that the consideration has failed.'' See further Bid; Commerce; Concern, For whom; Jobber; Sale, Public; Vendue. ""CrandaU v. State, 88 Ohio St. 481-82 (1876), Ash- burn, J. = See Smvdl v. Jones, 1 'W. & S. 136 (1841); Piatt v. Oliver, 1 McLean, 801 (1837); Kearney v. Taylor, 15 How. 519 (1833); Smith v. UUman, 58 Md. 189 (1883), • Weast V. Derrick, 100 Pa. 509 (1882). * Veazie u Williams, 8 How. 151-56 (1850), cases. As to that statute, see 19 ■ Cent. Law J. 347-49 (1884), cases. = Doty V. Wilder, 15 III. 410 (1854), cases; 2 Kent, 540; 13 Am. Deo. 398-400, cases. » 3 Pars. Contr. 12. ' Seemuller v. Fuchs, 64 Md. 217 (1885), cases; Edger- ton V. Michels, 66 Wis. 129 (1886), cases. Same cases, 24 Am. Law Reg. 250, 260; ib. 263-1 AUDIRE 95 AUDIT AUDIEE. L. To hear. Compare Oyeb. Audi alteram partem. Hear the other side — the accused, the defendant. No man is to be condemned miheard.' See No- tice, 1, Judicial. Audita querela. The complaint having been heard. An audita querela lies where a defendant, against whom a judgment is recovered and ■ who is therefore in danger of execution, may be relieved upon good matter of discharge which has happened since the judgment : as if the plaintiff has given him a general re- lease, or if the defendant has paid the debt without procuring satisfaction to be entei-ed on the record. In these and like cases, wherein the defendant has good matter to plead, but has had no opportunity of plead- ing it, an audita querela lies, in the nature of a bill in equity, for relief against the op- pression. The writ is directed to the court below ; states that the complaint of the de- fendant has been heard {audita querela de- fendentis) ; and, after setting out the matter of the complaint, directs the court to call the parties before it, and, having heard their al- legations and proofs, to cause justice to be done between them. 2 The writ was invented lest in any case there should be an oppressive defect of justice, where a party who has a good defense can not make it in the ordinary forms of law. But the indulgence shown in granting summary rehef upon motion has rendered the writ almost useless. =^ It is a judicial writ, f oimded upon a record, and di- rected to the comi; in which that record remains. It has the usual incidents of a regular suit. It is not a means for obtaining relief from negligence. The same end is now very generally secured by a motion.^ S^e Motion, 2. AUDIT. Literally, he hears ; a hearing. See AtTDlEB. 1, V. To hear: to examine and adjust or certify. 2, n. The act or proceeding of officially examining and allowing or certifying, or of rejecting, a charge or account. Auditor. One who hears: one who of- ficially examines and allows as proper and 1 1 Cush. 243; 46 N. T. 119; 41 N. J. E. 659; 16 C. B.416. '3B1. Com. 405-6. sSee Avery v. United States, 13 WaU: 307(1870); 18 Ala. 778; 59 Cal. 139; 24 Me. 304; 20 Md. 820; 10 Mass. 101; 12 id. 270; 144 id. 13; 9 Johns. 221; 17 id. 484; 21 Barb. 435; 34 id. 615; 2 Hill, S. C, 398;" 12 Yt. 56; 23 id. 324; 25 id. 168; 42 id. 165; 18 Wis. 571; 15 Am. Dec. 695. lawful, or rejects as unlawful, the items of an account or accounts. An officer of government whose duties are, chiefly, to examine, verify, and approve or reject, the accounts of those who have dis- bursed public moneys or furnished supplies. 1 Termed auditor-general, State auditor, county auditor, >flrst auditor, etc. Corre- sponding in duties is the comptroller (q. v.) of cities. States, and of the United States treasury. 2 The office of public auditor belongs to the adminis- trative department of government. Even where he is empowered to act upon his official judgment his functions are only quasi judicial.' "To audit" an account is to hear, exam- ine, adjust, pass upon and settle an account, and then to aUow it.< "To audit "is to examine and adjust an account or accounts. An "auditor" is a person authorized to examine an account or accounts, compare the charges with the vouchers, examine parties and witnesses, al- low or reject charges, and state a balance.' Such is the meaning when it is directed that a board of supervisors shall " audit and allow " the costs and expenses of a hearing to remove a cotmty officer.^ In a statute providing that charges for making an examination of an insurance company shall be pre- sented in an itemized bill, which shall he audited by the comptroller, " audit " means hear and examine, pass upon and adjust. In such case also the word plainly refers to a judicial investigation and decision as to the merits of a claim. ^ An " auditor" is an agent or officer of the court vho examines and digests an account for the decision of the court. He prepares the materials on which a decree may be made.' He is an officer, either at law or in equity, assigned to state the items of debt and credit between parties and exhibit the balance.' The term often designates an officer whose duties are properly those of a master.' Originally, an auditor was an officer of the king, whose duty it was, at stated periods, to 1 See E. S § 276. = See K. S. S§ 268-73. » State V. Brown, 10 Oreg. 223 (1883). * Morris v. People, 3 Denio, 391 (1846); 68 Ga. 63. " People ex rel. Benedict v. Supervisors, 31 N. T. Supr. 419 (1881), Talcott, P. J.; Laws of 1874, oh. 3S3. •Matter of Murphy, 31 N. Y. Supr. 594 (1881), Learned, P. J. ' Field V. Holland, 6 Cranoh, 21 (1810), Marshall, C. J. 8 Whltvvell V. Willard, 1 Mete. 218 (1840), Shaw, C. J. • Blain v. Patterson, 48 N. H. 153 (1868), Bellows, J. AUDITA 06 AUTHOE 'examine the accounts of inferior officers and certify to their correctness. Later, the term designated an officer of the court of excheq- uer whose duty it was to take the accounts ■of the receivers of the king's revenue and " audit and perfect" them, without, however, putting in any charges; his office being meiely to audit the accounts, that is, to ascertain their correctness. . . "To audit " is to ex- amine, settle and adjust accounts — to verify the accuracy of the statements or items submitted. 1 Where the items are numerous, the testimony ques- tionable, and the accounts complicated, a court may make a general reference, with direction to state spe- •ciflcally such matters as either party may require or as the auditor may deem necessary.^ See at end of Account, 1. Auditors are called in by the courts to hear matters •ot detail which a court has not time to hear, and to in- form, the conscience of the com't as to facts which are essential to be known before a particular decree or judgment pan be pronounced.^ They are appointed to audit the accounts of as" signees in insolvency, of trustees to sell realty, of •executors, of administrators, of guardians, — when excepted to, or where distribution is to be made of a balance among rival claimants; also, to report upon .the expediency of selling or mortgaging the realty of decedents; as to incumbrances affecting the interests of partitioners; sometimes, to report the facts, where .a petition has been taken pi^o confesso but an account showing a balance against the respondent is essential; jto examine the accounts of public officers; also, as to the satisfaction of judgments, as to the distribution of the proceeds of forfeited recognizances, of the pro- ceeds of sales, etc. Or, a court may itself sit as a ** court of audit," as, an orphans' or surrogate's court, in which at regular intervals large numbers of ac- counts are presented for approval. Where the claimants to a fund are numerous the auditor is required to give public notice of the time and place of holding hearings. His specific duties may be defined in the order of his appointment; but statutes .provide for his issuing subpoenas, for admin- istering oaths and affirmations, and for prociu*ing the attachment of contumacious witnesses. He reports the facts, not the testimony, and a schedule by which ,the fimd may be distributed according to law. His iruHngs and recommendations are reviewable by the • court upon exception filed by any aggrieved party. He is called upon to admit or reject items of costs, ' wages, rents, commissions, secured and unsecured ■Claims, etc. In every case the sta.tutes, decisions, rules and practice of th« particular jurisdiction should be consulted. Compare Master, 4. AUDITA. See Audire, Audita, etc ' People V. Green, 5 Daly, 200 (1874), Daly, C. J. See -4 CJoke, Inst. 107. 2 Keld V. Holland, supra. -s Miller's Appeal, 30 Pa. 490 (1858), Woodward, J. AULA. L. A hall, or palace. Aula regia or regis. The royal hall, or the king's hall. A court established by the Conqueror, to advise the king in matters of great moment. It was composed of the king's great officers resident in his palace: the lords high con- stable, steward, treasurer, the lord chancel- lor, and others. These were assisted by persons learned in the laws — the king's jus- ticiars or justices, and by the greater barons of parliament. Over all whom presided the chief justiciar. Here will be noted the change in the meaning of the word "court" from royal household to tribunal of justice. The court followed the king's household in all his expeditions. That being burdensome to litigants it was ordained by Magna Charta that the court should be held in some certain place — Westminster Hall. In the reign of Edward I the court was subdivided into four distinct tribunals: chancery, king's bench, exchequer, and common pleas — the last being in a special sense the successor of the original aula regis.^ See Chancellor, 1. AUNT. See Ancestor; Consanguinitt. AUTER. See Atjtke. AUTHENTIC.2 In legal parlance, duly vested with all formalities and legally at- tested.' Authentication. Official, legal attesta- tion to a thing done ; as, of a copy made of an act of legislation, or of the record in a court or other public office. There does not appear to be any necessary or in- herent meaning in the word "authenticated" as used in the act of June 19, 1876, amending Eev. St., § 5271, which relates to extraditions and requires the authen- tication to be in writing. Authentication in regard to <^riginal papers may be made by oral proof. A wit- ness may swear to the verity and identity of the origi- nal, and that it would be received in the tribunals of the foreign country as evidence of the criminality of the accused. But when copies are offered they must be authenticated according to the law of the foreign country— for which the certificate of the principal officer of the United States is absolute proof.* See Faith, Full, etc. ; Law, Foreign. AUTHOR.5 Within the meaning of the copyright law one who, by his own intellect- ual labor applied to the materials of his com- 1 3 Bl. Com. 37-M; 3 Steph. Com. 397-400. = L. authenticus, written with one's own hand- original. s [Downing v. Brown, 3 Col. 590 (1877): Webster *Re Fowler, 1.8 Blatch. 436 (1880), Blatohford, J ; s. o. 4 F. E. 811. See I Greenl. Ev. § 484^ i Wliart' Ev. § 700. ' ■ » L. auctor, an originator: augere, to increase. AUTHORITY 97 AVERAGE position, produces an arrangeinent or compi- lation new in itself.' See generally Copyright; History; Letter, 3; Lit- erary; Manhsoript; Photograph; Review, 8; Science. AUTHORITY. 1. Power — delegated to an agent or exercised by virtue of an office, trust, or privilege. Executive authority. Power vested in the President of the United States, or in the governor of a State; also, either of those officials himself considered in his political capacity, as opposed to the judicial and leg- islative branches of government. ^ Judicial authority. Official power in a court or judge. Legislative authority. Power conferred upon a legislative body. Express authority. Power stated in terms more or less explicit. Implied au- thority. Such authority as is or is to be in- ferred from circumstances. General authority. Power extending to all acts of a certain nature. Special authority. Authority confined to a single act or transaction. Iiimited authority. Power restricted by instructions more or less precise. Unlim- ited authority. Authority not defined by words or instructions. Kaked authority. Power exercised by an agent solely for the benefit of the princi- pal. Authority coupled with an in- terest. Power given for value to the agent, or as part of a security. See further Agent; Delegatus; Interest, 2; Coup- led, etc.; Partner; also. Apparent; Corporate; Law- ful; Power, 1; Ratification. 3. The binding . force of a constitution, treaty, statute, or ordinance. Constituted authorities. Officers of government appointed under a constitution. Constituting authorities. The persons who appoint the former as their servants or agents. 3. Whatever Is relied upon as declaring the law : (1) a constitution, treaty, statute, adjudication ; (2) a text-book or treatise ex- planatory of organic, statute, or case law. Compare Opinion, 3 ; Precedent. AUTHORIZE. To confer power upon ; to invest with lawful authority, q. v. 1 [Atwill V. Ferrett, 2 Blatoh. 46 (1840), Betts, J. See also 2 Kent, 3T3-74, 383; E. S. § 4953, cases. a See Commonwealtli v. Hall, 9 Gray, 367-68 (1857), Bigelow, C. J. A government contract to be " authorized by law " must be made in pursuance of express authority given by statute or of authority necessarily inferable from some duty imposed upon, or from some power given to, the person assuming the contract.' AUTRE. F. Another. Also spelled aiifer. Autre action pendant. Another action pending. See Pend. Autre droit. Another's right. See fur- ther Droit. Autre vie. Another's life. See Vie. AUTREFOIS. F. Another time; for- merly. Autrefois acquit. Formerly acquitted. Autrefois convict. Formerly convicted. Pleas in bar of a second indictment for an offense of which the accused has already been acquitted or convicted. See further Acquittal; Conviction, Former. AUXILIARY. See Ancillary ; Equity. AVAIL.2 To be of use or advantage ; to answer the purpose ; to have strength, force, or efficacy sufficient to the end:' as, in saying that a defense, a plea, or evidence will or will not avail the party. Available. Suitable to the purpose : as, an available defense or plea ; also, admitting of early conversion into ready money. " Available means " are anything which can readily be converted into money; all that class of securities known in the mercantile world as representatives of value easily convertible into money; not necessarily, nor primarily, money itself.* Avails. Profits, proceeds, funds.5 AVER. See Averment. AVERAGE.6 Proportional payment: contribution to a loss or expense incurred at sea for the general benefit of several persons or several interests. In its simple generic sense a loss, injury, or deduction not amounting to a total loss.' General or gross average. That con- tribution to a loss or expense voluntarily in- curred for the preservation of the whole, in 1 Fifteen Per Cent. Contracts, 15 Op. A.-G. 236 (1877). > F. avaloir, to be of use: L. valere, to be strong. ' [Webster's Diet. < Brigham v. Tillinghast, 13 N. Y. 218-19 (1855). « See 100 Mass. 233; 12 F. E. 371 ; 2 Bl. Com. 60. «L. averagium: averia, cattle. Service u tenant owes his lord by horse, ox, or carriage therewith,— Blount's Law Diet. (1691). It meant use of horses, car- riage, payment for carriage; hence, payment propor- tional — to horses employed, goods lost at sea, etc.,— Skeat. ' [Bargett v. Orient Ins. Co., 3 Bosw. 395 (1858). AVERMENT 98 AVOW which all who are concerned in the ship, freight, and cargo are to bear an equal part proportionable to their respective interests.^ Particular average. The damage or loss, short of total, falling directly upon particular articles of property, i The liability or claim upon Buch articles from loss or damage to something else is "general" average.^ The rule as to general average is derived from the Bhodian law as adopted in the Roman jurisprudence. The Digest states the rule thus: If goods are thrown overboard to lighten a ship, the loss incurred for the sake of all shall be made good by the contribution of all. The case of jettison was used to illustrate the general principle. Now, as then, ship and cargo must have been placed in a common imminent peril; there must have been a voluntary sacrifice of property to avert that peril; and, by the sacrifice, the safety of the other property must have been successfully attained.' The principle is that " what is given for the general benefit of all shall be made good by the contribution of all." Greneral average is that contribution which is made by all who are parties to the same adventure toward a loss arising out of extraordinary sacrifices made, or extraordinary expenses incurred, by some of them for the common benefit of ship and cargo. The loss must be of an extraordinary nature, advisedly in- curred, under circumstances of imminent danger, for the common benefit of ship and cargo: and it must have aided in the accompUshment of'that purpose.* ' Where the interests are temporarily separated, as by unloading the cargo to repair the vessel, and the expectation of resuming the voyage, from unforeseen circumstances, is not realized, as, for example, inabil- ity to make the vessel seaworthy, all the expense of protecting the difEerent interests meanwhilels charge- able to general average. <■ Passengers' baggage in daily use does not contribute to general average. • AVERMENT.' A positive statement of the truth of a fact; a formal allegation in pleading. Aver. To assert for the truth ; to state in ■ positive terms ; to allege formally. Averments are spoken of as "affirmative" and "negative,'' as "general" and "particu- lar" or "specific," as "material" and "im- material," as " unnecessary," "impertinent," etc., with substantially the same meaning as are "allegations." See Allegation. ' Padelford v. Boardman, 4 Mass. 549 (1808). » Bargett v. Orient Ins. Co., ante. s Columbian Ins. Co. o. Ashby, 13 Pet. 337-38 (1839), Stoiy, J. < McAndrews u Tliatcher, 3 Wall. 370, 376 (1865), Clif- ford, J. See also 3 Kent, 235. » The Joseph Farwell, 31 F. K. 841 (1887), Toulmin, J. = Heye v. North German Lloyd, 33 F. E. 65 (1887), cases, Brown, J. ' F. averer, to affirm as true : L. ad, to ; verum, truth. An averment in a declaration is a direct and positive allegation of fact, made in a inanner capable of being traversed. It in- cludes the idea of an affirmation to be made out by inference and induction, l " The use in pleading of an averment is to ascertain that to the coiut which is generally or doubtfully ex- pressed; so that the court may not be perplexed of whom, or of what, it ought to be understood; and to add matter to the plea to make doubtful things clear " — as, an averment in an action of slander." There is no particular form of words in use. The important matter is that each substantial fact be so averred as to be susceptible of a simple admission or denial. See Vertfy. AVOCATIOW. See Business; Employ- ment; Trade. AVOID.' 1. To cause to be or become empty: to render useless or void; to make inoperative or of no effect; to nullify. Op- posed, affirm, confirm. Avoidance. Setting aside; nullifying; rendering of no effect.* Compare Void. Some authorities assert that an infant's deed cannot be avoided except by an act equally solemn with the deed itself; some that it cannot be done by any- thing short of an entry; others that it maybe done simply by another deed delivered to a difEerent grantee. All agree, however, that acts which would be insxifficient to avoid such a deed may amount tO' an affirmance,^ q. v. 3. In pleading, to repel the consequence or inference which would logically follow a failure to deny the truth of an averment. More fully, to "confess and avoid." Matter of avoidance. New matter which adniits the declaration to be true, but shows, either that the defendant was never liable to the recovery claimed against him or that he has never been discharged from his original hability by something supervenient, s See further Confession, 1. AVOIKDUPOIS. See Ton. AVOW.' 1. To declare openly: to ac- knowledge and justify an act; opposed to disavow. 2. To make an avowry. Avowant. He who makes an avowry. Avowry. Upon an action of replevin be- ing brought and a declaration delivered, the 1 Laughlin v. Flood, 3 Munf. 262 (1811). ' Van Vechten v. Hopkins, 5 Johns. 219 (1809). » M. Eng. avoiden, to make empty, put out of the way. « See 2 Bl. Com. 308. 'Irvine v. Irvine, 9 Wall. 627-28 (1869), Strong, J. • Gould, Plead. 84, 13; 31 Conn. 177. ' L. ad-vovere, to vow to: ad-voca(re. AVULSION 99 BAD distrainor, as defendant, makes "avowry," that is, he avows taking the distress in his own right or in the right of his wife, and sets forth the reason for it, as for rent-arrear, damage done, or other cause.i If he justifies in another's right as his bailiff or servant, he is said to males " cognizance." ' See Cognizance, 1. AVULSION.s Alluvion or dereliction of land which is sudden and considerable. As, where the course of a river is changed by a violent flood and thereby a man loses his ground; in which case he has, as his recompense,_what the river has left in another place.* See further Alluvion. AWABD.i 1, V. (1) To allow by judicial determination: as, for a court to award a writ of habeas corpus or other process. (3) To adjudge as due; to allow; to find: as, for a jury or viewers to award damages, for arbitrators to award a claim. 2, n. The decision of a board of arbitrators ; the finding of a referee; also, the writing which embodies such determination. An award is the judgment of the arbitra- tor upon the matters submitted.' M"o award. A plea to an action on an ar- bitration bond, that no legal award was made. A valid award is equivalent to a judgment on a ver- dict. Feudal law did not permit a right in realty to pass by a mere award — lest an alienation should be made coUusively without the consent of the superior. . . A party who disobeys an award is punishable as for contempt of court, unless the award be set aside for corruption or other misbehavior in the arbitrators. " An award is an act of the parties performed through their agents, and assented to in advance.' It can be impeached only for corruption, partiality, or gross misbehavior in the arbitrators, or for some palpable mistake as to the law or the facts. If so uncertain that it cannot be enforced, it is void.^ At common law it must be not only certain but final, disposing wholly of the controversy which prop- erly forms the subject of the reference; otherwise it cannot be enforced." ' 3 Bl. Com. 150; 21 N. J. L. 49. ^ L. avulsio: avellere, to tear away. " 2 Bl. Com. 262; 3 Washb. E. P. 452. *Mid. Eng. awarden: F. eswardier, to examine, judge: warder, to take heed, keep. A thing for the parties to observe, — Skeat; Spel. Gloss. s Halnon v. Halnon, 55 Vt. 322 (1883), Royce, C. J. • 3 Bl. Com. 16-18. ' Babb V. Stromberg, 14 Pa. 399 (1850), Gibson, 0. J. » Herrick v. Blair, 1 Johns. Ch. 101 (1814), Kent, J.; 2 id. 551; Fairchild v. Adams, 11 Cush. 550 (1863); Per- kins V. Giles, 53 Barb. 346 (1869); Eussell v. Smith, 87 Ind. 466, 468 (1882). ' Connor v. Simpson, 104 Pa. 443 (1883); Morse, Arb., &c. 486. Before a court of review every presumption will be made in favor of the validity of an award, unless fla- grant error appears upon the face of the record itself.' See further Abide; Aebitkation. AWAY. See Absent ; Caeet, 1. Away-going. See Ceop. B. B. Referring to a page or note, see A, 1. In colonial times was imprinted with indelible ink upon the cheek of a person convicted of burglary.* As an abbreviation, usually denotes bach- elor, bail, bankruptcy, baron, bench, bill, bond, book: B. B. Bail bond. See C. 0. etB. B. B. C. Bail court ; bankruptcy cases. B. E. Baron of the court of exchequer. See Baron, 3. B. P. Bonum factum, a proper thing. Formerly was indorsed upon the paper containing a decree, signifying that it was " approved." B. R. Bancus regis, king's bench ; bank- ruptcy reports ; Bill of Rights. B. S. Bancus superior, upper bench. BABY ACT. A term of reproach origi- nally applied to the disability of infancy when pleaded by an adult in bar of recovery upon a contract made while he was under age, but extended to any plea of the statute of limita.tions. BACHELOB OP LAWS. See Degeee. BACK. To indorse, sign: as, to back a process or writ. The warrant of a justice of the peace in one county must be backed, that is, signed, by a justice in another county, before it can be executed there. This practice prevailed for a long period prior to authorization by statute.' Under extradition treaties, an officer of govern- ment, usually the secretary of state, may indorse or back a. warrant of JEirrest. BACK-GAMMON. See Game, 3, BACK-WATER. See Mill, 1 ; Take, 8. BAD. 1. When applied to "character," the jury must say whether want of chastity or of honesty was imputed.* The charge of incontinency involved in the words " she is a bad, a loose, character," may be sufficiently averred by an innuendo without a colloquium. Such words of themselves impute incontinency. Whether 1 Wilcox V. Payne, 88 Pa. 157 (1878). ' Jones u Bobbins, 8 Gray, 348 (1857), Shaw, C. J. » 4 Bl. Com. 291. Tanderlip v. Eoe, 23 Pa. 84 (1854). = Haldeman v. Martin, 10 Pa. 378 C1849); Chaffey v. United States, 116 U. S. 443 (1886); ib. 427. 8 Bump, Fraud. Convey. 31. 4 101 U. S. 229; 1 Pars. Contr. 589. 5 Burr V. Clement, 9 Col. 11 (1885). « [Webster's Diet. !■ 5 Alb. Law J. 225 (1872). ' Wycherly, Plain Dealer. BAGATELLE. See Game, 2. BAGGAGE. 1. Whatever a passenger takes with him for his personal use or con- venience, according to the habits or wants of the particular class to which he belongs, either with reference to the immediate neces- sities or to the ultimate purpose of the jour- ney.! A contract to carry a person implies an un- dertaking to transport such a limited quan- tity of articles as are ordinarily taken by travelers for their personal use and conven- ience, the quantity depending upon the sta- tion of the party, the object and length of the journey, and other circumstances.^ To the extent that the articles carried by a, passen- ger for his personal use exceed in quantity and value such as are usually carried by passengers of like star tion, pursuing like joimieys, they are not baggage for which the carrier, by general law, is responsible as in- surer. In cases of abuse by the passenger of the priv- ^ilege which the law gives him, the carrier secures such exemption from responsibility, not, however, because the passenger, uninquired of, failed to disclose the character and value of the articles carried, but be- cause the articles themselves, in excess of the amount usually or ordinarily carried, under lil?e circum- stances, would not constitute baggage within the meaning of the law. In the case (Fraloff's, infra) in which the doctrine foregoing was enunciated, 275 yards of laces, alleged to be of the value of S75,O0O, and f oimd by a jury to be worth $10,000, were held to constitute part of the wear- ing apparel of the defendant in error — a wealthy Rus- sian. They were adapted to and exclusively designed for personal use, according to her convenience, com- fort, or tastes, during an extended journey, upon which she had entered. They were not merchandise, and there was no evidence that they were intended for sale or for purposes of business. It was further de- cided that whether the laces were such articles iij quantity or value as passengers of like station and under like circumstances ordinarily carry for their personal use, and to subserve their convenience, grati- fication, or comfort while traveling, was not a ques- tion for the jury, under instruction from the court, but for the court itself as a matter of law.^ The liability of the carrier attaches when the prop- erty, as baggage, passes into his hands with his con- 1 Macrow v. Great Western Ey. Co., L. R., 6 Q. B. *622 (1871), Cockbum, C. J. See also Jordan ■„. Rail- way Co., 5 Gush. 72 (1849); Connolly v. Warren, 10« Mass. 148 (1870); 6 Hill, 686. " Hannibal, &o. E. Co. v. Swift, 12 Wall. 274, 273 (1870), Field, J. ' TH.Y. Central, &c. R. Co. v. Fi-alofE, 100 U. S. 29-30 (1879), Harlan, J. ; Waite, C. J., Clifford, Hunt, Swayne, and Bradley, JJ., concurring; Field, Miller, and Strong, .TJ., dissenting. See also Haines v. Chicago, &c. E. Co , 29 Minn. 161 (1882); Isaacson v. N. Y. Central, &c. R. Co., 94 N. Y. 283 (1884). BAII, 101 BAIL sent. He may refuse to receive property not properly baggage, but it he receives it knowingly, and no decep- tion has been practiced upon him, he must carry it safely.' The fare paid by a passenger includes the trans- portation of his baggage. The carrier has a lien there- for, and may detain the baggage until payment is made.^ The term has been held to include — a watch,^ jew- elry,* an opera glass,^ surgical instruments,* a gun, a pistol,' a mechanic's tools,* manuscript,' books; '» but not, samples of merchandise," except when the car- rier, being made aware of the contents of packages, takes them as baggage; ^^ nor gold ornaments for presents;'^ nor money, except as to such limited amount as may be necessary for personal use.'* The possession of a baggage check by a passenger is eridence of the receipt of his baggage." Baggage is to be removed within a reasonable time after arrival, else the carrier may store the articles, charge reasonable rates for such service, and, in case of theft, loss, or destruction, be liable only as a ware- houseman,'* q. V. See also Carrier. 3. As to the baggage of guests in hotels, see Innkeeper. TtATT.17 1, V. To deliver personalty to another as a bailment, q. v. 3, V. To deliver a defendant to sureties who give security for his appearance in court at the return of the writ.l^ n. One or more of such sureties themselves. A delivery or bailment of a person to his sureties, upon their giving (together vrith » Hannibal, &c. E. Co. v. Swift, ante; Strouse v. Wabash, &c. E. Co., 17 F. E. 209 (1S&3). Left with rail- way porter. Bunch v. Great Western Ey. Co., L. E. 17 Q. B. D. 21.-J (1886): 3 Law Quart. Eev. 469-79 (1886), cases. See generally 18 Cent. Law J. 421-24 (1884), cases. 2 Eoberts v. Koehler, 30 F. E. 96 (1887), cases. Cases contra, 26 Am. Law Eeg. 396-98 (1887). •Jones V. Vdcrbees, 10 Ohio, 145 (1840); Clark v. Burns, 118 Mass. 277 (1873), cases. * McGill V. Bowan, 3 Pa. 463 (1816). * Toledo, &c. E. Co. v. Hammond, -33 Ind. 379 (1870). •Hannibal, &c. E. Co. u. Swift, 12 Wall. 370 (1870). ' Chicago, &o. E. Co. v. Collins, 56 111. 217 (1870). 8 Porter v. Hildebrand, 13 Pa. 133 (1830). ' Hopkins v. Westcott, 6 Blatch. 69 (1868). 10 Doyle v. Kiser, 6 Ind. 248 (1856). 1 1 Stimson v. Conn. Eiv. E. Co. , 98 Mass. 84 (1867), cases. " Hoeger v. Chicago, &o. E. Co., 63 Wis. 100 (1886). "The Ionic, B Blatch. .')38(1H07); 4 Bosw. 225. i«Pfisteru. Central Pacific E. Co., 70 Cal. 173 (1886) 31 Conn. 381 ; 25 Ga. 61; 22 111. 278; 33 jd. 219; 56 id. 293 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. " 6 Col. 337; Eedf. Car. 71, 73. " See generally McCaffrey v. Canadian Pacific E. Co., 24 Am. Law Eeg: 175-90 (1885), cases. 1' F. bailler, to deliver, free from. 18 [3 Bl. Com. 390. himself as principal) sufficient security for his appearance; he being supposed to con- tinue in their friendly custody, instead of going to jail.i The sureties undertake to surrender the defendant when he is called upon to answer the charge.'' Bailable. Admitting of bail ; allowing or providing for release upon bail: as, a bail- able — offense, action, process. Bail-bond. The obligation entered into by the surety. Takes the place of the body of the defendant, and is forfeited by his non-appearance according to the stipulation. It is not receivable utider final process. The sheriff, constable, or marshal, as the case may be, is the obligee; in which respect the obligation differs from a recognizance, g. v. The plaintiff sues on the instrument as assignee of the officer to whom it was originally given, and, perhaps, by a writ of scire facias.^ See C. C. et B, B. Bail-piece. A certificate from the record in a case that one or more persons named be- came bail in a certain sum of money. Not in the nature of process; merely a record or memorial of the delivery of the principal to his bail, oa security given.* Originally written on a small piece of parchment.* A surety may use this certificate as a warrant of arrest, and, by virtue thereof, deliver the principal over to an oflfioer for confinement. See Onus, Ex- oneretur. Following are the common species of bail : Bail above, or bail to the action. Sure- ties who jointly and severally undertake that if their principal, the defendant in an action, is "condemned," he will either pay the judg- ment or give himself up for imprisonment, or else that they will satisfy the judgment. Bail below, or appearance bail. Sureties who stipulate that a defendant will appear in court on the day named in the writ.^ Bail absolute. A person or persons who obligate tliemselves, usually to the State or Commonwealth, to pay a specified sum of money, in the event of another person (the principal) failing to account, in due form of law, for money entrusted to him as adminis- trator, guardian, assignee, or other trustee. Common or straw bail. One or more fictitious sureties whose names are entered as bail for matter of form, and who stipulate 1 4 Bl. Com. 297; 30 N. H. 161. 2 Eamey u. Commonwealth, 83 Ky. 633 (1886). * See 3 Bl. Com. 290. * NicoUs V. Ingersoll, 7 Johns. *154 (1810). * 3 Bl. Com. 291. « [3 Bl. Com. 291. BAIL 103 BAILMENT that a defendant will appear. Special bail. Eeal, substantial bondsmen, " Common " or " straw " bail are universal sure- ties — John Doe and Eichard Eoe, or other imaginary persons returned by the sheriff — standing pledges, for the purpose intended. They originally answered for the plaintiff in case he was amerced (g. v.) for making a false acbusationli See further Doe; Straw. *' Special " bail may be required, by order of court In such cases as are particularly grievous, or when it is necessary that a defendant should be kept within the jurisdiction. Originally introduced to mitigate the hardships incident to imprisonment." " All persons shall be Bailable by sufSeient Sureties, unless for Capital Offenses, where the proof is evidept or the presumption great." This provision, quoted from the Great Law ' of the Province of Pennsylvania, enacted in 1682, is also found in the constitutions of all the States. See Evident. Bail is taken by committing magistrates, by judges and commissioners of the courts, by clerks of some courts, and by other persons, as provided by statutes; but not, generally speaking, by justices of the peace on charges of homicide and certain other of the more heinous felonies, nor in charges of contempt of a court or of contempt of a legislature by a member thereof.* "Excessive baU shall not be required." ^ What is " excessive " is for the court alone to determine. See Excessive. Bail is not required of a municipal corporation; nor, as a rule,of persons in a fiduciary relation, sued as such. A surety must generally be a freeholder to some amount,,subject to process, and able to make a con- tract and to pay the amount of the bond. Ordinarily, common bail suffices from a defendant who is a free- holder. A non-resident plaintiff may have to furnish bail for the probable costs in his action. The principal is regarded as delivered'to his sureties as jailers of his own choosing. Their dominion is a continuance of the original imprisonment. Whenever they choose they may seize and deliver him up, in their own discharge; and, until this can be effected, they may imprison him. In this action they may be represented by an agent. They may pursue him into another State; they may arrest him on the Sabbath; and, if necessary, they may break and enter his house to arrest him. Being like a re-arrest by a sheriff of an escaping prisoner, they need no process. Their' rights are alike in civil and criminal cases. With the sureties there is an implied engagement by the principal that he will not leave the jurisdiction ; and by the plaintiff, that he will do nothing to increase their risk or to affect their remedy." See Jump. See also Bind; Commissioner; Deposit, In lieu, etc.; Fidejussor; Justification, 2; Mainpbrnob; Penaltt; Perfect; Surety. 1 [3 Bl. Com. 274, 287, 290, 291, 295.] = See 3 Bl. Com. 292, 287. s Chapter LII: Linn, 120. See Wash. Law Eev., Oct. 26, Nov. 1, 15, 1882. < See generally 20 Cent. Law J. 464-66 (1885), cases. » Constitution, Amd. Art. Vm. 4 Bl. Com. 296-99. « See Taylor v. Taintor, 16 Wall. 371 (1872), Swayne, J. ; BAILEE. See Bailment. B AILIFr. 1 Originally, one put in charge of something. An officer concerned in the administration of justice in a certain province.^ 1. A servant, in a superior, ministerial capacity.' A private person who has the custody and care of another's property. He is liable to an action of account-render.* 2. An attendant who preserves order in and about the room where court is being held ; a tipstaff, q. v. 3. A sheriflE's officer or deputy. Also called a bound or special bailiff. The due execution of his duties is secured by an obligation with sureties." BAILIWlCK.6 A word, introduced by the Normans, and equivalent to "county." The liberty, province, or jurisdiction of a sheriff.' Compare Precinct. BAILMENT.^ A delivery of goods in trust, upon a contract, expressed or implied, that the trust shall be faithfully executed on the part of the bailee.' A delivery of goods in trust upon a con- tract, expressed or implied, that the trust shall be duly executed, and the goods re- stored by the bailee as soon as the purpose of the bailment shall be answered.'" A delivery of a thing in trust for some special object or purpose, and upon a con- tract, expressed or implied, to conform to the object or purpose of the trust.^l When the identical thing delivered, though in an altered form, is to be restored, the contract is a " bail- ment," and the title to the property is not changed. But when there is no obligation to restore the specific article, and the receiver is at liberty to return another Reese v. United States, 9 id. 21 (1869), Field, J.; 3 Bl. Com. 290-92. As to rights of sureties generally, see 1 Ifans. Law J. 211-14 (188.5), oases. 1 The -iff is from the A. S. reeve, officer, steward,— 1 Bl. Com. 116. O. F. bailler, to keep in custody, — Skeat. See Bail, 2; Eeeve. = Coke, Litt. 163 b. ' 1 Bl. Com. 427. •■ See Coke, Litt. 172 a; 4 Watts, 432; 22 Ga. 161; 44 Barb. 463; 1 Story, Eq. § 446. s 1 Bl. Com. 345. "F. fioSitc, government; bat'lJer, to have custody of ; A. S. wic, dwelling, station, jurisdiction. ' 1 Bl. Com, 344; 2 id. 37. 8 P. bailler, to deliver. » 2 Bl. Com. 451, 395. i» 2 Kent, 559. " Story, Bailm. § 2; Watson v. State, 70 Ala. 14 (1881). BAIT 103 BALLOT thing of equal value, the title to the property being changed, the contract is a "sale," ' q. v. Bail, V. To deliver a thing to a person upon his engaging to do something to or with it, and then either to return or to account for it. Bailee. He who thus recelYes a thing bailed. Bailor. He who thus delivers a thing as bailed. The purpose of the law of bailments is to ascertain, whenever the loss of or injury to a thing occurs, to what degree of care the bailee was bound and of what degree of negligence he has been guilty. ^ Three kinds of bailments are recognized: That in which the trust is for the benefit — of the bailor, of the bailee, or of both bailor and bailee. In cases of the first kind, at least slight care is required; in cases of the second kind, great care; in cases of the third kind, ordinary care. The absence of the required degree of care constitutes negligence, for which the bailee is responsible.' Sir William Jones, following the civil law, proposed, in 1790, this division; Depositum, gratuitous custody; deposit, q. v. Mandaium^ gratuitous feasance; man- date, q. V. Accommodatum (q. v.), or cammodatum, loan for use without pay; accommodation. Fignus^ pledge, q. v. Locatio^ or locatum, hiring,* q. v. See also Loan, 1. Each party has a qualified property (g. v.) in the subject of the bailment and may maintain an action with respect to it.** Presumably, the bailor is entitled to the thing. The bailee is to do what the principal directed — restore the article or account to him for it. He " accounts " when he yields to the paramount right of immediate possession in a third person who Is found to be the true owner." See also Care; Carried; Innkeeper; Larceny; Ees, Pent, etc. BAIT. 1. To feed : to allure a dumb ani- mal, by scented food, frona the premises of its owner or from the highway. The owner of an animal injured in this way may maintain an action upon the case for damages. 3. To attack with violence ; to harass : as, to bait a bull with dogs.' 1 Mallory v. Willis, 4 N. Y. &5 (1850), cases, Bronson, C. J. ; Foster D. Pettibone, 7 id. 433 (1853), Ruggles, C. J. ; Hyde v. Cookson, 81 Barb. 103 (1855); Marsh d. Titus, 3 Hun, 550 (1875); Story, BaUm § 283; 3 Kent, 589. <3rain in an elevator is " sold," 19 Cent. Law J. 268-69 .(1884), cases. " 2 Pars. Contr. 87. s Story, BaUm. § 4. * Jones, Bailm. 36. 6 Bl. Com. 305, 452. « The Idaho, 93 U. S. 579-80 (1876), cases. Strong, J. ; Eobinson v. Memphis, &c. E. Co., 16 P. K. 57 (1883), cases. . See generally Coggs v. Bernard, 2 Ld. Bay. 909 0704); 1 Sm. L. Cas. 369-454, cases. German Law, 3 Law Quar. Eev. 188-212 (1886). ' Pitts V. Millar, L. E., 9 Q. B. 38ii (1874). Pursuing rabbits with dogs is not baiting them. The term applies where the baited animal is tied to a stake or confined so that it cannot escape. ' BALANCE.2 1. Excess on one side of an account. The conclusion or result of the debit and credit sides of an account. 3 Implies mutual dealings, and the extension of debit and credit.' 3. Residue or remainder; as, the balance of an estate. 4 General balance. Such sum of money as is due for services rendered by a person to whom two or more articles have been bailed for purposes of transportation, for the be- stowal of work and labor, or on account of which money has been expended. See LlEiN, Particular. Net balance. Applied to the proceeds of a sale of stock, means, in commercial usage, the balance of the proceeds after deducting the expenses incident to the sale.s In some States a balance found to be due from an executor, administrator, or guardian, may be entered of record as a judgment. In suits arising out of mutual accounts the jiuy may find a balance due to the defendant which, by certificate of the court, becomes a judgment against the plaintiff. Partial balance. A balance found upon a partial settlement of accounts, as between partners. Pinal balance. The balance at final settlement of a portion of the items of an account, or of all the items, and for a lim- ited period of time or for the whole period covered by dealings or transactions. An express promise by a partner to pay a partial balance is the most satisfactory evidence of an in- tention to separate the items included in the settle- ment from the rest of the joint affairs. To constitute such an agreed final balance as will support an action by one partner against his copart- ner, the balance must have received the assent of both partners, binding them to an admission of its correctness.' See Account, 1. BALLET. See Theater. BALLOT.' n. A ball or a ticket used in voting ; a paper embodying a vote ; also, the whole number of votes cast. v. To decide by voting. 1 Pitts V. Millar, ante, ' L. bilanx, having two scales, s Mc Williams w.'AUen, 45 Mo. 574 (1870). < Lopez V. Lopez, 23 S. C. 269 (1885); Skinner u. Lamp, 3 Ired. L. 165 (1842). » Evans v. Wain, 71 Pa. 74 (1872). • 2 Bates, Partn. § 861, cases. ' F. balloUe, a little ball tot voting. BAN 104 BANK May refer to the decision of a juror or jurors, or to the preferences of persons quali- fied to elect the oiScers of a corporation or of a govermnent. In French dictionaries, defii^ed as " the act of vot- ing by balls or tickets by putting the same into a * box or urn; " also as, " secret voting by means of a ball or tioliet." The word did not change its meaning when adopted into the English language.* As applied to elections of public officers, voting by ballot signifies a mode of designat- ing an elector's choice of a person for an pffice by the deposit of a ticket; bearing the name of such person, in a receptacle pro- vided for the purpose, in such a way as to secure to the elector the privilege of com- plete and inviolable secrecy in regard to the person voted for.^ Ttiis privilege of secrecy is the distinguishing feat- ure of ballot voting. The object in view is the inde- pendence of the voter.= Voting by baUot is a constitutional method of vot- ing which cannot be changed by a statute. Its per- petuation is meant to secure the right to vote without having the voter's opinion of men or measures in- quired into.' See Test, Acts. The natural import of " balloting at a national, State, or municipal election" is, balloting in and for the election of national. State, or municipal officers. The expression will not apply to ballots casts for or against a regulation like that of granting licenses for the sale of intoxicating liquors.* Ballot-box. A receptacle for ballots; more precisely, such receptacle as is author- ized by law. " To stuff a ballot-box " means unlawfully, fraudu- lently, and clandestinely to place in a ballot-box, at a lawful election, ballots which have not been voted, with intent to affect the result of the election.^ See Election, 1 ; Vote. BAN; BANXf." Public proclamation or notice. Banns of matrimony. Publication, by oral announcement, of an intended marriage, in a church or public chapel. 'State V. Shaw, 9 S. 0. 138 (1877); Williams v. Stein, 38 Ind. 92 (1871). ^Brisbin v. Cleary, 26 Minn. 108 (1879), cases. Berry, J. See also Temple v. Mead, 4 Vt. S41 (1832); People v. Pease, 27 N. T. 45, 57 (1868); Williams v. Stein, Ss'lnd. 92, 95 (1871). 3 Attorney-General i). DetTOit Common Council, 58 Mich. 217 (1885). " Commonwealth v. Howe, 144 Mass. 145 (1887),— upon an indictment for casting more than one ballot, con- trary to Pub. Sts. c. 7, § 57. 1 See R. S. § 5615 ; Exp. Siebold, 100 U. S. 379 (1879). ^ A. S. gebann; L. L. ba^dum^ bannum, a procla- mation. CJompare Abandon; Contraband.- Affords opportunity to interpose legal objection to the marriage.* BANC.2 The seat occupied by the judge* of a court ; more particularly, a full bench, when all, or at least a majority, of the judges are present for the decision of questions of law, as distinguished from the practice of one or more members of the court sitting, with a jury, for the determination of ques- tions of fact. Whence "banc days," and "sitting in banc." Compare Bank, 3 (1); Bench. BANK. 1. The earth bordering a water- course, q. V. The banks of a river are the earth which contains it in its ordinary state of high water.' See Along; Bed, 2; Riparian. 2. A bench. (1) A judge's seat ; also, a court sitting for the decision of matters of law — but for this "banc" is the word more generally used. See Banc ; Bench. (3) An institution for the deposit, discount, or circulation of money. May refer to the association, the ofiice or place of business, or the managing officers as a body.4 The sense in which "bank " or " banks " is intended to be used is determined by their connection' with what is said. An act to be done by a bank means an act to be done by those who have the authority to do it. If it be an act within the franchise for banking, or within the ordinary power of the bank, and it is done by the president and' directors, or by their agents, we say the bauk did it. If, however, an act is to be done relative to the institution, by which its charter is to be changed, the stockholders must do it, unless another mode has been provided by the charter. In one sense, after it has been done, we may say that the bank did it, but only so because what the stockholders have done becomes a part of the institution.^ Banks, in the commercial sense, are banks of deposit, of discount, or of circulation. Speak- ing strictly, the term "bank" implies a place for the deposit of money, as that is the most obvious purpose of such an institution. Originally, the business of banking consisted only in receiving depbsits of bullion, plate, and the like, for safe-keeping. In time, bankers assumed to discount bills and notes, and to loan money ' 1 Bl. Com. 439. ^ F. banc: L. bancus, a bench. = Pulley V. Municipality No. 2, 18 La. 537 (1841); Stone V. City of Augusta, 46 Me. 137 (18.58); Howard v. Inger- soll, 13 How. 416-16 (1851); Houghton v. Chicago, &c. E. Co., 47 Iowa, 372 (1877); Halsey v. McCormick, 13 N. Y. 296 (1855). * See Rominger.t!. Keyes, 73 Ind. 377 (1881). . <• Gordon v. Appeal Tax Court, 3 How. 147^ (1845), Wayne, J. BANK 103 BANK upon mortgage, pawn, or other security, and, at a still later period, to issue notes of their own intended as a circulating currency and a medium of exchange in- stead of gold and silver. Modern bankei-s frequently exercise any two or even all three of these functions; but it is still true that an institution prohibited from exercising more than one of them is a bank, in the strictest commercial sense. ^ Bank; banker; banking. A banker is one who makes merchandise of money.2 " Banking," in its largest sense, includes the business of receiving deposits, loaning money, dealing in coin, bills of exchange, etc., and issuing paper money.' In statutes " bank " usually designates an incorporated institution, and "banker" an unincoj'porated association exercising " bank- ing privileges." ' The business of banking, as defined by law and custom, consists in the issue of notes pay- able on demand, intended to circulate as money where the banks are banks of issue ; in receiving deposits payable on demand; in discounting commercial paper; making loans of money on collateral security ; buy- ing and selling bills of exchange ; negotiat- ing loans, and dealing in negotiable seciirities issued by the government. State and national, and municipal and other corporations. < In Massachusetts "bank" applies to institutions incorporated for banking purposes, not to oflSces kept by individuals or copartnerships doing such banking business as they have been authorized to do.^ The term " banker " includes all the business of a money-changer. " Having a place of business where deposits are received and paid out on checks and where money is loaned upon security is the substance of the business of a banker.' See Merchant. The terms bank and banker include any person, firm, or company having a place of business where credits are opened by the deposit or collection of money or currency subject to be paid or remitted 1 Oulton V. German Savings, &c. Institution, 17 Wall. 118-18 (1873,1, cases, Clifford, J. ; Bank tor Savmgs v. The Collector, 3 id. 513-14 (1865). See Eoniinger ti. Keyes, 73 Ind. 377 (1881). " 3 Bl. Com. 475. a Exchange Bank v. Hines, 3 Ohio St. 31-52 (1853), Bartley, C. X; 16 How. 416; 14 Bankr. Reg. 90; 32 La. An. 531. 4 Mercantile Bank «. New York, 121 U. S. 156 (1887), Matthews, J. ' May V. Butterworth, 106 Mass. 76 (1870); 108 id. 513. « Hinckley v. Belleville, 43 111. 188 (1867). 'Warren v. Shook, 91 U. S. 710 (1875), Hunt, J. Act 3 March, 1865: 13 St. L. 252, 472. upon draft, check, or order; or where money is ad- vanced or loaned on stocks, bonds, bullion, bills ''of exchange, or promissory notes; or where stocks, bonds, bullion, bills of exchange, or promissory notes are received for discount or for sale.^ At common law the right of banking belongs to individuals, and is exercisable at pleasure. ^ Bankable. Eeceivable as the equivalent of cash at a bank ; receivable for discount by a bank : as, a bankable or non-bankable bill, or other paper. Bank for savings; savings bank. A bank of deposit for the accumulation of small savings belonging to the industrious and thrifty. 3 A bank for the receipt of small sums de- posited by the poorer class of persons for accumulation at interest.* An institution formed for the purpose of receiving deposits of money for the benefit of the depositors investing the same, accumu- lating the profit or interest thereof, paying such profit or interest to the depositor, or retaining the same for his greater security, and, further, of retaining the deposit itself.* The primary relation of a depositor is that of a creditor and beneficiary of a trust. In case of insolv- ency, depositors stand as other creditors, with equal rights to be paid ratably out of the estate." National bank; national banking as- sociation. An institution, created under United States law, for banking purposes, as distinguished from a bank organized under the law of a State ' — a State bank. An association may be formed by any number of persons not less than five. They sign " articles of as- sociation," and acknowledge an " cSrganization certifi- cate " which states the name assumed', the place where operations are to be carried on, the amount of capital stock and the number of shares thereof, the names and residences of the shareholders, and the shares held by each. Upon filing in the ofBce of the comptroller of the currency these documents, the > Revenue Act, 13 July, 1866, § 9: 14 St. L. 115: E. S. §.3407; Selden v. Equitable Trust Co., 94U. S. 420-22 (1876). ! Bank of Augusta v. Earle, 13 Pet. 595 (1839). As to- responsibilit.y for correspondents and notaries, see 20 Am. Law Rev. 889-901 (1880), cases. ' MercantUe Bank v. New York, 121 U. S. 161 (1887), Matthews, J. * [Bank for Savings u. The Collector, 3 WaU. 613 (1865): McCoUough's Com. Diet. 146. See also Johnson V. Ward, 2 Bradw. 274 (1878). » Commonwealth v. Reading Savings Bank, 133 Mass. 19, 21-23 (1882), Devens, J. 6 See People v. Mechanics' Sav. Inst., 93 N. Y. 9 (18.S.!). 'See National Bank Act, 3 June, 1864; R. S. Tit. LXII, S§ 5133-5243. BANK 106 BANK association becomes, as from the date of the execu- tion of its certiflcate of organization, a body corporate, empowered to used a corporate seal, have succession for twenty years, make contracts, sue and be sued, elect directors and appoint other officers ; to prescribe, by the board of directors, by-laws, not inconsistent with law, for the conduct of general business, and the exercise of its privileges; "to exercise . . all such incidental powers as shall be necessary to carry on the business of banking; by discounting and negotiat- ing promissory notes, drafts, bills of exchange, and other evidences of debt; by receiving deposits; by buying and selling exchange, coin, and bullion; by loaning money on personal security; and by obtaining, issuing, and circulating notes." ' The name to be adopted is subject to approval by the comptroller.^ No other bank or banker, except a sav- ings bank authorized by Congress, may use the word " national " as a portion of its title.^ Any old association may become a national as- sociation by the name prescribed in its organization certificate— the articles of association and the organ- ization certificate bfeing executed by a majority of the directors, the certiflcate declaring that the owners of two-thirds of the capital stock have authorized the directors to make such certificate and to convert the institution into a national association. The shares may continue for the same amount; and the former directors may be continued in office, with full power to perfect the re-organization, until others are elected.* The certiflcate of the comptroller is conclusive as to the completeness of the organization.^ The re-organization of a State bank does not relieve it from its former habilities: it remains substantially the same institution under another name.* National banking associations constitute no part of the Government. Designating a bank as a depositary of public moAeys does not change the character of its organization, or convert its managers into public offi- cers, or render the Government liable for its acts.^ An association may exist with or without power to issue circulation.^ To obtain circulating notes An association must deposit with the comptroller United States bonds, as security for the redemption of auch notes as it may issue; whereupon, within limits, notes of various denominations may bo furnished by the comptroller. Associations may be authorized to issue notes payable in gold." One hundred thousand dollars is the minimum cap- ital allowed, except in places nob exceeding 6,000 in- habitants, when, by consent of the comptroller, the capital may be $50,000. Where the population exceeds 50,000, the capital must be at least $200,000. This cap- ital is divided into shares of $100 each, which are 1 E. S. §1 5I3a-36. = E. S. §6134. s E. S. § 5343. *E. S. §§5IB4-55. s Casey v. GalU, 94 U. S. 679 (1876). » Coffey V. Nat. Bank of Missouri, 46 Mo. 143 (1870). ' E. S. § 5133; Branch v. United States, 12 Ct. CI. 281 (1876). 8 National Currency Acts, 11 Op. Att.-Gen. 334 (186B). »E. S. §5185. personalty. Kf ty per centum must be ps^id before organization, and the rest in monthly installments of ten per centum each.i The act of May 1, 1886 (24 St. L. 18), empowers an association to increase its capital stock, in accordance with existing laws, to any sum approved by the comptroller, by a vote of the holders of two-thirds of , the stock, notwithstanding the limit fixed in the orig- inal articles of association. By a like vote an associ- ation may change its name and location, the latter not to be more than thirty miles distant from the for- mer location, after the comptroller has certified his approval. Title to a share of stock passes when the owner de- livers his certiflcate to the purchaser with authority to transfer the share on the books of the bank." See further Stock, 3 (2). A national bank may hold such realty as is neces- sary for its immediate accommodation in the transac- tion of business; such as shall be mortgaged to it in good faith by way of security for debts previously contracted; such as shall be conveyed to it in satisfac- tion of debts previously contracted in the course of its dealings; such as it shall purchase at sales under judgments, (^ecrees, or mortgages held by it, or shall purchase to secure debts due to it —title in the last case not to be held longer than five years. ^ The circuit courts of the United States have juris- diction of all suits by or against national banks estab- lished in the district for which the court is held,* irrespective of the amount in controversy or the citizen- ship of the parties, fi State courts of ite locality have jurisdiction of suits brought by it.* It may be sued in a place in a -State other than where it is estab- lished.' A national bank may not loan or discount on the security of its own stock, except to prevent loss.^ A national bank may go into liquidation and be closed by a vote of the holders of two-thirds of its stock.* In case of failure to pay its notes, the comp- troller may appoint a receiver to wind it up.i" The Gpvemment has no priority of demand against an insolvent bank." National banks being designed to aid the Govern- ment in the administration of an important branch of the public service, the States can exercise only such control over them as Congress may permit." > See Bailey v. Qark, 21 "Wall. 884' (1874). " Johnston v. Laflin, 103 U. S. 800, 804 (1880). 'E. S. §5137; 2Dm.371. * B. S. § 629, par. 10; 3 DiU. 298; 8 WaU. 506. ' 19 Alb. Law J. 182. ' Bank of Bethel v. Pahquioque Bank, 14 Wall. 383 (18T1); Claflin v. Houseman, 93 U. S. 130 (1876); 101 Mass. 240. ' Casey v. Adams, 102 U. S. 66 (1880). SR. S. §5136. » R. S. § 5220; 5 Biss. 499. '°E. S. §5234, cases; Richmond v. Irons 121 U S 47-50(1887). ' ■ ' "Cook County Nat. Bank v. United States. 107 U S 445 (1882). ■ ■ >' Farmers', &c. Nat. Bank v. Bearing, 91 U. S. 33-34 (1875). See Veazie Bank ti. Fenno, 8 Wall. 5 BANKRUPT 107 BANKRUPTCY Bank-bill; bank-note. A promissory note, issued by a bank under authority of law, payable on demand to the bearer. Bank-notes differ from ordinary prdmissory notes only in the recognition of them by general consent, and by the law to an extent, as a substitute and equivalent for legal money. In other respects they are governed by the rules applicable to promissory notes payable to bearer, i See Current, 2. Bank casMer. See Cashier. Bank check. See Check; Exchange, 3. Bank director. See Directors. Bank president. See Abstract, 1 ; Ap- plication, 2; Directors. Has no power by vii-tue of his otSce to bind the bank in an unusual manner, or in any vmdertaking outside of its customary routine of business. While the directors, or usage, may confer upon him special power, the authority inherent in his position is very slight.' See generally Account, 1; Advances; Charter, 2; Circulation; Collection; Deposit,2 (2); Discount, 2; Funds; Moneyed; Reserve, 7; Tax, 2; Usury. BAH'KETJPT.s a trader who secretes himself, or does certain other acts tending to defraud his creditors.* See Trader. A person found, by the proper court, to be entitled or subject to have his property taken for distribution among his creditors, and he to be discharged from the legal obli- gation of past claims. In a loose sense, a person as to whose status such an adjudica- tion may or would be made. Bankrupt law. A law intended to secure the application of a debtor's effects to the payment of his debts, and to relieve him from the burden of them.s Bankrupt system. The law, and the practice thereunder, respecting the division of a bankrupt's property among his creditors. Bankruptcy. The status or condition of being a bankrupt; also, that branch of the law under which the assets of the estate of a bankrupt may be distributed among his cred- itors and he be discharged from the indebt- edness. > See James v. Rogers, 23 Ind. 451, 463 (1864). a Wheat o. Bank of Louisville, Sup. Ct. Ky. (1887), cases. Same case, 27 Am. Law Eeg. 52 (1888) ; ib. 56-60, cases. See also 21 Cent. Law J. 144-46 (1883), cases. 3 F. banque, a table or counter; route, trace, track: his " banque " was removed and no trace of it left,— 2 Bl. Com. 272. Ital. banca rotta, a broken bench: a money-changer's bench was broken up, on his failing in business,— Skeat. See 3 Story, 453. 4 2 Bl. Com. 285, 471. ' [2 Kent, 389; 2 Bl. Com. 474, 476; 109 U. S. 536. Bankruptcy is a proceeding of an equitable nature — a sequestration of a debtor's property that the cred- itors may resort to, instead of to an ordinary suit at law or in equity.^ The object is equality of distribution of the assets among creditors not legally secured.' Another pur- pose, only second in importance to that, is speedy dis- tribution of assets. Our statutes have been filled with provisions designed to secure the early discharge of the debtor and the speedy settlement of his estate.' Bankrupt laws are for the benefit of the honest trader, his honest creditors, and public commerce.* " The Congress shall have Power . . To establish . . uniform Laws on the subject of Bankruptcies throughout the United States." » See Uniform. The English word " bankrupt " had its origin in m- cidents of trade. Whatever secondary or figurative meaning the word may have acquired, its primary and only legal meaning is that which confines it to traders. . As a state of "insolvency "usually pre- cedes "bankruptcy," it is not surprising that the two words should sometimes be confounded. Insolvency is the generic term, comprehending banliruptcy as a species. A man may be insolvent without becoming a bankrupt, or having capacity to become such; and a bankrupt may prove to be entirely solvent. Mere insolvency never makes one a bankrupt without the concun-ence of some act tending to the injury of his creditors.* The line of partition between bankrupt and insolv- ent laws is not so distinctly marked as to enable a person to say with precision what belongs exclusively to the one and not to the other class of laws. It is said that laws which merely liberate the person are insolvent laws, and those which discharge the contract are banlixupt laws. Another distinction, more uni- formly observed, is, insolvent laws operate at the in- stance of an imprisoned debtor, bankrupt laws at the instance of a creditor.' StUl another featiu-e of insolvent laws is, the debtor Is not discharged from the legal obligation to pay de- mands in full: he remains subject to suits and execu- tions on account of unoutlawed claims.^ Fraudulent bankruptcy. Bankruptcy in which the debtor has practiced, or at- tempted to practice, some fraud upon cred- itors ; as by not disclosing all of his assets, or by creating an unlawful preference.' 1 Re Weitzel, 7 Biss. 290 (1876). 'International Bank v. Sherman, 101 U. S. 406 (1879); Trimble v. Woodhead, 102 id. 650 (1880). •Bailey v. Glover, 21 Wall. 846-47 (1874), Miller, 1^.; Jenkins v. International Bank, 106 U. S. 575-76 (1882); R. S. §5057. <2B1. Com. 472, 475. » Constitution, Art. I, sec. 8, cl. 4. "Sackett V. Andross, 5 Hill, 343-44, 342 (N. T., 1843), Bronson, J. See also 41 Conn. 605; 2 Bened. 203. ' Sturges V. Crownmshield, 4 Wheat. 194 (1819), Mar- shall, C. J. B Martin v. Berry, 37 Cal. 222 (1869). 9 See 4 Bl. Com. 166. BANKRUPTCY 108 BANKRUPTCY Private bankruptcy. Has been applied to oases of composition with creditors — resort to court for a discharge being thereby obviated.' Voluntary Ibankruptey. That in which the debtor avails himself of the law. In- voluntary or comptHsory bankruptcy. In which the debtor, by proceedings insti- tuted by one or more creditors, is judicially decided to be bankrupt. A case of voluntary bankruptcy is in the nature of a suit by the debtor against his creditors.'' Act of bankruptcy. An act by a debtor which exposes him to adverse proceedings in bankruptcy. Under the Act of March 3, 1867, amended by Acts of June 32, 1874, and of July 26, 1876, acts of bankruptcy were certain acts done by a debtor six mouths before an adjudication was sought : as, — (1) departing from the State to defraud creditors; (3) remaining absent with that intent; (3) concealing himself to avoid service of process; (4) concealing or removing property to prevent its being at- tached, taken, or sequestered; (5) assigning or giving away property or rights, to delay, defraud, or hinder creditors; (6) being held in custody or imprisoned seven days on ac- count of a claim over one hundred dollars ; (7) making, in contemplation of insolvency, a transfer of property, confessing a judgment, procuring or suffering property to be taken on process, with intent to prefer a creditor or to defeat or delay the operation of the bank- rupt law; (8) for a bank, banker, broker, Eierchant, trader, manufacturer, or miner, fraudulently to stop payment of commercial paper, or pot to resume payment thereof, for fourteen days; (9) for a bank or banker to fail to pay a depositor within forty days. 3 A debtor could have a jury trial upon any alleged act of bankruptcy. Foreigners were exempt from the law; also, a citi- zen whose provable debts were less than three hundred dollars. Proceedings were begun in the district court, by petition with annexed schedules of debts and assets. This petition was referred to the " register " — an aux- iliary in matters of administration, — who ascertained whether the debts were above two hundred and fifty dollars ; if so, the debtor was adjudged a bankrupt and ' Ms estate ipso facto became vested in the register. There then issued a warrant to the maL*shal to notify I Exp. Vere, 19 Ves. *98 (1818). ^2 Wilson V. City Bank of St. Paul, 17 Wall. 481-83 (1873) ; United States v. Fox, 9B U. S. 673 (1877). 3 E. S. § 5031, cases. the creditors. In from ten to ninety days the creditors met and nominated an assignee, who, with his sureties, was to be approved by the com-t; whereupon, the register deeded the estate to the assignee, who pro- ceeded to settle the business.* Upon the commission of an act of bankruptcy the debtor's property becomes a common fund for the payment of his debts, he losing all right of proprietor- ship over it" When there exists no purpose to defraud, delay, or prefer, and the value of the estate remains unimpaired, before proceedings are begun the debtor can deal with the property. Filing a petition is an attachment and an injunc- tion — a caveat to all the world. After that, a person deals with the insolvent at his peril.^ A transfer designed to prevent equality of distribu- tion, made within four months before petition filed, was held to be a fraud.* So was giving a note con- fessing judgment. But in all such cases the intention of the debtor was made the test.* Property illegally transferred was recoverable by the assignee.* Excepting attachments made within a prescribed, period, and fraudulent dispositions, the assignee took title subject to all equities, liens, or incmnbrances — in the same plight and condition as when the debtor " held it.« Under the acts of Congress a voluntary bankrupt was to pay thirty per centum of the provable claims, unless less was accepted by one-fourth in number and one-third in value of the creditors. A majority in number and three-fourths in value could aocepf a composition. A discharge, which was a matter of favor, could be had one year after adjudication, an order having first been issued to such creditors as proved debts, to ap- pear and show cause, if they knew of any, why the discharge should not be granted. And a discharge which had been granted could be annulled, within two years, for fraud undiscovered at the time of the dis- charge. A discharge is no bar to an action on a judgment recovered after the discharge, in a suit commenced before the bankruptcy, pending when the discharge was granted, and upon a debt provable in bank- ruptcy.^ A United States law supersedes a State law.' But " See E. S. Tit. LXI: §| 4972-5132. "3 Kent, 389; 2 Bl. Com. 474, 476. s International Bank u Sherman, 101 U. S. 406 (1879), ■• Butcher v. Wright, 94 U. S. 553 (1876), cases. ' Clarion Bank v. Jon'es, 21 Wall. 325 (1874); aark v. Iselin, ib. 373 (1874); Watson v. Taylor, ib. 381 (1874); Little V. Alexander, ib. 600 (1874). • Yeatmau v. Savings Institution, 95 U. S. 764 (1877); Stewart v. Piatt, 101 id. 738 (1879); 8 Bl. Com. 485. ' Dunock V. Eevere Copper Co., 117 U. S. 559 (1886).' See also Boynton v. Ball, 131 id. 457 (1887). See gener- ally as to discharge, Laidley v. Cummings, 83 Ky. 606 (1886); Fuller v. Pease, 144 Mass. 390 (1887). "Sturges V. Crowninshield, 4 Wheat. 196 (1819); Og- den V. Saunders, 12 id. 813 (1837); Baldwin v Hale 1 Wall. 228-31 (1863). BANNS 109 BARGAIN upon the repeal of a Federal law, a previously enacted State law becomes operative again. ^ The convention which framed the Constitution had in view the English system. ^ Bankrupt laws were passed by Congress in 1800, 1841, and 1867, but repealed, in each instance, after a ■comparatively brief operation. That of 1867, with its amendments, was repealed by act of June 7, 1878, the repeal taking effect September 1, 1878, without effect upon pending cases.' Such laws have been in force in England for more than three centuries. They had their origin in the Boman law.* See further Aes, AJienum; Cessio; Composition, 3; ■Contemplation; Death, Civil; BlffiREDiTAS, Damnosa; Insolvency; Process, 1, Legal. BAITNS. See Ban. BAPTISTS, SEVENTH-DAT. See Sunday. BAH. 1. A particular portion of a court room. Named from the space inclosed by two bars or rails: one of which separated the judge's bench from the rest of the room; the other shut off both the bench and the area for lawyers engaged in trials from the space allotted to suitors, witnesses, and others. Such pei'sons as appeared as speakers (ad- vocates, or counsel) before the court, were said to be " called to the bar," that is, priv- ileged so to appear, speak and otherwise serve in the presence of the judges as " barristers." The corresponding phrase in the United States is " admitted to the bar." Proceedings in open court are said to take place "at the bar of the court,." or simply " at bar." The particular case being argued is the " case at bar; " and a person on trial for a crime is "the prisoner at the bar." The figurative expression ' ' before the bar of conscience " is not uncommon. In still another sense "the bar" denotes the members of the legal profession; as in speaking of the bar of a county, of a State, of the United States. Whence, also, are " bar associations," which consist of lawyers united for the purpose of furthering the in- terests of their profession. Barrister. A counselor, learned in the law, who pleads before courts, and undertakes tbe advocacy or defense of causes generally. > Tua V. Carriere, 117 U. S. 309 (1886). s Nelson v. Garland, 1 How. 272, 277 (1843). » See the Lowell BUI, as to partners, 19 Am. LawEev. .33 (1885). * Canada South. E. Co. v. Glebhard, 109 U. S. 536 (1883). Inner barristers. Queen's counsel, ad- mitted within the bar, in seats specially re- served for them.l Outer or utter barristers. Junior counsel, who sit outside the bar. Compare Sergeant. Disbar. To expel an attorney from mem- bership in the legal profession. See further Attorney. 2. In a somewhat general way a public bar may be defined as a counter, table, shelf, or other similar device, designed and used for the purpose of facilitating the sale and delivery of liquors thei-e kept to any one who may apply for them, to be then and there drunk, not in connection with meals, lunches or food.2 A lunch counter would not be such a bar merely because sales of liquor only are sometimes made there." 3. An impediment ; an obstacle. Whence the verbs "bar" and "debar," to prevent, cut off, defeat. Plea in bar. A plea intended to over- throw an action ; a plea which sets up an absolute or peremptory defense, as, payment. Special plea in bar. New matter avoiding the inference of law on facts previously stated. Temporary bar. A plea in bar which is effectual for a limited period only: as, " ad- ministered fully," until more assets come to hand. 3 BARBED WIRE. See Fence. BARE. Compare Naked. BARGAIN.* 1, n. A mutual contract or agreement between two parties, the one to sell goods or lands, and the other to buy them.5 Any mutual undertaking. " Bargain " more prominently, perhaps, than "agree- ment," brings into view the mutuality of a contract." 3, V. To transfer in pursuance of a bargain ; as, "to grant, bargain, and sell." Bargainer. He who makes a bargain. Bargainee. He who is to receive prop- erty under the contract of a bargain; the grantee in a deed of bargain and sale. See Earnest; Grant, 3: Offer, 1. > See 3 El. Com. 26; The Nation, Deo. 20, 1883, No. 964. 2 Commonwealth v. Rogers, 135 Mass. 639 (1883), Colburn, J. s See 3 Bl. Com. 305; 1 Flip. 4; 60 Md. 125; 1 Greg. 48. . « F. bargaigner, to chaffer: L. L. barca, a bark for merchandise. » Hunt V. Adams, 5 Mass. "360 (1809), Parsons, C. J.; Packard v. Richardson, 17 id. *131-32 (1821). • Sage V. WUoox, 6 Conn. 85, 90 (1836). BARGAIN 110 BARON Bargain and sale. A contract whereby the bargainer, for some pecuniary consider- ation, bargains and sells, that is, contracts to convey, land to the bargainee.^ Also used of transfers of personalty. A contract to convey, for valuable consid- eration, by any words sufficient to raise a use in the bargainee.^ At common law, land can not pass wItlioTit livery, q. V. In this contract the bargain vests the use, and the Statute of Uses then vests, that is, completes, the possession.^ The force of that statute is exhausted in transfer- ring the legal title in fee-simple to the bargainee.^ See Use, 3. In a "bargain and sale" of personalty the thing becomes the buyer's the moment the contract is made, whether delivered or not. In an "executory agree- ment," the thing remains the property of the vendor till the contract is executed.* Catching a bargain. An agreement to purchase an expectant estate at an inade- quate price. Applied to heirs dealing with their expectancies, and to reversioners and remainder-men dealing with property already vested in them, but of which the en- joyment is future, and is, therefore, apt to be under- estimated by the giddy, the necessitous, the improv- ident, and the yoimg.^ In most cases have concurred deceit and illusion as to other persons. The father, ancestor, or other relative, from whom was the expectation of the estate, has been kept in the dark. The expectant has been kept from disclosing his circumstances, and resorting to them for advice and relief. This misleads -the an- cestor, who has been induced to leave his estate, not to his heir or family, but to artful persons who have divided the spoil beforehand.^ To maintain parental and quasi parental authority, to prevent the waste of family estates, and to protect the heedless and necessitous froni the designs of ra- pacity, relief is afforded in equity. The purchaser must establish not merely that there is no fraud, but "make good the bargain," that is, show that a fair and adequate {g. v.) consideration has been paid.' Compare UTicon^cionable Bargain. Strike a bargain. To shake hands in attestation of an agreement ; also, to come to an agreement. Fi'om the old custom of shaking hands as necessary to bind a bargain." 1 8 Bl. Com. 338 ; Slifer v. Beates, 9 S. & B. HTi (1832). = [4 Kent, 495. 8 Croxall V. Shererd, 5 Wall. 882 (1866), cases. * Benj. Sales, §§ 308, 310; Smith, Contr. 331; Smith v. Surraan, 9 B. & C. S68 (1829). 1 Story, Eq. § 337. ' Chesterfield v. Janssen, 2 Ves. 167, 155 (1750), Hard- wicke, Ld. C. ' 1 Story, Eq. §§ 335-36. 8 2 Bl. Com. 448. Time bargain. A contract for the sale of stocks, provisions, or other commodity or article of merchandise, at a certain price on a future day, the vendor himself intending to purchase the thing, which is the sub- ject of the proposed sale, before the day for the delivery has arrived. See further Wager, 2. Unconscionable bargain. Such bargain as no man in his senses and not under delu- sion would make, on the one hand, and as no honest and fair man would accept, on the other, — being an inequitable and unconsci- entious bargain. 1 A bargain of so unconscionable a nature and of such gross inequality as naturally leads to the presumption of fraud, imposi- tion, or undue influence.^ A court of equity is not bound to shut its eyes to the evident character of a transaction where its aid has been sought to carry into effect an unconscionable bargain, but it will leave the party to his remedy at law; as, in salvage cases. ^ BABGE. See Ship, 2; Vessel. BARK. See Litera, Qui hseret, etc. BAKU". See Arson ; Belong ; Curtilage. Within the meaning of a statute against arson, the building need not be used for storing provender.* The word may include a building mainly used for storing tobacco.* BABON.s 1. The man — one able to bear arms; one bound to I'ender service to the king.'' See Curtilage, 1. 2. A member of the nobility«in the fifth and lowest degree.' 3. A judge of the court of exchequer. "Barons of the realm" only were formerly ap- pointed to the ofdce; » as, "Park, B." 4. A lord ; a husband. Baron and femme. Man and woman; husband and wife.' Covert-baron. One under coverture; a wife.ii' See Coverture. ' Chesterfield v. Janssen, ante. ' = [1 Story, Eq. § 244. s Mississippi, &o. E. Co. v. Cromwell, 91 U. S. 643 (1875). See Post v. Jones, 19 How. 160 (1856); The Emulous, 1 Sumn. 210 (1832); The Brooks, 17 F. E. 548 (1883); 16 id. 144; 4 Del. Ch. 198; 27 Alb. L. J. 4 (1883). * State V. Smith, 28 Iowa, 668 (1870). ' Eatekin v. State, 28 Ohio St. 420 (1875). •L. L. baro, vara: L. vir, a man,— Webster. Ger. bar, a man; beran, to carry,— Skeat. ' 1 Bl. Com. 398-99. «3B1. Corn. 44, 56-56. » 1 Bl. Com. 432. '» 1 Bl. Com. 443. BARRATRY /111 BASTARD BARRATRY.! i. in maritime law, an act committed by the master or mariners of a ship, for some unlawful or fraudulent pur- pose, contrary to their duty to the owners, whereby the latter sustain injury.^ Consists in willful acts of the master or mariners, done for some unlawful or fraud- ulent purpose, contrary to their duty to the owners of the vessel. ^ The act must not be accidental, nor caused by neg- ligence — unless tbat is so gross as to amount to evi- dence of fraud. The intention need not be to promote one's own benefit. Any willful act of known crim- inality, or of malversation, operating to the prejudice of the owner, is barratry.' All definitions agree that fraud is a constituent part of the act.* 3. lu criminal law, common barratry is the offense of frequently exciting and stir- ring up suits and quarrels, either at law or otherwise.5 The proof must show at least three instances of offending." " A common barrator is a common mover or stirrer up or maintainer of suits, quarrels, or parties, either in courts or in the country ; in the country in three manners : in disturb- ance of the peace ; in taking or detaining of the possession of houses, lands, or goods, etc. , which are in question or controversy, not only by force, but also by subtlety and deceit, and for the most part in suppression of truth and right; by false invention, and sowing of calumny, rumors, and reports, whereby discord and disquiet arise between neigh- bors." ^ We have here strife and contention, and deceit or fraud, growing out of the compound origin and syn- onymous uses of the word. In the sense of " strife and contention," the word was used in connection with policies of insurance as late as the middle of the last century." BARREN. See Lett; Rent; Trust. 1. BARRISTER. See Bab. 1. > Sp. barateria, deceit, fraud,— 3 Pet. *230. » Marcardier v. Chesapealse Ins. Co., 8 Cranch, 49 (1814), Story, J. sLawton v. Sun Mut. Ins. Co., 2 Cush. 511-12 (1848), Shftw, C. J. ; Atkinson v. Great West. Ins. Co., 65 N. T. 638-40 (1875), cases; 2 Wash. 66. 4 Patapsco Ins. Co. v. Coulter, 3 Pet. *230 (1830). » 4 Bl. Com. 134. •Commonwealth v. M'Culloeh, 15 Mass. *229 (1818); Commonwealths Tubbs, 1 Cush. 3 (1848). ' The Case of Barratry, 8 Coke, *72 (1612). 8 Atkinson v. Great Western Ins. Ck)., 4 Daly, 16-20 (1871), Daly, C. J. BARTER.! A contract by which goods are exchanged for goods. ^ The exchange of one commodity or article of property for another.^ The consideration, instead of being paid in money, as in the case of a sale, is paid in goods or merchandise susceptible of valuation.* An agent empowered to sell cannot barter; and the principal may recover from an innocent transferee.* See Exchange, 1 ; Sale. BAS-RELIEF. See Design, 2. BASE. Inferior ; of low degree. Base animal. An animal which is unfit for food. See A,nimal. Base coin. Debased coin.* Base fee. An estate in fee that ends whenever an annexed qualification requires it.' See Fee, 1. Base services. Fit only for a person of servile rank.* Base tenant. One bound to servile serv- ice.' See Fetjd. BASE BALL. See Game, 2. BASTARD.'" One that is not only be- gotten, but born, out of lawful matrimony." Such child as is not born either in lawful wedlock, or within a competent time after its determination. !3 One begotten and born out of lawful wed- lock." The test is whether the husband of the woman who gives birth to the child is its father.'* In Virginia, one born out of wedlock, lawful or un- lawful, or not within a competent time after the coverture is determined; or, if born out of wedlock, whose parents do not afterward intermarry, and the father acknowledges the child; or who is born in wed- lock when procreation by the husband is for any cause impossible." Bastardize. To make out to be a bas- tard, an illegitimate or natural child. > F. barat, trafBc. ' 2 Bl. Com. 446. » Cooper V. State, 37 Ark. 418 (1881), English, C. J. 'Washington County v. Thompson, 12 Bush, 241 (1877), Cofer, J. » Guerreiro v. Peile, 3 B. & Aid. 616 (1820). « 6 Wheat. 333. ' [2 Bl. Com. 109. e [2 Bl. Com. 62, 6J. » 2 Bl. Com. 148. i»F. bastard! fils de last, son of a packsaddle — muleteers made beds of their saddles,— Skeat. >"1 Bl. Com. 454. " 2 Bl. Com. 247. 13 2 Kent, SOS. I* Wilson V. Babb, 18 S. C. 69-70 (1883), Simpson, C. J. n Smith V. Perry, 80 Va. 570 (1885), Lacy, J. BATTEL 112 BATTERY Bastardy. The ofifense of begetting an illegitimate child^ also, the condition of being an illegitimate child — illegitimacy. Bastardy process. The statutory mode of proceeding against the putative father of an illegitimate child, to secure maintenance for the child. Bastardy bond. The obligation entered into by such father with the guardians of the poor, conditioned for the payment of the lying-in expenses, maintenance of the child, and, perhaps, such costs as may have been incurred and such fine as has been imposed.' At common law there was no legal liability upon the father to support his bastard child. Now, at the instance of the mother, he can be made support it, by & "bastardy proceeding." '^ A bastard is a filius nuUius, son of nobody, or filius populi, son of the people. He has no inheritable blood, — ,has no heir except of his own body. He m'ay, however, take by bequest or devise. ^ He has a right to maintenance ; his settlement is the same as his mother's at his birth; he takes her name, but he may acquire a name by , reputation.* Once a marriage is proven, nothing can impugn the legitimacy of issue short of proof of facts showing it to be impossible that the husband could be the father.^ By the civil law, and statutes in many States, the subsequent marriage of the parents legitimates chil- dren born prior thereto. This seems to be the law in Alabama, Georgia. Illinois, Indiana, Kentucky, Loui- siana, Maine, Maryland, Massachusetts, Mississippi, Missouri, Ohio, Pennsylvania, Vermont, and Virginia." See Abandon, 3 (2); Access; Adulterine; Con- ceal, 4; Filiation; Marriage; Pregnancy. BATTEL.' Trial by combat or duel. Also called wager of battel, battle, battaile. In the nature of an appeal to Providence, under an apprehension and hope that' Heaven would give the victory to him who had the right. Introduced by theConquerer; and used in the court- martial, or court of chivalry and honor, in appeals of felony, and in writs of right — the last and most solemn decision of real property.^ Recognized as the law of the laud as late as 1818, in the case of Ashford v. Thornton.^ Abolished by ' See (Jleason v. Commissioners, 30 Kan. 493 (1883). ' Stowers v. Hollis, 83 Ky. 549 (1886). »1 Bl. Com. 469; 8 id. 247-49; Gaines v. Hennen, 24 How. 553,592 (1860); Gaines •«. New Orleans, 6 Wall. 618 (1867) ; Smith v.Bu Bose, Sup. Ct. Ga. (1887) : 36 Alb. Law J. 344-48. ' 1 Bl. Com. 459. s Patterson v. Gaines, 6 How. 589, 598 (1848). See also 18 Cent. Law J. 262-68, 305-7 (1884), cases. « See 2 Kent, 210-14. ' L. batuere, to strike, beat. 8 3 Bl. Com. 837; 4 id. 346; Coke, Litt. § 2945. » 1 Bam. & Aid. 405. statute 59 Geo. IH (1819), c. 46.» Compare Ordeal- Wager, 1. BATTERY.^ The unlawful beating of another. 3 Any unlawful touching of the person of another, either by the aggressor or by any person or thing set in motion by him.< The least touching of another's person will- fully, or in anger, is a battery. The law cannot draw the line between different de- grees of violence, and therefore prohibits the first and lowest stage of it — every man's person being sacred and no other having a right to meddle with it in the slightest man- ner.^ In assessing damages the degree of violence is taken into account. See Beat. Every *^' battery " includes an " assault." The two offenses are joined in indictments, and the assault alone may be proved. Whence " assault and battery," which is — simple, wnen a mere touching or beating is intended ; aggravated, when grievous bodily harm is inflicted, as by breaking a limb or disfiguring the face; felonious, when death is designed, or sei'ibus wounding- with, intent to commit a felony, when the end sought is a felony, at common law or by stat ute." See Assault, While "battery " includes "assault," it does not include " an assault with a deadly weapon with intent to commit bodily harm." ^ A battery may be lawful or justifiable, or unlawful. It is lawful: (l)when committed under authority, as by an officer in order to preserve the peace,' or by a parent, master, teacher, or military officer, each of whom may correct moderately; (2) when in self-de- fense; that is, of self, wife, husband, child, parent, servant; (3) when -in defense of onp's own goods or possession. It is unlawful: (1) when it originates in malice — is committed in an angry, spiteful, insolent, or rude manner; (2) when it is the result of censur- able carelessness.** A trespasser who uses force raiay be summarily ejected. A person assailed need not wait till a blow has been dealt him. At the same time resistance must not exceed the degree of necessary defense — for it is thelaw that punishes. Any resistance in the offender 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 object in the hand. ' See generally United States v. Gibert, 2 Sumn. 68 (1834), Story, J. 3 L. batuere, to beat. " 3 Bl. Com. 120. * 1 Saund. PI. & Ev. *141; Kirland v. State, 43 Ind. 163 (1873); 3 Cooley, Bl. Com. 120, note. ' 8 Bl. Com. 120; Johnson v. State, 17 Tex. 517 (1856). » See 4 Bl. Com. 216; 13 Allen, 817; 17 F. E. 266. ' People i;, Helbing, 61 Cal. 621 (1883). 8 See 3 Bl. Com. 120-21. • See 2 Bishop, Cr. L. § 661. BATTUEE 113 BEARER To strike the horse which another person rides or drives is an assault. The owner is liable for a battery when his horse, left near a sidewallc, bites or kiclts a passer-by. The remedy in a civil court is an action of trespass vietarmisiot damages; in a criminal court, indict- ment-for assault and battery for the public wrong. ^ While it is no defense to a civil action for an as- sault and battery that the acts complained of were committed in a fight engaged in by mutual consent, such consent may go in mitigation of the damages.^ See Abbt; Arrest, 2; Defense,!; Duress; Force; Manus, MoUiter; Injury; Provocation; Wound. BATTTJRE. "Accretion," which is the imperceptible augmentation of the soil on the shore of a stream, is called "alluvion" and sometimes "batture." ' A marine term, denoting a bottom of sand, stone or rock mixed together, and rising toward the surface of the water. From the French battre, to beat: beaten by the water. . An elevation of the bed of a river, under the surface of the water; also, sometimes, the same elevation of the bank, when it has risen above the surface of the water or is as high as the land on the outside of the bank. * See Accretion. BAWD.* One who procures opportuni- ties for persons of opposite sexes to cohabit in an illicit manner.^ Bawdy-house. A house of ill-fame; a house kept for the resort and unlawful con- -venience of lewd people of both sexes; a house resorted to for purposes of lewdness and prostitution.' The prosecution having shown that the defendant is the keeper of a house alleged to be a common bawdy-house, testimony as to the general reputation of the house, of the persons who frequent it, and of the defendant, is admissible, as tending to show the real character of the house.' Keeping a bawdy-house is Indictable as a common nuisance at common law." See House, 1, Of ill-fame; Prostitute. BAY-WINDOW. See Lights, Ancient, A nut or bay-window which is maintained without authority of law, which encroaches on the public 13 Bl. Com. 121; 4 id. 216; Kirland v. State, 43 Ind. 148-56 (1873), cases ; State v. Davis, 1 Hill, S. C, 46 (1833). "Barholt v. Wright, Sup. Ct. Ohio (1887), cases: 12 N. E. Kep. 185; 36 Alb. Law J. 3 (1887), cases. s [Zeller v. Tacht Oub, 34 La. An. 838 (1882), Todd, J. ; 4 Hall's Law J. 518; 12 F. E. 295; 15 Wall. 650. 4 Morgan v. Livingston, 3 Mart. Ill (1819),- Martin, J. ; ■ib. 11. See Municipality No. 2 11. Orleans Cotton Press, 18 La. 436 (1841). ' F. baud, gay, wanton: Ger. bald, bold, free. • Dyer v. Morris, 4 Mo. 316 (1835). 'State V. Boardman, 64 Me. 529 (1874); McAlister v. Clark, 33 Conn. 92 (1865); State v. Hand, 7 Iowa, 411 <1858);' Harwood v. People, 26 N. Y. 191 (1863); State v. Brunell, 29 Wis. 436 (1872), cases. "Martin v. StUlweU, 13 Johns. •275 (1816). (8) highway, and is prejudicial to the interests of the com- munity and of the rights of individual property owners, may be declared a' public nuisance and its continuance restrained. As, a window built in the second story of a house, sixteen feet above the sidewalk and project- ing three and a halt feet beyond the property or build- ing line.^ BE IT ENACTED. See Act, 3. BEACH. The land, between the lines of high and low water, over which the tide ebbs and flows ; synonymous with shore, strand, flat. 2 A deed of land described as boimded ' ' on the beach " does not convey the shore below high-water mark, unless this boundary is controlled by other parts of the description. Taking sea-weed from an iminclosed beach, and selling stones therefrom from time to time, may oper- ate to disseize the true owner.^ BEACOH. See Commerce ; Wreck. BEANS. See Grain. BEAR. See Date ; Interest, 2 (3). BEAB.EB. He who bears or carries a thing ; he who presents for payment a bill, check, or note, transferable by delivery. A note payable to "A or bearer" is negotiable without indorsement, and payment may be demanded by any bearer as the person whom the maker prom- ised to pay. The transferrer is not liable except on failure of the consideration. The holder is presumed to be owner for value; but any circumstance of sus- picion, as theft of the instrument by a former holder, may require the present holder to prove that he gave value for the paper. < The bona fide purchaser of a note payable to bearer, but stolen from the rightful holder, may re- cover the amount of it from the maker; otherwise, where the note is stolen directly from the maker.' A note payable to bearer is said to be assignable by delivery; but really there is no "assignment" at all. The paper passes by mere delivery, the holder never makes title through any assignment, but claims as bearer. The note is an original promise by the maker to pay any person who shall become bearer; it is, therefore, payable to any and every person who suc- cessively holds the note bona fide, not by virtue of an assignment of the promise, but by the original, direct promise moving from the maker." See Blank, 2; Bond; Coupon; Negotiate, 2. 1 Reimer's Appeal, 100 Pa. 182, 190 (1888); Common- wealth V. Harris, 10 W. N. C. 10-15 (1881),- PhUadel- phia cases. 2 [Doane v. Willcutt, B Gray, 335 (1855); 41 Conn. 14; 15 Me. 237; 48 id. 68. s Litchfield v. Ferguson, 141 Mass. 97 (1886). «2 Bl. Com. 468; 2 Pars. Contr. 242; 14 WaU. 296; 17 Blatch. 2. ' Branch v. Commissioners, 80 Va. 432-34(1885), cases. » Bnllard v. Bell, 1 Mas. 362 (1817), Story, J. ; Thomp- son V. Perrine, 108 U. S. 592-93 (1882), cases; Chicka- ming V. Carpenter, ib. 666 (1882). BEARING 114 BELIEF BEARING. See Date; Interest, 2(3). BEAST. See Animal. Beasts of the plow. An ancient expres- sion referring to animals employed in the or- dinary uses of husbandry, or other actual labor in a lawful and useful industry.! See Distress (3) ; Horse. BEAT. In law, not merely to whip, wound, or hurt ; includes any unlawful im- position of the hand or arm. 2 To commit a battery,' q. v. BED. 1. The right of connubial inter- course ; cohabitation, q. v. Whence bed and board. See Divorce. 2. The bed of a river is that soil so usu- ally covered by water as to be distinguishable from the banks, by the character of the soil, or vegetation, or both, produced by the com- mon presence and action of flowing water.* Compare Bank, 1. BEE. See Animal. BEER. See Liquor; Prohibition, 3. BEEVES. See Neat. BEFORE. See After; Ante; Coram; On. Before the twenty-eighth of a month means by the twenty-seventh, at least.^ Before a given day excludes that day.' Before the court. When a matter, by regular proceeding, is made to engage or re- ceive the direct attention of a court, for the purpose of decision, it is said to be or to be pending "before the court." See Decision; ' Dictum. ( A certificate by a clerk that a complaint was sworn to "before said court" raises a presumption that this was done in court.' Before trial. May mean before pleading to the merits,* — implies that a suit has been commenced.' BEGGHSra. See vagrant. The act of a cripple who stands upon a sidewalk and in silence holds out his hand for money from pass- ers-by is " begging for alms." i*" BEGIN. See Affirm, 1; At, 3; Run, 5. 1 Somers v. Emerson, 68 N. H. 49 (1876). » Gkiodrum v. State, 60 Ga. 511 (1878). ' State u Beverlin, 30 Kan. 613 (1883). < Howard v. Ingersoll, 13 How. 427, 381, 416 (1851), Curtis, J. s Metropolitan Nat. Bank of New York v, Morehea,a, 38 N. J. E. 500 (1884). » Ward V. Walters, 63 Wis. 44 (1885). 'Tacey 1). Noyes, 143 Mass. 451 (1887). 8 Winship v. People, 61 111. 898 (1869). "Horner v. PiUdngton, 11 Ind. 442 (1858). ^'Re Haller, 3 Abb. N. Caa. 65 (1877). BEHALF. See Interest, 3 (1). A witness called by a party testifies " in his behalf " though he testifies against his interest. ^ BEHAVIOR. Manner of having, hold- ing, or keeping one's self ; personal carriage and demeanor ; bearing, with respect to pro- priety, morals, and the requirements of law. Disorderly behavior. See Contempt; Disorder, 3; Order, 4. ' Good behavior. Bearing which conforms to the law. All persons who are not of good fame may be bound over to good behavior — an expression of so great lati- tude as to leave much to be determined by the discre- tion of the magistrate." See Suspicion, 3. Security to be of good behavior includes more than security to keep the peace ; it is demanded with greater caution, and the recognizance is more easily forfeited.* See Peace, 1. i Misbehavior. Improper, unlawful con- duct. A verdict will be set aside for gross misbehavior in the jury, the prevailing party, or his counsel; and an award will be set aside for misbehavior in the arbitra- tors or referee. 3 A judge holds office for a specified term, if he shall " so long behave himself well." See Tenure, Of office. Each house of Congress may punish its members for disorderly behavior.* BEING. Compare In, 3 (3), Esse. An allegatioHr^that liquor was sold to S. and W. M., " being " minors, shows with sufdcient certainty that those persons were minors.' BELIEF. ' Conviction of mind, founded on evidence, that a fact exists — that an act was done, that a statement is true.6 The. difference between "belief" and " knowledge " consists in the degree of cer- tainty. Things which do not make a deep impression on the memory may be said to leave a " belief." Knowledge is firm belief.' "Between mere belief and knowledge there is a wide difference; " for example, as to whether a lode or vein of gold or sflver exists in a claim proposed for a patent.8 The distinction between the two words has become important where the contents of a paper are to be verified as true to the knowledge of the affiant, ex- ■ Richerson v. Stemburg, 65 111. 272 (1872). »4 Bl. Com. 256; 1 Binn. 98, n; 2 Yeates, 437. > 3 Bl. Com. 387; 4 id. 361. * Constitution, Art. I, sec. 5, cl. 2. " State V. Boucher, 59 Wis. 481 (1884). » Giddens v. Mirk, 4 Ga. 369 (1848). See also State v. Grant, 76 Mo. 246 (1882). ' [Hatch V. Carpenter, 9 Gray, 274 (1857), Shaw, C. J.; 9 Cal. 62. 8 Iron Silver Mining Co. v. Reynolds, 124 U. S. 383 (1888), Field, J. BELLIGERENT 115 BENEFICE ceptasto a matter stated on " information and belief," which he must state he believes to be true.^ That may be ground for " suspicion " which will not evidence "belief." ^ While a person may have reason to believe and yet disbelieve, he cannot " verily believe " without having good reason in fact.^ The grounds of belief are: credulity, experience, probability, induction. Experience constitutes the basis of belief in human testimony. Aid is derived from the experience of others. ]|elief in such testi- mony is a fundamental principle of our moral nature. This is strengthened by corroborating circumstances. Probability is determined by experience and reason- ing combined. Induction tests probability.* See Answer, 3; Certainty; Credit, 2; Deceit; Fraud; Knowledge, 1; Suppose; Suspicion. BELLIGERENT. See Wab. BELL-ROPE. See Obstrtjct, 1. BELLS. See Nthsancje. BELONG-. In statutes referring to in- habitancy, the poor, etc., designates the place of a person's legal settlement, not merely his place of residence. 5 Belonging to. In the Pennsylvania statute de- fining arson, includes all structures (as, for example, a bam) so near a dwelling-house on the same prem- ises as to endanger the safety of the house in case of fire.' See Accessory; Incident. BELOW. Compare Above ; Infba. BENCH. The judge's seat in a court. Also, the judges themselves as a tribunal or a professional class: as, the common or common pleas bench, the supreme bench, a full or partial bench. Compare Bar, 1. ICtng's or Queen's bench. The supreme court of common law in England, now merged into the High Court of Justice. Abbreviated K. B., and Q. B. The king in person used to sit In this court: in theory it was always held before the sovereign. Dur- ing thb reign of a queen it is called the "Queen's bench." In the time of Cromwell it was styled the "upper bench." It succeeded the aula regie, q. v. Although supposed to follow the person of the sover- eign, it was in fact held at Westminster. It consisted formerly of a chief justice and four associate jus- tices — the sovereign conservators of the peace. The jurisdiction of the court, which was originally crim- inal and included trespasses, in time included all per- sonal common-law actions between subjects, and actions of ejectment. It had also supervisoiy power > See Black v. Halstead, 39 Pa. 71 (1861); 56 id. 33; 67 id. 477; 79 id. 384; 81 id. 180; 83 id. 354. " Commonwealth v. Lottery Tickets, 5 Cush. 374 (1850). 8 Russell V. Ealph, 53 Wis. 332 (1881), cases. . Norris, 20 id. 523 (1869), cases- 60 N. H, 533. * Suter ,;. HiUiard, 132 Mass. 418-14 (1882), cases, En- BENZINE 117 BETWEEN BENZINE. See Oil. BEQUEATH. A gift of personal prop- erty by will. Bequest. A gift of personalty by will ; the clause in the instrument making the gift; the thing itself so given. When the context requires it " bequeath " will be construed "devise" — which is o£ realty.* See De- tise; Leqact; Will, a. BEST. See Bid ; Evidence ; Knowledge. A testator made a bequest to his son-in-law in trust " to iMiy the income or such portion as he may con- sider best and at such time as he sees fit " to testator's granddaughter, an infant, during her life. Held, that the intent of the testator was to consider the welfare of the granddaughter; that the word "best" had more reference to withholding income than paying it; that the trustee was to pay only as he thought best to pay.3 See Discretion, 2; If. BESTIALITY. See Sodomy. BET.3 A wager, — the act or the amount. "Bet" and "wager" are synonymous * terms, applied to the contract of betting and ■wagering and to the thing or sum bet or w^agered. They may be laid upon games and upon things that are not games.* A " bet " or wager is ordinarily an agree- ment between two or more that a sum of money or some valuable thing, in contribut- ing which all agreeing take part, shall be- come the property of one or some of them on the happening in the future of an event at present uncertain ; while the " stake " is the money or other thing thtis put upon the chance. Each party gets a chance of gain from others, and takes a risk of loss of his own to them.5 "Illegal gaming imphes gain and loss between the parties by betting, such as would excite a spirit of cupidity." A "purse," " prize," or "premium " is or- dinarily some valuable thing offered by a person for the doing of something by others, into the strife for which he does not enter. He has not a chance of gaining the thing offered; if he abide by his offer, that he must give it over to some of those contending for it is reasonably certain. "Bet or stakes" and "bet or wager " have substantially the same meaning.' dicott. J. ; Saltonstall v. Sanders, 11 Allen, 470 (1865), Gray, J.; Jones v. Habersham, 107 U. S. 185 (1888); Adye v. Smith, 44 Conn. 60 (1876). 1 Evans v. Price, 118 111. 599 (1886); Ladd v. Harvey, 21 N. H. 538 (1850); Lasher v. Lasljer, 13 Barb. 109-10 (1852); Laing v. Barbour, 119 Mass. 525 (1876), cases. 2 Bartlett v. Slater, 53 Conn. 110 (1886). 3 For abet, to maintain. * Woodcock V. McQueen, 11 Ind. 16 (1858), Perkins, J. e Harris v. White, 81 N. Y. 639 (1880), Folger, C. J.; Commonwealth v. Wright, 137 Mass. 251 (1884). A bet on an election means on the result of the election.' See Game, 2; Waqeb. BETTER. See Equity. BETTERMENT. 1. An improvement -^ to realty which is more extensive than ordi- naiy repair, and increases, in a substantial degree, the value of the property ; meliora- / tion. ' Betterment Acts. Statutes which secure to a purchaser of land for valuable consider- ation, without notice of an infirmity in the title, an interest in the land equal to the value of the improvements or melioration he may have made. The rule of the common law is that the owner of land shall not pay an intruder or occupant for unau- thorized improvements. This induces diligence in the examination of titles, and prevents wrongful appropri- ations. Chancery, borrowing from the civil law, made the first innovation upon the doctrine; and in time held that when a bona fide possessor made meliora- tions in good faith, under an honest belief of o^vner- ship, and the real owner for any reason went into equity, the court, applying the maxim that he who seeks equity must do equity, and adopting the civil law rule of natural equity, compelled the owner to ;. pay for such industrial accessions as were perma- ; nently beneficial.to the estate.* The occupant must have peaceable possession, imder color of title, and honestly believe that he is the owner of the land. Any instrument having a grantor and grantee, containing a description of the land, and apt words for their conveyance, gives color of title. Actual notice o£ an adverse title is proof of the ab- sence of good faith.' 3. The additional value which a piece of property acquires from its. proximity to a public improvement.* See Compensation, 3. BETWEEN. Often synonymous with "among," especially when employed to con- vey the idea of division or separate owner- ship of property held in common.' It is as appropriate to say that property is to be divided "between" as "among " A, B, and C 1 Commonwealth v, Avery, 14 Bush, 683 (1879). ' Parsons v. Moses, 10 Iowa, 444^6 (1864), cases, Dil- lon, J. J Beard «. Dansby, 48 Ark. 186-87 (1886), cases. See generally Bright v. Boyd, 1 Story, 49J-98 (1841): 2 id. 607 (1843); Griswold v. Bragg, 18 Blatch. 200 (1880); Wieeler v, Merriman, 30 Minn. 376 (1883); EfBnger v. Hall, 81 Va. 102-6 (1885), cases; Green v. Biddle, 8 Wheat. 79 (1833); Jackson v. Loomis, (N. Y.), 15 Am. Dec. 347, cases; 19 Blatch. 04; 48 Conn. 581; 11 Me. 482; 74 id. 515; 13 Ohio, 308; 14 S. C. 338; 17 Vt. 109; 3 Pom- eroy, Eq. § 1241, cases; 3 Story, Ea. §§ 799, 1237-58, cases; 1 Wash. E. P. 139, cases. ' See Foster v. Commissioners, 113 Mass. 835 (1882). » Myres v. Myres, 23 How. Pr. 415-16 (1862). See also Ward V. Tomkins, 30 N. J. E. 4 (1878); 20 Conn. 122. BEYOND 118 BID When "between" and " among " follow the verb *' divide" their general signification is very similar, and in popular use they are synonymous — though " among " denotes a collection and is never followed by two of any sort, while " between," may be followed by any plural mmiber, and seems to refer to, the in- dividuals of a class rather than to the class itself.' " Between " persons implies, strictly speaking, be- tween two parties to a division ; but the reference may be to more than two persons.'* By the language "equally divided between my grandchildren," a testator may intend division be- tween two families.' Between two places excludes the terminii.* Between two days excludes both days.^ See Day. "Between eleven o'clock P. M. and five o'clock A. M." covers the period intervening between eleven o'clock at night and five o'clock in the morning of the succeeding day.' BEYOND. See Sea. BI. The Latin prefix, put for dui, twice, or from bis, twice, two. BIAS.' Inclination of mind toward a particular object ; an influential power which sways the judgment.^ In a juror, being under an influence which BO sways his mind to one side as to prevent his deciding the cause according to the evidence.^ Not synonymous with prejudioe.s May show bias in a witness by relationship, sym- pathy, hostility, or prejudice." See Impartial, 1; Prejudice. BIBLE. See Blasphemy; Christianity; Hearsay, 4. BICYCLE. Held to be a "carriage," within a statute forbidding fast driving. m Not a "carriage" liable to toll, imder the English Turnpike Act of 1883." A tricycle capable of being propelled by the feet, or by steajn as an auxiliary, or alone, was held to be a "locomotive," within the English Highways and Locomotive Act of 1378. >= The park commissioners of New York, in their dis- cretion, may prohibit bicycles in the parks of that city. An ordinance to that effect may be a " regulation " intended by the statute creating their oflaoe.i' 1 Senger v. Sanger's Executor, 81 Va. 698 (1886), Rich- ardson, J. 2 Haskell v. Sargent, 1J3 Mass. 343 (1873). s Stoutenburgh v. Moore, 37 N. J. E. 69 (1883). « Revere v. Leonard, 1 Mass. *93 (1804). s Bunco V. Reed, 16 Barb. 363 (1833); 5 Mete. 640. « Hedderich v. State, 101 Ind. S70 (1884). ' F. biais a slant, slope: inclination to a side. L. L. bifacem, one who looks sideways. — Skeat. » [Willis V. State, 12 Ga. 449-50 (1853). 1 Whart. Ev. §§ 408, 566. 1" Taylor v. Goodwin, L. E., 4Q. B. D. 328 (1879). " Williams v. Ellis, L. E., 5 Q. B. D. 176 (1880). "Parkyns v. Priest, L. R., 7 Q. B. D. 815 (1881). '3 Matter of Wright, 89 Hun, 368 (1883). , An act which forbids the use of bicycles on a cer- tain road, unless permitted by the superintendent of the road, is not unconstitutional. ^ In the absence of legislative prohibition, riders of bicycles would seem to have the same rights on high- ways as those using any other vehicle.' BID. In its most comprehensive sense, to make an offer ; in its more ordinary ac- ceptation, to make an offer at an auction ; ' the offer itself. Also, the price at which a contractor will furnish material or do some other particular thing. Bid off. One is said to bid off a thing when he bids at an auction and the thing is knocked down to him in immediate succes- sion to his bid and as a consequence of it.' Bidder. One who offers to give a desig- nated price for propertSy on sale at an auction. By-bidding. Fictitious bidding; run- ning up the price of an article, not to save it from sacrifice, but to mislead bona fide bid- ders; puffing. Upset bid. A more liberal bid on prop- erty sold at public sale, offered to the court having jurisdiction in the proceeding, in order that the sale already made may be set aside, or confirmation thereof withheld, and that the new bid may be entertained, perhaps along with other bids. Whence upset-hidder, for the person who makes such offer.* (Local.) The article offered for sale is to be delivered to the highest real bidder. If a minimum price is fixed notice thereof must be given. By-bidding, since it deceives and involves falsehood, is a fraud.' An agreement not to bid, that is, to prevent competition and possibly to cause a sacrifice of the property, is void, as against public policy. On a breach of a contract to pay a bid the measure of damages is the amount which would have been received if the contract had been kept." It was formerly the rule in England, in chancery sales, that, until confirmation of the master's report, the bidding would be " opened " upon a mere offer to advance the price ten per centum. But Lord Eldon expressed dissatisfaction with this practice, as tend- > State V. Yopp, 97 N. C. 477 (1887). 2 Cook, Highways. See 69 Law Times, 28 (1880); 25 Solio. J. & R. 4 (1880) — commenting on TayloVs and Williams' cases, anie — notes 10, 11. = Eppes.u Mississippi, &c. E. Co., 35 Ala. 56 (1859), Walker, 0. J. < See Yost v. Porter, 80 Va. 855 (1885). 'Veazie tj. Williams, 8 How. 151-53 (1860), cases; 2 Kent, 638. "Wicker v. Hoppock, 6 Wall. 97-08 (1867), cases; James v. La Crosse, &c. E. Co., ib. 753 (1867); 4 Del. Ch. 491; ICowp. 395. . BIGAMY 119 BIGAMY ing to impair oonfldenoe in sales, to keep bidders from attending, and to diminisii the anioupt realized, and his views were finally adopted in the statute of 30 and 81 Viet. (1867), c. 48, § 7. . . In this country his views were followed at an early day by the courts, and the rule has become almost universal that a sale will not be set aside for inadequacy of price unless the inade- quacy be so great as to shock the conscience, or unless there be additional circumstances against its fair- ness; being very much the rule that always prevailed in England as to setting aside a sale after a master's report had been confirmed. . If the inadequacy of price is so gross as to shock the conscience, or if, in addition to gross inadequacy, the purchaser has been guilty of unfairness, or has taken any undue advan- tage, or if the owner of the property, or the party interested in it, has been for any other reason misled or surprised, the sale will be regarded as fraudulent and void, or the party injured will be permitted to redeem the property sold. Great inadequacy requires only slight circumstances of unfairness in the conduct of the party benefited by the sale to raise the presump- tion of fraud. 1 See Adequate, 1; Auction; EESpoNsmLE; Sale, Judicial. BIGAMY.2 The offense of having two husbands or wives at the same time, the one dejure and the other defacto.^ Strictly speaking, bigamy means "twice married," as its derivation shows. This was never an offense at common law; it was made an offense by the canonists. Polygamy is the proper term; but, by long usage, bigamy has come to mean the state of a man who has two wives, or a woman who has two husbands, at the same time.* Whence bigamist (not a legal term), and bigamous. The penalties of the offense are not incurred where one of a married couple has been absent and unheard of for a long period, as five to seven years, and the other party marries; nor, in some States, where one is sentenced to imprisonment for a long term, as for life ; nor where there has been a legal dissolution of the re- lation for a cause not involving guilt, as for a contract made within the age of consent.' The first wife is not admitted as a witness against her husband, because she is the true wife : but the sec- 1 Graffam v. Burgess, 117 U. S. 191-93 (1886), cases, Bradley, J. See also Vass v. Arrington, 89 N. 0. 13 <1883) — ten per cent, rule; Hansucker v. Walker, 70 Va. 763 (1882); Langyhec v. Patterson, 77 id. 470 (ISSJ); Central Pacific K. Co. v. Creed, 70 Cal. 501 (1886); Bab- cock V. Canfield, 88 Kan. 439 (1887). 2L. L. bigamia: bi for Gk. di, double; gamia, for Gk. gdmos, marriage. Gk. di'samia,— Skeat. s 1 Bishop, Mar. & Div. § 296. < Gise V. Commonwealth, 81 Pa. 482, 430 (1876), Pax- son, J. See also 4 Bl. Com. 163; 2 Steph. Hist. Cr. L. Eng. 430; 1 Law Quar. Eev. 474-76 (1885). " 3 Kent, 79-80; 4 Bl. Com. 164. ond wife, so called, may be, for she is not a wife at all ; and so, vice verm, as to the second husband, so called.' The first marriage may be proved by the admissions of the prisoner.'* In a criminal prosecution strict proof of an actual marriage is necessary ; but in a civil suit an admission, or reputation and cohabitation, sufBoes.' The act of Congress of July 1, 1862, isro- vided that every person having a husband or wife living, who married another, whether married or single, in a Territory, or other place ov^r which the United States had ex- clusive jurisdiction, was guilty of bigamy — And should be punished by a fine of not more than five hundred dollars, and by imprisonment for a term of not more than five years.* That act was amended by act of March 23, 1882, to read as follows: Section 1. "Every person who has a husband or wife living who, in a Territory or other place over which the United States have exclusive jurisdiction, hereafter mari'ies another, whether married or single, and any man who hereafter simultaneously, or on the same day, marries more than one woman, in a Terri- tory or other place over which the United States have exclusive jurisdiction, is guilty of polygamy, and shall be punished by a fine of not more than five hundred dollars and by imprisonment for a term of not more than five years; but this section [R. S. § 5352, as amended] shall not extend to any person by reason of any former marriage whose husband or wife by such marriage shall have been absent for five years, and is not known to such person to be living, and is believed by such person to be dead, not to any person by rea- son of any former marriage which shall have been dissolved by a valid decree of a competent court, nor to any person by reason of any former marriage which shall have been pronounced void by a valid decree of a competent court, on the ground of nulhtj of the marriage contract." Sec. 2. If any male person cohabits with more than one woman, he shall be guilty of a misdemeanor, punishable by a fine of not more than three hundred dollars, and by imprisonment for not more than six months, or by both. Sec. 5. Cause for challenge of a jm-or is: living or having lived in the practice of bigamy, polygamy, or unlawful cohabitation with more than one woman; or believmg in the practice of bigamy, polygamy, etc. . . An answer shall not be given in evidence in any criminal prosecution under the act. Declining to an- swer as a witness renders the person incompetent. Sec. 6. The President may grant amnesty for of- fenses committed before the passage of the act. Sec. 7. The issue of Mormon marriages, born before January 1, 1883, ai-e legit imated. ' 1 4 Bl. Com. 164. 2 Miles V. United States, 103 U. S. 304, 311 (1880), cases. » The Gaines Cases, 24 How. 605 (1860) ; 13 id. 472 ; 6 id. 597; States. Johnson, 12 Minn. 476 (1867), cases: 93 Am. Deo. 241, 251-57, cases; 63 Pa. 132; 14 Tex. 468, 471; 2 Utah, 36. • 12 St. L. 50: E. S. § 6353. BIGAMY 130' BILL See. 8. " No polygamist, bigamist, or any person cohabiting with more than one woman, and no woman cohabiting with any of the persons described as afore- said . . shall be- entitled to vote at any election . . or be eligible for election or appointment to or be entitled to hold any oiHce or place of public trust, honor, or emolument in, under, or for any such Terri- tory or place, or under the United States." Sec. 9. Declares all registration and election offices vacant, and provides for their being filled by a board of five persons, appointed by the President, until pro- vision be made by the legislative assembly of tbe Ter- ritory as further directed by this section.^ Any man is a polygamist or bigamist, within the meaning of the last recited act, who having previously married one wife, still living, and having another at the time when he presents himself to claim registration as a voter, still maintains that relation to a plu- rality of wives, although from March 22, 1882, until the day he offers to register, he may not in fact have cohabited with more than one woman. . . The crime, under the acts of Congress, consists in entering into a bigamous or polygamous miarriage, and is complete when the relation begins. ^ See Re- ligion. The offense of cohabiting with more than one woman, created by § 8 of the act of March 22, 1882, is committed by a man who lives in the same house with two women, and eats at tbeir tables one-third of his time, or thereabouts, and holds them out to the world, by his language or conduct, as his wives. It is not necessary that he and the women, or either of them, shall sleep together. ^ See Cohabit, 2. The uniform current of authority is, that for the purposes of prosecution the offense of bigamy or po- lygamy can be committed but once prior to the time the prosecution is instituted.* See further Act of March 3, 1888, under-PoLYOAMY. > 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- thews, J. Approved, 116 id. 72, infra. s Cannon v. United States, 116 U. S. 55 (1885), Blatch- ford, J. Afterward, May 10, 1886, the court decided that it had no jurisdiction under the writ of error in the case, as see 118 U. S. 854-55. *Mxp. Snow, 120 U. S. 274, 281-86 (1887), cases, Blatch- ford, J. Snow was convicted of polygamy upon three indictments, exactly alike except that they covered different periods of time, and three sentences were imposed. He complied with the first sentence — paid 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 punished more than once for it. The Supreme Court held that under the theory of the lower court Snow might have been punished under an indictment en- tered every week during the continuance of the polyg- amous relation. BILATERAL. Designates a contract executory on both sides, as, a sale. Unilat- eral. When one party makes no express agreement, but his obligation is left to impli- cation of law, as, a guaranty. See Contbact, Bilateral, etc. a bilateral record is a record introduced between parties and privies. A imilateral record is a record offered to show a particular fact as a prima facie case for or against a stranger. BILGrED. That state of a ship in which water is freely admitted through holes and breaches made in the planks of the bottom, occasioned by injuries, whether the ship's timbers are broken or not.' BILL.2 A statement of particulars, in writing, and more or less formal in arrange- ment. Distinctive qualifying terms are frequently omit- ted, the relation or context indicating the sense. Thu^*'bill," standing alone, is often used for bill of exchange, bill in equity, bill of indictment, etc. I. In Constitutional Law. A formal, public, written declaration of popular rights and liberties — restrictive of governmental power. See further Right, 3, Bill of Rights. II. In Legislation. The draft or form of an act presented to a legislature but not enacted. As, a bill of attainder, and money bills, qq. v. "Act" is the appropriate term for the document after it has been passed by the legislature: it is then something more than a draft or form.s See Act, 3; Pass, 2; Eideb; Snake; Title, 2; Veto; Yeas and Nays. III. In Mercantile Law. A written statement of the amount or items of a de- mand, or of the terms of , an agreement or undertaking, particularly for the payment of money. ^ As, a bank-bill ; a due-bill ; a bill rendered, payable, or receivable ; a bill of adventure, of credit, of exchange, of lading, of parcels, of sale, of sight ; a bill of health, of mortality ; a bill obligatory or penal, or single. As to which see the descriptive or qualifying word. Bill; bill obligatory; bill penal; bill single. A bond without a condition. An instrument acknowledging indebtedness, in 1 Peele v. Merchants' Ins. Co., 3 Mas, 39 (1828), Story, J. " L. L. billa, a writing : bulla, a papal bill ; originally, a leaden seal; — Skeat. s [Southwark Bank v. Commonwealth, 26 Pa. 450 (1856), Lewis, J. ; 4 Wall. 387. * Abbott's Law Diet. BILL 121 BILL a certain sum, to be paid on a day cer- tain, i Differs from a promissory note in having a seal afflxed; yet, by the custom of merchants, binds with- out seal, witness, or delivery. It is subject to de- falcation and set-off,^ A "bill" is a common engagement for money, given by one man to another. When with a penalty, called a "penal bill;" when without a penalty, a "single bill;" though the latter is most frequently used. By a "bill" is ordinarily understood a single bond without a condition." "Bill single," orsimply "bill," without condition or penalty, was originally the plainest form. , A "bill penal" or "penal bill" had a condition and penalty annexed. A "bill obligatory " in form was like either of these and had a seal. Bonds with conditions have superseded bills penal. Bill payable. Any demand, usually evi- denced by a writing, for money, subsisting against a person. Bill receivable. Any such demand, with respect to the person who is entitled to the money. "Bills receivable" are promissory notes, bills of exchange, bonds and other evidences or securities, which a merchant or trader holds, and which are payable to him. 3 Bill rendered. A creditor's written statement of his claim, itemized. Not assented to by the debtor, as in an account stated. The creditor may sue for a larger sum.* See Account, 1. IV. In Leqai. Procedure. A formal written statement of complaint to a court of justioe.5 As, the original bill in common- law practice ; a bill in chancery or equity ; a bill of indictment, of information, qq. v. Also, a written statement or record of pro- ceedings in an action. ' As, a bill of excep- tions, of costs, of particulars, a fee-bill,' qq. v. Bill in chancery; bill in equity. A statement, addressed to a chancellor or a court of equity, of the facts which give rise to a complaint, with a petition for relief. This may be an original bill or a bill not original, a cross-bill, a supplemental bill, a bill for discovery, of conformity, inter- pleader, peace or quia timet, review, revivor, foreclosure, a creditor's bill, qq. v. I Farmers', &c. Bank v. Greiner, 8 S. & E. 115, 117 (1815), Tilghman, C. J. i! Tracy v. Talmage, 18 Barb. 462 (1854): Jacob's Law Diet. ' State V. Eobinson, 57 Md. 501 (1881): Bouvier's Law Diet. * Williams v. Glenny, 16 N. Y. 389 (1857). 5 Abbott's Law Diet. A bill in equity corresponds to a declaration at law. Its parts are: 1, the address to the court; 3, the names of the parties ; 3, the facts of complainant's case— the stating part; 4, a general charge of improper combi- nation — the clause of confederation ; 5, the pretenses, or excuses respondent may have to offer in defense — the charging part; 6, allegations that the respondent's acts are contrary to equity, and that no adequate remedy is afforded at law — the clause of jurisdiction; 7, a prayer for answers to interrogations — the inter- rogating part; 8, a prayer for relief; 9, a prayer for process. Parts 4, 5, and 6 are omitted, except where fraud is to be specifically charged as an actual fact. The whole is sworn to by the complainant. When a person has a cause which is re- dressible only in equity he commences his suit by preferring to the court a written statement of his case called a "bill in chan- cery" or a "bill in equity," which is in the nature of a petition to the court, sets forth the material facts, and concludes with a prayer for the appropriate relief or other thing required of the court, and for the usual process against the parties, against whom the relief or other thing is sought, to bring them before the court to make answer in the premises.! The most general division of bills is those which are original and those which are not original. Original bills relate to some matter not before' litigated in the court, by the same persons standing in the same in|er- ests. These bills may again be divided into those which pray, and those which do not pray, relief. ^ Bills not original are, first, such as are an addition to, or a continuance or a depend- ency of, an original bill ; or, second, such as are brought for the purpose of cross-litiga- tion, or of controverting, suspending, or reversing some decree or order of the court, or of carrying it into execution. The first class of bills not original furnishes the means of supplying the defects of a suit, of continu- ing it, if abated, and of obtaining the benefit of it. These means are ; by a supplemental bill; by an original bill in the nature of a supplemental bill ; by a bill of revivor ; by an original bill in the nature of a bill of revivor; by a bill of revivor and supplement. The second class includes : a cross-bill ; a bill of review ; a bill to impeach a decree upon the ground of fraud ; a bill to suspend the opera- ' Story, Eq. PI. § 7. 2 Story, Eq. PI. §§ 16, 17; 16 F. E. 731. BILL 133 BLACK-LISTING tion of a decree; a bill to carry a former decree into execution; a bill partaking in some measure of one or more of both of these classes of bills, i A cross-bill is brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill. It is an auxil- iary to the proceedings in the original suit, a dependency upon it — brings the whole dis- pute before the court for one decree. The two bills constitute one suit.^ New and distinct matters, not embraced in the orig- inal bill, cannot be introduced by the' cross-bill; and new parties must be introduced by amendment of the bill.a A supplemental bill is brought as an addition to an original bill to supply some defect in its original frame or structure, not the subject of amendment.^ May be filed by either party to his own bill, within a reasonable time — even after decree made, when a necessary party has been omitted, when fiu-ther dis- covery is requisite, when some matter overloofeed needs development, or when it is essential to bring out other matter in order to give full effect to the decree entered or to be entered on the original bill. The bill is not amendable after the parties are at issue, and witnesses ^ave been examined. An answer to the new matter is prayed for.^ After hearing the proofs a bill may be so amended as to put ill issue matters in dispute and in proof, but not sufficiently in issue by the original bill.* See Amendment, 1. See also Ad EQir ate; Answer, 3; Demurrer; Dismiss; Equity; Fishing, 3; Impertinence; Multifariousness; Party, S; Prejudice, 2; Relief, 2; Remedy. Original bill. 1. An ancient mode of commencing an action at law, particularly in the court of king's bench ; sometimes termed a "plaint," and resembled the modern " declaration." Compare Writ, Original. 3. In equity, a complaint relating to a, dis- pute not before litigated by the same persons in the same intei-ests. See page 131. True bill. See Ignokb. 1 Story, Eq. PI. § 326. "Story, Eq. PI. § 389; Shields v. BaiTow, 17 How. 145 (1854); Ayres v. Cai-ver, ib. 59S (1854); Cross v. De Valle, 1 Wall. 14 (1863) ; Exp. Montgomery, &a. R. Co., 95 U. S, 225 (1877); Ayers v. Chicago, 101 id. 187 (1879); Nash- vUie, &c. R. Co. V. United States, ib. 641 (1879); First Nat. Bank v. Flour Mills Co., 31 F. R. 684 (1887); 2 McCrary, 177; 60 Conn. 62; 106 HI. 585; 21 W. Va. 847; 2 Daniel, Ch. 1548. » Story, Eq. PI. § 332. ■• GrafEam v. Burgess, 117 U. S. 195 (1886), oases. BILLA. L. L. A bill: an original bUl at law, or a bill of indictment. Billa cassetur. That the bill be quashed. A judgment, at common law, for defendant, on a plea in abatement. ' See Quash. Billa vera. A true bill. BILLIARDS. See Game, 3. BIWD. To place under a legal obligation, particularly that of a bond or covenant ; to affect with a contract or a judgment; to affect with a thing done, or with a common relation ; to obligate. As, to bind, and to be bound or to become bound, by a contract made, by a judgment or decree entered or rendered, by legislatiqn, by the act of a privy, a, wife, a partner, or other agent, or by the declaration of an accomplice. Binding. Establishing an obligation; creating a legal duty or necessity. See In- STRUCT, 3. Binding out. To obligate as an appren- tice, q. V. Binding over. To obligate to appear as a witness, or as a defendant, at the time of trial, or to keep the peace, q. v. Bound. Brought under an obligation, as by a covenant ; charged with responsibility, as with a duty ; obligated. See Apprentice ; Bond ; Hold, 4 ; Indenture ; Obligate. BIPARTITE. See Part, 1. BIRD. See Animal. BIRTH. See Abandon, 2 (3); Natus; Venter. BIS. SeeBL BISSEXTILE. See Year. BITTERS. See Liquor. BLACK. See Acre; Cap; Gown; Rent. BLACKLEG-. A person who gets his living by frequenting race-courses and places where games of chance are played, getting thp best odds and giving the least he can, but not necessarily by cheating. 2 BLACK-LISTING. See Boycotting. An act of Wisconsin, approved April 8, 1887 (Laws, ch. 349), provides that: Any two or more employees who shall agree, combine, and confederate together for the purpose of interfering with or preventing any person or persons seeking employment from obtaining such employment, either by threats, promises, or by- circulating or causing the circulation of a so-called black-list, or by any means whatsoever, or for the purpose of procuring and causing the discharge of any employee or employees by any means whatsoever. 1 [3 Bl. Com. 303. s Barnett v. Allen, 3 H. & N. 379 (1858), Pollock, C. B. BLACK-MAIL 133 BLACKSTONE shall be deemed guilty ot a misdemeanor, and upon conviction shall be punished by imprisonment in the county jail for a period of not more than one month or by a fine not less than fifty dollars, or by both. BIiACK-MAIL.i 1. Rent reserved in work, grain, or the baser money. Opposed, white rent: rent paid in silver.^ A rent in grain, cattle, money, or other thing, anciently paid to men of influence, in the north of England, for protection against robbers. 8 By statute 43 Eliz. (1601), o. 13, for preventing rapine on the northern borders, to imprison or carry away any subject in order to ransom him . . or to give or talre any money or contribution, there called black- mail, in order to secure goods from rapine, is felony \rlthout benefit of clergy.* 2. In common parlance, extortion — the exaction of money for the performance of a duty, the prevention of an injury, or the ex- ercise of an influence.5 Imports an unlawful service and an involuntary payment. Not unirequently, the money is extorted by threats, or by operating upon the fears or the credulity, or by promises to conceal or offers to ex- pose the weakness, the folly, or the crime of the victim. There is moral compulsion which neither necessity nor fear nor credulity can resist. The term, as universally regarded, implies an unlawful act; and though, from its indefiniteness and comprehensive- ness, the offense is not classified as a distinct crime, it is nevertheless believed to be criminal. Therefore, to charge a man with " black-mailing " is equivalent to charging him with a crime.* Worcester says that " black-mail " originally meant the performance of labor, the payment of copper coin, or the delivery of certain things in kind, as rent; and that the word was contrasted with ' ' white rent," which was paid in silver. Spelman attributes the term "black" to the color of the coin; Jamiesen to its illegality. Dean Swift used the term to signify " hush money," " money extorted under the threat of exposure in print for an alleged offense." Bartlett is the first lexicographer who confines its meaning to that sense, and the use of it to this coimtry. . . The meaning is not legally confined to extortion by threats or other morally compulsory measure. The sense in- tended in any given case should be determined by a jury." See Extobtion; Tebeatehings Letter. ' According to most of the authorities, mail is from the French maille, a small coin. It may come from the German mahl, tribute, or from the Gaelic, mal, a rent. ' See 2 Bl. Com. 43-43. s See Termes de la Ley (1731). * i Bl. Com. 244. See AU the Tear, vol. 30, p. 247. « Edsall 0. Brooks, 3 Eobt. 33-34 (N. Y. Super. Ct. <1864), Monell, J. Same case, 17 Abb. Pr., o. s., 236; 28 How. Pr. 431. ' Edsall V. Brooks, 3 Eobt. 293-95 (1865), Eobertson, C. J. See 1.32 Mass. 264; 97 N. Y. 313; 13 Tex. Ap. 287. BLACKS. See Citizen; School, Sepa- rate; White. BLACKSMITH SHOP. See Police, 2. Is not a nuisance per se. The business may be so carried on as not to annoy persons living in the vicinity. ' See Nuisance. BLACKSTONE, Sir William. Born July 10, 1723. In 1736 he entered Pembroke College, Oxford, where he continued till 1741, when he began to study law. In 1746, at the end of the proba- tionary period, he was called to the bar. Down to 1760 he seems to have been engaged in but two cases of importance. He passed much time in Oxford, tak- ing an active interest in the affairs of the imiversity. About 1760 he began to plan his Lectures on the Laws of England. In 1763 he delivered his first course at Oxford. The next year he published his Analysis of the Laws of England, for the use of his numerous hearers. This analysis is founded on a similar work by Sir Matthew Hale. A "broadsheet," dated Oxford, June 23, 1753, an- nouncing that the "course of lectures" would begin " in Michaelmas Term next " (November), and were "calculated" for laymen as well as for lawyers, stated that "To this End it is proposed to lay down a general and comprehensive Plan of the Laws of England; to deduce their History; to enforce and illustrate their leading Rules and fundamental Principles; and to com- pare them with the Laws of Nature and of other Na- tions; without entering into practical Niceties, or the minute Distinctions of particular Cases." ^ Mr. Viner having bequeathed to the University of Oxford a sum of money and the copyright of his Abridgment of Law, for the purpose of instituting a professorship of common law, Blackstone, on October 20, 1758, was elected first Vinerian professor, and, five days later, delivered his "Introductory Lecture on the Study of Law," afterward prefixed to his Commenta- ries. His lectures became celebrated throughout the kingdom. He never acquired celebrity as an advocate. In Tonson v. Collins (1 W. Bl. 301, 321), he made an ex- haustive argument in favor of the common-law right of literary property. In 1765 appeared the first volume of his commenta- ries. The other three volumes were published during the next four years. In 17C6 he resigned the Vinerian professorship. In 1770 he was appointed a judge of the King's Bench, receiving then the honor of knighthood; and, a few months later, became a judge of the court of Common Pleas. In Scott v. Shephard (3 W. Bl. 892), the " squib case," wherein the difference between Uie actions of trespass and,ca,se was discussed, he dissented from the opinion ot the majority of the court. See Case, 8. He died February 14, 1780. The notes of decisions which he had collected, and prepared for the press, were published In two volumes, in 1781, as directed in his will, by his brother-in-law, James Clitherow, Esq.= 1 Foucher v. Grass, 60 Iowa, 507 (1883). 2 2 Law Quar. Eev. 83 (1886) — from a copy of the "broadsheet " found in 1885, in an old book. s See generally Preface to 1 W. Bl. Reports. BLAME 124 BLASPHEMY American lawyers, with few exceptions, since the Revolution, have drawn their first lessons in jurispru- dence from Blacbstone's Commentaries. " That work was contemporaneous with cm: Constitution, and brought the law of England down to that day, and then, as now, was the authoritative text-book on its subject, familiar not only to the profession, but to all men of the general education of the founders of our Constitution." ^ Blackstpne first resdued the law of England from chaos. He did well what Coke tried to do one hun- dred and fifty years before ; he gave an account of the law as a whole, capable of being studied, not only without disgust, but with interest and profit. His ar- rangement of the subject may be defective; but a better work of the kind has not yet been written, and, with all its defects, the literary skill with which a problem of extraordinary difficulty was dealt with is astonishing. He knew nearly everything, relating to the subject, worth knowing.^ " Its institutional value, and especially its historic value as an authentic and faithful mirror of the con- dition of the English Law as the result of legislation and adjudication, as it then existed, it is difficult to overestimate." ^ BLAME. See Delictum ; Weong. BLAND'S TABLES. See Table, 4. BLANK.-* 1, adj. (1) Of a white color: lacking something essential to completeness ; not filled in or filled up with a word or •words — names, amount, time, place, descrip- tion, conditions, etc. : as, a blank certificate of stock, power of attorney, assignment, warrant. (3) Unrestricted ; indorsee not named : as, an indorsement in blank or a blank indorse- ment. 3, n. A space left in a written or printed paper, to be filled with words or figures in order to complete the sense. Blanks. Forms of writs, deeds, leases, powers of attorney, and other instruments, printed with spaces left for writing in names, dates, sums, places, descriptions, conditions, and other matters peculiar to special cases. Often spoken of as legal blanks. See Writ- ing. ' Knote V. United States, 10 Ct. CI. 399 (1874), Lor- ing, J. " 2 Steph. Hist, Cr. Law Eng. 314-15. 3 36 Am. Law Rev. 33 (1883), J. F. Dillon. See also Cooley's Bl. Com. vol. 1, p. v. See generally preface to Chitty's edition of the Commentaries; 8 Alb. Law J. 290; 13 id. 104; 1 AUi- bone. Diet. Authors; 1 Am. Jur. 116; 1 Austin, Lect. 71 ; 104 Eclectic Mag. 703; 15 Law Mag. 392; 14 Leg. Obs. 143; 51 Macm. Mag. 350; 7 Pitts. Leg. J. 106; 5 West. Jur. 629. * F. blanc, white. Powers of attorney to transfer stock are often exe- cuted in blank, the right to fill in the name of an at- torney being implied.^ The blanks in a warranty of attorney to confess judgment need not be filled up. The idiom of the lau- , guage admits of many things being understood which are not directly expressed. This Is eminently so with the personal pronouns." The grantor in a deed conveying realty, signed and acknowledged, with a blank for the name of the- grantee, may by parol authorize another party to fill up the blank. In such case before the deed is deliv- ered to the grantee his name must be inserted by th& party so authorized. 8 Where a party to a negotiable instrument intrusts it to the custody of another for use, with blanks not filled, as against the rights of innocent third persons such instrument carries on its face implied authority in the receiver as agent to fill any blanks necessary to perfect it as an instrument; * but not to vary or alter material terms by erasing what is written or printed as part, nor to pervert the scope or meaning by filling blanks with stipulations repugnant to what was clearly expressed In the instrument before it was so delivered.* A note payable to bearer and indorsed in blank is transferable by mere delivery, and any bona fide holder is effectually shielded from the defense of prior equities between the original parties.^ As between original parties the act of delivering the paper is authofity for filling blanks conformably to their mutual understanding. If there is no express agreement the authority is general; and the burden of proof is on the defendant to show such agreement.' In cases of blank indorsements possession is evi- dence of title.s When blanks material in nature are filled up after execution, the instrument, as a deed, should be re- executed and re-acknowledged; but failure to do so- woiild hardly defeat a vested interest.' See Alteration, 2; Bearer; Indorsement. . BLAJS"KET. See Insurance, Policy of. BLASPHEMY.io Denying the being or providence of the Almighty, or contumelious reproaching of Christ ; also, profane scoffing at the holy scripture, or exposing it to con- tempt and ridicule.ii "Denny u Lyon, 38 Pa. 101 (1860); German Building Association v. Sendmeyer, 60 id. 67 (1866). = Sweesey v. Kitchen, 80 Pa. 160 (1876), Agnew, C. J. s Allen V. Withrow, 110 U. S. 128-29 (1884), cases. ■■Bank of Pittsburgh v. Neal, 33 How. 108 (1859); Angle V. N. W. Mut. Life Ins. Co., 93 U. S. 338-39 331, 337 (1875), cases. « Goodman v. Simonds, 20 How. 360-61 (1857), oases; Michigan Bank v. Eldred, 9 Wall. 651-52 (1869), cases; lOlU. S. 572; 46N. Y. 325. = City of Lexington v. Butler, 14 Wall. 295 (1871). '3 Kent, 89; Davidson v. Lanier, 4 Wall. 466 (1666), Chase, C. J. « 3 Kent, 90. » 2 Pars. Contr. 563, 723. " Gk. hlas-phemein', to speak ill or evil of " [4 Bl. Com. 59. BLASPHEMY 125 BLIND Maliciously reviling God or religion.! An offense at common law. The reviling is an offense because it tends to corrupt the morals of the people and to destroy good order. Such offenses have always been considered independent of any religious establishment or the rights of the church. They are treated as affecting the essential interests of civil so- ciety. . . The people of the State of New York, in common with the people of this covmtry, profess the general doctrines of Christianity, as the rule of their faith and practice; and to scandalize the author o£ these doctrines is not only, in a religious point of view, extremely impious, but even in respect to the obliga- tions due to society is a gross violation of decency and good order. The free, equal, and undisturbed enjoy- ment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with maliciou^j and blasphemous contempt, the religion professed by al- most the whole community is an abuse of that right. Wicked and malicious words, writings and actions which go to vilify t^ose gospels, continue, as at com- mon law, to be an offense against the public peace and safety. They are inconsistent with the reverence due to the administration of an oath, and, among other evil consequences, they tend to lessen, in the public mind, its religious sanction.^ A malicious and mischievous intention is the broad boundary between right and wrong. This is to be col- lected from the offensive levity, scurrilous and oppro- brious language, and other circumstances. The species of the offense may be classed as: 1, denying the being and providence of Grod; 2, contumelious reproaches of Jesus Christ; profane and malevolent SGofiftng at tha scriptures, or exposing any part of them to contempt and ridicule; 3, certain immoralities tending to sub- vert all religion and morality. It is not necessary to the exercise of liberty of conscience and to freedom of religious worship that a man should have the right publicly to vilify the religion of his neighbors and of his country. It is open, public viU'flcation of the re- ligion of the country that is punished, not to force conscience by punishment, but to preserve the peace by an outward respect to the religion of the country, and not as a restraint upon the liberty of conscience.^ Consists in blaspheming the holy name of God, by denying, cursing, or contumeliously reproaching God, his creation, government, or final judging of the world. 3 This may be done by language orally uttered, which would not be a libel, but it is not the less blasphemy if the same thing be done by language written, printed, and published, although when in this form it also con- stitutes the offense of libel.' Speaking evil of the Deity with an impious purpose to derogate f rooi the divine majesty, and to alienate the minds of others from the 1 People V. Buggies, 8 Johns. 'ggS-gS (1811), Kent, C. J. = Updegraph v. Commonwealth, 11 S. & E. 406, 408 Morgan v. United States, 113 U. S. 476, 490 (1885), Umitmg Texas v. White, 7 Wall. 700 (1868). > Fami v. Tesson, 1 Black, 314 (1861); 2 Bl. Com. 341. > Mercer County v. Hacket, 1 Wall. 95 (1863), Grier, J. ; Commissioners of Knox County v. Aspinwall, 21 How. 539 (18S8), Nelson, J. ; Pompton v. Cooper Union, 101 U. S. 204 (1879); Wadsworth v. Supervisors, 102 id. 634 (1880); 19 Blatch. 371. ' < Bailey v. N. Y. Central B. Co., 22 Wall. .636 (1874). "Town of Coloma v. Eaves, 92 U. S. 487, 490, 486 (1875), cases. Strong, J. ; Pana v. Bowler, 107 id. 639 (1882); North. Bank of Toledo «. Porter Township, 110 (9) If any essential proceeding, prescribed by law be dispensed with, the bonds wUl be invalid in the hands of a person not a bona fide purchaser. U a statute is referred to on the face of the bond, a dealer is sup- posed to know all of its requirements, i When the purchaser has a certificate of a fact he need not inquire whether the fact is as certified." A recital of circumstances which brmg it within the power of the proper authorities to issue the bonds estops denial of the truth of the circumstances. = The statute must confer power to issue the bonds, in ex- press terms or by reasonable implication . * The holder is chargeable with notice of the statutory provisions and of recitals in the bond.' The corporation acts through its agents, and when- ever they have power to decide that a condition prece- dent has been met (as that the required portion of the voters of a town have petitioned for a subscription m aid of a railroad), their determination of that fact, or their recital of that determination in a series of bonds subsequently issued and held by bona fide purchasers, is binding upon the corporation. The recital is a de- cision of the fact by the appropriate tribunal; and proof that such recital is incorrect is no defense. But where there is no recital the question is open." The Supreme Court of the United States has uni- formly held that where a statute confers power upon a municipal corporation, after the performance of certain precedent conditions, to execute bonds in aid of the construction of a railroad, or for other like pur- pose, and "imposes upon certain officers — invested with authority to determine whether such conditions have been performed — the responsibilit.y of issuing them when such conditions have been complied with, re- citals by such officers that the bonds have been issued " in pursuance of," or " in conformity with," or " by virtue of," or " by authority of," the statute, import, in favor of bona fide purchasers for value, full com- pliance with the statute, and preclude inquiry as to whether the precedent conditions had been performed before the bonds had issued. But in all such cases the recitals have imported a compliance, in all substantial respects, with the statute giving authority to issue the bonds. Sound public policy forbids enlarging or ex- tending the rule. VSTiere the holder relies for pro- tection upon mere recitals, in tjrder to estop the corporation from showing that the bonds were issued in violation or without authority of law, the recitals should be clear and unambiguous.' id. 616 (1884); Dixon County u. Field, 111 id. 93-94(1883), cases. ■ McClure v. Township of Oxford, 94 U. S. 432 (1876). "Menasha v. Hazard, 102 U. S. 95 (1880); Sherman County V. Simons, 109 id. 735 (1884), cases. 'Buchanan v. Litchfield, 102 U. S. 290 (1880), cases; Louisiana v. Wood, ib. 294 (1880); 3 McCrary, 35. < Wells V. Supervisors, 102 U. S. 625 (1880). » Walnut V. Wade, 103 U. S. 695 (1880), cases. "Commissioners v. Aspinwall, Pompton v. Cooper Union, ante; Bissell u. Jeffersonville, 24 How. 287 (1860); St. Joseph Township v. Eogers, 16 Wall. 6.")9-66 (1872), cases; Marsh v. Fulton County, 10 id. 681 (1870). ' School District (Iowa) v. Stone, 106 U. S, 187 (1882), Harlan, J. ; Pana v. Bowler, 107 id. 639-40 ( BONE 130 BOOK A municipal corporation without legislative author- ity cannot issue bonds in aid of any extraneous object. Every person at his peril must talce notice of the terms of tlie law by which it is claimed the power to issue bonds is conferred. The particular law forms a part of the bonds, as if incorporated in them. The holder is chargeable with notice of all statutory provisions.' Unlike business, the powers of municipal, corpora- tions, unless otherwise directed by express or implied grant, are limited to such as are governmental or ad- ministrative, to such as are necessary to conserve the purposes of their organism. ^ A purchaser takes the risk of the genuineness of an official signature. This-includes the official character of him who makes the signature.^ A statute which authorizes a town to contract a debt payable in money implies the duty to levy taxes to pay the debt, unless some other source of payment is provided. If there is no power in the legislature to authorize such levy, the statute and forms of con- tract based thereon are void.* See Aid, 1, Municipal; Coupon; Stock, 3 (3); Tax, 2. BONE-BLACK. See Mantjfacttjre. BONUS. 1. Lat. Good. Bona fldes. Good faith. See Fides. Boni judieis. See Judex, 3, Boni, etc. 2. Eng. (1) Not a gift or gratuity, but a sum paid for services, or upon a considera- tion in addition to or in excess of that which would ordinarily be given.5 A State may exact a bonus for the grant of a fran- chise, payable in advance or in futuro (as, one-fifth of the fare pa^d by passengers to a railroad company), although it affects the charge which the donee of the franchise will have to exact. Such bonus differs in principle from a tax on transportation between States, which is an interference and regulation of commerce.' (2) A premium paid for the use of money beyond the legal rate of interest. Although one portion of the sum be called interest and another portion a bonus, the contract is still usu- rious.^ Usury laws cannot be evaded by an understanding 1 National Bank of the Republic v. City of St. Joseph, 31 F. E. 219 (1887), oases, Wallace, J. " Holmes v. City of Shreveport, 31 F. E. 181 (1887) Boarman, J. 'Anthony v. County of Jasper, 101 U. S. 699 (1879), Waite, C. J. * Loan Association v. Topfeka, 20 Wall. 658-67 (1874), cases. Miller, J. ; Parkersburg v. Brown, 106 U. S. 600 (1882). See generally Phelps v. tewiston, 15 Blatch. 151-53 (t8T8); Smith v. Ontario, ib. 269 (1878); Stewart v. Lansing, ib. S87 (1878); Commonwealth ex rel. Whelen V. Httsburgh, 88 Pa. 66, 81 (1878); Pierce, Railroads, 87-109, cases; 26 Am. Law Eeg. 209-22, 608-20 (1878), cases. ' Kenioott u. The Supervisors, 16 Wall. 471 (1872), Hunt, J. • Baltimore & Ohio E. Co. v. Maryland, 21 Wall. 473, 457 (1874), Bradley, J. See 3 How. 145-46. ' Mutual Sav. Bank v. Wilcox, 24 Conn. '153 (1865). which assumes the distinctness of a contract for the payment of additional interest as a bonus.'' BOOK. Any literary composition which is printed, or printed and bound into a vol- ume. 1. In copyright law, the form of the pub- lication is not material — the term may in- clude a single sheet. So held in 1809, under the statute of 8 Anne (1710), § 1 ; " and so held ever since. = Under the copyright act of March 3, 1865, 5) 4, book includes every volume and part of a volume, together with all maps, prints, or other engravings belonging thereto, with a copy of any subsequent edition published with additions. < A single sheet of music has been held to be a book ; ' so, a diagram of patterns; ' but not a mere label," nor a prices-current." The test is the subject-matter, not the size, form, or shape."* " Although the legal definition of the word may be more extensive than that given by lexicographers, in- cluding a sheet as well as a volume, yet it necessarily * conveys the idea of thought or conceptions clothed in language or in musical characters, written, printed, or published. Its identity does not consist merely in ideas, knowledge or information communicated, but in thte same conceptions clothed in the same words, making itthe same composition. A " copy " of a book must, therefore, be a transcript of the language in which the conceptions of the author are clothed; of something printed and 'embodied in a tangible shape.' See Chart; Coptbi&ht; Print. 2. In post-office law, a pamphlet of twenty- four pages, consisting of a sheet and a half secured together by stitching, with a cover of four pages and a title-page, may be described as a book.8 See Mail, 2. Book-aceount. An account evidenced by one or more books regularly kept in the particular business or calling. Book of accoTints; or acoount-book. A book in which are entered the transactions of the owner's business ; a creditor's book of entries, exhibiting, in detail, the transactions had with a person alleged to be his debtor. ' 3 Pars. Gontr. 113-14; 17 Cent. L. J. 102-5 (1883), oases. » Clementi u. Golding, 2 Campb. 32 (1809), Ellen- borough, C. J. See 11 East, 244. " Druiy «, Ewing, IBond, 540, 546 (1862), Leavitt, J. •13 St. L. 540; Lawrence v. Dana, 4 Cliff. 62 (1869), Clifford, J. ' Coffeen v. Brunton, 4 McLean, 516 (1849). • Clayton v. Stone, 2 Paine, 382 (1835?). ' Stowe V. Thomas, 2 Wall. Jr. 605 (1863) Grier J • 2 Bl. Com. 406. ' " " United States v. Bennett, 16 Blatch. 351 (1879) See R. S. § .3893. BOOK 131 BOROUGH Action of book-account. A remedy for col- _ lecting a balance due upon such dealings as are proper matters of book-account ; an action of book-debt. An accouni-book, regularly kept, may be received as evidence. And book-accounts are assets.' But a tally, a board, a slate, or loose sheets of paper, can hardly be said to constitute a book of accounts." Yet there are not a few decisions to the effect that an ac- count need not be kept in a bound volume.^ Book-entries. Particulars of a transac- tion recorded in a book of accounts. Book of original entries. A book exhibit- ing the first or original charges made under a contract concerning merchandise, work and labor done, or services rendered. To be admissible in evidence, the entries must be contemporaneous with the facts to which they relate; they must be made by a person having personal knowl- edge of the facts; and they must be corroborated by his testimony, it he is living and accessible, or by proof of his handwriting, if he is dead, insane, or beyond the reach of process. The witness need not remember the facts, if he will testify that he believed the entry to be true as set down. It is not necessary that the transaction should have been directly between the original creditor and debtor; nor that the entries should have been against the in- terest of the person making them.* As book-entries are received to prevent a failure of justice, their admissibility is limited by this necessity.' Questions in relation to boolts of entry as evidence stand upon a new footing since the passage of statutes making parties witnesses. Formerly, the book itself was evidence, and the oath of the party supplementary. Now, the party himself is a competent witness, and may prove his own claim as a stranger would have done before the statutes were passed.' The rule is that books of original entries, properly proved, are evidence of work and labor performed and of goods sold and delivered. To this rule are several exceptions; as, that the invoice book of an agent is not evidence of the sale and delivery of goods nor of goods to be delivered, nor is an entry evidence that is not in the course of the party's business. Books of original entry were formerly received in evidence from necessity. Where the transaction admits of 1 1 Greenl. Ev. §§ 115-18; 55 Vt. 347; 3 Bl. Com. 368. 2 Richardson v. Wingate, 10 West. Law J. 146 (1853), Matthews, J. ' Price V. The Earl, 1 Sm. L. C. 535-T7, cases; 2 Harr., Del., 288; 4 id. 532; 12 Bankr. Reg. .S90. * Town of Bridgewater v. Town of Roxbury, 54 Conn, 217 (1886), cases. s Chaffee v. United States, 18 Wall. 541 (1873), cases, Field, J.; ^tna Fire Ins. Co. v. Weide, 9 id. 680 (1869), cases; Burley v. German American Bank, 111 U. S. 216 (1884); 20 Wend. 74-70; 70 Iowa, 376; 133 Mass. 478; 59 Miss. 378; 21 W. Va. 301, 308-11; 1 Greenl. Ev. §§ 115-17, 120, 151-.54, oases; 1 Whart. Ev. §§ 678-88, cases. « Nichols V. Haynes, 78 Pa. 176 (1875). more satisfactory evidence, they should not be re- ceived. Now that the parties are witnesses, care is to be taken not to enlarge the ruje. In several States the account is not to exceed a sum specified. While there should be some limit to the amount, much more de- pends upon the nature of the item, and upon the evi- dence, outside of the book, which natm-ally exists to prove the item. The charges should be reasonably specific. Lumping charges are not admissible; as, entries like these: "B. Corr, Dr. July 13, 1880, To re- pairing brick machine, $1,932; " " 190 days' work; " " seven gold watches, $308 ; " " 13 dollars for medicine and attendance on one of the general's daughters, in curing the whooping cough." * The books of a corporation are public as to its mem- bers, who for a proper purpose may examine them. Inspection of the books of a public office is permitted to any one interested in them, but not, if liable to affect public interests injuriously; of this the head of the department is to judge. Mandamus is the remedy by which to obtain an inspection and copies of such books, in which the petitioner has an interest.* See Produce, 1. Books on medicine, agriculture, science, and the like, not being subjects of cross-examination, are not admissible as evidence. But an approved history, being a quasi-public document, is receivable to prove a general fact of ancient date, a general custom, or any lilte matter,' See Expert; History; Scientific A record in a Bible or other book, by a deceased relative, as to pedigree (q. v.) is receivable as a decla- ration.* The results of an examination of many books may sometimes be proved.* See Account, 1. Under statutes in some States, school-books and Bibles are exempted from levy and sale. The pledgee of a book must use it carefully.' See Horn, Letter, Log, Minute, Paper, Tear. Book; Baggage; Document; Lost, 2; Mail, 2; Ob- scene; Refresh; Sdbp Corr V. Sellers, 100 Pa. 170-71 (1883), cases, Mercur, J. ; Laird v. Campbell, ib. 159, 165 (1882); Vinal v. Gilman, 31 W. Va. 301 (1883), ' 1 Greenl. Ev. §§ 474-78, cases; 1 Whart. Ev. §§ 662, 663, cases. = 1 Greenl. Ev. §§ 440, 497, cases; 1 Whart. Ev, §§ 664- 70, cases. As to medical books see, especially, Mar- shall V. Brown, 60 Mich, 148 (1883); Boyle v. State, 57 Wis. 472, 478 (18&31, cases; 60 Cal. 581. * 1 Greenl. Ev. § 104. » Burton v. Driggs, 20 Wall. 136 (1873). « 2 Pars, Contr, 111. ' [1 Bl. Com. 114; 2 id. 82; 41 Mo. 175. 8 See 1 Steph. Com. 116; 3 id. 191. BORROW 133 BOTTOMRY a part of a township having a charter for municipal purposes. ' Borough and village may be duplicate names for the same thing.' See Town. Borough English. A custom prevalent in some parts of England (chiefly in old boroughs) by which the youngest son inher- ited the father's estate. So called to distinguish it from the Norman rule of primogeniture, q. v. The oldest sons were provided for as they grew up ; the younger remained at home and might have been left destitute but for this law.= Burgess. 1. An inhabitant of a borough ; also, the representative of a borough in the house of commons. 3. A magistrate of an incorporated town. 3. The chief administrative officer of an incorporated town.' BOKE.OW. While often used in the sense of obtaining a thing to be returned in specie, is not limited to that sense. There may be a borrowing where an equivalent is paid annually in the form of interest, though the contract be perpetual and the loan irre- deemable.^ " Borrowing " imports a promise or under- standing that wliat is borrowed will be re- paid or returned, the thing itself or some- thing like it of equal value, with or without compensation for the use of it. To borrow is reciprocal with " to lend." 8 See Loan. Under the usury laws of New York khe word " bor- rower" includes any person who is a party to the oiiginal contract or in any way liable for the loan." Power to "borrow money," vested in public au- thorities, may not include power to issue bonds for the purpose — as, to erect a court-house.' See Pur- pose. Public; Tender, Legal (2). BOTE.8 Compensation, recompense ; sat- isfaction, amends. Synonymous with French estovers, q. v. House- bote: sufficient wood from another's land to repair, or to be burnt in, one's house; whence ^re-ftoie. Plough- bote, cart-bote: wood for making and repairing in- struments of husbandry. Hay-bote,, hedge-bote: wood for repairing hay, hedges, or fences." 1 Brown v. State, 18 Ohio St. 507 (1869). 2 1 Bl. Com. 75; 2 id. 83. 'Wharton's Law Diet.; 1 Bl. Com. 174. * Appeal of Phila. & Reading E. Co., .39 Leg. Int. 98 (Fa., 1882); State v. School District, 13 Neb. 88(1882).. *Kent V. Quicksilver Mining Co., 78 N. Y. 177 (1879), Folger, J. • National Bank v. Lewis, 75 N. Y. 523 (1878), cases. ' Levris V. Sherman County, 1 McCraiy, 377 (1881). » A. S. bot, profit; M. E. bote, boote. 9 [2 Bl. Com. 85; 1 Wash. E. P. 99. Theft-bote. Where a person who has been robbed takes his goods, back, or receives other amends, upon an agreement not to prosecute the felon.' Bote is supposed to be preserved in the expressions " What boots it," and "to boot." BOTTLE. See Leakage; Seal, 5. A demijohn holding four gallons is not a " bottle " within the meaning of a statute requiring Imported liquors to be put up in packages of not less than one dozen bottles each.'' An indictment for the larceny of " bottles " of liquor was held not sustained by proof of the larceny of liquor in bottles belonging to the accused, into which he had drawn the liquor. ' BOTTOMRY. A contract in the nature of a mortgage on a ship : when the owner ' borrows money to enable him to carry on his voyage, and pledges the keel or bottom of the ship as security for the repayment.^ "Bottom " was formerly used for ship or vessel. Bottomry bond. The instrument which evidences a contract of bottomry. In the sense of the general maritime law, and independent of the peculiar regulations of the positive codes of different commercial nations, a contract for a loan of money on the bottom of a ship, at an extraordinary rate of interest, upon maritime risks, to be borne by the lender for a voyage, or for a definite period.^ Blackstone and others speak of bottomry contracts of the owner only, omitting those of the master, which are now the more common, and are strictly for the necessities of the ship.^ A contract by which the owner of a ship hypothecates or binds the ship as security for the repayment of money advanced for the use of the shij>.6 The contract creates a lien on the ship enforceable in admiralty on arrival at the port of destination, but void in the event of loss before arrival. The hazard being extraordinary, the rate of interest is high.' To Justify giving the bond, it is essential that there be a necessity, as, for repairs, and a necessity for re- sorting to the bond to procure the proper funds. There is no such necessity when the master has funds or can get funds on the credit of the owner.s The vital principle is that the case is one of unpro- vided and real necessity, and that neither master nor owner has funds or credit available.' 1 [4 Bl. Cora. 133; 16 Mass. 93; 44 N. H. 16. '' U. S.v. Demijohns of Rum, 8 F. E. 485 (1880). = Commonwealth v. Gavin, 1^1 Mass. 54 (1876). * [2 Bl. Com. 457. * The Draco, 2 Suran. 186, 173-89 (1835), cases. Story, J. « Braynard v. Hoppook, 33 N. Y. 573 (1885), Wright, J. 'The Grapeshot, 9 Wall. 135 (1869), Chase, C.J. ; 26 Wend. 575; 33 N. Y. 573. s The Fortitude, 8 Sumn. 83a-37 (1838), cases. Story, J. BOUGHT 133 BOUNTY Such contracts seem to have been first recognized among the ancient Bhodians. They are allowed for the benefit of commerce. When bona flde, they will be upheld by the com'ts with a strong hand. They cover accruing freight, as well as the ship itself. They are to be liberally construed.^ There is no prescribed form for a bond. Any words indicating the amount of the loan, the interest to be paid, the names of the contracting parties, the name of the vessel, the limits of the voyage as to ports and time, the nature of the risks, and the period for re- payment, will ordinarily be sufficient. The lien created takes precedence over other liens, except liens for seaman's wages. The bonds are usually negotiable instruments. See Hypothecation; Ekspondentia. BOUGHT. See Buy ; Note, 1. BOULEVARD. Originally, a bulwark or rampart ; afterward, a public walk or road on the side of a demolished fortificacion ; now, a public drive. Not, technically, a street, avenue, or highway, though a carriage-way over it is a feature. Refers to an area set apart tor purposes of ornament, exercise, and arausement.2 BOUND, V. See Bailiff ; Bind ; Bond. BOUND, n. ; BOUNDARY. Bound: a limit: boundary: a visible line designating a limit. The terms are often interchanged. ^ Bounds. The legal, imaginary line by which different parcels of land are divided. The "bounds of a river" may refer to the center line of the river. ^ Arttflcial boTindary . An obj ect erected by man for designating the limit of an own- ership in land ; as, a post, a fence, or other monument. Natural boundary. Any natural object remaining where placed by nature; as, a. spring, a stream, a tree. Private boundaiy and public boundary are used. The most material and most certain calls control those which are less material and less certain. A call for a natural object, as, a river, a stream, a spring, or a marked tree, controls both course and distance." Courses and distances yield to natural and ascer- tained objects. Artificial and natural objects called for have the same effect. In a case of doubtful con- struction the claim of the party in actual possession will be maintained.* ' The Albro, 10 Bened. 671-72 (1879), cases; 1 Pet. *436-37: 3 Kent, 333; 2 Bl. Com. 457. " People ex rel. Seaver v. Green, 52 How. Pr. 445 (1873), Fancher, J. = See Webster's Diet. * Walton V. Tift, 14 Barb. 221 (1852). » Newsom v. Pryor, 7 Wheat. 10 (1810), Marshall, C. J. ; Brown v. Huger, 21 How. 321 (1858). • County of St. Clair v. LoviBgston, 23 WaU. 62 (1874), cases, Swayne, J. Monuments control courses, and specific courses a general course.^ On a question of private boundary, declarations of a particular fact, as distinguished from reputation, made by a deceased person, are not admissible unless it is shown that such person had knowledge of that whereof he spoke and was on the land or in possession of it when the declaration was made — as part of the res gestae.^ Where a disputed boundary between States is set- tled, grants previously made by one of lands claimed by it, and over which it exercised political jurisdiction, but which, on the adjustment of the boundary, are found to be within the territory of the other State, are void, unless confirmed by the latter State; but such confirmation cannot affect the titles of the same lands previously granted by the latter State. = See Abut; At, 2; Call, 2 (2); Confusion; Descrip- tion ; Line, 1 ; Monument, 1 ; Thread. ^ BOUNTY.^ Money paid or a premium offered [usually by government] to encourage or promote an object, or procure a particular thing to be done. The context may restrict the meaning.5 "A premium offered or given to induce men to enlist into the public service." That is a proper and intelligent definition, indi- cating clearly that the word is only applica- ble to the payment made to the enlisted man, as the inducement for his service, and not as a premium paid to the man by whose pro- curement the recruit is mustered. « Bounties have also been established for those who kill dangerous animals or noxious creatures, or who engage in a particular business or industry which it is desired to encourage, as in a fishery, or in the manu- facture of salt. While boimties are usually paid in money, they may be paid in land. Whence bounty lands, and bounty-land, warrants. Land or money, other than current salary or pay, granted by the government to a person entering the military or naval service, has always been called a bounty; and while it is by no means a "gratuity," because the promise to grant it is one of the consider- ations for which the soldier or sailor enters the serv- ice, yet it is clearly distinguishable from " salary " or pay measured by the time of service.' 1 Grand County v. Larimer County, 9 Col. 280 (1886). ^Hunnicutt u Peyton, 102 U. S. 364, 363 (1880), cases. See generally 2 Washb. H. P. 630-38, cases; 1 Greenl. Ev. §S 145, 301, cases; 1 Whart. Ev^ §§ 185-91, cases; 28 Am. Law Reg. 646-48 (1880), cases. The highway as a boundary, 38 Alb. Law J. 305-S (1887), cases. = Coffee V. Groover, 1S3 U. S. 10(1887), cases, Brad- ley, J. Boundary between Georgia and Florida. Proprietors of Bridges v. Hoboken Land Co., 1 Wall. 149-51 (1863), cases; s. u., S Beasley, 603. See also Smith Bridge Co. v. Bowman, 41 Ohio St. 56-58 (1884). "ToUard v. Willington, 26 Conn. 582-83 (1857), cases; Bardwell v. Jamaica, 15 Vt. 442 (1E43). s Rush County v. RushvUle, &c. R. Co., 87 Ind. 505 (1883); Driftwood Valley Tm-npike Co. v. Bartholomew County, 72 id. 236-38 (1880), cases; Whitcher v. Somer- vUle, 133 Mass. 455 (1885). 4 Penn. R. Co. v. Borough of Irwin, &5 Pa. 336 (1877); Shelby County v. Deprez, 87 Ind. 510-13 (1882), cases. ■» Pennsylvania v. Wheeling Bridge Co., 13 How. 662 (1851); People v. Kelly (Bast River Bridge), 5 Abb. N. Cas. 383, 439 (1879); 5 McLean, 426. merely connecting lines of turnpikes, streets, and rail- roads; and the commerce over them may be much greater than that on the streams which they cross. A break in the line of railroad communication from the want of a bridge may produce greater inconvenience to the public than the obstruction of navigation caused by a bridge with proper draws. In such cases the local authority can best determine which of the two modes of transportation should be favored. ^ Congress can empower a private corporation to oc- cupy navigable waters within a State, and appropriate the soil under them, in order to construct a bridge for the purposes of inter-State commerce, against the pro- test of the State," The act of Congress of June 16, 1886, authorizmg the construction of a railroad bridge across Staten Island Sound, known as " Arthur Kill," and establish- ing the same as a. post-road, is within the power to regulate commerce, to open up commercial com- munication between the States. Such privilege may be exercised without the consent of the State in which the sti-ucture is to be placed. The grant is, in effect, of the use of the soil, not an assumption of exclusive jurisdiction. The right of the State is not property susceptible of pecuniary compensation as "private property " taken for public use.s Speaking generally, a chartered bridge will not be allowed near another bridge, nor near a ferry, having an older franchise.* See Commerce; Deawbridoe; Ferry; Navigation. BIIIEF.6 A concise statement ; an epit- ome ; an abridgment. Sometimes used in a verbal sense, to reduce to the form of a brief, etc. See State, 1. Brief of title. An abstract of the deeds, judicial proceedings, etc., which affect a title to realty. See further Abstract, 2. Com- pare also Sea-beief. 1. In very old law, a writ. See Breve. 2. An abridged statement of a party's case, prepared by his counsel, usually for the in- formation of the court on the matters of law involved.** See Paper, 5. In England the essentials of a case as pre- pared in writing by the solicitor or attorney for the use of the barrister who is to conduct the case in court is called "the brief" in the case. In America the term designates the memorandum counsel take into court or to a ' Hamilton v. Vicksburg, &c. R. Co., 119 TJ. S. 281-82 (1886). Field, J. » Decker v. Baltimore & N. Y. R. Co., 30 F. R. 734-28 (1887), cases, Wallace, J. a Stockton, Attorney-CJeneral v. Baltimore, &c. R. Co., S2 F. R. 9, 10 (1887), cases, Bradley, J. Same case, 86 Alb. Law J. 371. « See 3 Bl. Com. 219; 4 id. 167; Enfield Toll Bridge ■a. Hartford, &c. R. Co., 17 Conn. 40, 66 (1846), cases. 5 F. bref: L. brevis, short. ' Gardner ii. Stover, 43 Ind. 357, 356 (1873). BRING INTO COURT 138 BROKER hearing before an auditor, master, or other commissioner, to assist in elucidating the law, and, perhaps, the facts in a particular case ; also, the statement of the law (statutes, decisions, etc.) supposed to apply to a case pending before a court of review, and filed for the information of the court and of op- posing counsel.i Briefless. Without briefs ; without busi- ness requiring the preparation of briefs; without clients. Within the meaning of the rules of an appellate court, a " brief " is a statement of a case for the infor- mation of the court. It should furnish aid in deciding the case — show why the judgment below should be either reversed or affirmed.' After the trial or argument of a cause, though the counsel of one of the parties gives iiotice that he will furnish the court a brief of authorities, a decision may be rendered without giving time for the prepara- tion of the brief. The reception of briefs being for the assistance of the court, the judges, who are presumed to know the law, are not bound to receive them.'^ BEING INTO COUBT. See Payment. BBING SUIT. See Brought; Suit. BRISTLES. See Hair. BBITISH. See Statute. BBOKER.' An agent employed to make bargains and contracts between other per- sons in matters of trade, commerce or navi- gation, for a compensation commonly called brokerage.* Brokerage. The business of a broker; also, his remuneration or commission. For- merly spelled brokage and brocage. The term ' ' broker " is no longer limited to a person employed to negotiate contracts for the sale or exchange of goods, but is extended to almost every branch of business — to realty as well as to personalty.' The term is applied, ordinarily, to one act- ing for others.6 A broker is a middleman, an intervener between the buyer and the seller : a factor or agent who acts for one or the other.'' 1 Gardner v. Stover, ante. 2 Van Dolsen v. Abendroth, N. Y. City, Mar. Ct., 15 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,— Skeat. * Story, Agency, § 88; 83 N. Y. 381, infra. = Little Rock v. Barton, 33 Ark. 448, 444-49 (18T8), cases, Turner, S. J. « Warren v. Shook, 91 U. S. 710 (1875), Hunt, J. ' [United States v. Simons, 1 Abb. U. S. 478-73 (1870), McCandless, J. Brokers take their names from the kinds of con- tracts they negotiate. The more common classes are the following: Bill and note brokers. These negotiate the purchase and sale of bills of exchange and promissory nbtes. They impliedly warrant that the paper is as repre- sented, with respect to the genuineness of signatures,, but not as to the solvency of parties. ' Their usefulness would be destroyed if a purchaser was to be affected with their knowledge as to the char- acter of the paper they offer in market for discount.^ See Exchange Broker. Commercial broker. A person who negotiates sales of merchandise, or contracts for freights, for other persons. Within the meaning of the internal revenue laws a person who negotiates sales orpm-chases in the names of the parties primarily liable; not, one authoiized to sell in his own name or on his own accoimt.^ Any person or firm whose business it is, as a broker, to negotiate sales or purchases of goods, wares, or merchandise, or to negotiate freights and other busi- ness for the owners of vessels, or for the shippers, or consignors, or consignees of freight carried by ves- sels, shall be regarded as a commercial broker.* Exchange broker. A broker who nego- tiates bills of exchange, foreign or domestic. Every person, firm, or company, whose business it is to negotiate purchases or sales of stocks, bonds, ex- change, biillion, coined money, bank-notes, promissory notes, or other securities, for themselves or others, shall be regarded as a broker.* Compare Bill and Stock Broker. Insurance broker. A person who nego- tiates contracts of insurance. He is agent for both parties. An insurance agent is, ordinarily, the employee of the insurer only. See lysuKANCE, Broker. Merchandise broker. A broker who negotiates sales of merchandise without hav- ing possession or control of it. See Factor. Pawnbroker. A person, usually licensed, who loans money, in small sums, at usurious interest, on the security of pledges of per- sonalty. See further Pawn. Produce-broker. A person whose occu- pation it is to buy and sell agricultural or farm-products. ^ Not, then, one who sells from his own farm, or goes from house to house to sell his own produce.^ 'Baxter ii. Duren, 29 Me. 439^1 (1849), cases; Mor- rison V. Currie, 4 Duer, 82-85 (1854), cases; Aldrich v. Jackson, 5 H. I. 219 (1668). "^ Moorehead v. Gilniore, 77 Pa. 122. Agency: Worth- ington V. Cowles, 112 Mass. 30; 1 Dan. N. Inst. § 740 a. " [Slack V. Tucker, 23 Wall. 329 (1874). < [Revenue Act, 13 July, 1866: 14 St. L. 117, 116. ' United States v. Simons, ante. BRONZES 139 BUILDING Beal estate broker. A broker who negotiates sales of realty. He may also negotiate loans on mortgages, let houses, lease lands, collect rents, etc. Inasmuch as acting for both pai'ties, in an exchange of lands, involves inconsistent duties he can recover remuneration from neither party, notwithstanding an express promise by one of the parties to pay a per- centage, unless it dearly appears that each principal had full knowledge of all the circumstances connected with his employment by the other which would natu- rally affect his action, and had assented to the double employment. When such knowledge and assent are shown, he may recover from either party.* Ship broker. A broker who negotiates sales of ships, freighting of vessels, etc. See Commercial Broker. Stock broker. A broker who buys and sells shares in corporations. See Order, Stop, 2; RiNGlNQ Up; Stock, 3, Exchange. Ordinarily, a broker never buys or sells in his own name, nor has he possession of the goods; wherein he differs from a " factor " or commission merchant. His business is to bring buyer and seller together; but he need not actually negotiate the bargain. Unless there is a special agreement to the contrary, he earns his commission when he prociires a party with whom the principal is satisfied, and who actually contracts for the purchase of the property at a price acceptable to the owner. But he must establish his employment and that his agency was the procuring cause of the sale. Fending an authorized negotiation at private sale, the owner cannot take the business out of the broker's hands, complete the sale, and then refuse tft pay the commission.* The owner must have a good reason for refusing to fulfill his agreement to pay the broker for his services. Usage, in the absence of an express contract, determines the value of the serv- ices.* When the broker does not disclose his princi- pal he may be held as principal. See Reai.izs. BRONZES. See Fuknitube. BBOOD. See Partus. BBOTHEL. See Bawdy-house. BBOTHEB. See Blood, 1; Consan- guinity ; Descent, Canons of. ' Bell V. McConnell, 37 Ohio St. 399-403 (1881), cases. "See McGavock v. Woodlief, 20 How. 227 (1857); Walker v. Osgood, 98 Mass. 348 (1867): 93 Am. Dec. 171-78, cases; Keys v. Johnson, 68 Pa. 43-44 (1871), cases; Sibbald v. Bethlehem Iron Co., 83 N. Y. .381-82 (1881), cases; Vinton v. Baldwin, 88 Ind. 105-6 (1882), cases; Viaux v. Old South Society, 133 Mass. 10 (1882); Armstrong v. Wann, 29 Minn. 127-28 (1882), cases; Barry v. Schmidt, 57 Wis. 172 (1883) ; Hamlin v. Schulte, Sup. Ct. Minn. (188rj: 36 Am. Law Eeg. 106 (1887); ib. 103-15, 643-68 (1887), eases; 20 Cent. Law J. 406-fi8 (1883), cases; Chic. Leg. Adv. (1885): 9 Va. Law J, 515, 2 Kans. Law J. 243; 22 Cent. Law J. 126-29 (1886), cases; 21 Am. Law Eev. 705-14 (1887), cases; 26 Cent. Law J. 75-77 (1888), cases. ' Koch V. Emmerling, 22 How. 74 (1859). BBOTHEBHOODS. See Community, 3. BBOUGHT. Commenced. In the legislation of Congress on the subject of limitation of actions, "commenced" and "brought" mean the same thing. * A suit is brought when it is instituted or com- menced.^ See Commence, Action. BEOWBEAT. To depress or bear down with haughty, stern looks, or with arrogant speechijand dogmatic assertions; to bear down by impudence: as, to browbeat a wit- ness.' Compare Badger. See Examina- tion, 9. BBUTALITY. See Cruelty; Whip- ping-post. BUBBLE ACT. The statute of 6 Geo. I (1720), c. 18 (enacted after the South Sea project had beggared half the nation), made all unwarrantable undertakings by unlawful subscriptions, then known as " bubbles,'' sub- jects of prcemuni7-e.* By 6 Geo. IV (1S26), the greater portion of that stat- ute was repealed, and illegal companies left to be dealt with by the common law.^ "Bubble Acts" and " bubble companies " are still in use in speaking of persons who have been defrauded by subscribing to the stock of companies organized either without real capital or business, or with capital but for dishonest speculation. BUCKET-SHOP. See Wager, 2. BUGGEBY. See Sodomy. BUGGY. See Wagon. BUILDING. In its broadest sense, an erection intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament, or use, constituting a fabric or edifice, such as a house, a store, a church, a shed.6 A structure of considerable size, intended to be permanent or at least to endure for a considerable time.' The " commencement " of a building imports some work and labor on the ground, the effect of which is apparent, as, beginning to dig the foundation, or other work of like description, which every one can readily recognize as the commencement of a building,* — ' Goldenberg v. Murphy, 108 U. S. 103 (1883), Waite, C. J.; 119 id. 476. ^Berger v. Commissioners, 2 McCrary, 480 (1880): Act of Congress, 1875, § 1. s Webster's Diet. • 4 Bl. Com. 117. »4 Chitty, Bl. Com. 117. « Truesdell v. Gay, 13 Gray, 312 (1859), Bigelow, C. J. ' Stevens v. Gourley, 97 E. C. L. 112 (1859), Byles, J. s Brooks V. Lester, 36 Md. 70 (1872). BULK 140 BURGLAR work being done with the purpose then formed to continue it to the completion of the building.' The idea in all the cases which concern a "new" building is newness of structure in the main mass — the entire change of external appearance, which de- notes a difEerent building from that which gave place to it, though into the composition of the new structure some of the old parts may have entered. This new- nes.s of construction must be in the exterior, the main plan of the building, not in the intericSi; arrange- ments.2 ^& See Addition, 1; Alter; Buiigl.4rt; Erect, 1; House, 1; Loss, Total; Specification, 1; Structure; Support, 2. Bviilding or building and loan associ- ations. Co-operative associations, usually incorporated, for the purpose of accumulating money and loaning it to their members upon the security of their real estate. Each member makes a monthly payment upon each share of his stock, and such members as borrow from the association pay, in addition, interest upon the sums loaned to them. When the stock, from the pay- ments of the monthly installments upon shares and from the accumulation of interest, reaches its par value, the mortgages given by the borrowers are can- celed, and the non-borrowers receive in cash the par of their shares of stock. Buildings, public. See Land, Public. Builder. A person whose business it is to construct buildings, vessels, bridges, canals, or railroads, by contract.^ See Contkactoe. He who imdertakes to build a house imj)liedly agrees with every person who may have occasion to use it that he will exert, in the construction, such skill, care, and foresight as may be expected of a man of at least ordinary caution.* The occupant of a house likewise agrees not to over- load a floor; and, that every part of the premises, in and out of doors, to which the public are admitted, shall be reasonably guarded against accident. See Carb; Duty, 1; Mansladghtbii; Negligence; Bes, Perit, etc. As to the expense of changes made in plans and specifications, see Watson v. Jones, under Contract, Executed, and Phillips Construction Co, v. Seymour, under Covenant. BULK. See Break. BULLDOZE. See Ballot ; Conspieacy. BULLION. Uncoined gold and silver, either smelted, refined, or in the condition in which it is used for coining. Fr m an early penod, has been associated with or employed as a term denoting money.' See Bank, 2 (2). 1 Kelly V. Eosenstock, 45 Md. 392 (1876), cases. ' Miller v. Hershey, 59 Pa. 69 (1868),. cases. 3 See Revenue Act, 13 July, 1886: 14 St. L. 121. •1 Addison, Torts, §569; People v. Buddensieck, 4 N. Y. Cr. E. 230, 250-72 (1886), cases. ' Counsel v. Vulture Mining Co., 5 Daly, 77 (1874). BUNDLING. See Seduction. BURDEN. That which is borne : charge, obligation, duty ; also, disadvantage. Com- pare BE^fEFIT ; Incumbrance ; Onus. Burdensome. Grievous, oppressive: as, a burdensome contract. Burden of proof. The obligation im- posed upon a party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action, to establish it by proof. 1 Sometimes spoken of simply as "the bur- den." See further Proof, Burden of. BUREAU. SeeBoAED, 3; Department; Health; Labor, 1. BURGESS. See Borough. BURGLAR.2 He that by night breaketh and entereth into a mansion-house with in- tent to commit a felony." Burglarious. Intending to commit burg- lary. ^ Burglary. Originally, the robbery of a dwelling; now, breaking and entering the house of another in the night-time with in- tent to commit a felony, whether the felony be actually committed or not.5 *' House-breaking " describes the same offense, the time not being regarded. Burglary, or nocturnal house-breaking, has always Ijfcen looked upon as a very heinoiis offense; not only because of the terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation which ev6ry individual might acquire even in a state of nature." By " night " is meant the period between total dis- appearance of daylight in the evening and its re- appearance the next morning. The disappearance is total when a face can no longer be discerned. See Night. By "mansion-house" is meant a dwelling-house: any building actually used for human habitation and not .permanently abandoned. It includes incidental out-buildings which are parcel of the ■ dwelling-house. By statutes, extended to stores or shops. A. single room may be such habitation: the injured owner being he who has the right of possession. See Curtilage. There must be both a "breaking" and an "enter- ing." " Breaking " means the removal of some portion 1 People V. McCann, 16 N. Y. 66 (1857); Willett v. Eich, 142 Mass. 357 (1886). = F. fturgrar, a burg-thief: ahouse-breaker: L. latro, a robber. s Coke, 3 Inst. 63; 4 Bl. Com. 2H; 29 Ind. 80; 34 ia. An. 49; 53 Md. 153. * See 14 Tex. Ap. 664. ' Anderson v. State, 48 Ala. 666 (1872): 3 Chitty, Crim. Law, 1101. «4B1. Com. 223. BURIAL 141 BUSINESS ot the house intended for security against intrusion. This may be by lifting a latch or a window, or by get- ting in through artiflde or conspiracy; but not by raising a window already open, pushing back a door standing ajar, or by other entrance already made, except as to a chimney, which is as much closed as the nature ot things will pemiit. The breaking may be of an inner or chamber door, or for purposes of egress. The least degree of " entering ' ' with any part of the body, or with an instrument held in the hand, is sufficient; and it maj; be before, as well as after, the breaking. The " intent " must be to commit a robbery, a mur- der, a rai>e, or other felony, whether the crime be actually perpetrated or not. If such specific intent is absent the act is a mere " trespass." ^ Where the accused had himself, concealed in a chest, transferred to an express car, intending to rob the messenger, his acts were held to constitute a breaking and entering.* The comraou-law definition has been modified and different degrees of the offense have been established, in some of the States. See Accessary; Accomplice; Crime; Defense, 1; Extradition, 1; Felony; Indictment; Manslaughter. BUBIAIi. " Burial ground " and " cem- etery " may be used synonymously. 3 To take up a dead body without lawful authority is a misdemeanor at common law. But there can be no larceny of the body, although there may be of the shroud.* Preventing the burial of a dead body is indictable. After interment, control over a body is in the next of kin. If they differ as to the disposition to be made of it, a court of equity may not afford assistance to either party.* A stone vault in a cemetery used for the interment of dead bodies, though wholly above ground, is not a "building" or "other erection or inclosure," within the meaning of the penal code of New Tork.^ For sanitary reasons, a State may forbid the ex- humation and removal of a corpse, without a permit being first procured.^ See Health; Sepulcher. ' 4 Bl. Com. 224; Commonwealth v. Glover, 111 Mass. 402 (1873), cases ; Walker v. State, 63 Ala. 60 (1879), cases. ' Nicjiols V. State, 08 Wis. 416 (1887), cases. » Jenkins v. Andover, 103 Mass. 104 (1869). * See 28 Alb. Law J. 106-8 (18^3), cases; Se Wong Tung Quy, C Saw. 442, infra. » See Be Beekman Street, 4 Bradf. Sur. 502 (1856); Bo- gert V. Indianapolis, 13 Ind. 138 (1859); Wynkoop v. Wynkoop, 42 Pa. 293, 301 (1868); Pierce v. Swan Point Cemetery, 10 E. I. 227, 235 (1872); Craig v. Fu-st Presby. Church, 88 Pa. 42, 52 (1878); Weld v. Walker, 130 Mass. 423 (1881), cases; Griffith v. Charlotte, cite. R. Co., 23 S. C. 39-42 (1885), cases; Johnston v. Marinus, 18 Abb. N. Cas. 72-77 (1886), cases; 10 Alb. Law J. 70 (1874), cases; 16 Am. Law Eeg. 155 (1877), cases; 24 id. 591-600 (1885), cases; 19 Am. Law Eev. 251-70 (188.5); Bishop, Contr. I 237. •People V. Eichards, N. Y. Ct. Ap. (Jan. 17, 1888); Pen. Code, §§ 498, 404. ' Be Wong Yung Quy, 6 Saw. 442 (1880). BUENED. See Lost, 3. BUENING. In the law of arson (g. v.), to. materially destroy the integrity of some portion of the house of another.! Burning in the hand and left cheek was anciently a mode ot punishment. * See C, 2; F, 1 ; T, 2. Prior to 30Geo. HI (1790), c. 48, the penalty for trea- son was being burned alive; ' and so, anciently, as to arson.* But victims seem to have been first deprived of sensation, as by strangling.^ As a punishment for military offenses, branding has been used to a very limited extent. See Brand; Punishment; Witchcraft. Burning fluid. See Oil. BURSTING-. In an insurance policy, which excepts a loss from the bursting of a boiler, synonymous with explosion, q. v. BUSINESS. A word of large significa- tion, denoting the employment or occupation in which a person is engaged to procure a living. 8 "Business" and "employment" are syn- onymous terms, signifying that which occu- pies the time, attention, and labor of men for purposes of a livelihood or for profit. A call- ing for the purpose of a livelihood.' See Em- ployment; Happiness. " Labor " may be business, but it is not necessarily so; and " business " is not always labor. The making of a contract is business, but not laboV. ^ See Labor. 1 ; Trade. " Other business," in the expression "works, mines, manufactory, or other business," is ejusdem generis with the species of business described by the preced- ing words, and imports, in a Wages Act, business of the same general character." " Ten per cent, on the business " of a partnership may mean ten per centum of the result of the business, that is, of the profits.'" Business corporation. In the Bank- ruptcy Act of 1867, had a broader meaning than " trading " corporation ; was held to in- clude a railroad corporation, 'i and an insur- ance company 12 ' See 40 Ala. 669; 46 Cal. 366; 110 Mass. 403. 2 4 Bl. Com. 370. ' 4 Bl. Com'. 804, 376, 407. < 4 Bl. Com. 222. » 4 Bl. Com. 377. See 1 Steph. Hist. Cr. Law Eng. 476-77. » Goddard v. Chaffee, 2 AUen, 396 (1861), Merrick, J. ' [Moore v. State, 16 Ala. 413 (1849); 68 id. SI; 71 id. 62; 28 N. J. L. 546; 83 N. Y. 844. 8 [Bloom V. Eichards, 2 Ohio St. 396-403 (1853), oases. » Pardee's Appeal, 100 Pa. 412 (1882). i» Funck V. Haskell, 133 Mass. 582 (1882). >' Adams v. Boston, &c. E. Co., 1 Holmes, 30 (1870); Wmter i>. Iowa, &c. E. Co., 2 Dill. 488 (1873). " 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 same section, such scope was not given it as to super- sede " commercial " and " moneyed," or to leave these words without practical signification.' Business hours. The business hours of the community generally.^ The hours when business is ordinarily trans- acted, down to the beginning of the hours of rest in the evening, except as to paper pay- able at a bank or by a banker. ^ Business paper. Commercial paper ; ne- gotiable instruments. See Negotiable. Business usages. See Custom; Usage. Course of business. An act done accord- ing to the rules or methods which prevail in business generally or in a particular line or branch of business is said to be done in the "due," "ordinary,'' "regular," or "usual" course of business. One who talces commercial paper before its matu- rity, and without notice, actual or otherwise, of any defense thereto, receives the paper in the due course of business and becomes a holder for value.^ Under the Banlrruptcy Acts sales not made in the usual and ordinary course of the business of the debtor were prima facie evidence of fraud on creditors; as, where a retail dealer disposed of his stock at wholesale. ^ Place of business. Tiie place where one habitually or chiefly transacts his business du- ties is his usual or principal place of business. " Usual place of business " means the place where one^s business is carried on openly; the place which has public notoriety as one's usual place of business.' The "priiicipal place of business "is no test of residence, either of a natural person or of a corpora- tion.' ' See Bank, 2 (3); Carrt on; Commerce; Custom; Income; Labor, 1; License, 3; Merchant; Profit, 1; Reside; Sunday; Tax, 3; Trade. BUST. See Design, 2. BUTCHER. See Peddler; Police, 3; Retailer. BUTTAL. See Abut. BUTTERINE. See Oleomargarine. 1 Sweatt V. Boston, &c. E. Co., 3 Cliff. 351,(1871). 2 Derosia v. Winona, &c. R. Co., 18 Minn. 154 (1872). ^ Cayuga County Banlj v. Hunt, 2 Hill, 633, 638 (N. Y., 1842); Lunt v. Adams, 17 Me. 231 (1840); Hint i>. Rogers, 15 id. 69 (1833). * Brooklyn City E. Co. ii. Nat. Bank of the Republic, 102 U. S. 25-28 (1880), cases. « Act of 1&67, § 35; Walbrun v. Babbitt, 16 Wall. B81 (1872), cases. « [Bank of Columbia v. Lawrence, 1 Pet. *B83 (1828); Stevenson v. Primrose, 8 Porter, 155 (Ala., 1838): 33 Am. Deo. 287. 'Guinn v. Iowa Cent. E. Co., 14 P. E. McCabe v. Illinois Cent. E. Co., 13 id. 827 BUY. To acquire by giving a considera- tion, usually money ; to purchase, q. v. To buy a note, as opposed to discount a note, see Discount, 2. Buy in. To cause property to be offered at public sale, and then to become the pur- chaser thereof. See Auction. Buying titles. See Seisin, Disseisin. Buyer. He who becomes the owner of a thing by paying the price asked ; he who ac- quires or purchases ; a purchaser. See Caveat, Emptor; Eedeem; Sale; Wager, 2. BY. 1. Near, near to; by the side of; be- side — all denoting exclusion. Used descriptively in a. grant, not " in immediate contact with," but " near to " the object.' " By land of A " means along the line of A's land." A grant of land bounded "by" a fresh- water stream, whether navigable or unnavigable, conveys tke soil to the middle line of the stream.' See Along. A contractfor the doing of a thing "by " a certain day means on or before that day.* See Day. Authorized " by " may mean " in " this State.' By-bidding. See Bid. By-road. See Way, Private. By-standers. See Tales. 2. With, through, as the means or mode; as, by the book, by the uplifted hand. See Oath. Compare Per. 3. According to; by authority, direction, or allowance of: as, by agent, by writing filed, by the court, by act and operation of law, by statute, qq. v. See also According ; Force, 2. staying proceedings until an issue is determined by final judgment in another case may mean to stay the proceedings " according to " the judgment." 4. May be used instead of " to; " as in the sentence " a person whose name is not known by the complainant."' BY-LAW.8 1. A law affecting a single village or township ; a rule governing the inhabitants of a locality. "The by-law [of a borough] has the same effect within its limits, and with respect to the persons upon ' Wilson V. Inloes, 6 Gill, 1S3 (Md., 1847). = Peasleei;. Gee, 19 N. H. 377 (1843). 3 The Magnolia v. Marshall, 39 Miss. 110, 117, 134 (1860). * Coouley v. Anderson, 1 Hill, 519, 522 (N. Y., 1841); Rankin v. Woodworth, 3 P. & W. 48 (Pa., 1831). See Higley ti. GUmer, 3 Monta. 437 (1880). ' State V. Overton, 16 Nev, 149 (1881). « Haubert v. Haworth, 78 Pa. 83 (1875). ' Commonwealth v. Grifftn, 105 Mass. 175 (1870). e Scan, byr, a town, a village,— Skeat. A. S.Mlage, a private law,— Webster. " A law made obiter, or by the by," Termes de la Lay (1721). 143 CABLE whom it lawfully ' operates, as an act of Parliament has upon the subjects at large." ' 2. A rule or law of a corporation for its own government. An act of legislation; therefore the formalities re- quired by the charter for its passage must be ob- served. It may be in the form of a "resolution," although that is not necessarily a by-law.* By-laws are the orders and regulations which a cor- poration, as one of its legal incidents, has power to make, and which is usually exercised to regulate its own action and concerns and the rights and duties of its members among themselves.' See Charter, 2; Ordikance, 1. c. C. 1. In connection with references to statutes means chapter. See Statute, 2. a. In Rhode Island, as late as 1785, was branded upon the forehead as part of the punishment for coun- terfeiting. 3. As an abbreviation, may also denote case, chancellor, chancery, chief, circuit, civil, code, commissioner, common, counsel, court, criminal, crown: C. A. Chancery appeals ; court of ap- C. A. v. Curia advisari vult. The court wishes to consider the^ matter. See further CuKiA, Advisari, etc. C. B. Chief baron ; common bench. C. C. Cepi corpus; chief commissioner ; circuit, city, or county court ; chancery, civil, criminal, or crown cases ; civil code. C. C. J. Circuit, city, or county court judge. O. C. P. Code of civil procedure: court of common pleas. C. D. Commissioners' (patent) decisions. C. J. Chief justice ; circuit judge. O. J. B. Chief judge in bankruptcy. C. Ii. Civil law ; common law. C. L. P. Common law procedure. C. O. D. Collect (q. v.) on delivery. O. P. Common pleas (court). C. q. t. (or c. q. t). Cestui que trust, q. y. C. R. Chancery reports ; curia regis, the king's court. 1 HopWns V. Mayor of Swansea, 4 M. & W. *640 (1889), Ld. Abinger, C. B. s Drake v. Hudson River R. Co., 7 Barb. 539 (1849). Compare Compton v. Van Volkenburgh, &c. R. Co., 34 N. J. L. 135 (1870). "Commonwealth «. Turner, 1 Cush. 496 (1848), Shaw, C. J. C. t. a. (usually, c. t. a.). Cum testamento annexo, with the will attached. See Admin- ister, 4. CABINET. See Department; Presi- dent. CABIjI!. See Commerce; Telegraph. The act of Congress approved February 39, 1888 (25 St. L. 41), entitled an act to carry into effect the International Convention of March 14, 1834, for the protection of submarine cables, provides: " Section 1. That any person who shall willfully and wrongfully break or injure, or attempt to break or injure, or who shall in any manner procure, coun- sel, aid, abet, or be accessory to such breaking or in- 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 hable'to imprisonment for a term not exceeding two years, or to a fine not exceeding Ave thousand dollars, or to both fine and imprisonment, at the discretion of the court." " Sec. 2. That any person who by culpable negli- gence shall 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 liable to imprisonment for a term not exceeding three months, or to a fine not exceeding five hxmdred dollars, or to both fine and imprisonment, at the discretion of the com't." Sec. 3. The foregoing sections shall not apply to a person who breaks or injtires a cable in an effort to save life or limb, or to save his own or any other ves- sel: Provided, that he takes reasonable precautions to avoid such breaking or injury. " Sec. 4. That the master of any vessel which, while engaged in laying or repairing submarine cables, shall fail to observe the rules concerning signals that have been or shall hereafter be adopted by the parties to the convention with a view to preventing collisions at sea: or the master of any vessel that, perceiving, or being able to perceive the said signals displayed upon a telegraph ship engaged in repairing a cable, shall not withdraw to or keep at a distance of at least one nautical mile; or the master of any vessel that seeing or being able to see buoys intended to mark the posi- tion of a cable when being laid or when out of order or broken, shall not keep at a distance of at least a quarter of a nautical mile, shall be guilty of a mis- demeanor, and on conviction thereof, shall be lia- ble to imprisonment for a term not exceeding one month, or to a fine of not exceeding five hundred dollars." Sec. 5. The master of any fishing vessel who shall not keep his implements or nets at a distance of at least one nautical mile from a vessel engaged in lay- ing or repairing a cable, or at a distance of at least a quarter of a nautical mile from a buoy intended to mark the position of a cable when being laid or when out of order or broken, shall be guilty of a misde- meanor, and on conviction be liable to imprisonment for a term not exceeding ten days, or to a fine not ex- ceeding two hundred and fifty dollars, or to both fine CABLE Ui CALL and imprisonment, at.the discretion of the court: Pro- vided, hoioever, that fishing vessels, on perceiving or being able to perceive the said signals displayed on a telegraph ship, shall be allowed such time as may be necessary to obey the notice thus given, not exceeding twenty-four hours, during which period no obstacle shall be placed in the way of their operations. Sec. 6. A person commanding a ship of war of the United States or of any foreign state for the time being bound by the convention, or a ship specially commissioned by such government or state, may exer- cise and perform the duties vested in and imposed on suqh officer by the convention. Sec. 7. Any person having the custody of the pa- pers necessary for the preparation of the statements provided for in article ten of the convention who shall refuse to exhibit them or shall violently resist persons having authority according to said article to draw up statements of facts in the exercise of their functions, shall be guilty of a misdemeanor, and on conviction thereof shall be liable to imprisonment not exceeding two years, or to a fine not exceeding five thousand dol- lars, or to both fine and imprisonment, at the discre- tion of the court. Sec. 8. The penalties provided for the breaking or injury of a cable shall not be a bar to a suit for Sec. 9. "When an offense against this act shall have been committed by means of a vessel, or of any boat belonging to it, the master of such vessel shall, unless some other person is shown to have been in charge, be deemed to have been navigating the same, and be liable to be punished accordingly. Sec. 10. Unless the context of this act otherwise requires, the term "vessel" shall be taken to mean every description of vessel used in navigation, in what- ever way it is propelled; " master" every person hav- ing command or charge of a vessel; and "person" to include a body of persons, coi-porate or incorpo- rate. " Convention " shall mean the International Con- vention for the Protection of Submarine Cables, made at Paris, May 14, 1884, and proclaimed by the President of the United States May 23, 1885. Sec. 11. The provisions of the Revised Statutes, from § 4300 to 4305 inclusive, for the simamary trial of offenses against the navigation laws, shall extend to offenses against sections four and five of this act. Sec. 12. This act shall apply only to cables to which the convention for the time being applies. Sec. 13. The district courts of the United States shall have jurisdiction over all offenses against this act and of all suits of a civil nature arising there- under, whether the infraction complained of shall have been committed within or outside of the territo- rial waters of the United States: Provided, that in 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 error shall be allowed as now provided by law in other cases. Criminal actions and proceedings shall be pros- ecuted in the district court for the district within which the offense was committed, and when not committed within any judicial disti^ict, then in the district court for the district within which the offender may be foimd; and suits of a civil nature may be commenced in the district court for any district within which the defendant may be found and shall be served with pro- cess. CADET. See Graduate. Naval cadets, by settled usage which has the force of law, are appointed by certificates under the hand and seal of the secretary of war. They are inferior ^officers who, for purposes of instruction, may be re- quired to, serve as officers, non-commissioned officers, or privates. ^ CADIT. See Qu^stio, Cadit. C-^TEE.A. See Administer, 4; Et, Etc. CALENDAR. 1. The division of time into years, months, weeks, and days, and a register of them. The pontifex maximus on the first of every month proclaimed — Lat. catare — the month, with its festi- vals and the time of the'new moon. From calare was derived " calendar." The first day of the month in the Roman calendar was called the calendoe, the calends.^ Calendar month. A solar month, known as January, February, etc. ; distinguished from a lunar month of twenty-eight days. See further Month. 3. A list of causes arranged for trial or ar- gument; a list; a docket. 3 The calendar Of a criminal com-t gives the names of offenders and prosecutors, the nature of the charges, from what magistrates certified, numbers and terms of the cases, and like particulars. The calendar of a civil court contains the names of the parties plaintiff and defendant, the names of counsel, the nature of the demand in each case, the defense or plea, the number and term of the case, and, in courts of review, the name of the lower court from which removed. CALIFORIfl'IA. See Chinese; Pueblo. CALL. 1, V, (1) To require a prisoner to present himself and answer the indictment, in the immediate presence of the court, is to call him to or before the bar.* See Arraign. (3) To admit to the rights and privileges of a practitioner of law is to call a student- at-law to the bar. In England, _" call-day" is the day in each term when those who have been students are admitted to practice law. Call a case. For a judge to announce that a cause is about to be placed on a par- ticular list, or to proclaim that a cause on 1 Babbitt v. United States, 16 Ct. CI. 203, 215-17 (1880). See United States v. Morton, 112 U. S. 1, 3 (1884). As to cadet-engineers, see also United States v. Redgraye, 116 id. 474 (1886); United States v. Perkins, ih. 483 (1886). a Rives V. Guthi-ie, 1 Jones L. 86-87 (N. C, 1853), Nash, C. J. B See Titley v. Kaehler, 9 Bradw. 539 (1881). 4 [4 Bl. Com. 322.] CALL 145 CANAL such list may now be determined by a trial by a jury or by argument before the court. Call a list or docket. To inquire pub- licly in open court as to what causes on a list are ready for trial ; also, to call for trial or argument certain causes already set or fixed for such determination.! Whence, m the practice of some courts, the " first," the " second," and perhaps the " third " call of a case or list; also "the call." Call a jury. To draw the names of per- sons to serve as a jury, out of the names of all of those who have been summoned as jurors. Call a party. To call aloud his name in open court, and to command him to appear in order to perform some duty. Call the plaintiflF. At common law, when counsel for the plaintiff perceives that his client has not made out a case, the client may withdraw from the court room: whereupon the crier is required to call the plaintiff. If he does not answer the call (made thrice in succession), judgment of nonsuit is entered. ^ The nonsuit is more eligible for the plaintiff than a verdict against him.^ Call a witness. To call his name aloud in, and perhaps about, the room of the court at which he has been subpoenaed to appear, before an attachment issues for disobedience. Also, to present a witness for examination in a trial or hearing then in progress. Hecalling a witness, who has been once examined and dismissed. Is a matter almost wholly within the discretion of the trial court.* See Produce, 1. 2, n. (1) A notice or demand by the direct- ors of a stock corporation upon a subscriber to pay money on account of his shares. The word may refer to the resolution, its notification, or the time when it becomes payable. < A court of equity may enforce payment of stock subscriptions though there have been no calls for them by the company. . . Subscriptions are in the nature of a fund for the payment of debts, and calls may be made whenever funds are needed for such payment. . . A formal call need not be made before a bill in equity is filed: filing the bill is equivalent to a, call.' See Put, 3; Stock, 3 (3). •See Blanchard v. Ferdinand, 132 Mass. 391 (1882). 2 [3 Bl. Com. 376. 'Keating v. Brown, 30 Minn. 10 (If 3 3). 'Ambergate, &o. E. Co. u. Mitchell, 4 Ex. E. *543 (1849), Parke, B. 'Hatch V. Dana, 101 U. S. 214-15 (1879), Strong, J. (10) (2) A designation of the limit of a boundary. A "locative call" refers to a physical ob- ject rather than to a course or distance. See further Botjndaey. CALLING. See Business. CAMP-MEETING. See Woeship. The Massachusetts statute of 18S7, c. 57, which pro- hibits a person, during the time a camp or field meet- ing is being held for religious purposes, and within one mile of the place, from maintaining a building for vending provisions or refreshments without permis- sion of the officers of the meeting, and which provides that a person having a regular and established place of business shall not be required to suspend his busi- ness, is constitutional,! The Pennsylvania act of May 8, 1878,' prohibits dis- posing of any kind of merchandise, within one mile of any camp-meeting held for religious worship, under a fine of not more than one hundred dollars or impris- onment of not more than six months, or both; the act not applying to persons having written pennit from the managers of the meeting, nor to persons regularly engaged in business, nor to farmers who sell the products of their farms upon the same. And the act of March 83, 1876," provides that a judge of the court of common pleas of the particular county may appoint as policemen such persons as the association may designate; each to possess the powers of a con- stable; to enforce obedience to all reasonable regula- tions of the association not inconsistent with the constitution and laws of the State; to detain offenders twelve hours, if need be, exclusive of Sunday, until they can be carried before the nearest justice of the peace; and to wear a metallic shield with "camp police" and the name of the association inscribed thereon, in plain view — except when employed as detectives. CAMPBELL'S ACT. See Actio, Per- sonalis, etc. CAN. Compare Case, 4. CANAL. Applied to an artificial passage for water, includes the banks, and refers to the excavation or channel as a receptacle for the water.'' As used in an Internal Improvement Act, a navi- gable public highway, for the transportation of persons and property. . . There must be a canal fitted in all respects for navigation and open to public use be- fore benefits can accrue to the owner to overcome his claim for damages.' The title of owners of land abutting on a canal ex- tends to the line of the canal, subject to the use of the bank by the owners of the canal for purposes of commerce.* 1 Commonwealth v. Bearse, 132 Mass. 548, 551 ( » P. L. 63. s P. L. 9. ' Bishop V. Seeley, 18 Conn. *394 (1847). s Kennedy v. City of Indianapolis, 103 U. S. 604 (1880), Waite, C. J. « Morgan v. Bass, 14 F. E. 454 ( CANCEL 146 CAP A general grant of premises upon the bank of a liver, in -whicli is constructed a canal, conveys the grantor's right to the river's center. Where the canal company, as such, has the right only to use the bed and water, at dissolution such right reverts to the proper owners.^ Navigable water situated as is the Illinois and Lake Michigan canal, — a highway for commerce between ports and places in different States,— is public water of the United States, within admiralty jurisdiction, although the canal is wholly within the body of the State of Illinois." See Commerce; Toll, 2, CATTCEL.s 1. To dra-w lines over the face of an instrument, in the forms of lattice- work. 3. To oblitei-ate, deface, efface, ex- punge; to do away with, set aside, strike out of existence. 3. To satisfy, pay. A deed may be rendered of no effect by delivering it up to be canceled; that is, to have lines drawn over it in the form of lattice-work: though 'the phrase is now used figuratively for any manner of obliteration or defacing it.* To draw cross-lines over the face of an instrument is a common mode of showing an intention thereby to make an end of it as an instrument in force. In earlier times, when few persons could lyrite, the mass of men could manifest their intention, with pen and ink, only by unlettered marks. . . When the instrument is so marked by the maker as to show clearly that the act was designed to be a canceling, that act becomes effectual as a revocation of a will by canceling.' Cancel is not a technical word. In a statute of wills it is presumed to retain its popular meaning. . . A canceled bond or note has meant exclusively a bond or note over which lattice-work lines have been drawn. . . Revocation of a will by cancellation means by any act done to the paper which, in common imder- ^nding, is regarded as cancellation when done to any- other instrument.^ In a contract, may not be equivalent to rescind; may mean no more than " doing away with " an exist- ing agreement upon the terms, with the consequences, mentioned.'"' Cancellation will be ordered, by a court of equity, of a writing which was obtained without considera- tion, or which became a nullity, or which may cause injury to the plaintiff, or be used to vex him after the evidence to impeach it has been lost, or which may throw a cloud over histitle.^ ' Day v. Pittsburgh, &c. B. Co., 44, Ohio St. 418 (1886); Pittsburgh, &o. R. Co. v. Bruce, 102 Pa. 33 (1882). a Exp. Boyer, 109 U. S. 682 (1884). SL. L. cancellare, to draw lines across: L. canceHi, lattice-work. Compare Chahobry. ' 2 Bl. Com. 309. « Warner -u. Warner's Estate, 87 Vt. 362-68 (1864). > « Evans's Appeal, 58 Pa. 843-44 (1868), Strong, J. See also Ladd's Will, 60 Wis. 189-99 (1884), cases, Casso- day, J. 'WiutouD. Spring, 18 Cal. 455 (1861); Weill). Jones, 53 id. 47 (1878). 8 1 Story, Eq. §§ 692-711 ; 17 Blatch. 145. Cancellation destroys a deed, annulling all cov- enants, as far as the deed is executory. It will not revest in the grantor an estate once completely trans- ferred to another.! " Canceling an executed contract is an exertion of the most extraordinary power of a court of equity. The power ought not to be exercised except in a clear case, and never for an alleged fraud unless the fraud be made clearly to appear; never for alleged false representations unless their falsity is certainly proved, and unless the complainant has beeti deceived and in- jured by them." = See Patent, 2. Compare Null; Rescission; "Vacate; 'Void. CANDIDATE. One who seeks or aspires to some office or privilege, or who offers himself for the same. In a constitutional provision that any person who, while a candidate for office, shall be guilty of brib- ery, etc., is used in that popular sense; any one who seeks an office, whether nominated or not.^ See Bribery; Legal, Illegal; Libel, 8; Lxbeety, 1, Of the press. ' CANISTER. See Case, 4. CAJSrON.4 A rule ; a law. Canon law. Ecclesiastical law. In particular, a body of ecclesiastical laws relative to matters over which the church of Rome had or claims to have had jurisdiction.' CompUed from opinions of the fathers, decrees of councils, and decretal epistles and bulls of the holy see. Received, in England, by immemorial custom, or else by consent of parliament; otherwise, ranked as unwritten law.' Canons of construction. Rules of con- struction, q. V. Canons of descent or of inheritance. The rules which regulate the descent of in- heritances ; the rules according to which estates are transmitted from ancestor to heir. 6 See further Descent. CAP. When a person, who has been sen- tenced to capital punishment by hanging, is about to be executed, it is customary to place over his head and neck a sack or bag, which, from the color of the material, is called the white cap or black cap, and, generally, the " death cap." In England and Canada, when a judge formally passes sentence of death upon a prisoner, he usually 1 See 4 Kent, 452; 1 Greenl. Ev. § 265. a Atlantic Delaine Company v. James, 94 U. S. 214 (1876), Strong, J. Approved, Union E. Co. v. Dull, 124 id. 188 (1888), Harlan, J. ' Leonard v. Commonwealth, 112 Pa. 624 (1886): Web- ster; Const. Penn. Art. Vni, sec. 9. * Gk. kanon', a reed, rod, rule. n Bl. Com. 88, 79, 19. See 2 Steph. Hist. Cr. L. Eng. 440; 85 Hen. Yin, c. 19; 1 Eliz. c. 1. • 2 Bl. Com. 208. CAPACITY 147 CAPERE wears a "black cap." Some writers trace the prac- tice to the ancient custom by which rulers covered the head on occasions of great solemnity; while other writers find its origin in a prohibition against persons m holy orders (from which class the judges were largely selected) imposing the death penalty -as of- ficials of the church. Since it was obligatory that such sentences should be pronounced, the judges on such occasions, were supposed to lay aside their ecclesiastical character by "covering the clerical tonsure " with the black cap which all judges in early days wore as a part of their official dress i CAPACITY. AbUity to take, do, act: competency, qualification, fitness, power. See Capax. 1. Power or fitness to perform a particular legal act ; mental qualification : as, capacity to enter into a contract, disposing or testa- mentary capacity. Capacity for guilt: will joined with an act." The test of capacity to make an agreement or a conveyance is, that a man shall have the ability to understand the nature and effect of the act in which he is engaged.' See Influence. 3. Character or function, relation or office, invested or confeiTed by law: as, capacity to 'act as an executor, administrator, guard- ian, trustee, referee, judge, sheriflf, or other officer. Whence also flduciaiy, judicial, ministerial capac- ity; professional capacity; men in public capacity — see Libel, 5; Descriptio, Personae. CAPAX. L. Receiving or containing: able, fit for ; having capacity, q. v. Capax doli. Competent to intend wrong, to commit a crime. Doli incapax: incapa- ble of committing crime. See further Dolus. Capax negotii. Competent to transact business. CAPERE. L. To take, seize; to arrest. Capias. That you take. A common-law writ commanding the sherifE to take a de- fendant into custody. Named from the emphatic word in the writ when expressed in Latin. Has come to designate the whole class of writs by which arrests are made by a con- stable, sheriff, or marshal. The species are: Capias ad respondeiidum. That you take for answering : arrest (and imprison) the de- fendant so that you have him in person before the court on a certain day to answer the plaintiff's complaint. > See 23 Am. Law Eev. 121 1 » i Bl. Com. 80. » Eaton V. Eaton, 37 N. J. L. 113 (1874); 2 Bl. Com. 230. Serves the purpose of compelling an appearance in court, on the part of a defendant, in actions of tort, in which damages are claimed, as, in actions for slander hbel, false arrest, malicious prosecution, and other trespasses. Being the species of the writ most fre- quently issued, is often designated as a or the capias." i See Process, 1. C ffl yims rrrf intisfa ciendum. That you take for satisfying: arrest (and imprison) the de- fendant so that you may have him in court on a given day, in order that he may then and there pay the plaintiff such debt, dam- ages, and costs as he may recover. Abbre- viated ca. sa. At common law, after this writ no other process could be issued against a debtor's property. The early use of the writ has been restricted by statutes aboHshmg unprisonment for debt or facilitatmg the discharge of debtors, in cases in which no fraud is shown to have been practiced.^ Capias in withernam J That you take in reprisal ; that you distrain for a distress. A writ for seizing property of a distrainor on ac- count of property concealed, eloigned, or otherwise withheld by him so that it could not be replevied.* See Eloign. Capias utlagatum. That you arrest the outlaw, q. V. Cepi. I have taken, or arrested. The distinctive word in old Latin forms of re- turns of service to orders for making arrests. Cepi corpus. I have taken the body,— ar- rested the defendant. Abbreviated C. C. Cepi corpus et bail bond. I have arrested the defendant and discharged him on a bail bond. Abbreviated C. C. et B. B. Cepi corpus et committitur. I have arrested and imprisoned the defendant. Abbreviated C. C. et C. Cepi corpus et est eustodia. I have arrested the defendant and he is in custody. Cepi corpus et est languidus. I have ar- rested the defendant and he is sick. See Languidtjs. Cepi corpus et paratum habeo, I have ar- rested the defendant and have him in readi- ness. See -AjiREST, 2 ; Bail, 1 (2). Cepit. , He took. The emphatic word in the Ijatin writs of trespass for taking person- alty, and in declarations in trespass and re- plevin. Still used as descriptive of the action, > See 3 Bl. Com. 414. « See 4 Bl. Com. 319. ' With'-er-nam is A. S. vndlier, against, and niman, to seize. . Sbepherd,2W. Bl. 892(1773): 1 Sm. L. C, Part I, *754-fi9; Cooley, Torts, 70; 30 Conn. 182, 180. *3B1. Com. 123-23, 50-51. 'Foster v. Diphwys Casson Slate Co., L. Rj, 18 Q. B. D. 428 (1887). CASH 154 CASUS CASH. In all sales for cash the money must be paid when the property is deliv- ered.! A sale for cash is a sale for the money in hand.2 But wlien a factor is directed to sell grain for cash, evidence may be given of a well-established custom to allow the purchaser to receive the grain, and call for the money in a few days after delivery. ''i ^ Where goods are sold for cash, but the delivery is unconditional and without fraud or mistake, the title vests in the vendee notwithstanding the cash was not in fact paid.' The idea of a sale on credit is that the vendee is to have the thing sold on his assumption to pay, and be- fore actual payment.* See Credit; Cdbhent,2; Monet; Place, 1, Of deliv- ery, payment; Sale; Value. CASHISR. An officer or agent whose business is mainly to take care of the money of ail institution, of a private person, or of a firm. The cashier of a bank is the executive ofBcer through whom the financial operations are conducted. He receives and pays out its moneys, collects and pays its debts, receives and transfers its commercial securi- ties. Tellers and other subordinate offlcers are under his direction, and are, as it were, the arms by which designated portions of his functions are discharged.' Evidence of powers habitually exercised with the acquiescence of the directors of the bank deiines and establishes, as to the public, those powers — provided the charter is not violated.' He is the general financial agent. He acts, or is presumed to act, according to general practice, and the course of business; and this binds the bank in favor of one who possesses no other knowledge.' See Agent; Bane, S (3); Check; Deposit, 2. ■ Bliss V. Arnold, 8 Vt. 255 (1836). = Steward v. Scudder, 21 N. J. L. 101 (1853). ' Foley V. Mason, 6 Md. 49 (1854), cases. * Merchants' Nat. Bank of Memphis v. Nat. Bank of Commerce, 91 U. S. 95 (1875), Strong, J. See also 24 Am. Law Reg. 514-19 (1885), cases ; 20 Cent. 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; 69 id. 148; 9 Johns. 120; 19 id. 144; 39 Barb. 283; 1 Ohio, 189; 34 Pa. 344; 28 Gratt. 165. ' Merchants' Nat. Bank v. State Nat. Bank, 10 WaU. «50 (1870), cases,, Swayne, J. "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 (1879); Martin v. Webb, 110 id. 14 (1884); Xenia Bank v. Stewart, 114 id. 234 (1885); Knickerbocker Life Ins. Co. V. Pendleton, 115 id. 344 (188.5); Bostwick v. Van Voor- his, 91 N. Y. 353 (1883); Merchants' Bank v. Jeffries, 81 W. Va. 504 (1883); 20 Cent. Law J. 126-30 (1885), cases; 133 Mass. 23; Story, Agency, §§ 114-15; Whart. Ag. §§ 684-87; 3 Am. Law Eev. 612^0 (1869), cases; Bank. Mag., July, 1860. As to his signature, see Robinson v. Xanawha Valley Bank, 44 Ohio St. 448 CASK. See Empty. CASSETUR. See Quash. CAST. To transfer, invest with, place upon; as, in saying that the law casts the legal ownership of the property of an intes- tate upon the administrator, ^ or casts the es- tate upon the heir.^ Cast away. For a vessel to be lost, to be irrecoverable by ordinary means, to perish.' Casting vote. See Vote. CASTIGATORY. See Scold. CASTLE. See House, 1 ; Manor. CASUAL.* That which happens by acci- dent or is brought about by an unknown cause. Compare Regular. Casual ejector. A nominal defendant in the action of ejectment at common law. By a fiction he was supposed to have entered and ejected the lawful possessor.' Casual pauper or poor. A person who is assisted under the poor laws in a district other than that of his lawful settlement. Whence " casuals." See further Poor. Casualty. An inevitable accident, g. v. "Unavoidable casualty," in common use in leases, comprehends only damage or de- struction arising from supervening and un- controllable force or accident. By strict definition, an event or accident which human prudence, foresight, and sagacity cannot prevent." See Act, 1, Of God; In- surance. CASUS. L. A thing that happens: an occurrence ; a combination of circumstances ; an event ; a case, 5. v. Casus foederis. The case of the treaty: the case contemplated in a compact or con- tract.' Casus fortuitous. An inevitable occur- rence or accident. 8 Casus major. An unusual accident.^ See Accident ; Act, 1, Of God. Casus omissus. A case not provided for. A combination of circumstances overlooked. 1 143 Mass. 393; 52 Pa. 333; 7 Wheat. 107 2 36 Cal. 333. = 1 Wash. 373; 3 id. 382; 4 Dall. 413. * L. easualia, happening by chance. ' 3 Bl. Com. 303. « [Welles V. Castles, 3 Gray, 325 (1855), Bigelow, J. See also Thompson v. Tillotson, 56 Miss. 36 (1878). ' See 1 Kent, 49. ' See 3 Kent, 317, 300; Whart. Neg. §§ 113, 553. » story, Bailm. § 340. CATALOGUE 155 CAUSE or deemed unimportant, in a statute or a contract. Where the letter of a statute would have been en- larged to Include an occurrence, had the legislature foreseen it, the courts will bring the case within the spirit of the statute.' But, under this rule, a court may not go so far as virtually to make a law.^ Consimili easu. In like case. To quicken the diligence of the clerks in chancery, who were much attached to ancient precedents, it was provided by statute of Westm. S, 13 Edw. I (1285), o. 84, that when " in one case a writ shall be found in the chancery, and in a like case falling under the same right and requii-ing like remedy, no precedent of a writ can be produced, the clerks shall agree in form- ing a new one; and if they cannot agfee, it shall be adjourned to the next parliament." . . This pro- vision might have answered all the purposes of a court of equity.^ CATALOGUE. See Copyright. CATCHITfG. See Bargain. CATCHPOLE. Formerly, an officer, as a deputy-sheriff or a constable, who made an-ests. He was supposed to catch the prisoner by the poll — the head, or neck. The term now expresses contempt or derision. CATTLE.'' Domestic animals generally ; ai^imals useful for food or labor. " Sheep, oxen, swine, and horses, which we in gen- eral call cattle, may be estrays." ^ Not only domesticated horned animals, but also swine, horses, asses, and mules.^ In an indictment " steer " may be used for " cattle " or " neat cattle." ' 1 See 1 Shars. Bl. Com. 61 ; 2 id. 260; 4 id. 302. 2 See United States v. Union Pacific E. Co., 91 U. S. S5 (1875); Hobbs v. McLean, 117 id. 579 (1886). a 3 Bl. Com. 50-51. * L. L, catalla, movables. In old English, " cattle " had not that meaning, — Marsh, Eng. Lang. 246. From L. capitalis, the head or chief. Compare "pecun- ia-ry," and '* feud." When wealth consisted in heads of cattle (capita, capitalia), the word which desig- nated them came to include all kinds of property. In the Elizabethan age " quick cattle " meant live stock. In time " chattel " denoted dead, inanimate property; and " cattle " sensate possessions. Wiclif, in 1380, translated Luke viii, 44, " a woman that spendid all hir catel in leechis; " and Chaucer, in 1.388, wrote that &n avaricious man "hath hope in his catel." See Trench, Glossary, 29. » 1 Bl. Com. 298. 'See United States v. Mattock, 2 Saw. 149-51 (1872); Decatur Bank v. St. Louis Bank, 21 Wall. 299 (1874); Ohio, &c. E. Co. V. Brubaker, 47 111. 462 (1868); Toledo, &c. R. Co. V. Cole, 50 id. 186 (1869); Hubotter v. State, 32 Tex. 484 (1870); 27 id. 726; 45 id. 84. ' Staf« V. Lange, 22 Tex. 591 (1858); State v. Abbott, SO Vt. 537 (1848). Within the meaning of a penal statute, " buffaloes " may not be cattle.' See Animal; Damage-peasant; Feed; Fence; Heifer; Hog; Horse; Perishable; Provisions CAUCUS. See Bribery. CAUSA. L. That which operates to produce an effect ; that on account of which a thing is done ; that which supplies a motive, or constitutes a reason. Causa causans. The originating, effi- cient cause; the immediate cause. Causa causae causantis. The cause of the cause operating; i. e., the near, not the direct, cause, 2 See Cause, 1. Causa mortis. See Donatio, Mortis, etc. Causa proxima, non remota, speeta- tur. The near cause, not the removed, ia considered. See at length Cause, 1, Proxi- mate, etc. Causa sine qua non. A cause without which a thing cannot be or exist : as, a cause without which an injury could not have oc- curred.' Causa turpis. An unlawful motive or purpose : an immoral or illegal consideration. Ex turpi causa non oritur actio. Out of an illegal consideration an action cannot arise : no court will aid a party who founds his claim for redress upon an illegal act.* See further Delictum, In pari, etc. CAUSE. 1. Eng. (1) That which pro- duces or effects a result; that from which anything proceeds, and without which it would not exist. 5 Proximate cause. The nearest, the im- mediate, the direct cause ; the efficient cause ; the cause that sets another or other causes in operation ; the dominant cause. Remote cause. The removed, the distant, the in- direct, the intermediate cause. The law concerns itself only with the direct cause of an event — that force or influence which, in the order of causation, is nearest to the effect or result under consideration, and is sufficient of itself to produce the result. The principle is of frequent application in the law of insurance ; and in cases of involuntary negligence, as distinguished from wanton or intentional injuries. • State V. Crenshaw, 22 Mo. 458 (1856). ' See 12 Wall. 399; 96 U. S. 132; 4 Gray, 398. s 111 U. S, 241. « The Florida, 101 U. S. 43 (1879); 8 Pet. *539; 87 Ind. 2r3; 46 Iowa, 241. « Webster's Diet. CAUSE 156 CAUSE If we could deduce from the cases the best possible expression of the rule, it would remain after all to de- cide each case largely upon the special facts belonging to it, and often upon the very nicest discriminations. One of the most valuable criteria furnished by the au- thorities is to ascertain whether any new cause has Intervened between the fact accomplished and the al- leged cause. If a new force or power has intervened, of Itself suflQcient to stand as the cause of the mis- fortune, the other must be considered as too remote. ^ No difficulty attends the application of the maxim when the causes succeed each other in the order of time. When one of several successive causes is s,uffi- cient to produce the effect (for example, to cause a loss), the law will never regard an antecedent cause of that cause, or the causa caiisans, q. v. But when there are two concurrent causes, the predominating efficient one must be regarded as the proximate, when the damage done by each cannot be distinguished. Ajid certainly that cause which set the other in motion, and gave to it its efficiency for harm at the time of the disaster, must rank as predominant.'' What is the proximate cause of an injury is ordi- narily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attend- ing it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the move- ment, as in the of t/ited case of the squib thrown in the market-place/ The question always iiSfWas there an unbroken couTiection between the wrongful act and the injury, a continuous operation? Did the facts con- stitute a continuous succession of events, so linked to- ■ gether as to make a natural whole, or was there some new and independent cause interveniDg between the wrong and the injury? It is admitted thatfthe rule is difficult of application. But it is generally held that, to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of attending circumstances. y/\ We do not say .that even the natural and probable conse- quences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or non-feasance. They are not when there is a sufficient and iudepend; ent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the originator of the intermediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and prox- imate to it. The inquiry must, therefore, always be whether there was any intermediate cause, discon- nected from the primary fault, and self -operating, which produced the injury. Here lies the difficulty. ^ But the inquiry must be answered in accordance with 1 Mutual Ins. Co. v. Tweed, 7 Wall. 52 (1868), Miller, J. ; Travelers' Ins. Co. v. Seaver, 19 id. 542 (1873). 2 Howard Fire Ins. Co. v. Transportation Co., 13 Wall. 199 (1870), Strong, J. common imderstanding. In a succession of events an interval may always be seen by an acute mind be- tween a cause and its effect, though it may be so ini- perceptible as to be overlooked by a common mind. Thus, if a building be set on fire by negligence, and an adjoining building be destroyed without any negli- gence in the occupants of the first building, no one would doubt that the destruction of the second build- ing was due to the negligence that caused the destruc- tion of the fla-st. Yet in truth, in a, very legitimate sense, the immediate cause of the burning of the second building was the burning of the first. The same might be said of the burning of the furniture in the first. Such refinements are too minute for rules of social conduct. In the nature of things, there is in every transaction a succession of events, more or less depending upon those preceding, and it is the province of a jury to look at this succession of events or facts, and ascertahi whether they are naturally and probably connected with each other by a continuous seqtience, or are dissevered by new and independent agencies-, and this must be determined in view of the circum- stances existing at the time.i The question is not what cause was nearest in time or place to the catastrophe. The proximate cause is the efficient' cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the respon- sible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster. The proximate cause is the domi- nant cause, not the one which is- incidental to that cause, its mere instrument, though the latter may be nearest in place and time to the loss.^ The jury must determine whether the facts consti- tute a continuous succession of events, so linked to- gether that they become a natural whole, or whether the chain of events is so broken that they become in- dependent, and the finaL result cannot be said to be the natural and probable consequence of the primary cause — the negligence of the defendant.* When several proximate causes contribute to an accident and each is an efficient cause, without the operation of which the accident would not have hap- pened, it may be attributed to all or to any, of the causes.* That some agency intervenes between the original wrong and the injury does not necessarily bi'ing the cause within the rule. It is firmly settled that the intervention of a third person, or of other and new 1 Milwaukee, &c. R Co. v, Kellogg, 94 tf. S. 474-76 (1876), Strong, J. In this case a mill was destroyed by fire communicated from an eleyator, and to the ele- vator from a boat. 2 ^tna Fire Ins. Co. v. Boon, 95 XT. S. 130, 133 (1873), cases. Strong, J. See also Crandall v. Goodrich Transp. Co., 16 F. E. 75 (1883). • 3 Pennsylvania R. Co. v. Hope, 80 Pa. 377-78 (1876), cases, Agnew, C. J. ; Hoag v. Lake Shore, &c. R. Co., 85 id. 297-98 (1877), cases. 4 Ring V. City of Cohoes, 77 N. Y. 90 (1879), Earl, J.; Eeiper v. Nichols, 31 Hun, 495 (1884), cases CAUSE 157 CAUSE causes, does not preclude a recovery, if the injury was the natural and probable result of the original wrong.l Everything which induces or influences an accident does not necessarily and legally cause it. . There «au be no fixed rule defining a proximate cause. Much must depend upon the circumstances of each case.^ Strictly, the law knows no cause but a responsible human will. When such a will negligently sets in motion a natural force that acts upon and with sur- rounding conditions, the law regards such human action as the cause of resulting injury.' Whether a particular act of negligence is the prox- imate cause is a question of fact to be determined by the jury under instructions.' The unlawful act of a third person, though directly induced by the original wrong of the defendant, is not to be attributed to the original wrong as a proximate cause of the damage.* See Act.I, Of God; Blastimo; Consequences; Damages. (2) The occasion for action ; that by reason of which a thing is done ; reason or ground for action. The origin or foundation of a thing, as of a suit or action ; a ground of action.* ^ Cause of action. The right which a party has to institute and carry through a proceeding. 6 The act on the part of the defendant which gives the plaintiff his cause of complaint.'' Jurists have found it difficult to define a cause of action. It may be said to be composed of the right of the plaintiff and the obligation, duty, or wrong of the defendant.^ 1 Billman v. Indianapolis, &c. E. Co., 76 Ind. 16&-71 <1881). See also Louisville, &c. E. Co. v. Erinning, 87 id. 354-55 (1882), cases; 12 Bradw. 168, ' Spaulding v. Winslow, 74 Me. 534-35 (1883), cases. See also Jucker v. Chicago, &c. E. Co., 52 Wis. 152-63 <1881), cases; N .Y. Express Co. v. Traders' Ins. Co., 132 Mass. 382-85 (1882); Nelson v. Chicago, &c. E. Co., 80 Minn 77 (1882); Eansier v. Minneapolis, &c. E. Co., 33 id. 334 (1884), cases; Georgetown, &c. E. Co. v. Eagles, 8 Col. 547 (1886), oases; 14 Pet. 99; 10 Wall. 191; 66 Ga. 750; 4 Gray, 412; 76 Mo. 393; 3 Kent, 374; 4 Am. Law Eev. 201-16 (1870), cases; 4 South. Law Eev. 759-68 (1878), cases; Whart. Neg. § 78. "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 away, from which a second building, two hundred feet distant, took fire, and from that the buUdmg in suit, sixty feet distant. See' same and other cases, 25 Am. Law Eeg. 668-70 (1886). 4 The Young America, 81 F. R. 753 (1887), cases, Wallace, J. s United States v. Rhodes, 1 Abb. 0. C. 33 (1866): Burrill. « [Meyer v. Van CoUem, 28 Barb. 231 (18=8). 'Jackson "J. Spittall, L. E., 5 C. P. *553, 544 (1870), Brett, J. e Veeder v. Baker, 83 N. Y. 160 (1880), Earl, J. See A wrong committed or threatened.! A plaintiff must show himself entitled to the relief called for by the facts stated in his complaint. The allegations, the evidence, and the findings should cor- respond in legal intent.' The expression implies not only a right of action, but that there is some person in existence who is qual- ified to institute process. The right must be capable of being legally enforced; and so there must be a per- son to be sued.'' The elements are : a right possessed by the plaintiff, and an infringement of such right by the defendaht' Where the distinction between " trespass " and " case " is abolished, the plaintiff in his petition may present such facts as show a blending of those com- mon-law forms of action. 3 Bee LiMiTATmN, 3, Stat- ute of. To " show cause of action " is to exhibit the facts upon which a right of action rests. The practice is resorted to in actions of tort to reduce the amount of bail required, as where it will appear that the causa of action is purely technical or is of a very ordinary nature. See Meritorious; Split. Tor cause. See Challenge, 4; Re- move, 3. Good, cause. Has no certain rneaning in a stipulation for canceling a contract.* Probable cause. Within the meaning of the law relating to actions for malicious prosecutions, — a reasonable cause of suspi- cion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.5 Such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the per- son arrested is guilty.^ The existence of such facts and circum- stances as would excite the belief in a rea- sonable mind, acting on the facts within the knowledge of the prosecutor, that the person also Eodgers v. Mutual Endowment Association, 17 S. C. 410 (1881). 1 Miller v. Hallock, 9 Col. 453 (1886), cases. Beck, C. J. n Fruitt V. Anderson, 13 Bradw. 430 (1883). 3 Atchison, &c. E. Co. v. Eice, 36 Kan. 600 (1887), Valentine, J. 1 Cummer v. Butts, 40 Mich. 3-32 (1879). » Munns v. Dupont, 3 Wash. 37 (1811), Washington, J. ; 2 Denio, 617; 97 U. S. 645; 37 Md. 318, 331. Bacon v. Towne, 4 Cush. 238 (1849), Shaw, C. J. See also Mitchell v. Wall, HI Mass. 497 (1873); Heyne r. Blair, 62 N. Y. 32 (1876); Staoey v. Emery, 97 U. S. 645 (1878), CAUSE 158 CAUTION charged was guilty of the crime for which he was prosecuted.i When information as to the commission of a crime is believed, and is such, and from such sources, that the generality of business men of ordinary care, prudence, and discre- tion would prosecute upon it under the same , conditions. 2 The constitutional provision that a warrant of ar- rest can issue only " upon probable cause, supported by oath or affirmation," contemplates an oath or af- firmation by the person who, of his own knowledge, deposes to the facts which constitute the offense; the mere belief of the affiant is insufficient. ^ , "Probable cause for making an information " does not mean actual and positive cause. The complaint may be made upon information and belief.* Prize courts deny damages or costs where there has been probable cause for a seizure. Probable cause exists where there are circumstances sufficient to warrant a reasonable ground of suspicion, even though not sufficient to justify condemnation.^ There is no substantial difference between " prob- able cause " and " reasonable cause " of seiziu-e.* See PROSECtfTioN, Malicious. Beasonable cause. A fact which would suggest to persons of average intelligence the same inference or action ; such facts as would constrain a person of ordinary caution and sagacity to pursue a particular course of conduct; legal cause or excuse; probable cause. In the law of homicide, reasonable cause or ground to apprehend harm or death. A bare fear, unaccom- panied by any overt act indicative of the supposed intention, will not warrant a killing, if there is no actual danger.^ See further Defense, 1. The reasonable cause which will justify a husband or wife in abandoning the other is, in Pennsylvania at least, that which would entitle the party so separating himself or herself to a divorce. '^ See Abandon, 2 (1). Keasonable cause to believe a debtor insolvent ex- ists when the condition of his affairs is known to be such that prudent business men would conclude that I Wheeler v. Nesbltt, S4 How . 5B1-52 (1860), Clifford, J. • [Hamilton u. Smith, 39 Mich. 226-29 (1878), cases, Graves, J. See also Burton v. St. Paul, &c. E. Co., 33 Minn. 191 (t885), cases; 1 Am. Ld. Cas. 213; 28 Ind. 67; 12 Bradw. 635; 52 Me. 505; 76 Mo. 670; 20 Ohio, 129; 28 Iowa, 49; 45 Tex. 544. ' United States v. Tureaud, 20 F. E. 623-24 (1884), cases, Billihgs, J. See also Swart v. Kimball, 43 Mich. 451 (1880). 4 State V. Davie, 62 Wis. 308 (1885). s [The Thompson, 3 Wall. 163 (1865), cases, Davis, J. " Stacey v. Emery, 97 U. S. 646 (1878). ' Wiggins V. People, 93 U. S. 478-80 (1876), cases, Clif- ford, J. 6 Gordon v. Gordon, 48 Pa. 334 (1864); Butler v. But- ler, 1 Pars. Sel. Cas. Eq. 337 (1849). he could not meet his obligations as they mature in the ordinary course of business.* A recital in the certificate of a magistrate that " satisfactory cause " has been shown for issuing a warrant of arrest is not equivalent to a statement that he is satisfied that there is "reasonable cause" to believe that the charge contained in the preliminary affidavit is true." To avoid, as a fraudulent preference in the Bank- rupt Act, a security taken for a debt, the creditor must have had such knowledge of facts as to induce a reasonable belief of his debtor's insolvency. . . Eeasonable cause " to believe " and " to suspect " are distinct, in meaning and effect.^ See Prefer, 2. (3) An action at law, a suit at law or in equity; a judicial proceeding'. In any legal sense, action, suit, and cause are convertible terms.* " Case " is more limited, importing a collection of facts with the conclusions thereon. A ' ' cause ' ' pends, is postponed, appealed, removed; whereas a "case" is made, vested, argued, decided, etc.^ See Action, 2; Aduirai,T7;. Case, 2; Chancery; Joinder; Suit; Title, 2. 2. Fr. A case; a trial. Cause eelebre. A celebrated trial ; plural, causes cdebres. In French law, resembles a " State trial " in English law. Among English and American writers, a trial, or a reported case, famous for the parties and the facts involved. CAUSEWAY. See Bridge. CAUTELA. L. Caution; providence; care; heed. Ad majorem cautelam. For the sake of the greater caution. Ex abundant! eau- tela. Out of extreme caution. Ex majors cautela. By way of greater vigilance. Applied to the use of apparently superfluous words and the doing of things seemingly supererogatory, from an apprehension that otherwise some right may be yielded or prejudiced, some power or privilege waived, or an estoppel created: as where formal, technical, and synonymous terms are employed in instruments; where slightly varying averments are made in pleading: where special statutory power to do a thing is conferred, on the supposition that power may not already exist." CAUTIOH'. Attention to the effect of a thing about to be done; regard to contin- gencies; forethought; care. See Cautela. i Merchants' Nat. Bank v. Cook, 95 U. S. 346 (1877), cases. Hunt, J. ; Dutoher v. Wright, 94 id. S57 (1876) cases; Stucky v. Masonic Bank, 108 id. 74 (1883). ' May V. Hammond, 144 Mass. 152 (1887), cases. ' Grant v. First Nat. Bank of Monmouth, 97 U. S. 81 (1S77), Bradley, J. * Exp. Milligan, 4 Wall. 112 (1866), Davis, J. 6 18 Conn. App. 10. « 6 Wheat. 108; 2 Saw. 150; 59 Pa. 333. CAVEAT 159 CENSUS Cautionary. By way of warning ; made or done in anticipation of a change in cir- cumstances; providing for an adverse con- tingency. Cautionary judgments may sometimes be entered or confessed to bind lands or to charge special bail. Cautionary orders are intended to provide for in- demnity against loss by reason of an injunction issued, i CAVEAT. L. Let liim take heed; let him beware. A formal notice or warning to an officer or a court not to do a specified act ; as, not to probate a will, grant letters of administra- tion, issue letters-patent for an invention or for land, — until the person procuring the order can be heard in opposition to the con-, templated act or proceeding.2 Caveator. He who interposes a caveat. Caveatee. He against whom a caveat is interposed. Protects the rights of one person against rights wliich, without it, might arise in favor of another person out of the proposed proceeding. Thus, for example, it secm-es time to perfect an invention without the risk of a patent being granted to another — allows an opportunity to show priority of invention and title.' Caveat actor. Let the doer beware. Caveat emptor. Let the buyer beware. .A purchaser of property must examine and ' judge for himself as to its title and quality, unless dissuaded by representations. In the absence of fraud or an express warranty, the purchaser of realty has no relief against a defect in the title, or for the unsuitableness of the land for a particular purpose, either of wliich an examination, which he was free to make, would have revealed. And so as to personalty, in the absence of imposition or of an express assurance, no warranty of title or of quality is implied. The maxim does not apply where a specific article is ordered for a known pui-pose, nor where merchandise is sold not by sample nof.under the Inducement of an express warranty, but with op- portunity for thorough inspection. In other cases a warranty te implied that the article will reasonably answer the purpose for which it is ordinarily used. Where there is neither fraud nor warranty, and the buyer receives and retains the goods without objec- tion, he waives his right to object afterward. Where the buyer has no opportunity to inspect, and no war- ranty is given, the law implies the condition that the thing shaU fau-ly answer the description in the con- tract.* The fundamental inquiry is whether, under the cir- cumstances of the ease, the buyer had the right to rely and necessarily relied upon the judgment of the seller.' The rule applies to a purchaser at a judicial sale: he takes the defendant's interest only.'' SeeCoMMENnATio; Deceit; Dictum, Gratis; Fraud, Actual ; Sale, Judicial ; Sample ; Sound, 8 (2). Caveat venditor. Let the seller take heed. This maxim of the civil law expresses a doctrine contrary to the rule of caveat emptor of the common law. An implied warranty of title on the sale of a chattel is common to both systems; but while in the civil law a fair price implies a warranty also of the soundness of the article, by the common law, as seen above, to make the vendor answerable for the quality there must be either an express warranty or fraud on his part. The civil law maxim applies to executory sales, to contracts for goods to be manufactured or produced, and to sales where the buyer has no oppor- tunity to inspect the article purchased.' Caveat viator. Let the traveler take care. A traveler upon a highway must use reasonable care in detecting and avoiding defects in the roa4.* See Sidewalk; Street. CEASE. See Ratio, Cessante, etc. Where a lot was to revert if a school -house ' ' ceased " to stand on it for two years, and none was built, held, that the lot did not revert. A thing cannot " cease " until after it has begun.' Insurance conditioned to be void if the premises " cease to be operated " as a factory was held not void because of a temporary suspension on account of yel- low fever.' CEDE. See Cession. CEMETERIES. See Burial. CENSUS. A rating, numbering, valu- ing, assessing. " Representatives and direct Taxes shall be appor- tioned among the several States . according to their respective numbers. . The actual Enumera- tion shall be made withui three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct." ' In connection with the ascertainment of the num- ber of inhabitants, the act of Congress provides for ta- quiries as to age, birth, marriage, occupation, and IE. S. §718. > See Slocum v. Grandin, 38 N. J. E. 488 (1884). >R. S. §4902. * Miller v. Tiffany, 1 Wall. 309 (1863); Barnard v. Kel- logg, 10 id. 388 (1870); 2 Kent, 478; 1 Story, Eq. § 212; 3 Bl. Com. 165. ' Kellogg Bridge Co. v. HamUton, 110 U. S. 116, 112-15 (1884), cases; Wissler v. Craig, 80 Va S3 (1885): BurweU V Fauber, 31 Gratt. 463 (1871), cases. >Oslerberg v. Union Trust Co., 93 U. S. 428 (1876); 105 111. 339. ' See Wright v. Hart, 18 Wend. 453 (1837), Walworth, Ch.; ib. 432; Hargous v. Stone, 5 N. Y. 81-84 (1851), * Cornwell v. Commissioners, 10 Exoheq. •774 0855). « Jordan v. HaskeU, 63 Me. 192 (1874). • Pass V. Westei-n Assurance Co., 7 Lea, 707 (1881). 7 Constitution, Art. I, sec. 2, cl. 3. See R. S. tit. XJCSI. CENT 160 CERTIFICATE other matters of general interest. For a refusal to answer an inquiry a small penalty is imposed. There is no attempt to inquire into private affairs, nor are the courts called upon to enforce answers to inquiries. Similar inquiries usually accompany the taking of a census of every country, and they are not deemed to encroach upon the rights of the citizen.^ CETTT. See Coin. CENTER. See Filum ; Road, 1 ; Street. CEPI; CEPIT. See Capebb, Cepi, Cepit. CERA. See Seal, 1. CERTAIN. Known, established, definite : as, a certain date, a certain instrument. See Certum ; Custom ; Debt. Since " uncertain " may include any doubt, whether reasonable or unreasonable, a jury should not be told that if they feel uncertain that a witness is to be believed, they should acquit." Certainty. 1. Assurance; confident be- lief: freedom from doubt or failure; also, that which is established beyond question. Compare Contingency ; Then : When. The certainty of the law is of the highest conse- quence. See Hardship. - Moral eertaintu. A state of impression produced by facts in which a reasonable mind feels a sort of coercion or necessity to act in accordance -with it.^ The phrase, borrowed from the publicists and meta- physicians, signifies only a very high degree of prob- ability. . Proof bsyond a reasonable doubt is proof to a moral certainty, as distinguished from an absolute certainty. As applied to a judicial trial for crime, the two phrases are synonymous and equiva- lent; each has been used by eminent judges to explain the other.* See further Doubt, Reasonable. 3. Distinctness, accuracy, clearness of state- ment ; opposed to uncertainty and ambigu- ity, q. V. Generally refers to written language. In pleading, statement of alleged facts so clear and explicit as to be readily understood by the opposite party who is to make answer, by the jury which is to find the truth, and by the court which is to pronounce judg- ment. ^ Consists in alleging the facts necessary to be stated, so distinctly as to exclude ambigu- » Be Pacific Railway Commission, 38 F. E. 250 (1S87), Field, J. ; R. S. § 2171. « State V. Ah Lee, 7 Oreg. 258 (1879). s Montana v. McAndrews, 3 Monta. 165 (1878), Wade, C. J.: Bur. Giro. Bv. 199. * Commonwealth v. Costley, 118 Mass. 23 (1875), Gray, C. J. See also United States v. Guiteau, 10 F. K. 164 ity and make the meaning of the averments clearly intelligible.' ■ Three degrees of certainty were formerly recog- nized: Certainty to a common intent— words used in their ordinary sense, buf susceptible of a dif- ferent meaning. This degree was required in defenses and in instruments of an ordinary nature. Certainty to a certain intent in general — the meaning as- certainable upon a fair and reasonable construction, without recurrence to possible facts which do not ap- pear. This degree was required in indictments and declarations. Certainty to a certain intent in particular — such technical accuracy of statement as precluded all question, inference, or presumption. This was required in estoppels and as to disfavored » See Andrews v. Whitehead, 13 East, 102, 107 (1810). A negotiable instrument must have certainty as to payor, payee, amount, time, fact of payment, and, perhaps, place of payment.* A postal card containing the words " Send us pice of counter screen " was held to present a case of in- curable uncertainty; and the judge properly refused to submit to the jxny to determine whether " pice " meant " piece " or " price." * CERTIFICATE.5 A writing giving as- surance that a thing has or has not been done, that an act has or has not been per- formed, that a fact exists or does not exist. To " certify " is to testify to in writing: to make known or establish as a fact. The word is not essential to a "certificate : " it is enough that the law calls a statement a cer- tificate.6 See Check, Certified. Certificates are such as are authorizetj or required by law, and such as are purely voluntary. " Author- ized or required by law "are: a certificate of a bal- ance due, of costs, of a divorce, that a married .woman has been decreed a feme sole trader, that a bailkrupt has been discharged, that an alien has been naturalized, that a physician is qualified to practice medicine; a certificate of copyright, or of a trade- mark registered; a certificate that a document is au- thentic, or genuine; an officer's return of service of proc^^ "Voluntary" certificates include: ceitlfl- eates of benefits receivable, of check, of deposit, of interest, of loan, of no defense, of search, of stock, of scrip, of transfer, a receiver's certificate, qq. v. Voluntary certificates are not conclusive evidence of the facts they state, except where, otherwise, an innocent party would be the loser. Certificates re- quired by law of ofloers are conclusive of the facts 1 [Gould, Pleading, IV, sec. 24. ' See Coke, Litt. 303 a; Gould, Plead, m, sec. 52; Steph. Plead. 380; 3 Cranch, 0. C. 56; 5 Conn. 423; 9 Johns. 314. "See 1 Parsons, Notes & Bills, 30, 37; 34 Am. Law Reg. 719-24 (1885), oases; 69 Iowa, 649. < Cheney Bigelow Wire Works v. Sorrell, 142 Mass 442 (1886). ° L. certificatus, assured, made certain. « State V. Sohwln, 65 Wis. 218 (1886): Webster. CERTIORARI 161 CESSION mentioned, but fraudulent procurement may be shown. Certificates authorized by statute are evidence of such facts only as the offlcei' may certify under the statute. ' 3. A writing made by a court, a judge or an officer tliereof, and properly autlienti- cated, to give notice to another court of a thing done in the court a quo. See Opin- ion, 3, Division of. CEBTIORABI. L. To be certified. A writ by which the record of a proceeding in a lower court is removed into a higher court for review. The emphatic word in the Latin writ, which read: quia certis de causis certiorari volumus, tor as much as concerning certain causes we wish to be certified. From certior, the comparative of certvs, Imown, established. See Certum. After indictment found, a writ of certio- rari facias [that you cause to be certified] maybe had to certify and remove the indict- ment, with all the proceedings thereon, from any inferior court of criminal jurisdiction into the court of king's bench.^ The writ, at common law, issued out of chancery or the king's bench, directed, in the king's name, to the judges or oflicers of the inferior courts, commanding them to re- turn, before him, the record of a cause de- pending before them, that the party may have more sure and speedy justice or such other justice as he shall assign to determine the cause.' The writ has been extended, and the practice under it regulated, by statutes in each State. Speaking gen- erally, it is employed for removing statutory proceed- ings for completion, when the lower court fails to do so; it serves as an auxiliary process to obtain a full return to other process; it effects a review of the de- terminations of special tribunals, commissioners, and magistrates; it secures an inspection of the record where a writ of habeas corptis has been siq^out. t7nless a statute directs otherwise, or palpable injus- tice will be done, it does not lie to review a decision based on a matter of fact, nor as to a matter resting in discretion; nor does it lie for an error in formality, substantial justice being dispensed. The application for the writ must disclose a proper case upon its face. The plaintiff may have to furnish security for the demand, with interest and costs, be- fore the writ will operate as a supersedeas, q. v. The judgment is that the proceedings be quashed or affirmed, in whole or in part. At common law neither party recovered costs. At common law, also, the writ was granted to a ' See 1 Whart. Ev. §§ 120-86, cases; 10 Oreg. 847. '4B1. Com. 380. a [Dean v. State, 63 Ala. 154 (1879); 18 Fla. 523; 15 Blatch. 386; 108 U. S. 31. (11) _ prosecutor as a matter of right, and to a defendant as a matter in discretion.* Will not, in general, be issued where the party has another remedy, as by appeal." Bill of certiorari. An original bill, in equity, to remove a cause into a higher court. States the proceedings in the lower court, the in- competency in the powers of such court to do com- plete justice, etc. Rarely used in the United States." CERTUM. L. Perceived, determined: definite, known, certain. Certum est quod certum reddi po- test. That is certain which can be made certain — or reduced to a certainty. When the law requires certainty, that is accepted for certainty which, by computation or testimony, can be shown to be already certain; as, in questions re- specting the_sum to be paid on a negotiable instru- ment, the liquidation of damages for non-performance of a contract, reasonable time, and the like.* CESSANTE. See Ratio, Cessante, etc. CESSER,. A ceasing ; formerly, neglect llpf duty. Also, a yielding up, a cession, q. v. : as, thfe cesser of an interest conferred by a wijl.s CESSIO. L. A giving up ; surrender. See, Cession. Cessio taonorum. A surrender of goods. In civil law, an assignment for the benefit of creditors. Discharged the debtor to the extent of the property made over; and exempted him from imprisonment. French, cession des bi&is.^ CESSION. A yielding up; transfer. See Cessio. Cede: to give up, yield up.'' Compare Abandon, 1. Concession. A grant, as of lands, be- tween sovereignties. Recession. A re- conveyance by a sovereign. Thereby public property passes from one govern- ment to the other, but private property remains as before, and with it those municipal laws which are designed to secure its peaceful use and enjoyment. As a matter of course, all laws, ordinances, and regula- tions in conflict with the political character, institu- ' See 4 Bl. Com. 321 ; Exp. Hitz, 111 U. S. 766 (1884). 'Alabama Great Southern R. Co. v. Christian, 82 Ala. 309 (1886), cases. ' Story, Eq. PI. § 298; 2 Hale, PI. Cr. 215. * See 1 Bl. Com. 78; 2 id. 143; 2 Kent, 480; 2 Black, 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. »91 U. S. 724. "See 2 Bl. Com. 473; 1 Kent, 422; 15 Wall. 605; 32- F. R. 1. ' Somers v. Pierson, 16 N. J. L. 184 (1837). CESTUI 162 CHALLENGE tions, and constitution of the new government are at once displaced.^ See Land, Public; Pueblo. CESTUI. He ; that one ; the one. Also spelled cesiuj/. See Addenda^- // ^ Pronounced cgst-we. A law- Erench term,' corre- sponding to the classic French c' est lui {ceXu€): it is for him that, etc. Plural, cestuis. Cestui que trust. He for whom a trust exists, or was created : the beneficiary under a trust.2 The que is pronounced kS. See further TRttsT, Cestui, etc. Cestui que use. He for whom a use — exists : he for whose benefit land is held by another.' See further Use, 3, Cestui, etc. Cestui que vie . He for whose life — land is held by another : * he whose life measures the duration of an estate.^ CP. An abbreviation of the Latin con- ferre, compare. Used in references to analogous cases or subjects. CH. An abbreviation of chancellor, chap- ter, chief. CHALN". See Absteaot; Evidence, Cir- cumstantial ; OBLiaATION, 1. It is incorrect to speak of a body of circumstantial evidence as a "chain," and allude to the different circumstances as the "links." A chain cannot be stronger than its weakest link. The metaphor may perhaps be correctly applied to the ultimate and es- sential facts necessary to conviction in a criminal' case; but it is not true that every minor circumstance introduced to sustain the ultimate facts must be proven with the same degree of, certainty.^ CHAIBJVLAIT. See Desceiptio, Persoiise. CHALLENGE.' 1. A request to fight — to fight a duel. Whether made by word or letter, is indictable at common law. Tends to a breach of the peace. He who knowingly carries «■ challenge for , another is guUty of the offense." See Phize-mght. 2. Objection to the legality of a vote about to be cast. See Ballot. 3. Objection to a cause being tried before a particular judge on account of alleged bias, prejudice, interest, or other disquali- fication. ' Chicago & Pacific R. Co. v. McGlinn, 114 U. S. 547 (1885), Field. J. 2 3 Bl. Com. 328. >2 Bl. Com. 338; 4 Kent, 301; 1 Washb. E. P. 103. *3B1. Com. 123; j6. 46'l. » [1 Washb. E. P. 88. " Clare V. People, 9 Col. 133 (1886), Helm, J. ' Mid. E. chalenge^ a claim: F. chalotige, a dispute, accusation. « See 4 Bl. Com. 160 ; 3 East, 581 ; 6 Blackf . 30 ; 1 Dana, 524. 4. Objection to a juror or jurors drawn to try a cause. Challenge to the array. An exception to the whole panel in which the jury are arrayed or set in order by the sheriff in his return. 1 The reason which, before awarding the venire, would be sufficient to cause it to be directed to the coroner or to elisors, will be sufficient to quash the array when made by an officer of whose partiality there is any fair ground of suspicion; also, if the sheriff arrays the panel under the direction of either party, i Challenge to the polls. An exception to particular jurors. Lies for any matter showing disqualifica- tion. Also known as " principal challenge" and as the " challenge for cause." Challenge for cause. For which a reason is assigned, — to the array or to the polls. An objection to a particular juror; and may be "general" — that he is disqualified from serving in any case, or "particular" — that he is disqualified froin serving in ttie action on trial.* Vhallenge for favor. Of the same nature and efiEect as a principal challenge "propter affectum." Peremptory challenge. For which no rea- son is assigned. Principal challenge. 1. "Propter defec- tum " — for disability : as, alienage, infancy, unsound mind, insu'fiicient jsroperty. 3. " Propter affectum " — for bias or partiality : as, opinion formed ; of kin to a party, or of the same fraternity or corporation ; his attor- ney, servant, or tenant, or entertained by him ; promised money for verdict ; sued by exceptant in an action involving legal mal- ice ; being formerly a juror or an arbitrator in the matter ; influenced by scruples against the punishment. 8. "Propter delictum" — for an offense committed: as, convicted of treason, forgery, perjury, or otlier crimen falsi.3 A jiu-or unsuccessfully challenged for cause maybe challenged peremptorily. In felonies, at common law, thirty-five peremptoi-y challenges were allowed the accused; at present the number is about twenty in capital cases; in civil cases, if allowed at all, o^ly to a very limited extent. The State is allowed peremp- toiy challenges in capital cases, the number varying in the different States. When a challenge for bias, actual or implied, is dis- allowed, and the juror is peremptorily challenged and ' 3 Bl. Com, 359. 'Cal. Penal Code, § 1071; 70 Oal. 11. " See 8 Bl. Com. 361-63; 4 id. 362; 29 Kan. f E. 162. 0; 17 S. & CHAMBER 163 CHAMPERTY excused, and a competent juror is obtained in his place, no injury is done the accused, if, until the jury is completed, he has other peremptory challenges which he can use.^ Experience has shown that one ot the most effective means to free the jury-box from men unfit to be there is the exercise of the peremptory challenge. . . The number of challenges must necessarily depend upon the discretion ot the legislature, and may vary accord- ing to the condition of different communities, and the difficulties in them of securing intelligent and impar- tial juries. Originally, by the common law, the crown could challenge peremptorily without limitation as to num- ber. By an act passed in the time ot Edward I, the right was restricted to challenges for cause. But, by rule of court, the crown wrfs not obliged to show cause till the whole panel was called. Those not accepted on the call were directed to stand aside; and if a full jury was not otherwise obtained, the crown was re- quired to show ^ause against those jurors; if no suffi- cient cause appeared, the jury was completed from them. The right to challenge is the right to reject, not to select, a juror. If from those who remain an impar- tial jury is obtained, the constitutional right of the ac- cused is maintained.^ Challenges are to be made before the jury is sworn. In the Federal courts the justness of a challenge is determined by the judge, without the aid of triors." See Jurt; Opiniox, 2; TRmas; Voia DraE. CHAMBER. A room in a house, used for purposes of a dwelling, of an office, or of a court. See House, 1 ; Stak-Chambeb ; Survey, Of land. Chambers. In London, the offices of bar- risters. Chambers, or at eham.bers. A private room or other place where parties may be heard and orders made by a judge, in such matters as the law does not require shall be considei-ed in open court or by a full court. Of such are acts done in a court room while the court is not in session. Jurisdiction at chambers Is incidental to and grows out of the jurisdiction of the court itself. It is the power to hear and determine, out of court, such ques- 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 of a single judge, out of court, without requiring them to be brought before the court in actual session. It follows that th« jurisdiction of a judge at cham- bers cannot go beyond the jurisdiction of the court to > Spies -B. Illinois (The Anarchists' Case), 123 U. S. 168 (Nov. 2, 1887), Waite, C. J. ; Hopt v. Utah, 120 id. 436 (1887). 'Hayes v. Missouri, 180 U. S. 70-71 (1887), cases, Field, J. 8 E. S. § 819; Reynolds v. United States, 98 U. S. 157 (1878). which he belongs, or extend to the matters with which his court has nothing to do.' "A judge at chambers" is simply a judge acting out of court.' See Vacation. CHAMPERTY.3 A bargain with a plaintiff or defendant, eampum partire, to divide the land or other matter sued for be- tween them, if they prevail : whereupon the champertor is to carry on the party's suit at his own expense. . . The purchasing of a suit or right of suing.* Champart, in the French law, signifies a similar division of profits, being a part of the crop annually due to the landlord by bargain or custom. * Champertor. One who purchases or pro- motes another's suit; a person chargeable with champerty. Champertous. Infected with champerty. Champerty is the unlawful maintenance of a suit in consideration of some bargain to have a part of the thing in dispute, or some profit out of it.' A common example is (or was) the case of a con- tract by an attorney to collect a claim for a percent- age.' Also of a champertous character are: purchases of demands involving litigation, of pretended titles, and like claims which cannot be realized upon except by lawsuit.' As between an attorney and his client, it is essen- tial that the attorney prosecute the suit at his own expense. 8 , Where the right to compensation is not confined to an iDterest in the thing recovered, but gives a right of action agamst the party, though pledging the avails of the suit as security tor payment, the agreement is not champertous.^ Some courts have ruled that if the fact that a suit is being prosecuted upon a champertous contract comes to the knowledge of the court in any proper manner, it should refuse longer to entertain the proceeding. Other coiu-ts have held, what seems supported by the better reason, that the fact that there is a champer- tous contract for the prosecution of a cause of action is no ground of defense thereto, and can only be set up by the client against the attorney when the cham- pertous agreement is sought to be enforced. . The tendency is to relax the common-law doctrine so as to ' Pittsburg, Ft. W., &c. E. Co. v. Hurd, 17 Ohio St. 146-47 (1866). " Whereatt v. Ellis, 65 Wis. 644 (1886). ' Sham'-perty. « 4 Bl. Com. 163. See a Story, Eq. § 1048; 4 Hughes, 683; 10 F. E. 633; 63 Ind. 317; 22 Wend. 405. <■ Stanley v. Jones, 7 Bing. '377 (1831), Tindal, C. J. « See Ackert v. Baker, 131 Mass. 437-^ (1881), cases; McPherson v. Cox, 06 U. S. 404, 416 (1877); Atchison, &c. E. Co. V. Johnson, 29 Kan. 227 (1883), cases. ' 2 Story, Eq. §§ 1048-57. sphUlips V. South Park Com'rs, 119 111. 637 (1887). 9 Blaisdell v. Allen, 144 Mass. 335 (1887), cases. CHANCE 164 CHANCERY permit greater liberality of contracting between at- torney and client than was formerly allowed, for the reason that the condition of society which gave rise to the doctrine has, in a great measure, passed away. In some States the common-law rule is altogether re- pudiated.^ The English common law and statutes against maintenance and champerty had their origin, if not their necessity, in a different state of society from that which prevails at the present time. When the doc- trine was established, lords and other large land- holders were accustomed to buy up contested claims against each other, or against commoners with whom they were at variance, in order to harass and oppose those in possession. On: the other hand, commoners, by way of self-defense, thinking that they had title to land, would convey part of their interest to some powerful lord, in order, through his influence, to se- cure their pretended right. The want of sufficient written conveyances, and records of titles, and the feudal relation of villein and liege lord, afforded facil- ities for the combinations and oppressions which fol- lowed this state of things. The power of the nobles became mighty in corrupting the fountains of justice. To remedy these evils, the law against both mainte- nance, and champerty was introduced.'^ CHAI^CE. A thing happens by chance to a person which is neither brought about norpre-estimated by his undei-standing.' See Game, 2; Medley. CHANCELLOR." 1. In England, sev- ei-al officers bear this name. Chancellor of tlie exchequer. A high officer of the crown, who sometimes sat in court, sometimes in the exchequer chamber, and, with the regular judges of the court, saw that matters were conducted to the king's advantage. His chief duties now concern the management of the royal revenue. Under the Judicature Act of 1873, he is de- prived of his judicial functions.^ See Ex- chequer. 'Courtright v. Burnes, 13 F. E. 317 (1883), cases, McCrary, J.; ib. 328-29, oases; s. o. 3 McCrary, 63, fi8-75, cases. See generally Fowler v. CaUam, 102 N. Y. 397 (1886). 'Hovey v. Hobson, 51 Me. 64 (1863), Dickerson, J. See also S9 Ala. 680; 70 id. 118, 179; 17 Ark. 624; 40 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. 198; 4 Duer, 375; 13 Ohio St. 175; 3 Baxt. 457; 39 Wis. 506; 19 Alb. Law J. 468-69 (1879), cases; 19 Cent. Law J. 402-8 (1884), oases; 34 id. 198 (1887), cases. ' [Goodman v. Cody, 1 Wash. T. 335 (1871). * F. chaticelier: L. L. cancellariuis; a cancellando, from canceling — illegal letters-patent, — 4 Coke, Inst. 88; 3 Bl. Com. 46. He stood near the screen, cancellus, before the judgment seat,— Skeat. See also 1 Camp- bell's Lives Ld. Ch. 1-3. »3B1. Com. 44, 55. Lord chancellor. The presiding judge in the court of chancery. In the courts of the Roman emperors he was a chief scribe or secretary, afterward invested with judicial powers and supervision over other officers. From the empire the name passed to the church: every bishop had a chancellor, the principal judge of his consis- tory. And when the modern kingdoms were estab- lished, almost every state preserved its chancellor, with different jurisdictions and dignities. In all of them he had supervision of such instruments of the crown as were authenticated in the most solemn man- ner. When seals came into use he had the custody of the king's great seal.^ The office. is created by delivery of the king's great seal into the custody of tjie nominee. -He becomes a privy counsellor by his office and prolocutor of the house of lords by prescription. He appoints all justices of the peace. Being formerly an ecclesiastic, presiding over the king's chapel, he b^pame keeper of the king's conscience, visitor to all hospitals and col- leges of the king's founding, and patron of certain of the king's livings. He is the general guardian of all infants, idiots, and lunatics ; he superintends all chari- table uses. These powers belong to him apart from the extensive jurisdiction he exercises in his judicial capacity in the court of chancery. • See Chancery, 1 ; Woolsack. Vice chancellor. One of a class of equity judges who held court independently of the lord chancellor, but whose decisions were re- viewable in his court. They perhaps orig- inally acted in his place. 3. In the United States, the judge of a court of equity. As a judicial title, in use in Alabama, Del- aware, Kentucky, Mississippi, and New Jersey. See Chancery, 3. 3. A person sitting as a judge in equity ; as in saying that a circumstance in a case would cause a " chp,ncellor " to hesitate to enter a decree in favor of a particular person. See Title, Marketable. CHANCEB,Y.2 1. In England, the high- est court next to parliament. Originally consisted of two distinct tribu- nals : an ordinary court, or court of common law ; and an extraordinary court, or court of equity. The "ordinary court" was the more ancient. It had jurisdiction in proceedings to cancel letters- patent, in cases of ti-averse of office, and the like; and of personal actions against officers of the court. Whenever any such cause came to an issue of fact, the chancellor, having no power to summon a jury, > 3 Bl. Com. 46, 47, 49. ' Chancelry: L. L. cancellaria, the record-room of a chancellor,— Skeat. L. cancelli, bars, lattice — to keep off the people,— 3 Chltty, Bl. Com. 46. CHANCERY 165 CHARACTER sent the record to the court of king's bench for trial. Out of this ordinary tribunal also Issued original writs imder the great seal, commissions of charitable uses, of bankruptcy, of lunacy, etc. ; for which the court was said to be always open: whence called the offlcina justitice, ^ The "extraordinary court" became the court of greatest consequence. When the courts of law, which followed strictly the directions of the original writs, ■pronounced a hai'sh or imperfect judgment, applica- tion for redress was at first made to the king in person and his coimsel; they, in time, referred the matter to the chancellor and a select committee, or, by degrees, to the chancellor alone, — the referee being empow- ered to mitigate the severity or to supply the defects of the judgment pronounced in the courts of strict law, upon consideration of all the circumstances in each case." See Chancellor. The equitable jurisdiction of the court grew out of the exigencies of the times and of judicial administra- tion: as from petitions to the king in council; cases as to which the precedents furnished no form of action for a remedy ; cases calling for relief from fraud, ac- cident, mistake, forfeiture; cases involving uses and trusts. The well-defined development of its distinct exercise dates from the timq of Edward I (about 1300) ; but its character was crude until the time of Cardinal Woolsey and Sir Thomas Moore, under Henry VIII (1509-47). Lord Bacon reduced the practice to some- what of a system. But Sir Heneage Finch (about 1680) so laid the foundation of modern equity jurispru- dence as to have been called " the father of equity." l,ater lord chancellors, notabl.7 Hardwicke and Mans- field, extended and improved the system.' Under the Judicatm-e Act of 1873 the court of chancery became the Chancery Division of the High Court of Justice, retaining its former extraordinary jurisdiction; with part of its former ordinary jurisdic- tion transferred to the Court of Appeal, and the rest to the Courts of Common Law. A too severe application of common-law rules brought the court of chancery into existence. . . The body of chancery law is nothing else than a sys- tem of exceptions — of principles applicable to cases falling within the letter, but not within the intention, of particular rules.* 2. In the United States, "chancery" cor- responds to " equity," and a " court of chan- cery " to a " court of equity," that is, a court exercising equitable powers. Here equity jurisprudence has grown up chiefly since the close of the last century, the English com-t of chancery being followed as a model. In some of the States, and in the national tribunals, chancery powers are exercised by the common-law courts." See further Equity. CHANGE. See Alter; Fundamental; Paety, 2; Venue. 'CHANGE. See Exchange, 3. CHANNEL. The main channel is that bed of a river over which the principal body of water flows.i See Aqua, Currit, etc. ; Navigable. CHAPTER. See Statute, 2. CHAEACTER. The qualities impressed by nature or habit on a person, which dis- tinguish him from other persons. These con- stitute his real character; while the quali- ties he is supposed to possess constitute his estimated character or reputation. "Reputation'' may be evidence of character, but it is not character itself. ^ That which a person really is, in distinction from that which he may be reputed to be. 3 Character [reputation] is the slow-spread- ing influence of opinion, arising from the de- portment of a man in society.* In many cases it has been said that the regular mode of examining a witness is to inquire whether he knows the general character of the person whom it is intended to impeach, but in all such cases .the word " character " is used as synonymous with " reputa- tion." What is wanted is the common opinion, that in which there is general concurrence; in other words, general reputation or character attributed. That is presumed to be indicative of actual character. " General character. The estimation in which a person is held in the community where he has resided. Ordinarily, the members of that community are the only proper, witnesses to testify to such character. | Evidence of character is founded on opinion, and a witness testifying as to the general character of an- other must have the means of knowing such char- acter.^ Good character. Good general reputa- tion for one, several, or many qualities — as, for honesty, chastity, veracity, peaceable- ness, integrity. Moral .character and conduct may be proven: to afford a presumption that the person is not guilty of a criminal act; to affect the damages where the amount depends upon character and conduct; to im- peach or confirm the veracity of a witness. 1 3 Bl. Cora. 47-48. ' 3 Bl. Com. 49-.50, 50-95. s See l,Story, Eq. §§ 41-52; 3 Bl. Com. 53-55; 1 Kent, 494. • Pennock v. Hart, 8 S, & R. 377 (1822), Gibson, J. • 1 Story, Eq. §§ 54-58; 1 Pomeroy, Eq. §§ 1-42; 3 Story, Const. §§ 506-7, 644-45. ' St. Louis, &c. Packet Co. v. Keokuk Bridge Co., 31 F. K. 757 (1887), Love, J. = [Carpenter v. People, 8 Barb. COS (1860), Welles, J. ' Andre v. State, 5 Iowa, 394 (1857), Woodward, J. < Trial of Hardy, 24 St. Tr. 1079 (17i,5), Erskine (Ld.), arguendo. s Knode v. Williamson, 17 Wall. 688 (1873), Strong, J. See State v. Egan, 69 Iowa, 637 (1882). « Douglass V. Tousey, 2 Wend. 354 (" CHARACTER 166 CHARGE In civil suits the character of a party is not admis- sible in evidence unless the nature o£ the action in- volves his general character or directly affects it. In the case of a tort, when the defendant is charged with fraud from mere circumstances, evidence of his general character is receivable to repel it. Such evi- dence will be rejected, whenever the general charao- t-er is involved by the plea only and not by the nature of the action. Character in regard to a particular trait is not in issue, unless the trait is involved in the matter charged. ^ The bad character of the plaintiff may be shown in suits for damages for seduction, breach of promise to marry, slander, libel, and malicious prosecution, qq. V. The burden of proof is on the assailant." In homicide, evidence^ of prevloias good character may be made the basis on which to form a doubt.' But when the evidence is positive and satisfactory, good character cannot overcome the presumption of guilt: ■■ against facts strongly proven, good character cannot avail." The old rule, that evidence of the good character of the defendant is not to be considered unless other evidence leaves the mind in doubt, has been much criticised; the weight of authority is now against it. If evidence of reputation is admissible at all its weight should be left to be determined by the jury in 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 issue, would alone create a reasonable doubt, al- though without it the other evidence would be con- vincing.^ A witness called to impeach the veracity of another witness may be asked: " Is the character of the wit- ness for truth on a par with that of mankind in general?" In Euglish courts the inquiries are: "Are you acquainted with the character of the witness? What is his general character? Would you believe him under oath? " ^ Courts differ as to whether the general reputation of a witness for truth and veraciiy is the true and sole criterion of his credit, or whether the inquiiy may not properly be extended to his entire moral character and estimation in society. They also differ as to the right to inquire of the impeaching witness whether he would believe the other on his oath. All agree, I however, that the first inquiry must be restricted either to his general reputation for truth and veracity, or to his general character; and that it cannot be ex- tended to particular facts or transactions, for the rea- ' 1 Greenl. Ev. §§ 54-65, cases; 4 Wall. 471; 86 Alb. L. J. 364. As to evidence of, in civil cases, see particularly Simpson v. Westenberger, 28 Kan. 757-62 (1682), cases. .."1 Whart. Ev. §§ 47-56, cases. » Kilpatrick v. Commonwealth, 31 Pa. 216 (1858). * United States v. Freeman, 4 Mas. 510 (1837). 'Commonwealth ti. Webster, 5 Cush. 325 (1850); 59 Cal. 601; 68 id. 29; 50 Md. 833. 'Commonwealth v. Leonard, 140 Mass. 470, 479 (1836), cases, Field, J. ; 26 Cent. L. J. 515-19 (1888), cases. 'State V. Randolph, 24 Conn. *367 (1836); Langhorne V. Commonwealth, 76 Va. 103 (1882); State v. Rush, 77 Mo. 519 (1883). son that while every man is supposed to be fully pre- pared to meet those general inquiries, it is not likely he would be prepared, without notice, to answer as to particular acts.' Unwillingness to believe a man under oath must be based upon two facts: that the witness knows the reputation for veracity among the man's neighbors, and that such reputation is bad." Proof of a general disposition to do a thing is not proof of that thing. Thus, proof of a habit of gam- bling when drunk is not proof that the person gambled when drunk on a particular day; nor will proof of a habit of loaning money at a usurious interest prove that a loan was made in a particular instance.^ See further Baj), 1; Chaste; Communication, Priv- ileged, 1; Rephtatiok; Sdspioion, 3. CHARGE. 1, V. To lay on, to place under or upon, as, a burden, a duty, a trust. Opposed, discharge, q. v. (1) To place under a duty or obligation with respect to knowing or doing: as, to charge one with notici3 of such facts or in- formation as inquiry {q. v.) would disclose, or with notice of what the law requires ; to charge an acceptor or indorser by present- ment.* (2) To impose, upon a person or thing, the duty or obligation of paying money: as, to charge the estate of a decedent with a debt ; to charge a legacy upon land devised; to charge a purpart in partition with owelty. See Leg ACT; Owelty. (3) To enter, in an account, an item of moiiey due. See Account, 1. (4) To place upon one the burden of crime or guilt ; to accuse of a wrong or offense; to indict. The implication is, usually, that the offense has been alleged according to the forms of law — that legal process has issued.' See Charge, n. (2, b). (5) For a jury to be charged with the fate of a prisoner,' see Jeopardy. (6) To instruct in the nature of a duty im- posed : as, for a judge or a coroner to charge a jury. Chargeable. Subject to charge; capable of being or of becoming charged : " as, to be ' Teese v. Huntingdon, 23 How. 11-13 (1859), cases, Clifford, J. See, generally, as to evidence, 25 Cent. Law J. 146 (1887), cases. " Spies eta(. v. People,, 122 111. 208(1887). = Thompson v. Bowie, 4 Wall. 471 (1860), cases. ' 94 U. S. 433; 101 id. 697. ' Day V. Inhabitants of Otis, 8 Allen, 478 (1864), Bige- low, C. J. » State V. Connor, 6 Coldw. 313 (1868). ' 46 Vt. 625; 107 Mass. 426. CHARGE 167 CHARGE chargeable with a loss;i a tax chargeable on land; a pauper chargeable upon a dis- trict. "Chargeable," in Its ordinary acceptation as appli- cable to the imposition of a duty or burden, signifies capable ot being charged; subject, liable, proper to be charged." 2, n. A burden, duty, obligation, responai- biUty, or disability — imposed upon a person or attached to a tiling. Opposed, discharge (which see). (1) Charge upon a Thing, Whatever is in the nature of a lien or incumbrance {qq. v.) resting upon an object of property and to be satisfied out of it or out of the proceeds of it: as, a legacy to be paid out of land. Of this nature also are assessments and taxes upon realty, 3 qq. v. Chaxges. (a) Pecuniary impositions upon property — real estate. (b) Book-entries of moneys due. (c) Expenses incurred in settling an es- tate.< See Account, 1. (d) Referring to litigation, something more than costs, q. v. (e) In equity pleading, allegations in denial or avoidance of a defense. Charge and discharge. Describes the mode formerly pursued in accounting be- fore a master: the complainant exhibited the items of his claim in a form called a charge, while the respondent exhibited con- trary items or claims by way of discharge — as, a release. 5 Charging order. An order of court that stock shall stand pledged to the payment of a judgment. See further OnoER, 2. Charging part. Allegations, in a bill in equity, intended to anticipate and controvert the answer.* Collateral charge. An obligation in a bond binding the heir, executor, and admin- istrator, — descends upon the heirs and holds assets by descent.' Overcharge. In a statute providing for recovery from a railroad company "for any 1 101 U. S. 19. ' Walbridge v. Walbridge, 48 Vt. 63.5 (1874). s See Harris v. Miller, 71 Ala. 34 (1881); 59 id. 317; 69 id. 127; 25 id. 333. ' [Goodwin v. Chaffee, 4 Conn. 166 » See Daniel, Chanc. Piact. 1173. • See Story, Eq. PI. § 31. ' [2 Bl. Com. 340. overcharge," signifies, as ordinarily, a charge of more than is permitted by law.i See also Rent-charge ; Surcharge. (3) Charge upon a Person, Anything in the nature of a burden, or of a duty or obli- gation, resting upon one or more individuals. While- in this substantive sense the word "charge" may have it meaning correspond- ing to any one of the foregoing verbal senses, it distinctly signifies : (a) The duty of paying money. (b) Responsibility for a wrong or an of- fense, as for negligence or crime, particularly the latter — formal accusation of criminal conduct. An accusation, made in a legal manner, of illegal conduct. 2 May imply an original complaint made in the first instance preliminary to a formal trial.' See Indict- ment. (c) Instruction judicially given by the judge of a court to a jury in regard to their duty as jurors, in particular to a traverse jury as to their duty in finding a verdict. An authoritative exposition of the law which it is incumbent upon the jury to obey.* Delivered to grand jurors before they proceed to consider indictments and presentments; and to petit or common jurors before they retire to deliberate over the evidence in a particular case. General charge. Instruction upon a case in its entirety. Special charge. Made, at the request of counsel for a party, upon one or more points in the case. It is clearly error to charge upon a conjectural state of facts, of which no evidence has been offered. The instruction presupposes that there is some evidence before the jury which they may think sufficient to establish the facts hypothetically assumed in the opinion of the court; and if there is no evidence which they have a right to consider, then the charge does not aid them in coming to a correct conclusion, but the tendency is to mislead and embarrass them. It may induce them to indulge in conjectm-es, instead ot weighing the testimony.' Where there is an entire absence of testimony, or it is all one way, and its conclusiveness is fi*ee from doubt, it is competent tor the court to direct the jury to find accordingly.' 1 Woodhouse v. Eio Grande R. Co., 67 Tex. 418(1887), Stayton, A. J. » Tompert v. Lithgow, 1 Bush, 180 (1866). s Ryan v. People, 79 N. Y. .598 (1880); 16 Nev. 91. * See Commonwealth v. Porter, 10 Mete. 385-86 (184.5). » United States v. Breitling, 20 How, 254(1857), Taney, C. J.; Goodman v. Simonds, ib. 359 (1857); Michigan Bank v. Eldred, 9 Wall. 553 (1869). • Meguire v. Corwine, 101 U. S. Ill (1879); ib. 6S7. CHARGE ]68 CHARITY When, after giving a party ■the benefit of every in- ference that can fairly be drawn from all the evidence, it is insufacient to authorize a verdict in his favor, it is proper for the court to give the jury a peremptory in- struction for the other party. ^ The court may sum up the facts, and submit them, with the inferences of law, to the judgment of the jury. But care is to be taken to separate the law from the facts, and to leave the latter, in unequivocal terms, to the jury, as their true and peculiar province." With the charge of the court upon matters of fact, and with its commentaries upon the weight of evi- dence, the Supreme Court has nothing to do; such observations are understood to be addressed to the jury merely for their consideration as the ultimate judges of matters of fact, and entitled to no more im- portance than the jury choose to give them.^ But, as the jurors are the triors of the facts, an ex- pression of opinion by the court should be so guarded as to leave the jury free in the exercise of their own judgments.* A general statement will be taken in connection with the facts in the particular case.^ In some States the court neither sums up the evi- dence, nor expresses an opinion upon a question of fact, the charge being strictly confined to questions of law, leaving the evidence to be discussed by counsel, and the facts to be decided by the jury without com- ment or opinion by the court. But most of the States have adopted the English practice, where the judge always sums up the evidence, and points out the con- clusions which in his opinion ought to be drawn from it; submitting them, however, to the judgment of the juiy. The judge of a Federal coiut may express his opinion on the facts.* At a trial by jury in a Federal court the judge may express his opinion upon the facts; the expres- sion, when no rule of law is incorrectly stated and all facts are ultimately submitted to the determination of the jur.y, cannot be reviewed by writ of error; and the power of, the court in this respect is not controlled by a State statute forbidding judges to express an opinion upon thefacts.' Nor can a State constitution prohibit the judges of the Federal courts from charg- ing juries with regard to matters of fact.^ 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 given to the jury." ' Marshall v. Hubbard, 117 U. S. 419 (1886), cases. , 3 M'Lauahan v. Universal Ins. Co., 1 Pet. 182 Story, J. s Carver v. Jackson, 4 Pet. 80 (1880), Story, J.; Hayes v. United States, Bi F. R. 663 (188T), cases. • Tracy v. Swartwout, 10 Pet. 96 (1833), McLean, J. ; Games v: Stiles, 14 id. 327 (1840). ' Northern Bank v. Porter Township, 110 U. S. 615 (1884), cases; 6 Wheat. 264. • Mitchell V. Harmony, 18 How. 130 (1881), Taney, C.J. ' Vicksburg & Meridian R. Co. v. Putnam, 118 U. S. 653 (1886), cases. Gray, J. "St. Louis, &c. R. Co. V. Vickers, 182 U. S. 360(1887). • Worthington v. Mason, 101 U. S. 149 (1879); Beaver V. Taylor, 93 id. 54 (1876), cases. It is not ei'ror to refuse to give an instruction asked for, even if correct in point of law, provided those given cover the entire case and submit it properly to the jmy.i Failure to embrace all the issu& in one instruction is not error, if they are included in those given, which, on the whole, are correct, not contradictory, nor cal- culated to mislead." Although an instruction, considered by itself, is too general, yet if it is properly limited by others, so that it is not probable that it could have misled the jury, the judgment will not be reversed.' If the court has laid down the law fully and cor- rectly, it is not bound to repeat an instmction in terms varied to suit the wishes of a party.* Where a charge embraces several distinct proposi- tions, a general exception to it will not avail the party if any one of the propositions is correct.** Where any portion of the charge is correct, an ex- ception to the entire charge will not be sustained.* A nice criticism of words will not be indulged when the meaning of the instruction is plain and obvious, and cannot mislead the jury.' Exceptions to a charge are made after the jury re- tire; and each must cover a distinct point or part only. See further Direct, 2; Instruct, 2; Jury, Trial by; Nonsuit; Point. CHAKGE D'AFFAIRES. See Minis- ter, 3. CHAEITY. 1. In its widest sense, aU the good affections men ought to bear to- ward each other; in a restricted and com- mon sense, relief of the poor.8 The benevolence which limits itself to giv- ing alms to the poor comes within the re- stricted definition but falls far short of that true charity which has its» origin in the two great sources of all good deeds — the love of God and the love of man. *• In considering what is lawful to be done on the Lord's day, " charity " includes every- thing which proceeds from a sense of moral iLaber v. Cooper, 7 Wall. 566 (1808); Indianapolis, &c. R, Co. V. Horst, E3 U. S. 295 (1876); The Schools v. Risley, 10 Wall'. 115 (1869); Wheeler v. Winn, .53 Pa. 127-29 (1.866). = Muehlhausen v. St. Louis R. Co., 91 Mo. 346 (1886), Norton, C. J. » Spies et al. u. People, 122 III. 245-46 (1887), cases. ■• Northwestern Mut. Life Ins. Co. v. Muskegon Bank, 122 U. 8.510(1887), cases, ° Lincoln v. Claflin, 7 Wall. 183, 139 (1868); Johnston ■u. Jones, 1 Black, 221 (1861). « Boogher v. N. Y. Lite Ins. Co., 103 U. S. 98 (1880), cases. ' Rogers v. The Marshal, 1 Wall. 654 (1803). ' Morice v. Bishop of Diu-ham, 9 Ves. *405 (1804), Sir William Grant. Approved, Same v. Same, 10 id. *640 (1805), Lord Eldon. » Price V. Maxwell, 28 Pa. 36, 85 (1857), Lewis, C. J. CHARITY 169 CHARITY duty, or a feeling of kindness and humanity, and is intended wholly for the relief or com- fort of another, and not for one's own benefit or pleasure.! Charity is active goodness. It is doing good to our fellow-men. It is fostering those institutions that are established to relieve pain, to prevent suffering, and to do good to manliind in general or to any class or portion of mankind. Tlie term no doubt takes on shades of meaning f rojn the Christian relig- ion.2 See further Sunday. 2. A gift, devise, or trust, intended to pro- mote a charitable use. In law, oiarity and eiaritable use are converti- ble terms. The latter was originally employed in contradistinction to " superstitious use," and desig- nated such " good and worthy use " as was deemed not within the pm-view of statute 23 Hen. VIIl (153J), c. 10, which abolished certain uses invented by the clergy. But, inasmuch as that statute swept away many meritorious uses, statute 1 Edw. VI (1547), c. 14, was passed to legalize, as recited in the preamble, several "good and godly uses" — such as schools for educating the youth, provision for the poor, etc. This preamble became the germ of the law of *' chari- table uses." Before 1347, such uses had never been grouped together as a distinct class, and pe'culiar principles applied to them. Since the enactment of statute 43 Eliz. (IfiOl), c. 4, no uses have been re- garded as '■ charitable " except uses within the letter or spirit of that statute; and these are wholly " pub- lic*' in nature.' What is a charity is rather a matter of de- scription than of definition.* A charity is a gift for a public use ; as, a gift in aid of the poor, to learning, to relig- ion, to a humane object. -^ A precise definition of a legal charity is hardly to be found in the books. The one most commonly used in modem cases, originating in the judgment of Sir William Grant, confirmed by that of Lord Eldon, in Morice's Case, 9th and 10th Vesey, ante — that those purposes are considered charitable which are enumer- ated in the statute of 43 Elizabeth, or which by analogy are deemed within its spirit and intendment— leaves something to be desired in point of certainty, and suggests no principle. Mr. Binney, in his argument in the Oirard Will Ouse. p. 41 (1844), defined a charitable or pious gift to be " whatever is given for the love of ~j Doyle V. Lynn & Boston B. Co., 118 Mass. 197 (18T5), cases. Gray, C. J. = Allen V. DufBe, 43 Mich. 7 (1880), Cooley, J. ' Owens V. Missionary Society, 14 N. Y. 385, 3S9, 897, 403 (1856), Selden, J. See also Baptist Association v. 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, Eq. §§ 1133-49. * Perin v. Carey, 24 How. 494 (1860), Wayne, J. »Kain V. Qibboney, 101 V. S. 365 (1879), Strong, J. God, or for the love of your neighbor, in the catholic and universal sense — given for these motives, and to these ends — free from the stain or taint of every con- sideration that is personal, private and selfish; " and this definition was approved in Price's Case, 28th Pa. ante. A more concise and practical rule is that of Lord Camden, adopted by Chancellor Kent, by Lord Lyndhurst, and by the Supreme Court of the United States — " A gift to a general public use, which ex- tends to the poor as well as the rich." Jones v. Will- iams, Ambl. 652 (17BT) ; Coggeshall v. Pelton, 7 Johns. Ch. 294 (18i3); Mitford v. Reynolds, 1 Phil. Ch. 191 (1842); Perin v. Carey, 24 How. 508 (1860).' A charity, in the legal sense, may be more fully defined as a gift, to be applied consist- ently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the in- fluence of education or religion, by relieving their bodies from disease, suffering, or con- straint, by assisting them to establish them- selves in life, or by creating or maintaining public buildings or works, or otherwise less- ening the burdens of government, i It is immaterial whether the purpose is called " charitable " in the gift itself, it it is so described as^ to sbow that it is charitable in its nature. ^ A testator must be taken to have used the word " chai'itable " in its legal sense.^ The statute of Elizabeth is the principal source of legal charities,— has become the general rule of char- ities. The signification of the word is chieflj derived from it, and not from the popular understanding of "good affection " between men, nor of relief of the poor.* That statute names as distinct charities: 1, relief of the aged, impotent, and poor; 2, maintenance of sick and maimed soldiers and mariners; 3, schools of learning; 4, free schools; 5, scholars in the universi- ties; 6, houses of correction; 7, repair of bridges, ports, havens, causeways, churches, sea-banks, high- ways; 8, the education and preferment of orphans; 9, marriage of poor maids; 10, support and help of young tradesmen, handicraftsmen, persons decayed; 11, relief and redemption of prisoners or captives; 12, aid of the poor in paying taxes; 13, setting out of soldiers.* These char'ties are but instances under three gen- eral classes: 1, relief and assistance of the poor and needy; 2, promotion of education; 3, maintenance of public buUdings and w orks. The inquiry in each case ~Jackson v. Phillips, 14 Allen, 555-58 (1867), Gray, J. See also Detwiller v. Hartman, 37 N. J. E. 353 (1888); White t.-. Ditson, 140 Mass. 353 (18S5); Humane Society V. Boston, 142 id. 27 (18S6). Definitions collected, Prot- estant Episcopal Education Society v. Churchman, 80 Va. 762-68 (1885). a Howe v. Wilson, 91 Mo. 49 (1886). s Town of Hamden o. Rice, 31 Conn. *335 (1836), Ellesworth, J. < Ould V. Washington Hospital, 98 U. S. 309-11 (1877), Swayne, J. CHARITY 170 CHAEITY is: Is the purpose of the gift within the principle and reason^of the statute, although not expressly named in it. ' Gifts for repairing a church, for building an organ gallery, for erecting and maintaining a parsonage, for the worship of God, for the advancement of Christian- ity, for the benefit of ministers of the gospel, have been held to be valid charities.'' The statute of Elizabeth was simply remedial and ancillary to the common law.^ Courts of equity had, and still have, an original and inherent common-law jurisdiction over charities, except in a few States, as in Maryland, North Carolina, and Virginia.* . While the provisions of the statute of Elizabeth have been re-enacted in some States, in others new purposes have been enumerated. In Connecticut, the District of Columbia, Maryland, New York, North Carolina, and Virginia, the statute seems to have been repudiated; in Georgia, Indiana, Iowa, Kentucky, Massaohu-setts, Rhode Island, Vermont, and in some other States, it is still in force.* A good charitable use is "public," not in the sense that it must be executed openly and in public, but in the sense of being so general and indefinite in its objects as to be deemed of common and public benefit. Each individual benefited may be private, and the charity may be distributed in private and ■by a private hand. Opposed is a "private charity : " not a public or general charity, in view of the statute of Elizabeth or of a court of chancery, but an association for the mut- ual benefit of the contributors and of no others. Such a case wants the essential ele- ment of indefiniteness in the immediate objects, if not that of gratuity in the contri- bution. « A charitable use is essentially shifting. When a trust defines the beneficiaries with certainty, it is rather private than public. " Charity begins where uncertainty of the beneficiaries begins." ? When private property is appropriated to the sup- ' Jackson v. Phillips, 14 Allen, 551 (1867), cases. Gray, J. 2 Bishop's Residence Co. v. Hudson, 91 Mo. 676 (1887), cases. ' Ould V. Washington Hospital, ante. ■•Kain v. Gibboney, Ould v. Hospital, ante; Vidal V. Girard's Executors, 2 How. 155 (1844); Howe v. Wil- son, 91 Mo. 49 (1886), cases; 80 Va. 773; 107 U. S. 167. ^ See 1 Bouvier, 304, cases. "Saltonstall v. Sanders, 11 Allen, 466, 464 (1865), cases. Gray, J. See also Jones i;. Habersham, 107 U. 3. 174 (1883), cases; s. c. 3 Woods, 443; Beckwith v. The Rector, 69 Ga. 569(1882); De Wolf u. Lawson, 61 Wis. 480(1834); Protestant Epis. Education Society v. Churchman, 80 Va. 718 (1885); Kent v. Dunham, 142 Mass. ai6. 218 (1886). ' Dodge V. Williams, 46 Wis. 98, 91-103 (1882), oases, Ryan, C. J. ; Fontain v. Bavenel, 17 How. 384 (1834). port of education for the benefit pf the public without any view to profit, it constitutes a charity which is purely public. 1 Trusts for public charitable purposes must be for the Ijneflt of an indefinite number of persons; for, if all the beneficiaries are personally designated, the trust lacks the element of indefiniteness, which is one characteristic of a legal charity. If the founder de- scribes the 'general nature of the trust, he may leave the details of its administration to be settled by trust- ees under the superintendence of a coiutof chancery." If the general object of a bequest is pointed out, or if the testator has provided a means of doing so by the appointment of trustees with that power, the gift will be treated as suflSciently definite for judicial cognizance. * When a charitable ti*ust has been fully constituted, and the funds have passed into the hands of the in- stitution or organization intended for its administra- tion, the court of chancery becomes its legal guardian and protector, and will take care that the objects of the trust are duly pursued, and the funds rightfully appropriated. But where contributions to a charity are proposed to be made upon certain express Condi- tions, the rights of the donors stand upon contract; and if the conditions are not performed, their obliga- tion to contribute is discharged.* A devise to a corporation in favor of a charity is valid.' There is no implication, in such case,- that the cor- poration is of a "religious " nature. * Where there is a valid devise to a, corporation in trust for charitable purposes, the sovereign may en- force the execution of the trust, by changing the ad- ministrator, if the corporation be dissolved, or, if not, by modifying and enlarging its franchises, pro- vided the trust be not perverted, and no wrong be done to the beneficiaries.^ Equity will not enforce a trust whose object is the propagation of atheism, infidelity, immorality, or hos- tility to the existing forms of government.^ The essentials to a valid charity are: ability in the donor; capacity in the donee; an instrimient or means whereby it is given; a thing to be given; = a legal pur- pose; a gift not absolute, but available through the medium of a trust.* Equity will not admmister a foreign charity, unless it be valid under the laws of both States, and the 1 Gerke v. Archbishop Purcell, 25 Ohio St. 247, 248 (1874), White, J. " Russell V. Allen, 107 U. S. 167 (18S3), cases, Gray, J. ; American Academy of Arts v. Harvard College, 12 Gray, 596 (18-32), Shaw, C. J. s Howe V. Wilson, 91 Mo. 53 (1886), Black, .T. See also Webster u Morris, 66 Wis. 366 (1886). * Printing House i,. Trustees, 104 U. S. 727 (1881), Bradley, J. » Perin v. Carey, Vidal v. Girard's Executors, ante. ' De Wolf V. Lawson, 61 Wis. 480 (1884). ' Girard's Executors v. Philadelphia, 7 Wfril. 14-16 (1868); Philadelphia v. Fox, 64 Pa. 182 (1870). 8 Manners ■v. Library Company, 98 Pa. 173 (1880), cases; Jones v. Habersham, 107 U. S. 189 (1882), cases. ' Owens V. Missionary Society, 14 N. T. 335 (1856). CHART 171 CHAKTER trustee has capacity to receive and carry out the trust. 1 By the law of England, before the statute of Eliza- beth, and by the law of this country at the present day (except where resti-icted by statute or decision, as in Virginia, Maryland, and New York), trusts for pub- lic charitable purposes are upheld imder circum- stances as to which private trusts would fail. Bein^ tor objects of permanent interest and benefit to the public, they may be perpe,tvial in their duration; and tlie instruments creating them should be so construed as to give them effect if possible, and to carry out the general intention of the donor, when clearly mani- fested, even if the particular form and manner pointed out by him cannot be followed." Board of charities. A board of public charities, in several of the States, is a body of commissioners, appointed by the governor of each State (possibly by and with the consent of one of the houses of the legis- lature), and charged with the duty of examining into the condition of all charitable, reformatory or cor- rectional institutions in the State; having regard, in particular, to the methods of government and instruc- tion, the official conduct of trustees or officers, the -finances, buildings, etc. See Auerican; Association, 3; Benevolence; Cy Pres; Indigent; Legacy; Mabshal, 2; Masses; Mortmain; Protestant; Subscribe, 2; Visit, 2. CHART. As used in the copyright law, does not include sheets of paper exhibiting tabulated or methodically arranged informa- tion. In the Copyright Act of 1790, where the word was first used, a chart was a marine map, as is shown by all the dictionaries of the time. A definition covering such a sheet of paper was introduced into Worcester's dictionary in 1864, and into Webster's in 1865. The word, in the present act, is separated from the word "book," and kept with the word "map" and other words of artistic import, thus showing an intention to continue its use in the sense of a chart of the class of maps, and other works of art.* See Copyright. Compare Map. CHARTA. L. Paper; a writing; a charter. See Magna Chaeta; Officina; Chaktarum. CHARTER. 1. A deed is sometimes called a charter from its materials.* See Charta. Charter-land. Land held by deed under certain rents and free services; book-land. Opposed, folk-land; which was held by an assurance i-n writing.* See MANOR. ' Taylor v. Trustees of Bryn Mawr College, JM N. J. E. 101 (1881), cases: 13 Eep. 80. 2Kussell V. Allen, ante; 13 Wall. 723. See generally 23 Cent. Law J. 364-68 (1886), cases. 3 Taylor ■./. GUman, 24 F. E. 633-34 (1885), cases, Wheeler, J. * a Bl. Com. 895. S.2B1. Com. 90. Charter-party. A contract by which the owner lets his vessel to another for freight.i A contract by which an entire ship, or some principal part thereof, is let to a merchant for the conveyance of goods on a determined voyage to one or more places.^ All contracts under seal were anciently called '.' charters," and divided into two parts, one for each party. Whence charta-partUa; a writing divided; like an indenture (g. v.) at common law.* Charterer. He who hires a vessel under a " charter-party." Charter-money. The sum agreed to be paid for the use of the vessel. Charge of navigating the vessel may be retained by the owner or assumed by the hirer. The contract is generally effected through a broker acting for the ship-owner. A ship thus chartered is opposed to a "general ship." The instrument is not usually under seal. It names the vessel, master, and contract parties; and specifies the tonnage, the times and places for loading and dis- charge, the charter-money, and the allowance for delay. It is a commercial instrument, subject to the rules applicable to other commercial contracts. It is to be construed liberally, in agreement with the inten- tion of the parties, the usages of trade in general and of the particular trade.* An action in rem cannot be maintained for the breach of a charter-party when the voyage was not undertaken, and no part of the cargo delivered on board.* See Defect; Dispatch; Freight; Lading, Bill of; Sail. 2. The primary meaning — a deed or sealed instrument — is obsolete. Used alone, the word now refers to certain instruments which emanate from government, in the nature of letters-patent.^ The king's grants, whether of lands, honors, liber- ties, franchises, or aught besides, are contained in charters or letters-patent,^ g. u. Charter of incorporation. The instru- ment evidencing the act of a legislature, governor, court, or other authorized depart- ment or person, by which a corporation is or was created. The charter of a private corporation, duly ac- cepted, is an executed contract. It is construed 1 Spring V. Gray, 6 Pet. 164 (1833), Marshall, C. J. "Vandewater v. Mills, 19 How. 91 (1856), Grier, J.; Ward V. Thompson, 22 id. 333 ((859). s 2 Kent, 201. iLowber v. Bangs, 2 Wall. 744 (1864); 113 V. S. 40; 115 id. 353. « The Missouri, 30 P. E. 384 (1887), cases. • See 1 Story, Const. § 161. '2 Bl. Com. 346; 1 id. 108, 473. CHARTER 173 CHATTEL strictly, against the corporation, and in favor of the public. Nothing passes but what is granted in explicit terms. The charter of a munfcipal corporation is not a contract, i The charter of a bank is a franchise, and not tax- able if a fair price has been paid for it and accepted in lieu of taxation. No power of sovereignty will be held to be surrendered, unless expressed in tei-ms too plain to be mistaken.^ A power reserved by the legislature to alter, amend, or repeal a charter authorizes it to make any altera- tion or amendment of a charier, granted subject to such power, which will not defeat or substantially impair the object of the grant or of any right vested under it, and which the legislature may deem neces- sary for securing either that object or a public right. ^ To " create " a charter is to make one which never existed before. To "renew" a charter is to give a new existence to one which has been forfeited, or which has lost its vicality by lapse of time. To " ex- tend" a charter is to give one which now exists greater or longer time in which to operate than that to which it was originally limited.* It is a well settled rule of construction of grants to corporations, whether public or private, that only such ' powers and rights can be exercised under them as are clearly comprehended within the words of the act or derived therefrom by necessary implication, regard being had to the objects of the grant. Any ambiguity » Dartmouth College v. Woodward, 4 Wheat. 518, 634 (1819), MarshaU, C. J. ; ib. 708, 713, Story, J. » Jefferson Branch Banku. Skelly, 1 Black, 446 (1861); Thomas v. West Jersey R. Co., 101 U. S. 83 (1879), a Close V. Glenwood Cemetery, 107 U. S. 476 (1683), cases, Gray, J. See also Union Passenger Ry. Co. v. Philadelphia, 101 id. 539-40 (1879); Spring Valley Water Works V. Schottler, 110 id. 352-53 (1884); Coimty of Santa Clara v. South. Pacific R. Co., 18 F. R. 406-8 (1883). Although an attempt to shake or limit the conclusion reached in the Dartmouth College Case was made in Bank of Toledo v. Toledo, 1 Ohio St. 633(1853), and in other cases at about the same time, the doctrine was re-asserted and even generalized and extended by the, Supreme Court in Fiqua Branch v. Knoop, 16 How. 369 (1853); Dodge v. Woolsey, 18 How. 331 (1855), and cases, ib. 380, 384. Much space would be needed for expound- ing the decisions which have applied the doctrine, and for tracing its application to different kinds of char- ters. To do so is the less necessary because the legis- latures have become accustomed to grant charters subject to a general reserved power to alter or repeal them. There are, no doubt, a few corporations char- tered before 1819, and some created since, without res- ervation of such power, wh|ch are independent of leg- islative changes made without their assent; but the great mass of private corporations now active are sub- ject to a right reserved to the legislature to make changes. Addison, Contr. *3, Am. ed., A. & W. (1888), note. See also New Orleans v. Great Southern Tel,, &ci. Co., Sup. Ct. La. (Feb. 23, 1868): 26 Cent. Law J. 233; ib. 234-36 (1883), cases. Be Low Yam Chow, 7 Saw. 548-50 (Sept., 1882). 'Be Moncan, 8 Saw. 350-56 (Oct., 1882): s. a 14 F. R. 44. 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; 23 id. 329, 441. Haskell v. Blair, 3 Cush. 535 (1849), Metcalf , J. 8 Sheldon v. Sill, 8 How. 449 (1850), Grier, J. ; 37 Alb. Law J. 44-46 (1888), cases. * Magee v. Toland, 8 Port. 40 (Ala., 1839). See also 4Ala.351; 72Ga.51; 34 La. An. 608; 5Mas.88; 4Denio, 82; 14 S. C. 538; 43 Wis. 32. »2 Bl. Com. 443; 4 id. 135; 1 Pars. Contr. 227. •Hill V. Wanzer, 17 How. 387-68 (1854), cases; 20 Blatch. 277. CHEISTIAN 180 CHURCH for mfiingement, and the assignee filed a bill to re- cover the damages. In such case the assignee must bring an action at law, in the name of the assignor, to his' own use. 1 See AssiQN, 3; Attach, 3; Champerty; Donatio; Husband. CHKISTIAN. One who believes or as- sents to the doctrines of Christianity, as taught by Jesus Christ in the New Testament, or who, being born of Christian parents or in a Christian country, does not profess any other reUgion, or does not belong to any one of the other religious divisions of man. 2 See Name, 1. Christianity. The system of doctrines and precepts taught by Christ ; the religion founded b)' CJirist. Chri. 3 HI. Com. S7-58; 4 id. 432, 434; 1 Steph. Hist. Cr. L. Eng. 100. > 18 Ct. CI. 457; 15 M. & W. 208. s Act 3 March, 1879: 20 St. L. 330, 1 Sup. R. S. 460. 4 United States v. Noelke. 17 Blatoh. 557 (1880); Com- merford v. Thompson, 2 Flip. 615 (1880). ' United States v. Wilson, 106 U. S. 630 (1882). See CIRCUMSTANCES 183 CITIZEN The act of February 8, 1875, c. 35, sec. 19 (18 St. L. 311), provides " that every, person, flrm, association other than national banking associations, and every corporation, State bank, or State banking association, shall pay a tax of ten per centum on the amount of their own notes used for circulation and paid out by them. " This act is tp be construed in connection with the internal revenue law; is designed to provide a cur- rency for the country, and to restrain the circulation of notes not issued by authority of Congress. An order by A in favor of B, or bearer, upon C for " five dollars in merchandise at retail," paid out by A and used as circulation, is not a note within the meaning of the act. Only such notes as are in law negotiable, so as to carry title in their general circulation from hand to h^nd, are the subjects of taxation under the act.' A certificate by a national bank that a person napied has deposited in it a certain sum, payable to the order of himself on return of the certificate properly indorsed, and understood not to be payable until a day agreed upon, is not forbidden. ' See Bank, 2 (2) ; Tax, 2. CIRCUMSTANCES. 1. Surroundings: the particulars which accompany an act or fact ; res gestcB, q. v. Reference to ' ' surrounding circumstances ' ' is made to ascertain the precise nature of a subject-matter or to explain terms used. Circumstantial. Consisting in or per- taining to attendant circumstances or facts ; afforded by what naturally accompanies : as, circumstantial evidence, q. v. See Case, 1. " Circumstance " and " fact " are often inter- changed. Wben a conviction depends upon circum- stantial evidence, it often happens that one or more of the ultimate or essential niatters may appropri- ately be called a "circumstance," to be established beyond a reasonable doubt. ^ 3. A person's qualifications, status or con- dition, material, -moral, and perhaps mental. In a law providing that letters testamentary shall not be granted, unless a bond be filed, to a person whose "circumstances do not afford adequate secu- rity " for the due administration of the estate, the ref- erence is not exclusively to pecuniary responsibility. Thrift, integrity, good repute, and stability of charac- ter are " circumstances." ' See Peouniabt. "In failing circumstances," applied to a bank, means, in Missouri, a state of uncertainty whether the bank will be able to sustain itself, depending on favor- able or unfavorable contingencies, which in the course of business may occur, and over which its officers have no control.* also Philadelphia, &c. E. Co. v. Pollock, 19 F. B. 403 (1884); United States v. White, ib. 723 (1884). ^ Hollister v. Zion's Co-operative Institution, 111 U. S. 63 (1884): 8 Wall. 533; 96 U. S. 366; Be Aldrioh, 16 F. R. > Hunt, Appellant, 141 Mass. 519 (1886): E. S. § 5183. " Clare v. People, 9 Col. 134 (1886), Helm, J. ' Martin v. Duke, 5 Eed£. 599 (1883), Rollins, Sur. < Dodge V. Mastin, 17 F. E. 665 (1883). Poverty is not such " extraordinary circumstance " as will defeat the rule of diligence in civil procedm:e in the Federal courts.' CIRCUS. See Theater. CITE. To call, command, summon. 1. To notify a party of a proceeding against .him. / 3. To refer to or quote in support of a proposition ; as, to cite a case or authority. Citation. 1. Originally, a process to call a party before an ecclesiastical court. 2 3. Official notice to appear and answer in a proceeding. In this sense, used in the practice of courts of pro- bate, surrogates' and orphans' courts; and in prac- tice upon writs of error, as, writs from the Supreme Court. A notice to the opposite party that a thing is about to be done, as, that a record is about to be transfeiTed to another court, where he may appear, or decline to appear, as his judgment or inclination may direct.^ "Citation " and " notice " are not synonymous. A citation must be directed to some officer and be served by him; and, if issued by a court having a seal, must be under the seal of such court. It must contain the names of the persons ijpon whom service is to be had, unless in the case of imknown heirs who are served by publication. A notice is much less formal: it is not necessarily under seal, although issued by a court of record, and it may be served by a person not an ofllcer.' 3. The act of quoting an authority ; also, the authority itself. Compare Precedent, 3. CITIZEN. In the Roman government, seems to have designated a person who had the freedom of the city, and the right to ex- ercise .all political and civil privileges of the government. There was also, at Rome, a partial citizenship, including civil but not political rights. Complete citizenship em- braced both. 5 One who owe^ to government allegiance, service, and money by way of taxation, and to whom the government, in turn, grants and guarantees liberty of person and of con- science, the right of acquiring and possessing property, of marriage and the social relations. 'Whalen v. Sheridan, 10 F. R. 661 (1880); 91 U.S. 349; 96 id. 618. " [3 Bl. Com. lOO. » [Cohens v. Virgmia, 6 Wheat. 411 (1831), Marshall, C.J. * Perez v. Perez, 59 Tex. 324 (1883). « Thoraassen o. State, 15 Ind. 151 (1860), Perkins, J.; White V. Clements, 39 Qa. 359-63 (1869). CITIZEN 183 CITIZEN of suit and of defense, and security in per- son, estate, and reputation.' A State may deny all her " political rights" to an individual, and he yet be a citizen. The rights of offloe and suffrage are political purely. A citizen enjoys "civil rights."' For convenience it has been found necessary to give a name to membership in a political community or nation. The object is to designate by title the person and the relation he bears to the nation. For this pui-- pose the ivords "subject," "inhabitant," and "citi- zen " have been used, and the choice between them is sometimes made to depend upon the form of the gov- ernment. "Citizen" is now more commonly em- ployed, however, and as it has been considered better suited to the description of one living under a repub- lican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterward adopted in the Articles of Confedera- tion and in the Constitution, tfsed in this sense it is understood as conveying the idea of membership in a nation, and nothing more. Whoever was one of the people of either of the States when the Constitution was adopted became ipso facto a citizen — a member of the nation created by its adoption. . . Disputes have arisen as to whether or not certain persons or classes of persons were part of the people at the time, but never as to their citizenship, if they were. Additions might be made by birth, and by naturali- zation. The Constitution does not, in words, say who shall be natural-bom citizens. To ascertain that, resort must be had to the common law, with the nomenclat- ure of which the framers were familiar. At common law, all children bom in «. country of parents who were its citizens became themselves, upon their birth, citizens. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some au- thorities include as citizens children bora within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but not as to the other class. Sex has never t)een made one of the elements of citizenship in the United States. The Fourteenth Amendment did not affect the citizenship of women any more than that of men: it prohibited the State from abridging any of her privileges and immunities (g r ) as a citizen of the United States, but it did not confer citizenship on her. That she had before its adoption The right of suffrage was not co-extensive with citizenship before the adoption of the Amend- ment, nor was it added thereby." Citizen and "legal voter" are not synonymous terms. Minors and females may be citizens, yet they are not leg al voters.' ^ " . Amy V. Smith, 1 Litt. *342 (Ky., 1822), Mills, J. Ap- oroved. Van Valkenburg v. Brown, 43 Cal. 51 (1872). » Minor V. Happersett, 21 Wall.' 166-67, 170, 175 (1874), Chase C J. See also Dred Scott v. Sandford, 19 How. 404, 423 (1856), Taney, C. J.; 2 Kent, 258; 3 Story, Const. §1687; 25 Cent. Mag. 178. 3 People V. Town of Oldtown. 88 Ul. 205 (1878) ; United States V. Anthony, U Blatch. 302 (1873). A person may be a citizen of the United States and of a State, and as such have dif- ferent rights. Citizens are the members of the political community to which they belong. They are the people who compose the com- munity, and who, in their associated capac- ity, have established or submitted themselves to the dominion of a government for the pro- motion of their general welfare and the pro- tection of their individual as well as of their collective rights.' By the definition usually given, a citizen is an " in- habitant of a city, town, or place," and so would in- clude every person dwelling in the place named; but the term is subject to various limitations, depending upon the context It may indicate a permanent resi- dent, or one who remains for a time or from time to time.2 Citizenship implies residence with intention of re- maining permanently at the particular place.' See Inhabitant; Resident. The word does not necessarily include the element of descent or inheritance, nor of sex, nor of race, nor of right to co-operate in government, nor of property.* Citizenship as affected by the Thirteenth, Fourteentli, and Fifteenth Amendmenla to the Constitution: The object sought by these Amendments was "the freedom of the slave (African) race, the security and firm establishment of that freedom, and the protec- tion of the freedman from the oppressions of those who had exercised dominion over him." But the let- ter and spirit of the Amendments "apply to all oases coming within their purview, whether the party con- cerned be African or not." ' Amendment XIII. " Neither slavery nor invol- untary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist withm the United States, or any place sub- ject to their jurisdiction." Eatifled December 18. 1865. Amendment XIV. " Ml persons born or natu- ralized in the United States, and subject to the jurisdic- tion thereof, are citizens of the United States and of the State wherein they reside. No State shaU make or enforce any law which shall abridge the privUeges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberi;y, or property, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws." Ratified July 28,1868. Amendment XV. "The right of citizens of the United States to vote shall not be denied or abridged 1 United States v. Cruikshank, 93 U. S. 549, 542 (1875), Waite C. J. ; Dred Scott Case, ante. . Union Hotel Co. v, Hersee, 79 N. Y. 461 (1880). MVinn ,;. Gilmer, 27 F. E. 817 (1886)-. 25 Am. Law Re<. 700 (1886); ib. 71M4, cases. As affecting citizen- shin 31 Alb. Law J. 465 (1885)-consiUar instructions. 4 See 16 Alb, Law J. 34, 176 (1877); 25 Am. Law Reg. 1-14 (1886), oases; 24 Cent. Law J. 540 (1887), cases; 11 Ohio, 3"; Abbott, cases. ' Slaughter-House Cases, post. CITIZEN 184 CITY by the Uiiited States or by any State on account of race, color, or previous condition of servitude." Rati- fied March 30, 1870. In the case of each Amendment, Congress is given express power to enforce the provisions thereof by appropriate legislation. The series have a common purpose: to secure to the negro race all the civil rights the white race enjoy; — to raise the colored race into perfect equality of civil rights with all others in the State ; — to take away all possibility of oppression by law because of race or color; —to secure equal protection of the laws. They are limitations on the power of the States, and enlargement of the powers of Congress. To carry out their purpose they are to be construed liberally. The Xlllth Amendment forbids all forms of invol- untary slavery — African slavery, Mexican peonage, Chinese coolie trade. It declares the personal free- dom of all the human race within the jurisdiction of the United States. After the slave had been emanci- pated, certain States so curtailed his rights that his freedom was of little value: in this originated the XCVth Amendment. The laws being still administered by the white man alone, the XVth Amendment was adopted to make the negro a voter. The XlVth Amendment conferred citizenship on the negro, defines citizenship in the United States and in the States, and protects the privileges and immunities of citizens of the United States from hostile legislation by the States. That is, it not only gave citizenship, but it denies a State power to withhold equal protec- tion of the laws, and gives Congress power to enforce its provisions by appropriate legislation, as, by re- moval of a cause from a State to a Federal court. Its enforcement is left to the discretion of Congress. In an especial sense it makes one law for black and for white. It does not enumerate rights, but speaks in general terms. It confers a new constitutional right: exemption from discrimination between persons and classes of persons by action of any State ; it does not refer to action by a private individual.^ The XlVth Amendment intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be, given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally en- 1 Slaughter-House Cases, 16 Wall. 36, 70-71 (1873), Miller, J. Regarded a " servitude " in property. Strauder v. West Virgmia, 100 U. S. 306, 310 (1879), Strong, J. S., a negro, tried for murder, had been de- nied a removal of the cause into a circuit court. Vir- ginia V. Rives, ib. 318 (1879),— in which a mixed jury, was denied. Exp. Virginia, 100 U. S. 344-48 (1879), Strong, J. That State petitioned for the discharge of one Coles, a county judge, indicted for excluding a colored man from a jury. Bush v. Kentucky, 107 id. 118-19 (1882), cases. Missouri v. Lewis, 101 U. S. 30-31 (1879), Bradley, J. Regarded a regulation of jurisdiction. Neal V. Delaware, 103 U. S. 385-36 (1880), Harlan, J. ; United States v. Woods, 106 id. 637-44 (1883), Woods, J. ; United States v. Reese, 93 id. 214, 218 (1875), Waite, C. J. titled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their per- sons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances; that no greater bur- dens should be laid upon one than are laid upon the others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than is prescribed to all for like offenses. . The Amendment does not interfere with the "police power "of the States — a regulation designed not to impose unequal or unnecessary restrictions upon any one, but to promote, with as littte individual incon- venience as possible, the general good. . . Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carry- ing out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situatfed, is not within the Amend- ment, i The XlVth Amendment forbids an ordinance which, though expressed in general terras, is directed against a particular class, as Chinese convicts, by imposing a degrading punishment, like that of cutting off the queue. 2 An administration of an ordinance for carrying on a lawful business (that of a laundry), which makes dis- criminations founded upon differences of race be- tween persons otherwise in similar circumstances, violates the XTVth Amendment.^ The XVth Amendment merely invests citizens of the United States with the constitutional right of ex- emption from discrimination in the enjoyment of the elective franchise on account of race, color, or pre- vious condition of servitude.'* No one of the Amendments confers power on Con- gress to pimish private persons who, acting without authority of the State, invade rights protected by the Amendments.^ See further Conspiracy; Right, 2, CivU Rights; School, Separate; Servitude, 1; Supfrag^e; Vagrant; War. See also Alien, 1; Allegiance; Chinese; Cor- poration, Private; Denizen; Domtcil; Expatriation; Naturalize; Person; Privilege,!; State, 3(2); Suf- frage; Territory, 2; White. CITY.6 1. An incorporated town or borough, which, in England, is or has 1 Barbier v. Connolly, 113 U. S. 31-32 (1885), Field, J. See also Pace v. Alabama, 106 id. 584 (1882); Railroad Tax Case (County of San Mateo v. South. Pacific R. Co.), 8 Saw. 251, 302 (1883); Civil Rights Cases, 109 U. S. 3, 11, 23. 24 (1883); 93 N. Y. 446. 3 Ah Kow V. Nunan, 6 Saw. 552, 562 (1879). a Yick Wo v. Hopkins, 118 U. S. 356, 365 (1886). 4 United States v. Cruikshank, 93 U. S. 542 (1875); United States v. Harris, 106 id. 637 (1882). 8 Le Grand v. United States, 12 F. R. 577, 583-85 (1882). L. civitas, citizens in a community: ca'm'a, a citizen. CIVIL 185 CLAIM been the see of a bishop, i An incorporated town.2 The word "city" may include a town,' q. v. 2. A municipal corporation of the larger class, with powers of government confided in officers who are usually elected by popular ■vote. A political division of a State, for the con- venient administration of the government.* An instrumentality, with powers more or less en- larged, according to the requirements of the public, and which may be increased or repealed at the wU] of the legislature.* In a few States cities are of the first class, of the second class, etc., according to population.* Under a constitutional power to organize cities and villages, the legislature is authorized to classify municipal corporations, and an act relating to any such class may be one of a general nature." City purpose. Any public improvement for the common benefit and enjoyment of all the citizens.' Each case must depend largely upon its own facts.' City vouchers are n on -negotiable. See under Negotiate, 2. See generally Charter, 2 ; Corporation, Municipal ; Council, 2; Fire, Department; Health, Board of; Officer; Ordinance, 1; Park, 3; Police, 8; Recorder, 2; Sewer; Sidewalk; Street: Telegraph. CIVIL. Pertaining to the citizen (Lat. civis) — the free inhabitant of an independ- ent city, in distinction from the government, the soldier, the peasant, the ecclesiastic, and persons of other classes.' 1. Contrasted with barbarous or savage, natural or uncivilized, denotes a state of society reduced to order and regular govern- ment : as in speaking of civil — liberty, gov- ernment, rights, society, qq. v. 2. Originating or existing among, pertain- ing to, or affecting, fellow-citizens of the > 1 Bl. Com. 114. ' Van Blper v. Parsons, 40 N. J. L. 4 (18IS). s Peoples. Stephens, 62 Cal. 236 (1882): Gal. Const,, Art. X, sec. 19. 4 New Orleans v. Clark, 05 U. S. 654 (1877), Field, J. '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 Kan. 431; 82 Mo. 388. ' State ex rel. Attorney-General v. Hudson, 44 Ohio St. 139 (1886), cases; Heck v. State, ib. 539 (1886). ' People V. Kelly, 76 N. Y. 487 (1879). 8 A "civil " man once was one who fulfilled all the duties flowing from his position as a civia, and his re- lations to the other members of the civitaa to which he belonged, and " civility " was the condition in which those duties were recognized and observed. Trench, Glossary, &c., 36. same state or nation, and opposed io foreign: as, a civil — commotion, rebellion, war, q. v. 3. Accorded by just and equal laws; as opposed to political or that which is actually or practically enjoyed under law : as, again, civil — rights or liberty, qq. v. 4. Existing in contemplation of law; attrib- utable under municipal law ; and contrasted with natural: as, civil — life, death, disabil- ity, qq. v. 5. Concerning the rights of and wrongs to individuals considered as private persons, in contradistinction to criminal or that which concerns the whole political society, the com- munity, state, government : as, civil — action, case, cause, code, court, damage, injury, jurisdiction, law, obligation or responsibility, proceeding, procedure, process, remedy, re- port, side, qq. v. 6. Pertaining to the administration of gov- ernment, and contrasted with military and ecclesiastical: as, civil — office, officer, ten- ure, qq. V. " Civil " is used, in contradistinction to " barbarous " or " savage," to indicate a state of society reduced to order and regular government; to "criminal," to indi- cate the private rights and remedies of men as mem- bers of the community, in contrast to those which are pubhc, and relate to the government; to "military" and "ecclesiastical;" to "natural " or "foreign." In the Constitution, seems to be contradistinguished from '* military," to indicate the rights and duties relating ■ to citizens generally, as distinct from those of persons engaged in the land and naval service of the govern- ment. ^ Civiliter mortuus. Civilly dead. See Civil, 4. CLAIM.2 A challenge by a man of the propriety [property] or ownership of a thing which he has not in possession, but which is wrongfully detained from him.' In a juridical sense, a demand of some matter as of right made by one person upon another, to do or to forbear to do some act or thing as a matter of duty.'' A more limited but equally explicit definition is that given by Lord Dyer in Stowel's Case.*< ' The assertion, demand, or challenge of something as a right, or the thing thus de- manded or challenged.* 1 [1 Story, Const. § 791. » L. clamare, to call out, demand. s Stowel V. Zouoh, 1 Plow. 359 (1568), Lord Dyer. * Prigg V. Pennsylvania, 16 Pet. 615 (1842), Story, J. 'Fordycet). Godman, 20 Ohio St. 14 (1874), Scott, J. CLAIM 186 CLAIM The subject-matter of a claim is the facts or cir- cumstances out of which the claim arises or by reason of which the supposed right accrues.' Something asked for or demanded on the one hand and not admitted or allowed on the other. ^ When the demand is admitted it is not a mere claim, but a debt. It no longer rests in mere clamor or peti- tion, but is something done upon whicli an action may- be maintained. Thus, "a claim upon the United States " (E. S. § 3477) is something in the nature of a de- mand for damages arising" out of some alleged act or omission of the government, but not yet provided for or acknowledged by law.^ Every account upon which any siun of money or other thing is or is claimed to be due to the person presenting it is a claim or demand; but every claim , or demand is not an " account." The,terms, however, may be used synonyniously.s May refer to such deb't or demand against a de- cedent as might have been enforced against him in his life-time by personal action for the recovery of money, and upon which only a money judgment could have been rendered.* Claims against an estate are those in existence at the death of the deceased. Other claims are properly denominated "expenses of administration."'' See Demand, 1. Referring to public lands, relates to a settler's right or improvement on land the fee of which is in the government.* Within the meaning of Rev. St., § 3438, providing for the punishment of any person who prefers a claim (pension) against the Government, knowing the same to be false, " claim " is not used in the sense of a de- mand theretofore presented, but of a demand then existing, and known to be wrongful. The act of pre- senting it in the fii'st instance is denounced as a crime. ' Under that section one is guilty who presents a claim which he believes to be just, but seeks to sub- stantiate by the affidavit of a person who, to his knowledge, certifies to a fact of which the affiant knows nothing.^ Adverse claim. See Possession, Ad- verse. Claim and delivery; claim-bond. See Replevin, 1. ' Fordyce v. Godman, ante. 2 Dowell V. Cardwell, 4 Saw. 238 (1877), Deady, J. ' Stringham v. Supervisors, 24 Wis. 600 (1869), Dixon, C. J.; 43 id. 644; 66 id. 170, 245; 40 Ala. 147. 1 Fallon V. Butler, 21 Cal. 33 (1862), Field, 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. 'Dodsonu Nevitt, 6 Mouta. 530 (1885); McLaughlin V. Winner, 63 Wis. 128 (1885). ' Bowman v. Torr, 3 Iowa, 574 (1856); United States V. Wilcox, 4 Blatch. 388-89 (1859). ' United States v. Rhodes, 30 F. R. 433 (1887), Brewer, J. « United States v. Jones, 33 F. E. 483 (1887), Simon- ton, J. Claim of title. See Color, 3. Of title. Claimant. 1. One who demands a thing as a matter of right. 3. One who has filed a claim as the law re- quires. I 3. In admiralty, a person admitted to de- fend a libel in rem, q. v. A bona fide claimant to land is one who supposes that he has a good title and knows of no adverse' claim.'' See Faith, Good. ' Under preemption laws " claim " and " claimant " are frequently used in connection with the right to acquire title to a part of the public lands upon com- pliance with the laws.' Counter-claim. A cross-demand, exist- ing in favor of a defendant. Includes ife- Goupment and set-off. " Counter " means contrary to, contrary way, oppo- sition; and "claim," the demand of anything that is in the possession of another, the right to demand of another.* The term of itself imports a claim opposed to, or which qualifies, or at least in some degree affects, the plaintiff's cause of action or the right to the relief to which he would otherwise be entitled by his action. " Consists of a set-off or claim by way of recoupment, or is in some way connected with the action stated in the complaint." ° Is -broader than "set-off;" includes not only de- mands the subject of set-off and recoupment, but equitable demands. "^ Under the laws of many States, if the claim and coimter-claim are both established, the latter reduces the former; but if the counter-claim alone is estab- lished, judgment is recovered tor the amount of it. See further Set-off. Non-claim. Omission or neglect to make a demand ; failure to assert a claim within the time limited by law. "An infant shall lose nothing by non-claim, or neg- lect to demand his x'ight." ' A statute of non-claim has all the characteristics of a statute of limitations.^ See Affidavit, Of claim; Courts, United States; Disclaimer; Interplead; Quitclaim; Reclaim; Stale. ' [Adams V. WoitUI, 46 Ga. 295 (187-'). 'Morrison v. Robinson, 31 Pa. 459(18-8): 1 Wash. 79. See also 13 F. R. 152, ■ = United States v. Spaulding, 3 Dak. 92-93 (1882). * [Great Western Ins. Co. v. Pierce, 1 Wyom. 49-60 (1872). Fisher, C. J. i Dietrich v. Koch, 35 Wis. 626 (1874), Lyon, J.: 24. How. Pr. 329, 33i; 23 Barb. 143; 21 N. Y. 191, 19o'; 63 id. 549; 40 Ark. 78; 7 Ind. 533; 3 Pars. Contr. 741; Roberts V. Donovan, 70 Cal. 113 (1886), cases. In actions ex delicto, see 20 Cent. Law J. 363-65 (1886), cases. = Roberts v. Donovan, 70 Cal. n.3 (1886), cases; Cal. Code Civ. Proc, §438. ' 1 Bl. Com. 405. 8 Williamson v. MoCrary, 33 Ark. 470 (1878). CLANDESTINE 187 CLERK CLANDESTINE. See Convbyancb, 3, Fraudulent; Distress; Fraud. CLASS. Persons or things ranked to- gether for like action, for similar or uniform treatment, as possessing a common attribute, or as being in the same category. Used of legatees, obligees, and other persons;' of cities;' of legislation. = See City, 8; Enuueratiok; Leoacy. CLAUSE. A separate portion : a part of a written instrument. One of the subdivisions of a written or printed document.* Clauses take their names from the nature o£ the provision intended to be made by them. Of the more common are: clause of jurisdiction — in a bill in equity; clause of accruer; commerce, dictionary, en- acting, guaranty, penal, residuai-y, and sweeping clause, qq. v. CLATJSinyn. L. a close; an inclosure. Quare dausum fregit (pi. fregerunt). Wherefore he broke the close. The em- phatic words in the old Latin writ command- ing a defendant to show cause why he made an alleged unlawful entry upon plaintiff's land. Abridged to trespass quare dausum, gu. d. fr., and g. c. /. See Close, 3; Trespass. CLEAN. See Hand, 4 ; Lading, Bill of. CLEAB. 1, V. To clear out a highway is to clear it out for all the purposes to which it is dedicated.5 " Clearing land," in the absence of words of limita- tion, means removing therefrom all the timber of every size, except taking out the stumps." 2, adj. Free from, as, from taxes: said of an annuity.'' Clear yearly value: free from all out-go. = Clearly. " Clearly established by satis- factory proof" is- equivalent to established by proof beyond reasonable doubt. » To require insanity, as a defense in homicide, to be proved by evidence which " clearly preponderates " is practically saying that it must be proved beyond aU doubt or uncertainty.'" 1 16 Pick. 132; 17 Wend. 52. = 85 Pa. 401; 106 id. 377; 32 Kan. 431; 82 Mo. 388; 44 Ohio St. 139, 639. a 109 U. S. 24. 4 Eschbach v. Collins, 61 Md. 499 (1883). s Winter v, Peterson, 24 N. J. L. .528 (1854). •Seavey v. Shurick, 110 Ind. 496 (1686): Harper v. Pound, 10 id. 35 (1857). ' Hodgeworth v. Crawley, 2 Atkyns, 393 (1793). STyrconnel v. Ancaster, 2Ves. Sr. 504 (1754). » Peoples. Hamilton, 62 Cal. 335 (1882). " Coyle V. Commonwealth, lOO Pa. 580, 577 CLEARANCE. A certificate from the collector of customs at a port that a vessel has complied with the customs and health laws, and has permission to sail.i CLEARING-HOUSE. The object of a clearing-house association is to effect at one time and place the daily exchanges between the banks which are members of the associa- tion, and the payment of the balances result- ing frota such exchanges. 2 Sending a note through the clearing-house is not a formal demand for immediate payment made during business hours, but it is equivalent to leaving the note at the bank for collection from the maker on or be- fore the close of banking hours.' See Loan, Certifi- cate. CLEARLY. See Clear, 3, Clearly. CLERG-Y. Persons in holy orders ; eccle- siastics, as a class ; also, benefit of clergy. Clergyable. Admitting or entitled to the benefit of clergy. Benefit of clergy. Exemption from capital punishment, anciently allowed to churchmen, and, later, to laymen. Originated in the regard princes had for the church, and the ill use made of that regard. In time, extended to the laity, and made to include all felonies. - The claimant "prayed his clergy." If he could read a psalm correctly (usually, the fifty-first), he obtained a trial before twelve " clerks," q. v. They heardhim on oath, with his witnesses and compurgators, who at tested their belief in his innocence.' Abolished in England by 7 and 8 Geo. IV (1827), c. 28; and in Federal practice by act of April 30, 1790. Was part of the common law of the older States.* Clergyman. See Communication, Priv- ileged, 1. CLERK. 1. A member of the clergy. The clergy, as they engrossed almost every Other branch of learning, were remarkable for their study of the law. The judges were usually created out of the sacred order, and all the mf erior ofdcers were sup- plied by the lower clergy, which occasioned theh' suc- cessors to be denominated " clerks." » 2. A person employed to keep records; as, a clerk of a court. Clerk of courts. The chief clerk of the courts of quarter sessions and oyer and terminer. (Penn.) See Prothonotary ; Min- utes, 1. ' See E. S. §§ 1197, 4200, 4207. 2 Nat. Exchange Bank v. Nat. Bank of North America, 132 Mass. 148 (1882). a 4 Bl. Cora. 356. 4 See R. S. § 5329; 1 Bish. Cr. L. § 936; 1 Chitty, Cr. L. 667; 1 Steph. Hist. Cr. L. Eng. 469-72. '1 Bl. Com. 17. CLIENT CLOUD Clerical error. See Eeroe, 3 (1); Rec- ord, 3, Judicial. 3. A person employed to keep minutes, ac- counts, and the like. A person, employed in an office, public or private, for keeping records, whose business is to write or register in proper form the transactions of the tribunal or body to which be belongs.! An employee who attends to sales no further than delivering goods manufaiptm-ed, and keeping a memo- randum of the delivery for a temporary purpose, is not a " clerk " within the meaning of the rule which requires proof of the original entries.'' See Agent; Servant, 8; Entky; II, 1. CLIENT.s One who employs a lawyer professionally. Clientage. The patronage of clients ; pro- fessional patronage. A client is one who applies to an advocate for counsel and defense ; one who retains an attorney, is responsible to him for his fees, and to whom the attorney is responsible for the management of the suit.* Sergeants and barristers raay taKe upon them the protection of suitors, plaintiffs and defendantsr who are therefore called their "clients," like the depend- ents upon the Roman orators.^ Among the Romans, the '"patron" was the legal adviser of the client, maintained and defended him in his lawsuits — cared for his interests, both public and private. The *' client " contributed toward the mar- riage portion of the patrbn^s daughter, to his ransom, to the costs and penalties of lost lawsuits, to the ex- pense of any public office held by the patron. Neither could 'accuse, testify or vote against the other. The relation resembled kinship. It was the glory of illus- trious families to have many clients.^ See Attorney; Communication, Privileged, 1. " CIjOS!Ei. As a verb and an adjective, preserves its vernacular senses, except in the compound "foreclose," q. v.; as a noun, has the technical meaning noted below. 1, V. (1) To end, terminate, complete : as, to close a bargain or negotiation.' (3) In a statute providing that places where intoxicating liquors are sold shall be ' ' closed on Sundays," the meaning is that sales shall be entirely stopped, the traffic shut off effeot- 1 People V. Fire Commissioners, 78 N. Y. 443 (1878), Allen, J. See also Boss v. Heatheook, S7Wis. 96 (,1888). 2 Sickles V. Mather, 20 Wend. 72, 74 (1888). ^ F. client, a suitor: L. cliens, one who hears, listens to advice. ' McFarland v. Crary, 6 Wend. 813 (1830). «3B1. Com. 28; 3 id. 64. , ' See 2 Bl. Com. 31 ; Wharton's Law Diet. ' See 18 Barb. 60; 43 Sup. Ct., N. Y., 454. ually, so that drinking and the conveniences of drinking shall be no longer accessible, i A saloon is not "closed," withii the meaning of a l£Lw requiring such places to be closed at certain times, as long as it is possil)le for persons desiring liquor to get in peaceably, whether by an outside en- trance or any other, or as long as a customer, who Is inside at the time for closing, remains inside. And it is not important that there is no one attending bar, if the liquor is accessible, nor is it important that no liquor is sold.' 2, adj. Not proper for public inspection.; hence, sealed on the outside : as, a close writ or roll ; opposed to patent in letters-patent. See Patent, 1 (1). Not admitting corporators generally to vote for officers : as, a close corporation, q. v. 3, n. An'interest in the soil.' Taking sheaves from another's close is equivalent to a taking from his land." A portion of land, as, a field inclosed by a hedge, fence, or other sensible inclosure.* ' Every imwarrantable entry on another's soil the law entitles a trespass by "breaking his close: " the' words of the writ of trespass commanding the defend- ant to show cause quare clausum quei-entis /regit. For every man's land is, in law, inclosed' and set apart from his neighbor's land.^ See Clatjsum; En- closure; Inclose. CLOTHE. See Vest. CLOTHniG. See Apparel; Exemp- tion. CLOUD. "Cloud," and the fuller and more frequent expression " cloud upon the title," import that there is in existence something which shows a prima facie right in a person to an interest in realty in the pos- session of another. A cloud exists upon a title where an instru- ment is outstanding which is void, or au un- founded claim is set up which complainant has reason to fear may at some time be used injuriously to his rights.6 ' Questions as to what constitutes a cloud upon a title and what character of title the complainant must 1 Kurtz V. People, 33 Mich. 382 (1876) ; People v. Cum- merford, 68 id. 331 (18&5); 49 id. 337: 62 id. 566. See also 59 Ala. 64; 47 Conn. 276; 65 Ga. 568; 57 111. 370; 68 id. 420. 2 People V. Cummerford, 58 Mich. 338 (1888), cases, Morse, C. J. ' Richardson v. Brewer, 81 Ind. 108 (1881). * Lochlin v. easier, 52 How. Pr. 45 (1875). « 3 Bl. Com. 209. "Chlpman u. City of Hartford, 21 Conn. 495 (1852); "Ward V. Chamberlain, 2 Black, 444-16 (1862), cases- Waterbury Savings Bank v. Lawler, 46 Conn. 245 (1878); Teal v. Collins, 9 Greg. 93 (1881). CLUB LAW 189 COCK-FIGHTING have, to secure relief in equity, are decided upon principles long established. Prominent among them are: that the title of the complainant must be clear; that the pretended title, which is alleged to be a cloud upon it, must not only be clearly invalid or inequitable, but must be such as may, in the present or at a future time, embarrass the real owner in controverting it.' Independently of statutes, the object of a bill to re- move a cloud upon a title, and to quiet the possession, is to protect the owner of the legal title from being disturbed in his possession or harassed by suits in re- gard to that title; and the bill cannot be maintained without clear proof of both possession and legal title in the plaintiff." The remedyis to cancel the instrument; " or to an- nul or modify the proceeding or record which creates the cloud. Where the illegality of an agreement, deed, or other instrument, appears upon the face of it, so that its nullity cam admit of no doubt, a court of equity will not direct it to be canceled or delivered up. There can be no danger that lapse of time may de- prive the party of his full means of defense. Such a paper cannot, in strictness, be said to create a cloud, nor be a means of vexatious litigation, or of serious injury.* A bill in equity lies to remove a cloud upon the title to realty where there is not a plain, adequate, and complete remedy at law.* The jurisdiction of a court of equity is an independ- ent source or head of jiuisdiction, not requiring any accompaniment of fraud, accident, mistake, trust, ac- count, or any other basis of equitable intervention.' The decree, unless otherwise expressly provided by statute, is not a judgment in rem, establishing a title in land, but operates in personam only, by restraining the defendant from asserting his claim, and directing him to deliver up his deed to be canceled, or to exe- cute a release to the plaintiff.' See Quiet. Compare Coloe, 2, Of title. CLUB IiA-W. The use of force or violence for the redress of wrong, actual or alleged. CLUBS. Associations of persons for the promotion of a common purpose. In this sense " club " has no very definite meaning, aubs are formed for all sorts of purposes, and there is no uniformity in their constitutions and rules.* I Phelps V. Harris, 101 U. S. 374-75 (1879), cases; GU- man v. Van Brunt, 29 Minn. 272 (1882), cases. ' Frost V. Spitley, 121 U. S. 556 (1887), cases. Gray, J. ; Harland v. Bankers' & Merchants' Tel. Co., 33 F. K. 308 (1887). » Fox V. Blossom, 17 Blatch. 356 (1879), oases. « 1 Story, Eq. § 700a. » Eussell V. Barstow, 144 Mass. 130 (1887). Where the alleged owner is in possession he cannot maintain a writ of entry without abandoning the possession. •Dull's Appeal, 113 Pa. 510, 515-18 (1886), cases. See also HoUand v. ChaUen, 110 U. S. 24 (1884); Pomeroy, Eq. J. 1 1398. ' Harte v. Sansom, 110 U. S. 155 (1884), cases. 8 Commonwealth v. Pomphert, 137 Mass. 507, 564 (1884). See 59 Ala. 34; 79 ni. 85; 48 Ind. 21; 32 Iowa, 405; 55 Md. 566; 8 Q. B. D. 373. A club of persons may own intoxicating liquors, and employ one member as steward to deliver drinks to other members upon the presentation of checks which are sold by the steward, the money received being used to buy other liquors as the properly of the club, without violating a law forbidding the keeping of intoxicating liquors with intent to sell them.' By-laws, which vest in a majority the power of ex- pulsion for a minor offense, are, so far, void. The power of disfranchisement which destroys the mem- ber's franchise must be conferred by statute; it is never sustained as an incidental power except on con- viction for an infamous offense, or for the commission of an act against the society which tends to its injury." See Association. CO. 1. An abbreviation of company and of county. See Company, 1. 3. The Latin con (q. v.) used as a prefix, and meaning: with, together with, joined with — and, hence, companion, fellow, asso- ciate : as in co-administrator, co-conspirator, co-defendant, co-executor, co-heir, co-obligor, co-partner, co-plaintiff, co-salvor, co-surety, co-tenant, co-trespasser — in which the per- son spoken of possesses the characteristics of another person whose office or relation is more particularly mentioned. See each of those simple words; also Joint. COACH. A kind of carriage, distin- guished from other vehicles chiefly as being a covered box, hung on leathers, with four wheels. 3 See Railkoad ; Wagon. COAIj. See Acqua, Currit, etc. ; Min- eral; Waste, 3. COASTING TRADE. By act of Con- fess of Februai-y 18, 1793, commercial in- tercourse carried on between different dis- tricts in different States, between different districts in the same State, and between dif- ferent places in the same district, on the sea- coast or on a navigable river.* The reference is to vessels engaged in the domestic trade, plying between ports in the United States, as distmguished from vessels engaged in the foreign trade or plying between a port of the United States and a port in a foreign country." COAT OF ARMS. See Heirloom. COCK-FIGHTING. 'See Cruelty. 3; Game, 3. 1 Commonwealth v. Pomphert, ante. 2 Evans u. Philadelphia Club, 50 Pa. 107 (1865). See generally 5 Alb. Law J. 226 (1872), cases; Dawkms v. Antrobus, 37 Eng. E. 237 (1881); Loubat v. Le Roy, 40 Hun, 546 (1886), cases. » Turnpike Co. v. NeU, 9 Ohio, 12 (1839). • Steamboat Co. v. Livingston, 3 Cow. 747 (1825). » [San Francisco v. Navigation Co., 10 Cal. 507 (1858), cases. CODE 190 COEECION CODE.i A reduction and revision of the law and procedure of a political communitj', upon one or more general subjects, and the enactment of this new, systematized state- ment as one statute. An enactment of a more or less complete system of law, or of procedure, or of both law and procedure, upon one or more general subjects. Codifleation. The act or process of re- ducing all the law upon one or more general subjects to a code. The reduction of the existing law to an orderly written system, freed from the need- less technicalities, obscurities, and other defects which the experience of its adminis- tration has disclosed.2 Codify. To reduce to the form of a code. Uncodified: not reduced to a code. Codifler. One who makes or assists in making a code. " A code ought to be based upon the principle that it aims at nothing more than the reduction to a defi- nite and systematic shape of the results obtained and sanctioned by the experience of many centuries.^ The codes of New York have been the most cele- brated and influential in this country. In that State the work of codification began under the constitution of 1846. Commissioners reported as complete the codes of Civil and Criminal Procedure in 1850, the Po- litical 'Code in 1859, the Penal Code in 1864, and the Civil Code in 1865. Each of these has since been revised. The code of Civil Procedure, with some changes, has been adopted in Arizona, Arkansas, Cali- fornia, Colorado, Connecticut, Dakota, Idaho. Indiana, Iowa, Kansas, Kentucky, Minnesota, Mississippi, Mis- souri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oregon, South Carolina, Utah, Washington, Wis- consin, and Wyoming; and the code of Criminal Pro- cedure, in Arizona, Arkans£ts, California, Dakota, Idaho, Indiana, Iowa, Kansas, Kentucky, Minnesota, Montana, Nebraska, Nevada, Oregon, Utah, Washing- ton, Wisconsin, and Wyoming. California and Dakota have also adopted the substance of tjie other three codes. Other States have partial revisions or consoli- dations sometimes called " codes." The New York codes are said to have also had an influence in fram- ing the system adopted in England by the Judieatm-e Act of 1873.« In 1883 a codification of civil and criminal statutes was adopted in Alabama; a code of civil procedure in 1 F. code; L. codex^ a tablet, a. book. Codify, codi- fler, and codification are pronounced cod' — . 2 3 Stephen, Hist. Cr. L. Eng. 351. ' Mr. Justice Stephen. ■■See 19 Alb. Law J. 193 (1879)— David Dudley Field; 1 Kent, 475, note; Edinb. Eev., Oct., 1869; Abbott, Bou- vier,Law Diets. Connecticut; and a civil code in Virginia, taking effect January 1, 1888. A large portion of the modern codes is but declara- tory of the common law as expounded by the courts.' A code is a general collection or compilation of laws by public authority; a collection and compila- tion of general statutes. . The rule is, that when a statute is revised, or when one statute is framed from another, some parts being omitted, the parts so omit- ted are annulled. It must be presumed that the leg- islature has declared its entire will.^ See Revise. CODICIL.3 A supplement to a will, or an addition made by the testator, annexed to, and to be taken as part of, a testament : being for its explanation, or alteration, or to make some addition to, or else some subtraction from, the former disposition of the testator.* A clause added to a will after its execution ; the purpose of which usually is to alter, en- large, or restrain the provisions of the will, or to explain, confirm, and republish it.' Part of the will, to be construed with it, as one en- tire instrument. . . But the will is not altered by the codicil, except by express words or necessary im- plication. It is to be deemed altered by necessary implication where a subsequent provision is inconsist- ent with and repugnant to a prior provision. But where they can stand together, both shall have effect. ^ The effect of republication of the will by the addi- tion of a codicil is to bring both instruments to the same date.' See Will, 2. COERCION. Compulsion : constraint ; duress. Direct or positive coercion. "When a person by physical force is compelled to do an act against his will. Implied or legal coercion. When a person, under legal subjection to another, is induced to do an act involuntarily. As free will is necessary to accountability, a person acting under coercion has no will. But the command of a superior to an inferior, of a parent to a child, of ' Cincinnati v. Morgan, 3 Wall. S93 (1865). = Mobile. &o. E. Co. v. Weimer, 49 Miss. 739 (1874). See also Sedgw. Stat. 429. See generally 3 South. Law Eev., o. s., 222 (1874); 2 id., h. s., 215 (1876); 3 id. 573 (1877); 6 id. 1 (1880); 19 Am. Law Rev. 14-17(1884); 20 id. M7, 316-38 (1886); 21 id. 194-300 (1887); 2 Law Q. Rev. 125 (1886); 33 Alb. Law J. 244-47, 264, 321 (1887); 36 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. 3 L. codicillus, a title book or writing. 4 3 Bl. Com. 500. See 4 Kent, 631 . 6 Lamb v. Lamb, 11 Pick. 375 (1831), Shaw, C. J. See Dunham v. Averill, 45 Conn. 79 (1877); Grimball v. Patton, 70 Ala. 631 (1881) ; Fairfax v. Brown, 60 Md. 58 (1882). • Hatcher «. Hatcher. 80 Va. 173 (1885). COGNATI 191 COIN a m^ter to a servant, or of a principal to his agent, dofes not. ordinarily, amount to coercion. If a wife acts in company with her husband in the commission of a tort or a crime other than treason, homicide, or other heinous felony, it is presumed, at coinmon law, that she acted under coercion and with- oui; guilty intent. But non-coercion maybe proved.' See Duress; Will, 3. COGNATI. See Natus, Cognati. ■ COGNIZANCE.2 i. Recognition; ac- knoTvledgment. When a defendant in replevin justifies a distress of goods in another's right as his bailift or servant, he is said to make cognizance; that is, he acknowledges the taking, but insists that it was legal.= Compare Avowbt; Recognizance. 2. Judicial recognition ; judicial power ; jurisdiction. A word of the largest import, embracing all power, authority, and jurisdiction: as in the provision that a particular court shall have full cognizance of capital crimes.* COGrNOVrr. L. Hb has confessed or acknowledged it. Cognovit actionem. He has confessed the action. Sometimes called a cognovit. An acknowledgment by a defendant that an action brought against him is rightly brought, and that the sum named is due to the plaintiff.'' An unsealed confession of judgment given to the plaintiff after suit is brought. A warrant of attorney is imder seal and given before suit is entered." See Attorney, Warrant of. COHABIT." 1. The primary meaning is to dwell with some one, not merely to visit or to see that one.' In criminal statutes, to live together as husband and wife. As, in the act of Congress of March 32, 1882, c. 47, forbidding polygamy." >4B1 Com. 28-39; State u. Shee, 13 E. I. 636 case^- State v. Boyle, ib. 5-^8 (1883); 51 Me. 308; 97 Mass. 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. iKSg'-nl-, or k5n'-i-zans. F. cognoissance, knowl- Mge: L. cognoscere, to know,— Skeat. Also cogni- sance, and, formerly, conusance. 3 3 Bl. Com. 150. • Webster v. Commonwealth, Shaw, C. J. See also 08 N. Y. 101 86, 298; 4 id. 278. "Smith, Contracts, 280. • 3 Bl. Com. 397. 'L. coTi, with; habitare, to have often,*, e., abide with,— 54 Me. 366. • rCalef V. Calef , 54 Me. 366 (1867), Appleton, C. J. • Cannon v. United States, 116 U. S. 55, 74-75 (1885). To live together in the same house as mar- ried persons live together, or in the manner of husband and wife.i 2. In a popular sense, sometimes found in statutes and decisions, includes the idea of occupying the same bed, and sexual inter- course. ^ Cohabitation. As a fact presumptive of mar- riage, not a sojourn, nor a habit of visiting, nor even a remaining with for a time. . . Neither cohabitation nor reputation of marriage, nor both, is marriage. Conjoined, they are evidence from which a presump- tion of marriage arises. The legal idea of cohabita- tion is that which carries with it a natural belief that it results from marriage only. To cohabit is to live or dwell together, to have the same habitation; so that where one lives and dwells there the other always lives and dwells. The Scotch expression, " the habit and repute " of marriage, conveys the true idea better, perhaps, than our own. When we see a man and a woman constantly dwelling together, we obtam the first idea in the presumption of marriage; and when we add to this that the parties thus constantly living together are reputed to be man and wife, and so taken and received by all who know them both, we take the second step in the presumption of the fact of a mar- riage. Marriage is the cause, these follow as the effect. . An inconstant habitation and a divided reputation of marriage carry with them no full belief of an antecedent marriage as the cause. Irregularity in these elements of evidence is at once a reason to think that there is irregularity in the life itself which the parties lead: unless attended by independent facts, which aid in the proof of marriage. Without con- comitant facts to prove marriage, such an irregular cohabitation and partial reputation of marriage avail nothing in the proof of marriage.' See Condonation; Desertion, 1; Lascivious; Mar- riase; Reputed. COIN. A piece of metal stamped and made legally current as money.* "Coin " and ' ' coinage " apply to the stamp- ing of metal in some way so as to give them currency.^ " The Congress shall have Power . . To coin Sloney, regulate the Value thereof, and of foreign 5 Cush. 400 (1850), 2 Bl. Com. 38; 3 id. 1 Jones V. Commonwealth, 80 Va. 20 (1885), Faunt- leroy, J. 2 See 1 Bishop, Mar. & D. § 777, note, cases; 116 U. S. 75; 4 Paige, 425. As a married right, 19 Cent. Law J. Ui (1884), cases. = Yardley'8 Estate. 75 Pa. 211 (1874), Agnew, C. J. See also Brinckle v. Brinckle. W Leg. Int. 428 (187T); Hynes v. McDermott, 91 N. Y. 4-iO-08 (1883i, cases; Teter v Teter, 88 Ind. 493 (1883), cases ; Appeal of Bead- ing Fire Ins. & Trust Co., 113 Fa. SOB (1886), cases; 1 Whart Ev. ^? 84-85, cases. .United States v. Bogart, 9 Bened. 315(1878), Wal- lace, J.; 5 Phila. 403; 16 Gray, 240. 6 Meyer v. Roosevelt, 35 How. Pr. 105 (1803). COIN 193 COLLECT Coin." 1 " No State shall . coin Money " or " make any Thing but gold and silver Coin a Tender in Payment of Debts." ^ gee Tender, 2 (2), Legal Tender Acts. The gold coins of the United States shall be a one-dollar piece, which, at the standard weight of twenty-flve and eight-tenth grains, shall be the unit of value; a quarter-eagle, or two and a half dollar piece; a three-dollar piece; a halt-eagle, or flve-doUar piece; an eagle, or ten-dollar piece; and a double eagle, or twentj--dollar piece. The silver coins shall be [a trade-dollar,] ' a half- dollar or fifty-cent piece, a quarter-dollar or twenty- flve-cent piece, a dime or ten-cent piece. The weight of [the trade-dollar shall be tour hundred and twenty grains troy; the weight of] the half-dollar, twelve grams and one-half of a gram; the quarter-dollar and the dime, respectively, one-half and one-fifth of the weight of said half-dollar. ' The standard of both gold and silver coins shall be such that of one thousand parts by weight nine hun- dred shall be pure metal and one hundred of alloy. The alloy of the silver coins shall be of copper. The alloy of the gold coins shall be of copper, or of cop- per and silver; but the silver shall in no case exceed one-tenth of the whole alloy. The minor coins shaH be a five-cent piece, a three- cent piece, and a one-cent piece; and their weight, respectively, seventy-seven and slxteen-hundredths grains troy, thirty grains, and forty-eight grains. The alloy of the five and three cent pieces shall be of cop- per and nickel, three-fourths to one-fourth; the alloy of the one-cent piece, ninety-five per centum of copper and five per centum of tin and zinc. Any gold coins in the treasury, when reduced in weight by natural abrasion more than one-half of one per centum below the standard weight, shall be re- coined.* There shall be coined silver dollars of the weight of four hundred and twelve and a half grains troy of standard silver, as provided in the act of January 18, 1837 (5 St. L. 137).= Foreign coins. The value of foreign coins as ex- pressed in the money of account of the United States shall, be that of the pure metal of such coin of stand- ard value; and the values of the standard coins in cir- culation of the various nations of the world shall be estimated annually by the director of the mint, and be proclaimed on the first day of January by the secre- tary of the treasury.' The valuation thus made is conclusive upon custom- house officers and importers.' All foreign gold and silver coins received in pay- • 1 Constitution, Art. I, § 8, ol. 6. '■" Ibid. § 10, cl. 1. See generally Bronson v. Eods, 7 Wall. 247-^ (1808), Chase, C. J. ' Act 3 March, 1887 (24 St. L. 684), provides for the ex- change and retirement of the trade-doUar. * B. S. §§ 3511-15. » 1 Sup. E. S. p. 306: Act 28 Feb., 1878. » Act 3 March, 1873: E. S. § 3564. ' Arthur, Collector v. Kichards, 23 Wall. 246 (1874); Cramer v. Arthur, 102 U. S. 612 (1880); Hadden v. Mer- ritt, 115 id. 25 (1885). ment for moneys due to the United States shall, before being issued in circulation, be coined anew.' See Attachment, Execution; Cubebnt, 2; Monky. COLD. See Cooung. COIiLATEBAL.2 Does not depart from its non-legal, popular signification. 1 . Applied to a person or person al relation — that whicli is by the side, and not in the direct line: as collateral or a collateral — ancestor, charge, consanguinity, descent, heir, inherit- ance, kindred, kinsmen, relatives, qq. v. 2. Said of a right or a thing — depending upon another as the more important ; addi- tional to some other as principal : as collat- eral or a collateral — assurance, covenant, deed, estoppel, fact, issue, limitation, obliga- tion, promise, security, undertaking, war- ranty, qq. V. Collaterally attack or impeach. To question the validity of a thing done in court, in an independent proceeding : * as to collaterally attack a judgment or a judicial sale, qq. v. Not permitted, except for fraud, of a matter reg- ularly adjudicated by proper authority. See Adjudi- cation, Former. Collaterals. 1. Collateral kinsmen. 2. Collateral securities, q. v. COLLEAGUE. See Associate, Coun- sel, Judge. COLLECT. To gather together: to bring into the custody of one person. 1. To gather the assets of a decedent's estate : as for one to collect the goods of the estate for safe-keeping, until a will is proven and an executor qualified, or an adminis- trator appointed.* 2. To receive or obtain money. Collector. (1) A public officer charged with the duty of exacting and receiving payment of moneys due the government, as of taxes, or of customs or revenue duties. See Duty, 2. (2) A private person employed to demand and receive payment of money ; a collecting agent, q. v. Collection. The act or fact of claiming and receiving payment of money. In New York, a guaranty of the collection of a de- mand, or that it may be collected, or is collectible. » Act 9 Feb., 1793: E. S. § 3566. 'L. coUateralis, side by side: con, by; latvs, side. ' See generally 25 Cent. Law J. 387 (1887), cases. * 2 Bl. Com. 510, COLLECT 193 COLLEGE means that payment can be obtained either by demand or by resort to the proper legal remedy.' See Re- cover. Collect ondelivery. The initials C. 0<.D. mean collect on delivery, that is, deliver upon payment of the charges due to the seller (or the price and to the carrier for the cajriage of the goods. The initials have ac- quired a fixed meaning v^hich the courts and juries may recognize from their general in- formation.2 The contract of the carrier is not only for the safe carriage and deliveiy of the goods to the consignee, but also that he will collect the price and the charges due thereon, and return the price to the consignor. Should the goods be destroyed by any other agency than an act of God or of a public enemy, the carrier is liable, as in other cases.^ See Caarier, Common. Collecting agent or agency. A collec- tion to be made by a collecting agent imports an undertaking by such agent himself ; not that he receives a claim for transmission to another for collection, for whose negligence he is not to be responsible.^ For collection. Indorsed on negotiable paper, restrains negotiability. The indorser may prove that he was not the owner and did not mean to give title to it or to its pro- ceeds when collected. Such indorsement is not intended to give currency or circulation to' the paper ; its effect is limited to an au- thority to collect.* There is a marked difference of opinion, expressed in the adjudged cases, respecting the liability of a col- Jecting banker for the manner in which the notary, to whom notes are delivered for presentment and pro- test, discharges his duty. . . The supreme court of New York, in AUen v. Merchunts' Bank of New York,' said that "a note or bill of exchange left at a bank And received for the purpose of being sent to a distant 1 See Moakley v. Kiggs, 19 Johns. 70 (1821); Taylor v. Bullen,6Cow. 626(1827); Cumpstoni;. McNair, 1 Wend. 460 (1828); Backus v. Shipherd, 11 Wend. 634 (1834); liOveland v. Shepard, 8 Hill, 139 (1841). "State V. Intoxicating Liquors, 73 Me. 279 (1888), Peters, J. See also United States Express Go. v. Kelfer, 59 Ind. 867 (1877); American Express Co. v. iesem, 39 111. 333 (1866). » See Pilgreen v. State, 71 Ala. 368 (1882) ; The niinois, 2 Flip. 420 (1879); Higgins v. Murray, 73 N. Y. 252, 254 1(1878); Wagner v. Hallack, 3 Col. 184 (1877); Gibson v. American Express Co., 1 Hun, 389 (1874); Baker v. Boucicault, 1 Daly, 26-27 (1860); cases supra. < Hoover v. Wise, 91 U. S. 310-15 (1875), cases: Hunt, Field, Swayne, Davis, Strong, JJ., and Waite, C. J., •concurring; Miller, Clifford, and Bradley, JJ., dis- .senting. ' s Sweeney v. Easter, 1 WaU. 173-74 (1863), cases. ■« 15 Wend. 487 (1836), cases. (13) place for collection, would seem to imply, upon a rea- sonable construction, no other agreement than that it should be forwarded with due diligence to a compe- tent agent to do what should be necessary in the prem- ises. The person leaving the note is aware that the bank cannot personally attend to the collection, and that it must therefore be sent to some distant or for- eign agent," and that there was nothing which could imply an assumption for the fidelity of the agent. The case being carried to the court of eri'ors, the foregoing decision was reversed, and the doctrine declared that the bank was responsible for all subsequent agents employed in the collection of the paper.' The reversal was by a vote of fourteen senators against ten. , The decision has since been followed in New York, and its doctrine adopted in Ohio. But in the courts of other States it has been generally rejected and the views expressed by the supreme court approved. In Dor- chester and Milton Sank v. New England Bank it was held by the supreme court of Massachusetts that when notes or bills, payable at a distant place, are re- ceived by a bank for collection, without specific in- structions, it is bound to transmit them to a suitable agent at the place of payment, for that purpose; and that when a suitable sub-agent is thus employed, in good faith, the collecting bank is not Uable for his neglect or default." In the supreme cotu*ts of Connecticut, Maryland, Blinois, Wisconsin, and Mississippi, the doctrine of the supreme coiu'ts of New York and Massachusetts, in the cases cited, has been approved and followed." The indorsement upon a check " For collection; pay to the order of A," is notice to purchasers that the in- dorser is entitled to the proceeds.^ Whether a stipulation in a note for the payment of the expenses of collection is enforceable under stat- utes allowing costs or statutes against usury, or whether such stipulation rendei-s the instrument so uncertain as to destroy its negotiable quality, are questions not uniformly settled.* COLLEGE.^ 1. In the civil law, corpora- tions were called collegia, from the idea of individuals being gathered together.^ Tres faciunt collegium: three form a corporation." 2. An organized assembly. 1 22 Wend. 227-44 (1839), cases. ' Britton V. NiccoUs, 104 U. S. 761-63 (1881), Field, J. See also First Nat. Bank of Lynn v. Smith, 132 Mass. 227 (1888); Exchange Nat. Bank v. Third Nat. Bank, 112 U.S. 381-93 (18a4),lases; Central R. Co. v. Firet Nat. Bank of Lynchburg, 73 Ga. 383 (1884) ; Bank of Sherman V. Weiss, 67 Tex. 333-35 (1887), cases. The bank is liable for misappropriation by the agent; Power v. First Nat. Bank of Ft. Benton, 6 Monta. 251 (1887), cases: 35 Alb. Law J. 185-90, oases contra. See 18 Cent. Law J. 165-70 (1884), cases; 80 Am. Law Rev. 889-901 (1886), cases. a Bank of the Metropolis v. First Nat. Bank of Jersey City, 19 F. R. 303 (1884), cases. < Merchants' Nat. Bank v. Sevier, 14 F. R. 662, 667-75 (1883), cases. = L. con-llgere, to bring together, assemble. » 1 Bl. Com. 469. COLLISION 194 COLLOQUIUM Electoral college. The body of electors chosen by the people, in pursuance of the Xllth Amendment, to elect a President and a Vice-Pi-esident of the Uiiited States, i See Electoral. 3. Referring to an institution of learning, may more naturally apply to the place where a collection of students is contemplated than to the hall or building intended for their ac- commodation.^ In a statute exempting colleges and academies from taxation, means a seminary of learning: not the as- semblage of the professors and students, nor tlie trust- ees in their corporate capacity, but certain property belonging to them, 'with the edifices and the lands whereon the same are erected.* See Abode; Char- ITT, 2; Endowment, 2; Medical; Permanent; School, Public. COLLISION".* A striking together or impact of two bodies — Tehicles or vessels, more commonly the latter. Includes "allision" — when a stationary body is struck by a moving body ; also, in- juries from one thing being rubbed or pressed against another — as one vessel lying along- side of another,' 1. As to collisions between vehicles, see Accident; Cahrier, Common; Negligence; Road, 1, Law of. 2. A vessel engaged in commerce is liable for dam-^ age occasioned by a collision, on account of the complicity, 'direct or indirect, of the owner, or the negligence or want of care or skill of the navigator. The reason is, the owner employs the master and the crew. Any fault is imputed to him, and his vessel is liable. Otherwise when the person in fault does not stand in the relation of agent to the owner.* V?bere neither vessel is in fault, a loss rests where it falls; where both vessels are in fault, the damages are proportioned equally; where one vessel alone is in fault, it pays all damages. When both vessels are in fault, an innocent person, as, a shipper or consignee, who is injured, may recover of either vessel or of its owner all the loss, and may pursue his remedy at common law, or in admiralty by proceedings in rem or in personam.'^ For suits in personam, the United 1 See 2 Story, Const. §§ 1438-74; 15 Alb. Law J. 220 (1877). ' [Stanwood v. Peirce, 7 Mass. 460 (1811), Parsons, C. J. ' [State u. Ross, 24 N. J. L. 498 (1854), Haines, J.,— Case of the College of New Jersey. * L. eollidere, to strike together. 'See The Moxey, 1 Abb. Adm. 73(1847); Wright v. Brown, 4 Ind. 96 (1853); The City of Baltimore, 5 Bened. 474 (1872). •Sturgis V. Boyer, 24 How. 123 (1860), Clifford, J.; The Clarita, 23 Wall. 11 (1874). ' Union Steamship Co. v. N. T. & Ta. Steamship Co., 24 How. 313 (1860), ClifEord, J.; The Continental, 14 Wall. 355 (1871); The Atlas, 93 U. S. 302 (1876); The Juniata, ib. 337 (1876); Vanderbilt v. Eeynolds, 16 States coiu+s, as courts of admiralty, have not exclu- sive iurisdiotion, the right to any common-law remedy being expressly saved by statute (R. S. § 563).i Under the act of March 3, 1851 (R. S. §§ 4282-87), the owner is entitled to a limitation of liability to the value of his interest in the ship and in her earned freight, at the termination of the voyage,— which may be by loss of the ship at sea. The subsequent repair of a wrecked vessel, giving her increased value, is not an element; nor is any insurance had on the vessel: that being a collateral and_personal interest. And the right to proceed for a limitation of liability is not lost by a surrender of the vessel to the underwriters." The limitation may be claimed by way of defense, or by surrendering the ship or by paying her value into court. The latter method is necessary when the owner desires to bring all claimants into ooncoui'se for distribution." Where both vessels are in fault, the one that suffers least is decreed to pay the other the amount necessary to make them equal; that is, one-half the difference between the respective losses. * The decree should be, not; in solido for all damages and costs, but severally against ieach vessel for one-half thereof , any balance unrecovered from one to be paid by the other vessel, and to the extent of her stipulated value beyond the moiety due from her.^ Where the collision is between foreign vessels on the high seas, the Federal courts have jurisdiction, the first court that obtains it exercising it under the gen- eral maritime law as understood in the comts of the country. • See further Accident, Inevitable ; Actor, 1, Sequitur; Admirajltt; Libel, 4; Re's; Rbstitdtio; Tug. COLLOQUIUM. L. A speaking to- gether : a conversation. An averment, in an action for slander, that the defendant spoke the words in a certain conversation {in quodam colloquio) he had with another person, concerning the plaintiff. When the words are actionable in themselves, a colloquium, averring a speaking of and concerning the plaintiff, is sufficient. When the words have a slanderous meaning, not of their own intrinsic force, but by reason of the existence of some extraneous Blatch. 84-91 (1879), cases; The Clara, 102 U. S. 203 (1880), cases; The Benefactor, ib. 214 (1880). 1 Schoonmaker v. Gilmore, 102 U. S. 118 (1880), cases. 2 The City of Norwich, 118 U. S, 469, 489-506 (1866), Bradley, J.: Waite, C. J., Field, Woods, and Blatch- foTd, JJ., concurring; Matthews, Miller, Harlan, and Gray, JJ., dissenting — ib. pp. 526-41. The other cases, The Scotland, ib. 607, and The Great Western, ib. 520, being considered in the same connection. »The Great Western, 118 U. S. 520 (1886). See also Norwich Co. v. Wright, 18 Wall. 104, 116-28 (1871), cases; The Benefactor, 103 U. S. 246 (1880). • The North Star, 106 U. S. 20, 17-22 (1882), cases, Bradley, J. See, as to dividing the loss, 2 Law Q. Rev. 357-63 (1886). • The Stirling, 106 U. S. 647 (1882), cases, Waite, C. J. • The Belgenland, 104 U. S. 355, 361 (1885), cases. COLLUSION 195 COLOR fact, this fact must first be averred as inducement, and then there must he a colloquhtm^ averring a spealcing of or concerning the plaintiff. Lastly, the word " meaning," or innuendo, is used to connect the matters thus introduced with the particular words laid, showing their identity, and drawing what is the legal inference from the whole declaration that such, was, under the circumstances thus set out, the mean- ing of the words." See Innuendo; Slander. COLLUSION.^ An agreement between persons to defraud another of his rights by the forms of law or to obtain an object for- bidden by law. 3 Whence collusive. See Fraud. COLONIES. See Independence; Law, Common ; Religion ; State, 2 (3, b) ; Tax, 2 ; Wreck. COLOR. 1. Darkness of skin from pres- ence of African blood. The phrase " persons of color " embraces, universally, not only all persons descended wholly from African ancestors, but also those who have descended in part only from such ancestors, and have a distinct admixture of African blood.* " Colored " race means " African " race.* In 1868, in Virginia, "colored person" was substi- tuted for "negro," which word before that time in- cluded " negro " and " mulatto." The act of February 27, 1868, like the Code of 1849, provided that " every person having one-fourth or more negro blood shall be deemed" a colored person.' See Citizen; School, Separate; White. 2. Appearance ; apparent reality, validity, or legality ; also, pretense. Colorable. Existing in aspect merely; not real : as, a colorable abridgment or alter- ation of a copyrighted production, imitation of a trade-mark, assignment, claim or de- fense, change of possession, title, qq. v. Colorless. Without intimation as to mo- tive or preference. Colorless mil. A will characterized by a general intent to effect a stated disposition of property, without intimation as to the motives for making the several gifts, or with- 1 Carter v. Andrews, 16 Pick. 6 (1834), Shaw, C. J. See also 23 Pa. 83; 53 id. 421; 1 Greenl. Ev. § 417. >L. colludere, to co-act in a fraud: con-ludere, to play together. s See Baldwm v. Mayor of New York, 45 Barb. 369 (1856): s. u. 30 How. Pr. 30, quoting Bouvler and others. « Johnson v. Town of Norwich, 39 Conn. 408 (1861), Storrs, C. J. See also Van Camp v. Board of Educa- tion, 9 Ohio St. 411 (1859); 9 Ired. L. 384; 31 Tex. 87. = Clark V. Directors of Muscatine, 24 Iowa, 375 (1868); People V. Hall, 4 Cal. 399-404 (1854); 37 Miss. 209. • Jones V. Commonwealth, 80 Va. 543-44 (1885). out indication of preference for any bene- ficiary, class, or object. Where a general and a particular intent are ex- pressed, the latter, in a case of doubt as to the testa^ tor's meanmg, is made to yield to the former.' See Cy Pkes; Will, 3. Color of law. Pretense or semblance of legal right or authority. 2 See Extortion. Color of oflB.ee. Pretense or semblance of official right to do an act by one who has no right ; pretended authority of office. See further Officer, De facto; Officium, Colore. Color of title. That which in appear- ance is title, but which in reality is no title.' The resemblance or appearance of title. Whenever an instrument, by apt words of transfer from grantor to grantee, in form passes what purports to be the title, it gives color of title.* May he made through a conveyance, a bond, a contract, or bare possession under a parol agreement. Whether the title be weak or strong is of no impor- tance. What is color of title is a matter of law for the court. If good faith be a, necessary element in the claim, that is for a jury. . . A claim under a con- veyance, however inadequate to carry the true title, and however incompetent the grantor, is sych a claim under color of title, and one which will draw to the possession of the grantee the protection of the statute of limitations, other requisites of the statutes being complied with.= See Possession, Adverse. Compare Cloud, On title. Give color. To admit the appearance of right in favor of an adverse party. " In trespass, if the defendant desires to refer the validity of his title to the court, he may state his title specially, and at the same time ' give color ' to the plaintiff, or suppose him to have an appearance of title, bad indeed in point of law, but of which a jiiry are not,competent to judge." ' " Giving color " is a phrase borrowed from the ancient rhetoricians. In pleading it signifies an ap- parent or prima /octe right; and the meaning of the rule that every pleading in confession and avoidance must give color is,- that it must admit an apparent right in the opposite party, and rely, therefore, on some new matter by which that apparent right is de- feated. . . The kind of color which is nati^ally 1 See Schouler, WiUs, § 476, cases; 1 Eedf. Wills, »433, oases. ' See United States v. Deaver, 14 F. R. 699 (1882). » Wright «. Mattison, 18 How. 66-59 (1655), cases. « HaU V. Law, 103 U. S. 466 (1880), Field, J. •Wright V. Mattison, supra. See also 26 Am. Law Eeg 409-19 (1887), cases; 4 Saw. 539; 4 DiU. 555-68; 10 F E 536; 33 Cal. 676; 33 Ga. 242; 66 id. 170; 33 111. 510; 69 id. 140; 30 Iowa, 486; 32 Md. 358; 27 Minn. 63-63; 79 N. C. 491 ; 38 Vt. 345; 6 Wis. 536. « 3 Bl. Com. 309. COLT 196 COMFORT latent in the structure of all regular pleadings in con- fession and avoidance is "implied color," to distin- guish it from the kind which, in instances, is formally inserted in the pleading, and known as "express color." To the latter, the term usually applies.^ Colore officii. By color of office. See Color, 3, Of office. COLT. See Horse. COLUMBIA. See CouRTS.United States ; District, Of Columbia, COM. See CuM. COMBAT. A combat in which both parties enter willingly is " mutual." A person who enters into a combat armed with a concealed deadly weapon may use it to protect his life, if his adversary, who struck the first blow, resorts to such a weapon; and he will not be guilty of assault with intent to murder unless he intended from the first to use the weapon if necessary to overcome his antagonist.^ See Fight. COMBINATION. 1. In the law of patents, the union of different elements. A combination is patentableonlj when the several elements of which it is composed produce by their joint action a new and useful result, or an old result in a cheaper or otherwise more advantageous way.^ Limitations and provisos imposed by the inventor will be constiTaed strictly against him, as in the nature of disclaimers.' ' A combination may be infringed when some of its . elements are employed and for others are used me- chanical equivalents known to be such when the patent was granted.* See further Noveltv; Equivalent, 2; Patent, 2. 2. In penal and criminal laws (as in a stat- ute providing that one comm^on carrier may not combine with another for any purpose), a coalition, union, mutual agreement, or other blending, for any purpose whatever; as, for creating a monopoly.^ A combination between the mantifacturers of a patented article (a balance shade-roller), intended not to restrict production but simply to maintain a fair and uniform price, and to prevent the injurious effects to producers and consumers of fluctuating prices caused ' Stephen Plead., Tyl. ed., 306, 210. See Gould, PI. 322; 2 Chitty, PI. 655. aAldrige v. State, 59 Miss. 255(1881), Chalmers, C. J. " Stephenson v. Brooklyn E. Co., 114 U. S. 157 (1885); Thatcher Heating Co. v. Burtis, 121 id. 286, 295 (1887), cases. 4 Sargent v. Hall Safe and Lock Co., 114U. S. 86(1885), cases. sRowell V. Lindsay, 113 U. S. 102 (1885), cases. See also Booth V. Parks, 1 Flip. 381 (1884), cases ; Hill v. Saw- yer, 31 F. E. 282 (1887), cases; 20 Wall. 368; 92 U. S. 357; 109 id. 420; 111 id. 103; 17 F. E. 80, cases; 19 id. 509, • Watson V. Harlem, &o. Navigation Co., 52 How. Pr. 353 (1877). by undue competition, is not in restraint of trade or against public policy. ^ A combination is criminal whenever the act to be done has a necessary tendency to prejudice the public or to oppress individuals by unjustly subjecting them to the power of the confederates, and giving effect to the purposes of the latter, whether of extortion or mischief. 2 The gist of the offense is the conspiracy. If the motives of the confederates be to oppress, or the means unlawful, or the consequences to others injuri- ous, it is a conspiracy. Thus, a confederation to raise or depress the price of stocks, labor, merchandise, or the natural products, is a conspiracy." A confederation or conspiracy by an associated body of ship-owners, which is calculated to have and has the effect of driving the ships of other persons, and those of the p"laintiff in particular, out of a certain line of trade, — even though the immediate' object be not to injure the plaintiff but to secure to the conspir- ators a monopoly of the carrying trade between cer- tain ports, — is, or may be, indictable, and therefore actionable, it private and particular damage can be shown. To warrant the court in granting an interim injunction he who complains must show that he has or will sustain "irreparable damage," that is, damage for which he cannot obtain adequate compensation without the special interference of the court.* "If a large number of men, engaged for a certain time, should combine together to violate their con- tract, and quit their employment together, . . it would surely be a conspiracy to do an unlawful act, though of such a character that, if done by an indi- vidual, it would lay the foundation of a civil action only, and not of a criminal prosecution." ^ See Boycotting; Cokspiraot; Strike, 2; Trade, Eestraints; Trades-Unions. COME. See Appearance, 3; Reside; Venirb. COMES. L. See Constable; County. COMFORT. Whatever is necessary to give security from want, and furnish reason- able physical, mental, and spiritual enjoy- ment. So held where an executor was directed to pay the testator's widow as much of a certain fund as is "nec- essary for her comfort." « See Aid, 1. 'Central Shade-EoUer Co. v. Cushman, 143 Mass. 364 (1877); Craft v. McConoughy, 79 111. 346 (1875). See generally as to combinations for stifling competition, 20 Am. Law Eev. 195-216(1886), cases. 2 Commonwealth v. Carlisle, Brightly's Eep. 40 (Pa., 1821), Gibson, J. See Commonwealth v. Gallagher, 8 Pa. L. J. Eep. 64 (1814). ' Morris Eun Coal Co. v. Barclay Coal Co., 68 Pa. 173, 186-88 (1871), cases. See also Vanarsdale v. Lav- erty, 69 id. 103, 108 (1871) — an agreement not to em- ploy one-as a teacher. « Mogul Steamship Co. v. M'Gregor, Gow & Co., L. E., 15 Q. B. D. 476, 482 (1885), Coleridge, C. J. 'Commonwealth v. Hunt et al.,i Mete. 131 (1842), Shaw, C. J. ' Forman v. Whitney, 2 Keyes, 168 (1865> COMITATUS 197 COMMENCE COMITATUS. See' County, Power of. COMITY.i Courtesy: deference, from good feeling or feeling of equality. Comity of nations, or between States. Expresses the basis upon which one inde- pendent sovereignty applies -within its own territory the laws of another sovereignty, in a matter as to which the latter or its citizen ' is concerned. 2 Upon this basis rest observances under extradition treaties, q. v. And some adjudications upon the estates of decedents and insolvents are respected, between the States, to the extent that reciprocity obtains. Comity obtains to permit the corporations of one State to pursue a lawful business in another State.^ Judicial comity. The respect which tribunals of independent jurisdictions enter- tain for the decisions of each other, in the determination of questions involving refer- ence to extra-territorial law. The Federal courts adopt the construction given to a State's constitution or statutes by the courts of that State, whatever the opinion as to their soundness, ex- cept where the highest State court has given different constructions, and rights have been acquired imder the earlier construction; in which case they follow the latter;* except, also, in interpreting a contract between States, whether the contract is in the shape of a law or of a covenant by State agents; * and ex- cept in cases where the Constitution, a treaty, or a statute of the United States, provides otherwise.* They give a change in construction the same effect in its operation upon existing contract rights that they give to a legislative amendment — they make it pros- pective.' But they are not bound by decisions upon commercial law. * Where the law of a State is not settled, it is the right and the duty of the Federal courts to exercise their own judgment; as they always do in reference to the doctrines of commercial law and general juris- prudence. So, when contracts have been entered into, and rights have accrued thereon imder a particular state of the decisions, or where there has been no de- cision, of the State tribunals, the Federal courts claim the right to adopt their own intert)retation of the law 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 ' L. comitas, urbanity: comis, friendly. ' See Story, Confl. Laws, §§ 83, 33-38. •Cowell V. Saratoga Springs Co., 100 U. S. 59 (1879); Memphis, &c. E. Co. v. Alabama, 107 id. 581, 585 (1882), cases. • Fairfleld v. County of Gallatin, 100 U. S. 53 (1879), cases; CaroU County -u. Smith, 111 id. 563 (1884), cases. » Jefferson Branch Bank v. Skelly, 1 Black, 436 (1861) ; Wright «. Nagle, 101 U. S. 793 (1879). " Gates V. Nat. Bank of Montgomery, 100 U. S. 346 (1879), cases. ' Machine Co. v. Gage, 100 U. S. 676 (1879); Douglass V. County of Pike, 101 id. 687 (1879). sake of harmony and to avoid contusion, the Federal courts will lenn to an agreement of views with the State courts if the question seems to them balanced with doubt. As, however, the object of giving to the National courts jurisdiction to administer the laws of the States in controversies between citizens of differ- ent States was to institute independent tribunals which it might be supposed would be unaffected by local prejudices, it is their duty to exercise an indepe,ndent judgment in cases not foreclosed by previous adjudi- cation. ^ COMMAND. See Mandate ; Peohibere ; Ratihabitio. COMMENCE. In several uses has a somewhat technical import: Commencement of a building. Work done on the ground the effect of which is ap- parent. See further Building. Commencement of an action, prose- cution, or suit. Such inception of judicial proceedings as affects the several defendants ; as saves the cause from the bar of the statute of limitations, q. v. ; or as assures the juris- diction, when collaterally questioned. In civil actions, at common law, suing out or issu- ing the writ " commfences " an action; in equity prac- tice, filing the bill, or, perhaps, issuing and endeavor- ing to serve the subpoena; under codes of procedure, service or publication of the summons. ^ See Beodght. Before an action can be commenced, the cause of action must be complete,— the day for payment must have passed, a precedent condition must have been performed ; the plaintiff must have the necessary priv- ity, and as against the particular defendant; in the case of a tort there must be a legal injury (g. v.)^ and, possibly, the act must not amount to an untried felony; where there is a breach of a public duty, particular damage must have resulted to the plaintiff.^ Commencement of an indictment. The most common form (derived from Eng- land) is "The jurors of the people of the State of , in and for the body of the county of , upon their oath present," etc.^ Compare Caption, 2. ■Burgess v. Seligman, 107 U. S. 33-31 (1883), cases, Bradley, J. See also Pana v. Bowler, ih. 641 (1883), cases; Norton v. Shelby County, 118 id. 439 (1886). ' See generally 26 Cent. Law J. 31-33 (1888), cases; 2 McCrary, 189; 4 Woods, 108; 11 F. R. 317; 17 ia. 475; 10 Ark. 120, 479; 19 Cal. 557; 31 id. 351; 45 irf, 125; 30 Ga. 873; 1 Ind. 276; 11 id. 48, 354; 8 Iowa, 309; 9 id. 178; 10 id. 308, 418; 16 id. 59; 3 A. K. Marsh. 18; 5 Bush, 435; 15 Mass. 4.55; 7 Me. 370; 33 Mich. 112; 42 Miss. 241; .36 id. 40; 6 N. H. 34); 47 id. 34; 37 N. Y. 122; 10 Barb. 318; 6 Cow. 471, 519; 17 Johns. 65; 36 Pa. 474; 84 id. 124; 15 id. 393; 1 E. I. 17; 11 Humph. 303; 10 Tex. 155; 28 id. 713; 30 id. 494; 42 Vt. 562; 55 id. 356; 6 W. Va. 336. 3 See 21 Cent. Law J. 401-12 (1885), cases. * People V. Pennett, 37 N. Y. 122 (1867). COMMENDATIO 198 COMMEECE COMMENDATIO. L. Commending; recommending. Simplex eommendatio non otaligat. A mere recommendation does not bind : the expression of an opinion does not constitute a warranty. Abridged, Simplex eommendatio. A false assertion of value, when no warranty is in- tended, is not a ground of relief to a purchaser: the assertion is a matter of opinion, which does not imply Imowledge, and in which men may differ. Every per- son reposes at his peril in the opinion of others, when he has equal opportunity to form and exercise his own judgment.! " The law recognizes the fact that men will natu- rally overstate the value and qualities of the articles which they have to sell." A buyer has no right to rely upon mere " dealer's talk." " See Caveat, Emp- tor; Wakranty, 2. COMMERCE.' In its simplest significa- tion, an exchange of goods; but in the ad- vancement of society, labor, transportation, intelligence, care, and various mediums of exichange, become commodities , and enter into commerce.* The interchange or mutual change of goods, productions, or property of any kind, between nations or individuals.^ "Transportation" is the means by which "com- merce " is carried on.' Commercial. Concerning commerce, trade, ortrafBc; pertaining to the. customs of merchants, or to the law-merchant ; mer- cantile: as, conimercial or a commercial — broker, corporation, domicil, law, paper, reg- ulation, term, qq. v. Commercial law is not peculiar to one State nor de- pendent upon local authority, but arises out of the usages of the commercial world. The Federal courts are not controlled by the decisions of the courts of a State upon matters of commercial law.' Mercantile law is a system of jurisprudence ac- knowledged by all commercial nations. Upon no subject is it of more importance that there should be, ' 3 Kent, 485, cases ; Gordon v. Parmelee, 2 Allen, 314 (1«61), Bigelow, C. J.; Hull v. Field, 76 Va. 605 (1882); Tenney v. Cowles, 67 Wis. 694 ,(1886) ; Dillman v. Nadle- hoffer, 119 HI. 575 (18S7), cases. ' Kimball v. Bangs, 144 Mass. 323 (188r), Morton, 0. J. ; Mooney •!;. Miller, 102 id. 220 (1869); .Gordon v. Butler, 105 U. S. 557 (1881); Southern Development Co. v. Silva, 125 «. 256(1888). 8 L. conuiiercium, trade: con, with; merx, goods. * Gibbons v. Ogden, 9 Wheat. 1, 329 (1834), Marshall, Chief Justice. s Council BlufEs v. Kansas City, &c. E. Co., 45 Iowa, 349 (1876), MUler, C. J. See also People v. Raymond, 34 Cal. 497 (1868). " Brooklyn, &c. E. Co. v. Nat. Bank of Eepublic, 103 U. S. 31-33 (1880); ib. 55. as far as practicable, uniformity of decision through- out the world." See Negotiable. Commercial agency. See Communication, Privileged, 2. Commercial traveler. See below, and Deummer; Merchant. In some connections " commerce " relates to dealings with foreign nations; " trade," to mutual traffic among ourselves, or to the buy- ing, selling, or exchange of articles among members of the same community.^ The application of the term commerce is generally discussed with reference to the pro- vision (called the commerce or commercial clause of the Constitution) that "The Con- gress shall have Power ... To regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes." ^ By force of this provision, the subject, the vehicle, the agent, and their various opera- tions, become the objects of commercial reg- ulation by Congress.*; 5 Commerce is more than traffic. It em- braces, also, transportation by land and water, and all the means and appliances necessarily employed in carrying them on.6 A term of the widest import, comprehend- ing intercourse for the purpose of trade in any and all its forms, including the trans- portation, purchase, sale, and exchange of commodities.'' Commercial intercourse between nations and parts of nations, in all its branches.^ " To regulate " this trade and intercourse is to pre- scribe the rules by which it shall be conducted.' Commerce comprehends navigation,* including navigation on rivers and in ports;" transportation of 1 Goodman v. Simonds, 80 How. 364 (1857); 13 Am. L. Reg. 473 (1878). = People V. Fisher, 14 Wend. 15 (1835), Savage, C. J. See also People v. Brooks, 4 Denio, 436 (1847); Sears v. Commissionei-s, 36 lud. 270-80 (1871). ' Constitution, Art. I, sec. 8, cl. 3. • Gibbons v. Ogden, ante. ' Council Bluffs v. Kansas City, &c. R. Co., ante. " Chicago, &c. E. Co. u. Fuller, 17 Wall. 568 (1873): 3 Story, Const. §§ 1061-62. ' Welton V. Missouri, 91 U. S. 330, 275 (1875), Field, J.; Webber v. Virginia, 103 id. 350 (1880) ; Walling v. Mich- igan, 116 id. 464 (1886); Robbins v. Taxing District, 120 id. 497 (1887); 122 id. 358; 128 id. 129. ' Henderson v. Mayor of N. Y. City, 93 U-. S. 270 (1875), Miller, J. ; Gloucester Ferry Co. v. Pennsylvania, 114 id. 303 (1885). "Gilman v. Philadelphia, 3 Wall. 734 (1865); South COMMERCE 199 COMMERCE passengers;' intercourse by telegraph. 'i' But it does not concern matters of trade and traffic between citi- zens of the same State; as, a trade-mark or a policy of insurance.' "Commerce with foreign Nations" refers to commerce between citizens of the United States and subjects of foreign countries; foreign commerce. Commerce " among(g. v.) the several States" refers to couiLuerce be- tween citizens of different States; domestic commerce.' Commerce "with the Indian Tribes'" applies only to cases where the tribe is wholly within the limits of a State.* Commerce being national in its operation is placed under the protecting care of the National government.* Commercially this is but one country, and intercourse is to be as free as due compensation to the carrier in- terest ■will allow. Local interference is forbidden.* The power is vested in Congress to insure uniformity of commercial regulations, where such uniformity is practicable, and as against conflicting State regula- tions. The non-exercise of the power is equivalent to a declaration that it shall be free from restrictions.' It is not everything that affects commerce that amounts to a "regulation" of it; as, local regulations of ferries, of hackmen, millers, inn-keepers, ware- housemen.'*)'* Each State retains absolute control over its own ter- ritory, highways, bridges, corporations, etc." The powers vested in Congi-ess keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. . . They were intended for the government of the busi- ness to which they relate at all times, and imder all circumstances. * Commerce by water was principally in the minds of the framers of the Constitution ; transportation on land being then in vehicles drawn by animals.* The Constitutional provision covers property trans- ported as an article of commerce from foreign coim- tries, or from another State, from hostile or interfering State legislation, until mingled with part of the gen- eral property of the country, and protects it, after it Carolmai). Georgia, 9-3 U. S. 13 (1876); Western Union Tel. Go. V. Pendleton, 13-2 id. 3j8(188rj; 115 id. 203. 1 Steamboat Co. v. Livingston, 3 Cow. 713 (1885) ; People II. Eaymond, 34 Cal. 497 (1868). = Western Union Telegraph Co. v. Atlantic, &c. Tel. Co., 5 Nev. 109 (1869). = Trade-Mark Cases, 100 U. S. 96, 95 (1879); County of Mobile V. Kimball, 103 id. 697 (1880); Gloucester Ferry Co. V. Pennsylvania, 114 id. 197 (1885). « United States v. HoUiday, 3 Wall. 417-18 (1865); United States v. Forty-Three GaUons of Whiskey, 108 U. S. 494 (1883). » Pensacola Telegraph Co. v. Western Union Tel. Co., 96 U. S. 9 (1877). 'Baltimore, &c. B. Co. v. Maryland, 21 Wall. 474, 472, 470 (1874). ' Gihnan v. Philadelphia, and other cases, ante. « State Tax on Railroad Receipts, 15 Wall. 293 (1872). » Munn V. Illinois, 94 U. S. 135 (1876). has entered the State, from burdens imposed by rea- son of its foreign origin.' In every case where a State law has been held null, it created, in the way of a tax, a license, or a condi- tion, a direct burden upon commerce or interfered with its freedom ; ^ it regulated or impeded commerce or discriminated between its own citizens and out- siders, prejudicially to the latter. For example, a State cannot require a license to sell foreign goods remaining in the packages in which they were imported; that would operate as a tax on the goods.*) * Nor may it discriminate against ped- dlers; * nor against commercial travelers or drimi- mers; ' nor against sewing machine companies.* It may not tax sales of foreign liquors, unless domestic liquors are taxed in equal degree;* nor tax passen- gers, freight, or cars brought into, taken from, or car- ried through its borders to or from other States or ■ countries.' It may not exact wharfage solely of a vessel laden with articles not products of the State; nor impose tonnage duties upon foreign vessels, to pay quarantine expenses; ^ nor collect tonnage duties of its own citizens, engaged in commerce within its own limits," except as to a vessel owned by a resident of a city, for city purposes and not for the privilege of trading; "> nor may it exact a premium for a vessel brought to its ports; ^' nor require a sum for each pas- senger brought from a foreign country; '* nor extort money to prevent immigration ; '^ but it may require a list of passengers, with their ages, occupations, etc.'* What it may do to keep out paupers and convicts, ia the absence of legislation by Congress, has not as yet been decided." » Welton V. Missouri, and other cases, ante. = Sherlock v. AlUng, 93 U. S. 103 (1876). * Brown v. Maryland, 12 Wbeat. 436 (1837); Cook V. Pennsylvania, 97 U. S. 566 (1878). < Ward V. Maryland, 12 WaU. 418 (1870); WalUng v. Michigan, 116 U. S. 454 (1886). "Howe Machme Co. v. Gage, 100 U. S. 678 (1879). « Tiernan v. Einker, 102 U. S. 123 (1880). ' State Freight Tax, 15 Wall. 232 (1872)'; State Tax on Railway Receipts, ib. 284 (1872); Gloucester Ferry Co. V. Pennsylvania, 114 U. S. 203 (1885); Hckard v. Pullman Southern Car Co., 117 id. 34 (1886); Philadelphia, &c. Steamship Co. v. Pennsylvania, 123 id. 326, 338-46 (1887), cases, Bradley J., explaining State Tax on PjiHway Receipts, supra. speete v. Morgan, 19 WaU. 581 (1673); Cannon v. New Orleans, 20 id. 577 (1874). » State Tonnage Tax, 12 Wall. 204 (1870). 10 The North Cape, 6 Hiss. 505 (1876); Wheelmg, &e. Transportation Co. v. Wheelmg, 99 U. S. 273 (1878). i> Steamship Co. v. Port- Wardens, 6 Wall. 31 (1867).' ■2 Passenger Cases, 7 How. 283 (1849); People v. Com- pagnie Transatlantique, 107 U. S. 59-60 (1882), cases; Wiggins Ferry Co. v. East St. LouiS, ib. 371-75 (1882), cases; 92 id. 266-69. 1* Chy Lung v. Freeman, 92 U. S. 275 (1875). But Con- gress may regulate it by unposing a duty to mitigate incidentol evUs; Head Money Cases, 112 id. 580 (1884). >4City of New York v. Miln, 11 Pet. 102 (1837); 92 U. S. 266-69. >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- tain telegraph lines within its borders.' Nor may it prohibit the driving of cattle into it, during certain months.' Ijiter-State commerce cannot be taxed at all, even though the same amount of tax should be laid on do- mestic commerce, or that which is carried on wholly within the State. The negotiation of sales of goods which are in another State, for the purpose of intro- ducing them into the State in which the negotiation is made, is' inter-State commerce. Therefore, a State statute imposing a license tax upon." drummers " and others selling by sample is unconstitutional as ap- plied to citizens of other States.^ If the power to tax inter-State or foreign commerce exists, it has no limit but the discretion of the State, and might be exercised in such a manner as to drive away the commerce, or to load it with an intolerable burden, seriously affecting the business and prosperity of other States; and if those States, by way of retalia- tion, or otherwise, should impose like restrictions, the utmost confusion would prevail in our commercial affairs. This state of things actually existed under the Confederation.^ A statute requiring locomotive engineers to be licensed by a board of examiners, and prescribing pen- alties for its violation, is not imconstitutional, as a regulation of inter-State commerce, even when ap- plied to the case of an engineer operating a locomo- tive attached to a train running between points in different States.' ' Some statutes also conflict with the prohibition on the States against levying imposts or duties on im- ports or exports. But since this provision refers ex- clusively to articles brought from foreign countries, a State may tax auction sales or other property when there is no discrimination against citizens or products of another State. A purchaser of goods from abroad, which are at his risk until delivered; is not an im- porter, and the goods maybe taxed.* A State may authorize the building of bridges or dams over navigable rivers, provided they do not materially obstruct navigation.' See Span. ' Pensacola Telegraph Co. v. Western Union Tel. Co., 96U.S. 9(1877). "Haanibal, &c. E. Co. v. Husen, 95 U. S. 465 (1877). ' Bobbins v. Taxing District of Shelby County, Ten- nessee, 180 U. S. 497 (March 7, 1887), Bradley, J. ; Waite, C. J., Field, and Gray, JJ., dissenting; 121 id. 246; Exp. Asher, 28 Tex. Ap. 682 (1887): 27 Am. Law Reg. 77 (1888); ib. 89-94, cases; 25 Cent. Law J. 26 (1887). * Philadelphia & Southern Steamship Co. v. Penn- sylvania, 122 U. S. 326, 346 (1887), Bradley, J. ; Brown u Maryland, 12 Wheat. 446 (1827), Marshall, C. J. » Smiths. Alabama, 124 U. S. 465 (1888), Matthews, J. ; 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. 148 (1868). ' Willison 1). Blackbird Creek Marsh Co., 2 Pet. 245 (1839;; Wheeling Bridge Case, 18 How. 421 (1865); Gil- man V. Philadelphia, 3 Wall. 724 (1865); Escanaba, &q. Transp. Co. v. Chicago, 107 U. S. 683, 687 (1882), cases. State legislation is not forbidden on matters either local in nature or operation, or intended to be mere aids to commerce, for which special regulations' can more effectually provide; such as harbor pilotage, beacons, buoys, and navigable rivers within a State, if free navigation is not thereby impaired. Withrespect to all' such subjects Congress, by non-action, declares that, until it deems fit to act, they may be controlled by State authority. . . The States have as full con- trol over their purely internal commerce as Congress has over inter-State and foreign commerce. . . But as far as an exercise of the power relates to matters which are purely national in character, and require uniformity of regulation affecting all the States, the power is exclusive in Congress. ^ It is Congress, not the judicial department, that is, to regulate commerce. The courts can never take the initiative on this subjeofc They interpose to prevent or redress acts done or attempted under the authority of unconstitutional State laws: the non-action of Congress, in the cases, being deemed an indication of its will that no exaction or restraint shall be im- posed.' The power in Congress is paramount over all legis- lative powers which, in consequence of not having been granted to Congress, are reserved to the States. It follows that any legislation of a State, although in pursuance of an acknowledged power reserved to it, which conflicts with the actual exercise of the power of Congress over commerce, must give way before the supremacy of the national authority. As the regulation of commerce may consist in abstaining from prescribing positive rules for its conduct, it can- not always be said that the power to regulate is dor- mant because not afiflrmatively exercised. And when, it is manifest that Congress intends to leave commerce free and unfettered by positive regulations, such iur tention would be contravened by State laws operating as regulations of commerce as much as if these had been expressly forbidden. In such cases," the exist- ence of the power in Congress has been construed to be exclusive, withdrawing the subject as the basis of 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 inter-State commerce without being intended to oper- ate as commercial regulations. If such regulation conflicts with the regulation of the same subject by Congress, either as expressed in positive laws or as. implied from the absence of legislation, such State legislation, to the extent of that conflict, must be re- garded as annulled. To draw the line of interference between the two fields of jurisdiction, and to define and declare the instances of unconstitutional en- croachment, is a judicial question often of much diffi- culty, the solution of which, perhaps, is not to be found in any single and exact rule of decision. Some 1 County of Mobile v. Kimball, 102 U. S. 696-99 (1880), Field, J. ' Transportation Co. v. Parkersburg, 107 U. S. 701, 704 (1882), .Bradley, J. See generally Be Watson, 15 F. R. 511, 514-31 (1882), eases ; Kaeiser v. Illinois Central R. Co., 18 id. 153 (1888). COMMERCE 201 COMMERCE lines of discrimination, however, have heen drawn in the various decisions of the Supreme Court.' See further Bonus, 2(1); Immigration; Indian; In- spection, 1; LiKN, Maritime; Navigable; Police, 2; Privilege, 2; Prohibition, 2; Quarantine, 2; Regu- late; Tax, 2; Tonnage; Warehouse; Wharfage. A statute of a State, intended to regulate, to tax, or to impose any other restriction upon the transmission of persons or property or telegraphic messages from one State to another, is not within that class of legis- lation which the States may enact in the absence of legislation by Congress; and such statutes are void even as to that part of such continuous conveyance as is within the limits of the State." The case of The Wabash, ss; and a complete exhibit of the financial opera- Ions of the carrier each year, including an annual alance-sheet. Such reports shall also contain such iformation in relation to rates or regulations con- erning fares or freights, or agreements, arrange- lents, or contracts with other common carriers, as tie commission may require; and the said commission lay, within its discretion, for the purpose of enabling ; the better to carry out the purposes of this act, pre- cribe (if in the opinion of the commission it is practi- able to prescribe such uniformity and methods of Beping accounts) a period of time within which all ommon carriers subject to the provisions of this act tiall have, as near as may be, a uniform system of ac- ounts, and the manner in which such accounts shall e kept. Sec. 31. That the commission shall, on or before the rst day of December in each year, make a report to le secretary of the interior, which shall bp by him ransmitted to Congress, and copies of which shall be istributed as are the other reports issued from the iterior department. This report shall contain such iformation and data collected by the commission as lay be considered of value in the determination of uestions connected with the regulation of commerce, >gether with such recommendations as to additional sgislation relating thereto as the commission may eem necessaiy. Sec. 28. That nothing in this act shall apply to the a-rriage, storage, or handling of property free or at re- uced rates for the United States, State, or municipal ovemments, or for charitable purposes, or to or from lirs and expositions for exhibition thereat, or the issu- Qce of mUeage, excursion, or commutation passenger ckets; nothing in this act shall be construed to pro- ibit any common carrier from giving reduced rates to linisters of religion; nothing in this act shall be con- rued to prevent railroads from giving free carriage > their own oflicers and employees, or to prevent the rincipal officers of any railroad company or com- Einies from exchanging passes or tickets with other lilroad companies for their officers and employees; id nothing in this act contained shall in any way iridge or alter the remedies now existing at com- on law or by statute, but the provisions of this act ■e in addition to such remedies: Provided^ That > pending litigation shall in any way be affected by is act. Sec. 23. That the sum of one hundred thousand )llars is hereby appropriated for the use and pur- )ses of this act for the fiscal year ending June 30, , D. 1888, and the intervening time anterior thereto. Sec. Si. That the provisions of sections eleven and eighteen of this act, relating to the appointment and organization of the commission herein provided for, shall take effect immediately, and the remaining pro- visions of this act shall take effect sixty days after its passage. See Addenda. A. //J/' March 22, 1887, President Cleveland appointed the following commissioners: Thomas M. Cooley, of Mich- igan, for the term of six years; 'William E. Morrison, of Illinois, for the term of five years ; Augustus Schoon- maker, of New York, for the term of four years; Aldace F. Walker, of Vermont, for the term of three years; Walter L. Bragg, of Alabama, for the term of two years. At the first meeting of the commission, March 31, Mr. Cooley was chosen chairman.* April 4, 1887, in the circuit court of Oregon, in a case concerning the transportation of goods by the Oregon and California Railroad (which lies wholly within Oregon), destined for San Francisco, Judge Deady, after explaining tha^ the act "does not include or apply to all carriers'engaged in inter-State commerce, but only to such as use a railway or railway and water-craft under common control or management for a continuous carriage or shipment of property from one State to another," held that it does not "apply to the carriage of property by rail wholly within the State, although shipped from one destined to a place without the State, so that such place is not in a foreign countiy." ' June 15, 1887, the commission summarized its con- clusions upon the construction to be placed upon the fourth section of the act, in the following language: First. That the prohibition against a greater charge for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance, as qualified therein is limited to cases in which the circumstances and conditions are substantially similar. Second. That the phrase "under substantially similar circumstances and conditions " in the fom-th section, is used in the same sense as in the second sec- tion; and under the qualified form of the prohibition in the fourth section carriers are required to judge in the first instance with regard to the similarity or dis- similarity of the circumstances and conditions that forbid or permit a greater charge for a shorter dis- tance. Third. That the judgment of carriers in respect to the circumstances and conditions is hot final, but is subject to the authority of the commission and of the courts, to decide whether error has been committed, or whether the statute has been violated. And iu case of complaint for violating the fourth section of the act the burden of proof is on the carrier to justify any departure from the general rule prescribed by the statute by showing that the circumstances and condi- tions are substantially dissimilar. Fourth. That the provisions of section one, requir- ing charges to be reasonable and just, and of section two, forbiddmg unjust discrimination, apply when 1 The first and the present secretary of the commis- sion is Edward A. Moseley ; and the present auditor is C. C. McCain. 2 Exp. Koehler, 1 1. C. R. 28; 30 F. E. 867. COMMERCE 207 COMMERCE exceptional charges are made under section four as they do in other cases. " ' Fifth. That the existence of actual competition which is of oontroUing force, in respect to trafflo im- portant in amount, may make out the dissimilar cir- cumstances and conditions entitling the carrier to charge less for the longer than for the shorter haul over the same line in the same direction, the shorter being included in the longer in the following oases: 1. When the competition is with carriers by water which are not subject to the provisions of the statute. 2. "When the competition is with foreign or other railroads which are not subject to the provisions of the statute. 8. In rare and peculiar cases of competition between railroads which are subject to the statute, when a strict application of the general rule of the statute would be destructive of legitimate competition. Sixth. The commission further decides that when a greater charge in the aggregate is made for the transportation of passengers or the like kind of prop- erty for a shorter than for a lOTiger distance over the same line in the same direction, the shorter being in- cluded in the longer distance, it is not sufficient justi- fication therefor that the traffic which is subjected to such greater charge is way or local traffic, and that which is given the more favorable rates is not. Nor is it sufficient justification for such greater charge that the short-haul traffic is more expensive to the carrier, unless when the circumstances are such as to make it exceptionally expensive, or the long- haul traffic exceptionally inexpensive, the difference being extraordinary and susceptible of definite proof. Nor that the lesser charge on the longer haul has for its motive the encouragement of manufactures or some other branch of industry. Nor that it is designed to build up business or trade centres. Nor that the lesser charge on the longer haul is merely a continuation of the favorable rates under which trtide centres or industrial establishments have been built up. The fact that long-haul traffic will only bear certain rates is no reason for carrying it for less than cost at the expense of other traJBc' Where the conditions are dissunilar there is no pro- hibition; a doubt should be Solved in favor of the object of the law." Railroads doing an express business are within the act; independent express companies are not." A road wholly within a State, but used as a means of conducting inter-State traffic by companies ownmg connecting inter-State roads, is subject to the provis- ions of the act.* 1 Report, 1887, pp. 64, 84-85. Seei6. 18-30. Repeti- tion of Louisville & Nashville R. Co., and others. a Missouri Pacific E. Co. v. Texas & Pacific E. Co., 31 F R. 862 (June 21, 1887), Pardee, J. 'Be Express Companies, 1 I. C. E. 677-83 (Dec. 28, 1887), Walker, C. See also Report, 1887, pp. 12-14. As to sleeping and parlor car companies, and transporters of mineral oil, see ib. 15. * Heck V. East Tennessee, &c. E. Cos. (Feb. 17, 1888). The act does not embrace carriers wholly by water, ■ though they may also be engaged in the like commerce and as such be rivals of the carriers which the act undertakes to control. Perhaps the most influential reasons for omitting them were that the evils of cor- porate management have not been so obvious in their case as in that of carriers by land, and their rates of transportation were so low that they were seldom com- plained of even when unjustly discriminating. The fact that in their competition with carriers by land they were at a disadvantage had some influence in propitiating public favor, inasmuch as they appeared to operate as obstacles to monopoly and as checks upon extortion.' May 25, 1887, the following rules of practice were adopted by the commission (Report for 1887, p. 127):— I. When at Washington the commission will hold its general sessions at 11 o'clock A. M. daily, except Saturdays and Sundays, for the reception and hearing of petitions and complaints, and the transaction of such other business as may be brought before it. The sessions will be held at the office of the commission in the Sun Building, No. 1315 F Street northwest. When special sessions are held at other places such regula- tions as may be' necessary will be made by the com- mission. II. Applications >mder the fourth section of the act for authority to charge less for longer than for shorter distances for the transportation of passengers or prop- erty must be made by petition addressed to the com- mission by the carrier or carriers desiring the relief. The petition must state with particularity the extent of the relief desired and the points at and between which authority is asked to charge less for longer dis- tances; the reasons for the relief sought must also be set forth, and the facts upon which the application is founded. The petition must be verified by some officer or agent of the carrier in whose behalf it is presented, to the effect that the allegations of the petition are true to the knowledge or belief of the affiant. Notice must be published by a petitioner in not less than two newspapers along the line of the road having general circulation, for at least ten days prior to the presenta- tion of a petition, stating briefly the nature of the re- lief intended to be applied for and the time when the application will be presented, and proof of each pub- lication must be flled with the petition. in. Upon the presentation of a petition for relief an investigation will be made by the commission at a time and place to be designated, when testimony will be received for and against the prayer of the petition. After investigation the commission will make such order as may appear to be just and appropriate upon the facts and circumstances of the case. rV. Complaints under section 13 of the act of any- thing done or omitted to be done by any common carrier subject to the provisions of the act, in contra- vention of the provisions thereof, must be made by petition, which must briefly state the facts which are claimed to constitute a violation of the act, and must be verified by the petitioner, or by some officer or agent of the corporation, society, or other body or organization makmg the complaint, to the effect that 1 Report of 1877, pp. 11-12. COMMERCK 208 COMMERCE the allegations of the petition are true to the knowl- ■edge or belief of the affiant. The complainant must furnish as many written or printed copies of the complaint or petition as there may be parties complained against to be served. When ^ complaint is made the name of the carrier com- plained against must be set forth in full, and the ad- dress of the petitioner and the name and address of his attorney or coimsel, if any, must be indorsed upon the complaint. The commission will cause a copy of the complaint to be served upon each common carrier complained Against, by mail or personally, in its discretion, with notice to the can*ier or carriers to satisfy the com- plaint or to answer the same in writing within the time specified. V. A carrier complained against must answer the complaint made within twenty days from the date of the notice, unless the commission shall in particular ■castes prescribe a shorter time for the answer to be served, and in such cases the answer must be made within the time prescribed. The original answer must be filed with the commission, at its office in Washing- ton, and «. copy thereof must at the same time be served upon the complainant by iAie party answering, personally or by mail. The answer must admit or deny the material allegations of fact contained in the complaint, and may set forth any additional facts claimed to be material to the issue. The answer must be verified in the same manner as the complaint. If a carrier complained against shall make satisfaction before answering, a written acknowledgment of satis- faction must be filed with the commission, and in that case the fact of satisfaction without other matter may be set forth in the answer filed and^ served on the com- plainant. If satisfaction be made after the filing and service of an answer, a supplemental answer setting forth the fact of satisfaction may be filed and served. VI. If a carrier complained against shall deem the complaint insufficient to show a breach of legal duty, it may, instead of filing an answer, serve on the com- plainant notice for a hearing of the case on the com- plaint, and in case of the service of such notice, the facts stated in the complaint will be taken as> ad- m,itted. The filing of an answer will not be deemed an admission of the sufficiency of the complaint, but a motion to dismiss for insufficiency may be made at the hearing. VII. Adjournments and extensions of time may be granted upon the application of parties in the discre- tion of the commission. VIII. Upon issue being joined by the service of an- swer, the commission;" upon request of either party, will assign a time and place for hearing the same, which will be at its offlce in Washington, unless other- wise ordered. Witnesses will be examined orally be- fore the commission, except in cases when special ordera are made for the taking of testimony other- wise. The petitiouer or complainant must in all cases prove the existence of the facts alleged to constitute a violation of the act, unless the carrier complained of shall admit the same, or shall fail to answer the complaint. Facts alleged in the answer must also be proved by the carrier, unless admitted by the peti- tioner on the hearing. In cases of failure to answer, the commission will take such proof of the charge as may be deemed rea- sonable and proper, and make such order thereon as the circumstances of the .case appear to require. IX. Subpoenas requiring the attendance of wit- nesses will be issued by any member of the commis- sion in all cases and proceedings before it, and wit- nesses will be required to obey the subpoenas served upon them requiring their attendance or the produc- tion of any books, papers, tariffs, contracts, agree- ments, or documents relating to any matter under investigation or pending before the comnaission. Upon application to the commission authority may be given, in the discretion of the commission, to any party to take the.deposition of any witnesses who may be shown, for some sufficient reason, to be imable to attend in person. June 15, 1887, this rule was modified to the extent that where a cause is at issue on petition and answer, each party may proceed at once to take depositions of witnesses in the manner provided by sections 863 and 864 of the Revised Statutes of the United States, and transmit them to the secretary of the commission, without making any application to, or obtaining any authority from, the commission for that purpose. X. Upon application by any petitioner or party amendments may be allowed by the commission, in its discretion, to any petition, answer, or other pleading in any proceeding before the commission. XI. Copies of any petition, complaint, or answer, in any matter or proceeding before the commission, or of any order, decision, or opinion by the commission, will be furnished upon application by any person or carrier desiring the same, upon payment of the ex- pense thereof. XII. Affidavits to a petition, complaint, or answer may be taken before any officer of the United States, or of any State or Territory, authorizetl to administer oaths. The history of the development of the railroad sys- tem of the United States, with relation to inter-State commerce and to the corporate abuses which led to the passage of the foregoing act of 1887, may be summar- ized as follows : — When the grant of the power to regulate commerce was made, the commerce between the States was in- significant — carried on by coastwise vessels and'other water-ci'aft, sailed or rowed, within the interior. The inter-State commerce on land was little, and its regu- lation was by the common law. To a few associations of regular carriers of passengers on definite routes exclusive rights were granted,- in the belief that other- wise the regular transportation would not be ade- quately provided for. For regulation of commerce on the ocean and other navigable waters Congress passed the necessary laws; but not until 1824 (in the case of Gibbons v. Ogden) was it settled that such waters of a State as constitute a highway for inter-State commerce are subject to Federal legislation equally with the high seas. But Congress still abstained from regulating commerce by land — leaving even the Cumberland road, a national highway, to the supervision of the States through which it should be built. COMMERCE 209 COMMISSION When the application of steam to vessels as a mo- tive power so stimulated internal commerce as to ne- cessitate improved highways, these, both turnpikes and canals, were State creations, the General govern- ment merely making some appropriations for canals. It was natural that the States should control these highways, so long as there was no discrimination against the citizens of other States. When, in 1880, steam power was applied to land vehicles, the same reasons for State control prevailed. For a long time Federal regulation of inter-State commerce was purely negative, merely restraining excessive State power, through the judicial depart- ment, in isolated cases. Thus, the corporations mo- nopolizing commerce made the law for themselves — State power and common law being inadequate to complete regulation and National powernot yet being put forth. The circumstances of railroad develop- ment tended to make this indirect and abnormal law- making unequal and oftentimes oppressive. Later, when the promoters of railroads were viewed as pub- lic benefactors, laws were passed, ujider popular clamor, allowing municipalities to use public money and public credit in aid of roads. So much money thus lent (to irresponsible parties) was lost, that con- stitutional amendments were adopted prohibiting such use of the public money or credit. The inadequate business of many roads led to de- structive competition, to the undue favoring of large dealers, and secret arrangements in the form of spe- cial rates, rebates, and drawbacks, underbilling. re- duced classification, or whatever else! might i)e best adapted to keep the transaction from a public not de- ceived but practically helpless through dependence. Intelligent shippers, even the favored ones, realized that any reasonable, non-discriminating, permanent schedule of rates was preferable to one so fluctuating and untrustworthy as to make business contracts vir- tually lottery ventures. Special terms were often made with large shippers to increase the volume of business, in order either to attract purchasers of stock, Justify some demand for an extension of line or other large expenditure, or to assist in making terras in a consolidation or strengthen the demand for a larger share in a pool. Whatever the motive, the allowance of a special rate or rebate was not only unjust, wronging and often ruin- ing the small dealer, but it was also demoralizing,— sufferers, doubtful of obtaining redress in the courts, becoming parties to the evil by seeking similar favors. The discriminations applied to places not less than to persons, often resulting, through necessities arti- ficially created, in charging more for a short than for a long haul on the same line in the same direction, so that towns with superior natural advantages withered away under the mischievous influence. Not less conspicuous were the evils of the free trans- portation of persons, causing the corruption of some public officials and subjecting others to unjust and cruel suspicion, all leading to a deterioration of the moral sense of the community. Bailroads themselves were in cases the sufferers, the demand for passage often partaking of the nature of blackmail. In addition to these evils, rates, through the absence of competiUon or the consolidation of competing (14) roads, were kept oppressively high; they were also changed at pleasure, and without notice. Secret deal- ings made the public unable to judge of the reason- ableness of charges. Such publications of tariffs as were made were so complicated as not to be intel- ligible to the uninitiated, and rather tended to increase the difficulties. Still another evil was the strengthening of a class feeling between those whose interests demanded har- mony. The manipulation of capital stocks for the benefit of managers and to the destruction of the interest of the owners resulted in great wrong, directly to indi- viduals and indirectly to the public. The large fort- unes amassed in a short time by some officials created in the public mind suspicion and an unfair prejudice against railroad management in general, which de- veloped into an unfortunate breach between the public and all railroad corporations. In short, the manifest misuse of corporate powers created an irresistible demand for " National legisla- tion, and this very naturally, because the private gains resulting from corporate abuse were supposed to spring, to some extent at least, from excessive bur- dens imposed upon that commerce which the nation ought to regulate and protect." In response to this demand the act of 1887 laj^s down rules to be observed by the carriers to which its provisions apply, which are intended to be rules of equity and equality, and "to restore the management of the transportation business of the country to public confidence." ' COMMISSION.^ Doing, performing; execution. 1. An undertaking, without recompense, to do a thing for another person ; a gratui- tous bailment, q. v. 2. (1) Formal written authority from a court to do something pertaining to the ad- ministration of justice : as, a commission to ascertain whether one is a bankrupt, or a lu- natic; a commission to take depositions or testimony, qq. v. A writ or process issued, under seal, by the special order of a court. ^ (3) Formal authority from a government J See Report of Commission, 1887, pp. 3-10. That report presents the views of the board upon the following general subjects: The carriers subject to its jurisdiction, pp. 11-15; the long and short haul clause of the act, 16-23; the filing and publication of tariffs, 33-34; general supervision of the carriers sub- ject to the act, 2-1-27; proceedings before the commis- sion, 27-88; expense of hearings, 28-39; annual reports from carriers, 39-80; classification of passengers and freight, 30-32; voluntary association of railroad man- agers, 33-36; reasonable charges, 36-41 ; general obser- vations, 41^2; amendments of the law, 42^8, 14-16. "L. commiWcre, to place with, intrust to: con, with; mittere, to send. 3 [Tracy v. Suydam, 30 Barb. 115 (1869); Boal v. King, 6 Ham., Ohio, 13 (1833), cases. COMMISSION 210 COMMIT for the doing of something belonging to the exercise of its powers. Imports, ex vi termini^ written authority from a competent source.? Compare Waeeant, S. (3) The body or board of persons intrusted with the performance of some public service or duty: as, to revise statutes, codify laws, fix the boundary lines between States, en- force the inter-State commerce act. The instrument evidences the fact of the appoint- ment, q. v., and the nature and extent of the powers confeiTed.' Commissioner. Such person as has a commission, letters-patent, or other lawful authority, to examine any matter or to exe- cute any public office. ^ An officer of a court, appointed to assist it In administering justice in a particular case or cases. Compare Master, 4. . The supreme court of California appoints, and may at any time remove, three persons of legal learning and personal worth to assist the court in the perform- ance of its duties, and in-the disposition of the unde- termined causes now pending. Each commissioner holds office for the term of four years, and during that period may not engage in the practice of the law. The court appoints one as chief commissioner.* Whence C, and C. C. An officer who assists in the administration of government, being usually charged with administering the laws relating to some one department thereof : as, the commissioner of agriculture, of a circuit court, of a county, of deeds, of education, of fisheries, of the general land-office, of highways, of Indian affairs, of internal revenue, of patents, of pensions. 5 See Ministeeial. Commissiotier of bail. An officer author- ized to take bail for hearings or trials before a court and jury, in cases admitting of re- lease from confinement when the accused can furnish bail. Commissioner of the circuit courts. See under COURTS, United States. 'Commissioner of deeds. An officer au- thorized to take acknowledgments and depo- sitions, and to probate accounts. > United States v. Beyburn, 6 Pe't. *364 (1832). » Marbury v. Madison, 1 Cranch, 155 (1803); Lessee of Talbot V. Simpson, 1 Pet. C. C. 94 (1815); United States V. Vinton, 2 Sumn. 307 (1830). ' [Jacob's Law Diet. ; 14 N. J. L. 438. •Cal. Statutes, 1885, p. 161. Similar provision was made in Kansas in 1887, — Laws, c. 148; and on March 5, three commissioners were appointed by the governor, with the consent of the senate, — 36 Kan. R. iii. ' See Index, Revised Statutes. County commissioners. See County. 3. Compensation for services rendered. The plural, commissions, is often used. A percentage on price or value.! A sum allowed as compensation to a serv- ant, factor, or agent, who manages the aflfairs of another, in recompense for his services.^ "Commission" generally signifies a percentage upon the amount of money involved in the transac- tion, as distinguished from "discount," which is a per- centage taken from the face value of the secinnty or property negotiated.^ A reasonable commission is allowed to administrar tors, assignees, auctioneers, brokers, executors, re- ceivers, and other agents or trustees, qq. v. But the service must be completed, and due care and skill and perfect fidelity have been employed. The amoimt is a reasonable percentage upon the sum received or paid out, and is regulated by custom, or by the dis- cretion of the appointing authority. Commission merchant. A factor, g. v. COMMIT. To intrust to; to confide in. 1. To delegate a duty to a person or per- sons. See Commission ; Committee. 3. To send to a place of confinement a per- son found to be a lunatic. May contemplate a sending without an adjudica- tion by a court or a magistrate.* See Lunacy. 3. To send to prison a person, charged with or convicted of a crime. Commitment. The act of sending an accused or convicted person to prison ; also, the warrant by virtue of which the incarcer- ation is made. " To commit " was regarded as the separate and distinct act of carrying a party to prison, after having taken him into custody by force of a warrant of com- mitment.* Commitment, Warrant of. Written au- thority to commit a person to prison or cus- tody, until a, further hearing in the matter as to which he is charged can be had, or until he is discharged by due course of law ; a mittimus; a committitur. Committing. Authorized to hear charges of crime, and to discharge or take bail fpr trial before a jury. Committing magistrate. Any (inferior) officer empowered to hear charges of crime and to commit the accused to prison or accept bail for their appearance before a higher ' Brennan v. Perry, 7 Phila. 213 ( 2 [Ralston v. Kohl, 30 Ohio St. 98 (1876), Scott, J. ' Swift V. United States, 18 Ct. CI. 57 (1883). * Cummington «.■ Wareham, 9 Cush. 685 (1852). ' [French v. Bancroft, 1 Met. 504 (1840), Shaw, C. J. See also 113 Mass. 62; 138 id. 400. COMMITTEE 211 COMMODUM court ; as, a justice of the peace, some alder- men, mayors, and commissioners of bail. If the offense is not bailable, or the party cannot find bail, he is to be committed to the county gaol by the mittimits of the justice, or warrant under his hand and seal, containing the cause of his commitment; there to abide till delivered by due course of law.^ Commitment for crime being only for safe-keeping, when bail will answer the purpose it is generally taken. The warrant is in the name of the State; is under the hand and seal of the magistrate; shows his authority, and the time and place of issue; describes the prisoner by name ; specifies the place of confinement, and is directed to the keeper thereof; states that the party has been charged on oath with a particular offense. When the offense is bailable the direction is " to keep in safe custody for want of sureties, or until dis- charged by due course of law;" when not bailable, " until discharged by due course of law; " and when for further examination of the charge, " tor further hearing." ' See Bail, 1 (2); Capere, Capias, Cepi. COUMITTEE. One or more persons to whom a matter is referred for examination, deliberation, superintendence, action, or rec- ommendation. An individual or a body to which others have committed or delegated a particular duty, or who have taken upon themselves to perform it in the expectation of their act being confirmed by the body they profess to represent or to act for.' More particularly, a person appointed by a court to take charge of the person or the estate, or of both, of a lunatic, habitual drunkard, or spendthrift. The committee of a lunatic is a bailiff whose power is limited to the mere care of the estate under the direction of the court.* The civil law assigned a tutor to protect the person, and a curator to manage the estate. . To prevent sinister practices the next of kin was seldom ap- pointed committee of ttre person, but generally man- ager of the estate, accountable to the court, to the representative of the lunatic, and to the lunatic him- self upon recovery.' But now, for committee of the person, the next of kin is favored; and for committee of the estate, the heir at law." COMMITTITUK. See Commit, 3; In- terim. COMMODATUM. See Accommoda- TUM. COMMODITT.i Convenience, privilege, profit, gain; popularly, goods, wares, mer- chandise. Within the meaning of the constitution of Massa- chusetts "commodities" embraces everything which may be the subject of taxation,— including the privi- lege of using a particular branch of business or em- ployment: as, the business of an auctioneer, of an attorney, of a tavern-keeper, of a retailer of liquors.'' '* Commodity " is a general term, and includes the privilege and convenience of transacting a particular business.' See Monopoly; Staple. COMMODUM. L. Convenience, bene- fit, advantage. .Wullus commodum capere potest de injuria sua propria. No one advantage shall take of his own wrong-doing — as a cause of action or of defense. Applies where a partner retires from a firm, and fails to give notice of the change; where a person in- advertently or fraudulently mingles grain of his own with higher-priced grain belonging to another; where a tenant for years or for life cuts down trees and then claims them; where a grantor attempts to dispute the validity of the title he has conveyed; where one party binds another to a condition impossible to be per- formed, or does something to prevent or hinder per- formance. The maxim apphes only to the extent of undoing an advantage gained against the right of another, not to taking away a right previously possessed.* Thus, also, an admission, whether of law or of fact, which has been acted upon by another, is concliisive against the person who made it.* Qui sentit commoduni, sentire debet et onus. He who enjoys the benefit, ought also to bear the burden. He who enjoys the advantage of a right takes the accompany- ing disadvantage — a privilege is subject to its condition. Illustrated in the rights and liabiUties arising out of the relation of principal and agent, grantor and grantee, lessor and lessee, attorney and client, hus- band and wife, innkeeper and guest, a carrier and the public — the principle pervades the law in all its branches.' On this principle rests the law of alluvion: the 1 4 Bl. Com. 300; :^ id. 134; 112 Mass. 68. »See4Bl. Com. 296-300; 4 Cranch, 129; 17 F. E. 156; 9 N. H. 185; 6 Humph. 391. ' Reynell v. Lewis, 15 M. & yf.'&Z9 (1846), Pollock, 0. B. ♦Lloyd V. Hart, 2 Pa. 478 (1846), Gibson, C. J. ' 1 Bl. Com. 306; 3 id. 427. • Shelford, Lunacy, 137, 140, 441. > L. commodue, convenience. 2 [Portland Bank v. Apthorp, 12 Mass. 266 (1816), Par- ker, C. J. 3 Commonwealth v. Lancaster Savings Bank, 123 Mass. 495 (1878); Connecticut Ins. Co. v. Conunon- wealth, 138 id. 163 (1882); Gleason v. McKay, 134 id. 424-26 (18;3), cases; Hamilton Company t>. Massachu- setts, 6 Wall. 640 (1867); 24 How. Pr. 492. * See Broom, Max. •279; State k. Costin, 89 N. C. 616 (1883). « See 1 Greenl. Ev. §§ 207-9. •See Cooper v. Louanstein, 37 N. J. E. 305 (1883); Mundorff v. Wickersham, 63 Pa. 89 (I*), oases. COMMON 212 COMMON owner takes the chances of injury and of benefit aris- ing from situation.' Compare Onus, Cum onere. COMMON. 1, adj. (1) BeloDging to, or participated in, by several or more persons ; mutual : as, a common — ancestor, benefit, labor or service, mastei-, property, recovery, tenants iu common, 2 qq, v. (2) Originating with, or subsisting for, the people at large; belonging to, or affecting, the public ; not private, but public or general, g. 1). : as, a common or the common — bench, carrier, 'council, fishery, highvcay, inn, law, nuisance, pleas, right, schools, way, qqi v. (3) Ordinary, usual, customary, familiar; opposed to special: as, common or a com- mon — appearance, assumpsit, assurance, bail, bar, bond, care or diligence, costs, count, informer, intendment, intent, jury, mortgage, seal, stock, traverse, warranty, qq. V. (4) Frequent, habitual: as, common of- fenders — barrator, drunkard, gambler, pros- titute, scold, thief, qq. v. Three distinct acts of sale of liquors are necessary to constitute a "common " seller. Such has been the rule as to common barrator, and other cases of this nature.^ (5) Ordinary; manual; opposed to mental or intellectual : as, common labor, q. v. 2, n. The common field ; ground set apart for public uses.* The waste grounds of manors (q. v.) were called "commons."' Land appropriated to a public common may not be diverted to other uses, to the prejudice of individuals who have purchased lots adjoining it.* Where privileges of a public nature are beneficial ■ to private property, as in the case of land upon a pub- lic square, the enjoyment of the privileges will be pro- tected, by injunction, against encroachment.^ See Dedication, 1. Common, or right of common. A profit which a man hath in the lands of another : ' County of St. Clair v. Lovingston, 23 Wall. 69 (1S74). = Chambers v. Harrington, 111 XJ. S. 352 (1884). a Commonwealth v. Tubbs, 1 Cush. 3 0848), Dewey.'j. * Patterson v. McEeynolds, 61 Mo. 203 (1875); Craw- ford-!). Mobile, &c. R. Co., 67 Ga. 416 (1881). S2B1. Com. 32. '» See Emerson v. Wiley, 10 Kck. 315 (1831); Carr v. Wallace, 7 Watts, 394 (1838); Abbott v. Mills, 3 Vt. S25 (1831); State v. Trask, 6 id. 864 (1834). ■' Wheeler v. Bedford, 54 Conn. 248-49 (1886), cases: 2 Story, Bq. § 927; High, Inj. § 551. ■ An injunoti'on to prevent inclosing part of a town common or public park, by the owner of a lot adjoining the lot of com- plainant. as, to feed his beasts thereon, to catch fish, to cut wood.' Commoner. A person invested with a right of common. Existed between the owner of a manor and his feudal tenants, — for the encouragement of agricult- ure. The tenant's right was to pasture his cattle, provide necessary food and" fuel for his family, and repair his implements of husbandry, from the lord's land. 2 An incorporeal hereditament. The right usually meant is common of pasture: the right of feeding beasts on another's land. There was also common of estovers: the liberty of taking necessary wood, for use of house or farm — house-bote, fire-bote, hay-bote, hedge-bote, etc. ; common of piscary; the liberty of fishing (g. t) ) in another's water; common of turbary: a right to dig turf; common in the soil: a right to dig for minerals, etc. All the species result from the same necessity — the maintenance and carrying on of husbandry. ' Commonable beasts. Beasts of the plow; beasts which manure the ground. Inter-commoning. Where the beasts of adjacent manors have immemorially fed upon adjoining commons. Commons of pasture were appendant, when regu- larly annexed to arable land,— for the support of commonable beasts; appiirtenant, when annexed to lands in other lordships,— for the support of all kinds of animals, and arose neither from necessity nor from any connection of tenures; in gross or at large, when annexed to » man's person, by grant to him and his heirs; because of vicinage, when -the inhabitants of adjoining townships intercommoned.' See Feud. The right of common, with many of its old com- mon-law incidents, was formerly recognized in this country, particularly in the middle and eastern States.* 1 2 Bl. Com. 32. " 3 Kent, 403. ^ ' 2 Bl. Com. 33-35; 3 id. 237. *See Watts v. CofHn, 11 Johns. *493 (1814),— as to lands in the city of Hudson, Columbia country, N. Y. ; Livingston v. Ten Broeck, 16 id. "15 (1819),— town of Livingston, same county; Leyman v. Abeel, ib. *S0 (1819),— Catskill patent; Van Rennselaer v. Radcliff, 10 Wend. »639 (1833),— town of Guilderland, Albany county. See also Western University of Pennsylvania v. Robinson et al., 12 S. & R. *S9 (1824), and Carr v. Wal- lace, 7 Watts, 394 (1833),- both as to one hundred acres of land in the town of Allegheny, Pa. (now constituting the parks in the central portion of the city), in which the State, in 1787, created the right of " common of pasture " in the purchasers of " in-lots " in the plan of lots laid out and sold by the State for the purpose of raising money with which to pay pub- lic debts. In 1819 the legislature, without the consent of the owners of those lots, granted ifty acres of these "commons" to the university hamed, but the su- preme court, in Robinson's Case, held that the State GQMMONS, HOUSE OF 213 COMMUNICATION COMMOH-S, HOUSE OP. See Par- liament. COMMONWEALTH. The common or public weal: the republic; the state, or a State; the people, gg. v. " The commonwealth or public polity of the king- dom." ' Blackstone also wrote it "commonwealth."" The legal title of a few of the States, as of Kentucky, Massachusetts, Pennsylvania, Vir- ginia. COMMOEANT.3 Inhabiting, dwelling, residing ; as, in saying that a person is or is not commorant in a particular place. Whence commorancy.* COMMOEIENTES. L. Those who die at the same time, from the same accident or calamity. See Sxjrvive, 3. COMMOTION. A "civil commotion" is an insurrection of the people for general purposes, though it may not amount to a re- bellion, in which there is usurped power.' COMMUNE. See Communism. COMMUNICATION. Information im- parted by one person to another. Confidential communication. Infor- nsation impai-ted between persons who occupy a relation of trust and duty ; a privileged com- munication. Privileged communication. 1. Infor- mation imparted which the law does not re- had only the right of soil, subject to the right oC com- mon, which latter right the lot-holders could release or modify at pleasure, with the concurrence of the legislature! Some three years later, at the request of a large majority of the lot-owners, the legislature granted ten acres of the same common to trustees representing the Presbyterian Church m the United States, for the uses of a theological seminary. After the lap^ of several years, during which more than 125,000 had been expended in improvements, one Carr, who had acquiesced in this disposition of the common ground, by suit in coiurt questioned the validity of the grant to the trustees. The supreme court held that by failing to complain at the proper time he had ap- proved what had been done. See also Thomas «. Marshflield, Mass., 10. Pick. 364 (1830). and Phillips v. Ehodes, 7 Mete. 332 (1843),— as to rights of common in a beach; and Hall v. Law- rence, 2 R. I. 818 (1852),— which concerned a similar right at Newport, in 1776. On the origin of rights of common, see 3 Law Q. Eev. 373-98 (1837). ' 4 Bl. Com. 127. "3 Bl. Com. 9. ' C6m'-mo-rant. L. commorari, to abide. ' See 3 Bl. Com. 364; 4 id. 273; Wright v. Smith, 74 Me. 497 (1883): Me. Laws, 1876, c. 93. * [Langdale v. Mason, 2 Marsh. Ins. 792 (1780), Ld. Mansfield; May, Ins. § 403. quire to be disclosed in a judicial or legislative examination. Public policy forbids the disclosure of matters which the law regards as confidential, and as to which it will not allow confidence to be violated.' The rule, at common law, does not extend to con- fessions niade to clergymen. This has been changed by statute in some States, as in Iowa, Michigan, Mis- souri, New York, and Wisconsin.' Confidence between husband and wife, as to the in- terests of either, is forever inviolable." A lawyer who has counseled with a client cannot disclose information received from him. The inhibi- tion includes a clerk or a student in the lawyer's office; and applies also to a scrivener or a conveyancer. But a legal adviser may testify as to "negotiations" be- tween clients who later become adversaries. The rule does not cover a disclosure of an intention to break the law, nor testamentary communications, nor informa- tion obtained outside of the professional relation.* A conuuunication to a medical attendant is not privileged.. A few of the States (among others, those mentioned above) have conferred the immunity, ex- cepting consultations for criminal purposes.'* See Information, 1. State secrets are privileged. This embraces com- munications to any high officer of state, and consulta- tions with the executive, or a committee of the legis- lature." Prosecuting attoraeys are privileged as to confiden- tial matters.' See Accomplice. Communications between a party and a witness, by way of preparation for trial, are privileged. ^ Neither arbitrators, judges, nor jurors can be com- pelled to disclose the grounds of their flndiiigs.' See Jury, Grand. Ties of blood create no privilege.'" _ Telegrams {q. v.) are not protected." 2. In the law of slander and libel, false matter not actionable, because the circum- ' Totten V. United States, 92 U. S. 107 (1875). ,2 1 Greenl. Ev. §§ 247-48, cases; 1 Whart. Ev. §§ 59li- 98, cases. 3 1 Greenl. Ev, |§ S54, 334;,1 Whart. Ev. |§ 427-33; 113 Mass. 160; 46 Barb. 158; 35 Vt. 379. * 1 Greenl. Ev. |§ 237-^6; 1 Whart. Ev. §§ 576-93; 74 Me. 543; 101 Mass. 193. » 1 Greenl. Ev. § 248; 1 Whart. Ev. § 606: Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 U. S. 254 (1884); Gartside u. Connecticut Mut. Life Ins. Co., 76 Mo. 449-53 (1882), cases, statutes. » 1 Greenl. Ev. §| 250-51 ; 1 Whart. Ev. §§ 604-5, cases; Worthington v. Scribner, 109 Mass. 488-93 (1872), cases; Totten V. United States, 92 U. S. 105 (1875); Hartranft's Appeal, 85 Pa. 433 (1878); Bex v. Hardy, 24 How. St. Tr. 815 (1794); 15 Op. Att.-Gen. 9, 378, 416; 50 Md. 626. 'Vogel V. Gruaz, 110 U. S. 311, 316 (1884), cases; 1 Whart. Ev. § 603. 8 1 Whart. Ev. § 594. » 1 Whart. Ev. §§ 699-601; 1 Greenl. Ev. §§ 249, 352. >» 1 Whart. Ev. | 607; 14 111. 89; 3 Wis. 456; L. E., 18 Eq. 649. "IWhart. Ev. §§696, 617. COMMUNICATION 214 COMMUNITY stances gave the defendant a right to make the statement. The occasion on which the communication was made rebuts the inference arising, prima facie, from a statement prejudicial to the character of the plaint- iff, and puts it upon him to prove that there was malice in fact — tiiat the defendant was actuated by motives of personal spite or ill-will, independent of the occasion on which the communication was made.i " Privileged " in this connection iheans simply that the circumstances under which the communication was made were such as to repel the legal inference of malice, and to throw upon the plaintiff the burden of offering evidence of its existence beyond the mere falsity of the charge. * A communication made fcona ^de upon ^ay subject- matter in which the party communicating has an in- terest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminatory matter which, without this privilege, would be slan- derous and actionable.^ Where a person is so situated that it becomes right, in the interests of society, that he should tell a thii'd person certain facts, then if he bona fide and without malice does tell them it is a privileged communication. The jury must say whether the statement was made in'^good faith.* In some instances a voluntary imparting of infor- mation will be justified; in others the privilege applies only to information in response to inquiries. The sub- ject may be one that is privileged, and a communica- tion on that subject be imprivileged. If the restraints imposed by law upon the publicity to be given the communication be disregarded, the communication is unprivileged and actionable, although made from the best of motives. Tfie act of communicating defama- tory matter to a person with respect to whom there is no privilege is without legal justification or excuse. Good faith and honest belief will not justify defama- tion. ^ In the law of libel, privileged communications are : 1. When an author or publisher acted in bona fide dis; charge of a public or private duty, legal or moral ; or in the prosecution of his own 'rights or interests. 3. Anything said or done by a master in giving the char- acter of a servant who has been in his employment. I Wright V. Woodgate, 2 Cromp., M. & E. 577 (1835), Parke, B. a Lewis V. Chapman, 16 N". Y. 373 (1857), Selden, J. 3 Harrison v. Bush, 5 Ellis & B. *347-48 (1855), Camp- bell, C. J. ^Davies v. Snead, L. R., 5 Q. B. *611 (1870), Black- burn, J. See Waller v. Loch, 7 Q. B. D. 621-23 (1881); Marks " Baker, 23 Minn. 164-65 (1881), cases; Erber v. Dun, 12 F. R. 530 (1882); Trussellv. Scarlett, 18 id. 214, 216-20 (1882), cases; Locke v. Bradstreet, 22 id. 771 (1885); 26 Am. Law Beg. 681-93 (1887), cases. 6 King V. Patterson, 49 N. J. L. 421 , 41 9-33 (1887), cases, Depue, J. The plaintiff (above) published in his " mercantile agency notification sheet "the false in- formation that the defendant had executed a chattel mortgage upon her stock of goods. 3. Words used in the course of a legal or judicial proceeding, however harsh. 4. Publications duly made in the ordinary mode of parliamentary proceed- ings. . In these cases the complainant must show express malice, by construction of the matter, or by facts accompanying the matter or the parties.* In some jurisdictions the privilege is spoken of as "absolute," that is, it reste upon grounds -of policy, requiring freedom in debate or argument, and in giv- ing testimony — in which cases proof of even actual malice is not received, unless it be as to the last: as, for utterances by a legislator, judge, advocate, or wit- ness; and ^s "presumptive," that is, in which the plaintiff may prove absence of good faith or actual malice: as, communications in discharge of social du- ties; when the author or recipient has a legal interest to be promoted; answers to legitimate inquiries; char- acters given to servants; statements to sellers as to credit of buyers; notices protective of one's interests or in discharge of a corporate duty.* Utterances in the course of church discipline, to or of a member of the church, are not actionable unless express malice be proved." See Libel, 5; Slander. COMMUNIS. See Error, 1, Communis. COMMUNISM. A name given to schemes of social innovation which have for their common starting-point the overthrow of absolute rights of ownership in private property as an institution. Most theories fur- ther comprehend the regulation of industry and the sources of livelihood, as well as of the domestic relations, and some involve the abrogation of all central authority in a State, and the substitution of that of the commune.* It is the latter feature that constitutes a distinction between commimismand socialism.* See Anarchy; Government; Nihilist. COMMUNITY.s 1. Unity; mutuality; as, community of interest or of intention. See Partnership.- 2. In Louisiana, Texas, California, and per- haps in New Mexico and Arizona, a sj)ecies of partnership created between husband and wife by the contract of marriage, in acqui- sitions oi property made or received during the continuance of that relation. This community is conventional when formed by express agreement in the contract . 1 White V. NichoUs, 3 How, S8G-92 (1845), cases, Dan- iel, J. As to newspaper publications, see 21 Cent. Law J; 86-90, 4:0-55 (1885), cases. 2 See O'Dona^hue v. M'Govern, 23 Wend. *29 (1840); Howard v. Thompson, 21 id. 825 (1839). s Coombs V. Rose, 9 Blackf. *157 (1846), cases. Con- tra, Fitzgerald v. Robinson, 112 Mass. 371-78 (1873). cases; Magrath v, Finn, 16 Alb. Law J, 186 (1877) — Irish Common Pleas, ^ [Worcester's Diet. * L. cornviunis, commoa COMMUTATION 315 COMPANY of marriage ; legal, when it arises by oper- ation of law — as where there is no express stipulation. At the dissolution of the relation the effects are di- vided equally, as between heirs. ^ Statutes upon the subject proceed upon the theory that the marriage, in respect to property acquired during its existence, is a community, of which each spouse is a member, equally conti-ibuting by his or her industry to its prosperity and possessing an equal right to succeed to the property after dissolution, in, the event of surviving the other. To the community all acquisitions by either, whether made jointly or separately, belong. No form of transfer or mere in- tent of parties can overcome this positive rule of law. All property is common property, except that owned previous to marriage or acquired after the relation has ceased. The presumption is against separate ownership. A pin-chase made with separate funds must be aflfinnatively established by clear and decisive proof. The husband has the entire control of the common property; and it is liable for his debts. ^ 3. A society of people having common rights, interests, or privileges in matters of property, representation, etc. An association by which each member surrenders his property into one common stock for the mutual benefit of all during their joint lives, with the right of survivorship, reserving to each member the right to secede at any time during his life, is not prohibited by law.* 4. A society of people possessing common political interests; a political society. See State, 3 (3). COMMUTATIOM'.i Putting one thing for another ; substitution. As, of a tax, for a personal service ; an annuity to a tribe of Indians, for goods; rations to a soldier, for money; * an artificial limb, for its value in money.' Commutation of pTinishmeiit. The substitution of a less for a greater penalty or punishment ; ' the change of one punishment for another and diflferent punishment, both being known to the law.s See Pardon. Commutable; commutative. Capable or admitting of substitution; not inter- changeable for another — of less or equal »La. Civ. Code, 2375, 2393; 10 La. 146, 172, 181; 13 id. 698. See as to Texas, Hanriok v. Patrick, 119 U. S. 172 (1886), cases. ' Tibbetts v. Fore, 70 Cal. 244-^5 (1886), cases ; Schuyler V. Broughton, ib. 283 (1886), cases. s Schriber v. Eapp (Harmony Society), 5 Watts, 3B1, 360 (1836); Baker v. Naohtrieb, 19 How. 126 (1856); Speiiel v. Henrici, 120 U. S. 377 (1887). ' L. commufare, to exchange with. » United States v. Lippitt, 100 U. S. 663, 670 (1879). • K. S. § 4788. ' Lee V. Murphy, 22Gratt. 799, 798-800 (1872), cases. 9 Hxp. Janes, 1 Nev. 321 (1865). value or degree. Opposed, incommutable, incommutative, non-commutable. COMPACT. An agreement or contract — between independent sovereignties.! Original or social compact. The im- plied contract of association of individuals in a community, by which, in return for the beneiits of the association, the individual surrenders such of his natural freedom as is necessary for the good of society. Thereby, whatever power the individual had to punish offenses against the law of nature is vested in the magistrate — the sovereign power.'' See Body, 2, Corporate. COMPAiry. 1. The member of a part- nership (q. V.) whose name does not appear in the name of the firm. The use of the collective designation " & Co.," as part of the name of a firm, creates a presumption that there is a partner in addition to the person or persons whose names are given; but this presumption is re- buttable. Statutes in Louisiana and New York forbid the use of the addition unless an actual partner is rep- resented by it; but a fanciful title, such as "Eureka Co.," may still be used; and the reference may be to a person under disability. Such statutes are intended to protect persons who give credit to, not those who obtain credit from, a flrm.» 3. Applied to persons 'engaged in trade, those united for the same purpose or in a joint concern.* "Company" or" association," when used in the Eevised Statutes, acts or resolutions of Congress, in reference to corporations, shall be deemd to embrace the words " successors and assigns of such company or association " in like manner as if these last-named words, or words of similar import, were expressed. » The simple word " company " will include individ- uals as well as corporations.' Often designates a numerous association, chartered or unchartered. Every imincorporated company is a partnership. See Association; Partnership, Limited; Stock, 3 (2); Bubble; Express; Prospectus; Eailroad; Tei/- eqraph; Transportation. ' 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 Shars. Bl. Com. 232; Atlantic Monthly, June, 1887, p. 760, article by A. L. Lowell, who undertakes to show that the theory, first propounded in 1594 by Eichard Hooker, adopted by Hobbs, Locke, Rousseau, the framers of the constitution of Massachusetts, and Kant, has been made the servant of absolutism, de- mocracy, revolution, and transcendental ethics. s 1 Bates, Partn. §§ 191, 198, cases; Gay v. Seibold, 97 N. Y. 476 (1884); Lauferty v. Wheeler, 11 Daly, 197 (1882); Zimmerman v. Erhard, 83 N. Y. 76 (1880); Kent V. Mojoiner, 36 La. An. 259 (1884). • Palmer v. Pinkham, 33 Me. 36 (1851), Shepley, C. J. s E. S. § 5: Act 26 .Tuly, 1866. • Chicago Dock Co. v. Garrity, 115 HI. 164 (1885). COMPARATIVE 316 COMPENSATION COMPARATIVE. See Jurisprudence ; Negligence. COMPARISOlf. See Handwriting. COMPENSATIOW. That return which is given for something else — a consideration : as, the conlpensation of an office, i Compensatory. Serving as an equiva- lent; making amends: as, compensatory damages, g. v. 1. Recompense ; remuneration : as, for serv- ices rendered by an officer, agent, attorney, trustee. When not fixed by agreement, e\4dence of the amount ordinarily charged in like cases is admissible. The service, however, must be lawful. An agreement to pay a contingent compensation for professional services in prosecuting a claim against the govern- ment, pending in a department, is not unlawful.'^ In a constitutional provision that the " compensa- tion" of any public officer shall not be increased or diminished during his term of office, applies to officers who receive a fixed salary from the public treasury, not to such minor officers as are paid by fees taxed, or allowed for each item of service as it is rendered.' When Congress has said that a sum appropriated shall be "in full compensation" of the services of a public officer, the courts cannot allow him a greater sum. The appropriation of a fixed sum as compensa- tion, followed by the appropriation of a round sum as " additional " pay, evinces an intention not to allow further compensation during the period specified. So, a statute which fixes the annual salary of an officer at a designated sum without limitation as to time, is not abrogated by subsequent enactments appropriating a less amount for his services for a particular fiscal year, but containing no words which expressly or im- pliedly modify or repeal it.* See Commission, 3; Con- tinuance, 3; Count, 4 (1), Common; Expert; Impair; Legal; Salary. 2. Remuneration for loss of time, neces- sary expenditures, and for permanent disa- bility, if such be the result. 5 As, compensation for personal" injuries caused by another's negligence. See Damages. 3. Amends for privation of a thing; an equivalent for property taken for a public use. Just compensation. Private property cannot be taken for a public use without just compensation being made or secured. This 1 Searcy v. Grow, 16 Cal. 123 (1860). 2 Stanton v. Embrey, 93 U. S. 548 (1876). 2 Supervisors of Milwaukee «.. Hackett, 21 Wis. *617-18 (1837), Dixon, C. J. < United States v. Fisher, 109 U. S. 143 (1883); United States V. Mitchell, ib. 146 (1883); United States v. Lang- Bton, 118 id. 389 (18S61. » Parker v. Jenkins, 3 Bush, 591 (1868). means pecuniary recompense equivalent in value to that of the property, i "Just" intensifies the meaning of "compensa- tion " — imports that the equivalent shall be real, sub- stantial, full, ample.'' Nearly all of the authorities agree that " just com- pensation " consists in making the owner good, by an equivalent in money, for the loss he sustains in the value of his property by being deprived of a portion of it.' In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in the sale of property between private persons. The inquiry is. What is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference 'to the uses to which it Is plainly adapted; that is to say, what] is it worth from its availability for vg.luable purposes. . . So many and varied are the circumstances to be taken into the account that it is perhaps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule. As a' general thing, the compensation is to be estimated by reference to the uses for which the property is suit- able, having regard to the existing business or wants of the community, or such as may be reasonably ex- pected in the immediate future.* When an incorporated company appropriates land, the measure of compensation is the difference between the value of the property before and after the taking, and as affected by the taking. ^ See Domain, Eminent;. Police, 2; Street; Take, 8. 4. In equity, something to be done for, or money to be paid to, a person, equal In value or amount to the right or. thing of which he has been deprived. Ordinarily decreed as incidental to other relief sought by the bill, or where there is no adequate rem- edy at law, or where a peculiar equity intervenes.^' Compensation may be decreed where . the court cannot grant the specific relief prayed for. Thus, if a plaintiff was originally entitled to specific perform- ance of a contract of sale, but it so happens that be- fore the final decree it becomes impracticable for the defendant to make a conveyance, so that the specific relief sought for cannot be decreed, the court will not 1 Council Bluffs E. Co. v. County of Otoe, ,16 Wall. 674 (1874). Strong, J. 'i ■V^irginia, &c. E. po. u. Henry, 8 Nev. 171 (1873), Whitman, C. J. 'Bigelow V. West Wisconsin E. Co., 27 Wis. 487 (1871), cases, Lyon, J. < Mississippi, &c. Boom Co. v. Patterson, 98 U. S. 407-8 (1878), Field, J. » See Lake Erie, &c. E. Co. v. Kinsey. 87 Ind. 516-81 (1883), cases ; Shenango, &c. R. Co. v. Braham, 79 Pa. 453 (1875), cases; 39 Ala. 171-72; 42 id. 8; .!6 id. 679; 69 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. 379-80; 2 Kent, 338; Pierce, Eailr. 210,212, 234. »2Story, Eq. Ch. XIX. COMPERUIT 317 COMPLETE turn the plaintiff over to seek his damages in an action at law, but will proceed directly to decree him com- pensation. ' See Condition, Pi'ecedent, Subsequent. 5. A mode of extinguishing a debt, and takes place, by mere operation of law, where debts equally liquidated and demandable are reciprorally due.'-' COMPERUIT. See Dies, Comperuit. COMPETENT. Answering the require- ment of the law ; legally able, fit, or quali- fied : also, proper or admissible as evidence. Whence compet-ency; incompetent, incom- petency. A judge is said to be incompetent to hear a cause in which he is interested; and an infant, or a married woman, incompetent to contract for an article not a necessary. All witnesses that have their reason, except such as are infamous, or, at common law, are interested in the event of the cause, are competent, but the jin-y must judge of their credibility,^ q. v. Competency is a question for the court. Every witness is presumed to be competent. Oi'dinarily, in- competency is to be objected to when first known or discovered — before the witness is sworn and his testi- mony found to be unfavorable.' See further Evi- dence, Competent; Witness. COMPETITION. See Monopoly ; Pol- icy, 3; Trade, Restraints. Competitive examinationa. See Serv- ice, 3, Civil. COMPILE. To copy from various au- thors into one work. Implies the exercise of judgment in selecting and combining the extracts.* A compiler may take existing materials from sources common to all writers, and, by arranging them in combination in a new form, give them an ap- plication unknown before. Others may use the mate- rials, but not his improvement. The "fair use" which is allowable applies to the materials, not to another's plan and arrangement. ' A compilation made from original sources is a new work. The fact of originality may be proved by an- other than the author. A compiler is an " au- thor," within the meaning of the Constitution and the copyright laws. . A compilation, which is the result of labor devoted to gathering from original sources and to arranging in convenient form facts ■Mason's Appeal, 70 Pa. 29-30 (1871), cases; 77 id. 227; 75 id. 483; 13 Ves. 73, 287. »See Dorvin v. Wiltz, 11 La. 520 (1856); Stewart D. Hai-per, 16 id. 181 (1861). s 3 Bl. Com. 369. As to moral status, see 19 Am. Law Rev. 343-58 (1885), cases; as to mental status, ib. 583-92 (1885), cases. < 1 Greenl. Ev. § 50; 1 Whart. Ev. §§ 891-411, 418-21 5 Story's Ex'rs v. Holcombe, 4 McLean, 313 (1847). » Lawrence v. Dana, 4 LlifE. 75-86 (1869), cases. open to be published by any one, is a new work. . . " Colorable differences " applies to devices intended to cover a literary piracy, n&t to real and substantial differences.! A compilation made from voluminous public docu- ments, and arranged to show readily the date and order of historic events, may be copyrighted. Such publications are valuable sources of information and require labor, care, and some skill in their prepara- tion.'* See further Abridge; Pikacy, 2; Report, 1(2); Review, 3. COMPLAINT. 1. A formal charge that a person named has committed an offense, preferred before a magistrate or a tribunal authorized to inquire into the probable truth of the accusation. Refers to a proceeding before a magistrate." But may include an indictment.' Implies thatan oathhas been administered.' A complaint is the initial proceeding in criminal prosecutions and examinations before magistrates, and is made upon oath. If a jurat be attached, and it be properly certified by the magistrate, as is fre- quently the case, it will be essentially an " affidavit," But a complaint is not necessarily an affidavit, nor are they understood as convertible terms. For, though a complaint may be reduced to writing and subscribed, it need not be certified by the magistrate, since the fact may otherwise appear from his record. And it may be merely formal, made by one who has little, it any, knowledge about the facts, and the examination consist of the depositions of other witnesses. An "affi- davit," on the other hand, as the term is ordinarily used, is a sworn statement of facts or a deposition in writing, and includes a jurat— a certificate of the magistrate showing that it was sworn to before him, including the date, and sometimes also the place.' 3. The first pleading filed by a plaintiff in a civil acti(m. The first pleading in an action ; containing a statement of the cause of action, with a demand for the appropriate relief to which the party may be entitled. ' Complainant. One who prefers a charge of crime; also, he who institutes a civil suit, particularly a suit in equity. See Declaration, 3; Plaint. Compare AUDIRB, Audita, etc. COMPLETE. See Cause, 3, Of action; Inchoate; Perfect. 1 Bullinger v. Mackey, 15 Blatch. 556, 5S8 (1879), cases. = Hanson v. Jaccard Jewelry Co., 33 F. B. :03 (1887), Thayer, J.; Drone, Copyr. 152-51, cases. . 3 Commonwealth v. Davis, 11 Pick. "436 (lasi). 4 Commonwealth v. Haynes, 107 Mass. 197 (1871). 5 Campbell v. Thompson, 16 Me. 120 (ISM). » State v. Richardson, 34 Minn. 117-18 (1885), Vanderburgh, J. Extradition Act, R. S. § 5378. ' M'Math V. Parsons, 26 Minn. 247 (1879). COMPOS 218 COMPROMISE COMPOS.- L. Having control of; pos- sessing power over. Compos mentis. Having capacity of mind ; sound in mental faculties ; of sound mind. Ifon compos m.entis. Not of sound mind ; lunatic ; insane. See Insamty. COMPOSITION. 1. In the law of copy- right, the invention or combination of the parts of a work ^ literary, musical, or dra- matic : as, in the case of a letter, discourse, or book ; or of an opera ; but not of a mere ex- hibition, spectacle, or scene.l See Book, 1; COPYKIGHT; DEAMA; OPERA. 2. In the law of patents, a, mixture or chemical combination. See Patent, 2 ; Pro- cess, 2. 3. Payment of part in satisfaction of the ■whole of a debt. See Compound, 3. Composition in bankruptcy or insolv- ency. A contract by which creditors agree 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 debtor for the discharge of the debt, on terms or by means different from those required by the original contract or by law.2 This may be by a composition agreement so called, by a letter of license, or by a deed of inspectorship. See License; Inspection, 3. A strict composition agreement is an agree- ment whereby the creditors accept a .sum of money, or other thing, at a certain time or times, in full satisfaction and discharge of their respective debts.,2 Obviates the necessity of a discharge by the court; if made in good faith and fairly and strictly conducted, will be upheld. The agreement is evidenced by an in- strument signed by the debtor and the creditors, and called a composition deed^ although, at common law, such instrument is not necessaiy.^ See Accord; Bank- ruptcy; Prefer, 2. COMPOUIfD. 1, V. (1) To put parts to- gether to form a whole. See Composition. (3) To add interest to principal for a new principal. See Interest, 2 (8). (3) To "compound" a debt is to abate a part on receiving the residue. Demands are > Martinetti v. Maguire, 1 Abb. V. S. 362 (1867); The " lolante " Case, 15 F. E. 439 (1883); 17 F. B. 595, cases; 9 Am. Law Eeg. 33; 23 Bost. L. R. 397. = [4 South. Law Eev. 639-75, 80^42 (1878), cases. s Clarke v. White, 12 Pet. 178 (1838); 20 Cent. Law J. .385-88 (1885), cases; 3 MoCrary, 608; 21 Cal. 122; 49 Conn. 105; 75 Ind. 127; 30 Kan. 361 ; 80 Ky. 614; 71 N. C. 70; 92 Pa. 474; 100 id. 164; E. S. § 5103; 2 Kent, 309, b. compounded when adjusted by payment of part in satisfaction of the whole.! See Com- position, 3. (4) To take goods, or other amends, upon an agreement not to prosecute a person for a crime. Compounding a misdemeanor is sometimes al- lowed by leave of court, as affecting the individual, he having a right of action for damages. Compound- ing a felony is, at common law, an offense of an equivalent nature [to the felony], and is, besides, an additional misdemeanor against public justice by con- tributing to make the laws odious.^ See Bote, Theft; Lkqal, Illegal. ■ By Stat. 25 Geo. n (1758), o. 36, advertising a reward for the return of things stolen, " no questions to be asked," subjects the advertiser and the printer to a forfeiture of £50 each.^ 2. adj. See Interest, 2 (8) ; Larceny. COMPRISE. See Include. COMPROMISE.* An agreement in set- tlement of a controverted matter. The yielding of something by each of two parties.^ A mutual yielding of opposing claims ; the surrender of some right or claimed right in consideration of a like surrender of some counter-claim. 6 Compromises are highly favored in law. An *' offer " to do something by way of compromise of a controversy, as, to pay a sum of money, to allow a certain price, to deliver certain property, and like offers, made to avoid litigation, is not receivable in evidence against the maker as an admission. If the offer is plainly for a compromise, the rule is to pre- sume it to have been made without prejudice — it is open to explanation. But an admission made during or inconsequence of the offer is receivable.^ To admit evidence of an offer to compromise litiga- tion would discoiu:age the amicable settlement of dis- putes. When the object is to buy peace, an offer will be excluded. =r See Prejudice, Without. / If the right surrendered is of doubtful validity, its surrender may be a valuable consideration for the promise." ' [Haskins v. Newcomb, 2 Johns. *408 (1807), Kent, Chief Justice. " [4 Bl. Com. 136. See Smith, Contr. 226. 3 4B1. Cora. 133. *L. com-promittere, to mutually promise; to arbi- trate. "Bellows V. Sowles, 55 Vt. 399 (1883). " Gregg V. Wethersfleld, 55 Vt. 387 (1883); ib. 397; 10 Neb. 360; 2 Wis. *6. 'West u. Smith, 101 U. S. S73 (1879), cases; Home Ins. Co. V. Baltimore Warehouse Co., 93 id. .548 (1876)'; 1 Pet. 222; 16 Op. Att-Gen. 850; 87 Ind. 465; 4 La. 456; 50 Md. 45; 41 N. J. L. 174; 1 Greenl. Ev. § 192; 2 Whart. Ev. § 1090. "International, &c. E. Co. v. Eagsdale, 67 Tex. 27 COMPTROLLER 219 CONCEAL An administrator may compound a debt, if for the benefit of the estate ; ' and so may a partner for the benefit either of himself or of the firm — statutes in many of the States making a release of one joint debtor not a release of others.'' The courts, are inclined to favor a compromise fairly made by an attorney at law, and will uphold it for good reason shown.' See Accord. COMPTROLLER, or CONTROLLER. One who keeps a counter-roll, a duplicate register, of accounts: anofiScer charged with the duty of -verifying accounts in the fiscal department of government. In the treasury there are two comptrollers, desig- nated as the first and the second. Their duties are pre- scribed by statute,* See Bank, 3 (2). In 1880 there was published, by direction of the treasurer, a volume of the decisions of the first comp- troller, of a general character; and, in 1881, a. second volume. Since 1882, one volume a year has been issued under authority of a resolution of Congress of August 3, 1882. In the introduction to volumes one, two, and three, more especially to volume three, will be found an outline of the natm-e and extent of the important jurisdiction exercised by the first comptroller, and of the nature of the powers exercised by accounting olHcers generally, as compared with strictly judicial power. COMPTJLSORY. Involuntary ; con- strained.: as, a compulsory — arbitration, as- signment, condition, nonsuit, payment, pro- cess, qq. V. See Voluntary. Compulsion. Coercion; duress, qq. v. Compare Boycotting. COMPURGATORS. Neighbors of a per- son, made a defendant in a criminal or a civil action, who testified under oath that they believed he swore to the truth.5 gee further Wager, 1, Of law. COMPUTARE. L. To sum up ; to ac- count, q. V. Insimul computassent. They settled an account together. An averment that a balance was struck by the parties to an account, and that the de- fendant, against whom the balance appeared, promised, by implication of law, to pay it to the plaintiff." (1887), cases; Chicago, &c. B. Co. v. Catholic Bishop, 119 111.631(1887). , , ,,„ ' Jeffries V. Mutual Life Ins. Co. of New York, 110 U. S. 309-10 (1884), cases. a 1 Bates, Partn. §§ 382, 387, cases. 3 Whipple V. Whitman, 13 E. I. 512-15 (1882), oases- Township of North Whitehall v. Keller, 100 Pa. (1832); Holker v. Parker, 7 Cranch, 452 (1813). * See B. S. |§ 269, 273. 5 See 3 Bl. Com. 311-48. • 8 Bl. Com. 164; 81 N. Y. 271. Plene computa-vit. He has accounted in full. A plea in the action of account-render that the defendant has fully accounted. Quod computet. That he account, — oomputent, that they account. An interlocutory judgment in account- render or action of account, at law or in equity, that the defendant render au account before an auditor or a master.' COMPUTE. See under Cebtum; Com- putare; Day: Time. CON. 1. A form of cum (q. v.), in com- pound words. 3. An abbreviation of contra, and of con- versation, qq. V. CONCEAL. To hide, keep from view, cover up, secrete; to prevent discovery of; to withdraw from reach ; to withhold infor- mation. 1. To hide or secrete a physical object from sight or observation.2 The act of March 2, 1799, authorizing the seizure of " concealed " goods, subject to duty, requires that the goods be secreted — withdrawn from view. It does not apply to a mere removal, though fraudulent. ' To " conceal property " in order to prevent its being taken on process includes not only physical conceal- ment—literal secreting or hiding, but also the domg of any act by which the title of a party is concealed,— his property so covered up that it cannot be reached by process. The provision may apply to realty as well as to personalty.* A horse may be "concealed" by destroying the means of identifying him. The word includes aU acts which render the discovery or identification of prop- erty more difBcult.' A " concealed weapon '" is a weapon ■willfully cov- ered or kept from sight." See further Weapon. 3. To shelter from observation ; to harbor ; to protect. See Harbor, 1. 3. To withdraw to a place where one cannot be found ; to abscond, q. v. " Concealment by a debtor to avoid the service of summons "mvolves an intention to delayer prevent creditors from enforcing then- demands in the ordi- nary legal modes. It may be by the debtor's secret- ing himself upon his own premises, or by departing secretly to a more secure place, m or out of the county of his residence.' 108 1 3 Bl. Com. 164; 1 Story, Eq. I 648. s [Gerry v. Dunham, 67 Me. 389 (1869). » United States v. Chests of TeJi, 12 -VSrheat. 486 (1827). « [O'Neil V. Glover, 5 Gray, 169 (1856); 4 Cush. 463. State V. Ward, 49 Conn. 443 (1881). • Owen V. State, 31 Ala. 389 (186S). 7 Dunn V. Salter, 1 Duv. 346 (1864). See also Frey V. Aultman, 30 Kan. 182, 184 (1883). CONCEAL 230 CONCLUDE Leaving a place, requesting that false information of the person's movements be given, is concealment.' 4. To contrive to prevent the discovery or disclosure of a fact. When the operation of a statute of limitations is to be suspended it the debtor " conceals the cause of ac- tion," there must be an arrangement or contrivance of an afiBrmative character to prevent subsequent dis- covery.2 To '• conceal the death of a bastard child " is a misdemeanor. , The time ^as when -the mother had to prove, by at least one witness, that the infant was dead-bom ; if she could not she was presumed to be guilty of murder.' See Aideb and Abetter. The fact that the owner of stolen goods does not know of the theft does notamount to a " concealment of the larceny " on the part of the thief, within a pro- vision that where a thief conceals his crime the period of concealment is not to be included within the period of limitation.* 5. To neglect or f prbear to disclose informa- tion ; to withhold intelligence of a fact which in good faith ought to be communicated. ^ In insurance law, concealment is the intentional withholding of any fact material to the risk, which the assured, in honesty and good faith, ought to com- municate to the underwriter. . , That is a " mate- rial fact " the knowledge or ignorance, of which nat- urally influences the judgment of the underwriter in making the contract, or in estimatihg the degree and character of the risk, or in fixing the rate of the premium.' See further EEPKESENTATioif, 1 (2). "Fraudulent concealment " is the suppression of something which a party is bound to disclose. The intention to deceive must clearly appear. The test is, Whether one party knowingly suffered the other to deal under a delusion."* " Undue concealment," which amounts to fraud in the sense of a court of equity, and for which it will grant relief, is the non-disclosure of those facts and circumstances which one party is under some legal or equitable obligation to communicate to the other, and which the latter has a right not merely iu foro con- scientuB, but juris et de jure, to know.' Deliberate concealment is equivalent to deliberate falsehood.^ In making a contract, each party is bound to com- naunicate his knowledge of the material facts, pro- vided he knows that the other party is ignorant of them, and they are not open and naked, or equally within the reach of the party's observation, and that ' North V. McDonald, 1-Biss. 59 (1854). " Boyd V. Boyd, 27 lud. 429 (1867). ' 4 Bl. Com. 198, 858. « Free v. State, 13 Ind. 334 (1859). = See Gerry v. Dunham, 57 Me. 339 « Magee v. Manhattan Life Ins. Co., 92 U. S. 93 (1875), Swayne, J.; Barfcholmew v. Warner, 33 Conn. 103 (1864): ' 1 Stoiy, Eq. § 207; Paul u. Hadley, 23 Barb. 584 (1857). " Crosby v. Buchanan, 33 Wall. 454 (1874). there is an obligation to communicate truly and fairly, by confidence reposed, or otherwise.' See Fraud. Aliud est celare, aliud tacere. It is one thing to conceal, another to be silent. Silence is not concealment^ where matters are equally open for thfe exercise of judgment. See Ca- veat, Emptor; Silence. COWCEPTIOlf. See Quickening; Preg- nancy; Venter. CONCEEON". To affect the interest of, be of importance to, a person. See Inter- est, 1. Sales of property for charges by a bailee, or for taxes, "for whom it may concern," mean for the unknown or non-claiming owner. A policy of insurance " on account of whom it may concern," or with equivalent terms, will be applied to the interests of the persons who ordered it, provided they had authority to insure. Thus, an agent, factor, carrier, bailee, trustee, consignee, mortgagee, or any other lien-holder may insure the property to the ex- tent of his own interest, and, by the use of the words in question, for all other persons, to the extent of their respective interests, when he has previous authority or subsequent ratification.* Concerning. In E. S., § 3894, which provides that no letter " concerning lotter- ies " shall be carried in the mails, refers to letters sent out to advertise lotteries.^ Concerns. Under a statute exempting persons from turnpike tolls when traveling on " ordinary domestic business of family concerns," a physician going to visit his patients is not exempt.'' CONCESSIOIf. See Cession. CGWCLUDE.s 1. To close, end, termi- nate ; to finish, complete. Conclusion. (1) An ending or closing, as of an instrument or a pleading. See Dec- laration, 3; Indictment; Plea, 3. (3) The last argument to a court, or the last address to a jury. See Burden, Of proof. (3) An inference or deduction: as, a con- clusion of fact, or of law. See Presumption. 3. To put an end to, close up ; to be final ; to estop, bar, preclude.* > 4 Kent, 482, note (a). 2 Hooper u Robinson, 98 U., S. 636, 638 (1S78), Swayne, J.; Robbins v. Firemen's Fund Ins. Co., 16 Blatch. 127 (1879). 8 Cummerford v. Thompson, 2 Flip. 014 (1880). « Centre Turnpike Co. v. Smith, 12 Vt, 216 (1840). ^ L. claudere, to shut up, close. " See Hilliard v. Beattie, 58 N. H. 112 (1877)i CONCUBINAGE 331 CONDITION Conclusive. Determinative, decisive ; not to be questioned, controverted, or contra- dicted, nor requiring support. Inconclu- sive: presumptive, rebuttable. As, in speaking of a judgment, or of a return of service that is conclusive, and of conclusive and in- conclusive evidence or presumptions, qq. v. A party who fails to assert his right, after receiving notice of a proceeding affecting it, is said to be " con- cluded " by the judgment. COHrCUBINAGE. " Concubinage " and " prostitution " have no common-law mean- ing. In their popular sense they include all cases of lewd intercourse,! q. v. See also Prostitution. CONCUE,. 1. To go along together; to co-exist: as, in saying that in malicious prosecution malice and want of probable cause must concur. Concurrent. Co-existing ; having effect, operation, or validity at one and the same time : as, a concurrent or concurrent — agree- ments, covenants, or promises, consideration, jurisdiction, negligence, possession or seisin, remedies, qq. v. 3. To entertain like views ; to agi-ee ; as, to concur in an opinion, and concurring opin- ion. Opposed to dissent. See Opinion, 3. CONDEMH. To pronounce wrong. 1. To sentence ; to adjudge. Condemnation. A sentence or judgment which condemns a person to do, give, or pay something; or which declares that his claim or pretensions are unfounded. Condemnation money. Money which the law sentences a party to pay ; ^ also, in ap- peal bonds, the damages that may be awarded against the appellant, by judgment of the court.' Bail above or bail to the action undertake that if the defendant is condemned in the action he will pay the costs and the condemnation, or else that they will.* See Appeal, 2, Bond. 3. To declare forfeited: as, to condemn merchandise offered for sale in violation of a revenue law. In Federal practice, proceedings In such cases are in rem, against the thing as offending. Whence the title of cases: United States v. Chests of Tea, Boxes of Cigars, Gallons of Whiskey. See Res. 1 People V. Cummons, 56 Mich. 545 (1885), Camp- beU, J. " Lockwood V. Saffold, 1 Ga. 74 (1846). 3 Doe V. Daniels, 6 Blackf. 9 (1841); 107 U. S. 381-92. * 3 Bl. Com. 391. 8. To confiscate as contraband of war. See Confiscate. 4. To declare a vessel to be a prize, or unfit for service.! See Prize, 3. 5. To adjudge necessary for the uses of the public : as, to condemn private property under the power of eminent domain. See Domain, 3. A condemnation of lands is a purchase of them in invitum; the title acquired is a quitclaim.^ 6. To judicially determine that realty, out of its rents and profits, clear of reprises, will not satisfy a judgment within a prescribed period, as, seven years. See Inquest, Of lands. CONDITIO. L. A stipulation, proviso, condition, q. v. Conditio sine qua non. A condition without which (a thing can) not (exist) ; an indispensable prerequisite. Melior est conditio. See Delictum, In pari, etc. Condition, l. state, status, predica- ment.' 3. A restriction placed upon the use of a thing.* Some quality annexed to real estate by vu-- tue of which it may be defeated, enlarged, or created upon an uncertain event; also, a quality annexed to a personal contract or agreement.^ The uncertain event itself ; and the clause, in the instrument, which expresses the con- tingency. An estate upon condition is such that its existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated.^ An estate upon condition implied in law is where a grant of an estate has a condition annexed to it inseparably, from its essence and constitution, although no condition is > See 1 Kent, 101; 3 id. 103; 3 Wall. 28, 170, 514, 603; 5 id. 1, 28; 11 id. 268, 308; 106 U. S. 316. "Lake Merced Water Co. v. Cowles, 31 Ca). 217 (1866). " See Dunlap v. Mobley, 71 Ala. 105 (1881). • See Ayling v. Ki-amer, 133 Mass. 13 (1883), cases. '[Selden v. I'ringle, 17 Barb. 465 (1854); Laberee t'. Carleton, 53 Me. 213 (1865). • 2 Bl Com. 152, 154, 840. See also 4 Kent, 152; Adams V Copper Co., 4 Hughes, 593-94 (1880); 31 Conn. 475; 39 Ga 207; 31 Mich. 49; 1 Nev. 53; 70 N. Y. 309. CONDITION 222 CONDITION expressed in words ; as, that proper use shall be made of a franctiise. . . An estate on condition expressed in the grant itfeelf is where an estate is granted with an- express qualification annexed, whereby the estate shall either commence, be enlarged, or de- feated, upon performance or breach of such qualification or condition.! As respects realty, a "charge" is a devise with a bequest out of the subject-matter; and a charge upon the devisee personally is an estate on condition.'' A " condition " is made by a grantor, and only he or his heir can take advantage o£ a breach. ^ A " covenant " is made by both grantor and grantee. ' A " limitation " ends the estate without entry or claim; and a stranger may take advantage of the determination." Conditional. Subject to, or dependent upon, a condition ; opposed to unconditional: as, a conditional — contract, conyeyance, fee, guaranty, indemnity, liability, obligation, pardon, sale, qq. v. Words which create a condition are "provided," " on account of," "if," and other words expressive of the intention. "Upon condition " is appropriate, but does not of necessity create an estate upon condition.^ Condition precedent. Such condition as must happen or be performed before the estate can vest or be enlarged. Condition subsequent. A condition upon the failure or non-performance of which an estate al- ready vested may be defeated.' Thus, if an estate for life be limited to A upon his marriage with B, the marriage is a condition prece- dent. Examples of conditions subsequent are: a grant of a fee-simple with a right to re-enter upon non-pay- ' ment of the rent, reserved; an estate held upon the condition that the grantee does not remarry, or con- tinues to live at a certain place. A " condition precedent " is one which must happen before either party becomes bound by the contract. A " condition subsequent " is one which follows the performance of the contract, and operates to defeat and annul it upon subsequent failure of either party to comply with the condition. ^ Whether a qualification, restriction, or stipulation is a condition precedent or subsequent depends upon 1 2 Bl. Com: 152, 154, 340. 2 See 4 Kent, 601; 12 Wheat. 498. sSee 2 Bl. Cora. 165; 4 Kent, 122, 187; 21 Wall. 63; 3 Gray, 142;, 41 N. J. L. 76; 19 N. Y. 100. ■"2 Coke, Litt. 70; 2 Pars. Contr. 31; 6 Barb. 386. «16 Me. 158; 3 Gray, 142; 5 Neb. 407. ' Stanley v- Colt, 5 Wall. 165 (1866); Sohier v. Trinity Church, 109 Mass. 19 (1871); Casey v. Casey, 55 Vt.,620 (1883). '2 Bl. Com. 1B4; Towle v. Remsen, 70 N. Y. 309 (1877). « Story, Contr. §§40, 42-43; Jones v. United States, 96 U. S. 27-29 (1877), cases; Eedman v. Mtna, Fire Ins. Co., 49 Wis. 438 (1880); 17 Nev. 415; 35 N. H. 450; 47 Barb. 262. the intention of the parties, as gathered from the whole instrument,^ A condition precedent must be literally observed; a condition subsequent, tending, as it does, to destroy the estate, is not favored, and is construed strictly. ^ No one can take advantage of a " condition subse- quent" annexed to an estate in fee but the grantor or his heir, or the successor of an artificial person; and if they do not see fit to assert their right to enforce a- forfeiture on that ground, the title remains unimpaired in the grantee. . . In what manner the reserved right of the grantor must be asserted depends upon the character of the grant. If it be a private grant, that right must be asserted by entry or its equivalent. If the grant be a public one, it must be asserted by judicial proceedings authorized by law, the equivalent of an inquest of office at common law, or there must be some legislative assertion of ownership of the prop- erty on account of a breach of the condition:. ^ Failure to perform a " condition precedent " bars relief ; but equity will relieve against a forfeiture under a " condition subsequent " upon the principle of com- pensation, when that principle can be applied, giving damages, if damages should be given, and the amoimt is ascertainable. . If a "condition subsequent" be possible at the time of making it, and becomes afterward impossible to be complied^ with, by the act of God, the law, or the grantor, the estate of the grantee, being once vested, is not thereby divested, but becomes absolute.* Where an act is to be performed by the plaintiff be- fore the accruing of the defendant's liability under his contract, the plaintiff must prove either his perform- ance of such condition precedent, or an offer to per- form it which the defendant rejected, or his readiness to fulfill the condition until the defendant discharged him from so doing, or prevented the execution of the matter which the contract required him to perform. . . Conditions precedent may be waived by the party in whose favor they are made. Wherb the conditions are dependent and of the essence of the con- tract, the performance of one depends upon the per- formance of another, and the prior condition must be first performed. In cases where either party may be compensated for a breach, »the conditions are mutual and independent.* When a condition subsequent is broken, relief may be had upon equitable terms; but when the condition is a precedent one, and neither fulfilled nor waived, no right or title vests, and equity can do nothing for the party in default: as, where an assured is to pay the premium before the assurer shall be bound." ' Lowber v. Bangs, 2 Wall. 736, 746 (1864), cases; 70 N. Y. 311; 2 Bl. Com. 156-37; 4 Kent, 130. = 2B1. Com. 154; 4Kent,125; 3Pet,374; 9Wheat.841. = Schulenberg v. Haniman, 31 Wall. 63 (1874), cases, Field, J. < Davis V. Gray, 16 Wall. 229 (1872), cases, Swayne, J. 6 Jones V. United States, 98 U. S. 27-29 (1877), oases, Clifford, J.; Lowber v. Bangs, 2 Wall. 738, 746 (1864), cases; Euch v. Rock Island, 97 U. S. 693, 696 (1878), cases; The Tornado, 108 id. 852 (1883). "Giddings v. Northwestern Mut. Life Ins. Co., 102 U. S. m (1880). See 2 Story, Eq. §§ 1302-11'. CONDONATION 223 CONFEDERATION Repugnant conditions. Such condi- tions as tend to the subversion of the estate ; such as totally prohibit the alienation or use of property conveyed. Conditions which prohibit alienations to particular persons, or for a limited period, or subject to particu- lar uses, are not subversive ot the estate : they do not destroy or limit its alienable or inheritable character. Hence, property may be conveyed in tee and yet be exempted from use as a slaughter-house, soap-factory, distillery, livery-stable, tannery, machine-shop, or place where intoxicating liquors are manufactured, sold, or stored.' Conditions are also distinguished as: af- firmative or positive, prescribing the doing of a positive act, and opposed to such as are negative; as collateral, regarding some act incidental to another act; as compulsory, ex- pressly requiring the doing of an act; as con- sistent, agreeing with each other or others, and opposed to such as are inconsistent; as copulative, for the doing of related things, and opposed to such as are single, for the performance of one thing only ; as disjunc- tive, for the doing of one of several things ; as express, stated in express words, and op- posed to such as are implied, imposed by in- ference of law; as possible, performable, however difficult, and opposed to such as are impossible, or not performable. Although words in a deed or devise are suiHcient to create a condition, the breach of which would forfeit the estate, the courts lean against such a construction, and hold that words which may be treated as a cove- nant or restriction do not amount to a condition.' See After; Condonation; Contract; Defeasance; If; Performance; Promise; Provided; Representa- tion, 1; Sale: Term, 2; Trade; When. COISDOIJ'ATIOTJ'.^ Forgiveness by a husband or a wife of a breach, in the other, of marital duty. The free, voluntary, and full forgiveness and remission of a matrimonial offense.'' Unless accompanied by that operation of the mind, even cohabitation, without fraud or force, is insuffi- cient to establish condonation.* A mere inference of law from proven facts. It is > Cowell V. Colorado Springs Co., 100 U. S. 57-^8 (1879), cases. Field, J. See Camp v. Cleary, 76 Va. 143 (1882), oases; Case v. Dwire, 60 Iowa, 444 (1883), cases; Smith v.Barrie, 56 Mich. 317-80 (1885), cases; Munroe v. HaU, 97 N. C. 310 (1887). In wUls, see Webster v. Morris, 66 Wis. 386-88 (1886), cases; 19 Cent. Law J. 183-26, 463-67 (1884), cases; 30 Alb. Law J. 4-8 (1884), cases. 2 Adams v. Valentine, 33 F. E. 4 (1887), oases, Wal- lace, J. s L. condonare, to remit, pardon. * Betz V. Bets, 2 Robt. 696 (N. Y., 1864), Barbour, J. the remission, by one of the parties, of an offense which the other has committed against the marriage, on condition ot being afterward treated with conjugal kindness. While the condition remains unbroken, remedy tor the condoned offense is barred. In oases of " connivance " (g. v.) no injury is done.' Condonation ot cruel treatment is conditioned upon the treatment ceasing.' See Divorce. CONDUCT. See Behavior ; Disorder, 2 ; Estoppel, Equitable. A declaration of the result ot a popular election may be included in power conferred upon the man- agers to " conduct" the election. ^ COIfFECTIONER. See Manutact- uree; Sunday. Selling liquors by the drink is not part of the busi- ness of a confectionery, and is not covered by a " confectioner's " license * CONTEDEIIACY.5 A league, or com- pact ; a combination. 1. An improper agreement or combina- tion alleged against defendants in equity: whence "clause of confederacy" in a biU in equity. 2. A (criminal) conspiracy," q. v. 3. A political confederation, q. v. CON'FEDERATION.5 A compact. An agreement between states or nations by which they unite for mutual welfare. Confederation, Articles of. The in- strument under which the compact between the Thirteen States was formed. The full title was -'Articles of Confederation and perpetual union between the States of New Hamp- shire," etc. The Articles were reported July 12, 1776; recommended for adoption November 17, 1777; ratified by eight States July 9, 1778, and by the last State (Mary- land) March 1, 1781. The First Congress thereunder met March 2, 1781. The Articles continued in force to March 4, 1789, when the first Congress under the Con- stitution met.' See State, 3 (8). Confederation of Southern States; Confederate States of America. See Government, De facto; Money, Lawful; Oath, Of office; State, 8 (2); War. 1 [2 Bish. Mar. & Div. §§ 33-34; 1 id. § 95 o. See also Morrison v. Morrison, 142 Mass. 382-65 (1886), oases; 23 Ark. 616; 23 Ga. 286; 73 111. 500; 34 Ind. 369; 60 id. 258; 140 Mass. 528; 32 Miss. 289; 8 Greg. 824. ' Rose V. Rose, 87 Ind. 481 (1882). See generally Ohio Law J., Aug. 23, 1884. a Blake t). Walker, 23 S. C. B26 (1S8B). « New Orleans v. Jans, 34 La. An. 667 (1882). » L. con-fmderare, to unite by covenant: fcediia, a league. « See State v. Crowley, 41 Wis. 884 (1876). 'See R. S. p. 7; 1 Story, Const. § 825; Owings v. Speed, 4 Wheat. 420 (1830); 1 Bancroft, Const. 8-118 (1884). CONFESSIO 224 CONFIRMATION CONFESSIO. L. Acknowledgment; admission ; confession. Confessio facti. Admission of a fact. Confessio juris. Admission of the law — of the effect of a thing in law/ The latter is not received in evidence, for tlie party may not Impw the legal effect of a thing, as of an in- strument, i See Decree, Pro confesso; Igkoramce. CONFESSIOlf. Acknowledgment; ad- mission. 1. In civil law, the admission of a fact as true, existing, binding, or yalid. Confession and avoidance. The act or proceeding by which a party admits the truth of an allegation he proposes to answer, and then states matter intended to avoid the legal inference which may be drawn from the admission. Some pleas of this sort are in justification or ex- cuse — show that the plaintiff nevei- had any right of action, because the act charged was lawful; while other pleas are in discharge — show that a right of action once existed, but that it is released by some subsequent matter.'^ >See Avoid, 3; Color, 2; Mat- ter, 3, New, Confession of action. A plea confessing the complaint, in whole or in part.^ An admission of a cause of action, as al- leged in the declaration, to the extent of its terms. < Confession of judgment. A voluntary submission to the jurisdiction of the court, giving, by consent and without the service of process, what could [might] otherwise be obtained by complaint, summons, and other formal proceedings.* See Attorney, War- rant of ; Cognovit. 2. In criminal law, acknowledgment of guilt.* Direct, indirect, or incidental confes- sion. An acknowledgment of criminal in- tent, made like an "implied admission" (q. V.) in civU cases." Judicial confession. A confession made before a magistrate or in a court, in the course of legal proceedings. Extra- judicial confession. Such as is made 1 1 Greenl. Ev, §§ 96, 203. asteph. PI. 73, 79, 229; 1 Chitty, PI, 540; 2 id. 6U; 3 Bl. Com. 310; 31 Conn. 177. ' [3 Bl. Com. 303, 3J7. iHackett v. Railroad Co., 35 N. H.,397 (1857). ' First Nat. Bank of Canandaiqua v. Garlinghouse, 53 Barb. 619 (1868). « 1 Greenl. Ev. § 170. 'IGreenl. Ev. §214 elsewhere than before a magistrate or in court; and embraces not only explicit and express confessions of crime, but all admis- sions from which guilt may be implied.i Naked confession. A confession uncor- roborated by other proof of the corpus de- licti.^ Voluntary confession. The presump- tion is that all confessions are voluntary : free from promise or threat. The state of mind must be brought about by the accused's own independent reasoning. ^ A confession, when the free prompting of a guilty conscience, unincited by hop© or fear, is evidence. It •is receivable although obtained by artifice, by liquor given, or under promise of some collateral good, or made to a physician, parent, or spiritual adviser. At common law, an attorney is the only protected con- fidant.* The practice is to inquire of the witness whether the prisoner had been told, in effect, that it would be better for him to confess, or worse for him if he did not confess. The judge, exercising a legal discretion, and governed by extreme caution, receives or rejects the proposed proof. ° See further Accomplice; Admis- sion, 2; Communication, Privileged, 1. CONPESSIONAL. See Communication, Privileged, 1. CONFIDENCE. See Communication; Credit ; Faith ; Fiduciart ; Trust, 1 ; Use, 3. CONFINEMENT. See Prison. CONFIRMATION. Making firm what was before infirm.'' 1. Affirmation ; ratifipation, q. v. 2. A secondary or derivative conveyance, defined by Coke to be "a conveyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is increased."' 3. The judicial sanction of a court : as, the confirmation of a sale.s A decree of confirmation upon a judicial sale is a judgment of the court, wjiich determines the rights of the parties. Before confirmation, the whole proceed- ' [1 Greenl. Ev. § 216; 1 Cliff. 23; 28 Mo. 230, a 1 Greenl. Ev. § 217. 3 Commonwealth v. Sego, 125 Mass. 213 (1878); Speer V. State, 4 Tex. Ap. 479-86 (1878), cases; People v. McGloiu, 91 N. Y. 247 (1883). « 1 Greenl. Ev. ch. XII. 5 1 Greenl. Ev. § 219. And see Hopt v. Utah, 110 U. S. ' 584-87 (1884), cases; 4 Bl. Com. 357; 1 B. & H. Lead. Or. Cas, 112, note; 59 Cal. 457; 68 Ga. 663; 34 La. An. 17-18; 89 N. C. 629. • [Coke, Litt. 295. '2 Bl. Cora. 325; 1 Inst. 295; Litt. §§ 515, 516, 531; Langdeau v.. Hanes, 21 Wall. 680 (1874). ' Langyher v. Patterson, 77 Va. 473 (1883). CONFISCATE 225 CONFORMITY tag is in fieri, and under the control of the court. Until confli-matiou' the accepted bidder is not regarded as the purchaser. Whether the sale will be confirmed depends upon the circumstances of each case, and the sound discretion of the court in view of fairness, pru- dence, and the rights of all concerned.' CONriSCATE.2 To transfer property from private to public use ; to forfeit prop- erty to the prince or state, s Usage tends to confine the word to seizures of property by way of punishment of a breach of alle- giance, or in the exercise of rights given by the laws of war.* " Confiscation " is the act of the sovereign against a rebellious subject. " Condemnation " as prize is the act of a belligerent against another belligerent. Con- fiscation may be effected by such means, summary or arbitrary, as the sovereign, expressing its will through lawful channels, may please to adopt. Condemnation as prize can only be made in accordance with prin- ciples of law recognized in the common jurisprudence of the world. Both are proceedings in rem, but con- fiscation recognizes the title of the original owner to the property, while in prize the tenure of the prop- erty is qualified, provisional, and destitute of absolute ownership.* Confiscation Acts of 1861 and 1862. The act of August 6, 1861, and the act of July 17, 1862.6 Made in exercise of the war powers of the Govern- ment. The right to make such laws exists alike in civil and foreign war. Congress determmes what property shall be taken.' The proceedings are justified as an exercise of bel- ligerent rights against a public enemy, and are not a punishment for treason. Hence, the pardon of an act of treason will not restore rights of property pre- viously condemned. ^ The act of 1862, as explamed by a resolution of the same date, provided that forfeiture of realty should not extend beyond the life of the offender. Passing this act was an exercise of war powers, not a criminal proceeding. » Its design was to strengthen the Govern- ment and to enfeeble the enemy by taking from the adherents of that enemy the power to use their prop- erty in aid of the hostile cause. It provided for the 'Brook r.Rice, 27 Gratt. 815-16(1876), cases; Terry 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. •See 1 Bl. Com. 299; 1 Kent, 52. 'Winchester u. United States, 14 Ct. CI. 48 (1879), Davis, J. « 12 St. L. 319, 590. 'Miller v. United States, U Wall. 308, 312-18 (1870); Alexander's Cotton, 2 id. 419 (1864). a Semmes v. United States, 91 U. S. 27 (1875). » Bigelow V. Forrest, 9 Wall. 350, 338 (1869); Miller v. United States, 11 id. 304, 868 (1870); Day v. Micou, 18 id. 160 (1873). , (15) seizure and condemnation of the life-estate, with the fee left m the heirs.' The act of 1801 made property a lawful subject of capture and prize. The object of the act of 1862 was to confiscate the property of traitors by way of pun- ishment for countenancing the rebellion.^ The act of 1803, generally known as the Confisca- tion Act, and the joint resolution of the same day explanatory thereof, must be construed together. In a sale of property thereimder, all that could be sold was a right to the property seized, terminating with the life of the offender. Such sale does not affect the rights of a mortgagee in favor of a third person. The property goes to the Government or to the purchaser cum onere.' Debts and credits, which are intangible, are no- where confiscated.' See Attaindee; Pardon; Pro- hibition, 2; War. CONFLAGRATION. See Fiee, Depart- ment; Necessity; Take, 8. CONFLICT. Striking together ; meeting in collision; opposition, as of authority, in- terest, jurisdiction, titles. Conflict of laws. Opposition of laws upon the same object; whether of the same or of different jurisdictions. As between different States, there is more or less disagreement in the laws relating to marriage and di- vorce, legitimacy, pending suits, judgments, mtestate estates, assignments by insolvents, bills and notes, remedies, and some other subjects* The laws of each State affect all persons, property, contracts, acts and transactions within its boundaries. Foreign laws are allowed to bind foreign-made trans- actions unless they injuriously affect citizens, violate statutes, or are opposed to good morals or public pol- icy. Realty is governed by the law of the place where it is situated; personalty, by the law of the owner's domicil.* See Comity; Commerce; Law, Foreign; Marshal, 1, (2); Place, Of contract, delivery, payment; Pbop- erty; Repeal. CONFORMITY. Agreement; adjust- ment. A bill in equity filed by an executor or administrator, when he finds the affairs of the estate so much involved that he cannot safely administer the estate except under the 1 Wallach v. Van Riswich, 92 U. S. 207 (1875); Waples V. Hays, 108 id. 8 (1882). ' Kirk V. Lynd, 106 U. S. 319 (1882) ; Phoenix Bank v. Risley, 111 id. 126 (1884). a Shields r. Schiff, 124 U. S. 336 (1888), Bradley, J.; Avegno v. Schmidt, 35 La. An. 686 (1883): 113 U. S. 300 (1885). * 1 Kent, 64-63. See further 4 Cranch, 415 ; 6 ■ id. 286 ; 8 id 13-3 128; 13 Wall. 391; 15 id. 691; 20 id. 92; 2 Dill. 555;' Ch^e, Dec. 269; 111 U. S. 123, 53; 96 id. 176. » See Story, Wharton, Conf. of Laws. CONFRONT 326 CONGRESS direction of court, is called a " bill of con- formity." 1 The suit is against the creditors generally, for the purpose of having all their claims adjusted, and a final decree made settling the order and payment of the assets. ^ So called because the plaintiff undertakes to " con- form " to the decree, or because the creditors are com- pelled to conform thereto, i CONFRONT. To bring face to face. The constitutional provision that the accused shall be " confronted with the witnesses against him " means that the witnesses on the part of the State shall be personally present when the accused is on trial; ^ or that they shall be examined in his presence, and be subject to cross-examination by him.^ If witnesses are absent by the procurement of the accused, competent evidence of the testimony they gave on a previous trial will be received.* (■ A person accused of a crime is deprived of his right of appearing in person and of being confronted with the witnesses against him if the jury view the locus in quo without his presence." See Declaration, 1, Dying. CONFUSION. Mixing, intermixture; intermingling, blending; confounding. Confusion of boundaries. Where the boundary lines of different titles are con- flicting, disputed, or uncertain; also, that branch of equity jurisprudence which ascer- tains such boundaries, q. v. Confusion of debts. The concurrence of two adverse rights to the same thing in one and the same person.^ Confusion of goods. Intermixture of the goods of different owners so that the sep- arate properties are indistinguishable. Applies to the mixing of chattels of one and the same general description. "Accession" (q. v.) is where various materials are united in one product.^ He who causes a confusion of goods must hear whatever loss or disadvantage results. The general rule that governs cases of intermixture of property has many exceptions. It applies in no case where the goods intermingled remain capable of identification, nor where they are of the same quality or value ; as where guineas are mingled, or grain of the same quality. Nor does the rule apply where the in- termixture is accidental, or even Intentional, if not wrongful. All authorities agree, however, that if a > 1 Story, Eq. §§ 544-45. = WestfaU II. Madison Co., 62 Iowa, 427 (1883). ' Howser v. Commonwealth, 51 Pa. 388 (1865). 'Reynolds v. United States, 98 U. S. 158-60 (1878), cases; United States v. Angell, 11 F. E. 43 (1881); 34 La. An. 121. ' People V. Lowrey, 70 Cal. 193 (1886). « Woods V. Eidley, 11 Humph. 198 (1840); Story, Prom. Notes, § 439. ' 1 Schouler, Pers. Prop. 41, 40-64. man willfully and wrongfully mixes his own goods with those of another owner, so as to render them in- distinguishable, he will not be entitled to his propor- tion, or any part, of the property ; certainly not, unless the goods of both o^vne^s are of the same quality and value. Such intermixture is a fraud. And so, if a wrong-doer confounds his own goods with goods which he suspects may belong to another, and does this with intent to mislead or deceive that other, and embarrass him in obtaining his right, the effect must be the same. . . Even where the articles are of the same kind and value, the wronged party has a right to the pos- session of the entire aggregate, leaving the wrong-doer ' to reclaim his own, if he can identify it, or to demand his proportional part. So held where bales of cotton, of different weight and grade, were purposely inter- mixed to render identification of particular bales im- practicable.' Confusion of rights or titles. In civil law, when titles to the same property unite in the same person. " Confusion " in the civil law is synonymous with "merger" in the common law.* CONGEABLE.3 Permissible ; done law- fully. " If his entry were congeable, it will be considered as limited by his right." * CONGREGATION. An assemblage or union of persons for a religious purpose.' A volimtaiy association of individuals or families, united for the purpose of having a common place of worship, and to provide a proper teacher to instruct them in religious doctrines and- duties, and to admin- ister the ordinances.' See Chubch. CONGRESS. See CoNSTiTUTiorr. "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Eepresentatives." ' " The House of Bepresentatives shall be com- posed of Members chosen every second Tear by the iThe Idaho, 93 U. S. 586-86 (1876), cases. Strong, J. See also Jewett v. Dringer, 30 N. J. E. 291-311 (1878), 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. 882; 36 id. 160; 12 Me. 243; 56 id. 566; 8 Md. 301; 21 Pick. 298; 6 Gray, 134; 14 Allen, 376; 107 Mass. 123; 10 Mich. 433; 22 id. 311; 31 id. 215; 23 Minn. 88; 12 Mo. Ap. 284- 85; 33 N. H. 433; 39 id. 557; 57 id. 514; 10 N. T. 213; 24 id. 596; 6 HiU, 461; 24 Pa. 246; 20 Wis. 615; 20 Vt. 333; 2 El. Com. 405; 2 Kent, 365. » Palmer v. Bumside, 1 Woods, 182 (1871). ' C8n'-ge-able. F. congi, leave: L. commeare, to go and come. « Eicard v. Williams, 7 Wheat. 107 (1822), Story, J.; Litt. § 279. » [Eunkel v. Winemiller, 4 H. & M'H. 452 (1799). ' Baptist Church of Hartford v. Witherall, 3 Paige, Ch. 301 (1832), Walworth, Ch. ' Constitution, Art. I, § 1. On the powers of Con- gress, see 2 Bancroft, Const. VH, VTTT; ib. abr. ed. 292-325 (1884),— summarizes the discussions in the orig- inal constitutional convention. CONGRESS 327 CONGRESS People of the several States, and the Electors in each State shall have the Qualifications requisite for Elect- ors of the most numerous Branch of the State Legisla- hire." 1 " No Person shall be a Representative who shall not have attained to the Age of twenty-flve Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in* which he shall be chosen." * "Representatives . . shall be apportioned among the several States . . . according to their respective Numbei-s . . . excluding Indians not taxed. . ." 3 "When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." * "The House of Representatives shall chuse their Speaker and other Officers. . " ' " The Senate shall be composed of two Senators from each State chosen by the Legislature thereof, for six years; and each Senator shall have one vote." * One-third of the Seuatore are chosen every second year. " If Vacancies happen by Resignation or other- wise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legisla- ture, which shall then fill such Vacancies." ^ " No Person shall be a Senator who shall not have attained the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen." ^ " The Vice President . . . shall be President of the Senate, but shall have no Vote, unless they be equally divided." " "The Senate shall chuse their other OfBcers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States." " " The Times, Places and Manner of holding Elec- tions for Senators and Representatives, shall be pre- scribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." " " The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a dif- ferent Day." " " Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Busi- * Constitution, ^ Constitution, ' Constitution, * Constitution, " Constitution, ' Constitution, ' Constitution, * Constitution, " Constitution, >» Constitution, '1 Constitution, >2 Constitution, Art.I, § Art. I, § Art. I, § Art. I, § Art. I, § Art. I, § Art. L§ Art. I, § Art. I, § Art. I, § Art. I, § Art. I, § 2, cl. 1. 2, cl. 2. 2, cl. 3. 2, cl. 4. 2, cl. 5. 3, cl. 1. 3, cl. 2. 3, cl. 3. 3, cl. 4. 3, cl. 5. 4, cl. 1. 4, cl. 2. ness ; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide." • " Each House may determine the Rules of its Pro- ceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member." ^ " Each House shall keep a Journal of its Proceed- ings, and from time to time publish the same, except- ing such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of each House on any question shall, at the Desire of one-fifth of those Present, be entered on the Joiu:- nal." ' "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting,"* "The Senators and Representatives shall receive a Compensation tor their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They sliall in all Cases, except Treason, Fel- ony and Breach of the Peace, be privileged from Ar- rest during .their Attendance at the Session of their respective Houses, and in going to aftd returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place." ' "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any office under the United States, shall be a member of either House during his Continuance in Office." * " All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may pro- pose or concur in Amendments as on other Bills." * It is provided by statute that Representatives shall be chosen in single districts;^ and that the elections shall take place on the Tuesday next after the first Monday of November.' Vacancies are filled as may be provided by State laws.'" Votes must be by written or printed ballot: other votes are of no effect." For the election of Senators it is provided that the legislature of each State, chosen next preceding the expiration of the time for which any Senator was elected to represent such State m Congress, shaU, on the second Tuesday after the meeting and organiza- tion thereof, proceed to elect a Senator." At least one " Constitution, Art. I, § 5, cl. 1. 2 Constitution, Art. I, § 5, cl. 8. » Constitution, Art. I, § 5, cl. 3. * Constitution, Art. I, § 5, cl. 4. » Constitution, Art. I, § 6, cl. 1. » Constitution, Art. I, § 6, cl. 2. ' Constitution, Art. I, § 7, cl. 1. «R. S. § 23: Acts 2 Feb., 30 May, 1872. • R. S. § 25: Acts 2 Feb., 1S72, 3 March, 1875. " E. S. § 26: Act 2 Feb., 1872. iiR. S. § 37: Acts 28 Feb., 1871, 30 May, 1872; 76 Mo. 148. ."E. S. 5 14: Act 25 July, 1866. CONJUNCTIVE 238 CONSANGUINITY vote must be taken every day, during the session, until a person is chosen.' An existing vacancy is filled at the same time and in the same way; ' and a vacancy occurring during the session is filled by election, the proceedings for which are had on the second Tuesday after the legislature has organized and has had notice of the vacancy. 3 When Congress convenes, the president of the Sen- ate administers the oath of ofiice to its members; ^ and takes charge of the organization. The clerk of the preceding House of Representatives makes a roll of the Representatives-elect, and places thereon the names of those persons whose credentials show that they were regularly elected in accordance with the law.5 If the clerk cannot serve, from sickness, ab- sence, etc., the sergeant-at-arms of the preceding House performs this duty." In 1866 the salary of members of Congress was fixed at $5,000, and mileage, by the most usual route, at twenty cents a mile. In 1873 the salary was raised to $7,600; and in 1874 reduced to $5,000.' See further, as to powers, such subjects as Act, 3; Bankruptcy; Census; Commerce; Coin; Confedera- tion; Contempt, 2; Copyright; Courts, United States; Duties; Electoral; Frank; Impeach, 4; Journal; Land, Public; Lodfey; Marque; Naturalize; Oath, Of office; Patent, 2; PiRAcr, 1; Post-office; President; RfivENUE; Sweeping Clause; Tender, 2, Legal; Ten- ure, Of office; Territory, 2; 'Treaty; Veto; War; Weights; Welfare; Yeas and Nays. CONJUNCTIVE. See Disjunctive. CONJUEATIOlf. See Witchcraft. CONNECTING. See Connection, 1. CONNECTION. 1. "Railroad connec- tion " means either such a union of teacks as to admit the passage of cars from one road to another, or such intersection of roads as to admit the convenient interchange of freight and passengers.8 The word conveys no implication of a right to con- nect business with business." The " connections " of a steamer, referred to in a, policy of insurance, may refer to regular connections only.'" Connecting line. In the sense of the Georgia act of 1874, is where any railroad at its terminus, or any intermediate point along its line, joins another, or where two railroads have the same teiininus; or where a railroad is adjacent to another and capable of being ' R. S. 1 15: Act 25 July, 1866. »R. S. § 16: Act 26 July, 1866. • R. S. S 17: Act 25 July, 1866. «R. S. § 28; Act 1 June, 1798. «R. S. § 31: Acts 21 Feb., 1867, 3 March, 1863. •R. S. §§ 32-33: Act 21 Feb., 1867. ' R. S. § 35: Act 26 July, 1866, 8 Mar., 1873, 20 Jan., 1874. 8 Philadelphia, &c. R. Co. v, Catawissa R. Co., 53 Pa. 20;59 (1866); 60Md. 269. • Atchison, &c. R. Co. v. Denver, &c. R. Co., 110 U. S. 676-79 (1884). 1" Schroeder v. Schweizer Lloyd Mar. Ins. Co., 60 Cal. 478 (1883). joined to it by a switch, either at its terminus or wher- ever along its line they meet or converge, and the right is given to make such connection, whether it bo voluntarily granted or not.' See Commerce. 2. Any relation by which one society is linked or united to another.2 3. " Connections " is more vague than " re- lations." In popular phrase, a wife's relations are her husband's connections; but connec- tions, unless they are also relations, never take by the statute of distributions.^ See Relation, 3. 4. " Guilty connection,'' applied to a man and a woman, imports carnal connection.* CONNIVANCE.5 Intentional failure or forbearance to see or actually know that a tort or offense is being committed ; willful neglect to oppose or prevent; specifically, assent or indifference, by a husband, to im- moral behavior by his wife. It has been repeatedly held, under 20 and 21 Vict. (1857), c. 66, and similar statutes in this country, that a husband's connivance at his wife's prostitution bars subsequent complaint or cause of action on his part. The connivance ne^d not be active: It is sufficient if it be made to appear that there has been a course of criminal conduct of which he actually was or must have been cognizant. Total indifference may justify inference of original consent. It has also been held that if he once consents to her fall from virtue he cannot complain of any other act naturally resulting from such fall; but that doctrine carried too far would deprive a man of all hope, how- ever repentant he may be, and however he may strive to win his wife to repentance, l^o authority decides that, under all circumstances, connivance at one act is an absolute bar to a divorce for a prior act as to which consent was not given; expressly or by implication." To be a bar to a decree for divorce the fact must appear that the libelant either desired and intended, or at least was willing, that the libelee should err. " A corrupt intention," it has been said, " is necessary to constitute eonnivance." ' See Collusion; Condonation; Crime, Recriminate; Divorce; Volo, Volenti, etc. CONSAiraUINITY.s The connection or relation of persons descended from the same stock or common ancestor ; " blood-rela- tionship. Opposed, affinity, q. v. 1 Logan V. The Central R. Co., 74 Ga. 684, 693 (1885). i" [Allison V. Smith, 16 Mich. 433 (1868). s Storer v. Wheattey, 1 Pa. 507 (1845), Gibson, C. J. 4 State V. Georgia, 7 Ired. L. 324 (1847). ^ L. con-nivere, to close the eyes, wink at. ' Morrison v. Mon-ison, 142 Mass. 363-65 (1886), cases. ' Robbins v. Robbius, 140 Mass. 530-31 (1886), eases. See also 2 Bishop, Mar. & D. ^ 17; 34 Am. Law Reg. 98-100 (1886), cases. = L. consanguineus: con, together; sanguis, blood. »2B1. Com. 202. CONSCIENCE 229 CONSENSUS ConsangTiinei. Blood relations. Consanguineal; consanguineous. Of the same blood or ancestor. The subject is of importance in the law of inherit- ance and marriage. Lineal consanguinity. Subsists be- tween persons of whom one is descended in a direct line from the other. Collateral con- sanguinity. Subsists between persons who descend from the same stock or ancestor, but not one from the other, i The common ancestor is the stirps or root, the stirpes, trunk or common stock, whence the relations branch out.' The method of computing degrees in the canon law, adopted into the common law, is, to begin at the common ancestor (propositus) and reckon downward : and in whatever degree the two persons or the most remote of them is distant from the common ancestor, that is the degree in which they are related. . . The method in the civil law is to coimt upward, from either of the persons related, to the common stock, and then downward to the other, reckoning a degree for each person both ascending and descending. = The canonists take the number of degrees in the longest line; the civilians, the sum of the degrees in both lines.3 The canon law rule prevails in the United States. See Ancestor; Descent; Ikcest. CONSCIENCE. The moral sense; the sense of right and justice. There are many cases against natural justice which are left wholly to the conscience of the party, and are without redress, equitable or legal.' Human laws are not so perfect as the dictates of conscience, and the sphere of morality is more en- larged than the limits of civil jurisdiction. There are many duties, belonging to the class called " imperfect obligations," which are binding on conscience, but which human laws do not and cannot undertake di- rectly to enforce. But when the aid of a court of equity is sought to carry into execution such a con- tract, then the principles of ethics have a more ex- tensive sway.' See Right, 1; Faith. Conscionable. In accord with strict hon- esty and justice: as, a conscionable appraise- ment or inventory of the articles of a dece- dent's estate. TJneonseionablo. Contrary to probity, fair-dealing, or what -i fair-minded man would do or refrain from doing: as, an unconscionable contract or bavgain, q. v. Conscionable is an iU-contrived word: from con- science-able, or conscible (not now in use)." 1 [2 Bl. Com. 203-4; 45 Pa. 432. ■ s 2 Bl. Com. 803-7. ' 4 Kent, 412; 2 Coke, Litt. *158; 1 Williams, Er. 364; 45 Fa. 432-33. * 1 Story, Eq. §§ 14, 2. 2 Kent, 490; 1 Story, Eq. § 206; 1 Johns. Ch. 630. • Skeat,Etym. Diet. Conscious. The expression, in a charge, ' ' conscious of what he (a prisoner alleged to be insane) was doing," refers to the real nature, the true character, of the act as a crime, not to the mere act itself.' Conscience of the court. To "inform the conscience of the court " is to furnish a court such data as will enable it to decide a matter discreetly and equitably. Thus, the verdict of a jury out of chancery is in- tended to inform the conscience of the chancellor." Conscience, court of. The title of a court for the recovery of debts not exceeding forty shillings, -formerly existing in some districts of England, as, in London, for the benefit of trade. Examinations were summary, on the oath of the parties and witnesses. Such order was made as seemed consonant with equity and conscience. In 1846 juris- , diction was transferred to the county courts.' Conscience, rights of. The constitu- tional declaration that "no human authority can control or interfere with the rights of conscience," refers to the right to worship the Supreme Being according to the dictates of the heart : to adopt any creed or hold any opinion whatever on the subject of religion ; and to do, or to forbear to do. any act, for conscience sake, the doing or forbearing from which is not prejudicial to the public weal.* Where liberty of conscience would impinge on the paramount right of the public it ought to be re- strained. . . There are few things, however simple, that stand indifferent m the view of all the sects.* " The constitution of this State secures freedom of conscience and equality of religious right. No man can be coerced to profess any forni of religious belief or to practice any peculiar mode of worship, in pref- erence to another. . . Beyond this, conscientious doctrines and practices can claim no immunity from the operation of general laws made to promote the welfare of the whole people." . "So long iis no attempt is made to force upon others the adoption of a belief, so long is conscience left in the enjoyment of its natural right of individual decision." « See further Blasphemy; Ecjcity; Holiday; Eeliq- ion: Sunday. CONSENSUAL. See Consent. CONSENSUS. L. Perceiving or feeling alike: agi-eement; consent. Consensus facit legem. Consent makes the law : the terms of a contract, lawful in 1 Brown v. Commonwealth, T8 Pa. 128 (1876). 2 Watt V. Starke, 101 U. S. £52 (1879). » See 3 Bl. Com. 81. • Commonwealth ■.. Lesher, 17 S. & E. 160 (1827), (Jibson, C. J. „ „ , a Specht V. Commonwealth, 8 Pa. 322 (1848), Bell, J. CONSENT 230 CONSERVATOR its purposes, constitute the law as between the parties. Consensus, non concutaitus, faeit mat- rimonium. Consent, not intercourse, cre- ates marriage. Consensus tollit errorem. Consent re- moves error : the effect of a mistake is obvi- ated or waived by concurrence. Applies to an irregularity or a matter of mere form in procedure. A defect in substance, pleaded over, is still demurrable. 1 Also applies to volimtary payments of illegal exac- tions, where recovery could have been prevented.^ Qui tacet consentire videtur. He who is silent is regarded as consenting: silence gives consent. A man who is fully aware of what is being done against his interest cannot remain passive and after- ward resist the disadvantage his silence has caused. ^ Nor can a person complain of the effect of words ut- tered in his presence, when he sliould have denied their truth. 4 The maxim is to be construed as applying only to those cases where the circumstances are such that a party is fairly called upon to deny or to admit his lia- bility. But if silence may be interpreted as assent where a proposition is made to one which he is bound to deny or admit, so also it may be if he is silent in the face of facts which fairly call upon him to speak.* See E.STOPPEI,; Silence. CONSENT. Agreement of mind ; con- currence of wills; approval. Compare As- sent; Consensus. An agreement of the mind to what is pro- posed or stated by another.6 The synonym of assent, acquiescence, con- ouiTence ; agreement or harmony of opinion or sentiment.^ Implies assent to some proposition submitted. In cases of contract, means the concurrence of wills. Supposes a physical power to act, a moral power of acting, and a serious, determined, and free use of these powers.^ The theory of the law in regard to acts done and contracts made by parties, affecting their rights, is, that in all cases there must be a free and full consent to bind the parties. Consent is an act of the reason, ' See Eogers v. Cruger, 7 Johns. •Oil (1808); Morrison V. Underwood, 5 Cush. 55 (1849); Cushing v. Worriok, 9 Gray, 386 (1857); Wilkinson's Appeal, 65 Pa. 190 (1870). » Chicago & Northwestern E. Co. v. United States, 104 U. S. 687 (1881). ' 3 See 99 U. S. 581; 80 Conn. 98; 41 N. H. 465; 9 Barb. 17; 2 Pars. Contr. 759. 4 1 Greenl. Ev. § 197. 1 Day V. Caton, 119 Mass. 515-16 (1876), cases. " Plummer v. Commonwealth, 1 Bush, 78 (1866). ' Clem V. State, 38 Ind. 431 (1870). 8 Howell V. McCrie, 36 Kan. 644 (1887), Simpson, C. 1 accompanied with deliberation. . . Hence, if con- sent is obtained by meditated imposition, circumven- tion, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind. . . Upon thfs groimd the acts of a person non compos mentis are invalid.' Consent rule. See Ejectment. Consensual. 1. Formed by mere consent. In civil law, a contract of sale is consen- sual; not so a contract of loan. In the case of a sale, upon consent given, the parties have reciprocal actions ; in the case of a loan, there is no action till the thing is delivered.^ 3. In the sense of resting upon mere con- sent, all contracts, except marriage, may be said to be consensual. See Acquiescence; Age; Decree; Duress; Ratifi- cation. CONSEQUENCES. Persons of sound mind are held to intend whatever are the natural and necessary consequences of their acts : they are supposed to know what these consequences will be. Experience has shown the rule to be a sound one, and one safe to be applied in criminal as well as in civil cases. Exceptions to it undoubtedly arise, as where the consequences likely to flow from the act are not matters of common knowledge, or where the act or the consequence is attended by circumstances tend- ing to rebut the ordinary probative force of the act or to exculpate the intent of the agent.* The law does not undertake to charge a person with all the possible consequences of a wrongful act, but only with its probable and natural result; otherwise the punishment would often be disproportioned to the wrong, thereby impeding commerce and the ordinary business of life, and rendering the rule impracticable. Although the damages may arise remotely out of the cause of action, or be, to some extent, connected with it, yet if they do not flow naturally from it, or could not, in the ordinary course of events, have been expected to arise from it, they are not sufflciently proximate to authorize a recovery.* See Cause, 1; Deliberation; Intent; Negligence. Consequential. See CasEi 3 ; Damages. CONSERVATOE. One who preserves, or has the charge of a matter or thing, as, of the peace, g.yiu. In Connecticut and Illinois, the committee of a lunatic or distracted person.^ -*- ' 1 Story, Eq. §§ ^22-83. = See Hare, Couti'acts, 85-86. s Clarion Bank v. Jones, 21 Wall. 337 (1874), Clif- ford, J. See also .-teynolds v. United States, 98 U. S. 167 (1878); 5 Cush. £lo5; 4 Bl. Com. 197. * Smith V. Western Union Tel. Co., 83 Ky. 115 (1885). s Ti-eat V. Peck, 5 ponn. *380 (1824); Hutchins v. John- son, 12 id. 376 (1837); Nuetzel v. Nuetzel, 13 Bradw. 512 (1883). CONSIDERATION 231 CONSIDERATION The duties of a conservator of the estate of a ward are defined, in a general way, by statute. He acts in- dependently of the ward, and is alone responsible for his acts. Debts incurred by the ward prior to t^e ap- pointment of the conservator remain claims against the ward alone.' COIfSIDERATION.^ 1. Deliberation, mature reflection. " It is considered " is equivalent to " it is adjudged " by the oom-t." The corresponding Latin formula is consideratum est per cuHam. It imports that a Judgment is the act of the law, pronounced by the court, after due delib- eration and inquiry.* The phrase is not an essential part of a judgment in a criminal case.* 2. That which the party to whom a prom- ise is made does or agrees to do in exchange for the promise. 6 The reason which moves a party to enter into a contract. . . The civilians hold that in all contracts there must be something given in exchange, something that is mutual or reciprocal. This thing, which is the price or motive of the contract, is called the consid- eration.^ Something esteemed in law as of value in exchange for which a promise is made.* The '* motive " for entering into a contract and the "consideration" of the contract are not the same. Nothing is consideration that is not regarded as such by both parties. It is the price volimtarily paid for a promisor's undertaking. Expectation of results will not constitute a consideration." That which one party to a contract gives or does or promises in exchange for what is given or done or promised by the other party." The proper test is detriment to the promisee. All our " considerations " would be *' reasons " icausoe) in the Roman law; but it does not follow that all "rea- sons " — e. g., desire to aid a meritorious object, or to benefit a member of ones own family — are considera- tions in our sense. And though all "considerations" are reasons, many of them are so slight that as mere reasons they would be entitled to little weight. With us, there must be a material quid^pro quo, something given or surrendered in return, no matter how slight, to make the promise binding. '» 1 Brown v. Eggleston, 63 Conn. 119 (1885). " L. considerare, to view attentively. 8 Terrill v. Auchauer, 14 Ohio St. 85 (1862). ^8 Bl. Com. 306, 130. s State V. Lake, 34 La. An. 1070 (1883); State v. Bas- sett, ib. 1110 (1882); 39 Wis. 393. "Phcenix Life Ins. Co. v. Eaddin, 120 U. S. 197 (1887), Gray, J. ' [2 Bl. Com. 443. « [Bishop, Contr. § 38, citing definitions. • Philpot V. Gruninger, 14 Wall. 577 (1871), Strong, J. " 1 Whart. Contr. § 493. Void for want of consideration are: a promise to make a gift, the promisee surrendering nothing; a warranty given after a sale; a promise to pay for un- solicited past services; a promise to pay toward a religious or charitable object, when purely gratuitous; promises to pay debts that have been released.' Any damage to another, or suspension or forbear- ance, is a foundation for an undertaking, and will make it binding; though no actual benefit accrues to the party undertaking." It is not absolutely necessary that a benefit should accrue to the person making the promise. It sufSces that something valuable fiows fi-om the person to whom it is made; and that the promise is the induce- ment to the transaction. In the case of a letter of credit given by A to B, the person who, on the faith of that letter, ti-usts B, has a remedy against A although no benefit accrued to him.* Damage to the promisee constitutes as good a con- sideration as benefit to the promisor.* Any benefit, delay, or loss to either party. More fully, either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made.' If there is a benefit to the defendant or a loss to the plaintiff consequent upon and directly resulting from the defendant's promise in behalf of the plaintiff, there is a sufiftcient consideration moving from the plaintiff to enable him to maintain an action upon the promise to recover compensation.* A valuable consideration may consist either in some right, interest, profit, or benefit ac- cruing to the one party, or some forbearance, detriment, loss, or responsibility given, suf- fered, or undertaken by the other.' " Any damage or suspension of a right, or possibil- ity of a loss occasioned to the plaintiff by the promise of another, is a sufflcient consideration for such prom- ise, and will make it binding, although no actual ben- efit accrues to the party promising." This rule is sustained by a long ^eries of adjudged cases.* The performance of gratuitous promises depends wholly upon the good-will which prompted them, and will not be enforced by the law. The rule is that, to support an action, the promise must have been made upon a legal consideration moving from the promisee to the promisor. To constitute such consideration there must be either a benefit to the maker of the promise, or loss, trouble, or inconvenience to, or a charge or obligation restmg upon, the party to whom the promise is made.* 1 1 Whart. Contr. §§ 494-95. apillans v. Van Mierop, 3 Burr. 1673 (1765), Yates, J. a Violett v. Fatten, B Cranch, 150 (1809), Marshall, C. J. *Townsley v. Sumrall, 2 Pet. 183 (1829), Story, J.; United States v. Linn, 15 id. 314 (1841). * 2 Shars. Bl. Com. 443 (1859). ' Piatt V. United States, 22 Wall. 507 (1874), Clifford, J. ' Currie v. Misa, L. E., 10 Ex. 162 (1875), Lush, J. SHendrick v. Lindsay, 93 U. S. 148 (1876), Davis, J. Purports to quote Pillans v. Van Mierop, supra. » Cottage Street M. B. Church v. Kendall, 121 Mass. CONSIDERATION 233 CONSIDERATION A valuable consideration may consist either in some right, interest, profit, or benefit ao- ' cruing to the one party, or some extension of time of payment, detriment, loss, or re- sponsibility given, suffered, or undertaken by the other, i Executed consideration. An act al- ready done, or value already given ; a con- sideration already received or wholly past. Executory consideration. A promise to do or to give something in the future ; a con- sideration to be rendered.* Good consideration. That of blood, or natural affection between near relatives. Valuable consideration. Money, mar- riage, work done, services rendered, or the like. Each is viewed as an equivalent. The former is founded in motives of generosity, prudence, and nat- ural duty; the latter in motives of justice.^ " Good consideration " sometimes means a consid- eration which is valid in point of law; and it then includes a meritorious, as well as a valuable, consider- ation. But it is more often used in contradistinction to valuable consideration.^ ^ By " consideration " as defined to be any benefit, delay ,"^ or loss to either party to a contract, is all that is meant by "valuable consideration." The distinc- tion between "good" and " valuable " consideration is largelj^ speculative.^ Moral consideration. The duty to per- form, voluntarily, an obligation which is no longer enforceable in law. This is sufficient to support an executed contract; and it will serve as a consideration for a new promise : as, a promise to pay a debt contracted in infancy, or outlawed, or discharged by a decree in bankruptcy. In such cases the moral duty was once a legal duty.^ The duty to perform a positive promise, not con- trary to law or public policy, or obtained by fraud or mistake, is an obligation in morals, and a sufficient con- sideration for an express promise.^ See Obligation, 1. B29-30 (1877), cases, Gray, C. J. ; University of Des Moines v. Livingston, 57 Iowa, 307 (1881). ' Nat. Bank of the Republic v. Brooklyn City, &c. R. Co., 102 U. S. 46 (1880), Clifford, J. See also 6 Col. 193; 17 Conn, 517; 58 N. H. 443. "See Bishop, Contr. §§ 76-82, cases; Leake,Contr. 18; 1 Story, Contr. § 22; 1 Whart. Contr. § 493. »2 Bl. Com. 297, 444. See i Kent, 464; 1 Story, Eq. §354; Bishop, Contr. §42, cases; 58 Ala. 307; 20 Gal. 224- 26; 9 Barb. 225. ' [1. Story, Eq. § 334. See 3 Cranch, 157. « See 1 Whart. Contr. § 497. »See Bishop, Contr. § 44, cases; 1 Pars. Contr. 431- 36; 1 Story, Contr. § 590; 1 Whart. Contr. § 512; Leake, Contr. 86, 615; 2 Bl. Com. 445; 25 How. Pr. 484. 'Bentley v. Lamb, 112 Pa. 484 (1886): 23 Am. Law Keg. 636-36 (1886), cases. Considerations are also distinguished as: concurrent, such as arise at the same time, or under- promises made simultaneously ; as continuing, executed in part only ; as entire, incapable of division or severance, unappor- tionable — if partis illegal, all is illegal; as equitable, based upon moral duty, moral ; as exprexs, stated in words, oral or written; as gratuitous, founded on no detriment to the promisee ; i as implied, not stated in words, yet regarded in law as the consideration ; as legal, valid in law, and as opposed to such as is illegal, invalid, immoral;^ as impossible, such as, in the nature of things, cannot be performed, and not such as is merely very difiicult ; ^ as nominal, consisting of a sum or value purely nominal, as that of "one dol- lar;" and as sufficient, such as sr^-sfies the requirement of law. A valid consideration is absolutely necessary to a contract. An engagement without it is a nudum pac- tum, and totally void; as, a promise to make a gift.* The purpose is to prevent the too free-handed, the im- provident, the reckless, from binding themselves to the performance of undertakings either wasteful of their means or else affording no reciprocal advantage.^ But any degree of reciprocity will take an agreement out of this category.* See Pact, Nude. Common examples of valid considerations are: prevention of litigation; forbearance to enforce a. well-founded claim; assignment of a debt or right; work and service; trust and confidence; advances made, or liability incurred, in consequence of a sub- scription of money. A seal imports a consideration. Every bond, from the solemnity of the instrument, and every promissory note, from the subscription, carries with it internal evidence that a sufficient con- sideration has passed.'' A good consideration wiU not avail when the con- tract tends to defraud creditors or others of their rights. A valuable consideration will always support a contract in a court of common law, and,' if ade- quate, in a court of equity.^ However small the consideration, if given in good faith, it will support the contract." A past consideration will not support a promise unless requested beforehand. A previous request is implied from service accepted or benefits received.' 1 1 Whart. Contr. § 494 ; M. E. Chm-ch v. Kendall, ante. ' See 1 Pars. Contr. 479. s [1 Pars. Contr. 400. * See 2 Bl. Com. 446. °See Broom, Philosophy of Law, 38. »See 3 Bl. Com. 446; Whart. Contr. § 495; Smith, Contr. 13. ' See 8 BL Com. 444, 297. 8 Lawrence v. McCalmont, 2 How. 452 (1844); Bish. Contr. § 45, cases.> » 1 Pars. Contr. 427, 474. CONSIGN 233 CONSOLIDATE A consideration subsequently arising may cure a deed defective for want of a consideration.' The consideration of a written contract may be shown by parol. ^ As to the parties to a deed, the consideration clause is prima facie evidence, with the effect only of a re- ceipt, open to explanation and contradiction, not to defeat the deed as a conveyance, but to show the true consideration. 3 See further Adequate, 1 ; Contract; Convktancb, 2, Voluntary; Deubekation; Faith, Good; Fokbear- ance; Legal, Illegal; Negotiable; Security, 1 ; Value, Received; Void. CONSIGN.* 1. Incivillaw, foradebtor, under the direction of a court, to deposit with a third person an article of property for the benefit of a creditor. Consignation. A deposit which a debtor makes, by authority of court, of the thing which he owes, in the hands of a third per- son.* 2. In mercantile law, to send or transmit goods to a merchant or factor for sale. . . The radical meaning of the word, which is of French origin, is to deliver or transfer as a charge or trust.* Modern usage extends the meaning to transmission, by the agency of a common carrier, of merchandise or other movables for custody, sale, etc. Consignee.^ The factor or agent to whom merchandise or other personal property is consigned. Consignor. He who makes a consignment of personal property. Consignment. Property intrusted to a common carrier for delivery to a pei'son named in the bill of lading ; also, the act or transaction by which the property is trans- ported. See Bailment; Caeriee; Factor; Lading, Bill of. CONSIMILI. See Casus, Consimili. CONSISTENT. See Condition; Cus- tom; Repeal. CONSISTING-. Is not synonymous with "including," which implies that there may be other objects in the same category, though > Jones V. N. T. Guaranty, &o. Co., 101 U. S. 627 (1879). "Seel Greenl. Ev. §§ .33,26; 71 Ala. 95; 55 Pa. 504; 67 id. 410; 13 R. I. 95. s Allen V. Kennedy, 91 Mo. 328 n886), cases. *L. con-signare, to mark, seal: to register, attest. In civil law a consignment of money was sealed up,— Bouvier. »Weld V. Hadley, 1 N. H. 304 (1818). ' Gillespie v Winberg, 4 Daly, 330 (1872), Daly, C. J. 'Con-sl-nee'; con-sin'-or. not specified. The words "consisting of" will be limited to the things specifically mentioned. 1 The devise " I give all my worldly goods, consisting of household furniture, money, caotle, likewise my house and the lot I now occupy," was held not to pass other realty than that particularly designated.' CONSOLIDATE. To unite or merge into one ; to combine ; to amalgamate. To unite into one mass or body, as, to con- solidate various funds ; to unite in one, as, to consolidate legislative bills. 3 Consolidation of actions. A direction that one of several pending actions, involv- ing the same facts and issues, shall be tried, the result of the trial to be an adjudication of all the causes ; or else that all the actions proceed to trial and judgment as one suit. Sometimes termed the " consolidation rule." ' Allowed in suits against several insurers; in suits- on separate promissory notes of the same date; but not in actions upon independent contracts, nor where claims have different guarantees; nor in actions upon distinct penalties. The United States courts may consolidate actions of a like nature, or relative to the same question, as they deem reasonable.* Consolidation of associations. Union or merger into one, of two or more compa- nies or corporations organized for the same, or for some related, purpose. In England, " amalgamation." Whether the consolidation of two companies works a dissolution of both, and the creation of a new Corpo- ration, depends upon the intention of the legislatui'6.®' A sale by one coi-poration of all of its property to another corporation, is, as against creditors not as- senting thereto, fraudulent and void." When two companies unite or become consolidated under the authority of law, until the contrary appears the presumption is that the united or consolidated company has all the powers and privileges, and is subject to all the restrictions and liabilities, of the companies out of which it was created.' 1 Farrish v. Cook, Mo. Ap. 328, 331 (1878). ' Indep. District of Fairview v. Dm-Iand, 45 Iowa, 66- (1876), Seevers, C. J. ^ > See Gould, Plead., IV, s. 103; Cox, Com. L. Pr. 239;. 59 Miss. 126. , *R. S. § 921; Keep v. Indianapolis, &c. E. Co., 3. McCrary, 302 (1882): 10 F. E. 456. » Centi-al R. Co. v. Georgia, 93 U. S. 670-76 (1S75), cases; Branch v. Charleston, ib. 677, 683 (1875), cases; Green County v. Couness, 109 id. 106 (18a3); Tj-son u. Wabash R. Co., U Biss. 510 (1883); Woodruff v. Erie E. Co., 93 N. Y. 616-16 (1883). 'Hibernia Ins. Co. v. St. Louis, &c. Transp. Co., 4 McCrary, 433 (1882). ' Tennessee v. Whitworth, 117 U. S. 147 (1886), cases. CONSORT 334 CONSPIRACY CONSORT. 1. A companion. Consortsliip. Fellowship, companion- ship, consortium, q. v. S. A vessel that keeps company with an- other vessel. Consort-sMp. A contract between own- ers of wrecking vessels to share mutually with each other moneys awarded as salvage, whether earned by one vessel or by both.i Prevents mischievous competitions, and collisions. When made forlln indefinite time, continues until dis- solved by notice; not dissolved by mere removal of a master. Enforceable in admiralty, against property or its proceeds in the custody of the court.^ CONSORTIUM. L. Union of lots or chances: companionship; society; conjugal fellowship and assistance. The right which a husband has to the conjugal fel- lowship of the wife, to her company, coSperation, and aid in every conjugal relation. . . He is not the master of the wife, and can maintain no action for the loss of her services as his servant. His interest is expressed b&the word amsortium. Some acts of a stranger to the wife are of themselves invasions of the husband's right and necessarily injurious to' him; others may or may not injure him, according to their consequences: in which cases the injurious conse- quences must be proved, and that the husband actually lost her company and assistance.^ Per quod eonsortmm amisit. By which he lost her assistance. For a common battery upon the person of the wife trespass for damages is to be brought by husband and wife jointly; but, if, by reason of the maltreatment, he is deprived of her company and assistance, he has a separate remedy therefor. ^ CONSPIRACY.* A combination of two or more persons, by some concerted action, to accomplish a criminal or unlawful pur- pose, or to accomplish a purpose, not in itself criminal or unlawful, by criminal or unlaw- ful means. ° The unlawful combination or agreement of two or more persons to do an act unlawful in itself, or to do a lawful act by unlawful means.^ 1 Andrews v. Wall, 3 How. 671 (1845), cases. Story, J. ' Bigaouette v. Paulet, 134 Mass. 124 (1883), W. Allen, J. See also Winsmore v. Greenbank, Willes, 677(1745): Bigelow, Ld. Cas. Torts, 328, 333-40, cases; Jones v. Utica, &c. R. Co., 40 Hun, 351 (1886). s 3 Bl. Com. 140. , ' L. con, together; spirare, to breathe, whisper. 6 [Commonwealth v. Hunt, 4 Mete. 123, 121 (1842), Shaw, C. J. Approved in Spies et al. v. People (An- archists' Case), 122 111. 213 (1887); Heaps v. Dunham, 95 id. 686 (1880); 3 Greenl. Ev. § 89. » Buffalo Lubricating Oil Co. 1j. Everest, 30 Hun, 588 <1883); 17F. R. 147. When two or more persons, in any manner or through any contrivance, positively or tacitly come to a mutual understanding to accomplish a common, unlawful design. . . A combination formed by two or more per- sons to effect an unlawful end, they acting under a common purpose to accomplish that end.i The combination of two or more persons to do something unlawful, as a means or as an ultimate end. Many acts not indictable come within this definition. It is sufficient if the end proposed, or the means employed, are, by reason of the power of combination, particularly dangerous to the public interests or injurious to some individual, although not criminal. 2 At common law the gist of the ofEense is the unlaw- ful agreement. The ofEense is complete without an overt act— the law punishes the unexecuted intent.' While, by statute, in many of the States, some overt act is necessary, the final result of such act does not vary-the legal character of the ofEense.* As known at common law conspiracy is not defined in any act of Congress as an ofEense against the United States, nor is it, therefore, cognizable as such in her courts.^ The act of Congi'ess of May 17, 1879," which is a substitute for the act of March 8, 1867,' provides that: "If two or more persons conspire either to commit any ofEense against the United States or to defraud the United States in any manner for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten thou- sand dollars, or to imprisomnent for not more than two years, or to both fine and imprisonment in the dis- cretion of the court." Although by that enactment something more than the common-law definition is necessary to complete the offense, to wit, some act done to effect the object of the conspiracy, it remains true that the combina- tion of minds in any unlawful purpose is the founda- tion of the offense. The conspiracy is tor any fraud or offense against the United States.* ' United States v. Babcock, 3 Cent. Law J. 144 (1876), Dillon, J. ; United States v. Nuimemacher, 7 Biss. 120 (1876). 2 [Commonwealth v. Waterman, 182 Mass. 57 (1877), cases, Colt, J. 3 United States v. Walsh, 5 DUl. 60 (1878); United States V. Martm, 4 aifl. 162-63 (1870), cases; 16 Blatoh. 24-25; 97 Pa. 405. < State V. Norton, 23 N. J. L. 40-46 (1850); Hazen v. Conmionwealth, 23 Pa. 363-64 (1854), cases. ' United States v. Martin, 4 Cliff. 160 (1870). « 1 Sup. R. S. p. 484: 81 St. L. 4. 'R. S. §6440. s United States v. Hirsch, 100 U. S. 34-35 (1879). See 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 done in pursuance thereof, the crime is consummated. In three years thereafter the bar of the statute of lim- itations is complete.' An overt act, being necessary, must be alleged." Also punishable by acts of Congress are (or have been) conspiracies: to prevent a person from accept- ing or exercising an office; to deter a person from at- tending court as a party, witness, or juror; to impede the due course of justice, with intent to deny equal protection of the laws; to prevent a person from sup- porting a Federal elector or a member of Congress; ^ to destroy a vessel or the goods aboard with intent to injure any underwriter or lender of money;* to levy war against the United States; * to' obtain approval of false claims for lands, pensions, etc.® But no provision of the Constitution authorizes Con- gress to enact a law under which two or more tree white citizens can be punished for conspiracy or going in disguise to deprive another free white citizen of a right accorded by the law of the State to all classes of persons.' At common law a general allegation of a conspiracy to effect an object criminal in itself is sufBcient, al- though the indictment omits all charges of the partic- ular means employed. ^ When the criminality consists in an unlawful agree- ment to promote a criminal or illegal pui-pose, that , purpose must be clearly and fully stated in the indict- ment. When the criminality consists in the agreement to profnote a purpose not of itself criminal or unlaw- ful, by the use of fraud, force, falsehood, or other crimioal or unlawful means, such intended use of fraud, etc., must be set out in the indictment.' The connection of the members being once shown every act and declaration of each member, in pmrsu- ance of the common purpose, is the act and declara- tion of all." 175, 197; 3 id. 47; 4 Dill. 128, 145, 407; 5 id. 58; 3 Hughes, K3; 12 F. E. 250; 32 id. 534, infra. 1 United States v. Owen, 32 F. E. 534 (1887). "United States v. Eeichert, 33 F. E. 142 (1887). Field, J. > E. S. |§ 19S0, 5518-19. • E. S. § 5364. »E. S. §5336. e See E. S., Index, " Conspiracy." ' United States v. Harris, 106 U. S. 637-44 (1882), cases. Declared unconstitutional the act of Congress of April 80, 1871: R. S. | 5519. See also Baldwin v. Franks, 120 U. S. 678 (1887). 'See Commonwealth v. Fuller, 132 Mass. 566 (1882); United States v. De Grift, 16 Blatch. 24-25 (1870), cases; Barras 11. BidweU, 3 Woods, 47 (1876); Hazen v. Com- monwealth, 23 Pa. 363-64 (1854), cases; Eex v. Gill & Henry, 2 B. & Aid. *205 (1818); 109 U. S. 199; 113 id. 104. •Commonwealth v. Hunt, 4 Mete. 126 (1842), Shaw, C J See also 4 Bl. Com. 136; 3 id. 126; 3 Ala. 860; 6 id. 765; 12 Conn. 101; 80 id. 507; 25 111. 17; 30 Me. 132; 48 id. 218; 1 Mich. 220; 4 id. 444; 15 N. H. 394; 16 Johns. 592; 76 N. Y. 217; 41 Wis. 278; 2 Q. B. D. 59; 11 Q. B. 345; 10 Cox, Cr. Cas. :325. " 1 Greenl. Ev. § HI; 64 Ind. 473; 87 id. 28; 88 id. 15; 66 Ga. 693. If one concur, proof of agreement to concur is not necessary. As soon as the union of wills for the un- lawful purpose is perfected the offense is complete. The joint assent may be established as an inference from other facts.' It is not necessary to prove that the accused came together and agreed, in terms, to have a common de- sign, and to pursue it by common means. It is enough to prove that they pursued the same objects, often by the same means, one performing one part, another another part of the same, so as to complete it with a view to the attainment of that same end.'* Every person entering into a conspiracy already formed is in law a party to all the acts done by any of the other parties, before or afterward, m f urther- ance of the common design. 8 It makes no difference in the degree of responsi- bility that some of the conspirators were not present at the consummation of the design.* If the act of one, proceeding according to the com- mon intent, terminates in a criminal result, though not the particular result meant, all are liable. That is, a person may be guilty of a wrong he did not spe- cifically intend, if it came naturally, or even acci- dentally, through some other specific or general evil purpose. "^ He who conspires with others to do such an unlaw- ful act as will probably result in the taking of human life is presumed to have understood the consequences which might reasonably be expected from carrying it into effect, and to have assented thereto.' "He who infiames people's minds, and induces them, by violent means, to accomplish an illegal ob- ject, is himself a rioter, though he takes no part in the riot." . If he awakes into action an indiscrim- inate power, he is responsible. If he gives directions vaguely and incautiously, and the persons receiving them act according to what he might have foreseen would be the understanding, he is responsible.' Such declarations of a conspirator as are in f m-ther- ance of the common design can be introduced against the other conspirators. Declarations which are merely narrative as to what has been or wiU be done may be admitted against him who made them or in whose presence they were made. . . The rule that the conspiracy must first be established prima facie be- fore the acts of one confederate can be received in evidence against another cannot well be enforced where the proof depends upon a vast number of iso- 1 Spies et al. v. People, 122 111. 213 (1887), citing 2 Bish. Cr. Law, § 190. 2 Spies V. People, ib. 170, citmg 3 Greenl. Ev. § 93. a Spies v. People, ib. 179, citing 3 Greenl. Ev. § 93. ' Spies V. People, ib. 177, 253, citing WilUams v. People, 64 111. 422 (1870); Brennan v. People, 15 id. 517 (18M); Whart. Hom. § 338. « Spies V. People, ib. S3S, quoting 1 Bish. Cr. Law, § 636, cases. "Spies V. People, ib. 226, 229, cases; 1 Whart. Cr. Law, § 225 o. ' Spies V People, ib. 198, 324, 230, quotmg Eegma v. Sharpe, 3 Cox, C. C. 288 (1848), Wilde, C. J. ; 1 Bish. Cr. Law, §§ 640-41; Queen v. Most, L. E., 7 Q. B. D. 244 (1881). CONSTABLE 286 CONSTITUTION lated circumstances. In any case, where the whole evidence shows that a conspiracy actually existed, it will be considered immaterial whether the conspiracy was established before or after the introduction of the acts and declarations of the members.^ A simple conspiracy is not the subject of a civil ac- tion unless it results ih actual damage to the person aimed at. If such damage, but not the combination, is proven, the plaintiff Is entitled to a verdict against any defendant shown to have committed an unlawful act." A bill in equity will not lie against persons (pilots) who have confederated to destroy the business of the owner of a vessel by publications in newspapers, by Instituting suits, and in other ways. The injured per- -son has adequate remedies at law for each' of those acts.' See Accomplice; Boycotting; Combination, 2; In- dictment; Prosecution, Malicious; Sedition; Strike, 2; Trades-unions. COWSTABIiE.4 1. Originally, an officer ■who regulated matters of chivalry, tourna- ments, and feats of arms, performed on horseback. 2. An officer appointed to preserve the peace, and to execute the processes of a jus- tice of the peace.5 Constabulary. Pertaining to or consist- ing of peace-officers. Constablery. The jurisdiction of a constable. High constable. 1. A constable, or " lord high constable," in the primitive sense above noted. 3. The chief police officer in a tov?n or city : the chief constable. Petty constable. 1. An inferior officer in every town and parish, subordinate to a high constable." 2. An officer charged with keeping the peace within a county or other district, and with executing such processes as are issued by justices of the peace. Special constable. A person appointed to execute a warrant on a particular occa- sion or to co-operate in preserving the peace on a special emergency. See Areest, 2; County, Power of; JIaeshal, 1 (3); Peace, 1. CONSTAT. L. 1, v; It appears : liter- ally, it^is established, certain, made man- ifest. Compare Constate. ' Spies V. People, ib. 237-^9 ; State v. Winner, 17 Kan. 293(1876); 1 Greenl. Ev. § 111; Eoscoe, Cr. Ev. 414-13. " Buffalo Lubricating OU Co. v. Everest, 30 Hun, 588 (188.3), cases. 3 Francis v. Flinn, 118 U. S. 385 (1886). *F. conestable; L. comes stabuU, count ot the stable. ' [1 Bl. Com. 355. • [1 Bl. Com. 355. Non constat. It does not appear ; it does not follow: it is not certain. Non constitit: it did not appear. " Before judgment, non constat^ the accused may be innocent." i " Non constat by the record, who gave notice." * "Whether the title was to come from him, and when, and on what conditions, non constat.^^ * " Non constituit whether a felony was committed till the principal was attainted." *, 2, n. A certificate of what appears upon record as to a matter in question. Thus, an exemplification of the enrollment of let- ters-patent under the great seal was called a, " con- stat." " There may be a possession of a vessel under a claim of title " with a constat of property." ® CONSTATE.' To establish, ascertain? to evidence, testify, prove. "Unless there has been some violation of the charter or the constating instruments " of the corpo- ration, the directors will not be personally liable." ^ CON"STITUENT. See Agent. CONSTITUTED. See Authoeity, 2. CONSTITUTION.9 Originally, an im- portant decree or edict. Later, the laws and usages which gave a government its char- acteristic features — the organic law.W The constitution of England consists of customs, statutes, common laws, and decisions of fundamental importance. American constitutions are enacted; but the meaning of much of them is found in decided cases. ^^ The English, constitution is a gpowth. Eights in favor of the Commons were established as follows: (1) In the reign of Henry III (1316-72), participation in levying taxes and in legislation, and control of appli- cations for supplies. (2) In the reign of Edw. TIT (1326-77), enlarged participation in levying taxes and in legislation; inquiry into public abuses; impeach- ment of public ministers. (3) In the reigns of Hen. IV, V, and VI (1399-1461), the exclusive right to impose taxes; the right to grant supplies to the sovereign upon redress of grievances; larger participation in legislation; control of the administration; impeach- ment of ministers; and certain rights of privilege — freedom of speech in Parliament, freedom from arrest 1 16 Wall. 370. » 59 Wis. 653. = 63 Pa. 398. <4 Bl. Com. 333. See also 6 Wheat. 229; 34 La. An. 1134. 6 Coke, Litt. 225. • The Tilton, 5 Mas. 468 (1830), Story, J. ' Con-state'. L. con-stare, to stand firm, be certain, known. See Constat. "Ackerman v. Halsey, 37 N. J. B. 363 (1883), Eun- yon, Ch. ' L. constituere, to make to stand together, to estab- lish. 1° Lieber, Bncyc. Am., tit. Constitution. CONSTITUTION 237 CONSTITUTION •during attendance upon Parliament, and the right of •deciding upon election returns.' An act of extraordinary legislation by which the people establish the structure and mechanism of their government, and in which they prescribe fundamental rules to regulate the motion of the several parts.''' The body of rules and maxims in accord- ance with which the powers of sovereignty are habitually exercised.' Although, in some sense, every State may be said to have a constitution, the expression " constitutional government " applies to those States only whose fundamental rules or maxims prescribe how those shall be chosen who are to exercise the sovereign powers, and impose restraints upon that exercise, for the purpose of protecting individual rights, and of shielding them against any assump- tion of arbitrary power.' If the constitution is iin-writteu there maybe laws or documents which declare some of its important principles; as, in England, in the cases of the Magna Charta, Petition of Rights. Habeas Corpus Act, Bills of Rights, and the Common Law as the expositor of those charters.* In America, the principle of constitutional liberty is that sovereignty resides in the peo- ple; and, as they could not collectively ex- ercise the powers of government, written constitutions were agreed upon. These in- struments create departments for the exer- cise of sovereign powers ; prescribe the extent and methods of the exercise, and, in some particulars, forbid that certain powers, which would be within the compass of sovereignty, shall be exercised at all. Each constitution is, moreover, a covenant on the part of the people with each individual thereof, that they have divested themselves of the power of making changes in the fundamental law except as agreed upon in the constitution itself. 3 A written constitution establishes iron rules, which, when found inconvenient, are difficult of ■change; it is sometimes construed by technical rules of verbal criticism rather than in the Mght of great principles; and it is likely to invade the domain of » See 4 Bl. Com. Ch. XXXHIi 3 Law Quar. Rev. 204- 10 (1887). 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. 3 [Cooley, Princ. Const. Law, 82-23; Const. Lim. 2-3. See also Hurtado v. California, 110 U. S. 531-33 (1884), Matthews, J. legislation, instead of being restricted to fundamental rules, and thereby to invite demoralizing evasions. An unwritten constitution is subject to perpetual change at the will of the law-making authority; against which there can be no security except in the conservatism of that authority, and in its responsibility to the people, or, if no such responsibility exists, then in the fear of resistance by force.' Our State constitutions are forms of government ordained and established by the people in their original sovereign capacity to promote their own happiness and perma- nently secure their rights, property, inde- pendence, and common welfare. They are deemed compacts in the sense of their being founded on the voluntary consent or agree- ment of a majority of the qualified voters of the State. A constitution is in fact a funda- mental law or basis of government, and falls strictly within the definition of "law" as given by Blackstone, — a rule of action pre- scribed by the supreme power in a state, regulating the rights and duties of the whole community. It is in this light that the lan- guage of the Constitution of the United States contemplates it; for it declares that this constitution, etc., "shall be the supreme Law of the land." 2 A constitution is the letter of attorney from the people.' Constitutions guard the rights of personal security, personal liberty, private property, and of religious professions and worship.* Constitutions are mainly for the protection of minorities. In times of excitement and distress, their rights are most likely to be sacrificed. * By the Revolution the transcendant powers of Parliament devolved upon the people. A portion of this power they delegated to the government of the United States. Such as remained they bestowed upon the govern- ments of the States, with certain express limitations and exceptions. The Federal Constitution confers powers particularly enumerated ; that of each State is a grant of all powers not excepted. The former is con- strued strictly against those who claim under it; the latter, strictly against those who stand upon the exceptions, and Uberally in favor of the government itself. The Fed- eral government can do whatever is author- 1 [Cooley, Princ. Const. Law, 22-23. » 1 Story, Const. U 333-39. » 1 Sharswood, Bl. Com. *14r, note. < 1 Kent, 407. » Bunn V. Oorgas, 41 Pa. 446 (1803). CONSTITUTION 338 CONSTITUTION ized, expressly or by clear implication ; the government of a State, whatever is not pro- hibited.! The Federal Constitution went into effect the first Wednesday of March, 1789. September 14, 1786, com- missioners from five States met at Annapolis, and rec- omimended that a general convention be held at Philadelphia, to revise the Articles of Confederation. February- 21, 1787, the congress of the confederation made a similar recomauendation. May 25, 1787, the delegates assembled, organized, and, about four months later, to wit, September 17th, adjourned, hav- ing drafted a " Constitution of the United States of America." June 21, 1788, the document, as a constitu- tion, was ratified by the ninth State. September 13, 1788, Congress set the time for choosing Presidential electors, appointing March 4, 1789, as the day, and New York City as the place, when and where the new Government of the United States should begin opera- tions. ^ See Confederation, Articles of; National. The Constitution was ordained and established by *'the people of the United States." It was not neces- sarily carved out of existing State sovereignties, nor was it a surrender of powers already existing in State institutions, for the powers of the States depend upon their own constitutions ; and the people of every State had the right to modify and restrain them, according to their own views of policy or principle. On the other hand, it is clear that the sovereign powers vested in the State governments, by their respective constitu- tions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the jpeop/e." (Am.d. Art. X) The government, then, can claim np powers which are not granted to it, and the powers actually granted must be such as are expressly given, or given by necessary implication. . . The instrument is to have a reasonable con- Btruction, according to the import of its terms ; and where a power is expressly given in general terms, it is not to be restricted to particular cases, unless that construction grows out of the context expressly, or by necessary implication. The words are to be taken in their natural and obvious sense, not in a sense unrea- sonably restricted or enlarged. It unavoidably deals in general language. It did not suit the purpose of the people in framing this great charter of our liber- ties to provide for minute specifications of its powers, or to declare the means by which these powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracti- cable, task. The instrument was intended to endure through a long lapse of ages. It could not be foreseen what new changes and modifications of power might' be indispensable to effectuate the general objects; and restrictions and specifications, which, at the pres- ^ Sharpless v. Mayor of Philadelphia, 21 Pa. 160-64, 172-73 (1853), cases, Black, C. J.; 17 id. 119; 52 id. 477; 13 Conn. 125; 46 N. Y. 401; 16 How. 428. 2 See R. S. p. 17; Century Mag., Sept., 1887; Ban- croft, Const. ent, might seem salutary, might, in the end, prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving the legislature, from time to time, to adopt its own means to effectu- ate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom, and the public interests, require. ^ The Federal government is one of enumerated pow- ers. The question respecting the extent of the powers actually granted will continue to arise, as long as our system shall exist. There is no phrase in the instru- ment which excludes incidental or implied powers, and which requires that everything Ranted shall be expressly and minutely described. Eyen the Tenth Amendment, framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers " not delegated to the United States, . , nor prohibited by it to the States, are reserved to the States respectively, or to the people;" thus leaving the ques- tion, whether the particular power, which may become the subject of contest, has been delegated to the one government or prohibited to the other, to depend upon a fair construction of the whole instrument. A con- stitution, to contain an accurate detail of all the sub- divisions of which its great powers will admit, and of all the means by which they may be carried into exe- cution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. Its nature, therefore, requires that only its great out- lines should be marked, its important objects desig- nated, and the minor ingredients which comipose those objects be deduced from the nature of the objects themselves. The powers given imply at least the or- dinary means of execution. . The government which has a right to do an act, and has Imposed on it the duty of performing that act, must be allowed to select the means. But this use of means is not left to general reason- ing. To the enumerated powers is added that of mak- ing "all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Gov- ernment of the United States, or in any Department or Officer thereof." (Art. I, sec. 8, cl. 18.) "Necessary" (g-. V.) does not here import an absolute physical ne- cessity, so strong that one thing to which another may be termed necessary cannot exist without that other. If this clause does not enlarge it cannot be construed to restrain the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. ^ The revolution which established the Constitution was not effected without immense opposition. Fears were entertained that the very powers which were 1 Martin v. Hunter's Lessee, 1 "Ulieat. 324^-27 (1816), Story, J. ; Gibbons v. Ogden, 9 id. 187 (1824), Marshall, C.J. 2 M'CuUoch V. State of Maryland, 4 Wheat. 40&-23 (1819), Marshall, C. J.,— upon the constitutionality of the act of April 10, 1816, incorporating the Bank of the United States. See also Legal Tender Case, 110 U. S. 441 (1884); Exp. Yarbrough, ib. 651, 658 (1884). CONSTITUTION 239 CONSTITUTION essential to union miglit be exercised in a manner dan- gerous to liberty.' The rule laid down in M'Culloch v. Maryland has ever since been accepted as a correct exposition of the Constitution. It is settled that the words "all Laws which shall be necessary and proper tor carry- ing into Execution" powera expressly granted or Tested have a sense equivalent to the words: laws, not absolutely necessary Indeed, but appropriate, plainly adapted to constitutional and legitimate ends; laws not prohibited, but consistent with the letter and spirit of the Constitution; laws really calculated to effect objects intrusted to the government. It was needful only to make express grants of general powers, coupled with a further grant of such incidental and auxiliary powers as might be required for the exercise of the powers expressly granted. Perhaps the largest part of the functions of the government have been performed in the exercise of implied powers.^ It is indispensable to keep in view the objects for which the powers were granted. If the general pur- pose of an instrument of any nature is ascertained the language of its provisions must be construed with reference to that purpose and so as to subserve it. And there are more urgent reasons for looking to the ultimate purpose in examining the powers conferred by the Constitution than there are for construing any other instrument. We do not expect to find in a con- stitution minute details. It is necessarily brief and comprehensive. It prescribes outlines, leaving the filling up to be deduced from these outlines. . . The powers conferred upon Congress must be regarded as related to each other, and all means for a common end. Each is but part of a system, a constituent of one whole. No single power is the ultimate end for which the Constitution was adopted. A slibordinate object is itself a means designed for an ulterior purpose. It is impossible to know what those non-enumeraied powers are, and what their nature and extent, without considering the piu^joses they were intended to sub- serve. Those purposes reach beyond the mere execu- tion of all powers definitely intrusted to Congress and mentioned in detail. . In the nature of things, enumeration and specification of all the means or in- strumentalities, necessary for the preservation and fulfillment of acknowledged duties, were impossible. They are left to the discretion of Congress, subject only to the restrictions that they be not prohibited and be necessary and proper for carrying into execution the enumerated powers. . . The existence of a power may be deduced fairly from more than one of the substantive powers expressly defined. . . Con- gress has often exercised powers not expressly given nor ancillary to any single enumerated power. These are resulting powers, arising from the aggregate pow- ers. Illustrative instances of the recognition and exercise of such powers are found m the right to sue, and to make contracts; the oath required of officers; 1 Barron v. Mayor of Baltimore, 7 Pet. *250, 247 (1833). ' Hepburn v. Griswold, 8 Wall. 614-15 (1869), Chase, C. J. This power (Art. I, sec. 8, cl. 8) " was so clearly necessary that without cavil or remark it was unani- mously agreed to " by the members of the Constitu- tional convention; 2 Bancroft, Const. 149. building a capitol or Presidential mansion; the penaJ code; the census "of free white persons iu the States,!' as to persons not free and in the Territories: the collection of statistics; carrying the mails, and punishing offenses against the postal laws; improv ing harbors; establishing observatories, light-houses, break-waters; the registiy and construction of ships, and the government of seamen; the United States bank — for the convenience of the treasury and in ternal commerce, and to which the government sub- scribed one-flfth of the stock, although the bank was a private corporation doing business for its own profit priority of debts due to the United States over other creditors; the Legal Tender Acts of 1863 and 1863.1 Constitutions are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings.^ A constitutional provision is " self-executing " or " self -enacting " when it supplies the rule by which the right given may be enjoyed and protected, or the duty imposed may be enforced. It is not self-executing when it merely indicates the principles, without laying down rules by means of which those principles may be given the force of law. . . Some provisions are mandatory; others, without legislation, are dormant.* Constitutional. 1. Relating to the framing or formation of a written constitu- tion : as, a constitutional convention. 3. Based upon, secured, or regulated by a constitution: as, constitutional — govern- ments, liberty, rights. 3. Authorized by a particular constitution, whether written or unwi-itten. Unconstitutional. Contrary to the prin- ciples or rules of a constitution. Whence constitutionality, unconstitutionality. An " unconstitutional" law either assumes power not legislative in its nature, or is in- consistent with some provision of the Federal or State constitution.* A State legislature cannot pass a law conflicting with the rightful authority of Congress, nor perform a judicial or exednitive function, nor violate the popu- lar privileges reserved by the Declaration of Eights, por change the organic structure of the government, nor exercise any other power prohibited in the consti- ' Legal Tender Cases, 12 Wall. 5.33-47 (1870), cases. Strong, J. ; (Second) Legal Tender Case, 110 U. S. 439 (1881); Exp. Yarbrough, ib. 668 (1884); Holmes v. Jen- nison, 14 Pet. 671 (1840). » 1 Story, Const. § 451; ib. § 419; 7 Tex. Ap. SIO; 24 N. Y. 486. See also Burks v. Hinton, 77 Va. 29 (1883). ' Cooley, Const. Lim. 99-101; Groves v. Slaughter, 16 Pet. 500 (1841); 92U. S. 214; 10 F. E. 603; 9 Cal. 341; 33 id. 487; 48 id. 279; 13 111. 1; 60 id. 390; 62 id. 38; 64 id. 41; 68 id. 286; 89 Ind. 116; 24 La. An. 814; S Mich. 600; 7 id. 488; 29 id. 108; 8 Miss. 14; 63 Mo. 444; 81 Pa. 48jJ; 20 Gratt. 733; 9 W. Va. 703. * Commonwealth v. MaxweU, 27 Pa. 456 (1856). CONSTITUTION 240 CONSTRUCTION tution. The judioiary, in (dear oases, has always exer- cised the right to declare such acts void. But beyond this there lies a vast field of power, granted to the legislature by the general words of the constitution, and not reserved, prohibited, or given away to others: their use of which is limited only by -their own dis- cretion. The constitution gives a list of the things the legislature may do. For the judiciary to extend that list would be to violate the letter a;nd the spirit of the organic law itself. The people rely for faithful execution of the powers given to the legislatxu-e on the wisdom and honesty of that department, and on the direct accountability of the members to their con- stituents. The mere abuse of power was not meant to be corrected by the judiciary — for judges can be imagined to be as corrupt and wicked as legislators. And the general principles of justice, liberty, and right, not contained or expressed in the body of the constitution itself, are not elements for a judicial de- <;lsiOn upon the constitutionality of an enactment. ' To justify a court in pronouncing an act unconsti- tutional, in whole or in part, it must be able to vouch some exception or prohibition clearly expressed or necessarily 'implied. To doubt is to favor constitution- ality. That meaning of words is to be taken which will support the statute.^ A separable portion of an act may be unconstitu- tional, and the rest be valid, provided the law as a whole can be executed, ^ The rule is to enforce statutes as far as they are constitutionally made, rejecting those provisions only which show an excess of authority, conformably to the settled maxim tit res magis, etc. * The opposition between the Constitution and, the law should be such that the judge feels a clear and strong conviction of their incompatibility.* " Let the end be legitimate, let it be within,the scope of the Constitution, and all means which are appro- priate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. Where the law is not prohibited, and is really calculated to effect any of the objects Intrusted to che govei*nment, for the court to undertake to inquire into the degree of its necessity would be to pass the line which cir- cumscribes the judicial departments, and to tread on legislative ground." ^ 1 Sharpless v. Mayor of Philadelphia, 21 Pa, 160-64 <1853), cases, Black, C. J. s Commonwealth v. Butler, 99 Pa. 540 (1883), Shars- Tvood, C. J.; State v. Hipp, 88 Ohio St. 319 (1888). = United States v. Eeese, 92 U. S. 221 (1875); Virginia Coupon Cases, 114 id. 305 (1885); Presser v. Illinois, 116 id. 263 (1886), cases; Spraigue v. Thompson, 118 id. 90, 95 (1886); Baldwin v. Franks, 120 id. 689 (IBS'*); State v. Kelsey, 44 N. J. L. 29 (1882). i Adler v. Whitbeck, 44 Ohio St. 575 (1886); 15 Ohio, «4e. See also Black v. Trower, 79 Va. 127-28 (1884), cases; Reid v. Morton, 119 111. 118, 129 (1886); 83 Ky. 68. 'Fletcher v. Peck, 6 Cranch, 128 (1810); County of Livingston v. Darlington, 101 U. S. 410 (1879), cases. 'M'CuUoch V. Maryland, 4 Whe;it. 421, 423 (1819), Marshall, C. J. ; Hepburn v. Griswold, 8 Wall. 614-15 (1869); Legal Tender Cases, 12 id. 538 (1870). The duty to declare an act of Congress repugnant to the Constitution is one of great delicacy, only to be performed where the contlictis irreconcilable. Every doubt is to be resolved in favor of constitutionality.' The reasons against the unconstitutionality should at least preponderate; if they are equally balanced, the court should declare the statute valid." Proper respect for a co-ordinate branch of the gov- ernment requires the Federal courts to give effect to the presumption that Congress will pass no act not within constitutional power. This presumption should prevail unless the lack of authority is clearly demonstrated. At the same time, the government being one of delegated, limited, and enumerated powers, every valid act must find in the Constitution some warrant for its authority. ^ See Amendment, 2; Citizen; Courts, United States; Federalist; Impair; Law, Supreme; Legislature; Politics; Preamble, 1; Eeligion; Eights, Bill of; State, 8 (2); Tax, 2; Tender, 2, Legal. COWSTRUCTIOH'.* 1. Putting together, ready for use ; building ; erecting : applied to houses, vessels,^ railroads,* machines.'' See Build ; Erect ; Conteactok. 2. Drawing conclusions respecting subjects that lie beyond the direct expression of the text, from elements known from and given in the text — conclusions within the spirit, though not within the letter, of the text.* " Interpretation " is the art of finding out the true sense of any form of words; that is, the sense which their author intended to convey.^ In common use, "construction" embraces all that is covered by both synonyms,^ Eules of construction have for their object the dis- covery of the true intent ant^ meaning of instru- ments — the thought expressed,'" where the language is transparent there is no room for the office of construction. There shoiild be no construction whei'e there is nothing to construe." Liberal construction. Such construc- tion as enlarges or restrains the letter of an agreement or instrument so as more eflfect- ually to accomplish the end in view. Also called equitable construction. Strict con- struction. Such as limits the application 1 Mayor of Nashville v. Cooper, 6 Wall. 251 (1867); 20 id. 668, 2 Cherokee County v. State, 36 Kan. 339 (1887), cases. 3 United States v. Harris, 106 U. S. 635 (1882), Woods, J. See 2 Story, Const. § 1243. * L, construere^ to put together. s,Sprague, 180; 103 Mass. 227. 9 11 Iowa, 17; 115 Mass. 400. ' 17 How. 72. SLieber, Hermen., Ham. ed., 44, 11; 36 N. J. L. 209; 2 Pars. Contr. 491. " [Cooley, Const. Lim. *.$8. " People u May, 9 Col. 86 (1885). " Lewis V. United States, 92 U. S. 621 (1875), Swayne, J.; Benn v. Hatcher, 81 Va. 34 (1885). CONSTRUCTIVE 241 CONSUL to cases clearly described by the words used ; a close adherence to words. Also called literal construction. i By a liberal interpretation of a letter of guaranty we do not mean that the words should be forced out of their natural meaning; simply that they should re- ceive a fair and reasonable interpretation, so as to attain the object for which the instrument is designed and the purpose to which it is applied.'' Other expressions are : artificial, forced or strained, refined, reasonable construction. A reasonable construction of an instrument, as of the Constitution, means that in case the words are sus- ceptible of two senses, the one strict, the other more enlarged, that should be adopted which is most conso- nant with the apparent intent.* The object is not to make or modify the instrument, but to find the sense. Hence, the whole docimient is to be construed together. This is to be done by the court, except when the writing contains technical words, or terms of art, or when it is introduced col- laterally, or when its effect depends upon extrinsic circumstances — in which cases the duty devolves upon the jury.* It is a cardinal rule in the constniction of all instru- ments that, if possible, effect should be given to all parts and to every clause, ut res tnagis, etc.** See further Condition; Constitution; Construct- ive; Contract; Covenant; Deed, 2; Expositio; Ex- FRESSio; Forfeiture; Franchise, 1; Grant; Impair; Instrument, 3; Insurance, Policy; Noscitur; Punctu- ation; Repeal; Repugnant; Statute; Trust, 1; Usus, Utile, etc.; Verbum; Will, 2; Word. CONSTRUCTIVE. Determined by con- struction: inferred or implied, presumed or imputed ; opposed to actual : as, Constructive — annexation, appropriation, assent or consent, attachment, breaking, close, contempt, conversion, damages, de- livery, fraud, larceny, levy, loss, malice, notice, possession, presence, service, taking, treason, trust, qq. v. COIfSUBTUDO. L. Custom; usage; practice. Consuetudo est altera lex. Custom is another law. Consuetudo interpres legum. Cus- tom is the expounder of laws.* Consuetudo loci otaservanda. Thecus- 1 [Bouvier's Law Diet; 1 Wash. T. 351^1 Shars. Bl. Com. 87; 23 Cent. Law J. 483 (1886), cases. = Lawrence v. MoCalmont, 2 How. 449 (1844), Stoiy, J. ; Crist V. Burllngame, 62 Barb. 356 (1862). ' [1 Story, Const. § 419. *Goddard v. Foster, 17 Wall. 143 (18T2), cases; Beardsley v. Hotchkiss, 30 Hun, 613 (1883); 1 Law Quar. Eev. 466 (1885). » May V. Saginaw County, 32 F. R 632 (1887). • 116 U. S. 622. (16) torn of the place is to be conformed to. See Custom. CONSUL.i " Consul," " consul-general," and " commercial agent," in the Revised Statutes, denote full, principal and perma- nent consular officers, as distinguished from subordinates and substitutes. ^ "Deputy consul" and "consular agent" denote officers subordinate to such principals, exercising the powers and performing the duties within the limits of their consulates or commercial agencies respectively, the former at the same ports or places, and the latter at ports or places different from those at which such principals are located respect- ively, s " Vice-consuls," and " vice-commer6ial agents " denote consular officers, who shall be substituted, temporaijily, to fill the places of consuls-general, consuls, or commercial agents, when they shall be temporarily ab- sent or retired from duty.^ "Consular officer" includes consuls-gen- eral, consuls, commercial agents, deputy con- suls, vice-consuls, vice-commercial agents, consular agents, and none others.^ The word " consul " shall be understood to mean any person invested by the United States with and exercising the functions of consul-general, vice-consul-general, consul or vice-consul.6 A "consul" is an officer of a particular grade in the consular service; in a broad generic sense, the word embraces all consular officers of whatever grade.' Under treaties, consuls have had conferred upon them judicial authority over theff own countrymen: as in the decision of controversies in civil cases; the administration of estates; the registering and certify- ing of wills, contracts, etc. When residing in a coun- try of different political and religious institutions, they have also a limited criminal jurisdiction over their countrymen." Consuls are approved and admitted by the local sovereign. If guilty of illegal or improper conduct, the exequatur (q. v.) which has been given 'may be revoked, and they may be punished, or sent out of the country, at the option of the offended government. In • L. consulere, to consult. ' R. S. § 1674, par. 1. « Ibid., par. 2. * Ibid., par. 3. » Ibid., par. 4. •Act 1 Feb. 1876; E. S. S 4130. ' Dainese v. United States, 13 Ct. a. 74 (1879). •See R. S. § 4D83; 11 F. R 607. CONSUMMATE 243 CONTEMPT civil and criminal cases they are subject to the local law in the same manner as other foreign residents owing a temporary allegiance to the state. A trading consul, in all that concerns his trade, is liable as a native merchant.^ See further Diplomatic; Mihisteb, 3. CONS1JMMATE.2 ' Complete, finished, perfected, entire; opposed to inchoate, q. v. An estate by curtesy is consummate on the death of the wife.' Consummation. In the law of marriage, copulation.* See Com, Copula;. Maeriaqb. CONSUMPTIOH". See Legacy; Loan, 1 ; Tax, 3, Indirect. COKTAGIOUS. See Disease; Disoe- DER, 1 ; Health. CONTAINED. See Premises, 3. Buggies insured as " contained in " a livery-stable were destroyed while in a factory for repairs. Held, that the words quoted were a warranty as to property whose use did not require removal.* The description of a horse as " contained in " a bam, in a policy against lightning, was held not to be a contract that the horse was to be kept all the time in the barn. " Danger from lightning exists almost wholly in the summer season, when stock of all kinds upon farms is kept in the fields. A policy which cov- ered stock only when in the bam would not fm-nish indemnity." * Household furniture, described in a policy as " con- tained in" a certain house, was removed, without the insurer's knowledge, to a house on another street, where it was destroyed by fire. Held, that as the statement of locality was to be construed as a con- tinuing warranty, the insured could not refcover.' A seal-skin dolman, insured as wearing apparel by a policy describing it as " contained in " a particular dwelling-house, was burned while in the store of a fur- rier, to which it had been sent for repair. Held, that the insurer was liable, although the risk was increased : temporary removal or absence being necessarily in- cident to the use of such property, and presumptively contemplated by the parties.' CONTEMPLATION. Bankrupt and in- solvent laws provide that acts done " in con- templation " of bankruptcy or iiisolvency shall be void. > Coppell u Hall, 7WaU. 553 (1868), cases; The Anne, 3 Wheat. 445-46 (1818); 1 Kent, 53. 3 Con-sum'-mate. »a Bl. Com. 188; 17 Ct. 01. 173. « See 1 Bl. Com. 435. » London, &c. Fire Ins. Co. v. Graves, 12 Ins. Law J. 308 (1883), cases,— Superior Ct. Ky.: 43 Am. Rep. 34; Longueville v. Western Assur. Co., 51 Iowa, 553 (1879). • Haws V. Fire Association of Philadelphia, 114 Pa. 434 (1886). ' Lyons v. Providence Washington Fire Ins. Co., 14 E. 1. 109 (1883), reversmg Same v. Same, 13 id. 347. ' Noyes v. Northwestern Nat. Ins. Co., 64 Wis. 419-21 (1885), The bankrupt act of 1841, by the phrase " contem- plation of bankruptcy," did not intend contemplation solely of being a bankrupt, but contemplation of actu- , ally stopping business because of insolvency and in- capacity to carry it on.i The debtor must have contemplated more than a state of insolvency,— an act of bankruptcy, or an ap- plication to be declared a bankrupt.' In the act of 1867, the phraseology is " in contempla- tion of insolvency or bankruptcy." This was held not to require an absolute inability to pay all debts in full on a close of business; only that the debtor could not pay his debts in the ordinary course of business.* See Bankruptcy; Insolvency. CONTEMPOEANEA. _See Exposiiio. CONTEMPT.s Disrespect; willful dis- regard of the authority of a court or legis- lature. 1. To the head of summary proceedings is referred the method, immemorially used b3'- the superior courts, of puiiishing contempts by attachnient. . . Contempts are either direct [sometimes called criminal], which openly insult or resist the powers of the courts or the persons of the judges who preside there; or else are consequential [sometimes called constructive, which, with- out such gross insolence or direct opposition, plainly tend to create a universal disregard of their authority. The principal mstances are: 1. Those committed by inferior judges and magistrates — by acting un- justly, oppressively, or irregularly in administering justice; disobeying writs issuing out of the superior courts by proceeding in a cause after it is put a stop to or removed by writ of prohibition, certiorari, error, supersedeas, etc. 2. Those committed by sheriffs, bailifCs, jailors, and other ofiBcers of the court — by abusing the process of the law or deceiving the parties ; by acts of oppression, extortion, collusive behavior, or culpable neglect of duty. 3. Those committed by attorneys (g. v.), who are also officers of court- by gross fraud and cormption, injustice to their clients, or other dishonest practice. 4. Those committed by jurymen — by making default when summoned, re- fusing to be swom or to give a verdict, accepting entertainment at the cost of a party, etc. 5. Those committed by witnesses — by making default when summoned, by refusing to be sworn or examined, by prevaricating in their evidence. 6. Those committed by parties — by disobedience to a' rule or order, by non-payment of costs, non-performance of awards, etc. 7. Those committed by any other persons — as 'Arnold v. Maynard* 2 Story, 353 (1854); Morse v. Godfrey, 3 id. 388 (1844); Everett v. Stone, ib. 453 (1844). 2 Risen v. Knapp, 1 Dill. 194-95 (1870), cases; Martin V. Toof, ib. 206, 211 (1870); Be Smith, 13 Rep. 296 (1881): E. S. I 5110; 4 Bankr. Eeg. 203; 21 How. Pr. 480; 61 Wis. 635. = L. cantemptus, scorn: temnere, to despise. CONTEMPT 343 CONTEMPT in cases of forcible rescue, disobedience to the prerog- ative writs. Some of these contempts may arise in the face of the court — as by rude and contumelious behavior, ob- stinacy, perverseness, prevarication, breach of the peace, or other willful disturbance; others, in the ab- sence of the party — as by disobeying the writ, rule, or other process of the court; perverting a writ or process to purposes of private malice, extortion, or injustice; speaking or writing contemptuously of the court or judges acting in their judicial capacity; printing false accounts (or even true accounts, with- out permission) of causes pending in judgment; any- thing, in short, that demonstrates a gross want of that respect without which the authority of the courts, among the people, would be lost. The process of attachment for contempts must nec- essarily be as ancient as law itself. Laws without authority to secure their administration from disobe- dience wovdd be nugatory. The power, therefore, to suppress a contempt by an immediate offender results from" the first principles of judicial establishments, and must be an inseparable attendant upon every su- perior tribunal. If the contempt be committed in the face of the court the offender may be instantly apprehended and imprisoned, in the discretion of the judges. But in matters that arise at a distance, if the judges upon af^davit see sufttcient ground they may rule the sus- pected party to show cause why he should not be at- tached; in a flagrant case the attachment may be issued in the first instance. Once in court, the party ^ must either stand committed or put in bail, in order to answer upon oath such interrogatories as shall be ad- ministered to him for the better information of the court with respect to the circumstances of the con- tempt. These interrogatories are in the nature of a charge or accusation, to be exhibited within a reason- able period, as, four days. If the party can clear [" purge," g. u.] himself upon oath, he is discharged. If he confesses the contempt, the court may fine or imprison him. This mode of trial, which is derived from the courts of equity, is sanctioned by immemo- rial usage.' While a justice of the peace has no power to pun- ish a contempt committed before him, he may bind the party to answer an indictment for obstructing the administration of justice, and to be of good behavior meanwhile.' The act of Congress of March 2, 1831, "declaratory of the law concerning contempts of court," limits the power of the circuit and district courts to three classes of cases: 1, where there has been misbehavior of a person^in the presence of a court, or so near thereto as to obstruct the administration of justice; 2, where there has been misbehavior of any ofBcer of a court in his ofttcial transactions; 3, where there has been diso- bedience or resistance by any officer, party, juror, wit- ness, or other person, to any lawful writ, process, order, rule, decree, or command of a court.' Such has always been the power of the courts, both of common law and of equity. The exercise of the power has a twofold object: to punish disrespect to the court or its order, and to compel performance of some act or duty. In the former cose, the court must judge for itself of the nature and extent of the pun- ishment. In the latter case, the party refusing to obey should be fined and impriboued until he i)erforms the act or shows that it is not in his power to do it." When a contempt is committed in facie curice, the ptmishment is generally summary; when committed elsewhere, initial proceedings are necessary, with no- tice, and opportunity to defend. A common initial process is a rule to show cause why an attachment or warrant for contempt should not issue, of which serv- ice should be made. In a proceeding to punish for criminal contempt, personal notice of the accusation is indispensable.^ 2. The power in a legislature to determine the rules of its proceedings, and to punish for disorderly behavior, includes power to en- force its rules in the customary way — by attachment as for contempt. The necessity for the existence and exercise of this incidental power rests upon the principle of self- preservation.* There is in the Constitution no express authority for the power. Neither House of Congress is a court of judicature, as was Parliament originally. The Houses may punish for disorderly conduct or for fail- ure to attend sessions ; may decide contested elections, determine the qualifications of members, impeach ofllcers of government. Where, in an examination necessary to the performance of these duties, a witness proves contumacious, he may be fined and imprisoned; but this can never be extended to an inquiry into his private affairs, on the plea that he is a debtor to the United States — that is a matter exclusively for the judiciary.' ^Exp. Robinson, 19 Wall. 610-11 (1873), Field, J.; Fischer v. Hayes, 19 Blatch. 13, 18 (1881); Worden v. Searls, 121 U. S. 181-26 (1887): E. S. ! 725; 10 F. B. 639- ' 4 Bl. Com. 283-88. See 21 Conn. 199; 65 Ind. 508; 49 Me. 392; L. R., 9 Q. B. 224; 35 Ala. 81; 16 Ark. 384; 25 Miss 883- 37 N. H. 460; 29 Ohio, 330; 8 Oreg. 487; 13 K L 427; 29 Am. Law Keg. 81, 145, 217, 289, 361, 425 (1881). > Albright V. Lapp, 26 Pa. 101 (1886); The Queen v. Lefroy, L. E., 8 Q. B. 137-40 (1873). ' Be ChUes, 22 WaU. 168 (1874), Miller, J. ; Exp. Hol- lis, 59 Cal. 408 (1881). See generally 22 Cent. Law J. 464-66 (1886), cases. History of constructive contempt, 83 Alb. Law J. 145-47 (1886), cases. • Wheeler & Wilson Manuf . Co. v. Boyce, 86 Kan. 866 (1887); Eapalje, Cont. i 96. « 1 Kent, 286-37; 2 Story, Const §S 805-17. •Kilboum*. Tliompson, 103 U. S. 168, 181-205 (1880), cases. Miller, J. It had been alleged that Jay Cooke & Co., bankrupts, who were indebted to the United States', were interested in a "real-estate pool" in Washington, D. C, and that their trustee bad settled with the associates of the firm to the disadvantage of the creditors. The House of Representatives author ized a committee to be appointed to investigate the matter. Kilboum, being subpoenaed, appeared before the committee, but refused to give the names of the CONTENTS'. 244 CONTIGUOUS The case ot Anderson v. Dunn ' declared that rep- resentative bodies possess inherently the power to punish for contempt. For sixty years this decision stood unquestioned. The repeated and unqualified declarations of the principle by courts and text- writers are to be traced to that case. The case of ^ilboum V. Thompson seems to deny that general and unlimited power exists inherently.^ A city council is not a legislature; nor is it vested with judicial functions; and its, members are not chosen with reference to their fitness to exercise such functions. To allow it the right to imprison for refusal to answer any inquiry the whole body or one of its committee may choose to make would be a dangerous invasion of the rights and liberties of the citizen. . . The legislature cannot confer upon municipal bodies or officers, not courts of justice nor exercising judi- cial power, authority to imprison and punish without the right of appeal or of trial by jury.s CONTEIirTS. 1. The clause, in a biU of lading, "shipped in good order . . con- tents unknown," acknowledges only fair ex- ternal appearance ; it includes no implication as to quantity, quality, or condition of the article: so that a shipper must prove the actual good conditi6n of the contents.' See Carrier. 2. In the Judiciary Act of September 24, 1879, § 11, in the phrase " any suit to recover the contents of any promissory note or other chose in action," means the sum named therein, payable by the terms of the instru- ment itself.' An action to recover damages for a refusal to ac- cept and pay for merchandise purchased under an members of the pool, or to produce designated books and papers. The House ordered the speaker to issue his warrant, directed to Thompson, the sergeant-at- arms, to arrest Kilbourn, who, when brought before the House, still refused to impart the desired informa- tion. For this contempt he was committed to the custody of Thompson until he would obey the original subpoena, meanwliile to be confined in the common jail of the District. At the end of forty-five days he was released on a Jiabeas corpus^ and at once sued the speaker, the committeemen, and the sergeant-at-arms for forcible arrest, and imprisonment. The members of the House were held protected from prosecution; but a verdict for $60,000 damages was recovered against Thompson. This verdict being set aside as excessive, on the second trial $39,000 were awarded. This sum was reduced to $20,000, and paid by order of Congress, with interest, and costs. See MacArthur & Maokey, 401-38 (1883); 23 St. L. 467; Re Pacific Railway Commission, 33 F. B. 251-53 (1887). 1 6 Wheat. 204 (1831). "Exp. baltoii, 44 Ohio St. 150-53 (1886), cases. s Whitcomb's Case, 130 Mass. 183-24, 130-33 (1876), cases. Gray, C. J. * Clark' iJ. Barnwell, 13 How. 283 (1851). * Barney v. Globe Bank, 5 Blatch. 115 oral contract is a suit to recover the " contents . . of a chose in action," within the act ot March 3, 1887. The quoted words were taken from the judiciary act of 1789. Primarily they were intended to apply to com- mercial instruments, such as promissory notes, ac- ceptances, and bonds, in which the sum promised is familiarly spoken of as the "contents " of such in- strument. ^ A suit to enforce the specific performance of a con- tract is a suit to recover the contents of a chose in ac- tion, within the meaning of § 629, Rev. St." 3. In the House of Lords the "contents" are those who assent to, and the " non-con- tents " those who oppose, a bill. CONTEST.' To make the subject of litigation ; to litigate ; to dispute or resist. Contestable. Disputable; subject to re- sistance in a court; opposed to non-contest- able. Contestant. A litigant ; a suitor. To contest an election means to deny the legality thereof; to contest a will, to resist the probate of a writing alleged to be a will, — see Influence ; Issue, 3, Feigned. Some policies of insurance, by covenant on the part of the insurer, are not contestable after a certain period, as, three years, for a matter which arose prior to the end of that period. CONTESTATIO. See Lis, Contestatio. CONTEXT. See Construction. CONTIGUOUS. In actual close con- tact ; touching ; near. A relative term; referring to a building, means in close proximity to the same.* A building any particular number of feet, as twenty- five, from a detached dwelling, is not " contiguous " to it.' The charter of a water-works company provided that it should not prevent the city council from grant- ing to persons " contiguous " to the Mississippi river the privilege of laying pipes to the river for their own use. Seld, that no lot can be contiguous unless it fronts on the river or is separated only by a public highway, with no private owner intervening, or, pos- sibly, on a block or square so situated.* Compare Adjacent; Along. > Simons v. Ypsilanti Paper Co., 33 F. E. 193-94 ( Brown, J. = Shoecraf t v. Bloxham, 124 TJ. S. 730 (1888). * L. con-testari^ to call to witness. * Arkell v. Commerce Ins. Co., 69 N. Y. 193 (1877); 10 Hun, 26. ' Olson V. St. Paul, &c. Fire Insurance Co., 35 Minn. ' New Orleans Water- Works Co. v. Ernst, 33 F. R. 6 (1887), Billings, J., following Water-Works Co. v. Riv- ers, 115U. 8.674(1886), which concerned the St. Charles Hotel, five blocks from the river. Compare New Or- leans Water-Works Co. v. Louisiana Sugar Co., 135 id. 18 (1888). 1 CONTINGENCY 345 CONTINUANDO CONTINGENCY.! An event which may happen; a possibility. A fortuitous event which comes without design, foresight, or expectation. A remainder which depends upon an uncertainty is a "contingent" remainder. An expense which de- pends upon some future uncertain event is a " con- tingent " expense.'' " Contingencies," in an estimate of expenses, means expenses not yet ascertained, as yet uuimown, uncer- tain, such as may or may not he incurred." Contingency with a double aspect. Occurs where remainders are so limited that one is a substitute for the other, in the event of the latter failing, and not in derogation of the latter.' 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. Contingent. Possible; liable to occur; dependent upon an uncertainty : as, contin- gent or a contingent — damage, demand or liability, devise or legacy, estate or interest, fee or compensation, remainder, use, qq. v. Applied to a use, remainder, devise, bequest, or other legal right or interest, impUes that no present right exists, that whether a right ever will exist de- pends upon a futm*e uncertain event.* An estate will not be held contingent unless decided terms are tised, or it is necessary to infer that a con- ' tingency was meant to carry out other parts of the wm.s As a rule, contingent interests are assignable, devis- able, and descendible.' See also Absolute ; Aftee ; Cketain ; Then ; Upon, 2 ; When. CONTINUANCE. 1. After an issue or demurrer has been joined, as well as in pre- vious stages of a proceeding, a day is given, and entered upon the record, on which the parties are to appear from time to time as the exigence of the case may require. The giv- ing of this day is called the " continuance," because thereby the proceedings are con- tinued without interruption from one ad- journment to another.' 2. Adjournment, postponement, to another term of court. May be had on account of — the absence of a mate- rial witness, who has been subpoenaed, unless the op- 'L. con-tingere, to touch; to relate to, happen. 2 People V. Yonkers, 39 Barb. 272 (1863). See also 16 Op. Att.-Gen. 413; 30 Me. 3S4. s See Fearne, Cont. Eem. 373. < Jemison v. Blowers, 5 Barb. 692 (1849); Haywood u. Shreve, 44 N. J. L. 104 (1888). » Weather jead v. Stoddard, 58 Tt. 623 (1886), cases. •Kenyon t). See, 94 N. Y. 568 (1884). ' [3 Bl. Com. 316. posite party admits what such witness would testify to; inability to obtain the evidence of a witness out of the State in time for trial; detention of a party in a public service; sickness or death of a party or of counsel; commission outstanding for taking testi- mony; amendment to pleadings which occasions sur- prise; filing a bill of discovery. An afSdavit to the alleged fact constituting the ground for continuance is required. See Amendment, 1 ; Nisi. Puis darrein continuance. Since the last adjournment or term of court. A plea by which the defendant takes advantage of a matter which has arisen since he entered his original defense.! As, that the plaintiff, who was then a feme sole, has married; or that she has given a release.* In eflEect, a pleading of facts occurring since the last stage of the suit, whatever that be, provided it precedes the trial.^ Confesses the matter which was before in dispute. Not allowed" if a continuance has intervened between the time when the matter arose and when it was pleaded: for the defendant is guilty of neglect, and is, besides, supposed to rely upon his former plea. ^iTor is it allowed after a demurrer has been determined, or a verdict been given: because relief may be had by motion. 3 The appointment of a successor in office, after pro- ceedings by mandamus are begun, may be set up by a plea puis darrein continuarux. * See Continuando ; Discontinuance. 3. " Continuance in office," in a constitu- tion prohibiting the legislature from increas- ing the compensation of any public officer during such period, means continuance under one appointment.^ See Compensation, 1. CONTINUANDO. L. By continuing ; by continuance. In trespasses of a permanent nature, where the in- jury is continually renewed, the declaration may allege that the injury has been committed by continuation from one given time to another. This is called " lay- ing the action with a continuando." The plaintiff is not then compelled to bring a separate action for each day's separate offense. But where the trespass is by one or several acts, each terminating in itself, and be- ing once done cannot be done again, it cannot be laid with a continuando; yet if there be repeated acts of trespass committed (as, cutting a certain number of trees), they may be laid to be done, not continually, but at divers days and times within a given period; " or on a given day and " on divers other days and times between " that and another particular day.' 1 [3 Bl. Com. 29a. See Steph. PI. 04. > [Waterbury v. McMillan, 46 Miss. 640 (1872). a 3 Bl. Com. 290; 4 Del. Ch..S52. * Thompson v. United States, 103 U. S. 480, 483 (1880). 5 Smith V. City of Waterbury, 54 Conn. 176 '1886). •3B1. Com. 212. 'Gould. Plead. 86-96; State v. Bosworth, 54 Conn. 1 (1886): 58 N. H. 41. CONTINUINQ 316 CONTRACT CONTtNUnirG. Extending from one time or condition to another: as, a continu- ing — consideration, breach, damage, guar- anty, nuisance, qq. v. See also Presump- tion. CONTrNTTOXIS. 1. Uninterrupted ; un- intermitted; unbroken: as, a continuous adverse use; • that a custom (g. v.) must be continuous; a continuous carriage, passage, trip, or voyage. 2 See Carrier, Common; Lading, Bill of. 2. As applied to an " injury," recurring at repeated intervals, of repeated occurrence ; of the same soirt of damnification an actual continuous mischief would be.^ Compare CONTESUANDO. Non-continuous. A grant of a right or easement (g. v.) in lapdis " non-continuous" when the use of the premises by the grantee wiU be Only intermittent and occasional, and not embrace the entire beneficial occupation and improvement of the land.* CONTRA. L. Against; in opposition to ; to the contrary effect ; contraiy. Standing alone (1) denotes opposition ot counsel to matters urged in argument, as " A. B., contra; " (2) indicates cases or authorities which do not agree with others cited. See Con, 3; Countbe. Contra bonos mores. Against good morals, q. v. Contra formam statuti. Against the form (g. v.) of the statute. Contra pacenx. Against the peace, q. v. Contra proferentem. Against the pro- poser. See Verbum, Verba fortius, etc. CONTEABANB.5 Contrary to a ban — a public proclamation. Contraband of war. Prohibited by the laws of war. Describes goods which a neu- tral may not furnish to a belligerent. Articles manufactured and primarily or ordinarily used for military purposes in time of war are always contraband. Articles which may be used for war or peace according to circumstances are contraband only when actually destined to the use of the belliger- > 59 Ind. 411 ; 4 De G. J. & S. 199; 18 F. E. 115. ' 4 Saw. tl4; 18 Weekly Dig. (N. Y.) 375. » Wood V. Sutcliffe, 8 Eng. L. & Eq. 220 (1851). * Jamaica Pond Aqueduct Corporation v. Chandler, 9 Allen, 164 (1864), Bigelow, C. J. ; Fetters v. Humph- reys, 18 N. J. E. 262 (1867). * Contrabannum, in mediseval Latin, is merces banno interdictas. " The sovereign of the country made goods contraband by an edict prohibiting their impor- tation or their exportation,"— Woolsey, Int. Law, S 192; ib. H 192-99. See Ban. ent. Articles exclusively used for peaceful purposes are not contraband, though liable to seizure for viola- tion of blockade or siege. Contraband articles con- taminate non-contraband, if belonging to the same owner. In ordinary cases the conveyance of contra- band articles attaches only to the freight.' Provisions, and money, destined for hostile use, are contraband.^ Treaty provisions enumerate the articles which shall be deemed contraband. CONTRACT.' 1, n. (1) An agreement, upon sufiioient consideration, to do or not to do a particular thing.* A compact between two or moreparties.* An agreement in which a party under- takes to do, or not to do, ,a particular thing.* In the Constitution, as elsewhere, the agreement of two or more minds, for con- siderations proceeding from one to the other, to do, ■ or not to do, certain acts. Mutual assent to the terms is of the very essence.' An interchange, by agreement, of legal rights.* A deliberate engagement between compe- tent parties, upon a legal consideration, to do, or to abstain from doing, some act.' A promise from one or more persons to another or others, either made in fact or created by the law, to do or refrain from some lawful thing ; being also under the seal of the promisor, or being reduced to a judi- cial record, or being accompanied by a valid consideration, or being executed, and not being in a form forbidden or declared inade- quate by law.'" In its widest sense includes records and specialties, but is usually employed to designate simple or parol contracts; i. e., not only verbal and unwritten con- tracts, but all contracts not of record or under seal. This is strictly the legal signification, inasmuch as the existence of a consideration which is necessary to constitute a parol agreement is not requisite, or rather ■ The Peterhoff, 5 Wall. 68 (1866), Chase, C. J. 2 The Commercen, 1 Wheat. 387 (1816); United States V. Dickelman, 92 U. S. 626 (1875); 1 Kent, 138^3. ^ L.con-iroAere, to draw together: for minds to meet. * 2 Bl. Com. 442, quoting' some previous author. » Fletcher v. Peck, 6 Cranch, 136 (1810), Marshall, C. J. « Sturges V. Crowninshield, 4 Wheat. 197 (1819), Mar- shall, C. J. See also ib. 656, 682; 11 Pet. *572; 109 U. S. 288; 113 id 464; 71 Ala. 432; 34 La. An. 45; 30 Tex. 422; 4 Tex. Ap. 321. ' Louisiana v. Mayor of New Orleans, 109 U. S. 288 (1883), Field, J.; Chase v. Curtis, 113 id. 464 (1885). » 1 Whart. Contr. § 1. » Story, Contr. § 1 ; also 1 Pars. Contr. 6. '"Bishop, Contr. § 22, where definitions from other books are quoted. CONTRACT 347 CONTRACT is presumed, in obligations of record and in special- ties.' There must be a person able to contract; a person able to be contracted with; a thing to be contracted for; a sufficient consideration; words clearly express- ing the agreement; and the assent of both parties to the same thing in the same sense. ^ A contract is resolvable into proposal and accept- ance; the proposal not to bind beyond a reasonable time, and, until accepted, may be conditional. The place and time of acceptance are the place and time of the contract. The assent must be definite; non- refusal is not enough.^ See Understanding. Com- pare Transaction. (3) The language, written or unwritten, which evidences a mutual engagement or exchange of promises. Does not, like "deed," "bond," or "promissory note," necessarily import a written instrument.* It applies to agreements obligating both parties, hence not to bills and notes.* Generally, "agreement" is the weaker, more ver- nacular word, "contract" the more technical and forcible. " Agreement " is more apt to be used of an engagement formed by actual negotiation, but not em- bodied in the most solemn formality of writing, seal, etc.; "contract," where the intention is to embrace the whole ribge of entorcible obligations created by mutual consent. " Bargain " seems to be used like " contract " in importing a consideration and full legal obligation; like "agreement" in Implying actual ne- gotiation and assent rather than definite legal for- malities. In the best use " contract " does not embrace obli- gations which society imposes for reasons of general expediency, only obligations founded upon assent of parties; nor a mere moral obligation, unrecognized by law, deducible from a promise unsupported by a consideration; nor a judgment; nor, generally, a charter, nor a license from government; nor is a pub- lic office the subject of a contract. Marriage is rather a civil or social status than a. contract. Obligations in which there is no apparent mutuality have been excluded: mutuality of assent and of act being of the essence of a contract. Formerly, lawyers spoke of " obligations " (mean- ing bonds, in which "obliged" is a formal term), " covenants," and " agreements " — the last word be- ing used as " contract " is now used." 3, V, adj. Agreed to ; stipulated ; under- taken; incurred. A "debt contracted " may include a debt founded upon a tort.*^ •Story, Contr. § 1; also 1 Parsons, Contr. 6; Bishop,' Contr. S§ 103, 140, 151, 162. 2 Justice u Lang, ii N. Y. 497 (1870). a 1 Whart. Contr. Chap. I. 4 Pierson v. Townsend, i Hill, 551 (1842). SafEord v. WyokofE, 4 Hill, 456 (1842). » [Addison, Contr. *l-2. Am. ed., A. & W. (188S). note ] See also Bishop, Contr. §§ 191-92, 107. ' Be Radway, 3 Hughes, 631 (1877); State v. O'NeU, 7 Oreg. 142 (1879). Contractual. Arising out of a contract : as, a contractual relation. Whence nonrcon- tractual. Besides the general distinctions noted be- low, contracts are : accessory, when assuring the performance of another contract; alea- tory, when performance depends upon an uncertainty: as, an annuity, a contract of insurance; consensual, when dissolvable by mere consent ; dependent, when made to rest upon some connected act to be done by an- other — opposed to independent, in which the acts have no inter-relation ; parol, when verbal or in writing but not under seal — op- posed to sealed contract, which is a specialty ; personal, when relating to personalty, or else requiring some action of a person — opposed to real, which regards realty, q. v. ; quasi, when the relation existing is analogous to that of a contract, and the law attaches simi- lar consequences; separable or severable, when divisible, not entire, q. v. ; simple, when evidenced neither by a specialty nor by a record: specialty (q. v.), when under seal ; verbal, when simple or parol. See also FiDU(3iARY; Hazardous; Maritdie; Oner- ous; Quasi; Wagering. More general and important distinctions are the following : Absolute contract. An agreement to do or not to do something at all events. Conditional contract. An executory con- tract, the performance of which' depends upon a condition — precedent or subsequent.! Bilateral contract. Two promises given in exchange for and in consideration of each other. Unilateral contract. A binding promise not in consideration of another. A bilateral contract becomes unilateral when, one of the promises is fully performed." In a suit upon a unilateral contract, it is only where the defendant has had the benefit of the considera- tion, for which he bargained, that he can be held bound. ^ Divisible contract. A contract the con- sideration of which is, by its terrm, suscepti- ble of apportionment on either side so as to correspond to the unascertained considera- tion on the other side. Entire contract. 1 Story, Contr. §§ 39-40. ! Langdell, Sum. Contr. §§ 163, 12; Bufler v. Thomp- son, 92 U. S. 415 (1875); 6 Col. 324. 8 Richardson v. Hardwick, 106 U. S. 255 (1882), cases. CONTRACT 248 CONTRACT A contract the consideration of which is en- tire on both sides. The entire fulfillment of the promise by either is a condition prece- dent to the fulfillment of any part by the other. 1 Examples of a divisible contract are an engagement to pay a person the wortli of Ills services as long as lie will do certain work; or, to give a certain price for every bushel of so much grain as corresponds to a sample. The criterion is, the extent of the consider- ation on either side is indeterminate until the con- tract is performed.' A contract by which one subscribes for a copy of a book, to bq puljlished, delivered, and paid for in parts, is entire. 2 Special contract. (1) A contract under seal ; a specialty, q. v. (2) A contract incidental to another as the original or principal ; as, for extra work or material in the construction of a house. See Dermott v. Jones, page 249. (3) A contract specially entered into, or with peculiar provisions in distinction from such ordinary terms as, in the absence of a particular agreement, the law supplies. As, that made with an employee for compensation, and that with a common carrier (g. v.) in limitation of his liability at common law. Express contract. When the agree- ment is f orinal, and stated either verbally or in writing. Implied contract. When the agreement is matter of inference and deduc- tion. The distinction betrfveen them is in the mode of proof. In an " imphed contract " the law supplies that which, not being stated, must be presumed. to have been the agreement intended.^ Express contracts are sometimes said to be of rec- ord, by specialty, or by simple contract. See Debt, Of record, etc. ; Judgment. An "express contract " exists-where the terms of the agreement are openly uttered and avowed at the time of the making; as, to pay a stated price for certain goods. An " implied contract " is suchas rea- son and prejudice dictate, and which therefore the law presumes that every man undertakes to perform; as, to pay the worth of services requested of another; to pay the real value of goods delivered without agree- ment as to price. A species of implied contract, annexed to all other contracts, cdnditions, and cove- nants, is, that if one party fails in his part of the agree- ment he will pay the other party any damages thereby sustained.* An implied contract is co-ordinate and commensu- rate with duty^ and whenever it is certain that a man • Story, Contr. §§ 25-26; Pars. Contr. 517; 3 McCrary, 169; 3 id. 130, 144-46, cases. 2 Barrie v. Earle, 144 Mass. 4 (1886). > Story, Contr., § 11 ; Leake, Contr. 11, * 2 Bl. Com. 443; 3 id. 158-66. ought to do a particular thing the law supposes him to have promised to do that thing. ^ In that large class of transactions designated in the law 'as implied contracts, the assent or convention which is an essential ingredient of an actual contract is often wanting. Thus, if a party obtain the money of another by mistake, it is hisduty to refund it, from the general obligation to do justice which rests upon all persons. 3 A contract may be inferred when it is found that there is an agreement and an intention to create a con- tract, although that intention has not been expressed in words of contract. A. contract is also sometimes said to be implied when there is no intention to create a contract, and no agreement of parties, but the law has imposed an obligation which is enforced as if it arose ex contractu^ instead of ex leg'e.^ The distinction between express and implied con- tracts may well be indicated by saying that the former are actual, the latter constructive, imputed by law rather because justice requires treating parties as if under contract than because of any real supposition that they have contracted. * Joint contract. A contract by which the parties together are bound to perform the obligation or are entitled to receive the benefit of it. Several contract. A contract by which the individuals are separately con- cerned. Where there is more than one person on either side the contract will be construed as a joint right or ob- ligation, unless it be made several by the terms of the contract.* See further Joint. Executed contract. A contract whose object has been performed. Executory contract. One in which a party binds him- self to do, or not to do, a particular thing.6 A contract may either be "executed,'" asif Aagrees to change horses with B, and they do it immediately, in which case the possession and the right are trans- ferred together; or it may be " executory," as if they agree to change next week. In the latter case the right only vests, and their reciprocal property in each other's horse is "in actioii; " for a contract executed conveys a chose in possession, a contract executory, a chose in action.^ A " contract executed " is one in which nothing re- mains to be done by either party, and where the trans- action is completed at the moment the agreement is made. An " executory contract " is a contract to do some future act. A contract to sell personalty is executory, while a completed sale by delivery is ex- ' Illinois Central E. Co. v. United States, IB Ct. CI. 333 (1880), Drake, C. J. See also 55 Vt. 417; 2 Kent, 460. = Pacific Mail Steamship Co. v. JolifEe, 3 Wall. 457 (1864); Milford v. Commonwealth, 144 Mass. 65 (1887). > ' Inhabitants of Milford v. Commonwealth, 144 Mass. 65 (1887), Field, J. ' Addison, Contr, *3, Am. ed., A. & W. (1888), note. 6 Story, Contr. §§ 53-65. « [Fletcher v. Peck, 6 Cratch, 136 (1810), Marshall, C. J. 'aBl. Com. 448. CONTRACT 349 CONTRACT ecuted; but as to which is meant the language may not always be decisiTe. An undertaking may be of the nature of both.i In an " executoiy contract " it is stipulated by the agreement of minds, upon sufficient consideration, that something is to be done or not to be done by one or both of the parties. Only a slight consideration is necessary. On the other hand, a contract is "ex- eciUed " where every thing that was to be done is done, and nothing remains to be done; as, a grant actually made. This requires no consideration to sup- port it: a gift consummated is as valid as anything can be.'* An executed contract stands for and against all parties. To the extent that an invalid contract is not performed, it is voidable.' While a special contract remains executory the plaintiff may sue upon it. When it has been fully ex- ecuted according to its terms, and nothing remains to be done but to pay the price, he may sue upon the contract, or in indebitatus assumpsit,a.jidrelj upon the common counts. In either case the contract will de- termine the rights of the parties. But when he has ■ been guilty of fraud, or has willfully abandoned the work, leaving it unfinished, he cannot recover in any form of action. When he has in good faith fulflUed the contract, but not in the manner or not within the prescribed time, and the other party has sanctioned or accepted the work, he may recover upon the com- mon counts in indebitatus assumpsit. In that case he must produce the contract upon the trial, and it will be applied as far as it can be traced; but if, by the fault of the defendant, the cost of the work or mate- rial has been increased, so far the jury may depart from the contract prices. In such case the defendant may recoup any damages sustained by plaintiff's de- viations from the contract, and not induced by him- self, both as to the manner and the time of perform- ance.* Pre-contract. An engagement which renders a person unable to enter into another legal contract; in particular, a contract of marriage which renders void a subsequent marriage.' Sub-contract. A contract, by one who has engaged to do a thing, with another who agrees to do all or a part of that thing. See CONTBACTOB. A contract, procured by fraud, or for an immoral purpose, or against an express enactment, or in gen- eral restraint of trade, or contraiy to public policy, will be declared void. 1 Story, Contr. §§ 22-23. = Farrington v. Tennessee, 95 U. S. 683 (1877), cases, Swayne, J. 3 Thomas v. West Jersey E. Co., 101 U. S. 85 (1879). 4 Dermott v. Jones, 3 Wall. 9 (1864), Swayne, J. ; Chi- cago V. Tilley, 103 U. S. 146, 154 (1880), cases; Cutter v. Powell, 2 Sm. L. Cas. 1-60, cases; Chitty, Contr., 612; 49 Conn. 203; 30 K&n. 338. 4 1 Bl. Com. 435; Bishop, Mar. & D. § 53. For cases other than those within the Statute of Frauds, there is no prescribed form. At common law, damages for breach of contract is the only remedy; in equity, specific performance (g, v) may be had. Where one party refuses to perform his part the 'other has an immediate right of action, and need not wait for the time of performance, i See Value, Market. A mere assertion that the party will be unable or will refuse to perform his contract is not sufScient; it must be a distinct, unequivocal, absolute refusal to perform the promise, and be treated and acted upon as such by the promisee. ^ The complaint must aver a promise and a breach thereof.' It is well settled that the plaintiff may recover as a part of the damages for the breach of a special con- tract such profits as would have accrued from the contract as the direct and immediate result of its ful- fillment.' " These are part of the contract itself, and must have been in the contemplation of the parties when the agreement was entered into. But if they are such as would have been realized from an inde- pendent and collateral undertaking, although entered into in consequence and on the faith of the principal contract, they are too uncertain and remote to be con- sidered pai't of the damages." ^ That is, the damages " must be such as might naturally be expected to fol- low the violation of the contract; and they must be certain in their nature and as to the cause from which they proceed. The familiar rule that the damages must flow directly and naturally from the breach is a mode of expressing the first; and that they must be the proximate consequence, and not be speculative or contingent, are modifications of the lust."' In cases of executory contracts for the purchase of personalty, ordinarily the measiue of damages is the difference between the contract price and the market price when the contract is broken. This rule may be varied where 1 Gran v. McVicker, 8 Hiss. 18-80 (1874), cases, Drum- mond, J.; Burtis u. Thompson, 43 N. Y. (Hand), 346 (1870); Cort v. The Ambergate, &c. E. Co., 6 E. L. & E. 230, 234-37 (1851), cases. a Benjamin, Sales, 2 ed. § 568. Approved, Smoot's Case, 15 Wall. 48 (1873), cases; Dingley v. Oler, 117 U. S. 503 (1886), cases; Johnstone v. Milling, 16 Q. B. D. 467, 470, 478 (1886), cases. = Du Brutz V. Jessup, 70 Cal. 75 (1886). * Masterton v. City of Brooklyn. 7 HUI, 67 (1845), Nel- son, C. J.,— the leading case; United States v. Speed, 8 Wall. 84 (186S); United States v. Behan, 110 U. S. 342 (1884) ; Insley v. Shepard, 31 F. E. 873 (1887). In Master- ton's case it was also said that "the plaintiff may re- cover the difference between the cost of doing the work, and what he was to receive for it, making a reason- able reduction for the less time engaged, and the re- lease from the care, trouble, risk, and responsibility attending the full execution of the contract." ' Fox V. Harding, 7 Cush, 522 (1851), Bigelow, J. « Griffln v. Colver, 10 N. Y. 489 (1858). See also Booth V. EoUing Mill Co., 60 id. 492 (1875), cases; White v. Miller 71 id. 133 (1877), cases; BUlmeyer v. Wagner, 91 Pa. 94(1879); 48 id. 407; 11 Atl. Eep. 300; Kendall Bank Note Co. V. Commissioners, 79 Va. 573 (1884). CONTRACT 250 CONTRACT the contract is made in view of special circumstances in contemplation of both parties.^ When a party sues for a part of an entire indivis- ible demand, and recovers judgment, he cannot sub- sequently maintain an action for another part of the samp demand.'^ Where a writing is the sole repository of an agree- ment, its construction is a matter of law for the court. Words are to be taken in the meaning usually attached to them. But a true interpretation requires that they be applied to the subject-matter, the situ- ation of the parties, and the usual and known course of business. The common meaning of expressions, otherwise clear, may thus be modified by parol, with- out invasion of the rule which makes the writing the only proper evidence of the agreement. ^ In construing contracts, especially those of a dis- tinct class (like policies of insurance), in regard to which, owing to long and constant use of forms sub- stantially alike, there has grown up a common and general use of language which may be said to consti- tute jus et norma loquendi, — it is not safe to adopt the mere etymological meaning of words, nor the def- inition which lexicographers give them. It is often necessary to ascertain whether a word or phi-ase has acquired a special or peculiar meaning, or whether it is used with any restricted signification by authors or jurists or those conversant with the business to which it relates.'* ' Western Union Tel. Co. v. Hall, 134 U. S. 444, 453 (1888), cases, Matthews, J. The plaintiff brought suit fa- damages for the non-delivery of a message in- sti-ucting the addiessee to buy 10,003 barrels of petro- leum, the price of which, when the message should uavc been delivered, was Sl-1''' per barrel, but when i:eLeived had advanced to §1.35 per barrel. The ad- dressee d^d not purchase. Held, that the plaintiff, having suffered no actual loss, could recover only nominal damages, not the contingent profit he might have made by buying and selling. In Hadley v. Baxendale, 9 Exch. *3M (1854), it was said "the damages for which compensation is al- lov-'ed are such as naturally and ordinarily flow from tiip breach; such as may be supposed to have entered into the contemplation of the pai'ties when they made the contract, or such as, according to the ordinary course of things, might be expected to follow its viola- tion." The rule as here expressed has been frequently 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 Wis 330 (1887), cases; and cases anie. ■'In an action for a breach of contract to deliver iron the plaintiff recovers the difference between the con- tiact price and the market price at the date of the re- fusal to fulfill the contract." Roberts v. Benjamin, 124 U. S. 04 (1888), cases, Blatchford. J. ■■^Baird v. United States, 92 U. S. 433 (1877); Warren V. Comings, 6 Cush. 103 (1850), cases. 3 Palmer v. Clark, 106 Mass. 387 (1871), Colt, J. See Bishop, Contr. §§ 379-82, cases. ■• Dole V. New Eng. Mut. Ins. Co., G Allen, S Bigelow, C. J. Contracts are to be construed according to their plain meaning to men of understanding, and not ac- bording to forced or artificial constructions.' The court seeks to place itself in the place of the parties, and to view the circumstances as they viewed them.2 ' Where the meaning is not clear the court takes the light of the circumstances in which the contract was made, and the practibal interpretation the parties by their conduct may have given it.^ When the language is ambiguous, the practical in- terpretation given by the parties is entitled to great, if not controlling, influence. ^ Such practical construction will always prevail over the literal meaning.* It is a fundamental rule that the courts may look not only to the language employed, but to the subject- matter and the surrounding .circumstances, and avail themselves of the light the parties possessed when the contract was made. ^ Written instruments are always to be construed by the court, except when they contain technical words or terms of, art, or when the instrument is introduced in evidence collaterally, or where its effect depends not merely on the construction and meaning of the in- strument but upon extrinsic facts and circumstances, in which case the inference to be drawn from It must be left to the jury. . It is for the jury to say what is the meaning of peculiar expressions, but it is for the court to decide what is the meaning of the con- tract. ^ " f It is the business of the courts to enforce contracts, not to make or modify them.^ The law of contracts, in its widest extent, may be regarded as including nearly all the law which regu- lates the relations of human life. All social life pre- sumes it, rests upon it: out of contracts, express or implied, declared or understood, grow all rights, all duties, all obligations, all law. Almost the whole pro- cedure of human life is the continual f ulflllment of contracts. . Implied contracts are co-ordinate and commensurate with duty, with what a man ought to do. These, in particular, form the warp and woof of actual life. To compel the performance of contract duties, the law exists. The well-being of society may be measured by the degree in which the law construes contracts wisely; eliminating whatever is of fraud or error, or otherwise wrongful; and carrying them into their full and proper effect and execution. These re- sults the law seeks by means of principles; that is, by 1 Lowber v. Bangs, 2 Wall. 737 (1864), cases; Nash v. Towne, 5 id. 699 (1866), cases. ^ Goddard v. Foster, 17 Wall. 142 (1872), cases, Clif- ford, J. ; Dewelley v. Dewelley, 143 Mass. 513 (1887): 20 Pick. 503. 3 Chicago V. Sheldon, 9 Wall. 54 (1869); Topliff u Top- liff, l:.'2 U. S. 131 (1887). ^ District of Columbia v. Gallaher, 124 U. S. 5t0 (1888); Rowell V. Doggett, 143 Mass. 487(1887). "^Merriam v. United States, 107 U. S. 441 (1882), cases, Woodq, J. See also United States v. Gibbons, 109 id. 200, 203 (1883). oThe Harrimau, 9 Wall. 173 (1869); 10 id. 171. CONTRACTOR 351 CONTRIBUTION means of truths, ascertained, defined, and so expressed as to be practical and operative.' See further Aqbeement; Akt, 3; Assent; Assion, 8; ■ Assumpsit; Certainty; Compact; Condition; Con- SIDEBATION, 2; CONTRACTOR; CONTRACTUS; COVENANT; CoNVENTio; Custom; Damages; Description, 4; Disa- BiLiTYi Duress; Duty, 1; Earnest; Exception, 1; Fraud; Grant; Implied; Influence; Insanity, 8 (4); Leoal; Let, 1 (3); Letter, 3; License, 8; Herqeb,'8; Novation; Oblioation; Offer, 1; Option; Pact; Parol, 2; Partnership; Party, 2; Performance; Place, Of contract; Possible; Privity; Promise; Ratification; Readino; Repohm; Res, Perit, Utres; Rescission; Revfval; Sale; Satisfactory; Stultify; Subrogation; Sunday; Time; Trade; Usds, Utile; Value; Void; WArvEB; War. CONTRACTOR. The primary meaning is one who contracts ; one of the parties to a bargain; he who agrees to do anything for another. One who contracts with a government to furnish provisions or supplies or to do work ; one who agrees to construct a portion of a work, as, a raiboad.^ St.-nding alone, or unrestrained by the context or particular words, may mean a sub-contractor or a person remotely engaged under a contract and doing the work, as well as an oiiginal contractor. ^ Although, in a general sense, every one who enters into a contract may be called a " contractor," yet that word, for want of a better, has come to be used with special reference to a person who. in the pursuit of an independent business, undertakes to do specific jobs of work for other persons without submitting himself to their control in respect to the petty details of the work. . . The true test is to ascertain whether one who renders the service does so in the course of an in- dependent occupation, representing the will of his em- ployer only as to the result of his work and not as to the means by which it is accomplished. . If he submits himself to the discretion of his employer as to the details of the work, fulfilling his will not merely as to the result but also as to the means by which that result is to be attained, the contractor becomes a servant in respect to the work.^ The ordinaiy relation of principal and agent, master and servant, does not subsist in the case of an inde- pendent employee or contractor who is not under the immediate direction of the employer.* See Phillips Construction Co. v, Seymour, under CovENAiiT; Respondeat. 1 1 Pars. Contr. 1-5; 2 Bl. Com. 443: 3 Law Quar. Rev. 166-79 (1887). 'Kent V. N. T. Central R. Co., 18 N. Y. 631 (WVj). = Mundt V. Sheboygan, &c. R. Co., 31 Wis. 4.57 (187.'), Dixon, C. J. ; 12 N. Y. 631 ; B How. Pr. 434 ; 23 Minn. S24. •Shearman & Redf., Neg. §§ 76-77: quoted, 71 Me. 332; 7 Lea, 373; 57 Tfex. 510. See also Carter v. Berlin Mills Co., 58 N. H. 52-58 (1876), cases; Edmundson v. Pittsburgh, &c. R. Co., Ill Pa. 319 (1885); 86 id. 159; 17 Mo. 131. • Cunningham v. International R. Co., 51 Tex. 511 CONTRACTUS. L. A drawing together : a meeting of minds ; a contract. See Forum ; Locus. ' Ex contractu. By virtu'j of a contract. Applied to a right or a duty founded upon a contract relation. Opposed, ex delicto: by force of a wrongful act, or tort. Whence actions ex contractu and ex delicto. See Action, 8; Delictum. The civil law refers the greater part of rights and duties to the head of obligations ex contractu and quasi ex contractu : express and implied contracts.' CONTRADICT. See Parol ; Rebut. CONTRARY. A verdict " contrary to law " is contrary to the principles of law ap- plicable to the facts which the jury were to try. 2 See Against. CONTRAVENE. To conflict, oppose. Whence contravention. A right which militates with another right is some- times called a " contravening equity." s CONTRIBUTION. The share provided by or due from one of several persons to as- sist in discharging a common obligation or in advancing a'common enterprise.* Contributive; eontributory. Helping to bring about a result; directly contribut- ing to an injury: as, contributory negli- gence, g. V. " Contributory " is also used in the sense of contributor: a person liable to contri- bution to the assets of a company which is being wound up, 3. v. A right to contribution exists where a debt owed by several persons jointly is collected from one; when one of two or more sureties pays the sum for which both or all are bound ; when one co-devisee or co-dis- tributee pays a charge upon land devised or descended; when a partner pays more than his share of the firm's debts; where recourse to private property is had to pay the debt of an insolvent corporation; where a co- insurer pays the whole loss; where a party-wall or a division-fence is constructed or repaii-ed.* Equal contribution to discharge a joint liability is not inequitable, even as between wrong-doers, al- though the law will not, in general, support an action to enforce it where the payments have been unequal.'' (1879), cases. See also Robinson v. Blake Manuf. Co., 143 Mass. .o:B (1887); 27 Conn. 274; 45 111. 453; 3 Gray, 349; 4 Allen, 13S; 11 id. 419; 125 Mass. 232; 66 N. Y. 184; 46 Pa. 2i:J; 5" id. 374; 9 31. & W. "'73. 1 2 Bl. Com. 413. " [Bosseker v. Cramer, 18 Ind. 45 (1863); Candy u Hanmore, 7U id. 128 (1881). 2 101 U. S. 73;). 4 [Abbott's Law Diet. * See 1 Story, Eq. §§ 484-305. «Selz V. Unna, 6 Wall. 336 (1867), CUfford, J.; 28 Conn. 455; 1 Bibb, 562. CONTROL 253 CONVERSATION The remedy in equity is more effective; as, between co-sm'eties,^ But there is "no contribution between wrong- doers." This rule applies appropriately only to oases where there has been intentionat violation of law, and where the wrong-doer is to be presumed to have ■ known that the act was unlawful.^ It fails when the injury grows out of a duty resting primarily upon one of the parties, and but for his negligence there would have been no cause of action against th^e other. . . A servant is liable to his master for the damages re- covered against him in consequence of the negligence of the servant. 3 A municipality, made to pay damages for an injury resulting from the negligence of a private citizen, may recover the amount from the citizen.* See Av- erage, General; Joint. CONTROL. See Prohibition; Regulate. In a contract by a railroad company concerning the roads which it might '* control," held to refer to the immediate or executive control which it exercised by officers and agents acting under instructions f roin the board of directors.^ The " control " is a necessary incident to the " reg- ulation " of the streets of a city. •* CbNTEOLLEB. See Comptroller. CONTROVERSY. Any issue, whether of a civil or criminal nature ; a case, q. v. A dispute arising between two or more persons.' A civil proceeding; as, that the judicial power of the United States shall extend " to Controversies to wliich the United States shall be a Party; — to Contro- versies between two or more States," etc.« A controversy between citizens is involved in a suit whenever any property or claim of the parties capable of pecuniary estimation is the subject of litigation, and is presented by pleadings for judicial determina- tion." See further Case, 2, Cases, etc.; Dispute; Matter; Probate; Remove, 2. CONTUMACY.io Refusal or neglect to appear or to answer in a court ; contempt for ■ White, Ld. Cas. CO; 1 Ld. Cas. Eq. 100; 13 Am. Law Reg. 539. 2 Bailey v. Bussing, 28 Conn.'468-61 (1S59), cases; The Atlas, 93 U. S. 315 (1876), cases; The Hudson, 16 F. B. 1B7 (1883), cases; 13 Bradw. 665. = Men-yweather v. Nixon, 3 Sm. L. C. 483, 480, cases; Chicago City v. Eobbins, 3 Blacl!;, 418 (1862); Eobbins V. Chicago City, 4 Wall. 657 (1866). « Clinton, &c. R. Co. v. Dunn, 59 Iowa, 619 (1882), cases; Cooley, Torts, p. 145. ^ Pullman Palace Car Co. v. Missom-i Pacific R. Co., 3 McCrary, 647 (1882). s Chicago Dock Co. v. Garrity, 115 111. 164 (1886). 'Barber v. Kennedy, 18 Minn. 326 (1873); 33 id. 360; 77 Va. 125. » Constitution, Art. Ill, sec. 2;. 3 Dall. 431-32; 109 U. S. 477; Stoiy, Const. § 1668. s Gaines v. Fuentes, 93 U. S. 20 (1876), Field, J.; Searl V. School District, 124 id. 199 (1888), cases, Matthews, J. '° L. contumax, stubborn, obstinate. the order of a court or legislature. Whence contumacious. See Contempt. CONUSANCE. See Cognizance. CONUSOR. See Recognizance. CONVENIENTLY. See Soon. Whatever it is the duty of an ofiicer to do. in the performance of service enjoined by law, and which may be accomplished by the exercise of reasonable diligence, that he can "conveniently "do.' CONVENTIO. L. A coming togefher : agreement, engagement. ^ Conventio vinoit legem. Agreecient takes the place of the. law : the express vjn- derstanding of parties supersedes such under- standing as the law would imply. Parties are permitted to malce law for themselves where their agreements do not violate the express pro- visions of any municipal law nor injuriously affect the interests of the public* Setting aside the application of a general rule of law is not intended. ^ CONVENTION. A general term for any mutual engagement, formal or informal. See CoNVENTio. Conventional. Agreed upon; created by act of parties — by agreement ; opposed to legal — created by construction and oper- ation of law: as, a conventional estate fo;- life ; * a conventional community, q. v. There are postal conventions between nations; and constitutional conventions by delegates chosen to frame constitutions, q. v. Compare Reconvention. CONVERSATION. 1. The etymolog- ical meaning (which see, below) seems to be preserved in the offense termed criminal conversation: adultery regarded as an injury to the husband, entitling him to damages in a civil action.5 The abbreviation " crim. con." has acquired a fixed and universal signification which the courts will take notice of without proof.* The dev^loplnent of the word has been substantially as follows: L. conversation frequent use, habitual abode, intercourse: conversari, to turn to often, to dwell, live with. (1) Manner of living; habits of life; behaving, be- havior; conduct; life. 1 Guerin v. Reese, 33 Cal. 297 (1867). = Little Eock, &c. E. Co. u. Eubanks, 48 Ark. 467 33 N. Y. 249. "Story, Agency, § 368; 14 Gray, 446; 52 Pa. 96; 10 Wall. 644. * 2 Bl. Com. 120. ' 3 Bl. Com. 139. ' Gibson v. The Cincinnati Enquirer, 5 Cent. Law J. 381 (1877); Same v. Same, 3 Flip. 136 (1877). See Wales V. Miner, 89 Ind. 118 (1883); 15 Am. Law Reg. 451-60 (1876), cases. CONVERSION 253 CONVERSION As, in the expressions: " of upright conversation; " • " the filthy conversation at the widced," = — ».<;., their lascivious life; "the conversation o£ the wives chaste conversation." ^ (2) Intimate relation, association; companionship; familiar intercourse. (8) Sexual acquaintance; illicit intimacy. 3. Familiar discourse ; oral communica- tion. See Communication; Colloquium; DECLARATION, 1. CONVERSION". Changing into another state or condition. 1. Of partnership debts:, the changing of their original character and obligation with the consent of the creditors ; so that, if they are originally joint debts of all the partners, they become, by consent, the separate debts of one partner ; or if they are the separate debts of one partner, they become, by like consent, the joint debts of all the partners.* 3. In equity, money which, according to a will or agreement, is to be invested in land is regarded as realty ; and land which is to be converted into money is regarded as money, and treated accordingly. * Whence the doctrine of eq,mtable con- version; whence, also, reconversion: the -change of property, once converted, into other property of the former species. The application to deeds and wills of the principle which treats that as done which ought to be done.® A conversion will be regarded as such only for the purposes of the will, unless a different intention is dis- tinctly indicated.' An implied direction to sell land, for the payment of legacies, works an equitable conversion. The im- mediate effect of such direction is to break the de- scent, by vesting the estate in the trustee clo Lhed with power to sell, and to confer on the legatees, not an in- terest in the land, but simply a right to the proceeds of the sale, in designated proportions,— which is a mere chose in action.^ When the purpose for which the conversion was to take place totally fails, the property is regarded as being what it is in fact, no conversion then taking place. " Toaestablish a conversion, the will must direct it absolutely or out and out, irrespective of all contin- gencies. The direction to convert must be positive ' The King's Bible (1011) — Psalms, xxxix, 14. i'2Pet. ii, 7. > 1 Pet. iii, 1-3. 4Story, Partn. §369. » Seymour v. Freer, 8 Wall. 214 (1868). • Chew V. Nicklin, 45 Pa. 87 (1863); De Wolf v. Law- son, 61 Wis. 477-78 (1884), cases; Efflngeru Hall, 81 Va. 107 (1885). » Johnson v. Holifleld, 88 Ala. 127-28 (1886), cases. » Beatty v. Byers, 18 Pa. 107 (1851). and explicit, and the will, it it be by will, or the deed, it it be by contract, must decisively fix upon the land the quality of money. The direction to sell must be imperative."' A naked or merely discretionary power to sell, un- less, perhaps, coupled with an interest, does not effect a conversion,^ Where land is to be sold, and legatees interested in the proceeds elect to take it as such, it then becomes boimd by liens." Th^re is no conversion where a widow elects to take against a will directing a sale.* To ' effect a reccmversion, an election to take the land, instead of the proceeds, must be by an unequivo- cal acton the part of all persons interested." Intention is the governing rule as to conversions.* 3. Any unauthorized dealing with an- other's personalty as one's own. The exercise of dominion and control over property inconsistent with and in defiance of the rights of the true owner or party having the right of possession..' This may be actual, and either direct or constructive. It is not necessary that there be a manual taking of the thing, nor that the defendant has applied it to his own use. The one inquiry is: Does he exercise a do- minion over it in exclusion or in defiance of the plaint- iff's right? K so, that is a conversion, be it for his own or another's use.^ Trover and conversion. The action for damages for a conversion, maintainable by him who has the right to immediate posses- sion.9 The property may be a deed, a negotiable security, money? a copy of a record, an untamed animal re- claimed, trees or crops severed, liquors adulterated, or goods confused. Includes using a thing without right, or in excess of license; misuse — detention, delivery in violation of ' Anewalt's Appeal, 42 Pa. 416 (1862), cases; Jones v. Caldwell, 97 id. 45 (1881), cases; Hammond v. Putnam, no Mass. 235 (1873); 8 Yes. 388; 19 id. 424. 2 Bleight V. Bank, 10 Pa. 131 (1848); Chew v. Nicklin, 45 id. 84 (1863); Dundas's Appeal, 04 id. 335 (1870). ' Brownfleld v. Mackay, 27 Pa. 320 (1856) ; Brolasky v. Gaily, 51 id. 513 (1806); Evans's Appeal, 63 id. 183 (1869). < Hoover v. Landis, 76 Pa. 354 (1874). « Beatty v. Byers, 18 Pa. 107 (1851); Evans's Appeal, eupra; 8 Va. Law J. 513 (1884). " See generally Fletcher v. Ashburaer, 1 Brown, C. C. •497(1779): 1 W. & T. Lead. Cas. Eq. 1118-71, cases; 1 Story, Eq. §§ 562-71, 790-93; 2 id. §§ 1212-30; 3 Kent, 230, 476; Craig v. Leslie, 3 Wheat. 577-78, 583 (1818); 10 Pet. •563; 6 How. 233; 4 Del. Ch. 72; 15 B. Mon. 118; 27 Md. 563; 3 Gray, 180; 63 N. C. 332, 381 ; 5 Paige, Ch. 172; 6 id. 448; 13 E. I. 507. ' Badger v. Hatch, 71 Me. 565 (1880), Barrows, J. 8 Bristol V. Burt, 7 Johns. '»258 (1810), Per curiam. •3Bl.Com.152; 127 Mass. 64; 1 Sm. L. O.230; 89Ind. 245. CONVEYANCE 354 CONVEYANCE orders, or non-delivery and even a wrongful sale, by a bailee; improper seizure or sale by an officer; not an accidental loss, nor mere non-feasance.' An original unlawful taking is conclusive; but where the original taking is lawful, and the detention only is illegal, a de- mand and refusal to deliver is necessary and must be shown. 8 The action of trover and conversion, though origi- nally for damages against one who bad found and ap- propriated the goods of another, now reaches all cases where one has obtained such goods by any means, and has sold or used them, without assent, or has refused to deliver them on demand. 3 The measure of damages is the value of the prop- erty at the time of the conversion, with legal interest.'*, As to what is conversion of public moneys by pub- lic ofacers, see Eevised Statutes, §§ 6488, 5496. See further Detinue; Replevin; Trover. COlfVEYANCE.s A carrying from place to place; also, transmission, transfer, from one person to another. 1. Transportation, — the act, or the means employed. Public conveyance. A vessel or vehicle employed for the general conveyance of pas- sengers. Private conveyance. A vessel or vehicle belonging to and used by a private individual.^ An omnibus used to carry, free of charge, guests of a hotel to and from railroad stations is not a " pub- lic" Conveyance.'' See Vehicle. 2. Transfer of title to realty ; and, the in- strument by which this is done. Properly, the term does not relate to a disposition of personalty, although sometimes so used,^ as see under JiYaudulent Conveyance. The conveyance or transfer of title to vessels is regulated by the act of July 29, 1850, re-enacted into Eev. St. as § 4192. To "convey" real estate is, by an appro- priate Instrument, to transfer the legal title from the present owner to another.' 1 3 Bl. Com. 162, etc., ante. " 1 Chitty, PI. 179; 126 Mass. 132; 2 Greenl. Ev. § 644. 3 Boyce v. Brockway, 31 N. Y. 493 (1865), cases; 61 id. 477; 68 id. 521; 10 Johns. 172. ■ See also 9 Ark. 55; 2 Cal. 571; 19 Conn. 319; 10 Cush. 416; 2 Allen, 184; 36 Me. 439; 85 N. C. 340; 39 N. H. 101; 48 id. 406; 10 Oreg. 84; 9 Heisk. 715; 39 Vt. 480; L. R, 7 Q. B. 029; 9 Ex. 89. < Grimes v. Watkins, 59 Tex. 140 (1883); 46 id. 402; 6 id. 45. As to limitation of actions, see 21 Cent. Law J. 245-47(1885), cases. *F. convier, to transmit; L. conviare, to accompany. "Ripley V. Insurance Co., 16 Wall. 338 (1872), Chase, C. J.; Oswego v. Collins, 38 Hun, 170 (1886). ' City of Oswego v. Collins, 88 Hun, 171 (1886). * Dickei-man v. Abrahams, 21 Barb. 561 (1854). ' Abendroth v. Town of Greenwich, 29 Conn. 365 (1860); Edelman «., Yeakel, 27 Pa. 29 (1856). In a deed, is equivalent to " grant.'V See Cove- nant, 1. Imports an instrument under seal,^ May include a lease,' or a mortgage.* Is simply a deed which passes or conveys land from one man to another,"* or ccnveys the property of lands and tenements from man to man.** Evidences an in- tention to abandon the land.^ Involves a transfer of a freehold estate.^ Absolute conveyance. A conveyance entirely executed ; not conditional, as in the case of a mortgage, q. v. Adverse conveyance. A conveyance opposed to another conveyance ; one of two or more conveyances passing or pi-etending to pass rights which are inconsistent with each other. As, two or more transfers of absolute ownership in the same piece of land to different persons. See Pos- session, Adverse. Conveyances at common law. Some of these may be called original or primary, those by means whereof the benefit or estate is created or first arises; others, derivative or secondary, those whereby the benefit or estate originally created is enlarged, re- strained, transferred, or extinguished.' Original are: feoffment, gift, grant, lease, exchange, partition. Derivative are: release, confirmation, sur- render, assignment, defeasance — each of which pre- supposes some other conveyance precedent.^ Conveyances under the Statute of TTses. Such as have force and operation by virtue of that statute, i" They are: covenant to stand seized to uses, bargain and sale, lease and release, deed to lead or declare the use of another more direct conveyance, deed or revo- cation of a use.^' At common law, words of conveyance were give, grant, bargain and sell, alien, enfeoff, release, confirm, quitclaim, qq. v. The meaning of these terms has been somewhat modified.i^ 1 Patterson v. Carneal, 3 A.. K. Marsh.* 621 (1821); Lambert v. Smith, 9 Oreg. 193 (1881). ^Livermore v. Bagley, 3 Mass. 510-U (1807). ' Jones V. Marks, 47 Cal. 246 (1874). * Odd Fellows' Savings Bank v. Banton, 46'cal. 607 (1873); Babcook v. Hoey, 11 Iowa, 377 (1860); Kokettu. Buckner, 45 Miss. 245 (1871); Eowell v. Williams, 64 Wis. 639 (1882). See N. Y. E, S. 762, § 38; 2 id. 137, § 7. » Brown v. Fitz, 13 N. H. 285 (1842); Klein v. McNa- mara, 54 Miss. 105 (1876). • 2 Bl. Com. 309. ' 2 Bl. Com. 10. 8 Hutchinson v. Bramhall, 42 N. J. E. 385 (1886). 1 2 Bl. Com. 309, 324; 9 Oreg. 187. >» i Bl. Com. 309, 327. " 2 Bl. Com. .338-39. " Eichardson v. Levi, 67 Tex. 367 (1887). CONVEYANCE 255 CONVEYANCE The forms of conveyance are prescribed by stat- utes in many .States; but such statutes are gener- ally deemed directory only, not mandatoi'y; and the common-law modes are recognized as effectual. Conveyance by bargain (g. v.) and sale is the mode ordinarily practiced. Whatever be the form or nature of the convey- ance, if the grantor sets forth on the face of the in- strument, by way of recital or averment, that he is possessed of a particular estate in the premises, which estate the deed purports to convey, or if the possession is affirmed in the deed in express terms or by neces- saiy implication, the grantor and persons in privity with him, are estopped from denying that he was so possessed. The estoppel works upon the estate, and binds an after-acquired title. * See ABASnoN, 1 ; Con- dition; Deed, 3; Delivery, 4; Estoppel; Infldenob; Eecoed; Tbansfer; Undeb and Subject. Fraudulent conveyance. In a general sense, any transfer of property, real or per- sonal,2 which is infected with fraud, actual or constructive; more specifically, such transfer of realty by a debtor as is intended or at least operates to defeat the rights of his creditors. Voluntary conveyance. A transfer without valuable consideration. Celebrated statutes upon this subject, adopted by the States, are: (1) 13 Elizabeth (1571), c. 5, which de- clares void conveyances of lands, and also of goods, made to delay, Mnder, or defraud creditors; unless " upon good [valuable] consideration, and bona fide," to a person not having notice of such fraud. (3) Z! Eliza- beth (1585), c. 4, made perpetual by 39 Eliz. (1597), c. 18, s. 31, which provides that voluntary conveyances of any estate in lands, tenements, or other heredita- ments, and conveyances of such estates with clause of revocation at the will of the grantor, are also void as against subsequent purchasers for value. The effect of the last statute is, that a person who has made a voluntary settlement of landed property, even on his own children, may afterward sell the property to any purchaser, who, even though he has notice of the set- tlement, vrill hold the property; but, otherwise, if the settlement is founded on a valuable oonsideration.s These statutes are to be liberally construed in sup- pression of fraud.* The object of 13 Elizabeth was to protect creditors from frauds practiced under the pretense of discharg- ing a moral obligation toward a wife, child, or other relative. It excepts the bona fide discharge of such obligation. Hence, a. voluntary conveyance, as to creditors, is not necessarily void.* The object of 37 Elizabeth was to give protection to subsequent pur- chasers against mere volunteers under prior convey- ances. As between the parties such conveyances are binding.' 1 Van Rensselaer v. Kearney, 11 How. 323 (1850), cases; French v. Spencer, 31 id. 340 (1858); Apgar v. Christophers, 33 F. E. 803 (1887), Wales, J. » See liivermore v. Bagley, 3 Mass. *510-11 (1807). 'Williams, Eeal Prop. 76. « 1 Story, Eq. |§ 353-53, 362; 4 Kent, 463-64. "IStory, Eq. §425. In England, all voluntary conveyances are void as to subsequent purchasers, with or without notice, al- though the original conveyance was bona fide, upon the ground that the statute infers fraud.' In New York, only voluntary conveyances, originally fraudulent, are held to be within the statute.^ In Massachusetts, a conveyance, to be avoided, must have been fraudulent, not merely voluntary, at its incep- tion. ^ In Pennsylvania, the grantor must have in- tended, by his voluntary conveyance, to withdraw his property from the reach of his future creditors; * any such creditor must prove that fraud on him was in- tended: a man need not provide for mdebtedness he does notanticipate and which may never occur.* And the Supreme Court of the United States holds, what is the settled doctrine generally, that if a person, natural or artificial, solvent at the time, without actual intent to defraud creditors, disposes of his property for an inadequate consideration, or makes a voluntary conveyance of it, subsequent creditors are not in- jured; * that a conveyance for value (as for marriage) will be upheld, however fraudulent the purpose of the grantor, if the grantee had no knowledge thereof.' A deed made to prevent a recovery of damages tor a tort is fraudulent and void.' Conveyances to defraud creditors are also indictable ; expressly made so by 13 Elizabeth, o. 5, § 3." The conveyance to a wife, in payment of a debt owing by her husband, is not voluntary, nor fraudulent as to other creditors; but there must have been «. previous agreement for repayment.'" See further Declaration, 1; Fraud; Hinder; Pos- session, Fraudulent; Preference; Settle, 4. Mesne conveyance. A conveyance be- tween others ; an intermediate transfer. Reconveyance. A transfer' of realty back to the original or former grantor. Conveyancer. One who makes a busi- ness of drawing deeds of conveyance of land, and, perhaps, of examining titles. One whose business it is to draw deeds, bonds, mortgages, wills, writs, or other legal papers, or to examine titles to real estate.'' ' 1 Story, Eq. § 426. 2 Sterry v. Arden, 1 Johns. Ch. *269-70 (1814): s c. 13 Johns. 'SDl (1815); 6Cowen, 603; 8 id. 406; 8 Paige, 1C5. 3 Deal V. Warren, 3 Gray, 456, 451 (1854). * McKibbin v. Martin, 64 Pa. 356 (1870). "Harlan v. Maglaughlin, 90 Pa. 297-98 (1879), cases; Hoak's Appeal, 100 id. 62 (1882), cases. • Graham v. La Crosse, &c. R. Co., 103 U. S. 153 (1880), cases, Bradley, J. ' Prewit V. Wilson, 103 U. S. 34 (1880), cases. See Barbour v. Priest, ib. 393 (1880); Clark v. KilUan, ib. 706 (1880); 17 F. E. 425-28, cases; Sexton ti. Wheaton, 8 Wheat. 242 (1823); 1 Am. L. C. '36, 55; Twyne's Case, 1 Sm. L. C. *33, 39; 18 Am. LawEeg. 137. 8 Johnson v. Wagner, 76 Va. 590 (1882), cases. » Eegina v. Smith, 6 Cox, Cr. C. 31, 36 (18.53). '» Bates V. McConnell, 31 F. E. 588 (1887); i6. 591, note. See generally 24 Am. Law Eeg. 489-99 (1885), cases; 23 Cent. Law J. 134 (1886), cases,- remedy by execution. " Eevenue Act, 13 July, 1866, § 9: 14 St. L. 118. CONVICT 356 CONVICT Conveyancing. That branch of the law ■which treats of transfers of realty. Inclufles the examinations of titles, and the prep- aration of instruments of transfer. In England, Scotland, and some of our larger cities, it is a highly artificial system of law, with a distinct class -of prac- titioners. ^ CONVICT.2 1, V. To find guilty of a ci-iminal offense, by verdict of a jury. 2, n. One who has been found guilty of a crime; in particular, one who is serving a sentence for the commission of a crime. Convicted. Found guilty of the crime whereof one stands indicted: which may accrue from his confessing the offense and pleading guilty, or by his being found so by verdict of his country. ^ A man is "convicted " when he is found guilty or confesses the crime before judgment had.' Incapable of holding office or testifying because " convicted of crime " intends a verdict of guilt and judgment thereon. ^ Conviction. 1. Used to designate a par- ticular stage of a criminal prosecution triable by a jury, the ordinary legal meaning is, the confession of the accused in court, or the vei-dict returned against him by the jury, which ascertains and publishes the fact of his guilt. <> "Judgment" or "sentence" is the appropriate word to denote the action of the court before which the trial is had, declaring the consequences to the con- vict of the fact thus ascertained." See Sentence. The finding by the jury that the accused is guilty; but, in legal parlance, often denotes the final judg- ment of the court. ^ The act of convicting or overcoming one ; in ci'iminal procedure, the overthrow of the defendant by the establishment of his guilt according to some known legal mode — a plea of guilty or verdict of a jury. 8 The term may be used in such connection as to have a secondary or unusual meaning, which would include the final judgment of the court. = 1 Bouvier's Law Diet. ^ L. con-vincere. to completely overcome. ' [4 BI. Com. 363. < Shepherd v. People, S5 N. Y. 406 (1863), cases; 1 Bish. Cr. L. § 323. 'Faunoe v. People, 61 111. 313 (1869); Smith v. State, 6 Lea, 639 (1881). "Commonwealth v. Lockwood, 109 Mass. 325-40 (1873), cases. Gray, J. ; Dwar. Stat., 8 ed., 683. ' Blauf us V. People, 69 N. Y. 109 (18""), cases, Fol- ger, J.; Schiffer v. Pruden, 64 id. 53 (1876); 5 Bush, 304; 48 Me. 137; 3 Mo. 603; 35 Gratt. 853; 13 Ct. CI. 301. 8 United States v. Watkinds, 7 Saw. 91-93 (1881), Deady, J. In many eases refers to a finding of guilt by a veiv diet or plea of guilty, and not to the sentence in Eiddi- tion.i Opposed, acquit, acquitted, acquittal, q. v. Former conviction. A plea that the accused has already been tried and convicted of the offense charged. Opposed, former acquittal. Second' convictions, or even second trials, after legal conviction or acquittal, are not allowed. The pleas of autrefois convict and autrefois acquit are grounded upon the universal maxim of the common law that no man is to be brought into jeopardy of his life more than once for the same offense. The defense must be pleaded, and it must be alleged and proved by the former record that the conviction or acquittal was legal, and based on the verdict of a jury duly im- paneled and sworn, else the plea will be subject to demurrer. 2 A plea which shows that the former sentence has been reversed for error is not a good bar." See fur- ther Jeopardy. Compare Adjudication, Former. Summary conviction. (1) Such sen- tence as may be pronounced by a court with- out the intervention of a jury. At common law, peculiar to punishment for con- tempts, g. V. (3) A trial of an offense against the excise or revenue laws, determined by the commis- sioner of the particular department or by a justice of the peace.* (3) A sentence pronounced by a commit- ting magistrate, without a hearing and ver- dict by a jury. Tliis is what is generally meant. It is provided for by statute, for the punishment of the lighter offenses; and intended to secure the accused a speedy trial, as well as to relieve society and the higher courts of the annoyance of jury trials in petty cases. But the pro^ ceeding is in derogation of the constitutional right of trial by jury, and statutory directions are to be strictly pursued. Appeal to -a court having a jury is allowed, within a short period, as five days; so that, in reality, these convictions are only submitted to by offenders. See further Summary. See also Indictment; Juky, Trial by; Vagkant. 2. Firm belief. See Abiding ; Doubt, Rea- sonable. 1 Quintard v. Knoedler, 63 Conn. 487-88 (1885) ; Bishop, Stat. Cr § 348; Whart. Cr. Pr. & PI. § 935. Qucere. In a prosecution, alleging a " former conviction," do not these words denote "final judgment," and can they be predicated of a suspended judgment? — White o. Commonwealth, 79 Va. 611, 615 (1884). 2 Coleman v. Tennessee, 97 U. S. 636-31 (1878), cases, Clifford, J. 'Cooley, Const. Lim. 336-28, cases; 1 Bish. Cr. L. §§ 651-80; Whart. Cr. PI. § 435; Moore v. State, 71 Ala. 308 (1883), cases: 4 Cr. Law Mag. 429. * See 4 Bl. Com. 280-83. CONVINCE 357 COPY CONVINCE. To overcome or subdue: to satisfy the mind by proof, i See Doubt, Reasonable. COOLnSTG TIME. Time for passion to subside and reason prevail ; time for reflec- tion. A man, when assailed with violence or great rude- ness, is inspired with » sudden impulse of anger, which puts him upon resistance before he has had time for cool reflection. If, during that period, he at- tacks his assailant with a weapon likely to endanger his life, and death ensues, it is regarded as done through heat of blood or violence of anger, and not throueh malice." See Halice; Pbovocation. COOPER. See Manufacturer. CO-OPERATIVE. See Association; Trades-union. CO-ORDINATE. See Jurisdiction, 3. COPARCENARY. The estate held where lands of inheritance descend from the ancestor to two or more persons. ' Coparceners. Co-heirs are called co- parceners, and parceners : they may be com- pelled to make "partition.'' All parceners make but one heir. They have the unities of interest, title, and possession of joint- tenants. No unity of time is necessary; for the heir of a parcener and siu-vlving parcener are coparceners. Parceners always claim by descent; joint-tenants by purchase. They sue and ai-e to be sued jointly. They may not have an action for waste against each other: that can be prevented by partition. Bach has a distinct moiety, with no survivorship. Possession being sev- ered by partition, they become tenants in severalty; when one aliens his share they become tenants in common. Where they divide amicably each elects a share by seniority, which is a personal privilege. Under a writ m partition, the sheriff, by the verdict of a jury (or commissioners) divides and assigns the parts.' In the old sense, includes males and females; hi modem English usage, is limited to females.* Of comparatively little practical importance at present. Withus, heirs take as tenants in common.' See Hotch-pot; Paetitiok; Tenant. COPARTNER. See Partner. COPPERS. See Coin. COPY. A true transcript of an original writing.* A reproductio n or transcript of language, 1 Evans v. Eugee, 57 Wis. 636 (1883). = Commonwealth v. Webster, 5 Gush. 308 (1850), Shaw, C. J. See also Abemethy v. Commonwealth, 101 Pa. 323 (1882); 71 Ala. 485; 3 Gratt. 594; Whart. Horn. 448; Auss. Cr. 667. 3 2 Bl. Com. 187-90; 3 id. 227. * 4 Kent, 866. « 1 Washb. R. P. 415. • Dickinson v. Chesapeake, &c. E. Co., 7 W. Va. 412 (1874): Bouvier. (17) written or printed, or of a design, device, picture, or work of art.i Compare Tran- script. Certified or ofB.ce copy. A copy made and attested by the officer who is intrusted with the custody of an original writing, and authorized to make copies. Every document of a public nature, as to which in- convenience would be occasioned by a removal, and which the party has a right to inspect, may be proved by a duly authenticated copy." Examined copy. A copy compared with the original, or with an official record thereof. Exemplified copy. A copy attested under the seal of the proper court; an ex- emplification (g. V.) of record. An examined copy of a record is evidence where the removal of the original would inconvenience the public. Fraud or mistake therein can be readily de- tected.' See Record, Judicial. A copy of a will may be received in probate.* Where an original is lost, or withheld after notice to produce, a copy will be received.* To be evidence, a copy must also be complete.' In making examined copies, the comparing wit- nesses should change hands, so that the Ustening wit- ness may in turn become the reading witness.' Such copy should be proved by some one who has compared it with tlie original.' The rule that a copy of a copy is not admissible evidence is correct in itself, when properly understood and limited to its true sense. The rule properly ap- plies to cases where the copy is taken from a copy, the original being still in existence and capable of bemg compared with it, for then it is a second remove from the original; or where it is a copy of a copy of a record, the record being in existence, by law deemed as high evidence as the original, for then it is also a second remove from the record. But it is quite a dif- ficult question whether it applies to cases of second- ary evidence where the original is lost, or the record of it is not deemed as high evidence as the original, or where the copy of a copy is the highest proof in existence.' A letter-press copy is receivable, the original being lost. While secondary at best, a copy from such a copy, the original being lost, has been allowed." I Abbott's Law Diet. = Stebbinsv. Duncan, 108 U. S. 60 (1882), cases; Shutes- bury V. Hadley, 133 Mass. 247 (1882), oases; Booth v. Tieman, 109 V. S. 208 (1883). ' 1 Greenl. Ev. § 91. I I wmiams, Ex. 364. » 1 Greenl. Ev. § B08. « Commonwealth v. Trout, 76 Pa. 382 (1874). ' 1 Whart. Ev. § 94. 'McGinniss v. Sawyer, 63 Pa. 287 (1869). « Winn V. Patterson, 9 Pet. *677 (1836), Story J. 10 See Goodrich v. Weston, 102 Mass. 363 (1889), cases; 1 Cush 189- 7 Allen, 561; 3 McCrary, 169; 37 Conn. 555; 57 Ga 50- 73IU.161; 18 Kan. 546; 19 La. An. 91 ; 85 Md. 123 ■ 44 N Y 178; 1 Whart. Ev. 81 90-109, cases. COPYHOLD 358 COPYRIGHT COPYHOLD. Lords of manors, from time out of mind, having permitted villains to enjoy their possessions without interrup- tion, in a regular course of descent, the com- mon law, of which custom is the life, gave the villains title to prescribe against the lords, and, on performance of the same serv- ices, to hold the lands under the lord's will, that being in conformity with the customs of the manor as preserved and evidenced by the rolls of the courts-baron.' In England, to-day, a copyhold, in a gen- eral way, distinguishes a customary tenure from a freehold. COPYRiaHT. An exclusive right to the multiplication of the copies of a produc- tion. 2 The sole right of printing, publishing and selling one's literary composition or book.s A copyright gives the author or the pub- lisher the exclusive right of multiplying copies of what he has written or printed.* The word may be understood in two senses. The author of a literary composition has an undoubted right at common law to the piece of paper on which his composition is written, and to the copies he chooses to make of it for himself or others. . . The other sense is, the exclusive right of multiplying copies : the right of preventing others from copying, by printing or otherwise, a literary work which the author has published ; the exclusive right of printing a published work, that being the ordinary mode of multiplying copies. * The word is used indifferently for eom- mon-law copyright: copyright before pub- lication; and statutory copyright: copy- right after publication.- It is also made a synonym for "literary property'' — the ex- clusive right of an owner publicly to read or exhibit his work ; but this is not strictly cor- rect.* A oqpyright secures the proprietor against the copy- ing by others of the original work, but does not confer upon him a monopoly in the intellectual conception which it expresses. The law originated in the recog- nition of an author's right to be protected in the manu- Jg Bl. Com. 96, 90, 147; Williams, R. P. 333. " [Stephens v. Cady, 14 How. 530 (1858), Nelson, J. See R. S. § 4952. ' [Stowe 1). Thomas, 2 Wall. Jr. 667 (1853), Grier, J. * Ferris v. Hexamer, 99 U. S. 675 (1878), Waite, C. J. " JefEerys v. Boosey, 4 H. L. C. 919-20 (1854), Parke, B. ; Cappell V. Purday, 14M. & W. 316 (1845), Pollock, C, B. • See Drone, Copyr. 100. script which is the title of his literary property. It does not rest upon the theory that, the author has an exclusive property in his ideas or in the words in which he has clothed them. . No person, for example, can acquire an exclusive right to appropriate the in- formation contained in a translation, chart, map or survey. . Frequently, it is necessary to determine whether the defendant's work is the result of his own labor, skill, and use of materials common to all, or is an appropriation of the plaintiff's work, with colorable alterations and departures intended to disguise the piracy. He may work on the same original materials, but he cannot evasively use those already collected and embodied by the skill, industry, and expenditure of another.' The earliest evidence of the recognition of copy- right is found in the charter of the Stationers' Com- pany, granted by Philip and Mary, and in the decrees of the court of star-chamber. 'The first statute was 8 Anne (1710), c. 19; passed for the protection and en- couragement of learned men. This statute gave the au- thor and his assigns the sole liberty to print his work for fourteen years; the author to be entitled to an ex- tension for another like term. But, the better opinion is that the common law, before that statute, admitted the exclusive right in the author, and his assigns, to multiply copies of his own original literary composi- tion, for injunctions to protect this right were granted in eqiiity. At all events, it has long been settled that the common-law right was taken away by the statute, and, hence, that it has existed, if at all, by force of some subsequent statutory provision.^ With us, before the adoption of the Constitution, it may be doubted whether there was any copyright at common law. Some of the States had passed laws recognizing and securing the right. All power in the States to legislate upon the subject became vested ia Congress. "The Congress shall have power . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Invent- ors the Exclusive Kight to. their respective Writings and Diseoveries." ' Under this authority various gen- eral acts have been passed, from that of May 31, 1790, to that of Jtme 18, 1874; all which, as re-enacted, con- stitute §§ 4948 to 497I of the Revised Statutes, known as the title or chapter on " Copyrights." " Any citizen of the United States or resident therein, who shall be the author, inventor, designer, or proprietor of any book, viap, chart, dramatic or musical composition,, engraving, cut, print, or photo- graph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the Jme arts, and the executors, administrators, or the assigns of any such person shall, upon complying with the provision of this chapter, have the sole liberty of printing, re- ' Johnson v. Donaldson, 18 Blatoh. 289-90 (1880), cases, Wallace, J. See also Be Brosuahan, 18 F. R. 64-65 » See 2 Bl. Com. 406-7; 3 Kent, 373; MUlar v. Taylor, 4 Burr. 2408 (1769); Stevens v. Gladding, 17 How. 454 (1834); 18 id. 165; 2 Story, 100; 5 McLean, 32; 6 id. 188; 16 Alb. Law J. 445, 465 (1877); Drone, 1. » Constitution, Art. I, sec. 8, cl. 8. COPYRIGHT 259 COPYRIGHT printing, publishing, completing, copying, executing, finishing, and vending the same; and, in case of a dramatic composition, of publicly performing or rep- resenting it, or causing it to be performed or repre- sented by others." R. S. § 4958. " The printing, publishing, importation, or sale of any book, map, chart, dramatic or musical composi- tion, print, cut, engraving, or photograph, written, composed, or made by any person not a citizen of the United States nor resident therein," is not to be con- strued as prohibited. R. S. §4971. No mention being here made of paintings, drawings, chromos, statues, ~ statuary, models, or designs, there would seem to be nothing to prevent a resident owner from copyright- ing any such, although the work of a foreigner. ' See further Proprietor, 1. "Engraving, cut, and print" CR. S. § 4958) apply only to pictorial illustrations or works connected with the fine arts; and no prints or labels designed to be used for any other article of manufacture shall be en- tered under the copyright law, but may be registered in the patent office.^ See Print. Manufacturers of designs for molded decorative articles, titles, plaques, or articles of pottery or metal, subject to copyright, may put the copyright mark upon the back or bottom of such articles, or in such other place upon them as it has heretofore been usual for manufacturers to employ, s The period is twenty-eight years from the time of recording the title; with a right of renewal for four- teen years, in the author, inventor, or designer, or Ijis widow or children, being still a citizen or resident. K S. §§ 4953-54. A printed copy of the title (not title-page) of the book, map, chart, etc., or a description of the paint- ing, drawing, etc., or a model or design of the work of art, as the case may be, is to be deposited with or mailed to the Librarian of Congress; and, within ten days after pubhcation, two complete copies of the best edition of each book or* other article is also to be sent to him.* The print .of a type-writer will be accepted. See Title, 2, Book. ' Notice of copyright must be given by some imprint on the title,— leaf, face, or front-piece. The shortest form is "Copyright, 1888, by A. B." The penalty for an unauthorized notice is one hundred dollars. "Registered" is not the equivalent of "copy- right." ' "Right of translation reserved," or " All rights re- served," secures the right to translate or to dramatize the production. See Drama; Reserve, 8. Assignments must be in writing, and recorded within sixty days. A separate copyright must be taken out for each 1 Drone, Copyr: 238. But see Yuengling v. Schile, 20 Blatch, 46S-63 (1888). 2 Act 18 June, 1874: 1 Sup. R. S. 41. 3 Act 1 Aug. 1882: 22 St. L. 181 ; amending E. S. §§ 4968, 959. ■"See Merrell v. Tice, 104 U. S. 561 (1881); Donelly v. Ives, 13 Rep. 890 (S. D. N. Y., 1882); 1 Blatch. 618. 'Higgins V. KeufEel, 30 F. R. 627 (1887). volume or number of a periodical, or variety, or de- scription. In the case of a painting, statue, model, or design, a photograph of " cabinet " size must accompany the description and application. No affidavit or formal application is required. At present, 1888, the fees are; fifty cents each for recording a title, description, etc., for a certificate, or a duplicate certificate; and one dollar for each as- signment, i The right is infringed when another person pro- duces a substantial copy of the whole or of a material part of the thing copyrighted. ^ To constitute an invasion of copyright it is not necessary that a large portion of a work be copied in form or in substance. It so much is taken that the value of the original is sensibly diminished, or the labors of the original author substantially, to an in- jurious extent, appropriated, that is an infringement. Courts look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale or diminish the profits, or supersede the object of, the original work.^ Evidence of the coincidence of errors, the identity f of inaccuracies, affords strong proof of copying; so does coincidence of citation, and identity in plan and arrangement. Equity may not relieve where the amount copied is small and of little value, where there is no bad motive, where there is a well-founded doubt as to the legal title, or long acquiescence or cul- pable neglect in seeking redress. A copyright thus differs from a patent-right, which admits of no use at all without license.* Recent decisions afford more ample protection to copyright than the earlier ones ; they restrict the priv- ilege of subsequent writers within narrower limits.*' ^ A production, published under a nom de plume, and not copyrighted, becomes public property; and the use of the assumed name is not a trade-mark which will protect against republication.^ An action for the penalty for infringement, pro- vided by R. S. I 4965, abates by the death of the de- fendant.® See further Abridge; Art, 2; Book, 1; Chart; Compile; Composition, 1; Dedication, 3; Directories; Identity, 2; Letter, 3; Manuscript; Photograph; Piracy, '2; Report, 1 (2); Review, 3; Science; Se- ctrKK, 1; Translation; Usos, Ancipitis, Utile, etc. Compare Patent, 8; Trade-mark. lUpon application to the Librarian of Congress, printed directions for securing a copyright wUl be fur- nished free of charge. 'Perris V. Hexamer, 99 U. S. 674 (1878). sFolsom V. Marsh, 2 Story, 116(1844); Lawrence v. Dana, 4 Cliff. 81-83 (1869), cases. * Lawrence v. Dana, 4 Cliff. 74-75, 80 (1869), cases; R. S. §§ 4964-65. 'Clemens ("Mark Twain") v. Belford, 11 Biss. 461 (1883): 15 Rep. 227; 14 F. R. 720. « Schreiber v. Sharpless, 17 F. R. 589 (1883). See gen- erally ib. 59.3-603, cases. R. S. §§ 4964-67, providing penalties for infringements, explained,— Thornton v. Schreiber, 124 U. S. 613-16 (1888), Miller, J. CORAM S60 COEPOEAIION CORAM. L. Before ; in the presence of. Coram nobis. Before us. Coram vobis. Before you. Designate, the first, a writ of error de- signed to review proceedings before the same court which is alleged to have committed the error; and the second, a writ for a review by a higlier court. See further Error, 3. Coram non judiee. Before one not a judge; by a court without jurisdiction. See further Judex, Coram. COED. One hundred and twenty-eight cubic feet. A contract for the sale of wood or bark by the cord calls for such number of cubic feet.' CORDIALS. See Liquor. CORN. See Grain. COEIfER. In the language of gambling speculation, when an article of commerce is so engrossed or manipulated as to make it scarce or plenty in the market at the will of the gamblers, and its price thus placed within theirpower.'^ See Combination, 3. CORNERS. See Four. CORODY. See Pension, 3. CORONER.' 1. An officer who has prin-' cipally to do with pleas of the crown, or such wherein the king is more immediately con- cei-ned.i 2. A county officer who inquires into the causes of sudden or violent deaths, while the facts are recent and the circumstances un- changed.5 The lord chief justice is the chief coroner of all England; and there are usually four coroners for each county. The office is of equal antiquity- with that of sheriff; was ordained with his, to keep the peace, when the earls gave up the wardship of the county. Much honor formerly appertained to the office, which might be for life. According to Blackstone, the duties of the ofttee, which are principally judicial, are largely defined by 4 Edw. I (1276), and consist in inquiring (whence coroner's inquest) when any person is slain, or dies suddenly, or in prison, concerning the manner of his death. This must appear upon view of the body, at the place where death happened, by a Jury of fom^ to six persons. If any person be found guilty of homi- cide the coroner ia to commit him to prison for further trial, and to inquire as to his property, which is for- » Kennedy v. Oswego, &c. E. Co., 67 Barb. 167 (1867). See Buffalo v. Q'Malley, 61 Wis. 258 (1884). i s Kirkpatrick v. Bonsall, 72 Pa. 158 (1873), Agnew, J. 3 L. coronator; coi' 1 Bl. Com. 407, 123. J2^ « Providence Bank v. BilUngs, 4 Pet. *m2 (1830), Marshall, C. J. ^ [Pembina Mining Co. v. Pennsylvania, 12S U. S. 189 (1888), Field, J. « [2 Bl. Com. 37. See also 4 Ark. 351 ; 40 Ga. 637; 76 111. 573; 6 Kan. 253; 40 N. H. 578; 1 Ohio St. 648; 45 Wis. mi; 1 Hill, N. Y., 620. sConst. N. Y., 1849, Art. 8, § 3; Cal., 1849, Art. 4, §33; Mich., 1850, Art. 15, § U; Kan., 1859, Art. 12, § 6; Minn., 1857-58, Art. 10, § 1. 8 1 Abbott, 291 ; Falconer v. Campbell, 2 McLean, 195 (1840); Oliver v. Liverpool, &c. Ins. Co., 100 Mass. 538 (1868): 10 Wall. 566 (1870). 'Fargo V. Louisville, &c. E. Co., lOBiss. 277 (1881). . Among the most important are immortality and indi- ' viduality: " properties by which a perpetual succes- sion of many members are considered as the same, and may act as a single individual." ' The members and their successors are as one per- son in law, with one will — that of the majority; and with prescribed rules which take the plac^ of natural laws.' The sovereign's consent is necessary to the erection of a corporation. With respect to corporations which exist by force of the common l^w, as, the king him- self and bishops, this consent is implied; so, also, as to corporations, like the city of London, whose charter rests on prescription. His consent is expressly given by act of parliament or by charter. He may grant the power to a subject as his agent." The powers of a corporation aggregate are: to have perpetual succession; to sue and be sued; to hold lands; to have a common seal; to make by-laws; — with all the rights necessarily incident to these gen- eral powers. * The duty of a corporation is to act up to the end or design for which it was created. To enforce this duty all corporations may be " visited "—by the founder or his representative in the ca^e of a lay corporation; by the endower, his heirs or assigns, in the case of an eleemosynary corporation.* A corporation is dissolved by a statute assented to; by the natuTEil death of all its members; by sur- render of its franchises; by forfeiture of its charter, through negligence or abuse of its franchises.' The objects for which corporations are created are such as the government wishes to promote. They are deemed beneficial to the coimtry ; and it is this benefit that constitutes the consideration of the grant.' The United States may be deemed a corporation; ' so may a State; ' and so, a county. All corporations were originally modeled upon a state or nation; whence they are still called " bodies politic." ^' See Municipal and Public Corporation. The species of corporations are the following: Aggregate corporation. Consists of many persons united together into one so- ciety, and is kept up by a perpetual succes- sion of members, so as to continue forever. Corporation sole. Consists of one person only and his successors, incorporated in order to give them legal capacities and advantages, ' Dartmouth College v. Woodward, 4 Wheat. 636 (1819k 97 U. S. 666; 101 id. 83; 1 Bl. Com. 408. 2 1 Bl. Com. 468. ' 1 Bl. Com. 472-74. As to names of corporations, see 23 Cent. Law J. 531 (18£6), cases. ' I Bl. Com. 475-78. ' 1 Bl. Com. 480. » 1 Bl. Com. 485. 'Dartmouth College v. Woodward, 4 Wheat. 637 (1819); 101 U. S. 84 « United States u Hillegas, 3 Wash. 73 (1811). "Indiana v. Woram, 6 Hill, 38 (1843); 2 Johns. Cas. 58, 417; 1 Abb. U. S. 22; 35 Ga. 315. i« Mcintosh, Hist. Eng. 31-33. CORPORATION 363 CORPORATION particularly that of "perpetuity, which in their natural persons they could not have had ; as, the king, hy force of the common law, and a bishop or parson, i A. " corporation aggregate " is a collection of indi- viduals united into one collective body, under a spe- cial name, and possessing certain immunitiesv priv- ileges, and capacities in its collective character which do not belong to the natural persons composing it.'' A "corporation aggregate" consists of many per- sons united together into one society, and kept up by a perpetual succession of members, so as to con- tinue forever.3 A "coi*poration sole" consists of a single person who is made a body corporate and politic in order to give him some legal capacities and advantages, espe- cially that of pei-petuity ; as, a minister seized of lands in right of the parish. ^ A " corporation aggregate" is a true corporation, but a " corporation sole " is one in^vidual, being a member of a series of individuals, who is invested by a fiction with the qualities of a corporation. The ca- pacity or ofidce is here considered apart from the par- ticular person who frbm time to time may occupy it.* Ecclesiastical corporation. When the members composing the corporation are en- tirely spiritual persons, as, a bishop, a par- son, and the like; for the furtherance of religion and perpetuating the rights of the church. Lay corporation. A corpora- tion composed of secular persons; and in nature either civil or eleemosynary. Civil corporation. Such corporation as is erected for a temporal purpose. Elee- mosynary corporation. Such -corporation as is constituted for the perpetual distribu- tion of the free alms or bounty of the founder to such persons as he has directed. ^ Of the "civil " sort are: those erected for the good government of a town or district; those for the ad- vancement and regulation of manufacturers and com- merce; those for special purposes — as for medical science, natural history, etc.^ See Municipal and Private Corporation. Of the " eleemosynary " kind are hospitals for the relief of the poor, the sick, the impotent; and colleges for the promotion of piety and learning.* " Eleemosynary corporations " are incorporated for perpetuating the application of the bounty of the donor to the specified objects of that bounty' —the 1 1 Bl. Com. 469. ' Dartmouth College u. Woodward, 4 Wheat! 667 (1819), Story, J. ? Overseers of the Poor v. Sears, 23 Pick, 125-28 (1839), Shaw, 0. J.; 7 Mass. 447; 22 Wend. 70; 1 Hill, 620; 19 N. Y. 39; 2 Kent, 273. ' Maine Anc. Law, 181. i>2Bl. Com. 470-71. " Dartmouth College v. Woodward, 4 Wheat. 640, 647, 630 (1819), Marshall, C. J. distribution of the free alms and boiraty of the founder as he has directed. 1 An " eleemosynary corporation " is a private char- ity, constituted for the perpetual distribution of the alms and bounty of the founder.^ A corporation for religious and charitable purposes, endowed solely by private benefactions, is a " private eleemosynary" corporation, although created by a charter from the government. ' Close corporation. In this the major- ity of the persons to whom the corporate powers have been granted, on the happening of vacancies among them, have the right of themselves to appoint others to fill such vacancies, without allowing the corporators in general any choice in the selection of such new officers. Open corporation. In which all the corporators have a vote in the election of officers.* Commercial corporation. See Busi- ness, Corporation. Foreign corporation. A corporation created by or under the laws of another State, government, or country.''' Domestic or home corporation. A corporation created under the law of the place where it exists or exercises its powers. A "corporation exists only by force of law, and can have no legal existence beyond the bounds of the sov- ereignty by which it is created. It dwells in the place of its creation. It is not a " citizen," within the mean- ing of the Constitution, and cannot maintain a suit-in a Federal court against a citizen of a different State from that by which it was created, unless the persons who compose the corporate body are all citizens of that State. The legal presumption is that its members are citizens of the State in which alone the body has a legal existence.* By comity, if not forbidden by its charter, nor by the laws of that State, a corporation may exercise its powers in another State.^ , I Dartmouth College v. Woodward, 4 Wheat. 66S, 672-76 (1819), Story, J. » Allen V. MoKean, 1 Sumu. 399 (1833): 2 Kent, 274. See also 18 Mass. 557; 9 Barb. 90; 27 id. 306; 8N.'Y.633; Ang. & A. Coi-p. § 39. * Society for Propagating the Gospel v. New Haven, 8 Wheat. 480 (1823). « McKim V. Odom, 2 Bland, Ch. 416, n. (1829). • Daly V. National Lite Ins. Co., 64 Ind. 6-8 (1878). « Ohio & Mississippi E. Co. u Wheeler, 1 Black, 395- 96 (1861), cases, Taney, C. J. ; Paul v. Virginia, 8 Wall. 177-82(1868), cases; Chicago, &c. E. Co. v. Whitton, 13 «. 283(1871); Sewing Machine Case, 18 id. 576(1873); Doyle V. Continental Ins. Co.,94U. S. 535 (1876); Cowell V. Colorado Springs Co., 100 id. 59(1879); Memphis,,&c. E. Co. V. Alabama, 107 id. 585 (188:3) ; Philadelphia Fire Association v. New York, 119 id. 117-18 (1886), cases. ' Christian Union v. Yount, 101 U. S. 352 (1879); St. Louis V. Ferry Co., 11 Wall., 429 (1870). COEPORATION 263 COEPORATION No State need allow the corporations of another State to. do biisiness within its jurisdiction unless it chooses, with perhaps the exception of commercial corporations; but if it does, without limitation, the corpoi'ation comes in as it has been created. ^ The State which recognizes foreign corporations can impose such conditions on its recognition as it chooses, not inconsistent with the Constitution and laws of the United States. If it permits them to do business with- out limitation, express or implied, they carry with them all their chartered rights, and may claim all their chartered privileges which can be used away from their legal home. By doing business away from home they do not change their citizenship; they simply extend their field of operations.' But a State may not impose a limitation upon the power of a foreign corporation to make contracts within the State for carrying on commerce between the States. Doing a single act of biisiness in a State, with no purpose of doing other acts there, does not bring a corporation within a statute requiring a foreign corporation, before it can carry on business in the State, to iile a certificate showing places of business, agents, etc.^ Undoubtedly a corporation of one State, employed in the business of the general government, may do such business in other States without obtaining a license from them. . It is not every corporation, lawful in the State of its creation, that other States may be willing to admit within their jurisdiction ; such, for example, as a corporation for lotteries. And even when the business is not unlawful the State may wish to limit the number of corporations belonging to its class, or to subject their business to such contract as would be in accordance with the policy governing do- mestic corporations of a similar character. The States may, therefore, require for the admission within their limits of the corporations of other States such condi- tions as they may choose. . The only limitation, upon such power arises where the corporation is in the employ of the Federal government, or where its busi- ness is strictly commerce, inter-State or foreign.* Moneyed corporation. Any corpora- tion with banking powers, or power to make loans on pledges or deposits, or to make con- tracts of insurance." Quasi corporation. A phrase applied to a body which exercises certain functions of a corporate character, but which has not > Eelfe V. Bundle, 103 U. S. 325 (1880). 2 Baltimore, &c. E. Co. v. Koontz, 104 U. S. 11-13 (1881), cases, Waite, C. J. ; National Steamship Co. v. Tugman, 106 id. 120-81 (1882), cases ; St. Clair «. Cox, ib. 356-56 (1882); Canada Southern E. Co. u. Gebhard, 109 id. 63" (1883). ' Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727, 738 (1885). ■> Pembina Mining Co. v. Pennsylvania, 125 U. S. 186, 189-90 (188S), cases. Field, J. = See 2 N. Y. Eev. St., 7 ed., 1371; Gilletu. Moody, 3 N. Y. 485 (1860); HUl v. Eeed, 16 Barb. 287 (1653); 48 id. 464; 6 Paige, 497- been created a corporation by any statute, general or special.' Such auxiliaries of the State as a county, school- district, township, and other like involuntary corpora- tions with liabilities not as great as those of municipal corporations.' Of such are the inhabitants of a school district; ' commissioners of schools,* and boards of education; " overeeers of the poor: ' the commissioners or super- visors of a county,' q.v.; commissioners of roads;" the governor of Tennessee; " a levee district organized by statute to reclaim land; '"—any body invested with corporate powers sub modo, for a few specified pur- poses only, and which may sue and be sued." See under Public Corporation^ Quasi, etc. Municipal corporation. A public cor- poration (q. V.) created by the government for political purposes and having subordinate and local powers of legislation; an incor- poration of persons inhabitants of a particu- lar place, or connected with a particular dis- trict, enabling them to conduct its local civil government. Merely an agency instituted by the sovereign for the purpose of carrying out in detail the objects of government. 12 Essentially a revocable agency — having no vested right to any of its powers or franchises — the charter or act of erection being in no sense a contract with the State — and therefore fully subject to the control of the legislature, which may enlarge or diminish its ter- ritorial extent or its functions, change or modify its internal arrangement, or destroy its very existence, with the mere breath of arbitrary discretion. While it thus exists in subjection to the will of the sovereign, it enjoys the rights and is subject to the liabilities of any other corporation, public or private. This is the very object of making it a body politic, giving it a legal entity and name, a seal by which to act in solemn form, a capacity to contract and be contracted with, to sue and be sued, » persona standi in Judicio, to 1 School District v. Insurance Co., 103 U. S. 708 (1880), Miller, J. ' Levy Court v. Coroner, 2 Wall. 508 (1864); Barnes v. District of Columbia, 91 U. S. 552 (1876); 7 Mass. 169; 109 id. 218. S33 Conn. 298; 26 Ind. 310; 37 Iowa, 542; 22 Me. 564; 13 Mass. 193; 23 Mo. 418. •" 1 Miss. 328; 18 Johns. 4D7. » 38 Ohio St. 54. •44 Ala. 666. ' 8 Johns. 422; 20 Barb. 294; 1 Cow. 670; 16 S. & E. 286. " 1 Spears (S. C), 218. S 8 Humph. 176. '» 51 Cal. 406. "51Cal.406; 10N.Y.409; 18 Barb. 607; 4Wheat.631; Angell & A. Corp. § 84; Boone, Corp. § 10. 12 Philadelphia v. Fox, 04 Pa. 180-81 (1870), Shars- wood. J., quoting 2 Kent, 276; Glover, Munic. Corp. 1. See also Si Cal. 142, 146; 69 Ga. 644; 87 Iowa, 544; 26 La. An. 481; 29 Minn. 450-61; 58 Mo. 311; 6 Baxt. 171; 8 Utah, 403; 2 Kent, 868; Ang. & A. Corp. § 15. CORPORATION 264 CORPORATION liold and dispose of property, and' thereby to acquire rights and incur responsibilities. These franchises were confen-ed upon it for the purpose of enabling it the better to effect the design of its institution, the exercise of certain of the powers of government, subordinate to the legislature, over a part of the territory of the State. But all this affects its relations to other per- sons, natural or artificial: it doesnot touch its relation to the State, its creator, ^ In the exercise of its duties, including those most strictly local or internal, a municipal corporation is but a department of the State. The legislature may give it all the po wers such a being is capable of receiv- ing, making it a miniature State vithin its locality; or it may strip it of every power, leaving it a corporation in name only. . . The municipality may act through its mayor, its common coxmcil or legislative depart- ment, its supervisor of streets, commissioner of high- ways, board of public works, etc., provided tt acts within the province committed to its charge. Wheth^ its agfents be appointed or elected is immaterial. ^ What portions of a State shall be within the limits of a city is a -proper subject of legislation — however thick or sparse the settlement. ^ Property held for public uses — such as public buildings, streets, squares, parks, wharves, fire-en- gines, engineering (instruments: whatever is held for governmental purposes — cannot be subjected to the payment of the debts of the city. Its public character forbids such an appropriation. The obligation of its contracts survives dissolution. Equity will apply its property to the payment of its debts ; after which, sur- plus realty may revert to the grantor, and personalty vest in the State. The private property of individuals cannot be taken for its debts, except through taxa- tion. The doctrine of some States, thalt such can be reached directly on an execution against the munici- ' pality, has not been generally accepted.* The general doctrine that, being the creature of the law, a municipal corporation can only act as provided by its organic law, and that if its agents fail to observe the forms and methods prescribed by that law, in any substantial particular, their acts are not the acts of the corporation, — has been greatly modified, by the , decisions of the Supreme Court, in its application to bonds issued by agents when the rights of bona fide purchasers are involved.* A municipal corporation can exercise such powers only as are granted in express words or are necessa- rily or fairly implied in or incident to those powers, and such as are essential to the declared objects of the corporation.^ 1 Philadelphia v. Fox, ante. 2 Barnes v. District of Columbia, 91 U. S. 544, 541 (1875), cases. Hunt, J. See also 108 id. 121 ; 109 id. 287. On revoking powers of municipal corporations, see Supervisors v. Luck, 80 Ya. 226-27 (1885), cases. 3 Kelly V. Pittsburgh, 104 U. S; 80 (1881); 92 id. 310-12. 4 Meriwether v. Garrett, 103 U. S. 501, 511-19 (1880), cases, "Waite, C, J.; Broughton v. Pensacola, 93 id. 268 (1876); Claiborne Co. v. Brooks, 111 id. 410 (1884). 5 Phelps v. Town of Yates, 16 Blatch. 193 (1879), "Wal- lace, J. « Dillon, Munic. Corp. 89, cases; Brenham v. Water The earliest form of corporation was, probably, the municipality or city, which necessity exacted for the control or local police of the marts or crowded places of the empire. These cities became a bulwark against despotism.! See City; Obdinancb, 1; Riot. National corporation. A corporation created by Congress to assist in "carrying into execution " one or more of the powers vested by the Constitution in the government of the United States. Of such are the national banking associations.^ See Grant, 3; Land, Public. Political corporation. See Public Cor- poration, Private corporation. An association of individuals united for some common purpose, and permitted by the law to use a common name, and to change its members without a dissolution of the association. 3 Its powers are such as are conferred by statute; and its charter is the measure thereof. The enumeration of these powers excludes all others.* Its charter is a contract, not to be " impaired." q. v. Public corporation. Such corporation as exists for political purposes only; as, a town, a city, a county. But, strictly speak- ing, public corporations are such only as are founded by the government for public pur- poses, where the whole interests belong also to the government.^ K, therefore, the foundation be "private," though under the charter of the government, the corporation is private, however extensive the uses to which it is devoted. . . A hospital or a college founded by a private benefactor is a private corporation, although dedicated by its charter to general charity. ^ In popular meaning nearly every corporation is " public " inasmuch as they are created for the public benefit. Yet if the whole interest does not belong to the government, or if the corporation is not created for the administration of political or municipal power, it is a " private " corporation. Thus, all bank, bridge, turnpike, railroad, and canal companies are private corporations. In these and similar cases, in a certain sense, the uses may be called public, but the corpora- tions are private, as much so as if the franchises were Co., 67 Tex. 553 (1887). See generally 36 Cent. Law J. 179 (1888), cases. 1 Mcintosh, Hist. Eng. 31-32; 1 Bl. Com. 468, 472; Liv- erpool Ins. Co. V. Massachusetts, 10 Wall. 574 (1870), Miller, J. 2 See generaUy 21 Cent. Law J. 42S-29 (1865), cases; 21 Am. Law Rev. 258-69 (1887), cases. a Baltimore & Ohio R. Co. v. First Baptist Church, 108 U. S. 330 (1883), Field, J.; County of Santa Clara v. Southern Pac. R. Co., 18 F. R. 403 (1883): 8 Saw. 264; 15 Rep. 674. 4 Thomas v. West Jersey R. Co., 101 U. S. 83 (1879). ^ Dartmouth College v. Woodward, 4 Wheat 668-69 (1819), Story, J. CORPORATION 265 CORPORATION vested in a Bingle person. The delegation of the right of eminent domain, to be used for private emolument as well as for public benefit, does not clothe a coi^pora- tion with the inviolability or immunity of public offi- cers performing public functions.' Public corporations are so called because they are but parts of the machinery employed in carrying on the affairs of the State ; — auxiliaries of the State in the business of municipal rule ; — political divisions of State, originating in the necessities and conveniences of the people. Their officers are local agents of the State.' A public corporation is a mere instrumentality of the State for the better administration of the govern- ment in matters of local concern.' It is a local agency of the government creating it; its powere are such as belong to sovereignty. Property and revenue neces- sary for the exercise of these powere become part of the machinery of government. To permit a creditor to seize and sell these, in order to collect a debt, would be to permit him in a degree to destroy the government itself.* A public corporation can exercise no power not given by its charter or some other statute of the ' State.o It is now well settled that the charter of a public corporation may be changed, modified, or repealed, as the exigencies of the public service or the public welfare may demand; unless the organic law other- wise provides.® Public and other municipal corporations represent the people, and are to be protected against the un- authorized acts of their offtcers and agents, when this can be done without injury to third parties. This is necessary in order to guard against fraud and pecula- tion. Persons dealing with such officers or agents are chargeable with notice of the power the corporation Quasi public corporations: corporations technically private, but yet of a quasi public character having in view some general public enterprise, in which the pub- lic interests are directly involved to such an extent as to Justify conferring upon them important govern- mental powers, such as an exercise of the right of eminent domain. Of this class are railroad, turnpike , and canal companies; and corporations strictly pri- vate, the direct object of which is to promote public interests, and in which the public have no concern, except the indirect benefits resulting from the promo- ■ Handle v. Delaware & Raritan Canal Co., 1 Wall. C. C. 290 (1&49), Grier, J. ; Sweatt v. Boston, &c. E. Co., 3 Cliff. 346 (1871). 2 Commissioners of Laramie County v. Commission- ers of Albany County, 92 U. S. 310-312 (1875), cases, aiflford, J.; 2 Kent, 305. » United States v. New Orleans, 98 U. S. 393 (1878), Field, J. 4 Klein v. New Orleans, 99 U. S. 150 (1878), Waite, 0. J. 6 Mt. Pleasant v. Beckwith, 100 U. S. 521 (1879). « Thomas v. City of Richmond, 12 Wall. 336 (1870), Bradley, J. On changes in public corporations affectmg prop- ertj and rights of creditors, see 21 Am. Law Rev. 14-40 (1887), cases. tion of trade, and the development of the resources of the countrj-.i It is a misnomer to attach the name " quasi public corporation " to a I'ailroad company, for it has none of the features of such corporations, if we except its quali- fied right of eminent domain, which it has because of the right reserved to the public to use its way for travel and transportation. Its road may be a quasi public highway, but the company itself is a private corporation, and nothing more.^ Corporate. Relating to a corporation. Corporate authorities. In the constitution of Illinois, Art. 9, § 5, municipal officers who are either directly elected by the people or are appointed in some mode to which they have given their assent.^ Corporate existence. Dates from the time when full authority to transact business is possessed by a corporation, as from the filing of articles with the secretary of State.^ Corporate purpose. In some States, as in Illinois, taxation by public corporations must be for corporate purposes. This means such purposes as are germane to the objects of the welfare of the municipality or at least have a legitimate connection with those objects and a manifest relation thereto.* The reference is to a tax which is to be expended in a manner promoting the general prosperity and wel- fare of the munioipaUty which levied it.°- The purpose must be germane to the general scope of the object for which the corporation was created.' The expression will include money expended for a court-house, jail, poor-house; the opening and keep- ing of a common highway; the erection and mainte- nance of a bridge; a donation to secure the location of a school; " and, perhaps, also, money expended in de- veloping the natural resources for manufacturing pm'- poses.' Compare Pcrpose, Public. Corporate rights. '-Franchises or pecul- iar privileged grants " of the nature of corpo- real property.!" 1 Miners' Ditch Co. «. Zellenbach, 37 Cal. 677 (1869), Sawyer, C. J. " Pierce v. Commonwealth, 104 Pa. 166 (16S3) ; 6 Col. 8 ; llKan. 608; 3 Hill, 567,570; 1N.H.273; 1 Wall. Jr. 275. See generally 22 Cent. Law J. 148 (1886), cases. s Gage V. Graham, 67 111. 146-47 (1870), cases. 4 Hurt V. Salisbury, 65 Mo. 314 (1874). •People V. Dupuyt, 71 111. 651 (1874); Livingston County V. Wieder, 64 id. 483 (1872). Burr v. City of Carbondale, 76 lU. 466 (1875). ' Wrightman v. Clark, 103 U. S. 260 (1880), cases; Ot- tawa V. Carey, 103 id. 121-23 (1883), cases. » County of Livingston v. Darlington, 101 U. S. 411-13 (1879), cases. 9 Hackett v. Ottawa, 99 U. S. 94 (1878), cases. 10 Wamer v. Beers, 23 Wend. 154 (1840); 7 Hill, 283; 2 Bl. Com. 37. CORPOREAL CORRUPT Corporator. Usually, a member of a cor- poration, in which sense it includes a stock- holder ; also, one of the persons who are the original organizers or promoters of a new corporation, i The corporators are not the corporation, for either may sue the other." Incorporate, v. To form into an artifi- cial body ; to create a corporation out of nat- ural persons. Incorporate, adjV The same as corpo- rate, q. V. Incorporated. United into one body; constituted a legal entity or person. Unin- corporated: not existing as a corporation. Incorporation. The act of uniting nat- ural persons into a creature of the law ; also, a body incorporated, that is, a corporation — a' use not favored. " Incorporation " is the act by which the political institution called a coi-poration is created.^ See further Agest; Amotiok; Bank, 2 (2);. Bony, 2; Bond; By-law, 2; Capital, 2; Charity, 2; Charter, 2; Consolidation; Director; Dissolve, 3; Distringas; Dividend, 3; Domain, 1, Eminent; Find, 2; Fran- chise, 1; Inspection, 2; Legislature; Manager; Meetings; Minutes, 2; Mortmain; Organize; Per- petual; Person; Police, 8; Property; Prospectus; Proxy; Railroad; Receiver; Residence; Seal, 1, . Common; Soul; Stock, 3; Succession; Take, 8; Tax, 2; Tort, 2; Ultra Vires; Visit, 2; Voting, Cumulative; Wakrantum. COEPOBEAL. Having a body: ma- terial in nature ; substantial ; palpable. Incorporeal. Immaterial; intangible; insensible ; existing in thought ; ideal. In the Roman law, res corporales were objects of property apprehensible by the senses; res incorporales objects apprehensible by the mind only. A right of way over another's land, an obligation to pay money, an undivided interest in land, were examples of the latter species of property; while the land itself and the money when paid were examples of the former species.^ Hereditaments are spoken of as corporeal and in- corporeal. See Hereditament; Corpus. CORPSE. See Burial. CORPUS. L. A body; also, the principal thing, the essential part, the substance. In several phrases it means the body or person of an individual, as see under Capere ; Haberk. 1 [Gulliver v. Eoelle, 100 111. 147 (1881). 2 Memphis City o. Dean, 8 "Wall. 73 (18G8), cases; Davenport v. Downs, 18 id. 687 (1873), cases. ' Ang. & A. Corp, § 5; Toledo Bank v. Bond, 1 Ohio St. 642 (1853). 1 See Hadley, Rom. Law, 158-61. The corpus of an estate is the material object, or species of property, of which the estate is composed. It is this which, generally, is vested in a trustee, in dis- tinction from the income of the estate, which is allotted to the beneficiary.! The corpus of a railroad is the roadway, embank- ment, superstructure, and equipment.'' Corpus comitatus. The body of the county. See Body, 3. Corpus delicti. The essential element of an offense : the fact that the particular crime alleged has been actually committed. To warrant a conviction for murder there must be direct proof either of the death, as by the finding and identification of the corpse, or of criminal violence adequate to produce death and exerted in such man- as to account for the disappearance of the body. The corpus delicti in murder has two components: death as the result, and the criminal .agency of another as the means. Where there is direct proof of the one, the other can be established by circumstantial evi- dence.' The corpus delicti must be proved like any other fact, that is, beyond a reasonable doubt, and that doubt - is for the jury. A confession alone is not regarded as sufBoient proof. The State must first produce sufficient evidence to send the case to the jury, and the jury are first to be satisfied, from that evidence, that the crime has been committed.* The doctrine applies to other crimes, as, larceny. The possession of the fruits of a crime may do away with direct proof of the corpus delicti.^ Corpus Juris Civilis. See Pandects. CORRELATIVE OBLiaATIONS. See Assent. CORRESPONDENCE. See Communi- cation, Privileged, 3; Letter, 3. CORROBORATING. See Circum- stances; Evidence. CORRUPT. 1. To taint, vitiate: as, to corrupt the blood, q. v. 3. To do an act for unlawful gain. Corruption. An act done with intent to gain an advantage not consistent with official duty and the rights of othei-s; something forbidden by law : « as, certain acts by arbitra- 1 See Kountz i;. Omaha Hotel Co., 107 IT. S. 395 (1882); 67 Pa. 476; 70 id.BOl; 75 id. 119. " Jackson u. Ludeling, 99 U. S. 631 (1878); 106 id. 311. s Euloff V. People, 18 N. Y. 179, 182 (1858). « Grray v. Commonwealth, 101 Pa. 386 (1882); Udder- 200k v. Commonwealth, 76 id. 340 (1874); Pitts n. State, 43 Miss. 480-82 (1870), cases; United States v. Williams, 1 Cliff. 85 (1858); 4 Crim. Law Mag. 902- 12 (1883). = See examples, 20 Blateh. 236; 10 F. B. 470; 86 Miss. 157; 59 id. 545; 15 Wend. 147; 14 Tex. Ap. 560; 1 Greenl. Ev. § 214; Whart. Cr. Ev. § 334. ' [Bouvier's Law Diet. COST 267 COSTS tors, election or other officers, trustees; a ^ ^' champertous contract ; a contract for usury. In an indictment for corrupt misbehavior in office the act must be distinctly charged as done knowingly and with a con-upt motive.' See Award, 2; Bribery. COST.2 Of an article purchased for ex- portation : the price given for it, with every incidental chai-ge, paid or supposed to be paid, at the place where the article is ex- ported.* Cost price. The price actually paid for a thing.* COSTS. The expenses of an action re- coverable from the losing party.' An allowance to a party for expenses in- curred in conducting his suit." The sums prescribed by law as charges for services enumerated in the fee-bill.' " Fees " are a compensation to an officer for serv- ices rendered in the progress of a cause. Originally, fees were demandable the instant the services were rendered; but indulgence, ripened into a custom, and which has received the sanction of judicial decision, provides that the party should not be called upon to pay them till after the determination of the cause; when, to avoid suit for a trifling demand, it became the practice to include them in the execution as if they were a part of the successful party's costs.' When a party in a litigated proceeding is duly ad- judged to pay costs, his liability is not restricted to the disbursements and expenses which the opposite party may be entitled to receive, but extends to the fees of the officers of the court for services rendered therein. When these united sums are taxable in the case they constitute " the costs" for which he is liable. If the successful party collects them, he is trustee of the fees. As against the paying party,' all the items are costs.* Includes all charges fixed by statutes, as compensa- tion for services rendered by officers of the court in the progress of a cause." Bill of costs. A statement of the items of costs incurred in a suit, — presented for taxation to an officer of the court. ' Boyd V. Commonwealth, 77 Va. 55-56 (1883), cases ; 8 Whart. Cr. L. § 2518. 2 L. con-stare, to " stand at." '[Goodwin u. United States, 2 Wash. 499 (1811); 2 Mas. 398. « [Buck V. Burk, 18 N. Y. 340 (18.o8). = [Stanton County v. Madison County, 10 Neb. 308 (1880); State v. Dyches, 28 Tex. 542 (1866). » Musser v. Good, 11 S. & E. "248 (1824), Gibson, J. ' Apperson v. Mut. Benefit Life Ins. Co., 38 N. J. L. 390 (1876), Depue, J. 9 JaneS's Appeal, 87 Pa. 4.31 (1878). s Markham v. Boss, 73 Ga. 105 (1884): Davis v. State, 33 id. 533 (1863). In this connection " costs " means taxable' costs. ' The statement gives the names of the witnesses, days in attendance, and milaaBe. Carry costs. A verdict is said to carry costs when he for whom it is found becomes entitled to the payment of all costs as an in- cident to the verdict. Certificate of costs. A memorandum signed by the judge who tries a cause, that, under the law, a party is entitled to costs.2 Cost-bond. The bond or other security required of a party to a proceeding for the payment of such costs, if any, as may be awarded against him. Costs de incr emento . Costs by increase ; increased costs — adjudged by the court in addition to sucli as the jury assess. Before the statute of Gloucester, costs were enrolled as increase of damages. After the statute, juries taxed the damages, and costs, separately. When the amount so taxed was not sufficient to pay the costs of the suit, the plaintiff prayed that the officer might tax the costs inserted in the judgment: this was the origin of costs de mcremento.^ Costs of prosecution. Costs incurred in conducting a prosecution; not, expenses in resisting the prosecution.* Costs of suit. The expenses incurred pending a suit, as allowed by the court.' May include commissions upon money collected by execution."* Costs of the day. Costs incurred in pre- paring for trial on a particular day, — accord- ing to notice of trial given by a party.' Costs of the term. May incl ude only the expense of travel and attendance of the party, the clerk's and witnesses' fees.s Costs that have accrued. In the com- promise of a suit, costs that would follow the judgment.^ Costs to abide event. If the event is the same to the party who had the verdict at the former trial, he gets his costs ; otherwise, the costs of the first trial are lost.'" > Doe V. Thompson, 22 N. H. 219 (1850); CJhilds v. New Haven, &o. R. Co., 135 Mass. 572 (1883). "SeeSBl, Com. 214,401. s 3 Bl. Com. -399; Day v. Woodworth, 13 How. 372 (1851). « State V. Wallin, 89 N. C. 578 (1883). 5 [Norwich v. Hyde, 7 Conn. *B34 (1829). •Kitchen v. Woodfln, 1 Hughes, 340 (1877). ' See 3 Bl. Com. 357; Adams, Eq. 343. s Thurston v. Mining Co., 1 R. I. 288 (1850). "Tallassee Manuf. Co. u. Glenn, 50 Ala. 489 (1876). 10 Jones V. WUliams, h. R., 8 Q. B. 283 (1873); 2 Ex. Div. 287, 334; Sid. 202. COSTS 26S COSTS Double costs; treble costs. 1. Eng- lish practice. Double costs: common costs and half as much moi-e. Treble costs: three times the amount of the costs incurred by a party in an action; common costs, half of these, and half of the latter. " Double costs " were estimated by first allowing the prevailing party single costs, including witnesses' expenses, counsels' fees, etc. , and then half the amount of the single costs, without deducting counsels' fees, etc. " Treble costs " consisted of single costs, half the single costs, and half of that half.^ Payment of treble costs was Imposed for violation of certain statutes, as that of 29 Eliz. (1586), c. 4, against extortion by sheriffs on final process. Double and treble costs were repealed by 5 and 6 Viet. (1843), c. 97. Since then, only "party and party " costs, or reason- able costs, are taxable. 2. American practice. Double costs: in New Yort, and South Carolina, common costs and one-half more. Treble costs: com- mon costs and three-fourths more.^ In Pennsylvania, double and treble costs mean double and treble the single costs.' These additional costs seem to be given as compen- sation in cases of willful trespass or of vexatious liti- gation. Interlocutory costs. Such costs as are given on various motions and proceedings in the course of a suit. Final costs. Such as depend upon the final event of the suit. To these the term " costs " generally applies.'' Security for costs. Security required of a plaintiff who is a non-resident of the State, that if he is defeated in his action he will pay all the costs thereof. Until this is furnished be may not be allowed to proceed in his action. The defendant waives his right by taking any step in the cause after he has notice that the plaintiff is a non-resident. A general afii- davit of defense may be first required. The law of the particular jurisdiction should be consulted for infor- mation as to details.'' Taxation of costs. Official- adjustment of the amount of costs incuiTed in a case, or to which the prevailing party is entitled. Costs are a necessary appendage to a judgment. The maxim is victus victori in expensis condemnatus est, the defeated, to the prevailing party, in the ex- 1 [Wharton's Law Diet.; 1 Chitty, Pr. 37; Brightly, Costs, 298. " Patchin v. Parkhurst, 9 Wend. 443 (1832) ; 1 Harp. L. (S. C.) 440. 3 Welsh V. Anthony, 16 Pa. 2B6 (1851); 2 Bawle, 201. See 34 N. J. L. 530. * See GJoodyear v. Sawyer, 17 F. E. 8-9 (1833). 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 penses is condemned. The common la^w allowed no ^.-^i costs to either party. If the plaintiff failed, he '^^J'jff "amerced; " if he recovered, the defendant was "at r / mercy " for detaining the amount of the debt. This in time was viewed as a hardship, and statute of 6 Edw. I (1277), c. 1, called the Statute of G-louoester, and which has been adopted in the States, was passed, giv- ing costs in all oases where the plaintiff recovered dam- ages. But no costs were allowed the defend.^nt till the statute of 2:3 Hen. VHI (1531), c. 16, which, with later statutes, gave him, if he prevailed, such costs as the plaintiff would have received had he recovered, i To prevent trifling and vexatious actions of tres- pass, it was enacted by 43 Eliz. (1600), a. 6, and 22 and 23 Car. (1670), c. 9, that where the jury awarded less damages than forty shillings the plaintiff should be allowed no more costs than damages, unless the judge certified that the freehold or title to the land chiefly came in question. But 8 and 9 Wm. HI (1696), c. 11, provided that in actions wherein it appeared that the trespass was willful and malicious, and so certified by the judge, the plaintiff should recover full costs. These statutes are in force in a few of the States. ^ The statute of Charles is restricted to actions of trespass quare clausum /regit, and of assault and bat- tery ; for in no other case is it possible to give the cer- tificate. Moreover, to entitle the plaintiff to full costs, the judge's certificate must be made " at the trial of the cause;" that is, before final judgment. ^ In Pennsyl- vania currency, the forty shillings are equal to|5.33: the English shilling sterling not having been adopted.* Costs are regulated entirely by statute, as to both item and amount. The Federal fee bill act of 1863, made section 983, Rev. St., provides that: "The bill of fees of the clerk, marshal, and attorney, and the amount paid printers and witnesses, and lawful fees for exemplifications and copies of papers necessarily obtained for use on trial in cases where by law costs are recoverable in favor of the prevailing party, shall be taxed by a judge or clerk of the court; and be in- cluded in and form a portion of a judgment or decree against the losing party. Such taxed bills shall be filed with the papers in the cause." In the Federal courts, the prevailing party in com- mon-law actions recovers costs in all cases, except- when otherwise provided by an act of Congress.' Section 968, Rev. St., providing that the prevailing party shall not be allowed costs when the recovery is less than goOO, is imperative; the comt has no discre- tion to allow costs where the judgment is xmder that sum.' See Marshal, 1 (2); Prevail. The government, at common law, neither pays nor 13 Bl. Com. 399^00; Day v. Woodvvorth, 13 How. 378 (1851); Antoni v. Greenhow, 107 U. S. 781 (1882); 86 Am. Law Reg. 093-98 (1878), cases; 17 F. E. 10-11; 29 Minn. 430. = 3 Bl. Com. 214, 401 ; Winger v. Rife, 101 Pa. 158 (1882). = Simonds v. Barton, 76 Pa. 435-37 (1874), cases; Tow- ers V. Vielie, 1 Johns. Cas. 281 (1799). < Chapman v. Calder, 14 Pa. 358 (1850). ' United States v. Treadwell, 15 F. R. 534 (1883): E. S. |§ 823, 963. • Gibson v. Memphis, &o. E. Co., 31 F. E. 553 (1887). COUNCIL 269 COUNT receives costs; under statute, it may.' In admiralty, costs are left to the discretion of the court.' In equity, they are largely -vvithin the discretion of the chancel- ,^or.> In criminal law, in cases of conviction of felony, the prisoner pays the costs if he has property, and, in cases of acquittal, the government pays them; while in misdemeanors the accused, if convicted, is sentenced to pay them ; and if acquitted he may be required to pay them where there was prima facie evidence of guilt; or the pi-osecutor may have to pay them; or, again, they may be divided between the prosecutor and the accused; or there maybe authority for the government alone defraying them. If the accused cannot pay them he may have to remain in prison until discharged under the insolvent laws of the State. ' Costs do not bear interest. See Attorney; Damages; Docket; Fee, 2. COUWCIL. 1. An advisory body selected to assist the governor of a State in his official determinations. King's councils. To assist him in the discharge of his duties, the maintenance of his dignity, and the exertion of his preroga- tive, the law has assigned the sovereign a diversity of councils with which to advise, to wit : the high court of parliament ; the peers of the realm assembled at call ; the judges of the courts of law; but, principally, h\B privy eouneil (by way of eminence tlw council), an assembly of the king and such as he wills, in his palace.* A governor's council is still retained in u. few States. « 2. The ordinance-making body in a mu- nicipal corporation. Usually in the plural form "councils;" whereof common and select council are the branches. The organization and powers of such bodies are de- termined by statute." The city council of Boston, for example, is not a "legislature." It has no power to make " laws," but merely to pass ordinances upon such local matters as the legislature may commit to its charge. Neither branch is vested with any judicial functions whatever. Nor are its members chosen with a view to their fit- ness for the exercise of such functions.' See further CiTIr; Contempt, 2; Ordinance, 1; Teibitnal. COUNSEL; COUNSELLOB. See At- torney, 2. 5; 12 id. > 3 Bl. Com. 400; 3 Cranch, 73; 2 Wheat. 546; SHOW. 29; 3 Pa. 153. SThe«cotland, 118 U. S. 519 (188fi). 'See 2 Daniel, Ch. Pr. 1515-21; Goodyear v. Sawyer, 17 F. E. 6 (I8S.3), cases. •• 1 Bl. Com. 227-32. s See 70 Me. 570. • See Dillon, Munic. Corp. 826. ' Whitcomb's Case, 120 Mass. 123 (1876), Gray, C. J. CONSILIUM. See Inops. COUNT. \,v. In the sense of to com- pute, see Account ; Discount. 2. In the sense of to refer to a statute, compare Recite. 3. n. In the sense of earl or comes, see Sheriff. 4. In pleading, a distinct statement of the cause of action or of the ground of accusa- tion. Peculiar, therefore, to a declaration or an indict- ment. From the French conte; a narrative. (1) In civil procedure at common law, is sometimes synonymous with declaration, its original signification; but now is generally considered as a part of a declaration, wherein the plaintiff sets forth a distinct cause of action.l Where the plaintiff's complaint embraces a single cause of action and he mabres one statement of it that statement is called, indifferentl.v, a " declaration " or a "count." But where his suit embraces two or more causes of action (each of which of course re- quires a different statement), or when he makes two or more different statements of one and the same cause of action, each statement is called a "coxmt," and all of them, collectively, constitute the " declara- tion," ' q. V. Common counts. Distinct statements of a cause of action so varied as to correspond with the possible state of the proof. In the common action of assumpsit, q. v., they are, ordinarily, for money — had and received, paid, lent, or due upon an account stated; perhaps, also, for the worth of work done and materials furnished: whence called "money" counts.^ See Contract, Implied. Special count. States the facts peculiar to the case in hand.* One object in inserting two or more counts in a declaration, when there is in fact but one cause of action, is to guard against the danger of an insufScient statement of the cause, where a doubt exists as to the legal sufficiency of one or another of two or more dif- ferent modes of declaring. But the more usual end proposed is to accommodate the statement of the cause, as far as maj' be, to the possible state of the proof exhibited on the trial. In assumpsit, under a declaration containing a spe- cial count on a promissory note, and also the common coimts, a note varying from the one specially pleaded is admissible under the common counts, as evidence of money had and received, in connection with evi- 1 [Cheetham v. Tillotson, 5 Johns. M35 (1809). s Gould, PI. 158. 'See, as to money had and received, Bamett v. Warren, 83 Ala. 557 (1886); 20 Cent. Law J. 326-30 (1885), cases, as to quantum meruit. « See Nash v. Towne, 5 Wall. 702 (1666). COUNTER 270 COUNTRY dence that the defendant admitted his indebtedness on the note. ' Counts for contract and trespass, being dissimilar in kind, cannot be joined.' See Bad,2; Duplicity; Joinder. (2) In criminal procedure, each count in an indictment imports a diflferent offense ; is, in effect, a separate indictment.' When a verdict is silent as to one or more counts and finds guilt as to others, presumably the jury found the defendant not guilty as to the former counts.* See Indictment; Sentence. COUNTER. Contrary, in opposition to. See CoNTEA. As a' prefix, denotes that one thing is, or is placed, in antagonism to some other: as, a counter-afiidavit, counter-bond, coun- ter-claim, counter-evidence, counter-plea, counter-proof, counter-statement, counter- surety, — for each of which see the simple substantive. Compare Cross, 3. COUNTEBrEIT, v. To make some- thing falsely and fraudulently in the sem- blance of that which is true ; also, the thing so made. n. A spurious imitation intended to re- semble something which is not.' Refers, ordinarily, to imitations of money or of securities. But a trade-mark (g. v.) may be counter- feited. The resemblance of the spurious to the genuine must be such, possibly, as to deceive a, person using ordinary caution." " False, forged, and counterfeit," said of counter- feiting Treasury notes, necessarily imply that the in- strument so characterized is not genuine, but only purports to be, or is in the similitude of the genuine instrument.^ It is not necessary in an indictment, under § 5457, Rev. St., to allege that the act of counterfeiting was done with intent to defraud; such intent, if an ele- ment of the crime, is implied in the allegation of "falsely" making." On counterfeiting the securities of the United States, see Rev. St. § 5413. » Counterfeiting, passing, or possessing with intent 1 Hopkins v. Orr, 184 U. S. 513 'Gould, PI. 159; 3 Bl. Com. 295; 58 N. H. 41. 3 United States v. Malone, 20 Blatch. 140 (1881): R. S. § 1034; s. c. 13 Rep. 67. ■" State 1). McNaught, 30 Kan. 627 (1887), cases. 5 Queen v. Hermann, 4 Q. B, D. 287 (1879). See 1 Stew., Ala., 386; 1 Ohio St. 187. 'United States v. Bogart, 9 Bened. 315 (1878). ' [United States v. Howell, 11 Wall. 432, 430 a870),' Miller, J. See 2 Flip. 557; 13 F. R. 96; Const. Art. I, sec. 8, cl. 6. 6 United States v. Otey, 31 F. R. 68 (1887). » See also United States v. Bennett, 17 Blatch. 358 (1879); 22 F. R. 390. to utter or pass, within the United States, the notes, or other securities of any foreign government, is punish- able by fine and imprisonment at hard labor; and so is having in one's possession, without lawful authority, any plate therefor or printing from the same.' Under the power " to define and punish offenses against the law of nations," and to " regulate com- merce with foreign nations," Congress may provide for punishing as a crime the counterfeiting, within the United States, of the notes of foreign banks or cor- porations, although they be not the obligations of the foreign government.' Eee False; Forse, 2; Genuine; Guilt; Obliga- tion, 8; Similitude; Spurious; Utter. COUNTERPART. One of the parts of an indenture which lay opposite or counter to each other.' A duplicate copy. Indentures were originally written twice on the same sheet of parchment with a space in the middle — where it was afterward divided.^ When the several parts of an indenture are inter- changeably executed by the parties that part or copy which is executed by the grantor is called the orig- inal, and the rest counterparts.^ COUNTERSIGN. 1. To sign on the op- posite side. 2. To sign in addition to another, as the superior officer, and in attestation of authen- ticity.5 See Sign, Countersign. COUNTERVAIL. To operate with equal effect: to deserve equal consideration. An equitable right which is as important or well founded as another which is being pressed for the more favorable recognition, is spoken of as a " coun- tervailing equity." COUNTRY.6 1. In its primary meaning, signifies place; in a larger sense, the terri- tory or dominions occupied by a community, or even waste and unpeopled sections or re- gions of the earth; but its metaphorical meaning (which is no less definite and well understood) in common parlance, in histor- ical and geographical writings, in diplomacy, legislation, treaties, and international codes, denotes the population, the nation, the state, the government, having possession and do- minion over the country." See Place, 1. As used in the revenue laws, embraces all the pos- sessions of a foreign state, however widely separated. 1 Act 16 May, 1884: 23 St. L. 22. ' United States v. Arjona, 120 U. S. 479 (1887), Waite, Chief Justice. 1 [Burrill's Law Diet. «2B1. Com. 296. » See Smith, Eq. 212, 181; 101 U. S. 22. " F. contree: L. contra, opposite: that which lies opposite to a city. 'United States u. "The Recorder," 1 Blatch. 286 (1847), Betts, J. COUNTY 271 COUNTY which are subject to the same supreme executive and legislative control.' See Indian, Country. 3. The inhabitants of a district from which a jury is to be summoned ; a jury. Trial by jury is also called trial per pais, or per patrian, by the country.' By the policy of the ancient law the jury was to come de vicineto, from the neighborhood of tiie place where the cause of action was laid, For, living in the neighborhood, they were properly the very country, or pais, to which both parties had appealed, and were supposed to know beforehand the characters of the parties and their witnesses. But this convenience being overbalanced by the fact that jurors coming from the immediate neighborhood naturally inter- mixed their prejudices and partialities in the trial, the early practice became so far relinquished that the jury now comes from the body of Uie county at large, and not de vicineto, from the particular neighbor- hood.' See Vende. Conclude to the country. To tender an issue of fact for trial by a jury. God and my country. The answer, at common law, of a prisoner arraigned for trial. See Arraign. Put upon the country. To submit a matter in dispute to a jury. The full expression, on the part of the plaintiff, is, " And this the said A prays may be inquired of by the country; " on the part of the defendant, " And of this the said B puts himself upon the country." * Compare Pais; Patbia. COUlfTY. Originally, a province gov- erned by a count, — the earl or alderman to whom the government of the shire was in- trusted.'' A civil division of the territory of Eng- land.* The terms " the county " and the " people of the county" may be convertible; so, too, "the county" and the " commissioners of the county." ^ The city of St. Louis, under the constitution of Mis- souri of 1875, though not a county as that word is ordi- narily used in the constitution, is in a qualified sense a county, being a " legal subdivision of the State " which bears county relations to the State, and having many important attributes of a county.^ A county is not a corporation, but a mere political organization of a certain portion of the territory ' Stairs V. Peaslee, 18 How. 526 (1856), Taney, C. J. See CampbeUi). Barney, 5 Blatch. 821 (1864). 2 3B1. Com. 349; 4 id. 348. > 8 Bl. Com. 359-60. «3B1. Com. 313. » [1 Bl. Com. 116; Eastman v. Clackamas Co., 32 F. E. 29 (1887). «1B1. Com. 113. ' County Court v. Sievert, 68 Mo. 201 (1874); Carder v. Fayette County, 16 Ohio St. 309 (1865). » State V. Finn, 4 Mo. Ap. 350 (1877). within the State, particularly defined by geographical limits, for the more convenient administration of the laws and police power of the State, and for the conven- ience of the inhabitants.' Such organization Is invested with certain powers, delegated by the State, for the purpose of civil admin- istration; and for the same purpose is clothed with many characteristics of a body corporate. It is a quasi corporation, for in many respects it is like a corpora- tion. But the power to sue and be sued is expressly conferred by statute.' In the Revised Statutes, or in any act or resolution of Congress, the word county shall include a " parish " or any other equivalent subdivision of a State or Ter- ritory.* "Establishing" a county is setting apart certain territory to be in the future organized as a political community, or quasi corporation for political pm-- poses; " organizing " a county is vesting in the people of the territory such corporate rights and powers.' County corporate. A city or town , with more or less territory annexed, to which, out of special favor, the king has granted the privilege to be a county of itself, and not to be comprised within another county.^ Similar to this are the counties of Philadelphia, New Tork, and Boston.* Foreign county. . Another county than the one in which a matter arises or is drawn in question. Body of a county. 1. The territorial limits of a county. See Body, 3. 2. The people of a county collectively con- sidered. See Venue. County bridge. See Bridge. County court. 1. A name for a class of courts having civil jurisdiction in contro- versies of medium grade, varied powers in the charge, and care of persons and estates within legal guardianship, a limited criminal jurisdiction, appellate jurisdiction over jus- tices of the peace, and numerous powers and duties in the administration of county affairs.8 2. In England, a court of great antiquity. ' Hunter v. Commissioners, 10 Ohio St. 520 Harris v. Supen-isors, 105 111. 451 (1883); Washer v. Bullitt County, 110 U. S. 564 (1884) ; Faulkner v. Hyman, 142 Mass. 54 (1886); Vincent v. Lincoln Co., 30 F. E. 749-53 (1887), cases; 33 Ark. 497; 14 Fla. 321; 2 Kan. 128; 60 Md. 245; 8 Minn. 504; 10 Nev. 652; 7 Ohio St. 109; 10 F. E. 645. As to suits by and against coimties, see 19 Cent. Law J. 185-88 (1884), cases. » Act 13 July, 1866: E. S. §§ 1-2. > State V. Parker, 25 Minn. 219 (1878); 23 id. 40. * [1 Bl. Com. 120. » See State v. Finn, 4 Mo. Ap. 347 (1877). • [Abbott's Law Diet. COUPLED 373 COUPON" incident to the jurisdiction of the sheriflF. It seems to have had cognizance of purely per- sonal actions and of some real actions ; but it was not a court of record, i Since 1846, a tribunal, established under 9 and 10 Vict. c. 95, in upward of five hundred districts, none within the city of London; and at present invested with a common-law jmisdiction over demands not ex- ceeding £50, an equity jurisdiction where the amount involved does not exceed £500, together with certain jurisdiction in probate, admiralty, and bankruptcy." County oificer. One by whom a couiity performs its usual political functions, — its functions of government; who exercises "continuously, and as a part of the regular and permanent administration of govern- ment, its public powers, trusts, or duties." ' He may be the auditor, commissioner, supervisor, treasurer, or other functionary of the county. Local statutes usually designate who shall be considered county oiHcers, and prescribe their duties. County purpose. May include only the ordinary purposes, as the ordinary expenses, of a county. 4 County seat. See Permanent. Po'wer of the county. The male inhab- itants of a county, over fifteen years of age, whom the sheriff may command to aid him in preserving the peace, executing process, arresting felons, etc. ; the posse comitatus.'" See Sheriff; Coroner; Warrant, 2. COUPLED. See Interest, 3(3), Coupled. COUPOH".6 Something "cut off "from another thing : a distinct part of a document or instrument, intended to be separated from the body thereof and used as evidence of something connected with it or mentioned in it. ' Coupon bond. Ordinarily, by " coupon " is meant a part of a transferable bond or cer- tificate of loan, designed to be separated therefrom and used as evidence of interest due by the terms thereof. The original or primary obligations are called coupon bonds. 1 See 3 BI. Com. 35; 3 Law Quar. Rev. 1-13 (1S87). ' See 1 Abbott, Law Diet. 399; 59 Law Times, 379 (1875). » [Sheboygan County v. Barker, 3 WaU. 98 (1886), Grier, J. See fie Whiting, 8 Barb. 517 (1848); Be Car- penter, 7 id. 84 (1840); State, exrel. v. Glenn, 7 Helsk. 473 (1872). * MoCormick v. Fitch, 14 Minn. 357 (1869). See also 23 Ohio St. 339; 1 Sneed, 637. •1 Bl. Com. 343; 4 id. 1?3; Reginau Brown, 1 Carr. & M. *314 (1841). • Koo'-p5ng. F. from couper, to cut, cut off. An instrument complete in itself, and yet composed of several distinct instruments, each of which is in it- self as complete as the whole together.' Such coupons are merely interest warrants or in-' terest-certifioates — written contracts for the payment of a definite sum of money on a given day." Most of the bonds of municipal bodies and private corporations are issued in order to raise funds for works of large extent and cost, and their payment is therefore made at distant periods. Cou- pons for the installments of interest are usually at- t^-ched, in the expectation that they will be paid as they mature, however distant the period for the pay- ment of the principal. These coupons, when severed from the bonds, are negotiable and pass by delivery. They then cease to be incidents, become in fact inde- pendent claims; and they do not lose their validity, if for any cause the bonds are canceled or paid be- fore maturity, nor their negotiable character, nor their abihty to support separate actions. Once sev- ered from the bonds, and having matured, they are in effect eqiUvalent to separate bonds for the different installments of interest." The holder Is enabled to collect the interest at the time and place named, or to transfer the coupon to another who may collect it, without the trouble of presenting the bond itself. This is a convenience to the foreign holdfer. The device tends to enhance the marketableness of interest-bearing securities, and is favored by the courts.^ The form does not change their nature. That they are payable at a particular place does not make it necessary to aver or prove a presentation for payment there. ^ Suit may be maintained upon a coupon without producing the bond; but the provisions in the bond must be recited in such a general way as to explain the relation the coupon originally held, and still holds, to it. Recovery may then be had for the face amount, with interest from the day when payment was unjustly refused, and exchange at the place of payment.* When a coupon upon its face refers to the bond, the purchaser is chargeable with notice of all that the bond contains." These separable obligations bear interest after their maturity. An unpaid coupon left on a bond is not of itself evidence that the bond is dishonored.' Interest coupons are instruments of a peculiar nature. Title to them passes by mere delivery. A ' 2 Daniel, Neg. Inst. § 1488 (1879). See Myers v. York, &o. E. Co., 43 Me. 239^0 (1857); Ethoven v. Hoyle, 13 C. B. 378 (1853). "Aurora City i). West, 7 Wall. 105 (1868), cases. ' Clark V. Iowa City, 30 Wall. 589 (1874), cases. Field, J. ; Hartman v. Greenhow, 102 U. S. 684 (1880) ; Wahiut V. Wade, 103 id. 696 (1880); Thompson v. Perrine, 106 id. 598 (1882); Kerr v. City of Corry, 105 Pa. 282 (1884). ■• City of Kenosha i;. Lamson, 9 Wall. 477, 482-86 (1869), Nelson, J. "Walnut V. Wade, 103 U. S. 695 (1880). • McLure v. Township of Oxford, 94 U. S. 432 (1876), Waite. C. J. ' Indiana & Illinois Central R. Co. v. Sprague, 103 U. S. 761-63 (1880), cases. COUPON 373 COURT transfer of possession is presumptively a transfer of title.' When issued by competent authority they pass into the hands of a bona fide purchaser for value before maturity, freed from any infirmity in their origin. As with other negotiable paper mere suspicion that there may be a defect of title in the holder, or knowledge of circumstances which would excite suspicion as to his title in the mind of any prudent man, is not sufficient to impair the title of the purchaser. That result will only follow where there has been bad faith on his part.s Being complete instruments, capable of sustaining separate actions without reference to the maturity of the bond, the statute of limitations begins to vxm from the time when they respectively mature.' See Bond; Ex, 3; iHPAiit. Coupon note. A promissory, note with coupons attached, which, in number, corre- spond to the payments of interest. The original note may be secvu-ed by a mortgage. A form in Iowa reads thus: J . 1888. On the day of , 188—, I promise to pay to or order, dollars. Being semi-annual in- terest to that date on my note for dollars, due 188—. Payable at . Coupon stamp. The Government fur- nishes collectors of its revenue books of stamps having coupons attached, to be used when taxes are paid on spirits. There are nine coupons to each stamp representmg a decimal, all prmted between the stamp and the stub. Upon the receipt of a distiller's tax, for example, the ofBcer detaches a stamp with such number of coupons attached as corresponds to the number of proof -gal- lons in the cask, as shown by the gauger's return. Unused coupons remain with the stub; if detached, they are of no value.* Coupon ticket. Sets or books of tickets issued by carriers of passengers, providing that for each trip had, according to the terms of the contract, a ticket shall be detached or canceled, are called "coupon tickets" or tickets in the " coupon form." When the carriage is confined to the issuing line, the ticket is a contract to carry according to its own terms; but when there is one ticket for carriage over that line and other tickets as passports over other lines, the first carrier is ordinarily only agent for the others, except in cases of express contract to the con- trary.' See Cakbier, Common. COURSE. 1. The direction of a line with reference to a meridian. See Bound- ary; Hearsay, 3; Monument, 1. 3, Routine; practice; procedure. Com- pare CURSUS. Course of an action. Progressive action in a suit or proceeding not yet determined.* Due course or process of law. Law in its regular administration. See further Process, 1. " Due course " and " due process " of law mean the same thing." Of course. Said of a thing done in the common manner of proceeding, and which does not require special allowance of a judge of the court. Many rules and citations are taken or had, as "of course," by application to the clerk or prothonotary of the court. 3. The usual way or mode ; usage ; custom. Course of business, or of trade. The way ordinarily pursued in a particular call- ing. See Business; Trade. " Due course of trade," with respect to the negotiar tion of a note, is where the holder has given for it money, goods, or credit at the time of receiving it, or has on account of it sustained some loss or incurred some liability.* Course of a voyage. The customary track between ports. See Deviation. COURT.5 1. According to Cowel, the house where the king remains with his reti- 1 Eetchum v. Duncan, 96 U. S. 662 (1877). a Cromwell v. County of Sac, 96 U. S. 57 (1877), Field, J.; Murray v. Lardner, 2 Wall. 110-121 (1864), sKoshkonong v. Burton, 104 U. S. 668, 675 (1881). See Virginia Coupon Cases, 114 id. 269-340 (1885); gen- erally, 1 Wall. 83, 175, 384; 3 id. 327; 10 id. 68; 11 id. 139; 14 id 232; 15 id. 355; 19 id. 83; 21 id. 354; 92 U. S. 502, 669- 93 id. 502; 94 id. 351, 463, 741, 801; 96 id. 659; 97 id. 96, 272- 99 id. 112, "362, 434, 499, 686; 101 id. 87, 677; 104 id 505; 105 id. 370, 733; 106 id. 663; 107 id. 529, 539, 568, 711 769; 15 Blatch. 343-46; 16 id. 54; 17 id. 4; 18 id. 383- 26 Conn. 121; 53 Ind. 191; 109 Mass. 88; 112 id. 63; 49 Me 607; 2 Nev. 199; 67 N. H. 397; 82 N. C. 382; 66 N. Y. 14; 44 Pa. 63; 22 Gratt. 833; 1 Daniel, Neg. Inst. Ch. XLVn. Williams V. Ely, 14 Wis. '238 (1861), Dixon, C. J. 8 Adler v. Whitbeck, 44 Ohio St. 569 (1886). *[Kimbro i'. Lytle, 10 Yerg. 428 (1837), Eeese, J.; Merchants' Bank v. McClelland, 9 Col. 608 (1886). 6 F cort, curt, co«r<, acourt oryard; also, a tribunal: L co,-iis,a court-yard, court, palace: L. cors, an m- closure : co-, together ; hort-w, a garden, yard,- Skeat. Orig from L. cers, a pen, a fortified place, a palace,- Milller, Science Lang. 269. Compare Cuetiiage. COURT 374 COURT nue ; also, the place where justice is admin- istered. These two meanings, in the beginning, were closely connected. For, in early history, when the king was actually t^he fountain and dispenser of justice, nothing could be more natural than that subjects who had complaints of ill-treatment to make should use the ex- pression " the court," in speaking of the journey to the place where the king was domiciled, and the ap- plication to him preferred, usually in the court of the palace, for interference and redress. Anciently, then, the " court," for judicial purposes, was the king and his attendants; later, those who sojoiu-ned or traveled with him, to whom he delegated authority to determine conti'oversies and to dispense justice. ^ The earlier courts were merely assemblages, in the court-yard of the baron or of the king himself, of thpse whose duty it was to appear at stated timeSj or upon summons. Traces of this constitution of courts remain in tribunals for the trial of impeachments, and in the control exercised by legislatures over the organ- ization of courts of justice, as constituted in modern times. Indeed, parliament is still the " High Court of Parliament," and in Massachusetts the united legisla- tive bodies are entitled the '' General Court." ^ A place -where justice is judicially admin- istered, s The more effectually to accomplish the redress of private injuries, courts of justice are instituted to protect the weak from the insults of the strong, by ex- pounding and enforcing those laws by which rights are defined and wrongs prohibited.* " As the executive power of the law is vested in the king, courts of justice, which are the medium by which he .administers' that law, originate with this power of the crown. . . He is represented by his judges.^ In every court there must be: an actor, plaintiff, who complains of an injury; a reus, defendant, who is called upon to make satisfaction; and & judex, judi- cial power to examine the truth of the fact, determine the law arising thereon, and, for injury done, by its officers to apply the remedy.' A tribunal established for the public ad- ministration of justice, and composed of one or more judges, who sit for that purpose at fixed times and places, attended by proper officers.' An organized body, with defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it, and aided in this by its officers, viz., attorneys and counsel to pi'esent and manage the business, clerks to 1 [Abbott's Law Diet. 2 [Bouvier's Law Diet. » 3 Bl. Com. 83: Coke, Litt. 58. 4 3B1. Com. 3. »3 Bl. Com. 23-24; 1 id. 870. »3 Bl. Com. 86; 34 lU. 360; 14 F. R. 178. ' Mason v. Woerner, 18 Mo. 570 (1863), Gamble, J. record and attest its acts and decisions, and ministerial officers to execute its commands and secure order in its proceedings. • Proceedings at another time and place or in an- other manner than that specified by law, though in the personal presence and under the direction of a judge, are coram non judice, and void.'' The definition given by Coke (and Blackstone) lacks fullness: it is limited to the place of a court. There must also be the presence of the ofBcers constituting the court, the judge or judges certainly, and probably the clerk authorized to record the action taken; time must be regarded, too, for the offtoers of a court must be present at the place and time appointed by law. To give existence to a court, then, its officers, and the time and place of holding it, must be such as are pre- scribed by law. . . " Open court " conveys the idea that the court must be in session, organized for the transaction of judicial business. It may mean public, free to all.' A permanent organization for the administration of justice; not a special tribunal provided for bylaw, oc- casionally called into existence and ceasing to exist with particular exigencies.* See further Tribdnal. 3. The judge charged with deciding the law in a given case ; as opposed to the jury, who are triers of the fact. The term "court" may mean the "judge" or "judges" of the court, or the judge and the jury, ac- cording to the connection, and the object of its use.' See Judge; JnraoiART. For the speedy, universal, and impartial adminis- tration of justice the law has appointed a variety of courts, some with a more limited, others with a more extensive; jurisdiction; some to determine in the first instance, others upon appeal and by way of review. Of these the most important are : Civil court. A court instituted for the enforcement of pi-ivate rights and the redress of private wrongs; any court which admin- isters civil law. Criminal court. Any tribunal for the redress of public wi-ongs — crimes and misdemeanors. IBcclesiastical court. Such judicatory as enforces law made by a religious body for its own govern- ment. See Church. Court of law, or coiirt of common law. Any court which administers justice accord- ing to the principles and forms of the com- 1 [Burrill's Law Diet. = See Wightman v. Karsner, 20 Ala. 451 (1858); Brum- ley V. State, 30 Ark. 78 (1859). » Hobart v. Hobart, 45 Iowa, 503 (1877), Beck, J. See Lewis V. Hoboken, 42 N. J. L. 379 (1880). * [Shurburn v. Hooper, 40 Mich. 505 (1879); Streeter v. Paton, 7 id. 348 (1859), Manning, J. ' » See Gold v. Vermont Central R. Co., 19 Vt. 482 (1847); Michigan Central R. Co. v. Northern Indiana R. Co., 3 Ind. 845(1861); 13 E. L 401. COtTKT 275 COURT mon law. Court of cliancery, or of equity. A court which proceeds wholly according to the principles of equity, g. v. Court of original jurisdiction. Such court as is to exercise jurisdiction over a matter in the first instance. Court of ap- pellate jurisdiction. Is organized to re- view causes removed from another court or courts. Court of general jurisdiction. Takes cognizance of all causes, civil or- crim- inal, of a particular nature. Court of lim- ited or special JTirisdiction. May have cognizance over a few matters only. Inferior court. A court subordinate to another ; or, a court of limited jurisdiction. Superior court. A court with controlling authority over some other court or courts, and with certain original jurisdiction pf its own. Supreme court. A court of the highest jurisdiction; also, a court higher than some other court or courts, but not necessarily of last resort. Inferior courts. AJl courts from which an appeal lies are *' inferior " to the court to which their judg- ments may be carried — as are the circuit and district courts of the United States, but they are not, there- fore, " inferior courts " in the technical sense as ap- plying to courts of a special and limited iurisdiction, which are created on such principles that their judg- ments, taken alone, are entirely disregarded, and the proceedingsmustsTioMJtheir jurisdiction.! See further Appabere, De non, etc. Superior courts. Courts in Connecticut, Delaware, Georgia, Massachusetts, and North Carolina, whose jurisdiction extends throughout the whole of a defined district or of the whole State. In a few other States, the title of a court or courts organized in a particular city or county, additional to the general system; as in one or more counties of Illinois, Indiana, Maine, Mary- land, and Michigan. Supreme courts. The supreme courts of New Hampshire, Pennsylvania, and Vermcfut, the "su- preme courts of appeal " of Virginia and West Vir- ginia, and the " supreme judicial courts " of Maine and Massachusetts, in addition to their appellate powers, exercise an additional jurisdiction, more or less general, in the issuing of the prerogative writs of mandamus, prohibition, quo warranto, etc. In New Jersey the supreme court is the highest court of law of original jurisdiction; and in New York a court, next to the court of appeals, with certain general orig- inal jurisdiction coupled with some appellate powers. In Connecticut the court of last resort is called the > [Kempe v. Kennedy, 5 Cranch, 185 (1809), Marshall, C. J. See M'Cormiok v. Sullivant, 10 Wheat. 199 (1825); Exp. Watkins, 3 Pet. *205 (1830); Grignon v. Astor, 2 How. 341 (1844); Kennedy v. Georgia State Bank, 8 id. 611 (1860); Exp. Lathrop, 118 U. S. 113 (1886); Cooley, Const. Lim. 508-9, cases. " supreme court of errors." In most, if not quite all, of the other States, the name supreme court, for a court possessing the general characteristics above de- scribed, is applied to the court of last resort ' As to the Supreme Court of the United States, see page 3T8. Court of record. A court in which the acts and judicial proceedings are enrolled on parchment for a perpetual memorial and testimony. . . All such are the king's courts; no other has authority to fine and imprison : so that the erection of a new juris- diction with this power makes it instantly a court of record. Court not of record. Originally, the court of a private man, whom the law would not intrust with discretionary power over the fortune or liberty of his fel- low-subjects : as, the courts-baron and other inferior jurisdictions where the proceedings were not enrolled or recorded, and which could hold no plea of a matter cognizable by the common law, unless under the value of forty shillings, nor of any forcible injury, not having process of arrest.^ The existence or truth of what is done in a coiui; not of record can, if disputed, be tried and determined by a jury ; but nothing can be averred against a " rec- ord," * q. V. A court of record is a judicial, organized tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of the common law.' The power to fine and imprison was not an indispensable attribute of a court of record. In modern law, the fact that a permanent record is kept may not stamp this character upon a court; since numerous courts of limited or special jurisdiction are obliged to keep records and yet are held to be courts not of record.* courts of record are sometimes distmgtiished by the possession and use of a seal. There is high authority for making the fact that a court is a court of record the test which confers upon its proceedings, in a particular case (falling within the general scope of its jurisdiction), the presumption of jurisdiction, rather than the fact that it is a superior court of genei-al common-law powers.' 1 See 2 Abbott's Law Diet. a [3 Bl. Com. 24-25, 331. See 10 Watts, 24; 34 Cal. 422 ; 23 Wend. 377; 37 Mo. 29. s See Exp. Gladhill, 8 Mete. 170 (1844), Shaw, C. J. * See 1 Bouvier's Law Diet. 426. 5 Davis V. Hudson, 29 Minn. 3S (1881); Freeman, Judgm. § 122, cases. COURT 376 COURT Minor terms descriptive of courts are: Court above or ad quern. To which a cause is taken .from another and inferior court. Opposed, court below or a quo: such lower court, from which the cause is removed. Xiocal court. For the trial of causes within comparatively narrow terri- torial limits: also, the court of a State, as opposed to the court of the United States to which a cause may be removed. Pull court. A session of a court at which all the mem- bers are present. Other terms descriptive of special courts will be found explained in their alphabetical places, as see, in addition to the entries following, Appeal; Abbitra- tiok; Error, 2 (3); Impeach, 4; Moot; Martial; Nisi Phius; Oyer and Terminer; Probate. See also phrases beginning Breast; By; Day; Friend; IJeate; Out; Open. And see related terms, such as Attorney; Bench; Chamber; Clerk; Comity; Constitution; Contempt, 1; Costs; Crier; Deposition; Discretion, 3-5; Judge; Judgment; Judicial; Judiciary; Jurisdiction, 2; Jury; Law; Newspaper; Notice, 1, Judicial; Pay- ment; Pleading; Pr^sumptio; Procedure; Becord, 8; Rule, S; Session; Term, 4; Vacation. Compare Curia; Forum. Courts of England. Statutes of 36 and 37 Vict. c. 66, and 38 and 39 Vict. c. 77, both of which went into efEeot November 1, 1875, consolidated into one supreme court of judi- cature the high court of chancery, and the courts of queen's bench, common pleas, ex- chequer, admiralty, probate, and divorce and matrimonial causes. The supreme court has two divisions : the high court of justice and the court of appeal ; the former of which has original and some appellate jurisdiction, and the latter appellate and some original juris- diction. The lord chief jiTstice is president of the former court, the lord chancellor of the latter. To the high court of justice there are five divisions; chancery; queen's bench; common pleas; exchequer; probate, divorce, 'and admiralty. To each of these di- visions are assigned the judges of the old courts simi- larly named, and the jurisdictions ' of those courts. Bach division has its series of reports; another series comprises the decisions of the court of appeal — " ap- peal cases." Besides these courts of superior jurisdiction are numerous others of inferior or local jurisdiction, and also ecclesiastical courts, i See Judicature, Acts. As to the older English courts, see'' Admiralty; >See Preface to 15 Moak's Reports, i-xv; 2 Law Q. Eev. 1-11 (1886). 2 3B1. Com. Ch. III-VI. Aula; Chancery; Coroner; Country, 8; County, Court, 2; Exchequer; Feuds; King; Ordinary, 8; Oyer; Plea, 1; Star-chamber. CouETS OF Scotland. The court of ses- sion, the supreme civil court, consists of two divisions of four judges each, who together form the inner house, and of five judges (lords ordinary) who form the outer house. The judges of the outer house are judges of the first instance, with co-ordinate authority; except as to certain classes of cases appropri- ated to the junior, the second junior, and the third junior lord ordinary, respective!/. The inner house, which is mainly a court of re- view, consists of the first division, presided over by the lord president, and the second division, presided over by the lord justice clerk. No action can be brought in the court of session for an amount under twenty.five pounds. I CODETS OF THE STATES. There is no uni- formity among our States as to the number, name, or organization of their courts. Each State has some tribunal of last resort, with numerous subordinate tribunals; but the mode in which they are created, the extent of their jurisdiction, the selection of the judges and their terms of office and duties, are matters upon which each State legislates for itself. By name these courts are: a supreme court, court of appeals, or court of errors and appeals ; courts of common pleas, county courts, or circuit courts for one or more counties; orphans', probate, or surro- gates' courts; courts of sessions; recorders' courts; city courts; superior courts; district courts ; aldermen's or justices' courts. For an account of which, see those titles, and the names or titles and references on page 275. CODETS OF THE UNITED STATES. "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." 2 " The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ; — to all Cases affect- ing Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and 1 See 37 Alb. Law J. 4-7 ( 2 Constitution. Art. Ill, sec. 1. COURT 377 COURT maritime Jurisdiction ; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States ; — between a State and Citizens of an- other State; — between Citizens of different States ; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Sub- jects." 1 See Power, 3. The judges are appointed by the President, by and with the advice and consent of the Senate; and they hold office during good behavior. ^ The oath taken by justices of the Supreme Court, the circuit and the district judges, is as follows; " I, , do solemnly swear (or afSi-m) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as justice of the Su- preme Court of the United States, according to the best of my abilities ^od understanding, agreeably to the Constitution and laws of the United States; So help me God." ^ The organization of the system of courts (except as to the Supreme Court) was commenced by the act of September 2^, 1789, known as the Judiciary Act, q. v. The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise provide, are to be regarded as " rules of de- cision in trials at common law " in the coiuts of the United States, in cases where they apply.' This iuclude.s the rules of evidence prescribed by the laws of the States in which the United States courts sit." See further Decision, Rules of. August 8, 1791, Chief Justice Jay, in answer to an interrogation by the attorney-general, announced that " 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 time to time, make such alterations therein as cu'cum- etances may render necessary." ^ Remedies at common law and in equity are not according to the practice of the State courts, but ac- cording to the principles of common law and equity as distinguished in England, whence we derive our knowledge of those principles.' The blending of equitable and legal causes of ac- tion in one suit is net pennissible. But in suits in equity in the circuit and district courts the forms and modes of proceeding shall be acoordmg to the prin- ' Constitution, Art. in, sec. 2. See S Bancroft, Const. 195-206. 2 Constitution, Art. II, sec. 2, cl. 2. = R. S. § 712; Act 24 Sept. 1789. lieat. 51; 1.5 Wall. 437; 21 id. 389; 94 U. S. 673; 5 Blatch. 303. »»R. S. § 709, cases; 1 Sup. E. S. p. 133. 11 Williams v. BruE:y, 102 U. S. 2.5,j (1880). 12 Brown i: Atwell, 92 U. S. 339 (187.-)); Home Ins. Co. V. City Council, 93 id. 121 (1876); Gold-Washmg, &c. COURT 278 COURT Writs of error to the State courts have never been allowed as of right, that is, as of course. It is the duty of the justice to whom application is made, under Eev. St. S 709, to ascertain, from the record of the State court, whether any question, cognizable on appeal, was decided in the State court, and whether the case, on the face of the record, will justify re-examination. When the case is urgent the motion for the writ may be permitted to be made in open court. But if it ap- pears that the decision of the Federal question was so plainly right as not to require argument, and espe- cially if it accords with well-considered judgments in similar cases, the writ will not be awarded.' At the trial some title, right, privilege, or immunity must have been "specially set up or claimed" under the Constitution, laws, or treaties of the United States.^ The " inferior courts " {which phrase see, page 275) established are: Circuit courts, District courts, Terri- torial courts, the Supreme Court of the District of Columbia, and the Court of Claims. Congress can vest no part of its power in a State court; • nor in a military commission.* During the re- bellion the President had power to establish provis- ional courts at the seat of war, as an incident to mili- tary occupation.' See War. By consent of a State, Congress may impose duties upon the tribunals of a State, not incompatible with State duties." Supreme Court of the United States. This court, as seen, Was established by the Constitution itself. '' " In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [page 376], the supreme Court shall have appellate Juris- diction, both as to Law and Fact, with Co. V. Keyes, 96 id. 803 (1877); Daniels v. Tearhey, 102 id. 417 (1880); Brown v. Colorado, 106 id. 96 (1882); New Orleans Waterworks Co. v. Louisiana Sugar Eeiining 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. 1 Spies V. niinois (The Anarchists' Case), 123 U. S. 163 (Nov. 2, 1887), Waite, O. J.; Twitohell v. Pennsylvania, 7 Wall. 324 (1868), Chase, C. J. Anarchists' Case com- mented on, 27 Am. Law Beg. 38-47 (1888), cases ; 1 Harv. Law Eev. 306-36 (1888). ' Brooks V. Missouri, 184 TJ. S. 394 (Jan. 23, 1888), Waite, C. J.; French v. Hopkins, ib. 524 (1888). sMartm v. Hunter's Lessee, 1 Wheat. 330 (1816); 7 Conn. i!43; 17 Johns. 9. 4 Exp. MUligan, 4 Wall. 121 (1866). ' The Grapeshot, 9 Wall. 132 (1869). As to criminal jurisdiction generally, see United States v. Clark, 26 Am. Law Eeg. 703-9 (1887), cases; also, Circuit, etc.. Courts, post. 8 United States v. Jones, 109 U. S. 580 (1883); 1 Kent, 400. ' To be the " bulwark of a limited Constitution against legislative encroachment," — Federalist, Ixxviii. such Exceptions and under such Regulations as the Congress shall make." ' Congress cannot extend this orighial jurisdiction, since in all other cases the Court's jurisdiction must be appellate." But the extent of the appellate jurisdiction is not limited by the Constitution to any particular form or mode; and the appellate is broader than the original jurisdiction. 3 In view of the practical construction put upon the Constitution by Congress and the courts, the Supreme Court has expressed an unwillingness to say that it is not within the power of Congress to grant to the in- ferior courts jurisdiction in cases where that Court has been vested by the Constitution with original jurisdic- tion.* The Coifft has power to issue a writ of prohibition to a district cotu't proceeding as a court of admiralty and maritime jurisdiction; also, a writ of mandamus, in a case warranted by the principles and usages of law, to an inferior Federal court or to a person hold- ing a Federal office; where a State, a public minister, a consul or vice-consul is a party ; " also, to issue writs of habeas corpus; " writs of scire.facias, and all other writs not especially provided for by statute, which may be necessary for the exercise of its jurisdiction and agreeable to the principles and usages of law.' The justices, individually, rnay grant writs of habeas corpus, of ne e:ceat, and of injunction,** qq. v. The Court exercises appellate jurisdiction as follows : (1) By writ of error from the final judgment of a circuit court, or of any dis- trict court exercising the powers of a circuit court, in civil actions brought there by orig- inal process, or removed thei-e from the court of a State, and in final judgments of any circuit court in civil actions brought from the district court, where the matter in dis- pute, exclusive of costs, exceeds $5,000.' (3) Upon appeal from the decree of a circuit court in cases of equity and of admiralty, where the sum in controversy, exclusive of costs, exceeds $5,000.'" (3) And in xertain other oases in admiralty, for which see act of February, 1875, 18 St. L. 315. (4) Upon appeal, or error upon a certificate of differ- ■ Constitution, Art. HI, sec. 2, cl. 2. See Act of 1789, ». 13: E. S. §687. ' Exp. Vallandigham, 1 Wall. 852 (1863), cases. s Exp. Virginia, 100 U. S. 341-42 (1879), cases. • Ames V. Kansas, 111 U. S. 469 (1884). » E. S. § 688, cases. » E. S. § 751, cases. ' E. S. § 716, cases. 8E.S. §§717, 719, 768, cases. »E. S. § 691, cases: Act 16 Feb. 187S: 1 Sup. E. S. p. 136. "E. S. § 692, cases; Act 16 Feb. 1875. See Circuit Court, p. 880. COURT 279 COUET ences of opinion between the judges of a cir- cuit court, i (5) Upon appeals in prize cases. 2 (6) In patent and copyright cases ; in revenue cases ; in alleged abridgment of the rights of citizenship, s (7) In cases from the judgment or decree of the sujjreme court of the District of Columbia or of any Territory, when the matter in dispute, exclusive of costs, exceeds $1,000 and as to the supreme court of the said District $2,500,'' and of Washington Territory, $3,000;* except in cases involving the validity of a patent or copyright, or in which is drawn in question the validity^^a treaty or statute of or an authority exer^Rd under the United States, in which cases ap- peal or error lies regardless of the sum or value in dispute." In oases in the court of claims, decided for the plaintiflE, the sum being over $3,000 or his claim forfeited.' (8) In capital cases and cases of bigamy or polygamy from Utah Territory. 8 (9) Incases involving a Federal question, as see page 277. (10) Where a court dismisses or remands a cause to a State court. Its criminal jvirisdiction includes such proceedings against public ministers or their domestic servants as a court of law can have consistently with the law ot nations.' The judges of the Supreme Court consist of a chief justice and eight associate justices, any six of whom constitute a quorum; " the latter have precedence ac- cording to the dates of their commissions, or, where the dates are the same, according to age." The number ot members was originally five; in 1807, it was made six; in 1837, eight; and in 1863, nine. The Court holds one term, annually, at Washington City, commencing on the second Monday of October, and such special terms as it may find necessary. '« Provision is made for adjournments when a quorum does not attend.** ^_^ The Court appoints a clerk, a marshal, and a re- porter of its decisions.'* The ceremony observed in opening and closing the Court is as follows: When the marshal appears, at » E. S. §§ 693, 697, cases. »R. S. §§ 695-96, cases. »R. S. §699, cases. « Act 25 Feb. 1879: 1 Sup. E. S. p. 149. «E. S. §1 702, 706, cases. " E. S. §§ 702, 706, cases. » E. S. § 707, cases. e Act 23 June, 1874: 1 Sup. E. S. p. 108. • E. S. § 4063, cases. '» E. S. § 673: Act 10 April, 1869. " E. S. §§ 674J'S: Acts 24 Sept. 1789, 25 June, 1868. " E. S. § 684: Acts 23 July, 1866, 24 Jan. 1873. " E. S. § 685: Acts 29 April, 1802, 21 Jan. 1829. " E. S. § 677: various Acts, 1789 to 1867. ■ twelve o'clock noon (in advance of the justices), at the north door of the court room, the crier raps on the desk three times, for the audience to come to order and to rise from their seats. When the chief justice enters the door the crier announces '*The honorable, the chief justice and associate justices of the Supreme Court of the United States I" As the justices seat themselves, after ascending the platform, the crier proclaims: "Oyez! O yezl OyezI All persons hav- ing business before the honorable, the Supreme -Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this honorable Courtl " At four o'clock P. M., on intimation (usually a gesture) from the chief justice, or at such other time £ts he may indicate, the crier announces: "This honorable Court is now adjourned until to-morrow at twelve o'clock," or until " Monday, at twelve o'clock." Circuit courts of the United States. These are courts of the "circuits" into which the country is divided ; each circuit being composed of at least three "judicial districts." In number and territorial juris- diction the courts correspond with the fol- lowing circuits : First. — Maine, New Hampshire, Massa- chusetts, and Rhode Island. Second. — Vermont, Connecticut, and New York. Third. — New Jersey, Pennsylvania, and Delaware. Fourth.— Maryland, Virginia, West Vir- ginia, North Carolina, and South Carolina. Fi/i?!.— Georgia, Florida, Alabama, Mis- sissippi, Louisiana, and Texas. Sixth.— Ohio, Michigan, Kentucky, and Tennessee. Seventh.— Indiana, Ilhnois, and Wisconsin. Eighth. — Minnesota, Iowa, Nebraska, Missouri, Kansas, Arkansas, and Colorado. Ninth.— CaUtoinia, Oregon, and Nevada.* For the second circuit an additional judgeship was created by the act of March 3, 1687 (24 St. L. 492). The "senior judge" sits in election proceedings (E. S. §§ 2011-14), unless absent or unable to serve, in which event the " junior judge " may act. There are also courts called " circuit courts " for particular districts within Alabama, Arkansas, and Mississippi." A circuit court consists of a justice of the Supreme Court, called the " circuit justice," a " circuit judge " for the circuit having the same powers as the cii-cuit justice, and the " district judge " of the district where the circuit court is held. Any two of these officials may hold court. The " circuit justice," sitting apart, may try cases ; during every two ye ars he must attend ' E. S. § 604: various Acts, 1789 to 1876. ' See E. S. § e03; 1 Sup. E. S. p. 87. COURT 580 COURT at least one term of court in tlie district.^' By consent of the parties tlie district judge may vote on an ap- peal from his own decision; but judgment is to be rendered in conformity with the opinion of the pre- siding judge.' When a circuit justice, or all the judges, are disqualified from any cause, a case may be certified to the most convenient circuit, or the judge thereof may be requested to hold the court.^ Each court appoints its own clerks and their depu- ties.< Each court also appoints as "commissioners" as many discreet persons, none of them being a marshal or his deputy, as may be deemed necessary; ^ but they are not considered ofdcersof the court." They are authorized to hold persons to security of the peace, and for good behavior in cases arising under Federal law,' to take bail and affidavits required in another circuit or a district coxurt." They may imprison or bail offenders; ^ discharge poor convicts; i" administer oaths and take acknowledgments;" apprehend fugi- tives from justice, i* They are required to conform their proceedings in criminal cases to the practice in the State courts as far as practicable.'' They are im- pliedly authorized to keep a docket, and entitled to docket fees." The jurisdiction of the circuit courts is such as Congress confers, is A general de- scription of the original jurisdiction is, that it estends (subject to some limitations founded upon residence) . to civil suits in- volving more than $2,000, — (by act of March 3, 1887,— prior thereto $500) exclusive of costs, and arising under the Constitution, laws, or treaties of the United States, or in which the United States are plaintiffs, or in which the controversy is between different States, or citizens of a State and foreign States, citizens, and subjects ; also of crimes under the laws of the United States. They have no appellate jurisdiction over the dis- trict courts. 16 By act of March 3, 1875," a 1 R. S. § 610: Act 10 April, 1869. = E. S. § 614: Acts 84 Sept. 1789, 29 April, 1803, 2 March, 1867. ' E. S. §§ 615, 617: various Acts, and cases; Super- visors V. Bogers, 7 Wall. -175 (1868). *E. S. §§ 619, 624: various Acts. »E. S. §§ 627-28: various Acts. • Exp. Van Orden, 3 Blatch. 167 (1854). 'E. S. § 727: various Acts. ' E. S. § 945: various Acts. 'E. S. §§ 1014-15: various Acts. " E. S. § 1042: Act 1 June, 1873. 1' E. S. § 1778: various Acts. " R. S. § 5270: Acts and cases. "R. S. §101*; United States u. Harden, 4 Hughes, 456 (1881). '* Phillips V. United States, 33 F. E. 164 (1887). IS Sewing Machine Cases, 18 Wall. 577 (1877). '* See R. S. § 629: various Acts and cases. ■' 18 St. L. 470: 1 Sup. E. S. p. 173. new definition was given of the jurisdiction, which is very comprehensive, and has been held to be a substitute for and implied repeal of the provisions of the Revision of 1873.1 _ See further act of March 3, 1887, page 381. The $2,000 provision relates to the amount "in dis- pute," not to the amount claimed.' The Supreme Court has power of review where the matter in dis- pute exceeds the sum or value of $5,000, exclusive of costs.' The matter in dispute may be made up of distinct demands each less than $2,000, and although title be acquired by assignment.* The jurisdiction is co-extensive with the limits of the State. ^ Where there are two districts in a State, a citizen of such State is liable to suit in either district, itserved with process." The fact that a nominal or immaterial party resides' in the same State with one of the actual parties will not defeat the jurisdiction.' The court, not being a foreign court, adopts and applies the law of the State. ^ The facts on which jurisdiction rests must, in some form, appear on the face of the record of each suit; as, for example, the fact of citizenship.^ More specifically, the original jurisdiction includes: cases arising under — laws px'ovid-, ing internal revenue, postal laws, patent laws, copyright laws ; proceedings for penal- ties incurred by a merchant vessel in carry- ing passengers ; suits by or against a national banking association; matters involving thS elective franchise and other civil rights be- ^ longing to citizens of the United States ; -also, \ exclusive jurisdigtion of all crimes and offenses cognizable under the autliority of the United States, except when otherwise provided, and concurrent jurisdiction with the district courts of offenses cognizable therein,!" In an admiralty cause by consent, and in a patent cause in equity under rules made by the Supreme Court, the court may impanel a jury of five to twelve persons to determine the issue of fact.'i But except- 1 Osgood V. Chicago, &c. R. Co., 6 Biss. 332 (1875). = Brooks V. Phcenlx Mut. Life Ins. Co., 16 Blatch. 188 (1879). ' 1 Sup. R. S. p. 136; E. S. §§ 691-92; 100 U. S. 6, 147, 158, 444, 457; 101 id. 231; 102 id. 177; 103 id. 673,755; 106 id. 679. « Bemheim v. Bimbaum, 30 F. R. 886 (1887). « Shrew v. Jones, 2 McLean, 78 (1840). "M'Micken v. Webb, 11 Pet. *38 (1837); Tore v. Fowler, 2 Bond, 294 (1869); 10 Blatch. 307. ' Walden ti. Skinner, 101 U. S. 589 (1879); e Tennessee ■«. Davis, 100 U. S. 271 (1879). » Continental Lite Ins. Co. v. Ehoads, 119 U. S. 239 (1886), cases; Menard v. Goggan, 121 id. 263 (1887). i» E. S. § 629: Act 3 March, 1875: 18 St. L. 470. "Act 16 Feb. 1875, c. 77: 18 St. L. 315. See 98 U. S. 440; 101 id. 6, 247; 102 id. 218. COURT 281 COURT ing these cases, reference to referees, and some ex- ceptions in bankruptcy, the ti-ial of all issues of fact is by jury.' By stipulation filed, the court may And the facts in the nature of a general or special verdict,'* q. v. This court has power to issue writs Of error to the district oom'ts on final judgments in civil cases at common law. An appeal may be had to it from a final decree of a district court of equity, admiralty, or mari- time jurisdiction, except prize causes where the mat- ter in dispute exceeds the sum or value of fifty dollars, exclusive of costs; ^ the writ of error or appeal being taken out within one year from the removal of any disability.* Provision is made for the removal of causes into this court when the district judge is dis- qualified by interest, etc.* The Courtis always open for interlocutory proceedings in equity caiises.^ The opinion of the presiding judge or justice prevails, in cases of difference;^ and in criminal proceedings, upon request, the point of difference is to be certified to the Supreme Court, but the cause may proceed, if that can be done without prejudice to the merits.^ In cases of non-attendance of the judges, the marshal, or the clerk, may adjourn the court.® See Opinion, 3, Difference of. Jurisdiction of writs of error in criminal cases com- prises sentences of imprisonment and fines in excess of $300. Within a. year thereafter, a petition to the circuit court for a writ of error may be presented; the writ, if allowed, to be accompanied with a bond to prosecute the suit and abide the judgment i» The circuit courts are co-ordinate tribunals, consti- tuting a single system, and the decision of any one of them ought to be regarded as decisive of the question involved, until otherwise determined by the Supreme Court. '1 * The act approved Starch 3, 1887 (24 St. L. 55S), pro- vides that the first section of the act of March 3, 1875 XlLiS St. L. 470), be amended to read as follows: ** That the circuit courts of the TJiiited States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States, or treatits made, or which shall be made, under their authority, or in which controversy the United States are plaint- iffs or petitioners, or in which there shall be a controversy between citizens of different States, in which the matter in dispute exceeds, exclusive of in- terest and costs, the sum or value aforesaid, or a iU.S.§648; ISup. E. S. p. 173; 100U.S.203. "E. S. § 649; 12 WaU. 275; 19 id. 81; 101 U. S. 569; 80 Blatch. 366. = H. S. §§ 631, 633, 636: Acts and cases. « E. S. § 635: Act 1 June, 1872. «Bi. S. § 637: several Acts. « E. S. § 638: several Acts. ' E. S. § 650; Act 1 June, 1872. » E. S. § 651: Act 1 June, 1872. » E. S. §§ 671-72: several Acts. '» Act 3 March, 1870: 20 St. L. 374. "Welles V. Oregon E. & N. Co., 8 Saw. 613 (1883); 1 Flip. 388. controversy between citizens of the same Stata claiming lands under grants of different States, or a controversy between citizens of a State and foreign states, citizens, or subjects, in which the matter in dis- pute exceeds, exclusive of interest and costs, the sum or value aforesaid, and shall have exclusive cogni- zance of all crimes and offenses cognizable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the district courts of the crimes and offenses cogni- zable by them. But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; and no civil suit shall be- brought before either of said courts against any per- son by any original process of [or] proceeding in any other district than that whereof he is an inhabitant;, but where the jurisdiction is founded only on the fact that the action is between citizens of different States^ suit shall be brought only in the district of the resi- dence of either the plaintiff or the defendant; nor shall any circuit or district court have cognizance of any suit except upon foreign bills of exchange, to re- cover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder of [it '] such instrument be pay- able to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recovei^ the said contents if no assignment or transfer had been made; and the circuit courts shall also have appellate jurisdiction from the district courts, under the regulations and restrictions pre- scribed by law. Sec. 2. That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the circuit courts of the United States are given original jurisdic- tion by the preceding section, which may now be pending, or which may hereafter be brought, in any State court, may be removed by the defendant or de- fendants therein to tlie circuit court of the United States for the proper district[ ;] any other suit of a civil nature, at law or in equity, of which the eii-cuit courts of the United States are given jurisdiction by the pre- ceding section, and which are now pending, or which may hereafter be brought, in any State court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants, therein being non-residents of that State; and when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of dif- ferent States, and which can be fully determined as between them, then either one or more of the defend- ants actually interested in such controversy may re- move said suit into the circuit court of the United States for the proper district. And where a suit is now pending, or may be hereafter brought, in any State court, in which there is a controversy between a. citizen of the State hi wliich the suit is brought and a citizen of another State, any defendant, being such citi- zen of another State, may remove such suit into the cir- cuit court of the United States for the proper disitrict, at any time before the trial thereof, when it shall be 1 Newgass v. New Orleans, 33 F. E. 196 (1888). COURT 282 COURT made to appear to said circuit coiirt that from preju- dice or local influence he will not be able to obtain justice in such State court, or in any other State court to which the said defendant may, under the laws of the State, have the right, on account of such prejudice or local influence, to remove said cause ; Provided, That if it further appear that said suit can be fully and justly determined as to the other defendants in the State court, without being affected by such preju- dice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said circuit court may direct the suit to be remap,ded, so far as relates to such other defendants, to the State court, to be proceeded with therein. At any time be- fore the trial of any suit which is now pending in any circuit court or may hereafter be entered therein, and which has been removed to said court from a State court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said State co'urt, the ch:cuit court shall, oh application of the other party, examine into the truth of said affi- •davit and the grounds thereof, and, unless it shall ap- pear to the satisfaction of said court that said party will not be able to obtain justice in such State court, it shall cause the same to he remanded i thereto. Whenever any cause shall be removed from any State court into any circuit court of the United States, and the circuit court shall decide that the cause was im- properly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed. That section 3 of said act shall read as follows: Sec. 3. That whenever any party entitled to remove any suit mentioned in the nest preceding section, ex- cept in such cases as are provided for in the last clause of said section, may desire to remove such suit frpm a State court to the circuit court of tlje United States, he may make and file a petition in such suit in such State court at the time, or any time before the ■defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the cir- cuit court to be held in the district where such suit is pending, and shall make and file therewith a })ond, with good and sufficient surety, for his or their enter- ing in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said cir- cuit court if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein. It shall then be the duty of the State court to accept said petition and bond, and proceed no further in such suit; and the said copy being entered as aforesaid in said circuit court of the United States, the cause shall then proceed in the same manner, as if it had been ori^nally commenced in the said circuit court; and if in any action commenced in a State court the title of land be concerned, and the parties are citizens of the fiame State, and the matter in dispute exceed the sum or value of two thousand dollars, exclusive of interest and costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim and shall rely upon a right or title to the land under a grant from a State, and produce the original grant, or an exemplifi- , cation of it, except where the, loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the laild under a grant from some other State, the party or parties so required shall give such information, or othei*wise not be allowed to plead such grant or give -it iu evidence upon the trial ; and if he or they inform that he or they do claim under such grant, any one or more of the party moving for such information may then, on petition and bond, as hereinbefore mentioned in this act, remove the cause for trial to the circuit coiu-t of the United States next to be holden in such district; and any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim. Sec. 2. That whenever in any cause pending in any com-t of the United States there shall be a receiver or manager in possession of any property such receiver or manager shall manage and operate such property according to the requirements of the valid laws of the State in which such property shall be situated in the same manner the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or manager who shall willfully violate the provisions of this section shall be deemed guilty of a misde- meanor, and shall on conviction thereof be pimished by a fine not exceeding three thousand dollars, or by * imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. Sec. 3. That every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in can*ying on the business connected with such prop- erty, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jiu-isdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice. Sec. 4. That all national hanking associations es- tablished under the laws of the United States shall, for the pm-poses of all actions by or against them, real, personal or mixed, and all suits in equity, be .deemed citizens of the States in which they are respectively located; and in such cases thfe circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State. The provisions of this section shall not be held to affect the jurisdiction of the com'ts of the United States in cases commenced by the United States or by direction of any officer thereof, or cases for winding up the affau-s of any such bank. Sec. 5. That nothing in this act shall be held, deemed, or construed to repeal or affect any jurisdic- 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 of tlie United States, or mentioned in section 8 of the act of Congress of which this act is an amendment, or in the act of Congress approved Marcli 1st, 1875, en- titled " An act to protect all citizens in their civil or legal rights." Sec. 6. That the last paragraph ot section 5 ot the act of Congress, approved March 3d, 1876, entitled ** An act to determine the jmnsdiction of circuit courts of the United States, and to regulate the removal of causes from State courts, and for other purposes," and section G40 of the Revised Statutes, and all laws and pai'ts of laws in conflict with the provisions of this act, be, and the same are hereby repealed: Provided, That this act shall not affect the jurisdiction over or disposition of any suit removed from the court of any State, or suit commenced in any court of the United States, before the passage hereof except as otherwise expressly provided in this act. Sec. 7. That no person related to any justice or judge of any court of the United States by affinity or consanguinity, within the degree ot first cousin, shall hereafter be appointed by such court or judge to or employed by such court or judge in any office or duty in any court ot which such justice or judge may be a member.' See Addenda. Section 1 of the act ot March 3, 1887, does not apply in determining a question of jurisdiction on an application tor the removal of a cause.' The circuit court cannot take cognizance of a suit against a party in a district of which he is not a resi- dent. ^ "Before the act ot 1887, a controversy between citi- zens of different States could be brought in any Federal court where the defendant could be served with pro- cess. That act confines the plaintiff to the district of which the defendant is an inhabitant, and that wherein the plaintiff himself resides.* In a case involving a single controversy, where the jurisdiction depends upon citizenship, the right of re- moval is governed by clause 2 of section 2 of the act of 1887, and can be exercised only by non-resident de- fendants. Clause 3 of that section, lilce clause 2 of section 2 of the act of 1875, governs that class of cases only where there are two or more controversies in- volved in the same suit and one of them is wholly be- tween citizens of different States. Under the act of 1887, the fight ot removal in the latter cases is limited to one or more of the defendants actually interested in such separable controversy, and does not extend to the plaintiff.* Section 2 of the act ot 1887, does not change the practice as to defendants seeking a removal on the ground of prejudice or local influence ' 1 See acts ot 1877 and 1875 compared, 21 Am. Law Eev. 310-16 (1887). »Fales V. Chicago, &o. K. Co., 32 F. E. 679 (1887). •County otTuba «. Pioneer Gold Mining Co., 32 F. R. 183 (1887), Sawyer, J. Contra, ib. 675, 84. * Gavin u. Vance, 13 F. E. 85 (1887), Hammond, J. ' Western Union Tel. Co. v. Brown, 32 F. E. 342 (18S7), Brewer, J. « Hills V. Richmond, &c. R. Co., 33 F. R. 81 (1887), Newman, J. A formal affidavit by the defendant that he believes that he cannot obtain justice because ot prejudice or local influence is not sufficient: the tact must he shown by oral testimony or by affidavit. The affidavit may be filed in the State court and a certified copy be sent to the circuit court.' Only when the court can plainly see that its juris- diction is being fraudulently invoked wUl it deny the privilege ot increasing the ad damnum by amend- ment." The Supreme Court cannot review an order remand- ing a suit removed under the act ot 1887, begun, re- moved, and remanded after that act went into effect." Nor has the court jurisdiction where the suit was removed before the approval ot that act, but not remanded imtil thereafter;* nor where the order to remand was made while the act of 1875 was in force, and the writ ot error not brought until after the pas- sage ot the act of 1887. UntU the act ot 1875 there was no such jurisdiction; and the provision in that act was repealed by the act ot 1887, without reservation as to pending cases, the proviso in the repealing section having reference " only to the jurisdiction of the cir- cuit court and the disposition of the suit on its merits."' See further Remove, 4. District courts of the United States. Eacb State consists of one or more ' ' districts " for the convenient administration of United States law. Each district has its " district court " held by a resident judge.6 The judge appoints a clerk of the court, with one or more deputies.' A deputy may do any act permissible in the clerk.' The court has jurisdiction over all admi- ralty and maritime causes, all proceedings in bankruptcy, and all penal and criminal mat- ters cognizable under the laws of the United States, exclusive jurisdiction over which is not vested in the circuit or Supreme Court. More specifically, this jurisdiction com- prises : non-capital crimes committed within the district or upon the high seas, except the cases mentioned in Revised Statutes, Title " Crimes," section 5413 ; cases of piracy, when no-circuit court is held in the district ; suits for penalties and forfeitures, in general; suits at common law brought by the United States or any oflBcer thereof ; suits in equity to sub- ject realty to the payment of mternal revenue ' Short V. Chicago, &c. R. Co., 33 F. E. 114 (1887). Brewer, J. ■' Davis V. Kansas City, &c. E. Co., 32 F. E. 863 (1887). s Morey v. Loclchart, 123 U. S. 56 (1887). < Wilkinson v. Nebraska, 123 U. S. 286 (1888). « Sherman v. Grinnell, 123 U. S. 679 (188T), Waite, C. J. » E. S. § 661 : various Acts. ' R S |§ 555, 658: various Acts. 8 Confiscation Cases, 20 Wall. Ill (1873). See 1 Woods. 213. COURT 284 COURT tax ; suits for forfeitures or damages as debts due to the United States by Rev. St., section 3490 ; causes arising under the postal laws ; civil causes in admiralty and maritime law ; some Offenses against civil rights — Rev. St., Title XXIV ; suits by or against any national bank within the district ; suits by aliens for torts in violation of the law of nations or of a treaty ; certain suits against consuls or vice- consuls; and original bankruptcy proceed- ings.! Trial of issues of fact, except in equity, admiralty and maritime proceedings, is by jury.^ (See page 377, column 1, page 280, column 2.) The time for holding the sessions of the various courts is provided for; ^ also, the circumstances under which special terms may be held ; * also, adjourn- mente by the marshal; ^ and certifying cases into the circuit court, in case of disability or disqualification in the district judge."* The judge of one district may be designated to hold court in another district within the same circuit.^ In cases of vacancy all processes are to be continued to the next stated term after the quali- fication of a successor; except that in States having two or more districts the, judge of any such district may hold court.* Territorial courts of the United States. The Territories are legislative gov- ernments, and their courts legislative courts. Congress, in the exercise of its powers in the organization and government of the Territo- ries, combines the powers of both the Fed- eral and State authorities.^ The phrase " courts of the United States " is sometimes iised to include these courts in the Territo- ries, but not so in the Constitution itself.'" In Arizona the judicial power is vested in a supreme court and such inferior courts as the legislative coun- cil may provide. In the other organized Territories the power is vested in a supreme court, district courts, probate courts, and in justices of the peace. ^^ ' The supreme court, which consists of a chief justice and two associate justices, appointed for four years, holds an annual term at the seat of government of the Territory. ' E. S. § 563: various Acts. ' E. S. § 566: various Acts. ' E. S. § 572: various Acts. * E. S. § 581 : various Acts. ' E. S. § 583: various Acts. 8E. S. §§587-^9,601:several Acts; 1 Gall. 338; 97 TJ. S. 146. ' E. S. §§ 592-97: vaTious Acts. "E. S. §§ 602-3: various Acts. » Scott V. Jones, 5 How. 374 (1847); Benner v. Potter, 9 id. 241 (1850). i» pnited States v. Haskins, 3 Saw. 371 (1875); 1 Fla. 198. " E. S. § 1907: various Acts. Each Territory is divided into three districts, and a district court is to be held by a justice of the supreme court as prescribed by law. Terms for causes in which the United States are not a party are held in the coimties designated by the laws of the Territory. The supreme and district courts possess chancery and common-law powers. Eeview of a final decision in a district court by the supreme court is regulated by the territorial legislature. The district courts have the same jurisdiction. In cases arising under the Constitu- tion and laws, as is vested in the Federal circuit and district courts. A marshal and attorney are appointed tpy the President and Senate; and a clerk, by each supreme court judge in his district. An appeal or WTit of error to the Supreme Court at Washington is allowed where the Constitution, an act of Congress, or a treaty is brought in question. There is also an appeal where the value in dispute exceeds |1,000; except in Washington Territory, as to which this limit is §3,000.1 Justices of the peace are not given jurisdiction where the title to land may be in dispute, or where the claims exceed one hundred dollars. See further Territory, 2. Supreme Court of the District of Co- lumbia. This court, which may be em- braced in the expression " courts of the United States," 2 was established by the act of March 3, 1863, consists of six justices ap- pointed by the President and the Senate, and has the same jurisdiction as circuit and district courts, with cognizance in divorce cases. Actions are maintainable against inhabitants of the District, or persons foimd therein. It has common- law and chancery jurisdiction according to the laws of Maryland of May 3, 1802. It has appellate jurisdiction from the police court of the District, from justices of the peace in cases involving less than fifty dollai's, and from the decisions of the commissioner of patents.* Any final judgment or decree, involving over S'3,600 in value, may be re-examined in the Supi-eme Comt of the United States; and so too, by special allowance, as to cases involving a less amount, where the questions of law are of great importance.* , Court of Claims of the United States. The court in which the United States con- sents to be sued. Consists of a chief justice and four judges, ap- pointed by the President and the Senate; holds an annual session at Washington, beginning on the firet Monday in December. Members of Congress are for- bidden to practice in the court. A quorum consists of three judges; and the concurrence of three is neces- sary to a judgment.^ > E. S. §§ 702, 706: various Acts, and cases. = Embry v. Palmer, 107 U. S. 9-10 (1882); NoeiT o. Brewer, 1 MacArthm-, 507 (1874). ' See generally E. S., Index. 'Act 25 Feb. 1879: 1 Supl. E. S. p. 149; E. S. § 706. . »E. S. §§ 1049-58: Act 23 June, 1874; 1 Ct. CI. 3 3. COURT 285 COURT Its jurisdiction extends to all claims founded upon any law of Congress, any reg- ulation of an executive department, any con- tract, express or implied, with the Govern- ment ; to claims referred to it by either House of Congress; to set-offs, counter-claims, claims for damages, and other claims on the part of the United States against plaintiffs in said court. 1 Its jurisdiGtion is limited to contracts. To consti- tute an implied contract there must have been a con- sideration moving to the United States, or they must have received the money charged with a duty to pay it over, or the claimant must have had a lawful righb to it when received.^ The court has no equitable jurisdiction.' For torts committed by an officer or agent of the United States, whether a remedy should be furnished, Congress has reserved for its own determination.* The court may enter a judgment on a set-off against the claimant.^ An alien may sue, provided the like right is ac- corded an American citizen to prosecute claims against his government.' The common-law rule which excludes interested parties as witnesses is observed; but, at the instance of the solicitor of the United States, a claimant may be required to testify.' The court may appoint commissioners to take tes- timony.s Suits in this court are not suits at common law; hence, trial by jury is not a right in a claimant." The court has never felt bound by the strict rules of pleading incident to actions in courts of common law or in equity. It seeks to administer justice by simple and convenient forms, and makes such interloc- utory orders as will lead to the doing of complete justice without prolonged litigation. ' " The limitation of writs is six years after the claim has accrued, with the usual allowance in cases of dis- abmty.i' Prior to 1855 claimants were heard by Congress. This court was established, in that year, to relieve Congress, to protect the government by regular inves- tigation, and to benefit claimants by affording them a certain mode of examining and adjudicating claims. ' E. S. § 1059: several Acts, and cases. ^Knote V. United States, 95 U. S. 156 (1877). » Bonner v. United States, 9 Wall. 160 (1889). 4Langford v. United States, 101 U. S. 344 (1879); Nichols i;. United States, 7 Wall. 126 (1808); Gordon v. United States, 2 id. 561 (1864); 8 id. 269. « 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. 178. ' E. S. §§ 1079-80. See United States v. Clark, 96 U. S. 37 (1877). 8E. S. §§1071,1080. ' M'Eh-ath v. United States, 12 CL CI. 317 (1876). '"Brown v. District of Columbia, 17 Ct. CI. 310 (1881), cases. ' 1 E. S. § 1069. See 107 U. S. 124. Orighially it was a court in name, for its power ex- tended only to the preparation of bills to be submitted to Congi-ess. In 1863 the number of judges was in- creased from three to five, its jurisdiction was en- larged, and it was authorized to render final judgment, subject to appeal to the Supreme Court and to an es- timate by the secretary of the treasury of the amount required to pay each claimant. Congress repealed this provision for an estimate — as inconsistent with the finality essential to judicial decisions; since which time the court has exercised all the functions of »• court. It is one of those ' ' inferior courts ' ' which Con- gress may establish.' As at first organized, the court was an auditing board authorized to pass upon claims submitted to it, and to report to the secretary of the treasury. He submitted to Congress, for an appropriation, such confirmed claims as he approved, with no right of ap- peal in the claunant. The jurisdiction of the court has received frequent additions by the reference of eases to it under special statutes, and by other changes in the general law; but the principle originally adopted of limiting its general jurisdiction to oases of con- tract, remains." Appeal lies from it to the Supreme Court in the ex- ercise of the general jurisdiction of the latter. And an appeal taken before the right therefor has expired is not vacated by an appropriation by Congress of the amount necessary to pay the judgment.' The act approved March 3, 1887 (24 St. L 605), pro- vides. That the court of claims shall have jurisdiction to hear and determine the following matters: First. All claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an executive de- partment, or upon any contract, express or implied, with the government of the United States, or for dam- ages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable: Frovided, however, That nothing in this section shall be construed as-giving to either of the courts herein mentioned, juzisdiction to hear and de- termine claims growing out of the late civil war, and commonly known as " war claims," or to hear and determine other claims, which have heretofore been rejected, or reported on adversely by any court, de- partment, or commission authorized to hear and de- termine the same. Second. All set-oflEs, counter-claims, claims for dam- ages, whether liquidated or unliquidated, or other / demands whatsoever on the part of the government of the United States against any claimant against the government in said com't: Frovided, That no suit ' United States v. Klein, 13 Wall. 144 (1871), Chase, Chief Justice. ' Langf ord v. United States, 101 U. S. 344-lS (1879), Miller, J. ; Gordon v. United States, 117 id. 69T (1864), Taney, C. J.; 1 Dev. Ct. CI. 41-53; 17 Ct. CI. 1^9: 7 South. Law Eev. 781-811 (1882). 8 United States v. Jones, 119 U. S. 477 (1886), Waite, C. J. Explains Gordon o. United States, and other cases. COURT 386 COURT against the government of the United States, shall be allowed under this act unless the same shall have been brought within six years after the right accrued for which the claim is made. Sec. 2. That the district courts of the United States shall have concurrent jurisdiction with the court of claims as to all matters named in the preceding sec- tion where the amount of the claim does not exceed one thousand dollars, and the circuit courts of the United States shall have such concurrent jurisdiction in all cases where the amount of such claim exceeds one tjiousand dollars and does not exceed ten thou- sand dollars. All causes brought and tried under the provisions of this act shall be tried by the court with- out a jury. Sec. 3. That whenever any person shall present his petition to the court of claims alleging that he is or has been indebted to the United States as an officer or agent thereof, or by virtue of any contract therewith, or that he is the guarantor, or surety, or personal rep- resentative of any officer, or agent, or contractor so indebted, or that he, or the person for whom he is such surety, guarantor, or personal representative has held any office or agency under the United States, or entered into any contract therewith, under which it may be or has been claimed that an indebtedness to the United States has arisen and exists, and that he or the person he represents has applied to the proper de- partment of the government requesting that the ac- count of such office, agency, or indebtedness may be adjusted and settled, and that three years have elapsed ff om the date of such application and said account still remains unsettled and unadjusted, and that no suit upon the same has been brought by the United States, said court shall, due notice first being given to the head of said department and to the attorney- general of the United States, proceed to hear the par- ties and ascertain the amount, if any, due the United States on said account. The attorney-general shall represent the United States at the hearing of said cause. The court may postpone the same from time to time whenever justice shall require. The judgment of said court or of the Supreme Court of the United States, to which an appeal shall lie, as in other cases, as to the amount due, shall be binding and conclusive upon the parties. The payment of such amount so found due by the court shall discharge such obliga- tion. An action shall accrue to the United States against such principal, or surety, or representative to recover the amount so found due, which may be brought at any time within three years after the final judgment of said court. Unless suit shall be brought within said time, such claim, and. the claim on the original indebtedness shall be forever barred. Sec. 4. That the jurisdiction of the respective com-ts of the United States proceeding under this act, includ- ing the right of exception and appeal, shall be gov- erned by the law now in force, in so far as the same is applicable and not inconsistent with the provisions of this act; and the course of procedure shall be in accordance with the established rules of said respect- ive courts, and of such additions and modifications thereof as said courts may adopt. Sec. 5. That the plaintiff in any suit brought under the provisions of the second section of this act shall file a petition, duly verified with the clerk of the re- spective court having jurisdiction of the case, and in the district where the plaintiff resides. Such petition shall set forth the full name and residence of the plaintiff, the nature of his claim, and a succinct state- ment of the facts upon which the claim is based, the money or any other thing claimed, or the damages sought to be recovered and praying- the coiu't for a judgment or decree upon the facts and law. Sec. 6. That the plaintiff shall cause a copy of his petition filed under the preceding section to be served upon the district attorney of the United States in the district wherein suit is brought, and shall mail a copy of the same, by registered letter, to the attorney-gen- eral of the United States, and shall thereupon cause to be filed with the clerk of the court wherein suit is in- stituted an affidavit of such service and the mailing of such letter. It shall be the duty of the district attor- ney upon whom service of petition is made as afore- said to appear and defend the interests of the govern- ment in the suit, and within sixty days after the service of ijetition upon him, unless the time should be extended by order of the court made in the case, to file a plea, answer, or demurrer on the part of the government, and to file a notice of any counter-claim, set-off, claim for damages, or other demand or defense whatsoever of the government in the premises: Pro- vided, That should the district attorney neglect or re- fuse to file the plea, answer, demurrer, or defense, as required, the plaintiff may proceed with the case under such rules as the court may adopt in the prem- ises; but the plaintiff shall not have judgment or de- crete for his claim, or any part thereof, unless he shall establish the same by proof satisfactory to the com-t. Sec. 7. That it shall be the duty of the.coxn-t to cause a written opinion to be filed in the cause, setting forth the specific findings by the court of the facts therein, and the conclusions of the court upon all questions of law involved in the case, and to render judgment thereon. If the suit be in equity or admi- ralty, the court shall proceed with the same according to the rules of such courts. Sec. 8. That in the trial of any suit brought under any of the provisions of this act, no person shall be excluded as a witness because he is a party to or in- terested in said suit; and any plaintiff or party in interest may be examined as a witness on the part of the government. Section 1079 of the Revised Statutes is hereby re- pealed. The provisions of section 1080 of the Revised Statutes shall apply to cases under this act. Sec. 9. That the plaintiff or the United States, in any suit brought under the provisions of this act shall have the same rights of appeal or writ of error as are now reserved in the statutes of the United States in that behalf made, and upon the conditions and limita- tions therein contained. The modes of procedure in claiming and perfecting an appeal or writ of error shall conform in all respects, and as near as may be, to the statutes and rules of court governing appeals and writs of error in like causes. Sec. 10. That when the findings of fact and the law applicable thereto have been filed In any case as pr6- vided in section six of this act, and the judgment or decree is adverse to the government, it shall be the COURT 287 COVENANT duty of the district attorney to transmit to the attor- ney-general of the United States certifled copies of all the papers filed in the cause, with a transcript of the testimony taken, the written findings of the court, and his written opinion as to the same; whereupon the attorney-general shall determine and direct whether an appeal or writ of error shall be taken or not; and when so directed the district attorney shall cause an appeal or writ of error to be perfected in accordance with the terms of the statutes and rules of practice governing the same; I^ovided^ That no appeal or writ of error shall be allowed after six months from the judgment or decree in such suit. From the date of such final judgment or decree interest shall be com- puted thereon, at the rate of four per centum per annum, until the time when an appropriation is made for the payment of the judgment or decree. Sec. 11. That the attorney-general shall report to Congress, sind at the beginning of each sfession of Congress, the suits under this act in which a final judgment or decree has been rendered giving the date of each, and a statement of the costs taxed in each case. ' Sec. 12. That when any claim or matter may be pending in any of the executive departments which involves controverted questions of fact or law, the head of such department, with the consent of the claimant, may transmit the same, with the vouchers, papers, proofs, and documents pertaining thereto, to said court of claims, and the same shall be there proceeded in under such rules as the court may adopt. When the facts and conclusions of law shall have been f omid, the coiu-t shall report its findings to the department by which it was transmitted. Sec. 13. That in every case which shall come be- fore the court of claims, or is now pending therein, under the provisions of an act entitled " An act to afford assistance and relief to Congress and the execu- tive departments in the investigation of claims and demands against the government," approved March 3, 1883, if it shall appear to the satisfaction of the court, upon the facts estabUshed, that it has jurisdiction to render judgment or decree thereon under existing laws or under the provisions of this act, it shall pro- ceed to do so, giving to either party such further op- portunity for hearing as in its judgment justice shall require, and report its proceedings therein to either House of Congress or to the department by which the same was referred to said court. Sec. 14. That whenever any bill, except for a pen- sion, shall be pending in either House of Congress provldmg for the payment of a claim against the United States, legal or equitable, or for a grant, gift, or bounty to any person, the House in which such bill is pending may refer the same to the court of claims, who shall proceed with the same in accordance with the provisions of the act approved March 3, 1883, entitled an " Act to afford assistance and relief to Con- gress and the executive departments in the investiga- tion of claims and demands against the government," and report to such House the facts in the case and the amount, where the same can be liquidated, including any facts bearing upon the question whether there has been delay or laches in presenting such claim or ap- plying for Buch grant, gift, or bounty, and any facta bearing upon the question whether the bar of any statute of limitation should be removed or which shall be claimed to excuse the claimant for not having re- sorted to any established legal remedy. Sec. 15. If the government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue. Such costs, however, shall include only what is act- ually incurred for witnesses, and for summoning the same, and fees paid to the clerk of the court. Sec. 16. That all laws and parts of laws inconsistent with this act are hereby repealed. For additional information as to the powers and practice of the United States courts see particular terms, such as Admiralty; Bakkruptcy; Citizen; Comity; Constitution; Contempt, 1; Costs; Deposi- tion; Discretion, 3- 5; Gown,1; Jurisdiction, 2; Law, Common, Supreme; Marshal, 1 (3); Procedure; Eb- KOVAL, 8; Ees, 2; Staie, 3 (3); Suit, 3; Venue; Wit- ness. COURT-MAIlTIAIi. See Martial. COURT- YARD. See Court, 1 ; Curti- lage. COUSIIT. Sometimes means a cousin by- marriage. A similar usage obtains as to the words " nephew " and " niece." A person spealdng of another by his name and relationship is likely to be most ac9urat6a3 to the name.' See Consanguinity. COVENANT.'' 1. A promise under seal : as, a covenant to pay rent. ' May be used not in its limited, technical sense of a promise evidenced by a sealed in- strument, but in the wider sense of any con- tract in general.* Although words of proviso and condition may be construed as words of covenant, if such be the appar- ent intent and meaning of the parties, covenant will not arise unless it can be collected from the whole in- strument that, on the part of the person sought to be ch j,rged, there was an agreement, or an engagement, to do or not to do some particular act.* A covenant or convention is a clause of agreement in a deed, whereby either party may stipulate for the truth of certain facts, or bind himself to perform, or give, some- thing to or for the other.' Thus, the grantor of land may covenant that he has a right to convey, or for the grantee's quiet enjoyment, or the like; the grantee may covenant to pay rent, or to keep the premises in repair," etc. 1 Cloak V. Hammond, 82 Law Times, 134, 97 (1886): 35 Alb. Law J. 66. iiF. covenant, convenant, agreement: L. convenire, to come together, agree. a [Greenleaf v. Allen, 127 Mass. 253 (1879). lEiddle v. McKinney, 67 Tex. 32 (1886), Gaines, A. J. 6 Hale V. Finch, 104 U. S. 868-69 (1881), cases, Har- lan, J.; 63 Tex. 226. • [2 Bl. Com. 304. COVENANT 388 COVENANT Covenantor. He who makes a covenant. Covenantee. He in whose favor a cove- nant is made. Express covenant. A covenant explic- itly stated in words. Implied covenant. Such covenant as is inferred or imputed in law from words used.i Express covenants are also called covenants in deed; and implied covena,nts, covenants in law. Any words, such as "Icovenant," "lagree," "Ibind my- self," plainly showing: an intent to be bound, raise an express covenant; while a covenant may be implied from the use of such words as " gi-ant," "bargain and sell," "give," " demise," ^ q. u Joint covenant. A covenant that binds all the covenantors together as one person. Several covenant. Such as binds each covenantor separately. Joint and several covenant. Binds all covenantors together, or each singly. When the legal interest in a covenant and in the cause of action thereon is joint, the covenant is joint, although in its terms it may be several, or joint and several.^ See further Joint. Dependent covenant. A covenant in which the obligation for performance is con- ditioned upon performance of another cove- nant, made prior or at the same . time. Independent covenant. In this the duty of performance rests solely upon the terms of the covenant in itself considered, irrespective of the performance or non-performance of any other covenant. A "dependent covenant" rests upon the prior performance of some act or condition, and until the condition is performed the other party is not liable to an action on his cove- nant. Under an "independent covenant" either party may recover damages from the other for injuries received by a breach of the covenants in his favor ; and it is no excuse for the defendant to allege a breach of covenants on the part of the plaintifiE.* If the whole is to be performed on one side, before anything else is to be done on the other side, the cove- nants are dependent, and performance is a condition precedent. But if something is to be done one side, be- fore the whole can be performed on the other, the cove- nants are independent. . . A dependent stipulation is a condition, performance of which must be averred and proved in order to a recovery. Mutual and independ- 1 See Conrad v. Morehead, 89 N. 0. 84 (1883). = See 4 Kent, 468, 473. s Capen v. Barrows, 1 Gray, 379 (1854), cases, Me't- calf, J. See Calvert ij. Bradley, 16 How. 696 (1883). * Bailey v. White, 3 Ala. 331 (1843), Collier, 0. J. ent stipulations are not conditions, but each party has a remedy by action for non-performance by the other, by showing performance on his own part.' Whether a covenant is dependent or independent is determined, in each case, by the intention of the par- ties as it appears on the instrument, and by the appli- cation of common sense; to which intention, when once discovered, all technical forms of expression must give way.^ Mutual covenants. Covenants as to which the thing to be done by one party is the consideration of the thing to be done by the other. When a specified thing is to be done by bne party as the consideration of the thing to be done by the other party, the covenants are mutual, and also dependent, if they are to be performed at the same time; and if, by the terms or nature of the contract, one is first to be performed as the condition of the obligation of the other, that which is first must be done or tendered be- fore the party who is entitled to its performance can sustain a suit against the other party. If a day is fixed for the performance of a mutual covenant, the party whose duty it is to perform or tender perform- ance first must do it on that day, or show his readiness to do it, else he cannot recover for non-performance by the other party. But both at common law and in chancery there are exceptions, growing out of the nature of the thing to be done and the conduct of the parties. The case of part performance, possession, etc., in chancery, where time is not of the essence of ' the contract, or has been waived by acquiescence, is an example of the latter; and the case of contracts for building houses, raUroads, etc., in which the means of the builder and his labor become combined and affixed to the soil, or mixed with materials and money of the owner, afford examples at law.^ When mutual covenants go to the whole considera- tion on both si(^s they are mutual conditions, the one precedent to the other; where they go to a part only, a remedy lies on one cdvenant to recover damages for a breach of it, but it is not a condition prece- ■dent.2 Heal covenant. Such a covenant as affects realty, binding it in the hands of the covenantor, his grantee or devisee. Per- sonal covenant; A covenant obligatory upon the maker only, or to the extent of his personalty. If the covenantor covenants for himself and his "heirs," his covenant is , real, and descends upon the heirs, who are bound to perform it, provided they have assets by descent; if he covenants also for his 1 White V. Atkins, 8 Cush. 370 (1851), cases, Shaw, C. J. ; Matthews v. Jenkins, 80 Va. 467-68 (1885), cases. "Lowber v. Bangs, 2 Wall. 730 (1864), cases; Lewis v, Chisolm, 68 Ga. 44-46 (1883), cases; Neis v. Tecum, 16 F. R. 170 (1883), cases; The Tornado, 108 U. S. 351 (1883); . Cutter V. Powell, 3 Sm. L. C. 22-66, cases. s Phillips, &o. Construction Co. v. Seymom', 91 U. S. 650 (1876), MUler, J. C6VENANT 289 COVENANT " executors " and " administrators," both his personal and real assets stand pledged for the performance.' A real covenant has for its object something an- nexed to, or inherent in, or comieeted with, land or other real property ; and runs with the land, so that the grantee is invested with it, and may sue upon it for any breach happening in his time.' Of covenants real the most important are covenants for title, which assure the full en- joyment of whatever the deed purports to convey : the covenants — of seisin, of a right to convey, for quiet enjoyment, against in- cumbrances, for further assurance, and of warranty, qq. v. In the United States they are sometimes called " full covenants." ' Other covenants relating to realty are : a covenant to convey ; against nuisances or a particular use ; to renew a lease.^ An article of agreement for the sale of land is a covenant to convey the land.* A covenant of a right to convey means that the covenantor has the capacity and a right to transfer the land in question: the same as a covenant of seisin,* q. v. ' A covenant " runs with the land " when either the liability to perform it, that is, its burden, or the right to take advantage of it, that is, its benefit, passes to the assignee of the land.' Covenants running with the land are : those annexed tp tile estate, such as the ancient warranty, now rep- resented by the usual covenants of title; and those which are attached to the land itself, such as the rights of common or easements. Species of the latter «lass, to be enforceable against the assignees of the covenantor, must "touch and concern" or "extend to the support of " the land conveyed.* On covenants to stand seized to uses, see Use, 3. Other terms by which covenants are dis- tinguished are : affirmative, that a thing has been or shall be done, and opposed to nega- tive, not to do a thing ; alternative or dis- junctive, affording an election between things to be done ; auxiliary, relating to an- other covenant as the principal, and dis- charged with it; collateral, connected with a gi-ant, but not relating immediately to the thing, and opposed to inherent, affecting the particular property immediately ; concurrent, ' 2 Bl. Com. 304. = Davis V. Lyman, 6 Conn. 255 (1886), Hosmer, C. J. • Eawle, Gov. Title, 24-3T, 318. * See 4 Kent, 473. 'See Espy v. Anderson, 14 Pa. 308 (1850); 11 111. 194; 19 Ohio, 347; 4 Md. 498; 19 Barb. 639. » 2 Wash. E. P. 648; 10 Me. 91; 10 Cush. 134. ' Savage v. Mason, 3 Cush. 505 (1&49); Shaber v. St. Paul Water Co., 15 Eep. 339 (1883); Spencer's Case, 1 Sm. L. C. * 120-83, cases. «Norcros8 v. James, 140 Mass. 189 (1885), oases, Holmes, J. : 25 Am. Law Beg. 64. (19) to be performed at the same time with an- other; declaratory, limiting or directing a use; executed, performed, and opposed to ex- ecutory, to be performed in the future ; gen- eral, relating to lands generally and placing the covenantee in the position of a, specialty creditor, and opposed to special, relating to particular land and giving the covenantee a lien thereon ; transitive, passing over to the representatives of the maker, and opposed to intransitive, limited to the covenantor him- self. A grantor, conveying by deed of bargain and sale, by way of release or quitclaim of all his right and title to a tract of land, if made in good faith, without fraudulent representation, is not responsible for the goodness of the title beyond the covenants in his deed. He conveys nothing more than the estate of which he is possessed at the time; his deed does not pass an interest not then in existence. If the vendee has contracted for a partipular estate, or for an estate in fee, he must take the precaution to secure himself by proper covenants of title. This principle is applicable to a deed of bargain and sale by release or quitclaim, in the strict sense of that species of conveyance. M the deed bears on its face evidence that the grantor in- tended to convey and that the grantee expected to become invested with an estate of a particular de- scription or quality, and that the bargain had pro- ceeded upon that footing, then, although it may not contain covenants of title in the technical sense, still the legal effect of the instrument will be as binding upon the grantor in respect to the estate thus de- scribed as if a formal covenant to ttiat effect had been inserted; at least so far as to estop him from ever afterward denying that he was seized of the particular estate at the time of conveyance, i In the absence of a recital estopping the grantor as to the character of his title or the quantum of interest to be conveyed, a covenant of general warranty, where the estate conveyed is the present interest of the grantor, does not operate as an estoppel to pass a title subsequently acquired. = 2. An action, or a form of action, at com- mon law to recover damages for the breach of a contract under seal. A covenant to do or to omit a direct act is a species of express contract, the breach of which is a civil in- jury. The remedy for any disadvantage or loss is by a writ of covenant, which directs the sheriff to com- mand the defendant generally to keep his covenant with the plaintiff or to show good cause to the con- trary. If the defendant continues refractory, or the covenant is already so broken that it cannot be specif- ically performed, the subsequent proceedings set forth with precision the covenant, the breach, and the loss 1 Van Rennselaer v. Kearney, II How. 322-23 (1850), cases. Nelson, J. SHanrick v. Patrick, 119 IT. S. 175-76 (1888), cases, Matthews, J. ; Eawle, Cov. Tit. 393. COVER 290 CREDIBLE which has happened thereby; whereupon the jury wUl give damages in proportion to the injury sustained.^ Performance of a condition precedent (g. v.)^ if there is any such condition, must he averred.^ " Debt " will lie where the damages are liquidated. Under the plea of non est factum (he did not make it), the defendant may show any fact contradicting the making of the instrument ; as, personal incapacity, or that the deed was fraudulent, was not executed by all the parties, or was not delivered. In Pennsylvania the defendant may plead " cove- nants performed with leave, etc.," that is, with leave, after notice to the plaintlCE, to offer in evidence any- thing that amounts to a lawful defense. ' " Covenants performed, absque hoc " (without this) admits the ex- ecution, but puts the plaintiff to proof of performance. . . " Covenants performed, "although in substance & denial of the breach alleged, is au affirmative plea, and does not put the execution of the instriunent in issue. " Absque hoc " puts in issue the performance on the part of the plaintiff as alleged by him. " With leave, etc.," implies an equitable defense^ such as arises out of special circumstances, which the defend- ant intimates he means to offer in evidence.^ See Condition; Contract; Factum, Non est; Pos- sibility; Provided; Seizin; Warranty, 1. COVER. SeeCovEET; DISCOVERY. COVERT.* 1. Covered, protected : as, a pound covert. See Pound, 2. 3. Implied, inferred : as, a covert condition. 3. Under the disability of marriage ; mar- ried. Discovert. Unmai-ried, whether said of a widow or of a spinster. Covert baron. A wife: under the pro- tection of her husband or baron,* q. v. Feme covert. A married woman : under the wing, protection or cover of her hus- band. * Coverture. The condition of a woman during marriage. Discoverture. Not subject to the disability of being married. Used as pleas in abatement, g. u, and in speaking of the rights and liabilities of married women gener- ally. See further Disability; Feme, Covert; Husband. COVIN'.'' "A contrivance between two to defraud or cheat a third." ' ' ' A secret assent determined in the hearts of two or more to the prejudice of another." ^ 1 3 Bl. Com. 156-B7. = 1 Chitty, PI. 116. ■ Farmers', &c. Turnpike Co. v. McCuUough, 25 Pa. 304 (1855); 4 Dall. 439; 5 Pa. 189; 8 id. 372; 25 id. 303; S8 id. 75; 70 id. 194 ; 79 id. 336 ; 96 id. 239-40. See Act 25 May, 1887: P. L. 271. * Kiiv'-ert. F. covrir, to cover. = [1 Bl. Com. 442. ' F. couvenir, to agree, covenant. ' Mix v. Muzzy, 28 Conn. 191 (1859): Ld. EUenboroiigh. « Ciirdlestone v. Brighton Aquarium, 3 Ex. Div. 142 (1878): Termes de la Ley (1708, 17131). Covinous. Collusive, fraudulent. An example is where a tenant for life or tail secretly conspires with anothe* that he shall recover the land held by such tenant to the prejudice of the reversioner. COW. See Animal; Ceueltt, 3. A distinction between cow and heifer may or may not be intended in penal statutes,' and in a statute ex- empting a cow from sale on execution.^ See Heifer. CB. Criminal; crown. CRAFT. See Vessel. CRANK. Has no necessary defamatory meaning, any more than to say of one that he is capricious or subject to vagaries or whims. 3 Does not necessarily imply that a man has been guilty of a crime, nor tend to subject him to ridicule or contempt. If the word has such import it should at least be averred and proven.' CRAVE. See Oyer. CREATE. See Charter, 3. CRiEDIBLE.'' 1. Worthy of belief; de- serving of confidence. See Credit, 1. 3. Entitled to be heard as a witness ; com- petent. Competent to give evidence, and worthy of belief. The English statute as to the execution of wills prior to 1838 required witnesses to be " credible." This was held to mean such persons as were not disquali- fied from giving testimony by imbecility, interest, or crime.* This rule has been followed in Connecticut, Ken- tucky, Massachusetts, Mississippi, South Carolina, and several other States.* As used in a statute requiring that a will disposing of realty shall be attested by credible witnesses, is equivalent to competent; not as meaning, in the loose popular sense, a person of good moral character and reputation in fact, and personally worthy of belief, but a person entitled to be examined in a court of jus- tice, though subject to have his actual credit weighed and considered by the court or jury; and to be exam- ined upon the question whether the will was duly exe- cuted, and by a person of disposing mind.^ Credibility. Being entitled to be be- lieved ; w^orthiness of belief. In deciding upon the credibility of a witness it is usual to inqiure whether he is capable of knowing a 1 King 1). Cook, 1 Leach, Cr. C. 123 (1774) ; 2 East, P. O. 616. ^ Carruth v. Grassie, 11 Gray, 211 (1858); Pomeroy o. Trimper, 8 Allen, 400 (1864). ' » Walker v. Chicago Tribune Co., 39 F. E. 827 (1887), Blodgett, J. < L. credere, to believe, trust; also, to lend. • 1 Jarman, Wills, 124. » Fuller V. Fuller, 83 Ky. 350 (1885), cases, ' [Haven v. HUliard, 23 Pick. 18 (1839), Shaw, C. J.; Amory v. Fellows, 6 Mass. *228 (1809), Parsons, 0. J.; Jones V. Larrabee, 47 Me. 476 (1860), Appleton, J. ; 38 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 he was actually present; what attention he gave to the occurrence; and whether he honestly relates the affair as he remembers it.' Credibility depends upon veracity and capacity to observe." Literal comcidence of oral statements may affordground for suspicion.s Affirmative testimony is the strongest.* When the credit due to witnesses is equal, preponderance is to be given to number." Cred- ibility is forthe Jury." See further Chakacteb; Com- petency; Impeach, 8; Witness. CREDIT. 1. In its primary sense, as a noun and a verb, imports reliance upon some- thing said or done as the truth: belief or faith in testimony. Discredit. To diminish the reliance to be placed upon testimony on any account whatever, and not necessarily for want of veracity in a person or for want of genuine- ness in a document. Compare Impeach, 3 ; Infamy. General credit. The general credit of a witness is his character as a credit-worthy man. Particular credit. Credit as a wit- ness in a particular action.' See Credible. 2. The capacity of being trusted.^ The trust reposed in an individual, by those who deal with him, that he is able to meet his engagements.' In an enlarged commercial sense, implies reputation and confidence ; a basis 'on which the possessor may trade without immediate payment.'" The term also comprehends what is due to another person; and, again, time given in which to pay for a thing bought. Credit is, strictly, a benefit as a means to procure property, and is not in itself recognized as property. Its whole office is to obtain trust. It is available to another by gift, sale, etc. Given gratuitously, it is i loan; given for a consideration, a sale of credit." Every contract for labor, not paid for in advance, is a contract upon credit; because the labor, when once performed, cannot be recalled. It is otherwise where property is to be paid for on delivery, for a delivery need not be made.^^ 1 See 1 Greenl. Ev. §§ 2, 49, 431 ; 3 BI. Com. 369. » 1 Whart. Ev. § 404. ' 1 Whart. Ev. § 413. 1 Story, Eq. §§ 546^9; Richmond v. Irons, 121 tJ. S. 44 (1867), cases. 2 Kennedy «. Creswell, 101 V. S. 646-46 (1879), cases. ' Case V. Beauregard, 101 U. S. 690-91 (1679), cases, Strong, J. « Newman v. Willetts, 52 111. 98 (1869) : Chancery Code, §§ 36-37. ^ ICi*a'-de-mo-b6-le-a'. F. w^dii, credit; mobiliei', movable, personal: L, mobilis, movable. CREW 293 CRIME jeetof promoting industrial enterprises, such as the construction of railways, the sinking of mines, and the like.i CHEW. See Revolt ; Ship. Whenever, in a statute, the words "master" and " crew " occur in connection with each other, " crew " embraces all the officers as well as the common sea- men — the ship's company; as, in the act of March 3, 1835, § 3, which punishes cruelty by a master or other officer, toward the crew,* CKIiEiIl. One who proclaims: an officer of a court whose duty it Is to announce the opening and adjournment of the court; to call the names of suitors, jurors, and wit- nesses; to proclaim that the acknowledg- ment of a sheriff's deed is about to be taken, or a special return received of the distribu- tion made of the proceeds of a sale by the sheriff; and to make various other procla- mations of a public nature, undel' the direc- tions of the judges of the court. ^ On the assembling of the Supi-eme Court the proc- lamation made by the marshal is in these words: " The honorable the chief justice and associate justices of the Supreme Court of the United States. Oyez! oyezi oyez! all persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this honorable Court." " Let the cryer make proclamation and say, O yes, O yes, O yes. Silence is commanded in the Court, While the Justices are sitting, upon pain of imprison- ment. After sUence is Commanded, The Cryer shall make a proclamation saying: All manner of persons that have anything to doe, at this Court, Draw Nigh and give your attendance, and if any person shall have any Complaint to enter, or suit to prosecute. Let them Draw near, and they shall be heard." « GRIM. CON. See Conversation, 1. CRIME. An act committed or omitted in violation of a public law either forbidding or commanding it.5 See Crimen. A wrong of which the law takes cogni- zance as injurious to the public, and pun- ishes in what is called a criminal proceeding prosecuted by the State in its own name or in the name of the people or the sovereign." A crime is a breach and violation of the public rights and duties due to the whole community in its social aggregate capacity; a public wrong. Distinguished from a pri- vate wrong, which is a civil injury or tort.l Crime and misdemeanor are synonymous terms; though, in common usage, " crimes " denotes such of- fenses as are of a deeper and more atrocious dye; while smaller faults, and omissions of less conse- quence, are comprised under the gentler name of " misdemeanors." ' See Misdemeanor, 8, In short, the term "crime" embraces any and every indictable offense. '^ Yet it is not synonymous with " felony." ' Capital crime. A crime punishable with death. See Punishment, Capital. High crime. Used, with no definite meaning, in prosecutions by impeachment; merely serves to give greater solemnity to the charge. High crimes and misdemeanors are such immoral and unlawful acts as are nearly allied and equal in guilt to felony, yet, owing to some technical circum- stance, do not fall within the definition o^ felony.* Infamous crime. Offenses which ren- dered the perpetrator infamous at common law were treason, felony, and the crimen falsiJ> See further Infamy. Statutory crime. An act which has been made a criminal offense by enactment of a legislature. Common-law crime, or crime at common law. Any indictable offense at common law. All offenses against the government of the United States are of statutory origin: no common-law offense can be committed against it.» See Law, Common. Crimes may be classified as offenses against the sovereignty of the state; against the public — peace, health, justice, trade, policy, property; against the lives and persons of individuals; agamst private prop- erty; against the currency, and public and private securities; against religion, decency, and morality; against the law of nations, qq. v. Established principles are: That the trial of all crimes, except in cases of impeachment, shall be by , jury, and m the State where the same was committed; but when not committed within any State, the trial shall be at such place as Congress may have directed.' No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or Indictment of a grand jury, nor be subject for the 1 [Worcester's Diet. 2 United States v. Winn, 3 Sumn. 212 (1838), Story, J. » See R. S. § T15. i Laws of Province of Penn. (1683): Linn, 128. = 4 Bl. Com. 5. Be Bergin. 31 Wis. 386 (1872). See 1 Bish. Cr. L. § 32. 1 [4B1. Com. 5; 3 id. 2. = See People v. Police Commissioners, 39 Hun, 610 (1886)- 7 Conn. 18.5; 00 111. 168; 3 J N. J. L. 144; 9 W^nd. ai2; 9 Tex. 340; 24 How. 102; 26 Vt. 208; 41 id. 511; 2 N. Y. Rev. St. 70, § 22. 3 County of Lehigh i-. Schock, 113 Pa. 379 (1886). •State uKnapp, 6 Conn. 417(1H27): 1 Russ. Cr. 61. See Const. Art. II, sec. 4; 21 How. 102. s PeoDle V. Toynbee, 20 Barb. 189 (1835). e United States v. Britton, 108 U. S. 206 (1883); United States I'. Walsh, 5 Dill, qo (1878). ' See Constitution, Art. Ill, sec. 3, cl. 3. CEIME 294 CRIMEN same offense to be twice put in jeopardy of life and limb; nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, lib- erty, or property without due process of law.' In all criminal prosecutions the accused shall enjoy the right of a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be con- fronted with the witnesses against him; to have com- pulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. ^ No ea: post facto law shall be passed — by Congress or by any State.' The foregoing principles restrict the power |0f the United States government, and do not affect State legislation. But the same principles, expressed in identically or substantially the same language, are also found in the constitutions of the States, as part o{ the rights which are declared to be excepted out of the general powers of government, and not delegated to the law-efiacting department. See in detail the names of particular crimes; also Accessary; Accident; Aid, 3; Attempt; Bail, 2; Cause, 2; Character; Commit, 3; Compact, Social; Compound, 4; Confession, 2; Confront; Convict; Costs; Damages; Deceit, 2; Decoy; Degree, 3; De- liiBERATioN, 3; Drunkenness; Duel; Doubt, Reason- able; Equity; Evidence; Extradition; Factum, Ex post; Felony; Fine, 2; Forfeiture; Guilty; Igno- rance; Indictment; Infamy; Innocent, 3; Insanity, 2 (6); Intent; Jeopardy; Jury, Trial; Merger, 3; Obscene; Pardon; Police,- 3, 3; Premeditate; Pre- sent, 1; Process, 1; Punish; Ratification; Revolt; Reward, 1; Sentence; Waiver; Will, 1; Witness; Wrong. Compare Crimen; Delictum. Criminal. 1, adj. Involving the com- mission of an oflEense against the public ; also, pertaining to the law upon the subject of pub- lic wrongs or crimes. Opposed to civil, q. v. As, criminal or a criminal — act, action, case, contempt, conversation, court, infor- mation, intent, jurisdiction, law, libel, of- fense, procedure, process, prosecution, qq. v. 3, n. A person who has committed an in- dictable oflEense against the public. Compaj-e Convict, 2. Criminate. To exhibit evidence of the commission of an indictable offense ; to show or prove to be guilty of crime. No person *' shall be compelled in any Criminal Case to be a witness against himself." * ' See Constitution, Amd. V. 2 See Constitution, Amd. VI. 3 See Constitution, Art. I. sec. 9, cl. 3; sec. 10, par. 1. As to criminal jurisdiction in the Federal coui'ts see under Courts, United States, and 36 Am. Law Reg. 703-9 (1887), cases. * Constitution,' Amd. V, A witness cannot be compelled to answer a ques- tion which may expose him to a penalty or punish- ment.' A statement made under compulsion cannot be used to show guilt: confessions (g. u) are to be free and voluntary, 2 But a party cannot claim this privi- lege. The danger to prosecution must be real. Ex- posure to civil liability, or to police prosecution, will not excuse. The court determines as to the reason- ableness of the objection. Waiver of part of the privi- lege waives all. Pardon and statutes of indemnity do away with protection. ^ If an accused person offers himself as a, witness in his own behalf to disprove the charge he thereby waives his privilege as to all matters connected with the offense.* An accused may be cross-questioned as to whether he has not been convicted of other charges of crime.* A party on trial for violating an election law who testifies that he did not write names unlawfully en- tered in a registration book may be compelled, on cross-examination, to write the names in the presence of the jury, as evidence in rebuttal.* Exoriminate. To free from a charge or suspicion of crime; to exculpate. Whence excriminatory. Incriminate. To charge with crime; to criminate; to inculpate. Whence incrimi- natory. Recriminate. To charge crime back upon an accuser; particularly, for the respond- ent in divorce proceedings to acknowledge the offense charged and to make a counter- accusation against the libelant. Whence re- crimination, recriminative, recriminatory. Recrimination as a bar to divorce is not limited to a charge of the same nature as that alleged in the libel. It is sufficient if the counter-charge is a cause for divorce of equal grade. Thus, in Massachusetts, a respondent charged with adultery may reply that the libelant was at the time serving a sentence in the State prison.' CBIMEN. L. A crime, a fault; literally, a judicial decision, or that which is subjected to a judicial decision ; an accusation of wrong. ' 1 Greenl. Ev. § 4S1. 2 Emery's Case, 107 Mass. 180 (1871); United States v. H-escott, 3 Dill. 405 (1872); 1 Den. Cr. Cas. 336. = See United States v. M'Carthy, 18 F. R. 87 (1883); Youngs V. Youngs, 5 Redf. 506, 509-11 0882), cases; Exp. Reynolds, 30 Ch. D, 394 (1883); 1 Whart. Ev. §§ 633^0; 8 Crim. Law Mag. 313. That com-t to decide, see also Sxp. Stice, 70 Cal. 63 (1886). * Spies et al. v. People, 132 111. 235 (1887); Whart. Cr. Ev. § 433. . * State V. Pfeflerle, 36 Kan. 92-96 (1886), cases: 35 Alb. Law J. 63. "United States v. MuUaney, 33 F. E. 370 (1887), Brewer, J. ' Mon-ison v. Morrison, 143 Mass. 362 (1886), cases; Handy v. Handy, 124 id. 395 (1878), cases. CRIMINAL S95 CROP Crimen falsi. The crime of deceiving or falsifying. At common law, any offense in- volving falsehood, and which might inju- riously affect the administration of justice by the introduction of falsehood and fraud, i The exact extent and meaning of the expression is nowhere stated with precision. In the Roman law it included every species o£ fraud and deceit.' Offenses Included, at common law, are; forgery, perjury, subornation of perjury, suppression of testi- mony by bribery or by conspn^cy to procure the non- attendance of witnesses, conspiracy to accuse an innocent person of crime, barratry, counterfeiting money or an official seal, making or dealing by false weights or measures, falsification of records. To this list others have been added by statute. The effect of a conviction for a crime of this class is infamy, 3 q, v. Crimen Isesse majestatis. The crime of wounding majesty : treason, q. v. Flagrans crimen. A crime being com- mitted. Flagrante orimine. While a tfrim- inal act is being committed; literally, a crime in its very heat. Locus criminis. The place of a crime — where committed. Partieeps criminis. One who takes part ' in a crime ; an accomplice. See Particeps. CRIMLNAL; CRIMINATE. See under Crime, p. 294. criticism:, see Review, 3. CROP. That which is cropped, cut, or gathered ; 3 the valuable part of what is planted in the earth ; fruit ; harvest. Com- pare Cultivation ; Fructus. Crop-time. That portion of the year which is occupied in making and gathering the crops.* Aivay-going crop. A crop sown by a tenant who will be no longer tenant at har- vest-time ; that is, a crop which is sown be- fore but ripens after the end of the tenant's term. Where the term of a tenant for years depends upon a certainty, as if he holds from midsummer for ten years, and in the last year he sows a crop, which is not cut before the end of his term, the landlord shall have the crop; for the tenant knew the expiration of his term, and it was his own folly to sow what he could never reap the profit of. Otherwise, however, where ' [1 Greenl. Ev. § .373. See also Barbour v. Common- wealth, 80 Va. 888 (1885). ' See United States v. Block, 4 Saw. 212-13 (1877), cases; Barker v. People, 20 Johns. *460 (1823); Webb v. State, 29 Ohio St. 358 (1876). » [Webster's Diet. o Martin v. Caiapman, 6 Port. 351 (Ala., 1838). the lease depends upon an uncertainty, as, the life of some one, or an act of God.i But now, generally, where the lease ends in the sprmg, the tenant has the crop of winter grain sown the autumn before; and the straw is part of the crop. See Emblements. Growing crop. Any annual crop raised by cultivation. In some States, regarded as personalty, and leviable with a right to harvest it; in a few States, realty. Whether a contract for the sale of a growing crop is for "an interest in or concerning lands," to be in writing under the Statute of Frauds, seems to be an- swered in conformity with the intention of the parties. And so as to growing grass, growmg trees, and fruits; although, according to some cases, emblements only are to be considered as chattels, while the spontaneous growth of the land remains a part of it, at least, until i-ipe and ready for removal. Whenever the parties connect the land and its growth together the growth comes within the statute. ' " The lien of a mortgage on a growmg crop contm- ues on the crop after severance, whether remaining in its original state or converted into another product, so long as the same remains on the land of the mort- gagor. ' ' Such lien is not lost by a tortious removal by a person having constructive notice of the lien; and the mortgagee may maintam an action for the con- version. ^ Outstanding crop. A crop in the field — not gathered and housed, without regard to its state. It is "outstanding" from the day it commences to grow until gathered and taken away. 4 See Fair ; Harvest. Cropper. One who, having no interest in the land, works it in consideration of receiv- ing a portion of the crop for his labor.* One hired to work land and to be compen- sated by a share of the produce.* He has no estate in the land; his possession is that of the landlord, who must divide off to the cropper his share of the crops. A " tenant " has an estate in the land, and a right of property in the crops. Until division, the right of property and of possession in the whole crop is the tenant s.' Where the contract is that the land-owner shall give the cropper a part of the produce after paying all ad- vances, and the crop has been divided, the cropper is not a tenant, but a mere employee ; the ownership of the entire crop is in the land-Owner, and if the cropper 1 2 Bl. Com. 145. s 3 Pars. Contr. 31 ; 3 Kent, 477; 4 id. 73; 1 Wash. E. P., 4 ed. p. 9; 3 Bl. Com. 10; Freeman, Exec. 113, cases; Benj. Sales, 120; 69 Tex. 637. s Wilson V. Prouty, 70 Cal. 197 (1886); Cal. Civ. Code, § 2972. * SuUins V. State, 53 Ala. 476 (1875), Brlckell, C. J. 5 [Frye v. Jones, 2 Eawle, *12 (1829). » Steel V. Frick, 56 Pa. 175 (1867); Adams v. McKes- son, 53 id. 83 (1866). ' HaiTison v. Eioks, 71 N. C. 10 (1874), eases. CROSS 396 CRUELTY forcibly, or against consent, takes tlie crop from tlie possession of tlie owner, the taking constitutes lar- ceny, robbery, or other offense, according to the cir- cumstances.' See Distress, 4, 5. CROSS. 1, V. To intersect, q. v. Crossing. Before a person enters upon a railroad crossing he must use aU his senses, take all the pre- caution he reasonably can, to ascertain that he may cross in safety.^ Cross-'walk. See Sidewalk. 2, n. (1) A mark, instead of his name, made by a person who cannot write, or is disabled from writing. See Signature. (3) The character x is sometimes used to Indicate " cross-examination." ^ 3, adj. In the inverse order ; counter ; made by the opposite party. Applied to things which are connected in subject-matter, but run counter to each other.* As, a cross — action, appeal, bill, demand, error, examination or question, interroga- tory, remainder, qq. v. CEOWN. Tlie sovereign; the royal power; also, that which concerns or pertains to the ruling power — the king or queen. In use, similar to our terms State, Com- monwealth, Government, People.^ Cro'wn case. A criminal prosecution. Crown debt. A debt due to the govern- ment. Crown law. Criminal law. Crown office, or side, the criminal side of the court of King's or Queen's bench. Crown paper. A list of criminal cases awaiting hearing or decision. Crown pleas, or pleas of the crown. Criminal causes. Opposed, common pleas: civil actions between subject and subject. The king, in whom centers the inajesty of the whole people, is the person supposed to be injured by every infraction of public rights, and is the proper prose- cutor." See KiHO. CmrEL. See Cetjelty ; Punishment. CBUELTY. Ill-treatment; maltreat- ment; abuse; unnecessary infliction of pain, 1 Parrish v. Commonwealth, 81 Va. 1, 7, 12 (1884), cases; Taylor, Landl. & T. 21. See also Hammock v, Creekmore, 48 Ark. 265 (1886). 2 Ormsbee v. Boston, &c. E. Co., 14 E. 1. 103-8 cases. s 18 S. C, 60-61. * [Abbott's Law Diet. » See 106 U. S. 208. «4B1. Com. 2; 3 id. 40. generally physical ; immoderate, unrestrained chastisement; violence; inhuman conduct. Not usually employed in speaking of a battery, malicious mischief, mayhem, or other like act with respect to which the parties are viewed as members of ■ the community; but in cases where they sustain a. special relation, as, that of husband and wife, parent and child, guardian and ward, teacher and pupil. 1. Cruelty as between Husband and Wife. Such cruelty as causes injury to life, limb, or health, or creates danger of such in- jury, or a reasonable apprehension of such danger. 1 Actual personal violence or the reasonable apprehension of it ; such course of treatment as endangers life or health, and renders co- habitation unsafe.^ The last definition, which accords with the present doctrine of the English courts,^ has been frequently approved.* Anything that tends to bodily harm and thus renders cohabitation unsafe ; or, as ex- pressed in the older decisions, that involves danger of life, limb, or health.^ Not, mere austerity of tempet*, petulance of man- ner, rudeness of language, want of civil attention and accommodation, or even occasional sallies of passion that do not threaten harm, — which merely wound the feelings without being accompanied by bodily injury or actual menace. ^ Extreme cruelty. Any conduct, in one of the married parties, which furnishes rea- sonable apprehension that the continuance of ^cohabitation would be attended with bodily harm to the other.' It is now generally held that any unjustifiable con- duct, on the part of either the husband or the wife, which so grievously wounds the mental feelings or so destroys the peace of mind as to seriously impair the bodily health or endanger the life, or such as in any other manner endangers the life, or such as destroys the legitimate objects of matrimony, constitutes " ex- treme cruelty " under statutes, although no personal or physical violence be inflicted or even threatened.' Compare Indignity. See Divorce. 1 [Bailey v. Bailey, 97 Mass. 378 (1867), cases. Chap- man, J.; Peabody v. Peabody, lOiid. 197 (1870). 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 Jones V. Jones, 66 Pa. 498 (1871), Agnew, J.; May V. May, 62 id. 210-11 (1869); 76 id. 357. 'Latham v. Latham, 30 Gratt. 321 (Va., 1878), Sta- ples, J. « Morris D. Morris, 14 Cal. *79 (1859), Cope, J. ' Carpenter v. Carpenter, 30 Kan. 744 (1883), cases, Valentine, J. See also Holyoke v. Holyoke, 78 Me. 410-11 0886), cases; Powelson v. Powelson, 22 Cal. 361 (1863); generally, 19 Ala. 307; 36 Ga. 296; 88 lU. 248; 67 CEUELTY 397 CRUELTY 2. Cruelty to Children. Inordinate chas- tisement of children of tender years — under fourteen. Beginning with New York in 1875 (under the act of April 21, of that year), societies for the prevention of cruelty to children have been very generally formed. These societies, by statute, are authorized to prosecute persons who maltreat children, or employ them at hard labor in mines, mills, and factories, beyond a certain number of hours a day, or who sell or employ their services as acrobats or as beggars, or as servants about drinking saloons, places of low amusements, houses of prostitution, and like resorts. Abuses which hid been characterized as misdemeanors are thus, in effect, brought -n-lthin the category of acts of cruelty.' 3. Cruelty to Animals. The infliction of pain upon dumb animals, without just cause. Until within recent years ill-usage of a dumb ani- mal was viewed merely as a wrong to the owner's property; no degree of iU- treatment amounted to a misdemeanor unless so inhuman as to shock, and, in- directly, to demoralize beholders: in which case the act became indictable as a public nuisance.^ The present view is that, for its own sake, all sen- tient life is to be protected from the wanton and un- necessary infliction of pain.'* To protect animals from cruelty, societies, similar in scope and power to those for children, have been organized in the United States and Europe. Under the Great Law of the Province of Pennsyl- vania, ordained in 1683, those who frequented " such rude and riotous sports and practices as . . bull- baitings, cock-fightings, with such like . . shall be reputed and fined as breakers of the peace, and suffer at least ten days' imprisonment at hard labor in the house of correction, or forfeit twenty shillings." * Severe pain inflicted for tlie mere purpose of causing pain or of indulging vindictive passion is "cruel;" and so is pain inflicted without justifiable cause, but with reason- able cause to know that it is produced by wanton or reckless conduct.^ " Cruelty " includes both the willfulness and cruel temper of mind with which the act is done and the pain inflicted. An act merely accidental, or not giv- ing pain, is not cruel in the ordinary sense.* Ind. 568; 10 Iowa, 133; 13 id. 266; 52 id. 611; 18 Kan. 371, 419; 24 Mich. 482; 26 id. 417; -37 id. 604; 40 id. 493; 45 id. 151; 49 id. 417; 56 id. 643; 8 N. H. 315; 58 id. 144; 24 N. J. E. 338; 30 id. 119, 215; 73 N. Y. 369; 14 Tex. 356; 50 Wis. 254; 26 Alb. L. J. 83. ■ See Delafield Children (1876); Washington Humane Society Act, 13 Feb. 1885: 23 St. L. 302. 2 United States v. Jackson, 4 Cranch, C. C. 483 (1834); Grise v. State, 37 Ark. 458 (1881). 'State 1'. Avery, 44 N. H. 394 (1862). *Laws of Prov. of Pehn. Ch. XXVI; Linn, 114. 5 Commonwealth v. Lufkin, 7 Allen, 581 Hoar, J. 'Commonwealth v. MoCleUan, 101 Mass. 35 Chapman, C. J. The distinction is between the infliction of such chastisement as is necessary for the training or discipline by which animals are made useful, and the beating or needless in- fliction of pain which is dictated by a cruel disposition, by violent passions, a spirit of revenge, or reckless indifference to the suffer- ings of others. 1 In the statute of 12 and 13 Vict. (1849) c. 92, cruelty means the unnecessaiy abuse of any animal -U domes- tic bird or quadi-uped;^ and in 45 Vict. (1881) c. 712, the intentional infliction upon any animal of pain that in its kind, degree, object or circumstances, is unrea^ sonable. Under 12 and 13 Vict. c. 93, § S, dishorning cattle is not an offense, the operation bemg skillfully per- formed.' la the New York act of 1874, c. 12, § 8, cruelty in- cludes every act, omission, or neglect whereby unjus- tifiable physical pain, suffering, or death is caused or permitted. By the California act of 1874 cruelty includes every act, omission, or neglect whereby unnecessary or un- justifiable physical pain or suffering is caused or per- mitted. The Penns.vlvania act of 1869 forbids wantonly or cruelly ill-treating, overloading, beating, or otherwise abusing any animal, or being interested in any place kept tor the purpose of flghting or baiting any bull, bear, dog, cock, or other creature. In the Arkansas act of 1879 " needlessly killing " an. animal refers to an act done without any useful mo- tive, in a spirit of wanton cruelty, or for the mere pleas- ure of destruction.* The Tennessee statute of 1881 is designed to protect animals from willful or wanton abuse, neglect, or cruel treatment; not froni the incidental pain or suffering- that may be casually or incidentally inflicted by the use of lawful means of protection against particular animals.^ Letting loose a captive fox to be hunted (and which is captured) by dogs is cruelty, within Mass. Pub. Sts. c. 207, § 53. There is nothing in the general purpose of the statute that prevents it from including all animals, whether wild and noxious or tame and useful, within the common meaning of the word " animal." The statute does not define an offense against the rights of property in animals, nor against the rights of the ani- mals protected by it, but against public morals, which the commission of cruel and barbarous acts tends to corrupt.' See Malice; Maim, 3; Needless; Toktuke; Wanton; Wound. 1 [State V. Avery, 44 N. H. 394 (1863), Bellows. J. ' Bridge v. Parsons, 3 Best & S. 383 (1803): 33 Law J. 95. See Bates v. M'Cormick, 9 Law T. E. 175 (1803); Morrow's Case, 9 Pitts. Law J. 80 (1879). > Callaghan u. Society for Prevention of Cruelty, 37 Eng. E. 813 (1885), cases: 16 Cox's Cr. Cas. 101. 4 Grise V. State, 37 Ark. 466 (1881). » Hodge V. State, 11 Lea, 632 (1883). See also E. S. Wis. § 4445. » Commonwealth v. Turner, 145 Mass. 300 (1887). CRUISE 298 CUM The Massaolusetts Society for the Prevention of Cruelty to Animals is a " charity." There is no pecun- iary benefit in it for any of its members; its work in the education of mankind in the proper treatment of domestic animals is instruction in a duty incumbent on us as human beings. Its hospital for animals, if established by a bequest or other gift, would be treated as a charity. It has o, humane, legal, and public or general purpose; and, whether expressed or not in the Statute of 43 Elizabeth, comes within the equity of that statute. . . An institution is both benevolent and charitable which educates men in the diseases of the domestic animals, and the proper means of deal- ing with them, even if it also inculcates the duty of kindness and humanity to them, and provides appro- priate means of discharg^g it.^ Common carriers, by land or water, from one State to another, may not confine cattle, sheep, swine, or other animals, for a longer period than twenty-eight consecutive hours, without unloading them for rest, water, and feeding, for at least five consecutive hours, uhless prevented from unloading by storm or other accidental cause. The hours in transit on connecting roads are to be taken into the account. If such un- loaded animals are not properly fed and watered by their owner, the transpoi-ter shall care for them, £iad have a lien for the service. Willful failm'e to comply with the foregoing provisions exposes the offender to a penalty of §100 to §500. An exception is made in favor of cars and boats in which the animals have proper food, water, space, and opportunity to rest. Penalties are recoverable by civil action in the name of the United States, in the circuit or district court held within the district where the violation was committed, or the person or corporation resides or carries on business. ^ The lien is enforceable by petition filed in the dis- trict court within the district where it attached, or the owner or custodian of the property resides. The court is to issue process suited to the case for the collection of the debt, costs, penalties, and charges.? CRUISE. Any voyage for a given pur- pose. Imports a definite place, as well as time of commencement and termination.'' CRY. See Auction; Ceieii; Pais. CUCKING-STOOL. See Scold. CUILIBET. See Ars, Cuilibet, etc. CUJUS. See Solum, Cujus, etc. CUL DE SAC. Fr. The bottom of a bag. A street open at one end; a blind alley. CULPA. L. A fault; negligence; guilt. Lata culpa. Gross negligence. Levis culpa. Ordinary negligence. Levissima 1 Massachusetts Society, &c. v. Boston, 142 Mass. 87- 23 (1886), Devens, J. 2 Act 3 March, 1873: E. S. §§ 4386-89. s Act 27 Feb. 1877: E. S. § 4390. 4 [The Brutus, 2 Gall. 526, 539, 268 (1815); Marsh. Ins. 196, 199, 520. culpa. Slight negligence.i Compare De- lictum; Dolus. Whence exculpatory, inculpatory, exculpation. Culpabilis. Guilty. Won culpatailis. Not guilty. Non culpabilis was abbreviated upon the minutes " non cul." To this plea the clerk, on behalf of the sovereign, replied that the prisoner was guilty, as he was ready to prove. The formula for this reply was cul. prit., i. e., culpabilis, partus verificare,^ Whence " culprit." But that word may come from mlped, which is from culpe, to charge with a crime; • or it may be a^corruption of culpate^ an accused per- son.* The expression non cul et de hoc, still used in the records of a few criminal courts of general jurisdiction, is an abridgment of the sentence non culpabilis et de hoc seponit supra Deum et patriam, not guilty and of this he puts himself upon God and his coun- try. See Aeeaign ; Culpable. CULPABLE. Censurable; criminal. See Culpa. Applied to an omission to preserve the means of enforcing a right, " censurable " is more nearly an equivalent than ''criminal."'' See Negligence, Cul- pable. CULTIVATIOTf. See Agriculture; Betterment; Crop; Improve. Being in a state of cultivation is the converse of being in a state of nature. Whenever lands have been wrought with a view to the production of a crop they Hiust be considered as becoming and continuing in " a state of cultivation " until abandoned for every pur- pose of agriculture and designedly permitted to re- vert to a condition similar to the original one." " Fit for cultivation " refers to that condition of soil which will enable a farmer, with a reasonable amount of skill, to raise regularly and annually by tillage grain or other staple crops.^ CULVERT. A water-way or passage, whether of wood or stone, square or arched.^ CUM. L. With, together with; along with ; in connection with ; wholly. In compounding words, the m remains Before 6, p, m; assimilates before i, n, r; changes into n before other consonants; is rejected before a vowel or h. ' Jones, Baihn. 8; Story, Bailm. § 18; 8 Barb. 378; 34 La. An. 1129: 2 4 Bl. Com. 339; 6 Cal. 232; 8 Sumn. 67. 3 Webster's Diet. « Skeat's Etym. Diet. " Waltham Bank v. Wright, 8 Allen, 188 (1864). ' Johnson v. Perley, 2 N. H. 57 (1819). ' Keeran v. GrifSth, 34 Cal. 581 (1868); 13 Ired. L. 37; 29 Kan. 596. « Oursler v. Baltimore, &c. B. Co., 60 Md. 367 ( CUMULATIVE 299 CURRENT Designates a being or bringing together of several objects; also, completeness, perfec- tion of an act, — intensifies the signification of the simple word. See Con, 1. Cum copula. With connection ; with in- tercourse. A promise to marry in the future, cum copula, did not, at common law, constitute a valid marriage; otherwise, for some purposes, by the canon law.' Cum onere. With the charge or incum- brance. See further Onus, Cum, etc. Cum. testamento amiexo. With the will attached. See Administer, 4. CUMUIiATIVE.2 More of the same kind ; superadded to other of the same nat- ui-e; additional. As, a cumulative or cumulative — evidence or testimony, legacy, offense, remedy, sen- tence or judgment, statute, voting, qq. v. CUR. See Curia. CURABLE. See Cure, 3. CURATOR. L. A guardian ; a com- mittee, q. V. The guardian of the estate of a wai'd, as distinguished from the guardian of his per- son. ' Curator ad hoe. A guardian for this — special purpose. Curator ad litem. A guardian for the suit ; a guardian ad litem, q. v. CURE.* 1. In the original sense of taking care or charge of, instead of the later sense of healing, is used in the sea-law which re- quires that a seaman is to be "cured" at the expense of the ship of sickness,or injury sustained in the ship's service, to the end of the voyage.5 The obligation to "cure," as the old cases say, or to give " medical treatment," as the later cases term it, continues only to the end of the particular voyage.' 2. To remedy, correct, remove. Want of authority in an agent is cured by the prin- cipal when he adopts the agent's act. A general appearance cures antecedent irregularity of process, a defective service, etc.' 'Cheney v. Arnold, 15 N. T. 345 (1857); 2 Pars. Contr. 79. ' L. (mmulus, a heap. 8 Duncan v. Crook, 49 Mo. 117 (1871); 21 Pa. 333; 1 Bl. Com. 460. * L. cura, care, charge. »See Beed v. Canfleld, 1 Sumn. S02 (1833); The City of Alexandria, 17 F. E. 393-95 (1883), cases. • The John B. Lyon, 33 F. B. 187 (1887), Blodgett, J. ' Creighton v. Kerr, 20 Wall. 12 (1873). Formal defects in pleading are cured by pleading over without demurrer.' A verdict cures a detective statement of a title or cause of action." See Aid, 2; Bad, 2; Certainty. Curallle. Admitting of remedy or recti- fication. Incurable. Said of ambiguities, defects in pleading, defects in powers, etc. Curative. Designed to correct an error or defect. As, an act passed to relieve from some hardship or inconvenience caused by the careless use of language in a former statute. An invalid public contract may be confirmed and made binding by curative statutes.' CURED-MEAT. Was given the mean- ing at the residence (Memphis, Tenn.) of a purchaser, when that differed from the mean- ing at the residence (Atchison, Kan.) of the seller.* CURIA. L. A court of justice ; a court, or the court. Compare Foeum. Curia advisari vult. Tlie court desires to deliberate — over the matter : the court re- serves its decision, for the present. Abbreyi- ated cur. ad. vult., and c. a. v. Originally, an entry upon the record of a cause, just argued, indicating that a decision would be ren- dered by and by. Later, it denoted a suspension of judgment untU the court could examine the matter fully. Curia regis. The king's court. Per curiam. By the court. A formula by which a judge may express the assent of the court to a thing asked, or by which a court may make any order whatever. Prefixed to a decision, may imply that the law in the case is too well settled to require either argument or elucidation.' Rectus in curia. Right (unimpeached) in court, or before a court. The condition of a person who stands before a court with no charge of misconduct preferred against him, or cleared or purged of a charge. See midcr Actus; Amicos; Cnnscs. CURRENT.* 1. Now running or pass- ing; now present; now being created or re- ceived ; existing in present time. As, a current — account, balance, earnings, motio n, value, year, qq. v. 1 United States v. Noelke, 17 Blatch. 569, 661 (1880). 2 Lincoln Township v. Cambria Iron Co., 103 U. S. 415 (1880) ; 7 How. ?dl ; 53 Ind. 288 ; 87 id. 37; 3 Monta. 452. > Eandall v. Kreiger, 23 Wall. 147 (1874), cases; Eitchie •„. Franklin County, 23 id. 75 (1874). ^ < Treadwell v. Anglo-American Packing Co., 13 F. E. 22 (1882). And see Featherston v. Eounsaville, 73 Oa. 617 (1884). « Letzkus V. Butler, 69 Pa. 261 (1871). » L. cun-ere, to run, flow, move. CURRENT 300 CURTESY 3. Circulating as money; received as money ; lavcful as m.oney. Current funds. Current money ; par funds, or money circulating without any discount. A bill of exchange drawn for "current funds" en- titles the holder to coin or its equivalent.* Gold, silver, or anything equivalent thereto, 'and convertible at pleasure into the same. 2 " In current funds," as used in a bank-check, means in money; and the insertion of the words does not im- pair negotiability.' Commencing with the first issue in this country of notes declared to have the quality of legal tender, it has been a -common practice for makers of commer- cial bills, checks, and notes, to indicate whether the same are to be paid in gold or silver, or in such notes; and the term " current funds " has been used to desig- nate any of these, all being current and declared to be legal tender. It was Intended to cover whatever was receivable and current by law as money, whether in the form of notes or coin.' Current money. - Money received as such in common business transactions ; the com- mon medium in barter and exchange.* Current notes. Bank-notes convertible into specie, or redeemable in gold, silver, or an equivalent.5 Current price or value. See Value. Currenoy. Primarily, a passing or flow- ing — something which passes from hand to hand. In monetary affairs, not necessarily cash; it is equally applicable to anything used as a circulating medium, and generally accepted as a representative of values of property.6 Bank-notes, or other paper money, issued by authority, and continually passing, as and for coin.^ The money which passes at a fixed value, from hand to hand ; money which is author- ize4 by law.s Includes both coined and paper money; not all bank-notes in circulation, for all such are not neces- Barily money. Whatever is at a discount is not money ' Galena Ins. Co. v. Kupfer, 28 111. 335 (1802). ' [Lacy V. Holbrook, 4 Ala. 90 (1842); 9 id. 389; 34 HI. 292; 9 Ind. 135; 47 Iowa, ?72; 44 Pa. 457. 3 Bull V. First Nat. Bank of Kasson, 123 U. S. 112 (1887), Field, J. * [Stalworth v. Blum, 41 Ala. 331 (1867); 3 T. B. Hon. 166; 21 La. An. 624; 5 Lea, 96; 1 Dall. 124; 9 Mo. 697. spierson v. Wallace, 7 Ark. 293 (1847); Fleming v. Nail, 1 Tex. 347 (1846); Moore v. Gooch, 6 Heisk. 105 (1871); 64 N. C. 381; 5 Cow. 187; 5 Humph. 485. » [Chicago Fire, &c. Ins. Co. v. Keiron, 27 HI. 607 1 Caton, C. J. ' [Same v. Same, ib. 506, Walker, J. : Wharton. "Butler V. Paine, 8 Mmn. 329 (1863): Bouvier. nor currency. National bank-notes, although not legal tender, are as much currency as treasury notes, which are legal tender. Therefore, a certificate of deposit promising repayment " in currency " may be deemed negotiable, — it is payable in money.* In an indictment, the words " of the currency cur- rent " are equivalent to " current as money." ^ See Par, 2; Tender, 2, Legal. CURSE. See Blasphemy. CURSUS. L. A running: way, mode, practice. See De, Cursu. Cursus CTirisB lex eurise. The practice of a court is the law of the court. Established, inveterate practice will be adhered to: it is supposed to be based upon principles of justice and public convenience. But a court of error does not generally notice the practice of another court. In short, every court, especially every court of equity, makes its own practice.^ Compare Error, 1, Com- munis. CURTESY.* 1. Where a man marries a woman seized of an estate of .an inheritance (that is, of land and tenements in fee-simple or fee-tail), and has by her issue, born alive, capable of inheriting the estate, on her death he holds the land for life as tenant by" the curtesy of England.* An estate by the curtesy is the interest to which the husband is entitled upon the death of the wife, in the lands or tenements of which she was seized in possession, in fee- simple or in tail, during their coverture, pro- vided they had lawful issue, born alive which might by possibility inherit the estate as heir to the wife. 6 When a man marries a woman, seized at any time during the coverture of an estate of inheritance, in severalty, in coparcenary, or in common, and has issue by her, born alive, and-which might by possibility inherit the same estate as heir to the wife, and the wife dies in the life-time of the husband, he holds the land during her life " by the curt- esy of England." ' 1 Klauber v. BiggerstafE, 47 Wis. 560-61 (1879), cases, Eyan, C. J. See also 3D 111. 399; 82 id. 77; 85 id. 163; 14 Mich. 379; 37 id. 197; 61 N. C. 23; 1 Ohio, US, 119. 2 Commonwealth v. Griffiths, 126 Mass. 252 (1879). ' Broom, Max. 133, 133; 7 Ct. CI. 332, ■• L. curialitas, attendance upon the lord's court or eurtis; i. e., being his vassal or tenant. Or, "by the courts of England,"— 2 Bl. Com. 126. From F. court- esie, favor (to the husband),— 28 Barb. 345. » [2 Bl. Com. 126. » Westoott V. Miller, 42 Wis. 465 (1877), Cole, J. 'Billings V. Baker, 28 Barb. .444 (1859); 4 Kent, 27. 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 the father began to have a permanent interest in the lands, he became one of the pares Curtis, did homage to the lord, and was called tenant by the curtesy " ini- tiate." He could do many acts to charge the land, but his estate was not " consummate" till the death o£ the wife.i The requisites are: a legal marriage; an actual seizin or possession in the wife — wherefore no curt- esy can be had in a remainder or a reversion ; issue born alive, during the life of the mother, capable of Inheriting the estate; and, the death of the wife.' Adopted as a common-law estate in all of the older States, though somewhat modified in some of them. The right is expressly created by statute in Delaware, Kentucky, Maine, Massachusetts, Minnesota, New Hampshii-e, Khode Island, Vermont, and Wisconsin. In Alabama, Connecticut, Illinois, Maryland, Missis- sippi, Missouri, New Jersey, North Carolina, Tennes- see, and Virginia it is recognized by the courts as an existing estate. In California it is not allowed; realty being there held in common, and the survivor talking one-half in severalty. In Georgia the husband takes an absolute estate in all the property. In Kansas he takes one-half absolutely, upon her decease without a will; and if without issue, he takes all absolutely. In Louisiana their relation to their property does not admit of curtesy. In Nebraska the estate is given, unless she -had issue by a former husband who would take the estate. In New York it would seem that she may defeat a right by conveyance. In Ohio, Oregon, and Pennsylvania issue is not necessary. In South Carolina he takes his share in fee. In Texas any property is the common property of both. In Dakota, Indiana, Michigan, and Nevada the estate seems to be abolished. In many of the States curtesy is given, by statute, in equitable estates of which the wife is seized. The right extends to equities of redemption, contingent uses, and moneys directed to be laid out in lands for the benefit of the wife.'' In the absence of fraud, a husband who is embar- rassed may convey his curtesy to a trustee for the benefit of his wife and children, for a consideration valuable in equity. 8 Compare Dower. 2. A voluntary act of kindness. An act of kindness toward another person, of the free will of the doer, without previous request or promise of reward, has sometimes been called a " voluntary curtesy." From such act the law implies no promise for re- muneration. If it were otherwise, one man might impose a legal obligation upon another against his will. Hence the phrases " a voluntary curtesy will not support an assumpsit," but that " a cm-tesy moved by a previous request will." < See Protest, 8. Mac A 6.3; 15 Ark. 48.3; 43 Miss. 633; 8 Neb. 525; 14 S. C. 307; 8 Baxt.361; C Mo. Ap. 416, 549. ' 2 Bl. Com. 127. = See 1 Washburn, Real Prop., 4 ed., 164, 166 (1876). ' Hitz V. Nat. Metropolitan Bank, 111 U. S. 722 (1884). < See Lampleigh v. Brathwait, 1 Sm. L. C. •222; Holt- house. CURTILAGE. 1. Originally, the land with the castle and out-houses, inclosed often with high walls, where the old barons some- times held court in the open air. Whence court-yard, i 3. The court-yard in the front or rear of a house, or at its side; any piece of ground lying near, inclosed, used with, and neces- sary for the convenient occupation of the house. 2 A fence or inclosure of a small piece of land around a dwelling-house, usually in- cluding the buildings occupied in connection with the dwelling-house, the inclosure con- sisting either of a separate fence or partly of a fence and partly of the exterior of build- ings so within this inclosure. ^ If a bam, stable, or warehouse be parcel of the mansion-house, and within the same common fence, though not under the same roof nor contiguous, a burglary may be committed therein ; for the capital house protects and privileges all its branches and appurtenances, if within the same curtilage or home- stall.' It is perhaps unfortunate that this term, which is found in English statutes, and which is descriptive of the common arrangement of dwellings, and the yards surrounding them, in England, should have been per- petuated in our statutes. It is not strictly applicable to the common disposition of inclosures and buildings constituting the homestead of the inhabitants of this country. In England dwellings and out-houses of all kinds are usually surrounded by a fence or stone- wall, inclosing a small piece of land embracing 'the yards and out-buildings near the house constituting what is called the court. Such precautionary ar- rangements have not been necessary in this coimtry.* Nothing is implied as to the size of the parcel of land.^ In Michigan, includes more than an inclosure near the house.* In § 4347, code of Alabama, defining arson in the second degree, includes the yard or space near a dwelling-house, within the same inclosure, and used in connection with it by the household; as, a ham which opens into such yard, in part separating it from another inclosure.' Under a mechanics' lien law, a jury may determine the necessary curtilage to which a lien extends.* 1 Coddington v. Dry Dock Co., 31 N. J. L. 485 (1863). " [People V. Gedney, 10 Hun, 154 (1877): Bac. Abr. 8 Commonwealth v. Barney, 10 Cush. 481, 483 (1852), Dewey, J. Approved, 140 Mass. 289. < 4 Bl. Com. 225; 1 Hale, P. C. 568; 61 Ala. 58; 31 Me. 523. » People V. Taylor, 2 Mich. 251 (1851). "Edwards v. Derrickson, 28 N. J. L. 45 (1859); Same V. Same, 29 id. 474 (1861). ' Washington v. State, 82 Ala. 32 (1886). 8 Keppel V. Jackson, 3 W. & S. 320 (1842) ; 5 Eawle, 291. CUEVES 303 CUSTOM CURVES. SeeRAlLKOAD. CUSTODIA. L. Keeping, custody; lit- erally, watch, guard, care. V In eustodia legis. In the custody of the law. See Custody. CUSTODY. See Custodia. 1, Care, possession, charge : as, the custody of a child,, of a lunatic, of a ward ; i the custody of a de- posit, or of funds. Custody of property, as contradistinguished from legal possession, is that charge to keep and care for the owner, subject to his direc- tion, and without any adverse right, which every servant possesses with regard to goods confided to his care.^ 3. Detention by lawful authority. Custody of the law. Property lawfully taken by virtue of legal process is in. the cus- tody of the law. 3 In tMs category are goods lawfully levied upon by a marshal, sheriff, or constable; goods impounded; * property in the hands of a receiver, q. v.; money paid into court. Such property, for the time being, is not liable to be again seized in execution by the officer of any other court.* But the court of a State cannot by this device pre- vent the collection of Federal taxes.* 3. A person under lawful arrest is said to be in custody or in the custody of the law. See Rescue. A sentence that a prisoner " be in custody till his sentence is complied with," imports actual imprison- ment.*^ CUSTOM.8 That length of usage which has become law ; a usage which has acquired the force of law. Often used synonymously with "usage." 9 A law established by long iisage. A universal cus- tom becomes common law.i* " The law or rule which is not written, and which men have used for a long time, sup- porting themselves by it in the things and >1B1. Com. 303; 3 id. 437. ' [People V. Burr, 41 How. Pr. 896 (1871). 1 [Gilman v. Williams, 7 Wis. *334 (1859). <3B1. Com. 12,146. *Buck V. Colbath, 3 V7all. 341 (1865), cases. • Keely v. Sanders, 99 U. S. 442 (1878). ' Smith V. Commonwealth, 59 Pa. 324 (1868). 6F. custume; L. L. costuma: con, together, very; suere, to make one's own — have it one's own way, — Skeat. Compare Customs; Consuetudo. » Walls V. Bailey, 49 N. Y. 471 (1872), Polger, J. ; Hursh V. North, 40 Pa. 243 (1861); Bishop, Contr. § 444. >» Wilcox V. Wood, 9 Wend. 349 (1832), Savage, C. J. reasons with respect to which they have ex- ercised it."i "Usage," strictly speaking, is the evidence of a "custom." ^ "Custom " is the making of a law; " prescription," the making of a right. ^ Customary. Originating in long usage : as, customary incidents or rights ; customary dispatch, q. v. ; customary estate, freehold,* service,^ tenant;* customary law: common law. General customs. The universal rule of the whole kingdom, forming the common law, in its stricter and more usual significa- tion. Particular customs. Such as, for the most part, affect only the inhabitants of particular districts ;S a local or special cus- tom. A general custom is a general law.' "General" customs are such as prevail throughout a country and become the law of the country. " Particular " customs are such as prevail in some county, city, town, or other place. 8 The chief comer-stone of the laws of England is general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decisions are preserved among the public records, explained in the reports, and digested for general use by the sages of the law. . . Our practice is to make custom of equal authority with the written law,— when it is not contradicted by that law. " For, where is the difference, whether the people de- clare their assent to a law by suffrage, or by a uniform course of acting accordingly? " . . It is one of the marks of English liberty that our common law de- pends upon custom; which carries this internal evi- dence of freedom along with it, that it probably was introduced by the voluntary consent of the people.* See Law, Common. Particular customs are doubtless the remains of that multitude of local customs out of which the com- mon law was collected, at first by Alfred. For reasons that have been long forgotten, particular counties, 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 customs must be proved to exist, and appear to be: legal, that is, be immemorial; coi^tinued— tlie right iminteiTupted; peaceable— acquiesced in; reason- > Strother v. Lucas, 12 Pet. *446 (1838). 2 See 3 Pars. Contr. 239. * Lawson, Usages & Customs, 15, n. 3. * 2 Bl. Com. 149. * 3 Bl. Com. 234. » 1 Bl. Com. 67. ' United States v. Arredondo, 6 Pet. 715 (1832). , * Bodflsh V. Fox, 23 Me. 96 (1843); 12 Pet. *446. 9 1 Bl. Com. 73-74. CUSTOM 303 CUT able — no sufBoient legal reason be assignable against j the custom; certain — ascertained or ascertainable; compulsory — not left to one's option, to use or not to use; and consistent — witli each other, if not, then they could never have been assented to. Customs In derogation of the common law are strictly con- strued.' In few States do any purely local customs, such as have just been explained, exist. And such customs are to be carefully distinguished from "usages of trade or business." These are everywhere allowed their just influence and operation. A usage of trade and business clearly proved to exist, to be ancient, notorious, reasonable, and consistent with law, is per- mitted to explain the meaning of ambiguous words in written contracts, and to control the mode and extent of their rights where the parties have been silent. But It is never admitted against the expressed agreement of the parties, nor in violation of any statute or well- established rule of law. The current of decisions of late years has been to restrain and limit the allowance and influence of special usages.' The courts take judicial notice of general customs. Particular or special customs are to be alleged and proved.^ Evidence of a temporary custom of which the party to be affected has no knowledge is not admissible against him.* Where the object is to interpret a contract it is not necessary to prove all the elements of a custom neces- sary to make a law.^ To establish the validity of a custom the usage must have existed so long as to become generally known, and it must be clearly and distinctly proved. The concurrent testimony of a large number of wit- nesses increases the probabUity of its being generally known. This is illustrated in the case of a custom which authorizes the captain of a steamboat to insure it for the beneflt of the owner without his express direction."* Evidence of a custom or usage of trade is resorted to in order to ascertain and explain the meaning and intention of the parties to a contract: on the theory that they knew of its existence and contracted with reference to it. It is never received if it is inconsistent with the contract, if it contradicts or varies directly or by necessary implication express stipulations, if it would subvert a settled rule of law, or if there is no contract in reality.' See Eingino Up. > 1 Bl. Com. 70-79; Liiidsay v. Cusimano, 12 F. R. 506 (1882); nOU. S. 499. « 1 Shars. Bl. Com. 78; Coxe v. Heisley, 19 Pa. 246-^ (1852), cases, Black, C. J. » 1 Greenl. Ev. § 5; 1 Whart. Ev. §§ 298, 331. 1 Wootters v. Kauffman, 67 Tex. 493 (1887), cases. » Carter v. Philadelphia Coal Co., 77 Pa. 290 (1875); Morningstar v. Cunningham, 110 Ind. 333-35 (1886), cases; 1 Cooley, Bl. Com. 76, note. •Adams V. Pittsburgh Ins. Co., 95 Pa. 855-56 (1880), ' Bliven V. Screw Company, 23 How. 431 (1859); In- surance Companies v. Wright, 1 Wall. 470-72 (1863); , Thompson v. Riggs, 5 id. 679 (1866) ; Barnard v. Kellogg, . 10 id. 390 (1870); Eobinson v. United States, 13 id. 365 The unoontradiotod testimony of one witness may be sufficient to establish a custom.' Customary rights and incidents are such as uni- versally attach to the subject-matter of a contract in the place where the contract is made. These also are impliedly annexed to the terms of a contract imless expressly excluded." See Use, 2, Usage; Usus, Mains usus, etc. Custom of merchants. A system of customs, originating among merchants, and allowed for the benefit of trade as part of the common law. Of such are certain rules relating to bills of ex- change (as, that of allowing days of grace), to mer- cantile contracts, to the sale, pm'chase, and barter of goods, to freight, insurance, shipping, partnerships.' Constitutes the lex mercatoria or law merchant. See Merchant, Law. Customs of London. Particular cus- toms relating chiefly to trade, apprentices, widows, orphans, and local government. Good only by special usage ; and tried by the certifi- cate of the mayor and alderman, by the mouth of their recorder.* CUSTOMERS. See Boycotting; Good "Will. CUSTOMS. Taxes upon goods or mer- chandise imported or exported.' The duties, toll, tribute, or tariff payable upon merchandise exported or imported.^ They are the inheritance of the king from almost immemorial time. Denommated, in ancient records, costuma, from the French coustom or coutom, toll or tribute ; which.in turn is from const, price, charge, cost.' Customs were exactions maintained by the crown or lords upon the grounds of immemorial usage. In time, only duties upon merchandise, and as regulated by law, remained. Common phrases are: customs appraiser, customs collector, customs commissioner, customs laws. See Duties, 2; KEFUNns; Smuggle. CUT. 1. A wound made with an instru- ment having an edge.' See Battery ; May- hem; Stab; Wound. 3. An impression made upon paper or cloth from an engraved block or plate. See Copy- right. ■ Compare Coupon; Tail. See Timber; Waste. (1871) ■ TiUey v. County of Cook, 103 U. S. 162 (1880), cases'; The Dora Mathews, 31 F. R. 620 (1887), cases. 1 Wootters v. Kauffman, ante. ' 1 Greenl Ev. § 405; 1 Whart. Ev. § 969. See gen- erally Wigglesworth V. Dallison, Dougl. 190 (1779): Sm. L. C, 8 ed., vol. I, pt. II, 928-65, cases. 3 2 Pars. Contr. 539; 1 Bl. Com. 75. * 1 Bl. Com. 75, 76; 3 id. 334. 6 See 1 Story, Const. § 949. « 1 Bl Com. 313-14, note (v). ' State V. Patza, 3 La. An. 514 (1848), cases. CUTLERY 304 BAM CUTLERY. A generic term, often used to describe razors, scissors, and sheax-s, as well as knives for table, pocket, and other uses.i '' Slieep shears " are included within the word, as used in Schedule C of the TariS Act of March 3, 1883. > The name of an imported article, is not the sole guide hy which to classify it for duty; its uses, espe- cially when new and a substitute for other articles, should be considered. Thus "hair clippers" should be rated as " cutlery." ' See Duties. CY PRES.3 As near ; as near as ; as near as can be. The rule of construction that the intention of a testator, who seeks to create a charity, is to be given effect as far as is consistent with the rules of law * is known as the cypris doctrine. Refers to the judicial power of substitut- ing a charity which approaches another, the original, charity, in nature and character. ^ Where the particular intention cannot be given .effect, the words will be construed so as to give effect to the general intention evinced, and that as near to the particular intention as the law permits. The doctrine modifies the strictness of the common law, as to a condition precedent to the enjoyment of a personal legacy. When a literal compliance with the condition becomes impossible from unavoidable circumstances, and without default in the legatee, it is sufficient that the condition is complied with as near as it practically can be.^ Borrowed from the Roman law, by which donations 4or public pui"poses were applied, when illegal cypres, , to other and legal piu-poses.^ Or, originated in the in- dulgence shown to the ignorance of testators who de- vised to the unborn son of an unborn son.^ A leading and illustrative case is that of Jackson v. Phillips,^ decided in Massaciiusetts in 1867. The will created a trust " for the preparation and circulation of books and newspapers, the delivery of speeches, lectures, and such other means as in their [the trust- ees'] judgment will create a. public sentiment that will put an end to negro slavery in this country," and " for the benefit of fugitive slaves escaping from the slave-holding States." While litigation upon the will ' Sinimons Hardware Co. v. Lancaster, 31 F. E. 445 <1881> = Koch V. Seeberger, 30 F. E. 424 (1887). 3 Cy prds; pronounced, ci-pra'. Law Fr, cy^ con.- tracted from icy, now ici, here. < See Coster' v. Lorillard, 14 Wend. 308 (1835), Sav- age, C. J. [4 Kent, 508 (5) 1 ; 2 id. S88 (a). « [1 Story, Eq. § 891. See Be Brown's Will, 18 Ch. Div. 65 (1881). ' See 1 Story, Eq. § 1169. « Williams, Real Prop. 264. ' 14 Allen, 639, 649, 574-96, cases. Gray, J. was in progress, the Thirteenth Amendment, abolish- ing slavery, was adopted (1865); and the fund in ques- tion was ultimately applied to the New England Branch of the American Freedman's Union Commission. The general doctrine has been approved in all of the New England States except Connecticut, in Illinois, and in Mississippi. In some States the doctrine has not been decided; in Pennsylvania it obtains where a designated class of beneficiaries become extinct; ' in Alabama, Indiana, Iowa, Maryland, New York, North Carolina, South Carolina, and Virginia, it seems to be repudiated. '^i ^ The Supreme Court of the United States, in its lat- est decisions, favors the doctrine.' See Chabity, 2. D. D. 1. As an abbreviation may signify, in addition to the words noted below, diction- ary, dictum, digest, division. 2. In the old action of ejectment stood for demissione, by demise, q. v. 3. In the apportionment of jurisdiction to the United States courts is used for "Dis- trict:" as, E. D., M. D., N. D., S. D., and W. D.,— -eastern, middle, northern, southern, and western district. D. B. E. De bene esse, conditionally. See De, Bene, etc. D. B. N. De bonis non, of effects unad- ministered. See Administer, 4. D. C. District court ; District of Columbia. D. C. L. Doctor of the civil law. See Doctor. > D. J. District judge. D. P. Dotnus procerum, House of Lords. D. B.. Declaration of Rights. D. S. Deputy sheriff. D. S. B. Debitum sine brevi, debt with- out a writ. See Debet, Debitum, etc. daily;. See Day. DAKOTA. See Territory, 2. DAM. The work or structure raised to obstruct the flow of water in a stream ; also, 1 Acti 26 May, 1876 : P. L. Sll. 'See Bispham, Eq. § 130 (1888); 1 Col. Law T. 8-14 (1887), cases. = See Loring v. Marsh, 6 Wall. 337 (1867); Perin v. Carey, 24 How. 465 (1860); Fontain v. Eavenel, 17 id. 360 (1854); Vidal v. Girard, 8 id. 187 (1844); Jackson v. Phillips, 14 Allen, 588 (1867). See generally 38 Ala. 305; 22 Conn. 54; 30 id. 113; 4 Ga. 404; 25 id. 420; 16 111; 881; 35 Ind. 198; 46 id. 1?2; 18 B. Mon. 635; 49 Me. 303; 50 Mo. 167; 33 N. H. 296; 20 N. J. B. 522; 23 N. Y. 308; 34 id. 684; 17 S. & R. 88; 45 Pa. 27; 63 id. 465; 4 R. I. 439; 7 id. 258; 3 S. C. 609; 27 Tex. 173; 3 W. Va. 310. DAMAGE 805 BAMAGES the pond of water created by the obstruc- tion.! See Aqua, Currit, etc.; Mill, 1; Navigable ; Ripaeian ; Take, 8. DAMAGE. Detriment ; deprivation ; in- jury ; loss. Etymologically, a thing taken away; the lost thing, which a party is entitled to have restored, that he may be made whole again. 2 See Damnum ; Loss. Loss caused by malice or negligence in an- other person, or from inevitable accident. Interchanged with '■ injury," q. i: Referring to a collision between vessels, the injury directly and necessarily resulting from the collision.' When a bill of lading recites that the goods are re- ceived in good order and that the carrier will " not be accountable for weight, contents, packing, and dam- age," " damage " refers to injuries to the goods at the tinle of receipt.* Damage-feasant.s Doing damage. Said of animals trespassing upon land. To insure identification, the injured person may distrain them." A person is not justified in kiUing animals or fowls found trespassing upon his land. He should impound them, or sue for the damage they do. They are valu- able property, the destruction of which is not neces- sary to the protection of liis rights. A notice of an intention to kill the animals or fowls, if not shut up, is a threat to do an illegal act.' DAMAGES. The compensation which the law will award for an injury done.* A species of property given to a man by a jury as a compensation and satisfaction for, some injury sustained.' The plaintiff has no certain demand till after ver- dict; but when the jury has assessed his damages and judgment is given thereon, he instantly acquires, and the defendant loses, a right to that specific sum. The verdict and judgment fix and ascertain the plaintiff's inchoate title; they do not give, they define, his right.' • The recompense that is given by a jury to the plaintiff for the wrong the defendant hath done unto him.!" ■ [Colwell V. Water Power Co., 19 N. J. E. 348 (1868). ' [Fay V. Parker, 53 N. H. 342 (1872). ' Memphis, &c. Packet Co. v. Gaeger Transportation Co., 10 r. K. 396 (1882). * The Tommy, 16 F. E. 601, 603 (1883). » Faz'-ant. »3B1. Com. 6-7; 50 Mich. 32. 'aark V. Keliher, 107 Mass. 409 (1871); Johnson v. Patterson, 14 Conn. 3-12 (1840), cases; Matthews v. Fiestel, 2 E. D. S. 90 (N. Y., 1853). 'Kansas City, &c. E. Co. v. Hicks, 30 Kan. 292(1883), Brewer, J. •asi. Com. 438; 3 id. 153. "Coke, Litt. 257 a: Eosenfield v. Express Co., 1 Woods, 137 (1871); 17 N. J. L. 483. (30) - A compensation, recompense, or satisfac- tion to the plaintiff for an injury actually received by him from the defendant.' The legal injury is the standard by which the com- pensation is to be measured: the injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.^ When it is said that a person is or will be respon- sible (or be required to respond) or liable or answer- able " in damages," the meaning is, he may or will be required by law to furnish a money equivalent for the injvuy he has done. Actual or single damages. Compensa- tion for the real loss or injury. Increased, double, or treble damages. Single dam- ages, as found by a jury, enhanced by the court.' The statutes of nearly every State provide for the increase of damages where the injury complained of results from neglect of duties imposed for the better security of life and property, and make that increase, in some cases, even quadruple the actual damages. Experience favors tiiis legislation as the most efficient mode of preventing, with the least inconvenience, the commission of injuries. The decisions of the highest courts have affli-med the validity of such legislation. The injury actually received is often so small that in many cases no effort would be made by the sufferer to obtain redress, if the private injury were not sup- ported by the imposition of punitive damages.* See Fence. Civil damages. Injuries sustained either to one's rights as a citizen of a State and of the United States, or else to his relative rights as a member of a family, and aside from any view of the act complained of as an offense to the public and punishable in the criminal tribunals. Civil Damage Laws. (1) Statutes which confer upon colored persons individual rights of action in the civil courts for any dis- crimination against them and in favor of white persons on account of race, color, or previous condition of servitude. See Right, Civil Rights Act. (2) Statutes which confer a right of action in a civil court upon the wife,, family, or a near ' 2 Greenl. Ev. § 253; Dow u Humbert, 91 U. S. 299 (1875), Miller, J. See also Shugai-t v. Egan, 83 HI. 67 (1876); Tetzner v. Naughton, 13 Bradw. 153 (1882); Scripps V. Eeilly, 38 Mich. 23 (1878); 9 Heisk. 860; 86 Ga. 371; 16 Johns. 14.S; 55 Vt. 164. 2 Wicker 17. Hoppock, 6 Wall. 99 (1867), Swayne, J. » See Berry v. Fletcher, 1 Dill. 71 (1870), Dillon, Circ. J. ; Lobdell v. New Bedford, 1 Mass. *1S3 (1804); Welsh V. Anthony, 16 Pa. 266 (1851); 10 Oreg. 342. * Missouri Pacific E. Co. v. Humes, 115 U. S. 523 (1885), Field, J. DAMAGES 806 DAMAGES relative of a person who lost his life or who has sustained injuries in consequence of in- toxicating liquor having been sold or given to him in violation of law.i The Massachusetts statute contemplates that the habitual drunkenness of a husbaud or wife, parent or child, is a substantial injury to those bound together in domestic relations, and gives the right to recover damages in the nature of a penalty, not only for any injury to the person or property, but for the shame and disgrace brought upon them. Hence, the right of a son to recover damages does not depend upon the question whether he is dependent upon the father for support or not, but solely upon the relation.* See Policy, 1, Public. Compensatory damages. Such dam- ages as measure the actual loss, and are al- lowed as amends therefor. Exem.plary, punitive, ot vindictive damages. Such damages as are in excess of the actual loss, and allowed, in theory, where a tort is aggra- vated by evil motive — actual malice, deliber- ate violence or oppression, or fraud. Exemplary damages are sometimes called " smart money." * All rules of damages are referred to compensation or punishment. Compensation is to make the injured party whole; exemplary damages are something be- yond this, and are inflicted with a view to punishing the defendant.* It is undoubtedly true that the allowance of any thing more than an adequate pecuniary indemnity for a wrong suffei-ed is a departure from the principle upon which damages in civil suits are awarded. But although, as a rule, the plaintiff recovers merely such indemnity, yet the doctrine is too well settled now to be shaken that exemplary damages may in certain cases be assessed. As the question of intention is al- ways material in an action of tort, and as the circum- stances which characterize the transaction are, the^e- .fore, proper to be weighed by the jury in fixing the compensation of the injured party, it may well be con- sidered whether the doctrine of exemplary damages cannot be reconciled with the idea that compensation alone is the true measure of redress. But jurists have chosen to place the doctrine on the ground, not that the sufferer is to be recompensed, but that the offender is to be punished; and, although some text- writers and courts have questioned its soundness, it has been accepted as the rule in England and in most of the States of this country. It has also received the sanc- ■tion of the Supreme Court. Discussed and recognized in Day v. Woodworth, 13 How. 371 (1851), it was more » See Bertholf u O'Eeilly, 74 N. Y. 511-30 (1878), cases ; 84 111. 195; 57 Ind. 171; 43 Iowa, 588; 50 id. 31; 29 Kan. 109; 130 Mass. 366; 133 id. 54-55; 67 Me. 517; 41 Mich. 475; 20 Alb. Law J. 204-5 (1879), cases; 19 Cent. Law J. 208-10 (1884), cases. ' Taylor v. Carroll, 145 Mass. 96 (1887). » See 36 Conn. 185. < Berry v. Metcher, 1 Dill. 71 (1870). accurately stated in The Philadelphia^ Wilmington (& Baltimore Railroad Co. v. Quigley, 21 How. 213 (1858): Mr. Justice Campbell, who delivered the opin- ion of the court, saying — " whenever the injury com- plained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a sim- ple compensation for the wrong committed against the aggrieved person. The malice spoken of in this rule is not merely the doing of an unlawful or injuri- ous act: the word implies that the wrong complained of was conceived in the spirit of mischief, or criminal indifference to civil obligations." Although this rule was announced in an action for libel it is equally ap- plicable to suits for personal injuries received from the negligence of others. Eedress coraimensurate with such injuries should be afforded. In ascertaining its extent the jury may consider all the facts which relate to the wrongful act of the defendant, and its consequences to the plaintiff; but they are not at hb- erty to go further, unless it was done willfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of tliem. In that case the jury are authorized, for the sake of public example, to give such additional dam- ages as the circumstances require. The tort is aggra- vated by the evil motive, and on this rests the rule of exemplary damages. ^ "Exemplary," "punitive," and "vindictive" dam- ages are synonymous terms. In cases of personal torts, such as assault and battery, slander, libel, seduc- tion, criminal conversation, malicious arrests and prosecutions, seizure of goods, where the element of fraud, raalice, gross negligence, cruelty, oppression, brutality, or wantonness intervened, exemplary or punitive damg,ges maybe recovered. And, since what would be a severe verdict to one of limited means might be but a trifle to one of large means, and the reason of the rule fail, evidence of the defendant's ability to respond in damages may always be given in evidence." Constructive damages. Such damages as are imputed in law from an act of wrong to another person. Contingent damages. Such damages as may or may not occur or be suffered ; such ' Milwaukee & St. Paul E. Co. v. Arms. 91 U. S. 492- 98 (1875), Davis, J. See also Missouri Pacific E. Co. v. Humes, 115 id. 621 (1885); BaiTy v. Edmunds, 116 id. 662-64 (1886), cases; Denver, &c. E. Co. v. Harris, 122 id. 60a-10 (1887), cases; 1 Kan. Law J. 74, 118-22 (1885), cases; 3 id. 369-75 (1886). = Brown v. Evans, 8 Saw. 490 (1883), cases, Sabin, J.: s. c, 17 F. E. 912. See also Nagle v. MuUison, 34 Pa. 53 (1859), cases; Chicago, &c. E. Co. v. Scurr, 59 Miss. 461 (1882); Louisville, &c. E. Co. v. Guinan, 11 Lea, 103-6 (1883), cases; 71 Ala. 293; 50 Conn. 583; 76 El. 223; 92 id. 97; 63 Ind. 57; 39 Mich. 211 ; 36 Mo. 230; 53 N. H. 342; 56 id. 456; 35 N. Y. 25; 76 Va. 137; 41 Wis. 284; 1 Kent, 630; 2 Sedgw. Dam. 323; 2 Greenl. Ev. § 253; ?8 Alb. Law .T. 44 (1881), cases; 18 Cent. Law J. 143-46 (1884), casefi. DAMAGES 307 DAMAGES as depend upon an event which may or may not happen. Continuing damages. Damages in- - curred or suffered between two dates, as the beginning and the end of an act, and more' or less separated in time. See ContinuanDo. Direct or immediate damages. Such damages as result from an act without the intervention of any intermediate controlling or self-eflScient cause. Consequential or resulting, indirect or remote damages. Not produced without the concurrence of some other event attributable to the same origin or cause. " Direct damages " include the damages for ali sucli injurious consequences as proceed immediately from tlie cause whicli is the basis of the action, not merely for the consequences which invariably or necessarily result and which are always provable imder the gen- eral allegation of damages in the declaration ; but also other direct effects which have in the particular in- stance naturally ensued, and, to be recovered for, must be alleged specially. " Consequential damages " are those which the cause in question naturally but indi- rectly produced.' All '• remote damages " are consequential, but all " consequential damages '■ are by no means remote." Excessive damages. Damages awarded by a jury, so much lai-ger in amount than what are justly due as to indicate that the jurors must have been influenced by partial- ity, prejudice, passion, or ignorance; also called inordinate and unreasonable da,nia,ges. Inadequate damages. Damages which, for some such reason, are grossly less than the sum actually due ; also called insufficient damages. Verdicts for excessive or inadequate damages are set aside by the courts — the evidence of misappre- hension or disregard of duty, on the part of the jury being clear beyond question. 3 General damages. Such damages as by implication of law result from an act, and are awarded in the sound discretion of the jury, without evidence of particular loss.'' Special damages. Losses which are the natual, but not the necessary, consequence of the act; a loss which is peculiar to the particular case. ' 1 Sutherland, Damages, 19, 20; 50 N. H. 513. 2 Sedgwick, Damages, 7 ed., 90, 101. ' s Barry ti. Edmunds, 116 U. S. 565 (1886); 3 Story, 6T0; Borland v. Barrett, 76 Va. 137 (1882); Phillips v. Lon- don, &c. E. Co., 5Q. B. D. 78 (1879): 21 Alb. Law J. 63: 88Ind. 389; 59 Tex. 269; 2 Sedgw. Dam. 334. ' See Smith v. St. Paul, &c. E. Co., 30 Minn. 172(1863). Special damages must be particularly averred in the declaration,— for notice to the defendant, and thereby to prevent surprise at the trial. They result as the natural but not as the necessary consequence of the act complained of.' See Per, Quod. Liquidated damages. Damages defi- nitely ascertained by agreement of the parties or by the Judgment of a court. Unliqui- dated damages. Such damages as are not so determined. Care must be taken to distinguish between cases of "penalties," strictly so called, and cases of "liqui- dated damages." The latter properly occurwhen the parties have agreed that, in case one party shall do a stipulated act or omit to do it, the other party shall re- ceive a certain sum as the just, appropriate and con- ventional amount of the damages sustained by such act or omission. In cases of this sort courts of equity do not mterfere to grant relief, but deem the parties entitled to fix their own measure of damages; pro- vided always that the damages do not assume the character of extravagance, or of wanton and imrea- sonable disproportion to the nature or extent of the injury. On the other hand, those courts will not suffer their jurisdiction [to grant relief in the case of a pen- alty, if compensation can be made] to be evaded merely by the fact that the parties have called a sum damages which is, in fact and in intent, a penalty.' See further Penalty. i Ifominal damages. A trivial sum awarded where a mere breach of duty or in- fraction of right is shown, with no serious loss sustained. Substantial damages. A sum awarded as compensation for injury act- ually suffered ; compensatory damages, q. v. Whenever a right is invaded the law infers damage, and will award, pro forma, some small sum at least; as, one cent, six and one-quarter cents — half of an American shilling, etc.^ Failure to show actual damages, and the inference that none have been sustained, do not necessarily render a case trivial.* A judgment for one cent, damages for trespass upon a mining claim, entered upon a special verdict for "nominal damages," if in other respects proper, wiU not be set aside for uncertainty in the verdict. " Nom- inal damages " refers to some trifling sum. In such a case the doctrine of de minimis should be invoked." Prospective damages. A loss which, in all probability, will be sustained by a plaint- ' See 1 Sutherl. Dam. 763; Eoberts v. Graham, 6 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 Pa. 78; 1 Chitty, Pl. 395; 2 Sedgw. Dam. 606. !" 2 Story, Eq. § 1318. See 1 Am. Dec. 331; 30 Am. E. ;6; 12 Am. Law Eev. 286-300 (1878), cases; 19 Cent, Law J. 282-90, 302-6 (1884), cases. = Mayne, Damages, 5; Sedgwick, Dam. 47. ■1 Paterson v. Dakin, 31 F. E. 685 (1887). ' Davidson v. Devine, 70 Cal. 519 (1886). DAMAGES DAMAGES iff; indemnity for losses which will "almost to a certainty happen." i Termed specula- tive damages when the probability that a circumstance will exist as an element for Compensation becomes conjectural. The lack of certainty in the measurement of dam- ages is no reason for refusing compensation. The law is full of instances where there is the same uncer- tainty, and where the jury determine what is reason- able compensation. All that is necessary is that there be certainty of damage as a direct result, and not a case of damnum absque injuria.^ On a contract to pay money at stipulated periods . there may be as manj- suits as there are installments. On a tort there is but one action, and in that the party must have full justice; hence the com'ts anticipate a loss likely to occur in the future. ^ When one party enters upon the performance of a contract, incurs expense therein, and, being willing to perform, is, without fault of his own, prevented by the other party, his loss will consist of two distinct items of damage : his outlay and expenses, less the value of materials on hand: and the profits lie might have re- alized by performance. The first item he may recover in all cases ; and the second (the profits), when they are the direct fruit of the contract, and not too remote or speculative. . If the party injured by the stop- page of a contract elects to rescind the contract he cannot recover for outlay or for loss of profits ; only for the value of services actually performed, as upon a quantum meruit.* Damages for the breach of a contract are limited to such a& are the natural and proximate conse- quences of the breach, such as may fairly be supposed to enter into the contemplation of the parties when they made the contract, and such as might naturally be expected to result from its violation.^ See further under Contract. But if a party can save himself from loss arising from a breach, of contract at trifling expense or with reasonable exertion, it is his duty to do so.^ See In- demnity, 1. The right to compensation for damages to the per- son or for pei-sonal injuries is well recognized at com- mon law. Any limitation by the legislature to a sum less than the actual damages is in conflict with the right of remedy by due course of law reserved to the » See 2 Addison, Torts, 1391. To realty, see 26 Am. Law Reg. 281-93, 345-59 (1887), cases. As to future damages, see 36 Alb. Law J. 84r-89, 104-9 (1887), cases-. 2 Omaha Horse R'y Co. v. Cable Tram- Way Co., 32 F. E. 7a3-34 (1887), Brewer, J. 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 Bing. 240. * United States v. Behan, 110 U. S. 338, 344-46 (1884), cases, Bradley, J. Approved, Lovell v. St. Louis Mut. Life Ins. Co., Ill id. 274 (1884). fiMurdock v. Boston & Albany R. Co,, laS Mass. 15 (1882), Morton, C. J. fl Miller V. Mariners' Church, 7 Greenl. *55-56 (1830); W:c.wr u, Hoppock, 6 Wall. 99 (1867), cases. indi'vidual for injury to his person, in the constitution of each State. ^ , In an action for a personal injury the plaintiff is entitled to recover compensation, so far as it is sus- ceptible of an estimate in money, for the loss and" damage caused to him by the defendant's negligence, including not only expenses incurred for medical at- tendance, and a reasonable sum for his suffering, but also a fair recompense for the loss of what he would otherwise have earned in his trade or profession, and has been deprived of the capacity of earning, by the wrongful act of the defendant. To assist the jury in making such an estimate, standard life and annuity tables, showing at any age the probable duration of life, and the present value of a life annuity, are com- petent evidence, but not absolute guides.^ In a statute providing that actions for tort for as- sault, battery, imprisonment, or other "damage to the person," shall survive to the representative, the tort must affect the person directly — not the feelings or the reputation, as in cases of breach of promise, slander, and malicious prosecution. The substantial cause of action must be a bodily injury, or damage of a physical character, whether trespass or case lie.' At common law no damages were recoverable for the loss of a human life. The reason was: life tran- scended all moneyed value; or, because, under feudal law, the property of a felon was forfeited to the crown, so that nothing remained wherewith to satisfy private demands. The life of a subject, as far as ca- pable of .proprietorship, was the property of the gov- ernment; the justice which was to be satisfied was public justice ; the deceased and his family were only regarded as members of the state ; the public, through the government, infiicted the punishment and re- ceived the amercement, and, as far as necessity ex- isted, provided for the family, and, therefore, private redress or satisfaction was excluded. The effect of the action now allowed by statute (as to which see below) is, pro tanto, to reheve the state of a pubhc charge ; the suit for damages becomes a private action.^ The common-law rule has been changed in most of the States by statutes which follow closely 9 and 10 Vict. (1846), known as "Lord Campbell's Act." Pro- ceeding upon the theory that the widow, the children, and perhaps the parents, have a pecuniary interest in the life of the deceased, these statutes provide that for the benefit of such relatives an action for damages may be maintained against the person by whose wrongful act the deceased lost his life, the act being of such a nature that tl^e deceased, had he survived, could himself have had an action for the personal injury. The right of recovery, then, being purely statutory, the amount recoverable for a death rests with the dis- 1 Cleveland, &c. R. Co. v. Rowan, 66 Pa. 400 (1870); Thirteenth Street R'y Co. v. Boudrou, 92 Pa. 481 (1880). 2 Vicksburg & Meridian R. Co. v. Putnam, 116 V. S. 554-56 (1886), cases. Gray, J. s Norton v. Sewall, 106 Mass. 145 (1870), cases, G-ray, J. ■* The E. B. Ward, 4 Woods, 149 (1883), Billings, J. ; s. c. 17 F. R. 259. See generally Grosso v. Delaware, &c. R. Co., Sup; Ct. N. J. (1888), cases; 25 Am. Law Reg. 307-9 (1886), cases. DAIIAGES 309 DAMNUM cretion of the legislature. In the District of Columbia this amount is $10,000; > in some States, as in Massa- chusetts, Connecticut, New York, and Pennsylvania, $5,000; but the amount recoverable for personal in- juries generally remains unlimited,^ — in Massachu- setts it is $4,000.s In the absence of an act of Congress or a statute of a State giving a right of action therefor, a suit in ad- miralty cannot be maintained in the courts of the United States to recover damages for the death of a human being on the high seas, or on waters navigable from the sea, which was caused by negligence." Where the death is caused by negligence the only damages recoverable are for the injury to the relative rights of the surviving membei-s of the family, and are compensatory in nature. Where, therefore, a child is free, lives apart from his parents, and m no way contributes to their support, they cannot main- tain an action to recover damages for his death. When the child is not free the parents can recover only the value of his services during minority, and the expenses caused by the injury and death.* In all cases the amount of damages must depend very much on the good sense and sound judgment of the jury upon all the facts and circumstances of the particular case. If the suit is brought by the party there can be no fixed measure of compensation for the pain and anguish of body and mind, nor for the loss of time and care in business, or the permanent in- jury to health and body. So when the suit is brought by the representative the pecuniary injury resulting from the death to the next of kin is equally uncertain and indefinite.* In some States statutes provide that no action will lie for a wrong committed elsewhere, without proof of the existence of a similar right in the place where the wrong was committed.^ See silso Actio, Personalis; Aggravation; Com- mence, Action; Condemnation; Costs; Indemnity; Injury, 2; Innocent, 1; Inspection, 2; Interest, 3; Lay, 2; Malice; Measure; Neglibence; Profit, 2; Eecoup; Remit, 3; Road; Solatium; Sound, 1; Res- titutio; Take, 8; Timber; Tort; Trespass; Trouble. ' Act of Congress, 17 Feb., 1885: 23 St. L. 307. "See Exp. Gordon, 104 U. S. 517 (1881); Dennick v. Central Railroad of New Jersey, 103 id. 17 (1880); Mo- bile Life Ins. Co. v. Brame, 95 id. 759 (1877); The Charles Morgan, 2 Flip. 275 (1878); Davies v. Lathrop, 12 F. R. 356 (1882); Barrett v. Dolan, 130 Mass. 3'JO (1881); Laws Conn., 1877, c. 78, h. 1; 24 Conn. 575; 45 Me. 209; 9 Cush. 108; 18 Mo. 162; 16 Barb. 54; 15 N. Y. 433; 44 Pa. 175. » Act of 1887. ' The Harrisburg, 119 U. S. 199, 204-12 (1886), cases, Waite, C. J. s Lehigh Iron Co. v. Rupp, 100 Pa. 95, 98 (18i2). « Illinois Central R. Co. v. Barron, 5 WaU. 105-6 (186B), cases. Nelson, J. ; The City of Panama, 101 U. S. 484 (1879); 18N. Y. 643. ' McDonald' ti. Mallory, 77 N. Y. 550 (18:9), cases; Leonard v. Columbia Steam Nav. Co., 84 id. 63 (1881), cases. See Richardson v. N. Y. Central R. Co., 98 Mass. 89 (1867), cases; Woodard v. Michigan, &c. R. Co., 10 Ohio St. 122 (1839); Brace's Adm. v. Cincinnati DAMNUM. L. That which is taken away: loss; damage; legal hurt or harm. Plural, damna: legal losses. Damniflcatus, injured. Damnosa, hurtful. Ad damnuni. To the loss ; " to the dam- age of plaintiff (so many) dollars." The clause, at the end of a common-law declaration, in which the plaintiff sets out the money amount of the loss he has suffered inconsequence of the act he complains of; also, the amount itself so set out.' Ad quod damnum. To what damage. A writ, at common law, by which the sheriff was to inquire by a jury what dam- age it would be to the sovereign, or to a sub- ject, to grant a fair, market, highway, or other like franchise.2 An inquisition ud quod damnum designates the remedy given by statute for the assessment of dam- ages suffered from an exercise of the right of emi- nent domain, or in consequence of some public im- provement. Damniflcatus. Injured, damaged, dam- nified. Quantum damniflcatus. How much he is injured. The name of an issue by which damages, to be awarded in equity, may be ascertained by a jury. This was the course in former times, and may; still be the practice in cases of a complicated nature; but the same inquiry may now generally be made by a master.' See Penalty. Non damniflcatus. He is not injured. The plea in the case of an action on a cove- nant to indemnify and save harmless, — in the nature of a plea of performance. If there was any injury the plaintiff must reply to such plea. Not the plea when the condition is to " dis- charge and acquit." * Damnosa heereditas. A hurtful or bur- densome inheritance ; an expensive asset. By the Roman law the heir was liable to the full extent of his ancestor's liabilities. The term has been applied to property of a bank- rupt which is a charge or an expense to the creditors. The assignee need not regard such property as an asset; he may, instead, leave the creditor !to prove his claim; or, possibly, he may assign the burden to R. Co., 83 Ky. 174, 180 (ISSi); Burns v. Grand Rapids, &c. R. Co., Sup. Ct. Ind. (1888), cases: 37 Alb. Law J. 228. ' 2 Greenl. Ev. § 260; 108 U. S. 176; 9 Bened. 241 2 See 2 Bl. Com. 271. 8 2 Story, Eq. § 795. « Wicker v. Hoppock, 6 Wall. 99 (1867), cases; Steph. PI. 388. DANGER 310 DARE another, as.' a pauper; but not so in insolvency, in which case the process is voluntary, ^ Damnum absque injuria. A loss with- out injury : depriTation without legal injury ; a loss for which the law provides no remedy. Opposed, injuria absque damno: injury without legal damage. There are many cases of loss for which no relief or equivalent in money can be afforded. Examples: un- intended hurt, while due care is being exercised ; harm done from taking a medicine prescribed by a person known not to be a physician; patronage drawn off by competition in business^ ^ an improvement in a ma- chine, which does not infringe the rights of a prior patentee; ^ waste by a tenant in fee, as affecting the interest of the heir; defamatory words proven to be true.* Every public improvement, while adding to the convenience of the people at large, affects more or less injuriously the interests of some individuals." When the exercise of a right, conferred by law for the benefit of the public, is attended with temporary inconvenience to private parties, in common with the public in general, they are not entitled to damages therefor." Damnum, fatale'. A fated loss ; a loss or- dained by fate — beyond the control of man. In the civil law, a loss for which a bailee was not . liable: as, a loss by shipwreck, lightning, or other like casualty; also, a loss from fire or from pirates.^ Included all accidents occasioned by an "act of God' or public enemy," and, perhaps, also, others which would not now be considered as due to "irre- sistible force." 8 See Accident, Inevitable; Act, 1, Of God. See De Melioribus, Damnis; Remittitur, Damnum. DANGrEE. In the law of self-defense " apparent danger " means such overt, act- ual demonstration, by conduct and acts, of a design to take life or to do some great personal injury, as makes killing apparently necessary for self-preservation. ^ See Imme- diate. KS Pars. Contr. 466, 492; American File Co. v. Gar- rett, no U. S. 295 (,18S4), cases. "3B1. Com. 2»1. 3 Burr V. Duryee, 1 Wall. 574 (1863). 4 3B1. Com. 319, 125. ' Miller v. Mayor of New York, 109 tJ. S. 395 (1883). 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; 32 F. R. 568; 17 Conn. 302; 83 Ky. 218; 97 N. C. 483; 94 N. Y. 139; 86 Pa. 401; 98 id. 84; 113 id. 126; :6 Op. Att.- Gen. 480; 66 Ga. 69, 308; 71 id. 734; 34, La. An. 312, 496, 506, 857, 974, 996; 74 Me. 171 ; 133 Mass. 489; 11 Lea, 137; 59 Tex. 517; 25 Vt. 49. 'Hamilton v. Vicksburg, &9. E. Co., 110 U. S. 885 (1886). 'See Story, Bailm. 471; 8 Kent, 594. SThickstunu Howard, 8 Blackf. 536 (1847). » Evans v. State, 44 Miss. 773 (1870). Dangerous. Said of a weapon, means such as is likely to. cause death or to produce great bodily harm. See further Weapon. Dangers of navigation. The ordinary perils which attend navigation.' , Includes dangers arising from shallow waters at the entrance of harbors; ' also, unavoidable dangers from a bridge across a river." Dangers of the river. The natural acci- dents incident to river navigation ; not, such accidents as may be avoided by the exercise of that skill, judgment, or foresight which are demanded from persons in the particular occupation.3 Includes dangers from unknown reefs, suddenly formed in the channel, and not discoverable by the use of care.* Dangers of the sea or seas. Stress of weather, winds and waves, lightning, tem- pests, and other extraordinary occurrences, as understood in a marine policy; not, the ordinary perils which every vessel must en- counter.6 Accidents, peculiar to navigation, of an extraordinai-y nature, or arising from an irresistible force or overwhelming power which cannot be guarded against by the or- dinary exertions of human skill and pru- dence." All unavoidable accidents from which common carriers, by the general law, are not excused unless they arise from the act of God. 7 The phrases " dangers of the sea," " dangers of nav- igation," and "perils of the seas," employed in bills of lading, are convertible expressions. ^ See further Act, 1, Of God; Peril. DARE. L. To give ; to transfer. See Dbdimus. Nemo dat qui non habet. No one gives who does not have. Nemo dat quod non habet. No one can give what he does not own. ' [Western Transportation Co. v. Do^rner, 11 Wall. 133 (1870). = The Morning Mail, 17 F. R. 545 (1883). s Hill V. Sturgeon, 35 Mo. 313 (1804); 38 id. 323. *Hibernia Ins. Co. ii. St. Louis,. &c. Transportation Co., 17 F. R. 478 (1883). 'Hazard v. New England Marine Ins. Co., 8 Pet. *685 (lt34), M'Lean, J. ' [Tuckerman v. Stephens, &c. Transpoi-tation Co., 32 N. J. L. 328 (1867); 33 id. 565. ' Dibble v. Morgan, 1 Woods, 411 (1873). ' Baxter v. Leland, 1 Abb. Adm. 352 (1848), cases; 3 Ware, 215; 2 Curtis, 8; 56 Barb. 442; 3 Kent, 30O. DARRAIGN 311 DAY Qui non habet, ille non dat. He who does net own, cannot transfer, i See Trans- ferke; Redd are. DARKAIGN . See Deraign. DAHREIlf. See Continuance, Puis, etc. DARTMOUTH COLLEGE CASE. See Chartek, 2; Corporation. DATE.2 The primary signification is time " given " or specified, — in some way as- certained and fixed.' The time when an instrument was made, acknowledged, delivered, or recorded; the clause or memorandum which specifies that fact ; and the time from which its operation is to he reckoned.* In the ancient form the clause ran : datum apud, etc., specifying the place and time; thence called the datum clause, afterward shortened to " date." False date. Implies a date purposely in- correct. Misdate. An erroneous date, made so intentionally or unintentionally. A date is not a necessary part of a document. An- other day than that named may be shown to be the true date, except where there is collusion.' A deed is considered as executed on the nominal date, unless the contrary be made to appear; it speaks from the day of delivery; and it is valid whether it bears no date, or has a false or an impossible date, provided the real day when it was given can be estab- lished. • The purpose of a date in a bill or note is to fix the day of jayment; it such day is indicated, that is suffi- cient.' See Description; Relation, 1. DAY. 1. The time between one midnight and the next succeeding midnight.' See Night. The civil day begins and ends at 12 o'clock P. M. The word " day," used alone in a statute or conti*act, means, unless restricted to a shorter period, the twenty-tour hours." • See 18 Wall. 550; 23 id. 128; 4 Cliff. 311, 360; 71 Ala. 388; 100 Mass. 34; 4 Wend. 619. 2 L. datum, a thing given. 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 Whart. Ev. §§ 976-78, cases; 2 Greenl. Ev. §§ 12-13, « 2 Bl. Com. 304, 307; Raines v. Walker, 77 Va. 93 ,, cases; 19 How. 73; 33 Me. 446. ' Daniel, Neg. Inst. |§ 63-35, cases; 1 Ames, Bills, etc., 14.5. 'Pulling V. People, 8 Barb. 385 (1850); Kane v. Com- monwealth, 89 Pa. 628 (1879); Haines v. State, 7 Tex. Ap. 33 (1879). •Benson v. Adams, 69 Ind. 354 (1879), cases; Hel- phensiein v. Vincennes Nat. Bank, 65 id. 589 (1879); 3 Bl. Com. 141. 2. The time between sunrise and sunset; day-time, q. v. • 3. The business hours of a day. Artificial day, solar day. From the rising to the setting of the sun. Natural day. The whole twenty-four hours; mid- night to midnight. 1 Daily. " Advertisement in a daily news- paper" (q. V.) may refer to a paper issued every day of the week but one.^ Day in court. A day set for appearing in a court ; a day on which a person may be heard as to a matter affecting his rights. It is an old maxim that every one is entitled to his day in covut. This means that day on which the cause is reached tor trial in pursuance of the forms and methods pre*ribed bylaw." S6e Continuance; Notice, 1. Days of grace. Three additional days in which to pay a negotiable bill or note after its maturity. See further Grace, Days of. Day's work. See Service, 1. Day-time. That portion of the twenty- four hours during which a man's person and countenance are discernible.'' See Burg- lary. Judicial day; juridical day. A day for judicial proceedings ; a day for exercis- ing judicial power ; a court day. Opposed, • nan-Judicial, non-juridical day. Non-judicial days are legal holidays and Sundays. Judicial proceedings in civil matters on such days are generally void. See Dies, Dominicus, etc.; Holiday; Sunday. Peremptory day. A day assigned for a hearing without further postponement. See Appearance, 3; Law-dat; Return-day; Ruk- NiNG Day. Compare Dies. "In the space of a day all the twenty-four hours are usually reckoned, the law generally rejecting all fractions of a day, in order to avoid disputes." • Common sense and common justice equally sustain the propriety of allowing '■ tractions of a day " when- ever it will promote the purposes ot substantial jus- tice." 1 See People v. Hatch, 33 III. 137 (1863). ! Richardson jj.Tobin, 45 Cal. 30,33 (1872). 8 Ketohum v. Breed, 66 Wis. 92 (1886), Cassoday, J. ; 81 Va. 759. ' Trull V. Wilson, 9 Mass. 164 (1812); 4 Bl. Com. 224. i 2 Bl. Com. 141. 'Be Richardson, 3 Story, 57T (1843); Lapeyre u. United States, 17 Wall. 198 (1872); United States v. Nor- ton, 97 U. S. 170 (1877); Burgess v. Salmon, ib. 363 (1878); First Nat. Bank of Cincinnati v. Bm-khardt, lOJ id 689(1879): Louisville ti. Portsmouth Savings Bank, 104 id. 474-79 (1881), cases; 11 F. R. 214; 37 111. 239; C9 Ind. 353; 28 Pa. 518. DE 313 DE The maxim is now chiefly known by Its exceptions. When private rights depend ijpon it, the courts inquire into the hour at which an act was done, a decree en- tered, an attachment laid, or a title accrued.' When an oflBcer has neglected to note upon a writ of execution the hour and minute at which the writ was delivered to him, the precise time may he estab- lished by evidence." It has become the rule in the construction of a con- tract, when the time to be computed is one or more days, weeks or years, to exclude the day of the date or event, whether by the contract the time is to be reckoned from date, from the day of the date, or from some act or event. The day is not divided, be- cause not only is a day a natural unit of time, but it is a fair presumption that the parties did not intend to divide a day, since the time to be computed is made up of days as imits of time; and the day is excluded because to include it would require an act, which, by the contract, was to be done in one day from date, to be done on the day of the date, which is against the apparent intention of the parties. But whenever it is necessary to divide a day in order to carry into effect the intention of the parties, this may be done; and the rule of excluding the day is not applied when a different intention appears on the face of the contract ; and no such general rule obtains when acts are to be done within one or more hours, for example, after the date of the contract.^ In computing time, days are counted according to the following rules: 1. When a contract, a statute, or a rule of court prescribes a definite number of days within which an act must be done (as, make a payment, take an appeal, file a plea or pleading, serve a notice), the first day is excluded and the last day included: the first and last days are never both ipcluded.^ 2. An intervening Sunday is frequently omitted, es- pecially when the days are less than a week.^ S. When the last day is' Sunday, or a legal holiday, the act may be done on the day following — except as to days of grace, "i ' See further under Time. ' See After; Afternoon; At; Between; By; For; From; On or Before; When; Within; —: Month* Time; Year. DE. A Latin preposition denoting: away from, out of, arising from; of, about, con- cerning, with regard to ; for, on account of, because of, by. With adjectives, forms adverbial expressions; as, de novo, anew. In compounds, denotes separation, departure, re- moval: cessation or negation of the fundamental idea; sometimes, a strengthening of that idea. ■ Maine v. Gilman, 11 F. R. 216 (188^), cases. = Hale's Appeal, 44 Pa.' 439 (1863). 3 Hitchings v, Edmands, 132 Mass. 339 (1882), Field, J. Ward V. Walters, 68 Wis. 44 (1885), cases. ' See 2 Pars. Contr. 334; 19 Conn. 376; 12 Iowa, 186 9 N. H. 304; 37 Mo. 574; 28 Barb. 284; 16 Pa. 14. ' See 31 Cal. 240, 271; 13 Ga. 93; 53 111. 87; 46 Mo. 17 29 Pa. 522; 40 id. 372; 17 Gratt. 109. « See 3 Cush. 137; 27 N. J. L. 68; 20 Wend. 305. De bene esse. For the well being : pro- Tisionally, conditionally. Abbreviated d. b. e. Characterizes an act or proceeding viewed as sufficient fOr the time being. The entry of record of the name of an attorney as counsel for a defendant is termed an appearance de bene esse, when such appearance is not to be conclu- sive unless subsequently ratified. The examination of a witness de bene esse may be had when he is an important witness, and there is danger of losing his testimony from death or* absence. His deposition (q. v.) may be taken, but not used at trial unless he has since died, or is abroad or beyond reach of process.* De bonis. Of, for, or concerning goods or property. See phrases under Bona. De cursu. Of course; as a matter of course. De donis. Concerning grants. See under DONtTM. De facto. In fact; as a matter of fact. Opposed, de jure: by right, by legal right or title. See Factum; Government. De gratia. From favor, indulgence. Opposed, dejure: of right. De homiue replegiando. For replevy- ing a man. See Replevin, 3. De incremento. Of the increase. See Costs. De injuria. Of wrong. See Replication. De jure. Of or by right. See De facto; De gratia. De limatieo inquirendo. For inquiry as to lunacy, q. v. De medietate linguae. Of half tongue: half of each language or nationality. See Medietas. De melioribus damnis. Of the better damages; of the abler ones the damages. Where a loss is assessed against several defendants the plaintiff may elect to claim satisfaction of those most able to pay. See Contribution, De mereatoribus. Concerning mer- chants, q. V. De minimis. See Lex, De minimis, etc. De non apparentibus. See Apparere, De non, etc. De novo. From the first; anew. See Venire, De novo. De partitione facienda. For division to be made. See Partitio. De retorno habendo. For having re- turn; to have a return, q-. v. 'See 2 Daniel, Ch. Pr. Ill; 25 Cent. Law J. 244,679 (1887), cases. DEAD 813 DEATH De sou tort. F. Of his own wrong. See Tort, 1. De terris. Out of the lands. As, a judgment ile terris, for arrears o( dower.' De una parte. Of one part or party. See Pars. De ventre. See Venter. De vlcineto. From the vicinage or coun- try. See County, 2 ; Vicinity. DEAD. See Alivb; Animal; Burial; Death; Freight; Pledge. Dead-head. A person other than an officer, agent, or employee, of a railroad or other company, who is permitted to travel without paying fare.^ See Commerce, Act of 1887, sec. 22, p. 206. Dead-letter law. See Obsolete. Deadly. See Weapon. DEAP. See Influence; Will, 2; Wit- ness. A deaf mute who does not and cannot be made to understand any matter of business, except of the most simple character, cannot manage his own affairs or select an agent to transact them. 3 A statute requii'ed that a stationary bell be rung or a whistle sounded at a railroad ci'ossing, before a train passed. A deaf mute who saw a train approaching, as to which no warning was given, attempted to cross the track and was injured. Held, that he could not recover damages.^ DEAIi. To traffic ; to transact business ; to trade.5 Said of a bank, may mean to buy and sell for gain, and include sales on commission.^ Dealer. One who trades, buys or sells : ' one who buys to sell again ; ° one who makes successive sales a business.' One who slaughters animals and sells the meat as food is not a " dealer " within the meaning of a stat- ute requiring dealers who buy and sell merchandise to take out a license.'" See Peddlek; Retail. Dealer's talk. See Commekdatio, Simplex, etc. ' Haven v. Bartholomew, 5" Pa. 126 » [Gardner v. Hall, CI N. C. ii3 (1866). 3 Perrine's Case, 41 N. J. E. 410-13 (1886), cases. Run- yon, Ch.: 95 Am. Law Reg. 776 (1886); ib. 778-80. » Ormsbee v. Boston, &o. K. Co., 14 R. I. 102 (1883). 'Vernon v. Manhattan Co., 17 Wend. 526 (1837). 'Bates V. State Bank, a Ala. 465-^ (1841); Fleckner V. United States Bank, 8 Wheat. 349, 351 (1823); 11 Wis. 334. ' Berks County D. Bertolet, 13 Pa. 524 (1850). «Norris v. Commonwealth, 27 Pa. 495 (1866); 33 id. 381. » Overall v. Bezeau, 57 Mich. 507 (1877), Cooley, C. J. '» State V. Tearby, 82 N. C. 561 (1880); 80 id. 479. See also 44 Ala. 29; 79 111. 178; 65 Me. 284; 13 Lea, 282; 21 Vt. 484. DEATH. Cessation of life ; extinction of poli^cal existence. See Life. Civil death. Extinction of civil rights. A bankrupt is regarded as civilly dead;' so is an insolvent corporation, to the extent that its property may be administered as a trust fund for creditors and stockholders." Formerly, if a man was banished or abjured the realm, or entered a monastery, before the law he was civilly dead — civilitur viortuus. Then, a monk,likea dying man, could make a will, or leave his next of kin to administer as if he had died intestate. Since, also, the act determined a lease for life, conveyances for life were usually made for the term of one's " nat- m'al life." * A convict, in the penitentiary, is civilly dead, and cannot be sued.* Natural death. Death from the unas- sisted operation of natural causes ; death by visitation of the Creator. Violent death. Death caused by human agency. See Cor- oner. A person who for seven years has not been heard of by those who wovild naturally have heard of him. had he been alive, is presumed to be dead ; but the law raises no presumption as to the precise time of death. That he died before the end of that period may be presumed, it appearing that he encountered a special peril or came within the range of some im- pending or immediate danger which might reasonably be expected to destroy life." See Die, Without chil- dren. Death by the hands of justice. The execution of a person convicted of crime in any form allowed by law. 6 See under Die. Death penalty. Punishment by depri- vation of Ufe ; capital punishment. Death sentence. A sentence involving death. Death warrant. An order for the execu- tion of a person who has been sentenced to punishment by death. < The manner of inflicting the punishment of death shall be by hanging.' The language of a death-sent«nce is believed to be substantially as follows: " A B, having been convicted of the felony with which you stand charged, and of the crime of murder in the first degree [or other capi- ' International Bank v. Sherman, 101 U. S. •106 (1879). » Graham v. La Crosse, &c. R. Co., 102 U. S. 161 (1880). M Bl. Com. 133; 2 id. 267; 6 Johns. 118; Mo. R. S. 1835, p. 642. *Eice County v. Lawrence, 39 Kan. 161 (1883). ' Davie v. Briggs, 97 U. S. 638-34 (1878), cases; NeweU 1.. Nichols, 76 N. Y. 86-90 (1878), cases; Evans v. Stew- art, 81 Va. '.3.3-38 (1886), cases; Doe v. Nepean, 3 Sm. L. C. 510: 1 Greenl. Ev. §'41; 2 Whart. Ev. §§ 1274-78, cases; 92 Am. Dec. 704-3, cases. « Breasted v. Farmers' Life & Trust Co., 8 N. Y. 303 (1853). 'R. S. §6324. DEATH 314 DEBET taj offense], the sentence of the law is, that for this offense you be taken hence to the jail of the county, whence you came, and thence, at such time as the governor of the State [or, the President of the United States] may, by his warrant, appoint, to the place of s execution, and that you be then and there hanged by the nec)£ until you be dead. And may God have mercy upon your soul." The wording of a recent death-warrant was: Commonwealth of Pennsylvania, , governor of said commonwealth, to , high sheriff of the county of Allegheny, sends greeting: Whereas, At a court of oyer and terminer and gen- eral jail delivery held at Pittsburgh in and for the county of Allegheny at September session, 1885, a cer- tain was tried upon a certain indictment charging him with the crime of murder, and was, on the 13th day of November, 1S85, found guilty of mur- der in the first degree, and was thereupon, to wit, No- vember 19, 1885, sentenced by the said court, that he, the said , be taken thence to the jail of Alle- gheny county, whence he came, and thence to the place of execution at such time as the governor of this commonwealth by his warrant may appoint, and there and then he be halnged by the neck until he be dead. Now, therefore, this is to authorize and require you, the said , high sheriff of the county of Allegheny as aforesaid, or your successor in office, to cause the sentence of the said court to be executed upon the said between the hours of 10 a. m. and 3 p. M., on Thursday, the 23d day of February, Anno Domini, one thousand eight hundred and eighty- eight, in the manner directed in the seventy-sixth section of the act of general assembly of this com- monwealth, approved the 31st day of March, A. D., 1860. entitled an act to consolidate, revise and amend the laws of this commonwealth relating to penal pro- ceedings and pleadings, and for so doing this shall be your sufficient warrant. Given under my hand and the great seal of the State at Harnsburg this 20th day of January, in the year of our Lord one thousand eight hundred and eighty- eight, and of the commonwealth the one hundred and twelfth. , Secretary of the commonwealth. Punishment by death is known as "the extreme penalty of the law. " It is not viewed as an equivalent, even in murder, nor as retaliation, but as the highest penalty man can inflict, and tending most to personal security.^ See further Cap; Execution, 3; Punish- ment, Capital. D^ath watch. Special guard appointed, a few days (perhaps eight to fourteen) before execution, to observe the actions of a pris- oner under sentence of death, in order to discover and defeat any plan formed or at- tempt made to effect his escape, and to pre- vent him from committing suicide ; also, the occasion for taking such extra precaution, and, the number of days during which the precaution is exercised. 1 4 Bl. Com. 13, 376. The persons who actually perform the service may be designated as the " day " and the " night " watch. See also Accident, Insurance; Die; Abatement, 4; Actio, Personalis; Agent; Burial; Conceal, 1; Dam- ages; Deceden-t; Declaration, 1, Dying; Deodand; Donatio; Homicide; Insurance; Mortality; Police, 8; Eevivb; Survive. Compare Mors. DEBAIl. See Bar, 3. DEBATE. See Libertt, 1, Of speech; Privilege, 4. DEBAUCH. In French, debauche, from the shop : to entice away from work or duty ; to entice and corrupt. Referring to a woman, at first meant to seduce, then to seduce and violate : in which twofold sense it is used in law.l DEBENTTJEE. 1. A custom-house cer- tificate that an importer is entitled to a draw- back. « 3. A bond in the nature of a charge on government stock, or on the stock of a public company.' See Debet. A security issued by a public (usually, a railway) company, and may be a mortgage of its lands and stock. It is in the form of a promissory note, subject to strict regulations as to transfers, and has coupons " attached for the payments of interest.* The word does not admit of accurate definition. It expresses an acknowledgment of a debt by either a corporate body or a large partnership.^ "You may have mortgage debentures, which are charges of some kind upon property; or you may have debentures which are bonds. . You may also have a debenture which is nothing more than an acknowl- ed3:ment of debt, or you may have an instrument like this in question, which is a statement by two directors that a company will pay." » DEBET. L. He owes; from debere: de habere, to have a thing of some one. Com- pare Assumpsit. Deta.et et detinet. He owes and with- holds. The form of the writ of debt is sometimes in the debet and detinet, and sometimes in the detinet only: that is, the writ states, either that the defendant owes and unjustly detains the debt or thing in question, or only that he unjustly detains it. The writ is brought in the debet as well as in the detinet, when sued by one of the original contracting parties who personally 1 [Koenig v. Nott, S HUt. 389 (N. Y., 1S59), Daly, F. J. ; 8 Abb. Pr., o. s., 389. ' Act of Congress, 2 March, 1T99, s. 80. " [Mozley & Whiteley's Law Diet. * [Brown's Law Diet.] ' British India Steam Navigation Co. v. Commission- ers of Internal Revenue, 44 L. T. 378 (1^1), Grove, J. See also Be Rogers' Trusts, 1 Drew. & S. 341 (1860). » 44 L. T. 381, supra, Lindley, J. See Jones, Ey. Sec. §7a. DEBRIS 815 DEBT gave the credit, against the other who personally in- curred the debt, or against his heivs, if they ai-e bound to the payment; as, by the obligee against the obligor. But if brought by or against an executor for a debt due to or from the testator, this, not being his own debt, shall be sued for in tlie detinet only. So, also, if the action be for goods, or corn, or a horse, the writ shall be in the detinet only, for nothing but a sum of money, for which I (or my ancestor in my name) have personally contracted, is properly considered my debt.' Debit. He owes. See under Debt, 2. Debituin. A thing due or owing ; an ob- ligation ; a debt, g. v. Debitum in praesenti, solvendum in futuro. An obligation existing in the present, dis- chargeable in the future. Describes any class of obligations complete at the present day, though payable in the future.' Debitum sine brevi. Debt without a writ or declaration. Written also debitum, and debit, sans breve; and abbreviated d. s. b. 1. When an action at common law was begun by original bill, the allegations In which resembled the allegations in a modern declai-ation, the action was said to be by bill, or by bill without a writ,— other actions being founded upon an original writ. 3. In the practice of several States, a debt confessed by warrant of attorney and en- tered of record, either with or without a declaration accompanying it. See further Attohnet, Warrant of. Nihil, or nil, debet. He owes nothing. The plea which forms the general issue in an action of debt upon a parol contract.^ DEBEIS. See Aqua, Currit, etc. DEBT. Whatever one owes.* See Debet. 1. A liquidated demand. A sum of money due by certain and ex- press agreement.* As, by a bond for a determinate sum, by a bill or note.'by a special bargain, or as rent reserved on a lease: in which eases the amount is fixed, specific, does not depend upon subsequent valuation to set- tle it. 5 Frequently, a sum of money reduced to a certainty, and distinguished from a claim for uncertain damages. As, in statutes of set-oflE, where there are mutual debts' between plaintiff and defendant. . . If we regard the original, debitum, a thing due or owing, there is no reason why compensation for a breach of contract may not be " due," although not reduced to a certain sum. This enlarged sense, at least,, may best answer the intent of the legislature. ' A sum of money due by contract. It is not essential that the contract be express, nor that it fix the precise amount to be paid." That for which an action of debt will lie — a sum oif money due by certain and express agreement. In a less technical sense, any claim for money ; in a more enlarged sense, any kind of a just demand.^ In its most general sense, that which is due from one person to another, whether money, goods, or services ; that which one is bound to pay to or perform for another.* Standing alone, is as applicable to a sum of money promised at a future day as to a sum now due and payable. The former is a debt owing, the latter a debt due. . A sum in all events payable is a debt, without regard to the time of payment. A sum pay- able upon a contingency is not a debt." See Due, 1. Liability in a borrower to be sued is not essential.' The idea is that one has bound himself to pay money which he may be compelled to pay.' " Whatever is due to a man under any form of obli- gation or promise." Coke says that debitum signifies not only a debt for which an action of debt lies, but, generally, any duty to be yielded or paid.^ A fixed and certain obligation to pay money or some other valuable thing, in the present or in the future. ' Any contract whereby a determinate sum of money becomes due and is not paid, but remains in action, is a " contract of debt." In this light the word comprehends a variety of ac- quisitions, usually divided into debts — of record, by special contract, and by simple contract. A debt of record is a sum of money which appears to be due by evidence of a court of record ; a debt by specialty, a sum acknowl- edged to be due by an instrument under seal ; a debt by simple contract is evidenced 13BI. Com. 156. 2 13 Pet. 494; 11 Mass. 3T0; 30 Minn. 7; 29 Pa. 151. S3 Bl. Com. 305; Steph. PI. 174. * Kodman i'. Munson, 13 Barb. 197 (1852). 53 Bl. Com. 154; McEltresh v. Kirkendall, 36 Iowa, 326(1873). 1 Frazer v. Tunis, 1 Binn. 202 (1808), Tilghman, C. J. "United States v. Colt, 1 Pet. C. C. 146 (1815), Wash- ington, J. a New Haven Saw Mill Co. v. Fowler, 88 Conn. 108 (1859). «Kimpton v. Bronson, 45 Barb. 625 (1866), cases; 7 N. Y. 197; 24 id. 290. » People V. Arguello, 37 Cal. 53.5 (1869). « Mayor of Baltimore v. Gill, 31 Md. 390 (1869). ' Scott V. City of Davenport, 34 Iowa, 213 (1872). 8 New Jersey Ins. Co. v. Meeker, 37 N. J. L. 301 (1875): Burrill; Bowen v. Hoxie, 137 Mass. 531 (1884); 3 Mete. 526; 113 U. S. 463. • [Appeal of City of Erie, 91 Pa. 402 (1879). DEBT 316 DEBT by mere oral testimony or by an unsealed note.' Antecedent debt. See Sectjeity (3), Coir lateral. Mutual debts. Moneys due or owing by two persons to each other ; debts reciprocally due. " Mutual debts," " dealing together," and " indebted to each other," in statutes of set-off, are of the same import. 2 " Mutual debts " and " mutual credits," in § 5013, Kev. St., are correlative expressions. What is a debt ou one side is a credit on the other. In case of bank- ruptcy only such credits as must in their nature termi- nate in debts are the subject-matter of set-off,' g. v. Compare Credit, Mutual. Present or existing, prior, and future or subsequent debts. See Convetance, 2, Fraudulent; Security, 1. Privileged debt. A debt payable before other debts — in the event of insolvency. Results from the character of the creditor, as, a State or the United States; or form the nature of the debt,' as, funeral expenses. Priority of payment of debts due to the government is founded upon motives of putlio policy, to secure revenue.* Public debt, k national or State obliga- tion; a public security; rarely, if ever, the obligation of a town. 5 "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in sup- pressing insurrection or rebellion, shall not be ques- tioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and clauns shall be held illegal and void." » 2. The non-payment of any such definite sum of money being regarded as an injury, the remedy afforded is known as the action of debt or simply " debt : " the form of ac- tion to compel the performance of the con- tract. This is the shortest and surest remedy, particularly where the debt arises upon a specialty. But if A verbally agrees to pay B a certain price for a certain parcel of goods, and fails in the performance, an ac- tion of debt will lie against A; for this is also a deter- 1 [8 Bl. Com. 464-66; 3 id. 154, 166. See 2 Story, 450; 2 Wash. 385; 11 Ark. 335; 15 Ind. 282; 1 Nev. 589; 40 N. J. E. 178; 13 Barb. 77; 38 Ohio St, 570; 51 Vt. 86. 2 Pate V. Gray, 1 Hempst. 157 (1831). s Libby v. Hopkins, 104 U. S. 307-8 (1881), eases. < United States v. State Bank, 6 Pet. *3o (1382). ' Morgan v. Cree, 46 Vt. 786 (1861). 8 Constitution, Amd. XIV, sec. 4. minate contract: but if he agrees for no settled price, he is liable upon a special "action on the case," ac- cording to the nature of the contract. ^ The action lies whenever a sum certain is due to the plaintiff, or a sum which can readily be reduced to a certainty — a sum requiring no future valuation to settle its amount: 2 a sum which can be ascertained from fixed data by computation. 3 It is not material in what manner the obligation was incurred or by what it is evidenced, if the sum is capable of being definitely ascertained. Nor is it nec- essarily founded upon a contract.'' The action lies for money only. On an obligation to pay or deliver any other article, covenant is the remedy, and the recovery is o$ a compensation in damages.* See Assumpsit; Covenant, 2.' Debit. To charge as due or owing; also the sum so charged. Debtor. One who owes another any- thing, or is under obligation, arising from ex- press agreement, implication of law, or the pi-inciples of natural justice, to render and pay a sum of money to another.^ The correlative de6teehas been in use." One who is under obligation to discharge some duty, or to pay damages for its non-performance, is a, debtor, as really as one who is under obligation by bond to pa.y a sum of money.' Joint debtor. One of several persons who jointly owe a sum of money ; a co-obligor. See Joint. As to "absconding" and "absent" debtors, see those terms; also, Conceax., 3. A person, without request or assent, cannot make another his debtor by paying his debt, as, taxes;" otherwise, as to honoring commercial paper, as see Accept, 2. The rule is that " the debtor must seek the creditor," and pay or tender payment of the debt when due." Indebted. The state of being in debt, absolutely, and not conditionally — as is a surety or an indorser. i" Implies a debt presently payable; as, in an affidavit for an attachment.^' > 3 Bl. Com. 165. " Stockwell V. United States, 13 Wall. 542 (1871). 1 Mills V. Scott, 99 U. S. 29 (1878) ; 7 Wall. 79, 80. * Minnick v. Williams, 77 Va. 760 (1883) ; Story, Contr. § 969. ' Stanly v. Ogden, 2 Root, 268 (1795). »3B1. Com. 18. ' New Haven Saw Mill Co. v. Fowler, 28 Conn. 108 (1860); 34 Iowa. 213. "Homestead Co. v. Valley E. Co. 17 Wall. 167 (1872); Gurnee v, Bausemer, 80 Va. 872 (1885), cases. » Johnston ti. Hargrove, 81 Va. 121 (1883). '" See St. Louis Perpetual Ins. Co. v. Goodfellow, 9 Mo. 133 (1845). " Trowbridge V. Siokler, 42 Wis. 420 (18';7), cases. DECAPITATION 317 DECEIT Indebtedness. The condition of owing money ; also, the amount owed ; indebtment. May include an obligation for future payment equally with that presently due; ^ and maybe by con- tract or tort.^ The " indebtedness " that may be created by a city ' in excess of a certain percentage on its taxable prop- erty includes an agreement of auy kind to pay money where no suitable provision has been made for the prompt discharge of the obligation, ^ See Accord; Account, 1; Acknowlkdgmbnt, 1; Ad- minister, 4; Bankruptcy; Certum; Oharqe, 2 (2); Claim; Composition, 3; Contract; Demand; Exemp- tion; Extinguish; Floating; Fund; Guaranty, 3; Incur; Insolvency; Liability; Lien; Merger, 2; Novation; Pay; Penalty; Pre-existing; Prefer- ence; Prior; Prison; Recognizance; Recovery; Re- lease; Rescission; Subrogation; Take, 8; Tax, 2; Tender, 8. DECAPITATION. See Capital, 1. DECAY. See Perishable ; Sound, 3 (1). DECEDENT.* A deceased person whose estate is being settled. See Administer, 4; Creditor, Bill ; Distribution, 2 ; Part, 1 ; Probate ; Residue ; Will, 3. DECEIT. Any device or false representa- tion by which one man misleads another to his injury. ^ A fraudulent niisi-epresentation, by which one man deceives another, to the injury of the latter.5 Deceit practiced to induce one to enter into a contract may be active, as where falsehood and misrepresentation are actually used by one party to deceive the other; or passive, as where a vendor knows that a purchaser is under a delusion influencing his judgment in favor of purchasing, and yet suffers him to complete his purchase.^ Other examples are: where one sells what is not his own, or sells unwholesome provisions; ' or falsely rep- resents his credit to a mercantile agency." While ever)' deceit comprehends a lie, it is more than a lie — on account of the view with which it is practiced, of its being coupled with some dealing, and of the injury it is calculated to occasion, and does oc- casion. But a mere lie thrown out at random with- out intention to hurt anybody, and which a plaintiff 'Pittsburgh, &c. K. Co. v. aarke, 29 Pa. 151 (1857); Law V. People, 87 HI. 393 (1877). ' Mattingly v. Wulke, 2 Bradw. 178 (1878), cases. ssackett v. New Albany, 88 Ind. 479 (1883); Valpa- raiso V. Gardner, 97 id. 6-7 (1884). * De-ce'-dent. sFarwell v. Metcalf, 61 111. 374 (1871), Thornton, J. » [Smith, Contr. 808. ' 3 Bl. Com. 166. » Jlaton V. Avery, 18 Hun, 44 (1879). was foolish enough to believe, will not support an action.' Formerly the remedy was by a " writ of deceit; " now, unless otherwise provided by statute, it is by an action of trespass on the case. Besides the special action on the case there is also an " action of deceit," which gives damages in par- ticular cases of fraud, principally where one man does anything in the name of another, by which he is de- ceived or Injured. But an action on the "case" for damages, in the nature of a writ of deceit, is the usual remedy. '^ To a recovery it is essential that the defendant; (1) actually made a false representation of a material fact, by words or acts unambiguous in import; = (2) knew the falsity, or did not know the truth, of the rep- resentation <— the word "deceit" of itself imports this;* (3) intended that the plaintiff should act upon the representation — tbe essence of the injury; '» ' and th&t the plaintiff: (1) acted upon the representation; (8) to his actual damage ; ' (3) because he was ignorant of the falsity of the representation, and believed it to be true.^ The defendant or his agent must have been guilty of some moral wrong; legal fraud alone will not sup- port the action." The plaintiff must prove representations of mate- rial facts which are false, and which induced him to act; and either that the defendant knew the represen- tations to be false, or that, the facts being susceptible of knowledge, he represented, as of his own knowl- edge, that they were true, when he had no such knowl- edge." It is not only necessary to establish the tellin'g of an untruth, knowing it to be such, with intent to induce the person to whom told to act upon it, but also that he altered his condition in consequence, and suffered damage thereby. If it appears afiSrmatively that al- though he altered his condition, after hearing the im- truth, he was not induced to do it as a consequence, but did it independently, the action fails.'" In a recent case the plaintiff averred that he had been induced to purchase the lease, good-will, and fixtures of a livery-stable, upon false, fraudulent, and deceitful representations by the defendant that he owned the lease, was in peaceable possession, etc. ' Pasley v. Freeman, 3 T. R. 66 (1789), Buller, J.; ib. 63, Ashhurst, J. ' 3 Bl. Com. 165. s Halls V. Thompson, 1 Smedes & Mar. 481 (1843), «Gibbsu. Odell, 8 Coldw. 133 (1865), cases; Stone v. Covell, 29 Mich. 363 (1874). » Farwell v. Metcalf, 61 111. 374-75 (1871), cases. • Lord ti. Goddard, 13 How. 810 (1861), cases; Farwell V. Metcalf, 61 Dl. 375 (1871), cases; Bigelow, Torts, 31. ' Cases ^upra and infra. »Erie City Iron Works v. Barber, 106 Pa. 125, 138, 140 (1884), cases. » Cole V. Cassidy, 138 Mass. 439 (1886), Morton, C. J. ; 117 id. 195; 103 id. 388. '0 Ming V. Woolfolk, 116 U. S. 599, 602-3 (1886), cases. Woods, J. ; Southern Development Co. v. Silva, 125 id. 250 (1888); Patterson v. Wright, 64 Wis. 289 (1885). DECEM - 818 DECISION To support an. actton of tort, it was held that the plaintiff must show: that the representations were untrue, were known by the defendant to be untme, were calculated to induce him to act, and he, believ- ing them, was induced to act accordingly; that the representations must have been both false and fraud- ulent; that a positive statement of a falsehood, or the suppression of a material fact which the defendant ought to have known, would constitute the falsity ; that if any essential point, requisite to maintaining the action, was wanting, recovery could not be had ; and that the defendant, after judgment against him, was not entitled to an exemption of his property from execution for debt. 1 Where the fraudulent concealment or misrepresen- tation is made by the vendor of land, as to its nature, quality, quantity, situation, or title, the representa- tion must be in reference to a material thing unknown to the vendee from want of examination, or from want of opportunity to be informed. And if the buyer trusts to representations not calculated to im- pose upon a man of ordinary prudence, or if he neg- lects means of information easily within his reach, he must suffer the consequences of his own folly and credulity. The vendee must show, further, that some deceit was practiced for the purpose of putting him off his guard, or that special confidence was reposed in the representations of the vendor, and that the con- tract was made upon the strength of that confidence. To support the action there must be fraud as distin- guished from mere mistake.'' Where the question is as to misrepresentation of facts peculiarly within the defendant's knowledge, " the mere fact that the person deceived to his hurt had means of learning the truth, had he made diligent inquiry, is not necessarily fatal to the right to re- cover." 3 Thus, a distinct statement by the seller of a patents right that he owned the right, knowing it to be false, and with intent to deceive the buyer, and on which statement the buyer acted to his injury, will sustain an action, even if the buyer might have discovered the fraud by searching the records of the patent ofaoe.4 See Age, Full; Caveat, Emptor; Cokceal, 5; Con- spiracy; Estoppel; Prospectus; Warranty, 3. Compare Dolus; Fraud; Pretense. DECEM. See Tales. DECENT. See Indecent. DECEPTION. 1. In the sense of a false representation to induce credit or confidence, see' Deceit ; Estoppel ; Fraud, Actual. 2. In the sense of stratagem to discover crime, see Communication, Privileged, 1; Decoy. 1 Cox V. Highley, 100 Pa. 249, 353 (18S3). See also 1 Chitty, Pr. 833; Bigelow, Torts, 9; Cooley, Torts. 2 Clark V. Edgar, .13 Mo. Ap. 352 (1883). 3 Arthur V. Wheeler & Wilson Manuf. Co., 13 Mo. Ap, .940 (1883). * David V. Park, 103 Mass. 503 (1870), cases; Watson V. Atwood, 25 Conn. 320 (1856). DECISION". The result of the delibera- tions of one or more persons, oificial or un- official; the jvidicial determination of a ques- tion. Somewhat more abstract or more extensive than "judgment" or "decree," ' gq. o. The "decision" of a court is its judgment; its " opinion " is the reason given therefor. The former is recorded upon its rendition, and can be changed only through an application to the court. The latter is the property of the judges, subject to modification, until transcribed in the records.* Decide. Includes the power and right to deliberate, to vreigh the reasons for and against, to see which preponderate, and to be governed by that preponderance.' Judicial decision. The determination of a court, in a cause. Extra-judicial de- cision. A determination beyond the limits of authority ; a ruling which transcends ju- risdiction. A decision determines no more than what is neces- sary to the case in hand, — does not go beyond the limits of what is required by the, exigencies of the case. * At most, decisions are only evidence of what the laws are, and are not of themselves laws. They are often re-examined, reversed, and qualified by the courts themselves, wljenever found to be defective, ill-founded, or otherwise incorrect. The laws of a State are understood to mean the rules and enact- ments promulgated by the lemglative authority thereof, or long established local customs having the force of law.= Decision, rules of. The laws of the sev- eral States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be re- garded as rules of decision in trials at com- mon law, in the courts of the United States, in cases where they apply. 6 This embraces the statute and common law of a State, including statutes relating to the law of evi- dence in civil cases at common law.' In criminal cases the laws of the State in existence in September 3J, 1789, are the rules of decision.' 1 See Abbott, Law Diet.; 26 Moak, 449; 55 Vt. 583. = [Houston V. Williams, 13 Cal. 27 (1859), Field, J. > Commonwealth v. Anthes, 5 Gray, 263 (1855). See 43 Md. 629; 16 Moak, 86. *Hauenstein v. Lynham, 100 U. S. 490 (1879); Trade- Mark Oases, ib. 96 (1879); Wright v. Nagle, 101 id. 796 (1879); State u Baughman, 38 Ohio St. 469 (1882); 10 Oreg. 114. » Swift V. Tyson, 16 Pet. 18 (1842), Story, J. ; Nat. Bank of the Republic v. Brooklyn City, &o. E. Co , 102 U S 39 (1880); 1 Bl. Com. 69. •E. S. § 721: Act 24 Sept. 1789, § 34. ' M'Niel V. Holbrook, 13 Pet. *89 (1838). 8 United States v. Eeid, 12 How. 861 (1851). DECISORY 319 DECLARATION Kules of State practice acted upon by the Federal courts, as oblisatory upon them, are also included — they have the efficacy of rules adopted by express order of those tfourts.^ Not included are decisions upon general principles of law, for the reasons already given," The provision does not apply to proceedings in equity, or in admiralty, or to criminal offenses against the United States. The Federal com-ts follow the de- cisions of the highest court of a State on questions which concern merely the constitution or laws of that State; also, a course of those decisions, whether founded on statutes or not, which has become a rule of property within the State ; also in regard to rules of evidence in actions fit law; also in reference to the common law of the State, and its laws and customs of a local character when established by repeated decL"*- lons.^ See CoMrrv, Judicial ;.Procedtjre. English decisions. See at end of Stat- ute, 2. Ctompare Decisum. See Comity, Judicial ; Dictum, 2; Impair; Opinion, 1 (2); Report, 1(2). DECISORY. See Oath, Decisory. DECISUM. L. Cut off, settled, decided ; a decision, a precedent. Stare decisis, et non quieta movere. To stand by precedents and not to disturb what is settled : follow decided cases ; adhere to j)recedents. Shortened to stare decisis. Once a point of law is firmly settled by a decision, that decision rules*fcke cases subsequently arising. When a court has once^MJown a principle of law as applicable to a certSLijmKBe'ot facts, for the sake of the stability and certaiSgr of the law it will apply that principle to all future cases where the facts are substantially the same.* Stability and certainty in the law are of the first importance. The certainty of a rule is often of more importance than the reason of it.' Where there has been a series nf decisions by the highest tribunal, the rule stare decisis is regarded as impregnable — except by legislative enactment." This is true in a special sense where the law has become settled as a rule of property, and titles have been ac- quired on the strength thereof.' ' United States v. Douglass, 2 Blatch. 214 (1851); The Mayor v. Lord, 9 Wall. 413 (1869). "Swift V. Tyson, ante. See generally Watson v. Tarpley, 18 How. 5S0 (1865); Thompson v. Phillips, Baldw. 246 (1830); Sonstiby v. Keeley, 11 F. R. 580-^1 (1882), cases; Burt v. Keyes, 1 Flip. 61 (1861); 112 U. S. 255. ' Bueher v. Cheshire E. Co., 125 U. S. 555 (1888), cases. Miller, J. ' Moore v. Albany, 98 N. Y. 410 (1885), Earl, J. » N. W. Forwarding Co. v. Mahaffey, 36 Kan. 157 (1887): White v. Denman, 1 Ohio St. 115 (1E53). = Harrow v. Meyers, 29 Ind. 470 (1868); 88 id. 668. 'Beed v. Ownby, 44 Mo. 206 (1869); Hihn v. Courtis, 31 Cal. 402 {18C6); Pioche v. Paul, 22 td.llO (1863). The maxim contemplates points actually Involved and argued. The results established, not the reasons assigned, make the case an authority. In considering the soundness of the doctrine enunciated courts of con- cinrent or of foreign jurisdiction pay regard to the thoroughness of the arguments of counsel, the ability, learning, and jurisdictional authority of the court, and the care and research bestowed in preparing the opin- ion. The meaning, moreover, is to be drawn from the opinion as a whole. The maxim is not applied to a case decided con- trary to principle, nor to a decision considered merely as a judgment between the immediate parties, nor to decisions upon scientific theories, as, of insanity.' See Comity, Judicial; Courts, United States, "Fed- eral question," page 277. DECIiARANT. See Declare. 4. DECLARATIOIf. 1. An assertion or statement explicitly made. Any statement of material matters of fact sworn to and subscribed is a written declara- tion. ^ A declaration which accompanies and qualifies an act is part of it; but when made of a thing that is past it is mere hearsay.^ Made contemporaneously, and by a person inter- ested in the matter, a declaration is admissible as original evidence: (1) when the fact of the making is in question; (2) when the inquiry is as to expressions of bodily feehnga — their existence or nature;* (3) in cases of pedigree, » q. v. ; (4) when part ol the res gesfce.' The declarations of an injured party, made after the injury has happened or the cause of suffering oc- curred, with regard to the facts of the injury or the cause of the suffering, may not be shown, in an action for damages by such person ; nor may his declarations with regard to past suffering or pain, or past condi- tions of body or mind, be shown. Some authorities seem to oppose the last proposition, especially where the declarations are made to a physician or surgeon while examining the party as a patient. Declarations, however, with regard to present suffering or present condition of the body or mind may generally be shown by any person who heard them ; but there are authori- ties also seemingly opposed to this projposition.' ' 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 Johns. 268; 22 Barb. 97, 106; 9 Oreg. 470; 10 id. 66; 78 Pa. 500; 87 id. 286; 68 Wis. 138, 151, 194; 63 id. 138, 151, 194; 1 Bl. Com. 69; 1 Kent, 477; Cooley, Const. 57; Wells, Res. Adj., &c. 527, 583. a United States i'. Ambrose, 108 U. S. 340 (1883), Mil- ler, J.: B. S. §6392. "Long V. Colton, 116 Mass. 416 (1876); Bender v. Pit- zer, 27 Pa. 835 (1856). « Travelers' Ins. Co. v. Mosley, 8 Wall. 404 (1869); Eoosa II. Boston Loan Co., 138 Mass. 439 (1882), cases; Commonwealth v. Felch, ib. 23 (1882); 1 Greenl. Ev. §102; 1 Whart. Ev. § 268. » 1 Greenl. Ev. Sii 103^; 1 Whart. Ev. §§ 20^26. . • 1 Greenl. Ev. S§ 108-9, 111-14 ; 1 Whart. Ev. §§ 258-63. ' Atchison, &c. B. Co. v. Johns, 36 Kan. 781-83 (1887), DECLARATION 330 DECLARATION After one's death his former declarations are ad- niissible as secondary evidence when on a matter: (1) of general interest; ^ (2) of ancient possession;^ (3) against interest — before the controversy arose, and it was the deceased's duty to know the facts; ^ (4) when in the nature of a dying declaration. A declaration by an agent binds his principal, and by a partner binds his copartner, when made during the continuance of the relation and while the particu- lar transaction is pending.* After a person has made a sale 'of personalty he stands as a stranger to the title, and his declaration respecting the title is not binding on the vendee. Such deplaration is admissible only when it appears from independent evidence that, both vendor and ' vendee were engaged in a common purpose to defraud the creditors of the vendor, and that the admission had such relation to the execution of the purpose as to constitute part of the res gestcB.^ The declaration of a conspirator, to bind his fel- lows, must be made while acting in furtherance of the common design.* See Conspiracy. Declaration of intention. A formal, solemn asseveration by an alien that it is his bona fide intention to become a citizen. See Naturalization. Declaration of Eights. See Right, 8, Declaration, etc. Declaration of trust. An acknowledg- ment that property, the title to which the declarant holds, belongs, in whole or in part, to another ; also, the writing in which such acknowledgment is made. See Trust, 1. Dying declaration. A statement of a material fact concei'ning the cause and cir- cumstances of a homiicide, made by the vic- tim under the solemn belief of impending death. ^ Such declaration as is made by the party, relating to the facts of the injury of which he afterward dies, under the fixed belief and moral conviction that his death is impending and certain to follow almost immediately, without opportunity of repentance, and in cases, Valentine, J. See generally 22 Cent. Law J. 509 (1S86), cases. 1 1 Greenl. Bv. §§ 128-40; 1 Whart. Ev. §§ 185-200, 252. 2 1 Greenl. E*. §§ l.Sl-46; 1 Whart. Ev. § 201. s 1 Greenl. Bv. §§ 147-55; 1 Whart. Bv. §§ 236-37. ■• 1 Greenl. Ev. §§ 112-14, 174^70; 2 Whart. Ev. § 1198. s Winchester Manuf. Co. v. Creary, 116 U. S. 165 (1885); Jones v. Simpson, ih. 611 (1886); Robertson v. Pickrell, 109 id. 616 (1883); Moses v. Dunham, 71 Ala. 177 (1881); Roberts v. Medbery, 133 Mass. 101 (1882), cases; Scheble v. Jordon, 80 Kan. 854 (1863); Barbour V. Duncanson, 77 Va. 76 (1883); Frink v. Roe, 70 Cal. 316-19 (1886). « 1 Greenl. Ev. § 111; 2 Whart. Ev. §§ 1205-6. ' People V. Olmstead, 30 Mich. 436 (1874). the absence of all hope of avoidance ; when he has despaired of life and looks to death as inevitable and at hand.' An exception to the rule rejecting hearsay evidence is made in the case of dying declarations. The gen- eral principle on which they are admitted is, they are declarations made in extremity, vrhen the party is at the point of death, when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful consider- ations to speak the truth. A situation so solemn is considered as creating an obligation. eq[ual to that im- posed by a positive oath administered in a court of justice. 2 The person must have been qualified to testify, and the declaration must be complete. The competency of the evidence is to be determined by the court; its weight by the jury. If resting in memory, the sub- stance of all that was stated may be given. The decla- ration may be by signs. ^ Declarations of the deceased are admissible upon a trial for murder only as to those things as to which he would have been competent to testify if sworn as a witness in the cause: they must relate to facts only, not to mere matters of opinion. It is essential to the admissibility of such declarations, and it is a primary fact to be proved by the party offering them, that they were made under a sense of impending death. But it is not necessary that they be stated at the time to be so made; it is enough if it satisfactorily appears in any mode that they were made under that sanc- tion, whether it be directly proved by the express lan- guage of the declarant, or be inferred from his evident danger, from the opinions of the medical or other at- tendants expressed to him, or from his conduct or other circumstances of the case. Such declarations must relate to the circumstances of the death; they cannot be received as proof when not connected as res gestce with the death.-* See further Admission, 2; Estoppel; Hearsay; Parol, 2, Evidence; Res, Gestse. 2. A statement in legal form of the plaint- iff's cause of action.s The plea by which a plaintiff in a suit at law sets out his cause of action, as the word " complaint " is in the same sense the tech- nical name of a bill in chancery.6 The first pleading filed in a suit is the declaration, nxirratio, count; anciently called the " tale." In this the plaintiff sets forth his cause of complaint at length ; 1 Starkey v. People, 17 111. 2i(1855). cases. ' "Rex V. Woodcock, 2 Leach, Cr. Cas. 567 (1789), Eyre, Ch. B. ; 1 Greenl. Ev. § 156. a 1 Greenl. Ev. §§ 151-61 6; Whart. Cr. Ev. § 293; People V. Shaw, €3 N. Y. 40(1875); Walker v. State, 89 Ark. 226 (1884). * People V. Taylor, 59 Cal. 640, 645 (1881), cases. See generally 19 Cent. Law J. 138-39 (1884), cases; 1 Kan. Law J. 134 (1885), cases. " Smith V. Fowle, 12 Wend. 10 (1834), Savage, C. J, "United States v. Ambrose, 108 U. S. 340 Miller, J. DECLARATION 321 DECOY b being, indeed, only an amplification of the original mt (g. V.) upon whicti his action is founded, with the dditional circumstances of time and place when and rhere the injury was committed.* A declaration contains a succinct statement of the )laintiff's case, and genM*aUy comprises the following larts: (1) The title and the date — the court, day and rear, term, and number of the case; ()8) the venue — State and county; (S) the commencement — A B, by lis attorney or in person, complains of C D, for that, leretofore, etc.; (4) the body — which consists of: (a) he inducement (g. v.) — introductory matter; (b) the iverments — allegations of performance of precedents Dy the plaintiff; (c) the counts — statements of injuries oy the defendant; (5) the conclusion — "to the dam- ige of plaintiff dollars; and thereupon (or where- fore) he brings suit." See further Amendment, 1; Consolidate, Actions; □ocNT, 4; Cure, 2; Damages, General; Description, 4; E'LEADINO; Sdit, 1. Declaratory. Rendering clear what was before obscure: giving a clear statement; making certain what might remain in doubt ; explanatory; elucidatory: as, a declaratory covenant, act, statute, law. The " declaratory part of the law " is that portion whereby the rights to be observed and the wrongs to be eschewed are clearly defined and laid down.' A "statute declaratory" of the common law states what that law is, as where a cus- tom has almost fallen into disuse or become disputable.* A declaratory statute removes uncertainty as to the rule of law when decisions or prior enactments con- flict. It may elucidate existing common or statute law. Magna Charta was for the most part declaratory of the principal grounds of the fundamental laws of England.' A large portion of our modem codes is but declara- tory of the common law as expounded by the courts." Statutes declaratory of the meaning of former acts are not uncommon. By the courts they are regarded with' respect, as expressive of the legislative opinion, and, so far as they can act upon subsequent transac- tions, they are of bindmg force. But they cannot operate to disturb rights acquired before their enact- ment, or to impose penalties for lawful acts done before their passage. The construction of an existing Statute is a judicial function.' See Declare. •3 Bl. Com. 293; 5^hns. 435. s See 1 Chitty, H. 356; 7 Ark. 382; 12 Wend. 10. » 1 Bl. Com. 54. < 1 Bl. Com. 86. « 1 Bl. Com. 127. » Cincinnati City V. Morgan, 3 Wall. 293 (1865). 'Stockdale t,. Atlantic Ins. Co., 20 Wall. 340 (1873); Koshkonong v. Burton, 104 U. S. 678 (1881); Salters v. Tobias, 3 Paige, 344 (1832). (21) Deolare.i To announce clearly as fact or truth. 1. To aver, affirm, allege in express terms : as, to declare a person innocent or guilty. 2. To announce, pronounce, decide : as, to declare a contract Ulegal or void, or a statute unconstitutional. 3. To state or set forth as a cause of action. 4. To proclaim as due : as to declare a divi- dend, q. V. "In no part of the application did the assured promise that he would not practice any pemicious habit. He ' declared ' that he would not. To ' declare ' is to state, assert, publish, utter, announce, announce clearly some opinion or resolution; while to * promise ' is to agree, ' pledge one's self, engage, assure or make sure, pledge by contract.' The assured declared, as a matter of intention, that he would not practice any pemicious habit. Was this declaration of future in- tention false? There is no allegation, much less proof, that it was so. The assured might well have intended to adhere to his declaration In the most perfect good faith, and yet in a moment of temptation have been overcome by this insidious enemy "= — intoxicating liquor, from the use of which the assured was attacked with delirium tremens and died. " Declare and afBnn " may be equivalent to prom- ise and affirm.' For a judge to "declare the law," is for him to chaise the law arising upon the evidence.* 5. To determine what shall constitute ; to define. Declaring that a certain act shall constitute an offense, is " defining " that offense." Declarant. 1. One who states a thing as a fact ; he who asserts a thing for the truth. 2. One who avers the truth of a matter as the basis of a cause of action. See Declara- tion, 2. DECOEATIOW DAY. See Houdat. DECOY. " Decoy letters " are, ordinarily, letters prepared and mailed for the purpose of detecting criminals. It is no objection to a conviction upon evidence pro- duced by means of a decoy letter that the prohibited act was discovered by such a letter addressed to a person who had no actual existence. There is a class of cases in respect to larceny and robbery in which it is held that when one person procures, or originally induces, the commission of the act the doer cannot be convicted -because the taking was not against the will of the owner. Many frauds upon the postal, 1 L. declarare, to make clear. ^Knecht V. Mutual Life Ins. Co., 90 Pa. 121 (1879), Paxson, J. > Bassett v. Denn, 17 N. J. L. 433 (1840). 4Crabtree v. State, 1 Lea, 270 (1878). » United States v. Arjona, 120 U. S. 488 (1887). DECREE 323 DECREE revenue, and other laws, can effectually be discovered only by means of decoys." Where the guilty intent to commit crime hag been formed^ any one may furnish opportunities or even lend assistance to the criminal, to expose him. . . But no court will countenance a violation of positive law or contrivances for inducing a person to commit a crime.2 Exceptions to the principle exist in two cases: (1) Where it is a condition to an ,offense that it should be " against the will " of the party injured, as in prosecu- tions for rape, highway robbery, and assaults not of- fenses against the public peace, there must be an acquittal when it appears that the party alleged to be Injured invited the commission of the offense. (2) Where there are physical conditions of an offense in- consistent with a trap, so that these conditions can- not exist where there is a tjrap, the defendant must be acquitted; as when the door of a house is opened by its owner to give a burglar entrance. Judge Benedict, in Urdted States v. Bott, 11 Blatch. 848 (1873), and Judge Drummond, in Bates v. United ' States, 10 F. E. 92 (1881), decided that it is no defense to an indictment under Eevised Statutes, sec. 3993 (act of July 13, 1876), for sending an obscene book by mail, that the book was sent to a detective who gave a fictitious name. Contra, United States v. Wliittier, supra. 3 A " decoy " or " test " letter should get into the mail in some of the ordinary ways provided by the postal authorities, and as part of the " mail matter.'! ' DECEEE.5 The. decision, judgment, or sentence of a court of equity, admiralty, probate, or divorce .iurisdiction. A sentence or order of a court of equity, pronounced on hearing and understanding all the points in issue, and determining the right of all the parties to the suit, according to equity and good conscience.* A judgt^ent in a suit, equitable in nature, rendered by a court exercising equitable powers.' ' ' United States v. Whittier, 5 Dill. 39-11 (1878), cases, Dillon, Cir. J. = Ibid., 4.5, Treat, J. » Note by Francis Wharton, Bates's Case, 10 F. E. 07- 100, cases. See also note to Speiden v. State, 3 Tex. Ap. 1^6 (1871), in 30 Am. Eep. 129, cases; Saunders v. People, 38 Mich. 222 (1878); People v. Collins, 53 Cal. 185 (1878); State u. Jansen, 22 Kan. 498 (1879), cases; Commonwealth v. Cohen, 127 Mass. 282 (1879); Wright 7). State, 7 Tex. Ap. 574 (1880); People v. Noeike, 94 N. T. 137 (1883); 19 P. E. 39; 1 Bish. Cr. L. § 262; 25 Alb. Law J. 184 (1882); 15 Irish L. T. 683. ' United States v. Eapp, 30 F. E. 822 (1887), Neu- man, J. ' ' E. deeretum: de cemere, to decide literally, to separate. « 2 Daniel, Ch. Pr. 986. ' See McGarrahanu. "Maxwell, 28 Cal. 85 (1865); 3 Bl. Com. 461. Like a judgment at law, it is the sentence pro- nounced by the court upon the matter of right be- tween the parties, and is founded on the pleadings and proofs in the cause. 1 See Judgment. A draft of a decree made by the judge for conven- ience, that counsel might see in a general way what decree he was prepared to enter, cannot be considered a decree; and in such case the word " decree" on the clerk's docket cannot amount to an entry of the paper as a decree. The word may mean "decree to be entered," or "stands for decree," as well as decree " entered." ^ Decrees in equity operate only upon the person.^ Decretal. In the nature of a final decree. When an " order " (which is interlocutory, and made on motion or petition), in an event resulting from a direction contained in it, may lead to the termination of the suit in like manner as a decree at the hearing, it is calleij a " decretal " order.* Interlocutory decree. A decree which directs an inquiry as to a matter of law or fact preparatory to a final decision. Final decree. A decree which finally decides and disposes of the merits of the whole cause, and reserves no further question or direction for the future judgment of the court, so that it will not be necessary to bring the cause again before the court for decision.5 A decree is " interlocutory " when it finds the gen- eral equities, and the cause is retained for reference, feigned issue, or consideration, to ascertain some mat- ter of fact or law when it again comes under the con- sideration of the court for final disposition.' A decree is " interlocutory " which leaves anything to be done to afford completely the relief contem- plated. Such a decree may always, in a pending cause, on a rehearing, be altered at the sound discre- tion of the chancellor, however great the lapse of time.' A decree is "final'* which finally disposes of the subject of litigation so far as the court making it is concerned. . It is the last, decree necessary to give the parties the full and entire benefit of the judgment. . . A decree is not the less final because some further order may become necessary to carry it into effect." When'the decree decides the right to the property in contest, and directs it to be delivered up, or to be 1 Eowley v. Van Benthuysen, 16 Wend. 383 (1836). ''Fairbanks v. Amoskeag Nat. Bank, 32 F. E. 573 (1887), Colt, J. = Wilson V. Joseph, 107 Ind. 491 (1886), cases: 26 Am. Law Eeg. 48 (1887); ib. 50-54, cases. * [Brown, Law Diet.: 22 Mich. 201. '[Beebe v. Eussell, 19 How. 285 (1856), Wayne, J.; Whiting V. Bank of United States, 13 Pet. 15 (1839). "Kelley v. Stanberry, 13 Ohio, 421 (1844). 'Wright V. Strother, 76 Va. 857, 869 (1882); ib. 69, 163; 77 id. 806. s Mills V. Hoag, 7 Paige, 19 (1827),' Walworth, Ch. Cited, 19 How. 285; 10 Wall. 687. See 10 Paige, -131. DECREE 833 DEDICATION sold, 01' that the defendant pay a sum of money to the complainant, and the complainant is entitled to have such decree carried immediately into execution, the decree must be regarded as a "final" one to that extent.! "The current of decisions fully sustains the rule laid down by the late Chief Justice," ^ in the foregoing case. It is not unusual in courts of equity to enter decrees determining the rights of parties, and the extent of the liability of one party to another, giving at the same time a right to apply to the court for modifica- tion and directions. It has never been doubted that such decrees are "final." They are all that is neces- sary to give to the successful party the full benefit of the judgment.' A "final decree" conclusively settles all the legal rights of the parties involved in the pleadings.' See further Final, 3. A final decree in equity may be modified or set aside: by an appeal within the time prescribed by law; by a bill of review, filed within such time, charg- ing error apparent upon the record ; and by an origi- nal bill charging fraud or newly discovered evidence.' Decrees are also classified as: decrees by default, against parties who do not appear, in which case the plaintiff takes such decree as he can stand by ; &ecrees by consent, in which the form depends upon agreement; decrees pro confesso, by admission, in which the form depends upon the case made by the bill — as see below ; and decrees on the hear- ing, which vary with the nature of the suit and the relief prayed for.^ A bill to " suspend a decree " seeks to avoid or suspend the operation of the decree. A bill to " carry a decree into execution " lies when, from any cause, without further aid, a decree cannot be executed. A decree taldng a hill pro confesso, or in default of an answer, is intended to prepare the case for final decree. Its effect is lilte that of a default at common law, by which the defendant is deemed to have ad- mitted all that is well pleaded in the declaration. The matters in the biU do not pass in rem judicatam until •Forgay r. Conrad, 6 How. 204 (1848), Taney, C. J.; Winthrop Iron Co. v. Meeker, 109 U. S. 183 (1883); Dis- trict of Columbia v. Washington Market Co., 108 id. 842 (1883); Parsons v. Robinson, 122 id. 114-16 (1887). "Thomson v. Deaa, 7 Wall. 346 (ISUS), cases. Chase, Chief Justice. sStovall V. Banks, 10 WaU. 587 (1870), Strong, J.; 2 Daniel, Ch. Pr. 641. « French v. Shoemaker, 12 Wall. 98 (1870). See also 70 Ala. 571 ; 34 Ark. 130; 9 Fla. 47; 105 111. 26; 3 Md. 505; 22 Mich. 201; 2 Miss. 326; 10 Nev. 405: 12 Johns. 508; 14 Wend. 542; 1 Ohio St. 520; 1 Heisk. 526; 1 Wash. T. 174. 6 Huntington v. Little Eock, &o. E. Co., 3 MoCrary, 585 (1882). •[Abbott's Law Diet.] the final decree is made— which maybe against the plaintiff." The court will decree what is proper upon the state- ments in the bill assumed to be true." When a bill contains a joint charge against several defendants one of whom makes default, the correct mode of proceeding is to enter a default and a formal decree pro confesso against such one, and proceed with the cause upon the answers of the other defend- ants. The defaulting defendant has lost his standing in court: he is not entitled to service of noticesj nor to adduce evidence, nor to be heard at the final hear- ing — he cannot appear in any way. If the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike — the defaulter included; but if in the complainant's favor he will be entitled to a final decree against all. A final decree on the merits against the defaulting de- fendant alone, pending the continuance of the cause, Yould be incongruous and illegal." A final decree affirmed by the highest corni; is con- clusive as between the parties,' and as binding as a judgment at law.' When there are no words of quali- fication indicating a privilege to take further proceed- ings, it wUl be presumed to have been rendered upon the merits." The language of a decree is construed with refer- ence to the issue put forward by the prayer for relief and the other pleadings, and which these show it was meant to decide.' See Equity; Eelief, 2; Review, 2; Term, 4. DECREPIT. A " decrepit person " may mean one who is disabled, incapable or in- competent, from physical or mental weak- ness or defects produced by age or other cause, to such an extsnt as to render him comparatively helpless in a personal conflict with one possessed of ordinary health and strength. 8 DEDICATION.^ Appropriation to pub- lic uses of some right or property : as, the dedication of a highway, landing, square, park, land for school purposes; the dedica- tion of an invention, or of a literary or mu- sical composition. > Eussell V. Lathrop, 122 Mass. 302-3 (1877), cases; At- torney-General V. Young, 3 Yes. Jr. 209 (1796), cases; Rose V. Woodruff, 4 Johns. Ch. *547 (1820), cases. "Thomson v. Wooster, 114 U. S. 104, 110-14, 119 (1SH3), cases. s Frow V. De La Vega, 15 Wall. 5.-)4 (1878), Bradley, J. ' Re Howard, 9 Wall. 175, 182 (1869); Lyon v. Perui, 125 TJ. S. 702 (1888), cases. » Pennington v. Gibson, 16 How. 70 (1853). »Durant v. Essex Company, 7 Wall. 109 (1808), oases. 'Graham v. La Crosse E. Co., 3 Wall. 704 (1865); Carneal v. Banks, 10 Wheat 181 (1825); 1 Story, Eq. S§ 28, 437, 4.39. 8 Hall V. State, 16 Tex. Ap. 11 (1884), Willson, J.; Penal Code, Art. 496. »L. dedicare, to devote: dicare, to declare. DEDICATION 3S4 DEED 1. The act of giving or devoting property to some public use.' Wlience dedicator. An appropriation of realty by the owner to the use of the public, and the adoption thereof by the public ; as, the dedication of soil for a highway. 2 Has respect to the possession of the land, not to the permanent estate. = Express, when explicitly made by oral declaration, deed, or vote ; implied, when there is acquiescence in a public use.* Made according to the common law or in pursuance of statute. A statutory dedication operates by way of a grant; a common-law dedication, by way of es- toppel in pais. May also be made in proesenti to be accepted in futuro.^ Is a conclusion of fact, from all the circumstances of each case.* , An appropriation of land to some public use, made by the owner of the fee, and ac- cepted for such use by or on behalf of the public' The vital principle is the animus dedicandi. Time, i^ough often a material ingredient, is not indispensa- ble. A dedication is a conclusion of fact to be drawn by the jury from the circumstances of each case.' At common law no special form of ceremony is necessary ^simply assent in the owner, a public use, and acceptance by the public, which last may be evi- denced by user. The assent, which must be clear, is provable by a writing, by parol, or by acts irreconcil- able with any other construction; as, where a man makes a plan of lots, with streets, and sells lots by such plan. A use, from which a dedication may be presumed, may be much less than thirty years' con- tinuance. ^ Acceptance may be presumed where the gift is ben- eficial; use is evidence that it is beneficial.^ ■An act of Congress which merely "reserves" sec- 1 Eees V. Chicago, 38 m. 335 (1865). » [Hobbs V. Lowell, 19 Kck. 40T-10 (1837), eases, Shaw, C. J. ; Brakken v. Minneapolis, &c. E. Co., 29 Minn. 43 (1881). 3 Benn v. Hatcher, 81 Va. 29 (1884), cases. * See 30 Kan. 637-^8, 642; 69 Ga. 546. "City of Denver v. Clements, 3 Col. 479-83 (1877), cases; ib. 485-86. • Quinn v. Anderson, 70 Cal. 466 (1886), oases. 'Ward V. Farwell, 6 Col. 69 (1881), Elbert, 0. J.; Steele v. Sullivan, 70 Ala. 593-94 (1881), oases; Angell, Highw. 142. 8 See Cincinnati v. White, 6 Pet. 440 (18S2); Irwin v. Dixion, 9 How. 30-81 (1860), cases; Boston v. Lecraw, 17 id. 435-36 (1854); 1 Bond, 81; 11 Ala. 63; 4 Cal. 114; 25 Conh. 235; 12 Ga. 2M; 76 Ind. 264; 21 La. An. 244; 34 id. 618; 124 Mass. 64; 87 jyiof"≪ 17 id. 561; 33 N. J. L. 13; 22 Wend: 444, 450; 6 Hill, 411; 19 Barb. 193; 26 Pa. 187; 22 Tex. 100; 9 Wis. 344; 23 id. 420; 3 Kent, 451; An- gell, Highw. 111. » Abbott V. Cottage City,143 Mass. 623-26 (1887), cafies. tions Of public lands for school purposes does not work a dedication, in the strict sense. ^ See Easement; License, 1; Squahe; Use, S, User; Water-mark. 2. On dedicating an invention to public use, see Patent, 2 ; Use. 3, Public. 3. Publishing an uncopyrighted work is a dedication of such work to the public.^ See Copyeight; Drama. DEDIMTJS.- L. We have given. See Dare. A commission to take testimony, the full name of which is dedimus potestatem, we have given power. In English practice the writ issues out of chancery, and empowers the person named to perform desig- nated judicial acts: as, to administer oaths, take an- swers in equity suits, examine witnesses.^ With us the term is seldom, if ever, used in any other sense than that of a commission to take testi- mony by deposition, q. v. " 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. to taie depositions according to common usage." * " Common usage " here refers to the usage prevail- ing in the courts of the State in which lihe Federal court may be sitting. Whether the writ is necessary to prevent a " failure or delay of justice " is foriihe court to determine upon the facts presented. " In any case " includes criminal as well as civil proceedings.^ The admissibility of the testimony will be reserved till the ^ime of trial. The testimony may be consid- ered by the court in imposing sentence.' DEDUCTION. See DRAvraACK; Re- prises; Set-opp. DEED. 1. A thing done; an act; a mat- ter of fact, as opposed to a matter of law: as, a condition, an estoppel, a seisin in deed. Corresponds to the iVenoh pais, q. v. 2. A writing sealed and delivered by the maker — the most solemn and authentic act a man can perform with relation to the dis- posal of property.' A writing, sealed and delivered ; to be duly executed, must be on paper or parchment.' ■ Minnesota v. Bachelder, 1 Wall. 114 (1868). " Bartlett v. Crittenden, 5 McLean, 32 (1849) ; Pulte v. Derby, ib. 328 (1862); ThompMns v. Halleck, 188 Mass. 82 (1882). = See 3 Bl. Com. 447; 1 id. SS2\ 2 id. 351. 'E. S. § 866: Judiciary Act, 1789, sec. 30. » United States v. Cameron, 15 F. E. 794 (1883); War- ren V. Younger, 18 id. 862 (1884); 20 Blatch, 232." •United States v. Wilder, 4 Woods, 475 (1882): 14 P. E. 393. ' 2 Bl. Com. 295; Wood u. Owings, 1 Cranch, 261 3 How. 645. 8 4 Kent, 450. DEED 825 DEED The word in itself imports a written in- strument;' — a written instrument under seal, containing a contract of agreement whieh has been delivered by the party to be bound and accepted by the obligee or cove- nantee. ^ An instrument or agreement under seal.' This comprehensive meaning includes any writing imder seal; as, a bond, lease, mortgage, agreement to convey realty, bill of sale, policy of insm-anoe. In common use often limited to a writing, under .seal, ti'ansf erring real estate; a deed of conveyance of realty. See Conveyance, 2; Title, 1. In its largest sense includes a mortgage,* q. v. A "good deed" to land means, in a covenant, a conveyance sufficient to pass whatever right a party has in the land, without warranty or personal cove- nant; it does not imply the conveyance of a good title.' A " good and perfect deed " to land may intend the conveyance of a perfect title clear of all incum- brances, including a right of dower." A " good and sufficient deed " may refer either to the form of the conveyance or to the interest or title. ^ A "good and sufficient deed of warranty," or " with covenant of warranty," may also refer to the kind of deed or to the quality of the title.' A deed for a "sufficient title" means for a good title — with the usual covenants of warranty.* So as to a "good and sufficient conveyance." '" A " lawful deed " means a deed conveying a lawful and good title." Collateral deed. A defeasance, q. v. Deed poll. A deed not indented, but cut even ; a deed made by one party only : as, a sherifTs deed. See Poll, 1. Deeds under the statute of uses. See Use, 3. 1 Pierson v. Townsend, 8 Hill, 551 (1813). ' McMurty v. Brown, 6 Neb. 376 (1877). » Master v. Miller, 4 T. K. 345 (1791). See 1 Ark. 118; 42 N. J. E. 335; 25 Hud, 224; 5 Saw 608. See Foster i'. Morse, 133 Mass. 353 (1883). DEFEAT 327 DEFENDANT time with another conveyance, containing conditions upon the performance of which the estate created may be "defeated" or totally undone. 1 A bond for a reconveyance upon the pay- ment of a specific sum, at a specified time, made at the same time and of the same date as a deed of conveyance. - Formerly, every mortgagor enfeoffed the mort- gagee who simultaneously executed a deed of defeas- ance, considered a part of the mortgaRe, whereby the feoffment was rendered void on repayment of the money at a certain day. But things that were merely executory, or to be completed by matters subsequent, could always be recalled by defeasances made subse- quent to the time of their creation.^ It is not of the essence of a mortgage that there should be a defeasance ; and there may be a defeas- ance of a deed of conveyance without constituting it a mortgage. The essence of a defeasance is to defeat the principal deed and make it void ab initio, if the condition be performed. ^ A defeasance made subsequently to an executed contract must be part of the original transaction. At law, the instrument must be of as high a nature as the principal deed. Defeasances of deeds conveying realty are subject to the same rules as such deeds themselves, as to record and notice to purchasers; but in some States notice of the existence of a defeasance, to be binding, must be derived from the public records.* When an absolute deed is shown to have been orig- inally made as security for a loan of money, a court of equity will tre^t it as a mortgage, and allow the grantor to redeem the estate, on the ground that the defeasance was omitted from the deed by fraud or mistake.* But to reduce a conveyance to a mortgage the de- feasance may be required by statute to be in 'writing, duly acknowledged and recorded." 3. A defeasance to a bond, recognizance, or judgment refcovered is a condition which, when performed, defeats or undoes it, in the same manner as a defeasance to an estate. The "condition" of a bond is always inserted in the bond or deed itself; a " defeasance " is made by a separate, and frequently by a subsequent, deed. This, like the condition of a bond, when perf oi-med, disin- cumbers the obligor's estate.' See Condition. DEFEAT. See Defeasance ; Condition. ' [2 Bl. Com. 327. = [Butman v. James, 34 Miim. 550 (1885), Berry, J. ; 4 Kck. 353. ' Flagg V. Mann, 2 Sumn. 540 C1837), Story, J. ' See 21 Ala. 9; 3 Mich. 483; 7 Watts, 261, 401 ; 13 Mass. 443; 40 Me. 381 ; 43 id. 206; 14 Wend. 63; 17 S. & E. 70; 2 Washb. B. P. 489. ^ 2 Kent, 1424 Butman v. James, 34 Minn. 550 (1886). « See Penn. Act 8 June, 1881 ; Mich. E. S. 261 ; Mmn. St. L., 1873, 34, § 23. '3 Bl. Com. 342; 43 Me. 371; 14 N. J. L. 364. DEFECT. Under the covenant in a charter-party that the vessel is "tight, staunch, and strong," the owner is answer- able for latent as well as for visible defects, whereby the cargo is damaged, i See Caveat; Challenoe; Core, 2. DEFENCE. See Defense. DEFENDANT. One who is called upon in a court to make satisfaction for an injuiy done or complained of. 2 A person sued or prosecuted ; a respondent. In the rules in admiralty, framed by the Supreme Court, " defendant" is used indifferently for a respond- ent in a suit in personam and for a claimant in a suit in rem.^ Co-defendant. A joint or fellow de- fendant. Defendant above or defendant in error. The party against whom a writ of error is taken. Material defendant. In equity, a de- fendant against whom relief is sought ; op- posed to nominal defendant. Where a code provided that a bill in equity should be filed in the district where the defeadants or a mate- rial defendant resides, it was held that the object was to discriminate between defendants whose attitude to the case does, and does not, make them real partici- pants in the htigation, that a material defendant was one who is really interested in the suit, and against whom a decree is sought.* As employed in sections of a code relating to juris- diction, the word " defendants " was held to mean not nominal defendants merely, but parties who had a real and substantial interest adverse to the plaintiff, and against whom substantial relief was sought; and that to decide otherwise would encourage colorable practices for defeating jurisdiction in the particular class of cases." In a judgment, "defendant" maybe a collective term, embracing all who by the record are liable under the judgment. " A garnishee is a " defendant in the action," who, in pursuance of a statute, may be restrained from dis- posing of property to the injuiy of the attaching creditor.' In the Massachusetts Gen. Sts. o. 146, § 38, provid- 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 for the prosecution of the review, refers to the party 1 Hubert v. Eecknagel, 13 F. E. 913 (1882). 2 [3 Bl. Com. 25.] » Atlantic Mutual Marine Ins. Co. v. Alexander, 16 F. E. 281 (1883). ' Lewis I'. Elrod, 38 Ala. 31 (1861), WaUier, 0. J. « Allen V. Miller, 11 Ohio St. 378 (1860). » Claggett V. Blanohard, 8 Dana, *43 (1839). ' Almy V. Piatt, 16 Wis. *169 (1862). DEFENSE 338 DEFENSE against whom tHe judgment sought to be reversed is rendered, not to the defendant in the original action,' Ordinarily, a municipal corporation is not affected by a law which speaks in general terms of defendants, unless expressly brought within the provisions.'' Compare Litigant; Pakty; Plaintiff; Respond- ent; Suitor. See Delictum, In pari, etc. DEFENSE, or DEPENCE.3 1. Resist- ance of an attack; resistance with force of an attack made with force or violence. Self-defense. Protection of person or property from injury. The defense of one^s self, or the mutual and recip- rocal defense of such as stand in the relation of hus- band and wife, parent and child, master and servant, is a species of redress of private injury which arises from the act of the injured party. In these cases, if the party himself, or a person in one of these rela- tions, be forcibly attacked in his person or property, it is lawful for him to repel force with force. . . The law in this case respects the passions of the human mind and m^akes itlAwful in a man to do himself thau immediate justice to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of the law is by no means an adequate remedy for injuries accompanied with force ; since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried unless it were permitted a man immediately to oppose one violence with an- other. "Self-defense," therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. . . Care must be taken that the resistance does not exceed the bounds of mere defense and prevention : for then the defender would himself become ian ag- gressor.* Homicide in self-defense, upon a sudden affray, is also excusable. This species of self-defense must be distinguished from such as is calculated to hinder the perpetration of a capital crime. This is that whereby a man may protect himself from an assault or the lilce, in the course of a sudden broil or quarrel, by killing him who assaults him. . . The right of nat- ural defense does not imply a right of attacking: for, instead of attacking one another for injuries past or impending, men need only have recourse to the proper tribunals of justice. They cannot therefore legally exercise this right of preventive defense but in sudden and violent cases, when certain and immediate suffer- ing would be the consequence of waiting for the assist- ance of the law. Wherefore^ to excuse homicide by the plea of self-defense it must appear that the slayer had no other possible (or at least probable) means of escaping from his assailant.^ . . The law requires that the person who kills another in his own defense should have retreated as far as he safely can to avoid ^ Leavitt v. Lyons, 118 Mass. 470 (1875). » Schuyler County v. Mercer County, 9 HI. 34 (1&47). 3 F. defense: L. defensa: defendere^ to strike down or away, ward off, repel. Mid. Eng. defence. *3 Bl. Com. 3; 4 id. 186; 1 id. 130. 6 4B1. Com. 183-84. the violence of the assault before he turns upon his assailant; . . he must flee as far as he conveniently can, by reason of some wall, ditch, or other impedi- ment, or as far as the, fierceness of the assault will permit, for it may be so fierce as not to allow him to^ yield a step without manifest danger of- his life or enormous bodily harm, and then iu his defenseJie rqay kill his assailant instantly. ^ But no one may revenge himself by striking an un- necessary blow, as, when all danger is passed, nor- strike when the assault is technical and trivial.* The principles of the law of self-defense may hfr stated in three propositions: U) A person who, in the lawful pursuit of his business, is attacked by another under circumstances which denote an intention to take. his life, or to do him some enormous bodily harm, may lawfully kill the assailant, provided he uses all the means in his power, otherwise, to save his own life, or prevent the intended harm, — such as retreating as far ' as he can, or disabling his adversary without killing him, if it be in his power. (3) When the attack upon him is so sudden, fierce, and violent that retreat would- not diminish but increase his danger, he may instantly kill his adversary without retreating ata,ll. (3) When, from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life or commit any felony upon his person, killing the assailant will be excusable homicide, although it should afterward appear that no felony was intended.* The law of self-defense is a law of necessity, real or apparently real. A party may act upon appearances, though they turn out to have been, false. "Whether they were real or apparently real is for the jmy, in a criminal case, to decide upon consideration of all the_ circumstances out of which the necessity springs. If the jury should find from the evidence that the cir- cumstances were such as to excite the fear of a rear sonable man, and that the detendant, acting under the- influence of such fear, killed the aggressor to prevent the commission of a felony upon his person or prop- erty, he would not be criminally responsible for his death, although the circumstances might be insuffi- cient to prove, by a preponderance of evidence^ that the aggressor was actually about to commit a felony.3 The right of self-defense does not imply the right of attack, and it will not avail in any case where the dif- ficulty is sought or induced by the party himself. On the other hand, to justify killing an adversary on this ground it is not necessary that the danger appre- hended should be real or actually impending. It ia only necessary that the defendant should have had reasonable cause to aj^rehend that there was an im- mediate design to kill or to do him some great bodUy harm, and that there should have been reasonable 1 4 Bl. Com. 184-85. 2 Commonwealth v. Selfridge, Sup. Ct. Mass. (1806), Parker, J. Same case, Whart. Homicide, App. No. 1 ; Hor. & T., Cases on Self-Defense, 17; 2 Am. Cr. TL (Hawley), 259. 8 People V. Flanagan, 60 Cal. 4 (1881), McKee, J.; ^2 id. 208, 307; 59 id, 351; United States r, Wiltenberger, 3 Wash. 5S1 (1819). DEFENSE 329 DEFENSE cause to apprehend Immediate danger of such design being accomplished.' Adjudicated cases hold that among the slayer^s nets which abrogate or abridge his right of self-defense are the following: 1. Devices to provoke the deceased to make an assault which will furnish a pretext for taking his life or inflicting serious bodily injury upon him. 2. Provocation of the deceased into a quarrel, causing the fatal affray; but mere words or libelous publications do not amount to such provocation. 3. Preconcert with the deceased to fight him with deadly weapons. 4. Commencing an attack, assault, or a battery upon the deceased. 5. Going with a. deadly weapon wherer the deceased is, for the purpose of pro- voking a difficulty or bringing on an affray, and by words or acts making some demonstration of such purpose calculated to provoke theni.^ See Arms; Assault; Batteby; Force; Homicide; Immediate; Retreat; Threat. 2. That which is offered by a defendant as sufficient to defeat a suit — by denying, justifying, or confessing and avoiding, the cause of action. A term of art used in common-law plead- ing in the sense merely of " denial." ' When the plaintiff hath stated his case in the dec- laration, it is incumbent on the defendant within a rea- sonable time to make his " defense," and to put in a plea; else the plaintiff will recover judgment by de- fault, g. «. . . Defense, in its true legal sense, signi- fies not a justification, protection, or guard, which is its popular signification, but an opposing or denial (French, defender) of the truth or validity of the com- pjaint. It is the contesiatio litis of the civilians, a general assertion that the plaintiff hath no ground of action, which assertion is afterward extended and maintained in the plea.* Compare Traverse. The right possessed by a defendant, aris- ing out of the facta alleged in his pleadings, which either partially or wholly defeats the plaintiff's claim.s Defenses, in civil procedure, are stated with fullness and particularity in answers to bills and libels, and in afadavits of defense filed to affidavits of claim. Defense, affidavit of. A sworn written statement of the facts which constitute the defense in a civil action; also called "affl- davitof merits." Opposed, affidavit of claim. > state V. Johnson, 76 Mo. 122, 138 (1883), Norton, J. ; State V. Umfried, ib. 408 (1882); 69 Id. 469, "Cartwright v. State, 14 Tex. Ap. 486, 499 (1883), cases. Hart, J.; Reed v. State, 11 id. 517 (1882); 70 Ala. 7- 71 id. 386-37; 32 Conn. 83; 64 Ind. 340; 89id. 195; 80 Ky 36- 14 B. Mon. 103, 614; 38 Mich. 270, 732; 55 Miss. 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 Eep. 268. s United States v. Ordway, 30 F. R. 33 (1887). * 3 Bl. Com. 296. See 33 Ind. 449; 8 How. Pf. 442; 10 id. 148; 24 Barb. 631. • [Utah, &c. R. Co. V. Crawford, 1 Idaho, 773 (1880). The practice which requires affidavits of claims and defense has been systemized in Pennsylvania to a de- gree of completeness scarcely known elsewhere. The subject is usually discussed in connection with the in- quiry. What are the essentials of a "sufScient" affi- davit of defense. In that State the practice originated in an agreement between members of the bar at Phil- adelphia, signed September 11, 1795.' After that, staO utes extended the practice, until it became general." Yet the courts, by mere rule, could have required de- fendants to file a statement of defense.' The practice does not conflict with the right of trial by jury. If a defendant presents no defense to be^ tried by a jury he cannot claim that privilege is de- nied him. The affidavit is nothing more than a special plea under oath — by which the defendant states the facts of his case for the consideration of the court. Trial by jury iU' civil cases has never involved the- right of the jury to decide the law of the case. Thab the defendant is obliged to state his plea, or his de- fense, under oath, is merely a means to prevent delay, by falsehood and fraud. Nor can it be objected, whent all the facts have been stated by the defendant which he either knows or is informed of, believes and ex- pects to be able to prove, that the court decides the law arising upon the facts as stated. This is no more than the court does upon a demurrer, a special ver- dict, a nonsuit or an issue in equity. The affidavit is- only a modern mode of making up the issue for the jury. And when, upon a statement of all the facts a defendant can conscientiously swear to, the court finds, that the law upon those facts is against him, clearly 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 instruction to the jury when all the evidence is in, with, the advantage to the defendant that by his affidavit he has made the evidence to support his own case.' The object is to prevent delay of justice through, false defenses." At the same time, the practice being in derogation of the right of trial by jury, regulations, are to receive a strict construction. ° The procedure, being somewhat summary, the- plaintiff, in his affidavit, must have complied with every requirement of the law ; ' otherwise, a judgment given him, for "insufficiency" m the matter relied upon by the defendant, will be reversed, although that matter is really insuflicient.' ' Sellers v. Burk, 47 Pa. 344 (1864); Clark v. Dotter, 54 id. 216 (1867) ; Detmold v. Gate Vein Coal Co., 3 W. N. C. 567 (U. S. D. C, E. D. Pa., 1876). !■ 2 Brightly, Purd. Dig. 1856, 1857, pi. 24, note d. ' Hogg V. Charlton, 25 Pa. 200 (1855); Harres i>. Com- monwealth, 35 id. 416 (1860). « Lawrence v. Borm, 86 Pa. 226 (1878), Per Curiam; 19 id. 57; 20 id. 384; Hunt v. Lucas, 99 Mass. 409 (1868), Chapman, C. J. » Wilson V. Hayes, 18 Pa. 354 (1852) ; Bloomer v. Reed, 22 id. 51 (1853). •Yates V. Burrough of Meadville, 56 Pa. 21 (1867); Wall V. Dovey, 60 id. 212 (1869); Boas v. Nagle, 3 S. & R. 250 (1817). ' Knapp V. Duck Creek Valley OU Co., 53 Pa. 185 (1866). I 8 Gottman v. Shoemaker, 86 Pa. 31 (1877). DEFENSE 330 DEFENSE The question of insufficiency is brouglit directly be- fore the court by a rule on the defendant "'to show cause why judgment should not be entered against him for want of a sufficient affidavit of defense " — the particulars of the alleged insufficiency being at the same time specified in writing and filed with the rule. The court considers the facts set out in the affidavit and passes upon their legal sufficiency. ^ For this purpose it takes the facts as true, not to be contra- dicted even by a record.^ It is sufficient to set forth, in the affidavit — facts showing a valid defense which can properly be estab- lished; 3— specifically, and at length, such facts as will warrant the inference of a complete legal de- fense; * — a substantially good defense; fi — a prima facie good and valid defense.^ The defendant must state the grounds and natm-e of his defense, so that the court may judge how far it will avail against the plaintiff's demand, if established by proof.'' The facts are to be averred with reasonable precis- ion; but the evidence by which the defendant will prove them need not be stated. ^ Nor need he meet every objection which fine critical skill may deduce. ^ While an allegation doubtfully stated or clearly eva- sive is to be disregarded, the defendant is not to be held to a rigor of statement so severe as to catch him in a mere net of form.* The facts are to be averred with reasonable precis- ion, and with certainty to a common intent. Toward sustaining the affidavit a reasonable intendment will be given the language, i" But no essential fact is to be left to inference ; ^ ^ what is not said is taken as not existing.^^ Further- more, inasmuch as a party swearing in his own cause is px'esumed to swear as hard as he, can with a, good conscience, ^3 inferences, when justifiable, are not to be pressed beyond the ordinaiy meanmg of the terms employed.^* A, material fact which, if it actually exists, would readily and naturally be expressly averred, must be averred. IS The practice which requires affidavits of defense is limited to obligations for the payment of a certain Sinn of money. Hence, it does not apply in actions for iStitt V. Garrett, 3 Whart. 281 (1837); Comly v. Bryan, 5 id. 261 (1S39); Marsh v. Marshall, 53 Pa. 396 <1866J. 3Feust V. Fell, 6 W. N. C. 43 (1878); Kirkpatrick v. Wensell, 2 Leg. Chron. 303 (1874). 3 Leibersperger v. Reading Bank, 30 Pa. 531 (1858). * Bryar v. Harrison, 37 Pa. 233 (1860). 6 Thompson u Clark, 56 Pa. 33 (1867). , « Chartiers R. Co. v. Hodgens, 77 Pa. 187 (1874). 7 Walker v. Geisse, 4 Whart. 256 (1838). 8 Bronson v. SUverman, 77 Pa. 94 (1874). « Lawrence v. Smedley, 6 W. N. 0. 42 (Sup. Ct.,1878). lOMarkley v. Stevens, 89 Pa. 281 (1879); 77 id. 283; 89 id. 281. H Pefck V. Jones, 70 Pa. 83 (1871). »2 Lord V. Ocean Bank, 20 Pa. 384 (1853). J 3 Selden v. Neemes, 43 Pa. 421 (1862). J 4 Marsh V. Marshall, 53 Pa. 396 (1866). " Markley ^?. Stevens, 89 Pa. 281 (1879). torts, nor in actions upon contracts for the payment of an uncertain sum, or where there is no standard by which to liquidate the judgment.' The defendant is to make the jiffidavit, unless cause, such as sickness or necessary absence, is shown why he cannot make it. Then an agent, and perhaps even a stranger to the transaction, may make it.^ When defendant avers facts on information and be- lief he must add that he expects to be able to prove them or else set out specifically the source of his in- formation or the facts themselves upon which his belief rests. 3 This affords a presumption that proof can be made.* Positive averment of truth is enough.* The practice does not permit the filing of a supple mentary affidavit of claim to obtain a judgment for an insufficient defense. Such affidavit may be filed for use as evidence at the trial ; so, too, as to a supple- mental affidavit of defense in reply to a supplenientaJl affidavit of. claim. But the court will not consider thrj sufficiency of eitner affidavit.^ Should the court deem the defense set out in the original affidavit to be probably good but obscurely or otherwise defectively stated, it may allow a supple- mental affidavit of defense to be filed.''^ Notice thereof is to be given, to prevent surprise and delay at the time for trial. There "is no rule that such supplemental affidavit must be confined to an explanation of the original de- fense, and cannot set up a new and different defense; such a course, however, is suspicious, and requires that the new defense be closely scrutinized. ^ Where judgment has been entered for want of a sufficient affida,vit of defense 4,nd tlie record shows it to be according to law, a motion to take it off is ad- dressed to I the discretion of the coul-t, and, in the absence of statutory provision to the contrary, is not the subject of a writ of error.^ It would seem that an affidavit of defense, to be- come part of the record, should be offered in evi- dence, ^o Dilatory defense. A defense designed to dismiss, suspend, or obstruct the prosecu- tion of a claim, without touching upon the defendant's *' meritorious defense." See Merits. 1 Borlin v. CommonweaU]i, 99 Pa. 46 (1881). See 89 id. 26; 90 id. 276. = See City v. Devme, 1 W. N. C. 358 (1875); Clymer v. Fitler, lb. 626 (1875); Blew v. Schock, ib. 612 (1875); Crine v. Wallace, ih. 293 (1875) ; Burkhart v. Parker, 6 W. & S. 480 (1843); Hunter v. Reilly, 36 Pa. 509 (1860). 3 Black V. Halstead, 39 Pa. 64 (1861); Thompson v. Clark, 56 id. 33 (1867). 4 Clarion Bank v. Gregg, 79 Pa. 384 (1875); Renzor v. Supplee, 81 id. 180 (1876). « Eyre v. Yohe, 67 Fa. 477 (1871); Moeck v. Littell, 82 id. 354 (1876), « Anderson u Nichols, 12 Pitts. Leg. J. 231 (1882). 'Laird v. Campbell, 92 Pa. 475 (1880). 8 Callan v. Lukens, 89 Pa. 134 (1879), Per Curiam. » White V. Leeds, 51 Pa. 187 (1865). See Act 18 April. 1874: P. L. 64; 2 W. N. C. 707. If Maynard v. National Bank, 98 Pa. 250 (1881). DEFENSE 331 DEFINITE Equitable defense. A defense, in a commou-law action, which rests upon equi- table or legal and equitable grounds. Equitable defenses, though admissible under State practice, are not admissible in the United States courts,' If a defendant has equitable grounds for relief he must seek to enforce them by a separate suit in equity." See Procedure. Full defense. In common-law practice, a defense made by the formula he " comes and defends the force and injury when and where it shall behoove him, the damages, and whatever else he ought to defend." Shortened into he " defends the force and in- jury, when," etc. Opposed, half-defense: made by the words he " comes and defends the force and injury, and says," etc.^ Greneral defense. A general denial of the material allegations of a claim. A general denial is not equivalent to a general issue at common law. It only puts the plaintjtl: to proof of his substantial allegations. If the defendant has an affirmative defense in the natiu-e of an avoidance he should plead it.* Good, legal, sufficient, or valid de- fense. A defense which is ample or adequate in law as against the particular demand. Legal defense often stands opposed to equita- ble defense, q. v. No defense. Certificates are frequently required by proposed purchasers ' of mort- gages standing in the name of the nnortgagee or of his transferee, that the mortgagor has no defense, in equity or law, to a demand for payment thereof. Peremptory defense. That the plaintiff never had, or has not now, a right of action. Sham defense. A mere pretense of a defense, set up in bad faith, and without color of fact. See further Sham. Whenever one is assailed in his person or property, he may defend himself, for the liability and the right are inseparable. . A sentence of a court pro- nounced against a party without affording hun an op- portunity to be heard is not a judicial determination of his rights. There must be notice of some kind, act- iial or constructive. The period is a matter of regula- tion by positive law, rule of court, or established practice.' See Day, In court; Admission, !i. 1 Parsons v. Denis, 2 MoCrary, SCO (1881); Gibson v. Chouteau, Vi Wall. 103 (1871). 2 Northern Pacific E. Co. v. Paine, 119 U. S. 561 (1887); Phillips V. Negley, 117 id. 675 (1886), cases; Herklotz v. Chase, 33 F. B. 433 (1887). »3B1. Com. 298. « Walker v. Flint, 3 McCrary, 510 (1882). • Windson v. MoTeigh, 93 U. S. iTH (1876), Field, J. DErER.i To postpone to a future day ; as, a deferred payment of principal and in- terest upon account of a mortgage, or of a dividend upon account of shares of stock. See Dividend, 3; Stock, 3 (2), Deferred; Postpone, 1. DEnCIENCY. That part of the debt, which a mortgage was made to secure, not realized from the subject mortgaged. ^ See Estimate; More or Less. DEEIWE. To set bounds to, mark the limits of. See Definitio ; Definition. 1. To make clear the design or scope of previous action ; to remove doubt or uncer- tainty as to the meaning or application of ; to determine authoritatively, settle officially, decide judicially. In popular meaning, often, to make clear and cer- tain what was before uncertain or indefinite, to render distinct; but in legislation frequently has a broader signification. Many constitutional laws have been passed conferring powers and duties which could not be considered as merely explaining or making more clear those previously conferred or sought to be, although the word " define " was used in the title. In legislation the word is frequently used in creating, enlarging, and extending the powers and duties of boards and officers, and in defining and providing pun- ishment for offenses — thus enlarging the scope of the criminal law. It may very properly be used in the title of a statute where the object is to determine or fix boundaries, especially where a dispute has arisen concei-ning them, whether the extent of territory in- cluded be enlarged or lessened.^ 3. To enumerate or prescribe what act or acts shall constitute; to declare to be an offense. "To define pii'acies" is to enumerate the crimes which shall constitute piracy.* Declaring that a certain act shall constitute an of- fense is " defining " that offense.' DEEINITE. Bounded, limited, defined: determinate, precise, fixed, certain. Op- posed, indefinite. A " definite failure of issue " occurs when a precise time is fixed by a will for the failure of issue. An "indefinite failure of issue" is the period when the issue or descendants of the first taker shall become extinct, and when there is no longer any issue of the issue of the grantee, without reference to a particular time or event." See further Die, Without chUdi-en. 1 L. dis-ferre, to put off, delay. " [Goldsmith v. Brown, 33 Barb. 493 (1861). 3 People V. Bradley, 36 Mich. 452 (1877), Marston, J. 4 United Stales v. Smith, 5 Wheat. 160 (1820). " United States v. Arjona, 120 U. S. 488 (1887). = Huxford V. Milligan, 60 Ind. 546 (1875); 14 N. H. 220; 19 id. 84-85; 16 Johns. 398-400; 20 Pa. 513; 40 id. 23; 2 Eedf. WUls, 276, u. DEFINITID 3S3 DEHORS DEPINITIO. L. Abounding, limiting: defining, definition. Omnis deflnitio in jure perieulosa est. All limitation in law is perilous; defining in law is dangerous. Attempts to define the meaning of words, and to limit the applica- tion of statutes, are attended with more or less difiiculty. Thus, it is difficult to frame_ perfectly accurate defi- nitions of sucli terms as accident; general agent, special agent; • bailment; boarder, guest, lodger; crimen falsi; ^ cruelty; dwelling-house; fraud;* in- ternal police;* larceny; public policy;* reasonable doubt; slight, ordinary, and gross negligence; regula- tions of commerce as distinguished from police regu- lations. See those terms. Thus, also, as there are exceptions to almost every rule of law, and as circumstances alter cases infinitely, when a statute itself imposes no limitation upon its meaning or application, the courts, in construing the statute, as a rule, confine themselves to the circiun- stances of the case in hand. DEFINITION. An enumeration of the particular acts included by or under a name : as, the definition of a crime.6 See Define; Definitio. Legal definitions, for the most part, are generaliza- tions derived from judicial experience. To be com- plete and adequate, they must sum up the results of all of that experience.' The meaning given to common words by the leading lexicographers is entitled to weight, yet regard must always be had to the circumstances under which a word fas, traveler) is used in a statute.^ The definitions of the standard lexicographers are authority as indicating the popular use of words. ^ See Etymology; Indictment; Word. DEFINITIVE. Is generally equivalent to "final" and opposed to interlocutory or provisional. But, in some relations, as when said of a judgment, decree, or sentence, may mean being above review or contingency of reversal.'!'' Compare Final. DEFORCEMENT. An injury by ouster or privation of the freehold, where the entry » 1 Pars. Contr. 40. aiGreenl. Ev. §373. » 8 Pars. Contr. 769. * 11 Pet. 138. "3 Pars. Contr. 249. •Marvin v. State, 19 lud. 184 (1862), Perkins, J. ' [Mickle V. Miles, 31 Pa. 31 (1856;, Lowrie, J.; Pardee ■u. Fish, 60 N. Y. 269 (1875). >> I'ennsylvania E. Co. v. Price, 96 Pa. 267 (1880). ' »Bumam v. Banks, 45 Mo. 351 (1870); Dole 7). New England Mut. Ins. Co., 6 Allen, 386 (1863). ■PSee United States v. The Peggy, 1 Cranch, 109 (1801); 1 WattB, 257; 37 Pa. 255; 96 id. 420; 3 Bl. Com. 101. of the present tenant or possessor was orig- inally lawful, but his detainer has become unlawful. . . The holding of any lands or tenements to which another person hath a right.' Deforciant. He who is chargeable with a deforcement. A deforcement includes as well an abatement, an intrusion, a disseisin, or a discontinuance, or any other species of wrong whatsoever, whereby he that hath right to the freehold is kept out of possession.' See Amotion. DEFBAUD. See Fraud, DEGRADE. See Cmminatb; Libbl, Sj Reinstate; Kehabilitate ; Slander. DEGrREE.^ One of a series of progressive steps upward or downward; grade. ^ 1. A remove in the line of relationship. Levitical degrees. The degree of kin- ship, .set forth in the eighteenth chapter of Leviticus, within which persons may not in- termarry.* Adopted in English and American law generally. 2. The grades of guilt' or culpability at- tributed to the same offense committed under different circumstances : as, degrees of negli- gence, degrees in the law of arson or of mur- der, qq. V. When a defendant is charged with an offense which includes others of an inferior degree, the law of each degree which the evidence tends to prove should be given to the jury.^ 3. The rank to which a student who has attended a law-school is admitted among its alumni. "Whence bachelor of laws, doctor of cmil law, doctor of laws. Taken in course, or conferred for supposed attain^ ments, — the last named degree frequently so. At the inns of court degrees were formerly con- ferred in the common law upon barristers. Whence the expression "take " and " receive " a degree. DEHORNING. See Cruelty, 3. DEHORS.« From beyond; outside of: extraneous, extrinsic, foreign to, uncon- nected with ; aliunde, q. v. Applied to something as evidence, outside of a. record, agreement, will, or other instrument. Thus, a judgment may be falsified, reversed, or 13 Bl. Com. 172; Wildy v. Bonney, 26 Miss. 89 (1853). * F. degr^: L. de-gradus, a step. Cf . Pedigree. 3 Webster's Diet. * 1 Bl. Com. 435. s State V. Mize, 36 Kan. 188 (1887); State u Evans, ib. 497 (1887). * De-hSrz'. A French word, equivalent to the late Latin deforia: /oris, foras, out of doors. DEL CEEDERE 333 DELEGATUS made void for a matter dehors the record,— that is, ■not apparent upon the face of it.' A matter dehors a record may be shown as groimd for a new trial.* When doubt arises as to meaning of the words of a written contract, or difficulty as to their application, the sense may be ascertained by evidence dehors the instrument itself.^ DEL CEEDERE. L. Of trust, credit. Appliedjp ap. ageat or fadtor who guaran- tees .'tbattnepersons to whom he sells will perform the contracts he makes with them.* When the person to wljom goods or merchandise is consigned for sale undertakes, for additional com- pensation in case of sale', to guarantee to his principal the payment of the debt due by the buyer, he is said to receive a del credere commission.' See Commis- sion, 3; Factor. DELAY. Putting oflE ; postponement. A conveyance may be made with intent to hinder and delay creditors without any intention to defraud them." See Bankkuptcy; Conveyauoe, Fraudulent; Hinder. Mere delay in enforcing equitable rights is not a de- fense to an action, except in cases where the statutes of limitation apply, or where the party has slept upon his rights and acquiesced for such length of time that his claim has become stale.' See Laches; Lihita- TIOH, 3, Statute of; Stale. In the law of marine insurance, see Demdrrage; Deviation. DELECTTJS. L. Choice; selection. Delectus personse. Choice of person. Delectus personarum. Choice of persons or the persons. The right to choose the person or persons who shall participate in a business or enter- prise requiring the exercise of mutual confi- dence. In particular, the absolute right which be- longs to each member of a firm to decide what new partners, if any at all, shall be ad- mitted to the firm. In theory a partnership is a voluntary association. For this reason neither the purchaser of the interest of a member, nor his assignee, nor even his executor or heir, becomes entitled to admission Into the asso- ciation, except by consent of the remaining partners or by the terms of their compact.^ 1 [4 Bl. Com. 390. a [3 Bl. Com. 387. 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. * Exp. White, L. E., 6 Ch. Ap. Cas. *403 (1870), Hel- lish, L. J. « [Story, Agency, § 33; 50 Barb. 395. • Crow V. Beardsley, 68 Mo. 439 (1878). ' Williams v. Boston, &c. E. Co., 17 Blatch. 23 (1879). « Kingman v. Spurr, 7 Hck. 238(1828), cases ; Mathew- DELEGATA. See Delegatus. DELEGATE, v. To commit power to another as agent or representative; to em- power, depute, n. The person who is to exercise any such power; as, a Territorial delegate. See Delegatus. Delegation. 1. At common law, the transfer of authority; the act of making a delegate or deputy. ^ 2. In civil law, the substitution of one debtor for another : a species of novation. The change of one debtor for another, when he who is indebted substitutes a third person who obligates himself in his stead to the creditor ; so that the first debtor is ac- quitted and his obligation extinguished, and the creditor contents himself with the obli- gation of the second debtor. ' A delegation demands the consent of all three par- ties; any other novation demands the consent only of the two parties to the new debt.' See Novation. DELEGATUS. L. A person chosen or commissioned : a deputy, agent, representa- tive, trustee. Delegata. Deputed, em- powered, intrusted. Delegata potestas non potest dele- gari. Delegated authority cannot be re- delegated. Delegatus non potest delegare. A deputy cannot deputize. Whenever, for personal or other considera- tions, authority is conferred upon a particu- lar person he cannot lawfully devolve the duties of his appointment or the functions of his office upon any other person, unless al- lowed so to do by express words, by acts equivalent thereto, or by the usage of trade. - Delegatus potestas, etc., as a general maxim, is correct when duly appUed. For, to create a dele- gate by a delegate, in the sense of the raaxun, im- plies an assignment of the whole power, which a delegate cannot make. A delegate has general pow- ers which he cannot transfer; but he may constitute another his servant or bailiff to do a particular act.' A special authority is in the nature of a trust. It implies confidence in the ability, skill, or discretion of the pai-ty intrusted. The author of such a power may extend it if he will, as is done in ordinary powers of attorney, giving power to a person or his substitute to sonv aarke,6How.W0(1848); Crittenden u Witbeck, 60 Mich. 419, 420 (1883); Story, Partn. S§ 195, 5; 3 Kent, 55- 1 Pars. Contr. 154; 17 F. E. 571. ; Adams V. Power, 48 Miss. 454 (1873), Peyton, C. J.; 1 Domat, 919, 1 2318. fZit... Burrel, 6 Johns. *137 (1809), ca^es. Per Curiam. DELIBERATION 834 DELICTUM do tjie act authorized. But when it is not so extended it is limited to the person named. ^ See Deputy. The utmost relaxation of the rule, in respect to mercantile persons, is, that a consignee or agent for the sale of merchandise may employ a broker, or a sub-agent, for the purpose, when such is the usual course of business.'' When the principal recognizes the validity of the services rendered by the subordinate of the appointed agent he cannot repudiate the acts of his employee and escape personal liability for the want of author- ity to employ him.^ Judicial power cannot be delegated.* Nor can a legislature delegate its power to any commission or body except as to the functions of local self-govern- ment conferred upon municipal' corporations, q.v.; and as'to some matters of police regulation which the people of a locality may be permitted to accept or re- ject by vote, as, for example, local option laws.' See Option, Local. DELIBERATIPIT. Balancing, weigh- ing: consideration; reflection; meditation, premeditation. 1. When a man passes a thing by deed, there is a determination of the mind to do it, the writing, the signing, the sealing, and the delivery; and henc^e his deed imports consideration, viz.: the will of the maker. ^ 3. Slander in print is graver than slander by word of mouth, because it is not only disseminated wider, but is accompanied with greater coolness and delib- eration.^ 3. In describing a crime, " deliberate " im- ports that the perpetrator weighs the motives for the act and its consequences, the nature of the crime, or other things connected with his intentions, with a view to decision thereon ; that he carefully considers all these ; that the act is not committed suddenly.^ If an intention to kill exists, it is wUliul; if this in- ^tention be accompanied by such circumstances as evi- dence a mind fully conscious of its own purpose and design, it is deliberate." > Sanborn v. Carleton, 15 Gray, 403 (1860), Shaw, C. J. See 2 Kent, 633. 2 Warner v. Martin, 11 How. 228 (1850), cases, Wayne, J. See Story, Agency, § 13. » Commissioners v. Lash, 89 N. 0. 170 (1863), Smith, C. J. See 71 AJa. 28; 3 Dak. T. 395; il N. J. E. 618; 63 Pa. 85. * Van Slyke v. Trempealeau Ins. Co., 39 Wis. 392 (1876), cases, Eyap, C. J. ; Eunkle v. United States, 133 U. S. B57 (188T),— as to the President of the United States; Cooley, Const. Lim. 116, cases. 3 Cooley, Const. Lim. 124, cases. See also Common- wealth V. Smith, 141 Mass. 140 (1886). See generally 21 Am. LawEev. 936-54 (1887), cases; 26 id. 74-94 (1888), cases. 'Smith, Contr. 14; Williams, E. P. 143. ' Addison, Torts, 765. 8 State V. Boyle, 28 Iowa, 524 (1870), Beck, J. » Commonwealth v. Drum, 68 Pa. 16 (1868), Agnew, J. The statutory rule of deliberation and premedita- tion requires that the act be " done with reflection " and "conceived beforehaqd." ' *' Deliberate " is from Latin words, which mean " concerning " and " to weigh." As an adjective it means that the manner of the performance was de- termined upon after examination and reflection— that the consequences, chances, and means were weighed, carefully considered and estimated. "Pre- meditated " means, literally, planned, contrived or schemed beforehand. It is not only necessary that the accused should plan, contrive and scheme, as to the means and manner of the commission of the deed, but that he should consider different means of ac- complishing the act. He must '' weigh " the modes of consummation which his premeditation suggests, and determine which is the most feasible. ^ In some States "deliberate and premeditated " are applied to the malice or intent, not to the act, and thus seem to require a purpose brooded over, formed, and matured before the occasion at which it is carried into act. 8 See further Premeditate; Will, 1. DELICT. 1. In civil law, the act by which a person, through fraud or malignity, causes damage to another. In its enlarged sense includes all kinds of crimes and misdemeanors, even injuries caused voluntarily or accidentally and without evil intention; but is com- monly limited to offenses punishable by a small fine or a short imprisonment.* 3. A delictum, q. v. DELICTITM.5 L. A wrong, whether private or public : an offense, a civil injury or tort, a crime; also, simply a failing or fault, blame, guilt, culpability.* Corpus delicto. The body of the of- fense; the fact of a crime. See further Corpus, Delicti. Ex delicto. Out of fault or a fault ; aris- ing from a tort or wrong — misconduct, neg- ligence, crime. Said of the actions of case, replevin, trespass, and trover. Opposed, ex contractu. See Action, 2. Flagrante delicto. The offense still burning ; in the heat of the offense : in the very act of perpetrating a crime or the crime. 7 Compare Ceimbn, Flagrans. 1 Summerman v. State, 14 Neb. 509 (1883), Lake, C. J. ; Wharton, Homicide, 180. = Craft V. State, 3 Kan. 483 (1866), Crozier, C. J. ' Keenan v. Commonwealth, 44 Pa. 57 (1862), Lowrie, C. J. See 71 Mo. 220; 74 id. 219, 249, 266; 76 id. 104; 23 Ind. 263. * [Bouvier's Law Diet. ' From de-linquere, to leave a person or thing; then, to be wanting in a matter, fail in duty, offend, trans- gress. Compare Malos, Malum. ' See 3 Bl. Com: 363; 1 Kent, 552; 2 id. 341. ' See 4 Bl. Com. 307; 5 Cent. Law J. 380. DELICTUM 333 DELIVERY In pari delicto. In equal wrong : equal in guilt ; equally guilty ; equally to blame. The first part either of the maxim m pari delicto, melior est conditio possidentis, in equal fault, the better is the situation of the party in possession ; or else of the maxim in pari delicto, potior est conditio defendentis, in equal fault, the stronger is the situation of the defendant. Also spoken of as the rule of par delictum, equal wrong: parity of un- lawful conduct. Where misconduct is mutual the law will relieve neither party, but leave them where it finds them. While defendants derive advantage from its appli- cation, the rule was not adopted for their benefit, but solely as a principle of general policy.' A court of equity will not aid parties in the consum- mation or perpetration of a fraud; it will not assist a party to the betrayal of a trust to derive advantage therefrom; it will not undertake to unravel a tangled web of fraud to enable one of the parties to consum- mate his design. A complainant must come before the court with clean hands.'' The court will not enforde alleged rights restmg upon a prohibited contract. In the application of the rule it is necessary to give parties a right to plead and to prove the nature of the transaction.^ Whatever is stated in a contract for an illegal purpose, as, the vio- lation of a statute, the defendant may show as the turpitude of himself and the plaintiff to prevent its enforcement. The objection is allowed on general principles of policy.* Lord Jlansfield, in ITGO, laid down the doctrine, which has ever since been followed, that if the act be in itself immoral, or a violation of the general laws of public policy, both parties are in pari delicto; but •where the law is designed for the protection of the subject against oppression, extortion, and deceit, and the defendant takes advantage of the plaintiff's con- 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 pomitentioB, the delictum is incomplete, the contract may be rescinded by either party and money paid re- covered. There is no parity where the law protects one party, or one acts under constraint, though the transaction is completed. = If a contract, void as against public policy, is still executory it cannot be enforced, nor will damages be awarded for a breach thereof; but if it is executed the price paid or property delivered cannot be re- covered.' The rule is applied to cases of moral turpitude and to acts against public policy; not to cases of innocent mistake." One who bribes an officer of government cannot I'e- cover the money.^ In a few special cases, one party, less at fault than the other, has been allowed to maintain an action.* Compare Negligence, Comparative, Contributory. See Actio, Ex dolo, etc.; Contribution; Estoppel; Innocence; Legal, Illegal, 2; Tort, 2; Turpitude; VoLO, Volenti, etc. Propter delictum. On account of wrong — a crime or misdemeanor; as, a chal- lenge of a juror for infamy.^ See Chal- lenge, 4. DELIRIUM. That state of the mind in which it acts without being directed by the power of yoUtion, which is wholly or par- tially suspended.^ A temporary derangement of mind pre- ceded or attended by a feverish and highly diseased state of the body.^ It may vary from slight wandering to violent de- rangement, and be accompanied, in a greater or less degree, with stupor or insensibility. A continuing in- sanity will not be presumed, where the malady was temporary and occasional.' See Insanity; Intem- perate. DELIVEBY.8 Transfer of the body or substance; surrender of physical possession or control; tradition. Opposed, non-deliv- ery. To "deliver" is to give or transfer any- thing to another person. iSee Holman v. Johnson, 1 Cowp. 34.3 (1775), Mans- field C. J.; Smith, Contr. 27, 203, 263, 296., = Fariey v. St. Paul, &c. R. Co., 14 F. B. 114, 117 (188^), Ti-eat, D. J.; Lewis v. Meier, ib. 311 (1882); 2 McCrary, 599. »Funk V. GaUivan, 49 Conn. 128-29 (1881), cases; Heineman v. Newman, 55 Ga. 262 (1875), cases; Myers ■u Meinrath,"101 Mass. 368 (1869), cases. * Han-is v. Kunnels, 12 How. 86 (1861), Wayne, J. "Smith V. Bromley, 2 Doug. 697: Thomas v. Eich- mond, infra. 6 Thomas «. City of Richmond, 13 Wall. 355-56(18,0), cases, Bradley, J.; Co-^-ress & Empu-e Spring Co.!). Knowlton, 103 V. S. 5i4-jO (1880), cases. Woods, J. See also 116 U. S. 685-86: 48 Ark. 491; 101 Mass. 160; 107 id. 259- 25 Pa. 441; 79 id. 242; 25 Barb. 341; lOInd.386; 59 Iowa, 190; 6 Col. 14; 58 N. H. a49; 17 Nev. 177; 70 Va. 423; 2 Story, Contr. § 617; 3 Pars. Contr. 127, 484; 2 Greenl. Ev. § 111. I Setter v. Alvey, 15 Kan. 160 (1875), Brewer, J. ' See 55 Barb. 102; 22 Mich. 42T; 11 Mass. 376; 4 N. H. 455; 3N. y. 230. 8 Clark V. United States, 102 U. S. 331 (1860). * See White v. Franklin Bank, 22 Pick. 181-90 (1839), cases; Daniels v. Tearney, 103 U. S. 420 (1880), As to counter-claims, 20 Cent. Law J. 303-65(1885), cases. » See 3 Bl. Com. 363; 2 Kent, 241. 6 Owing's Case, 1 Bland's Ch. 386 (1828). See 1 Redf. ^'"neTrs of Clark v. Ellis, 9 Oreg. 129, 141 (1881), Lord, Chief Justice, ep. delim-er: L. de-liberare, to set free. DELIVERY 336 DELIVERY A law against "selling or delivering intoxicating liquor to a minor " was held not to include a delivery to a minor for his father. 1 See Liquor. In the sense of release from confinement, used in " jail-deliveiy." See Jail. *' Delivery," used alone, is of personal property; of letters, notices, telegrams, qQ. -u.; ©T negotiable in- struments, q. u; of sealed iiistpuments; of opinions, charges, verdicts, qq. v. 1. In the law as to gifts, sales, and trans- portation of personailty, delivery is absolute or conditional, actual or constructive, and symbolical. Absolute delivery. A transfer without any qualification, expressed or implied. Conditional delivery. A ti-ansfer accom- panied by one or more conditions which must be fulfilled before the general property vests in the possessor. A conditional sale may become an absolute s^e by an unconditional deliveiT* of the goods, the title then passing to the purchaser. To constitute a conditional delivery it is not necessary that the seller declare the conditions in express terms. It is sufficient if the in- tent of the parties, that the delivery is conditional, can be inferred from their acts and the circumstances of the case,^ Actual delivery. Manual or corporal transfer, made in fact or reality. Construct- ive delivery. A transfer which while not in reality made is yet viewed in law as as good as made. . " Constructive delivery " is a general term, compre- hending all acts which, although not truly conferring a real possession of the thing sold on the vendee, have been held coTistructione juris equivalent to acts of real delivery.^ Symtoolic. or symbolical delivery. Handing over one thing as evidence of part- ing with ownership in another or other things. Delivery is frequently symbolical; as, delivery of the key to a room containing goods, by marking tim- ber on a wharf or goods in a warehouse, or by sepa- rating, measuring, or weighing them; or otherwise constructive, as by delivery of part for the whole; » or by delivery of a bill of lading or of a bill of sale. See Gift, 1. As between vendor and vendee delivery is not necessary to complete a sale of personalty, especially where impracticable;* but as against a third person 'State V. McMahou, 53 Conni 415 (1886); Common- wealth V. Latin ville, 180 Mass. 386 (1876). ' Fishback v. Van Dusen, 33 Minn. 116-48 (1885), cases, Mitchell, J. " Bolin V. HufEn^le, 1 Eawle, *20 (1828). * 1 Bouvier, 602, cases; 89 HI. 218; 71 N. T. 293; 8 Bl. Cora. 313-16; 1 Pars. Gontr. 530; 8 Kent, 608. ' Wyoming Nat. Bank v. Dayton, 108 U. S. 59, 68 <1880); Hare, Contr. 450. possession retained by the vendor is evidence of fraud — conclusive, by some authorities, by others, rebuttable. Symbolical is a substitute for actual delivery, when the latter is impraoticablej and leaves the real deliv- ery to be made afterward. Thus, the delivery of a certificate of stock with a power of attorney in blai^ for making a transfer upon the proper books operates as a symbolical delivery of the stock itself, until the real delivery can be perfected.' To constitute a delivery to a common carrier the latter must accept the goods as a carrier and assume exclusive control over them.^ What amounts to a delivery to a carrier may some- times be a question' of fact for a jury; ordinarily, a delivery at his -wharf, freight or warehouse, brought to the notice of his servant, would be so considered. A deliveiy at a wharf may be of itself an incomplete act, to be explained by what precedes or follows.' A common carrier by water must at least give notice to a consignee that the vessel has arrived or that the property has been landed.* Proof of the unexplained non-delivery of property by a bailee upon demand makes a prima facie case of negligence, and, in the absence of evidence excus- ing the non-delivery, presents a question of fact as to actual negligence for the consideration of a jury.* Property in a situation to be delivered to the con- signee on demand may be said to be "awaiting deliv- ery; " property on its way to a distant point to be taken thence by a connecting carrier, to be "awaiting transportation." " Misdelivery. A delivery by a common carrier at such place or time as is not in- tended by the contract of carriage. Opposed, a good, sufficient, or legal delivery. A misdelivery by a carrier is equivalent to a con- version.* See Accept, 1; Bailment; Carrier; Place, Of de- livery; Possession, lY'audulent; Sale. As to collections on delivery, see Collection. » Delivery bond. An obligation for the return of goods, or the payment of their value, taken into the possession of the law but now to be restored to the defendant ; as, in seizures under revenue laws.* 3. Section 3893, Rev. St., is designed to 1 Wmslow V. Fletcher, 63 Conn. 398-99 (1886); Cooke V. Hallett, 119 Mass. 148 (1875). = Eeed V. Philadelphia, &c. E. Co., 3 Housl. S08 (1866); O'Eannonu. Southern Express Co., 51 Ala. 484 (1874). « Hobart v. Littlefield, 13 E. L 348 (1881), cases; Hall- garten v. Oldham, 135 Mass. 3-18 (1883), cases. ' Ostrander v. Brown, 16 Johns. 43 (1818); 3 N. T. 822; 11 F. E. 284. » Confield v. Baltimore, &g. E. Co., 93 N. Y. 638 (1883), " Michigan Central E. Co. v. Mineral Springs Manuf. Co., 16 Wall. 387 (1873), cases. ' Forbes v. Boston, &c. E. Co., 133 Mass. 158 (1882). s See E. S. § 938; 81 Wall. 98; 110 U. S. 880. DELIVERY 337 DELUSION otect letters, (postal-cards, and packets), Qt by mail, from embezzlement, and from terference, with the improper designs erein enumerated, until they reach their istination by actual delivery to th« persons ititled to receive them.' 3. As to the delivery of telegrams, see EIEGRAPH. 4. In the law of sealed instruments, the nal, absolute transfer to the grantee of a )mplete legal instrument sealed by the rantor, covenantor, or obligor. As a popu- tr word, signifies mere tradition. ^ A deed takes effect only from its tradition or deliv- •y, which may be absolute or conditional. Absolute delivery. A delivery to the rantee himself. Conditional delivery. 'o a thu-d person to hold till some condition ] performed by the grantee.^ In the latter case the instrument is delivered as an escrow " — as a scrowl or writing, not to take effect as deed till the condition is performed.' A delivery of a legal obligation made upon condl- ion does not become a legal delivery until the condi- ion is fulfilled.* The delivery of a deed is essential to the transfer of itle. It is the final act, without which other formal- ties are ineffectual. The gi-antor must part with pos- ession of the deed or the right to retain it; registry oay justify a presumption of delivery." While a delivery of a deed is essential to pass an state, and there can be no delivery without surrender >f the instrument or the right to retain it, such de- ivery wUl be presumed, in the absence of direct ividence, from the concurrent act of the parties rec- >gnizing a transfer of the title.' Surrender and acceptance are necessary to a com- pete delivery.' Its importance arises from the fact that the deed las taken the place of the livery of seisin of feudal ;imes, when, to give effect to the feoffment of the new tenant, the act of delivering possession in a public manner was the essential evidence of the investiture of title to the land. This diminished in importance until the manual delivery of a piece of turf, and other "symbolic" acts, became sufficient. When aU this passed away and the creation and transfer of estates by a written instrument, called the act or " deed " of the party, became the usual mode, the instrument was at first delivered on the land in lieu of livery of seisin. Finally, any delivery of the deed or any act intended to stand for such delivery became effectual to pass the title.' Delivery in fact, by the officers of government, of re- corded letters-patent for land, or of a charter, or of a commission to an office, and the like, in which the act of delivering is purely ministerial, may not be essential ; it is enforceable by mandamus.^ Compare Livery. DELUSION. "Insane delusion" and "morbid delusion," as equivalent expres- sions, are common in medical jurisprudence. If a person persistently believes supposed facts, which have no existence except in his perverted im- agination, and against all evidence and probability, and conducts himself, however logically, upon the as- sumption of their existence, so far as these imagined facts are concerned he Is under a " morbid delusion; " and delusion in that sense is insanity." " Insane delusion " is an unreasoning and incorrigi- ble belief in the existence of facts which are impossi- ble of existence, either absolutely or under the circum- stances, and which, in most cases, relate to something affecting the senses. WhUe the delusion may concern the relations of the party with others, generally it cen- ters around himself, his cares, sufferings, rights and wrongs. It comes and goes independently of the ex- ercise of will; it is not the result of reasoning and refiection, nor can it be dispelled by them. A convic- tion foimded upon evidence, upon a comparison of facts, opinions, and arguments, is not an insane delu- ' sion. Such a delusion does not relate to mere senti- ments or theories or abstract questions in law, politics, or religion: all which are subjects of opinions,— be- liefs founded upon reasoning and refiection, and liable to be changed by stronger external evidence or by sounder reasoning. . In the law of homicide the subject is important only as it throws light upon the question of knowledge of or capacity to know right and wrong. If a man is under an insane delusion that another is attempting his life and kills him in self- defense he does not know that he is committmg an unnecessary homicide. If he insanely believes he has a command from the Almighty to kill, it is difficult to understand how he can know it is wrong for hmi to kill.' See Insanity. 1 United States v. McCready, 11 F. E. 336, 234 (1882). "Black V. Shreve, 13 N. J. E. 461 (1860), Whelpley, J. s [2 Bl. Com. 307; 30 Wis. 646. *McFarlandi;.Sikes, 54 Conn. 250(1886). >Younge v. Guilbeau, 3 Wall. 641 (1865), Field, J.; 5 id. 81; 79 Pa. 15; 4 Del. Ch. 311. e Gould V. Day, 94 IT. S. 412 (1876), Field, J. See Ire- land V. Geraghty, 16 F. E. 45-46 (1883), oases,- note by M. D. Ewell. „ , ,„ „„ V Best V. Brown, 35 Hun, 324 (1881); 6 Barb. 195; 102 111.287; 23Ind.?9. 1 United States v. Schurz, 102 U. S. 398, 397(1880), cases. Miller, J. See 30 Cent. Law J. 44^ (1886), cases; 33 id. 8-10 (1886), cases; 26 Am. Law Eeg. 451-65 (IbSO, cases; 4 Kent, 466; 2 Wash. E. P. 677. > Seaman's Friend Society r. Hopper, 33 N. Y, 634 (1866), Denio, C. J.; Re Forman's Will, 54 Barb. 289 (1869), oases. ,„„ ,, 'United States v. Guiteau, 10 F. E. 170-71, 188 (Jan. 25, 1882), Charge of Judge Cox. See note by Francis Whari»n, ib. 189; Commonwealth v. Rogers, 7 Mete. ^3 (1844) State u Pike, 49 N. H. 433 (1870); State ^^ Jones, 60 id. 395 (1871): Dew v. Clarke, 3 Addams ,9 (1826) AS to wUls and deeds, Duffield v. Morns s Ex- ecutor, 2 Harr., Del., 380 (1838); Gass's Heirs « Gass s Executor, 3 Humph. 383 (1843); Eobinson -• Adam=.« Me 401 (1870); in general, Buswell, Insanity, |§ 13-15, cases; 1 Eedf. WUls, 40; 1 Whart. Cr. L. § 37. DEMAND 338 • DEMESNE DEMAND. 1. Any account upon which money or other thing is, or is claimed to be, due.i A claim ; a legal obligation." The most comprehensive word in law, except claim. A release of demands discharges all sorts of actions, rights, titles, conditions before or after breach, execu- tions, appeals, rents, covenants, annuities, contracts, recognizances, etc.' Includes, also, a cause of action,* and a judgment.^ Is more comprehensive than "debt" or *' duty." * The meaning may be restricted, as, to debt upon contract.^ Demandant. One who demands a thing as due; specifically, the plaintiff in a real action, as, partition. Cross-demand ; counter-demand. A demand set up as against another demand on which claim is or can be made; a set- off, q. V. 2. A request, made under claim of right, to do some specified thing. Required, in some cases, to fasten willfulness upon a person who refuses to perform a duty. Thus it is made: for payment of rent, before re-entry; under a contract for marriage, before action can be brought for breach of promise; in cases of illegal harboring of servants, and of illegal detention of personalty; in cases of refusal to obey orders of court; in other matters of contract and of tort."* Demand and refusal are never necessary, except as furnishing evidence of an unlawful taking or deten- tion against the rights of the true owner, in an action of replevin, or of an unlawful conversion in an action of trover. When the circumstances, without these, are suf&cientto prove such taking or detention, a demand and a refusal are superfluous.' On demand. In a note, does not make •the demand a condition precedent to a right •of action ; imports that the debt is due and demandable immediately, or at least that the commencement of a suit therefor is a suffi- cient demand. 1" When the promise is not to pay the note at a par- ticular place demand must be made upon the maker » Stringham v. Supervisors, 24 Wis^ 600 (1869), Dixon, Chief Justice. ■^ Hollen V. Davis, 59 Iowa, 447 (1888): Code, § 3591. ■s Coke, Eitt. 291 6; 8 Eep. 299; 1 Denio, 261 ; 6 W. & S. 226. * Saddlesvene v. Arms, 32 How. Pr. 285 (1866). Henry v. Henry, 11 Ind. 23" (1858). ■Sands v. Codwise, 4 Johns. *558 (1808); Re Denny, &C. Co., 2 HUl, 283 (1842). ' HeacockT). Sherman, 14 Wend. 59 (1835). s See 1 Bouvier, 504, cases. » Edmunds v. Hill, 133 Mass. 446 (1882). i» Young U.Weston, 39 Me. 494 (1855) cases; Byles, Bills, 409, cases by Sharswood; a Pars. N. & B. 639, personally, at his place of business or at his residence, or sufficient excuse for not making demand must be shown. Reasonable diligence must be used to find the maker, his residence and place of business.' A note payable " on demand after date " is not a note "payable on time," within the meaning of the Massachusetts statute of 1874, c. 404. » See Claim; Indorsement; Payment; Request; Stale. DEMENTIA. Mental derangement ac- companied by general derangement of facul- ties.' Characterized by forgetfulness, inability to follow any train of thought, and indifference to passing events.' An impaired state of the mental powers, feebleness of mind caused by disease and not accompanied by delusion (g. v.) or un- controllable impulse. < May exist without complete prostration. Senile dementia. That peculiar decay of the mental faculties which occurs in extreme old age, and in many cases much earlier, whereby the person is re- duced to second childhood and sometimes becomes wholly incompetent to enter into a binding contract or even to execute a will. It is the recurrence of sec- ond childhood by mere decay.' See further Insanity. DEMESNE.^ Own, one's own; original. Demesne land. Land reserved by the lord of a manor for the use of himself and household.' Ancient demesne. Tenure of manors be- longing to the crown in the days of Edward the Confessor and William the Conqueror, and referred to in Domesday book.s Demesne lands of the crown. Reservations of the crown at the original distribution, or such as came to it afterward by forfeiture or other means.' Comprised divers manors, the tenants of which had peculiar privileges.^ Seised in his demesne as of fee. Formal words expressing the highest estate a subject can have in land. It is his property or dominicum, since it is for him and his 1 Demond v. Bumham, 133 Mass. 341 ( 2 Hitchings v. Edmands, 133 Mass. 339 ( ' [Hall V. Unger, 4 Saw. 677 (1867), Field, J. * Dennett v. Dennett, 44 N. H. 637 (1863), Bell, C. J. See 2 Eedf. Sur. 133; 3 Wash. 680; 4 id. 262; 3 Am. L. Reg. 449; 2 Abb. C. C. 511. » 1 Redfleld, Wills, 63, 94. Owing's Case, 1 Bland's Ch. 389 (1828). * F. : L^ dominium, ownership. Cf . Domain; .Assault, Son, etc. ' 2 Bl. Com. 90. «2B1. Com. 99; 1 id. 886. « 1 Bl. Com. 288. DEMIJOHN 339 DEMONSTRATION heirs forever, not al)solute, but in a qualified or feudal sense ; and as of fee, because not purely and simply his own, since it is held of a feudal superior.i The owner of an incorporeal hereditament is. said to be "seised as of fee." and not "in his demesne; " since he has no property in the thing itself, but some- thing derived out of it.' " Seised in his demesne as of tee " is an allegation that the person is seised in fee-simple.' DEMIJOHN. See Bottle. DEMISE.^ In a lease for years creates an implied warranty of title and a covenant for quiet enjoyment.* In a lease under seal implies a covenant, and in a lease not under seal a contract, for title in the lessor. "Let "or an equivalent word has the same effect.5 See Lease. Demise and redemise. A conveyance by mutual leases of the same land, or of some- thing out of the same, made by one party to the other ; as, in a grant of rent-charge. See next word. DEMITTEEE. L. To demise, lease, let. Ex demissione. By demise. Used in entitling common-law actions of ejectment. Abridged ex dem, and d: as, Doe d., or ex dem.t Pat- terson V. Winn.* Non. demisit. He did not let or lease. A plea to an action for rent on a parol agreement. DEMONSTRATIO. L. A showing, pointing out : designation, description, dem- onstration, q. V. Falsa demonstratio non nocet. Erro- neous description does not vitiate. Spoken of as the maxim falsa demonstratio. When an instrument contains an adequate descrip- tion of a thing, with convenient certainty as to what was intended to be specifled, a subsequent erroneous reference or addition will not vitiate the instrument. This qualification is sometimes expressed by the phrase cum constat de corpore or de persona: when it comports with the subject-matter or with the person. ^ ' 2 Bl. Com. 106. s Butricki). TUton, 141 Mass. 94 (1886). ' F. dimettre, to put away, lay down: L. dismittere, demittere. « Stott V. Rutherford, 102 U. S. 109 (18r5), cases, Con- rad V. Morehead, 89 N. C. 34 (1883). » Foster v. Peyser, 9 Cush. 246-47 (1852), cases; Me^ calf, J., quoting Parker, B., in Hart v. Windsor, 12 M. & W. 68 (1844); Wilkinson v. Clauson, 29 Minn. 93 (1882); 8 Ala. 320; 50 Conn. 509; 18 Mass. 201; 9 N. H. 219; 7 Wend. 210; 26 Mo. 112; 5 Whart. 278; 103 Pa. 472. " 5 Pet. 23-3 (1831) ; 7 T. E. 886. ' See Thomas v. Thomas, 6 Durnf. & E. 676 (1769), Kenyon, C. J.; Qeaveland v. Smith, 2 Story, 291 (1842); 71 Cal. 147: 65 Wis 270; 67 id. 289. A false description, whether of subject-matter or parties, does not vitiate the instrument where the error appears upon its face and the waiting itself sup- plies the means of making the correction. ' Applied to a devise the rule means that if there be a sufficient description, with reasonable certainty of what was meant to pass, a subsequent erroneous ad- dition will not vitiate the devise. The characteristic of cases within the rule is that the description as far as false applies to no subject at all, and as far as true applies to one only.^ The maxim is of universal application as far as it means that we may reject, as surplusage, u, false de- scription not vital to the object of the controversy.* Falsa demonstratione legatnm non perimi. By erroneous description a legacy is not destroyed. A bequest is not to be held void because of inaccu- rate language used in speaking of it.* See further Demonstration, 2. DEMOCBATIC.s See Government. DEMONSTRATION. 1. Proof which excludes possibility of error. 6 A conclusion from a universal major pre- mise, producing absolute certainty.' Mathematical truth alone is susceptible of this high degree of evidence; matters of fact are proved by moral evidence.®) ^ See Certainty; Evidence, Moral. 2. Whatever is said or written to desig- nate a person or thing ; designation ; descrip- tion. Demonstrative. Pointing out specific- ally ; designating particularly : as, a legacy payable out of a particular fund. See Legact. An erroneous description does not render an instru- ment inoperative where the thing or person intended can be identified. As far as inapplicable it will be re- jected; particularly so when merely additional to another description or reference which is unambigu- ous: as where, in the same instrument, land is cor- rectly described by boundaries and wrongly described by parcel or number.** See further Demonstratio; Description. ' Dodd V. Bartholomey, 44 Ohio St. 175 (1886), Min- shall, J. = Morrell v. Fisher, 4 Exch. •604 (1849), Alderson, B. ; 113 U. S. 447. ' Broom, Max. 629; 1 Whart. Ev. % 945. 'Broom, Max. 645; 3 Bradt. 144, 149. « In Beardsley v. Bridgeport, 63 Conn. 493 (1886), used in a charitable bequest. « [1 Qreenl. Ev. § 1. ' [1 Whart. Ev. § 7. 8 1 Greenl. Ev. % 301. See White v. Luning, 93 U. S. 524 (1876); Springer v. United States, 103 id. 693 (1880); Noonan v. Lee, 2 Black, 604 (1882); Cleayeland v. Smith, 2 Story, 291 (1843); Ham v. San Francisco, 17 F. E. 121 (1883); 103 111. 364; 7 Cush. 4e0; 43 Pa. 481; 4 C. B. 328; 11 id. 208; 14 id. 122; 2 Pars. Contr. 660, u. DEMURRAGE 340 DEMUREER DEMUERAGE.i i. The delay or pe- riod of delay of a vessel in port. 2. The sum fixed by the contract of car- riage as remuneration to the ship-owner for detention of his ship beyond the days al- lowed for loading or unloading. It is usual to calculate this sum at so much per day, and to specify the days allowed for demurrage. An extended freight or reward to the vessel in cona- pensation for the earnings she is improperly caused to lose. Every improper detention may be considered a demurrage, and compensation under that name be obtained for it.^ Not allowed for delay caused by unloading in ac- cordance with the custom of the port.^ See Working- days. ' DEMUBREIl.* A declaration that ' ' the party will go no further, because the other has not showed sufficient matter against him ; " imports that the objector will wait the judgment of the court whether he is bound to proceed. 5 An admission of the fact, submitting the law to the court. ^ The tender of an issue in law upon the facts established by the pleading.'' Also, the act of tendering such an issue; and, the writing in which the tender is made. Demur. To object for legal insufficiency ; to interpose a demurrer. Demurrable. Admitting of a demurrer. Demurrant. One who demurs; a de- murrer. I In law, or at common law, an issue upon matter of law is called a " demurrer: " it confesses the facts to be true as stated by the opposite party, but denies that, by the law arising upon those facts, any injury is done to the plaintiff, or that the defendant has made - out a legitimate excuse. The party who demurs, de- moratur, rests or abides upon the point in question. The form is by averring the declaration or plea, the replication or rejoinder, to be insufficient in law to maintain the action or defense; and, therefore, pray- ing judgment for want of sufficient matter alleged. ^ 1 L. demorari, to'fetay: mora, delay. ' Donaldson v. McDowell, 1 Holmes, 293 (1873), Shep- ley, J. See S6 N. Y. 85 ; 6 Phila. 112 ; 4 Rand. 510 ; L. R. , 10 Exch. 135; 2 Kent, 159; 2 Pars. Con'tr. 304; 3 Chitt. Com. L. 42B. " The Elida, 31 F. E. 420 (1887). * F. demourer, to tarry, stay, hesitate: L. de-morari, to delay fully, rest: mora, delay. "Leaves v. Bernard, 6 Mod. *132 (1696); 2 Ark. 117; Stephen, PI. 6f; Coke, Litt. 71 b. ' [Exp. Vermilyea, 6 Cow. 559 (1826); Havens v. Hart- ford, &c. E. Co., 23 Conn. 89-93 (1859). ■ Goodman v. For,d, 23 Miss. 595 (1858), Smith, 0. J. 8 3 Bl. Com. 314. A demurrer in equity is nearly of the same nature as a demurrer in law, being an appeal to the judgment of the court whether the defendant shall be bound to answer the plaintiffs bill; as, for want of sufficient matter of equity therein contained; or where the plaintiff, upon his own showing, appears to have no right; or where the bill seeks discovery of a thing which may cause a forfeiture of any kind, or may convict a man of criminal misbehavior. If the defend- ant prevails the plaintiff's bill is dismissed; if the de- murrer is overruled the defendant is ordered to an- swer.' Demurring is incident to criminal cases when the fact alleged is admitted to be true but the prisoner joins issue upon a point of law in the indictment, by which he insists that the fact as stated is not the crime it is alleged to be. . Since the same advantage may be had upon a plea of not guilty, or by arrest of judgment when the verdict has established the fact, demurrers to indictments are seldom used.'' General demurrer. An exception in general terms to the sufficiency of a pleading as a whole. S^iecial demurrer. Alleges a jjarticular material imperfection. In a general demurrer at law no particular cause of exception is alleged ; in a special de- murrer the particular imperfection is pointed out and insisted upon.3 In equity practice the formula for a general demurrer is that there is no equity in the bill ; in the case of a special demurrer the particu- lar defect or objection is pointed out.^ A general demurrer lies for deffects of substance; a special demurrer lies for defects of form, and addsto the terms of the former a specification of the particu- lar ground of exception. Thus, alleging a defective title is a fault in substance for which the party may demur generally; but if a title be defectively stated it is a fault inform which must be specifically assigned for cause of demurrer. Under statutes of 27 Eliz. (1585), c. 5, aud 4 and 6 Anne (1706), c. 16, unless imper- fections, omissions, defects, and other matters of like nature be specifically and particularly set down and shown for cause of demurrer, the court gives judg- ment according to the very right of the cause without regarding the imperfections, omissions, etc.^ Where the objection is to the substance of the alle- gation, a general demurrer is sufficient; where to a de- fect in form, a special demmTer is indispensable. But neither demurrer is good unless the objections are ap- parent upon the face of the bill, from matter inserted or omitted, or from defects in the frame or form .of the pleading, s, • 1 3 Bl. Com. 446. See 6 Pet. 327. " 4 Bl. Com. 333-34. = Christmas v. Eussell, 5 Wall. 303 (1866), Clifford, J. : 1 Chitty, PI. 663; 2 Johns. 428. ■•Gindrat v. Dane, 4 Cliff. 262 (1874); Story, Eq. PI. §455. ' Commonwealth v. Cross-Cut E. Co., 63 Pa. 66 (1866): Stephen. PI. 161; 1 Saunders, PI. & Bv. 950. See also DEMURRER 341 DEMURRER A demurrer admits juriadiotion and such matters of fact as are relevant and well-pleaded; but not conclu- sions of law drawn from the facts,' nor matters of inference or argument. '^ Upon either a general or a special demurrer the opposite party must aver the matter or the form to be suf&cient, which is called a "joinder in demurrer," and then the parties ai'e at issue — which the court must determine. 3 In England special demurrers were abolished by the procedure act of 1852, s. 51. A party may both demur and plead. By pleading over, the right to demm- mf.y be waived.' The right to amend, after a demurrer has been sustained, is dis- cretionary with the court. "* A demurrer cannot be good in part and bad in part ; it must be sustained or fail to the whole extent to which it is interposed.** The coiu-t decides for the party who, on the whole, seems best entitled to a judgment.^ The judgment is as conclusive as a, verdict. ^ That a demurrer was made caimot be used as an admission of a fact.® Propositions deducible from the authoi-ities are: (1) A judgment rendered upon a demurrer to a declara- tion or other material pleading setting forth the facts is as conclusive of matters admitted as a verdict would be, since the facts are established in the former case, as in the latter, by matter of record ; and the rule is that facts thus established can never afterward be contested between the same parties or those in privity with them. (2) If judgmeut is rendered for the defendant, the plaintiff can never afterward maintain against him or his privies any similar action for the same cause upon the grounds disclosed in the declara- tion: the judgment determines the merits of the cause; a final judgment determining the right ends a dispute, else b'tigation would be endless.'" A demiurrer to a complaint because it does not state facts suflBcient to constitute a cause of action is equiv- alent to a general demurrer to a declaration at com- mon law, and raises an is-sue which, when tried, will finally dispose of the case as stated in the complaint, on its merits, unless leave to amend or plead over is granted. The trial of such an issue is the trial of the cause as a cause, not the settlement of a mere matter of form in proceeding. There can be no other trial except at the discretion of the court." Coke, Litt, 72 a; 8 Bl. Com. 315; 1 Chitty, PI. 642, 16 Am. ed., *694-95. ' Gindrat v. Dane, ante. ^United States v. Ames, 99 U. S. 45-46 (1878), cases; 14 F. E. 498, cases. See 109 U. S. 253, 550; 80 How. 125. 3 3 Bl. Com. 315. ' Stanton v. Embrey, 93 U. S. 553 (1876), cases. 6 United States v. Atherton, 102 U. S. 375 (1880). * ' Krst Nat.Bank of St.Paul uHowe, 28 Mlnn.152 (1881). ' See Townsend v. Jemison, 7 How. 703, 714 (1849); 16 111. 269; 39 Me. 426; 28 Ala. 637. 'Gould, PI. 444; generally, ib. 438-46. = Pease v. Phelps, 10 Conn. 68 (1834); 28 id. 92. i» Gould V. EvansviUe, &c. R. Co., 91 U. S. 533-34 (1875), cases, Clifford, J. "Alley V. Nott, 111 U. S. 475 (1884), Waite, C. J.; N. T. Code Civ. Proc. sees. 488, 497. Where the demmrer goes to the form of the action, to a defect in pleading, or to the jurisdiction of the com-t, the judgment will not preclude future litigation on the merits of the controversy in a court of compe- tent jurisdiction upon proper pleadings; and where it goes both to defects of form and to the merits a judg- ment not distinguishing between the two grounds may be presumed to rest on the former. But where the demurrer is to a pleading setting forth distinctly spe- cific facts touching the merits of the action or defense, and final judgment is rendered thereon, it woidd be difficult to find any reason in principle why the facts admitted should not be considered for all purposes as fully established as if found by a jury or admitted in open court. If the party against whom a ruling is made wishes to avoid the effect of the demurrer as an admission of the facts he should seek to amend his pleading or answer, as the case may be. Leave for that purpose will seldom be refused upon a statement that he can controvert the facts by evidence. If he does not ask permission the inference may justly be drawn that he is luiable to produce the evidence, and that the fact is as alleged in the pleading.' Speaking demuf rer. A demurrer which introduces some fact or averment, necessary to support it, not appearing distinctly upon the face of the bill.^ Demurrer to evidence. When a rec- ord or other matter is produced as evidence, concerning the legal effect of which there arises a doubt, and the adverse party demurs to the same as evidence, s A proceeding by which the court is called upon to say what the law is upon the facts shown in evidence.* The demurrant admits the truth of the testimony, and such conclusions as a jiu-y may fau-ly draw; but not forced and violent inferences. The testimony is to be taken most strongly against him, and such con- clusions as a jury may justifiably draw the court ought to draw.* A demurrer to plaintiff's evidence admits the facts the evidence tends to prove. The court is to make every inference of fact in favor of the plaintiff which a jury might infer. If, then, the evidence is insuffi- cient to support a verdict in his favor, the demurrer should be sustained." See Nonsuit. ' Bissell •<;. Spring Valley Township, 124 U. S. 232 (1888), cases. Field, J. ' [Brooks V. Gibbons, 4 Paige, 375 (1834), Walworth, Ch. See Edsell v. Buchanan, 2 Ves. Jr. *83 (1793); 1 Sun. 5; 2 Sim. & Stu. 127; 1 Barb. Ch. Pr. 107. « [3 Bl. Com. 372. See Gould, PI. 446-58; Goodman v. Ford, 2.3 Miss. 595 (1852), Smith, C. J. • Suydam v. Williamson, 20 How. 436 (1857), cases, Clifford. J. 'PawUng V. United States, 4 Cranch, 221 (1803), Mar- shall, C. J.; Pleasants v. Fant, 22 Wall. 121 (1874), cases; 77 Va. 212. 'Donohue v. St. Louis, ^o. R. Co., 91 Mo. 360 (1886); 73 id. 219. DENARIUS DEI 343 DEPARTMENT Demurrer to interrogatory. The rea- son a witness offers for not answering a par- ticular question among interrogatories. DENARIUS DEI. L. God's penny; money given to the church or to the poor ; earnest- money, q. v. DENIAL. See Defense, 2. DENIZEN.i An alien born who has ob- tained ex donatione regis letters-patent to make him a subject.^ Whence denizenize, dcnizenatioa or denization,^ and denizenship. The crown denizenizes; parliament con- sents to naturalization. A denizen is in a kind of middle state between an alien and a natnral-bom subject, and partakes of both. H6 may take lands by purchase or devise, but not >by inheritance — for the parent has no inheritable lilood.* But since 1870, in England, an alien may hold and dispose of property as a natural-bom subject. In South Carolina the status seems to have been created by law. DENOUNCEMENT. In Mexican law, a judicial pi'oceeding equivalent to the in- quest of office at common law.""* DENTIST. See Care; Mechanic; Phy- sician. DENY. See Admission, 3; Defense, 3; Traverse. DEODAND.6 Any personal chattel which was the immediate cause of the death of a rational creature.^ The chattel, whether an animal or inanimate ob- ject, was forfeited to the king, to be applied to relig- ious uses. Designed, originally, as an expiation for the souls of such persons as were snatched away by sudden death. If any animal killed a person, or if a cart ran over him, it was to be forfeited,— in part, also, as punishment for the supposed negligence in the owner. If the thing was in motion, as, a cart with its loading, all that moved was forfeited; if not in motion, then only the part which was the immediate cause of the death. It mattered not whether the owner was concerned in the killing or not. The right to deodands, in time, was granted to the lords of manors as a franchise.^ Abolished by 9 and 10 Vict. (1846) c. 63. DEPART. See Departure. DEPARTMENT. (Adj. Departmental.) The departments of government are the 1 F. deinzein, a trader " within " the privilege of a city franchise: deinz, within,— Skeat. a 1 Bi. Com. 374; 6 Pet. 116, note. 8 Webster's Diet.; 1 Bl. Com. 374. 4 1 Bl. Com. 374. 6 [Merle v. Mathews, 26 Cal. 477 0864). * L. deo-dandum, given to God. ' [1 Bl. Com. 300. 8 1 Bl. Com. 300-2. legislative, the executive, and the judicial departments. In our system, it is important that these depart- ments be kept separate, that one be not allowed to encroach upon the domain of another.' While a general separation has been observed be- tween the different departments, so that no clear en- croachment by one upon the province of the other has been sustained, the legislative department, when not restrained by constitutional provisions and a regard for certain fundamental rights of the citizen which are recognized in this country as the basis of all gov- ernment, has acted upon eveiything within the range of civil government. 2 The executive business of the general government, under a permission rather than a mandate of the Con- stitution, is distributed to seven executive "depart- ments " of equal grade. . Administration of the duties of these respective de- partments is committed directly to a "secretary" or " head," who, with his principal assistants, is ap- pointed by the President as chief executive, with the advice of the Senate. The departments are designated as of — the iute- rior,3 justice,* the navy,"^ the post-office,^ state,'' the treasury,^ and war.^ The department of agriculture '" is of subordinate grade. The head of a department is required to exercise judgment and discretion in administering the concerns of his office. He exercises his own judgment in ex- pounding the laws and resolutions of Congress under which he is to act. If he doubts, he may call on the attorney-general for counsel. If the Supreme Court shoiild differ with him as to the construction to be placed upon any of these laws it would pronounce judgment accordingly. But the interference of the courts with the performance of the ordinary duties of the executive departments would be productive of nothing but mischief — such power was never in- tended to be given to them. . . The court by man- damtts may direct the doing of a purely ministerial act, but not the exercise of a duty requiring judgment and discretion.'! The heads of departments are the President's au- thorized assistants in the performance of his " execu- tive " duties, and their official acts, pronaulgated in 1 See Mabry v. Baxter, 11 Heisk. 689-90 (1872). 2 Maynard v. Hill, 125 U. S. 205 (1888). As to the in- dependence of the departments of government, see Si Am. Law Rev. 210-37 (1887), cases. 3 R. S. § 437: Act 3 March, 1849. 4 R. S. § 346: Act 24 Sept. 1789. R. S. § 415: Act 30 April, 1798. e R. S. § 388: Act 8 May, 1794. 7 R. S. § 199: Act 27 July, 1789. s R. S. § 233: Act 2 Sept. 1789. » R. S. § 214: Act 7 Aug. 1789. '» R. S. § 520: Act 15 May, 1862. ' ' Decatur v, Paulding, 14 Pet. 515-17 (1840), Taney, C. J. ; United States v. Macdaniel, 7 id. *15 (1833) ; Ken- dall u. United States, 12 id. 610 (1638): Litchfield v. Register and Receiver, 9 Wall. 577(1869); Carrick v. Lamar, 116 U. S. 426 (1886), cases. DEPARTURE 843 DEPOSIT the regular course of business, are presumptively his acts.' When the head of a department is required by law to give information on any subject to a citizen he may ordinarily do this through subordinate officers." The supervision which the head of a department may exercise over a subordinate does not extend to a matter in which the latter is directed by statute to act judicially.' See Comity; CoNSTrrcTioNAL; Document, Public; Executive; QovKRNaBNr; Judioiaby; Legislature; Ministerial, 1; Proclamation, 2; Reoulation. DEPABTUBE. Parting from, separa- tion, going away; relinquishment, derelic- tion. 1. " Departure from the State," said of a debtor, in a statute of limitations, does not mean temporary absence from the State, while his usual place of residence continues therein, but such absence as entirely sus- pends the power of the plaintiff to commence his action.* See Abscond; Absence; Start. 2. In marine insurance, deviation from the course prescribed. Imports an effectual leaving of the place behind. If the vessel be detained or driven back, though she may have sailed, there is no departure." See Devia- tion. 3. In pleading, the dereliction of an ante- cedent ground of complaint or defense for another distinct from and not fortifying the former ground.* In the several stages of the process ot pleading a party must not depart or vary from the title or de- fense he has once insisted on. For this, which is called a " departure," might occasion endless alterca- tion. Therefore the replication must support the dec- laration, and the rejomder the plea, without depart- ing from it.' When a party quits or departs from the case or defense which he has first made, and has recourse to another.' Occurs when, for example, the replication or re- 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 parties were permitted to wander from fact to fact, forsaldng one to set up another, no issue could be ' Runkle v. United States, 122 U. S. 557 (1887). « Miller v. Mayor of New York, 109 U. S. 335, 394 (1883). » Butterworth v. Hoe, 112 U. S. 50, 55 (1884), cases. * Blodgett V. Utley, 4 Neb. 29 0875), Maxwell, J. "Union Ins. Co.' v. Tysen, 3 Hill, 126 (1842), cases, Cowen, J. See Sloop Active v. United States, 7 Cranch, 100(1812). « Gould, PI. 421 — Ch. VTII, sec. 65. ' 3 Bl. Com. 310. « 1 Chitty, PI. 674; Steph. PI. 410; 49 Ind. 112. joined, nor could there be any termination of the suit. A departure may be in the substance of the action or defense, or in the law on which it Is founded.' ' Taken advantage of by a demurrer, general or spe- cial." Compare Variance; Duplicity. See Assign- ment, New. DEPENDENT. 1, adj. Not to be per- formed until a connected thing is done by another. Opposed, independent, com- pletely obligatory within itself : as, a depend- ent, or an independent, contract or covenant, qq. V. Compare Appendent. 2, n. A person who is dependent for sup- port upon another. 3 DEPONENT; DEPOSE. See Deposi- tion. DEPOSIT.* 1, V. (1) To give in charge to another person, to commit to the custody and care of another ; to leave with for safe- keeping ; to deliver to for further action, for a special or a genei'al purpose, explained or understood. " Deposited," in a statute prescribing the duties of an election inspector, implies that the depositary must safely keep the papers committed to his custody until he surrenders them to the board whose duty it is to canvass the returns and certify the result of the elec- tion." At an election in which a Congressman is voted for, failure to keep the election papers safely as provided by law in Indiana is an offense against the United States government." (2) Specifically, to deliver money or per- sonalty to another for safe-keeping, without remuneration, until the owner shall request a return of the possession. 2, n.' (1) A naked bailment of goods, to be kept for the bailor without reward, and to be returned when he shall require it. 8 A bailment of goods to be kept by the bailee without reward, and delivered accord- ing to the object or purpose of the original trust.9 ' 1 Chitty, PI. 674; Steph. PI. 410; 49 Ind. 112. ' See 5 Ala. 344; 5 Conn. 379; 16 Mass. *2; 44 Mo. 64; 14 Nev. 239; 16 Johns. 206; 20 id. 160; 13 N. Y. 89. ' Ballou II. Gile, 50 Wis. 619 (1880); American Legion of Honor v. Perry, 140 Mass. 590 (1886). «L. deponere, to lay away, place aside; intrust to. « Be Coy, 31 F. R. 801 (1887), Harlan, J.; Ind. R. S. 1881, 0. 56. •United States v. Coy, 32 F. R. 638 (1787), Woods, J.; R S § 6515. Afiftrmed, Sup. Ct., May 14, 1888. ' Deposite was the old spelling,- 2 Pet. •325; 7 Conn. 495. 8 Jones, Bailm. 36, 117: 17 Mass. 499; 40 Vt. 380. ' Story, Bailm. § 41: 8 Ga. 180; 42 Miss. 544; 29 N. Y. 167. Deposit 344 DEPOSIT Also, the thing itself so bailed — goods, money, or other movable's. Depositor. The bailor in a contract of deposit of goods. Depositary. The bailee in a contract; a depositee.! Depository. The place where the goods are received or kept. General deposit. A deposit which is to be returned in kind. Special deposit. A deposit to be returned in the identical thing. Qiiasi-deppsit. Possession of another's property obtained by finding it. A depositaiy is bpund to take only ordinary care of the deposit. What this degree of care is varies with the circumstances of each case. . He is answer- able for gross negligence, which is considered equiv- alent lo a breach of faith. The degree of care neces- sary to avoid the imputation of bad faith is measured by the carefulness which he uses toward his own property of a similar kind. For although that may be so slight as to amount even to carelessness in an- other, yet the depositor has no reason to expect a change of character in favor of his particular inter- est,2 See Bailment; Depositdm. (2) A delivery of money to a bank or banker upon a contract that an equal sum will be returned on demand ; also, the money itself. This, by pre-eminence, is a "deposit." Whence bank of deposit, bank-deposits, memoran- dum of deposit, etc. Depositor. He who deUvers money to a bank, subject to his order. General deposit. In this the depositor parts with title to his money, — lends it to the bank which agrees to return an equiva- lent sum on demand. Also called an irregu- lar deposit. Special deposit. When the depositor retains title to the thing delivered, which may be bullion, plate, securities, etc, as well as money, and the bank becomes a bailee under obligation to take ordinary care of the article and to return it to the owner when called for. In the ordinary case of a deposit of money with a banking corporation or banker the transaction amounts to a mere loan, mutuum, or irregular deposit, and the bank is to re- store not the same money, but an ecfuivalent sum, when demanded. But in the case of a "special deposit" the very coin or bills are to be restored, — ■ the transaction constitutes a genuine deposit ; the banker has no author- 1 103 Pa. E34, , "Foster v. The Sssex Bank, 17 Mass. 498 (1821), Parker, C. J. See 3 Bl. Com. 453. ity to use the money, being bound to return it in individuo.^ Originally, a deposit of money was made by plac- ing a sum in gold or silver with a bank or other de- positary, to be returned, when called for, in the same identical coin, and without interest, the depositor pay- ing the depositary a compensation for his care. Later, it became customary to make a deposit for a particu- lar period, on interest, or payable at prescribed periods after notice. In time, " deposit " became a symbolical word to designate not only a deposit in its original sense, but all that class of contracts where money in any form was placed with a bank or banker, to be re- turned in other money on call or at a specified period, and with or without interest. The transaction, in this figurative use of the term, was in reality the same as a " loan " of money between individuals." Deposits made with bankers may be divided into two classes: that in which the bank becomes bailee of the depositor, the title to the thing remaining with the latter; and that kind of deposit of money, pecul- iar to banking business, in which the depositor, for his own convenience, parts with title to his money, and lends it to the banker, who, in consideration of the loan and the right to use the mone.y for his own profit, agrees to refund the amount, or any part thereof, on demand." When the bauker'specially agrees to pay in bullion or coin he must do so or answer in damages for its value. But where the deposit is general, and there is no special agreement proved, the title to the money deposited passes to the bank, tl^e transaction is un- affected by the character of the money in which the deposit was made, and the bank becomes liable for the amount as a debt, which can be discharged only by such nioney as is a legal tender. . When a merchant deposits money with a bank, the rule is, the title to the money passes to the bank, and the latter becomes the debtor to that amount.* Deposits undoubtedl.T may be made with a banker under such circumstances that the conclusion would be that the title remained in the depositor; and in that case the banker would become the bailee of the de- positor, and the latter might rightfully demand the identical money deposited as his property; but where the deposit is general, and there is no special agree- ment proven inconsistent with such theory, the title to the deposit passes to the banker, and he becomes liable for the amount as a debt which can be dis- charged only by a legal payment. . An agreement to refund all or part of a general deposit may be ex- press or implied; if express, it may be to refund with or without interest. The fact that the depositary agreed to pay interest affords strong evidence that the 1 Story, Bailm. § 88; State v. Clark, 4 Ind. 316 (1853). " Curtis V. Leavitt, 15 N. Y. 166 (1857), Shanklapd, J. > Marine Bank (of Chicago) v. Fulton Bank (of New York), 2 Wall. 256 (1864), Miller, J. Quoted, Phcenix 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 Nev. 152. * Thompson v. Eiggs, 5 Wall. 678, 680 (1866), Clifford, J. Quoted, 92 U. S. 370, post. DEPOSIT 843 DEPOSIT title to the money passed out of the depositor by the act of making the deposit.* The power to receive deposits includes all the kinds know-n and customary in the banking business. Na- tional banks have power to receive special deposits gratuitously or otherwise: and when received gratui- tously they are liable for their loss by gross negli- gence. When any such bank has habitually received such deposits, this liability attaches to a deposit re- ceived in the usual way. . . The term " special de- posits " includes money, securities or other valuables delivered to banks, to be specially kept and redeliv- ered; it is not confined to securities held as collaterals to loaus. . The cluef, in some cases the only, de- posits received by the early banks were special de- posits of money, bullion, plate, etc., for safekeeping, to be specifically returned to the depositor. . . The definition of the business of banks of deposit, in the ene.yclopedias, embraces the receiving of the money or valuables of others, to keep until called for by the depositors. And although, in modern times, the busi- ness of receiving general deposits has constituted the principal business of the banks, it cannot be said that receiving special deposits is so foreign to the banking business that corporations authorized to carry on that business are incapable of binding themselves by the receipt of such deposits.^ Section 5283, Rev. St., which provides that it shall be lawful for a national bank after its failure to "de- liver special deposits," is as effectual a recognition of its power to receive them as an express declaration to that effect would have been. The phrase " special de- posits," thus used, embraces the public securities of the United States.' It is now well settled that if a bank be accustomed to take special deposits, and this is known and ac- quiesced in by the directors, and the property depos- ited is lost by the gross carelessness of the bailee, a liability ensues in like manner as if the deposit had been authorized by the terms of the charter.' The contract between a bank and its depositor is that of debtor and creditor. Money held by a depos- itor in a fiduciary capacity does not change its char- acter by being placed to his credit.* The right of the depositor is a chose in action, and his check does not transfer the debt, or give a lien upon it to a third person, ivlthout the assent of the depositary.' I Scammon v. Kimball, 92 U. S. 369-70 a875), Clif- ford, J. s Pattison v. Syracuse Nat. Bank, 80 N. Y. 82, 89, 94 (1880), cases, JEJapallo, J. Earliest case, Foster v. The Essex Bank, 17 Mass. 478, 498 (1821), Parker, C. J.,— in which the special deposit was a cask containing 853,000 in gold coin. s First Nat. Bank of Carlisle v. Graham, 100 U. S. 703, 702 (18r9), Swayne, J.: 79 Pa. 106. See further Prather v. Kean, 89 F. E. 498 (1887): 20 Am. Law Reg. 93; 16.97-98 (1887), cases. * Chesapeake Nat. Bank v. Connecticut Mut. Ins. Co., 104 U. S. 64-71 (1881), cases. See 37 N. J. E. 18. = Nat. Bank of the Republic v. Millard, 10 Wall. 167 (1869), cases; Rosenthal v. The Mastin Bank, 17 Blatch. 3»-23 (1879), cases. General deposits held by a bank are part of its gen- eral fund, and loaned as other moneys. The banker agrees to discharge his indebtedness by honoring checks drawn upon the deposit. When a check on the bank itself is offered, the bank may accept or reject it or receive it conditionally. If, being genuine, it is received as a deposit, when there are no funds, the case is an executed contract, and the thing done can- not be repudiated. Depositors must comply with all reasonable regulations as to depositing and drawing, * It seems to be well settled that a mere check or draft does not operate as an assignment or appropria- tion of the drawer's deposit in favor of the payee be- fore acceptance by the bank, but the doctrine has not been extended beyond instruments of that character, drawn in the ordinary form; nor to a transaction not restricted to the very terms of such paper.^ A general deposit in a bank is so much money to the depositor's credit. It is a debt to him by the bank, payable on demand to his order; not property capable of identification and specific appropriation. A check upon a bank in the usual form, not accepted or certi- fied by its cashier to be good, does not constitute a transfer of any money to the credit of the holder; it is simply an order which may be countermanded, and payment forbidden by the drawer, at any time before it is actually cashed. It creates no lien on the money which the holder can enforce against the bank. It does not of itself operate as an equitable assign- ment,' q. V. A depositor in a bank who sends his pass-book to be written up and receives it back with entries of credits and debits, and his paid checks as vouchers for the latter, is bound, with due diligence, to examine the pass-book and vouchers, and to report to the bank without unreasonable delay any errors which may be discovered in them ; and if he fails to do so, and the bank is thereby misled to its injury, he cannot after- ward dispute the correctness of the balance shown by the pass-book.' See further Bank, 2; Check; Tax, 2. Deposit, certificate of. A vtriting, is- sued by a bank, attesting that the person named has deposited money with it. A negotiable security, upon the same footing as a promissory note. It is treated as money.' See Cur- rency. 1 See Thompson v. Eiggs, Scammon v. Kimball, ante; Fu-st Nat. Bank of South Bend v. Lanier, 11 Wall. 375 (1870); First Nat. Bank of Cincinnati v. Burkhardt, 100 U. S. 689 (1879); Chesapeake Nat. Bank v. Connecticut Mut. Ins. Co., 104 id. 54, 64-71 (1881), cases. 2 Coates V. First Nat. Bank of Emporia, 91 N. Y. 26 ' Florence Mining Co. v. Brown, 124 U. S. 391 (1888), Field, J. * Leather Manufacturers' Bank v. Morgan, 117 U. S. 100 (1830), cases, Harlan, J. See same case. Account, 1. On relation of depositors to bank, see further Fletcher v. Sharpe. Sup. Ct. Ind. (1887), cases: 26 Am. Law Reg. 71; ib. 74-S2 (1887), cases. As to fiduciary depositors, see ib. 25, 29-30 (1887), cases. sWelton V. Adams, 4 Cal. 39 (1854); Gregg u. Union DEPOSIT 346 DEPOSITION By virtue of the assurance given, the credit of the bank is added to the credit of the original debtor.' A certificate is a subsisting chose in action and rep* resents the fund it describes, as in cases of notes, bonds, and other securities; so that a delivery of it as a gift constitutes an equitable assignment o£ the money.* When in the usual form, payable to the order of the depositor, is in the nature of commercial paper, and the payee is chargeable upon his indorsement thereof. Its negotiable character is not affected by the fact that a demand is necessary before an action can be main- tained thereon ; nor is it changed by a provision therein by which it is made payable in current bank-notes. . . An indorser of the certificate is liable as such, until actual demand made; and the holder is not charge- able with neglect for omitting to make such a demand within any particular time.^ A certificate of deposit is, in effect, a negotiable promissory note; and the statute of limitations begins to run from the date of issue, without the necessity of demand of payment.* If lost before it is indorsed by the depositor no title vests in the finder, and the bank cannot require of the depositor indemnity against possible future loss, al- though the money by the terms of the certificate is payable '* on return of the certificate." ^ By implication of law, contains a promise to repay the money, and cannot be varied by parol evidence.* Deposit oompany. An association which, having provided a building con- structed for protection against loss by theft or fire, and having furnished the same with boxes or safes for the deposit of securities, jewels, papers, etc., invites the public to lease the boxes or receptacles, the association insuring the safety of deposits against the acts of all persons except the depositors them- selves. A fuller name is " safe deposit and trust company." Where bonds were found to be missing from a box so rented the company was held bound to explain the absence of the bonds, and, in default of evidence of negligence or guilt in the depositor, to pay him the value of the bonds.' The robbery by burglars of securities deposited for safe-keeping in the vaults of a bank is not proof of negligence on the part of the bank.s County Nat. Bank, 87 Ind. 239 (1882), cases; Poorman V. Woodward, 21 How. 276 (1858); 27 N. Y. 378. 1 Downey v. Hicks, 14 How. 249 (1852). ( = Basket v. Hassell, 107 XT. S. 614 (1888). 3 Pardee v. Fish, 60 N. Y. 266, 268-69 (1876), cases. ' Carran d. Witter, Sup. Ct. Wis. (1887), cases, Lyon, J. ; 35 Alb. Law J. 383 (1887), cases. ' Citizens' Nat. Bank v. Brown, Sup. Ct. Ohio (1887), cases: 36 Alb. Law J. 36. » Lang «. Straus, Sup. Ct. Ind. (1887), cases: 26 Am. Law Reg. 115. See generally 24 Cent. Law J. 196 (1887), ' Safe Deposit Co. v. Pollock, 85 Pa. 391 (1877). 8 WyUe u Northampton Bank, 119 U. S. 361 (1886). Deposit in lieu of bail. One charged with a crime or tort in some cases may make a deposit of money or valuables, instead of furnishing bail for his appearance at the hearing or trial.i Deposit of title deeds. Pledging the title deeds to the owner's estate as security for the repayment of a loan. In effect an equitable mortgage, q. v. DEPOSITION.^ Sometimes is synony- mous with " affidavit " or "oath;" but, in its more technical and appropriate sense, is limited to the written testimony of a witness given in the course of a judicial proceeding, at law or in equity. ^ "Deposition" is a generic expression, embracing all written evidence verified by oath, and thus includes "affidavits;" but, in legal language, a deposition is evidence given by 'a witness under interrogatories, oral or written, and usually written down by an ofid- cial person; while an affidavit is the mere voluntary act of the party making the oath, and is generally taken without the cognizance of hihi against whom it is to be used. Yet the terms may be convertible, as in the rules at law of the Supreme Court.* Depose. Originally, to give testimony under oath, to testify; in present usage, to give testimony which is officially written down for future use. Deponent. One who, being under oath, testifies in writing. A deponent is 'a witness who depones (deponif), i. e., places his hand upon the book of the Evangelists while he is being bound by the obligation of an oath. Depose, deponent, and deposition related, originally, then, to the mode in which the oath was administered, not to the testimony itself as oral or written.^ Depositions are taken of witnesses out of the juris- diction, or aged, infirm, sick, or going abroa.d, upon written interrogatories, the answers to be used as evi- dence in the event of their death or departure before trial, or of their inability to attend the trial. Testi- mony in equity, and much in admiralty and divorce, is tiius taken, as is also testimony at preliminary ex- aminations in criminal causes; but, in the last case, is not admissible at trial, except, perhaps, by consent of the accused.' See further Dedimus. The testimony of any witness may be taken in any civil cause depending in a district or circuit court by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hun- 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 ' See Commercial Warehouse Co. v. Graber, 45 N. Y. 394 (1871); 31 Hun, 231; 18 Abb. N. Cas. 333-34 (1886), cases. " L. de-ponere, to put, place; to lay down or aside. » State V. Dayton, 33 N. J. L. 54 (1850), Green. C. J. * Stimpson v. Brooks, 3 Blatoh. 456-57 (1856), Betts, J. ' [Bliss V. Shuman, 47 Me.252 (1859), Appleton, J. »See3Bl. Com. 383.438. DEPOSITUM 347 DERAIQN which the case is to be tried, or to a greater distance than one hundred miles from the place, of trial, before the time of trial, or When he is ancient or infirm.' Such deposition can only be read upon proof that the attendance of the witness upon the trial cannot be procured." Cases in equity are taken to the Supreme Coiu't from the circuit courts, and the district courts sitting as cir- cuit courts, by appeal, and are heard upon the proofs sent up with the record. "The mode of proof," by section 862, Rev. St., " shall be according to the rules now or hereafter prescribed by the supreme court, except as herein specially provided." The circuit courts are not now by law required to permit the ex- amination of witnesses orally in open court upon the bearing of cases in eqmty. But if such practice is adopted, the testimony must be taken down, or its sub- stance stated in writing and made part of the record.' Formerly, in England, the mode of examlniiLg wit- nesses in equity was by interrogatories in writing. . . At the December term, 1861, of the Supreme Court, a new practice was introduced. Kule 67 was so amended as to make oral examination the rule, if either party desires it, and examination by written interrogatories the exception.* Congress has not empowered the district and cir- cuit courts to make niles touching the mode of taking testimony. . . Depositions taken under a State law in conflict with the provisions of the act of Congress in relation thereto are not admissible in evidence.' A deposition filed is the property of the court; if the testimony is material it should be used. Some courts hold that it is as competent for one party to read a deposition filed by the other party as to intro- duce a witness summoned in his behalf." See Inter- EOOATORY. DEPOSITUM. L. A naked bailment without reward, and without any special un- dertaking.' So called because the naked custody is given to an- other,* See Deposit, 1; Depot, 1. DEPOT. 1. In French law, dipdt is the depontum of the Roman and the deposit of the English law. May mean a place where military stores or supplies are kept.* > E. S. §§ 863-75. '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). s Blease v. Garlington, 92 U. S. 1, 4-^ (1875), Waite. Chief Justice. * BischoCEscheim v. Baltzer, 20 Blatch. 331 (1882) ; s. c. 10 F. E. 3. » Randall v. Venable, 17 F. R. 163 (1883). «Rucker v. Reid, 36 Kan. 410 (1887). As to rules of practice, see 22 Cent. Law J. 581 (1886), cases. Taking before U. S. commissioner, 1 Kan. Law J. 345-49 (1885) — Wash. Law Rep. ' Foster v. Essex Bank. 17 Mass. 498 (1821), Parker, C. J.; 33 Ala. 55; 2 Bl. Com. 453. 8 Story, Bailm. § 43. 'Caldwell's Case, 19 Wall. 264 (1873). 3. A place where passengers get on and off the cars, and where goods are loaded and unloaded. All ground necessary or convenient and actually used for these purpo.ses is included.i See Railroad; Station, 2. DEPRIVE. Referring to property taken under the power of eminent domain, means the same as "take." 2 While the Fourteenth Amendment ordains that no State shall "deprive any person of lite, liberty, or property without due process of law," no definition of the word " deprive " is found in the Constitution. To determine its signification, therefore, it is necessary to ascertain the effect which usage has given it when employed in the same or a like connection.' See further Take, 8. DEPITTY.* One who acts officially for another; the substitute of an officer — usually of a ministerial officer. Deputize. To appoint another to act in one's own place or office. General deputy. A deputy who is em- powered to perform all the ordinary duties of an office. Special deputy. A deputy chosen to do a particular g.ot or acts. An attorney -general, a district-attorney, a collector of revenue, a mayor, a constable, a marshal, a sheriff, a minister or consul, and other officers, are sometimes said to act by deputy. There are two kinds of deputies of a sheriff; a gen- eral deputy or under sheriff who by virtue of his ap- pointment has authority to execute all the ordinary duties of the ofBce of sheriff. He executes process without special power from the sheriff, and may even delegate authority for its execution to a special deputy, who is an officer pro hoc vice, to execute a particular writ on some certain occasion. He acts under a spe- cific, not a general, appointment and authority. ' The deputy of a ministerial officer may do whatever his principal could do under the curcumstances of eact case.' See Delegatus. DERAIGN.' Originally, to confound, disorder ; to turn out of course ; to displace. In old common lnw, to prove by disproving. 1 Fowler v. Farmers' Loan & Trust Co., 6l Wis. 79 (1866); Pittsburgh, etc. R. Co. v. Rose, 24 Ohio St. 229 (1873); State v. New Haven, &c. R. Co., 37 Conn. 163 (1870); 34 La. An. 624; 110 U. S. 082. sShai-pless v. Philadelphia, 21 Pa. 167 (1858); Grant V. Courter, 34 Barb. 23S (1857). » Munn V. Illinois, 94 U. S. 123 (1876), Waite, C. J. e or conflgiu-ation of any article of manufacture,— one or all of these the law has in view. And the thing invented or produced, for which ' Southvrick V. Southwick, 97 Mass. 338 (1867), Bige- low, C. J. ; Magrath v. Magrath, 103 id. 679 (1870). "Coffin V. Jenkins, 3 Story, 113 (1841), Story, J. >Cloutman v. Tunison, 1 Sumn. 375 (1883), Story, J.; The Mary Conery, 9 F. R. 223 (1881); 3 Kent, 155. « Hanson v. South Scituate, 118 Mass. 343 (1874). » JJe Zimmerman, 30 F. E. 176 (1887). « Nichols V. Allen, 130 Mass. 218 (1881), cases, Gray, Chief Justice. ' Commonwealth v. Morse, 2 Mass. *131 (1806). « [Binns v. Woodruff, 4 Wash. 52 (1821), Washing- ton, J. a patent is given, is that which gives a peculiar or dis- tinctive appearance to the manufacture, or article to which it may be applied, or to which it gives form. The law contemplates that giving new and original appearances to a manufactured article may enhance its salable value, enlarge the demand for it, and be a meritorious service to the public. It is the appear ance itself, no matter by what agency caused, that constitutes mainly, it not entirely, the contribution to the public which the law deems worthy of recom- pense, i The test of identity of design plainly must be same- ness of appearance; and mere difference of lines in the drawing or sketch, a greater or smaller number of lines, or slight variances in configuration, if sutBcient to change the effect upon the eye, will not destroy the substantial identity It is not essential that the appearance should be the same to the eye of an expert. If, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two de- signs are substantially the same, it the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.* The differences in designs necessary to take away their identity are such appearances as would attract the attention of an ordinary observer, giving such at- tention as a purchaser of the articles, for the pur- poses for which they were intended and purchased, would usually give. There may be an infringement of a patented design without taking the whole of it, but in such cases the part taken must be a part covered by the patent. 2 Design patents stand on as high a plane as utility patents, and require as high a degree of the inventive or originative faculty. In patentable designs a person cannot be permitted to select an existing form, and simply put it to a new use, any more than he can be permitted to take a patent tor a mere double use of a machine; but the selection and adaptation of an ex- isting form may amount to a patentable design, as the adaptation of an existing mechanical device may amount to a patentable invention. ^ See Painting; Patent, 2. An act of Congress approved February 4, 1887 (24 St. L. 337), provides — That hereafter, during the term of letters patent for a design, it shall be unlawful for any person other than the owner of said letters pat- ent, without the license of such owner, to apply the design secured by such letters patent, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or to sell or expose for sale any article of manufacture to which such design or color- able imitation shall, without the license of the owner, have been applied, knowing that the same has been so 1 Gorham Company v. White, 14 Wall. 624-28 (1871), cases, Strong J.: Act 29 Aug. 1842; 5 St. L. 643. See Acts 8 July, 1870, and 18 June, 1874: K. S. §§ 4929-33. ! Dryfoosu Friedman, 18 F. R. 825 (I8S1), Wheeler, J. » Western Electric Manut . Co. u. Odell, 18 F. E. 321 (1883), Elodgett, J. For the rule as to damages for in- fringement, see Dobson v. Hartford Carpet Co., 114 U. S. 439, 445 (1885), cases, Blatchford, J.; Dobson v. Dornan, 118 id. 10, 17 (1886). DESIGNATIO 353 DETINUE applied. Any person violating the proviajons, or either of them, of this section, shall be liable in the amount of two hundred and fifty dollars; and in case the total profit made by him from the manufacture or sale, as aforesaid, of the article or articles to which the design, or colorable imitation thereor, has been applied, exceeds the sum of two hundred and fifty dol- lars, he shall be further liable for the excess of such profit over and above the sum of twohimdred and fifty dollars; and the full amount of such liability may be recovered by the owner of the letters patent, to his own use, in any circuit court of the United States having jurisdiction oi the parties, either by action at law or upon a bill in equity for an injunction to restrain such infringement. Sec. 2. , Remedies by existing law shall not be im- paired; but the owner shall not twice recover the profit made from the infringement. DESIGWATIO. L. Pointing out : des- ignation. Designatio personse. Designation of the person — to a contract. Compare De- SCKIPTIO. Designatio uniixs. See Bzpkbssio, Unius, etc. DESIGNATION". The use of an expres- sion, instead of the name, to indicate a per- son or thing. Compare Demonstration, 3. DESIRE. In a will, where the object is specified, may raise a trust, i See Preca- tory; Want. DESPATCH. See Dispatch. DESPOIL. Imports the use of violence or of clandestine means to deprive a person of something he possesses. ^ DESTINATION. See Arrival; Port, Of destination. DESTROY. To " destroy a vessel " is to unfit her for service beyond the hope of re- . CO very by ordinary means. 3 Destroyed Instrument. See Evidence, Secondary; Lost, 3. Destroyed property. See Mischief, Malicious; Perishable; Res, Perit, etc. DETAINER. A withholding; deten- tion. See Detinere, 1. Restraint of the person, unasseuted to. See Imprisonment. 3. Withholding possession of property from the rightful owner. See Conversion, 3. Forcible detainer. Keeping possession of another's realty by force and without au- thority of law. ' Vandyck v. Van Beuren, 1 Caines, *84 (1803). s [SuBol V. Hepburn, 1 Cal. 268 (1860). = United States v. Johns, 1 Wash. 372 (1806). The original entry may have been peaceable.' Where one, who has entered peaceably upon land, afterward retains possession by force.'' Forcible entry and detainer. See En- try, 1. DETECTIVE. See Decoy; Reward, 1. DETENTION. See Detainer; Impris- onment; Replevin. DETERIORATION. See Perishable; Sound, 3 (1). DETERMINE.^ To end, terminate; to close; to ascertain, settle. 1. To come to an end : as, for an estate for life to detei-mine at death.* 2. To decide : as, to determine a question, a controversy. Compare Define. Determinable. Liable to come to an end : as, a determinable fee, q. v. Determination. The ending of a thing— an action or proceeding, some right or privi- lege ; also, the act of ascertaining a matter of fact or of law ; and, again, the act of de- ciding, and the decision itself. Compare Premeditate. "Determined " and " has become void " both imply that the thing has in effect been brought to an end. But while the former comprehends every mode of terminating or of bringing to an end, the latter applies to termination in one specific mode.^ To "finally determine " refers to a final determina- tion in the absolute sense. When a special tribunal has power to hear and determine a matter, its decision, within the scope of its authority, binds all parties. In this category, for example, are the decisions of land officers." Compare Sewbb; Tbibunai,. DETINERE. L. To hold, keep back, detain. Detinet. He withholds. Detinuit. He withheld (has withheld). Non detinet. He does not withhold. Technical words formerly used in actions of re- plevin to describe the claim, and the denial, that the property was illegally detained. See Detinue; Re- plevin. Compare Debet, Et detinet; Capere, Cepit. DETINUE. An action for depriving one of the possession of personalty acquired originally by lawful means. Thus, if A lends B a horse, and B refuses to restore it, the injury consists in the detaining, not in the orig- 1 See 3 Bl. Com. 179. = Ladd V. Dubroca, 45 Ala. 427 (1871); 71 id. 571; 1 Euss. Cr. 310; 41 111. 285; 4 Bl. Com. 148. ' L. detemiinare, to end, bound: terminus, limit, boundary. * See 2 Bl. Com. 121, 146; 1 Washb. E. P. 380. ' ' [Sharp V. Curds, 4 Bibb, 548 (1817). 'Eector v. Gibbon, 2 McCrary, 286 (1881), cases; Johnson v. Towsley, 13 Wall. 83 (1871). DETINUIT 353 DEVISE d taking: and possession may be recovered by an tion .of detinue. To successfully maintain the ac- >u it is essential: that the defendant came lawfully to possession of the goods; that the plaintiff has a operty in them; that they be of some value; and at they be identified. If the jury find for the plaint- they must assess the value of the several articles, id damages for the detention. The judgment is at the plaintiff recover the goods, or, if they cannot ) had, then their respective values, and the damages carded for the detention.' The plea of non detinet raises the general issue. L some States this action has yielded to the less tech- cal actions of trover and replevin, gg. v, DETENUIT. See Detineke. DETBIMEIfT. See Consideration, 2; >AMAaE; Damages. DETTS. See Actus; Denabius; Ex Visi- atione. DEVAST ATIOIf. Wasteful use of trust roperty ; particularly, the property of a de- eased person. See Devastavit. DEVASTAVIT.^ L. He has wasted. ;he technical name for waste by an execu- or or an administrator; occasionally, ex- ravagance or misapplication of assets by ay trustee.' A wasting of assets ; any act or omission, iuy mismanagement, by which the estate uflei-s loss.* A waste of the estate; as, payment by an executor if his private debt with assets, the payment not being Qtended to replace money advanced on account of lebts of the testator.' One who has reasonable ground to believe that a rustee is going to misapply assets can take no advan- age of his own act of connivance.' The assets or their proceeds, as far as they may be raced into the hands of persons affected with notice pf the misapplication, may be followed and recov- ired.' See Bona, De bonis propriis. DEVELOP. See Mineral; Mine; Op- 5EATE. DEVEST. See Vest. DEVIATIOM". In marine insurance, a voluntary departure, without necessity or reasonable cause, from the usual course of ;he voyage.' Originally, only a departure from the ;ourse of the voyage ; now, a material de- 5 69^-711, 906. ■ 3 Bl. Com. 151-52; Story, Eq. » DSv-as-ta'-vit. > See 2 Bl. Com. 508; 3 id. 292; 71 Ala. 240. « [Ayers v. Lawrence, 69 N. Y. 197 (1874); Clift V. Vbite, iJ id. 531 (1855): 2 Williams, Exec. 1629. s smith V. Ayer, 101 U. S. 327-28 (18T9), cases. ' 1 Story, Eq. §§ 580-81. ' [Coffin V. Newburyport Ins. Co., 9 Mass. *447 (1812). (38) parture from or change in the risk insured against, without just cause.i Unnecessary delay may be tantamount to a devia- tion. It is understood as part of the contract that the voyage is to be prosecuted in the usual, ordinary route, and the business attended to with at least ordinary diligence. The shortness of the time, when delay is really intended, is immaterial.^ Turning aside to save the lives of persons upon a distressed vessel is not a deviation." Nor is it to touch and stay at a port out of the course of the voyage, it such departure is within the usage of the trade. When a bill of lading provides that the goods are to be carried from one port to another, prima facie a direct voyage is intended; butthis may be controlled by usage. Established usages relating to a voyage are impliedly made part of the contract, if nothing is expressed to the contrary.* See Touch. DEVICE. See Equivalent, 3 ; Patent, 3. DE VIS ABE. L. To separate, divide, distribute: to dispose of property by will; to devise. Devisavit vel non. Did he make a de- vise or not ; did he make a will. An issue, directed by a court of probate or other court of equity, to be tried by a jury in a court of law, to test the validity of a writing pur- porting to be a will, when it is alleged, and by prima facie proof established, that there was fraud, undue influence, or incapacity in the deceased, at the time of the making of the instrument. See Influence; Insan- ity, 3 (5). The right of an executor to costs in an issue de- pends upon the question whether the litigation is for the benefit of those entitled to the estate.' DEVISE. 1, V. Originally, to divide or distribute property; now, to give realty by will. See Devisare. 3, n. A disposition of real property, con- tained in a man's last will and testament. ^ A testamentary disposition of land.' In England, an appointment of particular lands to a particular devisee,— in the nature of a conveyance by way of appointment.' ' Wilkins v. Tobacco Ins. Co., 30 Ohio St. 341 (1876): 2 Pars. Mar. Ins. 1. 2 Cofftn V. Ins. Co., ante; 7 Craneh, 26; 8 Wheat. 159; 8 id. 291; Pet. C. C. 98; 3 Kent, 31»-14. 8 1 Sumn. 400; 2 Wash. 80; 1 Newb. 449; Sprague, 141. See generally 15 Am. Law Eev. 108-20 (1831), cases. * Hostetter v. Gray, 11 F. E. 181 (1882), cases. 'Sheetz's Appeal, 100 Pa. 197 (1882). See generally 18 Cent. Law J. 83. » [2 Bl. Com. 372. ' Fetrow's Estate, 58 Pa. 427 (1868). 8 Harwood v. Goodright, 1 Cowp. 90 (1774), Mans- field, J.; 17E. L. & Eq. 198. DEVISE 354 DICTUM Devisor.i He who gives realty by will. Devisee. He to whom it is given. But "devise "is often used in the sense of "be- queath" and " bequest," 'as referring to a legacy of personalty. In doubtful cases it is safest to adhere to the technical meaning, on the presumption that the testator used the word in that sense; but this rule will give way when it clearly appears that he understood and used the word in the popular sense.^ Contingent devise. When the vesting of the interest is made to depend upon the happening of some future event; in which case, if the event never occurs, or until it oc- curs, no estate vests. Vested devise. A devise which is not subject to a condition, precedent or unperformed. See Vest, 2, Vested. Executory devise. Such a disposition of lands by will that no estate vests at the death of the devisor, but on some future con- tingency.' A limitation by will of a future estate or interest in lands or chattels.* Such a limitation of a future estate or in- terest in lands as the law admits in the case of ' a will, though contrary to the rules of limitation, in conveyances at common law.^ Not, a mere possibility, but a substantial interest, and in respect to transmissibility stands on the same footing with a contingent remainder. « By it a remainder may be created contrary to the general rule, on the supposition that the testator acted without advice. . . An executory de,yise differs from A " remainder " in that it needs no particular estatp to support it; by it a fee-simple or other less estate may be limited after a fee-simple; and by means of it a remainder may be limited of a chattel-interest, after a particular estate for life.' :A devise in future to an artificial being to be created is good as an executory devise.^ Although an estate may be devised to one in fee- simple or fee-tail, with a limitation over by way of an executory devise, yet, when the will shows a clear purpose to give an absolute power of disposition to the first taker, the limitation over is void.' 1 DS-viz'-or; d5v-I-zee'. "Ladd V. Harvey, 31 N. H. 528 (1850); Fetrow's Es- tate, 58 Pa. 487 (1868); 21 Barb. 561; 13 id. 109. » [2 Bl. Com. 173. * Brown's Estate, 38 Pa. 294 (1861). 'Feame, Cont. Rem. 386; Jarman, Wills, 864. » Medley v. Medley, 81 Va. 268-78 (1886), cases. ' 2 Bl. Com. 173-75; Doe u Considine, 6 Wall. 474-75 (1867); 60 Conn. 407; 2 Mich. 296; 52 N. H. 278; 11 Wend. 878; 31 Barb. 568; 2 Washb. E. P, 679. sQuld V. Washington Hospital, 93 V. S. 313 (1877), cases; 2 Story, Eq. §§ 1146, 1160. ■Howard v. Carusi, 109 V. S. 730 (1883); Hoxsey u Hoxsey, 37 N. J. E. 22 (1883); 16 S. 0. 385. " If there be an absolute power of disposition 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 without lawful issue, the remainder over, or the re- mainder over the property which he, dying without heirs, should leave, or without selling or devising the same, — in all such cases the remainder over is void as a remainder because of the preceding fee, and it is void as an executory devise because the limitation is inconsistent with the absolute estate or power of dis- position expressly given or necessarily implied by the will." ' See Accumulation; Bequest; Die, Without chil- dren; Lapse; Legacy; Eemaindeb; Eesiduaby^ Wiu., 2. DEVOLUTION. 1. Transfer to a suc- cessor in office, S. A passing from a person dying to a per- son living: as, the devolution of a title.2 "Devolution by law " occurs when the title is such that an heir takes under it by descent from an " an- cestor " according to the rules of law applicable to the descent of heritable estates; and in all cases of de- scent, the estate of the successor is imme4iately " derived " from the " ancestor " from whom the es- tate descends.' DI. See Dis. DIAGRAM. See Book, 1. DICE. See Game, 2. DICTA. See Dictum. DICTATE. To pronounce orally what is to be written down by another at the same time; as, to dictate a will.* See Holo- graph. DICTION AET. See Definition ; Word. No meaning of a word, which has received a con- struction by law or uniform custom, can be adopted from the dictionaries in conflict with that construction. And where a word, as used, is reconcilable with law or established custom, a different meaning cannot be given to it upon the authority of a lexicpgrapher.* The dictionary clause of a statute is the section which defines what persons, places, things, etc., shall be included within the terms of the statute.^ DICTUM. L. A saying, observation,, remark. Plural, dicta. 1. A voluntary statement ; a comment. Gratis dictum. A gratuitous remark. A statement one is not required to make, and 1 4 Kent, 271. = Parr v. Parr, 7 Eng. Ch. *64S (1833). s Earl of Zetland v. Lord-Advocate, 3 Ap. Cas. 520 (1878). "Devolution of liability," 61 Wis. 380. In Louisiana an appeal may be " devolutive " or suspen- sive, 21 La. An. 295; 30 F. E. 538. ' [Prendergast v. Prendergast, 16 La. An. 220 (1861); Hamilton v. Hamilton, 6 Mart. 143 (1827). » State ex rel. Belf ord v. Hueston, 44 Ohio St. 6 (; Spear, J. » See R. S. SS 1-5, 5013; 1 Shars. Bl. Com. 87. DICTUS 355 DIE for which he is not liable in damages for in- jury traceable thereto.i As, an assertion by a vendor that his land is fit for a, certain purpose, or is worth so much, cost so much, or that he has refused so much for it.' See Cavbat, Emptor; Commehdatio. 2. An opinion expressed by a judge on a point not necessarily arising in a case.2 Dicta are opinions of a judge which do not embody She resolution or determination of the court, and, being made without argument or full consideration, Eire not the professed deliberate determinations of the judge himself.' Obiter dicta. Such opinions, uttered " by the way," not upon the point or question pending, but as if turning aside for the time from the main topic to a collateral subject.3 Often, simply, obiter or an obiter. An expression of opinion upon a point in a case, argued by counsel and deliberately passed upon by the court, though not essential to the disposition of the case, if a dictum at all, is a " judicial " dictum as dis- tinguished from a mere obiter dictum^ i. e., an expres- sion originating alone with the judge who writes the Dpinion, as an argument or illustration.* To make an opinion a decision there must have been an application of the judicial mind to the precise c[uestion necessary to be determined in order to fix the rights of the parties. Therefore the Supreme Court has never held itself bound by any part of an opinion which was not needful to the ascertainment of the question between the parties.' "The case called for nothing more; if more was in- tended by the judge who delivered the opinion, it was purely otttcr."' Dicta are not binding as precedents; at most they receive the respect due to the private opinions of the judges by whom uttered.' See Dbcision; Opinion, 3. DICTUS. See Alias. DIE; DYING; DEATH. In several phrases, have a technicaJ meaning : Die by his own hand or by suicide, [n policies of life insurance, used in a proviso exempting the company from liability. In such case the words mean: (1) That if the as- sured, being in the possession of his ordinary reason- ingfaculties, from any cause and by any means, inten- tionally takes his own life, there can be no recovery; 'Medbury ti. Watson, 6 Mete. 259 (1843); Gordon v. Parmelee, 2 Allen, 214 (1881). ."State V. Clarke, 3 Nev. 572 (1867), Beatty, C. J. "Eohrback v. Germania Fire Ins. Co., 62 N. T. 68 ,1875), rolger, J. »Buchner v. Chicago, &o. E. Co., 60 Wis. 267-69 1884), Cassoday, J. 'Carroll v. Lessee of Carroll, 16 How. 287 (1853), Jurtis, J.; 6 Wheat. 399. 'United States v. County of Clark, 96 U. S. 218 1877), Strong, J. ; 107 id. 179. 'SeelTF.K. 48.3, 425. (2) that if the death is caused by the voluntary act of the assured , he knowing and intending that death shall be the result of his act, but when his reasoning facul- ties are so far impaired that he is not able to under- stand the moral character, the general nature, oonse- sequences, and effects of the act; or when he is impelled thereto by an insane impulse, which he has no power to resist,— such death is not within the con- templation of the parties, and the insurer is liable.' The proviso refers to an act of crtmma! self-de- struction; it does not apply to an insane person who takes his own lite intending to take it, and knowing that death would be the result.' "Die by his own hand," "die by suicide," and " commit suicide," are synonymous with volimtary suicide. 2 But the addition of the condition " sane or insane " will relieve the insurer, whatever be the con- dition of mind of the insured. 'i ' In 1872, when Terry's Case was decided, there was a conflict of opinion as to the interpretation to be placed upon the words "die by his own hand" or "die by suicide." All authorities agreed that the phrases did not cover every possible case of self-destniction in a blind frenzy or under an overwhelming insane im- pulse. Some courts held that they included every case in which a man, sane or insane, voluntarily took his own life; others, that insane self-destruction was not within the condition. . If a man's reason is so clouded or disturbed by insanity as to prevent his un- derstanding the real nature of his act, as regards either its physical consequence or its moral aspect, the case appears to come within the forcible words uttered by the late Mr. Justice Nelson, when Chief Justice of New York, in the earliest American case upon the subject: " Self-destructionby a fellow-being, bereft of reason, can with no more propriety be as- cribed to his own hand than to the deadly instrument that he may have used for the purpose; "and, whether it was by drowning, poisoning, hanging or other man- ner, " was no more his act, in the sense of the law, than if he had been impelled by irresistible physical power. " * Die in consequence of a violation of law. Expresses another condition under which a policy of life insurance will be ren- dered void. In a recent case It was held that so long as there was a violation of law on the part of the assured, and death as its result, it was immaterial in what manner the death was produced, excepting that there must 1 Mutual Life Ins. Co. v. Teny, 15 Wall. 583 (1872), Hunt, J. ; 1 DUl. 403. ' Bigelow 0. Berkshire Life Ins. Co., 93 U. S. 286 (1876), cases; Connecticut Mut. Life Ins. Co. v. Groom, 86 Pa. 96-98 (1878), cases; Cooper v. Massachusetts Life Ins. Co., 102 Mass. 228 (1869), cases; Knights of the Golden Rule v. Ainsworth, 71 Ala. 444-49 (1882), cases. ' Charter Oak Life Ins. Co. v. Eodel, 96 U. S. aS'i (1877), cases. ' Manhattan Life Ins. Co. v. Broughton, 109 U. S. 127, 131 (Nov. 6, 1883), cases, Gray, J., quoting Breasted v. Farmers' Loan & Trust Co., 4 Hill, 75 (1843). DIES 356 DIGEST have been a direct connection between the criminal act and tlie death, i In such case " violation of law " means crime; and " known violation of law " indicates a voluntary crim- inal act. The burden of proof is upon the insurer.* Death from suicide is not a death "In violation of the criminal laws " of New York.^ Bie without children, heirs, or issue. In a will, as applied to realty, prima facie import an indeflnite failure of issue, — total extinction of the testator's family, or the death of all his descendants to the remotest generation. - This has uniformily been the construction, when there were no expressions in the will controlling the legal meaning of the words, or pointing to a definite failure of issue.* As applied to personalty, construed to mean dying without heirs living at the death of the devisee.5 When^there is anything in a gift or limitation to show th^t the testator meant a failm-e of Issue in the life-time of the first taker, instead of an indefmits failure, a limitation over is construed as an executory devise in defeasance of a fee-simple, and not as a re- mainer sustained by an estate-tail.' Whether a presumption that a person died without issue will be indulged depends upon the circumstances shown in each case. If, for instance, circumstances are proven indicating non-marriage or childlessness, then death without issue may be presumed.' See fur- ther Definite; Issue, 5. DIES. L. A day; the day. Ad diem. At the day ; on the very day : as, the ad diem demand of a bill. 8 Comperuit ad diem. He appeared at the day. A plea that the defendant in an action upon a bail bond appeared on the day desig- nated in the bond. 'Murray u N. T. Life Ins. Co., 30 Hun, 439 (1883); Bradley v. Mut. Benefit Co., 45 N. T. 422 (1871); ClufE V. Mut. Benefit Life Ins. Co., 95 Mass. 316 (1866). » Cluff V. Mut. Benefit Life Ins. Co., 99 Mass. 336 (1868). » Darrow v. Family Fund Society, 43 Hun, 245 (1886). * See Williams v. Turner, 10 Yerg. 389 (1837); War- dell V. Allaire, 30 N. J. L. 9-16 (1843), cases; Davies V. Steele, 38 N. J. E. 170-73 (1884); 37 id. 81; Grayw. Bridgeforth, 33 Miss. 344 (1857); WUson v. Wilson, 32 Barb. 333 (1860); Be Meroeron's Trusts, 4 Ch. Div, 182 (1876): 20 Moak, 759; Snyder's Appeal, 95 Pa. 177-81 (1880), cases; Magrum v. Piester, 16 S. C. 333-24 (1881); Quigley v. Gridley, 132 Mass. 3" (1882), cases ; Schmavmz V. G6ss, ib. 145 (1883). » Wallis V. Woodland, 33 Md. 104 (1869); Moffat v. Strong, 10 Johns. *I5 (1813). "Williams, E. P., 4 Eawle's ed., 207, cases; 36 Am. Law Eev. 107-15 (1888), cases. ' Bank of Lomsville v. Trustees of Public Schools, 83 Ky. 231-33 (1885), cases. 8 101 U. S. 565. Solvit ad diem. He paid on the day. Sol- vit post diem,. He paid after the day. Pleas to actions on bonds for the payment of money. Dies a quo. The day from which. Dies ad quern. The day to which. The day from which, and the day to which, to com- pute time. Dies domlnieus. The Lord's day — Sun- day. Dies juridieus. A judicial or court day. Dies dominicus nan est Juridieus. Sunday is a non-judicial day — is not a day for court business, except as to the issue and return of criminal process. Whence dies nan. (jurid- ieus): a non-judicial day. Dies non juridieus means only that process ordi- narily cannot issue, be executed, or returned, and that courts do not sit, on that day. It does not mean that no judicial action can then be had.' See Sunday. A civil process awarded or a judgment entered on a holiday is not void.^* See Holiday. Quarto die post. On the fom-th day thereafter. On every return-day in the term the person sum- moned has three days of grace, beyond the day named in the writ, in which to make his appearance, and if he appears on the fourth day inclusive, quarto die post, it is sufBcient. . . The feudal law allowed three distinct days of citation, before the defendant was adjudged contumacious for not appearing. . . At the beginning of each term, the court does not usu- ally sit for the dispatch of business tUl the fourth or appearance day." DIITEBElSrCES. See Option, Contract. DIFFICULTY. 1. As applicable to what takes place between parties, when it results in a breach of the peace or a flagrant violation of law, is in general use, and well understood.* It is of constant application in legal proceedings, and in the reports of adjudicated cases. It is express- ive of a group or collection of ideas that cannot, per- haps, be imparted so well by any other term.< 2. In the performance of a covenant, see Possible. DIGEST. A compilation presenting the substance of many books in one, under an arrangement (usually alphabetical) intended to facilitate reference. It reproduces the rules of the decisions by mere quotation and extract.* ' State V. Eicketts, 74 N. C. 193 (1876). ' Paine v. Fresco, 1 Co. Ct. E. 563 (Pa., 1886), cases. = 3 Bl. Com. 378. * Gainey v. People, 97 111. 279 (1881). ' [Abbott's Law Diet. DIGGING 357 DIRECT Simply a manual of reference to the original cases, vhioli are tlie authority.' See Abridgment; Compilation, DIGGING. May mean excavating, and lot be confined to removing earth as dis- linguished from rock. 2 DIGNITY. In old English law, a species )f incorporeal hereditament. Dignities bear a near relation to oflSoes. They were >riginally annexed to the possession of certam estates n land, and created by a grant of those estates. Al- hough now little more than personal distinctions, they ire still classed under the head of realty.' DILAPIDATION". See Perishable, DILATORY. Said of a defense or a plea ;hat resists the plaintiff's present right of re- ;overy by interposing some temporary objec- ;ion, as that the court has no jurisdiction, ;hat the plaintiff lacks capacity to sue.'' See ?LEA. DILIGENCE. 1. In the law of bailment md of common cairiers of persons is opposed " negligence," and synonymous with ' care " in its three degrees of slight, ordi- lary, and extraordinary or great. * Due diligence. What constitutes " due liligence," in an action to recover damages a,used by negligence, is for the jury; and he burden of proof is with the plaintiff to how the negligence. 6 Ordinary diligence. That degree of care, ittention, or exertion which, under the cir- iumstances, a man of ordinary prudence and liscretion would use in reference to the par- icular thing were it his own property, or in bing the particular thing were it bis own oncern.' " Common " or " ordinary " diligence is that degree f diligence which men in general exert in respect to leir own concerns, and not any one man in partio- lar.9 See further Bailment; Cake; Gabbier; Negli- ENCE. 2. To charge the indorser of a bill or note, pon non-payment by the maker or acceptor, 1 [Bouvier's Law Diet.; 1 Bl. Com. 81. 1 Sherman v. New York City, 1 N. Y. 320 (1848). " 2 Bl. Com. 37; 1 Ld. Eaym. 13; 7 Eep. 1S2. «See3Bl. Com. 301. « See Brand v. Troy, &o. E. Co., 8 Barb. 378 (1850); 19 ow. Pr. 219; 39 Ala. 305. ' Haff V. Minneapolis, &c. E. Co., 14 F. E. 558 (1882). ' Swigert v. Graham, 7 B. Mon. 663 (1817), MarshaU, lief Justice. " City of Eockford v. Hilderbrand, 61 Dl. 160 (1871), leldon, J. ; 71 Ala. 121 ; 5 Kan. 180; 71 Me. 41 ; 6 Mete. ; 25 Mich. 297; 3 Erewst. 14; 31 Pa. 572. the exercise of " diligence," " due diligence," or " reasonable diligence " toward notifying the indorser of the fact of non-payment, is required by the law-merchant. Due diligence. Some effort or attempt to find the party, which the court or judge shall be satisfied is reasonable under the cir- cumstances.i See Pbotest, 3. Diligently inquire. Said of a grand jury, see Inquiry, 3. DIMINUTION. Omission; defect; in- completeness. Where the whole of a record is not properly or not ti-uly certified by an interior court to the court of re- view the party injured thereby may allege or " sug- gest" diminution of the record, and cause it to be rectified " — by means of a writ of certiorari, q. v. DIPLOMATIC OFPICERS. Ambas- sadors, envoys extraordinary, ministers plenipotentiary, ministers resident, commis- sioners, charges d'affaires, agents and secre- taries of legation. 3 See Consul ; Minister, 3. DIPSOMANIA. See Intemperate. DIRECT. 1, adj. Straight; not circuit- ous ; immediate ; the first or original. Opposed (1) to indirect: as, a direct or indirect — confession, contempt, damage, docket or index, examination, interest, in- terrogatory or question, tax, qq. v. Opposed (2) to redirect, the direct over again : as, an examination (g. v.) following a cross-examination. Opposed (3) to cross; as in direct examinar tion ; to collateral : as, the direct line of de- scent; to circumstantial : as, direct evidence ; to contingent or remote: as, a direct interest ; to consequential: as, direct damages. See those substantives. The " most direct route of travel " between two places, within the meaning of a statute giving a shei> iff mileage for carrying prisoners to a penitentiary, is the railroad, although it is sixty-four miles long while the highway is but thirty-five.' See Distance. To " proceed ■ direct " to a port is to take a direct course, without deviation or unreasonable delay; not, to leave port immediately." What cannot be done directly cannot be done indi- rectly." •Bixbyu Smith, 49 How. Pr. 63 (1874); Demond v. Burnham, 132 Mass. 341 (1882); Bank of (Columbia v. Lawrence, 1 Am. L. C. 405; Byles, Bills, 275. a [4 Bl. Com. 390; Tidd, Pr. 1109. "E. S. §1674. .. useful object. The discovery must be reduced to practice,— be embodied in some practical method for rendering it useful." In its naked, ordinary sense, a discovery is not pat- entable. A discovery of a new principle, force, or ' Nat. Bank of Gloversville v. Johnson, 104 U. S. 276- 78 (1881). Matthews, J. See also 14 Ala. 667; 13 Conn. 259; 20 Kan. 450; 42 Md. 592; 48 Mo. 191; 7 N. Y. 343; 18 Barb. 462; 13 Bankr. Reg. 268. 2 F. decouvrir, to uncover. » Martin v. Waddell, 10 Pet. 409 (1842), Taney, C. J. « Johnson v. Mcintosh, 8 Wheat. 572 (1823), Marshall, C. J. ; ButtE V. Northern Pacific R. Co., 119 U. S. 67 (1886); 3 Kent, 379. 6 [Constitution, Art. I, sec. 8, cl. 8. « Burr V. Duryee, 1 Wall. 570 (1663); Le Roy v. Tat- 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 controls his discovery through thp means by which he has brought it into practical action, or their equiva- Tent. It is then an " invention," although it embraces a discovery. JEvery invention may, in a certain sense, embrace more or less of discovery, for it must always include something that is new; but it by no means follows that every discovery is an invention.^ See further Invention; Patent, 2; Principle, 2; Pbooess, 3; Seouke, 1; Telephone. 3. In the law regulating the /granting of new trials and rehearings, refers to evidence brought to light or obtainable after trial or hearing, and which, could it have been pre- sented upon that occasion, would likely have changed the result. Whence "after-discov- ered " and " newly-discovered " evidence. The unconsidered evidence must be such as rea- sonable diligence, on the part of the party aslzing for the rehearing, could not have secured at the former trial; it must be material to its object,. not merely eumulative, corroborative, or collateral; and be such as ought to produce important results on its merits. ^ ■See Audita Querela; Review, 2, Bill of. 4. In the law of limitation of actions, refers to information had of the fact that a mistake was made or fraud perpetrated. In cases of fraud and mistalie a court of equity does not allow the statute of limitations to run until the discovery thereof. This rule has been incorporated into the statute law of many of the States.' See fur- ther Fraud; Limitation, 3; Mistake; Rescission. 5. In the law of bankruptcy, refers to the •disclosure made, or tO be made, by the debtor of the nature, kind, amount, situs, etc., of his assets.* See Bankkdptcy. ' 6. In equity practice, the disclosure by the defendant of matters important to enable the plaintiff to maintain his rights. Procured by a — Bill of discovery. Every bill in equity may be deemed such, since it seeks a disclos- ure from the defendant, on oath, of the truth of the circumstances constituting the plaintiff's case as propounded in his bill. But that which is emphatically called a bill of discovery is a bill which asks no relief but ' Morton v New York Eye Infirmary, 5 Bratoh. 121 (1862), Shipman, J. = Dower v. Church, 21 W. Ta. 57 (1882); Codman v. Vermont, &c. R. do., 17 Blatch. 3 (1879); Whalen v. Mayor o£ NewTorlj, 17 F. E. 72 (1882). 3 West Portland Homestead Association v. Lowns- dale, 17 F. E. 207, 205 (1883); Fritschler v. Koehler, 83 Ky. 82 (1885); Parlser v. Kuhn, Neb., March, 1887, cases: 33 N. W. Rep. 74; 2 Story, Eq. § 1521 o. * See 2 Bl. Com. 483. simply the discovery of facts resting in the ' knowledge of the defendant, or the discovery of deeds, writings, or other things in his pos- session or power, in order to maintain a right or title of the party asking it in some suit or proceeding in another court. ' Not entertainable: where the subject is not.oogni- zable in any court; where the court cannot, in this manner, aid the other court; where the plaintiff is under disability, or has no title to the character in which he sues ; where the value in suit is trivial ; where the plaintiff has no interest in the subject-matter or no title to the discovery required, or where an action will not lie; where some other person than the plaint- iff has a right to call for the discovery; where the policy of the law exempts the defendant from discov- ery ; where the defendant is not bound to discover his own title; where the discovery is not material to the suit; where the defendant is a mere witness; or where a discovery would criminate him.* At common law, .discovery could not be had before trial; hence the resort to chancery. At present it ia had, in effect, by bills of particulars, by attachments in execution, by affidavits of defense, by inspection of books and documents, by examination of one's adver- sary before trial, and by other means specially pro- vided by statute. For want of the power of discovery at law, courts of equity acquired a concurrent jurisdiction with other courts in all matters of account.' See Creditor's Bill; Fishing, 2. DISCBEDI'T. See Credit. DISCREPANCY. See Ambiguity; De- scription. . DISCRETION.* Discernment of what is right or proper; sound sense; deliberate judgment. 1. Capacity or understanding to discern what is right or lawful, so as to be answer- able for one's actions. Presumed to be enjoyed at fourteen — the " age of discretion;" but, really, the law has fixed no arbi- trary period when the immunity of childhood .ceases.^ See Age; Cap ax; Negligence. 2. Foresight, wisdom, sagacity ; judgment, action. Sometimes terraed personal discre- tion: limited to a particular individual. Where there is a trustee in existence, capable of • acting in the exercise of a discretion vested in him by I [2 Story, Eq. § I486; 1 id. § 689; 1 Pomeroy, Bq. §§ 144, 191. '2 Story, Eq. § 1489; 1 Pomeroy, Eq. §§ 195-215. As against a corporation, see Post i. Toledo, &C.E. Co., 144 Mass. 347 (1887), cases; McComb v. Chicago, &c. E. Co., 19 Blatch. 69 (1881); Colgate v. Compagnie Fran- caise, 23 F. R. 82 (1885), cases. 3 3 Bl. Com. 437, 382. See 1 Bouv. 636. ^ L. dis-cernere, to separ£|,te, distinguish, perceive. I I Bl. Com. 463; Nagle v. AUegheny R. Co., 88 Pa. 39 (1879). DISCRETION 363 DISCRETION tlie instrument under which he is appointed, equity ■will not interfere to control that discretion.' A devisee charged with making such provision for designated beneficiaries '* as in his judgment will be ■ best," must exercise a proper and honest judgment in determining the nature and amount of the provision, having due regard to the amount of the estate, and the condition and circumstances of the beneficiaries.^ See Benevolent; Executor; Power, 2; Trust, 1. 3. Applied to public fuactionaries — a power or right, conferred upon them by law, of acting officially in certain ch'cumstances, according to their own judgment and con- science, uncontrolled by the judgment or conscience of others. This discretion, to some extent, is regulated by usage, or by fixed principles. Which means merely that the same court cannot, consistently with its dig- nity, and with its character and duty of administering impartial justice, decide in different ways two like cases. "Whether cases are alike is, of necessity, a question for the judgment of some tribunal.^ An offlcer in whom public duties are confided by law is not subject to control by a court in the exercise of a discretion reposed in him as a part of his official functions.' See Department; Grant, 3; Sewer. 4. In legislation, the deliberate, cautious judgment of the law-making body. The courts will not presume a detrimental exercise of judgment in the legislature. Security against abusive exercise resides in the responsibUity of the law-makers to the public.' See Policy, 1; Public. 5. Equitable determination by a court as to what is just, in a given case. Judicial discretion. A discretion to be exercised in discerning the course pre- scribed by the law; never, the arbitrary will of the judge.6 According to Coke, discernere per legem, quid sit justum: perceiving by or through ■ Nichols V. Eaton, 91 U. S. 784 (1875), cases; Cooper V. Cooper, 77 Va. 203 (1883); Lovett v. Thomas, 81 td. 255 (1885); 78 id. 114; 79 id. MO. ■' Colton V. Colton, 127 U. S. 300 (1888). As to cases m which personal discretion was conferred upon exec- utors and held not transmissible to the administrator de bonis «o«, by such expressions in wills as thmk see, or deem "advisable," "best," "fit," "prudent "judicious," "wise," see Giberson v. G.berson, 43 N. J. E. 116-21 (1887), note, cases: 37 Alb. Law J. 7-» <1888), cases. .„ , ... "Judges of Oneida Common Pleas v. People, 18 ""fGalnlT^son, 7 Wall. 348 (1868); Coun^ of San Mateo v. Maloney, 71 Oal. 208 (1886); 45 ^d. 639; 52 '".Mtimore, &c. R. Co. .. Maryland, 21 WaU. 471 ^^T'topp u Cook, 26 Wend. 152 (1841); Piatt v. Munroe, 34 Barb. 293 (1861). (or according to) the law, what would be just.i Arises only in the exercise of judicial au- thority, which presupposes the existence of some cause or controversy submitted for de- cision in the customary form of judicial pro- ceedings.2 Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law and can will nothing. When they are said to exercise a " discretion," it is a mere legal discretion, a discretion in discerning the course prescribed by law ; and when that is discerned it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for giving effect to the will of the legislature, iu other words to the will of the law." Were the judges to set the law to rights as often as it differs from their ideal of excellence, their correc- tions would not suit those who came after them, and we should have nothing but corrections; there would be no guide in the decision of causes but the discretion of fallible judges in the court of last resort, and no rule by which the citizen might beforehand shape his actions. " The [private] discretion of a judge," said Lord Camden, " is the law of tyrants: it is always un- known; it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best it is oftentimes caprice; in the worst it is every vice, folly, and passion to which human nature can be liable." * The determination or disposition of many matters is committed to the sound discretion of the court; as, amendments to pleadings, and petitions ; contmuances, the order of introducing evidence, the amount of cumulative testimony admissible, the examination of witnesses, the granting or refusing of new trials and of the extraordinary writs, sales and resales of prop- erty; custody of children; allowances for mainte- nance and remuneration. The universal rule of practice is that orders or de- crees involving an exercise of judicial discretion purely are not re-examinable in a coul-t of errors; only a plain abuse of discretion in such cases will be interfered with.' Abuse of discretion, especiaUya " gross " and " pal- pable" abuse (the terms orduiarily employed), to jus- tify an interference with the exercise of discretionary 1 See Faber v. Bruner, 13 Mo. 543 (1860). a States v. Judges, 31 La. An. 1116 (1883). ' Osborn u United States Bank, 9 Wheat. 866 (1884), Marshall. C. J. .Commonwealth v. Lesher. 17 S. & B. *164 (1827), Gibson C J. See also State v. Cummings, 36 Mo. 278 (1805)- Kooke's Case, 3 Coke, 100 (1698); Rex v. Wilkes, 4 Burr. '2639 (1770); 1 id. 560, 671; 34 Ala. 235; 46 id. 310; 4 Iowa, 283; 25 Miss. 226; 1 Heisk. 774. • Pomeroy's Lessee o. Bank of Indiana, 1 Wall. 698 (1868), cases; Exp. Reed, 100 U. S. 23 (1879); Wills v. Russell, ib. 626 (1879); United States u. Atherton, 102 id. 375 (1880); Tilton v. Cofleld, 93 id. 166 (1876). DISCRIMINATION 364 DISORDER power, implies not merely error of judgment, tat perversity of will, passion, prejudice, partiality, or moral delinquency.' DISCRIMINATION. See Citizen; COMMBRCK. DISCUSSION. 1. By the Roman law, a surety was liable for the debt only after the creditor had unsuccessfully sought payment from the principal debtor. This was called the "benefit" or "right of discussion." A like rule obtains in Louisiana. ^ 3. In the sense of debate, see Libeett, Of press, Of speech ; Pkivilege, 4. DISEASE. Within the meaning of a warranty in a policy of life insurance, not a temporary ailment, unless it be such as indi- cates a vise in the constitution, or so serious as to have a bearing upon the general health and the continuance of life, or such as in common understanding would be called a disease.' See Accident, Insurance; Disorder, 1; Epidemic; Heauth; Insanity; Inspection, 1 ; Nuisance; Police, 2; Quarantine, 2; Sound, 2(2); Suicide. DISENFRANCHISE ; DISFRAN- CHISE. See I^ANCHlSE, 2. DISENTAIL. See Tail. DISFIGURE. See Maim, 3. DISGRACE. See Criminate. DISGUISE. A man hiding behind bushes is not "in disguise," within the meaning of a statute which makes the county liable in damages to the next of kin of one murdered by persons in disguise.* See Am- bush. DISHERISON. See Inherit. DISHONOR. To refuse or neglect to accept or to pay negotiable paper at its ma- turity ; also, the failure itself in this respect. Opposed, honor, q. v. The law presumes that if the drawer of a bill of 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 that if the indoraer has not had timely notice the remedy against the parties liable to him is rendered more j)recarious. The consequence, therefore, of neg- lect of notice is that the party to whom it should have > People V. N. Y. Central R. Co., 29 N. Y. 431 (1864); White V. Leeds, 51 Pa. 189 (1865); 21 id. 406; 53 id. 158; 67 id. .34; 14 Hun, 3; 78 N. Y. 56; 15 Pla. 317; 53 Ala. 87. ' La. Civ. Code, arts. 3014-20. ' Cushman v. United States Life Ins. Co., 70 N. Y. 77 (1877), cases. * Dale County v. Gunter, 46 Ala. 143 (1871). been given is discharged from liability.' See Pro- test, 21 DISINHERIT. See Inherit. DISINTEREST. See Interest, 3 (1). DISJOINDER. See Joinder. DISJUNCTIVE. Describes a term or an allegation which expresses or charges a thing in the alternative. Opposed, conjunc- tive. See Or, 3. DISMISS. To send away; to refuse to entertain further ; to send out of court : as, to dismiss a bill in equity for defects in its structure or for insuf&cienoy in law — Borrowed from proceedings in a court of chancery, where the term is applied to the removal of a cause out of court without further hearing. ^ " Dismissed '' refers to the final hearing of a suit ^— the end of the proceeding.^ A bill in equity will be dismissed Where (1) there is a want of certainty in the allegations to show that the plaintiff is entitled to the relief demanded; (2) where the right to relief has been barred by the stat- ute of limitations ; (3) where there has been negligence in seeking relief, unexplained by sufficient equitable reasons and circumstances.* After a decree, whether final or interlocutory, has been made, by which the rights of a defendant have been adjudicated, or such proceedings have been taken as entitle him to a decree, the complainant cannot dismiss his bill without the consent of the defendant.* Whenever it becomes apparent to the court that it has no authority to adjudicate the issue presented, its duty is to dismiss the cause. ^ A dismissal for want of jurisdiction does not con- clude the plaintiff's right of action.^ See Discohtinu- ANCB, 1 ; Prejudice, 2. DISORDER. 1. Disease; physical malady. A person suffering from a " contagious disorder '* may be indicted for exposing himself in a place en- dangering the public health.^ See Disease; Health; Slander, 1. 3. Conduct which disturbs the community. See Peace, 1. Disorderly conduct. Any conduct which is contrary to law.s ' Byles, Bills, 297; Eiggs v. Hatch, Ig F. B. 838,842-50 (1883), cases. = Boscley v. Bruner, 24 Miss. 462 (18B2); 3 Bl. Com. 451, ' 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 U. S. 713 (1883); 69 Ga. 100. "Watson V. Baker, 67 Tex. 60 (1886), cases. ' Smith V. McNeal, 109 U. S. 429 (1883), cases. 'King V. Vantandillo, 4 Maule & S. 73 (1815); King v. Burnett, ib. 272 (1815); Boom v. City of Utica, 2 Barb. 104 (1848). » State V. Jersey City, 25 N. J. L. 541 (1856). DISPARAGEMENT 365 DISPUTE Disorderly house. A house the inmates af which behave so badly as to become a Quisanceto the neighborliood.i Includes any gambling house, dance house, bawdy house, prohibited liquor saloon, or other habitation made obnoxious by the ha- bitual recurrence of fighting, noise, or vio- lence. ^ Tke keeping may consist in allowing sucli disorder as disturbs the neighborliood, or in drawing together idle, vicious, dissolute or disorderly persons engaged in unlawful or immoral practices, thereby endanger- ing the public peace and promoting immorality.' A complaint will be supported by proof that one person was disturbed, if the acts are such as tend to annoy all good citizens.* Disorderly person. A person amenable to police regulation, for misconduct affecting the public. 5 See Behavior. DISPAKAGEMENT. 1. Inequality in rank. In old law, while a female infant was in ward, the guardian could tender a match " without disparage- ment" or inequality: lest she might marry the lord's enemy. The Great Charter provided that the next of kin should be notified of the proposed contract.' 3. Derogation, belittlement ; impeachment. A tenant may not disparage the title in his landlord ; nor may the former owner of property disparage the title he has conveyed. Declarations by the vendor of realty in disparage- ment of the grant are never admissible, nor, geirerally, are the assertions of the seller of a chattel.' See AssiGNMEKT, 2; Declaration, 1; Estoppel; Landlord. DISPATCH. As used in charter-parties, relative to the discharge of vessels, has fre- quently been the subject of definition. Customary or usual dispatch. In ac- cordance or consistently with all well-estab- lished usages of the port of discharge.8 The usual dispatch of persons who are ready to receive a cargo. ' Excludes a custom by which a charterer may de- cline to receive a cargo, because it is advantageous to postpone." "Customary dispatch in discharging "means dis- charging with speed, haste, expedition, due diligence, according to the lawful, reasonable, well known cus- toms of the port of discharge; the same as "usual dis- patch," but not the same as " qmok dispatch," which excludes certain usages and customs.' When there is no undertaking to imload the vessel within a specified time, but she is to be discharged " with all possible dispatch," or " with usual dispatch," or "with the customary dispatch of the port," or " within reasonable time," the freighter must use rear sonable diligence to do his part toward unloading according to the terms and meaning o£ the charter- party.'* DISPAUPER. See Pauper, 3. DISPLACE. In shipping articles, to dis- rate; not, to discharge.' DISPOSE. 1. To alienate, direct the ownership of : as, to dispose of property. Includes to barter, exchange, or partition; is broader than sell.* Under the power " to dispose of the property of the United States," Congress may lease the public lands. The nature of the disposal is discretionary.' "Dispose," said of an insolvent, in an attachment law, Includes any intentional putting of property be- yond reach of creditors.' To convey by advancement is to dispose;' but to mortgage may not be, within the meaning of a statute.' Disposing mind. Testamentary capac- ity, q. V. Compare Jus, Disponendi. 3. To place a dead infant upon a wall in a field is to "secretly dispose" of it.' See Abandon, 2 (3). 3. To decide, determine : as, to dispose of a controversy.'" DISPOSSESS. See Possession, Dispos- session. DISPROVE. See Proof; Bebut. DISPUTE. A fact alleged by one party and denied by the other, with some show of reason ; not, a naked allegation without or against evidence." "Whence disputable,— see Presumption. Matter in dispute. In a statute predi- cating appellate jurisdiction on the value of > State V. Maxwell, 33 Conn. 259 (1866), Hinman, C. J. ' See 1 Bish. Cr. L. § 1106; 4 Bl. Com. 167. 'Thatcher v. State, 48 Ark. 63-64 (1886); 120 Mass. 356- 30 N. J. L. 104. • Commonwealth v. Hopkins, 133 Mass. 381 (1883), cases. 3 See 4 Bl. Com. 169. '2B1. Com. 70. , ^_„^ ' See Roberts v. Medbery, 132 Mass. 101 (1882), cases; Robertson v. Pickrell, 109 U. S. 616 (1883). 8 [Smith V. Yellow Pine Lumber, 2 F. E. 399 (1880). • Lindsay v. Cusimano, 10 F. R. 303 (1882). « Lindsay v. Cusimano, 12 F. R. B07 (1882). » Nelson v. Dahl, 12 L. E., Ch. D. 668, 582-84 (1879); Williams V. Theobald, IB F. E. 468, 473 (1883); Sleeper V. Puig, 17 Blatch. 88-39 (1879), cases; 22 F. E. 790. 3 Potter V. Smith, 103 Mass. 69 (1869). * Phelps V. Harris, 101 U. S. 380 (1879). » United States v. Gratiot, 14 Pet. 538 (1840). • Auerbach v. Hitchcock, 28 Minn. 74 (1881); i 430-57. ' Elston V. Schilling, 42 N. T. 79 (1870). 'Bullene v. Smith, 73 Mo. 16 (1880). » Queen v. Brown, 1 Cr. Cas. Reg. *246 (1870). loSee Exp. Eussell, 13 WaU. 669 (1871); 14 Blatch. 13. " [Knight's Appeal, 19 Pa. 494 (1853), Black, C. J. ! Tex. DISQUALIFY 366 DISTRESS the "matter in dispute" — the subject of litigation, the matter for which suit is brought, on which issue is joined, and in re- lation to which jurors are called and wit- nesses examined. ' Until shown by the record that the sum demanded is not the matter in dispute, that sum will govern in all questions of jurisdiction. . . The amount stated in the body of the declaration is considered — the act- ual matter in dispute as shown by the record, and not the ad danvmim alone. " For the purpose of review the amount is,fixed by the amount of the judgment below, not by the amount of the verdict.' The act of March 3, 1887, excludes from the compu- tation interest accrued up to the date of the suit.' When the record is silent as to the value, it is good practice for the court below to allow affidavits and counter-affidavits of value to be filed under direction from the court.^ Where the value of land in controversy was neces- sarily involved in the determination of a case, and found by the court to be §6,000, to effect an appeal the defendant was not allowed to present affidavits show- ing the value to be 87,000." See Conteovbbst; Ee- AtANn, 2. DISQUALIFY. See Qualipt. DISRATE. See Displace. DISSEISIH". See Seisin. DISSENT. See Assent ; Consent ; Opin- ion, 3. DISSIMILAR. See Similar. DISSOLVE. 1. To put an end to, ter- minate: as, to dissolve a relation; e. g., the marriage relation, v- see Divorce. The dissolution of a partnership (g. v.) does not affect contracts made between the partners and others.'' "Dissolving a corporation" is sometimes synony- mous with annulling its chapter or terminating its ex- istence, and sometimes refers merely to the judicial act which alienates the property and suspends the business of the corporation, without terminating its existence. 8 See Stock, 3 (2). iLee V. Watson, 1 Wall. 339 (1863), Field, J. See 10 La. An. 170; 12 id. 87; 3 Cranch, 159; 3 DaU. 405; 13 Cal. 30; 25'Gratt. 177. "HQton V. Dickinson, 108 U. S. 174-76 (1883), cases; The Jesse Williamson, ib. 309-10 (1883); Bruce v. Man- chester, &c. E. Co., 117 id. 515 (1886); Gibson v. Shu- I feldt, 122 id. 28-40 (1887); 106 id. 578-80; 110 id. 223; 112 id. 227. ' N. Y. Elevated E. Co. -a. Fifth Nat. Bank, 118 tr. S. * Moore v. Town of Edgefield, 32 F. E. 498 (1887). - Wilson V. Blair, 119 U. S. 387 (1886). « Talkington v. Dumbleton, 123 tJ. S. 745 (1887), Waite, Chief Justice^ ' See 3 Kent. 27. « Be Independent Ins, do., 1 Holmes, 109 (1872) ; 2 3. To discharge or relieve from a pro- ceeding which involves a lien or seizure; to open, annul: as, to dissolve an attachment, an injunction, qq. v. 8. As to dissolving parliament, see Pro- ROGUE. DISSUADE. See Justice, Offenses against. DISTAWCE. Is measured in a straight line, " as the crow flies," or on the hori- zontal plane.! May refer to the usually traveled road, = See Aloks ; Course, 1; Dibrot, 1; Near. DISTILLER. Any person, firm, or cor- poration who distills or manufactures spirits, or who brews or makes mash, wort, or wash for distillation, or the production of spirits.' One who produces alcoholic spirits by dis- tillation.* Compare Rectifier. Distilled spirits. The products of dis- tillation, whether rectified or not.5 Unlawful distUling of spirits is sometimes termed "illicit." The business of distilling having been made a, quasi public employment, a distiller's books are quoM rec- ords.' See Cbimujate. Distillery. A place where alcoholic liq- uors are distilled or manufactured ; not, then, every structure where the process of distilla- tion, as of paraffine, is used.' See Condition, Repugnant. DISTRACTED. In Illinois and New Hampshire, expresses a degree of insanity. DISTRAIN. See Distress. DISTRESS.8 Taking a personal chattel out of the possession of the wrong-doer into the custody of the party injured, to procure satisf actiop for a wrong committed." A taking of beeists or other personal prop- Harr., Del., 12-16; 2 Kent, 307. As to notice, see 24 Cent. Law J. 588,(1887), cases. » Leigh V. Hmd, 17 E, C. L. 774 (1829) ; 78 id. • 688; 85 id. *92; 88 id. *350. = Smith V. Ingraham, 7 Cow. 419 (1827). sRevenue Act 13 July, 1866. § 9: 14 St. L. 117. «R. S. § 3247; United States u House No. 3, 8 Eep. 391 (1879). «E. S. §§ 3248, 3289, 3299; United States v. Anthony, 14 Blatch. 92 (1877); Boyd v. United States, ib. 317 (1877). « United States v. Myers, 1 Hughes, 534 (1876); E. S. § 3303. ' Atlantic Dock Qo. v. Libby, 45 N. Y. 502 (1871). ^ F. destraindre, to strain, press, vex extremely: L. distringere, to pull asunder. « a Bl. Com. 6; 44 Barb. 488. DISTRESS 367 BISTRIBUTION irty by way of pledge to enforce the per- 'ormance of something due from the party iistrained upon.' Distrain. To take by distress. Distrainor; distrainer. He who levies a, distress. Distraint. The act or proceeding by which a distress is made. The more usual injury for which a distress may be taken is non-payment of rent; but it is also a remedy where another's animals are found damage-feasant Cg. v.), and for the enforcement of some duties im- posed by statute." At common law all personal chattels are distrain- able, unless expressly exempted. Not distrainable are: (1) Things in which no one can have an absolute property; as, a wild animal. (2) Whatever is in per- sonal use; as, a horse while a man is riding him. (3) Valuable things in the way of trade; as, ahorse standing in a shop to be shod, or at an inn, cloth left with a tailor, grain sent to a mill or a market. These are privileged for the benefit of trade. But all chat- tels foimd upon the premises are distrainable for rent: if not, fraud could be readily practiced. A stranger to the lease may recover from the tenant. (4) The tools and utensils of one's trade or profession: taking these would prevent the owner from serving society. Beasts of the plow and sheep are privileged, dead goods and other beasts not. To deprive the debtor of the means of earning money would defeat the end for which distress is intended. (5) A thing which catanot be returned In its former good plight: a distress being only a pledge, to be restored after the debt is paid. By 2 William and Mary (1691), o. 5, grain and hay may be taken. (6) A thing fixed to the freehold. By 11 Geo. n (1729), c. 19, the landlord may distrain natural products, and harvest them when matured.' See Crop. All distresses must be by day, except of animals doing damage. The distrainor must enter upon the premises; within six months after the lease ends, where the tenant continues in possession. By 8 Anne (1710), c. 14, and 11 Geo. H (1729), c. 19, the landlord may distrain goods carried off the premises clandes- tinely, wherever found within thirty days, unless sold to an innocent purchaser. Once inside the house, the distrainor may break open an inner door; by 11 Geo. H, he may, in the day-time, break open any place to which goods have been fraudulently removed, oath being first made, in the case of a dwelling-house, of a reasonable ground to suspect that such goods are concealed therein.* A distress should be for the whole duty at once ; but if mistake is made in the value of the articles, or if there is not sufficient upon the premises, a second dis- tress may be taken.' By 52 Hen, III (1870), c. 4, taking an unreasonable distress for rent is amercible. The remedy for an ex- cessive distress is by a special action under that stat- ute — there being, at common law, no trespass.^ The things distrained should be impounded. On the way they may be rescued, if the taking was unlawful. Once in the pound, they are in the custody of the law, and may be replevined.'* In Pennsylvania, prior to the act of March 21, 1772, a distress could be held only for enforcing payment of rent. That act provides for a sale of the goods, which' makes the distress like an execution. The act is similar to that of William and Mary, ante — under which it was decided that a tender after an impoimd- ing availed nothing; but the later decisions are that a sale, after tender of rent and costs within five days, is illegal.' In some States a lessor has no power of distress, but, instead, attachment on mesne process, an action of covenant or debt, or assumpsit for use and occupation. In other States the common-law right, greatly modi- fied, is preserved. What the power of distress was in feudal times may be inferred from the fact that the word came to sig- nify extreme " sufl!eriug." * See District, 1. Distress infinite. A distress unlimited as to quantity, and repeatable till the deUn- quent does his duty. In cases of distress for fealty or suit of court no distress could be considered unreasonable. This sort of distress was used in summoning jurors. The prop- erty was to be restored after the duty was.perf ormed.' Now resorted to to compel the doing of a thing re- quired by a court, as, to appear, wnen process cannot be personally served. See Attachment, Of person; Distringas; Sequestration. See also Eloion; Landlord; Pound, 2; Eeplevin; Rescue, 1. DISTRIBUTIOIS". 1. Allotment; ap- portionment; division. Specifically, division of an intestate's es- tate according to law.* A decree distributing a fund in court will not pre- clude an omitted claimant from asserting, by bill or petition, his right to share in the fund.' Distributee. One who receives a share or portion of the assets of an intestate's estate.^ Distributive. Due or received upon a legal division : as, a distributive share. ) How. > 3 Bl. Com. 231. 2 3 Bl. Com. 6-7. s 3 Bl. Com. 7-10. Articles exempt, 26 Am. Law Reg. 153-58 (1887), cases. *3B1. Com. 11. »3B1. Com. 11-12. 1 3 Bl. Com. 12. See 100 Pa. 397, 401, infra; Pr. 167; 8 Kern. 299. = 3 Bl. Com. 12-15. 3 Richards V. MoGrath, 100 Pa. 400 (1882); 105 E. C. L. 262; 3 Bl. Com. 14. See also Patty v. Bogle, 59 Miss. 493-94 (1882). 4 1 Pars. Contr. 517; Taylor, Landl. & T. §| 558-59. = 3 Bl. Com. 281. 6 Rogers V. GUlett, 56 Iowa, 268 (1881); 102 Ind. 412. ■•Be Howard, 9 Wall. 184 (1869), cases. B See Henry v. Henry, 9 Ired. L. 279 (1848). DISTRICT 368 DISTRINGAS Statutes of distribution. Statutes which regulate the division of an intestate's estate among his widow and heirs or next of kin, after the debts of the estate are paid. Title to realty vests in the heirs by the death of the ancestor; the legal title to personalty is vested in the executor or administrator, and is transferred to the distributees upon confirmation of the proceedings in distribution.! In thirty or more of the States and Territories the rules for the distribution of personalty are essentially the same as the rules for the descent of realty, where no distinction is made between realty ancestral and non-ancestral, and, where such distinction is made, for the descent of realty non-ancestral.'' See Audit; Descent, Canons of; Equal, Equally; Property. 3. As applied to a publication like a news- paper or a periodical, imports a delivery to persons who have bought or otherwise be- come entitled to the same.' DISTRICT. A division of territory. 1. Originally, the space within which a lord could coerce and punish — distrain. * The circuit within which a man might be compelled to appear, or the place in which one hath the power of distraining.* 2. A division of a State or Territory for : any purpose whatever : as, coZZech'Jwjdistrict, for the collection of revenue duties}^on- gressional district, for the election of repre- sentatives in Congress ; election district, for purposes of elections, municipal, State, or United States ; judicial district, for judicial purposes — with its district court, district judge, district attorney, and district clerk; land district, for regulating sales of public lands ; school district, for purposes connected with the public schools ; tax district, for the levying and collection of taxes. May designate an area larger or smaller than a county ; as, the district from which the jury in a crim- inal case may be drawn." A " taxing " district is not necessarily a large divis- ion of a State's territory, like a county or parish, as, in the act of Congress of June 7, 1862, § 6; it may be any portion of territory solely for the assessment of taxes.' See D, 3; Precinct, District attorney. See Attoenet-Gen- ERAIi. ' Eoorbach v. Lord, 4 Conn. 3 'See 1 Bouvier's Law Diet. 544; 2 Kent, 420, 426. s Dawley v. Alsdorf , 25 Hun, 227 (1881). * [Webster's Diet. 5 [Jacob's Law Diet. 8 State V. Kemp, 34 Minn. 62 (1886).'' 'Keely v. Sanders, 99 U. S. 448-49 (1878); De Treville V. SmaUs, 98 id. 517 (1878). District clerk, court, judge. See Courts, United States. District of Columbia. Is neither a State nor a Tei-ritory. Congress is authorized " to exercise exclusive Legislation in all Cases whatsoever over such District (not exceeding ten Miles square) as may, by Cession of par- ticular States, and the Acceptance of Con- gress, become the Seat of the Government of the United States." i Maryland and Virginia ceded territory on the Poto- mac, which Congress, by act of July 16, 1790, accepted. In December, 1800, the seat of government was re- moved from Philadelphia. By the act of July 11, 1846, Congress retroceded the county of Alexandria to Vir- ginia. The District constitutes the county of Wash- ington. A citizen of the District of Columbia Is not a citizen' of a State. 2 The laws in force December 1, 1873, were revised and republished, by direction of Congrecs, in a separate volume known as the Bevised Statutes relating to the District of Columbia.' See Courts, page 384; Lew, 3. DISTRINGAS. L. That you distrain. The emphatic word in the writ of " distress infinite" (q. v.), when expressed in Latin. The writ enforced compliance with some- , thing required of the person (natural or arti- ficial) named in the writ. Eef erring to a defendant who neglected to appear, a process issued from the court of common pleas com- manding the sheriff to distrain the defendant from time to time, by taklug his goods and the profits of his lands.* The process against a body corporate, which, hav- ing been served with a subpoena issued out of chaa- cery, fails to appear in court, is hy distringas, to distrain them by their goods and chattels, rents and profits, till they obey the summons.' ^, In detinue, after judgment, the plaintiff had a dis- tringas, to compel the defendant to deliver the goods, by repeated distresses of his chattels.' Distringas juratores. That you distrain the jurors. A writ commanding the sheriff to distrain jurors by their lands and goods, so that they be con- strained to appear in court.' Distringas nuper vice oomitem. That you distrain the late sheriff. A writ to compel a sheriff who had gone out of office to bring in a defendant, or to sell goods under a fieri facias which he failed to do while in office. ^ ' Constitution, Art. I, sec. 8, par. 17. 2 Cissel V. McDonald, 16 Blatch. 15a-54 (1879), cases. = See generally Fort Leavenworth B. Co. v. Lowe, 114 U. S. B28-29 (1885). * 3 Bl. Com. 280. ^ 3 Bl. Com. 445. See 37 Hun, 546 ; 89 N. C. 585. »3B1. Com, 413. ' 3 Bl. Com. 354; 1 Arch. Praot. 365. 8 See 1 Tldd, Pract. 313. DISTURBANCE 369 DIVIDEND DISTURBANCE. 1. Interruption of a ;ate of peace; disquiet; disorder: as, tlie isturbance of a lawful public meeting.i ee Assembly; Peace, 1. 2. A wrong to an incorporeal heredita- lent, by hindering or disquieting the owner 1 his lawful enjoyment of it.2 See Enjoy- ENT, Quiet. It may be of a franchise, a common, a way, or a inure.^ DITCH. See Drain. DISUSE. See Use, 2. DrVERS.s Several; sundry; more than ne, yet not rnany. In an indictment for the larceny of a numher of rticles all of one kind, the allegation may be "di- srs," " divers and sundry," or " a quantity," without ating a specific number, along with an averment of le aggregate value of the whole number.* DIVERSION". Turning a stream, or a art of it, from its accustomed direction or atural course. ' DIVEST. See Vest. DIVIDE. See Division ; Partition. DIVIDEND. A portion of the princi- al or the profits of a thing divided among s several owners.* 1. In bankruptcy and insolvency law, as- its apportioned among creditors. 2. In the administration of the estates of ecedents, a distributive share.' See Equal. 3. A distribution of the funds of a corpo- ition among its members, pursuant to a ote of the directors or managers.i^ Corporate funds derived from the business lid earnings of a corporation, appropriated y a corporate act to the use of, and to be ivided among, the stockholders.' Referring to a corporation engaged in busi- Bss, and not being closed up and dissolved, — fund which the corporation sets apart > See 4 Bl. Com. .54; State v. Oskins, 38 Ind. 364 (1867), ,ses; Wall v. Lee, 34 N. Y. 141 C1865), cases. ' [3 Bl. Com. 236. ' L. diversus, different. ' Commonwealth v. Butts, 134 Mass. 453 (1878), cases. » [Parker v. Griswold, 17 Conn. *399 (1845). ■ [Commonwealth v. Erie, &c. R. Co., 10 Phila. 466 173). ' University v. North Carolina R. Co., 76 N. C. 105 177). 'Williston V. Michigan, &c. E. Co., 13 Allen, 404 i66). ' [Hyatt V. Allen, 56 N. Y. 556 (1874), Andrews, J. ; laffee v. Rutland R. Co., 55 Vt. 139 (1883); Pierce, lilr. 130. (34) from its profits to bo divided among its mem- bers.! The dividends declared by a corporation in business are, and, except under special circumstances, always tehould be, from profits. Hence, the word frequently carries with it the idea of a division of profits; but that is not necessarily its only meaning. Its special signification, in a particular case, Is dependent upon the character of the thing divided." Does not necessarily imply aproraiadistribution.a Preferred dividend. A dividend paid to one class of shareholders in priority to that to be paid to another class.* Preferential dividend. A preference to a limited extent in the division of the sum to be divided.5 Dividends on preferred stock are payable only out of net earnings applicable thereto: they are not pay- able absolutely and unconditionally, as is interest. Until declared, the right to a dividend is not a debt; and the obligation to declare it does not arise until there is a fund from which it can properly be made. When to declare a dividrind, and the amount thereof, is, ordinarily, a matter of internal management. Un- less it appears that somebody in particular will be injured, a court of equity will not interfere.' A dividend declared out of earnings is not an asset of the company, but belongs to the shareholder. The corporation holds it as his trustee. Before the divi- dend is declared, each share of stock represents the owner's whole interest; when he transfers the share, he transfers his entire right; hence, a dividend subse- quently declared belongs to the new holder." A stock dividend does not diminish or interfere with the property of a corporation. It simply dilutes the shares as they existed before. The corporation is just as capable of meeting demands upon it; the ag- gregate of the stockholders own the same interest they had previously. When stock has been lawfully created, a dividend may be made, provided the stock represents property. There is no statute in New York which requires dividends to be made in cash; and there is no rule or policy of law which condenms a property dividend. The stockholders can take the property divided to them and sell it for cash. But a dividend payable in cash, or payable generally, makes the corporation a debtor. ^ See Ex, 3; Stock, 3 (3), Preferred. 1 Lockhart v. Van Alstyne, 31 Mich. 79 (1875), Cooley, J.; 108 U.S. 899. 'Eyster v. Centennial Board, 94 U. S. 504 (1876), Waite, C. J. See Gary v. Savings Union, 23 Wall. 41 (1874); 18 Barb. 667; 8 R. I. 333; 1 De G. & J. •630-37. s Hall«. Kellogg, 13 N. Y. 335 (1855). « Tatt V. Hartford, &c. B. Co., 8 R. 1. 333 (1866), Brad- ley, C. J. See55Vt. 129, m/ra. » See Henry t>. Great Northern Ey. Co., 1 De Gex & J. *mn (1857). « Chaffee v. Rutland R. Co., 55 Vt. 126, 137, 133 (1883), cases, ' Jermain v. Lake Shore, &c. R. Co., 91 N. Y. 493 (1883). s Williams v. Western Union Tel. Co., 93 N. Y. 189 DIVINE S70 DO DIVINE. See God; Law; Oath; Re- ligion; Sunday; Woeship. DIVISION. 1. A setting apaxt : separa- tion, apportionment, partition, sharing out; also, a separate part or portion, a share, an allotment. See Equal ; Fence ; Wall. Divisible. Admitting of separation into distinct parts ; separable. IndiTisible. En- tire; inseparable. Agreements, covenants, and considerations may or may not be divisible into parts performed or capable of being performed or enforced, or into pai-ts which are lawful and parts which are unlawful.^ See Con- TBACT, Divisible; Utbre, Utile, etc. Undivided. That a tract of land, held in common, shall remain undivided, implies that the land is not subject to partition, is not to be divided, set off^ allotted to individ- uals in severalty.2 3. Difference of opinion; non-concurrence in a decision. See Opinion, 3. 3. Separation of the members of a legisla- tive body, to ascertain the vote cast. DIVISUM. See Imperium. DIVORCE.^ The dissolution or partial suspension, by law, of the marital relation. A dissolution is termed a divorce from the bond of matrimony — a vinculo matrimonii; a suspension, divorce from bed and board — a mensa et thoroA " Divorced " imports a dissolution, in the largest sense, of the marriage relation.^ In England, prior to 1857, the subject of divorce be- longed to the ecclesiastical courts and to parliament. Statutes of 20 and 81 Vict. (1857) c. 86, created the Court of Divorce and Matrimonial Causes, with exclu- sive jurisdiction in all matrimonial matters. Divorce causes are now heard in the Probate and Divorce Di- vision of the High Court of Justice, appeal lying to the Court of Appeal. In this country, formerly, it was common for the legislatures to grant divorces by special acts, but the practice fell into disuse, and is now forbidden in some States, by the constitution. The necessary jurisdic- tion is generally conferred upon courts possessing equity powers.* 190, 192 (1883). See also Bailey u N. Y. Central E. Co., ^ Wall. 605, 633 (1874); generally, 19 Am. LawEev. 571-88, 737-83 (1886), cases. 1 See Oregon Navigation Co. v. Winsor, SO Wall. 70 (1873), cases. ' Wellington v. Petitioners, 16 Pick. 98 (1834). * F. : L. divortium, separation,— 4 Mo. 14a. Divorce- ment is obsolete. ' 2 Bishop, Mar. & D. § 226; 1 Bl. Com. 440. 6 Miller v. Miller, 33 Cal. 355 (1867). 8 See Bishop, Mar. & D. §§ 664, 78, 85; 17Nev. 231. In Delaware, during the session of the legislature for 1886-87, forty-four special acts were passed. The inhibition upon the legislative department against exercising judicial functions, implied from the division of government into three departments, has never been understood to exclude control by the legis- lature of a State over the marriage relation, notwith- standing that the exercise of sucb power may involve investigation of a, judicial nature. Hence, unless for- bidden by the constitution, a legislature may grant a divorce.* Congress is not empowered to legislate upon the subject; and the legislation of the States and Territo- ries is far from uniform. , In South Carolina divorce Is not allowed for any cause; in New York for adul- tery only. Elsewhere it is allowed for adultery, cruelty, indignity, willful desertion, or sentence to a State's prison for two years or longer period, habitual drunkenness, pre-contract, fraud (incontinency, or pregnancy), coercion, imbecility pr impotency un- known to the other party, consanguinity, and affin- ity, qg. V. Common defenses are: connivance, collusion, con- donation, recrimination, denial of allegation of deser- tion or infidelity. Some of the consequences of a divorce follow di- rectly from the law, others may depend upon the spe- cial order of court: the law ends all rights, based upon the marriage, not actually vested; as, dower and cxu't- esy,' and the husband's power over the wife's choses in action. The court may allow alimony, and direct the custody of children. A decree made in one State, being a judgment of record, will be given its original force in every other State. Eor this purpose, courts of equity, Federal, and State, have jurisdiction.' But, otherwise, if the record shows on its face that a party was a non-resi- dent.* A marriage forbidden by a decree of divorce in one State may be contracted in another State not also prohibiting it.' The decree in nature is in rem. It determines the question of the marriage relation, or of the personal status, as against the world, and is therefore conclu- sive upon parties and strangers.* See, further, the related topics mentioned. DO; DONE. See Act, 1; Make; Fa- 1 Maynard v. Hill, 136 U. S. 203-9 (1888), cases, Field, J., deciding that the act of Dee. 33, 1852, of the Terri- tory of Oregon, divorcing one Maynard and wife, was constitutional. 2 See Barrett v. Failing, 111 U. S. 625 (1884), cases. » Barber v. Barber, 21 How. 591, 584 (1868); CJieever V. Wilson, 9 Wall. 124 (1869). < Hood V. State, 56 Ind. 263 (1877); People v. Baker, 76 N. Y. 78 (1879); BlaoMnton v. Blackinton, 141 Mass. 485 (1886), cases; 30 Kan. 717; 34 Iowa, 204. *Van Voorhls v. BrintnaU, 86 N. lY. 18, 24 (1881), cases; 16 Am. Law Eeg. 65-78, 193-304 (1877), cases; Whart. Confl. Laws, | 135. Marrying again, as big- amy, 17 Cent. Law J. 83-86 (1883), cases; 20 Am. Law Eev. 718-26 (1886), cases. National legislation, 21 Am. Law Eev. 676-78 (1887), cases. The new French act, 1 Law Quar. Eev. 358 3885). » McGill V. Deming, 44 Ohio St. 657 (1887), cases. DOCK 371 DOCUMENT DOCK.i 1, V. To clip, cut off a part: to iminish. Dock an account. To deduct something rom a particular account. Dock an entail. To curtail, destroy, de- eat an estate tail. 2, n. (1) The space between wharves. Vhence dockage: a charge for the use of a ock;2 dock-master; dock-warrant. See Vharf. The occupant of a dock is liable in damages to a erson who, while using it, is injured in consequence C a defect permitted to exist, provided the injured erson exercised due care.^ A dry-dock is not a subject of salvage service. The let that it floats does not make it a " vessel," which nly Is a subject of salvage.* (2) A space inclosed within a court room, or occupancy by an accused person while in ourt awaiting trial or sentence: the pris- ner's dock. DOCKET. 1, V. To abstract — and enter i a book.5 See Dock, 1. To enter in a book called a docket. 2, n. A brief writing ; an abstract, an epit- me. Originally, a memorandum of the substance of a xjument written upon the back or outside of it. In me, these memoranda, particularly those of judg- ments, were transcribed into books, and the name docket " thereafter designated the books. A brief statement in a book of the things one in court in the progress of a cause; also, le book which contains such history ; and, jain, a volume for the entry of all abstracts : a particular sort. Whence docket costs, docket entry, docket receipt, icket record, docket /ee — see Fee, 2. Numerous terms are in use descriptive of the nature the entries in dockets or of the persons by whom ey are made. Thus, there may be a, prothonotary^s a clerk's docket, a sheriff's or a marshal's docket, e docket of a magistrate, of an alderman or of a slice of the peace, an attorney's private docket; a nl, an equity, or a criminal docket, an appearance d an issue docket, a recognizance docket; a trial cket — of ten referred to as "the docket;" a judg- ynt and an execution docket; an ejectment, a me- anic's lien, a, partition docket; an auditor's report cket. The docket of judgments is a brief writing or state- 1, V. Welsh toe-, doc-, to cut short, curtail. 2, n. itch dokke, a harbor: Gk. doche, receptacle. City of Boston v. Leorow, 17 How. 434 (1854); The okeye State, 1 Newb. 71 (1856). Nickerson v. Tirrell, 187 Mass. 239 (1879), cases. Cope V. Vallette Dry-Dock Co., 119 U. S. 627 (1887). [8 Bl. Com. 897; 2 id. 511. Informer times spelled ocquet." ment of a judgment made from the record or roll, kept with the clerk, in a book alphabetically ar- ranged.' Such docket affords purchasers and incumbrancers information as to the liens of judgments." Entries in dockets mayor may not be "records." They are admissible in evidence when a formal record is not required.' See Index; Judgment; Minutes, 1; Notice, 1. DOCTOR. One qualified to teach: a learned man ; a person versed in one or more sciences or arts. Doctor of laws. A title conferred by a college or university upon a person distin- guished for his attainments in one or several departments of learning. Whence LL. D., from the Latin legum or legibus doctor. Doctor of the civil law. A degree con- ferred upon a person who has pursued a pre- scribed course of study in general jurispru- dence in a law school or university. Abbre- viated D. C. L. See Degree, 3. Doctor of medicine or physic. As popularly used, a practitioner of physic, irre- spective of the system, or school.* See Physician. DOCTRINE. The principle involved, applied, or propounded: as, the doctrine of escheat, estoppel, relation; the cy pres doc- trine. DOCUMENT. That which conveys in- formation ; that which furnishes evidence or proof; a written or printed instrument. An instrument on which is recorded, by means of letters, figures, or marks, matter which may be evidentially used.5 Documentary. Pertaining to what is written; consisting of one or more docu- ments : as, documentary evidence. Ancient document. Any private writ- ing thirty or more years old. See Weiting, Ancient. Foreign document. Such writing as originates in or comes from another juris- diction. Judicial document. Any instrument emanating from a court of justice. Iiegisla- tive, and executive, document. Any 1 Stevenson v. Weisser, 1 Bradf. 344 (N. T., 1860). ' Appeal of First Nat. Bank of Northumberland, 100 Pa. 437 (1882). s Philadelphia, &c. R. Co. v. Howard, 18 How. 331 (1851), cases; Be Coleman, 16 Blatch. 486-27 (1879), cases. * [Corsi V. Maretzek, 4 E. D. Sm. 5 (N. T., 1865). » 1 Whart. Ev. § 614. DOE 372 DOLLAE instrument or record made or kept in the legislative or executive departments of gov- ernment, and evidence of public business therein. Private dbeument. An instrument af- fecting the concerns of one or more individ- uals. Public document. An instrument or record concerning the business of the people at large, preserved in or emanating from any department of government; also, a publication printed or issued by order of one or both houses of Congress or of a State legislature. Public documents include state papers, maps, charts, and like formal instruments, made under pub- ' lie auspices. A copy of such document, issued by- public authority, is as valid as the original; as, an officially published statute. The term also embraces official records recjuired to be kept by statute. ^ A public statute proves its own recitals; not so, a private statute. Journals of legislatures and execu- tive documents are 23Wma/acie evidence of the facts they recite. ^ Official Registers, kept as required by law, are evi- dence of the facts they record. They must be iden- tified, be complete, indicate accuracy, and not be secondary.^ Parish records of births, baptisms, marriages, and deaths are receivable as evidence when made by the persons whose duty it was to note such facts.* Family records prove family events. A relative instrument is inadmissible without its correlative. Admission of a part involves the whole document. All the usual iacidents accompany the document. 5 A document is to be proved by him who offers it; otherwise, when produced in pursuance of notice, or by an adverse party who relies on the writing as part of his title. A document sued upon must be proved when its execution has been denied.^ In matters of execution the law of the place where the instrument is to have effect governs. A writing void as a contract may be valid as an admission. The identity of a signer is to be proved. An agent's power to execute must first be shown.' See Alteeation, 2; Book; Copt; Evidence; Hakd- wbitikg; Inspection, 2; Instrument, 2, 3; Lost, 2; Newspaper; Record; Seal, 1; Stamp; Wbiting. DOE ; ROE. ' ' John Doe " and ' ' Richard Eoe" were fictitious persons used as stand- ing-pledges (common bail, q. v.) for the ap- 1 See McCall v. United States, 1 Dak. 321-28 (1876;, cases; 1 Sup. E. S. pp. 154, 288. » 1 Whart. Ev. §§ 635-38; Whiton v. Albany, &o. Ins. Co., 109 Mass. 30 (ISTl), cases. 3 1 Whart. Ev. §§ 639-48; 1 Greenl. Ev. §§493, 484, 496. ' 1 Whart. Ev. §§ 649-59; 1 Greenl. Ev. § 493. ■ 1 Whart. Ev. §§ 618-20, 648. « 1 Whart. Ev. §§ 689-91, 736. ' 1 Whart. Ev. §§ 700-2, 739 a. pearance of parties at a time when furnish- ing security for the prosecution of a suit by the plaintiff, and for attendance by the de- fendant, had become matters of form.l The names may have been first used for the ficti- tious plaintiff and defendant in the old action of eject- ment.' See Straw. ■" Where defeiidants, whose real names were not known to the plaintiff, were described as " John Doe and Richard Roe, owners " of a particular vessel, and the true owners voluntarily appeared and filed answers, it was held that the plaintiff need not prove the ownership of the vessel. ^ DOGr. See Animal ; Game, 3 ; Keeper, 3 ; Worry. The almost unbroken current of authority is that, although dogs are property, their running at large in cities may be regulated or entirely prohibited; the r&- quirement may be that they be classified, be regis- tered, wear collars, and be destroyed if found running at large in violation of a statute or ordinance.'* A dog is a "thing of value," and may be stolen, and burglary may be committed in attempting to steal it. 6 DOLI. See Dolus. DOXjLAK. The unit of our currency; — money, or its equivalent.^ A silver coin weighing four hundred and twelve and one-half grains, or a gold coin weighing twenty-five and four-fifths grains, of nine-tenths pure to one-tenth alloy of each metal.' The coined dollar of the United States ; a certain quantity and fineness of gold or sil- ver, authenticated as such by the stamp of the governments See fui'ther Coin. A contract to pay in '■ dollars " means in lawful money of the United States, and cannot be explained by parol; otherwise, of a contract made in another country, or in the late Confederate States, in which last case the reference may be to " Confederate dol- lars." " "Dollars " will be supplied where the context shows that word omitted.'" > 3 Bl. Com. 274, 287, 295. = 3 Steph. Com. 618. s Baxter v. Doe, 142 Mass. B62 (1886) ; Pub. St. c. 161, § 80. * State V. City of Topeka, 36 Kan. 84 (1886), oases. See generally 20 Alb. Law J. 6-10 (1879), cases. = StSjte V. Yates, 0. P. of Fayette Co., Ohio: 37 Alb. Law J. 232 (1888); ib. 348-50, cases. « United States v. Auken, 96 U. S. 368' (1878). ' Borie v. Trott, 5 Phila. 366, 404 (1864), Hare, J. 9 Bank of New York v. Supervisors, 7 WaU. 30 (1868), Chase, C. J. » Thornlngton v. Smith, 8 Wall. 12 (1868), Chase, 0. J. ; Cooku. Lillo, 103 U. S. 792 (1880); 35 lU. 396, 440; 39 N. Y. 98; 1 W. N. C. 223; 33 Tex. 351. '"Hmes V. Chambers, 29 Minn. 11 (1884); Hunt v. Smith, 9 Kan. 153 (1878). DOLUS 373 DOMAIN An instrument in the form of a promissory note for e payment of " 23.00 as per deed, 10 per cent, till ,id," is a note for twenty-flve dollars.' Where a jury found " for the plaintiff in the sum of irteen hundred and ninety-nine and 48-100," it was ild that the omission of the word " dollars " was not .oh a defect as prevented rendering judgment ac- irding to the intent of the jmy, altlaough it would ive heen more regidar to have amended the verdict if ore judgment." Any mark commonly employed in business trans- itions to denote the division of figures, obviously rep- isenting money, into dollars and cents, is sufficient ir that purpose." "One dollar" — see Consideration, 2, Nominal. See generally Coehenct; Money; Tender, Legal; rAR. DOLUS. L. Device, artifice, guile, craft, itention to deceive, — especially when used ,'itli mahis: actual fraud. Evil purpose; nlawful intention, illegal ill-will; legal lalice. Compare Culpa. Doli capax. Able to distinguish between ight and wrong ; having capacity to intend iTong, to cotumit crime. Doli incapax. ncapable of meditating wrong. Capacity for guUt is measured by the strength of lie understanding. Under seven years of age, an in- ant cannot be guilty of felony; under fourteen, bough he be prima facie adjudged doU incapax, yet E it appears that he was doli capax, and could discern letween good and evil, he may be convicted.* Dolus bonus. Craftiness which falls short >f fraud; as, adroitness in effecting a sale, lot amounting to false representation. Dolus malus. Actual false representa- ion, intended to injure. Ex dolo malo. See AcTiq. See Deceit; Fraud. DOM. As a termination — jurisdiction, property, as in kingdom; or — state, condi- ;ion, quality, as in freedom, serfdom. Orig- nally, doom— judicial sentence. Dom-bee or -boc. See Dome. DOMAIN.^ 1. Dominion, ownership, Droperty ; absolute proprietorship or right of xjntrol.s Domain, eminent. The power to take private property for public uses is termed ''the right of eminent domain."' 1 State V. Schwartz, 64 Wis. 433 (1885> 1" Hopkins v. Orr, 184 U. S. 513 (1888), cases. Gray, J. 3 Delashmutt v. Sellwood, 10 Oreg. 325 (1883). « 4 Bl. Com. 23. »F. domaine, a, lordship: L. dominium, right of )wnersliip. Compare Demesne; Domain. , • See -2 Bl. Com. 1. ' United States v. Jones, 109 U. S. 518 (1883), Field, J. " Eminent " imports having preference, bein^ para- mount, prerogative, sovereign. All separate interests of individuals in property are held of the government under the implied reservation that the property may be taken for the public use, upon paying a fair compensation, whenever the public interest requires it. The possession is to be resumed in the manner directed by the constitution and laws.' The ultimate right of the sovereign, power to appropriate, not only the public property, but the private pi-operty of all citizens within the territorial sovereignty, to public purposes. Vattel says that the right in society pr the sovereign to dispose, in case of necessity, and for the public safety, of all the wealth (prop- erty) in the state, is " eminent domain," and a pi-erogative of majesty.- In every political sovereign community there in- heres, necessarily, the right and the duty of guarding its own existence, and of protecting and promoting the interests and welfare of the community at large. This power, denominated the " eminent domain " of the state, is, as its name imports, paramount to all private rights vested under the government, and these last are, by necessary hnplication; held in subordina- tion to this power, and must yield in every instance to its proper exercise. The whole policy of the countiy relative to roads, mills, bridges, and canals rests upon this single power, under which lands have always been condemned; without the exertion of the power no one of these improvements could be constructed. The ex- ercise of a franchise is subject to the power.' The propriety of exercismg the right is a political question — exclusively for the legislature to deter- mine.* The mode of e?:ercising the right, in the absence of provision in the organic law prescribing a contrary course, is within the discretion of the legislature. If the purpose be a public one, and just compensation be paid or tendered the owner of the property taken, there is no hmitation upon the power of the legisla- tm'e.5 The right of eminent domain exists in the govern- ment of the United States, and may be exercised by it withm the States, so far as is necessary to the en- joyment of the powers conferred by the Constitution. Such authority is essential to its independent existence and peipetuity. These cannot be preserved if the obstinacy of a private person, or if any other author- 1 Beekman v. Saratoga, &c. E. Co., 3 Paige, T2-13 (1831), Walworth, Ch.: Bloodgood v. Mohawk, &o. E. Co., 18 Wend. 13-18 (IH:)'!), cases. s Charles Eiver Bridge v. Warren Bridge, 11 Pet. *641 (1837), Story, J. Vattel is also quoted in 109 U. S. 619, post. > West Eiver Bridge Co. v. Dix, 6 How. 631-33 (1848), Daniel, J. * Hyde Park v. Cemetery Association, 119 111. 149 (1886); ;il Mass. VS. ■ 'Secombe v. Milwaukee, &c. E. Co., 23 Wall. 118 (isr4)- People V. Smith, 21 N. Y. 697-98 ^800); Holt v. Council of Somerville, 127 Mass. 410, 413 (1879). DOMAIN 874 DOME ity, can prevent the acquisition of the means or instru- ments by which alone governmental functions can be pel-formed. No one doubts the existence in the State governments of the right of eminent domain, — a right ■distinct from and paramount to the right of ultimate ownership. It grows out of the necessities of their being, not out of the tenure by which lands are held. It may be exercised, though the lands are not held by grant from the government, either mediately or im- mediately, and independent of the consideration whether they would escheat to the government in case of a failure of heirs. The right is the offspring of po- litical necessity; and it is inseparable from sover- eignty, unless denied to it by its fundamental law. But it is no more necessary for the exercise of the powers of a State government than for the exercise of the conceded powers of the Federal government. That government is sovereign within its sphere, as the States are within theirs. When the power to establish post-offtees and to create courts within the States was conferred upon the Federal government, included in it was authority to obtain sites for such offices and for court-houses, by such means as were known and ap- propriate. The right of eminent domain was one of those means well known when the Constitution was adopted, and employed to obtain lands for public uses. Its existence, therefore, in the grantee of that power ought not to be questioned. The Constitution Itself contains an implied recognition of it beyond what may justly be implied from the express grants. The Fifth Amendment contains a provision that "private prop- erty " shall not " be taken for public use without just compensation." What is that but an implied asser- tion that, on making just compensation, it may be taken. . This power of the Federal government has not heretofore been exercised adversely; but the non-user of a power does not disprove its existence. In some instances the States, by virtue of their own right of eminent domain, have condemned lands for the use of the general government, and such condem- nations have been sustained by their courts, without, however, denying the right of the United States to act independently of the States. . . The proper view of the right of eminent domain seems to be that it is a right belonging to a sovereignty to take private prop- erty for its own public uses, and not for those of an- other. Beyond that there exists no necessity; which alone is the foundation of the right. If the United States have the power, it must be complete in itself. It can neither be enlarged nor diminished by a State. Nor can any State prescribe the manner in which it must be exercised. The consent of a State can never be a condition precedent to its enjoyment. Such con- sent is needed only, if at all, for the transfer of juris- diction and of the right of exclusive legislation after the lands shall have been acquired. ^ The right requires no constitutional recognition. When the use is public, the necessity or expediency of the appropriation is not a subject of judicial cogni- zance. The power may be delegated to a private cor- iKohl V. United States, 91 U. S. 371-74 C1875)„ cases, Strcing, J. Approved, Fort Leavenworth R. Co. v. Lowe, 114 id. 531 (1885); Eoanoke City v. Berkowitz, 80 Va. 619, 623 (1885). poration, to be exercised in the execution of a workin which the public is interested. Whether attached con- ditions have been observed is a matter for judidal cognizance. ^ Ascertainment of the amount of compensation to be made is not an essential element of the power of appropriation. The constitutional provision for " just compensation " is merely a limitation upon the use of the power. It is no part of the power itself, but a condition upon which the power may be exercised. The proceeding for the ascertainment of the value of the property and the compensation to be made is merely an inquisition to establish a particular fact as a preliminary to the actual taking; and it may be prosecuted before commissioners, special boards, or the courts, with or without the intervention of a jury, as the legislative power may designate. All that is required is that it shall be conducted in some fair and just manner, with opportimity to the owners of the property to present evidence as to its value, and to be heard thereon. Whether the tribunal shall be created directly by an act of Congress, or one already estab- - lished by the States shall be adopted for theoccasion» is a matter of legisiittive discretion. ^ The right over the shores and the land under the water of navigable streams resides in the State for municipal purposes, within legitimate limitations. ^ Land taken for one purpose cannot, without special authority from the legislature, b^ appropriated, by proceedings in invitum, to a different use.* The power of eminent domain .expropriates, upon indemnity for public utility; the "police power" is exercised without making compensation — any loss occasioned is damnmn absque injuria.^ See further Police, S; Use, 2, Public. See also Compensation, 3; Land, Public; Pake, S; Take, 8. 3. Territory owned and governed ; lands. Domain, public. Public lands, with any buildings thereon,, held in trust by the gov- ernment. Congress has exclusive power to dispose of the public domain of the United States, and the exercise of the power is limited only by the discretion in that body.^ See Lands, Public. DOM£. A judgment, decree, sentence. Dome-book. Any book of judgments. Alfred collected the customs of the kingdom and reduced them to a system or code in his " Dom-bec,'" 1 Mississippi, &c. Boom Co. v. Patterson, 98 U. S. 406 (1878). a United States v. Jones, 109 U. S. 518-19 (1883), Field, J. See Wagner v. Railway Co., 38 Ohio St. 35 (1883). » Omerod v. New York, &c. R. Co., 13 F. R. 370 (1883). 4 Prospect Park, &c. R. Co. v. Williamson, 91 N. T. £53, 561 (1883) ; Anniston, &c. R. Co. v. Jacksonville, &c. R. Co., 82 Ala. 300 (188B), cases. "Bass V. State, 34 La. An. 496(1882); Davenport u. Richmond City, .81 Va, 639 (1886); 17 F. R. 114^ 81 Pa. 85. See generally 3 Law Q. Rev. 314-25 (1887), c^ses; 2 Kent, 33!}; 19 Bost. Law Rep. 241, 301. ' 8 West River Bridge Co. v. Dix, 6 How. 54CI (1848); DOMESTIC 375 DOMICIL for the use of Ms tribunals. The volume also con- tained the maxims of the common law, forms for ju- dicial proceedings, and certain penalties.' The book may be seen, in both Saxon and English, in "The Ancient Laws and Institutes of England," published by the Record Commissioners, Vol. 1, pp. 45-101. At the head of the book stand the Ten Commandments, followed by many Mosaic precepts. After quoting the canons of the apostolic council at Jerusalem, Alfred refers to the commandment "As ye would that men should do to you, do ye also to them," adding, " from this one doom a man may re- member that he j udge every one righteously : he need heed no other doom-book."" The Commandments and such portions of the Law of Moses as were prefixed to the code became a part of the law of the land. Labor oh Sunday was made criminal, and heavy pimishments were exacted for perjury. 3 Domesday-book. A survey of all the lands in England, with the names of their owners, their value, etc., compiled, by direc-: tion of the Conqueror, 1081-86. The completeness of the survey made it " a day of judgment " as to the extent, value, and other qualities of every piece of land. It was practically a careful census, and became a final authority on tenures and titles. The two original volumes are preserved in the Exchequer.^ DOMESTICS Belonging or pertaining to one's own home. State, or country. 1. Residing in the same house with the master he serves: as, a domestic servant; or, simply, a domestic : a house servant ; not, an outdoor workman, nor a pei-son hired for a day.6 Living about the habitations of men; tame, domesticated : as, a domestic animal, q. v. 3. Relating to the law of the place of a per- son's domicil. Having jurisdiction at one's domicU: as, the domestic court, forum, tribunal. Appointed at the place of residence — of the person lately deceased, or of a ward : as, a domestic administrator, guardian, q. v. United States v. Gratiot, 14 Pet. 536 (1840); 1 Kent, 168, 857; 37 Am. Jur. 131. ' 4 Bl. Com. 411 ; 3 id. 65. ' See 1 Bl. Com. 65, note by Warren. « Green, Short Hist. Eng. People, 81. ' See 2 Bl. Com. 49, 99; 3 id. 331; Green, Short Hist. Eng. People, 114. ' L. domesticua, belonging to a household: domus, a house. *Bxp. Meason, 5 Binn. 174-^ (1812); Wakefield v. State, 41 Tex. 558 (1874); Eichardson v. State, 43 id. 456 (1875); Ullraan v. State, 1 Tex. Ap. 221 (1876); Water- house V. State, 21 id. 666 (1886). See B. S. § 4063. 3. Relating to the law, property, trade, or inhabitants of some particular State. For the benefit of creditors within the debtor's own State: as, a domestic assign- ment, q. v.; whence, also, domestic cred- itors. Maintainable against a resident debtor: as, a domestic attachment, q. v. Created under the laws of the State in which it transacts business: as, a domestic corporation, q. v. i Rendered by a court of the State where it was first entered or enrolled : as, a domestic decree, or judgment, q. v. Arising or committed within the borders of a State or among the inhabitants thereof: as, domestic violence, q. v. 4. Relating to the territorial Hmits or to the jurisprudence of two or more States, or of the whole United States. Confined within the United States, or, pos- sibly, one State: as, domestic commerce, manufactures, qq. v. Acquired within a subdivision of a coun- try : as, a domestic domicil, q. v. Resident within the State or country in question : as, a domestic factor, q. v. DOMICIIi.' The place where a person lives or has his home ; that is, where one has his true, fixed, permanent home and princi- pal establishment, and to which, whenever he is absent, he has the intention of return- ing.^ The habitation fixed in any place, without any present intention of removing there- from.' Domiciliate, or domicile. To establish one, or oneself, in a fixed residence. Domiciliary. Pertaining to one's perma- nent residence: as, a domiciliary court, the domiciliary administrator or guardian, domi- ciliary inspection or visitation. There is a wide difference between domicil and mere residence. While they are usually at the same place, they may be at different places. Domicil is the established, fixed, permanent, ordinary dwelling place ' Spelled also domicile. F. domicile, a dwelling: L. doinicilium, habitation: domus, a house; and -ciliutn, allied to celare, to hide. " Story, Conf . Laws, § 41 ; Hannon v. Grizzard, 89 N. C. 120 (1883), Smith, C. J. ; 75 Pa. 205. s Putnam v. Johnson, 10 Mass. *601 (1813), Parker, J. ; State V. Moore, 14 N. H. 454 (1843); Crawford v. Wilson, 4 Barb. 520 (1848). DOMICIL 376 DOMINION or residence of a party, as distinguished from his temporary and transient though actual place of resi- dence. One is his legal residence as distinguished from his temporary place of abode; in other words, one is his home, as distinguished from the place or places to which business or pleasure may temporarily call him.' Primarily a person's domicil is his legal home; but domicil Implies more than mere residence in a coun- try.2 The domicil of a person may be in one place and his residence in another. ^ Residence, with no present intention of removal, constitutes domicil.* "Domicil" has a fixed and definite signification. For the ordinary purposes of citizenship there are rules of general, if not of universal, acceptation appli- cable to it. "Citizenship," "habitancy" and "resi- dence" are severally words which may in the particu- lar case mean precisely the same as "domicil," but- frequently they may have other and inconsistent meanings, and while in one use of language the ex- pressiohs a change of domicil, of citizenship, of hab- itancy, of residence, are necessarily identical or syn- onymous, in a different use of language they import different ideas. ^ In international law, domicil means a re,sidence at a particular place, accompanied with positive or pre- sumptive proof of intending to continue there for an unlimited time.^ To ascertain this domicil, it is proper to take into consideration the situation, the employment, and the character of the individual; the trade in which he is engaged, the family he possesses, and the transitory or fixed character of his business are ingredients which may properly be weighed. ^ Domicil is spoken of : as national, or that of a person's country, and opposed to domes- tic, or that of a subdivision of a country; as foreign, established in another state; as commercial, the place of one's trade or busi- ness; of birth, that of one's parents; ac- quired, vested by the law ; by choice, selected of free will ; &?/ law, by operation of law. Once existing, a domicil continues until another is acquired; when a, change is alleged the btirden of proof rests upon the party making the allegation. To constitute a new domicil, two things are indispen- > Town of Salem v. Town of Lyme, 29 Conn. 79 (1860), Hinman, J. 2 McDonald v. Salem Capital Flour-Mills Co., 31 F. R. 577 (1887). SLyon v. Lyon, 30 Hun, 456 (1883); Foss v. Foss, 58 N. H. 884 (1878), cases. > Lindsay v. Murphy, 76 Va. 430 (1883). s Borland «. City of Boston, 1.33 Mass. 93 (1888), Loi'd, J. ' Guier v. O'Daniel, 1 Binn. *350 (1806), Rush, P. J. ; State V. Collector, 33 N. J. L. 194 (1867); Mitchell v. United States, 21 Wall. 353 (1874). ' Livingstone ■«. Maryland Ins. Co., 7 Cranch, 548 (1813), Story, J.; The "Venus, 8 Cranch, 878 (1814). sable: residence in the new locality, and the intention to remain there, facto ef animo. Mere absence from a fixed home, however long continued, cannot, work the change. Among the circumstances usually relied upon to establish the animus manendi are: declara- tions, exercise of political rights, payment of personal taxes, a house of residence, a place of business.' A change does not depend so much upon the inten- tion to remain in the new place for a definite or an in- definite period, as upon its being without an intention to return to the former place of actual residence. An intention to return, however, at a remote or indefinite period, will not control, if the other facts which con- stitute domicil all give the new residence the charac- ter of a permanent home and place of abode. The intention and actual fact of residence must concur, when such residence is not in its nature temporary. There is a right of election by expressed intention, only when the facts are to some extent ambiguous. ^ A domicil of origin is presumed to be retained until residence elsewhere has been shown.^ A domicil of origin, or an acquired domicil, remains until a new one is acquired. A native domicil is not so easUy changed as an acquired domicil, and is more easily lost. A man can have but one domicil at the same time for the same purpose.^ Domicil is acquired by residence and the animus manendi, the intent to remain. A wife's domicil is that of the husband; but she may acquire a separate one, whenever necessary or proper, as, for a suit in divorce,^ q. v. See also Citi- zen; Lex, Domicilii; Reside. DOMINANT. See Easement, Dominant. DOMIWIOK'. Complete ownership; ab- solute property." The right in a corporeal thing, from which arises the power of disposition and of claim- ing it from others.' Proximate dominion. Obtaining pos- session by delivery of a thing sold, which, 1 Mitchell V. United States, 21 Wall. 353, 3.53 (1874), cases, Swayne, J. ; Desmare v. United States, 93 V. S. 609 (1876); Doyle v. Clark, 1 Flip. 637-38 (1876), cases; Lindsay v. Mm-phy, 76 Va. 430 (1882); 21 Cent. Law J. 435-33 (18S5), cases — Solicitors Journal (London). = Hallet V. Bassett, 100 Mass. 170-71 (1868), cases, Colt, J. ; Guier v. O'Daniel, 1 Am. Lead. Cas. 747-50, cases. ' Ennis v. Smith (Kosciusko's Case), 14 How. 483 (1853). •■Newton v. Commissioners, 100 U. S. 563 (1879), Swayne, J. 'Cheever v. Wilson, 9 Wall. 124 (1869); Cheely v. Clayton, 110 U. S. 705 (1884), cases; 8 Bishop, Mar. & D. 475; 33 Alb. Law J. 86 (1881), cases. See generally 13 Am. Law Rev. 281-79 (1879), cases; 11 Cent. Law J. 421-25 (1880), cases; 1 Wall. Jr. 262; 7 Fla. 81, 152; 46 Ga. 277; 74 111. 314; 89 Ind. 177; 51 Iowa, 79; 80 La. 314; 26 id. 338; 53 Me. 165; 87 Miss. 718; 64 id. 310; 77 Mo. 678; 37 N. J. L. 495; 8 Wend. 148; 8 Paige, 534 ; 31 Barb. 476 ; 67 N. Y. 379 ; 71 Pa. 309 ; 48 Vt. 338. 6 See 3 Bl. Com. Ch. L ' Coles V. Perry, 7 Tex. 136 (1851), Hughes, S. J. DOMINIUM 377 DONATION (rithout anything else, being preceded by he title, vests the right in the thing — which s the dominion. Kemote dominion. The itle which vests a right to a thing sold, and fives a cause of action against the vendor vho has not delivered the thing, i Compare Demeske; Domain; Dominium. DOMnSTUM. L. Complete ownership )f property. Dominium directum. Immediate own- jrship, — possession. Dominium utile. Beneficial owner- ship, — enjoyment. Dominium directum et utile. Direct and beneficial ownership: complete ownership ind possession in one person. Compare Droit-droit. DOMINUS. L. Lord or master ; owner. Dominus litis. The actor in a cause; the principal in a suit ; the client, as distin- guished from his agent or attorney.^ Domino perit res. The thing has per- ished for its owner. See further Res, Perit. Domino volente. The owner willing. DOMIT^. See An'bial. DOMUS. L. A house ; the house. Domus procerum. The house of lords. Abbreviated dom. proc, and D. P. Domus sua euique est tutissimum refugium. His own dwelling is for every one the safest refuge : every man's house is his castle. See further House, 1. DONA. See Donum. DONATE. See Donation. DONATIO. L. A giving; a gift. See Dare; Gift. Donatio inter vivos. A gift between living persons: when the maker of a gift is not apprehending death. See further GIFT. Donatio mortis causa, or causa mortis. A gift in view of death ; a death-bed disposi- tion of personalty. A donation causa mortis takes place when a person in his last sickness, apprehending dissolution near, delivers or causes to be de- Uvered to another the possession of any per- sonal goods to keep in case of his decease. Such a gift is to revert to the donor, if he suEvives, and is not valid as against cred- itors.' 1 Coles V. Perry. 7 Tex. 136 (1851), aiUe. ' See 4 Hughes, 341. » 2 Bl. Com. 514. There must have been a transfer of property in ex- pectation of death from an existing illness.' A gift of personal property, by a party who is in peril of death, upon condition that it shall presently belong to the donee, in ease the donor shall die, but not otherwise. There must be a delivery by the donor. The gift will be defeated by revocation, or by recov- ery or escape from the impending peril. It is in no sense a testamentary act. There may be a good do- nation of anything which has a physical existence and admits of corporal or symbolical delivery. Negotiable instruments, and even bonds and mortgages, may he thus transferred. 2 A donatio mortis causa must be completely exe- cuted, precisely as is required in the case o^ a gift inter vivos, subject to be devested by the happening of any of the conditions subsequent, that is, upon actual revocation by the donor, by his surviving the apprehended peril, by his outliving the donee, or by the occurrence of a deficiency of the assets necessary to pay the debts of the donor. If the gift does not talce effect as a complete transfer of possession and title, legal or equitable, during the life of the donor, it is a testamentary disposition, and good only if made and proved as a will. . The instrument transferring a chose in action must be the evidence of a subsisting obligation and be delivered to the donee, so as to vest him with an equitable title to the fund it represents, and to devest the owner of all present control over it, absolutely and irrevocably, but upon the recognized conditions subsequent. A delivery which empowers, the donee to control the timd only after the death o£ the donor, when by the instrument itself it is pi-eseutly payable, is testamentary in character, and not good as a gift. 3 Eeoent statutes malce valid a wife's death-bed do- nations of personalty without her husband's assent.* Donatio propter nuptias. A gift in consideration of marriage. In the civil law, the provision made by the husband as the counterpart of the dos or marriage portion brought by the wife. DONATION. See Donatio. A contract by which a person gratuitously dispossesses himself of something by transferring it to an- other to become the latter's property upon acceptance.^ > Grattan u. Appleton, 3 Story, 755, 763 (1843). » 1 Story, Eq. §§ 606-7; 3 Pomeroy, Eq. §§ 1146-51; 2 Kent, S44. 3 Baslcet v. Hassel!, 107 U. S. 609-10, 614 (18S2), oases, Matthews, J.; Same v. Same, 108 id. 267 (ISSS), 8 Biss- 306-9 (1878), cases. See also 16 Ala. 221 ; 511 Cal. 665; 38 Ind. 454; 54 N. H. 37; 31 Me. 439; 77 Mo. 173; 30 Hun, 6.53,635; 20 Johns. 514; 33 N. Y. 581; 23 Pa. 63; 51 id. 340-50; 39 Vt. 634; 4 Gratt. 479; 1 Am. Law Reg. I-ll (18.53), 'cases; 19 Cent. Law J. 233-30 (1834), cases; 3 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, pt. 2, 1205-51, cases. < Schouler, Wills, § 63, cases. 6 See Fisli v. Flores, 43 Tex. 343 (1875). DONIS 378 DOUBLE Donate. To' give gratuitously or without consideration.! In the aotof Indiana o£ May 9, 1869, enabling a city to aid the construction of a railroad, etc., " donation " means an absolute gift or grant of a thing without any condition or consideration.^ See Aid, 1, Municipal. Letting the labor of convicts in consideration of their being fed, clothed, etc., by the hirer, is not a " donation " or gratuity.^ DONIS. See Donum. ' DONOR; DONEE. 1. The giver, and the recipient, respectively, of personalty. See Donatio ; Donation. 3. He -who confers, and he who is invested with, a power. See.PowEK, 2. 3. He who gives, and he who receives, lands in tail, g. v. DONTTM. L. A gift. See Daeb; Do- natio. De donis. Respecting gifts — estates-tail. The first chapter of the statute of Westmin- ster 3 (13 Edw. I, 1385) is called the Statute de donis or de donis eonditionalibns. It took from donees the power of alienating their estates-tail, thus introducing perpetuities. At common law an estate-tail was known as a con- F. douter: L. dubitare (q. v.), to waiver in mind. " [ Webster's Diet. ' [Bouvier's Law Diet. • Thoreson v. Northwestern Nat. Ins. Co., 29 Minn. 107 (1882), eases. « Commonwealth v. Webster, 5 Cush. 320 (1850), Shaw, C. J. Frequently cited, as in 59 Cal. 395; 60 id. " Proof beyond a reasonable doubt " is not beyond all possible or imaginary doubt, but such proof as precludes every reasonable hy- pothesis except that which tends to support. It is proof "to a moral certainty," as dis- tinguished from an absolute certainty. As applied to a judicial trial for crime, the two phrases are synonymous and equivalent; each has been used by eminent judges to ex- plain the other; and each signifies: Such proof as satisfies the judgment and con- sciences of the jury as reasonable men, and applying their reason to the evidence before them, that the crime charged has been com- mitted by the defendant, and so satisfies them as to leave no other reasonable conclu- sion possible.i See Certainty, 1, Moral. Such doubt must be founded on something growing out of the state of the testimony, which leaves a ra- tional uncertainty as to guilt, and which nothing else in the case removes. The degree of conviction of guilt gbould be something more than a bai'e prepon- derance of belief ; something more than the probabil- ity of guilt merely outweighing the probability of innocence. The mind should be able to rest reason- ably satisfied of the guilt of the accused before a ver- dict of that character is given.'' A doubt founded upon a consideration of aU the circumstances and evidence, and not a doubt resting upon conjecture or speculation.^ The jury must find the facts established to such a degree of certainty as they would regard sufBcient in the important aflau-s of life. The proof need not nec- essarily exclude all doubt.* " A doubt which a reasonable man of sound judg- ment, without bias, prejudice, or interest, after calmly, conscientiously, and deliberately weighing all the testimony, would entertain as to the guilt of the prisoner." The guilt must be established to a reason- able, not an absolute, demonstrative or mathematical, certainty.* An indefinable doubt which cannot be stated, with the reason upon which it rests, is not a reasonable doubt, within the rule that an accused is to be given the benefit of such doubt.' Not any fanciful conjecture which an imaginative man may conjure up, but a doubt which reasonably 108; 3 Monta.l3r, 162; 6 Nev. 340; 26 N. J. L. 615; 103 U. S. 312; 120 id. 440, ^ost,— commented on. 1 Commonwealth v. Costley, 118 Mass. 24 (1875), cases, Gray, C. J. ; cited, 120 0. S. 440, post. "United States v. Gleason, 1 Woolv. 137 (1867), MiUer, J. 3 United States v. Knowles, 4 Saw. 621 (1864), Field, J. ' United States v. Wright, 16 F. B. 114 (1883), Bil- lings, J. s state V. Bounds, 76 Me. 125 (1884), Peters, C. J., quoting State v. Reed, 62 id. 144, 142-45 (1874). 'People V. Guidici, 100 N. Y. 510 (1685); 3 Greenl. Ev. § 29. DOUBT 380 DO WEE flows from the evidence or the want of, evidence; a doubt for which a sensible man could give a good reason, based upon the evidence; such a doubt as h^ would act upon in his own concerns. 1 It is difficult to conceive what amount of conviction would leave the mind of a juror free from a reason- able doubt, if it be not one which is so settled and fixed as to control his action in the more weighty and important matters relating to his own affairs. Out of the domain of the exact sciences and actual observa- tion there is no absolute certainty. The guilt of the accused, in the majority of cases, niust necessarily be deduced from a variety of circumstances leading to proof of the fact. Persons of speculative minds may in almost every case suggest possibilities of the truth being different from that established by the most convincing proof. Jurors are not to be led away by speculative notions as to such possibilities.'' " The jiu-y are not to go beyond the evidence to hunt up doubts, nor must they entertain such doubts as are merely chimerical or conjectural." To justify acquittal, a doubt must arise from an impartial inves- tigation of all the evidence, and be such that, " were the same kind of doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause." " If , afteV con- sidering all the evidence, you can say you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt; . . you are not at liberty to disbelieve as jurors, if, from the evi- dence, you believe as men." ^ An instruction which says that the doubt must be "real," substantial, well-founded, arising out of the evidence, is not reversible.' As to questions relating to human affairs, a knowl- edge of which is derived from testin^ony, it is impos- sible to have the kind of certainty created by scientific demonstration. The only certainty we can have is a moral certainty, which depends upon the confidence placed in the integrity of witnesses, and their capac- ity to know the truth. If, for example, facts not im- probable are attested by numerous witnesses who are credible, consistent, uncontradicted, and had every opportunity of knowing the truth^ a reasonable or moral certainty would be inspired by their testimony. In such case a doiibt would be unreasonable, imag- inary, or speculative, which it ought not to be. It is not a doubt whether the party may not possibly be innocent in the face of strong proof of his guilt, but a sincere doubt whether he has been proved ginlty, that is called "reasonable." And even where the testimony is contradictory, so much more credit may be due to one side than the other, that the same result will be produced. On the other hand, the opposing proofs may be so nearly balanced that the jury may justly doubt on which side lies the truth. In such case the accused is entitled to the benefit of the doubt. As certainty advances, doubt recedes. If one is reason- ably certain, he cannot, at the same time, be reason- I [United States v. Jones, .31 F. E. ?84 (188T), Speer, J. ; ib. 718, note. ' Hopt V. Utah, ISO U. S. 439^^1 (1887), cases, Field, J. s apies et al. v. People, 122 111. 251-52 (1887), cases. 4 State V. Blunt, 91 Mo. 506 (1887), cases. ably doubtful, that is, have a reasonable doubt, of a fact. All that a jury can be expected to do is to b© reasonably or morally certain of the fact which they declare by their verdict' See also Evidence; Pbb- pondbrancb; Proof. Doutatftil. Where, ^t the date of an assignment, certain choses were reported as "doubtful," it was held that the assignee could not be charged with them unless the creditors proved that they might have been collected by due diligence." DOWER.s The interest which the law- gives a widow in the realty of her deceased husband. Compare Dowry. The life estate, created by law, where a man is seised of an estate of inheritance, and dies in the life-time of his wife.* In the common law, that portion of lands or tenements which the wife has for the term of her life of the lands or tenements of her husband after his decease, for the sustenance of himself and the nurture and education of her ohildren.5 Tenant in dower is where the husband of a woman is seised of an estate of inheritance and dies; the wife shall then have the third part of all the lands and tenements whereof he was seised at any time during the coverture, to hold to herself for the term of her natural life.^ Dowable. Entitled to dower, subject to dower ; endowable : as, a dowable interest in lands, dowable lands. Dowager. A widow endowed; particu- larly, the widow of a person of rank. Dow- ress. A widow entitled to dower; a tenant in dower. Endo-w. To assign dower to ; to become invested with rights of dower. Whence endowable. See Ekdow. The widow must have been the actual wife of the party at the time of his decease. She is endowable of all lands and tenements of which her husband was seised in fee-simple or fee-tail, at any time during the covertiu-e, and of which any issue she might have had might by possibility have been heu". . . There was also dower by custom; as, that the wife should have a quarter, a half, or all of the land; dower ad ostium J United States v. Ouiteau, 10 F. E. 164 (Jan. 25, 1882), Cox, J. See Miles v. United States, 103 U. S. 313 (1880), cases; 9 Pet. *601; 18 Wall. 545; 70 Ala. 45; 37 Conn. 360; 67 Ga. 163; 39 111. 457; 100 id. 242; 104 id. 364; 23 Ind. 170; 64 Iowa, 90; 29 Kan. 141; 1 Duv. (Ky.) 228; 9 Bush, 593; 38 Mich. 482; 44 id. 230; 14 Neb. 540; 42 N. Y. 6; 4 Pa. 374; 83 id. 141^42; 3 Heisk. 28. 2 Wimbish v. Blanks, 76 Va. 365, 369 (1882). 2F. dpuaire; L. dotare^ to endow: doi-, to give. 14 Kent, 35; 71 Ala. 81. 1 Coke, Litt. 30 6, 31 a; Sutherland v. Sutherland, 69 111.485(1873); 4 Kent, 33. ' 2 Bl. Com. 129-30. DOWER 381 DRAFT 3cclesice; when a tenant in fee-simple, at the church Joor (where marriages were celebrated), after affiance Dttade, endowed the wife with a certain part ot his lands; dovfevexassensupatris: when a son, by e: press igreement of his father, endowed his wife with a part of the father's possessions.' Dower ad ostium eccUsim and ex assensu patris were abolished by 3 and 4 Will. IV (1833), c. 105. Dower given by the law is the only kind which has e^^r ob- tained in this country. . . During the life of the husband the right is a mere expectancy or possibility. Not being a natural right, but being conferred by law alone, the power that gives may increase, diminish, or otherwise alter it, or even wholly take it away. Upon the death of the husband, the right of the widow becomes vested.' The law of the situs determines rights of dower. At common law the widow has dower: in an estate in common; in incorporeal hereditaments; in mines opened by the husband. She now has dower in wild lands; in an equity of redemption; in some States only in what her husband dies seised of. * At common law she has no dower: in an inherit- ance of which her husband had no right of immediate seizin; in a term of years (personalty); in an estate in joint- tenancy, except as widow of the survivor; in an estate held for another's life; in a vested re- mainder. Nor, generally, has she dower now: in a pre- emption claim; in shares of a corporation; in an estate held in trust by him, but otherwise as to his equitable estates; in a mortgagee's estate, till irre- deemable; in partnership lands, before the debts are paid ; ' in a contract to purchase which he cpnld not enforce. The right may be defeated by any claim which would have defeated the husband'sseisin: at common law, by alienage,— a rule now generally changed; by foreclosure of a mortgage made by him before mar- riage, or made for purchase-money after marriage: in some States, by sale on an execution for a debt; by sale for taxes; by an exercise of the right of eminent domain; by dedication to a public use; not, by an as- signment in insolvency or bankruptcy — as see below. The right may be baiTed: by divorce a vinculo, she being the delinquent; by elopement and adultery; by a jointure; by a joint conveyance duly acknowl- edged,— the common method; by equitable estoppel; by taking what he wills her. Dower was to be assigned or set out, by right, imme- diately upon his death. Magna Charta allowed her to occupy his principal " mansion-house " forty days, if on dowable lands. One mode of assigning was by "common right "—by legal process; another mode, " against common right," rested upon her agreement. The former was by metes and bounds; the latter by indenture. Procedure for assignment has been called " admeasurement." As against the heir the value at assignment is regarded; as agamst an alienee the value at transfer, and, according to numerous decis- ions, the increase from general improvement. Two or more widows may be endowable out of the ' 2 Bl. Com. 130, 131, 133. SEandall v. Kreiger, 23 Wall. 147 (1874); 25 Minn. 404. 3 Lenow v. Fones, 4S Ark. 560-67 (1886), esses. same realty. The estate is a continuation of the hus- band's. The widow may convey it away; and it may be levied upon. The right, being no part of his estate, is not affected by proceedings in bankruptcy against him.' A woman who is sui juris may, by ante-nuptial contract, relinquish the right," Writ of dower. Process to secure an " assignment" of dower. Writ of dower unde nihil Jiabet — whereof she has nothing : complains that assignment has nqt been made within time.s See further subjects mentioned, and Husband; Parapheonalia; Quakaktine, 1 ; Settle, 4; Table, 4. DOWRY. That which the wife gives the husband on account of marriage, — a donation toward his maintenance and the support of the relation.* In Louisiana, " theefCects which the wife brings the husband to support the expenses of marriage." Being given to him to be enjoyed during the marriage, the income is his absolutely. He is to administer the property. She cannot deprive him of it. Realty is inalienable during marriage, unless the contract stip- ulates otherwise.^ " Dowry," " dowery," and " dower " are etymolog- ically different forms of the same word. " Dowery " is obsolete. In Massachusetts, neither " dowery " nor " dowry " has ever meant " dower," " q. v. DRAFT. 7 1, n. (1) A drawing, delinea- tion, sketch. See CoPYRiaHf. (2) In common speech, a bill of exchange.* See Exchange, 2. Any order for the payment of money drawn by one person upon another." Also, money checked out of a bank by this means. The drawer is he who prepares the order; the drawee, he to whom it is addressed. Drafts, as used in the collection of debts, are not usually negotiable. The oflce of a draft is to collect for the drawer, from the drawee, residing in another 1 Porter v. Lazeffr, 109 U. S. 86 (1883); Lazear v. Porter, 87 Pa. 313 (1878). ' Earth v. Lines, 118 111. 382 (1886), cases; Forwood v. Forwood, Sup. Ct. Ky. (1887), cases. 3 See generally 2 Bl. Com. 130-37; 3 id. 183, 194; 4 Kent, 35-72; Williams, R. P. 223-28; 1 Washb. R. P. •146-262; 1 Story, Eq. §§ 024-32; 3 Pomeroy, Eq., In- dex; 1 Bouv. 504-67, cases; Mayburry v. Brien, 15 Pet. 21 (1841), cases. 4 [Cutter V. Waddingham, 22 Mo. 254 (1855): 1 Parti- das, 607. 6 De Young v. Tie Young, 6 La. An. 787 (1851) ; Buard V. De Eussy, 6 Rob. 113 (1843); Gates v. Legendre, 10 id. 78 (1846). • Johnson v. Goss, 132 Mass. 275-76 (1882). ' Originally draught,— Webster. 6 2 Bl. Com. 467; 39 N. Y. 100. ■ » [Wildes V. Savage, 1 Story, 30 (1839). DRAIN 382 DRAW place, money to which the former may be entitled, either on account of balances due or advances upon consignments; and although they may sometimes be used for raising money that is not the necessary -or ordinary purpose for which they are employed.* See Assignment, Equitable; Duplicate. Overdraft. The demand against a de- positor in a bank after he has drawn out more money than his balance; also, the act of drawing too much, and the state of the account thereafter. 2 As between a banking firm and a depositor not a member of the firm, an overdraft is a loan. The pay- ment of the latter's check when no funds stand to his credit is an advance by the firm of its own money, for the repayment of which, with la^vf ul interest, the cus- tomer is liable. It is payable absolutely and in full, without abatement or contingency, and so constitutes a loan in ^1 its characteristics. If more than legal in- terest is paid, the borrower loses the excess above the legal rate, and if the contract stands and is carried out, the loss is absolute and certain. But the situation changes when the person making the overdraft is a member of the firm which advances it.' (3) An allowance to an importer, when a duty is ascertained by weight, to insure good weight. " Tare "lis allowed for the covering on the article.* 2, V. To prepare in writing. See Draw, 3. Braftsman. In ^equity practice, a person who prepares pleadings; also, one who man- ually writes a will. DEAIN. 1, n. Any hollow space in the ground, natural or artificial, where water is collected and passes off; a ditch. 5 Compare GUTTEB, 3, V. To rid land of its superfluous moist- ure, by deepening, straightening, or embank- ing the natural water-courses, and supple- menting them, when necessary, by artificial ditches." An easement to drain water through another's land may be acquired by grant or prescription.^ Drainage. As a matter of legal definition it can- not be said that sewerage may not, in cases, be in- cluded in drainage; yet when the simple word "drain- age " is used, as appurtenant to lands, the most obvious suggestion is drainage of water. ^ See Aqua, Currit, etc.; Meadow; Sewer. lEvansville Nat. Bank v. Kaufmann, 93 N. T. 280 (1888), Euger, C. J. ' [Abbott's Law pict.; M N. J. L. 484. s Payne v. Freer, 91 N. T. 48 (1883), Fmch, J. ; 2 Utah, 411. « Napier v. Barney, 6 Blatch. 192 (1863), Nelson, J. 6 Goldthwait v. East Bridgewater, 5 Gray, 64 (1855).] 'People V. Parks, 68 Cal. 639 (1881); ib. 648. 'See 3 Kent, 436. , e Wetmore v. Kske, 15 E. I. 859 (1886). DBAM. In common parlance, implies that the drink has alcohol in it — something that intoxicates.! DRAMA. A public representation of an uncopyrighted play by the author, for his own advantage, is not a dedication of the play to the public. A spectator may take notes for any fair purpose, as, for comparison with other works, or for comment as a critic. A ticket of admission is a license to wit- ness the play, not to reproduce it, if the spectator can recollect it or stenograph it. In whatever mode a copy is obtained, a subsequent unauthorized repre- sentation, operating to deprive the author of his ex- cliisive rights, will be enjoined." See Copyeight; Eevibw, 3; Theater. DRAW. 1. To take from a place of de- posit ; to call for and receive from a fund : as, to draw money from a bank or a trust, to draw a dividend or share. 3. To take names from the authorized re- ceptacle : as, to draw a jury. 3. To write in form, prepare ; to draw up : as, to draw, or draw up, a document or writ- ing — deed, bill in equity, will, etc. 4. To produce, gain : as, for money to draw interest. 5. To drag (on a hurdle) to the place of ex- ecution: as, to draw a traitor, and to be drawn.3 See Treason. Draivback. A remission of money paid as freight, taxes, or other charges. Compare Rebate. See Commerce, page 201, Act of 1887, sec. 2. A refunding of duties paid upon imported merchandise which becomes an export.* Dra'wbridge; draw. A contrivance by which a section of a bridge across a navi- gable water is turned upward or at right angles to itself, and parallel with the direc- tion of the stream, so as to admit of the pas- sage of vessels through the open space.' See Bridge. Drawee; Drawer. See Draft, 1 (3). Drawing. See Copyright. 1 Lacy V. State, 83 Tpx. 228 (1869). As to dram-shop keeper, see State v. Owen, 16 Mo. *607 (1852). ' « Tompkins v. Halleck, 133 Mass. 32, 45 (1882), cases; Keene v. Wheatley, 9 Am. Law Reg. 33-103 (C. C, B. D. Pa., 1860). > See 4 Bl, Com. 92, 377. * See R. S. tit. XXXIV, Ch. 9. Hughes V. Northern Pacific B. Co., 18 F. R. 114 (1888). Law as to. Gates v. Northern Pacific R. Co., 64 Wis. 64 (1886). DRAYMEN DRUMMER DRATME3S". See Police, 3. Srayage. Where, to keep a wharf in repair, a toll was charged on coal taken from the wharf in vessels or warehoused "without drayage," it was held that the reference was to loaded conveyances, and included a tramway supported by pillars resting upon the wharf.' DRED SCOTT CASE. See Citizen; Slavery. DREDGE. Originally, a net or drag for taking oysters ; now, a machine for cleansing canals and rivers, — a dredger. To dredge is to gather or take with a dredge ; to remove sand, mud, etc., with a dredging machine, A dredge is not a " vessel." 2 DRrPT-STUPF. Matters floating at random, without any discoverable owner, and which, if cast ashore, will probably never be reclaimed, but belong to the riparian pro- prietor.' A right to " sea manure " is a right to appropriate the random drift and refuse of the ocean, but not goods washed afihore from a wrecked vessel.' DRIP. See Easement. DRIVER. See Livebt, Keeper ; Nijgli- GENCE. DROIT. F. A right; law abstractly considered. Opposed to Idi: law in the concrete sense. Equiva- lent to jtis in the Roman law. See Monstbans. Autre droit. Another's right. En autre droit. In another's right. Applied to an ad- ministrator, executor, guardian, prochein ami, or other representative of another's rights or interest.* Droit civil. A private right independent of citizenship. Droit-droit. A right upon a right; a double right: rights of possession and of property joined — necessary to a complete title to land. A jus duplicatum." Droit international. International law. Droit maritime. Maritime law. Droit of admiralty. In English law, applied to a ship of the enemy taken by an uncommissioned subject; and to a vessel seized in a port, on the breaking out of war. Also spoken of as an admiralty droit.^ »Soule V. San Francisco Gas Light Co., 64 Cal. 241 (1880). = The Nithsdale, 15 XTp. Can. Law J. 269 (1879). 'Watson V. Knowles, 13 E. I. 641 (1882). • See 1 Greenl. Ev. § 179. » See 2 Bl. Com. 199. •See 13 Ves. 71; 3 Bos. & P. 191; 6 Wheat. 264; 8 Cranch, 110. Droitural. Used of an action upon a writ of right, as distinguished from a pos- sessory action, upon the fact of, or right to, possession merely. DRUGGIST. In popular acceptation, one who deals in medicines, or in the materi- als used in the preparation of medicines — in its largest signification.! Properly, one whose occupation is to buy and sell drugs, without compounding or prep- aration. More restricted, therefore, than " apothecary," 2 q, v. Drugs. Substances used in compounding medicines, in dyeing, and in chemical opera- tions. " Drugs and medicines," in an insurance policy, in- cludes saltpeter.* Whether benzine is a drug is a question of fact.* See Liquor; Medicine; Oil. Adulteratihg drugs is a misdemeanor, in most of the States. In some States, competency to compound drugs must be evidenced by a certificate from a board of examiners, or from a reputable school of pharmacy. The care required of a druggist is proportioned to the danger involved. Actual negligence must be shown before he can be made Uable for the conse- quences of a mistake.^ Where a druggist informs a customer that a prepa- ration is poisonous, and correctly instructs him as to the quantity he may take, and the purchaser dies from an overdose taken in disregard of the du-ections, the druggist is not liable for a failure to label the parcel " poison," as required by a statute." Nor is he liable when he has carefully compounded a physician's prescription.' Criminal negligence, followed by fatal results, may convict him of involuntary manslaughter, g. u." See Police, 2. DRUMMER. A commercial agent who travels for a wholesale pierchant taking or- ders for goods to be shipped to retail dealers.' An agent, such as is usually denominated a " drum- mer " or " commercial traveler," who simply exhibits samples of goods kept for sale by his principal, and > [Mills V. Perkins, 120 Mass. 43 6876), Ames, J. 'State V. Holmes, 28 La. An. 767 (1876): Webster. Hainline ti. Commonwealth, 13 Bush, 352 (1877); 77 Mo. 128. » CoUms V. Farmville Ins. Co., 79 N. C. 281 (1878): Webster. In criminal law. " A drunkard," says Lord Coke, " who is voluntarius doEmon, hath no privilege thereby; but what hurt or ill soever he doeth, his drunkenness doth aggravate it." ^ No other rule would be safe for society.' At common law, as a rule, voluntary intoxication affords no excuse, justification, or extenuation of a crime committed under its influence. .But when a statute establishing different degrees of murder re- quires deliberate premeditation in order to constitute murder in the first degree, the question whether the accused is in such a state of mind, by reason of drunk- enness or otherwise, as to be capable of deliberate premeditation, necessarily becomes a material subject for consideration by the jury.** See Intemperate; Intoxication; Insanity; Liquor; Option, Local; Prohibition, 2. ' Murphy v. People, 90 111. 60 (1878), Per Curiam. See also Mahone v. Mahone, 19 Cal. 629 (1873); Wheeler v. Wheeler, 53 Iowa, 512 (1880) ; Walton v. Walton, 34 Kan. 198 (1885), cases; Richards v. Richards, 19 Bradw. 468 (1886), cases. 2 Johnson v. Harmon, 94 U. S. 379-82 (1876), cases; 60 Iowa, 82; g Kent, 452; 1 Pars. Contr. 383. s Thackrah v. Haas, 119 U. S. 499, 502 (1886) : 1 Wash., Va., 164; 04 N. T. 200. * 1 Story, Eq. §§ 230-31; 2 Pomeroy, Eq. § 949. « State Bank v. McCoy, 69 Pa. 807-9 (1871); McSparran V. Neeley, 91 id. 84 (1879); Gore v. Gibson, 13 M. & W. *626 (1845); Bush v. Breinig, 113 Pa. 316 (1S86): 26 Am. Law Reg. 40-41 (1687), cases; 1 Ames, Cas. Bills &N. 558; 18 Cent. Law J. 65-68 (1884), cases; 2 Kent, 451. = 1 Coke, Inst. 247; 4 Bl. Com. 26; 2 Steph. Hist. Cr. Law Eng. 165. 'United States v. Cornell, 3 Mas. Ill (1820); United States V. MoGlue, 1 Curtis, IS (1831). e Hopt V. People, 104 U. S. 6.S4-35 (1881), cases. Gray, J. See also Jones v. Commonwealth, 75 Pa. 406 (1874); Tidwell V. State, 70 Ala. 46 (1881); Honesty u Common- wealth, 81 Ta. 301 (1886); 24 Am. Law Reg. 507-11 (1876), cases; 27 id. 159-61 (1879), cases; 23 Am. Jur. 290; Bish. DRY 385 DUE DRY. See Exchange, 3; Rent; Trust, 1. DRY-DOCK. See Dock, 2 (1). DRY GOODS. See Perishable; Sam- JE. DUBITARE.i L. To doubt. Dubitante. Doubting. Affixed to the name ot a judge, in a reported se, denotes that he questions the soundness of the cision. Dubitantur. It is doubted. Indicates that a proposition as sound law is open question. Compare Qu^asRE. DUCES. See Scbpcena, Duces, etc. DUE.^ 1. Owed, or owing; payable; smandable. See Duty. Applied to debts, expresses the mere state : indebtment — is equivalent to "owed" ■ " owing; " and the fact that the debt has jconie payable.' A debt payable now or in the future is a "debt due." Debt " itself implies this. But the popular accepta- ra of *' due "' is, payable in present time.* When not qualified by a time clause, means that e money or property is due at the time of executing e instrument. • May import indebtedness without reference to the ly of payment, or that that day has passed.^ May be used not in the sense of "payable," but as iporting an existing allegation.^ In its largest sense, covers liabilities matured and imatured." A debt which has yet to originate cannot properly ! said to be a debt which is to become due.^ Due-bill. A written acknowledgment lat a sum of money ia due. Not payable to order, nor transferable by indorse- ent.i" May be payable in specific property. When no '. L. |§ 488-93; 1 Ben. & H. Ld. Cr. Cas. 113-24. Med- il Jurisprudence of, 21 Am. Law Rev, 955-62 (1887), ses. Condoning, 26 Cent. Law J. 123 (1888), cases. ^Literally, to waver in. mind, be of two minds: duo, o,— MttUer, Science of Lang. 360. ' F. deu; devoir: L. debere, to owe. ■ United States v. State Bank, 6 Pet. *36 (1833), Story, istice. 'Leggett V. Bank of Sing Sing, 25 Barb. 332 (1857); me V. Same, 24 N. Y. 286 (1862); People v. Arguello, Cal. 525 (1869); Collins v. Janey, 3 Leigh, •391 (1831); Moak, 708. ' Lee V. Balcom, 9 Col. 218 (1886), Beck, C. J. 'Scudder v. Coryell, 10 N. J. L. 345 (1829), Ewing, J.; Allen v. Patterson, 7 N. Y. 480 (1852); Bowen v. Jcum, 17 Wis. 190 (1863). 'Sand-Blast Co. v. Parsons, 54 Conn. 313 (1886). ' People V. Vail, 6 Abb. N. C. 210 (1879). I Thomas v. (Jibbons, 61 Iowa, 50 (1883). 3ee also 19 Pick. 381; 31 Mich. 215; 14 Barb. 11; 28 IX. 59; Story, BiUs, § 233, Prom. Notes, § 440. 'See Byles, Bills, 'n, n. (t). (25) time or place for payment is mentioned, before a suit to recover the amount can be maintained, a demand is necessary. 1 In Colorado an ordhiary due-bill has the character of a promissory note, whether it contains a promise to pay, or words of negotiability, or notj" See I U. Overdue; past-due. Time for paying gone by, yet not paid; matured and unpaid. " Overdue " sometimes refers to a right of action against a drawer or indorser: a bill is not then overdue until presented and payment refused. Sometimes it is used in considering whether an indorser has been released by a failure of the holder to present the bill for payment, and to give the indorser notice of its dis- honor within time. Sometimes it is applied to a bill which has come into the hands of an indorser so long after its issue as to charge him with notice of its dis- honor, and thus subject it in his hands to the defenses which the drawer had against it in the hands of the assignor.' " Past-due interest " means interest which has ma- tured, and is collectible on demand. . . Money may be " owing " which is not "due." A man owes the money represented by his note; but the money is not due until the note matures.* A note overdue, payable to bearer, passes, by de- livery, the legal title subject to all equities between the original parties.* Indorsing such a note is equiv- alent to making a new note payable at sight." Underdue. Not yet payable ; unmatured. In the absence of proof, the law presumes that a note taken is underdue.' See Negotiate, 2 ; Payment. 3. Required by circumstances; proper; ex- ecuted by law ; timely : as, due care or dili- gence, qq. V. 3. Regular ; appropriate ; usual ; according to legal form, in legal manner, conformably to law: as, due course or process of law; due form, notice, service, return, qq. v. The ',' due execution " of a writing relates to the manner and form of execution by a person competent under the law of the place.* Duly. In due manner ; regularly ; legally. In the proper way, regularly, according to law:' as, duly acknowledged, notified, served, sworn.. 1 Winder v. Walsh, 3 Col. 548 (1877). n Lee V. Balcom, 9 Col. 218 (1886), Beck, C. J. » La Due ti. First Nat. Bank of Kasson, 31 Minn. 38 (1883), Mitchell, J. * Coquard v. Bank of Kansas City, 12 Mo. Ap. 265 » See Nat. Bank of Washington v. Texas, 20 Wall. 88 (1873). "Colt V. Barnard, 18 Pick. 261 (1836); Morgan v. United States, 113 U. S. 499-500 (1886), cases. ' New Orleans, &c. Co. v. Montgomery, 95 U. S. 18 (1877). » Cox V. Northwestern Stage Co., 1 Idaho, 376 (1871). ' Gibson v. People, 5 Hun, 543 (1875). DUEL DUPLICITY " Duly and legally appointed," in an tndiottnent, may be sufScient without stating by whom appointed.' " Duly assigned " may require a transfer in writ- ing." " Duly eonrened " means regularly convened.' " Duly presented " means presented according to the custonl of merchants.^ " Duly recorded " means recorded in compliance with the requirement of law." 4. Just, lawful, legal: as, due rights. ^ Undue. Improper, wrongful, unlawful: as, undue concealment, influence, qq. v. DUEL.f In ancient law, a flght between two persons for the trial of the truth in a doubtful case.8 Actually fighting with weapons in pursu- ance of an agreement.' If either participant is killed, the dttense is murder in the survivor, seconds, and spectators; otherwise, the offense is a misdemeanor,**' Under the constitutions of several States, as of Ken- tucky, Pennsylvania, and Wisconsin, participation in a duel disqualifies from holding office.^' See Ai'I'hay; Ghallenoe, 1; Combat. DULY. See Due, 3. DUM. l! While. Compare Durante. Dum bene se gesserit. While he be- haves well. Dum fervet opus. While the affair is warm : while the transaction is fresh. A party's own admission, whenever made, may be given in evidence against him; but the declaration of his agent binds him only when made during the con- tinuance of the agency in regard to a transaction then depending et dum fervet opus.^^ See AnMissioN, 2. Dum sola. While single, or unmarried. DUMB. See Idiot; Will, 2; Witness. A person who is dumb, uneducated in the use of signs, and merely able to assent or dissent to direct questions by a nod or shake of the head, may be a legal witness, but the Jury should be instructed that, because it was not possible to cross-examine him, the weight of bis testimony is reduced. *' ' Commonwealth v. Chase, 127 Mass. 13 (1879). "Eagland v. Wood, 71 Ala. 149 (1881); ib. 335; 139 Mass. 16. "T 8 People V. Walker, 3 Bai-b. 305 (1858). < gchofleld V. Bayard, 3 Wend. 491 (1833). » Dunning v. Coleman, 27 La. An. 48 (187^). "Eyerson v. Boorman, 8 N. J. E. 705 (1819). ' It. duello; L. duellum^ a fight between two — duo. 8 [Jacob's Law Diet. « [Herriott v. State, 1 McMul. *130 (S. Car., 1841). "4 Bl. Com. 199, 145; 2 Bish. Cr. L. §| 310-15; 1 Arch. Cr. Pr. 926-39; 1 Euss. Cr. 443; 2 Chitty, Cr. L. 728, 848; 3 Steph. Hist. Cr. L.' Eng. 99-104. " See Commonwealth v. Jones, 10 Bush, 725 (1874). i»l Greenl. Ev. § 113; Long v. Colton, 116 Mass. 415 (1875); 66 Ga. 367. " Quinn v. Holbert, 55 Vt. 228 (1882). DUNGEON". An. underground apart- ment in a prison, for the confinement of re- fractory Convicts. DUPLICATE.i The double of anything ; an original repeated ; a document the same as another; a transcript equivalent to the first or original writing ; a counterpart : as, a duplicate bond, certificate, check or draft, land-warrant, receipt, will. See Original, 2. A document essentially the same as an- other.2 A document the same in all respects as some other document, from .which it is indistin- guishable in its essence and operation.' "Duplicate," written across the face of a draft given to replace a lost draft of the same tenor, imports that the draft is to take the place of the original, that no new liabllify is created by it.' Each duplicate writing is complete evidence of the intention of the parties. The deliberate destruction of one, as, of a duplicate will, creates a presumption that the other was also to be destroyed.^ See Evidence, Secondary. Duplicate United States bonds will be issued, when the originals'are defaced or destroyed.^ DUPLICITY.' Double pleading. Al- leging two or more distinct grounds of com- plaint or defense wlien one would be as ef- fectual as both or all.8 Because it produces useless prolixity, and tends to confusion, and to the multiplication of issues, regarded as a fault in all pleading.' Predicated of a plea which contains more than one matter. To avoid a multitude of issues in one dis- pute every plea is to be confined to a single point. "Duplicity begets confusion," that is, defeats the ob- ject of all pleading — a single issue upon the same matter. 10 In criminal practice, joining two or more distinct offenses in one count, i' Not applicable to the union of several fact@ in one matter, nor to matters of explanation, nor where but one of the defenses is valid. *L. duplicafus, two-fold: duplicare, to double. = [Toms V. Cuming, 49 E. C. L. 94 (1845). ' Lewis V. Eoberts, 103 E. C. L. ''29 (1861), Erie, C. J. * Benton v. Martin, 40 N. Y. 347 (1869). '1 Whart.Ev. §74; 1 Greenl. Ev. §5S8. , « R. S. § 3702. ^ F. duplicitS: L. duplicitatem^ doubleness. ^ [Gould, Plead. 389. Approved, — Sprouse v. Com- monwealth, infra. ' [Sprouse u Commonwealth, 81 Va. 376 (1886), Lacy, J. '"S Bl. Com. 308, 311; 1 Chitty, Plead. 226; 10 Me. 63; 21 N. J. L. 344; 2 Johns. 465; 7 Cow. 452; 10 Vt. 353; 11 F. E. 238. " Tucker V. State, 6 Tex. Ap. 253 (1879); State v. Gor- ham, 55 N. H. 163 (1875); 1 Bish. Cr. Proc. S 432. DURANTE DURESS May exist in any part of the pleadinRs. At common law was a fatal defect, reached by special demurrer; but not now so regarded: in the discretion of the court, tolerated for the fm-therance of justice.' See DiscLAiMEB, 4; Pleadino; Repugnant DURANTE. L. During, while. Com- pare Dun. Durante absentia. During absence. See Administratoe. Durante bene placito. During good pleasure. See Behavior. Durante minor e SBtate. During minor- ity. See Administrator. Durante viduitate. During widow- hood. Durante vita. During life. DUKESS.2 In its more extended sense, that degree of constraint or danger, either actually inflicted or threatened and impend- ing, which is sufficient, in severity or in ap- prehension, to overcome the mind and will of a person of ordinary firmness. 3 Actual violence is not necessary to consti- tute duress, even at common law, as under- stood in the parent country, because consent is the very essence of a contract, and, if there be compulsion, there is no actual consent, and moral compulsion, such as that produced by threats to take life or to inflict great bod- ily harm, as well as that produced by im- prisoimient, is everywhere regarded as suffi- cient, in law, to destroy free agency, without which there can be no contract, because, in that state of the case, there is no consent. Text- writers divide the subject into duress per minas and diiress of imprisonment. This classification was uniformly adopted in the early history of the common law, and is generally preserved in the decisions of the English courts. Where there is an arrest for an improper purpose, without just cause, or where there is an arrest for a just cause but without law- > See 8 Ark. 378; 8 Ind. 96; 33 Mass. 104; 32 Mo. 185; S N. H. 413. 2 Ihi'-ress. Mid. Eng. dui-esse; F. dureace: L. duritia, larshness; durus, severe. » Brown v. Pierce, 7 Wall. 314-16 (1868), cases, Clif- ord, J. Quoted or cited, Baker v, Morton, 13 id. 157 1870); French v. Shoemaker, 14 id. a33 (1871); United 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. "ref. ir ; 2 Whart. Ev. §§ 031, 1099; 1 Story, Eq. § 239; 2 'omeroy, Eq. § 950, cases. ful authority, or for a just cause but for an unlawful purpose, even though under proper process, it may be construed as " duress of imprisonment;" and if the person arrested executes a contract or pays money for his release, he may avoid the contract as one procured by duress, and recover the money in an action for money had and received. " Duress per minas," as defined at; com- mon law, is where a party enters into a contract for fear of loss of life, loss of limb, of mayhem, or imprisonment. Many modern decisions of the courts of England still re- strict the operation of the rule within those limits. Those decisions deny that contracts procured by menace of a mere battery to the person, or of trespass to lands, or loss of goods, can be avoided on that ac- count, and the reason assigned is that such threats are not of a nature to overcome the mind and will of a prudent man, because if such an injury is inflicted adequate redress may be obtained in a suit at law. Cases to the same effect may be found in the re- ports of decisions m this coimtry, and some of our text-writers have adopted the rule that it is only where the threats uttered excite fear of death, or of great bodily harm or unlawful Imprisonment, that a contract, so procured, can be avoided, because, as such courts and authors say, the per.son threatened with slight injury to the person, or with loss of property, ought to have sufficient resolution to resist such a threat, and to rely upon the law for his remedy. On the other hand there are many Ameriean.decis- ions of high authority which adopt the more liberal rule that a contract procured by threats of battery to the person, or of the destruction of property, may be avoided on the ground of duress, because in any such case there is nothing hut the form of a contract. But all cases agree thata contract procured through fear of loss of life, produced by the threats of the other party, wants the essential element of consent, and may be avoided for duress. * "Diu-ess of imprisonment " is a compulsion by an illegal restraint of liberty. This will avoid an extorted bond. But if a man is lawfully imprisoned, and to procure his discharge, or on any other fair account, seals a bond or a deed, this is not by such duress." In the law of homicide, in selfrdefense, "duress of imprisonment '^ is where a man actually loses his lib- erty. " Duress per minas " is where the hardship is only threatened and impending, and is for fear of loss of life, for fear of mayhem, or loss of limb. And this fear must be upon sufficient reason — before a man may kill in self-defense. A fear of battery is no du- ress; neither is fear of one's house being burned, or of one's goods being taken away and destro.ved; because for these a man may have satisfaction in damages, 1 Brown v. Kerce, ante. ' 1 Bl. Com. 136; Heckman v. Swartz, 64 Wis. 55-68 (1885); 59 Pa. 444. DURESS 388 DUTY but no suitable atonement can be made for loss of life or limb.i "Duress of goods" is by unlawfully seizing or withholding property, or threatening to do so, till some demand be acceded to. The payment of money by the owner of goods in order to redeem them from the hands of a person who unlawfully withholds them and demands such money, may be treated as a compulsory payment, so that the amount is recoverable, as having been obtained by oppressive means. The owner of the goods may have so urgent occasion for them that the ordinary action would afford imperfect redress.* Duress exists where one, by the unlawf nl act of an- other, is induced to make a contract or to perform some act under circumstances which deprive him \>f the exercise of free will. . . " Duress of the per- son" is by imprisonment, by threats, or by an exhi- bition of force which apparently cannot be resisted. . . " Duress of goods " may exist when one is com- pelled to submit to an illegal exactjon in order to obtain them from one who has them in possession but refuses to surrender them unless the exaction is sub- mitted to.^ To constitute coercion or duress sufiElcient to make a payment involuntary, there must be some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immedi- ate relief than by making the payment.* Excessive charges, involuntarily paid to railroad companies refusing to cany or deliver goods, have been recovered on the ground of distress.* Mere vexation and annoyance do not constitute such duress as will justify setting aside a deed, unless insanity ensued and existed at the time of execution." Threats of lawful prosecution, resorted to to over- come the will through intimidation, will avoid a con- tract thereby obtained.' Regard is had to age, sex, and condition. If the threats are such as tend to deprive a particular person of his freedom of will he will be relieved from liabil- ity, althouglx the same threats would not produce a like effect on a firm and courageous man.^ Where there is no arrest made nor force used, simply threats uttered, the question as to the duress by which a promise is alleged to have been obtained ' 1 Bl. Com. 131; 4 id. 30; United States v. Haskell, 4 Wash. 406 (1823). ' = Chitty,iContr. 62S. See also .White v. Heylman, 34 Pa. 144(1859); Miller 7). Miller, 68 id. 493(1871); Motzti. Mitchell, 91 id. 117 (1879); Block r. United States, 8 Ct. CI. 461 (1872); 35 Tex. 77; 59 id. 478; 101 U. S. 470. " ' Hackley v. Headley, 45 Mich. 574 (1881), Cooley, J. • Eadich v. Hutchins, 95 U. S. 313 (1877), cases. Field, Justice. ., 6 See Garton v. Bristol, &c. K. Co., 28 L. J. Exch. 169 (1859). 8 Brower v. CoUander, 105 111. 100 (1882). THaynes v. Rudd, 30 Hun, 339 (1883); 24 Pa. 347; 31 id. 73. 'Jordan v. Elliott, 12 W^ N. C. 56, 59 (1883). See gen- erally 34 Cent. Law J. 75 (1887), cases. , 'is ordinarily one of fact. It must be shown that the threats constrained the will of the prornisor.' See Coercion; Consent; Inkccence; Payment, Com- pulsory. DURING. See Dum; Durante; Fob. DUTCH. See Auction. DUTY. 1. What one ought or ought not to do ; legal obligation. See Due. " Duty " and " right " are correlative terms. Such rights as are due from the citizen are called "civil duties." All social duties are of a relative nature — due from one man to another. 2 When a right is invaded a duty is violated. A "public duty" is one owing to the community; a "private duty " is an obligation to be observed toward one or more individuals. In an action for non-fulfill- ment, it is essential to show : the duty, a breach thereof, and the resulting damage. When the law " casts a duty " upon one, he is answerable for any damage consequent upon non-performance. ^ Laws designed to enforce moral and social duties stand on the best and broadest basis. Though it is not every such duty the neglect of which is the ground of an action. For there are what are called in the civil law duties of ''imperfect obligation," for the enforc- ing of which no action lies.* See Assumpsit; Care; Charge; Demand; Knowl- edge, 1; Neoligenoe; Obligation, 1; Power, 1; Pre- sumption; Right; Undertaking. 3. An indirect taji, imposed on the impor- tation, exportation, or consumption of goods.^ A " custom " is a duty imposed upon imports or exports.® Duties. Things due and recoverable by law. The term, in its widest signification, is hardly less comprehensive than "taxes;" in its most restricted meaning, is applied to '■ customs," and in that sense is nearly the synonym of " imposts." 6 Whence dutiable, and non-dutiable. Ad valorem duty. A sum ascertained by a percentage on the value of the article — not necessarily the actual value. Specific duty. A fixed sum payable upon an article by name.' 1 Dunham v. Griswold, 100 N. Y. 226 (1885), cases; Fisher v. Bishop, 36 Hun, 114 (1885), cases. As a defense 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 (1885), cases. ' See Broom, Com. Law, 109, 661 c, 655, 670-80. * Pasley v. Freeman, 3 T. R. 63 (1789), Kenyon, C. J. ' Cooley; Taxation, 3. ' Tomlins, Law Diet. ; Pacific Ins. Co. v. Soule, 7 Wall. 445 (1868); Hylton v. United States, 3 Dall. *175 (1796); 1 Story, Const. § 952. 'See United States v. aement, 1 Crabbe, 512 (1843); 18 F. R. 394. DWELLING 389 DYING Laws regulating the payment of duties are tor prac- tical application to commercial operations, and to be understood in a commercial sense. It is to be pre- sumed that Congress intended them to be so under- stood.' The commercial will prevail over the ordinary meaning of words, where the intent is apparent." If an article is found not enumerated in the tariflE laws, the first inquiry is whether it bears a similitude in material, quality, texture, or the use to which it may be applied, to any article enumerated as charge- able with duty. If it does, and the similitude is Sub- stantial, it is to be deemed the same. Though not sperafically enumerated, it is provided for under the article it most resembles. If nothing is found to 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 leave the law open to evasion.^ See Cutlery. The common-law right of action to recover duties illegally collect^ is taken away by the statutory rem- edy. The time for commencing the action is within ninety days after an adverse decision by the secretary of the treasury on appeal, but if he fails to render a decision within ninet.y days the importer may begin suit at once, or await the decision and sue within ninety days thereafter.* i The plaintiff, within thirty days after notice of the appearance of the defendant, must serve a bill of the particulars of his demand, giving, among other items, the date of the appeal, and of the decision of the sec- retary. This requirement malces it unnecessary to state the same facts in the declaration.' No recovery can be had for duties paid after the importer has received the goods, although paid under protest." When a reliquidation of duties talres place its date is the final liquidation for the purpose of protest. A departmental regulation which has been acqui- esced in for many years is not to be disregarded with- out the most urgent reasons.' See Appraise; Commerce; Customs; Drawback; Entry,!!, 8; Excise; Impost; Negligence; Nosoitur; Payment, Involuntary; Protest, 1 ; Rbifunds; Smuggle. DWELLING. A person has his dwell- ing where he resides permanently, or from which he has no present intention to remove. See Abode ; Domicil ; Reside. Dwelling-house. 1. A description of realty, as a dwelling-house, in a deed, may 1 United States v. Casks of Sugar, 8 Pet. 279 (1884); 16 Op. Att-Gen. 369. "Newman v. Arthur, 109 U. S. 137 (1883); Arthur v. Morrison, 96 id. 110 (1877), cases; Worthington v. Ab- bott, 124 id. 434 (1888). 'Arthur v. Fox, 103 U. S. 128 (1883), Waite, C. J.; R. S. § 2499; Hen-man v. Arthur, 127 id. 363 (1888). * Arnson v. Murphy, 109 U. S. 238 (1883); Snyder v. Marks, ib. 193-4 (1883), cases. 'Beard v. Porter, 124 U. S. 437 (1888), cases. •Porter i>. Beard, 124 U. S. 439 (1888), cases; E. S. S3011. ' Robertson v. Downing, 127 U. S. 613 (1888), cases. pass a house, the buildings belonging to it, its curtilage, garden, orchard, and the close on which it is built, with reasonable limita- tions according to the circumstances of the case.i See Grant. 2; Curtilage. Includes such buildings and attachments as are for the ordinary purposes of a house." 3. In a statute against pulling down dwell- ing-houses to alter a highway, doefs not in- clude a billiard saloon. 3 3. In a homestead exemption law, may not embrace a building adapted to purposes of business, as, a saloon, a store, or a public hall.* 4. In the New York statute defining arson, includes any edifice usually occupied by per- sons lodging therein at night; not, a ware- house, barn, shed, or other out-house, un- less part of a dwelling-house.^ See Arson. 5. In the law of burglary, includes what- ever is within the curtilage, even if 'not in- closed with the dwelling, if used with it for domestic purposes, — all buildings the forcible brealiing of which for felonious purposes during the hours of rest would naturally cause alarm, distress and danger.* Must be a habitation of man, and usually occupied by some person lodging in it at night. '^ Not such habitation is an underground cellar, used for storing ice and beer, with no internal door com- municating with the living-rooms in the upper stories, and not under the control of any occupant of the building.' Whether a building is a dwelling-house depends upon the use made of it.^ See Burglary. Dwelling-place. Some permanent place of abode or residence, with intention to re- main there. lO See House; Residence; Police, 3; Utbre, Sic utere, etc. DYEING. See Process, 3. DYING. See Death; Declaration, 1, Dying. I Marston v. Stickney, 68 N. H. 610 (l679), cases. " Chase v. Hamilton Ins. Co,, 20 N. Y. 65 (1859). ' State V. Troth, 34 N. J. L. 377 (1871); 36 id. 424. < Re Lammer. 14 Bankr. tleg. 460 (1876). 'See2N.Y. Rev. St. 667, §§9,10; 20 Conn. 246; 33 Me. 30; 6 Mich. 142; 13 Gratt 763. • Stearns v. Vincent, 50 Mich. 219 (1883), Cooley, J. ' Scott V. State, 62 Miss. 782 (1886). ' State V. Clark, 89 Mo. 429-30 (1886). » Davis V. State, 38 Ohio St. 506 (1882). See also 2 Cranch, C. C. 21 : 68 N. C. 207; 72 id. 698; 8 S. & R. 199; 16 Gratt. 643; 13 Bost. L. R. 157. i» Jefferson v. Washington, 19 Me. 300 (1841) ;, 2 id. 411 ; 49 N. H. 663. E 390 EARNINGS E. E. 1. As an abbreviation, ordinarily de- notes Easter (tierm), eastern (district), ecclesi- astical, Edward (king), English, equity, or eicbequer. 3. In e. g., an abbreviation of the first word of the Latin phrase, exempli gratia, for (in favor of, for the sake of) an example, for instance. 3. The form of the Latin preposition, ex, from, before a consonant sound. See Ex, 1. E contra. From the opposite side; on the contrary. E converso. On the other hand; con- versely. EACH. Every one of the two or more composing the whole. roreigu express companies being exempted, in Kentucky, from local taxation by paying a State tax, a provision in the charter o£ a city authorizing it to tax "each'* express company was held not to apply to foreign companies.i A, a testator, gave C and T " two thousand ddllars each." The legatees were brother and sister, not re- lated to the testator. C died before A. fleZd, that the legacy was of two thousand dollars to each legatee individually, and not of four thousand dollars to a class, and that the legacy to C lapsed." Compare A, 4; All; Ant; Every. EAGIiE. See Coin. EAB. See Mark, 1 (2); Mayhem. EARL. See Sheriff. EARNEST.' A thing delivered to a vendor in assurance of a serious purpose to complete the contract of sale. Giving earnest is one of the alternatives prescribed by the original Statute of Frauds (g. v.) for the validity of a contract for a sale of personalty of the value of £10 or more.* If the purchaser accepts and pays for the goods the earnest- money counts as part of the price; if not, the amount is forfeited. The idea was taken from the civil law. A deposit with a third person, to be forfeited if the buyer does not complete Mis purchase, is not earnest.* Whatever may have been thought by old writers respecting the effect, in the transmission of property, of giving and receiving earnest money, it is now con- sidered of no importance, or of the smallest impor- tance." 'Adams Express Co. v. Lexington, 83 Ky. 660 (1886). a Claflin v. Tilton, 141 Mass. 343 (1886). ' Mid. Bngr ernes, a pledge. 4 See 2 Bl. Com. 448; 2 Kent, 389. 'Howe V. Hayward, 108 Mass. 55 (1871), cases: Mass. (Jen. Stat. c. 105, § 5; Benj. Sales, 2 ed., 260. « The Elgee Cotton Cases, 82 Wall. 195 (1874), Strong, Justice. EARD'IIVGS. Money or property gained by labor or services: as, the earnings of a wife, minor, servant, insolvent debtor, cor- poration. In a statute of exemptions, the gains of the debtor derived from his services or labor without the aid of capital.* May embrace more than " wages, "q.v. May apply- to compensation for services rendered which involve, more than mere labor, and may include expendi- tures;'* or, compensation for expenditures or mate- rials furnished, together vrith work done or services rendered; but will not include rents, which require no personal service by the lessor.* G-ross earnings; net earnings. As a general proposition, the net earnings of a railroad company are the excess of the gross earnings over the expenditures defrayed in producing them, aside from, and exclusive of, the expenditure of capital laid out in constructing and equipping the works them- selves. < See Mortgage, Railroad. ." Net earnings " is often the equivalent of surplus or net profits; and may referto the surplus for a limr ited period.' " Gross earnings " and " receipts," in the lease of a railroad, will be taken to mean the same thing, unless other parts of the agreement require a different con- struction." See Tax, 2. Separate earnings. Refers to the own- ership in married women of tbe proceeds of their own labor or services. At common law these belonged to the husband.' In some States, upon petition filed, any married woman may have a decree of court investing her with the absolute right of property in her earnings, wholly free from all claims of her husband or of his creditors, the same as if she were a single woman. Any married woman in Peimsj^Ivania, with or with- out cause, may avail herself of the act of 1872; while, to entitle her to become a feme-sole trader, she must bring herself within the act of 1718 or the act of 1865. The act of 1872, by securing her the earnings of her business, impliedly authorizes her to engage in busi- ness with consequent liability for her contracts." See Feme-sole, Trader; Hcsband. 1 Brown v. Hebard, 20 Wis. 330 (1866). ^ Jenks V. Dyer, 102 Mass. 236 (1869); Somers •». Keli- her, 115 id. 167 (1874): Statute, 1865, c. 43, § 2. " Kendall v. Kingsley, 120 Mass. 95 (1876). « Union Pacific R Co. v. United States, 99 U. S. 420 (1878), Bradley, J. See also St. John v. Erie E. Co., 22 Wall. 148 (1874); 10 Blatch. 271; 108 U. S.'S79; 30 Minn. 312. ' Cotting V. New York & New England K. Co., 54 Conn. 168 (1886). "Cincinnati, &c. E. Co. v. Indiana, &c. E. Co., 44 Ohio St. 315-16 (1886). ' Carter v. Worthington, 82 Ala. 336 (1886). " Bovard v. Kettering, 101 Pa. 183 (1883). Gomrare Act June 3, 1887: P. L. 332. EARTH 391 EASEMENT Surplus earnings. An amount owned (by a company) over and above capital and actual liabilities. 1 EABTH. Soil of aU kinds, including gravel, clay, loam, and the like, in distinc- tion from the firm rock.2 " Hard pan " is a " hard stratum ot earth." Earth, then, includes hard-pan." See Alluvion; Land; Min- eral. EASEMENT.^ A service or convenience which one neighbor has of another by char- ter or prescription, without profit.'* The right whicli one man has to use the land of another for a specific purpose.* A liberty, privilege, or advantage in land, without profit, distinct from an ownership in the soil.* Easements include all those privileges which the, public, or the owner of neighboring lands or tene- ments, has in the lands of another, and by which the " servient owner," upon whom the burden of the priv- ilege is imposed, is obliged to suffer, or not to do some- thing, on his own land, for the advantage of the public, or for the *' dominant owner " to whom the privilege belongs.^ The essential qualities of easements are: they are incorporeal; they are imposed upon corporeal prop- erty; they confer no right to participation in profits arising from such property; there must be two dis- tinct tenements, the dominant, to which the right belongs, and the servient, upon which the obligation rests.® Easements restrict the enjoyment of natural rights in land, light, air, and water. Attaching to land as incidents or appurtenances, are, among others: the rights of pasture, of way, of taking water, wood, min- erals or other product of the soil, of receiving air, light, or heat, of receiving or discharging water, of support to buildings, of carrying on an offensive trade. An easement is not a tenancy.' Affirmative easement. Such right in another's land as authorizes acts actually 1 People V. Commissioners, 76 N. T. 74 (1879). See 34 N. J. L. 482. s Dickinson v. Poughkeepsie, 75 N. Y. 76 (1878) ; Web- ster. 'F. aise, ease, relief: assistance, accommodation, convenience. « Post V. Pearsall, 22 Wend. ,438 (1889): Jacob. ' Jackson v. Trullinger, 9 Oreg. 397 (1881), Lord, C. J. « Jamaica Pond Aqueduct Coi-poration v. Chandler, 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. 330; 70, N. Y. 421; 54 Pa. 369; 44 Tex. 267; 27 Gratt. 87; 109 TJ. S. 265. ' 3 Kent, 419. \ 5 Pierce v. Keatdf, 70 N. Y. 421 (1877). See Parsons V. Johnson, 68 id. 65-66 (1877); 70 id. 447-48; Tardy v. Creasy, 81 Va. 556-57 (1886), cases. ' Swift V. Cioodrich, 70 Cal. 106 (1886). injurious to the land; as, a right of way. Negative easement. Such right as is, in its exercise, consequentially injurious; as, forbidding a thing to be done, like that of obstructing llght.l Apparent or continuous easement. Depends upon some artificial structure upon, or natural formation of, the servient tene- ment, obvious and permanent, which consti- tutes the easement or is the means of enjoy- ing it ; as, the bed of a running stream, an overhanging roof. Non-apparent or non- continuous easement. Has no means specially constructed or appropriated to its enjoyment, and is enjoyed at intervals, leav- ing between these intervals no visible sign of its existence; as, a right of way.^ See Continuous, Non-continuous. Appendant or appurtenant easement. When the grant of the easement is made with reference to other land whereon, or in connection wherewith, it is to be used or enjoyed. Such easement is appendant or appurtenant to the dominant estate, and passes with it as an incident. A right in or upon the land of ^another, to be used by the grantee generally, and not in connection with or dependent upon any other land or estate, is a right in gross, — in bulk. It belongs to, and dies with, the person.' Easement of necessity. A privilege without which the dominant owner could not carry on his trade or enjoy some other property right. Easement of convenience. Enables such owner to prosecute his business or to enjoy some right in real property with increase of facilities or comfort. Private easement. Exists in favor of one or more individuals. Public easement. Exists in favor of the people generally. Easements originate in grant, express or implied. They do not change with the persons. Disturbances may be remedied by action on the case^ by injunction, or by abatement. They are extinguished by release, merger, necessity, end of prescription, cesser of use for twenty years, renunciation or abandonment shown by decisive acts.^ When an easement has once been acquired, mere non-user will not defeat the right; there must be an ■ 2 Washb. R. P. 26, 56-60, 82-85, 4;3-66; 70 N. Y. 448. 2 Fetters v. Humphreys, 18 N. J. B. 262 (1867), Za- briskie, Ch. 3 Salem Capital Flour MiUs Co. v. Stayton Water- Ditch & Canal Co., 33 F. E. 154 (1887); Washb. Easem. 9, cases. ' See Steere v. Tiffany, 13 R. I. 570 (1882); Sanderliu V. Baxter, 76 Va. 305 (1882); Washb., Easements. EA,STER 393 EFFECTS adverse use by the servient estate for a period suffi- cient to create a prescriptive riglit.^ See Air; License, 1; Light; NtriSAJiCE; Profits, A prendre; Servitude, 2; Support, 2; Use, 1, Non-user; Wall; Water; Way. EASTER. See Term, 4. EATING-HOUSE. Compare Restau- rant; Saloon. Any place where food or refreshments of any kind, not including spirits, wine, ale, beer, or any other malt liquors, are provided for casual visitors, and sold for consumption therein.'' A market-stall where meals are furnished to the public is not an eating-house.' EAVES-DROPPING. The nuisance of hanging about the dwelling-house of another, hearing tattle, and repeating it to the dis- turbance of the neighborhood. * Eaves-droppers. Such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales.^ Eaves-dropping is a common nuisance, indictable at common law, and punishable by fine and by having to fm-nish sureties for good behavior.^ Consists in privily listening, not in looking or peep- ing. It is a good defense that the act was authorized by the husband of the prosecutrix.* EBB AND FLOW. See Navigable. ECCENTRICITY. . See Insanity. ECCLESIASTICAL. See Church; Corporation. ECLECTIC. See Medicine. ECONOMITES. See Community, 3. ECONOMY, PUBLIC. See Police, 2. EDITOR. Formerly included not only the person y.?ho wrote or selected articles for publication, but also the person who pub- lished the paper and put it into circulation. Now, the business of editor is separated from that of publisher and printer.' See Liberty, 1, Of the press; Newspaper. EDUCATION. Includes proper moral, as well as intellectual and physical, instruc- tion.* May be particularly directed to the mental, 1 Curran v. Louisville, 83 Ky. 632 (1SS6), cases. 2 Revenue Act, 18 July, 1866, § 9: 14 St. L. 118. = State V. Hall, 73 N. C. 254 (1875). estate V. Pennington, 3 Head, 300 (Tenn., 1859): 2 Bish. Or. L. 274. '4 Bl. Com. 168; 1 Hawk. P. C. 132; 1 Euss. Cr. 302. ' Commonwealth v. Lovett, 4 Clark, 5 (Pa., 1831); 8 Haz, Pa. Reg. 305. ' Pennoyer v. Neff, 95 U. S. 721 (1877), Field, J. 'Eouhs V. Backer, 6 Heisk. 400 (1871); Tenn. Code, §2521. the moral, or the physical powers and facul- ties, but in its broadest and best sense relates to them all.i An education acquired through the medium of the English lani^uage is an "English education." It is the language employed as the medium of instruction that gives distinctive character to the education, whether English or German, and not the branches studied. . A *' common school education " begins with the rudi- ments of an education, whatever else it may be made to embrace. 2 Parents owe to their children the duty of giving them an education suitable to their station in life. Yet the municipal laws of most countries do not constrain parents to bestow such education. ^ " All persons ' having children, and all the Guardians or Trustees of Orphans, shall cause such to be instructed in reading and writing; under a penalty of five pounds for each child having capacity in body asd understanding." * See Charity, 2; School. -EE. See Or, 1. EFFACE. See Alter, 2 ; Cancel. EFFECT. 1. That which is produced; result of a cause. See Cause, 1. 3. Letters-patent will not be granted for a mere effect ; they may be for a new mode or application of machinery to produce an effect. See Patent, 2. 3. The manner in which a contract, instru- ment, or law will operate, as ascertained by construction. See Tenok. " Take effect," "be in force," and "go into opera- tion " are interchangeable.'' 4. To prosecute with effect : with due dili- gence to a finality. See further Prosecute. Effected. ^A condition in a policy of insurance that "every person insuring in this company nrnst give notice . . of any other insurance effected in his behalf on said property," applies to all other insurance, whether taken out before or after the exe- cution of the policy in question." EFFECTS. A word of extensive import, frequently used in wills as a synonym for personal estate. In Hogan v., Jackson, 1 Cowp. 304 (1774), Lord Mansfield considered it synonymous with " worldly substance," which means whatever can be turned to value, and therefore that " real and personal effects " means all a man's property. - ' Mount Hermon Boys' School v. Gill, 145 Mass. 146 (1887), Knowlton, J. » Powell V. Board of Education, 97 IlL 375 (1881). » 1 Bl. Com. 450. < Laws of Prov. of Penn., Ch. CXU (1682): Linn, 142. s Maize u State, 4 Ind. 348 (1863). » Warwick v. Monmouth County Mut. Fire Ins. Co., 44 N. J. L. EFFIGY 393 EJECTMENT In admiralty, includes Bhips.^ I In a will, may include any personalty whatever, and even realty. ^ Construed to include land where it can be collected from the will that such was the testator's intention.^ Used indefinitely in a will, but, in connection with something particular and certain, is limited by associ- ation to other things of a like kind. From the subject- matter, intention of something else may be implied; and that may be larger or less.* EPFIG-Y. See Libel, 5. EFFIiUX.5 In a lease, the ending of the contract period in the regular course of events, as distinct from an earlier termina- tion by a subsequent agreement or by some unexpected event. ' ' Effluxion " was for- merly in use. EGRESS. See Ingress., EI rNCUMBIT. See Peobatio. EIGHT-HOUR RULE. See Service, 1. EIGN, EIGNE, or EISNE. Eldest, or first-born. A corruption of the French ain4, aisni. Bastaxd eigne. A child born before the marriage of its parents. Opposed, mulier puisne: a legitimate child. ^ EITHER. One or the other of several things; but, sometimes, ono and the other.' See Or, 3. May be used, as in a statute, in the sense of "any."' EJECT. To put out or off ; to dispossess, evict, oust. See Ejectio. Casual ejector. He who ousted the right- ful lessee by making a formal entry in order to test the right to possession in court. ^ See Ejectment. EJECTIO.'" L. Dispossession; ouster. Hjectione custodisB. By ejectment of ward. A writ by which a guardian recovered possession of the land or person of his ward. 'The Alpena, 7 F. B. 362 (1881). Arthur v. Morgan, 112 U. S. 499 (1884). See also 1 Hill (S. C), 155; 15 Ves. 507; 15 M. & W. 450; 16 East, 222. 2 Smyth V. Smyth, 36 Moak, 477 (1878): 8 C. D. 561 ; 16 Moak, 710. = Page V. Forest, 89 N. C. 449 (1883), cases. 'Ennis v. Smith (Kosciusko's Will), 14 How. 421 (1852), cases, Wayne, J. See also 2 Shars. Bl. Com. 284, n.; 3 Cranoh, C. C. 203; 3 Minn. 389; 30 id. 195; 37 Tex. 19. 'L. e/{cxyfluere, to flow out, go by. «See2Bl. Com. 2i8. ' Ohidester v. Springfield, &c. R. Co., 59 lU. 89 (1871). 8 Lafoy V. Campbell, 42 N. J. E. 37 (1886). "3B1. Com. 201. i« From ejicere, to put out: jacere, throw, cast. Ejectione firmse. For ejectment of "farm," q, v. A remedy where the lessee of a term of years was deprived of possession. The original of the later and modem action of ejectment,* q. v. EJECTMENT. An action to recover possession of realty, with damages for the wrongful detention. See Ejeotio. Originally devised for a lessee ousted of his term of years, and who, having but a chattel interest, could not support a real action for recovery of possession. In effect, the action was for the trespass; and the remedy was in damages for the dispossession. Later, it was decided that the lessee could also recover his term. This brought the action into general use; and by the formalities of lease, entry, and ouster (which see below), the action was converted into a method of trying, collaterally, the title of the lessor. Then, as the title was never formally and directly in issue,, but the trespass for the expulsion only, the verdict was not pleadable in bar of another trespass. Thus it came that a verdict and judgment were conclusive only as regarded personalty. Afterward, when the fictions were abolished, the idea of a difference as between realty and personalty lingered in many States, a single verdict and judgment was not considered conclusive, and provision was made by statute for a* second trial. Where no such provision exists a former action may be a bar.3 In the original action the plaintiff had to prove a lease from the person shown to have title, an entry under the lease, and an^ouster by some third person. The modified action was brought by a fictitious person as lessee against another fictitious person (the casual ejector) alleged to have committed the ouster. Service was made upon the tenant in possession, with notice from the casual ejector to appear and defend. If the tenant failed to do this, judgment was given by de- fault and the claimant put in possession, if he did appear, he was allowed to defend only by entering into the "consent rule," by which he confessed the fictitious lease, entry, and ouster to have been made, leaving only the title in question. See Doe. These fictions were abolished in England by the common-law procedure act of 1852, and further changes were made by the judicature acts of 1873 and 1875. In some States the action has never been adopted; in others it has been materially modified by statute ; in a few it still exists in its original form. The ancient form is also employed in the circuit courts of the United States sitting in States where the old form was observed when those courts were estabhshed.' Ejectment is the remedy to recover a corporeal hereditament — an estate in fee-simple, fee-tail, for life, or for years; not, for rent, a right of way, or dower. The plaintiff, at the time of the institution of the suit, must have a right of entry and of possession 1 3 Bl. Com. 199. 2 Sturdy V. Jackaway. 4 Wall. 175-76 (1866), cases, Grier, J.; Miles v. Caldwell, 2 id. 40 (1864); Blanchard V. Brown, 3 id. 248 (1865); Dickerson v. Colgrove, 100 U S. 563 (1879); 3 Bl. Com. 199. 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 strict legal title prevails. The defendant must be in actual possession, and notice be given to the terre- tenant. The action is maintainable by a joint tenant or a tenant in common against a co-tenant who has dispossessed him. Recovery is upon the strength of the plaintiff's title, not upon the weakness of the de- fendant's,! with proof of injury equivalent to a dis- possession. The plea of " not guilty " raises the general issue. The judgment is, that the plaintiff re- cover his term, or the possession of the land, and damages, which, as a rule^ are nominaL^ See Posses- sion, Adverse; Peofits, 1, Mesne. , Equitable ejectment. Ejectment at law, upon an equitable title ; in effect, a bill in, equity for the specific performance of a contract or obligation to convey land. In Pennsylvania, whenever a court of equity will presume a trust to 'have arisen, compel its execution, or enforce an article of agreement, the courts of law by this means will administer the same relief.^ Ejectment bill. Generally, a bill in equity will not lie if it is in substance and effect an ejectment bill, and if the relief it seelis can be obtained by an action in ejectment.* EJECTOR. See Eject. EJUSDEM GENERIS. L. Of the same kind or nature ; of the same class. In the construction of statutes, contracts, and other instruments, where an enumeration of specific things is followed by a general word or phrase, the latter is held to refer to things of the same kind as those speci- fied. « See General, 6; Inferior, 3; Other; Vbhiclb. ELDEST. The eldest son is the first-born son — the primo-genitus. The words "shall become the eldest son " of a per- son living at the date of a will cannot, without an ex- planatory context, be extended beyond the life-time of that person; they are connected with the heirship of, and right of succession to, a living man." ELECT.7 To select, choose; also, se- lected, chosen, elected: as, a judge-elect, the President-elect. 1 Nelson v. Triplett, 81 Va. 237 (1885), cases; Butrick V. Tilton, 141 Mass. 96 (1886); Mitchell v. Lines, 36 Kan. 383 (1887). " See Gibson v. Chouteau, 13 Wall. 102 (1871); Foster V. Mora, 98 U. S. 428' (1878); Equator Co. v. Hall, 106 id. 87 (1882); Holland v. Challen, 110 id. 19 (1883); 112 id. 533; 116 id. 692; 18 Ha. 52; 56 Vt. 669; 76 Va. 288; 107 U. S. 392; Bouvier. 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. 4 Killian v. Ebbinghaus, 110 U. S. 568, 572 (18&3). » See United States v. Buffalo Park, 16 Blatch. 190 (1879); Eeiche v. Smythe, 13 Wall. 165 (1871); Narra- more v. Clark, 63 N. H. 167 (1884), cases; Lynchburg v. Norfolk, &c. E. Co., 80 Va. 248-50 (1885), cases; 54 Conn. 407; 8 Pick. 14; 9 Mete. 258; 122 Mass. B75. = Bathurst v. Errington, 2 Ap. Cas. 698 (1877); 20 Moak, 203, 213. ' L. eligere, to pick out. See Eugible. Election. A choosing, or selecting ; also, the condition of having been choslen or se- lected; choice, selection. Primer election. First choice. In England, in cases of partition, unless otherwise agreed, the eldest sister (coparcener) has the first choice of purparts.^ 1. Selection of a person to fill an ofiBlce in (1) a private corporation,— whence corporate election ; or (2) in a department of govern- ment — national, State, county, municipal, — whence popular election. 2 In its constitutional sense, a selection by the popular voice of a district, county, town, Or city, or by an organized body, in contra- distinction to appointment by some single person or officer. Voting and, taking the votes of citizens for members to represent them in the general assembly or other public stations.^ In either of the senses noted, particularly in the case of a popular election, whether a general or a special or local election, choice of persons is effected through the instrumentality of a board or officers of election, within an election district or precinct, or place of known and fixed boundaries, on an appointed election day and between certain election hours, with a prescribed mode for certifying the election returns, and all in conformity with the election laws; followed, too, in cases, by an election contest between opposing candidates.* The doctrine at the foundation of popular govern- ment is, that in elections the will of the majority controls; mere irregularities or informalities in the conduct of an election are impotent to thwart the ex- pressed will of the majority.' All fraudulent acts affecting the purity and safety of elections are offenses at common law.^ But Illegal votes will make void an election only when they affect the result.' A statute which, in addition to the requirements of the constitution, provides that '" no person hereafter naturalized shall be entitled to be registered as a voter within thirty days therefrom," is unconstitutional.' 1 Littleton, § 243. = Police Commissioners v. Louisville, 3 Bush, 602 (1868), William, J. ' Commonwealth v. Kirk, 4 B. Mon. 2 (1813), Ewing, C. J. See also 54 Ala. 205; 13 Cai. 144; 23 Mich. 341; 5 Nev. 121. ■■See 2 Dill. 219; 41 Pa. 403; 30 Conn. 691 ; 44 K H. 643. « Prohibitory-Amendment Cases, 24 Kan. 720 (1881). See Commonwealth v. Smith, 132 Mass. 295 (1882). " Commonwealth v. Hbxey, 16 Mass. 385(1820); Com- monwealth V. McHale, 97 Pa. 408 (1881); 91 Pa. 503. ' Tarbox v. Sughrue, 36 Kan. 230, 232 (1887), cases. On conducting elections, see 24 Cent. Law J. 487 (1887), cases. SKinneen v. Wells, 14^ Mass. 497 (1887), cases. See also State v. Conner, Sup. Ct. Neb. (1687), cases. ELECT 395 ELECT Elective. (1) Pertaining to the right, in the individual, to choose agents of govern- ment : as, the elective franchise, q. v. (2) Bestowed by virtue of a popular elec- tion, as opposed to being invested with by- appointment : as, the elective system — for filling judicial offices. See JuDlciiiEY. Elector. (1) One who has the right of a choice or vote ; more particularly, one who has the right of casting a vote for a public officer. 1 (2) One who, having a right to vote, actu- ally votes. 2 Electoral. Pertaining to or consisting of electors: as, the " electoral college," on which the formal legal choice of President and Vice- President is made finally to depend. PresidenUal electors. Members of the electoral college. "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Eepre- sentatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit vmder the United States, shall be appointed an Elector." ' " The Congress may determine the Time of choos- ing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States." ' " The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice- President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, di- rected to the President of the Senate; — The President 1 See Beardstown v. Virginia, 76 HI. 39 (1875). "See Taylor v. Taylor, 10 Minn. 123 (1865); State ex rel. V. Tattle, 33 Wis. 49 (1881). 3 Constitution, Art. II, sec. 1, ol. 3. See 8 Bancroft, Const. 165-85. The electoral vote of the respective States is (1888) as follows: Alabama, 10; Arkansas, 7; California, 8; Colorado, 8; Connecticut, 6; Delaware, 3; Florida, 4; Georgia, 12; Illinois, 22; Indiana, 15; Iowa, 13; Kansas, 9; Kentucky, 13; Louisiana, 8; Maine, 6; Maryland, 8; Massachusetts, 14; Michigan, 13; Minnesota, 7; Missis- sippi, 9; Missouri, 16; Nebraska, 5; Nevada, 3; New Hampshire, 4; New Jersey, 9; New York, 36; North Carolina, 11; Ohio, 23; Oregon, 3; Pennsylvania, 30 Ehode Island, 4; South Carolina, 9; Tennessee, 12 Texas, 13; Vermont, 4; Virginia, 12; West Virginia, 6 Wisconsin, 11. Total, 401. * Constitution, Art. II, sec. 1, cl. 3. of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted ; — The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electoi-s appointed; and if no person have such majority, then from the persons haying the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the Presi- dent, the votes shall be taken by states, the represen- tation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President when- ever the right of choice shall devolve upon them, be- fore the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the Pres- ident. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole num- ber shall be necessary to a choice. But no person con- stitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. 1 The act of Congress approved February 3, 1887 (24 St. L. 373), to fix the day for the meeting of the electors of President and Vice-President, and to regu- late the coimting of the votes, and tlie decision of questions arising thereon, provides as follows: That the electors of each State shall meet and give their votes on the second Monday in January next fol- lowing their appointment, at such place in each State as the legislature of such State shall direct. Sec. 3. That if any State shall have provided, by laws enacted prior to the day fixed for the appoint- ment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meetjig of the electors, such determina- tion made pursuant to such law so existing on said day, and made at least six days prior to the said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the OoiLstitution, and as hereinafter regu- lated, so far as the ascertainment of the electors ap- pointed by such State is concerned. Sec. 3. That it shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of electors in such State, by the final ascertainment under and in pursuance of the laws of such State providing tor such ascertainment. ' Constitution, Amend. Art. XII. Ratified Sept. 35, 1805. ELECT 396 ELECT to communicate, imder the seal of the State, to the secretary of state of the United States,' a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast ; and it shall also thereupon be the duty of the executive of each State to deliver to the electors of such State, on or before the day on which they are re- quired by the preceding section to meet, the same cer- tificate, in triplicate, under the seal of the State; and such certificate shall be inclosed and transmitted by the electors at the same time and in the same manner as is provided by law for transmitting by such electors to the seat of government the lists of all persons voted for as President and of all persons voted for as Vice- President; and section one hundred and thirty-six of the Revised Statutes is hereby repealed ; and if there shall have been any final determination in a State of a controversy or contest as provided for in section two of this act, it shall be the duty of the executive of such State, as soon as practicable after such determination, to communicate, under the seal of the State, to the secretary of state of the United States, a certificate of such determination, in form and manner as the same shall have been made ; and the secretary of state of the United States, as soon as practicable after the receipt at the state department of each of the cer- tificates hereinbefore directed to be transmitted to the secretary of state, shall publish, in such public newspaper as he shall designate, such certificates in full; and at the first meeting of Congress thereafter he shall transmit to the two Houses of Congress copies in full of each and every such certificate so re- ceived theretofore at the state department. Sec. 4. That Congress shall be in session on the sec- ond Wednesday in February succeeding every meeting of the elecrf;ors. The Senate and House of Representa- tives shall meet in the hall of the House of Representa- tives at the hour of one o'clock in the afternoon on that day, and the president of the Senate shall be- their pre siding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the president of the Senate, all the certificates and papers purporting to be cer- tificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates ; and the votes having been ascertained and counted in the manner and accord- ing to the rules in this act provided, the result of the same shall be delivered to the president of the Sen- ate, who shall thereupon announce the state of the vote, which annoimcement shall be deemed a suffi- cient declaration of the persons, if any, elected Presi- dent and Vice-President of the United States, and, together with a list of the votes, be entered on the journals of the two Houses. Upon such reading of any such certificate or paper, the president of the Senate shall call for objections, if any. Every objec- ■ tion shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one member of the House of Representatives be- fore the same shall be received. When all objections so made to any vote or paper,f rom a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the speaker of the House of Representatives shall, in like manner, sub- mit such objections to the House of Representatives for its decision ; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certi- fied to according to section three of this act from which but one return has been received shall be re- jected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the president of the Senate, those votes, and those only, shall be cotmted which shall have been regularly given by the electors who are shown by the determination mentioned in section two Of this act to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascer- tained, as have been appointed to fill such vacancy in the mode provided by the laws of the State ; but in case there shall arise the question which of two or more of such State authorities determining what elect- ors have been appointed, as mentioned in section two of this act, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall he counted whose title as ■ electors the two Houses, acting separately, shall con- currently decide is supported by the decision of such State so authorized by its laws ; and in such case of more than one return or paper purporting to be a re- turn from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be coimted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shalLimmediately again meet, and the presiding officer shall then announce the decision of the question submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally dis- posed of. Sec, 5. That while the two Houses shall be in meet- ing as provided in this act the president of the Senate shall have power to preserve order: and no debate shall be allowed and no'question shall be put by the ELECT 397 ELIGIBLE presiding officer except to either House on a motion to withdraw. Sec, 6. That when the two Houses separate to de- cide upon an objection that may have beeh made to the counting of any electoral vote or votes from any State, or other question arising in the matter, each Senator and Representative may speak to such objec- tion or question five minutes, and not more than once; but after such debate shall have lasted two hours it shall be the duty of the presiding ofiicer of each House to put the main question without further debate. Sec. V. That at such joint meeting of the two Houses seats shall be provided as follows: For the president of the Senate, the speaker's chair; for the speaker, immediately upon his left; the Senators, in the body of the hall upon the right of the presiding officer; for the Representatives, in the body of the hall not pro- vided for the Senators; for the tellers, secretary of the Senate, and clerk of the House of Representa- tives, at the clerk's desk; for the other officers of the two Houses, in front of the clerk's desk and upon each side of the speaker's platform. Such joint meeting shall not be dissolved until the count of electoral votes shall be completed and the result declared; and no re- cess shall be taken unless a question shall have arisen in regard to counting any such votes, or otherwise under this act, in which case it shall be competent for either House, acting separately, in the manner here- inbefore provided, to direct a recess of such House not beyond the next calendar day, Sunday excepted, at the hour of ten o'clock in the forenoon. But if the counting of the electoral votes and the declaration of the result shall not have been completed before the fifth calendar day next after such first meeting of the two Houses, no further or other recess shall be taken by either House. See Ballot; BniBEBv; Candidate; Congress; De- posit, 1 (1); Holiday; QuALmED, 1; Vacancy; Vote. 3. The obligation imposed upon a party to choose between two inconsistent or alterna- tive rights or claims, in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. This, technically, is '• election," or the " doc- trine of election," at law and equity. In equity jurisprudence, presupposes a plurality of gifts or rights, with an intention, express or implied, of the party, who has a right to control one or both, that one should be a substitute for the other, i Thus, one may have an election: to pay money or deliver goods, as a consideration; to observe a con- tract, or pay damages or forfeit a sum; to retain a security for a debt, or surrender it and share as a dis- tributee in a dividend; to rescind or affirm a voidable contract; between a statutory and common-law rem- edy; between a joint and a several action; between suing an agent and suing his undisclosed principal; between uidependent grounds of defense or of action. 1 2 Story, Eq. § 1075; 1 Pomeroy, Eq. § '. Ue. 153. 1 et seq. ; 54 A very common example is the choice a widow makes between dower and a testamentary provision. A person who is entitled to any benefit under a will or other instrument, must, if he claims that benefit, abandon every right or interest the assertion of which would defeat, even partially, any of the provisions of the instrument. But in no case is one to be put to an election unless it is clear that the provisions of the in- sti'ument in sonie degree would be defeated by the as- sertion of his other rights.* The doctrine rests upon the equitable ground that no man can be permitted to claim inconsistent rights with regard to the same subject, and that any one who asserts an interest under an instrument is bound to give full effect, as far as he can, to that instrument. Or, as it is sometimes expressed, he who accepts a benefit under a deed or will must adopt the contents of the whole instrument, conforming to all its provis- ions and relinquishing every right inconsistent with it.'^ An election may be implied as well as expressed. Whether there has been an election must be deter- mined upon the circumstances of the particular case, rather than upon general principles. It may be in- ferred from the conduct of the party —his acts, his omissions, and his mode of dealing with the property. Unequivocal acts of ownership, with knowledge of the right to elect, and not through a mistake with respect to the condition and value of the estate, will generally be deemed an election to take under a will. It has be- come a maxim that no one is bound to elect in igno- rance of his rights.' Compare Satisfy, 3 (8). 3. The right to choose, or the act of choos- ing, between different actions or remedies, where the plaintiff has suffered one species of wrong from the act complained of. This right arises where he may sue in tort or upon the contr'act implied by law in the case; or where he may bring an action of a purely equitable nature, or such as merely seeks a money judgment.* ELECTRICITY . See Lightning ; Tele- graph; Telephone. ELEEMOSYNAEY. See Chaeitt, 3; Corporation. ELEGIT. See Execution, 3, Writs of. ELEVATED. See Railroad. ELEVATOR. See Negligence. ELIGIBLE. Relates to capacity of hold- ing as well as of being elected to an office. ° Ineligible. Refers as well to disqualifi- cation to hold, as to disqualification to be elected to, an office." ' Gibson v. Gibson, 17 E. L. & E. 353 (1853), Kindera^ ley V. C. ; 14 Gratt. 548; 76 Va. 123. a Penn v. Guggenheimer, 76 Va. 846 (1882), Staples, J. s 76 Va. 850, supra; Burroughs v. De Couts, 70 Cal. 370 (1880); Streatfleld v. Streatfleld (1735), 1 Lead. Cas. Eq., W. & T., 504, 510, 641; 2 Story, Eq. §§ 1076-98. 4 See 22 Cent. Law J. 533-38 (1886), cases. 6 [Carson v. McPhetridge, 15 Ind. 331(1860); 15 Cal. 117; 3 Nev. 566. » State V. Mun-ay, 28 Wis. 99 (1871). ELISOR 398 EMBEZZLEMENT Ro-eligible. Capable of election, or of holding office, more than once. See Elec- tion, 1; Office. £LISOIl.' An elector chosen by a court to return a panel of jurors where the sheriff and the coroner are disqualified.' If exception lies to the coroner, the venire is di- rected to two clei-ka of the court, or to two other per- sons of the county, named by the court and sworn; these two, called "elisors," or electors, indifferently name the jury, and their return Ife final, no .challenge being allowed to their array. ^ ELOIGN.3 When the sheriff seeks to replevy goods distrained, and finds them car- ried out of the county, or concealed, he may return that they ai'e eloigned, elongata, car- ried to a distance, to places to him unknown.* See Capere, Capias, Withernam. When, under ancient practice, he sought to replevy a man and found him conveyed out of bailiwick he made return that the person was elongatus.' Eloignment. Removal of goods dis- trained, to prevent a replevy. Sloiguer. He who makes an eloign ment. ELOPEMENT.6 The act in a wife of voluntarily leaving her husband to live with, another man. She thereby forfeits her right of dower, unless the offense is condoned. The husband is not liable for her contracts for necessaries, unless, preserving her pu- rity, she has offered to return and he has refused to receive her."' The "leaving" implies a going beyond the hus- band's actual control. ^ ELSEWHERE. In or at amother place. Cotiipare Alibi. In a will, will pass land wherever situated." In shipping articles, was construed in subordination to the principal vpyagei— the words being "to the Pacific ocean, or elsewhere, thence to Boston, with wages payable at Canton." "> EM. See En, 3. EMANCIPATIOBr." The act by which a person, who is under the power or control ' E-li'-Eor. F. eliaeur: L. eligere, to choose. »3 Bl. Com. 354: 91 Pa. 495. 3F. Eloigner, to remove to a distance: L. L. e-longe^ far off. <3B1. Com. 149. '3 81. Com. 189. " Dutch ontloopen, to run away; by substituting the prefix e- for Du. onf-. A. S. hleapan, to leap, run. '2 Bl. Com. 130; 1 id. 442; 11 Johns. 281; 13 id. 298; 11 Wend. 33; 3 Pick. 280; 7 S. & E. 249; Chitty, Contr. 49; Bish. M. &D. §625. 6 Cogswell V. Tibbetts, 3 N. H. 42 (1834). « 3 P. Wms. 66; 3 Atkyn, 254. "Brown v. Jones, 3 Gall. 479 (1815). " L. e-majicijjore, to transfer ownersnip: maneipium of another, is rendered free to act for him- self.' Filial emancipation. Enfranchisement of a minor from parental authority. Attaining majority is, ipao facto, emancipation. Emancipation proclamation. Issued, January 1, 1868, by President Lincoln as commander-in-chief of the army and navy of the United States, during the existence of armed rebellion. It purported to be " a fit and necessary war measure for suppressing said rebellion ; " and declared that all per- sons held as slaves within designated States, and parts of States, were and henceforward should he free. 2 See Citizen, Amendment^ XIII. EMBARGrO.3 The detention, by a gov- ernment, of ships of commerce in its ports. A prohibition against sailing. < Civil embargo. Is laid upon ships be: longing to citizens of the State imposing it. Hostile embargo. Is laid upon ships be- longing to the enemy. The effect of a hostile embargo is, that if war does not follow the vessels are restored to their owners; if otherwise, they are confiscated. Bonds for the ob- servance of the prohibition may be required,^ See Blockade. EMBASSADOR. See Minl=tek, 3. EMBEZZLEMENT.s 1. Appropriation to one's own use of anything belonging to an- other, whether rightfully or wrongfully in the possession of the taker; theft. At an early date, spending, wasting, squandering. " He left an estate to an unthrift son who -embez- zled it."' " Embezzling or vacating records . . is a felo- nious offense." « (q. v.), purchase by imposition of haind — manus- capere. ' See Fremont v. Sandown, 56 N. H. 303 (1876): Bou- vier. ' Slaughter-House Cases, 16 Wall. 68 (1883). See also 43 Ala. 692; 44 id. 70; 20 La. Ann. 199; 43 Miss. 102; 13 S. C. Eq. 366; 31 Tex. 504. ' Spanish embargo, putting a bar (6arj-o)intheway: arrest, stoppage of ships. < [The Kmg William, 2 Wheat. 153 (1817); L. B., 8 C. P. 659. 'See Wheaton, Int. Law, 372; The King William, supra; 7 Cranch, 387; 5 Johns. 399. °N. F. embeasiler, to filch,— Webster. Formerly, embesile or -sell; the same as imbieill, to weaken, diminish, subtract from. A shop-boy embezzled his master's store imperceptibly by repeated flfching,— Skeat. In early statutes spelled imbezil,-~% N. M. 268. ' Fuller, The Worthies (1663). 8 4B1. Com. 137(1769). EMBEZZLEMENT EMBLEMENTS i'Embeziders of Charters, Grants, Eecorda, Bonds, Bills, Wills, &o., shall make Double Satisfaction, and be publicly Disgrraced as False persons." * "The goods of shipwrecked vessels shall be pre- served from spoil and embezzlement." ' " He who would embezzle a ship's furniture, would not hesitate to embezzle the carpro." * Section 8467, Eev. St., creates two statutory offenses: that of embezzling a letter in postal custody which has a valuable thing enclosed; and that of taking and stealing such thing out of a letter which has been em- bezzled. A prosecution may be for one or both 3. The fraudulent conversion of property by a person to whom it has, been intrusted.* A species of theft, consisting in the steal- ing of property by clerks, agents, servants — persons acting in a fiduciary capacity.* Distinguishable from "larceny" in that the taker comes lawfully into possession of the property." To "embezzle" is to appropriate to one's own use property or money intrusted to him by his employer.' At common law, had no definite meaning. As an offense, had its origin in efforts made to amend the law of larceny. The first statute was that of 8 Henry VHE (1517), c. 7, in which the descriptive words were " did embezzle or otherwise convert the money to his own use." Statute of 7 Greo. IV (1887) improved and superseded earlier legislation; in it the words are " shall fraudulently embezzle." ' Frequently termed "larceny by bailee." Where the accused is not named as a "bailee," it maybe a question of law upon the averments whether or not he was a bailee." See Larceny. It is essential: that the accused occupy a fiduciary relation; that he received property (money) in the course of his employment; that the property belonged to his principal; that he converted it with intent to steal and embezzle it.'" The indictment must allege that the accused "felo- niously did steal, take and carry away " the property. '» " Great Law of Penn., Ch. L ' IMd., Ch. C^XXl (1683). » The Boston, 1 Sumn. 356 (1833), Story, J. 4 United States v. Baugh, 4 Hughes, 608 (1880). See United States v. Long, 4 Woods, 464 (1881). ' 2 Bishop, Cr. L. § 336; Pittsburgh, &c. Pass. E'y Co. V. McCurdy, 114 Pa. 6S8 (1886). 'United States v. Lee, 12 F. R. 818 (1882), Cox, D. J.; 11 id. 293; State v. Wingo, 89 Ind. 806 (1883;; 41 How. Pr. 294; 62 Wis. 63; 4 Tex. Ap. 403. ' State V. Wolff, 34 La. An. 1154 (1882), Manning, J. estate D.Wolff, supra; New Mexico i;. Maxwell, 2 N. M. 367-68 (1882); United States v. Conant, 9 Cent. Law J. 129 (Cir. Ct., Mass., 1879), cases: R. S. § 5209- national bank officer or agent; 3 Steph. Hist. Cr. L. Eng. 162-63. ' People V. Johnson, 71 Cal. 392 (1886). J« Exp. Hedley, 31 Cal.> 113 (1866). II Commonwealth v. Pratt, 132 Mass. 346 (1882): Gen. Sts. c. 161, S 38. The details of the crime being statutory, the decis- ions of other States are to be read with caution.' Many State statutes follow 24 and 36 Vict. (1861) c. 96, §§ 6S-73.5 In some States the injured person may receive pay- ment for the property embezzled or take security therefor.= In the Revised Statutes, the term designates a va- riety of offenses having in common the idea that the person has an opportunity to commit them by reason of some office or employment; and that they include some breach of confidence or trust, some misuse 'of a confidential opportunity: as, conversion by a public officer to his own use of public money intrusted to him for safe-keeping, disbursement, transfer, or other purpose.* See Decoy; Peculation. EMBLEMENTS.* The vegetable chat- tels called emblements are the corn [grain] and other growth of- the earth which are produced annually, not spontaneously but by labor and industry ; thence called frueius industrialesfi A growing crop of grass, even if grown from seed, and ready to be cut for haj', cannot be taken as em- blements: the improvement is not distinguishable from natural product, although it may be increased by cultivation." The doctrine of emblements is founded on the un- certainty of the termination of the tenant's estate. Where that is certain there exists no title to emble- ments.' Nursery trees more nearly resemble emblements than fixtures; emblements being the annual product or fruit of things sown or planted. Hops, berries,, and the like, are such, but not the roots and bushes from which they grow. Emblements reared by a tenant entering subseqtiently to a mortgage pass to the pur- chaser at a foreclosure sale, unless gathered before the sale." The word is used both for the crops or grain and for the privilege of reaping or gathering them. See further Chop; Fbdotus. '7 Tex. Ap. 417; 4 id. 407-9, cases; 2 Bishop, Crim. Law, § 331. S2 Bish. Cr. L. §§ 326-70, 392-462; 2 Whart. Cr. L. §§ 1906-43, 3060-3162. s Johnston Harvester Co. v. McLean, 57 Wis. 362 (1883); Fagnan v. Knox, 66 N. Y. 626 (1876). See gener- ally Calkins v. State, 18 Ohio St. 366 (1868): 98 Am. Deo. 136-74, cases. •United States v. Conant, ante; United States v. Cook, 17 Wall. 171 (1872): 6 id. 385. See R. S. §§ 6437, 6467, 5486, 5496. » O. F. embUer, emblader, blayer, to sow with grain: bled, bli, corn, grain, " blade." " Reiff V. Relff, 64 Pa. 137 (1870), Read, J. ; 1 WllUams, Exec. 670, 672; Taylor, Landl. & T. § 543. 7 Whitmarsh v. Cutting, 10 Johns. »361 (1813). See at length 3 BI. Com. 132-33, 145^. 8 Hamilton v. Austin, 36 Hun, 142 (1885), FoUett, J. See also 19 Am. Law Eev. 24-31 (1885), cases. EMBRACEKY 400 EMPTY EMBRACERY.i An attempt to influ- ence a jury corruptly to one side by promises, persuasions, entreaties, money, entertain- ment, and the like.'' Embraceer or embracer. One who at- tempts to influence a jury (or a juror) by corrupt or unlawful means. EMERaENCY. See Accident; Neg- ligence. Within the meaning of a statute against practicing medicine without a certificate, except where the serv- ices are gratuitous and " the case one of emergency, " the reference is to a case in which .the ordinary and qualified practitioners are not readily obtainable, not to a case in which the patient has been given up as in- curable by physicians of the schools provided for by the statute.^ EMIGRATIOH". See Immigration ; Com- merce: ExiRE, Ne exeat. Compare Expa- triation. EMINENT. See Domain, 1. EMIT. See Credit, 3, Bill of. EMOLUMENT. Any perquisite, ad- vantage, profit, or gain arising from the pos- session of an office. Imports, tlfen, more than " salary " or " fees." * See Fix, 3; Office, 1. EMOTIONAL. See Insanity. EMPANEL. See Panel. EMPHYTEUSIS.* An estate in land, under the Roman law, analogous to a fee- farm, or perpetual lease, in English law. It gave the occupant, or his transferee, a perpetual lease, conditioned upon payment of rent, and, per- baps, improvement of the land. Whence emphyteutic.'* EMPLOYMENT.' Occupation ; posi- tion involving business ; service. Employ. (1), n. Originally, the poetical form of employment. (2), V. To engage in one's service ; to use as an agent or substitute in transacting busi- ness; to commission and intrust with the management of one's affairs. Used with re- spect to a servant or laborer, equivalent to "hire." 8 ^ O. F. embracer, to clasp in the arms, embrace. 2 4 Bl. Com! 140. See Glbbs v. Dewey, 5 Cow. 505 (1823) ; State V. Sales, 3 Nev. 269 (1866); Hawk. PI. Cr. 869. s People V. Lee Wah, 71 Cal. 80 (1886). • Apple V. Crawford County, 105 Pa. 303 (1884); Const. Pa. Art. m, § 13. ' Accent on -teu-. Gk. emphytetiein, to plant or im- prove land. • See 3 Bl. Com. 232; Maine, Anc. Law, 289. ' F. employer, to involve, engage, occup.y. sMcCluskey v. Cromwell, 11 N. Y. 599 (1854). Employed. May refer to any present occupation, but commonly to continuous oc- cupation.' " Employed " in anything imports not only the act of doing it, but also being engaged to do it, being under contract or orders to do it.^ Employe, or employee; employer. " Employe " is from the French, but has be- come naturalized in our language. Strictly and etymologically it means " a person em- ployed ; " but in practice in the French lan- guage it ordinarily denotes a person in some official employment. 3 "Employe" is the correlative of "em- ployer." Neither term is restricted to any particular employment or service. " To em- ploy " is to engage or use another as an agent or substitute in transacting business, or the performance of some service, it may be skilled labor or the service of the scientist or professional man as well as servile or unskilled manual labor.* "Employe" usually embraces a laborer, servant, or other person occupied in an in- ferior positioh.5 Applies equally to a person within or without an office, whether a servant or a clerk. An " employee in an ofSce " is a person engaged in the performance of the proper duties of an olHce, whether his duties are carried on within or without the walls of the build- ing in which the chief ofBcer transacts his business." The English form employee, though legitimate as conforming to analogy, is not sanctioned by theiisage of good writers.^ See Boycotting; Business; Contractor; Gift; Labor, 1; Neglioenoe; Servant; Sdnday; Trade. EMPOWER. See Agent ; Authority, 1 ; Delegatus; Power. EMPTY. Ordinarily, to make void, ex- haust, deprive of contents. Section 3324, Rev. St., which makes it an offense to fail to obliterate a stamp at the time of " emptying " a cask of spirits, does not mean that absolutely every particle of the spirit be drawn off. The emptying in- tended is such as can be conveniently done by the ordinary method.^ Compare Occupied; Vacant. • Wilson V. Gray, 137 Mass. 99 (1879), Lord, J. ' United States v. Morris, 14 Pet. 475 (1840), Taney, C. J. ; 2 Paine, C. C. 745; 22 Ohio, 194; 20 S. C. 4-6. » Gurney v. Atlantic, &c. E. Co., 2 N. Y. Supr. Ct. 453 (1873), Talcott, J. * Gumey v. Atlantic, &c. E. Co., 68 N. Y. 371 (1874), Allen, J. ; Krauser v. Euckel, 17 Hun, 465 (1879). " People V. Board of Police, 78 N. Y. 41 (1878). » Stone V. United States, '3 Ct. CI. 262 (1867); Peck, J. ' Webster's Diet. 8 United States v. Buchanan, 4 Hughes, 488 (1881). EN 401 ENEMY EN. In; into. 1. The French form of the English and Latin preposition in. See In, 1, 3 (3). En autre droit. In right of another. See Deoit. En fait. In fact ; in deed. En owe! main. In equal hand. See Owelty. En route. On the way. See Route. En ventre. In the womb ; unborn. See Venter. 2. As a prefix, coincides with the Latin in. Some Euglisli words are written indifferently en- or in-; as, encumber and incumber, endorse and indorse, enjoin and injoin. In seems to be preferred. For ease of pronounciatlon, cliangesto em-, particu- larly before a labial: as, in embracery, employ, em- power. ENABIiIIfG. Describes an enactment which confers power to do a thing : as, stat- utes of wills, statutes permitting parties to testify ; opposed to disabling or restraining acts or statutes. ENACT. See Act, 3, Enact. ENCEINTE. See Ancient, 2; Preg- nancy; Venter. ENCHANTMENT. See Witchcraft. ENCLOSUKE. Imports land enclosed with something more than the imaginary boundary line, — some visible or tangible obstruction, as, a fence, hedge, ditch, or an equivalent object, for the protection of the premises against encroachment, as by cattle. i A tract of land surrounded by a fence, together with such fence: as, in a statute limiting one's right to distrain beasts to those doing damage within his enclosure.' See Close, 3. ENCROACH. To intrude upon, make gain upon, occupy, or use the land, right, or authority of another, as if by gradual or par- tial assumption of right. See Purprestuee. ENCUMBEK. See Incumber. END. See At, 2 ; Final ; Fine ; Terminus. ENDORSE. See Indorse. ENDOW. 1. To confer rights of dower, q. V. 2. To make pecuniary provision for the support of a person or institution. Endowment. The act of settling a fund upon one ; also, such fund itself. Used of a policy of insurance payable at a certain age or at death. 1 [Porter v. Aldrich, 39 Vt. 331 (186G): Act 1797, 11. S. 412, §4; ib. 34. a Taylor v. Wilbey, 36 Wis. 44 (1874); 34 id. 606. (36) An endowment policy is an insurance into which enters the element of life. In one respect it is a con- tract payable in the event of a continuance of life; in another, in the event of death before the period speci- fied.' By the endowment of a school, hospital, or chapel is commonly understood, not building or purchasing a site for the institution, but providing a fixed revenue for its support.' The " endowment of a religious or educational cor- poration " refers to that particular fund, or part of the fund, of the institution, bestowed for its more per- manent uses, and usually kept sacred for the purposes • intended.' ENEMY. A nation, or a citizen or sub- ject thereof, at war with another nation. Alien enemy. One who owes allegiance to a government at war with ours, dwelling within our territory or seeking some action from a department of our government. Enemies of the United States. The subjects of a foreign power in a state of open hostility toward us. Does not embrace "rebels" in insurrection against their own government. An "enemy" is always the subject of a foreign power, who owes no al- legiance to our government or country.^ " Rebels " and " enemies " may be synonymous for those who have cast off their allegiance and made war upon their own government. Who are enemies in a civil war^ the law of nations has not defined; but, within the meaning of a confiscation act, the term may include those who are residents of the territory under the power of the parties resisting the regular govern- ment. . . In the case ot a foreign war, applies to all who are inhabitants of the enemy's country, though not participants, and even though subjects of aneutral State, or even subjects of the government prosecuting the war against the State within which they reside.* Public enemy. Eeferring to the under- taking of a common carrier, applies to for- eign nations with whom there is open war, and to pirates, who are considered at war with all mankind ; does not include robbers, thieves, rioters, insurgents, whatever be their violence, or Indians.' 1 Brummer v. Cohn, 86 N. Y. 17 (1881), Andrews, J. ' [Edwards v. Hall, 6 De G. M. & G. *87, 83 (1855), Cranworth, Ld. C. 3 State V. Lyon, 33 N. J. L. 361 (1867), Bedle, J. * United States v. Greathouse, 4 Saw. 466 (1863), Field, J. 'Prize Cases, 3 Black, 674 (1S62); Miller v. United States, 11 Wall. 310-13 a870); Gates v. Goodloe, 101 U. S. 617(1879); 30 How. 319; 31 W. Va. 357. •Story, Contr. 752, Bailm. § 526; Southern Express Co. V. Womack, 1 Heisk. 269 (1870); 7 id. 625; State v. Moore, 74 Mo, 418 (1881); League v. Eogan, 59 Tex. 434 4 Op. Att.-Gen. 81. ENFEOFF 402 ENLARGE In a policy of marine insurance, " enemies " means "public enemies," those with whom a nation is at war.^ ^ee Carrier, Common; Treason; War. EWFEOFF. See Fee. ENTOECE. See Force; Performance. ENPRAlf CHISE. See Franchise, 3. ENGAaEMENT. See Agreement ; As- sumpsit; Contraot; Promise; Undertak- ing. ENGINE. Includes a snare, whiph is a device or contrivance for killing game.^ Engineer. See Admission, 3 ; Commerce. ENGLAND ; ENGLISH. See Borough ; Chancery; Charity, 3; Constitution; Court ; Cy Pres ; Descent, Canons of ; Ex- tradition, 1; Feud; King; Latin; Law, Common; Parliament; Statute. ENGRAVING. See Copyright ; Print. ENGROSS. 1. To write in a gross, i. e., a large, hand ; to copy in a fair band : as, to engross an instrument on parchment. Whence engrosser, engrossing. After a proposed statute has been read and acted upon a sufficient number of tunes, it is ordered to be " A bill ordered to be engrossed is to be written in a strong gross hand." ^ See Gross. 3. At common laiw the offense of engross- ing was the getting into one's possession, or buying up, large quantities of corn [grain] or other dead victuals, with intent to sell them again.* An injury to the public. If permitted, one or more men coxild raise the price of provisions at will. The total engrossing of any other commodity, with intent to sell it at an unreasonable price, was also an indict- able offense.* See Combination, 2; Corner; Monop- oly. ENHANCED. In an unqualified sense, is equivalent to "increased," and compre- hends any increase of value, however caused or arising. In Oregon if a husband aliens dowable lands, and they become "enhanced in valne" thereafter, they shall be estimated, in setting forth the dower, ac- cording to their value when aUened. Held^ that " enhanced " included only the value caused by im- provements made, and not that which arises fortui- tously, or from natural causes.* 1 Monongahela Ins. Co. v. Chester, 43 Pa. 493 Vattel, Law of Nations, 387. s Allen V. Thompson, L. E., 5 Q. B. *339 (1870). » 1 Bl. Com. 183. 1 4 Bl. Com. 168. « Thombum v. Doscher, 32 P. E. 812 (1887), Deady, J. ; 2 Or. Laws, § 2960. The syllabus (by the court) reads " not arising from improvements." ENJOIN. See Injunction. ENJOYMENT. Possession ; occupa- tion; use; exercise. Enjoyment as of right is an enjoyment had, not secretly or by stealth, or by tacit sufferance, or by permission from time to time, on each occasion, or on many occasions, of using it; but an enjoyment had openly, notoriously, without particular leave at the time, by a person claiming to use without danger of being treated as a trespasser, as a matter of right, whether strictly legal by prescription and adverse user or by deed conferring the right, or, though not strictly legal, yet lawful to the extent of excusmg a Adverse enjoyment. The possession or exercise of an easement or privilege under a claim of right against the owner of land. K open, and continued without interruption for twenty years, a conclusive prescription of grant arises, provided that during the time there was some one in possession, qualified to resist the claim." Compare Possession, Adverse. Quiet enjoyment. Peaceable, undis- turbed possession of land. Covenant for quiet enjoyment. A cove- nant in a conveyance or lease of land, en- gaging that the grantee or lessee shall be permitted to use the land unmolested. ^ Every lease implies a covenant for ,quiet enjoy- ment. But it extends only to the possession; audits- breach, like that of a warranty for title, arises only from eviction by means of title. It does not protect against entry and ouster of a tort-feasor. The tenant may call his landlord into his defense; and, it evic- tion follows as the result of a failure to defend hini, he can then refuse to pay rent, and fall back upon this covenant for quiet enjoyment to recover his dajn- ages.* A lease with an express covena,nt for quiet enjoy- ment implies a covenant that the lessor has title and power arid right to convey it. The implied covenant is broken if the lessor has made a prior and still out- standing lease of part of the premises. A recovery of the premises by the prior lessee is such an eviction as constitutes a breach of the covenant for quiet enjoy- ment; and the lessee may recoup his damages from the rent due.* See Demise; Warranty, 1. ENLARGE. To extend, increase, lengthen the time of ; also, to set at liberty. Enlarge an estate. To increase the ten- ant's interest. Enlarge an order or rule. To extend the time for complying with it. 1 Tickle V. Brown, 31 E. C. L. 91 (1836), Denman, C. J. !'2Washb. E. P. 42,48. » 1 Washb. E. P. 325; 4 Kent, 474, n. * Schuylkill, &o. E. Co. v. Schmoele, 57 Pa. 273 (1868); Mark v. Patchin, 42 N. Y. 171-72 (1870), cases. » McAlester v. Landers, 70 Cal. 82-84 ( ENLISTMENT 403 ENTIRE To "enlarge" and to "extend" the time for taking testimony may have different meanings in a partic- ular case. ^ Enlarging statuta. Extends a right or a remedy as it exists at common law.2 ENLISTMENT. Either the complete act of entering into miUtai-y service, or the first step taken toward that end. 3 A technical term, derived from Great Britain. In the English Cyclopsedia, defined to be "a voluntary engagement to serve as a private soldier for a certain number of years." Chambers defines it as "the means by which the English army is supplied with troops as distinguished from the conscription prevailing in many other comitries." * Has never included entry into service under com- mission as an officer.' Public policy requires that a minor be at liberty to enter into a contract to serve the state, wherever such contract is not positively forbidden by the state itself. This at least is the common law of England.' Eev. St., §§ 1116-17, authorizes enlistment in the army of men above the age of sixteen, no person under twenty-one to be mustered into service without the written consent of his parents or guardian. A contract made by a minor over sixteen, without consent, can be avoided only by his parents, they claiming his custody before majority.' Habeas corpus is the judicial proceeding to secm'e release of a minor whose parents did not consent to his enlisting. 3 See Desertion, 3. ENORMIA. L. Wrongs ; unlawful acts. Alia enormia. Other wrongful acts. After a specific allegation of wrong done by a de- fendant, the plaintiff may ftuther charge, generally, aUa enormia^ to the damage, etc., — " and other wrongs then and there did against tlie peace," etc. Then, all matters naturally arising from the act com- plained of may be given in evidence." See Cauages, Special. ENQUIRY. See Inqiotrt. ENROLL. See Roll; Registry, Of vessels. ENS. L. A being ; a creature. Ens legis. A creature of the law ; an ar- tificial person, a legal entity, a corporation. ' James v. McMillan, 55 Mich. 136 (1884). = See 2 Bl. Com. 324; 1 id. 87. ' Tyler v. Pomeroy, 8 Allen, 485 (1864), Gray, J. See Erichson v. Beach, 40 Conn. 286 (1873); Sheffield v. Otis, 107 Mass. 282 (1871). * Babbitt v. United States, 16 Ct. CI. 213 (1880), Dar vis, J. , ' Hilliard v. Stewartstown, 48 N. H. 280-81 (1869), Per- ley, C. J. « Commonwealth v. Gamble, 11 S. & E. *94 (1824), Gibson, J. ' i?c Hearn, 32 F. E. 141 (1887). 8 JJe Baker, 23 F E. 30 (1885), cases; E. S. § 1117. »2 Greenl. Ev. §§ 268, 273, 278; 1 Oiitt. PI. 397; 3 Mass. 222; laid. 194. ENTAIL. See Tail. ENTER. See Entry. ENTERPRISE. See Gift, 1. ENTERTAINMENT. Public recep- tion ; something connected with the enjoy- ment of refreshment-rooms, tables, and the lilie.i See Inn. A public aquarium is a "place of entertainment and amusement," when a band plays and the fish are fed." See Exhibition; Theater. ENTICE. See Abduction; Husband; Persuade. ENTIRE. Untouched: complete; un- broken, whole ; undivided, indivisible, insev- erable: as, an entire — consideration, cove- nant, contract, 3 g. v. See Separable. An entire claim arising out of one transaction, con- tract or tort, cannot be divided into separate and dis- tinct claims. A verdict for one portion will bar an action on another.* See Damages; Multipucity. Entirely. " Entirely ^tisfied " implies a flrih and thorough assent of the mind and judgment to the truth "of a proposition; and this may exist, notwithstanding a possibility that the fact may be otherwise.' Entirety. The whole, as opposed to a moiety. ' If an estate in fee be given to a man and his wife, they are neither properly joint- tenants, nor tenants in common ; for, being one person in law, they cannot take the es- tate by moieties, but both are seized of the entirety, — the ooQsequence of which is, that neither can dispose of any part without the assent of the other, but the whole must re- main to the survivof.s The right, at common law, to control the possession of the estate during their joint liv^s is in the husband. Subject to the limitation that neither can defeat the right of the survivor to the whole estate, the husband has such rights as are incident to his own property, and which he acquires in her realty. Having the usu- fruct of all her realty interests, by th» weight of au- thority he may lease the estate during coverture. Statutes enabUng ;narried women to hold and dispose of their property as if sole do not affect this species of estate, unless expressly so stated.' The survivor does not take as a new acquisition, but under the original limitation, his (or her) estate being simply freed from participation by the other; so that 1 Muir V. Keay, L. E., 10 Q. B. 597-98 (1875). ° Terry v. Brighton Aquarium Co., L. R.p 10 Q. B. 306 (1875). See Howes v. Board of Eevenue, 1 Ex. Div. 385 (1876). « See 2 Pars. Contr. 517. * Phillips V. Berick, 16 Johns. 136 (1819). » People V. Phipps, 39 Cal. 335 (1870). • [2 Bl. Com. 182. ' Pray v. Stebbins, 141 Mass. 223-24 ( ENTITLE 404 ENTRY if, for instance, the wife survives and then dies, her heirs would take to the exclusion of the heirs of the husband. Nor can partition be made of the estate. During coverture the husband has control of the es- tate. Upon his death, the wife, or her heir, may enter without action against his alienee— by 32 Hen. Vin (1541), c. 28, which is in force in Kentucky, Massachu- setts, Tennessee, and possibly in New Tork and New Jersey. Divorce of the wife from the husband restores her to her moiety. A grant or devise to them and an- other invests them with an entirety in one-half only. It is always competent, however, to make husband and wife tenants in common by proper words. The law of the States is not uniform on the subject.* ENTITLE. See Title, 3. ENTRAP. See Decoy. ENTEY.2 I. As relates to Property. The act of actually going upon land, or into a building. At common law, an assertion of title by going upoil the land ; or, if that was hazard- ous, by "making continual claim." ' Taking possession of lands by the legal owner.* 1. An extrajudicial and summary remedy by the legal owner, when another person, who has no right, has previously taken pos- session of lands or tenements. The party entitled may make a formal but peace- able entry thereon, declaring that thereby he takes possession, which notorious act of ownership is equiv- alent to a feudal investiture; or he may enter on any part of the land in the same county in the name of the whole ; but if the land lies in different counties he must make different entries. If the claimant is deterred from entering by menaces he may "make claim" as near the estate as he cai^ with the like forms and solemnities, which claim is in force for a year and a day; and, if repeated once in the like period (called ** continual claim "), has the same effect as a legal entry. Such entry puts into immediate possession him that has the right of entry, and thereby makes him complete owner, capable of conveying. But this remedy applies only in cases in which the original entry of the wrong-doer was unlawful, viz., in abate- ment, intrusion, and disseisin. In discontinuance and deforcement the owner of the es'tate cannot enter; for, the original entry being lawful, an apparent right of possession is gained, and the owner is driven to his action at law. In cases where entries are lawful, the 11 Wash. E. P. 425, cases; 4 Kent, 362; Cihandler v. Cheney, 37 Ind. 394^414 (1871), cases; Be Benson, 8 Biss. 118-21 (1877); Jacobs v. Miller, 50 Mich. 124 (1883); Had- lock V. Gray, 104 Ind. 598 (1885): 25 Am. Law Eeg. 269-74 (1886), cases; 18 Cent. Law J. 183-^, 3:36-29 (1884), cases; 5 Kan. Law J. 5 (1887), cases; Thornton i;. Thorn- ton, 3 Hand. 182-90 (Va., 1826), cases; 3 Lead. Cas. R. P. 143-68 (1887), cases. 2 F. entrer: L. in-trari', to go into. " [Innerarity v. Mims, 1 Ala. 674 (1840). « Guion V. Anderson, 8 Humph. 306 (1847). right of entry may be " tolled," that is, taken away, by descent. Corresponds to recaption of personalty.^ Ee-entry. The right reserved to consider a lease forfeited and to resume possession of the premises, upon failure in the lessee to per- form' a covenant ; also, any exercise of this right. This being a harsh power, the courts will restrain it to the most technical limits of the terms and condi- tions upon which the right is to be exercised. ^ When for rent in arrear, unless dispensed with by agreement or statute, demand of payment of the rent must first be made.' 3. On the subject of entry by a grantor for breach of condition by the grantee,' see Grant, 3. 3. Going upon the landed property of an- other for any other purpose than those above mentioned. It is not a trespass to enter upon another's premises to abate a nuisance, retake goods, make repairs, de- mand rent, distrain, or capture an estray.' See Tres- pass, Ab initio. Forcible entry. An entry made with violence, against the will of the lawful occu- pant, and without authority of law. Such entry as is made with a strong hand, with unusual weapons, an unusual number of servants or attendants, or with menace of life or limb ; not a mere trespass.^ "When a man enters peaceably into a house, but turns the party out of possession by force, or by threats frights him out of possession." * It will be sufficient if the entry is attended with such a display of force as manifests an intention to intimidate the party in possession, or deter him from defending his rights, or to excite him to repel the in- vasion, and thus bring about a breach of the peace. '^ Forcible entry and detainer. An of- fense against the public peace, committed by violently taking or keeping possession of lands and tenements by menaces, force, and arms, and without the authority of law. The entry now allowed by law is a peaceable one; that forbidden is such as is carried on and maintained by force, by violence and with unusual weapons.'* In early days, at common law, any man who had a right of entry upon lands was authorized to enter with > 3 Bl. Com. 174r-79, 5; 2 id. 314. » The Elevator Cases, 17 F. E. 200 (1881). s Johnston v. Hargrove, 81 Va. 121-23 (1885), cases. 4 Keif er v. Carrier, 53 Wis. 404 (18G1). ' Willard v. Warren, 17 Wend. S61 (1837). « Bacon, Abridg. : Edwick v. Hawkes, 18 Ch. Div. 211 (1881). See also 8 Ala. 87; 9 Cal. 46; 21 N. J. L. 428. ' Ely V. Yore, 71 Cal. 133 (1886), cases. 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- sion — provided, possibly, that the entry was nptbya breach of the public peace. The general revision of the written law upon the use of force by an individual to establish his own rights, made by statute 8 Hen. VI (1430), c. 9, is substantially the origin of existing law upon the subject of forcible entry and detainer. Prose- cution under this statute is by indictment. In Massa- chusetts, unless the entry and detainer is accompanied by an actual breach of the peace, the process is sub- stantially a civil proceeding. Under either procedure the court will award restitution of the premises.^ The purpose of statutes forbidding forcible entry and detainer is, that, without regarding the actual con- dition of the title to property, where a person is in the peaceable and quiet possession of it he shall not be turned out by strong hand, by force, by violence, or by terror. The party so using force and acquiring pos- session may have the superior title or may have the better right to the present possession, but the policy of the law is to prevent disturbances of the public peace, to forbid any person lighting himself, in a case of that kind, by his own hand and by violence, and to require that the party who has in this manner obtained possession shall restore it to the party from whom it has been obtained; and that, when the parties are in statu quo, in the position they were in before the use of violence, the party out of possession must resort to legal means to obtain his possession, as he should have done in the first instance.'' If a claimant (a railroad company) of real estate, out of possession, resorts to force, amounting to a breach of the peace, to obtain possession from an- other claimant (also a railroad company) who is in peaceable possession, and personal injury arises there- from, the party using the force is liable in damages, compensatory and punitive, for the injury, without re- gard to the legal title, or to the right of possession. = 4. Entrance into a dwelling-house with the whole or a part of the body, or with any implement for the purpose of committing a felony. See Bueglaey. II. As a matter of Writing. Setting down in written characters ; placing upon the rec- ord: recording. 1. Setting down in a book of accounts the particulars of a business transaction. Original entry. The first statement made by a person in his account-books, charg- ing another with money due upon a contract between them. Whence "book of original entries." ■• See further Book, Entries. iHortgkins «. Price, 138 Mass. 200 (1882), Lord, J. ; Presbrey v. Presbrey, 13 Allen, 284 (1866); 10 Greg. 486. ! Iron Mountain* Helena E. Co. v. Johnson, 119 U. S. 611 (1887), Miller, J. 3 Denver & Eio Grande E. Co. v. Harris, 123 U. S. 597, 605 (1887), Harlan, J. As to civil action, see 32 Cent. Law J. 392 (1886), cases. •See generally Eoche v. Ware, 71 Cal. 376-77(1886), cases; Bridgewater v. Eoxbury, 54 Conn. 213 (1886). Short entry. It was a custom in London for bankers to receive bills for collection and to enter them immediately in their customers' accounts, but never to ca,n-y out the proceeds in the column to then- credit until actually collected. This was called " short entry " or " entering short." ' 2. The transaction by which an importer obtains entrance of his goods into the body of the merchandise of the country. Until the entire transaction is closed, by a with- drawal and payment of the duties upon all the goods covered by the original paper called the entry for warehouse, the "false entry" contemplated by the act of Congress of March^ 1863, is not completed." In the statutes in relation to duties, but one entry is referred to — the original entry provided, regulated, and defined by sections 2786-90, Eev. St. "Entry for withdrawal " is a misnomer. s 3. Filing or inscribing upon the records of a land-ofiBce the written proceedings required to entitle a person to a right of pre-emption or of homestead in public lands. The act by which an individual acquires inceptive right to a portion of the unappropriated soil of the country, by filing his claim in the offlce of the " entry- taker," an officer who corresponds in his functions to the register of land-oSaces.< See Land, Public; Pbe- EMPTION, 2. 4. Depositing for copyright the title or de- scription of a book or other article. Whence " Entered according to Act of Congress," etc. See Copyright. 5. Recording in due form and order a thing done in court : as, an appearance made, a judgment rendered. Styled " docket " or "record" entries. When a written order is signed by the judge and filed with the clerk, who enters a brief statement thereof in his "minute-book, the order, although not then recorded in the order-book, is "entered," within the meaning of a law limiting the time for appeal.* In a literal sense, writing up a judgment in a docket is "entering" it; as, entering the judgment of a jus- tice of the peace. • 6. In the practice of legislative bodies, the orderly inscription in a journal of any action or determination required to be preserved in writing. The constitution of Iowa requires that a proposed amendment " shaU be entered " in the journals of the two houses of Assembly "with the yeas and nays." 1 Blaine v. Bourne, 11 E. 1. 121 (1876), Potter, J. ' [United States v. Baker, 6 Bened. 35 (1871), Blatch- ford, J. ; 12 St. L. 737. 3 United States .. Seidenberg, 17 F. E. 230 (1883), Pardee, J. , ^ i Chotard v. Pope, 12 Wheat. 588 (1827), Johnson, J. »Uren v Walsh, 67 Wis. 102 (1883); E. S. Wis. § 3042. « Conwell V. Kuykendall, 29 Kan. 707, 710 (1883) ; Kan. Comp. Laws, 1879, ch. 81, § 115. ENUMERATION 406 EQUITY This means that the amendment shall be spread at length thereon, and the yeas and nays set out in the journal in full. But instances where "to enter" and "entered" do not naeau to spread at length may be cited. The object to be obtained must be considered in each case.' See Yeas akd Nats. III. As a Remedy. A " writ of entry," at common law, was a proceeding by which the possession of land, wrongfully withheld from its owner, could be recovered. A Keal action, possessory in nature. In a greatly modified form, has been used in this country. In Eng- land, superseded by the action of ejectment, and, later, abolished." ENUMEEATION. Separate mention. The enumeration of particular things in an instru- ment may include others of the same class; there is no absolute rule that sudi enumeration includes things of a different class, when the general terms are broad enough to include them.' See Ejusdeu Generis; Bx- PKESsio, Unius, etc.; General, 6; Other. EWURE. See Inuee. ENVELOPE. See Letter, 3; Publica- tion, 2. ENVOY. See Minister, 3. EO. L. On that, in that; at the same. See Is. Eo die. On the same day, at the same time ; as, eo die, writ issued. Eo iustaute. At the same moment or instant. Ep nomine. In or under the same name ; as, interest eo nomine. EPIDEMIC. See Disease ; Health. When, in a policy of insurance, it does not appear that the word "epidemics" was understood by the pt^rties in any other than its popiUar sense, evidence is not admissible to change that meaning. The in- surer may stipulate for exemption from liability for any disease that may by possibility prevail to an ex- tent which could be called epidemic* EQUAL.5 Compare Equivalent. Like or alike in quality, degree, amount, or merit ; corresponding ; uniform ; the same : as, equal provision, equity, protection, rights. Equal to. Not less than : as, in an agree- ment to keep the number of boats in a freight line " equal to" the number leased. 6 > Koehler v. HUl, 60 Iowa, 557, 5B6 (1883), Seevers, J. ^SeeSBl. Com. 180. = Corwin v. Hood, 58 N. H. 402 (1878); Se Swigert, 119 HI. 89 (1886). ' Pohalski v. Mutual Life Ins. Co., 36 N. Y. Super. Ct. 853 (1873); affirmed, 56 N. Y. 640 (1874). = L. cequalis: ceguus, even, level, exact; jiist, right, fair. "Stewart v. Lehigh Valley E. Co., 38 N. J. L. 517 (1875). Equally. In a will, may mean not that shares are to be held in the same manner, but as equal in quantity.! A per capita division is intended by "divided equally," whether the devisees are children ard grand- cliildren, brother or sisters, nephews or, nieces, or strangers in blood to the testator." When a testator designates the objects of his gift by their relationship to a living ancestor, they take equal shares, per capita. But this rule will be con- trolled by the general intention of the testator." "Equality is equity," and where distribution is to be made among two or more, without anything to in- dicate the proportions, the presumption is that the shares are equal.* An estate given to two persons, " equally to be di- vided " between them, is, under a deed, a joint ten- ancy; under a will, a tenancy in common. In the case of a deed is implied no more than the law has an- nexed to the estate, viz., divisibility; in the case of a will, the devisor may be presumed to have meant ■ what is most beneficial to both devisees." Equality. Uniformity, likeness; same- ness: as, of civil liberty. See Citizen, Amendment, XIV; Equity; Tax, 3. EQUITABLE. See Equity, Equitable. EQUITY.e 1. The point of contrast be- tween the law of nations (g. v.) and the law of nature was " equity; " a term which some derive from a Greek word denoting the prin- ciple of equal distribution : but that origin is to be preferred which gives the term the sense of " leveling." The civil law of Rome recognized many arbitrary distinctions be- tween classes of men and property. The neglect of these distinctions was that feature of the law of nature which is depicted in equity. It was first applied, without ethical meaning, to foreign litigants.' 3. Equality of right ; exact justice between contending parties; fairness in determining conflicting claims; justice. 3. That portion of natural justice which is ' Bannister v. Bull, 16 S. 0. 227 (1881). "Pumell V. Culbertson, 12 Bush, 370-71 (1876), cases. = Young's Appeal, S3 Pa. 63 (1876), cases; Risk's Ap- peal, 52 id. 271 (18661; Harris's Estate, 74 id. 463 (1873]; Walker v. Griffin, 11 Wheat. 375 (1836). ■> Lewis's Appeal, 89 Pa. 513 (1879). See also 37 Ala. 208; 20 Conn. 122; 120 Mass. 135; 46 Md. 186;, 37 Miss. 69; 46 N. H. 439; 30 N. J. E. 595; 33 id. 520; 70 N. Y. 512; 33 Ohio St. 338; 104 Pa. 037; 10 Gratt. 275; 4 Ired. B. 244; 6 id. 324; 6 id. 437; 10 Ves. 166; 8 Beav. 679; 4 Kent, 375; Roper. Leg. 88, 156. ' 2 Bl. Com. 193; 5 Cow. 221. " L, mqmtas, the quality of being cequus, even, level, equal, q. v. ' S. aine. Ancient Law, p. xxiv. EQUITY 407 EQUITY made up of the decisions of the judges of the English court of chancery in the exercise of their extraordinary jurisdiction. See further Chancery. " In this sense, equity is wider than law, and nar- rower than natural justice, in the extent of the sub- ject-matters within its jurisdiction : it cannot he defined in its content otherwise than by an enumeration of these matters." Not the chancellor's sense of moral right nor of what is equal and just, but a complex system of estab- lished law.' That portion, of remedial justice exclu- sively adm^inistered by a court of equity, as contradistinguished from the portion exclu- sively administered by a court of common law.2 In the most general sense we are accustomed to call that equity which, in human transactions, is founded in natural justice, in honesty and right, and which properly arises ex CBquo et bono. In this sense it answers precisely to the definition of justice, or natural law, given by Justinian in his Pandects. And the word jus is used in the same sense in the Eoman law. . . It would be a great mistalce to suppose that equity, as administered in England and America, em- braced a, jurisdiction as wide and extensive as that which arises from the principles of natural justice above stated. Probably the jurisprudence of no civil- ized nation ever attempted so wide a range of duties for any of its judicial tribimals. Even the Eoman law, which has been justly thought to deal to a vast extent in matters ex mqno et bono, never affected so bold a design. On the contrary, it left many matters of natural justice wholly unprovided for, from the difficulty of framing general rules to meet them, and from the doubtful nature of the policy of attempting to give a legal sanction to duties of imperfect obliga- tion, such as charity, gratitude, and kindness, or even to positive engagements of parties, where they are not founded in what constitutes a meritorious considera- tion. . . A stUl more limited sense of the term is that in which it is used in contradistinction to strict law — strictum et sunimum jus. Thus, Aristotle has defined the very nature of equity to be the correction of the law, wherein it is defective by reason of its uni- versality. It is of this equity, as correcting, mitigat- ing, or interpreting the law, that, not only civilians, but common-law writers, are most accustomed to sppak.' The general purpose of equity is to moderate the Vigor of the law, supply its deficiencies, and bring it into harmony with conscience and moral justice." See " Conscience. The term " equity " is also used, elliptic- ally, for a court o f equity or a court admin- I Savings Institution v. MalOn, 33 Me. 366 (1844), Shep- '' ley, J. s [1 Story, Equity Jurisprudence, § 35. = 1 Story, Bq. §§ 1-3, 6, 8. See also 1 Pomeroy, Eq., pp. 36-38, 308-21. * 3 Pars. Contr. 363. istering the principles of equity : as when it is 'said that equity will reform an instru- ment, or will afford relief or redress. And "equities" is often employed to de- note the several rights or interests, whatever they may be, belonging to one person or party, which will receive recognition and enforcement in a court of equity.! " This court held that there was no equity in the bill, on the ground that, if the plaintiff had any right of action for money had and received, it was an action at law." ' See Dbmokber, General. Cotirt of equity. The essential differ- ence between a court of equity and a court of law consists in the different modes of ad- ministering justice in them, in the modes of proof, of trial, and of relief. ^ A court of equity — (1) adapts its decrees to all the varieties of circumstances which may arise, and ad- justs them to all the peculiar rights of all the parties in interest; whereas a court of common law is bound down to a fixed and invariable form of judgment in general terms, altogether absolute, for the plaintiff or the defendant. (2) It can administer remedies for rights which a court of common law does not recognize at all; or, which, it recognized, are left wholly to the conscience and good-will of the parties. Such are trusts, many cases of losses and injuries by mistake, accident, and fraud; cases of penalties and forfeit- ures; cases of impending irreparable Injuries, or med- itated mischiefs; cases of oppressive proceedings, undue advantages and impositions, betrayals of confi- dence, and unconscionable bargains. (3) Eemedies in a court of equity are often different, in nature, mode, and degree from remedies in a court of law, even when each has jurisdiction over the subject-matter. Thus, a court of equity, if a contract is broken, will often compel specific performance; whereas a court of law can only give damages for the breach. So, a court of equity will interfere by way of injunction to pre- vent wrongs; whereas a court of common law can grant redress only, when the wrong is done. (4) The modes of seeking and granting relief differ. A court of law tries a contested fact by means of a jury; and the evidence is generally drawn from third persons, disinterested witnesses. But a pourt of equity tries causes without a jury; and, addressing itself to the conscience, requires the defendant, under oath, to give his knowledge of the facts stated m a bill in the nature of a bill of discovery,* q. v. Perhaps the most general, if not the most precise, definition of a court of equity is, that it has jurisdiction in cases of rights, recog- nized and protected by the municipal juris- i See 1 Pomeroy, Eq. § 146. n^tna Life las. Co. o. Middleport, 134 U. S. 547 (1888), Miller, J. s 3 Bl. Com. 426. 4 1 Story, Eq. §§ 28-31. See also 1 Pomeroy, Eq. §§ 129^- EQUITY 408 EQUITY prudence, where a plain, adequate, and complete remedy cannot be had in the courts of common law.i In America, this brancli of jurisprudence has grown up chiefly since the formation of the National government. It foUqws ttie model of the English court of chancery; except that, in some States, and in the National tribunals, it is administered by the common-law courts; in some the jurisdiction is very imperfect, in others scarcely known.^* The great advantage possessed by a court of equity is not so much in its enlarged jurisdiction as in the extent and adaptability of its remedial powers. Gen- erally its jurisdiction is as well defined and limited as that of a court of law. It cannot exercise jurisdiction when there is an adequate and complete remedy at law. It cannot assume control over that large class of obligations called imperfect obligations, resting upon conscience and moral duty only, unconnected with legal obligations. Generally its jurisdiction de- pends upon legal obligations and its decrees can only enforce remedies to the extent and in the mode estab- lished by law. It cannot, by avowing that "there is a right but no remedy known to the law, create a rem- edy in violation of law, or even without authority of law. It acts upon established principles not only, but through established channels.^ Courts of law and of equity are independent. They act upon different principles, and, except where some recognized ground of equity jurisdiction is concerned, are each alike boimd to recognize the validity and conclusiveness of the record of what the other has done. Equity, in such cases, does not contradict but supplements. It does in this way what right and jus- tice require, and what, from, the inflexibility of the principles upon which a court of law proceeds, it could not do.* When a court of equity has once acquired jurisdic- tion of a cause it may go on to a complete adjudica- tion, even to the extent of establishing legal rights and granting legal remedies.^ A too severe application of the common-law rules forced the courts of chancery into existence in Eng- land. The body of the chanceiy law is nothing more than a system, of exceptions ; of principles applicable to cases falling within the letter, but not within the intention of particular rules. The exercise of equity powers, in every government of laws, is conclusive proof of a necessity that they be lodged somewhere. Bveiy rule, from its universality, must be defective. A legislature can do little more than mark out general principles; their application, as well as the more mi- nute details, must in general be left to the courts, as cases arise. ^ The absence of a plain and adequate remedy at law 1 1 Story, Eq. § 33. 2 1 Stoiy, Eq. §§ 54r^8. 3 Reese v. City of Watertown, 19 Wall. 131-33 (1873), Hunt, J. 1 Tilton V. Cofield, 93 U. S. 167 (1876), Swayne, J. e Walters v. Farmers' Bank, 76 Va. 18 (1881) ; 1 Story, Eq. § 65; 1 Pomeroy, Eq. § 181. « Pennock v. Hart, 8 S. & E. *378 (1833), Gibson, J. affords the only test of equitable jurisdiction, and the application of this principle to a particular case must depend altogether upon the character of the case as disclosed in the pleadings.^ Where there is plain, adequate and complete relief at law, the defendant has a right to a trial by jury.^ The office and jurisdiction of a court of equity, un- less enlarged by express statute, are limited to the protection of rights of property. It has no jurisdic- tion over the prosecution, the punishment, or the par- don of crimes, or over the appointment and removal of public officers. To assume such a jurisdiction would be to invade the domain of the courts of common law, or of the administrative department of government.- Any jurisdiction over criminal matters that the Eng- lish court of chancery ever had became obsolete long ago, except as incidental to its peculiar jurisdiction for the protection of infants, or under its authority to issue writs of habeas corpus for the discharge of per- sons unlawfully imprisoned. ^ Equity does not enjoin against a crime as a crime. But injunctions have often been granted against acts injurious to individuals, though they have also amounted to a crime against the public* The equity jurisdiction of the Federal courts is de- rived from the Constitution and laws of the United States, and is not affected by State statutes. Section 913 of the Revised Statutes, which declares that the modes of proceeding in equity causes shall be accordr ing to the principles, rules, and usages which belong to courts of equity, refers to the principles, rules, and usages by which the English court of chancery was governed at the time of the passage of the 'Judiciary Act in 1789.* The test of equity jurisdiction in the Federal courts— namely, the inadequacy of the remedy at law — is the remedy which existed when the Judiciary Act of 1789 was adopted, imless subsequently changed by Congress.^ The practice in a court of equity is regulated by law or rule, and cannot' be varied by the agreement of parties.'^ See Probate, Court of. Bill in equity. The document by which a suit is begun in a court of equity. Is in the style of a petition; and in the nature of a declaration at law. Sets forth the circumstances of the case at length, alleging that a trust relation exists, or that some fraud, accident, mistake, or peculiar hardship exists or has been or is attempted; avers want of adequate relief at law ; asks for a subpcena ^Watson V. Sutherland, 5 Wall. 79 (1866), Davis' J.; Buzard v, Houston, 119 U. S. 351-52 (1886), cases. 2 Hipp V. Babin, 19 How. 378 (1S56 ; Parker v. Winni- piseogee, &c. Co., 3 Black, 551 (1868), cases; Smith u, Bourbon County, 137 U. S. Ill (1888). 5 Be Sawyer, 124 U. S. 210 (1888), cases, Gray, J. * Sparhawk v. Union Passenger R'y Co., 54 Pa. 413 (1867), Strong. J. 6 Strettell v. Ballou, 3 McCrary, 47 (1881), McCrary, J. ; Boyle V. Zacharie, 6 Pet. 658 (1833); 3 Wheat. 312; 4 id. 115; 13 How. 271; 3 Black. 551; 1 McCrary, 163. « McConihay u. Wright, 131 U. S. 306 (1887). ^Nickerson v. Atchison, &c. R. Co., 30 F. R. 86 (1880)t EQUITY 409 EQUITY to compel respondent tp answer the charges, and, per- haps, for an injvmction. Calls into court as parties all persons interested in the subject-matter. Should con- tain no scandalous or impertinent matter. Filing the hill is followed, in different suits, by service of the subpoena, sequestration, appearance, demurrer, plea to the jurisdiction or to the person, answer, amend- ments, supplemental bills, crossbills, decree or refer- ence to a master for a report as to the tacts and the form of a decree, exceptions to the report, final hear- ing, final decree, bill of review, appeal to a higher , court. See further Bill, IV. Better equity. A claim to property su- perior, in contemplation of a court of equity, to another claim. In this category is a second mortgagee who has no knowledge of the existence of a prior unrecorded mortgage. Countervailing equity. Such equity as offsets or counteracts another equity ; an ad- verse counter-balancing right or equity. Equal equity. Equality of equitable right. Exists between persons who have been equally in- nocent and equally diligent, i Equity of a statute. The intention of the law-maker, as evinced by the spirit and reason of an enactment. See further Stat- ute. Equity of redemption. The reasonable time within which a mortgagee may redeem his estate after forfeiture. See further Re- deem. Equity of settlement; wife's equity. See Settle, 3. Secret equity. An interest or claim, cognizable in a court of equity, of which no- tice has been withheld from one or more interested persons or from the public gener- ally. Equitable. 1. According to natural right or justice; just and right in a particu- lar case, as distinguished from the strict rule of a general, positive law. Opposed, inequi- table. 2. That which can be sustained or made available or effective in a court of equity, or upon principles of equity jurisprudence.^ Opposed, legal. The remedies for the redress of wrongs and the en- forcement of rights are: (1) those which are adminis- tered in courts of common law; and (3) those which are administered in courts of equity. Rights which are recognijied and protected, and wrongs which are re- dressed, by the former courts are called "legal" ' See Boone v. Chiles, 10 Pet. *210 (1836J. » [Abbott's Law Diet. rights and " legal " injuries. Eights which are recog- nized and protected, and wrongs which are redressed, by the latter courts only, are called "equitable" rights and ' ' equitable "injuries. The former are said to be rights and wrongs at common law, and the rem- edies, remedies at common law; the latter, rights and wrongs in equity, and the remedies, remedies in equity.' It is customary to speak of "equitable" (and legal) — action, assets, assignment, con- sideration, conversion, defense, estate, estop- pel, execution, interest, jurisdiction, levy, lien, mortgage, owner, plaintiff, remedy, title, value, waste, qq. v. In the Federal courts, the distinction between legal and equitable proceedings is strictly maintained; dis- tinct proceedings must be instituted for the enforce- ment of equitable rights.' Separate courts of equity exist in Alabama, Dela- ware, Kentuoly, Maryland, Mississippi, New Jersey, and Tennessee. In Arkansas, Connecticut, Florida, Georgia, Illinois, Iowa, Maine, Massachusetts, Mich- igan, New Hampshire, North Carolina, Oregon, Penn- sylvania, Rhode Island, Texas, Vermont, Virginia, and West Virginia, chancery powers are exercised by th© judges of the common-law com-ts. In the other States, the distinction between actions at law and suits in equity have been abolished, but certain equi- table remedies are still administered under the statu- tory form of the civil action." In a given case equity jurisdiction may be exclusive of the law, auxiliary to it, remedial of it, or concurrent with it — that is, executive, adjustive, or protective.* Maxims embodying fundamental piinciples upon which equity jurisprudence rests, are: Equity, once having had, does not lose, jurisdiction; foUows the law — in affording redress;' assists the vigilant; suf- fers no right to be without a remedy; suffers tlie law to prevail, where there is equal equity or equality; delights in equality — is equality;" requires that he who seeks equity must do equity — must come with clean hands: ' as to the particular transaction in re- view: ^ looks on that as done which ought to be done" — imputes intention to fulfill obligations; de- lights to do justice, and that not by halves. Nothing can call forth a court of equity into activity but con- science, good faith, and reasonable diligence, i" See further terms in this title, and, especially, Acci- ' 1 Story, Eq. § 25. 2 See Gibson v. Chouteau, 13 Wall. 102 (1871). ! See Bispham, Eq. § 16; 1 Story, Eq. §§56-58. < Smith, Manual Bq. 33. » lOT U. S. 11 ; 110 id. 284, 281. «101 U. S. 406; 109 id. 612. M08U. 8.225; 109 id. 526. "26 Wend. 160; 1 Black, 93. "3 Wheat. 678; 60 Conn. 111. "> 1 How. 189, 168; 96 U. S. 160. See generally 1 Story, Eq. §§ 59-74; 1 Pomeroy, Eq., Ch. I, § 363; early English equity (uses and contracts), 1 Law Quar. Rev. 162-74 (1886), O. W. Holmes, Jr. ; common law and conscience hi the ancient court of chancery, ib. 443-54 (1885), L. Owen Pike; the administration of equity through EQUIVALENT 410 ERROR dent; Adequate, 2; Discovery, 6; Election, 3; Fic- tion; Fraud; Hearing; Ignobanoe-; Issue, 4; Mas- ter, 4; Mistake; Pabty, 3; Patent, 2; Peace, 1, Bill of; Performance, Specific; Prejudice, Without; Quia Timet; Eeceiver, 2; Reform; Relief, 3; Rescission; Satisfaction, (2); Sequestration, 3; Set-off; Trust, 1; Use, 3. EQUrVALENT.i 1, adj. (1) Equal in force or power, in effect or import : as, equiv- alent — terms, stipulations. (3) Equally good : as, the equivalent chem- ical action of fluids. ^ 3, n. A device or machine operating on the same principle and performing the same functions, by analogous means or equivalent combination, as another device or machine,' Only those things are equivalents which perform the same functions in substantially the same way. , Thus, celluloid is not an equivalent for hard rubber.* The substantial equivalent of a thing is the same as that thing itself. Two devices which perform the same functions in substantially the same way, and accomplish substantially the same result, are the same, though they differ in name and fonu.^ A patentee is protected against equivalents for any part of his invention. But a process is not" infringed by the use of any number of its stages less than all of them." Equivalents may be claimed by the patentee of an invention consisting of a combination of old elements or ingredients, as well as of any other valid patented improvement, provided the arrangement of the parts comprising the invention is new, and wiU produce a new and useful result. The term as applied to such an invention is special in its signification and some- what different from what is meant when applied to an invention consisting of a new device or an entirely new machine.' An equivalent for an ingredient of a combination ' of parts that are old must be one which was known at the date of the original patent as a proper substitute for the ingredient left out. An equivalent in such case performs the same function as the other.' See Com- bination, 1 ; Patent, 2. common-law forms, ib. 455-65 (1885), S. G. Fisher; brief 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. "Tyler v. City of Boston, 7 Wall. 330 (1868). a See McCormick v. Taleott, 30 How. 405 (1857), Grier, Justice. * Goodyear Vulcanite Co. v. Davis, 103 U. S. 230, 222 <1880), Strong, J. « Union Paper-Bag Machine Co. v. Murphy, 97 U. S. 136 (1877), Clifford, J. ° Goodyear Co. v. Davis, supra; Crouch v. Boemer, 103 U. S. 797 (1880). ' Imhaeuser v. Buerk, 101 U. S. 655 (1879), Clifford, J. « Gill V. Wells, 22 Wall. 2, 28 (1874), cases, Clifford, J. See Gage v. Herring, 107 U. S. 617 (1882); 1 WaU. 673; 3 id. 328. EQUIVOCAL. See AmbiguItt. EE.. The Teutonic form of the Latin or in terminations. Annexed to words of English origin. See Ob, 1. ERASURE. See Alteration, 2. ERECT.i 1. To lift up, build, construct: as, to erect — a building, a fixture. A house cannot be said to be erected until substan- tially completed^ before that it is a structure, not a "building erected " for a purpose." Removing a building is not erecting it; 3 nor is ele- vating and materially enlarging it.* But erecting or repairing may include pamting.s An erection is a construction.* A public grant conditioned on the " erection " of buildings is satisfied by the purchase of buildings al- ready erected.' See Structure. 3. To found, form, institute, establish, create : as, to erect — a new county, a district for election or judicial purposes, a corpora^ tion.8 ERIE, LAKE. See Lakes. ERMINE. 1. The mustela erminea, Ar- menian rat ; the fur of which is pure white in winter time. 2. The dignity of judges, whose state robes, lined with the fur of the ermine, are regarded as emblematical of purity.' Whence judicial ermine, for judicial in- tegrity. See Gown, 3. ERRATUM. L. Error. In nullo est erratum. In nothing is there error. The emphatic words of a joinder of issue on an assignment of error, as origi- nally expressed. By this plea the defendant admits a fact regularly assigned. 1° The plea is in the nature of a demurrer." See Error, 2 (3), Writ of. ERRONEUS. See Error, 3 (2), Erro- neous. ERROR. 1. Lat. A wandering; a mis- take ; an error. Compare Erratum. ^ L. erectus^ set up, upright: erigere, eregere, to raise or set up. 2 McGary v. People, 46 N. Y. 161 (1871), Allen, J. 'Brown v. Hunn, 27 Conn. 332 (1858). * Douglass V. Commonwealth, 2 Eawle, 264 (1830). s Mar'tine v. Nelson, 51 111. 423 (1869). » Trask v. Searle, 181 Mass. 231 (1876); 8 Allen, 159. ' Kief er v. German American Seminary, 46 Mich. 641 (1881). «1 Bl. Com. 469-71, 472, 474. ' [Webster's Diet. 1° Burkholder v. Stahl, 58 Pa. 377 (1868). 1' Bragg V. Danielsou, 141 Mass. 195 532; 7 Wend. 55. ERROE 411 ERROR Communis error facit jus. A common error makes the law. Long-continued prac- tice, though originally erroneous, establishes the rule of law. A maxim or procedure, piirely; briefly stated as the rule of communis ct'ror. A received doctrine stall not be overturned or abandoned, even though its soundness in principle may be questioned. " It is more material that the law should be settled than how it is settled." ' " We are not inclined by a technical exposition of an act to unsettle rights honestly acquired and upon which many pei-sous have rested for years." ^ The executive branch of a government must neces- sarily construe the laws which it executes; and its construction, which has been followed for yeai-s, with- out interference by the law-making power, should not be departed from without the most cogent reasons. A long-continued practice under such circumstances ripens into an authoritative construction. The law, in its regai"d for the public good, goes so far, in some cases, as to hold that communis error facit jus; but coiu-ts should be slow to set up a misconception of the law as the law.^ Long acquiescence in repeated acts of legislation on particular matters is evidence that those matters have been generally considered by the people as properly within legislative control. Such acts are not to be set aside or treated as invalid, because upon a careful consideration of their character doubts may arise as to the competency of the legislature to pass them.* See Consensus, Tollit, etc. ; Exposmo, Contempo- ranea, etc. 2. Eng. (1) A mistake ; an omission. Clerical error. A failure to reduce the intent of paities to writing, not affecting the intent itself. Attributable to carelessness or miswriting; and dis- regarded or corrected. Also, a mistake of a clerk in preparing a record. See Misprision, 2. (3) An unintentional deviation from the truth in a matter of fact, and from the law in a matter of opinion or decision. Such irregularity, misconception, or wrong application of the law as directs that the pro- ceeding should be reversed on appeal or writ of error. ' Forsythe, Hist. Lawyers, 395, quoting Lord Eldon. "KostenbadCT v. Spotts, 80 Pa. 437-38(1876); 13 id. 661; 78 id. 308; Gelpckes). Dubuque, 1 Wall. 175 (1863); Hemdon v. Moore, 18 S. C. 334 (1882): 2 Whart. Ev. § 1243. ' Harrison v. Commonwealth, 83 Ky. 170 (1885); Rob- ertson u Downing, 127 U. S. 613 (1888), cases. * Maynard v. Hill, 125 U. S. 204 (1888), Field, J., on the power of a legislature to grant a divorce by a special act; also, Cronise v. Cronise, 54 Pa. 261 (1867). AppUed where the practice of a colony differed from the requirements of the law of England as to a wife's acknowledging a deed,— 1 Dallas, *13, 17. Erroneous. Deviating from the law. What is " illegal " lacks authority o£ or support from law. " EiToneous rulings "' always mean such as deviate from or are contrary to law. " Erroneous "" alone never designates a corrupt or evil act. " Erro- neous and illegal " means deviating from the law be- cause of a mistaken construction.' An " erroneous judgment " is rendered according to the course and practice of the courts, but contrary to law. An "irregular judgment" is contrary to the course and practice of the courts." (3) A writ of error : as in saying that error lies or does not lie, that a judgment may be reversed or was reversed "on error," and in speaking of the plaintiff and the defendant "in error.'' Assignment of error; specification of error. The statement of the error which an inferior tribunal is alleged to have com- mitted; also, the paper containing such statement. Spoken of as "cross," when made upon the same matter as is alleged for error by the opposite party; as "general," when upon more matters than one; and as "specific," when upon some one matter in particular. General assignments of error are not tolerated. Court of errors. A court for correcting errors made in administering the law in sub- ordinate tribunals. See Paper, 5. Error coram nobis; error coram vobis. When a writ was had to re-examine a judgment, in a civil or criminal cause, in the court of king's bench, by that court it- self, it was called " a writ of error coram nobis, " that is, error before us — the sovereign ; when to re-examine a judgment rendered in the common pleas, in a civil case only, by the king's bench, it was called " a writ of error coram vobis," that is, error before you — the chief justice and associates. The writ coram vcbis was also brought before the same court in which the error was committed to sup- ply or rectify a mistake of f a«t not put in issue or passed upon by the court; such as the death of a party when the judgment was rendered, coverture of a female party, infancy and failure to appoint a guard- ian, error in the process, or mistake of the clerk. But if the error was in the judgment itself the writ did not lie. The two expressions are now applied, respectively, to a writ to review proceedings, not carried to judg- ment, had in the same court (before us), and to a writ issued to bring up for revision a record of what was done in an inferior court. 1 [Thompson i'. Doty, 73 Ind. 338 (1880), EUiott, J. SAVolfe V. Davis, 74 N. 0. 599 (1876), Reade, J. See Koonce v. Butler, 84 id. 223 (1881). ERROR 412 ESCAPE What was formerly done by the writ coram nobis is now attained by motion and affidavit, i Error in fact. Such matter of fact, not appearing on the record, as renders the judg- ment entered unsupportable in law; as, in- fancy or coverture in a party. A fact that might have been taken advantage of in the court below is not assignable for error; nor is a fact that contradicts the record.^ Error in law. Any substantial defect in the proceedings not cured by the common law nor by statute, injurious to and not waived by the complainant, and made to ap- pear on the record, is assignable for reversal : also, any incorrect decision on a right of either party, as presented by the pleadings, special verdict, bill of exceptions, or opinion filed. Reviewable errors in law are: those apparent upon the face of the record, — available on general demurrer or in arrest of judgment ; and, those brought up by a bill of exceptions,— objections to the admis- sion or rejection of evidence and errors in the charge of the court. Error of fact. When a fact is unknown, or is erroneously supposed to exist. Error of law. When a person is ac- quainted with the existence or non-existence of a fact, but is ignorant of the legal conse- quence, he is under an error of law.* See Ignorance. TSo «rror. The form of the judgment of the court of appeals of Connecticut, affirm- ing the decision of the lower court. Writ of error. A commission by which the judges of one court are authorized to ex- amine a record upon which a judgment was given in another court, and, on such exam- ination, to afSrm or reverse the same accord- ing to law. 4 An original writ, and lies only where a party is ag- grieved by some error in the foundation, proceedings, judgment, or execution, of a suit in a court of record. 3 The supervisory court is called " the court of error." In the nature of a suit or action, when to restore one to the possession of a thing withheld from him. Submits the judgment to re-examination; operates J Pickett V. Legerwood, 7 Pet. ] 47-48 (1833); Exp. Lange, 18 Wall. 195 (1373), cases; Bronson v. Sohulten, 104 U. S, 410, 416-17 (1881); 1 Flip. 343; 3 Chitty, Bl. Com. 406; 4 Crim. Law Mag. 364, 371; 34 Pa. 95. ■^ 2 Tidd, Pr. 1169; 2 Bac. Abr. 492. s [Mowatt V. Wright, 1 Wend. 360 (1838), Savage, 0. J. « Cohens v. Virginia, 6 Wheat. 409 (1881), Marshall, Chief Justice. ^Suydam v. Williamson, 20 How. 437 (1857), Clif- ford, J. only upon the record — which is removed into the supervisoiy tribunal; is the more usual mode of re- moving suits at common law, and the more technic- ally proper where a single point of law, and not the whole case, is to be re-examined.* Must be regular in form and duly served. To oper- ate as a supersedeas and stay of execution, must be issued and returned within a given period from the date of the judgment." On review nothing is error that is not made to ap- pear on the face of the record. Error will be inferred only when the inference is inevitable. Every error apparent is open to re-examination. ^ A Writ of error lies in all cases where a court of record has given a " final " judgment, or made an award in the nature of a judgment, or where a judg- ment has been arrested, or, on an appeal from a jus- tice, has been dismissed; also, on an award of execu- tion.* Proceedings in a com*t of error assimilate them- selves to proceedings in a court of original jurisdiction. The writ of error in a general way recites the cause of complaint, and it is left to the assignments of error to specify it as a declaration specifies the cause of action. The plea in nulla est erratum raises the issue. Like a declaration, therefore, each assignment must be complete in itself, that is, be self-sustaining. What- ever is part of it must be parcel of it. The burden rests upon the plaintiff to make out his assignments affirmatively. ° See Erratum. A writ of error lies from inferior criminal jurisdic- tions to the court of king's bench, and from the king's bench to the house of peers; and may be brought for "notorious mistake " in the judgment or other part of the record, or for an irregularity, omission, or want of form, in the process. . . To reverse a judgment in the case of a misdemeanor, allowed, not of coiuse, but on sufficient probable cause shown to the attorney- general,— then grantable of common right and ex debito Justitice. But a writ to reverse an attainder in a capital case is only allowed ex gratia; and not with- out express warrant under the king's sigh-manual, or at least by consent of the attorney -general.^ See Appeal, 3; Certiorari; Exceptions, 4, Bill of; Prosecute, With effect; Review, 3, Bill of; Super- sedeas. ESCAPE.7 1, n. (1) Flight from custody, of a person under lawful arrest. * Cohens v. Virginia, ante, 2 Slaughter-House Cases, 10 Wall. 290 (1869), cases; Kountz V. Omaha Hotfel Co., 107 U. S. 381-85 (1882); Murdock v. City of Memphis, 20 Wall. 621 (1876). 3 6 Wheat. 409-11, ante; 20 How. 437; 16 Wall. 363, 386; 100U. S. 690. < Pontius V. Nesbit, 40 Pa. 310 (1861). » Burkholder v. Stahl, 68 Pa. 376 (1868), Thompson, C. J. ; Bragg v. Danielson, 141 Mass. 195 (1886). • 4 Bl. Com. 391 ; 4 Burr. 2550. See also 3 Ball. 327; 7 Cranch, 111; 61 Ala. 484; 3 Col. 293; 6 Fla. 289; 13 Ga. 148; 20 id. 535; 1 Wash. T. 319. 'F. escaper, to slip out of one's cape: L. excappa,— Skeat. F. escamper^ to flee: Ger. champf^ combat, — Webster. ESCHEAT 418 ESQUIRE (2) Allowing any person lawfully in con- flnement to leave ihe place, i Actual escape. Complete corporal free- dom. Constructive escape. Any unau- thorized relaxation of custody. NegKgent escape. Effected without the keeper's knowledge or consent. Voluntary escape. Expressly consented to by the keeper. 2 Any liberty given for the briefest period, and not sanctioned by law, is tin escape. But the court must have had jurisdiction, the process have been regular, .and the place and time proper. At common law an escape is a misdemeanor in the prisoner; and, if the offense is a felony, a volmitary escape is a like felony, and a negligent escape is a misdemeanor, in the offi- cer. An escape resulting from an act of God or of the public enemy will be excused.^ Formerly, when imprisonment was the only mode to enforce satisfaction of a judgment for money, to permit an escape was to lose the amount of the debt. Hence, on an escape, the sheriff was held for the whole debt.* An officer of the United States who voluntarily suf- fers a prisoner in custody under the law of the United States to escape shall be fined not more than two thousand dollars or imprisoned not more than two years, or both.* 3, V. To be passed by unobserved ; to be overlooked. " To escape taxation " does not mean tb be taxed insufficiently, but to have avoided notice, to be passed unobserved, to have evaded taxation.* 3, n. Means of retreat. See Defekse, 1 ; Fire, Escape. ESCHEAT.'' In feudal law, the deter- mination of the tenure or dissolution of the bond between lord and tenant from extinc- tion of the blood of the latter by natural or civil means.* Thus, if the tenant died without heirs of his blood, or if his blood was corrupted by commission of treason or felony, whereby the inheritable quality was blotted out, the land " fell back " to the lord of the fee— the tenure being determined by breach of the condition.' See Attaindek. The word, originally French or Norman, signifying 1 2 Bish. Crim. L. §§ 917, 1026; 1 Kuss. Cr. 416; Colby V. Sampson, 6 Mass. 'Slg (1809), Parsons, 0. J. "3 Bl Com. 415, 290, 165. See also 32 Ark. 126; 8 Ired. L. 151; 25 N. H. 258; 46 N. J. L. 358; 89 Pa. 446; 3 Head, 137. = 4B1. Com. 139. 4 Dow V. Humbert, 91 V. S. 300 (1875), cases. »E. S. §5409. • Lehman v. Robinson, 59 Ala. 240 (1877). ' 0. Eng. eschete: F. eschet, that which falls to one: ■eshoir, to happen. See Cheat. 81 Bl. Com. 73. chance or accident, now denotes obstruction of the course of descent, and determination of tenure, by some unforeseen contingency ; in which case the land naturally results back, by a kind of reversion, to the original grantor.* See Descent. 3. In the United States, a reversion of property to the State in default of a person who can inherit it. Depends upon positive statute, which makes the state the heir of the property. Nothing about it but the name is feudal.^ Eseheator. An officer who takes charge of escheated estates for the government. ESCROW.' An instrument delivered to a third person to hold till some condition is performed by the proposed grantee. A scrowl or writing not to take effect as a "deed" till the condition is performed.* As defined by the common law, a written instru- ment delivered to a third person to take effect upon the happening of a contingency. Originally applied to a deed; then to written contracts generally ." Nothing passes unless the condition is performed. There can be no delivery, as an escrow, to the grantee himself. When justice requires, it may take effect by relation back to the first delivery.' See DELrvERT, 4. ESNECY. Eldership; the privilege of the eldest. The right in the oldest copai-cener first to choose a purpart. ESPLEES.' The products of the land: herbage, hay, grain ; rents, services, etc.* ESQUTRE.* 1. A title of dignity next below knight, and above gentleman. 3. A title acquired by virtue of office ; as, justices of the peace, the higher officers of the courts, and others who bear any office of trust under the crown. 3. A title given to a member of the legal 1 3 Bl. Com. 244. ! Wallace v. Harmstad, 44 Pa. 601 (1863). See Hughes V. State, 41 Tex. 17 (1874); 4 Kent, 424; 1 Washb. E. P. 24, 27; 3 id. 443; Williams, E. P. 131. 3 F. escrowe, scroll. • [3 Bl. Com. 307. « Alexander v. Wilkes, 11 Lea, 325 (1883), Cooper, J. • See County of Calhoun v. American Emigrant Co., 93 U S. 127 (1876), cases; Shoenberger v. Hackman, 37 Pa 94(1860); Baum's Appeal„113 id. 58,65(1886), cases; Daggett V. Daggett, 143 Mass. 520 (1887), cases; 28 Am. Law Keg. 697-99 (1680), cases; 19 Cent. Law J. 127-28 (1884) cases -Solic. Jour.; 4 Cranch, 219; 14 How. 73; 59 Cal. 309, 630; 14 Conn. 270; 34 id. 93; 14 Ga. 145; 34 Ul 29; 77 id- 480; 29 Minn. 249; 30 id. 315; 2 Johns. 263; 26 N. Y. 492; 14 Ohio St. 309; Smith, Contr. 7. ' Es-pleez'. L. espies: L. exple^-e, to fill up. 98 Cranch, 249; 9 Barb. 293; 11 S. & E. •375. • F. escuym-, escuier, a shield-bearer: ecu, escu: L. scutum, a shield. ESSE 414 ESTATE profession, by virtue of length of enjoy- ment, i 4. In the United States, a title of courtesy. Abbreviated Esq., 'Squire or Squire. ESSE. See In Esse. ESSENCE. See Time. ESSOIGN.^ In old law, an excuse for non-appearance. " Essoign-day " was for hearing such excuses, — the first day of each tenn.s ESTABLISH.* To settle certainly, fix permanently, what was before Uncertain, doubtful, or disputed; as, to establish a boundary line.^ To set or fix firmly, settle or found perma- nently, erect something.* Authority to establish a thing contains authority to do acts which shall produce or bring into existence something; as, authority to establish a market." In a grant of power " to establish " a market, a dispensary, etc., means to permanently create or found.' To establish a company for any business means to make complete and permanent provision for carrying on that business. 8 A county seat i$ permanently established at a place when placed there with the intention that it shall re- main.* See County. The right to establish a market includes the right to shift it from place to place, as convenience de- mands; but gives no right to build one on the public highway. '" Compare Peemanbkt. Power to establish includes the power to discon- tinue post-offices, unless the exercise is restrained by In the Constitution the word is used in somewhat different senses: "to establish justice" seems to mean to settle firmly, fix unalterably, dispense or ad- minister justice; "to establish a uniform rule of nat- uralisation, and uniform laws on the subject of bank- ruptcy," is equivalent to to make or to form, and not to fix or settle imalterably or forever; "to establish post-offices and post-routes " means to create, found, and regulate; to "establish this Constitution" signi- fies to create, ratify, confirm it.** See further Re- ligion. 1 See 1 Bl. Com. 406. 2 F. essoine, excuse. » See 3 Bl. Com. 277. * F. establir: L. stabilis, steady, firm: stare, to stand. » Smith V. Forrest, 49 N. H. 237 (1870), Nesmith, J. » [Ketchum v. City of Buffalo, 21 Barb. 298, 296 (1854); 27 id. 260; 28 id. 65. ' Ketchum v. City of Buffalo,- 14 N. T. 361 (1856). 8 Davidson v. Lanier, 4 Wall. 455 (1866). » Newton v. Mahoning County, 100 U. S. 562 (1879); Mead v. Ballard, 7 Wall. 290 (1863); Wright v. Nagle, 101 U. S. 796 (1879); 13 HI. 463. J» Wartman v. Philadelphia, 33 Pa. 210 (1859). " Ware v. United States, 4 Wall. 633 (1866). " 1 Story, Const. § 454. ESTATE.i 1. Standing: condition, cate- gory, state, status. 2. Position; rank in life; degree: as, an addition of estate. 2 See Addition, 3; Nec- essaries. Estates of the realm. The three branches of the English legislature : the lords spiritual, the lords temporal, and the commons.^ 3. (1) (Subjective idea.). Estate in lands, tenements, and hereditaments : such interest as the tenant has therein.* In Latin status, the condition or circumstances in which the owner stands with regard to his property.* Does not import a fee or even «, freehold, but any legal interest in land.** The quantity of interest which a person has, from absolute ownership down to naked possession. 6 The condition, in respect to property, of an individ- ual: as, in speaking of the estate of an insolvent or of a deceased person. Here, indebtedness, as well as ownership, is part of the idea. Debts and assets to- gether constitute the estate; if an estate consisted of assets only, the expression insolvent estate would be a misnomer.' (3) (Objective idea.) The thihg itself of which one is owner ; any species of property, real or personal. Equivalent'' to the more technical.expression, " things real and things personal." More specifically, realty, land, "landed estate." ^ Sometimes excludes realty; sometimes is a word of mere local description, as, " my estate at" such a place. But when it can be construed to intend all one's realty it carries a fee, as, in devises.* Unless limited by some special epithet or some as- sociation, construed to mean all one's property; but "real" or "personal" puts the matter beyond cavil.'" 1 F. estat: L. statits; stare, to stand. ! State V. Bishop, 15 Me'. 121 (1838). s See 1 Bl. Com. 163, 157. * 2 Bl. Com. 103; 66 Ga. 711; 2 WaU. 500. 5 Inhabitants of Sunbury v. Inhabitants of Stow, 13 Mass. *464 (1816). 'Jackson v. Parker, 9 Cow. 81 (1828), Savsige, C. J.; Moody V. Farr, 33 Miss. 195 (1857). 'See Abbott's Law Diet., Estate, 4; Davis v. Elkins, 9 La. 142 (1835). e See Sellers v. Sellers, 35 Ala. 241 (1859). ' See Bates v. Sparrell, 10 Mass. 324 (1813); (Jodfrey V. Humphrey, 18 Pick. 539 (1837); Leland v. Adams, » Gray, 175 (1857), cases; Canedy v. Jones, 19 S. C. 301 (1882). "> Hooper v. Hooper, 9 Cush. 128 (1851); Archer v. Deneale, 1 Pet. 589 (1828); Cook v. Lanning, 40 N. J. E. 372 (1885). See alsoS Cranch, 97; 2 MacA. 70; 2 Cranch, C. C. 640; 16 Conn. 1 ; 46 111. 32; 55 Me. 287; 32 Miss. 107; 14 N. J. L. 63, 68; 14 N. J. E. 61; 40, id. 36-37, 373; 6 .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 interest,— measured by the duration and extent; and is 1, freehold: which is (a) for the lite of the tenant, or (6) of inheritance — absolute or fee-simple, and lim- ited or fee-tail; 2, not o£ freehold: which is (a) for a term of years, (6) at will, (c) at sufferance; 3, upon condition, (a) expressed, or implied, (b) in pledge — mortgage, (c) by statute merchant or staple, (d) by elegit. n. As to the time the interest is to be enjoyed. This is; 1, in immediate possession; and 2, in the future, or in expectancy — (a) a remainder, preceded by a par- ticular estate, (6) a reversion, preceded by a remainder, and executed or vested, or executory and contingent, and Cc) an executory devise. m. As to the number and connections of the ten- ants. An estate is held 1, in severalty, 2, in Joint-ten- ancy, 3, in coparcenary, 4, in common.^ IV. As to the tribunal in which that interest or right will be recognized and enforced. When that is a court of law, the estate is legal; when a court of equity, equitable. Otherwise the same rules apply to these estates: they are alike descendible, devisable, and alienable.'' See Condition; Copahcenart; Curtesy; Descent; Dower; Entirety; Execution, 3; Fast, 1; Fee, 1; Freehold; Life; Merger, 1; Perpetuity, 2; Privy, 2; Property; Remainder; Reversion; Separate, 2: Severalty; Staple; Sufferance; Tail; Tenant; Trust, 1; Vest; Use, 2; Years, Estate for. ESTIMATE. Implies a computation or calculation. The particular idea intended to be expressed by the word must be determined by the subject-matter under consideration, together with the context of any perti- nent instrument. Where a redeeming mortgagee stated in his afadavit that there was unpaid on the mortgage, " as near as he could estimate," a specified sum, it was held that this was equivalent to saying that he had computed the sum.* Where a tract of land, " estimated to contain 1,000 acres," was sold by written agreement, for a price in gross, it was held that acquiescence for many years would raise a presumption that the purchaser under- stood that the sale was in gross; also, that where land is exchanged for other land the liability of the vendor for a deficiency should not be enforced with the same strictness as in the case of a sale for money. The evi- dence did not disclose any fraudulent assurance calcu- lated to deceive the purchaser.* ESTOPPEL.^ 1. A stop; obstruction, bar; hindrance, preclusion. 2. That which concludes, and "shuts a man's mouth from speaking the truth." « 1 2 Bl. Com. Ch. Vn-XH; 1 Ld. Cas. R. P. ix; 2 id. ix. »Avery v. Durfrees, 9 Ohio, 147 (1839;; 5 Wall. 281; 16 id. 229; 23 id. 125; 96 U. S. 312. "Van Buskirk ti. Clark, 37 Hun, 203 (1886). * Lawson v. Floyd, 124 U. S. 108 (1888), Miller, J. °F. estoper, to impede, stop. « Armfleld v. Moore, 1 Busb. L. 161 (N. 0., 1852): Lord Coke; Stebbins v. Bruce, 60 Va. 397, (^). A man shall always be estopped by his own deed, and not permitted to aver or prove anything in con- tradiction to what he has once solemnly and delib- erately avowed. 1 , A special plea in bar — when a man has done some act or executed some deed which estops or precludes him from averring any- thing to the contrary.2 Estoppel by deed. By some matter contained in a valid sealed instrument. Estoppel by record. By adjudication of a competent court of record. Viewed as an admission or determination under cir- cumstances of such solemnity that the law will not allow the fact so admitted or established to be after- ward drawn in question between the same parties or their privies. To litigate the fact again would be to impeach the correctness of the former decision. The conclusion being indisputable, so are the premises." Collateral estoppel. The collateral deter- mination of a question by a court having general jurisdiction over the matter.* See Adjudication; Record. Equitable estoppel, or estoppel in pais. An estoppel by virtue of some act or action not under seal nor of record in a court. " Equitable " is the modem epithet,— derived from the courts of equity. The doctrine that "what I induce my neighbor to regard as true is the truth as be- tween us, if he has been mislead by my as- severation." 5 Proceeds upon the ground that he who has been silent as to his alleged right when he ought in good faith to have spoken, shall not be heard to speak when he ought to be silent.* Presupposes error upon one side and fault or fraud upon the other, and some defect of which it would be inequitable for the party against whom the doctrine is asserted to take advantage.' The vital principle is, that he who by his language or conduct leads another to do what he would not 1 [a Bl. Com. 295. 3 3 Bl. Com. 308. 3 Burden v. Shannon, 99 Mass. 203 (1868), cases; Saw- yer V. Woodbury, 7 Gray, 602 (1856). * Small V. -Haskins, 26 Vt. 223 (1854), Redfleld, C. J. " Kirk V Hamilton, 102 U. S. 70 (1880), Harlan, J. "Morgan v. Chicago & Alton R. Co., 96 U. S. 720 (1870, Swayne, J.; Bank of United States v. Lee, 13 Pet. 119 (1839). ,. V ^ , 'Morgan v. Chicago, &c. R. Co., mpra; Merchants Nat Bankr. State Nat. Bank, 10 Wall. 645 (1870), cases; Leather Manuf. Bank v. Morgan, 117 U. S. 108-9 (1886), cases; Continental Nat. Bank v. Bank of Common- wealth, 50 N. Y. 583 (1872). ESTOPPEL 416 ESTOPPEL otherwise have done, shall not subject such person to loss or injury by disappointing- the expectations, upon which he acted. . . A change of position would in- volve fraud and falsehood. This remedy is available only for protection, and cannot be used as a weapon of assault. It accomplishes that which ought to be done between man and man, and is not permitted to go beyond this limit, i The primary ground of the doctrine is, that it would be a fraud to assert what one's previous conduct had denied, when on the faith of that denial others have acted.' In application there must be some intended decep- tion in conduct or declarations, or such gross negli- gence as amounts to constructive fraud. But conduct foimded on ignorance of one's rights seldom works such result." 6ne should be estopped from asserting a right of property, upon which he has, by his conduct, misled another, who supposed himself to be the owner, to make expenditures. It is often applied where one owning an estate stands by and sees another erect im- provements on it in the belief that he has the title or an interest in it, and does not interfere to prevent the V work or inform the party of his own title. There is in such conduct a manifest intention to deceive, or such gross negligence as to amount to constructive fraud. The owner, therefore, in such a case, will not be per- mitted afterward to assert his title and recover the property, at least without making compensation for the improvements. But this salutary principle cannot be invoked by one who, at the time the improvements were made, was acquainted with the true character of his own title, or with the fact^that he had none.* It never takes place where one party did not intend to mislead, and the other party is not aetuaUy misled.^ An estoppel by conduct involves: a misrepresentar- tion or a concealment of a material fact, made with knowledge of the facts, to one who is ignorant of the truth, made with intention that he should act upon it, 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, or the liability be incurred, in consequence thereof.' 1 Dickerson v. Colgrove, 100 U. S. 580 (1879), Swayne, J. ; Baker v. Humphrey, 101 id. 499 (18T9), cases. a Hill V, Epley, 31 Pa. 334 (1858), Strong, J. ; Gregg v. Von Phul, 1 Wall. 281 (1863), cases; Dair v. United States, 16 id. 4 (1873). 3 Henshaw v. Bissell, 18 Wall. 271 (1873), cases, Field, J.; Fowler v. Parsons, 143 Mass. 406 (1887). 4 Steel V. Smelting Co., 106 U, r^'MQ (1883), Field, J. See Wendell v. Van Eensselaer, 1 Johns. Ch. *354 (1815), Kent, Ch. 5 Brown v. Bowen, 30 N. T. 541 (1864); Jewett v. Miller, iO id. 406 (1852); Catlin v. Grote, 4E.iK Sra. 304 (1855). ■ 6 Stevens v. Dennett, 51 N. H. 333 (1873), Foster, J.^ Denver Fire Ins. Co. i>. McClelland, 9 Col. 24(1885); Griffith V. Wright, 6 id. 249 (1883); 41 N. H. 385; 43 id, 285; Hid. 31; 30N.Y.541. 'Jones V. McPhillips, 82 Ala. 116 (1886), cases, Stone, Chief Justice. Where a party gives a reason for his conduct and decision touching a thing involved in controversy, he Is estopped, after litigation has begun, from changing the ground and putting his conduct upon another and different consideration. ^ The only case in which a representation as to the future can be held to operate as an estoppel is when it relates to an intended abandonment of an existing right, and is made to influence others, and by which they have been induced to act. An estoppel cannot arise from a promise as to future action with respect to a right to be acquired upon an agreement not yet made. 2 Binds parties and privies,^ but not, one not sui juris, as, an infant,* nor a married woman.* Tlie principle is a means of repose ; it promotes fair dealing. It cannot be made an instrument of wrong or oppression, and it often secures justice where nothing else could.* It is meant to prevent fraud; is invoked to hold one to facts as he alleged them, al- though false, and not to prove them different from the allegation.' The meaning is not that equitable estoppels are cognizable only in courts of equity, for they are com- monly enforced in actions at law. But it does not fol- low, because equitable estoppels may originate legal as distinguished from equitable rights, that it may not be necessary in particular cases to resort to a court of equity to make them available. All that can properly be said is, that to justify a resort to a court of equity, it is necessary to show some ground of equity other than the estoppel itself, whereby the party entitled to the benefit of it is prevented from making it available in a court of law. In other words, the case shown must be one where the forms of law are used to defeat that which, in equity, constitutes the right.s Is not applicable to the government in a criminal prosecution.^ See Disparage, 3; Fraud; Grant, 2; Laches; Lease; Ratification,!; Sale, Conditional; Standby. 1 Ohio & Mississippi R. Co. v. McCarthy, 96 XT. G. 267 (1877), cases, Swayne, J. 2 Union Mut. Life Ins. Co. v. Mowry, 96 U. S. 547-48 (1877), cases. Field, J. 8 Deery v. Cray, 5 Wall. 805 (1866); Ketchum v. Dun- can, 96 U. S. 666 (isrr). * Sims V. Everhardt, 102 U. S. 313 (1880). ^Jackson v. Yanderheyden, 17 Johns. 167 (1819); Keen v. Coleman, 39 Pa. 399 (1861); Bigelow, Estop. 376; 37 Am. Law Reg. 50-^2 (1888), cases. 6 Daniels v. Tearney, 102 U. S. 420 (1880). 'Pendleton v. Richey, 33 Pa. 63 (1858); Keating v. Orne, 77 id. 93 (1874). B Drexel v. Bemey, 133 U. S. 253 (1887), Matthews, J. See also, generally, 17 BMtch. 14; 18 id. 33; BBiss. 373; 11 id. 209; 2 Flip, 699; 13 F. R. 208; 16 id. 479; 71 Ala. 247; 3 Col. 535; 50 Conn. 86; 2 Dak. 185; 1 Idaho, 469; 105 111. 333; 13 Bradw. 99; 72 Ind. 480; 76 id. 390; 30- ^an. 640; 39 Minn. 473; 74 Mo. 67; 42 N. Y. 447; 75 id.^-, lOOPa. 263, 558; 13R.L265; 76 Va. 314; 10"Wis. 453; 1 Sna. L. C. 651, note; 2 Pomeroy, Eq. §§ 801-21; Herman, tZ^gtoppel; 3 Whart. Ev., Index. » Justice D. C&i{imonwealth, 81 Ya. 317 (1885), cases. ■> Wik f ESTOVERS 417 ET ESTOVEES.i Maintenance; support; necessaries. Compare Bote. Common of estovers; estovers. The liability of taking necessary wood from an- other's land for fuel, fences or other agricult- ural purpose.^ See Common, 3, Right of. ESTEAY.' An animal that has escaped from its owner, and wanders or strays about ; at common law, a wandering animal whose owner is unknown.* A wandering beast whose owner is un- known to the person who takes it up.' Estrays are such valuable animals as are found wandering in any manor or lordship, and no man knoweth the owner ol them. . Any beasts may be estrays that are by nature tame or reclaimable, and in which there is a valuable property, as, sheep, oxen, swine, and horses, which we in general call " cattle." . For animals upon which the law sets no value, as a dog or a cat, and animals /erce natures, as, a bear or a wolf, cannot be considered estrays. . The finder is bound, so long as he keeps the animal, to feed and care for it; but he may not use it at labor.* By early English law, estrays were the property of the king, or of his grantee — the lord of the manor where found. Modem statutes provide that they shall be impounded, for return to the owner, on payment of expenses.' See Use, 2. ESTREAT.* An extract or copy of an original writing or record, — especially of a fine or amercement, certified to and to be levied by an officer. A recognizance is " estreated " when forfeited by failure of the accused to comply with the condition, as by failure to appear: it is then " extracted," that is, taken from among the other records and sent to the exchequer, the party and his sureties having become, by breach of the condition, the king's absolute debt- ors." ESTREPEMENT.i" Permanent injury, destruction ; waste. 1 F. estoffer, to furnish, maintain. 'See 1 Bl. Com. 441; 2 id. 35; Van Rensselaer ti. EadclifE, 10 Wend. 639 (1833); Livingston v. Keteham, 1 Barb. 592 (1849). 'F. estraier, to wander: rove about the streets or ways: estree: L. strata, a street, way,— Skeat. I... L. extravagare: L. extra, on the outside, without; vagare, vagari, to wander, rove. « Shepherd v. Hawley. 4 Oreg. 208 (1871), Prim, C. J.: Burrill's Law Diet. ^^ 5 Roberts v. Barnes, 27 Wis. 425 (18Ji), Dixon, C. J. » 1 Bl. Com. 297. ' Seel Bl. Com. 297-98; 2 id. 14jl Kent, 359; 18 Hck. 426; 133 Mass. 39; 27 Conn. 473; #Iowa, 437; 60 Md. 88; 39 Mich. 451; 69 Mo. 305; 83 N. of 175; 14 Tex. 430. » F. estrait: L. ex-trahereit4 draw out, extract. 94 Bl. Com. 253. ioEs-trep6. F. estreper to destroy, strip; L. ex-tir pare, to root out. (37) "Writ of estrepement. This lay at com- mon law, after judgment in a " real " action, and before possession was delivered by the sheriflf, to stop any waste which the van- quished party might be tempted to commit. Now, by an equitable construction of the statute of Gloucester, 6 Edw. I (1380), c. 13, and in advancement of the remedy, a writ of estrepement, to prevent waste, may be had in every stage, as well of such ac- tions wherein damages are recovered, as of those wherein only possession is had; for, peradventure, the tenant may not be able to satisfy the demandant his full damages. It is, then, a writ of preventive justice. * The same object being attainable by injunction, the writ became obsolete in England, and was impliedly abolished by Stat. 3 and 4 Wm. IV (1834), o. 37, § 36. In Pennsylvania, after an action in ejectment has been begun, the plaintiff may have the writ to pre- vent destruction of the premises : he having first given a bond, with sureties, conditioned to indemnify the defendant against damage. The court hears the par- ties in a summary manner, and makes such order as seems just; and it may order an inspection of the premises.* ET. L. And. The original of &, which in old books is used for et.' Et alius. And another. Et alii. And others (as plaintiffs). M alios. And others (as defendants). Abbreviated et al., and, sometimes, for the plural, et als.,* which, strictly, should stand for et alios. Et al., in every-day use in writs, pleadings, styles of cases, and entries in minutes and dockets, means "and another," or " and others," as the case may be.^ Et csetera. And other things ; and oth- ers ; and the like ; and so forth ; and in othet relations or capacities. Also, sometimes, and other persons. Abbreviated etc., &o. Used in pleadings to avoid repetitions, relates to things unnecessary to be stated.' A recognizance '* for defendant's appearance, &c.," at a time and place, was held to mean for appearance and non-departure.' Added to the reservation of a way for a particular use, as "for the purpose of carting, &c.," is, from vagueness, without meaning or effect.' In a warrant for land, "&c.," in the expression "Ingersoll, &c.," without explanation, was held to have no meaning, and disregarded.' i 1857-58, cases. 1 3 Bl. Cora. 225-2f »2Brlghtly, Tr. &fl. s See 2 Ves. Sr. ••153. * 76 Va. 36; 77 id. xi; 6 Gratt. » Eenkert v. Elliott, 11 Lea, 262 (18S3); Lyman v. MUton, 44 Cal. 633 (1872); 3 La. An. 313; 10 id. 164; 12 id. 283; 14 Pa. 161. » Dano u Missouri, &c. E. Co., 37 Ark. 668 (1872), McClure, 0. J. ' Commonwealth v. Eoss, 6 S. & E. '•438 (1821). ' Meyers v. Dunn, 49 Conn. 76 (1881). » Smith V. Walker, 98 Pa. 140 (1881). ETYMOLOGY 418 EVICTION May import other purposes of a like character to those already named.' Et infra. See Et supra. Et non. And not. See Traverse, Absque hoc. Etsequittir. And what follows. Plural, et sequuntur. Abbreviated et seq. Refers to pages or paragraphs following a particu- lar page or paragraph cited. Et supra. And (that) above : the author- ity or quotation foregoing. Abbreviated et sup. Opposed, et infra: and (that or those) below, or following. Et uxor, or uxores. And wife, or wives. Abbreviated et uao. Denotes that a wife or wives are parties to a deed. ETYMOLOGY. See Dictionary. Legislative language is to be received, not necessa- rily according to its etymological meaning, but ac- cording to its probable acceptance, and especially in the sense in which the legislature is accustomed to use the same words. Illustrated in the expression to " connect " railroad tracks of different gauges." The courts construe words according to the common parlance of the country. Hence, a corporation en- gaged in removing petroleum from place to place is a " transportation " company.' See STiTUTE. EUNDO. See Arrest, 3. EVANGELICAL. See Charity, 3; In- digent. EVASION". A subtle endeavoring to set aside the truth or to escape the punishment of the law.* Evasive. Tending to evade; avoiding: as, an evasive — affidavit, answer, plea, ar- gument. Parties are sometimes said to evade, or to seek to evade, the jurisdiction of a particular court, the oper- ation of an obnoxious law, the payment of a tax, serv- ice of process. EVENT. 1. That which comes to pass ; result ; end ; final determination. " The relator is to pay or receive costs, according to the event of the suit." ^ 3. Occurrence: as, an uncertain event. See After ; Condition ; Remainder ; Wager, 2; When. iSohouler, Petitioner, 134 Mass. 437 (1883); Dicker- son V. StoU, 84 N. J. L. 553 (1854); Gray v. Central R. Co. of New Jersey, 11 Hun, 75 (1877). See 105- Mass. 31; 9 Kan. 153; 1 Cow. 114; 4 Daly, 08; 4 Mete., Ky., 211; 10 Mod. R. 153; 6 E. L. & E. 238. > Philadelphia, &c. B. Co. v. Catawiasa B. Co., 63 Pa. 59 (1866). ' Columbia Conduit Co. v. Commonwealth, 90 Pa. 309 (1879); L. R., 10 Ch. Ap. 156. ~ 'Jacob's Law Diet.; 1 Hawk. PI. Cr. 81. »3 Bl. Com. 364. 3. Accident; casualty: as,, a fortuitous event. See Accident, Inevitable. EVERY. Originally, " everich " — ever each ; each one of all.^ Includes all the separate individuals which consti- tute the whole, regarded one by one; as, in the ex- pression, " every person not having a Ucense shall be liable to a fine."* In a statute " every railroad " may mean all rail- roads.' See Ail. Compare A, 4; Ant; Each. EVICTION.* It is difficult to define this word with technical accuracy. Latterly, it has denoted what formerly it was not in- tended to express. In the language of plead- ing a party evicted was said to be expelled, amoved, put out. The word, which is from evincere, to dispossess by a judicial course, formerly denoted expulsion by the assertion of a paramount title, and by process of law. It is now popularly applied to every class of expulsion or amotion. ^ A wrongful act by a landlord, which re- sults in the expulsion or amotion of his ten- ant from the land.* An act of a permanent character done by the landlord to deprive, and which has the effect of depriving, the tenant of the use of the demised thing or a part of it.' To constitute an eviction which will operate as a Suspension of the rent, it is not necessary that there should be an actual physical expiilsion of the tenant from any part of the premises.' Any act of a permanent character, done by the landlord, or by his procurement, with the intention and efEect of depriving the tenant of the enjoyment of the premises demised, or a part thereof, to which he yields and aban- dons possession.6 A definition has sometimes been given by which, to constitute an eviction, there must be an amotion of the tenant from the demised premises by, or in conse- quence of, some act of the landlord in derogation of the rights of the tenant, and with intent to determine the tenancy, or to deprive the tenantof the enjoyment ''*iEte£wn V. Jarvis, 3 De Gex, F. & J. *173 (1860), Campbeir, Jd. Ch. a State V. Penny, 19 S. C. 321 (1882), Simpson, C. J. sCommonweal1tfii,i;. Eiohmond, &c. R. Co., 81 Va.S67 (1S36). ■ -A • L. evictus: ew^cere, to overcome, vanquish. '» Upton V. Towaend)^84 E. C. L. *64, 80 (1855), Jervis; Chief Justice. \ , ■ « [Ibid. •70, Crowder, Jj. , ■'Ibid. *73, Willee, J. ' Eoyce v. Guggenheim , 106 Mass. 302 (1870), Gray, J. ; MoAlester v. Landers, 70 Gal. 82 (1886), cases. EVIDENCE 419 EVIDENCE of the premises, or some part thereof. The amotion may be by physical expulsion by the landlord, or by abandonment by the tenant upon some act of the land- lord which amounts to an eviction at the election of the tenant. The intent with which the act is done may he ah actual intent accompanying and characterizing the act, or it may be inferred from the act itself. . . Generally the question as to what acts of the. land- lord, in consequence of which the tenant abandons the premises, amount to an eviction, is a question of law, and includes the question whether the acts constitute proof of the intent. ^ Sometimes spoken of as " actual " or " construct- ive," and as " partial " or " total." The idea that the ouster must be by process of law has long since been given up. The rule now is that covenants for quiet enjoyment or of warranty are broken whenever there has been an involimtary loss of possession by reason of the hostile assertion of an ir- resistible title. Moreover, the eviction may be " con- structive " — caused by the inability of the purchaser to obtain possession by reason of the paramount title.* Eviction from all or part or the premises suspends the entire rent for the time being. The tenancy is not thereby ended, but the rent and all remedy for its collection is suspended. To have the effect of sus- pending the rent the eviction must be effected before the rent becomes due, for rent already overdue is not forfeited. The rule is the same although the rent is payable in advance and the eviction occurs before the • expiration of the period in which the rent claimed accrues. 8 A lawful act upon an adjoining estate, done to im- prove that estate, is not an eviction.* EVIDENCE.^ That which demonstrates, makes clear, or ascertains the truth of the fact or point in issue.* Originally, the state of being evident, that is, plain, apparent or notorious ; but, by in- flection, is applied to that which tends to render evident or to generate proof. Evi- dence is, then, any matter of fact the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or dis- affirmative, of the existence of some other matter of fact." Includes all the means by which any al- leged matter of fact, the truth of which is 1 Skally V. Shute, 133 Mass. 8T0-77 (1888), cases, W. 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- der, J. See also 4 N. Y. 870; 3 Kent, 464. * Royce v. Guggenheina, ante. See also 55 Ala. 71 ; 6Conn.497; 69111.213; 70 id. 541; 5Ind.3g3; 18 id. 428; 33 Iowa, 76; 15 La. An. 514; 85 Mmn. 528; 31 id. 370; 43 Pa. 410; 91 id. 322; 82 Gratt. 130. 5L. evidens, visible: evidere, to see clearly. 813 Bl. Com. 367. ' 1 Best, Evidence, § 11. ' submitted to investigation, is established or disproved.! In the technical sense, almost synonymous with instrument of proof. In the popular sense, conclusive testimony ; that which pro- duces full conviction.2 Evidence includes " testimony," which is a mode of proof; yet the two terms are often interchanged. = " Proof " is applied, by accurate logicians, to the effect of evidence, not to the medium by which truth is established.* "Evidence" includes the reproduction, before the determining tribunal, of the admissions of parties, and of facts relevant to the issue. "Proof," in addition, includes presumptions either of law or of fact, and citations of law. In this sense proof comprehends all the grounds on which rests assent to the truth of a specific proposition. Evidence, in this view, is adduced only by the parties, through witnesses, documents, or inspection; proof maybe adduced by counsel in argu- ment, or by the judge in summing up a case. Evi- dence is but a part of the proof: it is part of the material on which proof acts.' See Pboof; Testi- mony. What is required in the trial of an issue is judicial, as distinguished from moral, truth. . . No evidence which is not admitted on the trial is to be permitted by the determining tribunal to influence its conclu- sions. . Absolute truth can be reached by us, from the limitation of our faculties, not objectively, as it really exists, but subjectively, as it may be made to appear to us. . . That formal proof may express real proof is the object of jurisprudence.' Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself — such as the common experience and observation of mankind can approve as probable under the circumstances.'' Evidential; evidentiary. Furnishing, or relating to evidence : as, evidentiary facts. Evidence, v. To render clear or evident ; to establish by written testimony. Whence evidenced. Evidences. Bills of exchange, promis- sory notes, government, municipal, and cor- poration bonds, and other instruments for the payment of money, are spoken of as "evidences of debt" or indebtedness. ^ Evidence is considered with reference to its nature and principles, its object, and the rules which govern 1 1 Greenleaf , Evidence, § 1 ; 15 Ct. CI. 606; 56 Ala. 93. ' McWilliams v. Eodgera, 66 Ala. 93(1876), Stone, J. s Coke, Litt. 283; 13 Ind. 339; 17 id. 278; 86 id. 123. * 1 Greenl. Ev. § 1. " 1 Wharton, Law of Evidence, § 3. « 1 Whart. Ev. §§ 4-5. ' Daggers v. Van Dyck, 87 N. J. E. 133 (1883), Van Fleet, V. C. sSeeR. S. §5136. EVIDENCE 430 EVIDENCE in the production of testimony; also, with reference to the means of proof, or the instruments by which lacts are established.^ See Notice, Judicial. Moral evidence. Matters of fact are proved by moral evidence alone ; by which is meant, not only that kind of evidence which is employed on subjects connected with moral conduct, but all evidence not obtained from , either intuition or demonstration. Demonstrative or mathematical evi- dence. Applies to mathematical truth, and excludes all possibility of error.2 See further Certainty, Moral ; Demonstration ; Doubt, Reasonable. Direct or positive evidence. Proof applied immediately to the fact to be proved, without any intervening process. CirC)im- stantial evidence. Proof applied imme- diately to collateral facts, supposed to have a connection, near or remote, with the fact in cbntroversy.2 Direct or positive evidence is evidence to the precise point in issue; as, in a case of homicide, that the ac- cused caused the death. Circumstantial evidence is proof of a series of other facts than the fact in issue, which by experience have been found so associated wit|i that fact, that, in the relation of cause and effect, they lead to a satisfactory and certain conclusion: as, when footprints are discovered after a recent snow, it is certain some animated being passed over the snow since it fell; and, from the form and number of the footprints, it can be determined with equal certainty whether they are those of a man, a bird, or a quadru- ped. Such evidence, therefore, is founded on experi- ence and observed facts and coincidences, establishing a connection between the known and proved facts and the facts sought to be proved.' ■ Circumstantial evidence consists in reasoning from facts which are linown or proved, to establish such as are conjectured to exist.* The advantage of circumstantial evidencp is, that, as it commonly comes from different sources, a chain of circumstances is less likely to be falsely prepared and falsehood is more likely to be detected. The dis- advantage is, that the jury have not only to weigh the evidence of facts, but to draw just conclusions from them; in doing which they maybe led to make hasty or false deductions: a source of error not existing in the consideration of positive evidence. Hence, each fact necessary to the inference must be distinctly and independently proved by competent evidence; and the > 1 Greenl. Ev. § .3. 2 [1 Greenl. Ev. § 13. See Chaffee v. United States, 18 Wall. 541 (1873); 68 Wis. 58. s Commonwealth v. Webster, 5 Cush. 310-12 (1860), Shaw, C. J. See also People v. Cronin, 34 Cal. 203-3 (1867); People v. Morrow, 60 id. 144 (1882). « People V. Kennedy, 33 N. Y. 146, 145 (1865), Benio, C. J. i 62 Wis. 63; 1 Bish. Cr. Proo. § 1069. inference must be fair and natural, not forced or arti- ficial.' Crimes are secret. Direct testimony is often want- ing. The laws of nature and the relation of things to each other are so linked and combined together as to furnish a medium of proof as strong as direct testi- mony. . A body of facts may be proved, of so conclusive a character as to warrant a firm belief of fact, as strong as that on which discreet men are ac- customed to act in relation to their most important concerns.* In the abstract, circumstantial evidence is nearly, if not quite, as strong as positive evidence; in the con- crete, it may be much stronger. 2 Circumstantial evidence is often more convincing than direct testimony. A number of concurrent facts, like the rays of the sun, all converging to the center, may throw not only a clear light but produce a burn- ing conviction. A cord of sufiScient strength to sus- pend a man may' be formed of threads. ' Prima facie evidence. Such evidence as in judgment of the law is sufificient to es- tablish the fact, and, if not rebutted, re- mains sufficient for that purpose. < Evidence which, standing alone and unex- plained, would maintain the proposition and warrant the conclusion to support which it is introduced." That which suffices for the proof of a particular fact until contradicted and overcome by other evidence.^ Primary or best evidence. The highest evidence of which a case in its nature is sus- ceptible. That kind of proof, which, under any possible circumstances, affords the great- est certainty of the fact in question. Sec- ondary evidence. Such evidence as, in the nature of the case, supposes that better evidence exists or has existed.' A written instrument is itself always regarded as the primary or best possible evidence of its existence and contents. All evidence falling short of this in its degree is secondary; as, a copy of the instrument, or a witness's recollection of the contents.' That the best evidence shall be produced means that no evidence shall be received which .is merely " substitutionary " in its nature, as long as the '* orig- inal " can be had. The rule excludes only that evi- dence which itself indicates the existence of more original sources of information. But where there is 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- son, C. J. 3 Thompson v. Bowie, 4 Wall. 473 (1866), Grier, J. " Kelly V. Jackson, 6 Pet. *633 (1833), Story, J.; Lili- enthal's Tobacco v. United States, 97 U. S. 268 (1877). = Emmons v. Westfleld Bank, ' 97 Mass. 243 (1867), Foster, J. •Cal. Code Civ. Proo., § 1833; 70 Cal. 570. ' 1 Greenl. Ev. §§ 84, 82; 3 Bl. Com. 367. EVIDENCE 431 EVIDENCE no substitution, only a selection of weaker instead of stronger proofs, or an omission to supply all the proofs capable of being produced, the rule, is not infringed. . Until shown that the production of primary evi- dence is out of the party's power, no other proof of the fact is admitted. . . The distinction is one (if law, and refers to the quality, not to the strength, of the proof. Evidence which carries on its face no indi- cation that better remains behind is not secondary, but primary. If there are several distinct sources of information it is not ordinarily necessary to show that they have all been exhausted, before secondary evi- dence can be resorted to.' The general test is immediateness, not authority. No primary testimony is rejected because of faint- uess.'* Secondary evidence is admissible when it is the best the party has it in his power to produce. The rule promotes the ends of justice and guards against fraud, surprise, and imposition. There may be degrees of secondary evidence. ^ , When the evidence is the best obtainable, it shordd be admitted, unless that would contravene some es- tablished rule of law. Thus, in an action against a common carrier for the loss of a pearl ring, the plaint- iff was allowed to point out a pearl corresponding in size, color, and general appearance to the one lost, and an expert to testify to the value of the selected pearl.* See further Copy; Lost, 2; Photograph; PRonucE, 1. Presumptive evidence. Evidence af- forded by circumstances from which, if un- explained, the jury may or may not infer or presume other circumstances or facts.* See Peesumption. Conelusire evidence. Such evidence as, being uncontradicted, controls the decis- ion ; also, such evidence as the law does nqt allow to be contradicted. Parol evidence. Evidence which need not be in writing ; evidence extrinsic to the language of an instrument, and brought for- ward to throw light upon its meaning. See further Parol. Hearsay evidence. The narrative of what one has heard from another, and not what he knows of his own personal knowl- edge. See further Hearsay. Relevant evidence. Such evidence as is applicable to the issue; evidence which '1 Greenl. Ev. §§ 83, 84, cases; Clifton v. United States, 4 How. 247 (1848). = 1 Whart. Ev. Ch. HI; ib. §§ 90, 677. ' Comett V. Williams, 20 Wall. 386, 246 (1873), cases, Swayne, J.; Eiggs v. Tayloe, 9 Wheat. 486 (1824); Steb- binsu Duncan, 108U. S,4S (1882J; 13F.E. 403; 33Mioh. 53; 38 Ohio St. 125. * Bemey v. Dinsmore, 141 Mass. 44 s 1 Greenl. Ev. § 13. will assist in arriving at the truth or falsity of the allegation ; evidence which supports a party's theory of his case. Irrelevant evi- dence. Evidence which does not tend to support the issue ; impertinent testimony. Eelevant evidence is also spoken of as admissible, and irrelevant as inadmissible, under the pleadings; that is, as proper, or improper, to be received.' All evidence must have relevancy to the question in issue, and tend to prove it; if not a link in the chain of proof, it is not receivable." Where there is evidence before the jury —whether it be weak or strong — which fends to prove the issue on the part of either side, it is error for the court to wrest it from the exercise of their judgment. It should be submitted under instructions.' But the court cannot tell the jury that any legal results follow from evidence which " tends " to prove the issue.* If the evidence relates to the transaction under consideration, or is connected with it, and is not too remote, it is competent. " It is relevant to put in evidence any circumstance that tends to make the pioposition at issue more or less improbable." ' The possibility of error goes to the weight of evi- dence, and is not a ground for rejecting it. The spirit of the law permits a resort to every reasonable source of information upon a disputed question of fact. Un- less excluded by some positive exception, everything relative to the issue is admissible; and this is ex- tended to every hypothesis pertinent to the issue.' Material evidence. Evidence important to a just determination of the issue ; capable of affecting the result. Immaterial evi- dence. Evidence not directly pertinent to the issue; not important enough to change the result. Cumulative evidence. Evidence of the same kind to the same point." Additional evidence to support the same point, and of the same character with evidence already pro- duced. From the Latin cumulare, to heap up.* Evidence which simply repeats, in substance and effect, or adds to, what has been testified to." Evidence which merely multiplies witnesses to a fact ' See 3 Col. 13; 43 Pa. 170; 11 S. & E. 134. ' Thompson v. Bowie, 4 Wall. 471 (1806). 3 Hickman v. Jones, 9 Wall. 301 (1869), Swayne, J. * City of Providence v. Babcock, 3 Wall. 244 (186S); 1 id. Sm; Sid. 368. 'Fee V. Taylor, 8J Ky. 264 (1885), Holt, J.; 1 Whart. Ev. § 31. » Bell V. Brewster, 44 Ohio St. 696, 697 (1887), Min- shall, J. ; 1 Whart. Ev, § 20, ' Parker v. Hardy, 24 Pick. 348 (1837), cases, Morton, Justice, 8 People V. Superior Courts 10 Wend. 894 (i833). Sav- age, C. J. " [Parshall v. Klinck, 43 Barb. 313 (1864), Ei D. Smith, Justice. EVIDENCE 423 EX before inTestigated, or only adds other circumstances of the same general character." See Trial, New. Competent evidence. That which the nature of the fact to be proved requires as the appropriate proof in the particular case : as, the production of a writing where its contents are tlie subject of inquiry ; that is, the best evidence.^ Incompetent evi- dence. Inappropriate, improper evidence. Satisfactory or siifS.cient evidence. That amount of proof which ordinarily satis- fies an unprejudiqial mind, beyond reason- able doubt.' The circumstances which will amount to this degree of proof can never be previously defined; the only test of which they are susceptible is, their sufficiency to satisfy the mind and conscience of a common man, and so convince him that he would venture to act upon that conviction in matters of the highest importance to his own interests. ^ Questions respecting the competency and admissi- bility of evidence are entirely distinct from those which respect its suffloiency or effect. The former are conclusively within the province of the court; the latter belong earolusively to the jury.* Minor terms descriptive of species of evi- dence: affirmative as opposed to negative evidence ; adminicular or ancillary evidence ; corroborative evidence; extrinsic as opposed to intrinsic evidence ; inculpatory as opposed to exculpatory evidence ; newly or after-dis- covered evidence ; rebutting evidence ; state's evidence by an accomplice ; substitutionary evidence, qq. v. The object of evidence being to prove the point in issue, fundamental rules regulating its production are: 1. T,he evidence must correspond with the allegations, and be confined to the point in issue. 3. It is sufficient if the substance of the issue be proved. 3. The burden of proving a proposition or issue rests upon the party holding the affirmative. 4. The best evidence of which the case is susceptible must be produced.^ The general rules of evidence ai'e the same in civil and criminal cases. ^ The mode of conducting trials, the order of intro- ducing evidence, and the time when it shall bo intro- duced, belong -largely to the practice of the court where the fact is tried.' ■Waller v. Graves, 20 Conn. 310-11 (1850), cases. Church, C. J. See also 2 Ark. 363; 42 Conn. 519; 27 Ga. 464; 28 Me. 383; 84 N. J. L. 156; 7 Barb. 278. . » [1 Greenl, Ev. §§ 2, 32; 107 U. S. 332. '1 Greenl. Ev. § 2; 30 Me. 481. ■> 1 Greenl. Ev. § 2; 2 Pet. 44, 133, 149. ' 1 Greenl. Ev. § 50; Travelers' Ins. Co. v. Mosley, 8 WaU. 409 (1869). « 4 Wheat. 472; 12 id. 469; 91 U. S. 438; 57 Wis. 157; 4 Bl. Com. 356. ' WUls V. Russell, 100 U. S. 633 (1879). The rules of practice in jury trials are necessarily somewhat flexible as to the order of proof, the num- ber of witnesses, and the time, manner, and extent of the cross-examination. In ordinary cases the plaint- iff begins and introduces all of his subs^tantive evi- dence before the defendant opens his defense; so, the defendant introduces all his substantive evidence be- fore the plaintiff rebuts. But the judge, in the exer- cise of a soiind discretion, may relax eicher rule." The orjier of admissibility is regulated by the court. The Federal courts, in civil cases at common law, ob- serve as rules of decision the rules of evidence of the State in which they sit, except when otherwise pro- vided by the Constitution or an act of Congress. " A party who objects or excepts to evidence must state his reasons therefor. ^ See further Admission, 2; Answer, 3; Boox; Char- acter; Charge, 2 (2, c); Compromise; Crime; Decla- ration, 1; Deed: Demurrer; Deposition; Document; Doubt; Estoppel; Examination, 9: Exception, 4; Fact; Handwriting; Inspection, 2; Insanity; Law; Letter, 3; Njonsuit; Notice, 1, Judicial; Offer, 2; Opinion, 1; Practice; Procedure; Rebut; Record; Res, Gestae; Scintilla; Stenographer; Weight, 2; Witness. EVIDENT. Clear to the mind ; obvious ; plain; apparent; manifest; notorious; pal- pable. Under the constitutional provision that bail must be taken in capital cases except where the " proof is evi- dent," bail will be denied if the evidence adduced on the application would sustain a verdict of murder in the first degree.* EVIL. See Malice; Malum; Wrong. EX. 1. The Latin preposition — out of, proceeding from, from, of, by, on, on account of, by virtue of, according to ; also, — beyond. See Extra. In composition intensifies or else has little effect - lipon the signification. Before a consocant becomes simply e; the x remains before the vowels and c, p, g, s, t; assimilates with a following /; is dropped be- fore other consonants. In French es: as, in estreat, estrepe, escrow. 3. Prefixed to the name of an official, de- notes that he formerly held the office desig- nated : as, ex-attorney-general, ex-judge, ex- minister, ex-marshal, ex-sheriff. Prefixed to a word denoting a civil status or condition, indicates that the person re- ferred to formerly occupied that relation: as, ex-convict, ex-partner, ex-wife. ■' First Unitarian Society v. Faulkner, 91 U. S. 417-18 (1875), Clifford, J. a R. S. § 721: Act 1789; Potter v. Third, Nat. Bank of Chicago, 102 U. S; 165 (1880), cases, Harlan, J. 'State 1). Taylor, 36 Kan. 334 (1887), cases. French law of evidence, 19 Am. Law Rev. 380 (1885). « Exp. Foster, 5 Tex. Ap. 646-47 (1879); Exp. Gilstrap, 14 id. 240, 264 (1883). EX 423 EXAMINATION 3. Prefixed to other words, denotes absence or privation of the notion conveyed by the simple word; without: as, ex-coupon, ex- divi^end, ex-interest. " Ex-dividend " is used of sales of stocks which re- serve to the seller the dividend presently payable. See Dividend, 3. A sale of bonds "ex July coupons" means a sale reserving the coupons, a sale in which the seller re- ceives, in addition to the purchase-price, the benefit of the coupons, which benefit he may realize either by detaching them or receiving from the buyer an equiv- alent consideration.! Ex abvindantia cautela. Out of excess- ive care. See Cautela. Ex aequo et bono. By what is fair and good : in justice and fair dealing. See As- sumpsit; Equity. Ex anteeedentibus, etc. See Inteepre- tatio. Ex arbitrio judlois. By discretion of the magistrate or judge. Ex colore. Under color of. See Color, 2. Ex comitate. Out of courtesy. See Comity. Ex contractu. Out of a contract. See Action, 3. Ex curia. Out of court. Ex debito justitiae. Out of an obliga- tion of justice: as a matter of legal right. SeeDEBiTUM; Grace. Ex delicto. Out of a fault or wrong. See Action, 2 ; Delictum. Ex demissione. By demise, q. v. Ab- breviated ex dem. Ex dolo malo. Out of fraud. See Do- lus. * Ex facie. From appearance. See Facies. Ex facto. From a thing done. See Fac- tum. Ex gratia. Out of favor, by indulgence. See Grace. Ex hypothesi. Upon the supposition or theory. Ex industria. From fixed purpose : in- tentionally. Ex lege. From, or by force of, the law. Ex malefioio. On account of miscon- duct : by reason of an illegal act. See Male- FICIUM. Ex mero motu. Out of pure free-wUl. See Motion, 1. Ex mora. From delay, or default. Ex necessitate. From necessity ; neces- sarily. Ex necessitate legis. From urgency of the law. Ex necessitate rei. From urgency of the thing or case. Ex nudo pacto. Out of an engagement without a consideration. See Pactum. Ex ofB.cio. By virtue of office. See Of- FICIUM. Ex parte. On behalf of. Abbreviated ex p., and exp. See Pars. Ex post facto. After the fact. See Fac- tum, Ex post facto. . Ex proprio. Of his or its own. Ex proprio motu. Of his own volition. See Motion, 1. Ex proprio vigore. Of its own inherent force. See Vigor. Ex relatione. On the information of. Abbreviated ex rel. See Relation, 2. Ex tempore. Extemporaneously. Ex testamento. From the will. See Testamentum. Ex tlirpi causa. Out of an unlawful en- gagement. See Actio, Ex turpi, etc. Ex uno disce omnes. From, .one (act) learn all. Compare Falsus, In tino, etc. Ex vi termini. By force of the word. Ex vi terminorum. From the very mean- ing of the language. See Terminus, 3. Ex visceribus. From the vitals : from the inherent nature ; of the essence. Ex visceribus verborum. From the natural meaning of the words. Ex visitatione Dei. By divine dispen- sation : from natural cause. Ex voluntate. From free will. EXACTIOM'. A wrong done by an offi- cer, or one in pretended authority, by taking a reward or fee for that which the law does not allow, — when he wrests a fee or reward where none is due.' " Extortion " is where he extorts more than is due.' See Extortion; Payment, Involuntary. EXAMINATION.^ A weighing, bal- ancing: search, investigation; hearing, in- quiry. Compare Inspection ; View. Examined. Compared with the original : as, an examined copy, q. v. ■ Porter V. Wormser, 94 N. Y. 445 (1884), Andrews, J. ' [Coke, Litt. 368; Jacob's Law Diet. 2 L. examinare, to weigh carefully: examen, tongue of a balance. EXAMINATION 424 EXAMINATION Examining. Conducting an examina- tion : as, the examining counsel. JBxaminer. A person charged with the duty of making or conducting an examina- tion : as, an examiner — in chancery or equity, of customs, of national banks, of patents, of titles, in- divorce, lunacy, parti- tion, qq. V. 1. Examination of a bankrupt or of a debtor. Interrogation as to the state of his property. 1 3. Ez:amination of an accused person. Investigation, by an authorized magistrate, of the grounds of an accusation of crime against a person, vpith a view to discharge him or to secure his appearance at trial, and to preserve the evidence. Had before a justice of the peace, an alderman, or other magistrate, a United States commissioner, and, possibly, before a judge. On a,prima facie case bail will be required, or a commitment made ; otherwise, the ac- cused is discharged. The examination may be waived. The accused has no right to the assistance of counsel; and, in many cases, he himself is not examined. 3. Examination of an invention. Of an alleged new invention, for which applica- tion for a patent has been made, to ascertain whether it is sufBciently new and useful, or whether it interferes with any other inven- tion. ^ See Patent, 3. 4. Examination of a long account. By a referee, of the proofs of the correctness of the items composing a long account.^ See Account, 1. 5. Examination of a married woman. Of a wife, separate and apart from her hus- band, to learn whether her acknowledgment of a mortgage, conveyance, or other deed is voluntary, without coercion of her husband. Also called her private or separate examina- tion.* Where a statute requires a "private " examination of the wife, to ascertain that she acts freely aijd not by compulsion of her husband, but prescribes no pre- cise form of words to be used in the certificate of ac- knowledgment, it is sufficient if the words of the acknowledgment have the same meaning, and are in substance the same with those in the statute.^ Such statutes provide for privacy from the husband only. A certificate "privately c amined apart from and out of the hearing " of the husband, can mean ' See E. S. §§ C086-87. = E. S. § 4803. ' See Magown v. Sinclair, 5 Daly, 66 (1874). * 1 Bl. Com. 444. ' Dundas v. Hitchcock, 12 How, 269 (1851). nothing less than that he was not present when she was examined, and satisfies a statute (of Maryland) requiring an examination " out of the presence." i See further Acknowledgment, 2. 6. Examination of a jiational bank. By an officer of the United States treasury, to discover whether the bank is complying with the law as to issues, reserve, etc.^ 7. Examination of a student-at-law. This is preliminary to his admission to prac- tice, as a test of qualification. 8. Examination of a title. A search to determine whether the title to land, proposed for conveyance or mortgage, is free from de- fects, and marketable, q. v. Whence examiners of titles, and abstract or brief of title. See Abstract, 2; Convbyancek; Title, 1. 9. Examination of a witness. The in- terrogation or questioning of a witness, to elicit his personal knowledge as to one or more facts. Direct examination, or examination in chief. The first examination, on behalf of the party who calls the witness. Opposed, 1, to examination in pais, or on the voir dire: a, preliminary questioning intended to test competency ; 3, to cross-examination: by the adverse party, confined to the subject-matter elicited upon the direct examination. Re-direct examination. Follows the cross- examination, and is confined to matters brought out under it. Re-cross examination. Follows the re- direct examination, and is restricted to the new or additional information or answers given thereunder. Re-examination. The re-direct or the re- cross examination in the same hearing; also, another and distinct examination in a subse- quent trial. Separate examination. Is of a witness ' apart from or out of the hearing of another or other witnesses. Cross-examination, which is the right of the party against whom a witness is called, is a means of sepa- rating hearsay from knowledge, error from ti'uth, opinion from fact, inference from recollection; of ascertaining the order of the events as narrated by the witness in his examination in chief, the time and place when and where they occui'red, and the attend- ing circumstances; and of testing the intelligence, memory, impartiality, truthfulness, and integrit.y of the witness.^ ' Deery v. Cray, 5 Wall. 807 (1866). » See E. S. § 5240. 8 The Ottawa, 3 Wall. 271 (1865), Clifford, J. EXAMPLE 435 EXCEPTION Cross-examination is " tlie crucial test " of truth. A witness may not be cross-examined as to facts and cir- cumstances not connected with matters stated in his du'ect examination; if a party wishes to examine him as to such facts and circumstances he must call him as a witness in the subsequent progress of the case; ^ that is, " make him his own witness." Greater latitude is allowed in the cross-examination of a party than in that of another witness. Still, this, in its course and extent, where du'ected to matters not inquired into in the principal examination, is largely subject to the control of the court in the exercise of a sound discretion,— as is the cross-examination of other witnesses." ' A party may ask questions to show bias or preju- dice, or to lay a foundation to admit evidence of a prior contradictory statement.^ An adverse party may now generally be called in chief " as for cross-examination " whenever his testi- mony may be needed to make out a prima facie cause of action or defense. The court may order the separate examination of a witness. Refusal to answer a proper question is a contempt of coiu-t. The com-t itself may examine. Prompting is not permitted. On the direct examina- tion leading questions are generally prohibited. The extent and' severity of an examination rests with the court. Examination is not allowed as to a conclusion of law, nor, in chief, as to motive, nor as to an opin- ion. Answers are privileged. The substance of a conversation or of an absent writing may be given. Vague impressions are inadmissible. Answers are ac- cording to recollection and belief. A witness may refresh his memory from memoranda.* On cross-examination leading questions may be put. All such questioning is to be on the subject of the examination in chief. Collateral facts cannot be introduced to test memory. A witness is not compelled to criminate himself; nor to answer a question imput- ing disgrace, unless the question is material. Slay in- quire as to religious belief, motive, veracity, bias, and the res gestce. And may draw inferences from refusal to answer.^ Re examination is permitted as to a matter requir- ing explanation, and as to new matters introduced by - the opposition. For this reason a witness may be re- called.* Re-cross examination is discretionary with the court.* See Call; Confront; Cbimisate; Evidence; Ex- pert; Impeach, 3; Pbbwtodice; Question, 1; Refresh; Voir; Witness. EXAMPLE. See Damages, Exemplary ; Precedent. I Philadelphia, &c. R. Co. v. Stimpson, 14 Pet. 461 (1840) Story, J.; Houghton v. Jones, 1 Wall. 704 (1863). = Rea V Missouri, 17 Wall. 5-12 (1873), cases, Brad- ley J- ; Schultz,;. Chicago, &c.R. Co.,67 Wis. 617(1886); Knapp V. Schneider, 34 id. 71 (1809); 3 Dak. 78. » Wills V. Russell, 100 U. S. 635 (1879), cases; Schuster V. Stout, SO Kan. 631 (1883). « 1 Whart. Ev. §§ 491-515, cases. s 1 Whart. Ev. §§ 527-47, cases. « 1 Whart. Ev. §S 572-75, cases. EXCAVATE. Se? Digging. EXCEEDING. See More oe Less. Under an indictment for embezzlement, alleging the gross receiptof a sum " exceeding " a sum named, proof may be made of the receipt of any amount, al- thoiigh it exceed that sum.i EXCELLENCY. "His Excellency" is the title given by the constitution of Massa- cliusetts to the governor of that State ; also, by custom, to the governors of the other States, and to the President of the United States.' EXCEPTANT. See Exception. EXCEPTIO. L. A keeping out; an exclusion; exception. Exceptio probat regulam. The excep- tion proves, that is, either confirms or tests, the rule: '• proves," by not being within the reason ; " tests " the form in which expressed, by observing whether exceptions must be allowed. EXCEPTION. Something withheld, not granted or parted with ; the exclusion of a thing, or the thing or matter itself as ex- cluded ; an objection made. Compai-e Eeg- ULAR. Exceptant. One who takes or files ob- jection to a thing done or proposed. 1. In a deed or contract, excludes from the operation of the words some part of the sub- ject-matter then in being. A clause in a deed whereby the donor or lessor, ex- cepts somewhat out of that which he had granted by his deed.* Always part of the thing granted, and the whole of the part excepted. A "reservation" is of a thing not in being, but newly created. The terms arp often used in the same sense.* See Reserve, 4. 3. In a statute, excludes from the purview a person or thing included in the words. Exempts absolutely from the operation of the enactment. A "proviso" defeats the' operation con- ditionally.* . > State V. Ring, 29 Minn. 78, 88 (1882). 2 " The style of the Executive, as silently carried forward from the committee of detail, was still ' his Excellency; ' this vanished in the committee of revis- ion,"— 2 Bancroft, Formation of the Const. 210, 187. * [Darling v. Crowell, 6 N. H. 423 (1833). "State V. Wilson, 42 Me. 21 (1856); Kister v. Reeser, 98 Pa. 5 (1881); Green Bay, &c. Canal Co. v. Hewitt, 66 Wis 40.5-86(1886); 24 Am. Law Reg. 716-32 (1886), cases; 2 McLean, 391; 41 Me. .311; 51 id. 498; 10 N. H. 310; 37 id 107; 4 Johns. 81; 3 Wend. 633; 1 Barb. 407; 19 id. 192; gs'ohio St. 568; 47 Pa. 197; 5 R. I. 419; 6 Abb. N. Cas. 331 ; 81 Va. 28. s Waffle V. Goble, 53 Barb. 523 (1868). EXCEPTION 436 EXCEPTION If an exception occurs in the statutory description of an offense it must be negatived, or the party wiJI be brought within the description; but if it comes by "way of proviso and does not alter the offense, merely states what persons are to take advantage of it, then the defense must be specially pleaded or else be given in evidence under the general issue, according to oir- cumstances.i An exception ought to be of that which otherwise would be included in the category from which it is excepted. ''Where an exception is incorporated in the body of the clause, he who pleads the clause ought also to plead the exception, but when there is a clause for the benefit of the pleader, and afterward follows a proviso which is against him, he shall plead the clause and leave it to the adversary to show the proviso." ^ See Act, 3, Enact; GKNERiL; Provided; Proviso. 3. In equity and admiralty practice, a for- mal allegation that a previous adverse pro- ceeding is insufficient in lav?. 4. In common-law practice, a formal no- tice, following the denial of a request or the overruling of an objection, made in the course of a trial, that the exceptant intends to claim the benefit of his request or objec- tion in future proceedings ; as, upon a writ of error.* It is also used to signify other objections in the course of a suit. Thus, there may be exception taken to bail or security, to the ruling of a judge or master, to an appraisement, award, decree, report, or return. Bill of exceptions. An "exception" being an objection to or a protest against a ruling or decision of the court upon a ques- tion of law, — taken or stated at the time of the ruling, unless otherwise prescribed, — a " bill of exceptions" is a written statement of the exceptions duly taken by a party to the .decisions or instructions of a judge in the trial of a cause, with so much of the facts, or other mattei-, as is necessary to explain the rulings.* Every bill must be settled, allowed, and signed by the judge, in the manner, upon the notice, and within the time pointed out by statute.* Its sole office is to make matters which are extrin- sic, or out of the record, part of the record.* If, in his directions or decisions, the judge who tries a cause mistakes the law by ignorance, inadvertence, > Simpson v. Eeady, 12 M. & W. *740 (1844), Alder- son, 6. "United States v. Cook, 17 Wall. 177, 173 (1873), Clif- ford, J.,— quoting Treby, C. J., in Jones v. Axon, 1 Ld. Ray. 120 (1698), and Steel v. Smith, 1 B. & Al. 99 (1817). 3 Abbott's Law Diet. < Saint Croix Lumber Co. v. Pennington, 2 Dak. 470 (1881), Shannon, C. J.; 1 N. M. 115. » Kitchen v. Burgwin, 21 111. 45(1858); 20 id. 22S; 3 Col. 800, 235, 851; 5 HUl, 5T9; 7 Baxt. 56; 77 Va. 250. or design, counsel, by statute of Westminster 2, 13 Edw. I (1286), c. 31, may require him publicly to " seal a bill of exceptions," stating the point in which he is supposed to err. Should the judge refuse to seal the bill, the party may have a writ commanding him to seal it, if the fact alleged be truly stated: and if he returns that the fact is untruly stated, when the case is otherwise, an action will lie against him for a false return. This bill of exceptions is in the nature of an appeal, examinable, after judgment entered in the court below, in the next immediate superior court, upon a writ of prror.i The principles of the statute of Westminster have been adopted in all of the States ; in the Federal courts, bills are still drawn as at common law under the stat- ute." The object is to secure a record which may be re- viewed. In theory,, the biU states what occurred while the trial was going on. < Exception must be taken at the moment a ruling is made, or before verdict.' A bill should present only the rulings of the court upon some matter of law, as, the admission or rejec- tion of evidence, and should contain only so much of the testimony, or such a statement of the proofs made or offered, as may be necessary to explain the bear- ings of the rulings upon the issues.* It is not usual to reduce the bill to fon& and to ob- tain the signature of the judge during the progress of the trial; the statute of Westminster did not require it. The exception need only be noted at the time it is made, and may be reduced to form within a reason- able time after the trial is over. * It is sufficient if the judge simply signs the hUl.^ It was early held that a bill must be signed within the term, unless by consent or special order. Other- wise the judge might be asked to sign a bill after his recollection of facts had faded, and parties might be burdened with unnecessary delay and expense. While the rule may have been established when short-hand reports were not usual, the Supireme Court considers the rule still obligatory.' At common law, a writ of error might be had for an error apparent on the record or for an error in fact, but not for an error in law not appearing on the rec- ord; hence, anything alleged ore tenus and overruled could not be assigned for error. To remedy this evil was the object of the statute of Westmihster. Under its provisions a bill of exceptions is founded on some objection in point of law to the opinion and direction of the court, either as to the competency of a witness, the admissibility or the legal effect of evidence, or > 3 Bl. Com. 373. ' Pomeroy v. Bank of Indiana, 1 Wall. 599 (1863). » Railway Co. v. Heck, 102 U. S. 180 (1880), Waite, C. J. ; Hanna v. Maas, 122 id. 26 (1887), cases. Gray, J. * Lincoln v. Claflin, 7 Wall. 136 (1868), Field, J.; Worthington v. Mason, 101 U. S. 149 (1879); Moulor v. American Life Ins. Co., Ill id. 337(1884); New York, &c. R. Co. V. Madison, 183 id. 526 (1887), cases. 'Hunnioutt v. Peyton, 102 U. S. 354 (1880), cases, Strong, J. > Stanton v. Embrey, 93 U. S. 555 (1876), cases. ' Marine City Stave Co. v. Herreshoff Manuf . Co., 32 F. E. 824 (1887), cases. EXCESSIVE 437 EXCHANGE other matter of law arising from facts not denied in which either party is overruled by the com't. The seal attests that the exception was taken at the trial. If the bill contains matter false or untruly stated, the judge ought to refuse to affix his seal. The substance of the bill should be reduced to writing while the thing is transacting. An exception not tendered at the trial is waived.' The statute of Westminster did not apply to crimi- nal cases. At common law, no bill of exceptions was permitted in such cases; the right depends upon en- actment:* See Charge, 2 (2, c); Ebeok, 2 (3), Writ ot;,SBAi-, 2. EXCESSIVE. Surpassing in amount, degree, or extent that which is usual, reason- able, proper or lawful in the particular case : as, excessive — bail, damage, distress, fine, taxation, qq. v. To constitute bail excessive it must be per se unrea- sonably great and clearly disproportionate to the offense involved, or the peculiar circumstances appear- ing must show it to be so in the particular case.^ EXCHA.N'GE.* A reciprocal contract for the interchange of property, each party , being both a vendor and a vendee.* (1) Of personalty : a commutation of goods for goods.6 The giving of one thing and the receiving of another thing. ^ " A contract by which the parties mutually give, or agree to give, one thing for another, neither thing, or both things, being money only."' A " sale " is the giving of one thing for that which is the representative of all values — money . • The dis- tinction between a "sale" and an "exchange" is rather one pf shadow than of substance. In both cases the title is absolutely transferred; and the same rules of law are applicable to the transaction, whether the consideration is money or a commodity." See Sale. (3) Of realty : a mutual grant of equal in- terests, the one in consideration of the other. " The estates exchanged must be equal in quantity; not in value, for that is immaterial, but in interest: as, a fee-simple for a fee-simple." Woodward, C. J. Pa. 419 (1882), Shars- > Wheeler v. Winn, 53 Pa. 126 ' Haines v. Commonwealth, ! wood, C. J. » Exp. Eyan, 44 Cal. 558 (1878), WaUace, C. J. ; 6 Q. B. D. 206. « P. eschanger: L. ex-cambiare, to barter, put one thing for another, change. a See Bixby v. Bent, 69 Cal. 638 (1882). •2BI. Com. 446. ' 1 Pars. Contr. 521. « Cal. Civil Code, § 1804; Gilbert v. Sleeper, 71 Cal. 392-93 (1886). • 1 Pars. Contr. 531; 2 Bl. Com. 446. 10 [Commonwealth v. Clark, 14 Gray, 373 (1860), Bige- low, J. "3 Bl. Com. 323. »22 Bl. Com. 323; 7 Barb. 638; 31 Wis. 138. Power to "sell and exchange " lands includes power to partition them.' An exchange is as much within the statute of frauds as is a sale." At common law, the contract carried a warranty of title, with a right to re-enter one's original possession, if evicted from the later acquisition. ^ A person seeking specific performance of a con- tract for an exchange of lands must prove: the con- tract; that the consideration has been paid or tend- ered; such part performance that a rescission would be a fraud on the plaintiff, and could not be compen- sated by a recovery of damages at law; and that de- livery of possession has been made in pursuance of the contract, and acquiesced in by the other party.' See Deed, 3. 2. An abridgment of bill of exchange: an open letter of request from one man to another, desiring him to pay a sum named therein to a third person on his account. In common speech, a " draft." * A written order or request from one party to another for the payment of money to a third person or his order, on account of the drawer. 5 Originally invented among merchants in different countries, for the more easy remittance of money. He who writes the letter is called the drawer; he to whom it is written, the drawee; he to whom it is payable, the payee. When both dravrer and drawee reside in the same country, the bill is termed an " in- land" bill; when in different countries, a " foreign " bill." A foreign bill is usually drawn in three counter- parts or duplicates, and numbered as the "first," "second," and "third" of exchange. The first in- strument that reaches the drawee is paid. Each men- tions the others, and all three together compose a " set " of exchange. The device obviates delays.' Exchange is "at par " when the price of a draft is the face of it; " at a premium " or " above par," when the price is more than the face; "at a discount" or " below par," when the price is less than the face. The price paid is the " rate " of exchange. "Arbitration of exchange:" converting the cur- rency of one country into that of another, through the medium of an intervening currency. " Course of ex- change: " the quotations for a given time. "Par of exchange:" the value of the money of one country in that of another,— either real or nominal. " Ee- exchange: " the expense incurred on a bill dishonored > Phelps V. Harris, 101 U. S. 380 (1879). 2 Purcell V. Miner, 4 Wall. 517 (1868). s 3 Bl. Com. 323. *2 Bl. Com. 466; 61 N. Y. 365; 33 Ga. 188. » [Cox V. Nat. Bank of New York, 100 U. S. 709 (1879), Clifford, J. « 3 Bl. Com. 466. ' See Bank of Pittsburgh v. Neal, 23 How. 108 (1859). EXCHANGE 428 EXCHANGE in a foreign country, where made payable, and re, turned to the drawer, i By the act of issuing a bill the drawer agrees that, if it is not paid according to its terms, he will pay it. His liability is fixed by due presentment, demand, and notice of dishonor. 2 A bill payable at sight, or at a date subsequent to acceptance, must be duly presented for payment, or a party conditionally liable will be discharged. ^ The acceptor is the principal debtor; the drawer and indorsers are sureties. Discounting a bill is neither acceptance nor payment. Acceptance is an engage- ment to pay the bill according to its tenor and effect when due. A bill is paid only when there is an inten- tion to discharge and satisfy it.* On the question of timely presentation for pay- ment, the law of the place where a foreign bill is pay- able governs. 5 Proof of failure of consideration is a good defense as between the immediate parties — drawer and ac- ceptor, and payee and drawee. But as between re- mote parties, an action will not be defeated unless there is an absence or failure of the two considera- tions; that which the defendant received for his lia- bility, and that which" the plaintiff gave for his title. These remote parties are the payee and acceptor, or the indorser and acceptor. The rule presupposes that the payee or indorsee became the holder of the bill before it was overdue and without knowledge of facts which impeach the title as between the immediate parties. * The essential characteristic of a draft or bill of ex- change is the order of one party upon another for the payment of money. . . The instmments in suit are in strictness bank-checks. They have all the par- ticulars in which such instruments differ or may differ from regular bills of exchange. They are drawn upon a bank having funds of the drawer for their payment, and they are payable upon demand, although the time of payment is not designated. A bill of exchange may be so drawn, but it usually states the time of payment, and days of grace are allowed upon it. There are no days of grace upon checks. The instru- ments here are also drawn in the briefest form possi- ble in orders for the payment of money, which is the usual characteristic of checks. A bill of exchange Is generally drawn with more formality, and payment ' at sight, or at a specified number of days after date, is requested, and that the amount be charged to the drawer's account. When intended for transmission to another State or country they are usually drawn in duplicate or triplicate, and designated as first, sec- ond, or thii'd of exchange. A regular bill of exchange, it is true, may be in a f oi-m similar to a bank-check, so that it may sometimes be difdcult, from their form, i See Adams v. Addington, 16 F. R. 91 (1883), cases. ' 2 Cummings v. Kent, 44 Ohio St. 95-98 a886), cases. 3 Cox V. Nat. Bank of New York, anie. *3wope V. Ross, 40 Pa. 188-(1861), Strong, J. 6 Pierce v. Indseth, 106 U. S. 549 (1882). fl Hoffman v. Bank of Milwaukee, 12 Wall. 190-91 (1870), cases, Clifford, J. See generally Goodman v. Simonds, 20 How. 364 (185T); as to unification of the law, 3 Law Quar. Rev. 297-313 (1SS6). to distinguish between the two classes of mstruments. But an instrument di'awn upon a bank and simply di- recting payment to a party named of a specified sum ■ of money, at the time on deposit with the drawee, without designating a future day for payment, is to be treated as a check. If the instrument designates a future day for payment, it is, according to the weight of authorities, to be deemed a bill of exchange, when, without such designation, it would be treated as a check. . . A check implies a contract on the part of the drawer tbat he has funds in the hands of the drawee for its payment on presentation. If it is dis- honored the drawer is entitled to notice; but, unlike the drawee of a bill of exchange, he is not discharged from liability for the want of such notice, unless he has sustained damage or is prejudiced in the assertion of his rights by the omission. * See fiUTther Accept, 2; Assignment, Equitable; Check; Collection; Current, Funds; Forgery; In- dorse; Drait; Due, 1; Honor, 1; Letter, Of credit; Negotiate, 2 ; Note, Promissory ; Noting ; Protest, 2. 3. A place where merchants and brokers meet for business, at specified hours. Con- tracted into 'Change. Called " stock " exchange, *' produce" ex- change, " petroleum " exchange, ** grain " exchange, "pork" exchange, etc., from the nature of the business in which contracts, for the purchase and sale of securities or com- modities, are made. The distinctive word may designate the association itself, as well as the place where its meetings are held. All the members of an exchange, considered to- gether, usually constitute the board of exchange. Membership in a board may be qualified by any con- ditions the creators could lawfully impose. Thus, provision in the constitution of a board, whose mem- bers are limited in number and elected by ballot, that a member, upon failing to perform his contracts or becoming insolvent, may assign his seat to be sold and the proceeds be first applied for the benefit of mem- bers of the exchange to whom he is indebted, is lawful.* Merchants may voluntarily associate together, and prescribe for themselves regulations to establish, de- fine, and control the usages or customs that shall pre- vail in their dealings with each other. These are useful institutions, and the courts enforce their rules when- ever parties cleal with them, in which case the regula- 1 Bull V. Bank of Kasson, 123 U. S. 105, 109-11 (1887), cases. Field, J. The instruments in suit read thus: "'S500. The First National Bank, Kasson, Minn., Oct. 15, 1881. Pay to the order of Mr. A. La Due five hundred dollars in current funds. E. E. Fairchild, Cashier. To Ninth National Bank, New York City. [Indorsed:] Pay to the order of M. Edison, Esq. A. La Due. M. Edison. a Hyde v. Woods, 94 U. g. 533 (1876), Miller. J. EXCHEQUER 420 EXECUTE tions become a part of the contract. Part of these regulations may be observed, and part discarded.' See AnBfTRATioN; Bakqain, Time; BitoEBn; Cor- ner; Wase'r, 2. EXCHEQIIEK.2 The treasury depart- ment of the English government. Estabjished by William I; reRulated by Edward I. Consisted of two divisions; one, for the receipt of rev- enue; the other, for the administration of justice in matters of revenue, and known as the court of ex- chequer, and presided over by the chancellor of the exchequer. This court originally had limited equity jmisdlction; then the chancellor, the Lord Chief Baron, sat apart in a hall called the exchequer cham- ber. Its present jurisdiction does not differ materially from other co-ordinate courts of common law.^ See Chancellor, 1, Of the Exchequer. EXCISE.* An inland imposition, paid sometimes upon the consumption of the commodity, or frequently upon the retail trade.* Whence excise duty, excise law. An inland imposition, sometimes upon the consumption of a commodity, and sometimes upon the retail trade ; sometimes upon the manufacturer, and sometimes upon the vendor." A term of very general signification, mean- ing tribute, custom, tax, tollage, assessment.' Though often synonymous with tax, may have a distinct signification. It is based on no rule of ap- pomtment or equality, as is a tax. It is a fixed, abso- lute and direct charge laid on merchandise, products or commodities, without regard to the amount of prop- erty belonging to those on whom it may tall, or to any supposed relation between money expended for a pub- lic objectanda special benefit occasioned to those by whom tub charge is to be paid.' Under the constitution of Massachusetts the legis- lature may impose reasonable excises upon " produce, goods, wares, merchandise and commodities " within I Dillard v. Paton, 10 F. R. 624 (1884), Hammond, J. Goddard v. Merchants' Exchange, 9 Mo. Ap. 290 (1880), cases; Thome v. Prentiss, 8-3 111. 99 (1878); 20 Cent. 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. 2F. eschequier, chess-board — from the cloth that originally covered the table or counter. 3 3 Bl. Com. 44. 56. < A misspelling of Old Dutch akaus, aksys: F. as- sise,a. tax,— Skeat; Webster. » 1 Bl. Cora. 318. « Pacific Ins. Co. v. Soule, 7 Wall. 445 (1868), Swayne, J.; Tax on Capital of Banks, 15 Op. Att.-Gen. 219 (1877); lOchigan Central R. Co. u. Collector, 100 V. S. 595 (1879). 'Portland Bank o. Apthorp, 12 Mass. 350 (181o), Parker, C. J. 8 Oliver v. Washington Mills, 11 Allen, 274 (1865), Bigelow, C. J. ; Commonwealth v. People's Savings Bank. 5 id. 431 a802). the State: also, upon any business or calling, franchise or privilege conferred by or exercised therein, ' See Commodity; Duty, 2; Impost; Tax, 2. EXCLUSIO. See Expressio. EXCLUSIVE. That which debars, de- prives, or excepts: as, an exclusive right, privilege, or jurisdiction, which is possessed, enjoyed or exercised independently of an- other or others.2 Opposed, inclusive. See Enumeration; Only; Possession, Adverse. EXCULPATOBY. See Culpa ; Fault. EXCUSE. A reason for doing or not doing a thing. Excusable. 1. Admitting of excuse ; ex- empting from liability or responsibility : as, an excusable default, an excusable misde- livery by a carrier. 2. Done under circumstances of accident or necessity, and without legal malice: as, an excusable homicide, q. v. Ignorance of a fact may excuse; ignorance of the law never excuses. Infants, lunatics, married women, and persons under duress or necessity are sometimes excused for acts done or sought to be enforced. See Ignorance; Knowledge, 1; Notice. EXEAT. See Exire, Ne exeat. EXECUTE.' To complete or perfect what the law directs to be done ; to complete as an effective instrument. 1. Referring to a conveyance, mortgage, lease, will, contract, note, or other document, may mean, as in popular speech, to sign, 01" to sign and deliver ; but in strict legal under- standing, when said of a deed or bond, al- ways means to sign, seal, and deliver.* Until a promise has been performed it is te'Tned "executory;" after performance, "executed."' Ob- viously, one of two mutual promises may have become executed while the other yet remains executory; as where a seller pays the price, and the buyer promises delivery in the future. So, one or more of several connected promises of one party may be executed while his other engagements remain executory. Wh&t is usually meant by speaking of a contract as execu- tory or executed is not that it is so as an entirety, but that the promise particularly under discussion is so. Thus, to speak of a sale for cash, of goods to be deliv- ered in the future, as an executory contract, would be natural it the seller's obligation to deliver were the 1 Connecticut Ins. Co. ■.;. Commonwealth, 133 Mass. 161 (1882). 2 See 3 Story, C. C. 131; 2 Ball. 211; 8 Blackt. 361; 29 Kan. 541; 38 id. 366; 60 Md. 80; 83 N. Y. 328. s F. exccuter: L. ex-sequi, to follow out, follow to the end, perform. 1 See Hepp v. Huefner, 61 Wis. 151 (1884); 32 Ark. 453; 9 Cal. 430; 17 Ohio, 645; 12 Ired. L. 321; 37 Mich. 459; 23 Minn. 551. EXECUTE 430 EXECUTE matter chiefly M question; but if the controversy re- lated to the buyer's payment the contract would be called executed. And " executed " is (although " ex- ecutory " is not) applied to contracts in a sense relat- ing to the completion of the written instruments in whicK they are embodied, and not to performance of their substance. In this sense " to execute " means to complete the paper as an effective instrument ; to sign it, and to seal and deliver it whenever these formali- ties are essential to its inception. * 3. Referring to a power or trust : to per- form or fulfill the requirements thereof; to give effect thereto according to the intent of the creator or of the law. 3. Eeferrins to a decree, judgment, writ or process : for the officer addressed to carry out the command therein contained. "Executed," indorsed on a writ, means that the officer complied with the mandate.^ 4. Referring to a criminal : to put him to death. Whence to execute the sentence, and executioner. See Death, Penalty, Executed. Completed, finished, per- formed, perfected ; vested. Executory. Yet to be completed, incomplete, not yet ef- fective, finished, perfected, or vested : as, an executed or executory — agreement, consid- eration, contract, devise, estate, remainder, sale, trust, use, writ, qq. v. Executive. Carrying out ; pertaining to the enforcement of the laws : as, the execu- tive department, executive business; also, the ofiicer who superintends the enforce- ment of the laws. See Department ; Docu- ment; Government; Officer; Pebsident. Execution. 1. Doing or performing a thing required. 2. Completion of the obligation of an in- strument by the final act of delivering it. See Execute, 1. 3. Putting the sentence of the law in force. 3 The act of carrying into effect the final judgment of the court; also, the writ which authorizes this.* A writ issuing out of a court, directed to an officer thereof, and running against the body or goods of a party.^ Dormant execution. A writ of execu- tion which has been delivered to the proper ' Addison, Contr. *2, Am. ed., A. & W. (1888), note. 2 Wilson V. Jackson, 10 Mo. 337 (1847); State v. Will- iamson, 57 id. 198 (1874). s 3 Bl. Com. 412; 9 Ohio, 160. , * [Lockridge v. Baldwin, 20 Tex. 306 (1857). » Brown v. United States, 6 Ct.Cl. 178 (1870). ofiicer, but is held ili abeyance or unexe- cuted; a writ as to which action has been deferred by suggestion of the creditor. A levy for any other purpose than to realize money is fraudulent as against a subsequent execution. Equitable execution. The appointment of a receiver to take charge of property of an equitable nature, i Execution-creditor. A creditor who has prosecuted his claim to execution; in dis- tinction from a creditor who has obtained a judgment upon which he has not issued, from a mortgage creditor, and from a general cred- itor, q. V. Writ of execution. A written command or precept to the sheriff or other ministerial officer, directing him to execute the judg- ment of the court.2 Process authorizing the seizure and ap- propriation of the property of a defendant for the satisfaction of the judgment against him. ' A judicial pfrocess, issuing upon some rec- ord enrolled in court ; as, at common law, to repeal a patent.* Execution is "the end and fruit of the law: "it gives the successful party the fruits of his judgment.^ At common law, the omfcer may be commanded to take — the body of the defendant, his goods, his goods and the profits of his lands, his goods and the posses- sicm of his lands, or, his body, goods, and lands.'. Property is held by the competent authority which first actually attaches it.^ This is known as the rule in Payne v. Drewe.^ See Jurisdiction, Exclusive. At common law, all writs of execution wefe to be sued out within a year and a day after final judgment; otherwise, the judgment ^as presumed to haVe been satisfied. By statute, the lien of such judgment may be fevived by a scire facias,^ q. v. All proceedings under a levy of execution have re- lation to the time of the seizure of the property.^" Writs of execution, named from the oper- ative words in them when all kinds of pro- cesses were in Latin, are : Fieri facias (abbreviated fl. fa.), that yoii ■ Davis V. Gray, 16 Wall. 317-22(1872), cases. 2 [Kelley v. Vincent, 8 Ohio St. 420 (1858). ' Lambert v. Powers, 86 Iowa, 20 (1872), Beck, C. J. ' [Stearns v. Barrett, 1 Mas. 164 (1816). See also Labette County Commissioners v. Moulton, 112 U. S. 223 (1884); 20 III. 155; 11 Wend. 635; 9 Ohio, 160. = United States v. Nourse, 9 Pet. *28 (1835). « 3 Bl. Com. 414. See 2 Tidd. Pr. 993. ' Taylor v. Oanyl, 20 How. 594 (1857), oases; Covell v. Heyman, 111 U. S. 176 (1884), cases. » 4 East, 547 (1804), Ellenborough, C. J. »3 Bl. Com. 421. 10 Freeman v. Dawson, 110 U. S. 270 (1883), cases. EXECUTE 431 EXECUTOR cause to be made out of the goods, or lands, or both, the amount of the claim. Applies to personalty, realty, chattels real, and choses in possession. May be oonomrent with an at- tachment in execution. A single fieri facias may ex- haust the personalty of the debtor, and an alias fieri facias be issued to sell his realty. But an alias fieri facias may denote a second or new levy upon either personalty or realty. A sale of realty upon a single fieri facias may also be by express authorization from the debtor.! Levari facias (abbreviated lev. fa.), that you cause be levied — out of the land speci- fied. Used to collect a charge upon land: as, a mortgage, mechanic's lien, municipal claim, taxes, and the like. May issue after a scire facias has been determined in favor of the creditor, as, after judgment on a scire facias upon a mortgage.* Venditioni exponas (abbreviated vend, ex.), that you expose for sale — realty embraced in a levy made under a preceding .^eri facias, and condemned under proceedings in ex- tent, q. V. Regarded as a completion of a previous execution, by which the property is appropriated, not as an orig- inal or independent proceeding.^ Attachment-eoceeution. Reaches a chose in action, money and other property in the hands of a stranger, to which the defendant has no present right of possession; also called an " execution-attachment." See At- tach, 2. Liberari facias, that you cause to be de- livered — to the creditor, such portion of the premises, not sold under a previous levari facias, as will satisfy the claim, according to the valuation of the inquest, to hold as his own free tenement. See Extent, 2. Elegit, he has chosen. Delivers chattels to the creditor at an appraised value, and, if they are not suflScient, then one-half of the defendant's freehold, till the rents and profits pay the debt. Then plaintiff " elected " this writ, rather than a fieri facias, or a levari facias, which last writs gave satisfaction only to the extent of chattels and present profits of lands. Authorized by statute of Westmin- ster 3, 0. 18. Prior thereto, possession of land could not be taken, the feudal principle being that service was not transferable to a stranger. The writ is still in use, enlarged or narrowed in operation.' 1 See 8 Bl. Com. 417. s Mitchell v. St. Maxent's Lessee, 4 Wall. 843 (1866). «3 Bl. Com. 418; 2 id. 161; 4 Kent, 431, 436; Hutchin- son V. Grubbs, 80 Va. 254 (1885); 3 Ala. 561; 10 Gratt. Mandamus- execMtion. Enforces payment of a judgment against a municipality. See further Mandare, Mandamus. Sequestration. Reaches the revenues of a corporation, a life-estate, or the property of an absconding debtor. See Sequestration, 2. Capias ad satisfaciendum, that you take for satisfying. Process under which the of- ficer arrests and detains the debtor till the judgment is satisfied. See Capere, Capias. Testatum execution, certifies that the debtor has property in another county. Is- sues into another county than that in which the record remains. See Testis, Testatum. Writs and processes of execution are: those which point out specifically the thing to be seized, and those which command the officer to malie or levy certain sums of money out of the property of a party named. In the first class the ofiftcer has no discretion, but must do precisely what he is commanded. Therefore, if the court had jm-isdiction to issue the writ it is a protec- tion to the offlcer. In the second class the officer must determine at his own risk whether the property he proposes to seize is legally liable to be taken. For a mistake he is responsible to the extent of the injury. As to this he exercises judgment and discretion — as to who is the owner of the property, the kind that may be taken, and the quantity. ' If a writ be sued out of a court of competent juris- diction, directing an officer to seize specifically de- scribed property, as in admiralty, replevin, or eject- ment cases, it is a protection to the officer, when he is sued in trespass for executing it. If, however, it in general terms authorizes him to seize property, with- out a specific description, he acts at his own risk as regards the ownership of the property." See JcRisDioTioN, 2, Concurrent; Levy, 2; Minis- terial, 1; Writ. EXECUTOR. He to whom another com- mits by will the execution of his last will and testament.3 Feminine form, executrix. Correlative, testator, testatrix. He so closely resembles an " administrator " that that term will not amount to a substantial misdescrip- tion in a deed or prosecution.'' Acting executor. Such executor, of two or more, as actually performs the duties of the trust. General executor. An executor whose power is unlimited as to time, place, or sub- ject-matter. Special executor. An exec- utor who serves for a limited time, in a particular place, or as to a part of the estate. ■ Buck V. Colbath, 3 Wall. 313-44 (1865), Miller, J. •Sharp V. Doyle, 103 U. S. 689 (1880), Miller, J. s 3 Bl. Com. 503; 1 Ga. 330; 55 Md. 194; 31 Wend. 436; 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 to serve before another who is named as sub- stitute—the substituted executor. Rightful executor. The executor named in the will; the lawful executor. Executor de son tort. An executor of his own wrong : he who, without authority, does such acts as only the rilghtful executor may do. At common law an executor de son tort is one who, .without authority from the deceased or the court of probate, does such acts as belong to the office of an executor or administrator. ^ Not unauthorized are, acts ot kindness in providing for the family of the deceased or in preserving the estate.2 An executorde son tort is liable to all the trouble of an executorship without the profits or advantages.^ Sole executor. The one person named to serve as executor. Co-executjor, joint- executor. One of two or more executors. A wife, with her husband's consent, or a minor over seventeen, or other person of gound mind, may be an executor. He takes title from the will; is a personal representative, identified in interest with the testator; holds the estate in trust for creditors and legatees. His power being founded upon the special confidence the deceased had in him, he is not ordinarily required to furnish security for the faithful performance of the duties of the trust.' He is to do the things set forth in the will: to bury the deceased, prove the will, give notice of letters is- sued, make an inventory, collect the moiiey and per- sonal effects,* pay the debts and legacies, and file an account or accounts. Contract rights pass to him, but not contract duties of a purely personal nature. He can buy no part of the estate ; nor let assets lie unproductive ; nor use the estate for his own benefit. He may be surcharged in his accounts. 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 him by the will hh cannot be held liable for a loss occa- sioned by an honest error of judgment.^ The act of one co-executor is the act of all: each is liable for the other's wrong, effected through negli- gence or connivance. All sue and are to be sued to- gether. Death vests all rights and duties in the sur- vivor. The rule is that each co-executor has complete ' Emery v. Berry, 28 N. H. 481 (1864), Eastman, J. 'See 29 Minn. 421-22; 17 Ark. 125; 5 Heisk. 194; 26 N. H. 49B; 1 Baxt. 9; 30 Conn. 3S9; 12 Ga. 588; S»id. 264; 26 Me. 361; 8 Miss. 437; 19 Mo. 196. s 2 Bl. Com. 507. • See generally Wall v. Bissell, 125 U. S. 387, 389 (1888), cases. 'Cooper V. Cooper, 77 Va. 203 (1883); 75 id. 747; 24 Gratt. 835; 28 id. 442; 32 id. 262. power to administer the estate. A payment therefore to one is payment to all. ■ At common law executors have a 3oint authority and a joint interest in the property of the estate. They are esteemed in law as one person, and, as such, represent the testator, although each may be respon- sible only for his own acts.'' Wiiether an executor may be imprisoned for not paying over an amount due upon final account, the statutes and decisions, of the States are not in accord. In Vermont and South Carolina, though refusal to pay is a contempt of court, imprisonment is not allowed under the constitutional inhibition against imprison- ment for debt.^ See Administee, 4; Assets; Bona; Charge:; Com- mission, 3; Dbvastavit; Devisavit; Donatio; Fu- neral; Goods; Improvident; Inventory; Legacy; Letters; Perishable; Power, 2; Probate; Repre- sentative, (i); Settle, 4; Trust, 1; Voucher; Wit- ness. EXEMPLARY. See Damages. EXEMPLIFICATIOIiT. An official transcript of a record, for use as evidence. Primary evidence; in the United States courts, by act of May 26, 1790, which does not exclude other proof and is to be strictly followed. The seal of the court is essential. An exemplification of the record of the record of a deed is admissible; of a foreign will, or grant, may be proven by a certificate.* See further Copy; Evidence, Secondary; Faith, Full, etc. ; Lost, 2; Record. EXEMPTION.^ The privilege of being excepted, excused, or freed from the oper- ation of a law. Used especially of goods not liable to seizure under the law of distress for rent; •* of merchandise not sub- ject to duties under the internal revenue laws; ' of the property of bankrupts and insolvents excepted from sale under execution laws; ' and of the property of a decedent not subject to administration. Also, the property itself, In the aggregate. > Stone V. Union Sav. Bank, 13 R..L 26 (1880); 8 Ga. 388; 2 Williams, Exec. 946. ^ Caskie v. Harrison, 77 Va. 94 (1882); Peter v. Bever- ley, 10 Pet. *633, 604 (1836); Wilson's Appeal, 115 Pa. 93 (1887); M'Cormick v. Wright, 79 Va. 533 (1884), cases; 24 Cent. Law J. 147 (1887), cases. ' . See generally Williams, Exec; Schouler, Ex;. & Adm., and Wills; 2 Kent, 409; 1 Pars. Contr. 127; Stacy 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. Colt, 111 id. 581 (1884); Glasgow v. Lipse, 117 id. 333' (1886); 9 Gratt. 559; 21 id. 800, 759. 'i?e Bingham, 32 Vt. 335(1859); Golson v. Holman, Sup. Ct. S. C. (1888) ; 26 Cent. Law J. 521-22 (1888), cases. 4 See 2 Whart. Ev. Ch. Ill, §§ 95-119; 1 Greenl. Ev. §501; 7W. Va. 413. » L. ex-imere, to take out, remove, free. »3B1. Com. 6. 'R. S. §3187. » E. S. § 5045. EXEQUATUR 433 EXIRE Exempt. Excepted from the burden or operation of law ; also, a person so excepted, excused, or relieved. Exemption laws. Specifically, laws which except a part of a debtor's property from seizure on execution, or other process, as not liable to the payment of his debts. This property, In its nature and extent, varies in the different States. In some it extends only to the merest implements of household necessity; in others it in- cludes the library of the professional man, however extensive, and the tools of mechanics;, and in many it embraces the homestead in which the family resides. The creditor, when he parts with the consideration ot his debt, knows that the property so exempt cannot be seized in payment. * Exemption in favor of debtors is favored by liberal interpretations. The exemption law of a State bars an execution on a judgment in favor of the United States." Exemption laws seek to promote the general wel- fare of society by taking from the head of a family the power to deprive it of certain property by con- tracting debts which will enable creditors to take such property in execution. Parties ought not, therefore, to be permitted to contravene the policy of the law by contract.^ Waiver of the right, if permitted at all, must be in distinct and unequivocal terms, and not rest upon in- ference.* "Widow's exemption. For the benefit of the widow and children of a decedent.* See Ageicultdre; Expbessio, Unius, etc.; Heifer; Homestead; Horse; Immujiitt; Implement; Pbiti- leqe; Tax, 2; Team^Tool; Wagon; Works. EXEQUATOTl. L. Let it be executed, performed, discharged. 1. In French practice, placed at the foot of a judgment obtained in another jurisdiction, authorized execution upon the judgment within the jurisdiction to which it was ex- emplified. 2. An order issued by the foreign de- pai-tment of a state to which a consul or commercial agent is accredited, that he be permitted to discharge the duties of his ap- pointment. J Nichols V. Eaton, 91 V. S. 726 (1875), Miller, J. ' Fink V. O'Neil, 106 U. S. 280 (1882), cases; R. S. § 916. 'Kneettle v. Newcomb, 22 N. Y. 249 (1860); Crawford V. Lockwood, 9 How. Pr. 547 (1854); Harper v. Leal, 10 id. 276 (1854). Contfa, McKinney v. Reader, 6 Watts, 34 (1837); Case v. Dunmore,23 Pa. 93 (1854); 24 id. 426; 31 id. 226. « O'NaU V. Craig, 56 Pa. 161 (1867); Commonwealth v. Boyd, ib. 402 (1867). Exemptions of personalty, Kansas cases', 2 Kan. Law J. 146-49 (18S5), cases. ' Huf man's Appeal, 81 Pa. 329 (1876) ; Nixon's Appeal, 6 W. N. C. 496 (1878). (38) Consuls on exhibiting proof of their appointment receive an exequatur, or permission to discharge their functions within the limits prescribed, which permis- sion can be withdrawn for any misconduct.^ EXEECITOK. L. Exerciser : manager. Exercitor maris. In civil law, he who equips a vessel; in English and American law, the managing owner of a vessel.^ EXHIBIT.3 1, V. To produce, offer, or expose for inspection: as, to exhibit an ac- count, a balance, a bill in equity, a complaint or information, written interrogatories, a bill or note for payment.* 3, n. A document produced and identified for use as evidence, before a jury, referee, master, or in the course of pleading. "Where there are several such documents it is cus- tomary to identify them as " Exhibit A," " B," or A 1, A 2, etc.; and, when produced in evidence, to mark upon them also the date, and the stenographer's or commissioner's name. A document cannot be proved as an exhibit when it requires more to substantiate it than proof of the exe- cution or of the handwriting.' " Ex. A " was held to mean " Exhibit A." • EXHIBITION. Compare Entertain- ment; License, 3; Prize-fighting. Unless skating rinks are so conducted as to be clearly shown to be "public performances or exhibi- tions," they cannot be brought within a statute requir- ing a license to be taken out for such " performances or exhibitions."' EXIGENCY. Going forth; issuing: mandate ; urgency. See Exire. A sheriff must execute a writ addressed and deliv- ered to him, accordmg to its exigency, without inquir- ing into the regularity of the proceeding. The " exigency of a bond " refers to the event upon the happening or not happening of which the bond is to become operative, by changing a contingent to an absolute liability. EXIGENT. See Outlawry. EXIRE. L. To go away, go out ; to issue. Exit. It has gone forth ; it has issued. TKe exit of a writ means simply the issuing ot that particular writ; and the word "exit," as a docket entry, indicates that thei^rrithas in fact been formally issued. Ne exeat. That he do not depart. A writ in equity practice issued to prevent a ' Woolsey, Intern. Law, § 100; 13 Pick. 528. » See 3 Kent, 161. = L. ex-hibere, to hold out or forth. » See 3 Bl. Com. 450; Byles, Bills, 208; 2 Conn. 33. « Lake v. Skinner, 1 Jao. & W. 9, 15 (1819); Plunkettv. Dillon, 4 Del. Ch. 222 (1871), cases. See generally Com- mercial Bank r. Bank of New York, 4 Hill, 519 (1842). « Dugan V. Trisler, 69 Ind. 555 (1880). ' Harris v. Commonwealth, 81 Va. 240 (1883). EXISTING 434 EXPERT defendant from withdrawing his person .and property beyond the jurisdiction of the court before a judgment and execution can be had against him. In effect, a process to hold to bail, or to compel a party to give security to abide the decree. Not granted in the Federal courts unless a suit in equity is already commenced, and satisfactory proof is made that the defendant designs quickly to depart from the United States.^ The full form of the writ is ne exeat repuhlKa; the original in England was ne exeat regno or regnum. The constitutions of the States declare that all per- sons have a natural right to emigrate from the State.'^ EXISTING. SeeCBEDiTOE; Prb-bxist- ING; Previous; Prioe. "Existing laws," in the saving clause of an act, re- fers to laws in force at the passage of the act.^ EXIT. See Exieb, Exit. EXONERATION; EXONEKETUK. See Onus, Exoneretur. EXP. See Ex, Parte. EXPATRIATION.* Voluntarily leav- ing one's native or adopted country to be- come a citizen in another country. Expatriate. To leave one's country, re- nouncing allegiance to it, with the purpose of making a home and becoming a citizen in another country. Includes more, then, than changing one's domicil.^ Act of Congress of July 37, 1868, declares that "the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; " disavows the claim made by foreign states that hatu- ralized American citizens are still the subjects of such states; and enacts, further, that "any declaration, in- struction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is declared incon- sistent with the fundamental principles of the repub- lic." ' The right is inalienable, and extends to individuals of the Indian race.' The contrary is the English doctrine, expressed in the maxim nemo potest exuere pairiam.^ 1 E. S. § 717; Lewis v. Shainwald, 7 Saw. 416-17 (1881), cases. ' 2 Kent, 34; 1 Bl. Com. 266; 2 Story, Eq. §§ -1466-74,; 3 Daniel, Ch. Pr. 1698-1714; Adams v. Whitcomb, 46 Vt. 708 (1873). 3 Lawrie v. State, 5 Ind. B36 (1854). See 63 lU, 117; 38 Iowa, 215. * L. ex patria terra, from one's fatherland. 5 Ludham v. Ludham, 31 Barb. 489 (1860). « R S. §§ 1999, 2000 ; 9 Op. Att.-Gen. 3B6 (1859). 'United States, ex rel. Standing Bear v. Crook, 5 Dill. 45.3 (1879). 8 2 Kent, 36; Morse, Citizenship, §179; 21 Am. Law Beg. 69-79 (1873); Canad. Law Times, Oct. 1863. EXPECTANCY. A present, vested, con- tingent right to the future enjoyment of land. A future estate ; an estate in expectancy, or, simply, an expectant estate or interest. Expectant. Contingent as to enjoyment ; also, the person entitled thereto. An expectancy is always an estate in remainder, or a reversion. The idea is that the time of enjoyment is postponed — depends upon some subsequent circum- stance or contingency. It is an executory estate, as opposed to an estate in actual, present possession — an estate executed, i In New York, any present right or interest which by possibility may vest in possession at a future day.' See Bargain, Catching. EXPENDITURE. An actual payment of money. To incur an expenditure is to make a payment, to expend money. To incur a liability and to incur an expenditure are different things.^ EXPENSE; EXPENSES. Vary in meaning with the intention of parties and testators, and the circumstances of, particu- lar cases.* See Costs. EXPERIMENT. See Invention. EXPERT.* A person instructed by ex- perience." A skilled or experienced person ; a person having skill, experience or peculiar knowl- edge on certain subjects or in certain profes- sions ; a scientific witness.' On questions of science, skill, trade, art or others of like kind, a person of skUl, soMetimes called an ex- pert, may not only testify to facts, but may give his opinion. His qualification must fh-st be shown to the court. = Whether a witness who is called as an expert has the requisite qualifications to enable him to testify is a preliminary question for the court, the decision of which is conclusive, unless it appears upon the evi- dence to have been en-oneous or to have been founded upon some error in law." f [2 BI. Com. 163. 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 Story, Eq. § 3.34. 'Improvement of South Pass, 16 Op. Att.-Gen. 133 (1878). « See 1 Minn. 48; 1 Cliff. 158; 8 N. J. E. 506; 12 Ct. 01. 179; 98 E.G. L. 199. , » * L. expertus, practiced, experienced, skilled. "Hyde v. Woolfolk, 1 Iowa, 167, 166 (1855): 2 Best, Ev. B13; !54Cal. 517. 'Heald v. Thing, 45 Me. 394 (1868): Burrill; 52 Me. 77; 41 N. H. 547; 50 id. 454; 48 Vt. 377. 5 Congress, &c. Spring Co. v. Edgar, 99 U. S. 657 (1878), cases, Clifford, J.; 1 Greenl. Ev. $ 440; 20 Johns. 76. > Perkins v. Stickney, 132 Mass. 218 (1882). EXPLOSION 485 EXPOSITIO An expert may be asked his opinion upon a case hypothetically stated, or upon a case in which the facts have been established; but he may not detei-mine from the evidence what the facts are, to give an opin- ion upon them. » "When the subject of a proposed inquiry is not a matter of science but of common observation, upon which the ordinary mind is capable of forming a judgment, an expert may not state his opinion." An expert testifies as a specialist. He may be ex- amined on foreign laws, and as to scientific authori- . tie^. Whether a conclusion belongs to him or not is for the court to say. He may give an opinion as to a condition known in his specialty; as, the opinion of a physician, surgeon, lawyer, scientist, practitioner in a business, artist, one familiar with a market, or with 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 to be jealously scrutinized, particularly when given ex parfe.^ The opinions of witnesses are constantly taken as to the result of their observations on a great variety of subjects. All that is required is that the witnesses should be able properly to make the observations, the result of which they give ; and the confidence bestowed on their conclusions will depend upon the extent and completeness of their examination, and the ability with which it is made.* The testimony of an expert has not the weight of testimony from observation. His statements are mere opinions, and entitled to such weight only as his e!^- perience justifies.^ The weight of authority is that he cannot be com- pelled to give a professional opinion without compen- sation." If specially feed, the jury may consider the effect on his credibility.' See Design, 2 ; Handwriting ; Insanity, 2 (6) ; Inspec- tion, 2; Science. EXPLOSION. Sudden and rapid com- bustion, causing violent expansion of the air, and accompanied by a report.* There is no difference in common use, between "explode" and "burst." . . The ordinary idea is > Dexter v. Hall, 16 Wall. 9, 26 (1872), Strong, J. ' Milwaukee, &c. E. Co. v. Kellogg, 94 U. S. 472 (1876), cases; Connecticut Mut. Life Ins. Co. v. Lathrop, 111 id. 618(1884); Carter «. Boehm, 1 Sm. L. C. 286, cases. '1 Whart. Ev. |§ 434-66, cases. * Hopt V. Utah, 120 U. S. 437-^ (1887), cases. » United States v. Pendergast, 32 F. E. 198 (i887). »J Whart. Ev. § 379, cases: Sprague, 276; 6 South. Law Eev. 793-809(1880), cases; 6 id. 706-18 (1880), cases; 12 Cent. Law J. 193 (1881), cases; 21 Am. Law Eev. 571- 77(1887), cases; Medico-Leg. J., Sept., 1883; 59 Ind. 15; 13 Abb. Pr. 207, 240. ' 1 Whart. Ev. §§ 456, 380; Harvey v. Packet Co., 8 Biss. 99 (1877). See generally Ware v. Starkey, 80 Va. 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. * United Life, &c. Ins. Co. v. Foote, 22 Ohio St. 348 (1872). that " explosion " is the cause, while " rupture " is the effect.' An insurance against "loss or damage by fire" covers a loss arising in part from an explosion and in part from combustion of gunpowder.'' See' Fire- works. EXPORT. To carry away : send out of a country. Exports: merchandise sent from one country to another. As used in the Constitution, Art. 1, sees. 8, 10, does not include articles transported from one State .into another.' See fm-ther Import. EXPOSE. To set out, bring into view; display, exhibit; show: as, to expose prop- erty to sale,* to expose the person.s See In- decent. EXPOSITIO. L. A setting out — the meaning of language; (explanation; inter- pretation. Contemporanea expositio optima et fortissima in lege. The explanation of the time is the fittest and strongest in law. Contemporaneous interpretation is the most satisfactory. Words in constitutions, treaties, statutes, — old writings generally, will be given the sense and scope they had with the makers or framers. The courts will not distm'b the construction put upon a doubtful law by long usage.* Contemporaneous construction " can never abro- gate the text, it can never fritter away its obvious sense, it can never narrow down its true lunitations, it can never enlarge its natural boundaries." ' The contemporaneous construction of a statute by those charged with its execution, especially when it has long prevailed, is entitled to great weight, and should not be disregarded or overturned except for cogent reasons, and unless It be clear that such con- struction is erroneous.^ Compare Error, 1, Commu- nis, etc. ' Evans v. Columbian Ins. Co., 44 N. Y. 151-62 (1870). ' Scripture v. iowell Mut. Fire Ins. Co., 10 Cush. 366 (ia52). See also 56 Md. 81; 81 Wend. 367; 3 Phila. 333; 19 C. B. N. s. 126. 5 Ejrp. Martin, 7 Nev. 142 (1871); Woodruff u.Parham, 8 Wall, 131 (1868). * Adams Express Co. v. Schlessinger, 75 Pa. 256 (1874) ; 12 Vt. 212. » 2 Bishop, Cr. L. § 318; 46 N. J. L. 16. •Ames 11. Kansas, 111 U. S. 4(M (1884). ' 1 Story, Const. § 407. ' United States v. Johnston, 124 U. S. 253 (1888), cases, Harlan, J.; Cohens v. Virginia, 6 Wheat. 418 (1821), Marshall, C. J.; Harrison v. Commonwealth, 83 Ky. 171 (1885); United States D.,SayIor, 31 F. R. 548 (1887). See also 5 Cranch, 22; 12 Wheat. 210; 99 U. S. 266; 101 id. 461; 107 id. 406; 113 id. 671, 733'; 116 id. 622; 31 F. E. 268; 6 Col. 92; 9 id. 93; 6 Conn. 89; 119 111. 345; 36 Kan. Ill; 83 Ky. 103; 17 Mass. *144; 44 N. J. L. 22; 16 Ohio St. 619; 70 Pa. 203; 73 id. 84; 94 id. 249; 14 S. C. 195; 66 Wis. 468. EXPRESS 436 EXPEESSIO EXPRESS. 1. To declare in terms, state in words, mention distinctly, avow openly. Express; expressed. Openly tittered and avowed ; stated or mentioned in words, oral or written; made known; opposed to implied: left to implication or inference ; ^s, express or an express or expressed — abroga- tion, assumpsit or undertaking, condition, consent, consideration, contract, covenant, dedication, malice, repeal, trust, warranty,! qq. V. Seevalso Expekssio. (2) Intended for a special service ; contract- ing for expedition in the transportation of packages: as, express — company, .business, facilities, matter. Express ear, See Bueglaey, p. 141, n. 2. Express companies are organized to carry small and valuable packages rapidly, in such manner as not to subject them to the danger of loss and damage which attends the transportation of heavy and bulky articles of commerce.2 See Package. Express companies are common carriers. Origi- nally formed to transport money, treasure, and other valuables, they have become carriers of goods and merchandise generally.^ Before railroads came into use, common carriers by land delivered parcels to the consignees. Railway companies were held bound only to carry goods to their destination, and put them safely in a warehouse. To remedy this defect in the railway transportation of packages of great value in small compass, express companies were instituted. They undertake to deliver to the consignee in person.* The style " express forwarders " does not necessa- rily make them simple forwarders.* ' What they are is to be determined by the nature of their business, not by contracts made respecting their liability.* Express business. Involves the idea of regularity, as to route or time, or both. In the act of June 30, 1864, § 104 (13 St. L. 276), does not cover what is done by a person who carries' goods at special request, not running regular trips nor on regular routes,' 1 See 8 Bl. Com. 443 ; 101 V. S. 670. ' Southern Express Co. u. St. Louis, &c. R. Co., 10 F. E. ai3 (1882), Miller, J. See 3 Redf. Railw. 15, Car- riers, 60, § 33: American Union Express Co. v. Robin- son, 72 Pa. 278 (1872). ' Southern Express Co. v. Cook, 44 Ala. 473 (1870). <8 Eedf. Railw. 21; United States Express Co. v. Baokman, 28 Ohio St. 161 (1875). ' Christensou v. American Express Co., 16 Minn. 883 (1870). • Bank of Kentucky v. Adams Express Co., 93 U. S. 181-85 (1876). ' Beteer v. Wood, 109 U. S. 187 (1883). The regulation of the business of an express com- pany upon the property of a railroad company, in the absence of legislation, is for the parties themselves to determine. . . In a few States, by recent statutes or by judicial interpretation, railroad companies are re- quired to furnish equal facilities to all express com- panies desiring to use their property. . . But the reason is obvious why special contracts are necessary. The transportation required is of a kind which must, if possible, be had for the most part on passenger trains. It requires not only speed, but reasonable cer- tainty as to the quantity that will be carried at one time. As the things carried are to be kept in the per- sonal custody of the messenger of the express com- pany, a certain amount of car space must be set apart, and, as far as practicable, be put in the exclusive pos- session of the expressman in charge. As the business to be done is " express " it implies access to the train for loading at the latest, and for unloading at the earliest, convenient moment. All this is inconsistent with the idea of an express business on trains free to all express carriers. Passenger trains are primarily for the transportation of passengers and their bag- gage. This must be done with reasonable promptness and comfort to the passenger. The express business is in a degree subordinate to the passenger business, and it is consequently the duty of the railroad com- pany in arranging for the express to see that there is as little interference as possible with the wants ofpas- sengers. This implies a special understanding as to the amount of car space that will be afforded, and the conditions on which it is to be occupied, the particular trains that can be used, the places at which they shall stop, the price to be paid, etc. It by no means fol- lows that -because a railroad company can serve one express company in one way it can as well serve an- other company in the same way. . . As long as the public are served to their reasonable satisfaction, it is a matter of no importance who serves them. The railroad company performs its whole duty when it al^ords the public all reasonable express accom- modations. The company may choose its own means of carriage, always provided they are such as to in- sure reasonable promptness and security.' See Carrier, Common. EXPRESSIO. L. Definite statement or enumeration; expression. Expressio unius, exclusio alterius. The statement of one thing is the exclusion of another. Sometimes put, indusio unius, etc., — " including one excludes all others." ^ Still another form is, expressum faeit oes- sare taoitum: the expressed controls the 'Express Cases: Railroad Companies (Memphis & L., St. Louis, I. M. & S., and Missouri, K. & T.) v. Ex- press Companies (Southern and Adams), 117 U. S. 1, 23 (1886), Waite, C. J. Commented on, Pfister v. Central Pacific R. Co., 70 Cal. 183 (1886). See also 67 Me. 194; 115 Mass. 416; 4 Brewst. 663. Contra, 8 F. E.4C5; 3 id. 693, 775; 4 id. 481 ; 6 id. 427; 8 id. 799; 10 id. 213, 869; 15 id. 568; 18 id. 671, 672; 19 id. 21. »12F. R. 414; 6 Col, 83, 94. EXPRESSIO 437 EXTENT unmentioned ; an unequivocal statement prevails over an implication.! Express mention ot one act, condition, stipulation, class or number, person or place, implies the exclusion of another or others not mentioned. The maxim re- stricts what is implied by what is expressed, what is general by what is particular and specific.'' The mode provided in a constitution for its amend- ment is the only mode in which it can be amended. The ordinary rule is, that where power is given to do a thing in a particular way, there afiflrmative words, marking out the way, by implication prohibit all other ways.' It would have been impracticable for the framers of the Constitution to have enumerated all the means by the use of which the powers expressly conferred upon the government of the United States should be exercised. A sovereign must have a choice of means by which to exercise sovereign powers.* See Nkces- srrY. Offenses not mentioned in a treaty of extradition are excluded from its operation.' A special provision in an act for levying a tax of a fixed per centum excludes the levy of a higher, al- though necessary, tax." The creation of specific means'for exercising pow- ers of municipal government excludes all other means.' The charter of a corporation is the measure of its powers, and the enumeration of those powers implies the exclusion of others.' A general statement of the duties for which a bond is given will be construed to include only such other duties ot the same kind as were not specifically enu- merated." The expression, in a policy of insurance, that a ves- sel should proceed to a port in Cuba and thence to Europe, implies that she should visit no other port in Cuba.'» An express guaranty of a bill or note cannot be con- verted into an indorsement. ' * Where a party specifies an obiection to the admis- sion of evidence it must be considered that he waives or has no ground for other objections.'^ The maxims express the principle of the rule that excludes such parol testimony as would vary the terms of a written instrument. They also serve to prevent fraud and perjury." > 71 Ala. 87; 82 id. 629; 62 Cal. 639; 4 Wash. C. C. 186. ' Broom, Max. 651, 664. 'Be Constitutional Convention, 14 E. I. 651 {18E3), cases. See also Smith v. Stevens, 10 Wall. 326 (1870). * 2 Story, Const, § 1213. » United States v. bauscher, 119 U. S. 420 (1886). .« United States v. County of Macon, 99 U. S. 5C0 (1878). ' Mayor of Nashville v. Bay, 19 Wall. 475 (1873). ' Thomas v. West Jersey E. Co., 101 U. S. 82 (1879). ' South V. Maryland, 18 How. 402 (1855). "Hearne v. Marine Ins. Co., 20 Wall. 493 (1874). " Central Trust Co. v. Nat. Bank of Wyandotte, 101 V. S. 70 (1879). "Evanston v. Gunn, 99 U. S. 665 (1878). " See Smith v. McCullough, 104 U. S. 25 (1881); 109 id. They are never more applicable than when applied to the interpretation of a statute.' See Incident; Remedy; Surplusage. EXPRESSIONS, GENEEAL. See Construction ; Dictum, 3; Expeessio, Unius, etc. ; Opinion, 3. EXPULSIOIf. See Amotion; Fran- chise, Disfranchise; Eviction. EXPUNGE. See Alter, 3; Cancel; Scandal, 3. EXPURGATORY. See Oath. EXTEND. To stretch or lengthen out; to continue, enlarge, expand. Compare En- large; Extent; Renew. To extend a charter is to give one which now exists greater or longer time in which to operate than that to which it was originally limited.* In its primary sense, when applied to a railroad track or other line, may import a continuation of the line without a break. But power to authorize a rail- way "to extend the location of its tracks" maybe held to include the location of an additional track, not connected with existing tracks except by those of an- other corporation. 3 For proper cause shown, a court will usually extend the time within which a thing was previously directed to be done; as. the taking of testimony.* Extension. Imports the continuance of an existing thing.5 , Since the act of March 2, 1861, c. 88 (12 St. L. 249), patents are granted for the term of seventeen years, and further extension is forbidden, except as to de- In the construction of statutes a term of an inferior class will not be extended to a superior class. See Genebai., 6. Creditors extend, that is, increase the time of pay- ment ot their claims, by agreeing to wait a certain time after the claims become due. EXTENT. 1. In common parlance, varies somewhat in meaning according to the subject to which it is applied, and as that changes, it may as well refer to time as to 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. 637; 34 La. An. 225; 98 Mass. 29; 117 id. 448; 10 Minn. 113; 30 id. 297; 44 N. J. L. 45; 3 N. Mex. 56; 73 N. Y. 440; 59 Pa. 178; 71 id. 88, 429; 76 id. 03, 125, 501 ; 80 id. 412; 19 S. C. 147; 80 Va. 327, 373, 374; 60 Wis. 252; 62 id. 41; 66 id. 383, 565; 67 id. 89; L. R., 3 Exch. 177; 2 Pars. Cont., 6ed.,515(r, t). ' Coast-Line E. Co. v. City of Savannah, 30 F. E. 649 (1887). 2 Moers v. City of Reading, 21 Pa. 201 (1868). 8 South Boston R. Co. v. Middlesex E. Co., 121 Mass. 489 (1877), Morton, .1. See also A'olmer's Appeal, 115 Pa. 166 (1887): 19 W. N. C. 183. * See James v. McMillan, 65 Mich. 136 (1884). » Brooke v. Clarke, 1 B. & Al. *403 (1818). « See E. S. § 4924. EXTENUATION 438 EXTRADITION space, or proportion ; especially so, when ap- plied to interests, as in patents, for a par- ticular term of years, l 3. At common law, a writ of execution by which the defendant's body, lands, and goods may all be taken at once, to compel payment of a debt. At present, concerns lands only. Originally enforced a recognizance or debt ac- knowledged on a statute merchant or staple. The sheriff caused the lands and tenements to be appraised to their full " extended " value that it might be known how soon the debt would be satisfled." Compare ; Statute, Merchant. Sometimes denotes a writ by which the creditor may obtain possession of the debtor's land till the debt be paid.^ See Inquest, Of lands. EXTENUATION. See Aggravation. EXTINGUISH.* To put out or quench : to destroy, annihilate ; to pay in full, satisfy : as, to extinguish a debt, an estate, a right to rent, a right of way, the rights of a corpora- tion. Extingtushment. Whenever a right, title or interest is destroyed or taken away by the act of God, operation of law, or act of the party. 5 Extinguishing one debt by substituting another is always a question of intention.' See Release; Merger, 1; Satisfy, 2. EXTORTION.' That abuse of public jus- tice which consists in an officer's unlawfully taking, by color of his ofifice, from any man, any money or thing of value that is not due to him, or more than is due, or before it is due.* Whence extorsively. Obtaining money or other valuable thing by compulsion, actual force, or the force of motives applied to the will.^ The wrongful exaction of money. The law, at the time of payment, creates an obligation to refund. Notice to refund is not necessary, therefore, vinless to serve to rebut the inference that the payment was voluntary or made through njistake.'" 1 Wilson V. Rousseau, 4 How. 698 (1846). » 3 Bl. Com. 430. s See 1 Troub. & H. CPa.) § 12S2. * L. extinguere, to quench. 'Moultrie v. Smiley, 16 Ga. 343 (1854): 3 Bac. Abr.; SO Sa. 403; 4 McCord, 101; 88 N. J. L. 20. » 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. 128; 29Vt. 488. 7 L. extorquere; to twist or wring out. "4 Bl. Com. 141; 6 Cow. 663. ' [Commonwealth v. O'Brien, 13 Cush. 90(1853), Shaw, Chief Justice. >° United States Bank v. Bank of Washington, 6 Pet. *19(1833). See also 3 skw. 474; 14 F. E. 597; 35 Ark. No public ofBcer may take other fees or rewards than such as are given by virtue of some statute.' The taking or obtaining of anything from another by a public officer by means of illegal compulsion or oppressive exaction. The offense, by § 3169, Rev. St., is the same as extortion at common law.* Compare Exaction; Blackmail; Oppression, See Payment, Involuntary; Protest, 1. EXTKA. A Latin preposition and ad- verb, contracted from extera {parte) : exter, or exterus, outward : ex; out. 1. On the outside: outside; without; be- yond. 3. Except; besides. 3. In extra costs, extra services, extra wages, and the noun extras, supposed to be an abbreviation of " extraordinary : " beyond what is common, additional to what is due or expected. See Dermott v. Jones, under Contract, Executed. Extra-dotal. Beyond dower. See Dotal. Extra-hazardous. Specially risky. See Hazard. Extra-judicial. Boyond the jurisdiction ; not judicial; outside of, or out of, court: as, an extra-judicial — act, admission, decision, oath. See Judge ;. Judicial. Extra-o£B.cial. Outside the duties of an office, q. V. Extra-territorial. Beyond the terri- tory, q. V. EXTRACT. See Copt; Estreat; Evi- dence, Secondary ; Review, 8. EXTRADITION.^ ' Surrender, by one government to another, of a person who has fled to the tei-ritory of the former to escape arrest and punishment under the criminal laws of the latter. Whence extradite, ex- traditable, non-extraditable. International or foreign extradition. Exists between independent nations. Inter- State extradition. Exists between indi- vidual States of the same nation or union. For a crime committed against the law of a State, extradition of the offender from a foreign country must be negotiated through the Federal government^ conformably to the existing treaty. 1. As between nations, the surrender of a fugitive is a matter of conventional arrange- 442: 2 Bish. Cr. L. § 300; 4 Conn. 480; 3 Sneed, 162; 7 Pick. 287. 1 E. S. §§ 3169, 5481: United States v. Waltz, 3 Saw. 474 (1875). 2 United States v. Deaver, 14 F. E. 597 (18S2), Dick, District Judge. ^ L. ex-tradere, to deliver over. EXTRADITION 439 EXTRADITION ment, not a matter of right. The obligation is not iraposed by the law of nations. De- liveries not provided for by treaty stipulation have been made in many cases, but always upon the principle of comity.' The trespass of a kidnaper, unauthorized by either government, is not a case provided for in the treaties hitherto made, and the remedy for the trespass is hy a proceeding by the government whose law he may have violated, or by the party injured. How far a forcible transfer, made with no reference to the exist- ing treaty, may be set up against the right to try the accused, is for the State court to decide: it presents no question upon which the Supreme Court can review the decision.^ Treaties have been made between the United States and the following foreign states, for crimes specified and defined in the treaties themselves respectively: Great Britain, Aug. 9, 1842 (8 St. L. 676). France, Nov. 9, 1843 (8 St. t. S82); Feb. 24, 1845 (i6. 617j; Feb. 10, 1858 (11 id. 741). Hawaiian Islands, Dec. 20, 1849 (9 St. L. 981). Swiss Confederation, Nov. 25, 1850 (U St. L. 587). Prussia and Germanic Confederation, June 16, 1852 (10 St. L. 964); Nov. 16, 1852 {ib. 964). Bavaria, Sept. 12, 1853 (10 St. L. 1032). Hanover, Jan. 18, 1855 (10 St. L. 1138). Two Sicilies, Oct. 1, 1855 (11 St. L. 651). Austria, July 3, 1856(11 St. L. 691); re-declared Sept. SO, 1870 (17 id. 835). Baden, Jan. 30, 1857 (11 St. L. 713); re-declared July 19, 1868 (16 id. 733). - Sweden and Norway, March 21, 1860 (12 St. L. 1125). Venezuela, Aug. 27, 1860 (12 St. L. 1143). Mexico, Dee. 11, 1861 (12 St. L. 1199); re-deolared July 10, 1868 (15 id. 688). Hayti, Nov. 3, 1864 (13 St. L. 711). Dominican Bepublic, Feb. 8, 1867 (15 St. L. 473). Italy, March 23, 1868 (11 St. L. 629); Jan. 21, 1809 (16 id. 767); June 11, 1884 (24 id. 1001). Salvador, May 23, 1870 (18 St. L. 693, 796). 1 Be Metzgar, 5 How. 188 (1847); United States v. Da- vis, 2 Sumn. 482 (1837) ; United States v. Eauscher, 119 U. S. 411 (1886); 12 Blatch. 391; 59 N. H. 110; 14 How. 112; 16 Alb. Law J. 444; 1 Kent, 36; Woolsey, Int. Law, §§77-^. » Ker V. Dlinois, 119 U. S. 436 (Dec. 6, 1886), Miller, J. Ker, wlio was charged with larceny in Cooli county, Illinois, fled to South America. He was apprehended in Peru by one Julian (who had proper extradition papers), forcibly placed on board the Umted States vessel Essex, transferred at Honolulu to the City of Sydney, carried to San Francisco, and thence taken to Cook county, where he was convicted and sentenced. Same case, 110 111. 627; 51 Am. B. 706; 35 Alb. Law J. 69. As to abducting an escaped criminal from another State, see Mahon v. Justice, Jailer, etc., 127 U. S. 700 <1888), in which case Mahon, residing in West Virginia, was, by persons acting as private citizens, forcibly and without process conveyed back to Kentucky, to be tried for murder. The circuit court of Kentucky, and, later, the Supreme Court of the United States, refused to discharge the accused upon a writ ot habeas corpus. Nicaragua, June 25, 1870 (17 St. L. 815). Peru, Sept. 12, 1870 (18 St. L. 719). Orange Free State, Deo. 22, 1871 (18 St. L. 751). Feuador, June 28, 1872 (18 St. L. 756). Belgium, March 19, 1874 (18 St. L. 804); June 13, 1883 (22 id. 972). Ottoman Empire, Aug. 11, 1874 (19 St. L. 572). Spain, Jan. 5, 1877 (19 St. L. 650); Aug. 7, 1882 (22 id. 991). Netherlands, May 23, 1880 (21 St. L. 769). Luxemburg, Oct. 29, 1883 (23 St. L. 808). Japan, April 29, 1886 (24 St. L. 1015).' Treaties have also been made with Indian tribes by which they stipulate to siurender persona accused of crime against the laws of the United States; and some provide for the mutual extradition of offenders." Treaties also provide for the mutual surrender of deserting seamen. Most of the treaties prescribe the evidence required to authorize an order of extradition. . All hearings under treaty stipulation or convention shall be held on land, publicly, and in a room or of&ce easily accessible to the public.^ . . On the hearing of any case, upon afiidavit being filed by the person charged, that he cannot safely go to trial without cer- tain witnesses, what he expects to prove by each of them, that he is not possessed of sufficient means and is actually unable to pay the fees of such witnesses, the judge or commissioner before whom the hearing ia had may order that they be subpoenaed; the costs to be paid as similar fees are paid in the case of wil>- nesses subpoenaed in behalf of the United States.* . . Fees and costs shall be certified to the secretary of state of the United States, who shall authorize payment of the same out of the appropriation to defray the ex- penses of the judiciary, and shall cause the amount to be reimbursed by the foreign government by whom the proceeding may have been instituted.* . Where any depositions, warrants, or other papers or copies thereof shall be offered in evidence upon the hearing of any case, the same shall be received as evidence for all the purposes of such hearing if they shall be legally authenticated so as to entitle them to be re- ceived for similar purposes by the tribunals of the foreign country from which the accused shall have es- caped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any deposi- tion, warrant, or other paper or copies thereof, so offered, are authenticated in the manner required by this act.' The complaint made before the United States com- missioner should show on its, face that he who makes it is a representative of the foreign government.' 1 See generally R. S. §§ 5270-80; 23 Cent. Law J. 247 (1886) — London Times. 2 See 11 St. L. 612, 703. 3 Act 3 August, 1882, sec. 1 : 23 St. L. 215. < Ibid., sec. 3. " Ibid., sec. 4. 'Ibid., see. 5. Sec. 2 prescribes the fees to be paid to commissioners. Sec. 6 repeals Act 19 June, 1876: B. S. § 6271. ' Be Herris, 32 F. B. 683 (1887). EXTRADITION 440 EXTRADITION Most of the treaties exclude '* political offenses" from their operation, that is, offenses incidental to and forming part ot a political disturbance.' Some treaties also provide that a citizen or subject of the comitry on which the demand is made shall not be surrendered. Under the Ashburton Treaty of 1842, between Great ' Britain and the United States, a fugitive who has been surrendered to this country cannot lawfully be tried for any other offense than that for which he was ex- tradited — at least until he has had an opportunity to ■ return to the country from which he was taken. Na- tional honor requires that good faith be kept in this regard.' Act of 33 and 34 Vict. (1870) c. 53, sec. 3, provides that a fugitive shall not be surrendered to a foreign state unless provision is made *' by the law of that state, or by arrangement," that, "until he has been restored or had an opportunity of returning to her Majesty's dominions," he shall not "be detained ^r tried in that foreign state for any offense committed prior to his surrender, otheE than the extradition crime." ^ 2. Extradition as between the States, Ter- ritories, and the District of Columbia, is reg- ulated by the Constitution and by statutes. The former provides that " A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of t^he State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime." * The words "treason, felony, or oth^r crime" em- brace every act forbidden and made punishable by a law of the State. The words "treason and felony" were introduced to guard against any restriction of the word "crime," and to prevent the provision from being construed by the rules and usages of independ- ent nations in compacts for deliverijig up fugitives from justice. According to these usages, even where the obligation to deliver the fugitive was admitted, persons who fled on account of " political offenses " were almost always excepted; and the nation upon >2 Steph. Hist. Cr. L. Eng. 70; 2 Law Quar. Eev. 177-87 (1886), cases; Kentucky v. Dennison, post. » United States v. Rauscher, 119 U. S. 411-33 (Deo. 6, 1886), cases. Miller, J.; Waite, C. J., dissenting. Same case, 26 Am. Law Eeg. 241-46 (1887), cases; 85 Cent. Law J,. 267(1887); 35 Alb. Law J. 204r^ (1887), cases, S. T. Spear. See also 19 Cent. Law J. 22-24 (1884), cases. Evidence under treaty with Great Britain, Exp. McPhun, 30 F. E. 57 (1887). Our state depart- ment and extradition, 20 Am. Law Rev. 540 (1886). 2 See also Exp. Coy, 32 F. E. 911 (1887), Turner, J. ; ib. 917, cases; Be MUler, 23 id. 32 (1886), cases. Clarke, Extrad. XXXVI; Spear, Inten. Extrad. 158-69; 14 Alb. Law J. 85-99 (1876); 6 Can. Law J. 227; 8 Blatch. 131. See generally 10 Am. Law Eev. 617 (1876); 17 id. 316-49 (1883). » Constitution, Art. IV, sec. 2, cl. 2. which the demand is made also uniformly exercises a discretion in weighing the evidence of the crime, and the character of the offense. . . And as the States, although united as one nation for certain specified purposes, are yet, as far as concerns their internal government, separate sovereignties, independent of each other, it was deemed necessary to show, by the terms used, that this compact was not to be regarded as an ordinary treaty for extradition between nations altogether independent of each other, -but was in- tended to embrace political offenses against the sover- eignty of the State, as well as all other crimes. -\nd as treason was "felony" it was necessary to insert those words, to show, in language that could not be mistaken, that political offenders were included in it. For this was a compact binding the States to aid each other in executing their laws and preserving order within their respective confines. . '. As early as 1643, certain plantations in New England pledged themselves to deliver up fugitives from justice found within their borders. The advantages derived from this compact doubtless suggested the introduction into the Articles of Confederation of the provision that " If any person guilty of, or charged with treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall upon demand of the Governor or Ex- ecutive power, of the State from which he fled, be delivered up and removed to the State having, jurisdic- tion of the offense. Full faith and credit shall be ,given in each of these States to the records, acts and judicial proceedings of the courts and magistrates o£ every other State." (Art. IV, sec. 2-3.) The colonies, having learned from experience the necessity of this provision for the internal safety of each of them, and to promote concord and harmony among all their members, incorporated it in the Constitution substanr tially in the same word's, but substituting the word "crime" for "high misdemeanor," thereby showing the deliberate purpose to include every offense known to the law of the State from which the party charged had fled. . . The compact gives the right to the ex- ecutive authority of the State to demand the fugitive from the executive authority of the State in which he is found. The right to " demand " implies that it is an absolute right; and it follows that there must be a correlative obligation to deliver, without reference ta the character of the crime charged, or to the policy or laws of the State to which the fugitive has fled. This is the construction put upon this Articlp in the Set of Congress of 1793, a statute passed by many who had been f ramers of the Constitution. If the duty of providing by law the regulations nec- essary to carry the compact into execution had been left to the States, each State might have required dif- ferent proof to authenticate the judicial proceeding upon which its demand was to be founded; and as the duty of the governor of the State in which the fugitive is found is merely ministerial, without the right ta exercise either executive or judicial discretion, he could not lawfully issue a warrant to arrest an indi- vidual without a law of the State or of Congress to authorize it. These difficulties presented themselves in 1791, in a demand by the governor of Pennsylvania upon the governor of ^Virginia, and both of them EXTRADITION 441 EXTRADITION brought the subject before the President, who imme- diately submitted the matter to the consideration of Congress. This led to the act of February 12, 1793. Difficulty as to authenticating the judicial proceeding was removed by the Article in the Constitution which declares that " Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." (Art. rV, sec. 1.) The pro- vision for the deliveiy of fugitives was doubtless in mind when this power was given to Congress. The act of 1793, as re-enacted in the Revised Stat- utes, reads as follows; "Sec. 5278. Whenever the ex- ecutive authority of any State or Territory demands any person as a fugitive from justice of the executive authority of any State or Territory to which such per- son has fled, and produces a copy of the indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magis- trate of the State or Territory from whence the per- son so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority malnng such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or ex- penses incurred in apprehending, securing, and trans- mitting such fugitive to the State or Territory malcing such demand shall be paid by such State or Territory. " " See. 5279. Any agent, so appointed, who receives the fugitive into his custody, shall be empowered to trans- port him to the State or Territory from which he fled. And every person who, by force, sets at liberty or res- cues the fugitive from such agent while so transport- ing him, shall be fined not more than five hundred 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 the demand are plainly specified m the foregoing en- actment; and the certificate of the executive author- ity is made conclusive as to their verity when pre- sented to the executive of the State where the fugitive is found. He has no right to look behind them, or to question them, or to look into the character of the crime specified in the judicial proceeding. His duty is merely ministerial — to cause the party to be arrested and delivered to the agent of the State where the crime was committed. The words " it shall be the duty " were not used as mandatory and compulsory, but as declaratory of the moral duty which the com- pact between the United States and each State created, when Congress had provided the mode of carrying it into execution. There is no power delegated to the general government to use coercive means to compel the governor of a State to discharge his duty in this respect.i ^ 'Commonwealth of Kentucky v. Dennison, Gov- It is within the power of each State, except as her authority may be limited by the Constitution, to de- clare what shall be offenses against her laws, and cit- izens of other States, when within her jurisdiction, are subject to those laws. In recognition of this right, the words of the clause in reference to fugitives from jus- tice were made sufficiently comprehensive to include every offense against the demanding State, without exception as to the nature of the crime. The demand may be made upon the governor of a Territory. Upon the executive of the State in which the accused is found, rests the responsibility of determining, in some legal mode, whether he is a fugitive from the justice of the demanding State. He does not fail in his duty if he makes it a condition precedent to surrender that it be shown by competent proof that the accused is in fact a fugitive from such State.' The accused is entitled to have the lawfulness of his arrest inquired into, by a coiu*t of the State or of the United States, by a writ of Jiabeas corpus. . . It must appear to the governor of the State on whom the demand is made that the person demanded is sub^ stantially charged with a crime against the laws of the demanding State, by an indictment or an affidavit, certffied as authentic by the governor of the latter State; and that the person is really a fugitive from the justice of that State. The first of these prereq- uisites is «. question of law, always open upon the face of the papers to judicial inquiry, on an applica- tion for a discharge. The second is a question of fact^ which the governor upon whom the demand is made must decide, upon such evidence as he may deem satis- factory. A certified copy of the law alleged to have been broken need not be furnished. The courts of the United States take judicial notice of the laws of all the States. To be a " fugitive from justice " it is not neces- sary that the accused should have left the State after an indictment found, or to avoid a prosecution antici- pated or begun, but simply that, having within a State committed that which by its laws constitutes a crime, when he is sought to be subjected to its crim- inal process to answer for his offense, he has left its jurisdiction and is found within the territory of an- other.2 emor of Ohio, 34 How. 66, 99-110 {I860), Taney, C. J. This was a motion for a rule on Dennison to show cause why a mandamus should not be issued by the Supreme Court, commanding him to cause one LagO' to be surrendered to the authorities of Kentucky. Lago, a free man of color, after being indicted for as- sisting a slave to escape, fied to Ohio. The governor of that State, on the advice of the attorney -general, re- fused to deliver up the fugitive, on the ground that the act for which Lago was indicted was neither " trea- son," nor " felony " nor any " other crime," either ab common law or under the laws of Ohio. 1 Exp. Reggel, 114 U. S. 642, 650, 6.53 (1885), Harlan, J. Reggel was indicted in Pennsylvania for obtaining goods by false pretenses, and fled to Utah. = Roberts v. Eeilly, 116 U. S. 80, 94-97 (1885), Mat- thews, J. Roberts petitioned the District Court for the Southern District of Georgia for a discharge, al- leging that he was illegally restrained of his liberty 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 Congress.* And,, as seen above, the courts of a State may pass upon the legality of an arrest.* The provision is a national police regulation.^ See FuGiTivEi' Requisition; Expressio, Unius, etc. EXTBAOEDINAEY. 1. The utmost; the highest under the circumstances: as, extraordinary care or diligence. See Cake ; Negligence. 3. Out of the common order; rot usual or regular : as, extraordinary jurisdiction, rem- edies. See Chancbby, 1 ; Minister, 3. Poverty or financial embarrassment is not an "ex- traordinary circumstance," within the meaning of a, statute excusing laches in proceeding with a cause.* As between ship-owner and insurer, the former is bound to provide against ordinary^ while the latter in- sures against extraordinary perils. By " extraordi- nary "is not meant what has never been previously heard of, or is within former experience, but what is beyond the ordinary, usual, or common.^ EXTRAVAGANT. See Impeovidbnt; Spendtheipt. EXTREME. See Cruelty; Penalty. EXTREMIS. See In Extremis. EXTRINSIC. See Evidence. EYE. See Mayhem ; Security, Personal. F. F. 1. Was anciently branded upon the •ear or face of a person guilty of falsity, fighting, or of a felony admitted to clergy. Abolished by 7 and 8 Geo. IV (1837), c. 28, s. 6: 8. Stands for words sometimes abbrevi- ated: as, first, French. E. P. Fieri facias. See Execution, 3, Writs of. P. J. First judge or justice. JKoberts stood indicted for the larceny of railroad bonds. 1 Exp. Ammons, 34 Ohio St. 518 (1878); Wilcox v. Nolz, ih. 520 (1878), oases. » Eobb V. Connolly, 111 U. S. 624, 637 (1884). 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. Att.-Gen. 6; 8 id. 308, 396, 521; 63 Ind. 344; 50 Iowa, 106; 34 Ohio St. 71-79; 4 Tex. Ap. 663; 60 "Wis. 594; 18 Alb. Law J. 146-51 ; 2 West Coast Rep. 599. Rules proposed by Inter-State Conference, 36 Alb. Law J. 220 (Sept. 10, 1887). The new extradition bill, 3T id. 88-93 (1888), A. T. Spear. ■"Whalen v. Sheridan, 10 P.E. 663 (1880); MilUer v. Ehlers, 91 U. S. 251 (1875). » Moses V. Sun Mut. Ins. Co., 1 Duer, 170 (1853); The Iltania, 19 P. E. 105 (1883). EABRICATE. In. a statute against "fabricating" a voting paper, impotts an act done with criminal intent ; implies fraud or falsehood, a false or fraudulent concoc- tion, by one knowing that it is wrong and contrary to law. 1 Compare Foege, 3. EAC. See Faceee. PACE. 1. As a thing is made: impres- sion ; expression ; appearance, g. v. : as, the face of a bill, bond, note, check, draft, judg- ment, record. A purchaser must look at the face of a bond,' g. v. A contract,on its face, may be ultra vires.^ 3. The sum, less interest, which appears to be due by an instrument or record : as, the face of a judgment.* 8. Presence; sight; front; view: as, for parties or witnesses to meet face to face; that is, front to front, and, perhaps, facing the court or jury. See Confeont; Con- tempt. 4. Mere appearance or aspect ; phase ; sem- blance, likeness : as, an act intended to give an honest face to a transaction. See Inten- tion. PACERE. L. To make, do, perform. Compare Fieri. Pac simile. Made like in appeUrance ; a copy. Said of counterfeits, design^, signatures, trade- marks, qQ.^. Paeias. That you make or cause to be made. See Execution, 3, Writs of. Pacies. Appearance; view. SeePiOMUS, Prima, etc. Pactum. A thing done; a fact. See Factum. Qui facit per alium, facit per se. He who acts through another acts by himself. The act of the agent is the act of the prin- cipal — within the scope of the employment. The authorized act of an agent is imputed to his employer. An act done by one under the command and direc- tion of the owner of a vessel, with his approbation and for his benefit, is as much his own act in contempla- tion of law as if done by himself. To this extent at least the maxim applies. And it is not material whether the act is done in his absence from, or his presence in, the scene.' See Asekt; Contractor. • Aberdare v. Hammett, L. E., 10 Q. B. 165-66 (1875). »1 Wall. 93; Sid. 734. > 96 U. S. 267. ' See Osgood v. Bringolf , 32 Iowa, 270 (1871). 'United States v. Gooding, 12 Wheat. 472 (1827), Story, J. See also 1 Bl. Com. 474; 91 U. S. 312; 48 Ark. FACT 443 FACTOR FACT. Anything done, or said ; an act or action ; an actual occurrence ; a circum- stance; -whatever comes to pass; an event. See Factum. Subjects of jurisprudence are facts and laws: tacts are the source and cause of laws. From facts pro- ceed rights and wrongs. By fact is meant anything the subject of testimony. Perception is a fact. If any emotion is felt, as joy, grief, anger, the feeling is a fact. If the operation of the mind is productive of an effect, as intention, knowledge, sidll, the possession of this effect is a fact. If any proposition be true, whatever is affirmed or denied in it is a fact.' "Fact" and "truth" are often used in common parlance as synonymous; as employed in pleadings they are widely different. A fact in pleading is a cir- cumstance, act, event or incident; a truth is a legal principle which declares or governs the facts and their operative effect." An act, deed, circumstance, or event is none the less a fact because reached as a conclusion of law.^ See Circumstances, 1. After the fact; before the fact. See Accessary ; Factum, Ex post, etc. Collateral fact. A fact not directly con- nected with the matter under consideration. Material fact. Such a fact as influences action in favor of or against a thing about to be done; such a fact as is essential to the right of action or defense. Immaterial fact. A fact not important to a determina- tion ; not essential to a conclusion ; not neces- sary to be alleged, nor to be proved if alleged. In fire insurance any fact is material, the knowl- edge or ignorance of which would naturally influence an insurer in making the contract, in estimating the degree and character of the risk, or in fixing the rate of insurance.* See Conceal, 5. Verbal fact. (1) A fact which, if stricken out, would have the effect produced by strik- ing out the controlling member {verb) of a sentence, or the controlling sentence from its context. (2) A declaration accompanying a thing done, explanatory of it, unfolding its nature and quality ; as, what is said about sickness or affection, where either is the subject of inquiry. 5 330; 22Ind. 471; 15 La. An. 456; 1 Pick. 476; 10 Mass. 155; 3 Gray, 361; 11 Meto. 71; 18 Me. 137; 68 N. H. 53; 9 Pa. 13; 98 id. 9; Story, Ag. § 440; Whart. Max. 165. ' Bam on Facts, Ch. I. = Drake u. Cockrof t, 4 E. D. Smith, 37(1855), Wood- ruff, J. See Lawrence v. Wright, S Duer, 674-75 (1853). s Levins v. Eovegno, 71 Cal. 277 (1886). » Boggs V. American Ins. Co., 30 Mo. 68 (1860); Clark V. Union Mut. Fire Ins. Co., 40 N. H. 338 (1860). = See Beaver v. Taylor, 1 Wall. 642 (1863); Travelers' Ins. Co. V. Mosley, 8 id. 404-5 (1869), Swayne, J. In fact. In reality; in a matter of fact. Opposed, in Uw: in a matter of law; em- powered hy law; imputed in law: as, an at- torney in fact, and an attorney at-law ; error or fraud in fact and in law. See Attorney; Error, 2 (2) ; Fraud ; Pais. " Fact " is contrasted with " law." Law is a prin- ciple, fact is an event; law is conceived, fact is actual; law is a rule of duty, fact is that which accords with or contravenes the rule. ^ Questions, issues, conclusions, and errors are of law or of fact, or of mixed law and fact. Facta, not evidence, are to be pleaded; and are proven by moral evidence. Questions of fact are said to be solved by the jiu-y, questions of law by the court. See Demurreii; Ignorance; Inquiry; Jury; Knowl- EDOE, 1 ; Law; Mistake ; Notice, 1 ; Presumption; Hes, Gestse; Ultimate. FACTOR.^ An agent who is commis- sioned by a merchant or other person to sell goods for him and receive the proceeds.? A commercial agent, transacting the mer- cantile affairs of other men, in consideration of a fixed salary or certain commission, and, principally, though not exclusively, in the buying and selling of goods.* An agent employed to sell goods or mer- chandise, consigned or delivered to him, by or for his principal, for a compensation called his " factorage " or commission.* Often called a "commission merchant" or "conr signee;" and the goods received by him a "consign- ment." When, for an additional compensation in ease of sale, he undertakes to guarantee the payment of the debt due by the buyer, he is said to receive a del cred- ere commission; that is, a commission of trust or credit.' A factor or commission merchant may buy and sell in his own name, and he has the goods In his posses- sion. A " broker " cannot ordinarily buy and sell in his own name and has no possession of the goods.' Domestic factor. A factor who resides in the same country with his principal. A foreign factor resides in a different country. A factor may sell sufficient of the merchandise to reimburse himself for advances, or to meet liabilities incurred, unless he has agreed not to do so, or the consignor is ready to reimburse him. He must obey the orders of his principal.' ' [Abbott's Law Diet. ^ L. facere^ q. v. " Cotton V. Hiller, 62iMiss. 13 (1876), Sunrall, C. J. * Lawrence v. Stonington Bank, 6 Conn. 537 (1827), Hosmer, C. J. » Story, Agency, §§ 33, 357; Duquid v. Edwards, 50 Barb. 295 08C7); Whart. Ag. § 784; JBxp. White, L. E., 6 C. Ap. 403(1871); 1 Pars. Contr. 78; 1 Bl. Com, 437. « Slack V. Tucker, 23 Wall. 330 (1874), Bradley, J. See also Perkins v. State, 50 Ala. 166 (1873). ' Brown v. M'Gran, 14 Pet. 494 (1840). FACTORY 444 FACTUM To the extent of advances and charges, he has a lien, a special property, in the merchandise; and he may pledge articles to the amount of that lien. He may protect his possession by a suit against a' tres- passer. He cannot sell to his own creditor in payment of his debt; nor can he delegate his authority without assent of the principal. Before he has effected a sale, the principal may reclaim possession by paying ad- vances, interest thereon, and expenses.* The princi- pal may sue and be sued on a contract made by the factor in his own name." If guilty of gross negligence in conducting the busi- ness, he forfeits all claim to compensation for his servites.' See further Agent. raptor's Act. Statute of 6 Geo. IV (1826), c. 94. Empowered a factor to pledge the goods, and protected persons who be- lieved him to be the real owner. Statute of 6 and 6 Tict. (184S) further enabled him, as if the true owner, to enter into any agreement re- specting the goods by way of "pledge, lien or secu- rity," excepting as to antecedent debts; and this, notwithstanding the lender is aware that the bor- rower is a factor only. Similar legislation exists in the States. Factorizing process. Trustee process; garnishment,* q. v, FACTORY. A contraction of " manu- factory, — a building, or collection of build- ings, appropriated to the manufacture of goods." Includes the building, the machineiy necessary to produce the particular goods, and the engine or other power requisite to propel such machinery.* See Con- tained. PACTUM. L. A thing done ; a deed ; a fact. Compare Fait. De facto. In point of fact : actual. Op- posed, dejure: by right, rightful. Said of a blockade (q. v.) actually maintained; " of actual duress; ' of a wife or husband whose marriage may be annulled; ^ of a person in ofSce under ap- parent right or under color of right — as by an appoint- ment or election not strictly legal; » and of a vacancy (g. V.) in an oflce; of a government (g. v.) actually in > Warner v. Martin, H How. 223 (1850), oas6s; United States V. Villalonga, 23 Wall. 42(1874); Mechanics', &c. Ins. Co. V. Kiger, 103 IT. S. 355 (1880); Steiger v. Third Nat. Bank, 2 MeCrary, 503 (1881); Goodenow v. Tyler, 1 Am. L. C. 788, 797; Laussatt v. Lippinoott, ib. 806, 812; 73 111. 103; 5 S. & E. 540; 70 E. C. L. 418; 2 Kent, 6SS. » Higgins V. MoCSea, 116 TJ. S. 680 (1886), cases. = Fordyce v. Pepper, 16 F. E. 516, 520-21 (1883), cases. * See Drake, Attach. § 451. » Schott V. Harvey, 105 Pa. 227 (1884). See 76 Va. |>1012; 8Md. 495. » 1 Kent, 44. ' 15 Gray, 471. ' 1 Bl. Com. 435; 4 Kent, 36. = 2 Kent, 295; 1 Bl. Com. 371; 27 Minn, 293; 3 Mont. 430; 55 Pa. 468. , power in place of the lawful government ; * of increase of stock." Ex facto jus oritur. Out of the fact the law arises : the law attaches to facts. Ex post facto. From an after fact — a subsequent matter ; after the fact or act. "No State shall . . pass any . . ex post facto Law." 3 That is, a law concerning, and after, a fact, or thing done, or action committed.* Eelates to penal and criminal proceedings, which impose punishments or forfeitures, not to civil pro- ceedings which affect private rights retrospectively. ^ Embraces only such laws as impose or affect penal- ties or forfeitures. A retrospective act is not there- fore necessarily such a law."* See Eetrospective. Includes every law : (1) That makes an ac- tion' done before the passing of the law, and which was innocent when done, criminal, and punishes such action. (2) That aggra- vates a crime, 6r makes it greater than it was when committed. (3) That changes the pun- ishment, and inflicts a greater punishment than the law annexed to the crime when committed. (4) That alters the rule of evi- dence, and receives less or different testi- mony than the law required at the time of the commission of the offense, to convict the offender.' A law which imposes a punishment for an act not punishable at the time it was com- mitted ; or imposes additional punishment to that then prescribed ; or changes the rules of evidence by which less or different testimony is sufficient to convict than was then re- quired. ^ The term necessarily implies a fact or act done, " after " which the law in question is passed. Whether it is ex post facto or not relates, in criminal cases, to which alone the phrase applies, to the time at which, the offense charged was committed. If the law com- plained of was passed after the commission of the of- fense, it is as to that ex post facto ,though whether of the class forbidden by the Constitution may depend on other matters. But so far as this depends on the time of its enactment, it has reference solely to the ' 93 U. S. 133; 96 id. 186; 97 id. 616; 43 Ala. 213; 42 Miss. 703; 47 Pa. 170. ' " 96 U. S. 668. ' Constitution, Art. I, sec. 10. See 8 Bancroft, Const. 213. * Calder v. Bull, 3 Call. 390-91 (1798), Chase, J. ' Watson V. Mercer, 8 Pet. 110 (1834), cases. Story, J. •Locke V. New Orleans, 4 WaU. 172 (1866). ' Calder v. Bull, supra; State v. Hoyt, 47 Conn. 532 (1880). » Cummings v. Missouri, 4 Wall. 326 (1866), Field, J.; 9 Wall. 38. FACULTY 445 FAIE date at which the pfEense was committed to which the new law was sought to be applied. . . Any law passed after the commission of an offense which " in relation to that offense or its consequences, alters the situation of a party to his disadvantage," is an ex post facto law, and forbidden.^ ' Does not involve a change of place of trial.' Illustration: a State may not disqualify from fur- ther emplo.yment as such, teachers and clergymen who took part in the late rebellion.' A statute which simply enlarges the class of per- sons who may be competent to testify is not ex post facto as to offenses previously committed. Such alter- ation in the law relates to the mode of procedure only, in which no one can be said to have a vested right, and which the State, upon grounds of public policy, may regulate at pleasure.* ractuin probandum. The fact to be proved.* Ipso facto. By the fact itself; by the mere fact; from the effect of the fact or act. The mere fact of a collision between trains is evi- dence ipso facto of negligence.' Attaining twenty- one years of age ipso facto emancipates from the dis- abilities of infancy. Ifoii est factum. It is not his deed. The name of the issue joined in an action on a specialty, by a defendant who denies that he executed the instrument.^ PACTJIiTY. A special privilege or license granted to a person permitting him to do something which otherwise the law would not allow. FAILURE. 1. The state or condition of being wanting; a falling short; deficiency or lack; defect, want, absence; default; de- feat. Failure of consideration. Want or ab- sence of a legal consideration. This may be either partial or total.' See Consideb- ATION. Failure of evidence. Absence of legal evidence. Total failure of evidence. Not only the utter ab- sence of all evidence, but also failure to offer proof, either positive or inferential, to establish one or more of the many facts, the establishment of all of which is 1 Kring V. Missouri, 107 U. S. 225, 227, 835, 238, 250 (1888), Miller, J. Approved, Hopt v. Utah, infra. 1 Gut V. Minnesota, 9 Wall. 37 C1869). ' Locke V. New Orleans, ante. * Hopt V. Utah, 110 U. S. 689-90 (1884), Harlan, J. See Pacific Coast Law J., May 26, 1883; 23 Am. Law Eeg. 680-95 (1886), cases. • 1 Greenl. Ev. § 13. « 91 U. S. 492. 'See^ Bl. Com. 305; 1 Litt. 158; 6 Hand. 86; Gould, PI. 300-2. ' See Torinus v. Buokham, 29 Miim. 131 indispensable to the finding of the issue for the plaint- iff.' Failure of issue. Want or non-existence of descendants; more particularly, lack of issue who may take an estate limited over by an executory devise. This may be definite or indefinite. See further Die, Without children. Failure of justice. Defeat of right and justice from want of legal remedy. Failure of record. Neglect to produce a record relied upon in a plea. Failure of title. Defector want of title. When discovered before the money has been paid, the purchaser may deduct an amount equal to the value of the land of which he is deprived. Failure of trust. Defeat of a proposed trust from want of constituting facts or ele- ments or of law to efEectuate the object. 3. Default; omission; neglect; non-per- formance, q. V. ; as, failure to perform a con- tract, q.. V. 3. Inability to pay debts, from insolvency ; suspension of payment: as, failure in busi- ness, a failing debtor. Palling oiroumstanoes. In a statute, may im- ply that the insolvent is about failing and closing his affairs, knowing his inability to continue in business and meet his payments." See Bakkruptct; Ihsolv- ENOY. FAIR. 1, adj. Equal; just; proper; rea- sonable ; equitable. See Equity. Fair abridgment. A real substantial condensation of copyrighted materials, as the result of labor and judgment. See Abrid&e. Pair average crop. Takes into account the nat- lure of the season and unforeseen events beyond the control of a prudent, faithful overseer.' Fair criticism. See Eeview, 3. Fair knowledge or skill. A reasonable degree of knowledge or measure of skill.4 Fair preponderance. Of evidence — a preponderance perceptible upon fair consid- eration. * Fair sale. A sale conducted with fair- ness as respects the rights of the parties affected.'' » Cole V. Hebb, 7 Gill & J. 28 (Md., 1835). aUtley v. Smith, 84 Conn. 310 (1855); Bloodgood V. Beecher, 35 id. 482 (1868). ■ Wright V. Morris, 15 Ark. 450 (1855). * Jones V. Angell, 95 Ind. 383 (1663). « [State V. Grear, 39 Minn. 235 (1882); Bryan v. Chi- cago, &c. E. Co., 63 Iowa, 466 (1884); City Bank's Ap- peal,' 54 Conn. 274 (1886); 86 Pa. 288. • [Lalor V. M'Carthy, 24 Minn. 419 (1878). FAIT 446 FAITH Fairly. Equitably; reasonably. . In " fairly merchantable," conveys the idea of me- diocrity in quality, or something just above that.^ May be deemed synonymous with " equitably." ^ But is not synonymous with "truly:" language may be truly yet unfairly reported.' See Faithfully. Fairness. In speaking of a sale, "fairness and good faith " refers to the fair dealing which usually characterizes business transactions.* 2, n'. In English law, a species of market held by grant from the crown.5 In the United States, "fairs" are governed by the law as to partnerships and sales. See Market. FAIT. F. A fact. Compare Factum. . Before or at full' age an infant may avoid a matter in fait; and a matter of record, during majority.^ "Wife de fait; a wife de facto. FAITH. Belief; confidence; reliance; credence; trust, q. v. Fair intent of pur- pose ; honesty, openness, uprightness ; sin- cerity; fidelity to a representation, promise, or duty. Good faith. Honest, lawful intent; thfe condition of acting without knowledge of fraud and without intent to assist in a fraud- ulent or otherwise unlawful scheme. Bad faith. Guilty knowledge or willful igno- rance. The corresponding Latin expressions are bona fides, and mala fides. See Fides. A creditor,' holder, possessor,^ pi^rchaser,^ or trans- feree in good faith is one who has loaned monpy or purchasecTprbperty faiiiy,. in the usual bourse ofbusi; ness, and without being cognizant of, or implicated in, Khy intent which the borrower or seller may have had to evade the claims of his creditors or to defraud some person interested in the matter.^*" The title of a person who takes negotiable paper before it is due, for a valuable consideration, can only be defeated by showing bad faith in him, which im- plies guilty knbwledge or willful ignorance of the facts impairing the title of the party from whom he received it. The burden of proof lies on the assailant of the taker's title.," A purchaser in good faith of negotiable paper for 1 Warner v. Arctic Ice Co., 74 Me. 479 (1883). 2 Satcher v. Satcher, 41 Ala. 40 (1867). s Lawrence v. Fmch, 17 N. J. B. 239 (1865). < Morgan v. Hazlehurst Lodge, 53 Miss. 683 (1876). = See 1 Bl. Com. 274. « 1 Pars. Contr. 333. ' See 66 Ga. 722;' 30 Minn. 87S. 8 See 31 Md. 454; 8 Wheat. 79; 12 Tex. 322; 24 id. 379. "See 71 Ala. 231; 44 Conn. 459; 65 Barb. 231; 7Johns. Ch. 65; 2 Utah, 52. i« [1 Abbott's Law Diet. 636; 111 U. S. 80. " Hotchkiss V. Tradesmen's, &c. Nat, Banks, 31 Wall. 359 (1874), cases; Dresser v. Missouri, &c. Co., 93 U. S. 94^-95 (1876), cases; Collins v. Gilbert, 94 id. 754 (1876)^ cases. value, before maturity, takes it freed from all infirmi- ties in its origin, unless it is absolutely void for want of power in the maker to issue it, or its circulation is by law prohibited by reason of the illegality of the consideration. His transferee, with notice of the in- firmities, may equally recover.^ A party who, before its maturity and for a valuable consideration, purchases mercantile paper from the apparent owner thereof, ' acquires a right thereto which can only be defeated by proof of bad faith or of actual notice of such facts as impeach the validity of the transaction.* A holder in good faith is a purchaser for value with- out notice, or his successor. ^ The bad faith in the taker of negotiable paper-' which will defeat a recovery by him must be some- thing more than a failure to inquire into the consider- ation upon which it was made or accepted, because of rumors or general reputation as to the bad character of the maker or drawer.* See further Negotl^te, 2; Notice, 1; Lost,' 2. One who buys at a voluntary sale from his debtor, crediting the consideration on a pre-existing debt,, is not a bona fide purchaser for value: he advances nothing, and, if the title fails, loses nothing.^ The highest good faith' is exacted of a person deal- ing with a trustee respecting the trust property. See Trust, 1; Fiduciary. Full faith and credit. ' ' Full Faith and Credit shall be given in each State to the public Acts, Eecords, and judicial Proceed- ings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Pro- ceedings shall be proved, and the Effect thereof. " * For the history of this prdvision, see Extradition, page 441. A record must be authenticated as prescribed by act of May 35, 1790.' The records and judicial pro- ceedings of the courts of any State (authenticated as herein prescribed) " shall have such faith and credit given to them, in every (jourt within the United States, as they have by law or usage in the courts of the State frora which they are taken." ** The judgments of the courts of the United States have invariably been recognized as upon the same 1 Cromwell v. County of Sac, 96 U. S., 61, 59 (1877), cases. Field, J.; Bowditch v. New England Life Ins. Co., 141 Mass. 396 (1886). , = Swift V, Smith, 103 U. S. 444 (1880), Strong, J. 3 McClure li. Township of Oxford, 94 U. S. 432 (1876), Waite, C. J. * Goetz V. Bank of Kansas City, 119 U. S. 660 (1887), Field, j; See, in general, 22 Cent. Law J. 437-42 (1886), cases. = Overstreet v. Manning, 67 Tex. 661 (1887); 61 id. 648. " Constitution, Art, IV, sec. 1. ' Caperton v. Ballard, 14 Wall. 241 (1871). 8 Act 26 May, 1790, o. 11; Act 27 March, 1804, o. 56: R. S. § 905. FAITH 447 FALSE footing, so far as coucerns the oblig:ation created by them, with domestic judgments of the States.' A judgment duly rendered in one State is con- clusive as to the merits of the case in evei*y other State, a But want of jurisdiction over the party, or matter, may be shown dehors, emd even in contradiction of the record.^ The Federal courts give the judgment of a State_ court the force and effect to which it is entitled in the ■ Courts of the State. No greater effect can be given to any judgment of a court of one State in another State than is given to It in the State where rendered. Any other rule would contravene the policy of the provision of the Consti- tution and laws of the tTnited States on that subject.' The evils which would result from a general system of re-examination of the judicial proceedings of other States are apparent. The f ramers of the Constitution intended to attribute to the " public acts, records, and judicial proceedings " of each of the States positive and absolute verity, so that they cannot be contra- dicted, or the truth of them denied, any more than in the State where they originated.* The duty to follow the courts of a State, upon ques- tions arising upon the construction of its own statutes, rests upon comity. . . The provision relates only to the conclusiveness of judgments as between parties and privies.' See Comity; Law, Foreign. The Federal courts, exercising their original juris- diction, take notice, without proof, of the laws of the several States; but, as no State court is charged with a knowledge of the laws of another State, in the Supreme Court, when acting under its appellate juris- diction, whatever was matter of fact in the court whose judgment is under review, continues matter of fact.' FaitMally. When a public officer gives a bond conditioned faithfully to discharge his official duties, " faithfully " implies that he has assumed the measure of responsibility laid on him by law had no bond been given. Everything is unfaithfulness which the law does not excuse.^ " Fairly and impartially," in the expression " faith- fully, fairly, and impartially," add something to the 1 Embry v. Palmer, 107 V. S. 10-11 (1882), cases. a M'Elmoyle v. Cohen, 13 Pet. 336 (1839). s Thompson v. Whitman, 18 Wall. 463-64 (1873), cases ; Pennoyer v. Nell, 95 V. S. 729 (1877); 30 Gratt. 266. * Board of Public Works v. Columbia College, 17 WaU 529 (1873); Robertson v. Piokrell, 111 U. S. 611 (1883); Chicago, &c. E. Co. v. Wiggins Ferry Co., 119 id. 622 (1887). s 3 Story, Const., 3 ed., § 1310. 'Wiggins Ferry Co. v. Chicago, &c. E. Co., 3 McCrary, 609, 613 (1883), oases; 11 F. E. 381, 384. ' Chicago, &c. E. Co. v. Wiggins Ferry Co., 119 U. S. 623 (1887). 8 State 1). Chadwiok, 10 Oreg. 468 (1881); 16 Op. Att.- GJen. 318. force of the word "faithfully," and should not be omitted from a statutory form of an oath of offiee.i A bond that one will "well, truly, firmly, and im- partially " perform the duties of an office, is not in- valid as varying from the statutory form "for the faithful performance of his duties." ^ FALCIDIAN LAW, or POBTIOTJ". In the reign of Augustus, on motion of Pub- lius Falcidius, it was enacted (40 B. C.) that a testator could not bequeath away from his heir more than three-fourths of his estate. ^ In principle, adopted in Louisiana, and perhaps elsewhere. FALL. A life estate is sometimes said to "fall into," that is, to merge with, the fee. FALSA. See Falsus. FAlLSE. Somewhat more than errone- ous, untrue, or illegal: distinctively charac- terizes a wrongful act known to involve an error or untruth.'' As, false or a false '■ — action, answer, claim, date, imprisonment, oath, swearing, testi- mony or witness, personation, pretenses, rep- resentation, return, token, signature, weights and measures, writing, qq. v. Compare Sham. Falsehood. Any untrue assertion or proposition ; a -jviHf ul act or declaration con- trary to the truth.5 Does not necessarily imply a lie or willful untruth.^- See CoMMENDATio, Simplex; Cohceal; Crimen, Falsi; Deceit; Estoppel; Falsus, In uno; Fbaod; Oath; Perjcky. Falsely. Applied to forging an instru- ment, implies that the writing is false, not genuine, fictitious, not true,-^ without re- gard to the truth or falsehood of the state- ment it contains,— the counterfeit of some- thing which is or has been genuine, which purports to be a genuine instrument when it is not such.6 See further Counterfeit; FORGEEY. Falsify. 1. To represent a fact falsely. 3. To tamper with a document by inter- lineation, ololiteration, or otherwise. See Altbbation, 3 ; Eecord. 3. To prove a thing to be false, particulai-ly an item of debit in an account. I Perry v. Thompson, 16 N. J. L. 73 (1837). ' Mayor of Hoboken v. Evans, 31 N. J. L. 343 (1865). > See Hadley, Eom. Law, HSi. 4 See People v. Gates, 13 Wend. 320-21 (1835). ' Putnam v. Osgood, 51 N. H. 307 (1871) ; Eoso. Cr. Ev. 163. ' [State V. Young, 46 N. H. 270 (1665). FALSUS 448 FAMILY Falsification. Applied to some item among debts which is wholly false or in some part erroneous. 1 See further Surcharge. FALSUS; FALSA. L. Deceptive; er- roneous; false. Crimen falsi. The offense of deceiving or falsifying. See further Crimen, Falsi. Falsa demonstratio non nocet. An erroneous designation does not impair. See further Demonstratio. Falsa grammatica non vitiatchartam. Bad grammar does not invalidate an instru- ment. See further Gbammae. Falsus in uno, falsus in omnibus. False in one (particular), false in all. Delib- erate falsehood in one matter will be imputed to related matters. If the circumstances respecting which testimony is discordant be immaterial, and of such a nature that mistakes may easily exist, and be accounted for in a manner consistent with the utmost good faith and probability, there is much reason for indulging the 'belief that the discrepancies arise from the infirmity ■of the human mind, rather than from deliberate error. But where the party speaks to a fact in respect to which he cannot be presumed liable to mistake, as in relation to the country of his birth, or his being in a vessel on a particular voyage, or living in a particular place, if the fact turn out otherwise, it is extremely difficult to exempt him from the charge of deliberate falsehood; and courts of justice, under such circum- stances, are bound upon principles of law, morality, and justice, to apply the maxim falsus in uno, faUus in omnibus.^ The maxim is applied to discredit the testimony of witnesses; it is the foundation of the old rule which excluded the testimony of infamous persons. Holds good where the pasty calling the witness is cognizant of the falsehood, or where the falsehood affects the .credibility of the witness's testimony. Never applied to misstatements which are wholly inadvertent, or at- tributable to the ordinary fluctuations of memory. Proper where the special falsity is of a nature to im- ply falsity as to the whole case; and where contra- dictions are so numerous as to show imbecility of memory. 3 He who would embezzle a ship's furniture would not hesitate to embezzle the cargo.* FAME. Report or opinion generally dif- fused; repute, reputation; public estima- tion; name. > [Bailey v. \Vestcott, 6 Phila. 537 (1868), Sharswood, J.; 2 Barb. .592; 2Edw. Ch. 23. 2 The Santissima Trinidad, 7 Wheat. 339 (1833), Story, J. »See 1 Whart. Ev. § 412; 30 F. E. 577; 18 Fla. 463; 97 Mass. 406; 63 Miss. 28; 91 Mo. 439; 14 Neb. 101; 44 N. Y. 172; 15 Wend. 603; 81 Va. 154; 3 Wis. 645. * The Boston, 1 Sumn. 356 (1833). Defame. To maliciously injure a name; to slander. Whence defamation, q. v. Good fame. Favorable reputation. Ill- fame. Evil fame or name ; ill-repute. "Hl-fame" distinctively describes n person who visits gaming houses, bawdy-houses, and other for- bidden resorts, as well as the resorts themselves. While in popular parlance the term designates bawdy- houses, with no reference to their " fame," some courts allow proof of the fact to be aided by proof of the fame.' See further Housb, Of ill-fame. Infamous. Not of good repute; incom- petent to testify by reason of conviction of crime. Whence infamy, q. v. FAMILY.^ Originally, servants; in its modern comprehensive meaning, a collective body of persons living together in one house, or within the curtilage.' In popular acceptance includes parents, children, servants — all whose domieil or home is ordinarily in the same house and under the same management and head.< In its limited sense signifies father, mother, and children; in its ordinary acceptation, all the relatives who descend from a common root ; in its most extensive scope, all the in- dividuals who live together under the au- thority of another, including even servants.* The most comprehensive definition is, a number of persons who live in one house and under one management or head." No specific number of persons is required; nor that they eat where they live, nor that they be employed in or about the house.^ Children, wife and children, blood relatives, or the members of the domestic circle; according to the con- nection.' Includes children over age, if they have no home elsewhere." Family arrangement. An arrangement between members of a family as to the dis- position of their property. - > See 1 Bish. Or. L. § 1088; 2 Greenl. Ev. § 44; 88 Conn. 467; 132 Mass. 2; 74 Me. 153; 29 Minn. 193, 195. * L. familia, household: domestics: famulus, a serv- ant. s Wilson V. Cochran, 31 Tex. 680 (1869); Eooo v. Green, 50 id. 483 (1878). < Cheshire v. Burlington, 81 Conn. 339 (1803); 51 Mich. 494. ' Galligar v. Payne, 31 La. An. 1058 (1883), Bermu- dez, C. J.: 15Eeti. 464. • Poor V. Hudson Ins. Co., 3 F. E. 488 (1880). ' Spencer v. Spencer, 11 Paige, 160 (1844), Walvrorth, Ch. See also Muir u Howell, 87 N. J. L. 39 (1883), eases; Race v. Oldridge, 90 111. 253 (1878); 3 Woods, 494; 53 Iowa, 707; 56 id. 389; 125 Mass. 377; 138 id. 334; 137 id. 56. e StUson u Gibbs, 53 Mich. 880 0884): Exemp. Law. FARE 449 FAST Family Bible. Containing entries of family inci- dents,— births, marriages, and deaths, made by a parent, since deceased, will be received in evidence. ^ See Pedigree. Family ootincil, or meeting. In Loui- siana, a meeting of the I'elatives or friends of a minor or other person incompetent to act for himself, may be held, by j\idicial appoint- ment, to advise upon the interests of such person. 2 ^ Fam.ily physician. The physician who usually attends and is consulted by the mem- bers of a family as their physician.' It is not necessary that he should invariably attend and be consulted by each and all the members of the family.* Family use. Such use as is appropriate to the individual needs of the members of a household, and to the needs of the household in its collective capacity.'' To supply water for family use in a city includes supplying city buildings, such as a 'jail, and hospitals, poorhouses, schools, and other institutions * Groceries kept by a merchant as part of liis stock are not "provisions found on hand for family use," within the meaning of an exemption law.* Head of a family. The person who con- trols, supervises or manages the affairs about a house. Where there is a husband or father, he is ordinarily the head; but there may be a head where there is no marriage relation.* Compare Householder; Pater. FAHE. See Bridge; Carrier; Ferry; Passenger; Railroad; Toli.-, 3. FAB.M.'^ 1. Provision; rent; tenure by rent. 3. Land rented ; land devoted to pur- poses of agriculture. Farm, or feorme, is an old Saxon word signifying provision. It came to be used instead of rent or ren- der, because anciently the greater part of rents were reserved in provisions — com [grain], poultry, etc.,tlll ' See 1 Whart. Ev. § 219; 1 Greenl. Ev. § 104; 53 Ga. 535; 80 Iowa, 301. ' See La. Civ. Code, Art. 305-11 ; 6 Mart. 455. s [Price v. Phoenix Ins. Co., 17 Minn. 519 (1S71); Reid V. Piedmcnt, ic. Ins. Co., 58 Mo. 434 (1874). « Spring Valley Water Works v. San Francisco, 52 C»l. 120 (1877). » State V. Conner, 73 Mo. 575 (1881). "See 17 Ala. 480; 41 Ga. 163; 00 HI. 250; 110 id. 533; 11 Iowa, 266; 48 id. 186: 5J id. 431: 53 id. 706; 20 Mo. 75; 45 id. 483; 69 id. 415; 51 N. H. 253; 9 Wend. 476; 5S. C. 493; 32 Gratt. 18. 'A. S. feorm, food, property, use: L. L. firma, a fe:st, tribute: firmus, durable. From the "fixed" rent,— Skeat. L. firmus: flrmare, to make fast Farms were at first enclosed or fortified with walls; or, the leases were made more .certain by signature,— Web- ster. (39) the use of money became more frequent. So that a farmer, flrmarius, was one who held his lands upon payment of rent or feorme; though at present, by a gradual departure from the original sense, the word " farm " signifies the very estate or lands so held upon farm or rent.' That which is held by a person who stands in the relation of a tenant to a landlord.^ An indefinite quantity of land, some of which is cultivated.' ' ' Farm " and ' ' homestead farm " are words of large import. In England, farm com- monly implies an estate leased. The word is collective, consisting of divers things gath- ered into one, as a messuage, land, meadow, pasture, wood, common, etc. In the United States, it is a parcel of land used, occupied, managed, and controlled by one proprietor.* See Crop. "To farm," in a lease bf mineral lands, means to bring the minerals up to light tor purposes of com- merce, and make them profitable to lessor and lessee," See Agriodltuke; Exemption; Implement; Plan- tation; Tool. Fee-farm. To let lands to farm in fee- simple, instead of for life or years ; also, the land itself , so held on perpetual rent. Fee-farm rent. A rentcharge issuing out of an es- tate in fee." Compare, Feud, To feu. To farm let. A technical expression in a lease creating a term for years. Usual, but not essential.' To farm out. To rent for a term of years ; also, to give over something to another for a share of the income or profit : as, to farm out revenues, or taxes. FARO. See Game, 3. FASHIONS. See Perishable. FAST. 1. As descriptive of days, see Holiday. 3. Referring to an estate — real, of the nat- ure of realty.^ 3. Moving more than a specified number of miles, as eight, per hour." 1 2 Bl. Com. 318, 57. » [Lane v. Stanhope, 6 T. R. 353 (1795), Kenyon, C. J. ; 4 Best & S., Q. B. 931. s Commonwealth v. Carmatt, 2 Binn. *23S (1810), Tilghman, C. J. > Aldrich V. Gaskill, 10 Cush. 158 (1852), Shaw, q. J.; Black V. Hill, 32 Ohio St. 318 (1877): Shep. Touch. 93. " [Price V. Nicholas, 4 Hughes, 619 (1878). «2 Bl. Com. 43; De Peyster v. Michael, 6 N. Y. 497 (1852); 2 Washb. R. P., 4 ed., 274. ' 2 Bl. Com. 317. 8 See 6 Johns. 185; 9 N. Y. 502. •Indianapolis, &c. E. Co. v. Peyton, 76 111. 310 (1875). FAT CATTLE 450 FEDERALIST 4. In Georgia, describes a bill of excep- tions by -which the proceedings in an injunc- tion case, or other case in equity of an ex- traordinary nature, may be reviewed by the supreme court without the delay incident to ordinary cases.' FAT CATTLE. See Pebishable ; Peo- VISIONS. FATHER. See Ancestor; Bastard; Child ; Consanguinity ; Descent ; Mother ; Name, 1 ; Parent. Compare Pater ; Partus. FAUCES TEBRiE. L. The jaws of the land : projecting headlands inclosing an arm of the sea.^ See Sea. FATTLT. 1. An improper act due to ignorance, negligence or willfulness,' qq. v. Compare Culpa ; Delictum. In averments in pleadings, lias substantially the same meaning as "negligence."* Attributed to a carrier, may mean actual negli- gence.* 2. Defect; blemish. With all faults. In the absende of fraud in the vendor, a sale "with all faults" 1 covers such defects as are not inconsistent with the identity of the goods as those de- scribed. Parol evidence is admissible to'sbicwtlie meaning in trade." FAVOR. See CsALLENaE, 3 ; Prefer, 3 ; -Prejudice.. FEALTY.' The oath or obligation of a vassal, under the feudal system, to be faith- "f ul to his lord and defend him against all enemies. 8 The original of the oath of allegiance, g. u. See also Fedd. FEAR. See Affray; Defense, 1; Du- ' RESS ; Influence ; Quia Timet ; Robbery. .FEASANCE.^ A doing; a performing or performance. Gratuitous feasance. A voluntary serv- ice — rendered or undertaken. The essence of bailment by mandate, q. v. 1 See SeweU v. Edmonston, 66 Ga. 3B3 (1881). 2 6 Wheat. 106-; 1 Story, 259; 1 Kent, 367. 3 See 5 Ct. CI. 489. * Rogers v. Overton, 87 Ind. 411 (1883). ' School District v. Boston, &c. E. Co., 103 Mass. 556 " Whitney v. Boardman, 118 Mass. 347-48 (1876), cases ; 1 Pars, Contr. 690. ' L. ftdelitas! fides, confidence, trust, faith, e 1 Bl. Com. 367; 2 id. 45, 53; 44 Pa. 499. • F. /aire; L. facere, to make, do. Malfeasance. The doing of an act wholly wrongful and unlawful. Misfeasance. A default in not doing a lawful act in the proper manner — omitting to do it as it should be done. Non-feasance. Any omission to perform a required duty at all, or a total neglect of duty.i Misfeasance may amount to non-feasance; as, in cases of gross negligence.^ See Trustee, SeeDAMAGfE, Feasant; Defeasance; Tort, 2, Feasor, FEBRUARY. See Holiday; Year, Leap-year. FEDERAL.3 1. Pertaining to a league or compact between independent sovereign- ties. 3. Composed of states which retain only a portion of their original sovereignty ; relating to the constitution, treaties, or laws, or the power or government of the organiza- tion thereby foi-med. Appropriate to our General Government, the government of the United States, considr ' ered as a Union of States or local govern- ments. The word "National" recognizes the State governments and the government of the Union as distinct systems.* In the second sense are the common ex- pressions Federal or federal — amendments. Constitution, courts, elections, decisions, judges, laws and statutes, question, govern- ment, officer. In these phrases the word of contrast is "State:" as. State constithitions, courts, laws, etc. See those titles. FEDERALIST. A publication issued from 1787 to 1789, and consisting of papers, written by Hamilton, Madison, and Jay, in- tended to prepare the people for accepting the Constitution. Of its eighty-flve numbers. Jay wrote five, Madison twenty-nine, and Hamilton fifty-one. " They form a work of enduring interest, because they are the earli- est commentary on the new experiment of mankind in establishing a republican form of government for a country of boundless dimensions." * 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 entitles it to high rank ; and the part which two of its authors [Madison, the chief autl^or, and Hamilton] performed in framing the Constitution, put it very much in their power to explain the views with which it was framed. These essays, published while the 1 Coite V. Lynes, 33 Conn, 114-15 (1865), Butler, J, 2 Story, Agency, § 318; 1 Woolw, 374-75; 3 Pet, 233, 3 L, faedus, a league, treaty, compact. < See United States v. Cruikshank, 98 U. S, 643 (1875), » 2 Bancroft, Formation Const, 336. FEE 451 FEE Constitution was before the nation for adoption or re- jection, and written in answer to objections founded upon the extent of its powers, and on its diminution of State sovereignty, are entitled to more consideration where they franltly slv-ow that the power objected to is given, and defead it.' PEE. 1. (1) In feudal law, an allotment of land in consideration of military service ; land held of a superior, on condition of ren- dering him service, the ultimate property- remaining in him. Opposed to a?;odium. See Allodial. The districts of land allotted by the conquering gen- eral to his superior officers, and by them dealt out again in smaller parcels, were called feoda, feuds, flefs, or fees — a conditional stipend or reward." See, at length. Feud. " Fee," at its origin, related to the quality of the es- tate. It now denotes tho quantity of interest the owner ha.s in land.^ (2) An estate of inheritance — the highest and most extensive interest a man can have in a feud. Fee-simple. An absolute inheritance, clear of any condition, limitation or restric- tion to particular heirs, but descendible to the heirs general, whether male or female, lineal or collateral.* "Fee," with or without the adjunct "simple," is used in contradistinction to the fee-conditional of the common law, and to fee-tail created by statute. Tenant in fee-simple, or tenant in fee, is he that has lands, tenements, or heredita- ments, to hold to him and his heirs forever — generally, absolutely and simply; without mentioning what heirs, but referring that to his own pleasure or to the disposition of the law.* The term " fee '^' alone implies an inheritable estate. " Simple " or " absolute " adds nothing to the compre- hensiveness of the original term. In modem estates, fee, fee-simple, and fee-simple absolute are synony- mous.' "An estate in fee-simple is where a man has an estate in land or tenements to him and his heirs forever," Limitation of the power of sale for a limited period, as for five years, is not inconsistent with a fee-simple estate.' ' Cohens v. Virginia, 6 Wheat. 418 (1881), Marshall, Chief Justice. ' 2 Bl. Com. 45, 104-^. 8 Wendell v. CrandaU, 1 N. Y. 495 (1843); Taul v. Campbell, 7 Yerg. 326 (1835). igBl. Cora. 106, 105. 6 JecliB V. Taussig, 45 Mo. 169 (1869). « Libby v. Clark, 118 U. S. 255 (1886), Miller, J., quot- ing 4 Com. Dig., Estates, 1. Called a "fee-simple" because it signifies a pure inheritance, clear of any qualifliation or condition. It is an estate of perpetuity, and confers an unlimited power of alienation.' That "heirs" or other appropriate word of per- petuity in a deed conveying land is essential to pass a fee simple e.itate is not a rule admitting of no excep- tion. When, for example, a mortgage evidences an intention to pass the entire estate as security, and ex- press provisions cannot otherwise be carried into effect, the instrument will pass such an estate, al- though no formal word of perpetuity is employed.'' A " fee limited " is an estate of inheritance clogged or confined with a condition or qualification of some sort. This may be one of the following estates: Base, qualified, or detepninable fee. Has a qualification subjoined thereto, and terminates whenever the qualification is at an end.' As, a grant " to A and his heirs, tenants of the manor of Dale, " that is, as long as they continue tenants. This estate is a fee, because it may endur^ forever, yet the duration depends upon a circumstance, and this de- bases the purity of the donation.* Conditional fee. At common law, a fee restrained to particular heirs, exclusive of others; as, to the heirs "of a man's body," by which only his lineal descendants were admitted, in exclusion of collateral heirs ; or to the " heirs-male of his body," in exclusion of collaterals, and of lineal females. Called " conditional " from the condition, expressed or implied in the donation, that if the donee died with- out such particular heirs, the land should revert to the owner. Such fees were strictly agreeable to the nature of feuds, when they first ceased to be mere estates for life, and had not yet become absolute estates in fee- simple. . . As soon as the grantee had issue bom, his estate was supposed to become absolute; at least to enable him to alien the land, and thereby bar not only his own issue, but also the donor of his reversion; to subject the land to forfeiture for treason; and to charge the land with incumbrances, so as to bind the issue. If the tenant did not in fact alien the land, the course of descent was not altered by fulfillment of the condition; the land, by the terms of the donation, could descend to none but the heirs "of his body," and, therefore, in default of them, reverted to the donor. Hence, to subject the land to the ordinary course of descent, the donees of these conditional fee- simples aliened as soon as issue was bora, and after- ward repurchased the lands, which gave them a fee- simple absolute that would descend to the heirs in 1 4 Kent, 5; 1 Barb 675; 11 Wend. 277; 12 Johns. 177; 62 Me. 261 ; 54 id. 426; 2 Greg. 32; 42 Vt. 690; 83 N. J. E. 308. s Brown v. National Bank, 44 Ohio St. 273 (1886), cases, Owen, C. J. 3 [2 Bl. Com. 109. See also 3 Law Quar. Eev. 799 (1887); 5 Dill. 411; 94 Ul. 93: 19 Allen, 168; 1 Whart. 427; 1 Barb. 575; 11 id. 28; 35 Wis. 36. FEE 453 F'EE general, according to the course of tUe common law. The courts favored " this subtle finesse of construc- tion," to shorten the duration of these conditional es- tates. But the nobility, to perpetuate possessions in their own families, procured the enactment of the statute rfe donis conditionixUbus, 13 Edw. I (128fj), c. 1. This statute revived, in some sort, the ancient feudal restraints, by enacting that the will of the donor should be observed, and that the tenements should go to the issue, if any; if none, should revert to the donor.^ See further Donum, De donls. A "fee-simple " is the largest estate a man can have in lands, being an absolute estate in perpetuity. The essential matter is that such an estate is so brought into existence that it viay continue forever. Where an estate is granted subject to some condition in the instrument creating it, or to some condition implied by law to be thereafter performed^ it is called a " con- ditional fee." A "determinable fee" embraces all fees which are determined by some act or event ex- pressed, in their limitation, to circumscribe their con- tinuance, or inferred by law as bounding their extent. In its broader sense, a determinable fee embraces what is known as a conditional fee. When it becomes an established fact that the event which may terminate, the estate will ne^er occur, a determinable fee en- larges into a fee-simple absolute. So, when the con- dition upon which a conditional fee rests has been performed,the estate becomes an absolute fee.^ Fee-tail. Upon the construction of the statute of de donis, the judges held that the donee had no longer a conditional fee-simple, but a particular estate, which they denom- inated a "fee-tail;'' and the donor had the ultimate fee-simple, expectant on the failure of issue; i. e., the reversion. s The term " fee-tail " was borrowed from the feud- ists, among whom it signiiied any mutilated or trun- cated inheritance, from which the* heirs general were " cut " off; being froma verb tailare, to cut.^ Estates tail general. Where lands and tenements are given to one and the "heirs of his body begotten." Estate tail-special. Where the gift is restricted to certain heirs of the donee's body ; as, to the " heirs of his body, to be begotten by his present wife." An estate in general or special tail given to a man and the heirs- male of his body begotten is an " estate , in tail-male general; " given to a man and the heirs female of his body begotten, is an "estate tail- female." ' Estate tail after possibility of issue ex- tinct. Where one is tenant in special tail, and a person, from whose body the issue was '2 Bl. Com. 110-11; Pierson v. Lane, 70 Iowa, 62 (1882); 3 Kent, 11. 2 Fletcher v. Fletcher, 88 Ind. 420 (1832), Niblack, J. 3 2 Bl. Com. 112; 11 Wend. 278. «8B1. Com. 113-14. to spring, dies without issue, or, having left issue, that issue becomes extinct.' As the word " heirs " is necessary to create a fee, " body," or some other word of procreation, is neces- sary to make a fee-tail. " " Issue forever," and "posterity," have been held not less extensive than "heirs of the body." "Oflil- dren," or equivalent words, will not create the estate. Where such estates are forbidden, estates which for- merly would have been deemed such are now held to be estates in fee-simple, and words will begiven this construction if possible." Growth of the estate tail: (1) Permission was granted the heirs of the tenant to succeed him as their deceased ancestor. (2) " Heirs " acquired a breadth of meaning sufficient to admit collaterals. (3) Collater- als were excluded by limiting the estate to a man and the "heirs of his body." (4) This limitation was con- strued to be a conditional gift — the condition being "issue; " and, a child being born, the estate became a fee-simple, alienable, etc. (5) The statute de donis created the estate tail as it at present exists. See FEun; Recovery, Common; Shelley's 'Case; Tail. See also Abeyance; Demesne; Descent; Es- cheat; Farm, Fee-farm; Felony; Heir. 2. Compensation for services,* paid to an attorney, an officer of the law, a physician, or an expert. A sum of money paid to a person for a service done by him to another.^ A recompense allowed by law to an officer for his labor and trouble." Contingent fee. Compensation payable upon an event more or less uncertain, as, upon success in a lawsuit. An attpmey may contract with his client for a con- tingeijt fee, but the law will see that the transaction is fair, and that no undue advantage has been taken of the necessities or the ignorance of the client.' County commissioners may employ counsel to col- lect a claim due the county, for a reasonable compen- sation only.' An agreement to pay for services of a legitimate character in prosecuting a claim against the United States, in an executive department, violates neither law nor public policy. 'When the amount of compensa- tion is not agi'eed upon, evidence of what is ordinarily charged in cases of the same character is admissible. » 1 2 Bl. Com. 124. 2 2 Bl. Com. 114. = Brann i'. Elzey, 83 Ky. 442-43 (1883), Holt, J. ■1 3 Bl. Com. 28. 5 Bloor V. Huston, 28 E. L. & E. 360 (1854). Maule, J. « 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 Sneed, 162 (1854). ' County of Chester v. Barber, 97 Pa. 455, 463 (1881), cases. s Stanton v. Embrey, 93 U. S. 557 (1876), cases; Taylor V. Bemiss, 110 id. 45 (1883). FEED 453 FELONY But a contract for lobbying services stands upon a different footing.* Docket fee. A fee payable to counsel, as part of the costs of record, usually for the use of the successful party. In Federal practice, " docket fees " in civil cases are a lump sum substituted for the small " fees " formerly allowed attorneys and solicitors, chargeable to and collectible from their clients. This sum is only tax- able as costs against the losing party " in cases where by law costs are recoverable in favor of the prevailing party." "^ In a law case where there is a final trial before a jmy, the attorney's fee of twenty dollars, allowed by Hev. St. §§ 803-^4, is always to be taxed; and it is for the court to determine who is the prevailing party.^ A. solicitor for an intervener in an equity case who prevails is not entitled to the fee ; the termination not being such " a final hearing in equity " as is meant by the statute. A special master in .chancery is not a referee within the statute. < See Marshat,, 1 (2); Pre- vail. At common law, an attorney's fee was not recover- abla by an action. The reason was, fees were orig- inally given as a gratuity, an honorarium^ expressive of gratitude. The rule is traceable to the relation be- tween patron and client in ancient Rome: the patron practiced for honor and influence. See Honorarium. Fee-bill. A schedule prescribing the charges to be paid by litigants for the various orders, notices, pleadings, writs, depositions, heai'ings, transcriptions, etc., had or pro- cured in the conduct of causes. Some of these charges are payable in advance; others abide (g. t'.)the event of the suit. The schedule is prepared by or in pursuance of legislative enact- ment, or by order of the particular court. See Folio. The term is also used to designate fhe max- imum charges the members of a bar associa- tion may make. See Attorney; Costs; Expert; Retainer; Salary. PEED. Referring to cattle and hogs, may mean to make fit for market by feeding.* FEEDER. See Eailroad. FEIGNED. See Issue, 2. FELLOW. See Partner ; Servant. FELO DE SE. L. 1. A felon (g. v.) of himself. He that deliberately puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is 1 Trist V. Child, 81 Wall. 450 (1874). 2 Goodyear v. Sawyer, 17 F. R. 3 (1883): R. S. §§ 823, 824, 983. See generally Coy v. Jerkins, 13 F. R; 111, 113-16 (1882), cases; Re Rand, 18 id. 99 (1883).- 3 Williams v. Mon-ison, 33 F. R. 682 (1887), Thayer, J. < Central Trust Co. v. Wabash, &c. R. Co., 33 F. R. 684 (1887), Thayer, .T. s Brockway v. Rowley, 66 Dl. 102 (1872). his own death; a self-murderer.i See further Suicide. 2. A destroyer of itself; a thing that de- feats its own purpose. In this category are: a construction of a proclama- tion," or instrument," in effect nugatory of the purpo83 thereof; a bill for peace which makes litigation;* a decree which, instead of removing a cloud from a title, places another upon it; unauthorized action by a court. ^ FELONY.* An offense which, at com- mon law, occasioned a total forfeiture of lands or goods, or both, and to which capital or other punishment could be added, accord- ing to the degree of guilt. . . In general acceptation, comprises every species of crime which occasioned at common law the forfeit- ure of lands and goods.' The term is incapable of definition, and descriptive of no oilense. It conveys no distinct idea. Its origin has puzzled law-writers. It comprehended two de- scriptions of punishment, the one capital, with the forfeiture of lands and chattels; the other not capi- tal, with forfeiture of chattels only, and burning in the hand, to which imprisonment could be added.* A vague term, definable by the statutes and decis- ions of each State for itself." In general, includes capital and State's prison offenses.^" The laws of the United States contain no definition. ' ' Tested by the common law, the term has no deter- minate meaning, and can apply to no case in this country except treason, where limited forfeiture of estate is allowed. But, technically, that is a crime of a higher grade than felony, although it imports also felony. If it be conceded that capital punishment im- ports a felony, there can be no felonies, at common law, except capital crimes. But that test is untech- nical and founded in error. The notion of " moral degradation " by confinement in a penitentiary has grown into a general understanding that that consti- tutes any offense a felony. This modern idea has come into general use by force of State legislation on the subject.'" > 4 Bl. Com. 189; 2 id. 499; 3 C. B. 461. 2 2 Black, 678. '9 Mo. 152; 36 Pa. 136. < 18 How. 266. » 30 Minn. 204. ' 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. 257; 99 id. 216. • " Lynch f. Commonwealth, 88 Pa. 192 (1878), Agnew, Chief Justice. » Bruguier v. United States, 1 Dak. 7 (1867). >» See State v. Felch, 68 N. H. 3 (1876), cases; 20 Gal. 117; 4H Me. 218; 94 lU. BOl ; 55 Ala. 341 ; 4 Ohio St. 542. 1 1 See R. S. § 4090. 12 United States v. Coppersmith, 3 Flip. 551-68 (1880), FEMALE 454 FENCE From an early day, and as a necessity, the' State legislatures have passed laws defining and enumerating felonies as those crimes punishable by confinement in the peniten- tiary ; and such confinement has come to be the test in nearly every State, i The term as used in acts of Congress is not sus- ceptible of definition.^ As a rule, the grade of the offense is determined by the nature of the punishment prescribed. A crime which might be punished by imprisonment in a State's prison was a felony, in New York, prior to the adop- tion of the Penal Codel'^ ^ Offenses made felonies by statute are called statutory felonies, in contradistinc- tion to common-law felonies — murder, man- slaughter, rape, arson, burglary, theft, and robbery. The common -law procedure in the prosecution and punishment, without forfeiture, continues as the char- acteristic by which felony is distinguished from trea- son on the one hand and from misdemeanor on the other. Felon. One who has committed a felony. Felonious; feloniously. Generally, so indis- pensable in an indictment for felony, that no .other word will be recognized as equivalent.^ See Assault; Crime; Damages; Homicide; Infamy; Misprision. FEMALE. See Feme ; Gsndee ; Venter ; Woman. FEME; or FEMME. F. A woman; a wife. Feme is the older form: L. femella^ femina, a young woman. Plural, femes, femmes. Feme covert, or feine.^overt. A mar- ried woman. By marriage, husband and wife are one person in law. Under his protection and ''cover," she does everything; and is therefore called in law -French a feme-covert; while her condition is called ''covert- ure," * q. V. Feme sole, or feme-sole. A single woman: one who has never been married, who has been judicially separated from her husband, or whose rnarriage has been dis- solved by divorce from, or by the death of, the husband. cases, Hammond, J. See United States v. Staats, 8 How. 44^45 (1850); United States v. Watkids, 7 Saw. 90-94 (1881), cases; People v. Lyon, 99 N. Y. 810 (1885). ' United States v. Coppersmith, ante. 2 People V, Lyon, 99 N. Y. 216 (1885). ssee Eeedti. State, 14 Tex. Ap. 664 (1888); State v. Yates, 31 W. Va. 763 (1833); 64 N. C. 873; 34 N. H. 510; 8 Utah, 457. ■"1 Bl. Com. 442; 8 id. 392, 433,497; 32 Barb. 258; 63 lU. 162; 21 How. 589. Feme-sole trader. A married woman who trades on her own account as if unmarried. Originated in a custom of London. Recognized in several States by statutes which enable the wives of mariners at sea, and wives whose husbands from any cause, as, drunkenness or profligacy, desert them, or refuse or neglect to provide for them. A judicial decree is not a prerequisite. The stat- utes being designed to suspend the marital rights of the husband in consequence of the acts enumerated, and to relieve the wife from her mai-ital obligations, the establishment of those acts is all that is required of her. The statutes are remedial, and to be inter- preted benignly. 1 Compare Earnings, Separate. Her privileges extend no further than to contracts connected with her trade. ^ A married woman who, in matters of property, is independent of her husband, is a feme sole as to such property, and may deal with it as if she were unmar- ried.^^ See Husband. FENCE. A line of obstacle, composed of any material that will present the desired ob- struction.* Partition fence. As contemplated in a statute, a fence on the line between two pro- prietors, where there is no road, alley, or other thing which would prevent the erec- tion of such a fence. 5 See Wall. Fences are regulated by local laws. Boundaiy fences are to be built on the line, and, when made as intended by law, . the cost is "borne equally between the parties. A partition fence is presumed to be the common property of both owners.^ In some States, steam railway companies are re- quired by statute to protect their tracks by fences. Failure to comply with its contract to fence renders a company liable fqr injuries to children and animals, consequent thereon.' A statute requiring a railroad to maintain fences and cattle-guards on the sides of its road,, and, if it does not, making it liable in double the amount of 1 Black V. Tricker, 59 Pa. 13, 16 (1868), Thompson, C. J. ; 2 S. & E. 189; 6 W. & S. 846; 14 W. N. C. 191. sMoDowall V. Wood, 2 N. & Mo. 'aiS (S. C, 1820); Newbiggin v. Pillans, 3 Bay, 165 (S. C, 1798); ib. 113. » Taylor v. Meads, 34 L. J. Ch. 207 (1865); 21 Cent. Law J. 47-49 (1885), cases; 24 Am. Law Reg. 353-68, 659- 62 (1885), cases; 1 Story, Eq. §243; 3 Kent, 150. < [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 Mo. 462 (1886). » See 15 Conn. 526; BO Iowa, 237^ 59 id. 38; 2 Me. 72; 11 Mass. 294; 2 Mete, Mass., 180; 28 Mo. 6B6; 12 Mo. Ap. 5,58; 3 Wend. 142; 82 Pa. 65; 2 Greenl. Ev. § 617; 2 Washb. E. P. 79; 3 Kent, 436. ' See Hayes v. Michigan Central E. Co., Ill U. S. 228" (1834); 50 Conn. 128; 62 Ga. 679; 68 Ind. 297; 22 Kan. 359; 63 Me. 308: 24 Minn. 394; 25 id. 328; 31 Miss. 157; 46 id. 573; 09 Mo. 91, 215; 6 Mo. Ap. 397; 18 Hun, 108; 15 Pa. 290; 1 Thomp. Neg. 501, oases. FEOD 455 FERRY damages occasioned thereby to animals, does not de- prive it of its property witliout due process of law or deny it the equal protection of the laws. The addi- tional damages are by way of punishment for negli- gence; and the sufferer may receive them, rather than the State.' In California, fences erected upon the line between the roadway of a railroad and the land of coterminous properties are not part of the "roadway" to be in- cluded by the State board in its valu^,tion of the prop- erty of the corporation, but are ''improvements" assessable by the local authorities of the proper county. 3 At common law, the owner of land was not bound to fence it. In Massachusetts, prior to the statute of 1841, u. 125, there was no provision for fences along railroads, and the common law as to the owners and occupiers of adjoining lands applied. Neither had a right to trespass, himself or by his servants or cattle, on the laud of the other, and neither could require the other to prevent trespasses by maintaining a fence.' ' Constructing a barbed-wire fence along a highway is not in itself an actionable wrong, in the absence of statutory inhibition, although animals may attempt to enter the enclosure. If the land owner keeps in good order such fences as are usually built, there is no liability for injury to animals. He is not bound to use boards in constructing a wire fence. But he must not let a fence of any kind become a trap for passing ani- mals, which may be allured from the road to the in- adequately fenced enclosure, by the presence of other animals or by the sight of pasture.* See Appendage; Close, 3; Enclosuke; Obstruct, 1; TlUBER. FEOD. See Feud. FEOITMEWT. 1. The gift of a feud ; infeudation. See Feud. Enfeoff. To give a feud. reoffor. The grantor of a feud. Feoffee. The giantee of a feud. 2. The gift of any corporeal hereditament," by delivery of possession upon or within view of the land.* The most ancient method of conveyance. The apt- est word was " do " or "dedi" I give or have given. As the personal abilities of the feoffee were the in- ducement, his estate was confined to his person, and subsisted for life, By a feoffment, later, a fee-simple was frequently created. With livery of seisin (q. v.), the feoffee had an estate at will.' At present, land is transferred only by deed or will. ' Missouri Pacific R. Co. v. Humes, 115 U. S.'512 (1885). 'Santa Clara County v. Southern Pacific E. Co., 118 U. S. 414 (1886). 5 Boston, &c. R. Co. v. Briggs, 133 Mass. 36 (1882), cases. < Sisk V. Crump, 112 Ind. 504 (1887); also Haughey v. Hart, 62 Iowa, 9b (1683). In general, 22 Cent. Law J. 196 (1886), cases. = 2 Bl. Com. 310. •3N. H. 260. FERiE IfATUR^. See Animal. FERMENTED. See Liquor. FEROCIOUS. See Animal. FERRY.' A place where persons and things are taken across a stream or body of water, in boats, for hire.^ May refer to the water traversed or to the landing- place or places." Ferry frahcMse. A right conferred to land at a particular point upon a stream, and to secure toll for the transportation of pas- sengers and property from that point across the stream.* The essential element is the exclusive right to transport persons, their horses, vehicles, and personal goods, from one shore to the other, over the interven- ing water, for the toU.^ Ferriage. The price or fare to be paid for crossing a ferry ; also, the transportation itself." Ferryman. At common law, one who had the exclusive right of transporting passengers over rivers or other water-coui'ses, for hire, at an established rate.' The grant of a ferry franchise in its nature implies the taking of toll. The only ferries known in some places, as in Massachusetts, are toll ferries.^ The ordinary feriy is a substitute for the ordinary bridge, for the accommodation of the public gener- ally. The railroad ferry is a substitute for the rail- road bridge, being the continuation of the railroad tracks across a stream of water; it is not a grant of an exclusive ferry franchise.* One may lawfully transport his own goods in his own boat where another has an exclusive right of ferry.'" A State may impose a license fee, directly or through a rhunicipal corporation, upon the ferry- ' A. S. ferian, to convey across, carry, go. ' [Akin V. Western K. Co., 30 Barb. 310 (1867); Same V. Same, 20 N. T. 376 (1859); Newton v. Cubitt, IS C. B. *58 (1802); 14 Bradw. 381. ' Schuylkill Bridge Co. v. Frailey, 13 S. & B. *424 (1825); State v. Hudson, S3 N. J. L. 209 (1851). * [Mississippi Bridge Co. v. Lonergan, 91 111. 518 (1879); aa id. 369; 2 GUm. 169. = [Broadnax v. Baker, 94 N. C. 078 (1880), cases. Smith, C. J. ; s. 0. 55 Am. R. 633. Approved, Mayor of New York V. Starin, 106 N. Y. 11 (1387). • [People V. San Francisco, &c. E. Co., 35 Gal. 619 (1868). ' Clarke v. State, 3 McCord, 48 (S. C, 1822). « Attorney-General v. Boston, 123 Mass. 468 (1877), cases. » Mayor of New Y'ork v. New England Transfer Co., 14 Blatch. 168 (1877), cases. '"Alexandria, &o. Ferry Co. v. Wisch, 73 Mo. 655 (1881); See also 3 Bl. Com. 219; 2 id. 37; 5 Cal. 470; 20 Geo. 529; 42 Me. 20; 11 Mich. 63; 58 Miss. 796; 20 N. Y. 370; 77 Va. 218-19; 3 Dill. 332. FEU 456 FEUDf keepers living in the State, for boats whicli they use in conveying, from a landing in the State, passengers and goods across a navigable river to a landing in an- other State, i Any person who invades the rights of the owner of a ferry franchise by running a ferry himself, is liable for any damages he causes the owner, and may be restrained from a continuance. But, probably, the courts would not restrain the operation of a ferry de- manded by public convenience simply because the rightful owner of the franchise neglects or refuses to use it. Such franchise does not include the carrying of merchandise without the presence of the owners; this is the business of a common carrier, and may be done without interference with such franchise. The grant of a fi'anchise may be perpetual.* See Bbidse; Carrier, Common; Commerce; Fran- chise, 1; License, 3; NnisANCE; Toll, 2; Tonnage; Vehicle. FEU. See Feud. FEUD .3 Land held of a superior, on con- dition of rendering him service. Opposed to allodium, the absolute or ultimate property, which continued to reside in the superior.* See Allodial. A tract of land held by a voluntary and gratuitous donation, on condition of fidelity and certain services.5 The constitution of feuds originated in the military policy of the Celtic nations, a policy which was con- tinued in their acquisitions after the tall of the Eoman empire. To secure those acquisitions, large districts of land were allotted by the conquering general to his superior officers, and by them, in smaller parcels, to the inferior ofleers and most deserving soldiers. These allotments were called feods, feoda, feoffs, feus, fiefs, fieus, and /ees — conditional stipends or re- wards. The condition annexed was, that the posses- sor should do service faithfully, at home and in war, to him by whom they were given; for which purpose he took the oath of fealty (g. v.), and for a breach of this condition and oath, by not performing the stipu- lated service or by deserting the lord in battle, the lands were to revert to him who granted them.^ Allotments, thus acquired, mutually engaged such as accepted them to defend them; and, as they all sprang from the same right of conquest, no part could subsist independently of the whole; wherefore, all givers as well as all receivers were mutually bound to defend each other's possessions. But as that could not be done effectually in a tumultuous, irregular way, government, and, to that purpose, subordination, was ' Wiggins Ferry Co. v. Bast St. Louis, 107 U. S. 365, 370 (1S8S), Woods, J. 2 Mayor of New York v. Starin,, 103 N. Y. 1, 9 (1887), cases. s L. fides, faith, and Tent, ead, odh, or od, property, estate in land,— or, meft, cattle, property; i. e., land held on pecuniary consideration: A. S. feah, cattle. < [3 Bl. Com. 105. s Wallace v. Harmstad, 44 Pa. 499 (1363). » 2 Bl. Com. 45-46. necessary. Every receiver of lands was therefore bound, when called upon by his benefactor, or the im- mediate lord of his feud or tee, to do all in his power to defend him. Such benefactor or lord was likewise - subordinate to and under .command of his immediate benefactor or superior; and so upward to the prince or general himself; and the several lords were also reciprocally bound, in their respective gradations, to protect the possessions they had given. ^ Feudal; feodal. Relating to a feud or feuds : as, feudal services or tenures, the feudal law or system. Feudalism. The feudal system ; the prin- ciples and constitution of feuds. Feudalize. To reduce to feudal tenure. Feudary. Held by or concerning feudal tenure : also, the tenant of a feud. Feudatory; feudatary. A feudal pro- prietor, or person who received a feud. Feudist. One versed in feudal law. Feudal system. A system of militai-y tenure of landed property, adopted by the general assembly of the principal landholders of the realm (Brittany) for self-protection. Prevailed froni the ninth to the thirteenth centu- ries, attaining maturity under the Conqueror — 1066- 1087. Something similar had been in use among the Saxons. The fundamental maxim was, all lands were originally granted b.v the sovereign, and are, therefore, held mediately or immaiiately of the crown. The grantor was the proprietor or lord; the king was "lord paramount;" his immediate tenants were ''lords mesne" — tenantsin capite, in chief; their ten- ants were " tenants paravail : " they made profit (avail) out of the land. At first, grants were held at the will of the lord ; then, for a certain period; next, by the grantee and one or more sons; about 1000 A. D., they became hereditary. Ceremonies observed were: presentation of the prospective tenant ; the grant — dedi et concessi, I have given and granted; corporal investiture — putting a robe on the tenant, before witnesses; homage or man- hood — professing to "become his (the lord's) man . . . of life, and limb and earthly honor." The service to be rendered was called the rent. See Delivery, 1. The grant was made upon the personal ability of the grantee to serve in war, and do suit at court. Hence, he could not alien, nor exchange, nor devise, nor encumber, without consent of the lord. For those reasons, also, women and monks were never made grantees. The grantor assumed to protect the grantee in his . enjoyment of the land, and was to supply other land of equal value if the tenant was deprived of the grant. The services were: free — such as a freeman or sol- dier might perform; or base — fit for one of servile rank. In quantity and time they were also cei'tain or uncertain. 1 2 Bl. Com. 45-46. FEUD 457 FICTION The tenure was: 1. FranTc-teniire: on consideration of military service and homag^. When such service was free but uncertain, the teniu:e was termed "knight-service," or "tenure in chivalry" — the most honorable of all. When the servicts was both free and certain, as fealty, or fealty and rent, the tenure was termed ■' free-socage." 2. Villeinage; "pure," when the service was base and uncertain; and " privileged," when the service was base but certain. The last spe- cies was called "villain socage." See Socage. Inseparably incident to tenure in chivalry were: aids, relief, primer seisin, wardship, marriage, fines for alienation, and escheat, qq. v. Under the great survey, made in 1086, the realm was divided into sixty thousand knight's fees, correspond- ing to the number of men in the army. Personal service was gradually changed into pecun- iary assessments; and, finally, by statute of 12 Chas. II (1661), military tenures were abolished.' In the United States, while lands are generally de- clared to be allodial, feudal principles, adopted as part of the common law of England, continue to be recognized. The feudal system, to perpetuate estates in the same family, favored the heir-at-law. Hence, English courts have placed the narrowest construction on the words of wills.* The Eevolution threw off the dominion of the mother country, and established the independent sov- ereignty of the colonies or States. In Pennsylvania, for example, an act was passed, November 87, 1779, for vesting the estates of the late proprietaries in the Commonwealth. The manors and lands which had been surveyed for them were excepted, and a pe- cimiary compensation provided. The " province " had been a fief, held immediately of theprown. The Eev- olution, and subsequent legislation, emancipated the soil from the chief characteristic of the feudal sys- tem. After this change, the proprietaries held their lands as other citizens — under the Commonwealth, by a title purely allodial. Lands are now held medi- ately or immediately of the State, but by titles cleared of the rubbish of the dark ages, excepting only the feudal names of things no longer feudal. . . The State sold her lands for the best prioe she could get, and conferred upon the purchasers the same absolute estate she held, excepting the fl^th part of any gold or silver found, and six acres in the hundred for roads; and these have been reserved, as everything else has been granted, by contract. Her patents ac- knowledge a, pecuniary consideration, and stipulate for no fealty, escheat, rent-service, or other feudal in- cident. The State is the lord paramount as to no man's land. When any of it is wanted for public pur- poses, the State, in virtue of her political sovereignty, takes it, but she«ompels herself, or those who claim under her, to make full compensation to the owner.' ■See 2 Bl. Com. 43-102; 4 id. 418-39; 1 id. 410; 1 Wasiib. E. P. 18. ' Bosley v. Bosley's Executrix, 14 How. 307 (1852). » Wallace t). Harmstad, 44 Pa. SOO (1863), Woodward, J. ; Hubley v. Vanhorne, 7 S. & E. 188 (1821), Gibson, J. ; 3 id. 447; 9 id. 83.3. See Green, Short Hist. Eng. Peop. 118-14. Subinfeudation. Subletting part of a feud; carving smaller holdings out of a feudal estate. Since this deprived the superior lord of his profits of wai-dship, marriage, and escheat, which fell into the hands of the middle lord, it was restj-icted by Magna Charta, c. 83 (9 Hen. 3, 1225), and by Quia Emptores (18 Edw. 1, 1290) entirely suppressed, and alienation, in the modern sense, introduced.' To feu; a feu. A right to the use of lands, houses, and other heritable subjects, In perpetuity, in consideration of an an- nual payment in grain pr money, called feu- duty, and certain other contingent burdens. Whence, a.lso, feu farm, feu holding. Practically, a sale for a stipulated annual payment equivalent to chief rent. Modem feu-duties are gen- erally paid in money. On this footing almost all the house property in towns, and-suburban-villa property, in Scotland, is held.'' Compare Farm, Fee farm. See also Abeyance; Attainder; Attornment; De- mesne; Descent, Canonsof; Escheat; Fee, 1; Feoff- ment; Primogeniture; Pueblo ; Eelief, 1 ; Tenure, 1; Villain; Ward, 3. n. FA. See Execution, 3, Writs of. FIAT. See Fieri. FICTION.3 That which is feigned, as- sumed, pretended. The legal assumption that something is true which is or may be false; an assumption of an innocent and beneficial character, made to advance the ends of justice. Compare Estoppel; Pre- sumption. An allegation in legal proceedings that does not accord with the actual facts ; and which may therefore be contradicted for every purpose except to defeat the beneficial end for which the fiction is allowed. < Fictions of law are highly beneficial and useful; especially as "no fiction extends to work an injury:" the proper operation being to prevent mischief or remedy an inconvenience that might result from a general rule. The maxim is, in fictione juris semper subsistit cequitas — in a fiction of law equity always subsists; a legal fiction is consistent with justice.' But not admitted, where life, liberty, or personal safety is in jeopardy.' Illustrative examples: that the Idng was the orig- inal proprietor of all lands.' That an original capias had been granted, when a testatum capias issued into 1 2 Bl. Com. 91 ; 44 Pa. 498. 2 Chamber's Encyclopedia. = L. fictio: fingcre, to invent. 1 [Strafford Bank v. Cornell, 3 N. H. 387 (1881). » 3 Bl. Com. 4.3, 383. See Best, Presump., 87; 2 Burr, *962. ' 4 Bl. Com. 880. ' 4 Bl. Com. 418. FICTION 458 FIDUCIARY another coiznty.^ That a summons issues in an ami- cable action. That a person bailed is in the custody of his bail. That a> feigned issue is based upon k wager made.' That what ought to be done is done, and relates back to the time when it was to be done.^ The doctrine of abeyance. 2 That a term of court consists of a single day.* That a writ of error actually re- moves the record, instead of a transcript of the rec- ord, 1 That every person knows what is passing in the courts. ' That the possession of one who has a right of lien is the possession of the law.' That the law takes no notice of a, fraction of a day.^ The doctrine of equitable conversion." The doctrine of representa- tion in an agent, and in a decedent; and some features of the early action of ejectment. Fiction makes several corporations out of what is really one, in order to give each State control over the charters it grants. ' " SHctio, in old Roman law, is proper-ly a term of pleading, and signifies a false averment which the de- fendant was not .allowed to traverse; as, that the plaintiff was a Roman citizen, when in truth he was a foreigner. The object was to give jurisdiction. . . Legal fiction may be used to signify an assumption which conceals, or aifects to conceal, the fact that a rule of law has undergone alteration, its letter remain- ing unchanged while its operation is modified. The " fact " is that the law has been wholly changed; the "fiction " is that it remains what it always was. . . Fictions are particularly congenial to the infancy of society. They satisfy the desire for improvement, while they do not offend the disrelish for change. Thus they become invaluable expedients for overcom- ing the rigidity of law.'' Fictitious. 1. Not real; feigned : as, a ficti- tious — action, case, issue, name, party, payee. A fictitious case is a suit brought upon facts with respect to which no real controversy exists. Any attempt, by a mere colorable dispute, or where the appellant has become the sole party in interest, to get up a case for the opinion of the court, where there is no real and substantial controversy, is an abuse reprehended by all courts, and punishable as a con- tempt, i' 2. Imaginary ; unsubstantial : as, fictitious bail, q. v. 3. Not made in good faith : as, a fictitious bid, q. V. 1 3 Bl. Com. 283. 2 3B1. Com. 433. a 2 BI. Com. 107. ' Newhall v. Sanger, 92 U. S." 766 (1876). s Hunnicutt v. Peyton, 108 U. S. 356 (1880). » 3 Pars. Contr. 282. ' 3 Pars. Contr. 234. a 3 Pars, Contr. 504 (g). ' 1 Pars. Contr. 134. i» Home V. Boston, &c. B. Co., 18 F. B. 60 (1883), " Maine, Ancient Law, 24-25. 12 Lord V. Veazie, 8 How. 255 (1860), Taney, C. J ; Cleveland v. Chamberlain, 1 Black, 426 (1861); Bart- ..meyer v. Iowa, 18 Wall. 131-35 (1873). FIDES. L. Trust, confidence, reliance; credence, belief, faith. Bona fides. Good faith. Bona fide. In, witii, or by good faith. Mala fides. Bad faith. Mala fide. In, with, or by bad faith. Uberrima fides. The best faith, the severest good faith. Uberrima fide. With the strictest good faith. See Faith, Good, Bad. Fidei oomniissuin (pi. commissa). A thing committed to one's faithfulness; a be- quest or devise in trust ; a trust. Fidei oommissarivs. The beneficiary under a donation in trust; a ^dez or _/ide commis- sary ; a cestui que trust. A jidei commisswm (usually created by a will) was the disposal of an inheritance, in confidence that the transferee would convey it or dispose of the profits at the will of another. It was naade the business of a particular magistrate, the p^-cetor fidei commissarius, to enforce observance of this confidence. The right thereby given was looked upon as vested, and entitled to a'remedy. These fidei comviissa were the originals of modeni uses and trusts. ' See Use, 2. Fide-jussio or fidejussio. A giving or being surety ; suretyship ; bail. Fidejussor. A surety; bail in admiralty. He is absolutely bound to pay the costs and con- demnation at all events. '1 Admiralty may take a fidejussory caution or stipu- lation in cases in rem, and in a summary manner award execution to the prevailing party. Delivery of property on bail being given, is implied. ^ Fides servanda. Faith must be kept; the good faith of a transaction will be given effect. A maxim with regard to sales of personalty. If there is no express warranty, general rules of implica- tion should be adopted with this maxim in view. A warranty will be implied only when .good faith re- quires it.* FIDELITY. See Faith; Fides; Insur- ance; Trust, 1. FIDUCIABT.s Held, founded, resting upon an actual trust: as, a fiduciary — ca- pacity or character, contract or relation, debt, debtor, creditor. Fiducial. Of the nature of a trust. ■ 2 BI. Com. 327; 1 Story, Eq. § 821; 2 id. §§ 965-67; 1 Pomeroy, Eq. § 161. See 3 La. An. 432; 2 How. 619; 15 id. 357. 23 Bl. Com. 291, IDS. sBrig Alligator, 1 Gall. 149 (1812); United States ». Ames, 99 U. S. 40 (1878). * McCoy u. Artcher, 3 Barb. 330 (1848); 23 id. 684; 1 Mete., Mass., 551. ' L, fiduciarius: flducia, confidence; fides, q. v. FIEF 459 FILE A fiduciary debt is founded or arises upon some confidence or trust, as distinguished from a debt founded simply upon contract. ^ A fiduciary relationsliip is one in which, if a wrong arises, the same remedy exists against the wrong-doer on behalf of the principal as would exist against a trustee on behalf of the cestui que trust.' In the New York laws allowing arrest as a remedy for debts incurred in a fiduciary capacity, " fiduciary " imports trust, confidence; refers to integrity or fidelity rather than to credit or ability; contemplates good faith rather than legal obligation.' A debt contracted in a fiduciary capacity was not released by a discharge in bankruptcy.* This applied to technical trusts only, not to trusts implied from contracts of agency or bailment." "Fiduciary" and " confidential " relation seem to be used by the courts and law-writers as convertible expressions. It is a peculiar relation which exists be- tween client and attorney, principal and agent, prin- cipal and surety, landlord and tenant, parent and child, guardian and ward, ancestor and heir, husband and wife, trustee and cestui que trust, executors or administrators and creditors, legatees, or distributees, appointer and appointee under powers, partner and part-owners. In these and like cases tlie law, to pre- vent undue advantage from the unlimited confidence, affection, or sense of duty which the relation creates, requires the utmost of good faith in all transactions between the parties." See Fraud; Influence; Trust, 1. FIEP. See Feud. FIELD. 1. A lot in a town may be a field." But a one-acre lot used for cultivat- ing vegetables is a "garden." 8 See Agri- culture. 2. "In the iield," said of a soldier, means in the military service for the purpose of carrying on a particular war. ' FIERI. L. To be done; to be made. Compare Facere. ' Crisfield v. State, &c., 55 Md. 194 (1880), Robinson, J. 2 Be West of England Bank, Exp. Dale, 11 Ch. D. 778 (18T9), Fry, J.; Connecticut Mut. Ins. Co. v. Central Nat. Bank, 104 U. S. 68 (1881). " StoU V. King, 8 How. Pr. 290 (1853), cases; Frost v. M'Carger, 14 id. 137 (1857); Sutton u. De Camp, 4 Abb. Pr. 484 (1868); 1 Code E. 86, 87; 5 Duer, 86. Oysters which have been taken, and thus become private property, may be planted in a place subject to the flow of the tide and where there are none natu- rally, and remain private property." The owner has the same absolute property in oys- ters that he has in inanimate things or in domestic- animals. Oysters planted in public waters will not be considered abandoned to the public unless planted where oysters naturally grow. If they interfere with the rights of navigation^ they may be removed as a nuisance; but a private person, not the owner, may not convert them to his own use.^ In the exercise of its police power, a State may grant to individual citizens the exclusive right to plant and to remove oysters under the public waters.* See Aqua, Currit, etc. Fish commissioner. An act of Con- gress approved February 9, 1871, provides for the appointment of a commissioner of fish and fisheries, wi^h power to preserve and in- crease food fishes throvzghout the United States.5 Some of the States have a board of commissioners, with lilie powers. An act approved January 20, 1888, amends the fore- going act so that it reads: There shall be appointed by the President, by and with the advice and consent of the Senate, a person of scientific and practical ac- quaintance with the fish and fisheries to be a commis- sioner of fish and fisheries; that he shall receiye a salary at the rate of five thousand dollars a year, be removable at the pleasure of the President, and shall not hold any other oSace or employment under the authority of the United States or any State." Fish laws. See Game, 1 ; Sea. 2. Referring to a bill in equity or to inter- rogatories, " fishing " imports seeking to pry into the title or individual affairs of an ad- verse party. A "fishing bill" is a bill in which the plaintiff shows no cause of action, and en- deavors to compel the defendant to disclose a cause in the plaintiff's favor.' A bill in equity that seeks a discoveiy upon gen- eral, loose, and vague allegations is styled a " fishing Waite, C. J. See also Boggs. v. Commonwealth, 76 Va. 989(1882); M'Candlish v. Commonwealth, ib. 10O4 (1882). 1 Caswell V. Johnson, 68 Me. 166 (1870). ' Fleet V. Hegeman, 14 Wend. 42 (1835); State v. Sut- ton, 2 R. I. 434 (1853) ; Lowndes v. Dickerson, 34 Barb. 586 (1861). " State v. Taylor, 27 N. J. L. 119 (1858), Green, C. J. See also Johnson v. Loper, 46 id. 321 (1884). * People V. Thompson, 30 Hun, 457 (1883). » R. S. § 4396. • 25 St. L. 1. ' [Carroll v. Carroll, 11 Barb. 298 (1851), Mitchell, J. FIT 464 FIXTURE bill;" any such bill "will be at once dismissed upon that ground alone.* A party has no right to any discovery except of facte, deeds, and other writings necessary to the title under which he claims. ^ See Discovery, 6. riT. See Cultivation ; Disceetion, 3. FIX.8 1. To render finally liable : as, to fix bail, q. v. 3. To set for trial or hearing : as, to fix a case on a list. 3. To prescribe the rule by which a thing is to be determined : as, a constitutional di- rection that the general assetobly shall fix the comiDensation of all officers.* A salary is " fixed " when it consists of a stipulated rate for a definite period. Pay or emolument is fixed when the amount is agreed upon and the service defined. 5 A salary, pay or emolument is fixed by law when the amount is named in a statute; and, by regulation, when named in a general order, promulgated under provision of law, and applicable to a class or classes of persons.* FIXTITRE. a thing fixed or affixed to another thing. A thing fixed in a greater or less degree to realty.' Anything annexed to the freehold ; that is, fastened to or connected with it.^ A chattel annexed to the freehold, but re- movable at the will of the person who an- nexed it.8 Does not necessarily import a thing affixed to the freehold. The word is modern, and generally understood to comprehend any ar- ticle which a tenant has the power of remov- ing.9 As a rule, articles, to become fixtures, must either be fastened to the realty or to what is clearly a part of it, or they must be placed upon the land with a manifest intent that they shall permanently remain there, 'iJe Pacific Eailway Commission, 32 F. E. 263 (1887), Sawyer, Cir. J. ; 1 Story, Eq. H. § 325, cases. = 3 Story, Eq. § 1490; Lewis v. Shainwald, 7 Saw. 413 (1831), cases. 3 L. fixuTn; figuere, to fasten, attach. I Cricket v. State, 18 Ohio St. 81 (1868). s [Hedrick v. United States, 16 Ct, CI. 101 (1880), Da- vis, J. ' [8 Kent, 343. ' Elwes V. Mawe, 3 Sm. L. C. 177, 187, cases. " [Hallen ii. Eunder, 1 Crom., M. & E. 376 (1834), Parke, B. » Sheen v. Eickle, 5 M. & W. •188 (1839), Parke, B. See also Eogers v. Qilinger, 30 Pa. 189 (1858); 8 W. & S. 116. I and should be peculiarly fitt.ed to something that is actually fastened upon it, and essen- tial to its profitable enjoyment.' If the building, or permanent fixture, is erected upon or attached to the realty by the owner of the realty, it is not the subject of conveyance as person- alty, even by the owner of the freehold. . . If a building is erected without the assent of the land- owner, it becomes at once a part of the realty, and is the property of the owner of the freehold. A building, resting upon blocks and not firmly attached to the freehold, placed upon another'.s land by his assent, continues to be personalty even though there is no ex- press agreement that the owner shall remove it.^ Articles that may assume the character of realty or personalty, accordiug to circumstances, are " fixt- lu-es " — things substantially and permanently affixed to the soil, though in their nature removable. The old notion of physical attachment is, by some com'ts, re- garded as exploded. Whether a structure is a fixture depends upon the nature and character of the act by which the structure is put in its pla-ce, the pohcy of the law connected with its purpose, and the intent of those concerned in 'the act. Other courte still hold that it is essential that the article should not only be annexed to the freehold, but that it should clearly ap- pear that a permanent accession was intended. ^ A thing is deemed to be affixed to land when at- tached by the roots, imbedded in it, permanently rest-" ing upon it, or permanently attached to what is thus permanent.* The persons between whom questions ordinarily arise in relation to fixtures are: vendor and vendee, including mortgagor and mortgagee; heir and execu- tor; landlord and tenant; executor of tenant for life, and reversioner or remainder-man. The rule of the common law is that whatever is once annexed to the freehold becomes part of it, and cannot afterward be removed, except by him who is entitled to the inheritance. The rule, however, was never infiexible or without exceptions. It was con- strued most strictly between executor and heir, in favor of the latter; more liberally between tenant fdr life or in tail and remainder-man or reversioner, in favor of the former; and with much greats latitude between landlord and tenant, in favor of the tenant. But an exception of a m\ich broader cast, and almost as ancient as the rule itself, is of fixtures erected for purposes of trad". Upon principles of public policy, and to encom-age trade and manufactures, fixtxu-es erected to cp-rry on a business have been allowed to be removed by the tenant during his term, and are deemed personalty for many other purposes.* ' Farmer's Loan. &c. Co. v. Hendrickson, 85 Barb. 489 (1857), Strong, P. J. = Washburn, Eeal Prop. 3. = Washb. E. P. 6 (18); Hill v. Sewald, 53 Pa. 373-75 (1866); Meigs's .Appeal, 63 id. 33 (1869); Capen ii. Peck- ham, 35 Conn. 93-94 (1868); Voorhees v. MoGinnis, 48 N. Y. 2S2 (1872) ; Stout v. Stoppel, 30 Minn. 58 (1888), cases. ' Cal. Civil Code, § 660. ' Yan Ness v. Pacard, 2 Pet. *143, 147 (1839), Story, J. As between vendor and vendee, see Fratt v., Whittier. FLAG 465 FLOTSAM As between mortgagor and mortgagee, the mort- gagor may remove that which is not a fixture, and ivhlch was placed upon the ground after the mort- gage was executed.' The law imposes no obligation on a landlord to pay the tenant tor buildings erected on the demised prem- ises. The common-law rule is that all buildings be- come part ot the freehold. The innovation on this rule has extended no further than the right of removal ivhlle the tenant is in possession.^ Eolling-stock is inseparably connected with its rail- road in its entire length, and is part of the security of lienholders." Trees reared in nursery grounds tor sale as merchan- dise possess none ot the legal characteristics ot fixt- ures. Fixtures are articles which have an existence independent ot the freehold, and are afterward an- nexed to and become part of, it. * See Emblements. But there is no universal test for determining whether an article, personal in nature, has acquired the character ot realty. In each case regard is to be had to the nature ot the chattel itself, the injury that would result from its removal, and the intention in placing it upon the premises with reference to trade, agriculture, or ornament.^ See Machinery; Store. PLAG-. See Law, Of the flag. The act of April 4, 1818, as re-enacted in Eev. St. §§ 1791-93, directs that the flag of the United States shall be thii-teen horizontal stripes, alternate red and white; that the union thereon shall be thirty-seven stars, white in a blue field; that on the admission of a new State one star shall be added, such addition to take effect on the fourth of July next succeeding such admission. PLAGGnfG. See Pate. PLAGKANS. L. Burning, flaming up : in actual execution or commission. Whence flagrant, flagrancy. B8 Cal. 126, 128-33 (1881), cases; 28 Cent. Law J. 485 (1866), cases. See also Carpenter v. Walker, 140 Mass. 419 (1886); Hedderick v. Smith, 103 Ind. 203 (1885), cases; 85 Am. Law Beg. 24-28, 664-66 (1886), cases. 1 Cope V. Romeyne, 4 McLean, 384 (1848). " Kutter t'. Smith, 2 Wall. 497, 499 (1864), Miller, J. " Milwaukee, &c. R. Co. v. St. Paul R. Co., 2 Wall. 641 (1864); ib. 645-49, Mr. Carpenter's brief. See also Freeman v. Dawson, 110 U. S. 270 (1883), cases. ' Hamilton v. Austin, 36 Hun, 141-42(1885), FoUett, J. »Cobum V. Litchfield, 132 Mass. 448 (18S2), cases, Morton, C. J. ; Thomas v. Davis, 76 Mo. 76 (1882) ; 6 Am. 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. 387; 8 Iowa, 544; 21 id. 177; 44 id. 60; 10 Kan. 314; 64 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; 3 Neb. 131; 8 id. 192; 3 Nev. 82; 6 id. 218; 7 id. 37; 41 N. H. 503; 57 id. 514; 14 N. J. L. 393; 24 id. 287; 38 id. 457; 24 N. J. E. 260; 20 Wend. 656; 10 Barb. 157, 498; 11 id. 43; 35 id. 58; 51 id. 45; 13 N.Y. 170; 20 id. 344; 35 id. 379; 48 id. 278; 66 id. 489; 93 id. 311; 1 Ohio St. 524; 22 id. 563; 2 R. I. 15; 26 Gratt. 752; 17 Vt. 403; 28 id. 428; 24 Wis. 571 ; 6 Am. L. Rev. 412; 17 Am. Dec. 686, 690. (30) Flagrante bello. War raging: during hostilities. See War. Flagrante crimine or delicto. While the offense is being perpetrated : in the very act. See Delictum, Flagrante. PLAT. A place within a river, cove, creels:, or harbor, more or less under water ; "a shallow or shoal water." i PLEE. See Fugitive. Plee to the wall. Signifies that a person must use every reasonable means of escape before he may kill a man who assails him with apparently felonious intent. To excuse homicide on the plea of self-defense it must appear that the slayer had no other possible (or at least probable) means of escaping from his assail- ant.* See Defense, 1 ; Retreat. PLEET. A celebrated prison in London. Named from a river or ditch near by. Used chiefly for debtors and bankrupts, and for persons charged with contempt of the coiuts of chancery, exchequer, and common pleas. Abolished in 1842; andtomdown in 1845.S PLOAT. A certificate authorizing the holder to enter a certain amount of land.< Floating debt. That mass of valid claims against a corporation, for the pay- ment of which there is no money in the treasury specifically designated, nor any tax- ation or other means of raising money par- ticularly provided.5 Compare Funding. PLOGGnSTG. Ideating with lashes; whip- ping, q. V. Abolished in the army by act ot August B, 1861; ' in the navy by act of June 6, 1872.' FLOOD. See Act, 1, Of God ; Alluvion. FLOOR. A section of a building between horizontal planes. The words, used in a lease, the "first floor" are equivalent to the " first story " of the building, and naturally include the walls, unless other words con- trol such meaning. A covenant by a lessee not to underlet any part of the premises is not broken by his allowing a third person, in consideration of an annual payment, to place a sign upon the outside wall, for a stated time.** FLOTSAM. Floating. Goods lost by shipwreck which continue to float on the ' Stannard v. Hubbard, 34 Conn. 376 (1867). = 4 Bl. Com. 1*4; 3 id. 3-4. 'Cowell; Tomlins; Hayden, Diet. Dates. < Marks v. Dickson, 20 How. 504 (1857). » [People V. Wood, 71 N. Y. 374 (1877), Folger, J. See Cook V. Saratoga Springs, 23 Hun, 59 (1880). « E. S. § 1342, art. 98. ' E. S. § 1642, art. 49. 8 Lowell V. Strahan, 145 Mass. 8 (1887), W. Allen, J. FLOWERS 466 FORCE water. Compare Jetsam. See Dkift-stuff; ' Wreck: . FLOWERS. See Laeceny ; Pekish ABLE ; FOAL. See Partus. FOEDAL. See Feud. FCEDUS. See Federal; Confedera- tion. FCEIfUS IfAUTICUM. L. Marine in- terest. Sometimes designates a loan of money to be em- ployed in an adventure by sea, upon condition to be repaid witli extraordinary interest, in case the voyage is safely performed.* See Instjrance, Marine. FffiTIOIDE. See Homicide. F0LI0.2 1. A leaf. References to old law-books are by the folio, instead ot the page. See A, 1, par. 2. 2. A certain number of words, established by usage or law, as a unit of measurement for estimating the length of a document. Originated in some estimate of the number of words that a folio ought to contain. The number has varied, in different jurisdictions, from seventy-two, to ninety, and one hundred. By the act of February 26, 1853, § 3, a folio is one hundred words, counting each figure a word." FOLLOW. See Prosecute; Prosequi; Pursue; Suit. Follow copy. See Telegraph. Follow a fimd or property. See Iden- tity, 3. Follows the person. See Property, Personal. FOOT. See Possessio, Pedis. Foot-way. See Bridge ; Sidewalk. FOR. 1. On account of, by reason of, be- cause of; in behalf of; as agent for.* See Agent. 3. May mean " during," As, in Neb. code, § 947, which requires public notice of the time and place of the sale of realty upon exe- cution to be given " for at least thirty days " before the day of sale, by advertisement in some newspaper. One publication thirty days before the sale would not, therefore, be sufficient.* For account. See Concern. >.%, For collection. Sfee Collection, 3. For cause. See Cause, 3. > [2 Bl. Com. 4B8. " L. in folio: folium^ a leaf, sheet. » 10 St. L. 168: E. S. § 828. See Amy v. Shelby County, 1 Flip. 104 (1B72); Cavender v. Ca vender, 3 McCrary, 384(1882); Jerman v. Stewart, 12 F. E. 275 (1883); 38 Mich. 639. * Strong V. Sun Mut. Ins. Co., 31 N. T. 105 (1865). 'Lawson v. Gibson, 18 Neb. 139 (1885). See also Whitaker v. Beach, 12 Kan. 493 (1874); 16 Ohio, 663. For that. Introduces a positive allega- tion. For that whereas introduces a recital. For use. A, "for use, etc.," for the ben- efit of some other, the assignor. See Use, 3. For whom it may concern. In an in- surance policy, for all persons who may have an insurable interest. See further Auction; Concern. FORBEARANCE. Suspension of an existing demand, i Delay in enforcing a right. In statutes against usury, giving additional time, after the time originally limited for the return of a loan has passed. 2 An agreement to forbear bringing a suit for a debt due, although for an indefinite time, and even although it cannot be construed to be an agreement for perpet- ual forbearance if followed by actual forbearance for a reasonable 'time, is a good consideration for a prom- ise.^ See Consideration, 2; Surety. FORCE. < Compai-e Vigor; Vis. Strength; power. 1. Strength applied or exerted ; power in action or motion ; active power ; compulsion ; resistance; also, unlawful violence, — vio- lence, q. V. Actual force. Force applied in point of fact. Lnplied force. Force inferred from the doing of an unlawful act. See Battery ; Case, 3; Kidnaping; Rape; Robbery. Enforce. To constrain, or compel; to give effect to: as, to enforce an order of court; Congress may enforce constitutional prohibitions by appropriate legislation; to enforce a contract. Power to enforce the collection of a fine implies- power to give a receipt which will discharge the party.* Enforcement Act of 1870. See Right, 3, Civil (3). Force and arms. Charges violence in declarations and indictments for trespasses ; as, in trespass for entering a close." See Hand, 3; Trespass. Force and fear. Is ground for' annulling a contract, when the fear would affect a mind of ordinary firmness. See Duress. ' Goodman v. Simonds, 20 How. 370 (1857), cases. ' [Dry Dock Bank v. American Life Ins., &c. Co., 3 N. Y. 355 (1850). ' Howe V. Taggart, 133 Mass. 287 (1882), cases. * F. force; L. fortis, strong, powerful. » People V. Charisterson, 59 111. 158 (1871). •2 Chitty, PI. 846, 850; 2 Steph. Com. !S6i; 4 id. 372. FORECLOSURE 467 FOREMAN Force to force. Resistance to unlawful violence, — allowed to the extent of the vio- lence. See Assault; Battery; Defense, 1. Irresistible force. Human agency in its nature and power absolutely uncontrolla- ble, i See Accident; Act, 1, Of God; Car- rier, Common; Enemy, Public. roreed; forcible; forcibly. (1) Against the will or consent : as, a forcible abduction, dispossession, entry and detainer, sale, qq. v. (2) Against the will and under express pro- test : as, a forced payment, q. v. " Forcibly " doing an act is merely doing the act with force." ** Violently " may not be equivalent to " by force," in an indictment for rape.* All civil injuries are either without force or vio- lence, as in cases of slander and breach of contract; or else are coupled with force and violence, as iu cases of battery and false imprisonment.* The government of the United States may, by means of physical force, exerted through its official agents, execute on every foot of American soil the powers and functions that belong to it. This power does not derogate from a State the right to execute Its laws at the same time and place. The one does not exclude the other, except where both cannot be exercised at the same time; then the Federal author- ity prevails.* See War. (3) Arrived at by violence done to lan- guage; strained; unnatural: as, a forced construction, q. v. 3. Power to persuade or convince, or im- pose an obligation ; legal effect or operation ; binding effect ; validity ; efficacy. See Void. By force of. By virtue of ; by reason of; in consequence of." FORECLOSITEE. A closing up, shut- ting out,' barring, preclusion. 1. Specifically, the extinguishment of a mortgagor's equity of redemption beyond possibility of recall.' A mortgage is foreclosed in the sense that no one has the right to redeem it, or to call the mortgagee to account under it. 8 In no sense can the term be applied to a mortgage until sale of the property has been effected.' ' Story, Bailra. § 25. ' United States v. Bachelder, 2 GaU. 19 (1814), Stoiy, J. See 115 Mass. B63. = State V. Blake, 39 Me. 324 (1855). < 3 Bl. Com. 118. » Exp. Siebold, 100 U. S. 395 (1879), Bradley, J. • Fischer v. Hope, &c. Ins. Co., 40 N. T. Super. 399 (1876). ' [2 Bl. Com. 159. » Puffer V. Clark, 7 Allen, 86 (1863), Hoar, J. • Duncan v. Cobb, 32 Minn. 464 (1884). Foreclosure takes place where a mortgagor has for- feited his estate by non-payment of money due upon the mortgage, but still retains his equity of redemp- tion. In that case, the mortgagee may file a bill of foreclosure to compel the debtor to redeem his estate presently (as, within six months), or, in default, to be forever closed or barred from the right. This is known as strict foreclosure. In Indiana, Kentucky, Maryland, New York, South Carolina, Tennessee, Vir- giniai and other States, the mortgagee obtains a de- cree for a sale of the land, the proceeds to be applied to satisfying incumbrances in the order of their pri- ority.' A suit to foreclose a mortgage, not seeking a per- sonal judgment, is essentially a proceeding in rem.' See Mortgage; Redemption. 3. Also applied to the suit by a pledgee to extinguish the pledgor's right to redeem the personalty, after default made ; and to pro- ceedings to collect charges or liens upon other specific property, as, a foreclosure of a mechanic's lien. FOREIGN.' 1. That which belongs or pertains to another country, nation, or sov- ereignty ; or to another State, or division of a State.* As, foreign or a foreign — administrator, allegiance, assignment, attachment, charity, coin, commerce or trade, corporation, county, court, creditor, decree, divorce, document, domicil, exchange or bill of exchange, factor, guardian, judgment or sentence, law, min- ister, patent, port, vessel, voyage, qq. v. Foreigner. A citizen or subject of an- other country or nation ; an aUen, q. v. A naturalized citizen is no longer a foreigner.' ' See Bankkdptcy; Citizenship; Copykight; Pat- ent, 3. 3. Irrelevant; impertinent; extrinsic; not germane : as, matter or testimony foreign to the issue. Compai-e Auunde ; DEHORS. FOEEMAU . The presiding member of a jury, grand or petit. From the persons summoned and accepted as grand jurors, the court appoints the foreman, who has power to administer oaths to witnesses." The first iSee Hatch v. White, 2 Gall. 164 (1814), Story, J.; Sprague v. Martin, 29 Minn. 229 (1882); Du Val v. John- son, 39 Ark. 188 (1883); 44 Ohio St. 875; 4 Kent, 180; 2 Washburn, E. P. 261, note; Williams, K. P. 409; Daniel, Ch. Pr. 1204. a Martin v. Pond, 30 F. R. 18 (1887), cases. 'T.fmain, alien, strange: L. foras, out of doors, abroad. < See Cherokee Nation v. Georgia, 5 Pet. *56 (1831). » Spratt V. Spratt, 1 Pet. *349 (1838). »[R. S. § 809; United States v. Plumer, 8 Clift. 71 (1867). FOREST 468 FORFEIT person drawn and accepted upon a petit jury becomes its foreman. A jury speaks througli its foreman. , FOREST. Forests were waste grounds, belonging to the king, replenished with beasts of chase, which are under his protec- tion. • For the preservation of the king's game there were particular laws, privileges, courts, and offices helong- ing to the king's forests. Part of the king's ordinary revenue consisted of fines levied for offenses against the forest laws.' See Game, 1. FOREST AIiLIlfGr. Buying or contract- ing for merchandise or victual on its way to market; dissuading persons from bringing their goods or provisions there ; or persuad- ing them to enhance the price when there : any of which practices makes the market dear to the fair dealer.' So described in statute 5 and 6 Edw. VI (1552), c. 14. At common law, such practices were an offense against publip trade; otherwise, since 7 and 8 Vict. (1844) c. 24. Compare Engross, 2; Monopoly; Ee- GBATING. FOREVER. Compare Permanent. Used of the location of a county seat, may mean luitil changed by law.s In a conveyance, was held not to impart inheritable quality. ^ FORFEIT.5 1. To divest or to suffer di- vestiture of property, without compensation, in consequence of a default or offense. 3. To pay money as a mulct, or for a default or wrong. To take away all right from one person and transfer it to another.' In a contract -that a party shall " forfeit " a speci- fied sum on a breach, equivalent to " penalty." ^ Forfeitable. Admitting of divestiture or loss by way of punishment or for neglect ; opposed to non-forfeitable: as, a forfeit- able or non-forfeitable policy of insurance. Forfeiture. Lands or goods whereof the property is gone away or departed from the owner.' A punishment annexed by law to some 1 1 Bl. Com. 289; 2 id. 38, 414-16; 3 id. 78; 4 id. 413, 420, 423, 433, 437. a [4 Bl. Com. 158; 10 PhUa. 361. ' Casey v. Hamed, 6 Iowa, 14 (1857); 1 La. An. 315. • Dennis v. Wilson, 107 Mass. 693 (1871), cases. 'F. forfait, a crime punishable by fine, a, fine: L. L. foris-facere, to trespass, lit, " to do beyond: " foris, out of doors, abroad, beyond; /acere, to do,— Skeat; 1 Bl. Com. 299. • [Walter v. Smith, 5 B. & Aid. 167 (1822), Best, J. ' Taylor v. The Marcella, 1 Woods, 304(1873;; 17 Barb. 260; 15 Abb. Pr. 273. 6 [1 Bl. Com. 399. illegal act or negligence in the owner of lands, tenements, or hereditaments, whereby he loses all his interest therein, and they go to the party injured, as a recompense for the wrong which either he alone or the public together with himself has sustained, i Forfeitures were called bo'na confiscata by the ci- vilians, because they belonged to the fiscus or imperial treasury; and now, by us, foris facta, that is, such, whereof the property is gone away or departed from the owner. 2 Compare Confiscate. Forfeitures of estates were for breaches of the con- dition that the tenant should not do any act incompat- ible with the estate.' A penalty by which one loses his rights and interest in his property.* Property rights are forfeitable: by commission of crime; by alienation contrary to law fas, in mortmain, to an alien); by non-perfoi^ianoe of a condition; by waste; and by bankruptcy.^ Goods and chattels were totally forfeited by con- viction of treason, misprision of treason, felony, petit larceny, flight upon charge of treason, etc.* In theory, the guilty person wholly abandoned his connection with society.' At common law, a forfeiture transferred title to the sovereign. In a statute, may mean that the State by ' indictment shall recover a sum to be levied of the per- son's property as a "fine." ^ " Forfeiture " has frequently been spoken of as equivalent to conveyance or grant.* Forfeitures are not favored. They are often the means of oppression and injustice. Hence, the courts are prompt to seize upon any circumstances that in- dicate an election to waive a forfeiture; as, the course of action of an insurance company. Where adequate compensation can be made, the law in many cases, and equity in all cases, discharges the forfeiture, upon such compensation being made.'," Equity never lends its aid to enforce a forfeiture or penalty." A clause of forfeiture in a law is construed differ- ently from a similar clause in an engagement between individuals. A legislature always imposes a forfeiture ' 2 Bl. Com. 207. ' 1 Bl. Com. 299. See 1 Kent, 67; 1 Story, 134; 13 Pet. 157. S2B1. Com. 153. * Gosselink v. Campbell, 4 Iowa, 300 (1856). » See 2 Bl. Com. 267; 20 How. Pr. 370. 8 2 Bl. Com. 431. '3B1. Com. 299; 4 id. 381. 8 Commonwealth v. Avery, 14 Bush, 638 (1879). » Wallach v. Van Eiswick, 92 U. S. 211 (1875), cases. Strong, J. '"Knickerbocker Life Ins. Co. ii. Norton, 96 U. S. 239, 242 (1877), cases, Bradley, J. ; Ins. Co. v. Eggleston, ib. 577 (1877); Olmstead v. Farmers' Mut. Fire Ins. Co., 60 Mich. 306 (1883). " Marshall v. Vicksburgh, 15 Wall. 149 (1872), cases; McCormick v. Epssi, 70 Cal. 474 (1886); Manhattan Life Xns. Co. V. Smith, 44 Ohio St. 167 (1886). FORGE 469 FORGE as a punishtnent inflicted for a violation of some duty enjoined bylaw; whereas individuals can only make it a matter of contract. ^ Provisions for forfeiture are regarded with disfavor and construed with strictness — when applied to con- tracts, and the forfeiture relates to a matter admittiuK of compensation or restoration; but there is no lean- ing against a forfeiture intended to secure the con- struction of public works where compensation cannot be made for the default, nor where the forfeiture is imposed by positive law.' Where an act woi-ks a forfeiture of goods, the gov- ernment may at once seize them.^ Where an abso- lute forfeiture is the penalty, title accrues in the gov- ernment when the penal act is committed. But where the forfeiture is in the alternative (property, or its value), title does not vest till an election is made.' "Where property is seized for condemnation for for- feiture, some notification of the proceedings, beyond the mere seizure, may be necessary.* Failure to pay a premium of life insurance (g. i;.) at the time specified involves an absolute forfeiture, for which, unless waived by the company, relief can- not be had." See War. Forfeitures for common-law offenses have been generally abolished. See Attainder; Bond; Charter, 2; Condition; Dowek; Felony; Land, Public; Pardon; Penalty; Becognizance; Search-warrant. FORGE.' 1. A mechanical contrivance by which iron is made or manufactured from the ore. But a blacksmith's forge is not a " forge or furnace for manufacturing iron." ^ 3. To make in the likeness of something else. 9 Compare Fabricate. Forgqr. A person guilty of forgery. Forgery. At common law, the fraudu- lent making or alteration of a writing to the prejudice of another man's right, i" " The word is taken metaphorically from the smith, who beateth upon his anvil and forgeth what fashion iand shape he will." ^* In common speech, also, the altered instrument itself. > Maryland v. Baltimore, &c. B. Co., 3 How. 652 (1845), Taney, C. J. = Famesworth v. Minnesota, &c. E. Co., 92 U. S. 68 (1875), Field, J. ; 2 Story, Eq. § 1326. 'Henderson's Spirits, 14 WaU. 56 (1871), cases; Thatcher's Spirits, 103 U. S. 682 (1880). * The Mary Celeste, 8 Low. 356 (1874), cases. » Windsor v. McVeigh, 93 U. S. 274 (1876). «New York Life Ins. Co. v. Statham, 93 U. S. 24, 30 (1876): 100 Pa. 180. As to flre insurance, see Smith v. St. Paul Fire & Mar. Ins. Co., 3 Dak. T. 80 (1882). ■•F. forge: I,, fabrica, a, workshop; faber, a work- man, smith: fa-, to make. » [Rogers v. Danforth, 9 N. J. E. 296 (1853). » State V. McKenzie, 42 Me. 394 (1856). i»4 Bl. Com. 247; L. E., 1 C. C. E. '*203. " 3 Coke, Inst. 169. The fraudulent making of a false writing, which, if genuine, would be apparently of some legal efficacy, i May be committed as to any writing, which, if genuine, would operate as the foundation of another man's liability, or the evidence of his right.^ Imports a false making (which includes every alteration of or addition to a true in- strument) — a making malo animo, of any written instrument for the purpose of fraud and deceit: with intent to deceive.' In general terms, forgery is the false making or material alteration of, or addition to, a written instru- ment for the purpose of fraud and deceit. It may be — the making of a false writing purporting to be that of another; the alteration in some material particular of a genuine instrument by a change of its words or fig- ures; the addition of some mjiterial provision to an in- strument otherwise genuine; the appending of a gen- uine signature to an instrument for which it was not intended. The false writing may purport to be the instrument of a person or firm existing or fictitious; or of a person having the same name as the accused. As a rule, it must purport to be the writing of another than the person who made it.' May be committed by making a note in the name of a fictitious person, in an assumed name, or in the name of a bank which does not, exist. It is not neces- sary that the note be one which, if genuine, would be a valid and binding obligation. It is sufficient that the instrument purports to be good. To relieve from the character of forgery, the want of validity must appear upon the face of the paper itself.* It is immaterial whether the forgery is committed by means of printing, stamping, an engraved plate, or by writing with a pen." ^ 1 2 Bishop, Cr. L. §§ 624, 523, note. 2 3 Greenl. Ev. § 103, cases. sRex V. Coogan, 2 East, P. C. 862-53 (1803): Com- monwealth V. Ayer, 3 Cush. 152 (1840); Gamer v. State, 5 Lea, 215 (1880); Stateu McKiernan, 17 Nev. 228 (1E82). 'Commonwealth v. Baldwin, 11 Gray, 198 (1868), Thomas, J. » United States v. Turner, 7 Pet. *1U (1833); United States V. Mitchell, Baldw. 366 (1831); 11 F. E. 55. • Benson v. McMahon, 127 U. S. 467-71 (1888), cases. Benson, by falsely representing himself in the City of Mexico as Marcus Meyer, agent for Henry E. Abbey, under whom Adelina Pat ti was to appear at the Teatro Nacional, in December, 1886, sold 825,000 to $30,000 worth of tickets of admission. In February, 1888, Ben- son was arrested in the city of New York, and com- mitted for his return to Mexico, in accordance with the extradition treaty of 1801, the circuit court having re- fused to release him upon a writ of habeas corpus. "About the only contest" made by him before the Supreme Court was that the tickets were not forgeries, mainly because the name of Mr. Abbey, who was rep- resented as having authorized their issue and sale, was not " in writing," i. <;., made in script, by the use of a pen. 16.464-65. FORGE 470 FORM The crime is generally defined to be " the fraudu- lent making or alteration of a writing to the prejudice of another man's rights." The intent to defraud is its essence. There must be a possibility of some person being defrauded. Where the effect, if successful, •would be to defraud a particular person, he should- be named in the indictment, if known; if otherwise, a general allegation of the intent should be made. The question of intent is for the jury; but such intent, to "be proved, must be alleged. The nature of the offense is a species of false pretenses or fraud; hence the im- portance of setting forth the intent, and the name of the person, if known.' It is sufdcient if the forgery would have the effect bf defrauding a particular person. A person may not fraudulently sign his own name (in this case to a money -order) although identical with the name of the person who should have signed.' Forgery of a bill or note is by counterfeiting a sig- nature, or by filling up a paper with a genuine signa- ture, so as to make it appear to be signed as maker, or indorser, or other party.3 "False, forged, and counterfeit," in the act of February 25, 1862 (12 St. L. 347), necessarily implies that the instrument so characterized is not genuine, but only purports to be, or is in the similitude of, such instrument.* "False or forged," applied to an instrument in wiitiQg, means that the instrument is coimterfeit or not genuine, — that'some one has attempted to imitate another's personal act, and, by means of such imita- Jaon, to cheat and defraud.* To falsely make an affidavit is one thing; to make a false affidavit is another. It is the false making that is forgery." Making and uttering an instrument as agent, under a false assumption of authority, is not forgery.* In charging forgery, the variance or the omission of a letter, to be material, must change the word at- tempted to be written into another word having a dif- ferent meaning. The rigor of the old English law in this respect was due to the barbarous punishments im- posed. The insertion or omission of a word or words will not create a variance unless the sense is thereby altered. Illustrations of harmless changes are: *' to H. C. P. or order," " B. A. or bearer," " pay to bearer," "undertood" for understood, "Fayelville" for Fay- etville, "Jna." for Jno.' Money paid under a mistake of fact can be recov- ered. Hence, where one pays money on forged paper by discounting "or cashing it, he can always recover it, provided : that he has not himself contributed materi- ally to the mistake by his own fault or negligence; I State V. Gavigan, 36 Kan. 326 (1887), Horton, C. J. a United States v. Long, 30 F. E. 679 (1887). » 2 Daniel, Neg. Inst., 2 ed., § 1314; 11 Gratt. 822. , 4 United States v. Howell, 11 Wall. 482, 437 (1870). » State V. Wilson, 28 Minn. 64 (1881), Mitchell, J.; State V. Young, 46 N. H. 270 (1865); Mann v. People, 15 Hun, 166 (1878), cases; State v. MoKiernan, 17 Nev. 228 ;1882), cases. « United States v. Cameron, 3 Dak. T. 140 (1882). ' People V. Phillips, 70 Cal. 64-66 (1886), cases. and that by an immediate or sufficiently early notice he enables the party to whom he paid it to Indemnify himself as far as possible. The doctrine is favored that even negligence in making the mistake is no bar to a recovery.! See Alter, 2; Counteepeit; Faith, Good; Gbkit- ink; Mistake; Oblioation, 2; Obdeb. FORGIVE. See Condone; Merctj Pardon. FORGOTTEN- PROPERTY. See Find, 1. FORM. 1. Established method of ex- pression or practice ; a fixed way of proceed- ing. Compare Course, 3. 3. The model of an instrument or legal proceeding ; a formula.^ See Blanks. Opposed to substance. That without which the right sufficiently appears to the court is ' ' form. " Whatever Is wanting or imperfect, by reason whereof the right appears not, is a defect of substance.' Matter of form is whatever relates, not to the pur- pose or object of an instrument, or to a right involved in, or affected by, it, but merely to the language or expression, without affecting the issue presented, the evidence requisite, the right of a party, or a step nec- essary in furtherance of legal proceedings. Formal. Belonging or essential to the form or frame of a thing; not of the sub- stance : as, a formal defect or irregularity, a formal party, q. v. ; also, according to regu- lar method of procedure. Opposed, substan- tial, real. See Demurrer. Form of action. The peculiar technical mode of framing the writ and pleadings ap- propriate to the particular injury which the action is intended to redress.* Forms of action. The classes into which actions at lavr are divided. Distinguishable, by peculiarities in the writs and pleadings, at common law, as account, annuity, assump- sit, covenant, debt, detinue, ejectment, re- plevin, trespass on the case ; in some juris- '2 Daniel, Neg, Inst., 2 ed., § 1369, cases; Collins v. 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. 493, 495; 62 id. 68; 2 Me. 363; 60 id. 409; 3 Gray, 441; 114 Mass. 318 ; 16 Minn. 473 ; 46 N. H. 267 ; 1 Wend. 200 ; 9 id. 141; 17 id. 229; 91 N. Y. 113; 15 Ohio, 721; 1 Ohio St. 187; 2 Binn. 629; 3 Phila. 351; 32 Pa. 529; 89 id. 432; 37 Tex. 692; 2 Bish. Cr. L. § 495, 2 Cr. Pr. § 398; 3 Chitty, Cr. L. 1032; 2 Whart. Cr. L. § 1418; 2 Arch. Cr. Pr. 797; 4 Cr. L. Mag. 545, 865. ' See Webster's Diet. ' [Heard v. Baskerville, 1 Hob. *233; 109 U. S. 274. * Broom, Com. Law, 118 (m). FORMA 471 FORTE ET DURE dictions are or have also been included, in- junction, mandamus, scire facias. In Kansas there is but one form of action, called a civil action. The plaintiff, for cause of action, states the actual facts, mthout common-law forms or fictions.^ lu Pennsylvania, by an act approved May 25, 1887 St. Louis, &c. E. Co. V. Chenault, 36 Kan. 65 (1886); Losch V. Pickett, ib. 232 (1887); Kansas, &c. E. Co. v. Bice, ib. 599 (1887): Civ. Code, 1 10. » New Orleans, &c. E. Co. v. Hurst, 36 Miss. 667 (1859); eulf, &c. E. Co. V. Levy, 59 Tex. 548 (1883). " United States v. Smith, 2 Mas. 160 (1820), Story, J. *16S. &E. MIS. •See 2 Bl. Com. 193; 3 id. 191. FORMER. See Acquittal; Adjudica- tion; Conviction; Recovery. FORNICATION.i Illicit carnal inter- course by an unmarried person with a person of the opposite sex. 2 Sexual intercourse between a man, mar- ried or single, and an unmarried woman, as to the unmarried party.' niicit carnal connection is called by differentnames, according to the circumstances which attend it. Un- accompanied with any facts which tend to aggravate it, it is " simple fornication." When it causes the birth of an illegitimate child, it is " fornication and bastardy." When the person who commits it is mar- ried, it is " adultery." When the parties are related within certain degrees of consanguinity or affinity, it becomes " incest." Where it is preceded by fraud- ulent arts (including a promise of marriage) to gain the consent of the female, who is under the age of consent, and of good repute, it is "seduction." But the body of all these offenses is the illicit intercourse; in, each case, the essential fact which constitutes the crime is fornication. On an indictment for any of- fense, below the grade of felony, of which illicit con- nection forms an essential part, the defendant may be found guilty of fornication.* In a few States, fornication is not punishable by statute. To charge another with fornication is actionable per se.' See Slander. See Adultebt; Bad, 1; Bawd; MEBBTBicions; Polygamy; Pbostitution, 2. FORNIX. L. Fornication. Originally, a vault, an aroh, — a brothel. Fornix et csetera. Fornication and the rest : fornication and bastardy, qq. v. FORO. See Forum. FORSWEAR. To swear falsely. Does not necessarily import perjury, g. v. One may swear to what is not true before an ofQcer not qualified to administer an oath.* FORT. Implies something more than a mere military camp, post, or station ; a forti- fication or a place protected from attack by some such means as a moat, wall, stockade, or parapet."' See Land, Public. FORTE BT DURE. See Peine. * From fornix, q. v. ■' [Montana v. Whitcomb, 1 Monta. 362 (1871), Wade, Chief Justice. = Hood V. State, 66 Ind. 271 (1877), Perkins, C. J. See also 3 Monta. 54; 51 Wis. 461 ; 4 Bl. Com. 65. •Dmkey v. Commonwealth, 17 Pa. 129-30 (1851), Black, 0. J. ' Page V. Merwin, 64 Conn. 434 (1886). « See Heard, Libel & SI. §S 16, 34; 1 Johns. 605; 2 id. 10; 13 id. 48, 80: 12 Mass. 496; 2 Har. & J. (Md.) 363. ' United States v. Tiohenor, 8 Saw. 163 (1883), Deady, J.; s. c. 12 F. E. 424. FORTHCOMING 472 FRANCE FORTHCOMING. Describes a bond given to a sheriff, conditioned that property seized by him shall be produced or forthcom- ing when lawfully required.i Also said of a person released on bail, q. v. FORTHWITH. Has a relative mean- ing, and will imply a longer or a shorter period, according to the nature of the ihing to be done. 2 1. Immediately; without delay ; directly.' 3. Within reasonable time; with conven- ient celerity ; with reasonable diligence.^ Witli due diligence, under the circumstances.^ As soon as, by reasonable exertion con£jied to the 'Object, an act may be done." In some matters of practice, within twenty-four hours.' See Imuediatelt; Instasteb; Possible; Time, Rea- sonable. FORTUITOUS. Resulting from chance, or unavoidable cause ; casual; inevitable : as, a fortuitous colhsion or event.^ See Acci- dent. FORTUNE-TELLUfG. See Witch- CEAPT. FORTY DAYS. See Quarantine, 1. FORUM. The place where court weis held in cities of the Roman empire ; the place where redress is to be sought; place of juris- diction ; jm'isdiction; a judicial tribunal, q. v. ; a court ; the bar of d court. 'From fero^ to lead out of doors: what is outside; an outside space; a public place, a market place. Com- pare Curia; Locus. Foro. In the court of. Whence foro ■cosli, foro conscientim, etc. Forum coeli. The court of heaven. Forum conscientise. The bar of con- science, q. V. Forum contractus. The court of the place where a contract is made. Forum domesticum. The. home tri- bunal. > See 61 Ga. 520; 11 Gratt. 528. ' MoflEat V. Dickson, 3 Col. 314 (1877), Elbert, J. •See Inman v. Western Ins. Co., 12 Wend. 460 (1834); .Whitemore v. Smith, 50 Conn. 379 (1882); Hull v. Mal- lory, 56 Wis. 356 (1882); 22 E. C. L. 527; L. E., 4 Q. B. D. 471. ■•See Burgess v. Bcetefeur, 7 Mar. & G. *494 (1844); Bennett v. Lycoming Ins. Co., 67 N. T. 277 (1876), cases; 44 Ohio St. 437. » Edwards v. Lycoming Ins. Co., 75 Pa. 378 (1874). " [3 Chitty, Gen. Pr. 112. ' Champlui v. Champlin, 2 Edw. *329 (N. Y., 1834). ' See Story, Bailm, S 25. Forum domicilii. The court of one's domicil, q. v. Forum rei. 1. The feourt of the defend- ant — of the place where he resides. 2. The court of the thing — of the locality where a thing in controversy is or is found. Forum rei gestae. The court of the thing done — at the place of the transaction. Forum rei sitce. The court of the place where a thing is situated. See Place, 1 ; Res. Forum seculare. A secular court. FORWARDER. A person who receives and transports merchandise at his own ex- pense of time and money, in consideration of a compensation paid him by the owner or consignee; and who has no concern in the means of transportation, nor any interest in the freight ; a " forwarding merchant." i He is a warehouseman and agent for a compensa- tion to forward goods.^ An agreement " to forward " goods may still amoimt to a contract for carrying. ^ See Carrier, Common. FOSSIL. See Mineeal. FOUND. See Find ; Office ; Teovbb. FOUR. Has no technical meaning. Four corners. All parts ; the whole. Take by the four comers: construe an instrument as a whole.' Four seas. The waters surrounding Eng- land. Within the four seas; within her territorial juris- diction. On_ all-fours. Said of cases precisely alike. See All-fotjes. FOURTEENTH AMENDMENT. See Citizen. FOURTH OF JULY. See HOLpAT. FOWL. See Animal; Ceueltt, 3; Dam- age, Feasant ; Nuisance ; Trespass ; Woret, FOX HUNTING. See Cruelty, 3. FRACTION. See Day. FRAIS. F, Cost, price; expense. Frais jusqu'a bord. Expenses to the board (vessel) ; free on board. In an invoice of imported goods, excludes cartage and commLssions paid to the shipping merchant who receives and places the goods on board ship for ex- portation. Such charges are not dutiable.^ See Free, On board. FRANCE. See Law, Civil; Salic. ' See Story, Bailm. § 602, cases. 2 Bush V. Miller, 13 Barb. 488 (1852); Angell, Car. S iU ' Blossom V. Griffln, 13 N. Y. 575 (1856). ' Bartels v. Eedflelrf, 16 F. E. 337 (1883); ib. 341; Rob- ertson V. Downing, 127 TJ. S. 607 (1888). FRANCHISE 473 FRANCHISE PBAITCHISE.i 1. A royal privilege, or ' branch of the king's prerogative, subsisting in the hands of a subject.^ A special privilege conferred by govern- ment upon individuals, and which does not belong to citizens of the country generally, of common right.' A generic term covering all rights granted to a corporation by the legislature. "Whence " corporate franchises." * A corporate franchise is a legal estate vested in the corporation as soon as it is in esse. Not a mere naked power, but a power coupled with an interest. ^ A privilege conferred by the immediate or antecedent legislation of an act of incorpora- tion, with conditions expressed or necessarily inferential from its language, as to the man- ner of its exercise and for its enjoyment.^ To ascertain how it is brought into existence, the whole charter must be consulted.* Generalized, and divested of the special form which it assmnes under a monarchical government based on feudal traditions, a franchise is a right, privilege or power of public concern, which ought not to be exer- cised by private individuals at their mere will and pleasure, but should be reserved for public control and administration, either by the government or directly, or by public agents, acting under such conditions and reg- ulations as the government may impose in the public interest, and for the public se- curity.'' Such rights and powers must exist under every form of society. They are always educed by the laws and customs of the community. Under our system, their existence and disposal are under the legislative department, and they cannot be assumed or exercised without legislative authority. Thus, no private person can establish a public highway, or a public ferry, or railroad, or charge tolls for the use of the same, or ■ FrSn'-chfa. F. franchise, privileged liberty : franc, free. » 2 Bl. Com. 37; 127 U. S. 40. •Bank of Augusta v. Earle, 13 Pet. 595 (1*39), Taney, Chief Justice. ' Atlantic & Gulf E. Co. v. Georgia, 98 U. S. 865 (1878), Strong, J. « Dartmouth College d. Woodward, 4 Wheat. 700 (181 9), Story.. J. ; Society for Savings v. Coite, 6 Wall. 606 (1867). See also 3 Kent, 458; 73 111. 547; 45 Mo. 20; 15 Johns. 887. "Woods V. Lawrence County, 1 Black, 409 (1861), Wayne, J. ' California v. Paciflc R. Co., 127 U. S. 40 (1888), Brad- ley, J. exercise the right of eminent domain or corporate capacity, without authority from the legislature, di- rect or derived. ^ The word is used as synonymous with privilege and immunity of a personal character; but in law imports something which the citizen cannot enjoy without legislative grant. What members obtain in a relig- ious, benevolent, or scientiflc association incorporated under general or special laws, is membership." A corporation is itself a franchise belonging to the members of the corporation, and the corporation, itself a franchise, may hold other franchises. The different powers of the corporation are franchises, • The essential properties of corporate existence are quite distinct from the franchises of the corporation. The franchise of being a corporation belongs to the corporators, while the powers and privileges vested in, and to be exercised by, the corporate body as such, are the franchises of the corporation. The latter has no power to dispose of the franchise of its members, which may survive in the mere fact of coi'porate ex- istence, after the corporation has parted with all its property and all its franchises. The franchise to be a corporation is not a subject of sale and transfer, un- less made so by a statute, which provides a mode for exercising it* Often synonymous with rights, privileges, and im- munities, though of a personal and temporary char- acter; so that, if any one of these exists, it is loosely termed a " franchise." But the term must always be considered in connection with the corporation or property to which it is alleged to appertain. The franchises of a railroad corporation are the rights or privileges which are essential to the operations of the corporation, and without which its road and works would be of little value; such as the franchise to run cars, to take tolls, to appropriate earth for the bed of its road, or water for its engines, and the like. These are positive rights or privileges without the possession of which the road could not be successfully worked. But immunity from taxation is not a franchise.'' The franchises of a railroad company are in a large measure designed to be exercised for the public good, which exercise is the consideration for granting them. The company cannot, therefore, render itself incapa- ble of performing its duties, or absolve Itself from the- obligation, without the consent of the State.* A franchise is property and nothing more ; ^ it is in- 1 California v. Pacific E. Co., ante. ' Board of Trade v. People, 91 111. 82 (1878), cases, Scott, J. « Pierce v. Emery, 32 N. H. 507 (1866), Perley, C. J. * Memphis E. Co. v. Commissioners, 112 U. S. 61* (18S4), cases, Matthews, J. ; Willamette Manuf. Co. v. Dank of British Columbia, 119 id. 191 (1886). 'Morgan v. Louisiana, 93 U. S. 223 (1876), cases. Field, J.; East Tennessee, &c. E. Co. v. County of Hamblen, 103 TJ. S. 876-77 (1880), cases; State v. Maine Central E. Co., 66 Me. 512 (1877). « Thomas v. West Jersey E. Co., 101 U. S. 83-84 (1879), cases, Miller, J.; Balsley v. St. Louis, &c. E. Co., 119 111. 72-73 (1886). ' West Elver Bridge Co. v. Dix, 6 How. 631 (1848); 22 Cal. 422; 17 Conn. 40; 25 id. 36. FRANCHISE 474 FRAUD corporeal property. As such it is liable for debts and subject to the right of eminent domain.' The ordinary franchise of a railway company is to condemn, take, and use lands for the purpose of a public highway, and to take tolls from those who use it as such. Land, in itself, is not a franchise. A fran- chise is an incorporeal hereditament; a liberty pro- ceeding from the commonwealth." A grant of a corporate franchise by an act of legis- lation, accepted by the grantee, is a contract between the State and the grantee, the obligation of which a subsequent legislature cannot impair. > Exclusive rights to public franchises are not fa- vored; if granted they will be protected, but they are never presvuned.* A corporation cannot dispose of its franchises to another corporation without legislative authority." A grant of corporate franchises is necessarily sub- ject to the condition that the privileges conferred shall not be abused, or be employed to defeat the ends for which they were conferred; and that when abused or misemployed, they may be withdrawn by proceed- ings consistent with law. . . A corporation is sub- ject to such reasonable regulations as the legislature may from time to time prescribe, as to the general conduct of its affairs, serving only to secure the ends for which it was created, and not materially interfer- ing with the privileges granted to it.« See Bonus; Grant, 3; Mokopolt; Railkoad; Tax, 3; Toll, 2; Warrantdm. 2. In a popular sense, the political rights of subjects and citizens are called francljises: as, the electoral franchise — the right of sUfErage.7 The right of voting for a member to serve in par- liament is called the "parliamentary franchise; " the right of voting for an alderman or town councilor, the " municipal franchise." ^ Elective franchise. The right of choos- ing governmental agents. ' Enfranchise. 1. To make free of a city or state. 3. To invest with political freedom and capacity. Dis&anchise. Todeprive of a franchise conferred ; to suspend or withdraw the exer- ' 2 Washb. E. P. S4; 1 Eedf. Ey. §§ 1, 4, 10, cases. ' Shamokin Valley E. Co. v. Livermore, 47 Pa. 468 (1864), Agnew, J. s Chincleclamonche Lumber, &c. Co. v. Common- wealth, 100 Pa. 444 (188S); The Binghamton Bridge, 3 Wall. 51 (1865). < Wright V. Nagle, 101 U. S. 796 (1879). • Branch v. Jesup, 106 U. S. 484, 478 (1888). " Chicago Life Ins. Co. v. Needles, 113 U. S. 574, 680 <1885), Harlan, J. See also 66 Cal. 106-7; 36 Conn. 866 47 id. 603; 21 HI. 69; 37 id. 547; 95 id. 575; 30 Kan. 657 13 Bush, 185; 28 La. An. 493; 45 Md. 379; 15 N. T. 170 37 id. 619; 68 id. 555; 1 Oreg. 37; 39 Tex. 478; 77 Va. 218. ' Pierce v. Emery, 32 N. H. 607 (1856), Perley, C. J. ' Mozley & Whiteley's Law Diet. ' See State v. Staten, 6 Coldw. 265 (1869). cise of a corporate or political right or privi- lege.! FRANK.a Free. Frankalmoign. Tenure in consideration of religious services (alms).^ Frankpledge. Surety for general good behavior, anciently required of freeborn per- sons. Franktenement. A freehold. See Feud. To frank. To send free. Franking privilege. The liberty of send- ing postal matter through the mails free of charge. Has existed, in theory, for the public good. The act of January 31, 1873, repealed former laws, from and after July 1, 1873.« The act of March 3, 1875, sees. 3, 5, 7, permits members of Congress, and cer- tain executive officials, to send free, public docu- ments (g. i;.), acts of Congress, and seeds supplied by the commissioner of agriculture.? The acts of March 3, 1877, sec. 7, and of March 3, 1879, sec. 1, provide that the privilege shall be enjoyed until the first Mon- day of Deceniber'following the expiration of the indi- vidual's term of office * — the fourth of March. The privilege is also spoken of as the member's "frank." FRATERNITY. See Association ; Com- munity, 3. FRATRICIDE. See Homicide. FRAUD.^ Craft, cunning; cheating, im- position, circumvention. An artifice to deceive or injure.' An intention to deceive.' Defraud. To cheat; to deceive; to de- prive of a right by an act of fraud. To withhold from another what is justly due him, or to deprive him of a right, by de- ception or artifice.!" Fraud, in the Roman civil law, meant any cunning, deception, or artifice, used to cir- cumvent, cheat, or deceive another. This corresponds to "positive fraud" in modern law." ' See People v. Medical Society, 24 Barb. 577-78(1857). ' r. /i-ojjc, free. s See 2 Bl. Com. 101 ; 2 Kent, 281. « 17 St. L. 481. ' 1 Sup. E. S. 154. » 1 Sup. E. S. 288, 454. ' From fraus^ q. v. 'Byles, Bills, 133. ' Lord V. Goddard, 13 How. 211 (1851), Catron, J. On definitions of, see 3 Law Quar. Eev. 419-28 (1887), cases. •» Burdick v. Post, 12 Barb. 186 (1851) ; People v. Kelley, 35 id. 452 (1862). ' ' [1 Story, Eq. § 186. See 2 Steph. Hist. Cr. Law Eng. 121. FRAUD 475 FRAUD . The common law asserts as a general principle that there shall be no definition of fraud.' The courts have never laid down as a general prop- osition what shall constitute fraud, or any rule, be- yond which they will not go, lest other means of avoiding equity should be found.^ In the sense of a court of equity, fraud properly includes all acts, omissions, and concealments which involve a bx-each of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advan- tage is taken of another.' Consists in deception practiced, in order to induce Another to part with property or surrender some legal right, and which accomplishes the end desired.* Consists in the suppression of the truth — suppres- ■sio veri, or in the assertion of what is false — suggestio falsi. No one can be permitted to say, in respect to his own statements upon a material matter, that he did not expect to be believed; and if they are knowingly false, and willfully made, the fact that they are ma- terial is proof of an attempted fraud, because their materiality, in the eye of the law, consists in their tendency to influence the conduct of the party who has an interest in them, and to whom they are ad- dressed.' Fraud is sometimes said to consist of " any kind of artifice employed by one person to deceive another." But the term admits of no positive definition, and can- not be controlled in its application by fixed rules. It is to be inferred or not, according to the special cir- cumstances of every case.* Actual, positive, moral fraud; fraud, in fact. Fraud as a matter of fact, involv- ing moral turpitude and intentional wrong. Implied, constructive, legal fraud; fraud in law. Fraud as a conclusion of law, and may exist without imputation of bad faith or immorality.^ When a party intentionally misrepresents a mate- rial fact, or produces a false impression, in order to mislead another, or to entrap or cheat him, or to ob- tain an undue advantage over him, there is a " positive fraud " in the truest sense. There is an evil act with an evil intent. And the misrepresentation may be as well by deeds or acts, as by words; by artifice to mislead, as well as by positive assertions." ' 2 Pars. Contr. 769. » [1 Story, Eq. § 186. ' [1 Story, Eq. § 187. * Alexander v. Church, 53 Conn. 563 (1885), Park, C. J. , quotmg Cooley, Torts, 474; Judd v. Weber, 55 Conn. 877 (1887), Loomis J. "Claflin V. Commonwealth Ins. Co., 110 IT. S. 95 (1884), Matthews, J.; 27 Me. 308; 7 Bing. 105; 56 N. H. 401; 58 id. 245; 3 B. & Ad. 114. • Tenner v. Dickey, 1 Flip. 36 (1861), Wilson, J. ' [Neal V. Clark, 95 U. S. 709(1877), Harlan, J. « [1 Story, Eq. § 192. See also Ackerman u. Acker- By " constructive frauds " are meant such acts or contracts, as, although not originating in any actual evil design, or contrivance to perpetrate a positive fraud or injury upon other persons, are yet, by their tendency to deceive or mislead other persons, or to vio- late private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with positive fraud, and, therefore, are prohibited by law, as within the same reason and mischief, as acts and contracts done malo animo. The doctrine is founded in an anxious desire of the law to apply the principle of preventive justice, so as to shut out the inducements to perpetrate a wrong, rather than to rely on mere remedial justice, after a wrong has been committed. 1 An "actual fraud" is something said, done, or omitted by a person with the design of perpetrating what he must have known to be a positive fraud. " Constructive frauds " are acts, statements, or omis- sions which operate as virtual frauds on individuals, or which, if generally permitted, would be prejudicial to the public welfare, and yet may have been uncon- nected with any selfish or evil design.* A breach of duty is a constructive fraud.' In the sense of bankrupt acts, "a debt fraudulently contracted by a person occupying a fiduciary rela- tion" involves positive fraud, involving moral turpi- tude or intentional wrong.* Fraud in fact in the transfer of chattels consists in the intention to prevent creditors from recovering their just debts, by an act that withdraws the debtor's property from their reach. And an act that, though not fraudulently intended, yet has a tendency to de- fraud creditors, if it vests the property of the debtor in his grantee, is void for legal fraud. Legal fraud is tantamount to actual fraud. Actual fraud is for the jury ; legal fraud, where the facts are undisputed or are ascertained, is for the court.' PraudTilent. Infected with fraud, actual or legal; as, a fraudulent — bankruptcy, claim, concealment, conveyance or gift, pos- session, representation, qq. v. Compare Void. When an act charged in an indictment is fraudu- lent, it is not necessary to use the word "fraudulent " in the indictment itself.* man, 44 N. J. L. 175 (1883), Depue, J.; 89 Conn. 588, note. ' 1 Story, Eq. § 268. See People v. KeUy, 35 Barb. 457 (1862). 2 Smith, Manual of Equity, 71. > Baker v. Humphrey, 101 U. S. 602 (1879). *Neal V. Clark, 95 U. S. 704 (1877); Hennequin v. Clews, 111 id. 676, 679-81 (1884), cases; Strang v. Brad- ner, 114 id. 659 (1885). » MoKibbin v. Martin, 64 Pa. 356 (1870), Sharswood, J. ; Hanson v. Eustace, 2 How. 688 (1844). See generally Bigelow, Law of Fraud, 137, et seq., cases; Willink v. Vanderveer, 1 Barb. 607 (1847); Bir- chell V. Strauss, 28 id. 293 (1858); People v. Kelly, 35 id. 456 (1S62); Vulcan Oil Co. v. Simons, 6 Phila.564 (1868); 2 Pomeroy, Eq. § 858; 2 Ala. 593; 5 ul. 601; 7 Ark. 171; 6 Ga. 614; 47 id. 109; 87 Me. 308; 29 N. H. 354; 3 Den. 836. " United States v. Caruthers, 15 F. R. £ FRAUD 476 FRAUD Fraudulently. With a deliberately planned purpose and intent to deceive and thereby gain an unlawful advantage.^ The ordinary means of fraud are false representa- tions an.d concealments. The more numerous is the implied or constructive class— which includes all frauds on public policy: agreements to influence tes- tators, to facilitate or restrain marriages, in restraint of trade, for public offices, to suppress criminal pro- ceedings, champertous and other corrupt considera- tions; all frauds by persons in confidential relations:, as, by a guardian, adviser, minister of religion, attor- ney, doctor, agent, trustee, executor, administrator, debtor, creditor, surety; all frauds upon persons pe- culiarly liable to be imposed upon : as, bargains with expectant heirs, remaindermen, reversioners, common sailors; and all virtual frauds on individuals irrespect- ive of any confidential relation or liability to imposi- tion: as, forbidden practices at auctions, misuse of the Statute of Frauds, clandestine marriages, frauds on marital rights, frauds under 13 Eliz. c. 5, 96, fraudulent dealing with trustees, appointments, etc.* The fraud must relate directly and distinctly to the contract, if a contract and must affect its very es- sence. If the fraud be such that had it not been prac- ticed the contract would not have been made, the fraud is Tnaterial. Whether it is or is not material, in a given case, is a question for a jury, possibly under instructions.^ The length of time that the intent to defraud pre- cedes the act is not mateiial, provided there is the relation of design and its consummation. Conceal- ment by mere silence is not enough. There must be 'some trick or contrivance intended to exclude suspicion and prevent inquiry. There must be reasonable dili- gence; and the means of knowledge are the same thing in effect as knowledge itself. The circumstances of the discovery must be fully stated and proved, and the delay which had occurred shown to be consistent with the requisite diligence.* Fraud binds the injured person, as a cause of ac- tion, only from the time of discovery." The bar of the statute of limitations does not begin to run until the fraud is discovered. Where ignorance has been produced by affirmative acts of the guilty party iu concealing the facts, the statute will not bar relief, provided that suit is brought within proper time after the discovery. Nor is relief barred where the party injured has remained in ignorance withoutfault or want of diligence on his part. ^ The weight of authority is, that, in equity, where the injured person remains in ignorance of fraud > Bank of Montreal v. Thayer, 2 McCrary, 5 (1881), McCrary, Cir. J. 2 See 1 Story, Eq. Ch. VI; Smith, Man. Eq. Ch. IV; 2 Para. Contr. Ch. XII. 3 2 Pars. Contr. 770; Bishop, Contr. §§ 641, 652. * Wood V. Carpenter, -101 U. S. 143, 140 (1879), cases, Swayne, J. , 5 Dresser v. Missouri, &c. R. Co., Construction Co., 03 U. S. 94-96 (1876), cases. , • « Bailey v. Glover, . 21 Wall. 347-50 (1874), cases, Miller, J. ; Fritschler v. Koehler, 83 Ky. 83 (1885). without want of care on his part, the bar does not begin to run until the fraud is discovered, though there be no special circumstances or efforts 'in the guilty party to conceal knowledge. On the question as it arises in actions at law, there is a decided confiiot of authority. Some courts make concealed fraud an exception on purely equitable principles. The English courts, and the courts of Connecticut, Massachusetts, Pennsylvania, and other States, hold that the doctrin© is equally applicable to cases at law.^ See Ltbi^^ta- TiONs, Statute of. A court of equity has an undoubted jurisdiction to relieve against every species of fraud. 1. The fraud, which is dolus malus^ may be actual, arising from facts and circumstances of imposition. 2. It may be apparent from the intrinsic nature and subject of the bargaiu itself: such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other. 3. It may be presumed from the circumstances and condition of the parties contracting,— from weakness or necessity. 4. It may be inferred from the nature and circumstances of the transaction, as being an imposi- tion and deceit on persons not parties to the agreement;* There is no fraud in law without some moral delin- quency; there is no actual legal fraud which is not also a moral fraud. This immoral element consists ih the necessary guilty knowledge and consequent intent to deceive — sometimes designated by the technical term the "scienter." The very essence of the legal conception is the fraudulent intention flowing from, the guilty knowledge. . . There may be actual fraud in equity without any feature or incident of moral culpability. A person making an untrue state- ment, without knowing or believing it to be untrue, and without any intent to deceive, may be chargeable with actual fraud in equity. . . Forms of fraudu- lent misrepresentations in equity are: 1. Where a party makes a statement which is untrue, and has at the time actual knowledge of its imtruth. 2. Where he makes an untrue statement and has neither knowl- edge nor belief as to the truth. 3. Where he makes an untrue statement and has no, knowledge of the truth, and there are no reasonable grounds for his be- lieving it to be true. 4. But where he makes a state- ment of fact which is untrue, honestly believing it to be true, and this belief is based upon reasonable grounds which actually exist, there is no fraud. Yet, 5, in that case, if he afterward discovers the truth, and suffers the other party to continue in error, and to act upon the belief that no mistake has been made, this, from the time of discovery, becomes a fraudu- lent representation. 6. If a statement of fact actu- ally untrue is made by a person who honestly believes it to be tfue, but under such circumstances that the duty of knowing the truth rests upon him, which, if fulfilled, would have prevented him fi:ora making the statement, such misrepresentation may be-fraudulent in equity. 3 1 Tyler v. Angevine, 15 Blatch. 541-42 (1879), cases, Blatchford, J. 2 Chesterfield v. Janssen, 2 Yes. Sr. *155 (1750), Hard- wicke, L. C. Same case, 1 L. C. Eq., 4 Am. ed., 773. 3 2 Pomeroy, Equity, §§ 884r-89, cases. FRAUD 477. FRAUD Fraud avoids a contract ab iwiMtf — vitiates all con- tracts whether intended to operate against a party, a stranger, or the public generally. The guilty party cannot allege his own fraud in order to avoid his own act; and he may he liable in damages where real in- jury is done. The agreement cannot be adopted in part: all must be disatBrmed or none.' Fraud is never presumed. The burden of proving it rests upon him who alleges it. It is a question of fact to be determined from all the circumstances in each case.' Allegations of fraud must be specific in time, place, persons, etc., so that the defendant may meet the charge, and the court see w^hether ordinary dili- gence to discover the fraud has been used.'' Being a term which the law applies to certain facts, where, upon the facts, the law adjudges fraud, it need not be expressly alleged.* Gross negligence tends to show fraud.' All avenues that facilitate the detection of fraud are to be kept open and free from bars arid estoppels." The presence of fraud is a fact, the evidence of which must satisfy an imprejudiced mind beyond a reasonable doubt.' Circumstantial evidence is, in most cases, the only proof that can be adduced.' While the common law affords reasonable protec- tion against fraud in dealing, it does not go to the romantic length of giving indemnity against the con- sequences of indolence and folly, or of careless indif- ference to the ordinary and accessible means of knowledge.' A court of equity will not grant relief when the complainant has a complete, effectual, direct, certain and adequate remedy in a court of common law." Statutes make many different acts frauds, and pro- vide for punishment by criminal proceedings. Rem- edies available at law are: an action on the case in the nature of a writ of deceit for damages; and an action for money received, by which the tort is waived. Bemedies in equity: rescission of the contract; spe- 1 Foreman v. Bigelow, 4 Cliff. 543-49 (1878), cases, Clifford, J. See also Feltz v. Walker, 49 Conn. 98 (1881), cases, Carpenter, J. "Eager v. Thompson, 1 Black, 91 (1861); Humes v. Scruggs, 94 U. S. 28 (1876); 2 Pars. Cont. 784. 'See Steams v. Page, 7 How. 829 (1849); Moore v. Greene, 19 id. 70 (1856); Badger v. Badger, 2 Wall. 95 <1864); Ambler v. Choteau, 107 U. S. 691 (1882). ■•Stimson v. Helps, 9 Col. 36 (!885); Kerr, Fraud, &c. 'First Nat. Bank of Carlisle v. Graham, 100 U. S. 702 (1879), cases. 'Pendleton v. Eichey, 32 Pa. 63 (1858); 11 Wfend. 117; 4 Kent, 269. ' 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), C£ises. '2 Kent, 484, oases; Senter v. Senter, 70 Cal. 62^-24 (1886), cases. "Green • 2 Bl. Com. 337, 259; 2 Whart. Ev. § 903. »2 Bl. Com. 46S; 3 Pars. Contr. 19. " 3 Bl. Com. 159; 3 Pars. Contr. 19, 29, 31, 35; 2 Whart. Ev. §§878-80; Mahan u. United States,/ 16 Wall. 146 (1872); Becker v. Mason, 30 Kan. 700-2 (1883), cases. * Stowers «. Hollis, 83 Ky. 648-49 (1886), oases; Doyle ■a. Dixon, 97 Mass. 811 (1867): 93 Am. Dec. 85-90, cases. «2 Bl. Com. 448; 3 Pars. Contr. 39; 2 Whart. Ev. § 869; 1 Law Q. Kev. 1-31 (1884); '37 Alb. L. J. 492 (1888). » 2 Bl. Com. 376, 500, 515; 2 Whart. Ev. §§ 884r-900. ' Browne, Stat. Fr. §316. upon the strength of which credit is to be given; and as to contracts for the sale of goods, not yet made or llnished, amounting to ten pounds or upward.' FKATJS. L. A cheating; deceit; imposi- tion ; fraud. Compare Dolus. rraus est eelare fraudem. It is a fraud to conceal a fraud. Concealment (g. «.) may amount to fraud. Fraus latet in generalibus. Fraud lurks in general expressions. Pia &aus. Pious fraud : evasion of law to advance the interests of a religious insti- tution. See Mortmain. FBiBE. Not subject to restraint or con- trol; having freedom of will; at liberty; also, that on which no chai'ge is made. Com- pare Frank. 1. Liberated from control of parent, guard- ian, or master; SM,i juris: said of a child, ward, apprentice. 2. Individual; exclusive; privi'eged; in- dependent; opposed to common: said of a fishery, a warren, and formerly of a City or town, qq. v. See also MUNICIPIUM. 3. Clear of offense, guiltless, innocent; also, released from arrest, liberated: used of persons acquitted or released from imprisdn- ment. 4. Open to all citizens alike: as, a free school, q. V. 5. Not arbitrary or despotic ; assuring lib- erty; defending individual rights against encroachment by any person or class : as, a free government, free institutions.^ 6. Certain; honorable; becoming a free- man ; opposed to base : as, free-socage, g. v. 7. That for which no charge is made for use ; opposed to toll : as, a free bridge, q. v. Not gained by purchase: as, free admis- sion, free passage. Free on board. In a contract for the sale and delivery of .goods "free on board " vessel, the seller is under no obligation to act until the buyer names the ship to which the delivery is to be made: until he knows that he could not put the articles on board.^ Compare Fbais. 8. Neutral: as in saying that "free ships make free goods." Freely. Without constraint, coercion, or compulsion.* See Duress ; "Will, 1. ' Smith, Contr. 95; Eeed, St. Frauds. = Webster's Diet. ' Dwight II. Eckert, 117 Pa. 508 (1888), cases. 'Dennis v. Tarpenny, 20 Barb. 374 (1855); Meriam V. Harsen, 2 Barb. Ch. 269 (1847). FREE 479 FREIGHT Freedman. One made free; a manu- mitted slave. See Citizen, Amendments; Liberty, 1. Freeman. One born or made free as to civil rights. In the constitutions of Pennsylvania of 1776 and 1790, " freemen " described citizens who were capable of electing or being elected representatives of the peo- ple in the Provincial Council or General Assembly. The term with this meaning was brought by William Penn from England. A freeman is one in possession of the civil rights enjoyed by the people generally. This freedom of civil rights was termed his "free- law," and W£is liable to forfeiture for disloyalty and infamy. . . The language of the amended constitu- tion of 1838 was " white freeman." i In those constitutions, referring to the right of suf- frage, does not include females." Freehold. The possession of soil by a freeman. Such estate as requires actual pos- session of the land. Such estate in lands as is conveyed by livery of seisin, or, in tene- ments of an incorporeal nature, by what is equivalent thereto ; as, by receipt of rent.3 An estate in real property, of inheritance or for life ; or, the term by which it is held.^ Any estate of inheritance or for life, in real property, whether it be a corporeal or in- corporeal hereditament. 5 Also, the land itself. See Abatement, 1 ; Waste, 1. Freeholder. The actual owner of land. He was originally a suitor of the courts, a juror, voted for members of parliament, and could defend his title to land." Such as holds a freehold estate, that is, lands or tenements, in fee-simple, fee-tail, or for term of life.^ One who owns land in fee, or for life, or for some indeterminate period. The estate may be legal or equitable.' One who has title to real estate, irrespective of the amount or value thereof.' 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 not be required to furnish security for the performance of a legal obligation. See further Arkest, 3. 1 McOafferty v. Guyer, 59 Pa. 115-18 (1868), Agnew, J. » Bumham i;. Lnnlng, 9 Phila. 841 (1871). ' [2 Bl. Com. 104, 809. * Gage V. Scales, 100 lU. 821 (1881), Craig, C. J. •4 Kent, 24. «2 Bl. Com. 120. ' Bradford v. State, 15 Ind. 353 (1860): Jacob. 8 State V. Eagland, 75 N. 0. 13 (1876), Rodman, J. • [People V. Scott, 8 Hun, 567 (1876), Talcott, J. Freehold estates are : 1. Of inheritance — (a) absolute, as tenancy in fee-simple ; (6) lim- ited: qualified or base, and conditional — later, fees-tail. 2. Not of inheritance. These are chattel interests in lands. They are for life, and either conventional or legal; the lowest species is the estate for the life of an- other, i See Condition ; Fee, 1 ; Feud : Shel- ley's Case. FREIGHT. Merchandise transported or to be transported ; also, compensation for that service. In its widest sense, may include fare, for it is that " with which anything is fraught or laden for transportation ; " and, by a figure of speech, the price paid for the transporta- tion.2 The burden or loading of a ship, or the cargo which she has on board ; likewise, the hire agreed upon between the owner or mas- ter of a vessel for the carriage of goods from one port or place to another.' Goods carried ; and the price to be paid for the carriage, or for the hire of a vessel under a Charter-party or otherwise.4 Compensation for the carriage of goods.^ In policies of marine insmance, freight means the earnings or profit derived by the ship-owner or the hirer from the use of the ship himself, or from letting it to others, or from carrying goods for others. Does not include cargo or goods laden on board, which are insured under the term goods, cargo, merchandise, or word of like import; nor profit which the owner of the cargo expects to derive from the transportation." Afireightment. The contract for the use of a vessel. Dead freigM. Money paid or due for unoccupied capacity in a vessel.' The amoimt of freight to be paid rests upon con- tract expressed in the charter-party or bill of ladmg, or else is implied in law — for a reasonable sum. ' In the absence of a different stipulation, freight is only payable when the merchandise is in readiness 1 2 Bl. Com. 120; 80 Va. 844. 'Pennsylvania R. Co. v. Sly, 65 Pa. 211 (1870), Shars- wood, J. s [Brittan v. Bamaby, 21 How. 533 (1858), Wayne, J. • [Lord V. Neptune Ins. Co., 10 Gray, 112 (1857), Shaw, 0. J. See also 1 Mas. 18; 3 id. 344; 1 Sprague, 819; 1 Ware, 138; 13 East, 335; L.B., 7 C. P. 348. » Palmer v. Grade, 4 Wash. 123 (1821). « [Minturn v. Warren Ins. Co., 8 Allen, 91 (1861), Big- elow, C. J. ' See Gray v. Carr, L. B., 6 Q. B. *528 (1871); Phillips V. Eodie, 15 East, 264 (1812). 8 Palmer v. Gracie, 4 Wash. 123 (1881). FRENCH 480 FRIVOLOUS to be delivered to the person having the right to re- ceive it.i Freight pro rata itineris not being earned where, from necessity, cargo is accepted before arrival at the port of destination, in a case of average, there can be no contribution on it.^ Freighter. He who loads a vessel, under ■a contract of hire or of affreightment. ^ The ship-owners undertake that they will carry the ^oods to the place of destination, unless prevented by the dangers of the seas, or other unavoidabte casualty ; and the freighter undertakes that, if the goods be de- livered at the place of destination, he will pay the stipulated freight. . If the ship be disabled from completing her voyage, the owner may still entitle himself to the whole freight by forwarding the goods •by some other means to their destination; but he has -no right to any freight if they be not so forwarded, unless the forwarding be dispensed with, or there be a mew bargain made. If the ship-owner will not forward i^em, the freighter is entitled to them without paying anything. The general property in the goods is in the freighter; the ship-owner has no right to withhold the possession from him, unless he has either earned his freight or is going on to earn it.* See Average; Charter, 1, Party; Commerce; Dis- patch; Frais; Insurance, Marine; Lading, Bill of; Restitutio; Seaworthy. FRENCH. Law-French, which is used in old law-books and legal proceedings, ex- hibits many terms and idioms not employed in classic French. Under William the Norman and his sons, all the public proceedings of the courts, including arguments and decisions, were expressed in Norman law-French. In the thirty-sixth year of Edward III (1363), it was en- acted that all pleas should be shown, answered, de- bated, and judged in the English tongue, but be entered and enrolled in Latin, which, being a dead language, was immutable. However, the practitioners and re- porters continued to take notes in the customary law- French. This law-French differs as much from modern French as the diction of Chaucer differs from the dic- tion of Addison. English and Norman being concur- rently used for several centuries, the two idioms assimilated and borrowed from each other.= " The constitution of the aula regis, and the judges themselves, were fetched from Normandy; in conse- quence, proceedings in the king's courts were carried on in Norman." " Norman-French, as employed about the courts, was often intermixed with scraps of Latin and pure English.' See Latin. 1 Brittain v. Bamaby, 21 How. 533 (1858). ' Thd Joseph Farwell, 31 F. E. 844 (1887). ! See 3 Kent, 173; 3 Johns. 105. ' Hunter v. Prinsep, 10 East, 394(1808), EUenborough, C. J. Approved, The Tornado, 108 U. S.' 347, 349 (1883), Blatchf ord, J. 5 [3 Bl. Com. 317-18.] « 4 Bl. Com. 416. ■= 8 Hume, Hist. En^. 115. FREQUElfT, V. A single visit to a place, or once passing through a street, can- not be said to be a "frequenting " that place or street. May be used in contradistinction to " found," which applies to the case of a person apprehended in a build- ing or inclosed ground, where the necessary inference would be that the purpose was unlawful, in which case it would be enough to show that the party was in the. place only once.^ Webster's definition- " visiting often, resorting to often or habitually," expresses the popular under- standing. What amounts to " frequenting " a street must depend upon circumstances.* FRESH. See Suit, 1. FRESHET. See Act, 1, Of God; Bed, 2; Watee-couese. FRIDAY, GOOD. See Houdat. FRIEND. Compare Ami; Amicus. One favorably disposed to another person. Friend of the cotirt. A disinterested by-stander who furnishes information to the judge trying a cause, or to a court, on a mat- ter of law or fact of which notice may be taken without proof. Usually, a member of the bar of the court. ' See Amicus, Curiae. Next friend. One who acts for another who is not sui juris: a representative for the special office of carrying on a suit in court. An infant sues by his "next friend," and defends by his guardian ad litem. Similarly, a married woman, who has an interest which conflicts with the interest of her husband, may sue him by her " next friend " — any acquaintance. The next friend may be held for the costs of unsuccessful litigation; and he may be required to file his authority to appear. ^ FRIVOLOUS. Is applied to an answer, plea, or objection which upon its face is clearly insufficient in law, and apparently made for purposes of delay or to embarrass an adversary. An answer is frivolous when it controverts no ma- terial allegation in the complaint, and presents no tenable defense; * when it sets up a matter which may be true in fact, but forms no defense. A sham or false answer may be good in form, but false in fact.= See Sham. To constitute a pleading frivolous, it must be ap- 1 Clark V. The Queen, 14 Q. B. D. 98 (1884), Grove, J.; Vagrant Act, 5 Geo. IV (1835), c. 83. 'Ibid. 101-2, Hawkins, J. s See 3 Bl. Com. 300- Herzberg v. Sachse, 60 Md. 438 (1883). *LefEerts v. Snediker, 1 Abb. Pr. o. s. 48 (1854); Brown v. Jennison, 3 Sandf. L. T32 (1851); Lerdall v. Charter Oak Ins. Co., 51 Wis. 430 (1881): 7 id. 383. ' People V, Mc(3umber, J8 N. T. 321 (1858). FROM 481 FUGITIVE parent on mere inspection, without examination or research, that it is utterly invalid.' When it needs argument to prove that an answer or demurrer is frivolous, it is not frivolous. ' A pleading seen to be frivolous, upon bare inspec- tion, will be stricken off by the court.' PROM. Compare After ; At ; To. 1. Is taken inclusively according to the subject- matter; as, in a grant of power to construct a railroad "from" a place.* " From " a street may mean from any part of the street; not, necessarily, from its inner or nearest line.' " From the city " was held to mean from any point within the city." 2. In computing time " from " a day, the rule is to exclude that day.' See Day. 3. Descent " from " a parent means by act of the parent.* See Descent. 4. An indictment that charges stealing com " in " the field may be fatally defective under a statute which makes stealing '• from " a field a felony." FBUCTtrS. L. Fruit, fruits ; increase ; profit. Fructus industriales. Cultivated fruits. Pructus industriae. Fruit of labor, or in- dustry ; emblements, the products of plant- ing and cultivation. Pructus natuxales. Nature's growths; natural fruits: increase by the unassisted powers of nature ; as, the fruits of uncultivated trees, the young of animals, and wool. Although the cases are not uniform, there is abun- dant authority for holding that crops, such as com, wheat, rye, potatoes, and the like, called fructua in- dustriales, are regarded as the representatives of the labor and expense bestowed upon them, and as chat- tels, while yet growing; and, hence, as such, go to the executor, may be seized upon execution as chattels, and be sold or bargained by parol; while growing grass and trees and the fruit on them, called /ruc*i« naturales, are a part of the soil of which they are the natural growth, descend with it to the heir, and, until severed, cannot be seized upon execution, and, imder the statute of frauds, cannot be sold or conveyed by 1 Cahoon v. Wisconsin K. Co., 10 Wis. *293 (1860), «ases. ' Cottrill V. Cramer, 40 Wis. 659 (18T6), Ryan, C. J. ' Taylor v. Nyce, 3 W. N. C. 433 (Pa., 1877). * Union Pacific E. Co. u Hall, 91 U. S. 348 (1875), ■cases. e City of Pittsburgh v. Cluley, 74 Pa. 261 (1873). • Appeal of West Penn. E. Co., 99 Pa. 161 (1881). See also 33 Me. 67; 53 id. 252; 7 Allen, 487; 7 Barb. 416; 9 Wend. 346; 3 Head, 696; 2 Mas. 137. ' Sheets v. Selden, 2 Wall. 190 (1864); Best v. Polk, 18 id. 119 (1873). See also 19 Conn. 376 ; 52 Ga. 844 ; 24 Ind. 194; 13 B. Men. 460; 13 Me. 198; 9 N. H. 304; 24 Barb. 9; 9 Cranch, 104; 1 Gall. 248. 'Gardner v. Collins, 2 Pet. *91 (1829); Case v. Wild- Jidge, 4 Ind. 54 (1853). » State V. Shuler, 19 S. C. 140 (1883). (31) parol. But if the owner of the fee, by a conveyance in writing, sells these natural products ot the earth, which grow spontaneously without cultivation, to be taken from the land, or sells the land reserving them to be cut and removed by himself, the law regards this action as equivalent to an actual severance.' See Caop; Emblements; Fruit. Pructus legis. The fruit of the law — execution. Pructu^ pendentes. Hanging fruits. Pructus stantes. Standing fruits; fruits united to the thing which produces them. See Usus, Fructus. PBUIT. Increase; profit; product; en- joyment. Natural fruits. The natural product of trees, bushes, and other plants. Artificial fruits. Such things as interest on money, loaned or due. Figurative expressions are: fruits of crime; that execution is the fruit of a judgment. SeeFauoTDs; Emblements; Larceny; Perishable. PTJGITIVE. Used only in the sense of a "fugitive from justice:" a person who commits a crime within a State, and with- draws himself from its jurisdiction without waiting to abide the consequences of his act.2 Acts of limitation of criminal prosecution do not apply to persons " fleeing from justice." ' " Fleeing from justice " (act of 1790) is, leaving one's home or residence or known place of abode, with in- tent to avoid detection or punishment for some public offense against the United States. An offender may flee by secreting himself, or by not being usually and publicly known as being within the district.* " A Person charged in any State with Treason, Fel- ony, or other Crime, who shall flee from Justice," etc., are the words of the Constitution relating to extradi- tion of offenders.' There must be an actual fleeing. " Who shall flee " does not include a person who was never in the place from which he is said to have fled.' Defendant may plead either specially or generally; if specially, the government may reply " He fled," etc. Defendant may not demur.' See at length Extradi- 1 Kimball v. Sattley, 56 Vt. 291 (1883), cases, Teazey, J.; ib. 540; 118 Mass. 125; 40 Md. 218. ' [Be Voorhees, 32 N. J. L. 160 (1867), Beasley, C. J. » See Act of 1790, § 3?: E. S. § 1043; Act of 1804, § 3: B. S. S 1046. « United States v. O'Brian, 3 DUl. 383 (1874), DUlon, Cir. J. ' Constitution, Art. FV, sec. 2, cl. 2. 'Jones V. Leonard, 50 Iowa, 108 (1878). See also United States v. Smith, 4 Day, 126 (1809); United States V White, 5 Cranch, C. C. 44 (1836). 'United States v. Cook, 17 WaU. 168 (1872); United States V. Norton, 91 U. S. 666 (1875); 3 Crim. Law Mag. 787-810 (1882), cases on points of practice. FULFILL 483 FUNDAMENTAL PULriLL. See Perfobm. FULL. Not wanting in any essential quality; complete; entire; whole; perfect; adequate. Full age. The age of twenty-one years ; majority. See Age. Full blood. Whole blood. See Blood. Full court. All the members of a court Bitting together. Full defense. A general defense. See Defense, 3. Full faith, and credit. Entire confi- dence and efficacy. See further Faith, Full. Full price. A price which is fair or rea- sonable. See Price. Full proof. Proof to the exclusion of a reasonable doubt. See Proof. Fully. See Administer, 4. In full. 1. Completed, filled up, not blank ; as, an indorsement {q. v.) which names the indorsee. 2. For all that is due, and not on account : as, a receipt in full, satisfaction in full, qq. v. FUNCTUS. See Ofpicium, Functus, etc. FUND; FUNDS.i A deposit of re- sources ; stock or capital ; money invested for a specific object ; revenue : as, the fund of a bank, or of a trust. - " Funds," as employed in commercial trans- actions, usually signifies money.s A " fund " is merely a name for a collec- tion or an appropriation of money.* "While the restricted meaning of "funds" is cash on hand, the broader meaning includes property of evei-y kind, when such property is specially contemplated as something to be used or applied in the payment of debts. Thus, for example, as employed in a statute, may comj)rehend all the resources of a cor- poration.' Current funds. Current money; cur- rency, q. V. Funded debt. The term "fund" was originally applied to a portion of the national revenues set apart or pledged to the payment of a particular debt. And a " funded debt " 1 F. fondy tb merchant's stock: L. fundus, bottom. Whence "fundamental." " See Webster's Diet. 3 Galena Ins. Co. v. Kupfer, 28 Dl. 335 (1868). See 91 N. T. 65; 24 N. J. E. 368. ■•People V. N. Y. Central E. Co., 34 Barb. 135 (1861). ' Miller V. Bradish, 69 Iowa, 880 (1886), Seevers, J. was a debt for the payment of the principal or interest of which some fund was approjiri- ated.i Funding. Has been applied to the process of collecting together a variety of outstanding debts against corporations, the principal of which was pay- able at short periods, and borrowing money upon the bonds or stocks of the corporation to pay them off; the principal of such bonds or stocks being made pay- able at periods comparatively remote. The word is never used to describe an ordinary debt growing out of a transaction with an individual and represented by a, single instrument.! Fundholder. A person to whose custody money is committed, or into whose care trust funds come. Compare Stakeholder. Wo funds. No resources or assets, as when it is said that a trustee has " no funds ; " also no money on deposit to one's credit, as when a draft drawn upon a bank is returned "no funds." If a formal demand is made, during banking hoius, by the holder of a note, at the bank where it is pay- able, and there are no funds, it is the duty of the bank to say that there are "no funds; " and there is then a breach of the contract on the part of the maker, and notice thereof would bind the indorsers. There is na necessity for a personal demand upon the maker else- where. But if no such demand is made, and the note is only sent or placed in the bank for collection, then the maker has till the close of business hours to make payment. Sending a note through the clearing-house is not a formal demand for immediate payment made during business hours, but is equivalent to leaving the note at the bank for collection from the maker on or before the close of banking hours.'^ See Assignment, Equitable. Public funds. The stock of a public debt ; securities of government.^ Sinking "fund. Money, arising from particular taxes or duties, appropriated to- ward the payment of the principal and inter- est of a public loan.* See Identity, 2; Marshal, 8. FUNDAMENTAL. See Constitution. Alterations m a charter which are not "funda- mental," and are authorized by the legislature, may be effectually accepted by a majority of the stock- holders — a majority pei- capita or of the shares voted, as the case may require. Alterations which actually ' Ketchum v. City of Buffalo, 14 N. Y: 307, 3 Selden, J. 2 Nat. Exchange Bank v. Nat. Bank of North Amer- ica, 138 Mass. 148 (1883). s See 1 Bl. Com. 331. 4 See Ketchum v. City of Buffalo, 14 N. Y. 367 (1866); Union Pacific E. Co. v. Buffalo County, 9 Neb. 463 (1880); Bank for Savings v. Mayor of New York, 103 N. Y. 313, 385 (1886). FUNERAL 483 FUTURE change the nature and purposes of the corporation, or ol the enterprise for the prosecution of which it was created, are "fundamental."' FUNERAL. See Bueial. " Funeral expenses" may include the cost of car- riage-hire, vault, and tombstone, besides the cost of shroud, coffin, grave, etc.^ But not, charges for dinner and horse-feed furnished to persons attending the funeral. See Executor.' , FURNITURE. That -which furnishes, or with which anything is furnished or sup- plied. Whatever may be supplied to a house, a room, or the like, to make it habitable, convenient, or agreeable. Goods, vessels, utensils and other appendages, necessary or convenient for housekeeping. Whatever is added to the interior of a house or apartment for use or convenience.'' Relates, ordinarily, to movable personal chattels; but is very general, in meaning and application, and the meaning changes, so as to take the color of, or to accord with, the subject to which it is applied.^ Household fiirniture. Those vessels, utensils, or goods, which, not becoming fixt- ures, are designed, in their manufacture, originally and chiefly for use in the family, as instruments of the household and for con- ducting and managing household afl'airs. Does not include a trunk or a cabinet bpx.' Embraces everything about a house that has been usually enjoyed therewith, including plate, linen, chma, and pictm-es.' A bequest of household furniture ordinai'il.y com- prises everything that contributes to the convenience of the householder or to the ornament of the house. Does not include the furniture of a school-room in a boarding-school.* As used in a bequest, includes bronzes, statuary, and pictures placed In various parts of the house to render it more agreeable as a place of residence, if comporting with the testator's means and the general style of furnishing the house.^ See Contained; Im- plements. ' Mower v. Staples, 33 ilinn. 2S6 (1884), cases. Berry, Judge. "Donald v. McWhorter, 44 >nss. 29 (1870); Matter of Lnckey, 4 Eedf . 95 (1879); 14 S. & R. 64. 2 ShaefEer v. ShaefEer, 54 Md. 683 1 1S80). See, in gen- eral, McClellan v. Filson, 44 Ohio St. 188-89 (1886), cases. * Bell V. Goldmg, 37 Ind. 179 (1866), Ray, C. J. See also Grossman v. Baldwin, 49 Conn. 491 (1883). « [Fore V. Hibbard, 68 Ala. 413 (1879), Manning, J. « Towns V. Pratt, 33 N. H. 350 (1856), Sawyer, J, ' Endicott v. Endicott, 41 N. J. E. 96 (1886); M'Micken V. M'Micken University, 2 Am. Law Reg. 489 (1863); 2 Jarm. Wills, 353; 63 N. H. 295. *Hoopes's Appeal, 60 Pa. 227 (1869), cases, Shars- wood, J. 9 Richardson v. Hall, 124 Mass. 237 (1878), Colt, J. See also 33 Me. 635; 14 Mich. 506; 1 Johns. Ch. 329, 1 Robt. Furniture of a ship. Includes every- thing with which a ship requires to be fur- nished or equipped to make her seaworthy.i See Appurtenance. FURS. See Perishable. FURTHER. Additional: as, further — assurance, compensation, proof, qq. v. ; also, subsequent or later: as, a further hearing, q. V. " Any further tax," used with relation to some other tax, must mean any additional tax besides that re- ferred to, and not any further like tax." FUTURE. That which may or will be hereafter : as,' future — advances, damage, earnings, estate, qq. v. See also Devise, Ex- ecutory; Expectancy; Remainder; Sale; Time ; Use, 3. Futures. The expression "dealing in futures" has grown out of those purely speculative transactions in which there is a nominal contract of sale for future delivery, but where in fact none is ever intended or executed. The nominal seller does not have or expect to have the stock or merchandise he purports to sell, nor does the nominal buyer expect to receive it or to pay the price. Instead, a purcentage or " margin " is paid, which is increased or diminished as the market rates go up or down, and accounted for to the buyer. This is simply speculation and gambling; mere wager- ing on prices within a given time.' , "One person says: I %\'ill sell you cotton (for ex- aipple) at a certain time in the future for a certain price. You agree to pay that price, knowing that he has no cotton to deliver at the time, but with the un- derstanding that, when the time for delivery arrives, you are to pay him the difference between the market value of the cotton and the price you agreed to pay, if cotton declines, and, if it advances, he is to pay you the difference between what you promised to give and the advanced market }irice." * There is no gambling unless both sides gamble ; and from the intent or belief of one party it is not fair to presume a like intent or belief as to the other party. ^ See further Wagek, 2. 21; 13 E. I. 20; 30 Vt. 224; 2 Munf. 234; 5 id. 272; 18Wis. 103; 1 Ves. Sr. 97; 1 Jarman, Wills, 501, 596, note; 2 Williams, Ex. 1017. ' Weaver v. The S. G. Owens, 1 Wall. Jr. 369, 359 (1849), Grier, J. ' Gordon v. Appeal Tax Court, 3 How. 147 (181.5). 2 Kmg V. Quidnick Company, 11 R. I. 138 (1883), Sti- ness, J. See also Hatch v. Douglas, 48 Conn. 137 (1880), Carpenter, J. < Cunningham v. Nat. Bank of Augusta, 71 Ga. 403 (1883), cases, Blantord, J. ; Mutual Life Ins. Co. v. Wat- son, 30 F. R. 6,53 (1887). 5 Bangs V. Hornicb, 30 F. R. 98 (1887), cases. See gen- erally Marshall v. Thurston, 3 Lea, 740 (1879), cases; Bartlett v. Smith, 13 F. R. 203 (1883); Irwin v. Millar, 110 U. S. 499, 508-11 (1884), cases; Kirkpatrick v. Adams, 20 F. R. 387, 293 (1884); Beadles v. McElrath, Sup. Ct. Ky. (1887); 3 S. W. Rep. 153, note. G 484 GAME G. G. In a few words, originally beginning with u or w, prefixed to the form which comes through the French, as, in guard for ward ; in law-French, equivalent to our to. Whence, also, the doublets gage and wage, guar- anty and warranty, guardian and ward, garnish and warn; also seen in warden, warren, and award.* G. S. General statutes. GAGE. See G; Mortgage. GAIN". See Bet; Earnings; Income; Lucrum; Profit. GALLON. The gallon of our commerce conforms to the old wine-measure of two hundred and thirty-one cubic inches.^ GALLOWS.3 A beam laid over and fastened to one or two posts, from which a criminal, condemned to death, is suspended. See Death, Penalty. GAMBLE. To play a game of chance or skill for stakes, or to bet on the result of the game; to game or play for money. Gambler. One who follows or practices games of chance or skill with the expecta- tion and purpose of thereby winning money or other property.* Common gambler. Applied to a person who furnishes facilities for gambling, — one who, for gambling purposes, keeps or exhib- its any gambling table, establishment, device or apparatus. 5 Gambling. Anything which induces men to risk their money or property without other hope of return than to get for nothing a given amount from another person.* Crambling device. An invention to deter- mine who wins and who loses among those that risk their money on a contest or chance of any kind.' Qambling house. Keeping a structure of 'See Ayers v. Kndley, 1 Pa. 501 (1845), Gibson, C. J.; Webster's Diet. " Duty on Ale, &c., 16 Op. Att.-Gen. 359 (1879); E. S. S 2504, Sch. D. " Gal'-lus. Mid. Eng. galwes, pi. of A. S. galga, cross, gibbet. * Buckley v. O'Niel, 113 Mass. 193 (1873), Ames, J. •People V. Sponsler, 1 Dak. 291-95 (1876), cases. 'Brua's Appeal, 55 Pa. 296 (1867), oases; Smith v. Bouvier, 70 id. 325 (1872); 14 Bush, 741; 49 Mich. 387; 73 E. C. L. 525. ' [Portis V. State, 27 Ark. 362 (1872); State v. Bryant, Mo. Sup. Ct. (1887): 2 S. W. Eep. 836; 2 Whart. Or. L; §1465. • any kind for purposes of gambling, is an in- dictable offense at common law.i Qambling 'policy. A policy of life in- surance issued to a person who has no pecun- iary interest in the life insured. 2 See further Game, 3 ; House, 1. GAME. 1. "Wild animals pursued for amusement or profit. In its most compre- hensive sense includes beasts, birds or fowl, and fishes. Game laws. Statutes regulating the tak- ' ing or killing of animals of a wild nature. Another designation is Oame and Fish Laws. See Fish, 1. Game laws are designed to preserve insectivorous birds,, and the breeds of fowl and quadrupeds valuable to man for food and for sport. The details of these regulations must be sought for in the statutes of the several States.' See Pbopebty, Qualified. In English law, a " chase " Is the liberty of keeping beasts of chase or royal game in an uninclosed space, protected even from the owner of the land, with right to hunt them thereon. A *' park " is an inclosed chase, extending over a man's own grounds. A " forest," in the hands of a subject, is the same as a chase. At common law, it was once unlawful to kill beasts of park or chase, except as to such persons as possessed one of these franchises.* In 1831 the law was modified to enable any one to obtain a license to kill game, on the payment of a fee.* See Cruelty, 3; Wakeen. Game; games; gaming; gambling. A device or play the terms of which are that the winner shall receive something of value from the loser. , The act of playing a game for stakes. "Gaming," without the prefix "unlawful," seema usually to imply something of an unlawful nature, by betting on the sport. " Persons may play at a game which is not in itself unlawful, without gaming; but if money is staked it becomes gaming." * "Gaming" is the risking of money, be- tween two or more persons, on a contest or chance of any kind, where one must be the loser, and the other the gainer.' Imjilies something which in its nature de- ' People V. Sponsler, ante; 8 Whart. Cr. Law, § 1466. = Gambs v. Covenant Life Ins. Co., 50 Mo. 47 (1872). » See 19 Kan. 187; 128 Mass. 410; 7 Mo. Ap. 663; 60 N. Y. 10; 95 U. S. 465; L. E. 2 C. P. 653. <2B1. Com. 33, 416. 'See Appleton's New Am. Cyo, VIII; Wharton^ Law Diet. • Bishop, Stat. Crimes, § 860, quoting Campbell, C. J., in Eegina v. Ashton, 16 E. L. & E. 346 (1882). See Ansley v. State, 36 Ark. 67 (1880) ; Be Lee Tong, 18 F. E 253 (1883). ' Portis V. State, 27 Ark. 362 (1872), Bennett, J. , GAME 485 GANANICAL jends upon chance, or in which chance is an (lement.i "Gaming "is an offense against the public police )r economy. It tends to promote idleness, theft, and lebauchery among those of the lower class; and unong persons of a superior rank it has frequently Qeen attended with the sudden ruin and desolation of families, and an abandoned prostitution of every prin- ciple of honor and virtue, and often has ended in self- murder itself.* Playing at a game of chance for mere recreation is lawful.' " Illegal gaming " implies gain and loss between the parties by betting, such eis would excite a spirit of cupidity.* A "game of chance " is such a game as is deter- mined entirely or in part by lot or mere luck, and in 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.' A " gaming table " is any table kept and used for playing games of chance. It ueed not be necessary to the game, nor made in any particular way." " Gaming " implies games. " To game " is to play at any sport or diversion ; to play for a stake or prize ; to use cards, dice, billiards, or any other instrument according to certain rules with a view to win money or any other thing waged upon the issue of the con- test; to practice playing for money or any other stake; to gamble. " Game " embraces every contriv- ance or institution intended to furnish sport, recrea- tion, or amusement. \STien a stake is laid upon the chances, the game becomes "gaming." "Games" become unlawful by being prohibited by statute.' In common usage, "betting" and "gaming" are employed interchangeably ; yet not always so. If two persons play at cards for money, they are said to be gambling or gaming. They are gambling because they lay a wager or make a bet on the result of the game. To say that they are betting is equally appropriate. If two persons lay a wager upon the result of a pending election, it will be said that they are betting, not gaming. There is no gaming in which the element of the wager is wanting, but there is betting which the term gaming does not commonly embrace. It is so common to apply gaming or gam- bling to any species of immoral betting that the pre- cise meaning intended in a given case can be learned only from the connection. The terms are often ap- plied to transactions which are illegal in the sense only of being immoral, but which involve the element of wager, as in the case of option conti-acts. But while such contracts are probably not gaming in the sense of any criminal law, there could be nothing to prevent their being legi slated against under that head, 1 Bew V. Harston, L. E., 3 Q. B. 456 (1878), Cookburn, C. J. See also Bell v. State, 5 Sneed, 509 (1858). "431. Com. 171. ' 4 Chitty, Bl. Com. 171. ' People V. Sergeant, 8 Cow. 141 (1828). •State V. Gupton, 8 Ired. L. 873 (1848), Euffln, C. J. • Toney d. State, 61 Ala. 3 (1878) ; Whitney v. State, 10 Tex. Ap. 377 (1881); Walz v. State, 33 Tex. 335 (1870). ' People V. Weithofl, 51 Mich. 303, 210 (1883), Cooley, J. when they are of the nature of gaming and embody its evils. . . Base-ball and horse-races are games, and any "pooling" scheme in betting thereon is gaming, and the place where the pools are sold is a pooling room or place.' The means or device for either gaming or gambling may be — backgammon, 2 bagatelle,' billiards,' candy prize-packages," cards," cock-flghting,' dog-flghts," faro," gift-enterprises'" (g. v.), horse-racing," keno," loto," poker or draw-poker,'< pool,'" raffle with dice," rondo," stocks," tan, tantan," ten-pins.'" A discharge will not be granted to an insolvent debtor who has spent property in gaming: his is fraudulent insolvency." Property so acquired is an asset, which may not be spent in gaming; and the mode of acquisition cannot be inquired into.''' Money lost by gaming is not recoverable." Statutes which allow gaming are to be strictly con- strued.'* See Bet; License, 3; Lottery; Morals; Or, 2;Pool- iNG^rABLE; Speculation; Stakeholder; Wageb, 2. GANANICAL. "Gananical property," in Spanish law, is the community of gains, acquisitions, profits, made during marriage out of the property of either husband or wife or of both.25 ' People V. WeithofE, ante. ' 55 Ala. 198'. a 22 Gratt. 23. < 22 Ala. 64; 49 id. 37; 40 HI. 294; 15Ind. 474; 50 id. 181; 60 id. 457; 75 id. 586; 39 Iowa, 42; 41 id. 550; 34 Miss. 606; 8 Cow. 139; 28 How. Pr. 247; 17 Ohio St. 82. » 3 Heisk. 488. • 36 Ark. 67. ' 8 Mete. 232; 11 id. 79; 1 Humph. 486; 4 Sneed, 614; 3 Keb. 465; 3 Camp. 140. 8 1 Carr. & P. 613. • 4 Cranch, 0. C. 707, 719; 5 id. 378, 390; 63 Cal. 846. '" 5 Sneed, 507; 3 Heisk. 488. "23 Ark. 726; 30 id. 428; 9 Col. 214; 4 Harr., Del., 554; 69 Ga. 609; 23 111. 493; 61 id. 184, 473; 9 Ind. 35; 1 AUen, 563; Bl Mich. 218; 18 Me. 337; 16 Minn. 299; 4 Mo. 636, B99J 31 id. 36; 1 N. M. 621; 13 Johns. 88; 8 Gratt. 592; L. B., 6 Q. B. 514, 130. " 48 Ala. 182; 27 Ark. 355, 360; 7 La. An. 651. '« 1 Mo. 722. '* 8 Monta. 437; 33 Gratt. 884. 1" 39 Mo. 420; 51 Mich. 203, 214; 120 Mass. 273; 8 Lea, 411; L. E., 6 Q. B. 514. "26 Ala. 155; 15 Ark. 71; 5Eand.652; 14 Gray, 26, 390; 21 Tex. 692. " 15 Ark. 259. '8 70 Pa. 325. "70 Cal. 616; 18F. E. 253. . '" 29 Ala. 38; 32 N. J. L. 158; 11 Ired. L. 273. See gen- erally 2 Whart. Cr. L. § 1466; Cooley, Const. Lim. 749; 29 Me. 457; 8 Gray, 488; 38 N. H. 426. siE.S.§§ 5132, 5110. " Be Marshall, 1 Low. 462 (1870). " 2 Bish. Cr. L. § 507. " Alcardi v. Alabama, 19 WaU 639 (1873). !i [Cutter V. Waddingham, 22 Mo. 256, 255 (1855), Leonard, J. GAOL 486 GAZETTE " The right to gananicas is founded in the partner- ■Bhip ■which is supposed to exist between husband and wife, because, she bringing her fortione in dofe, gift and paraphernalia, and he his in the estate and prop- erty which he possesses, it is directed that the gains, which result from the joint employment of this mass, be equally divided." i That property which husband and wife, living to- ..gether, acquire during matrimony by a common title, lucrative or onerous; or that acquired by either or Iboth, by purchase or industry; also, the fruits of the separate property which each brings to the matri- mony or acquires by lucrative title during the contin- uance of the partnership. The gain is common to both. 2 GAOL. See Jail. GARDEN". See CuETrLAGB ; Feeld, 1 ; Messuage. GARDENIK'G. See Agriculture. GAIlin:SH.3 1. To warn, make aware, notify. 2. To attach property or a debt due or belonging to a defendant. Garnishee. One warned by legal process in respect to the interest of a third party in property held by him.* One in whose hands money or goods have been attached : he is "warned" not to pay the money nor to deliver the property to the defendant.5 The best reporters do not use garnishee as the verb.^ The person warned is garnishee^; the fund or property is garnished. Garnishment. The process of warning or citation.* Originally, a notice to a person not a party to a suit, to appear in court and explain his interest in the subject-matter of the litiga- tion or to furnish other information. Now, the act or proceeding of attaching money or property belonging to a judgment debtor but in the possession of a third per- son. Otherwise known as " factorizing,'' •'garnishee," or "trustee process." In the nature of an equitable attachment of the debt or assets of the principal defendant in the hands of a third person. Its object is to reach such assets and apply them in discharge of the principal debt.^ > [Cutter V. Waddingham, ante. ' " [Cartwright v. Cartwright, 18 Tex. 634 (1857), Hemp- hill, C. J. 3 F. garnir: A. S. warnian. See G. < [Smith V. Miln, 1 Abb. Adm. 380 (1848), Betts, J. 6 [Welsh V. Blackwell, 14 N. J. L. 348 (1834); 3 Jacob, ir.T; Pennsylvania R. Co. v. Pennock, 51 Pa. 254 (1865). = 22 Alb. Law J. 181 (1880). 'Bethel i^. Judge of Superior Court, 67 Mich. 381 (1885), ChampUn, J. The ofac^ of a garnishment is to apply the debt due by a third person to the defendant in a judgment to the extinguishment of that judgment, or to appropri- ate effects belonging to a defendant in the hands of a third person to its payment.' There must be a debt due from the garnishee to the defendant in the judgment, payable at the time of the service of the writ, or to become payable. The debt must be at least a cause of action. " The person warned becomes a mere stakeholder, with a right to such defense against the new claimant as he has against the judgment-debtor. The proceed- ing is substantially an attachment, q. v. It arrests the property in the hands of the garnishee, interferes with the owner's or cf editor's control over it, subjects it to the judgment of the court, and thus operates as a seizure. It is effected by serving notice as directed by statute. 3 GAS COMPANIES. See Monopoly; Police, 2. ' GASOLINE. See Oil. GATES. See Wat, Right of. GAVELKIND.* A particular custom in vogue in Kent (though perhaps general till the Conquest) which ordained that all sons alike should succeed to their father's estate. The estate was not subject to escheat for attainder; the tenant could alien by enfeoffment at fifteen, and could devise by will. It was a species of socage tenure modified by custom. ^ GAZETTE. Originally, a piece of money current at Venice ; next the price at which sheets of news were sold; then the sheets themselves. 6 The official publication of the English gov- ernment; also called the " London Gazette." It is^ evidence of acts of state, and of all pohtical acts performed by the Queen; orders of adjudica- tion in bankruptcy are also published, in it. "When the defendant cannot be found to be served with a subpoena in chancery, a day for him to appear, being first appointed, is inserted in the Lon- I Strickland v. Maddox, 4 Ga. 394 (1848); Western E. 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 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); Godding v. Pierce, 13 R, I. 533 (188?); Steen v. Norton, 45 Wis. 414 (1878); Bicldei;. Chrisman, 76 Va. 091 (1862). = Lane's Appeal, 103 Pa. 65 (1884). s Miller V. United States, 11 Wall. 297 (1870), Strong, J. ; Schuler v. Israel, 120 id. 508 (1SS7); 24 Am. Law Reg. 626-34 (1885), cases. Inter-State exemptions, 21 Cent. Law J. 425-23 (1885), cases. ■> " Gave all kinde,"— 1 Coke., Litt 140 a. ' See 1 Bl. Com. 75; 3 id. 84; Williams, E. P. 1 ^ Trench, Glossary. GENDER 487 GENTLEMAN don Gazette. In default o£ appearance, the bill will be taken pro confesso.^^ ^ GENDER. See Man. In the Revised Statutes, and in acts and resolutions of Congress, passed subsequently to February 25, 1871, ■words imparting the masculine gender may be ap- plied to females.'* GENEALOGY. See Affinity; Con- sanguinity; Pedigree. GENERAL. 1. Relating to a whole genus (q. v.) or kind, to a whole class or order; 3 whether of persons, relations, things, or places. Opposed (1) to local , private, or special (see 6, below) : as, general or a general — custom, jurisdiction, law, practice, restraint, statute, usage, qq. v. Opposed (2) to partial: as, a general as- signment, q. V. Opposed {S) to particular: as, general aver- age, a general challenge, a general lien, qq. v. Opposed (4) to private or individual: as, a general ship, q. v. Opposed (5) to specific: as, a general — in- tent, legacy, malice, qq. v. Opposed (6), and chiefly, to special: as, general or a general — agent, appearance, appointment, charge, covenant, damage, de- murrer, deposit, deputy, issue, executor, find- ing, guaranty, guardian, monition, occupant, order, owner, property, return, return-day, rule, session, sessions, tail, traverse, verdict, warranty, qq. v. 2. Belonging to, concerning, or affecting two or more persons or classes of persons, or persons in the same category; and op- posed to individual: as, general — assets, creditors, meeting, partners, qq. v. 3. Common; obtaining among acquaint- ances or in the community at large: as, gen- eral — credit, reputation, qq. v. 4. Representing or pertaining to the public at large, whether constituting a State or the United States; State, or National: as, the general assembly, a general election, the gen- eral government, qq. v. 5. Over all others; chief, superior, head: as, in attorney-general, postmaster-general, solicitor-general. Conti-adistinguished from ■deputy, district, local, special. 1 3 Bl. Com. 445. 2R. S. § 1. See also Atchison, County Judge v. Lucas, 83 Ky. 464 (1885). a Brooks v. Hyde, 37 Cal. 376 U869). 6. Inclusive of many species or individuals; comprehensive; generic: as, a general — term, word, expression. Maxims: general words are taken in their general sense; general expressions are restrained within the subject-matter; special provisions derogate from gen- eral provisions; a general clause does not extend to things included in a prior special clause. Deceivers deal in general expi'essions; fraud lurks in general expressions; error attends upon general expressions. "Where general words follow an enumeration of particular cases, such words apply only to cases of the same kind as those expressly mentioned." Thus, a land-warrant is not to be included in an act punish- ing forgery of " an indenture, certificate of public stock, or debt, treasury note, or other public secu- rity." ■' See NosciTua, A sociis. The meaning of general words will be restricted to carry out the legislative intenf Where particular words, in a statute, are followed by words of a general character, the latter are to be restricted to the objects particularly mentioned. If the act begins with words which speak of things or persons of ah inferior degree and concludes -with gen- eral words, the latter are not to be extended to a thing or person of a higher degree. If a particular class is mentioned and general words follow, they must be treated as referring to matters of the same kind, thus subordinating general terms to the preceding par- ticulars. ^ " General words in any instrument or statute are strengthened by exceptions, and weakened by enu- meration." * See further Ejusdem Generis; Videre, Videlicet, GENERIC. See General ; Genus. GENTLE. Imports that a horse is docile, tractable, and quiet ; not, that he has received special training.^ GENTLEMAN. " One who bears court armor, the grant of which adds gentility to a man's family." ^ Originally, a man of gentle blood ; now, a person of any rank from the upper to the lowest verge of the middle classes.'' A joufTieyman butcher may be described as a gen- tleman.^ On a jury list, as, "A. B., gent.," implies that the person has either no occupation or no occupation known to the officials who made out the list. See Addition, 2. 1 United States v. Irwin, 5 McLean, 183-84 (1861). ' Reiche V. Smythe, 13 Wall. 1U3 (1871). s Barbour v. Louisville, 83 Ky. 100 (1885), Holt, J. ■1 Shai-pless v. PhUadelphia, 31 Pa. 161 (1853), Black, C. J.; 66 Wis. 395. E Bodurtha v. Phelon, 3 Allen, 348 (1801). « 1 Bl. Com. 406: Coke, 3Inst. 668. ' [Smith V. Cheese, 1 C. P. D. 61 (1875), Grove, J. siSe Em-opean Bank, L. E., 7 Ch. Ap. 300 (1873). GENUINE 488 GIVE GENUINE. Belonging to the original kind or stock ; native ; hence, not false, ficti- tious, simulated, spurious, or counterfeit : as, a genuine note.l Genuineness. Of an instrument — pred- icates that it is the act of the party as repre- sented; that the signature is not spurious, that nothing has heen added to or taken away from it that would lay the party chang- ing the instrument or signing the name liable to forgery.2 See Counterfeit; False; Forge, 2; Spurious. GENUS. L. Kind; class; nature. Used in the phrases alieni generis, ejusdem generis, in genere, sui generis, qq. v. See also General. GEOGRAPHICAL NAMES. See Teade-mark. GESTAE. See Ees, Gestae. GIFT. See Give. The gratuitous transfer of personalty.' The trarigf er of property without consider- ation.* X^ The thing itself~-so transferred. An immediate, voluntary and gratuitous transfer of his personal property by one to another, the transfer being executed by de- livery.5 A word of the largest signification, applied to either realty or personalty.^ As a general rule, delivery is essential.' A true and proper gift is always accompanied with delivery of possession — after which the gift is exe- cuted in the donee; and it is not in the donor's power to retract it, unless it be prejudicial to creditors, or the donor was under some legal incapacity, as, in- fancy, coverture, duress, or was imposed upon. H the gift does not take effect by immediate possession it is not properly a gift, but a contract.* A gift may be to a charity not in existence. See Charity, 2. To complete a gift of money in trust, it is not nec- essary that the beneficiary should be informed of the fact of the gift.* > [Baldwin v. Van Deusen, 37 N. Y. 492 (1868). « [Cox V. North Western Stage Co., 1 Idaho, 380 (1871), Whitson, J. •2B1. Com. 441. * Kehr v. Smith, 20 Wall. 34 (1873), Davis, J. See also Gray «. Barton, 65 N. T. 72 (1873); Chadsey, Adminis- trator II. Lewis, 6 111. 155 (1844); Hynson v. Terry, 1 Ark. 87 (1833). As to the difference, in a liquor law, be- tween " gift" and " sale," see Parkinson v. State, 14 Md. 194, 197 (1859) ; HoUey v. State, 14 Tex. Ap. 512 (1883). s [Flanders v. Blandy, 45 Ohio St. 113 (1887), cases, Dickman, J. : 26 Am. Law Beg. 587-92 (1887), cases. In general, 19 Cent. Law J. 422-26 (1884), oases. « See Allen v. White, 97 Mass. 507 (1867). 'Adams v. Adams, 21 Wall. 191 (1874). 'Martin v. Funk, 75 N. Y. 137-43 (1878), cases. Where the local law does not forbid, the United States government may take property by gift.' A naked promise to give, without some act sufdcient to pass title, is not a gift,— a locus pcenitentioe exists.' See Advancement; Donatio; Dondm; Influbnob; Onerous; Possession; Presents, 2; Service, 3, Civil Service. Gift enterprise. In common parlance, a scheme for the division or distribution of certain articles of property,' to be determined by chance, among those who have taken shares in the scheme.^ See Game, 3. 2. At common law, also, the creation of an estate-tail.* GIRAED WILL CASE. See Cbasitt, 2; Oephan. GIST.5 The ground upon which a thing rests ; the essence of an obligation or propo- sition. The "gist of an action'' is the cause for which an action will lie, — the ground or foundation of a suit, without which it would not be maintainable, — the essential ground or object of a suit, and without which there is not a cause of action.^ That without which there is no cause of action; comprehends, therefore, whatever is indispensable in law to a right of recovery. Hence, if anything of this kind be omitted, the defect is incurably.' GIVE. 1. To transfer gratuitously, with- out an equivalent. 8 See Gift. 3. To furnish or supply : as, to give liquor to a niinor.9 3. To find, furnish, supply : as, to give bail or security. 4. To forbear to sue ; to extend time : as, to give time to a debtor. See Foebeaeance. 5. To admit an apparent right in another : as, to give color. See Coloe, 3. ■Dickson v. United States, 12S Mass. 313-16 (1878), cases; 52 N. Y. 530; 94 U. S. 316, 321. ' Pearson v. Pearson, 7 Johns. 28 (1810). Delivery, when not essential, 81 Alb. Law J. 426-29, 445-48 (1885), s Lohman v. State, 81 Ind. 17 (1881), Niblack, J; Act of Congress 13 July, 1866: 14 St. L. 120. « 2 Bl. Com. 31S. • Jlst. O. F. gist, it lies: the pointwherein the mat- ter lies. "First Nat. Bank oS Flora v. Burkett, 101 111. 394 (1882), Walker, J. See also Be Murphy, 109 id. 33 (1884). ' Gould, Plead. 162: Ch. IV, § 12. "See 1 Iowa, 282; 2N.Y.163; 33 Conn. 297; 2 Ala. 656; 23 Me. 219; 8 Cow. 38; 14 Wend. 38. » Commonwealth v. Davis, 12 Bush, 240 (1876) ; Halley V. State, 14 Tex. Ap. 512 (1883); Parkinson v. State, 14 Md. 194 U8S6J. GLANDERS 489 GOODS 6. To expound; to administer, apply: as, to give law. 7. To surrender voluntarily to an oflacer of the law : as, to give one's self up. GLANDERS. See Health, Boards of. GLOUCESTEB, STATUTE OP. See Costs. GO. The first word of a few idiomatic or technical expressions. See Going. Go bail. To become surety on a bail- bond, q. V. Go to. 1. To be given to, to descend to.i 2. A circumstance which concerns or affects one's competency or credibility as a witness, or the jurisdiction of the court, is sometimes said to "go to " the competency, to the jurisdiction, to the question, etc. " When mutual coTenants go to the whole consider- ation on both sides, thej are mutual conditions." ^ " A demurrer may go to the form of the action, to a defect in pleading, or to the jurisdiction of the court.'" ' Go to prison. To be committed or sen- tenced to a jail, penitentiary, or other place of confinement for persons accused or con- victed of a criminal offense. See Prison. Go to protest. Said of commercial paper which becomes protested for non-payment or non-acceptance : to become dishonored. See Protest, 2. Go without day. For an acquitted per- son to be dismissed from court with no day set for reappearing — sine die; also, the rec- ord entry in such a case. GOD. In the generally received sense, occurs in a few expressions : Act of God. See Act, 1, Of God. God and my country. A prisoner, upon arraignment, answered (or answers) that he would be tried " By God and my country.'' The practice arose when he elected a trial by ordeal or by a jury. The original form was, likely. By God or by my country : the answer was meant to assert in- nocence by a readiness to be tried by either mode.* See further Abkaiqn. God's penny. Earnest-money; origi- nally, a small coin given to the church or to the poor. So help you God. See Oath. See Chbibtiahity; Law, Divine; Eexigion. > Ivin's Appeal, 106 Pa. 181 (1884). » Lowber v. Bangs, 2 Wall. 736 (1864). " Bissell V. Spring Valley Township, 124 V. S. 832 (1888). • See 1 Chitty, Cr. Law, 416; 4 Bl. Com. 323. GOnSTG. See Crop; Go; Rate, 1. Going concern. A corporation which, although it may be insolvent, still continues to transact its ordinary business.! Going witness. A witness who is about to go out of the jurisdiction of the court in which his testimony will be desired. See Deposition. GOLD. See Coin; Mine; Money; Tender, 2. GOOD. Generally speaking, preserves its popular, untechnical meanings. Compare Bab ; Bonus. 1. Orderly, lawful: as, good behavior q.v. 2. Fair, honorable : as, good fame, or char- acter, q. V. 3. Valid, valuable: as, a good considera- tion, q. V. 4. Legally sufiScient: as, a good — count, deed, defense, ground, qq. v. 5. With lawful intent : as, good faith, q. v, 6. Genuine, not spurious; also, collectible: as, a good note. 2 7. Responsible ; able to pay a money obli- gation. In this sense bondsmen, indorsers, partners, and wrong-doers are spoken of as "good." In this sense, also, is " good " written upon the face* of a check. See Check, Certified. 8. Welfare, prosperity, happiness : as, the public good ; also whatever promotes the gen- eral welfare of society : as, good morals, " the greatest good." See Morals; Police, 2; Welfare. GOOD FRIDAY. See Holiday. GOODS. Has a very extensive meaning. In penal statutes, is limited to movables which have intrinsic value, and does not in- clude securities, which merely represent value. In ivills, when there is nothing to re- strain its operation, includes all the personal estate. 3 In a limited sense, articles of merchandise; not fixtures, nor chattels real ; but may include animals. In a merchant's store, refers to the merchandise and commodities kept for sale.* 1 White, &c. Manuf. Co. v. Pettes Importing Co., 30 F. E. 865 (1887). "See Polk v. Frash, 61 Ind. 206 (1878); Corbet v. Evans, 25 Pa. 310 (1855); 16 Barb. 342; 14 Wend. 231; 1 Cush. 473; 18 Pick. 321; 4Meto. 48; 26 Vt. 406. s Keyser v. School District, 35 N. H. 483 (1857), Per- ley, C. J. ; United States v. Moulton, 5 Mas. 545 (1630), Story, J.; Jarman, Wills, 692; 44 N. Y. 310. * Curtis V. Phillips, 5 Mich. 113 (1858). GOOD- WILL ,490 GOVERNMENT Goods and cHattels. Includes only per- sonal property which is visible, tangible, and movable ; not, a right of action ; l nor, a thing real. The expression is equivalent to goods, wares, and merchandise. 2 The precise import depends upon tlie subject-matter and the context.' See Chattel. Goods and merchandise. In the busi- ness of commerce, commodities bought and sold by merchants and traders.* Goods, wares, and mercliandise. In duty-laws, the word "merchandise" may include goods, wares, and chattels of every description capable of being imported.^ In the statute o£ Frauds, the expression does not include fixtures, but does include growing crops. Promissory notes and shares in an unincorporated company, and even money, have been held to be within it;"* also, cattle.^ The words of the Statute have never been extended beyond securities which are subjects of common sale and barter, and which have a visible and palpable form. They do not, therefore, include an interest in an unpatented invention.^ See Merchandise. See Bona, 2; Confusion, 1; Distress; Duress; Exe- quTioN, 3; Perishable; Property, Personal. GOOD- WILL. Favorable reputation. The probability that the old customers will resort to the old place. 8 The advantage or benefit which is acquired by an establishment beyond the mere value of the capital, stock, funds, or property em- ployed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual custom- ers, on account of its local position or com- mon celebrity, or reputation for skill or afflu- • Kirkland v. Prune, .31 Gratt. 131 (1878). 2 Passaic Manuf. Co. v. Hoffman, 3 Daly, 513 (1871). s Gibbs V. Usher, 1 Holmes, 361 (1874); Jarman, Wills, 731; Addison, Contr. 31, 201, 912. * Chamberlain v.. Western Transp. Co., 45 Barb. 223 (1806): 44 N. Y. 310 (1871); The Marine City, 6 ¥. E. 415 <1881), cases. See also Tisdale v. Harris, 20 Pick. 9, 13 <1838). s E. S. § 2766. See The Elizabeth & Jane, 2 Mas. 407 <1823); 2 Sumn. 363; 4 Blatch. 136. « 2 Pars. Cont. 830-32; 2 Kent, 510, note; Benj. Sales, § HI. ' Weston V. McDowell, 20 Mich. 337 (1870). « Somerby v. Buntin, 118 Mass. S83 (1875), Gray, C. J. ; 1 Woolw. 217; S Daly, 512; 6 Wend. 355; 40 Ind. 693; 55 Iowa, 620; 3B1. Com. 387. » Crultwell V. Lye, 17 Ves. *346 (1810). Eldon, Ld. C. ; Bradford 1;. Peckham, 9 E. I. 252 (1869); Chittenden v. Witbeck. 60 Mich. 420 (1883) ; Myers v. Kalamazoo Buggy Co.. 54' id. 232 (1884); 128 U. S. 523. ence, or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices.! The benefit or advantage which accrues to the firm, in addition to the value of their property, derived from their reputation for promptness, fidelity and integrity in their transactions, from their mode of doing busi- ness, and other incidental circumstances, in consequence of which they acquire general patronage from constant and habitual cus- tomers. ^ Every positive advantage that has been acquired by a proprietor, in carrying on his business, whether connected with the premises in which the business is conducted, or with the name under which it is man- aged, or with any other matter carrying with It the benefit of the business.* Good-will is a firm asset; whether it survives to a partner has not been uniformly decided; after a vol- untary dissolution, each partner has a right to use the old firm name, unless otherwise agreed; it is the sub- ject of sale like other personalty.* GOSPELS. See Blasphemy; Chaeity, 3 ; Cheistianity ; Indigent ; Oath, Corporal. GOVERNMENT.s 1. The controUing power in society." The aggregate of authorities which rule a society,' That form of fundamental rules by which the members of a body politic regulate their social action, and the administration of pub- lic affairs, according to established constitu- tions, laws, and usages, s 2. The state, the commonwealth, the peo- ple ; as, in criminal practice. 3. In a commercial sense ' ' governments " signifies securities of government, State or United States. 'Story, Partnership, §99. See also 33 Cal. 624; 65 Ga. 34; 1 Mo. Ap. 601; 44 N. H. 343; 70 N. Y. 473; 36 Ohio St. 522; 60 Pa. 121; 19 How. Pr. 26. ' [Angler v. Webber, 14 Allen, 215 (1867), Bigelow, C. J.; Munsey v. Butterffeld, 133 Mass. 494 (1383). s Glen cS; Hall Manuf. Co. v. Hall, 61 N. Y. 230 (1874), ■Dwight, C. « See Barber v. Connecticut Mtit. Life Ins. Co., 15 F. E. 312, 316-33 (1883), oases; 14 Am. Law Eeg. 1-11, 339- 41, 649-69, 713-25 (1885), cases; 13 Cent. Law J. 163-65 (1881), cases; 19 id. 363-68 (1884), cases; 19 Alb. Law J. 503-3 (1879), Eng. cases; 3 Kent, 64; 1 Pars. Cont. 163; 63 Pa. 81; 5 Ves. 639; 15 id. 318, 237. ' O. F. govener: L. gubemare, to steer a ship, to rule. Whence "ship of state." " 1 Sharswood, Bl. Com. 48. ' Francis Lieber; 1 Bouv. 715. 'Winspear v. Township of Holman, 37 Iowa, B44 (1873): Young, Science Gov., p. 13. GOVERNMENT 491 GOVERNMENT The government o£ a state being the most promi- nent feature, or that most readily perceived, " govern- ment" is frequently used for "state." Similarly, government is also used for " administration." ^ The object of government is to secui'e to the gov- erned the right to pursue their own happiness ; that is, the happiness of the individuals who compose the mass. In this consists civil liberty.* See Happiness; Liberty, 1, Civil. Government is formed by depriving: all persons of a portion of their natural rights. The rights they enjoy under government are not conferred by it, but are those of which they have not been deprived. It is only by a deprivation of all pei'sons of a portion of their rights that it is possible to form and maintain ■ government. . Its organization means a surrender by each of a portion and the control of his reserved rights, and the power of the government to control all persons in the exercise of these reserved rights must be conceded. Saluspopulisupremalex. In the main- tenance of the government and the general welfare, individual rights, whether of natural persons or cor- porate bodies, must yield to the public good, and the General Assembly is invested with the sole power of determining under what restraints all persons, whether natural or artificial, shall pursue their various voca- tions, unless restricted by constitutional limitation. ^ Government is a moral relation, necessarily result- ing from the nature of man. . The wants and fears of individuals in society tend to government. Blackstone supposes that sovereignty resides in the hands of the law-makers. Our idea is that government is a mere agency established by the people for the ex- ercise of those powers which reside in them. The powers of government are, in strictness, delegated powers, and, as such, trust powers, capable of revoca- tion. A written constitution is but the letter of attor- ney.* See Compact, Social. Government is an abstract entity. It speaks and acts through agents; these hold offices under law, con- stitutional or statutory, with prescribed duties and limited authority.' The theory of our government is that all public stations are trusts, and that those clothed with them are to be animated in the discharge of their duties solely by considerations of right, justice, and the public good. The correlative duty rei-ting tipon the citizen is to exhibit truth, frankness, and integrity.' Constitutional government. Applies to a state whose fundamental rules and maxims not only define how those shall be chosen or designated to whom the exercise of sovereign powers shall be confided, but •Francis Lieber: 1 Bouv. 715. = 1 Sharswood, Bl. Com. 128, 137. 3 Wiggins Feri-y Co. v. East St. Louis, 103 111. 569 <1882), Walker, J. M Sharswood, Bl. Com. .48-49. See also Virginia Coupon Cases, 114 U. S. 390 (1885). ■6 The Floyd Acceptances, 7 Wall. 676 (1868), Miller, J. 6 Trist V. Child, 31 Wall. 450 (1874), Swayne, J. ; Stone «. Mississippi, 101 U. S. 830 (1879). also impose efficient restraints on the exercise for the purpose of protecting individual rights and privileges, and shielding them against any assumption of arbitrary power, l See Constitution. Government de facto. A government that unlawfulty gets possession and control of the rightful legal government, and main- tains itself there, by force and arms, against the will of the rightful government, and claims to exercise the powers thereof. Gov- ernment de jure. The rightful, legal government.2 A government de facto, in firm possession of any country, is clothed with the same rights, powers, and duties as a government de jure. . . In all cases where the United States have been called upon to recognize the government or independence of any other country, they have looked only to the "fact," and not to the right.* A government de fabto is (1) such as exists after it has expelled the regularly constituted authorities from the seat of power and the public ofQces, and set its own f mictiouaries in their places, so as to represent in fact the sovereignty of the nation ; or (3) such as exists where a portion of the inhabitants of a country have separated themselves from the parent state and established an independent government. As far as other nations are concerned, the former is treated in most respects as possessing rightful authority; its contracts and duties are enforced; its acquisitions are retained; its legislation is in general recognized; and the rights acquired under it are, with few exceptions, respected after the restoration of the authorities which were expelled. The validity of the acts of the latter depends entirely upon its ultimate success. It it fails to establish itself permanently, all such acts perish with it; if it succeeds and becomes recognized, its acts are upheld as those of an Independent nation. The late Confederate government was distinguished from each of those. It was simply the miUtary repre- sentative of the insurrection against the authority of the United States. When its military forces were overthrown, it perished, and with it all enactments and other acts. Legislative acts of the several States, so far as they did not tend to impair Federal su- premacy, or the rights of citizens under the Constitu- tion, are valid and binding.* See Money, Lawful; Oath, Of ofHce. Local government; municipal gov- ernment. See CORPORATION, Municipal. 1 Calhoun, Works, I, II; Cooley, Principles Const. Law, 32. 2 Chisholm v. Coleman, 43 Ala. 213 (1869), Peck, C. J. 8 Phillips V. Payne, 92 U. S. 133 (187B), Swayne, J. < Williams v. Bruffy, 96 U. S. 185 miT), Field, J. See also Thomington v. Smith, 8 Wall. 8-9 (1808), Chase,' C. J.; Ford v. Surget, 97 U. S. 616, 610 (ISrs), cases, Clifford, J. ; Fifleld v. Ins. Co. of Pennsylvania, 47 Pa. 170-88 (1S&4). GOVERNMENT 493 GOWN Federal, General, National, United States Government; States govern- ments. In the United States, powers of government are of four classes: (1) Those which belong exclusively to the States. (3) Those which belong exclusively to the Na- tional Government. (3) Those which may be exercised concurrently and independently by both. (4) Those which may be exercised by the States, but only until Congress shall see fit to act upon the subject. ' When the government of the United States was formed, some of the attributes of State sovereignty were partially, and others wholly, surrendered and vested in the United States.'^ The special powers dele- gated to it are principally such as concern the foreign relations of the country, the rights of war and peace, the regulation of foreign and domestic commerce, and other subjects of general importance.^ Its pe- culiar duty is to protect one part of the country from encroachments by another upon the national rights which belong to all.* Its authority extends over the whole territory of the Union; it acts upon the States and the people of the States. It is, so far as its sover- eignty extends, supreme. No State can exclude it from exercising its powers, obstruct its authorized ofilcers against its will, or withhold cognizance of any subject which the Constitution has committed to it, — otherwise it would cease to exist.^ Congress may make all laws necessaiy (g. v.) and proper for carrying into execution the powers delegated to it."* The powers not delegated, nor prohibited to the States, in the Con- stitution, are reserved .to the States respectively, or to the people." Every addition to. its power is a corre- sponding diminution of the powers of the States.^ The rights of each sovereignty are to be equally re- spected. Both are essential to the preservation of our liberties and the perpetuity of our institutions. ^ See Constitution. The departments of governi^ent are the legislative, which deals mainly with the future; the executive, which deals with the present; and the judicial, which is retrospective, dealing with acts done or threatened, promises made, and injuries suffered.* The theory of government, State and National, is I Chicago, &o. E. Co. v. Fu)ler, 17 Wall. B68 (1873), Swayne, J.; 100 U. S. 386, 390. "United States v. Cruikshank, 92 U. S. 549 (1875); Tennessee v. Davis, 100 id. 863 (1879); T^rble's Case, 13 Wall. 456 (1871). ' 1 Sharswood, Bl. Com. 49. * Pensacola Telegraph Co. v. Western Union Tele- graph Co., 96 U. S. 10 (1877). « Constitution, Art. I, sec. 8, cl. 18. ' Constitution, Amd. Art. X. ' Exp. Virginia, 100 U. S. 346 (1879). s Exp. Siebold, 100 U. S. 394 (1879). "See Waymani). Southard, 10 Wheat. 46 (1825); 81 Am. Law Rev. 399-417 (1887), cases; 1 Law Quarl Eev. 80-99(1886); 4E.L334; 11 Pa. 489; 29 Mich. 461; 68 N.H. 453. opposed to the deposit of unlimited power anywhere.' The Constitution reposes unlimited power in no de- partment of the National government. The lines of separation are to be closely followed to avoid en- croachment. '^ A. co-ordinate branch will be decided to have transcended its powers only when that is so plain that the duty cannot be avoided.^ See Department. The power of governing being a trust committed by the people to the government, no part of the power can be granted away, as, the power to tax. The sev- eral agencies can govern according to their discretion, but cannot give away or sell the discretion of their successors.* Kepublioan form of government. See Eepub- Lic, Eepublican, etc. See further Allegiance; Anaboht; Appbaiseb; Citizen; Codbt; Domain; Election, 1; Faith, Full, etc.; Fbanchisb; Got, 1; iNDEPBNnENOE; Indian; Judiciart; Jurisdiction; Kino; Laches; Law, Com- : mon; Legislation; Liberty, 1; Limitations, Statute of; Magna Charta; May; Minister, 3; Office; Peo- ple; Police, 2; Policy, 1; Privilege, 1; Religion; Eevenue; Sedition; Service, 3; Sovereignty; State, 3; Suit; Tax, 2; Tort; Treason. GOVERWOB. See Go veenment ; Veto. GOWN. 1. That worn by the justices of the Supreme Court of the United States has always been a long robe of blacle silk. A portrait of the first chief justice, John Jay, rep- resents him in a bon'owed robe, with broad scarlet facings and collar and sleeves of the same color. This gave rise to the tradition that the justices wore red gowns in the early days of the court. In the higher tribunals of the States, scar- let gowns were worn, in some instances, as late as 1815.5 3. In England, the silk gown is the pro- fessional robe worn by those barristers who have been appointed of the number of her IMajesty's counsel, and is the distinctive badge of Queen's counsel, as the stuff gown is of the juniors who have not obtained that dignity. ' Accordingly, when a barrister is raised to the de- gree of Queen's counsel, he is said to "get a silk gown." The right to confer this dignity resides with the Lord Chancellor, who disposes of this branch of his patronage according to the talents, the practice, the seniority, and the general merits of the junior counsel." . " The rules as to the robes worn by British judges have been transmitted ora\ly. Scarlet is the color for , the judges sitting in banc on the first day of the term; also in banc on such days as appear with red lettera in ' Loan Association v. Topeka, 30 Wall. 663 (1874). = Kilbourn v. Thompson, 103 U. S. 190 (1880). s Trade-Mark Cases, 100 U. S. 96 (1879). * Stone V. Mississippi, 101 U. S. 820 (1879). » See The Century, Dec. 1882. 'See 5 Alb. Law J. .225 (1872); Jeaffreson, Courts & Lawyers, 180; Brown, Law Diet. GRACE 493 GRAIN the calendar. On circuit, at the opening of the com- mission, scarlet robes are worn by both judges, should two be present. After the commission is opened, the judge who sits in the crown court and tries prisoners continues to wear scarlet untU all the prisoners are dealt wich. He is hence termed by criminals ' the red-gown judge.' The judge who tries nisi prius cases removes his scarlet, puts on black, and is called ' the black-gown judge.' The scarlet robes worn in winter in town, and on circuit, whether in summer or winter, are trimmed with ermine, but in town in sum- mer these robes are trimmed with gray silk. When on circuit, the senior or ' red-gown judge ' sits in the crown court at the first town in the circuit, while the junior judge takes nisi prius cases, but at the next place * the red gown judge ' becomes ' the black-gown judge,' £ind so they alternate throughout the circuit. On ordinary days the judges sitting in banc wear dark blue or purple robes, which in winter are trimmed with ermine, and in summer with bronze silk." GRACE. Favor, indulgence, toleration; opposed to right, strict right : as, that a thing done in court is allowed as a matter of grace. Act of grace. An act of pardon or am- nesty, qq. V. Days of grace. Certain days, in addi- tion to the time specified in a bill or note, in which payment may be made, before it can be lawfully protested. In common speech this period is termed •• grace ; " as in saying that " grace " is or is not allowed on a particular instrument. Originally allowed by the custom of merchants as a matter of favor or indulgence. This c. Wild, 107 Mass. 458 (1871); MoNaughton V. Conklings, 9 Wis. *320 (1859). •Taft V. Hartford. &c. E. Co., 8 E. I. 333 (1866). GUARANTEE 49r GUARANTEE or be done : as, the guaranties in the Consti- tution and Amendments thereto. Quaranty clause. Specifically, section four of ar- ticle four of the Constitution, guaranteeing a republi- can form of government to each State. See Guaran- tee, 1. (3) Distinctively, a promise " to answer for the debt, default or miscarriage " of another person. This by the statute of frauds (g. v.) must be in writ- ing and be signed by the guarantor. The contract by which one person is bound to another, for the fulfillment of the promise or engagement of a third party.' Usually, a collateral undertaking to pay the debt of another in case he does not pay it.2 An undertaking by one person that an- other shall perform his contract or fulfill his obligation, or that, if he does not, the giiar- antor will do it for him.^ May also mean security or lien ; as, in an agreement that lumber should be held as guaranty for the payment of a debt.* An engagement to pay in default of solvency in the debtor, provided due diligence be used to obtain pay- ment from him. A contract of " suretyship " is a di- rect liability to the creditor for the act to be performed by the debtor; whereas a "guaranty" is a liability only for his ability to perform this act. A "surety " assumes to perform the contract for the principal debtor if he should not; a "guarantor" undertakes that his principal can perform, that he is able to per- form. The undertaking of a "surety" is inunediate and direct, that the act shall be done, and, if not done, then he is to be responsible at once; but from the nature of the imdertaking of a "guarantor," non- ability (insolvency) must be shown.^ A " guarantor " insures the solvency of the debtor; a " surety " Insures the debt itself. A surety must de- mand proceedings, with notice that he will not con- tinue bound unless they are instituted; whereas a guarantor may rely upon the obligation of the creditor to use due diligence to secure satisfaction of his claim. ^ To enable a creditor to enforce a contract of guar- anty, he must exercise "due diligence" to enforce payment from the principal. That is, the creditor must bring suit within a reasonable time after the ma- , turity of the claim, and duly prosecute the same to '2 Pars. Contr. 3, 26; Story, Prom. Notes, § 457; 3 Kent, 121. 'See Dole v. Young, 24 Pick. 252 (1837), Shaw, C. J.; Parker v. Culvertson, 1 Wall. Jr. 160 (1846); Hill v. Smith, 34 How. 286 (1858). 'Gridley v. Capen, 73 Ul. 13 (1874), Breese, C. J. • Wilkie V. Day, 141 Mass. 72 (1886). » Reigart v. White, 52 Pa. 440 (1866), Agnew, J. 'Kramph v. Hatz, 52 Pa. 589 (1866), Woodward, C. J. See also 21 Cent. Law J. 6-9 (1885), cases. (33) judgment and execution, unless it appears that such proceedings can produce no beneficial results.' Absolute guaranty; conditional guaranty. A guaranty that a note is col- lectible is a conditional promise binding upon the guarantor only in case of diligence. To perfect the obligation so as to render him liable thereon, the guarantee must use dili- gence in the endeavor to collect his note, for it is a condition precedent. The inchoate ob- ligation does not become absolute until the guarantee has performed the condition on his part. 2 Contimiing guaranty. An undertak- ing to be responsible for moneys to be ad- vanced or goods to be sold to another from time to time.' General guaranty; special guaranty. A special guaranty operates only in favor of the person to whom it is addressed ; a gen- eral guaranty is open for acceptance by the public generally. Gayment, and notice of the debtor's default to the amount of the advances, etc. Delay in giving notice, when required, is a defense to an action to the extent of the loss or damage proved. Notwithstanding that the contract is the obligation of a surety, it is to be construed as a mercantile instru- ment in furtherance of its spirit, and, literally, to pro- mote the convenience of commercial intercourse.* See Frauds, Statute of. III (2); Letter, 3, Of credit; Promise, Collateral; Surety; Warrants'. GUAEDIAW.s 1. A keeper,- protector, consei-vator ; a warden. Guardian of the peace. A person charged with the duty of securing or pro- tecting the public peac«; a conseicvator of the peace. See Peace, 1. Guardian of the poor. A person spe- cially elected or appointed to administer the poor-laws. See Poor. 2. One that legally has the care and man- agement of the person or the estate, or both, during his minority, of a child whose father has died.* Correlative, ward. The authorize.d agent, appointed by law, to take ,care of the ward's estate and manage his affairs.^ Domestic guardian. A guardian ap- pointed at the place of the infant's domicil. Foreign guardian. A guardian appointed under the law of another State than that of the infant's domicil. ' EvansviUe Nat. Bank v. Kaufmann, 93 N, Y. 276-81 (1883); cases, Ruger, C. J.; How v. Kemball, 2 McLean, 103 (184Q), cases; 2 How. 449; 68 Barb. 355, 2 Story, Prom. Notes, § 481 ; 35 Kan. 211. s Central Trust Co. v. Cook County. Nat. Bank, 101 U. S. 70 (1879), cases. < Davis V. Wells, 104 U. S. 159^ 163-66 (1881), cases, Matthews, J. ' F. garder: A. S. weardr\ Ger. marten, to watch, have ward. See G. ' Bass V. Cook, 4 Port., Ala., 392: Reeves, Dom. Rel. «311. ' Waldrip v. Tulley, 48 Ark. 300 (18S6), Smith, J. Their rights and powers are local. By comity only is anything conceded in another State to the claims of the guardian of the domMcil. It is usual, however, to appoint in a foreign State the guardian of the domi- ciliary court." Guardian ad litem. A person appointed by a court to look after the interests of an infant when his property is involved in liti- gation. 2 He manages the defense of an infant defendant, where there is no parent, or other guardian. The power of appointing such a guardian is incident to every court.' \ He is a species of attorney, whose duty is to prose- cute for the infant's rights, and to bring those rights directly under the notice of the court. He can do nothing to the injury of the infant. His duty ends when the suit ends, when it is prosecuted to final judg- ment. Since he may be required to pay the costs of the action, a person cannot be compelled to serve against his consent. Anciently the custom was to ap- point an officer of the court. He may have reimburse- ment for costs and expenses out of the infant's, estate.' See Friend, Next. General guardian. A guardian who has general charge of the person and prop- erty of a fatherless minor. Special guard- ian. A guardian charged with the man- agement of some particular interest; as, a guardian ad litem, or a guardian of the estate or of the person only.5 Guardian of the estate. A guardian who has been la'tvfully invested with the power of taking care and managing the estate of an infant. Guardian of the person. A guardian lawfully invested with the care of an infant, whose father is dead.' At common law, a general guardian performs the office of tutor of the person and curator of the estate as distinguished in the Roman law.' Statute or statutory guardian. A guardian appointed by last will ; also, a guardian appointed by a court in pursuance of a statute. ' Hoyt V. Sprague. 103 V. S. 631-32 (1880), Bradley, J. ' See N. Y. Life Ins. Co. v. Bangs, 103 U. S. 438 (1880); Colt V. Colt, 111 id. 578 (1884). 3 3 Bl. Com. 427. * Leopold 1). Meyer, 10 Abb. Pr. o. s. 40 (N. Y. Com. Pleas, 1860), cases; Tucker v. Dabbs, 12 Heisk. 20 (1873); Simmons v. Baynard, 30 F. R. 533 (1887): 2 Story, Eq. § 1352;,Turrentine V. Daly, 82 Ala. 208 (1866),— final ac- count; Gates V. Pickett, 97 N. C. 26 (1887),— selling land (local); Hinton v. Bland, 81 Va. 592-43 (1886),— of luna- tic; Story, Eq. PI. §70. » See Colt V. Colt, 111 U. S. 578 (1884). " Nicholson v. Spencer, 11 Ga. 609 (1852), ' 1 Bl. Com. 460. GUARDIAN 499 GUILTY Testamentary guardian. A person named for the ofllce of guardian in the will of the father of the minor. Instituted by Statute 12 Charles n (1660), e. S4.' Cruardian by chancery. A guardian ap- pointed by a court of equity or of probate. Guardian in chivalry. The lord of the heir of a tenant in capite, and of body and lands, with no duty to account for profits. Guardian by common law, or in socage. Where a minor was eiititled to an estate in lands, his next of kin, to whom the estate could not descend, became such guardian until the minor attained fourteen. Guardian by nature. The father, and, after his decease, the mother. Has charge of person and estate, and is controlled by a court of equity or probate. Guardian for nurture. Either of the parents till the child is fourteen, but relates to the care of the person solely. Guardian ad interim or interim. Serves while another guardian is out of the juris- diction.^ In general, guardians exist either by nature or by appointment of a court. At common law, a person became such by relation to the minor, without judi- cial appointment. In the province of Yorl£, on fail- ure of the father to name a guardian by will, the ordinary made the appointment. The power to ap- point and to pass upon accounts has been generally conferred by statutes upon the probate courts. At fourteen, the child may choose a guardian. A gu^Trdian is a temporary parent. The lord chan- cellor is the general guardian of all infants in Eng land; in the States, the court of probate is the general guardian, the nominal guardian being but an agent or officer of the court.* The reciprocal duties of the persons depend upon the nature of the guardianship. A guardian of the person has a right to the obedience of the ward, but not to his services; and owes the ward protection, but not support. The guardian of the estate is to support and educate the ward in a manner suited to the ward's station in life. Ordinary skill, prudence, and caution are all that are required of a guardian. Many of his duties are regulated by statute. He may lease the ward's realty ; and he receives the rents and profits thereof. He may sell personalty without an order of court, but not realty; nor may he so convert personalty into realty. If he uses money, or neglects to invest it for an unrea- 1 See 2 Kent, 224-35; Schouler, Dom. R. 400; 4 Johns. Ch. 380; 12 111. 431; 37 Cal. 661. «See 1 Bl. Com. 461-63; 2 id. 67, 88; 2 Kent, 220; Eeeves, Dom. R. 311; 1 Pars. Contr. 133; De Krafft v. Barney, 2 Blactt, 710 (1862); Lamar v. Micou, 112 U. S. 452 (1884); 6 Conn. 500; S3 id. 327. »1B1. Com. 463; Sid. 141; 2 id. 461. I sonable period, he is chargeable with Interest; and if he trades with the money, the ward may demiind the principal with either interest or the profits. He is liable for waste as to realty, and for negligence as to personalty. He cannot waive the wa,rd's rights. ' The relation ceases at tv^enty-one. As to the per- son of a female ward, ceases with marriage to a minor; and as to both person and estate, upon marriage to an adult. Continues, as to his estate, after the marriage of a male ward. But neither may marry without the consent of the guardian. The court will remove a guardian for misconduct; may require a change in his sureties; may compel him to file an account; may appoint an interim guardian; will regulate the maintenance and education (g. v.) of the ward; and may even control the actions of a tes- tamentary guardian." After the ward becomes of age the guardian is bound to exercise proper care of his property until he has duly accounted for it, and delivered up possession,' See Committee, 1; Curator; Discharge, 1; Invest; Tutor; Ward, 3; Witness. GUBERNATORIAL. See Government. GUEST. A traveler, wayfai-er, or a transient comer to an inn for lodging and entertainment. It is not now deemed essen- tial that the person should have come from a distance.'' As inns are instituted for travelers, a neighbor or friend who lodges in an inn is not deemed a guest. A traveler who is accepted becomes instantly a guest. The length of time a man Is at an inn makes no differ- ence; so, although he is not strictly transient, he re- tains his character as a traveler. He may, by special contract to board and sojourn, malce himself a "boarder." Numerous late cases hold that a special agreement as to time and price does not absolutely disturb the relationship of innkeeper and guest. These cases indicate a tendency to conform the old rule to the changes made in hotel keeping in modern times.* See further Boarder; Inn, 1; Lodger; Residence. GUILTY." 1. The state or condition of one who has committed a crime, a civil in- ' See Lamar v. Micou, 112 U. S. 463-70 (1884), cases; Boaz V. MUliken, 83 Ky. 638 (1886); Eyster's Appeal, 16 Pa. 372 (1851). = See Reeves, Dom. R. 311 ; Schouler, Dom. R. § 283; 1 Pars. Contr. 134-37; Lord v. Hough, 37 Cal. 600-69 (1869); 1 Johns. Ch. 109. . » Hudson V. Bishop, 32 F. R. 621 (1887). ' Curtis V. Murphy, 63 Wis. 6 (1885), cases. Cole, C. J. See also Russell v. Ryan, Sup. Ct. Del. (1886), Comegys, Chief Justice. » See Story , Bailm. § 477 ; 2 Pars. Contr. 160 ; Hancock (Mrs. Gen.) v. Rand, 94 N. Y. 5, 10 (1883), cases; McDan- iels V. Robinson, 26 Vt. 330-M (1854), eases; Calye's Case, 1 Sm. L. C. 211-47, cases; Coggs v. Bernard, ib. 401-6, eases; 16 Ala. 666; 26 id. 377; 33 Cal. 657; 35 Conn. 183; 25 Iowa, 653; 53 Me. 163; 100 Mass. 495; 145 id. 244; 12 Mich. 52; S3 Mo. 547; 33 N. Y. 577; 61 id. 34; 36 Pa. 452; 62 id. 92; 41 Vt. 5; 36 Wis. 118. ' A. S. gylt, a fine for an offense; an offense. GUltEAU'S CASE 300 HABERE jury, or a contempt of court. 2. As a plea, the judicial confession of a crime charged. Not guilty. A plea denying the com- mission of a crime or a tort. The plea of "not guilty" raises the general issue; it denies the whole indictment or declaration. In civil law, applicable in delicts sounding in trespass or case, for misfeasance or non-feasance, in ejectment, in gar- nishment, and in interpleader.^ When an accused person is arraigned (g. v,\ the clerk inquii-es: " How say you, A. B., are you guilty or not guilty? " His answer, which is recorded, con- stitutes his plea. If "not guilty," the trial proceeds. The plea waives objection to the complaint for mis- nomer or for neglect to add a place of residence.'' Where guilty knowledge is an ingredient of a crime, evidence of the commission of other Idndred offenses about the same time is admissible as tending to prove that ingredient. Many cases of fraud require the ap- plication of the same principle, — as fraud involves intent, and intent can be deduced only from a variety of circumstances. Collateral facts, each insufficient in itself, whose joint operation tends to support the charge, or to disprove it, are then receivable. ^ Where a statute prohibits an act being done, or be- ing done under certain circumstances, without mak- ing knowledge or intent an in^edient in the offense, the person doing the act is bound at his peril to see that the circumstances are such as do not make it unlawful,* Jurors are not called to pass upon a defendant's in- nocence, but solely whether or not the State has proven beyond reasonable doubt an affirmative prop- osition, to wit, his guilt.* See Confession, 2; Convict; Crime; Doubt; In- tent; Negligence;, Will, 1. Compare Culpa. GTJITEAU'S CASE.6 See Delusion; Doubt, Reasonable ; Insanity, 2 (6). GrXrW. See Baggage; Shooting-mark; Tool; Weapon. GUITPOWDER. See Explosion; Po- lice, 3. GXTTTER. See Drain. An ordinance requiring lot-owners to keep the " gutters " opposite their premises in good repair, and free from obstructions, was held to refer to the ordi- nary open gutters along the streets, and not to a blind ditch or culvert covered with planks and soil.' 1 See 3 Bl. Com. 305; 4 id. 338; Gould, PI. 384. 2 State V. Dniry, 13 R. I. 540 (1883); 41 N. H. 407; 1 Bish. Cr. Froc. § 791. On withdrawal of plea, see 23 Cent. Law J. 75 (1886), cases. 3 United States v. Clapboards, 4 Cliff. 303-5 (1874), cases, Clifford, J.; Commonwealth v. Jackson, 132 Mass. 18-21 (1882), cases; People v. Gibbs, 93 N. Y. 473 (1883); 19 Cent. Law J. ^8 (1884). 4 United States v. Curtis, 16 F. R. 187 (1883), cases, Brown, J. ; Halstead v. State, 41 N. J. L. 589-96, 577-84 (1879), cases, Beasley, C. J. '^McNair v. Stat©, 14 Tex. Ap. U (1883). « Reported in 10 F. R. 161. See also 13 Rep. 138, 717. 7 GUluly V. City 'of Madison, 63 Wis. 518 (1885). H. H. As an initial, may denote habeas, Henry (king), Hilary, hoc, house. H. B. House bill. H. C. Habeas corpus; House, of Com- mons. fl. L. House of Lords. H. R. House of Representatives. Abbreviations of tlie Latin 7ioc,this, formerly more in use than at present, are: h. a. for hoc anno, this year; h. t. for hoc titulo, this title; h. v. for hocverbo or his verbis, this word or these words; — the last two being employed as references. HABENDUM. See Habere, Habendum. HABERE. L. To grasp, lay hold of: to have, hold. Habeas corpus. That you have the body. The emphatic words of several common-law writs issued to bring persons into court for ' a designated purpose. See particularly, 6, below. 1. Habeas corpus ad faciendum et recipien- dum. That you have the body for doing and receiving. Removes an action into a superior court : commands the judge of the inferior court to produce the body of the defendant, with a statement of the cause of his deten- tion (whence called, also, habeas corpus cum causa), to do and to receive whatever the higher court shall decree. Applica'ble where the simpler writ of habeas corpus ad subjiciendum is inadequate; and grantable of right, without motion. Operates as a supersedeas. 2. Habeas corpus ad prosequendum. That you have the person for prosecuting. Re- moves a prisoner to the jurisdiction wherein it is alleged he committed a crime. 3. Habeas corpus ad respondendum. That you have the person for answering. Re- moves a prisoner that he may be charged with a new action in a higher court. 4. Habeas corpus ad satisfaciendum. That you have the person for satisfaction. Re- moves a prisoner into a superior court that he may there be charged with process of ' execution. 5. Habeas corpus ad testificandum. That you have the person for testifying. Removes a person from a place of detention that he may give testimony before a court.i 6. Habeas corpus ad subjiciendum. That 1 See generally Exp. Marmaduke, 91 Mo. 338, 351 (1886), HABERE 501 HABERE you have -the body for submitting to and receiving. Commands the person who has another in detention to produce the body of the prisoner, with the day and cause of his caption and detention, to do, submit to, and receive whatever the judge or court award- ing the writ shall consider (q. v.) in that be- half.' This last, the great and efficacious prerog- ative writ, is commonly called The Writ of Habeas Corpus. It is the best and only suf- ficient defense of personal freedom. '^ It is the remedy which the law gives for the enforce- ment of the civil right of personal liberty. . . The judicial proceeding mider it is not to inquire into the criminal act complained of, but into the right to lib- erty notwithstanding the act. The prosecution against the prisoner is a criminal proceeding, but the writ of habeas cor^ms, which he may obtain, is nota proceed- ^ ing in that prosecution. On the contrary, it is a new suit brought by him to enforce a nght, which he claims, as against those who are holding him in cus- 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 discharged from custody. The proceeding is one in- stituted by himself for his liberty, not by the govern- ment to pimish him for his crime. It is of a wholly civil nature.^ The writ was likely used at first to effect relief from (irivate restraint. Trace of early use is found in Year Book 48 Edw. HI, 22 (1375); was well understood in the time of Henry VI (1422-61); became available against the crown in thereign of Henry VII (1485-1509); in the time of Charles I (1626-49), was adjudged a constitu- tional remedy.* The availability of the writ, as it obtained at com- mon law, has been facilitated by statutes, particiilarly by 31 Charles II (1680), o. 2, called the Habeas Corpus Act, another Magna Charta, and by 56 Geo. HI (1816), c. 100. '^ Acts having the same general nature and ob- ject exist in the various States. A case outside of a statute is governed by the common law. " The general principles were settled long before our national independence, and were in mind when the power was given to the Federal courts and judges.' 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 Safety may require it." ' > 3 K. Com. 130; Exp. BoUman, 4 Cranch, 97-99 (1807), Marshall, C. J.; Tidd, Pr. 296-301, 739. ^.Exp. Yerger, 8 Wall. 95(1868). ^Exp. Tom Tong, 108 U. S. 659 (1883), Waite, C. J.; Exp. BoUman, 4 Cranch, 101 (1807). ' See Hurd, Habeas Corpus, 145. 63 Bl. Com. 130; 8 Wall.95; 3 Hallam, Const. Hist. 19. «3B1. Com. 137. ' Exp. Parks, 93 U.S. 21 (1876); Exp. Yeager, 8 Wall. 95 (1868). " Ctonstitution, Art. I, sec. 9, cl. 2. This provision has been copied into the constitutions of the States. Congress, by act of March 3, 1863, authorized the President to suspend the privilege of the writ when- ever, during the rebellion, in his judgment, the public safety might require it.' Suspension of the writ simply denies to the person arrested the privilege of its use, to obtain his liberty.^ Not a writ of error, though in some cases, in which the court issuing it has appellate power over the court by whose authority the petitioner is held in custody, it may be used with the writ of certiorari for that pur- pose. Used alone, its purpose is to enable the court to inquire, first, if the petitioner is restrained of his liberty. If he is not, the court can do nothing but dis- charge the writ. If there is such restraint, the court can then inquire into the cause of it, and, if the alleged cause be unlawful, it must discharge the prisoner. Wives restrained by husbands, children withheld from the proper parent or guardian, persons held under ar- bitrary custody by private individuals, as in a mad- house, as well as those under military control, may become subjects of relief by the writ. But something more than moral restraint is necessary: there must be actual confinement or the present means of enforc- ing it.' The writ is of right, in the natm-e of a writ of error, grantable on cause shqwn. The usual course is for the court on application to issue the writ, and, on its re- turn, to hear and dispose of the case: but where the cause of imprisonment is fully shown by the petition, the court may determine that the prisoner, if pro- duced, would or would not be entitled to a discharge.* The writ affords relief only where the proceedings below are entirely void, for any cause, as for want of jurisdiction,' or because of the unconstitutionality of a statute.^ The reviewing power of the Supreme Court, in a criminal case, is confined to determining whether the lower court had jurisdiction to try and sentence for the offense.' Ordinarily, the Supreme Court can issue the writ only under its appellate jurisdiction,— except in cases affecting public ministers or consuls, or those in which a State is a party.' The act of March 27, 1868 (15 St. L. 44), took from the Supreme Court jurisdiction to review on appeal the decision of a circuit court upon a writ of habeas corpus; and it has no jurisdiction to review such decision on a > 12 St. L. 755. See generally R. S. §§ 751-66, cases. ■iExp. Milligan, 4 Wall.' 2, 3, 115 (1866); Exp. Merry- man, 9 Am. Law Reg. 524 (1861), Taney, 0. J.; Exp. Field, SBlatch. 67 (1862); 21 Ind. 370, 472; 44 Barb. 98; 16 Wis. 360; 1 Pac. Law Mag. 360. 3 Wales t). Whitney, 114 U. S. 571-72 (1885), MUler.J. < Exp. Milligan, supra. » Exp. Parks, 93 U. S. 21 (1876). « Exp. Rollins, 80 Va. 316 (1885), cases. ' Exp. Curtis, 106 U. S. 376 (1883); Exp. Carll, ib. 522 (1882), cases, Waite, C. J. . 6 Exp. Hung Hang, 108 U. S. 552 (1883), cases; State V. Neel, 48 Ark. 289 (1886), cases; 2 Kan. Law J. 225-3J (1885), cases. HABIT 502 HANAPER writ of error. It may still issue its own writ of habeas corpus.' A circuit court may discharge a person restrained of his liberty in violation of the Constitution, although held on an indictment for 'A,n o£l!ense against a State. ^ Congress has prescribed the jurisdiction of the Fed- eral courts under the writ; but as it has never particu- larly prescribed the mode of procedure, they have followed in substance the rules of the common law. The legislatures of the States not only provide what courts or officers may issue the writ, but, to a consid- erable extent, have regulated the practice under it.^ See Extbadition; Indian. Habendum. To have ; for having. Sa- bendum et tenendum: to have and to hold. The initial, emphatic word in that clause of a deed which follows the granting part. Determines what estate or interest is granted; may lessen, enlarge, ex- plain, or qualify, but not totally contradict or be repugnant to, the estate granted in the premises, q. v.* Habere facias possessionem. That you cause to have possession. Habere facias seisinam. That you cause to have seisin. If the plaintiff recovers in any action whereby the seisin or possession of land is awarded him, the writ of execution is an habere facias seisinam, or writ of seisin, of a freehold ; or an habere facias possessionem, or writ of possession, of a chattel interest. These are writs commanding the sheriff to give actual possession to the plaintiff of the land recovered.* At present, an habere facias possessionem puts into possession of the land a plaintiif who has been suc- cessful in an action of ejectment; and the writ of habere facias seisinam, is in vogue in some States in connection with the action of dower." Habere facias visum. That you cause to have a view. A writ, and the character- istic phrase in the same, which directed the sheriff to liave land viewed by a jury» Habilis. Having: capable, suitable; fit. By the canon law, if the pai-ties are habUesad mat- rimonium, it is a good marriage, whatever their ages.' TT ATl TT.g A person's habits refer to his customary conduct, to pursue which he has a«juired a tendency, from frequent repeti- tion of the same acts.' It would be incorrect to say that a man has a habit of anything from a single act.' 'Exp. Royall, 112 U. S. 181 (1884); Sxp. Terger, 8 Wall. 103 (1868). 'Exp. Koyall, 117 U. S. 841 (1886). * See generally People ex rel. Tweed v. Liscomb, 60 N. Y. 559 (1875); 18 Cent. Law J. 868-70 (1884). cases. * 2 Bl. Com. 298; 4 Kent, 468; 3 Washb. E. P. 436. > 3 Bl. Com. 412; Tidd, Pr. 1081; 2 -4rch. Pr. 68. e See Brightly, T. & H. (Pa.) |§ 1802, 1807. ' 1 Bl. Com. 436. s L. habitus; habere, to have oneself, be in a condition. 'Knickerboolier Life Ins. Co. v. Foley, 103 U. S. 354 1881). Field, J. Habitual. According to or by force of habit or frequent use; origihating in a fixed habit; habituated. See Character; Drunkaro; Intemperate. HABITANCY. Embraces the fact of residence at a place, together with the intent to regard it and make it a home. It is difficult to give an exact definition. * See In- habitant. HABITATION. See Dwelling. H.ffiBES. L. Heir. In Roman law, re- sembled an executor in English law. See Heib, 2. Hsereditas. Inheritance. See Damnum, Damnosa, etc. Hseres natus. An heir born : an heir by descent. Hseres factus. An heir by ap- pointment ; a devisee.2 Ifomo est hseres viventis. No one can be the heir of a living person. No person can be the actual complete heir of an- other till that other is dead. Before that time the person next in the line of succession is , called the "heir apparent," or "heir presumptive." ' H^RET nS" COETICE. See Litera Qui hseret, etc. HAIB, May not include bristles.* Hair clippers. See Cutlery. HATiF. See Blood; Coin; Defense, 2; Moiety; Orphan; Sister. HALLOWEEN. See Nightwalkers; Wantonness. HALLUCINATION. See Insanity. HAMMER. "Under the hammer" re- fers to public sales by a sheriff or auctioneer. In Rome, auctioneers stood beside a spear fixed up- right in the forum ; and the goods were said to be sold sub hasta, under the spear. HANAPER.5 A bag or basket, kept in offices of the court of chancery to receive dues paid for the seals of charters, patents, commissions, and writs ; then, the exchequer of chancery. Writs issuing out of the ordinaiy court of chancery (relating to the business of the subject) and the returns thereto were, according to the simplicity' of ancient times, originally kept in hanaperio; and others (re- lating to affairs of the cro^Ti) were preserved in a little sack or bag; and thence has arisen the distinc- tion of " hanaper ofSoe " and '" petty-bag office," both ■ Lyman v. Fiske, 17 Pick. 834 (1835), Shaw, C. J. ^ See Borland v. Nichols, 18 Pa. 43 (1849). 3 3 Bl. Com. 208. 4 Von Stade v. Arthur, 13 Blatch. 251 (1876). *L. Ij.hana-perium, a large vase; a vessel to keep cups in; hanajpus, a cup, bowl. Whehce hamper. HAND 503 HAND of which belong to the common-law court in chancery. ■ See Petit, Petty Bag, HAlfD. 1. As the member of the body with which a thing ia held, an instrument used, force or action originated or exerted, or a deed done, is in frequent use. See Ar- raign; Burn; Death; Mayhem. Compare Main ; -Manus. Handbill. A written or printed public notice of something to be done ; as, of a ju- dicial sale of property. The number, time, and manner of posting such bills is regulated by local statute or rule of court. Hand-money. The price or earnest given to bind a bargain, after shaking hands, or in- stead thereof; the consideration of a hand- sale. See Earnest. Hand-sale. Anciently, among northern nations, shaking of hands was necessary to bind a bargain ; a custom retained in verbal contracts. 2 Uplifted hand. Refel-s to an oath taken by raising the right hand toward Heaven. Whip-hand. The right hand; the side of a road toward the right hand. See Road, 1, Law of. 2. Force; violence. Strong hand. " With strong hand " im- plies a degree of criminal force, more than " with force and arms." Statutes relating to forcible entry {q. v.) use the words in describ- ing the degree of force which makes an entry or detainer criminal, and entitles the pros- ecutor, under some circumstances, to resti- tution and damages.' •' With force and arms " are merely formal words in the action of trespass, and if issue be taken upon them, the plaintiff is not bound to prove any actual force.* 3. Chirography; penmanship; handwriting. Whatever one has written with his hand ; not merely his usual style of chirography.* Comparison of hands, or of handwrit- ing. Proving penmanship by its likeness to other writing, admitted or proven to be gen- uine. The rule of the common law is to disallow a com- parison of hands as proof of signature. An exception 1 3 Bl. Com. 49; Yates v. People, 6 Johns. *303 (1810). 2 [2 Bl. Com. 448. »King V. Wilson, 8 T. R. 362 (1799), Lawrence, J.; Harvey v. Brydges, 14 M. & W. *443 (1845), Parke, B.; Lawe V. King, 1 Saund. 81 (16fi8). 'Commonwealth k. Webster, 5 Cush. 301 (1850), Shaw, C. J. is, that if a paper, admitted to be in the hands of a party or to be subscribed by him, is in evidence for some other purpose, the signature or paper in ques- tion may be compared with it by the jury.* A paper, otherwise irrelevant, may not be put in evidence merely to enable the jury to make a com- parison.^ When a witness is called to prove a signature from his knowledge of the signer's writing, he should be first cross-examined as to his means of knowledge^'' Handwriting is proved by the writer, by his admis- sion, by his writing in court, or by a witness who has either seen him write or is familiar with his hand. The witness may be tested by* other writings. In England, comparison is permitted only as to test paper already in court. In some States, comparison with other papers is allowed. Test papers made for the purpose are inadmissible. An expert in handwriting may say whether in his opinion a hand is feigned or natural.* All evidence of handwriting, except in the single in- stance where the witness saw the document written, is in its nature comparison of hands. It is the belief which the witness entertains upon comparing the writing in question with the exemplar in his mind de- rived from previous knowledge. Any witness, other- wise disinterested, who has had the opportunity of acquiring such an exemplar, is competent to speak of his belief. It is one of the few instances id which the law accepts from witnesses belief in facts, instead of facts themselves. If, from having seen the party write or from correspondence with him, the witness has be- come familiar with his hand, he may testify his belief as to the genuineness of the writing in question. Tech- nically, comparison of handwriting means a "com- parison by the juxtaposition of two writings, to ascertain whether both were written by the same per- son." . . (1) Evidence as to the genuineness of a paper may be corroborated by a comparison, to be made by the jury, between that paper arid other well authenticated writings. (2) A mere expert may not make the comparison. (3) Witnesses having knowl- edge of the party's handwriting may testify as to the paper; but they are not to make the comparison. (4) Test documents shovdd be established by the most satisfactory evidence. (6) An expert may be exam- ined to prove forged or simulated writings, and to give conclusions of skill; but not to compare a writing, as, a note, in suit, with other test papers, and express his opinion, when he had no knowledge of the defendant's haudwriting.' The rule is that a witness who is introduced to prove 1 Moore v. United States, 91 U. S. 274 (1875); Strother V. Lucas, 6 Pet. *767 (1832); 1 Greenl. Ev. § 578. ! United States v. Jones, 20 Blatch. 236 (1882). • Frew V. Clark, 80 Pa. 181 (1875). « 1 Whart. Ev. §§ 706-40, cases ; Commonwealth v. Webster, 5 Cush. 301 (1850). » Travis v. Brown, 43 Pa. 13, 13, 1/(1862), cases. Wood- ward, J. See also Ballentine v. 'SVhite, 77 id. 26 (1874); Aumi'ck v. Mitchell, 82 id. 213(1876); Reese v. Reese, 90 id. 94 (1879); Berrj'hill v. Kirchner, 96 id. 492 (1880); Lessee of Clark v. Courtney, 5 Pet. *344(1831); Winn V. Patterson, 9 id. 674-75 (1835); Williams v. Conger, 125 U. S. 413, 397(1888), cases. HANGING 504 HARDSHIP the handwriting of a person must have personal knowledge of it, either by having seen him write, or by having seen writing admitted by him to be his or, with his knowledge, acted upon as his, or so adopted into the ordinary business of life as to create a reasonable presumption of its genuineness. Exceptions are, first, where the paper is not old enough to prove itself, and yet is so old that living witnesses cannot be had; then, other writings proven to be genuine, or to have been acted upon as such by all parties, may be offered, and 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 jury may make the comparison without expert aid. The civil and ecclesiastical law permitted the testi- mony of experts as to handwriting by comparison. The rule varies in the different States. In some, com- parison is allowed between the writing in question and any other writing shown to be genuine, whether al- ready in the case or not, or relevant or not; while in others, it is only permitted as between the disputed paper and one already in the case and I'olevant to it.^ See Forgery; Subscribe. Under haud and seal, or witness my hand, etc. Said of an instrument of writ- ing, and refers, specifically, to the name or signature thereto. See Seal, 1. 4. Condition or attitude before the law ; as, in the expression — Clean hands. Upright before the law; free from fault ; in a position to ask the in- tervention of a court of equity. Hand down. To decide, declare, an- nounce. Hand down an opinion. When a member of a court of errors and appeals has written an opinion in a case and delivered it to the clerk for transmission to the court whose de- cision has been under review, the opinion is said to be " handed down." HANGING-. The judgment in a capital case is, that the prisoner " be hanged by the neck till dead." ^ Hanged is preferred to hung, as the past participle. Hangman. One who executes a prisoner condemned to death by suspension by the neck ; also, he who holds the office of public executioner. See Death, Penalty. HAPPEN. See Contingency ; Occur. HAPPINESS. The foundation of ethits or natural law is "that every man should ' Fee V. Taylor, 83 Ky. 263-63 (1886), Holt, J. See also Bose V. First Nat. Bank of Springfield, 91 Mo. 401-3 (1886), cases; Bell v. Brewster. 44 Ohio St. 696, 698 (1887), cases; Smyth v. Caswell, 67 Tex. 673 (1887); as to , evidence of identity. 23 Cent. Law J. 31^ (1886), cases. "4B1. Com. 403. pursue his own true and substantial happi- ness, "i But as utility contradicts the common sense and feeling of mankind, utility is not the standard of right and wrong.'' The object of all government is to promote the hap- piness and prosperity of the community by which it is established. 2 • Happiness is an inalienable right. In its pursuit all avocations, honors, positions, are alike open to every one.* The right of men to pursue their happiness means the right to pursue any lawful busi- ness or vocation, in any manner not incon- sistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give them their high- est enjoyment.5 The right to follow any of the common occupations of life is an inalienable right; it was formulated as such under the phrase "pursuit of happiness" in the Declaration of Independence. This right is a large ingredient in the civil liberty (g. v.) of the citizen. No legislature may deny the right to all but a few favored individuals, by investing the latter with a monopoly.^ See Privilege, 2. HARBOR. 1, V. To receive and conceal clandestinely; to secrete, so that another who has the right of custody shall be de- prived thereof: as, to harbor a wife, child, apprentice, fugitive slave.' 3, n. A haven or port. See Commerce'; Lading; Port; Wharf. HARD. See Hardship ; Labor, J. HARDPAN. See Earth. HARDSHIP. Refers to an argument why a thing shoulder should not be allowed because of the severity of the law as applied to the particular case. Where a statute is clear and imperative, of no avail.8 Settled principles cannot, with safety to the public, be disregarded to remedy the hardship of a special 'IBl.Com. 41. 2 1 Shars. Bl. Com. 41. ' Charles River Bridge v. Warren Bridge, 11 Pet. 547 (1837), Taney, C. J. ' Cummings v. Missouti, 4 Wall. 321 (1866), Field, J. * Butchers' Union Co. v. Crescent City Co., Ill U. S. 767 (1884), Field, J. 'Butchers' Union Co., &c., supra. 111 U. S. 762: Bradley, Harlan, Woods, JJ. ' See Driskill v. Parrish, 3 McLean, 643 (1847); Jones V. Van Zandt, 5 How'. 227 (1847) ; Van Metre v. Mitchell, 2 Wall. Jr. 317 (1863); 84 Ga. 71 ; 26 id. 593; 5 N. H. 498; 10 id. 247; 1 Abb. Pr. 269; 2 N. Car. Law R. 249. 8 The Cherokee Tobacco, U Wall. 620 (1870). ' Buchanan v. Litchfield, 102 U. S. 203 (1?80); ib. 4(H. HARDWARE 505 HEALTH The certainty of the law is of more importance than individual convenience. Inconvenience and hard- ship are considerations for the legislature.' See Policy, 1, Public; Possibility. ' HARDWARE. See Cutleey. HARVEST. Referring to a season of the year, the time when crops of grain and grass are gathered ; does not apply to second crops cut out of harvest time.2 See Crop; Emblements. HAUL. See Carey, 1. HAVE. See May, May have. "To have and to hold," in a deed, defines the ex- tent of ownership in the matter granted. Kejeoted, if repugnant to the rest of the deed.s See further Habere, Habendum. HAWKJCR. The primary idea of a "hawker and peddler" is that of an itiner- ant or traveling trader, who carries goods about for sale, and actually sells them, in contradistinction to a trader who sells goods in a fixed place of business. Superadded to this (though perhaps not essential), by a "hawker" is generally understood one who not only carries goods for sale, but who seeks for purchasers, either by outcry or by attracting attention to them, as goods for sale, by an actual exhibition or exposure of them, by placards or labels, or by a conven- tional signal, like the sound of a horn for the sale of fish.* A "hawker and peddler" is an itinerant trader, who goes from place to place, or from house to house, carrying for sale and expos- ing to sale the goods, wares or merchandise which he carries." He generally deals in small and cheap articles, such as he can conveniently cany in a cart or on his per- son. He may be required to take out a license.* Hawking. Embraces the business of one who sells, or offers goods for sale, on the streets by outcry, or by attracting the atten- tion of persons by exposing his goods in a public place, or by placards, labels, or sig- nals.'' ' SUliman v. United States, 101 U. S. 471 (1879); Stew- art V. Piatt, ib. rm (1879); 3 How. 61; 21 WaU. 178; 103 111. 221. ' » Wendall u. Osborne, 63 Iowa, 102, 103 (1884), Beck, J. * Jamaica Pond Aqueduct Corporation v. Chandler, 9 Allen, 168 (1864), Bigelow, C. J. * [Commonwealth v. Ober, 12 Cush. 495 (1853), Shaw, Chief Justice. " Commonwealth v. Parnum, 114 Mass. 270 (1873), En- dioott, J. ; Morrill v. Stace, 38 Wis. 437 (1875) * Graffty v. EushvUle, 107 Ind. 505 (1886), Mitchell, J. HAZARD. 1 Danger, peril, risk, but not necessarily the greatest degree. 2 Hazardous. Involving danger; accom- panied with risk; perilous: as, a hazardous contract. " Hazardous," " extra hazardous," " special hazard- ous," and " not hazardous," have distinct meanings in the business of flre insurance. What goods are In- cluded under any one designation may not be so well known as to dispense with proof.' See Insubance; Bisk. Games of hazard. See Game, 2. HEAD. 1. He who provides for a fam- ily, q. V. 3. The responsible person; the chief; the principal: as, the head of a department of government, q. v. 3. Compare Caput ; Poll. Headnote. A statement of the points decided in a case, and preceding the printed report thereof. See Syllabus. HEALTH. Exemption from disease; freedom from sickness or pain; exemption from prevailing or unusual disease or con- tagion. A person is " healthy " who is free from disease or, bodily ailment, or that state of the system peculiarly susceptible or liable to disease or bodily ailment.* The degree of health ordinarily enjoyed by men in health, and the physical ability which men of sound bodies ordinarily possess, places one in the class of the "healthy and able-bodied," within the meaning of poor-laws, although there may be casual or tempo- ' rary illness, or bodily unsoundness.* " Sound health," as used in contracts for life insur- ance, does not mean absolute freedom from bodily infirmity or tendency to disease.' See Intkmperate. Public health. The wholesome sanitary condition of the community at large ; the ex- emption of a municipality or region from any prevailing and unusual disease or mor- tality ; general health : health of the people. Laws to secure the general health of the people at large are called "public-health laws;" and the offi- cers charged with administering them, the " public- health board," or "public-health officers," or, briefly, the " health-board " or " health-oflicers." ^ F. hazard, accident; unfortunate throw of dice: zar, a die. 2 Butterfoss v. State, 40 N. J. E. 330 (1885). = See Pindar v. Continental Fire Ins. Co., 88 N. Y. 364 (1868). ' Bell I'. Jeffreys, 13 Ired. L. 357 (1852), Pearson, J. 6 Starksboro v. Hinesburgh, 15 Vt. 309 (1843), Eoyce, Judge. * Morrison v. Wisconsin Odd Fellows' Mut. Life Ins. Co., 69 Wis. 170 (1884), Lyon, J. See Moulor v. Ameri- can Life Ins. Co., lll'U. S. 335 (1884); May, Ins. § 295, HEALTH 606 HEARING Bill of bealth. A certificate given by the authorities of the port from which a ves- sel clears, showing the state of the public health at the port. Clean hill of health. A certificate that no infectious disease exists ; opposed to a touched or suspected bill, or a bill actually /oitZ. Board of healtli. A board of officials specially charged with the preservation of the general health of the people at large. Their jurisdiction is, ordinarily, a municipalily, or a State. National Board of BeaUK Established by act of Congress of March 3, 1879, oh. 203, g 1 (20 St. L. 484). Consists of seven members appointed by the President, and four mem- bers detailed from the departments. Their duties are to obtain information upon all matters affecting the public health, to advise the heads of departments and State execu- tives, to make necessary investigations at any place in the United States, or at foreign ports, and to make rules guarding against the introduction of contagious diseases into the country and their spread from State to State. 1 The preservation of the public health is one of the chief purposes of local government. Hence, munici- pal corporations are liberally endowed with power to prevent and abate nuisances. Public policy requires that health-officers be not disturbed in the exercise of their powers, unless clearly transcending their au- thority.' All sanitary cordons and preventive regulations come under the right of preventing more serious in- juries by stifling the sources of evil. In doing this, health-oifieers must not interfere with the natural rights of individuals. 3 Power in boards of health to abate nuisances and the causes of them, and to enforce sanitary regula- tions, are very great. The courts have excused an excessive exercise of power in cases where there was great peril to the public health. But an exercise which is clearly unlawful, and has no great public necessity to excuse it, will be restrained, however praiseworthy the motive. The people " shall be secure in their persofls and Jiouses from unreasonable searches and seizures." ^ By statute of 1 James I (1603J, c. 31, a person infected with the plague, or dwelling in an infected house, could be compelled to keep his house. If he went into company, he could be punished by whipping, be bound > E. S , 1 Sup. p. 480. 2 Hart V. Mayor of Albany, 3 Paige, 218 (1838); 1 Dil- lon, Munic. Corp. |§ 369, 3T4. » Spalding i'. Preston, 21 Vt. 13-14 (1848). * Eddy V. Board of Health, 10 Phila. 94 (1873), cases, Peirce, J. See also Butterfoss v. State, 40 N. J. E. 3S5 (1886). to good behavior, or be adjudged guilty of felony. By 26 Geo. 11 (1753), c. 26, quarantine of ships from infected countries was regulated." In England the public health is secured by various statutes, principally by the Public Heall^ Act, 11 and 12 Vict. (1848), c. 63, the Local Grovernment Acts of 18S8, and amendments thereto. These statutes give large powers to the local authorities for removing nuisances, regulating burials, checking the sale of in- jurious food and drink, and otherwise preventing dis- ease. The preservation of health is an absolute right of personal security. ' Injuries to a man's health occur when, by any un- wholesome practices of another, a man sustains any apparent damage in his vigor or constitution: as, by the sale of bad provisions, by the exercise of a noisome trade, or by the neglect or unskillful management of his physician, surgeon, or apothecax'y. For such, a special action of trespass on the case for damages lies.^ An act (supplementary) of New Jersey, approved March 12, 1880, makes animals with, contagious dis- eases common nuisances; another act (also supple- mentary), approved March 12, 1884, makes horses affected with glanders common nuisances; and both acts authorize destruction of the animals under pre- scribed conditions. Held^ that the acts are within the police powers of the State; that they are not within the prohibition of the Fourteenth Amendment, be- cause, although they authorize the abatement of nui- sances in advance of a judicial adjudication of the fact of nuisance, yet they do not make the determina- tion as to that fact conclusive, and only permit acts, in abating a particular nuisance, to be justified by proof of it^ actual existence; thirdly,, that the, condi- tions under which the officials may act, by the statute of 1880, are mere limitations upon their power for the benefit of the owners of animals, and their adjudica- tion that such conditions exist will not protect them, unless the existence of the common nuisance is shown.* See Adulterate; Disease; Police, 2; QuARAif- TiNE, 2; Sound, 2 (2). HEAEnSTG. 1. The trial of a suit in equity. 2. The session of any court, or of an-adjunct thereof, for considering the proofs in a cause. 3. An examination of the testi- mony offered against a person charged with crime. As applied to equity cases, " hearing " means the same as "trial" at law.° rinal hearing. The trial of an equity case upon its merits ; as distinguished from > 4 Bl. Com. 161; King v. Vantandillo, 4 M. & S. 73 (1815); King v. Burnett, ib. 272 (1815). M Bl. Com. 129, 131. ' 3 Bl. Com. 122. * Newark & South Orange HorsBlRy. Go. ». £ta«t. Sup. Ct. N. J. (Feb. 27, 1888), cases, Magie, J. Same case, 37 Alb. Law J. 356. 'Vannevar v. Bryant, 21 Wall. 43 (1874); Jones v. Poster, 61 Wis. 29 (1884); 19 WaU. 225; 3 Dill. 463; 40 Ind. 179. HEARSAY 507 HEIFER the hearing of any preliminary question aris- ing in the cause, termed "interlocutory." i Further hearing. An adjourned or con- tinued hearing. Be-hearing. A new hearing in a mat- ter once decided ; consideration under a re- examination or re-argument,2 A petition for the re-hearing of a case may be re- quired to be made at the term when the cause was first decided. See NoncB, 1; Jdbispiotion, 8; Pboobss, 1, Due; Remand, 1; Tbioi, 4; Tbul; WiivBR. Compare An- dirb; Oybr; Pkesencb. HEARSAY. What is heard as rumored ; testimony not a matter of personal knowl- edge with the witness. That kind of evidence which does not de- rive its value solely from the credit to be given to the witness himself, but rests also, in part, on the veracity and competency of some other person.' In the largest sense, interchangeable with 'non- original evidence. This is generally inadmissible, be- cause of the depreciation of truth from passage through fallible media; because of non-disorlmination by jmies between primary and secondary evidence; and because it is irresponsible in its first exhibition. < Because it wants the sanction of an oath, and affords no opportunity for cross-examination, is ex- cluded.^ Supposes that better testimony may be had; is in- trinsically too weak to satisfy the mind; under its ^ color fraud might be practiced.' Admissible m the following cases: 1. As to a wit- neas — what was said in a former trial by a person now dead, out of the jurisdiction, subsequently incom- petent. Insane, or sick.' 2. As to depositions in perpetuam. But the testi- mony must be ephemeral ; taken conformably to the rules of evidence ; be deposited in court ; and the cause be not delayed.* 3. As to matters of general interest, and ancient possession. But the witnesses must be disinterested. Includes declarations of deceased persons as to bound- aries.^ Ancient documents, in proper custody, prove ancient possessions.^' ' Akerly v. Vilas, 24 Wis. J71 (1869), Paine, J. ; Jones V. Foster, 61 id. 29 (1884); Galpin v. Critchlow, 112 Mass. 343 (1873). = [3 Bl. Com. 453. »1 Greenl. Ev. § 99: [1 PhUI. Ev. 169. * 1 Whart. Ev. §§ 170-^75, cases. ' 1 Sreenl. Ev. §§ 168, 98, 124. •Mima Queen v. Hepburn, 7 Cranoh, 295 (1813), Marshall, C. J.; Hopt v. Utah, 110 U. S. 681 (1884); 1 Wheat. 8; 8 Wall. 409. '1 Whart. Ev. §§ 177-80, oases. " 1 Whart. Ev. §§ 181-84, cases. » See aement v. Packer, 125 U. S. 321 (1888), oases. "1 Whart. Ev. §§ 185-200, cases; 1 Greenl, Ev. §S 127-40. 4. A.ato pedigree emd relationship: birth, marriage, and death. Common family tradition is receivable; also, statements of deceased relatives made before a dispute arose ; also, family records, epitaphs, armorial bearings, and the like." See Pedigree. 5. As to declarations against interest by deceased persons. This means against pecuniary or proprietary Interest; not as to incidental matters, and although better evidence may be had. But must be brought home to an Imputed declarant. ^ 6. As to business entries. By a deceased or absent partner or clerk, and made in the regular coui-se of business, admitted. So of notes by surveyor, counsel, bank messenger, notaries, and others. But the entry must have been made contemporaneously with the transaction, confined to the matter It was the person's duty to record, and, In its nature, original." See fur- ther Entry, n, 1. 7. As to general reputation when material.* See Character; Reputation. 8. To refresh memory, as to extrinsic incidents of testimony; as, dates, places, etc.' See Refresh. 9. As to res gestm. Includes declarations coincident with business acts, and torts; not. If the acts are in themselves inadmissible, or there exists opportunity for concoction.' See Res, Gestae. 10. As to declarations concerning a party's own health and state of mind. These chiefly regard state- ments as to injuries and motives.' See furtjier Declaration, 2; Evidence; Histories. HEARSE. See Wagon. HEATHEN. See Oath; Religion. HEAVY. As applied to different articles, is a comparative term. Whether a bale of cotton is a " heavy article " or "an article of measurement," within the meaning of a railroad charter. Is a question of fact, to be deter- mined by a jury, and regulated by proof of custom.* HEIEER. A female calf of the bovine species, from the end of the first year until she has had a calf.' "Heifer" and "steer" describe animals of the bo- vine species advanced to an age beyond that of a calf. A more definite description is " yearling heifer," and "yearling steer." "' See Cow. ' 1 Whart. Ev. §§ 201-25, cases; 1 Greenl. Ev. §§ 103-7, = 1 Whart. Ev. §§ 228-37, cases. ■ 1 Whart. Ev. §§ 238-51, cases; 1 Greenl. Ev. §§ 115-23, < 1 Whart. Ev. §§ 252-50, cases. ' 1 Whart. Ev. § 257, cases. '1 Whart. Ev. §§ 268-67, cases; 1 Greenl. Ev. §§ 108, 112-J4, cases. ' 1 Whart. Ev. §§ 268-69, cases; 1 Greenl. Ev. §§ 102, 110, cases. 'Elder v. Charlotte, &c. E. Co., 13 S. C. 281 (1879); Bonham v. Same, ib. 276 (187P). » Freeman v. Carpenter, 10 Vt. 435 (1838). "Milllgan v. Jefferson Coimty, 2 Monta. 546 (1877). See also 7 Vt. 465; 40 id. 641; 11 Gray, 211; 8 Allen, 588; 16 Kan. 294. HEIR 508 HEIR HEIR. See H^kes. 1. At common law, he upon whom tlie law casts the estate im- mediately on the death of the ancestor, i ^ Correlative, ancestor, q. v. Uncontrolled by the context, the person appointed by law to succeed to the real es- tate in case of intestacy.^ '' Simply one who succeeds to the estate of a deceased person. 3 Whoever succeeds to property of an in- testats.i In a will, unexplaijied and uncontrolled by the context, construed according to its strict technical import, — the person who, by the statute of descent, would succeed to the real estate in case of intestacy. A term of de- scription of a class of persons who, in the prescribed contingencj^, take the estate;^ He upon whom the law casts an estate of inheritance immediately on the death of the owner.6 The primary meaning is, the person related to one by blood, who would take the latter's real estate if he died intestate. The proper piimary meaning of * ' next of kin " is, thS^erson related by blood, who takes per- sonal estate of one who dies intestate, ^^k In New York " heirs," applied to the su^lssors of personalty, means next of kin, and does not therefore include a widow or a husband of an intestate. In a few cases in other States " heirs," applied to person- alty, has been held to mean those who by the statute of distributions take the personalty ,in case of in- testacy. There is much confusion in the English cases upon the subject.' No rule can be stated under which all the decisions can be classified. In general, where there is a gift to a person or his heirs, the word "heirs " denotes suc- cession or substitution; the gift being primarily to the person named, or, if he is dead, then to his heirs in his place. In such cases, it has often been held that the word should be construed to mean the persons who would legally succeed to the property according 12 Bl. Com. 801: Bailey v. Bailey, 25 Mich. 188 (1872), » Gauoh V. St. Louis M. L. Ins. Co., 88 111. 256 (1878), Bchoefleld, C. J.; Fabens v. Fabens, 141 Mass. 399 3 McKinney v. Stewart, 3 Kan. 392 (1869), Valentine, J. ; Cushman v. Horton, 69 N. Y. 151-62 (1874); Fountain County Coal, &c. Co. u Beckleheimer, 102 Ind. 76 ■ (1884). * [Eckf ord v. Knox, 67 Tex. 203 (1886), Willie, C. J. « Clark V. Cordis, 4 Allen, 480 (1862), Bigelow, C. J. See also Lombard v. Boyden, 5 id. 2S4 (1862); Loring V. Thorndike, ib. 269 (1862); Rand v. Sanger, 116 Mass. 128(1874); Minot v. Harris, 132 id. 630-31 (1882), cases; Band v. Butler, 48 Conn. 298 (1880); 101 Ind. 194; 65 Iowa, 80; 18 B. -Mon. 329; 40 Miss. 768; 15 N. J. L, 404. • Lavery v. Egan, 143 Mass, 392 (1887), Field, J. ' [Tillman V. Davis, 95 N. Y. 24-29 (1884), oases. Earl, J. to its nature or quality; and that- the heirs at law would take the realty, and the next of kin or persons entitled to inherit personalty would take the personal estate. But where the gift is directly to the heirs of a person, as a substantive gift to them of something which their ancestor was in no event to take, this element of succession or substitution is wanting, and the heirs take as the persons designated in the instru- ment to take in their pwn right; and in such cases the courts have usually held that the word " heirs " must the persons en- of intesta<:y.i ' and the receive its common-law titled to succeed to real J " Heir " is a word of| like, are words of nati!| " Heirs " may be us^ in wills, for " children " or^^l&e," ^ or grandchU May mean " devisee," " legatee," or " distributee,^ May be used where there is no subject to be in- herited. ^ A " widow " is an heir in a special, limited sense -only.' A "husband " is neither the heir nor next of kin of his wife, in any technical sense. ^ In a devise, " l^eir " is a word of limitation.* See Shelley's Case. Collateral heir. A relative not of the direct line of descent, but of a collateral line. Heir apparent. He whose right of in- heriting is indefeasible, provided he outlives the ancestor. 1" In this sense, " heir " is in popular use. Heir at law; heir at coiamou law, or heir general. He upon whom the law casts'the realty of an intestate.l' Heir of the body or natural heir. An heir begotten of the body ; a lineal descend- ant. 12 ' Fabens v. Fabens, 141 Mass. 399-400 (1886), cases, C. Allen, J. 2 Heard d. Horton, 1 Denio, 167-70 (1846), cases; See V. berr, 57 Mich. 373 (1886). sHaly V. Boston, 108 Mass. 579 (1871); Taggart v. Murray, 53 N. Y. 233 (1873); Jones v. Lloyd, 33 Ohio St. 578-80 (1878), cases; Eldridge v. Eldridge, 41 N. J. E. 91 (1886), cases; 42 id. 569; Myrick v. Heard, 31 F, R, 244 (1887), * Woodruff V. Pleasants, 81 Va, 40 (1885), s Sweet u, Dutton, 109 Mass, 591 (1872); Cushman v. Horton, 59 N, Y, 151 (1874); Elsey v. Odd FeUows Re- lief Society, 142 Mass, 226 (1886). "Aspden's Estate, 2 Wall. Jr. 445 (1863). ' Unfriedv. Heberer, 63 Ind. 72 (1878); Rusing v. Rus- ing, 85 id. 68 (1865); Eisman v. Poindexter, 52 id. 401 (1876); Clark v. Scott, 67 Pa. 462-53 (1871), cases. 'Ivins's Appeal, 106 Pa. 184 (1884). » Daly V. James, 8 Wheat. 534 (1623); 99 Ind, 190. >»2 Bl. Com. 208; 8Bush, 115; 5] Barb. 137; 28 Me. 257. " Aspden's Estate, 2 Wall. Jr. 488-38 (1863). "Smith 1). Pendell, 19 Conn. Ill (1848); WUliamsf Allen, 17aa. 84 (1855); Roberts v. Ogbourne, 37 Ala. 178 (1861); Sewall v. Roberts, 115 Mass. 276-77 (1874). HEIR 509 HEREDITAMENT Heir presumptive. He who, if the an- cestor should die immediately, would, in the present circumstances of things, be his heir; but whose right of inheritance may be de- feated by the contingency of some nearer heir being born.i Heiress. A female heir; but, in law- language, " heir" includes both sexes. At common law, " hei^' is a word of inheritance, necessary to the g^ij^^^^estate larger than a life Interest. 2 Thi^^^^^^^kc of feudal strictness.' Unlesscj^M^Hm^^^^^^^rule requiring the use M|ifl||^^^i^niper^^^^^pynonym will supply its ^^^^^^or will any wo^P^^erpetuity.^ ^ To bind his heirs, ani obligor must use the word " heir " or its equivalent; not so, to hind an adminis- trator or an executor. ^ See Adopt, 3 ; Descent; Heirloom; Hereditament; Inherit; Purchase, S; Eight, 1. 2. In civil law, he who is called to the " succession " (q. v.), whether by the act of the deceased or by operation of law. The universal successor is the "testamentary heir; " and, in cases of intestacy, the next of kin by blood is the "heir by intestacy" or "heir-at-law." The former corresponds to the executor, the latter to the administrator, of the common law. The "heir" administers both the real and the personal estate." See H^REs. Heirloom. Such personalty as, contrary to the nature of chattels, goes by special custom to the heir along with the inheritance, and not to the executor of the last proprie- tor.' " Loom " is in Saxon geloma^ leoma; limb, mem- ber; so that " heirloom " is a limb or member of the inheritance ■ Heirlooms are generally such things as cannot be taken away without damaging or dismem- bering the freehold: as, charters, deeds, and other evi- dences of title to land, with the chests containing them; chimney-pieces, pumps, old fixed or dormant tables, benches and the like; also, the ancient jewels of the crown. Of the same nature is a monument or tombstone, a pew in a church, and like articles which, by special custom, cannot be devised away from the heir.' ' Or, again, "loom " meant, at first, an implement for weaving, emd, later, any household article — a table, cupboard, bedstead, wainscot, and the like. These came to be called "heir-looms " because, by special ' >2B1. Com. 208. ' St. Clair County Turnpike Co. ■«. Illinois, 98 U. S. 68 (1877). ' 8 Bl. Com. 107. ' Hyde v. Woods, 94 U. S. 524 (1876). HEREDITARY 510 HIRING In principle there is no difference, as to the acquisi- tion of rights, between corporeal and incorporeal ob- jects. But, with regard to possession alone, as affect- ■ ing title, a difference is introduced by reason of the statute of limitations. A grant of land, conferring an entire title, is not presumed from mere possession short of the statutory period. The statute makes all the provisions deemed necessary for quieting posses- sions of a corporeal nature, thereby removing these cases from the operation of the common law. Con- clusive presumption of title to an incorporeal heredit- ament is afforded by twenty years' adverse, exclusive, undisturbed possession.' See Demesne, Seized, etc.; Disturbance; Eject- ment; Grant, 1. HEREDITARY. 1. Subject to inherit- ance, q. V. 2. Transmitted to descendants : as, heredi- tary insanity, q. v. HEREIN. May refer to the section, the chapter, or the entire enactment in which it is used.2 HEREINBEFORE. Compare Ante. In the clause, in a will, " I give . . to the per- sons, societies and corporations to 'whom I have here- inbefore made bequests ..." means, as the same 710W is or exists.^ HERESY. See Religion. HERETOFORE. In time p8(^t,< See Jury, Trial by. HERIOT.5 A render of the best beast or other good (as the custom may be) to the lord on the death of the tena!nt of a copyhold estate.* Also called "heriot-custom." " Heriot-service " was, substantially, a rent due upon a special reserva- tion in a grant or lease 'of lands.' HERITABLE. See Inheritance. HERMENEUTICS. ' ' Legal hermeneu- tics " are the rules, as a system, for discov- ering the meaning of written language. 8 HIDALGO. See Pueblo. HIDE. See Abscond ; Conceal. HIDES. See FUR. HIGrH. Elevated above another; supe- rior; supreme. In some connections, the use is pleonastic. I Comettu Ehudy, 80 Va. 713-14 (1885), cases. ' See State ex rel. Smiley v. Glenn, 7 Heisk. 485, 475, 480 (1872). 3 Wetmore v. Parker, 52 N. T. 464 (1873). < Andrews «. Thayer, 40 Conn. 157 (1873); 13 N. Y. 427, 458; 1 N. J. L. 278. A. S. heregeatu, military apparel. •2B1. Com. 97. ' 8 Bl. Com. 421-25. * See Lieber, Leg. & Pol. Herm. 1. Having authority to preserve the peace within a district larger than some other's; opposed to pefty: as, a high constable, q. v. 3. Supreme : above others : as, high court. 3. The moi-e heinous : as, high crimes and misdemeanors, q. v. 4. XJninclosed ; below low water-mai-k : as, the high sea, q. v. See also Water- mark. 5. Charged with the largest executive functions : as, high sheriff, q. v. 6. Directed against the government: as, high treason ; opposed to petty treason. See Treason, 7. Belonging to, or for use by, the public at large : as, in highway. See Way. Highest. 1. Superior to any other: as, the highest bid, q. v. 2. The most scrupulous: as, the highest good faith, q, v. HILARY. See Term, 4. HINDER. To " hinder and delay " cred- itors is to do something which is an attempt to defraud them ; to put some obstacle in the path, or interpose some time, unjustifiably, before the creditor can realize what is owed him out of the debtor's property, l The hindering and delaying which vitiates an as- signment is such as is sought through covin or malice on the part of the debtor for his benefit. The fraudu- lent intent is a question of fact.'* See Conveyance, . Fraudulent; Delat. HIRING. A contract for the use of per- sonalty, or for services. A species of bail- ment for a price or recompense. 1. As to things. A contract whereby the possession and a transient property is trans- ferred for a particular time or use, on condi- tion to restore the goods as soon as the time is expired or the use performed, together with the price, expressly agreed upon or left to be imiplied by law according to the value of the service.' The hirer acquires a temporary property in the 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 property in the price or reward. Of such is the loan of money on interest. ^ 2. As to services. The contracts classed under this head are contracts for work, for ' Bumham v. Brennan, 42 N. Y. Super. 63 (1877), Curtis, C. J.; 74 N. Y. 697(1878). " Burr V. Clement, 9 Col. 8-10 (1885), cases. ' [2 Bl. Com. 463. See 2 Kent, 466; Story, Bailm. §359; 24 Am. Law Peg. 238-43 (1686), cases. HISTORIES 511 HOLD the safe-keeping of personalty, and for the carriage of persons or personalty. "Storage" and" carriage" are in more common use ph&n any inflections of hire, to designate a con- tract tor the custfidy of ordinary merchandise, or for the transportation of persons or property.' The idea of " hiring " may be involved in " employ- ment," but its application is not restricted to any par- ticular mode of use." SeeBAiL,MBNT; Deposit,!; Looatio. HISTORIES. See Book. Historical facts, of general and public notoriety, may be proved by reputation; and that reputation may be established by historical works of known char- acter and accuracy. But evidence of this sort is con- fined in a great measure to ancient facts, which do not presuppose better evidence in existence; and where, from the nature of the transaction, or the remoteness of the period, or the public and general reception of the facts, a just f oimdation is laid for general confi- dence. The work of a living author who is within reach of process is not of this nature. He may be called as a witness, and examined as to the sources and accuracy of his information. If the facts are of recent date, and within the knowledge of many per- sons living, from whom he derived his materials, his book is not the best evidence. ^ HITHERTO. Restrains the meaning of a phrase to a period of time then elapsed.* HOC. See under H. HODGE-PODGE. See Hotchpot. HOE. See Weapon, Deadly. HOG. Hogs are "cattle," within' the meaning of a guaranty of drafts against shipments of " cattle." * And also within a statute requiring fencing to pro-, tect lands from *' straying cattle." ® Hogs are " swine; " and the word " hog" will also include a "sow."' In a statute punishing larceny, the live animal or its carcass may be meant; ^ and the word will describe a pig four or five months old,* See Animal; Cattle. HOIiD. 1. To decide, adjudge, decree. Whence held, decided, ruled, adjudged: as, the court "held" the evidence admissible, or the defend- ant not liable. In head-notes to reports of cases, fol- > [1 Abbott's Law Diet. 565. » Hightower v. State, 73 Ga. 484 (1884). •Morris v. Lessee of Harmer's Heirs, 7 Pet. '568 (1833), Story, J. See 1 Greenl. Ev. § 497; 1 Whart. Ev. §§ 664, 3-38. 'Mason v. Jones, 13 Barb. 479 (1852). ' First Nat. Bank of Decatur v. Home Savings Bank of St. Louis, 21 Wall. 299 (1874). • ChUd V. Hearn, L. K., 9 Ex. 181 (1874). •'Elvers v. State, 10 Tex. Ap. 179 (1881). "Whitson V. Culbertson, 7 Ind. 195 (1855); Hunt v. State, 55 Ala. 140 (1876); Eeed u. State, 16 Fla. 564 (1878). • Lavender «. State, 60 Ala. 60 (1877). lows the statement of the facts and Introduces the decision of the court thereon. 3. To deduce as a rule or principle; to maintain on the strength of decided cases: as, the authorities " hold " so and so. S. To assert, declare, maintain; to occupy the position of propounding as a fact or as law : as, the plaintiff " holds " the affirmative of the issue. See Buhden, Of proof. 4. To cause to be bound or obligated ; to confine or restrain : as, " to hold him to his contract,'' "the obligor is held and firmly bound," "persons held to service;" "hold" and "held to bail," or "for court," or "for trial." Compare, Bind. 5. To sit for a specified purpose ; to sit to administer justice: as, to "hold court," "hold pleas;" to "hold an election;" to "hold a hearing" or "session." 6. To possess by virtue of a lawful title: as, ' ' hold a note " or " bond ; "' "hold lands " or " property," '" to have and to hold" de- scribed premises; "hold ofiice;" "hold" a fund, or lien, a policy of insurance, a share, stakes, stocks, etc. Compare Tenure. Whence also freehold, leasehold. "Holding," relating to ownership in property, em- braces two ideas : actual possession of some subject of property, and being invested with the legal title. It may be applied to anything the subject of property, in law or in equity.' Under an act forbidding a foreign corporation to " acquire and hold " land, a conveyance is not neces- sarily void. The holding may be subject to the right of escheat.' Holder. One who has possession of any- thing. One who possesses by virtue of a lawful title : As, a bondholder, fundholder, lienholder, ofBce- , holder, property holder, policy-holder, shareholder, stakeholder, stockholder, gq. v. Holder in good faith; holder for value; innocent holder. He is a holder of nego- tiable paper or laonds for value, who pays real, in contradistinction from apparent, value, without notice of any fraud or ille- gality affecting the instrument.' ' WrtseU V. Charleston, 7 S. C. 99 (1875). See also Godfrey v. Godfrey, 17 Ind. 9 (1861); Hurst v. Hurst, 7 W. "Va. 297 (1874); Runyan v. Coster, 14 Pet. 1?0 (1840); 89 N. J. E. 547. 'Hickory Farm Oil Co. v. Buffalo, &c. E. Co., 32 F. R. 22 (1887); Eunyan v. Lessee of Coster, 14 Pet. 128 (1840). » Montclair Township v. Eamsdell, 107 U. S. 161, 169 (1882), Harlan, J.; Story, Prom. Notes, | 195; Byles, Biils, 117, 119, 124. HOLIDAY 513 HOME If aqy previous holder of bonds in suit was a bona fide holder for value, the plaintlCC, without showing that he himself paid value, can avail himself of the position of such previous holder, i See further Bearer; Check; Faith, Good; Nego- tiate, 3. Holding over; hold over. (1) Retain- ing possession of premises after a lease has expired, and without fresh leave from the owner. Such tenant holds "at sufferance," and his estate is destroyed when the owner makes actual entry, or gives notice to quit. Being once in possession, the law supposes a continuance authorized. The tenant may be required to account for profits made.^ See Detainer, 2; Entrt, 1, 1; Quit, 2. (2) Continuing to exercise the functions of an office after the end of' one's term, and be- fore a' successor is qualified. In many cases statutes, and in others common-law rules, to prevent an interregnum in an office, author-' ize the incumbent to continue to serve imtil a succes- sor has been regularly qualified. See Vacancy. HOLIDAY. A secular day on which the law exempts all persons from the perform- ance of contracts for labor or other personal service, from attendance at court, and from attention to legal proceedings. Legal or public holidays are appointed by statute law, or are authorized by custom having the foi'ce of law. These are New Year's day, Washington's birthday, Decora- tion day, Independence day, Thanlisgiving day, Christmas day; in some States good Friday ; general election' days ; and other days appointed by the President or the gov- ernor of the State for thanksgiving, fasting, or other observance. On these days public business is suspended, and the presentment and protest of paper is excused, as on Sunday. Falling on Sunday, the Monday succeeding is generall.v observed; paper becoming due on such Monday is payable on the Saturday preceding. Paper due on Decoration day or Good Friday is generally payable on .the secular day next previous thereto.^ The observance of a holiday binds no man's con- science. It is bis privilege to labor or not, as he pre- fers." The expression " legal holiday " of itself imports a dies non juridicus ^ See Sunday. ' Montclair Township v. Ramsdell, ante. >See 8 Bl. Com. 150; 3 id. 210; Pickard v. Kleis, 66 Mich, eoi (1885). » See Penn. Acts 25 May, 1874, 12 April, 1869, 8 April, 1873; N. Y. Stat. 1873, c. 577. < Richardson v. Goddard, 23 How. 43, 41 (1859). » Lampe v. Manning, 88 Wis. 676 (1876); 14 Bank. Beg. HOLOGEAPH.i An instrument writ- ten entirely in the hand of one person, as, by a grantor, or testator. Spelled also olo- graph. Whence holographic, and olo- graphic.2 An olographic will being " one that is entirely writ- ten, dated, and signed by the hand of the deceased," a will partly written upon a printed form is not such.' Opposed, dictated will. Generally speaking, holograph wills require no at- testation.* HOMAGtE. See Allegiance: Feud. HOME. While children "remain at home," in a will, may refer to the household of which the testator was head.^ See House- hold. Where a person takes up his abode, with- out any present intention to remove there- from permanently.^ S§e further Abode; Domicil; House; Residence. Homestall. In ancient law, a mansion house. 7 " Stall " and " stead " were Anglo-Saxon for place, seat, fixed spot, station. Homestead. The home-stall, home-place. The dwelling-house, at which the family resides, with the usual and customary ap- purtenances, including outbuildings of every kind necessary and convenient for family use, and lands used for the purposes thereof .s Whence homesteader. In its popular sense, whjatever is used, be- ing either necessary or convenient, as a place of residence for the family, as contradis- tinguished from a place of business.' Sometimes used as a verb; as, he "home- steaded his pre-emption." i" Homestead laws. Constitutional or stat- ^,Gk. holo-graphos, wholly written. 2 See La. Civ. Code, art. 1581; Code Civ. 970. = Cal. Civ. Code, § 1277: Be Estate of Band, 61 Cal. 468 (1883): 14 Rep. 716; 3 Woods, 77. < See 3 Jarman, Wills (B. & T.), 767, note. s Manning v. WoflE, 2 Dev. & B., Eq. 12 (N. C. 1838). » Warren D. Thomaston, 43 Me. 418 (1857); 3 id. 229; 15 id. 58; 19 id. 293; 35 Vt. 232. ' Diekinson v. Mayer, 11 Heisk. 521 (1872); 4 Bl. Com. 225. s Gregg V. Bostwiok, 33 Cal. 227 (1867), Sanderson, J.; Estate of Delaney, 37 id. 179 (1869); 4 id. 23; 16 id. 181. See also 63 Ala. 238; 31 Ark. 468; 48 id. 236; 54 111. 175; 12 Kan. 267; 77 N. C. 384; 7 N. H. 245; 36 id. 166; 46 id. 52; 61 id. 266; 63 id. 428; 6 Tex. 102; 23 id. 498; 48 id. 37; 28 Vt. 672; 46 id. 892; 1 Wash. B. P. 352. » Gregg V, Bostwick, 33 Cal. 828, 826-27 (1867); Be Crowey, 71 id. 303 (1886). '» Timber Cases, 11 F. R. 81 (1881). HOMICIDE 513 HOMICIDE utory provisions for the exemption of a cer- tain amount or value of realty, occupied by a person as his homestead, from a forced sale for the payment of his debts. In some States restraints are placed upon alienation by the owner, and in some the property de- scends to the widow and minor children free from liability for his debts. The estate is like an estate for life.i It is settled: 1. That the object of the homestead law is to protect the family of the owner in the pos- session and enjoyment of the property. 2. That that construction must be given such laws which will best advance and secure their object. 3. To divesta home- stead estate, there must be a literal compliance with the mode of alienation prescribed by statutes." While a very limited estate in the land, perhaps even a leasehold, may support a claim, some estate is essential.^ Where the " joint consent " of a husband and wife is essential to the alienation of a homestead, the bet- ter rule is to have it evidenced by their signatures to the same instrument, before the same officer, and in the presence of each other.* The act of May 20, 1862, is the first homestead law of the general government. By it a quantity of land not exceeding 160 acres is given to any person who is the head of a family, or who is twenty-one, and a citi- zen or intends to become such, on condition of settle- ment, cultivation, and continuous occupancy as a home for the period of five years." See Abandon; ■Owner. HOMICIDE.s The killing of any human creature.' A generic term, embracing every mode by which the life of one man is taken by the act of another.8 Criminal homicide consists in the unlawful taking by one human being of the life of an- other in such a manner that he dies within a ■See Barney r. Leeds, 51 N. H. 261 (1871); Fink v. 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 to the Southern States; Thompson, Homest, &o. 1 1; 4 Cal.'26, 33; 33 id. 226; 11 Ga. 89; 1 Iowa, 439; 18 Tex. 415; 34 Wis. 657; 61 id. 374; 103 U. S. 331 ; 1 Bouvier, Law Diet. 754. 2 Howell V. MoCrie, 36 Kan. 644 (1887), cases, Simpson, Commissioner. sMyrick v. Bill, 3 Dak. 292 (1884), cases. * Howell V. McCrie, 36 Kan. 645 (1887). 'R. S. §§ 2289-2317; Seymour v. Sanders, 3 DiU. 441 <1874). Waiving the right, Linkenhoker's Heirs v. Detrick, 81 Va. 44, 66 (1883), cases. «F. homicide, manslaughter: L. homieidium; or, a man-killer: L. homicida: homo, a man; asdere, to till. ' 4 Bl. Comm. 177. s Commonwealth v. Webster, 5 Cush. 303 (1850), Shaw, C. J. (33) year and a day from the time of the giving of the mortal wound, i If committed with malice, express or implied, it is mui-der; if without malice, manslaughter. The in- jury must continue to affect the body of the victim till death. If death ensues from another cause, no murder or manslaughter has been committed. The person who unlawfully sets the means of death in motion, whether through an irresponsible instrument or agent, or in the body of the victim, is the guilty cause of the death at the time and place at which his unlawful act produces its fatal result, i Homicidal. Involving or directed to- ward the killing of a fellow man: as, homi- cidal intent, or monomania. '* Homicide," as a term, does not necessarily import crime: it includes acts which are crimes. The dis- tinctions denoted by "fratricide," "matricide," "par- ricide," "patricide," "regicide," "sororicide," are not observed in law. But " prolicide," destroying off- spring, "foeticide," killing an unborn child, "infanti- cide," killing an infant soon after its birth, and "sui- cide," killing one's self, are employed in senses which involve, more or less, commission of crime. Killing is justifiable, excusable, or felonious. Justifiable homicide. When a life is taken in the performance of a duty or the exercise of a right. This is (1) owing to some unavoidable necessity, without any will, intention, or design, and without any inadvertence or negligence in the party killing, and is, therefore, without blame. Or, it is (2) for the advance- ment of public justice — by permission: as, where an officer kills a person who resists lawful arrest; where one kills a person charged with felony; killing in dis- persing a riot, or by a jailer to prevent an escape. In these cases there must be an apparent necessity. Of this character, also, is killing in war; and so were deaths in trials by battle. To this grade likewise be- long killings to prevent forcible or atrocious crimes: as, robbery, murder, burglary, arson; but not mere larceny from the person, nor house-breaking in the day-time. A husband or father may kill for attempted rape,'^ — flagrante crimine. Where one in defense of his person, habitation, or property kills another, who manifestly intends and endeavors by violence or surprise to commit a forcible or atrocious felony, such killing is justifiable homicide. In that case, also, the justification must depend upon the circumstances as they appear to the prisoner.' Excusable homicide. When a life is lost by an accident in the lawful doing of a proper act, or is taken to prevent death or grievous injury to another person. ■Commonwealth v. Macloon, 101 Mass. 6-8 (1869), cases, Gray, J. 2 4BI. Com. 178-82.. sparrish v. Commonwealth, 81 Va. 1, 14-16 (1884), cases. See in general, 28 Am. Law Reg. 706-8 (1887), cases; committed from necessity, 1 Law Quar. Rev. 51-61 (1886). HOMO 514 HORSE This is (1) by misadventure, where a man doing a lawful act without intention to hurt, unfortunately kills another: as, where the head of a hatchet flies off and kills a by-stander; where a parent, teacher, or offi- cer causes death from moderate punishment of a child, or of a criminal. The act is in itself lawful ; the effect is accidental. This species of homicide is to be distin- guished from manslaughter. Or, it is (3) in self-defense, upon a sudden afli'ay, and with no avenue of escape from manifest danger to life or great bodily harm.^ Felonious homicide. Killing a human creature, of any age or sex, -without justifi- cation or excuse. 2 The killing may be of one's self or of another per- son. When without malice, the crime is manslaughter; when with malice, murder. ^ ' See further Deb'ense, 1; Ihsanitt, 2 (6); Malice; Manslaughter; Murder; Provocation; Retreat; Suicise; Threat. HOMO. L. A human being; man, a man ; a person. Literally, a creature of the earth — humus. Deriva- tives: homage, homicide. De homine replegiaudo. For replevy- ing a man. See Eeplevin, 2. Iiiber homo. A free man; also, in Eoman law, a freedman. Liber et legalis homo. A free (good) and lawful person : a juror, who was to be neither a bondsman nor infamous.3 USTovus hom.o. A new man;- a man par- doned of crime. HOMOLOGATE.^ To say the like.B Homologation. Approbation ; confirma- tion; ratification, whether by a party or a court. In use in civil and Scotch law. HONESTE VrVERE. See Law. HONESTY. When a transaction is as compatible with honesty as with dishonesty, the former is always presumed.^ A person who keeps in his employ a servant found to be dishonest cannot have recourse to the guarantor of the servant's integrity for a loss occurring during subsequent service.' See Cohsoiehoe; Equity; Faith; Trust, 1. HONOR. V, 1. To accept a bill of ex- change, or to pay a promissory note, accord- ing to its tenor. MBl. Com. 183-88. '4 81. Com. 188-301. »3B1. Com. 340, 363. Ames V. Martin, 6 Wis. *362 (1858). 'Aylesworth c^. Chicago, &c. B. Co., 30 Iowa, 460 (1870). * Robert v. Adams, 38 Cal. 383 (1869) ; Allman v. Gann, 29 Ala. 242 (1856). »Noland v. Wickham, 9 Ala. 171 (1846); Winfrey v. Zimmerman, 8 Bush, 588 (1871). •Cobbs«. Coleman, 14 Tex. 598 (1855); Dearborn v. Phillips, 21 id. 451 (1858). 'F. hochepot, shake-pot; a medley,— Skeat. "Littleton, IS 267, 55; 3 Coke, Litt, ch. 12. descended. Hereby two sorts of lands were mixed and then divided equally.' HOTEL. What in France was known as a hotelerie,^ and in England as a common "inn "of the superior class found in cities and large towns, s See Inn ; Tavern. HOUMAS GEANTS. Certain grants of land in Louisiana; as to the history of which see the case cited hereto. * HOUR. See Business ; Day ; Service, 1 ; Time. HOUSE. 1. A dwelling-house; a build- ing divided into floors and apartments, with four walls, a roof, doors, and chimneys. But not necessarily precisely this.* Involves the ideas of an edifice or structure, and the abode or residence of human beings. Criminal statutes constantly use "house " as equiv- alent to " building." A term indicating the particular purpose to which a building is applied may be pre- fixed ^ as in State-house, court-house, school-house. In " out-house," buildings that are not dwellings, but merely appendages to some dwelling, are included. When a dwelling is meant, "dwelling-house" or " mansion-house " is us'^ally and properly employed.* While "house" is broader than "dwelling-house," it is narrower than "building."' Does not necessarily mean a whole building; is often applied to a separate apartment."* ' May mean " messuage " — land and structure; as in a will, and in statutes exempting property from tax- ation.^ The law of England has so particular and tender a regard to the immunity of a man's house that it styles it his " castle " and will not suffer it to be violated with impunity. Whence the aphorism, "every man's house is his castle." For this reason, no outside door can, in general, be broken open to execute civU pro- cess; though, in criminal causes, the public safety supersedes private. Hence, also, in part, arises the 1 a Bl. Com. 190-91, 517. See Comer v. Comer, 119 m. 179 (1886). = From hostel, Latin hospes, d stranger who lodged at the house of another; also, the master of a house who entertains travelers or guests. ' Cromwell v. Stephens, 8 Daly, 21 (1867), Daly, F. J.; ib. 200; 54 Barb. 316; 4 Duer, 116; 33 Cal. 557. « Slidell V. Grandjean, 111 V. S. 412 (1884). « Daniel v. Coulsting, 49 E. C. L. *125 (1845), Tindal, C. J. ; Surman v. Darley, 14 Me. & W. 185 <1845) ; 2 Man; & B. 514; 8 Baru. & C. 461 ; 1 Car. & K. 533. •State V. Powers, 86 Conn. 79 (1869), Parke, J.; 4 Bl. Com. 221,824; 7Biss. 271. ' State V. Garity, 46 N. H. 62 (1865). s Quinn v. People, 71 N. T. 568-74 (1878), cases; Com- monwealth V. Bulman, 118 Mass. 466 (1875). 'Rogers v. Smith, 4 Pa. 101 (1846); McMillan v. Sol- omon, 42 Ala. 358 (1868); Coimcil of Richmond v. State, 5 Ind. 337 (1854); Trinity Church v. Boston, 118 Mass. 165 (1875). HOUSE 516 HOUSE animadversion of the law upon eavesdropping, nui- sances, incendiaries; and for this reason a man may assemble people together lawfully, to protect and de- fend his house.' A man may defend his house even to the taking of life, if apparently necessary to prevent persons from forcibly entering it against his will, and when warned not to enter and to desist from the use of force. But the law doesnot sanction taking life to prevent a mere trespass upon real estate.'' See Domus, Sua, etc. A landlord might not formerly break open a house to make a distress; that would be a breach of the peace. But when he was once in the house, he might break open an inner door.^ See Mansion-house. Ancient house . Ahoiisewhiohhas stood for twenty years. 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 support of his ground in its natural state from the ad- joining land, but not for buildings.* See Support, 2. House-breaking. Breaking and enter- ing the dwelling-house of another with in- tent to commit a felony therein, irrespective of the time of day. Compare Burglaky. Household. A family; also, pertaining or appropriate to a house or family: as, household furniture, goods, stuff. See FOE- NITUEE. Persons who dwell together as a family.* Household goods. Articles of a permanent nature, not consumed in their enjoyment, that are used, purchased or otherwise ac- quired by a person for his house.s Not then, such articles as potatoes, bacon, vinegar, and salt, especially when held for sale or barter.' Householder. The head of a household; the person who has charge of, and provides for, a family or household.'' See Exemption ; Family. , In a statute requiring jurors to be householders, means something more than occupant of a room or ' 4 Bl. Com. 223. See also 3 Kan. Law J. 294, 314 (1886) — Chic. Leg. Adv. » Davison v. People, 90 111. 229 (1878). S3 Bl. Com. 11. See particularly Semayne's Case, BBep. 91 (1605): 1 Sm. L. O. (H. & W.) 228; Curtis v. Hubbard, 4 Hill, 437 (1842) ; Nash v. Lucas, L. E., 2 Q. B. *S93 (1807). 4 See 2 Kent, 437. 6 Arthur V. Morgan, 112 U. S. 499 (1884), Blatchford, J. defining household effects subject Ho duty imder R.'s. §2605. » [Smith V. Findley, 34 Kan. 316, 323 (1885), Horton, Chief Justice. ' Griffln v. Sutherland, 14 Barb. 4B8 (1858); Bowne v. Witt, 19 Wend. 475 (1838); Woodward v. Murray, 18 Johns. •402 (1820); 52 Ala. 161; 6 Bush, 429; 15 B. Mon. 447; 110 111. 533; 57 Miss. 288; % Tex. Ap. 448. house; implies the idea of a domestic establishment, of the management of a household.' House of correction. A prifeon for the confinement, after conviction, of paupers who refused to work, and vagrants. Established in the reign of Elizabeth.' For idle and disorderly persons, parents of bas- tards, beggars, servants who run away, trespassers, rogues, vagabonds, spendthi-ifts, and the like.* House of ill-fame. A brothel or bawdy- house. A synonym for " bawdy-house." Has no reference to the fame of the place, but denotes the fact; proof of the fact may be aided by proof of the tame.* Such resorts are public nuisances: they draw lewd persons, endanger the peace, and corrupt the man- ners.* A flat-boat may be kept as such a house.' A house of prostitution is a constant menace to the good order of the community. It is a nuisance and the keeping of it a misdemeanor at common law. Its suppression, with punishment, are proper subjects of police regulation. In one form or another the author- ity to prohibit and suppress is given to' cities and towns.' See further Fame, Ill-fame; Bawdy-house; Lkwu; Patronize. House of refuge. A public institution for the confinement of incorrigible youth. Mansion-house. In the law of burglary, a dwelling-house. If a house, stable, or warehouse be parcel of the mansion-house, and within the same common fence, though not under the same roof or contiguous, a burg- lary may be committed therein; for the capital house protects and privileges all its branches or appurte- nances, if within the curtilage or home-stall. A chamber in a college is the mansion-house of \3a& owner. So also is a room or lodging in any private house the mansion, for the time being, of the lodger, if the owner does not dwell in the house, or if he and the lodger enter by different doors. But a tent or booth is not a mansion-house: the law regards thus highly nothing but permanent edifices.^ Public-house. (1) " Public " may be ap- plied to a house, either on account of the pro- prietorship, as, a court-house, which belongs 1 Aaron u State, 37 Ala. 113 (1861); 21 id. 261; 17 id. 482; 6 Baxt. 622. »3 Steph. Com. 225; 4 Bl. Com. 370, 377. »Tomlin; Laws, Prov. of Penn. (1632). * State 1). Smith, 29 Minn. 195 (1888); 28 Mich. 213; 29 Wis. 435; 88 Tex. 603; 1 Bish. Cr. L. § 1088; 2 Whart. Cr. L. 1 1451. » Cadwell v. State, 17 Conn. 471 (1846); State v. Main, 31 id. 574 U863); McAlister v. Clark, 33 id. 92 (1865); State V. Garing, 74 Me. 163 (1882); Commonwealth v. Lavonsair, 132 Mass. 3 (1882). ' State V. Mullen, 35 Iowa, 807 (1872). ' Rogers v. People, 9 Col. 452 (1886), Helm, J. ' 4 Bl. Com. 224-26. HUCKSTER 517 HUSBAND to the county, or from the purposes for which it is used, as, a tavern, a store-house, or a house for retailing liquors.' Statutes against gaming in " public-hoiises " have particularly in view houses that ale public on account of the uses to which they are put. Whether any specified house is public is a question of law, although the general question whether a place is public maybe a question ot tact.> Compare Place, Public. (8) An hotel or inn, qq. v. See Bay-window; Clearing; Curtilage; Disok- derly; Domicil; Dwelling; Family; Finished; Floor; Grant, 2; Health; Heirloom; Incident; Lakd; Mes- suage; Nuisance; Search; Servant, 1. Compare Douns. 2. A body of persons organized for the per- formance of business or duties of a pubUc nature; in particular, a legislative assembly, or a branch thereof. May mean the entire number of members; ^ or merely the members present doing business.' House of Commons, or of Iiords. See Paeliament. House of Representatives. See Assem- bly; Congress. Lower House. The popular branch of a legislature; the house of representatives. Upper House. The Senate. HUCKSTER. Compare Hawker. HUE-AlfD-CRY.i In old common law, puisuing, with horn and voice, felons and such as dangerously wounded another. Statute of 13 Edw. I (1286), c. 1-4, directed' that every county should be so well kept, that immediately upon felonies being committed, fresh suit should be made from town to town and from county to county, and that hue and cry should be raised upon the felons, and that they that kept the town should follow with hue and cry with all the town and the towns near, until the fugitives were taken. . By statute of 27 Eliz. (1585), c. 13, no hue and cry was sufficient unless made with both horsemen and footmen. . . The wholp district was liable to be amerced, according to the law of Alfred, if a felon escaped. Hue and cry could be raised either by the precept of a justice, or by a peace-officer, or by any private man who knew that a felony had been committed. The party raising it iShihagan ti. State, 9 Tex. 431 (1833); 10 id. Ztb, 545 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 35 id. 390. » Re Executive Communication, 12 Fla. 656 (1868). 'Southworth v. Palmyra, &C. E. Co., 2 Mich. 288 (1851); Greene. Weller, 32 Miss. 669(1856); Frellseni;. JHahan, 21 La. An. 103 (1869). * Hue: F. huer, to hoot, shout; or, to foot, i. e., up foot and cry: run and cry after the felon,— Wood, Inst. 370. F. cry de pais. communicated all the circumstances he knew as to the crime and the person of the felon." HUMANE SOCIETIES. See Cruelty. HUNDRED. A civil division of a county. Consisted ot ten tithings. So called, because it was equal to a hundred hides of land ; or because it fur- nished one hundred men In time of war.' Hundredor. Aninhabitant of a hundred; also, a qualified juryman within n hundred; and, also, the executive officer of a hundred.'' HUNGr. Is sometimes applied to a jury which fails to agree upon a verdict. HURDLE. In old English law, a species of sledge, on which traitors were drawn to the place of execution. 3 See Treason. HURON. See Lakes. HUSBAND. A man who has a wife^; a man legally bound in wedlock to a wife. "Husband and wife" describes persons connected by the marriage tie, and the rela- tion signifies those mutual rights and obliga- tions which flow from the marriage contract.* At common la u:, husband and wife are one person in law, and he is that person; that is, the legal exist- ence of the woman is suspended or at least incorpo- rated into that of the husband, under whose protection she performs everything. Hence, he cannot grant her anything, nor contract with her; but she can be hjs agent, and take a bequest from him. He must pro- vide her with necessaries, or she can contract for them on bis credit. He pays her ante-nuptial debts; such of her personalty as is in her possession, or as he re- duces to possession, is his; likewise, the profits of her lands. Her estate is liable for his debts. She is sued and sues with him, unless he is civilly dead. They cannot give evidence for or against each other. He may chastise her moderately. Either one may have security of the peace against the other. For any crime, committed in his presence, except treason and murder, she is presumed to act by his coercion. The injuries to his rights are abduction, adultery, and beating.* By the common law, her money and earnings be- longed to him absolutely. The idea was that as he was bound to support the wife and the family, he was enti- tled to whatever she possessed or acquired. Such property then being absolutely his own, was subject to his disposal without regard to the necessities of the family, and might be taken in execution by his cred- itors.' As, at common law, the personal property of the wife ' 4 Bl. Com, 293-94; 1 Steph. Hist. Cr. Law Eng. 187. ' 1 Bl. Com. 116; 3 id. 34, 161, 353; 4 id. 245, 294, 332, 411. s 4 Bl. Com. 02, 376. « People V. Hovey, 5 Barb. 118 (1849). See Hardy v. Smith, 136 Mass. 333 (1884). * 1 Bl. Cora. 442; 3 id. 433; 3 id. 139; 4 id. 28; Bank of America v. Banks, 101 U. S. 243 (1879). • Jackson v. Jackson, 91 U. S. 124 (1875), Field, J. HUSBAND 518 HUSTINGS passed to the husband upon marriage, she was deprived of this means of supporting her children, and all legal duties growing out of the marriage were imposed upon him. . . Even where the wife possesses separate property, it has been held, independently of statutory obligation, that she is not compelled to support the children of the marriage. See Earnings, Separate. * She is always imder his power. Hence, the disa- bilities and safeguards the law places around her. He is liable for her frauds, torts, and breaches of trust. ^ He, she, or both, may have a remedy for an injury to her person or reputation,^ — the right of action in herself alone being given by statute. Unless the existing claims of creditors are thereby impaired, his settlement of property upon her is valid. And he may now make the transfer directly to her, in- stead of through a third person.* An ante-nuptial settlement upon her is valid, if the consideration is legal, and she is not a participant in a fraud intended upon creditors.* See Settle, 4. A gift between them is invalid as against credit- ors.' She is now the owner of hor separate estate, as if a feme sole, in most of the States, the common-law rule having been greatly relaxed.' But if she allows her money to go into his business, and be mixed with his property, and he uses it for purposes of credit, the property all becomes his and he cannot convey it back in fraud of creditors.^ See Separate, 3. And her separate estate may be held for improve- ments which she permits him, being insolvent, to make toit.» Either may act as agent for the other, with or with- out compensation ; and the husband's creditors, where he so uses his skill without an agreement for remuner- ation, are not thereby defrauded. J" He has an action for enticing her away, even as against a parent. Proof of something done tending to » Gleason v. City of Boston, 144 Mass. 27 (1887). » Trust Co. V. Sedgwick, 97 U. S. 308 (1877); 2 Kent, 149; 4 Saw. 603. ' Shaddock v. Clifton, 22 Wis. 110 (1667): 94 Am. Dec. 591-94 (1888), cases. « Jones V. Clifton, 101 U. S. 235 (1879), cases; Clark v. Killian, 103 id. 766 (1880). » Prewit V. Wilson, 103 U. S. 24 (1880), cases. » 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- son, 44 Ohio St. 190 (1886); 20 Am. Law Eev. 366 (1886). 8 Humes v. Scruggs, 94 U. S. 27 (1876), oases. Her contracts, imder statutes, 19 Am. Law Eev. 359-79 (1885), cases. « 23 Cent. L. J. 293 (1886), cases. '1 See generally, wife as husband's agent, 31 Alb. Law J. 206-7 (1835), cases; he as her agent, with compensa- tion, 30 id. 441-45 (1885), oases; without compensation. King V. Voos, Sup. Ot. Oreg. (1887), cases; 26 Am. Law Eeg. 246, 250-53 (1887), cases: 26 Cent. Law J. 259-62 (1888), cases. As to his canying on business in her name, after she pays some bills, 26 Am. Law Eeg. 781-84 (1887), cases. prevent or dissuade her from living with him is neces- sary.' She may sue a person who n^aliciously induces him to abandon her, for damages for the loss of support and of his society.' See Consortium. Either person may prove the marriage collaterally. She cannot be compelled to incriminate him. In big- amy, the lawful wife cannot prove the marriage. Neither can testify as to a confidential communica- tion, except by consent. Under enabling statutes, either may testify for or against the other. In suits by or against a stranger, they may contradict each other. In divorce proceedings, their testimony is closely scrutinized.' In the Federal courts she is not a competent wit- ness for or against him in a criminal case, on the score of public policy.* See also Abandon, 2 (1); Abduction; Acknowledg- ment, 2; Adultery; Bigamy; Coercion; Cohabita- tion; CoMMCOTOATiON, Privileged, 1; Condonation; Covert; Cruelty, 1; Curtesy; Desertion, 1; Dis- ability; Divorce; Dower; Dowry; Elopement; En- tirety; Family; Feme; Heir, 1; Jointure; Kin, Next of; Marriage; Necessaries, 1; Paraphernalia; Pin-money; Quarantine, 1; Eelation, 3; Eelict; Unity, 2; Whipping-post; Widow; Wife; Witness; Woman. HUSBAWDEY. See Agriculture. HUSH-MONEY. See Blackmail. HUSTINGS.^ 1. A temporary court held for the election of members of parliament; also a court held in London before the lord mayor, recorder, and sheriffs, with juris- diction over actions for the recovery of land within the city, except by ejectment.^ " Hustings QiustenguTn) is a court of common pleas 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- iff's court. . . Other cities and towns have had a court of the same name." ' 2. A local court in Virginia. The Hustings Court of the city of Eichmond has exclusive original jurisdiction of all presentments, indictments and informations for offenses committed within the city (except prosecutions against convicts in the penitentiary), and concurrent jurisdiction of ■ Bennett v. Smith, 21 Barb. 441 (1856); Modisett v. McPike, 74 Mo. 639 (1881). . 'Westlake «. Westlake, 34 Ohio St. 626-34 (1878), cases. Effect of abandonment on her power to con- tract, 20 Am. Law Eeg. 745-63 (1887), cases. s 1 Whart. Ev. §§ 421-33, cases; 1 Greenl. Ev. §§ 333- 47, cases. / •United States v. Jones, 32 F. E. 569 (1887); id. 571, note. See generally 25 Am. Law Eeg. 353-66, 417-31 (1886), cases. ^ A. S.7iu5#mff, a place of council: A«s, house; ihingf cause, council. ' See 3 Bl. Com. 80; 3 Staph. Com. 293,' note. ' Termes de la Ley (1731). HYDRAULIC MINING 519 ICE cases with n a space of one mile around the city on the north of James river. Also exclusive jurisdiction of all appeals allowed by any State law, or ordinance of the city, from the judgments of the police justices courts, and of all causes removable from them ; of proceedings for the condemnation, for public use, of lands, and of motions to correct erroneous assess- ments on realty; also, concurrent jurisdiction of ac- tions for unlawful or forcible entry or detainer.' HYDRAULIC MINING. See Aqua, Currit, etc. HYGIENE. See Alcohol. HYPOTHECATION.2 In Roman law, a pledge without possession by the pledgee, — the possession remaining in the pledgor. ^ A security whereby realty or personalty is appropriated or pledged for the discharge of a debt or engagement, with no transfer of property or of possession, the debt being viewed as tacked to and following the thing.< There is no pure hypotheca in our law. ^p- preaches to it are, bottomry bonds, maritime liens of material -men, and seaman's wages. ^ Hypothecary; hypothecator. One who proposes and makes a contract of hy- pothecation. Hypothecation bond. A bottomry or respondentia bond. Evidences a marine hypothecation of a vessel or its cargo, for necessary repairs or supplies.* 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 other way.' Established rules as to marine hypothecation are: 1. Liens for repaii-s and supplies, or for funds to pay for th^ same, are enforceable only upon proof that the same were necessary, or believed to be necessary. 2. Where proof is made of the necessity, and of credit given to the ship, a presumption arises of a necessity for the credit. 3. Necessity is proven when such cir- cumstances of urgency are shown as would induce a prudent owner, if present, to order the repairs or sup- plies, or to provide funds for the cost on the security of the ship. 4. An order by the master is sufficient proof of such necessity to support an implied hypoth- ■SeeCode, 1887, §3072. "L. hypotheca: Gk. hypo, under; tith-, to place; to obligate, charge. » See 2 BI. Com. 159. < See Herman, Mortgages, §§ 8, 1 ; Taylor v. Hudg- ins, 42 Tex. 247 (1875). = [Stoiy, Bailm., 9 ed., § 288; The Young .Mechanic, 2 Curtis, 410 (1855). « The Grapeshot, 9 Wall. 140-41 (1869), Chase, C. J. ; The Julia Blake, 107 U. S. 418 (1882), oases, Waite, C. J. ; 16 Blatch. 472. ' Delaware Mut. Safety Ins. Co. v. Gossler, 96 U. S. 648 (1877), cases; The Emily Souder, 17 Wall. 671, 669 a873). ecation in favor of a material-man or lender of money who acts in good faith. 5. To support an hypotheca- tion by bottomry, evidence of actual necessity is re- quired. If the fact of necessity is left unproved, evi- dence is required of due inquiry and of reasonable ground of belief that the necessity was real and exi- gent' It communication with the owner is practicable, that must first be had.' Hypothecation bonds must be recorded by collect- ors of customs.' See Bottomry; Eespondkntia. HYPOTHESIS.* In criminal practice, a theory proposed in explanation of the facts in a case, and to establish either guilt or in- nocence. Hypothetical. Assumed for the purpose of inference or of opinion. An hypothetical case consists of a statement of as- sumed facts intended to be propounded to an expert, in order to elicit his opinion. Thus, an expert in in- sanity may say whether a person, under indictment for murder, would be likely to be predisposed to emo- tional insanity, upon a statement of facts, admitted or assumed, supposed to exhibit his individual and family history. See Dexter v. Ball, Expert. I. I. As an abbreviation, is used for insti> tutes, internal, Irish. I. C. C. Inter-State commerce commis- sion (reports). ' I.e. (Usually i.e.) Id esi, that is (to say). I O U. "I owe you." A popular desig- nation of a due-bill or memorandum of debt. Consists of those letters, a sum of money, and the debtor's signature. As it contains no direct promise to pay, it is not a promissory note, but a mere ac- knowledgment of indebtedness.^ IB. See Idem. IBI. See Ratio, Ibi, est, etc. IBID; IBIDEM. See Idem. ICE. Uncut, is an accession or increment to the land. 6 A riparian proprietor upon an unnavigable stream, having title to the middle of the stream, owns the ice that forms over his half of the water." 1 The Grapeshot, 9 Wall. 141-42 (1869), Chase, C. J. a The Julia Blake, 16 Blatch. 484-85, 490-94 (1879), cases: 107 U. S. 432, ante. »E.S.§§ 4192, 4382. * Gk. hypothesis, a placing under: supposition. 'See 1 Daniel, Neg. Inst. § 36, cases; 1 Parsons, Notes, &c. 25; Story, Prom. Notes, 14; Smith ti. Shel- den, 35 Mich. 47 (1876). « Washington Ice, Co. v. Shortall, 101 Dl. 54 (1881). See also Bigelow v. Shaw, Sup. Ct. Mich. (1887), cases; 34 Conn. 462; 38 Ind. 402; 8 Mich. 18; 30 N. Y. 519; 15 How. Pr. 376. ID 520 IDENTITY But he has no proprietary interest in ice that forms upon the water of a navigable stream adjacent to his own shore, unless he first takes and secures it.^ Since the owner of land bordering upon a flowing stream may use a reasonable quantity of the water, he may detain a reasonable portion until it freezes, and cut and sell the ice. But he may not interfere with the beneficial enjoyment of the water by owners below him.^ Ice upon a pond or stream is of such an ephemeral nature as to be more like personal than real property. It may be sold by parol as personalty.' See Car- load. To thaw a neighbor's ice is an unlawful conversion of it.« Ice fifelds upon navigable rivers must be so guarded that pedestrians will be protected against accident.' 'As to the duty of removing ice from pavements, see Sidewalk. lee-cream. See Mantjfactueer ; Stjn- DAT. , ID. See Idem; Certum; Is. IDAHO. See Tbreitory, 2. IDEM. L. The same.' Referring to a volume, the same series or set; also, the same book or page. Abbre- viated id. Compare Is. Ibidem. In the very same place : the same section, page, or book. Abbreviated ibid., ib. Idem sonans. Sounding the same ; sub- stantially identical in sound.* Plural idem sonantia. Applies to the names of persons substantially the same in sound, though different in spelling. In 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 In the Grerman, is not material. Appearance and sound, Third Nat. Bank of St. Paul v. Stillwater Gas Co., 36 Minn. 78 (1886), cases: 26 Am. Law Reg. 253 (1887); ib. 256-60, cases; Fletcher v. Sharpe, 108 Ind. 279 (1886), cases: 26 Am. Law Eeg. 71; ib. 74-^2 (1887), cases; 25 Cent. Law J. 315-21 (1887), cases; 2 Harv. Law Eev. 28-39 (1888), cases. 2 2B1. Com. 405. ' Owings' Case, 1 Bland, Ch. 386 (Md., 1828). * Stewart!). Lispenard, 26 Wend. 314 (N. T., 1841); 1 Eedf. Wills, 59, 61,64. »1B1. Com. 303; 88111.502. • [Crosswell v. People, 13 Mich. 435 (1865), Cooley, J. ; Chitty, Med. Jur. ' 1 Bl. Com. 30.3-4. See 4 Johns. Ch. 441 ; 3 Ired. Ch. 535; Eay, Med. Jur. Ins. 86, 743; 1 Whart. & St. Med. J. § 1 ; Taylor, Med. J. 789-91. 8Crabbe, E. P. §2152. » Sutton V. West, 77 N. C. 431 (1877); Owen v. Field, 102 Mass. 105 (1869); 18 N. J. L. 36. '» Chandler v. Eider, 102 Mass. 271 (1869). " Chambers i'. People, 105 111. 418 (1883). IGNOMINY. Shame, disgrace, dishonor : as, in a statute excusing a witness from an- swering to save himself from ignominy.i See Criminate. IGNORAMITS. See Ignoraei. IGNORANCE. Want of knowledge or information, whether of a matter of fact or of a matter of law. See Illiterate. Ignorance of a particular fact consists in this, that the mind, capable of healthy action, has never acted upon the fact, because the subject has never been brought to the notice of the perceptive faculties.' Voluntary ignorance. Exists when one by reasonable exertion might have acquired knowledge. Involuntary ignorance does- not proceed from choice ; could not be over- come by the use of any known means. Ignorance of a fact sometimes excuses; ignorance of law, never. In the law of crimes, ignorance of a fact is regarded as a defect of will. It occurs where a man intending to do a lawful act does that which is unlawful: the deed and the will do not concur.' See Guilty. If ignorance of what one might know were ad- mitted as an excuse, the laws would become of no effect.* See Prescribe. "If ignorance of the law was admitted as a ground of exemption, the courts would be involved in ques- tions which it were scarcely possible to solve, and which would render the administration of justice next to impossible; for in almost every case ignorance would be alleged, and, for the purpose of determining the point, the court would be compelled to enter upon questions of facts insoluble and indeterminable." So, if a person will not read or does not know what he signs, or is misinformed as to the effect, he alone is- responsible.^ The maxim that " ignorance of the law excuses no one " is not universally applicable, but only when damages have been inflicted or crimes committed. ^ When parties have acted under a mutual mistake of law, and the party jeopardized can be relieved without substantial injustice to the other side, a court of equity will afford redress, especially if the one to be benefited by the mistake invokes the aid of equity to put him m a position where the mistake will become advantageous to him.' 1 Brown v. Kingsley, 38 Iowa, 221 (1874). "Boylan v. Meeker, 28 N. J. L. 279 (1860). s 4 BI. Com. 27. « 1 Bl. Com. 46. 'Upton V. Tribilcook, 91 U. S. 50-51 (1875), cases. Hunt, J. See also Hunt v. Rhodes, 1 Pet. 1, 13-lS (1828); 17 Cent. Law J. 422-37(1883), cases; 18 id. 7-10 (1884), cases; 2 Flip. 116; 3 Col. 555; 13111. 395; 60 Md. 335; 50 Mich. 551, 594; 23 Miss. 124; 76 Va. 315; 62 Wis. 332; 1 Johns. Ch. 515; 2 id. CO; 6 id. 170; Bisp. Eq. § 187; 1 Story, Eq. Ch. V; 2 Pomeroy, Eq. §§ 838-71. « Brock V. Weiss, 44 N. J. L- 244 (1882), cases. » Freichueeht v. Meyer, 39 N. J. E. 551, 668-60 (1885), cases. IGNOEANTIA 532 IMMEDIATE When a party in one State makes a contract with direct reference to the law of another State, he will be held to know the law Of the latter State.' See Law, Foreign. ' See also Estoppel; Ignorari; Inquiry, 1; Knowi/- EDGE, 1; Mistake; Reform. IGNOEANTIA. See Ignokabi. IGNORARI. Not to know or know of; to have no knowledge of. Ignoramus. We do not know it; we ignore it. If the grand jury think an accusation groundless, they endorse on the back of the bill " ignoramus: " we know nothing of it — the truth does not appear.' Modern expressions are: "not a true bill;" "no bill; " " not found." A fresh bill maybe referred to a subsequent Jury.^ Ignorantia. Non-information : ignorance. Ignorantia facti exousat; ignorantia juris non excusat. Ignorance of fact excuses; ignorance of the law does not excuse. Ignorantia legis neminem exousat. Igno- rance of the law excuses no one. See Igno- EANCE. IGNORE. To refuse to find a bill of indictment. See Ignoeaki. IL-. A prefix from the Latin in, not; negatives the sense of the simple word. See In, 3. ILIi. 1. Contracted from evil: as in ill- fame. 3. Contrary to rule or practice : as in ill- pleading ; ill for want of certainty. Compare Bad, 2 ; Well, 2. ILLEGAL. See Legal; Eeuor, 3 (2), Erroneous. ILLEGITIMATE. See Legitimate. ILLEVIABLE. See Levy. ILL-FAME. See House, Of ill-fame. ILLICIT.* Bisallowed: forbidden by law ; unlawful ; illegal : as, illicit intercourse, trade, distilling. Illicit intereo-urse. Fornication, or adultery. Illicit trade. In marine insurance, trade made unlawful by the law of the country to which the object or vessel is bound. 5 ' Huthsing v. Bosquet, 3 MoCrary, 575, 576 (1882), cases; Storrs v. Barker, 10 Am. Dec. 316, 333-28, cases; Story, Confl. L. §§ 76, 233, 274. 2 4 Bl. Com. 305. 3 United States v. Watkins, 3 Cranoh, C. C. 606 (1839). ^L. iUiciius, not allowed: in-licere. 1 Pars. Mar. Ins. 614; 2 La. 837, 338; 8 S. & E. 73; 4 id. 29; 5Binn.403. ILLITERATE. Without knowledge of written language ; ignorant. To induce an illiterate person, by false reading, to subscribe an agreement, may be a fraud upon his rights, and may even amount to an indictable deceit.' See Infltience; Reading-. ILLNESS. See Benefits; Disease; Health; Languidus. ILL-PLEADING. See III, 3. ILL-TREATMENT. See Cruelty; Maltreatment. ILLUSION. See Insanity, Compare Delusion. ILLUSORY. See Appointment, 2. ILL-WILL. See Malice ; Prejudice. IM-. .^ prefix from the Latin in, not; in, into, upon. See In, 3. IMAGINE. See Treason. IMBECILITY. Without strength, im- potent. In a petition for divorce by a wife for- corporal im- becility in the husband, it is necessary to show a per- manent, incurable impotency to consummate the mar- riage. " Corporal imbecility " does not, ex vi termini, import such impotency.' See Divorce. On mental imbecility, see ' Insanity. IMMATERIAL. See Material. IMMATURE. See Mature. IMMEDIATE. Direct ; present ; near — in time, or kinship. That which is produced directly by the act to *hich it is ascribed, without the intervention or agency of any distinct, intermediate cause: as, immediate inter- «st.« In the law of self-defense, " immediate " generally signifies present in time and place. Thus " immediate danger " of losing life or of sustaining great bodily in- jury, means that the danger is then and there present and the injury apparently about to be inflicted. ^ "Immediatb delivery," among dealers in coal, means a deliveiy within the present or, in cases, within the succeeding month.' An action is said to be prosecuted for the immedi- ate (direct) benefit of a person ; ' and devises are made to immediate issiie.* ' See 3 Bl. Com. 304; 2 Whart. Et. § 1243, cases; 2 Bish. Cr. L. § 166. ' Ferris ,-u. Ferris, 8 Conn. 167 (1830). See generally 1 Bish. Mar. & Div. §§ 321-39, cases. s Delafleld v. Parish, 5 N. Y. Sur. 115 (1857). See gen- erally 1 Wharton & St. Med. J. § 691 ; Taylor, Med. J. 789. < Fitch V. Bates, 11 Barb. 473 (1851): Bouvier. » Bailey r. Commonwealth, 11 Bush, 691 (1876), Cofer, J. ; United States v. Baldridge, 11 F. R. 568 (1882): E. S. § 5616; 6. c. 3 Cr. Law Mag. 860. • Neldon v. Smith, 36 N. J. L. 153 (1873). ' Butler V. Patterson, 13 N. Y. 293 (1855). « Turley v. Turley, 11 Ohio St. 179 (1860). IMMEMORIAL 533 IMPAIR Immediately. Within reasonable time. Never, or very rarely, employed to designate an «zact portion of time. ' Compare Foktbtwith. IIIMEMOBIAL. See Custom; Mem- ory. IMMIGRATION". Moving into a coun- try, usually to acquire citizenship. The act of Congress of August 3, 1882 tag St. L. 214), which levies a duty of fifty cents for every foreign passenger coming by vessel to the TTnited States, to be paid to the collector of customs of the port, by the owner or agent of the vessel, is a valid regulation of commerce with foreign nations. The duty is a license fee, a tax on the owner of the vessel, and on the busi- ness of bringing in alien passengers. It is not a capi- tation tax. The contribution is designed to mitigate the evils incident to immigration from abroad, by raising a fund for that purpose." SeeCoHMEROE; Expatriation; Chinese. IM]yrOB,AIi. See Morals. IMMORTALITY. See Corporation. IMMOVABLES. See Movable. JMMITNlTY.s Exemption from a duty, obligation, penalty, or service, which the law requires of citizens in general. Freedom from what otherwise would be a duty or burden.* The Fourteenth Amendment secures immunity from Inequality of legal protection, as to life, liberty, or property.* Immunity from taxation, as of the property of a railroad corporation, not being a franchise, but a per- sonal privilege, is not transferable even under a de- cree of foreclosure.* See further PBrvrLEOE, 1 ; Prohibition, 1 ; Tax, 2. IMPAIR. To make worse: to diminish in quantity, value, excellence, strength; to lessen in power ; to deteriorate.' To relax, weaken, injure. Impair liealth. See Intemperate. " No state shall . . . pass any . . Law im- pairing the Obligation of Contracts." ' 1 See Thompson v. Gibson.. 8 M. & W. *286-89 (1841'); McLure v. Colclough, 17 Ala. 100 (1849); Gaddis ads. Howell, 31 N. J. L. 316 (1865); Lockwood v. Middlesex Mut. Assur. Co., 47 Conn. 560-08 (1880), cases; 11 F. E. S55; 44 Ind. 460; 51 Md. 512; 14 Neb. 151-53; 20 Barb. 468; 29 Pa. 198; 40 id. S89; 75 id. 378; 43 Wis. 318, 479; 62 id. 244; 5 Biss. 476; 43 111. 155; 13 N. J. L. 313; L. E., 4 Q. B. 471 ; 20 Moak, 466, 463. 'The Head^oney Cases, 18 F. E. 135 (1883), Blatch- ford, J.: s. c. 112X7. S. 580 (1884), Miller, J. »L. immunis, free from public service: in, not; munuSy duty. * Lonas v. State, 3 Heisk. 306 (1871). » Strauder v. West Virginia, 100 U. S. 810 (1879). ' Morgan v. Louisiana, 93 U. S. 223 (1876), cases. ' Webster's Diet. ; Edwards v. Kearzey, 96 U. S. 600 (1877). 8 Constitution, Art. I, sec. 10. Gouvemeur Morris, of To relieve the distress which followed the war of the Eevolution, paper money was issued, worthless lands, and other property of no use to the creditor, were made a tender in payment of debts, and the time of payment stipulated in contracts was extended by law. These were the peculiar evils of the day. So much mischief was done and so much more appre- hended, that general distrust prevailed, and confidence between man and man was destroyed. . To restore . public confidence, the f ramers of the Constitution pro- hibited the use of any means by which the same mis- chief might again be produced: they established the principle that contracts should be inviolable.* The reference is to contracts respecting property, under which an individual may claim a right to some- thing beneficial to himself ." The contracts protected are such as relate to property rights, not governmental. It may not be easy to tell on which side of the line a particular case is to be put.^ There was no intention to restrain the States in the regulation of their civil institutions, adopted for internal government." The prohibition does not include grants for public purposes, which are in effect mere regulations of in- ternal police.* See further Monopoly; Policy, 1, Public. " Obligation " means the law which binds the par- ties to perform their undertaking. ^ See Obligation, 3. The prohibition applies to implied as well as to ex- . press, and to executory as well as to executed, con- tracts : as, a grant of lands by a State to an individual ; • or, a compact between States; ' or, a grant of corpo- rate powers 8 — unless a right of revocation or altera- tion is reserved in the grant or by a general law." But it does not include all contracts by a State with its public officers or municipal corporations.''* After a public officer has rendered the services required of the committee on style, resolute not "to countenance the issue of paper money, and the consequent viola- tion of contracts," of himself added " No State shall pass laws altering or impairing the obligation of con- tracts." In the shorter form adopted by the conven- tion. " an end was designed to be made to barren land laws, laws for the installment of debts, and laws clos- ing the courts against suitors," — 2 Bancroft, Hist. Const. 214 (1882). 1 Sturges V. Crowninshield, 4 Wheat. 204, 208, 199 (1819), Marshall, C. J. "Dartmouth College v. Woodward, 4 Wheat. 628 (1819), Marshall, C. J. ; Butler v. Pennsylvania, 10 How. 416 (1860); Newton v. Commissioners, 100 IT. S. 567 (1879); Charles Elver Bridge v. Warren Bridge, 11 Pet. •572 (1837); 2 Bancroft, Hist. Const. 213; Federalist, No. 44. » Stone V. Mississippi, 101 TJ. S. 830, 816 (1879). * East Hartford v. Hartford Bridge Co., 10 How. 635 (1850). ' Sturges V. Crowninshield, 4 Wheat. 197 (1819), supra. « Fletcher v. Peck, 6 Cranch, 137 (1810). ' Green v. Biddle, 8 Wheat. 1, 84 (1833). 'Dartmouth College v. Woodward, 4 Wheat. 628 (1819); Home of the Friendless v. Eouse, 8 Wall. 437 » Holyoke Company v. Lyman, 15 Wall. 522 (1872). 1" Butler V. Pennsylvania, 10 How. 416-17 (1850). IMPAIR 534 IMPARLANCE him under an enactment which fixes the rate of com- pensation {q. v.\ the obligation to pay for the services at that rate is perfected and rests on the remedies which the law then gives for its enforcement. ' A charter granted to a private corporation, which , in effect is a mere license, may be withdrawn; ^ so may any other engagement which is a mere gratuity; ' but not, without consent of the bona fide bondholder, power given a municipality to levy a tax with which to pay its bonds.* And a State may not tax mortgage bonds, secured on property within it, held by non- residents.' Liability for a tort, created by statute, although re- duced to judgment, is not such a debt by contract as is contemplated.* Imprisonment for debt, not being regarded as a part of a«onti^ct, may be abolished.' The prohibition extends to provisions of a State constitution, as well as to ordinar.7 legislation.^ The existing laws of the place where, or in refer- ence to which, the contract is made, affecting its va- lidity, construction, discharge, or enforcement, form part of the contract. The remedy, or means of en- forcing the contract, is part of the obligation.^ Judicial construction, being a part of a statute, a change of decision is the same in effect as a new enactment, ^f* The Constitution intended to prohibit a law interpo- lating a new term or condition foreign to the original agreement." In short, any deviation from the terms of the con- tract, by postponing or accelerating the period of per- formance which it prescribes, by imposing conditions not expressed in the contract, or -by dispensing with the performance of those which are expressed, how- ever minute or apparently immaterial in their effect upon the contract, impairs its obligation. '^ Diminishing value by legislation is impairment. ^^ But it is not necessarily impaired by a reasonable change in the mode of enforcing it; ^* unless it sub- stantially lessens the rights of the creditor; ^^ nor is it ■risk V. Jefferson Police Jmy, 116 U. S. 131, 134 (1885). 'Stone V. Mississippi, 101 U. S. 820, 816 (1879). s West Wisconsin E. Co. v. Supervisors, 93 U. S. 595 (1876). Act 19 May, 1838, § 2: E. S. § 988. * L. im-pars, not of a part or party. • Littleton, 155 6. •Eeynoldsu. United States, 98 U. S. 154(1878): Coke, litt. 155 b. 'Constitution, Amd. Art. VI. 8 Reynolds v. United States, 98 U. S. 165 (1878), Waite, C. J., citing 11 Leigh, 659; 10 Gratt. 658; 13 111. 685; 2 Uev. & B. L. (N. Car.) 196; 74 Pa. 468; 84 id. 151. See also Northern Pacific E. Co. v. Herbert, 116 U. S. 646 (1886), cases. *F. empeecher^ to prevent, hinder, bar: L. impedi- eare, to impede; or impingere, to thrust against, "a Bl. Com. 883; 6 Pla. 480. 3. To impugn, call in question, seek to dis- parage : as, to impeach the authenticity of a document, the irregularity or legality of a judgment or sale, one's title to negotiable paper or to property. See Disparage, 3; Facies, Prima ; Judgment. 3. To seek to prove unworthy of belief; to discredit : as, to impeach the veracity of a witness. To charge or accuse of want of veracity; and, to establish such charge.^ To accuse, blame, censure. Thus, to impeach one's official report or conduct is to show that it was occa- sioned by some partiality, bias, prejudice, inattention to or unfaithfulness in the discharge of that duty; or, that it was based upon such error that the existence of those influences may justly be inferred from the extraordinary character or grossness of that error.^ Unimpeached. Not discredited, undis- credited ; not shaken in character or worth, professed or attributed. Unimpeachable. Not to be questioned as to credit ; irreproach- able; blameless. After a witness has been examined in chief, his credit may be impeached in various modes besides that of exhibiting the improbabilities of his story by a cross-examination; (1) By disproving the facts stated by him, by other witnesses. (2) By general evidence affecting his credit for veracity. (3) By proof that he has made statements out of court contrary to tphat he has testified at the trial. But this is only in matters relevant to the issue; and, beforehand, he must be asked as to the time, place, and persons involved in the supposed contradiction; upon the general ques- tion he may not remember whether he has said so or not; and justice requires that his attention be first called to the subject. Then he may correct or explain the former statement.' By calling, the party represents his witness as worthy of credit or at least as not so infamous as to be wholly unworthy of credit. For him to attack the witness's veracity would be bad faith to the court, and give the power to destroy if the witness spoke un- favorably, and to make good if he spoke favorably. Hence, at commpn law, while a party may contradict, and to that extent discredit, he cannot ordinarily " im- peach " his own witness. < An adverse witness who contradicts his former statement, thereby sui-prising the party calling him, may be examined as to his former statement, when 1 [White V. McLean, 47 How. Pr. 199 (1874). 2 Bryant v. Glidden, 36 Me. 47 (186.3), Shepley, C. J. > 1 Greenl. Ev. |§ 461-63. See Becker v. Koch, 104 N. Y. 401 (1887), cases; Conrad ti. Griffey, 16 How. 46-47 (1863), cases. * United States v. Watkins, 3 Cranch, C. C. 442 (1829); Commonwealth v. Donahoe, 133 Mass. 408 (1882); Shep- pard V. Yocum, 10 Oreg. 410 (1888); Stearns v. Mer- chants' Bank, 53 Pa. 492-99 (1866), cases. IMPEACH 536 IMPLEMENTS it would appear that deception has been practiced; the examiner being guHty of no laches.' May impeach an opposing witness by " former statement contradicting that made in his examination in chief; 2 but cannot contradict on a collateral mat- ter. May contradict answers as to motive; question veracity; show bias or convictionof infamous crime.* May attack the impeaching witness, and sustain the impeached, but not by proof of former consistent statements. Corroboration is discretionary in the court. 3 To impair his credibility, a witness may be cross- examined as to specific facts tending to disgrace or degrade him, although irrelevant to the main issue. The range of cross-examination depends upon the appearance and conduct of the witness and other cir- cumstances. It is only where the discretion in the court has been abused, to the prejudice of a party, that error will lie.* See Chaeactek; Cbedit, 1; Ex- amination, 9; Eeputation. 4. To convict of such misconduct as jus- tifies removal from office. Articles of impeachment. The formal statement of charges of misconduct pre- ferred against an officer. Like an indictment for crime, must be Sufficiently certain in averment to admit of a defense being framed, and to be used in bar of ahother accusation upon the same subject-matter in case of acquittal. Court of impeacluiieiit. The tribunal before which articles of impeachment are presented and the charges tried. Charges which will warrant an impeachment may not sustain an indictment. The prosecution is con- ducted before some branch of the political power, or before a quasi political tribunal. " The President, Vice President and all civil OfHcers of the United States, shall be removed from OfSce on Impeachment for, and Conviction of. Treason, Bribery, or other high Crimes and Misdemeanors." ' " The House of Representatives . . . shall have the sole Power of Impeachment." * " The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: and no Person shall be convicted without the Concurrence of two-thirds of the Members present." " Judgment in Cases of Impeachment shall not extend further than to removal from OfBce, and disqualifica- tion to hold and enjoy any OflSce of Honor, Trust or Profit under the United States: but the Party convicted 1 1 Whart. Ev. §§ 649-67, cases. = Ferry v. Breed, 117 Mass. 165 (1876); 35 Vt. 68. ' 1 Whart. Ev. §§ 568-71, cases. See generally Seller v. Jenkms, 97 Ind. 433-39 (1884), cases. * State V. Pfefterle, 36 Kan. 93-96 (1886), cases, John- ston, J. See also Pullen v. PuUen, 43 N. J. E. 136 (1887), cases; State v. Thomas, Sup. Ct. N, C. (Deo. 31, 1887), cases. * Constitution, Art. II, sec. 4. * Constitution, Art. I, sec. 3, cl. 5. shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." * The Senate has sat ai a court of impeachment in the cases of Judge Chase, in 1804; Judge I'eck, in 1831; Judge Humphreys, in 1863; and of President Johnson, in 1868. ^ Proceedings under the constitutions of the States, for the trial of State officials, are similar to the fore- going. See Judge; Pardon. IMPEDE. See Obstruct. IMPERFECT. See Duty, 1; Perfect. IMPEBIUM. L. Dominion; authority; jurisdiction. Divisum. imperium. A divided juris- diction ; jurisdiction belonging to more than one tribunal, or exercised alternately, be- tween powers. As, the jurisdiction of common-law and admiralty courts exercised between high and low water- mark; the jurisdiction exercised concurrently by common- law and equity courts. Im.perium in imperio. A power within a power ; a sovereignty within a sovereignty ; a jurisdiction within a jurisdiction.^ IMPEETINElfCE. The introduction of any matter in a bill, answer, or other plead- ing or proceeding in a suit, which is not pi-operly before the court for decision at any particular stage of the suit.^ The court will not strike out the matter unless its impertinence clearly appears; for if erroneously stricken out, the error is irremediable; if left to stand, the court may set the matter right in taxing the costs. Matter which is scandalous (g. v.) is also impertinent,* The test is, would the matter, if put in issue, be proper to be given in evidence. ^ Impertinent. See Pertinent. IMPLEAD. See Plea, 3. IMPLEMENTS. Things necessary in any trade, without which the work cannot be performed ; also, the furniture of a house. Implements of household are tables, presses, cupboards, bedsteads, wainscot, and the like.* Rarely, if ever, includes an animal.^ As used iu a statute of exemptions, does not include a horse and cart.' ' Constitution, Art. I. sec. 8, cl. 6-7. See 3 Bancroft, Const. 193. 'See Story, Const. § 791; 3 Am. Law Eev. 547-67 (1868); 6 Am. Law Reg. 357-83 (1867), T. W. Dwight; ib. 641-80 (1867), W. Lawrence; 4 Bl. Com. 259-61. ' 17 Wall. 338; 106 U. S. 663;' 37 Pa. 392. * Story, Eq. PI. §§ 366-70; Wood v. Mann, 1 Sumn. 588-89 (1834), Story, J. ; 3 Story R. 13; 15 F. R. 561. » Woods V. Morrell, 1 Johns. Ch. *106 (1814), Kent Ch. See also Hood v. Inman, 4 id. *438 (1820). "Coolidge V. Choate, 11 Mete. 83 (1846). ' Enscoe v. Dunn, 44 Conn. 99 (1876); Wallace v. Col- lins, 5 Ark. 46 (1843). IMPLICATION 527 IMPRISONMENT A music teacher's piano is an " implement of busi- ness." 1 Compare Tools. IMPLICATION. An inference of some- thing, not directly declared, but arising from what is admitted or expressed. ^ Implied. Infolded : involved in language or intention; resting upon inference; im- puted in law.s Opposed, expressed, con- structive, qq. V. Where it is the duty of a defendant to do an act, the law imputes a promise to fulfill that obligation.' See Assumpsit. What is clearly implied in a statute, pleading, con- tract, will, or other instrument, is as much a part of it as what is expressed." See Incident. IMPORT. 1, V. To bring from a foreign jurisdiction or country merchandise not the product of this country. ^ 71. Most commonly imports: the goods or other articles brought into this country from abroad — from another country.' Opposed, export, exports, q. v. " No State shall, without the Consent of the Con- gress, lay any Imposts or Duties on Imports or Ex- ports, except what may be absolutely necessary for executing its inspection Laws . . and all such Laws shall be subject to the Revision and Controul of the Congress." ' This does not relate to articles imported from one State into another; only to articles imported from for- eign countries.* Nothing is imported till it comes within the limits of a port. The term " imports " covers nothing not actually brought into our limits.'" Imposing a license tax on Importers is an indirect tax on imports." See Couheooe; Ddtt, 2; Entry, n, 2; Impost; In- spection, 1. 2. As to import of language, see Pdkport. IMPOSE. See Tebm, 2. > Amend v. Murphy, 69 lU. 838 (18T3). See also 23 Iowa, 389; 124 Mass. 418; 6 Gray, 298; 48 N. H. 653. ' Be City of Buffalo, 68 N. Y. 173 (1877), Folger, J. "See Homan v. Earle, 53 N. Y. 271 (1873); 13 Abb. Pr. 413. < Bailey u N. Y. Central K. Co., 22 Wall. 639 (1874), cases. "United States v. Babbit, 1 Black, 61 (1861), cases; 20 Wall. 493; 101 U. S. 82, 202; 110 id. 688. • [United States v. The Forrester, 1 Newb. 94 (1856). ' [Brown v. Maiylamd, 12 Wheat. 437 (1837), Mar- shall, C. J. ' Constitution, Art. I, sec. 10, cl. 2. "Woodruff V. Parham, 8 Wall. 131 (1868), cases; Brown v. Houston, 113 U. S. 638 (1888). '"Marriott v. Brune, 9 How. 632 (1850); Arnold v. United States, 9 Cranch, 120 (1815); 4 Mete, Mass., 283. " Brown v. Maryland, 12 Wheat. 419 (1827); Warring V. Mayor of Mobile, 8 WaU. 110 (1868). IMPOSITION. See Deceit ;Extoetion; Fraud ; Mistake ; Reform. IMPOSSIBILITY. See Possibility. IMPOST. A custom or tax levied on ar- ticles brought into a country.^ A duty on imported goods and merchan- dise. In a larger sense, any tax or imposition. Synonymous with duty ; comprehends every species of tax or contribution not included under the ordinary terms " taxes and ex- cises." 2 IMPOTENCE. See Imbecility ; Inspec- tion, Of person. IMPOUND. See Pound, 2. IMPRESSION. 1. A cause in which a question arises for the first time is termed a "case of the first impression." ' 2. Effect produced upon the mind of a juror.^ See Opinion, 2. IMPRIMUS. See Primus; First, 2. IMPRISONMENT. Detention of an- other against his will, depriving him of the power of locomotion.5 Compare PRISON. Confinement of the person in anywise ; as, keeping a man against his will in a private house, arresting or forcibly detaining him in the street. 8 In the penal legislation of Arkansas, the word " im- prisonment," used alone, means imprisonment in a county jail or local prison. Confinement in a peni- tentiary is not meant, unless expressly so stated.^ In Louisiana, ''imprisonment," unqualified, in penal statutes, is used in contradistinction to " imprisonment at hard labor." " Duress of imprisonment. A compul- sion by an illegal restraint of liberty, until one does some act, as, seal a bond.' See fur- ther Duress. False, or imlawfiil, imprisonment. Any confinement or detention of the person without sufficient authority. i" > Brown v. Maryland, 13 Wheat. 437 (1837), Marshall, Chief Justice. 2 Pacific Ins. Co. v. Soule, 7 Wall. 445 (1868), cases, Swayne, J. ; 1 Story, Const. § 669. See also 8 Wall. 131 ; 14 Mo. 33.5; 9 Rob., La., 324; 1 Story, Const. § 949; Federalist, No. 30. • 103 U. S. 168; 21 Pa. 175; 98 id. 104. « See (Jreenfleld v. People, 74 N. Y. 283 (1878). » United States v. Benner, Baldw. 239 (1830). •IBl. Com. 136; 3 id. 127. ' Cleaney v. State, 36 Ark. 80 (1880). 8 State V. Hyland, 30 La. An. 710 (1884). » [1 Bl. Com. 136, 131. 1" 3 Bl. Com. 127. IMPEOVE 538 IN May consist in detaining anotlier by threats of vio- lence, thereby preventing him from going where he wishes by a reasonable apprehension of personal ■danger. 1 A violation of the right of personal liberty. May arise by executing a lawful process at an unlawful time, as, on Sunday. Remedies: habeas corxius, and an action for damages,^ qq. v. An. action will lie for the misuse or abuse of pro- cess, beyond the fact of arrest and detention. ^ Imprisonment for debt. No person shall be imprisoned for debt in any State . . on Federal process . .' where imprisonment for debt is abol- ished. The State course of proceeding is to be fol- lowed.* " No crime known to the law brought so many to the jails and prisons (one hundred years ago) as the crime of debt, and the class most likely to get into debt was the most defenseless and dependent, the .great body of servants, of artisans, of laborers." ° See Arrest, 2; Commitment; Felony; Labor, 1; Prosecution, Malicious. IMPROVE. To cultivate, as, land. "Improved land " is such as has been reclaimed, is used for purposes of husbandry, and is cultivated as such, — whether the appropriation is for tillage, meadow or pasture. " Improvement. 1. Amelioration in the condition of property by the outlay of labor or money. Includes repairs or additions to buildings, the erec- tion of fences, the annexation of fixtures, etc.'' See Eetterment; Estoppel. As used in a will, relative to property, construed according to the Subject-matter. A gift of the im- provement of land may constitute a freehold estate, for the devisee's life; of plate, pictures, furniture, it would be the possession and use ; of money, securities, •or stocks, it would be the i:ncome.s Bedding oysters is not an "improvement," within the meaning of a statute authorizing riparian owners to make improvements on navigable streams. The mei-e depositing of the oysters in the water implies no essential union or relation between the main land ^nd the soil under the water contiguous; and there- 1 [Pike D. Hanson, 9 N. H. 493 (1838); Smith v. State, •7 Humph. 43 (1846). See also 85 Ind. 15, 286; 43 id. 65; 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, 13 ,F. E. 253 (1882). » Wood V. Graves, 144 Mass. 367-68 (1887), cases. « E. S. § 990; The Blanche Page, 16 Blatoh. 8 (1879). « 1 McMaster, Hist. Peop. V. S. 98 (1883). « [Clark V. Phelps, 4 Cow. 208 (1825). See also 40 Cal. 83; 8 Allen, 213; 68 Pa. 396. ' See Schenley's Appeal, 70 Pa. 102 (1871) ; Schmidt t'. Armstrong, 72 id. 356 (1872); French v. Mayor of New York, 16 How. Pr. 823 (1858)^ 33 Iowa, 254; 34 id. 559; 1 Cush. 98; 23 Barb. 260; 78 N. Y. 1, 581; 18 N. J. L. •424. ' Lamb v. Lamb, 11 Pick. *375 (1831), Shaw, 0. J. fore does not effect an improvement of the laud im- plied in something created or constructed, attached to the shore. 1 Internal improvements. Works within the State, by which the public are supposed to be beiiefited ; such as the improvement of highways and channels of travel and com- merce.2 See Aid, 1, Municipal. Under improvement. Used, occupied, em- ployed, turned to profitable account.' S. An addition of some useful thing to a patentable object. See further Invejntion; Patent, 3; Process, 3. IMPBOVIDENT. In a statute exclud- ing from an administratorship or executor- ship a person improvident in liabits, the reference is to such habits of mind and con- duct as render a man unfit for the duties of the trust. < Compare Incapable; Strnv ABLE, 1. Improvldently. Designates a rule, or- der, or deci-ee, had or made prematurely or inconsiderately. IMPULSE. A sudden impelling. An irresistible impulse to commit an act known to be wrong does not constitute the insanity which is a legal defense. The law does not recognize an impulse as ancontroUable which yet leaves the reasoning pow- ers — including the capacity to appreciate the nature and quality of the particular act — unaffected by men- tal disease.^ See Insanity. IMPUNITY. Applies to something which may be done witliout penalty or pun- ishment.* IMPUTE. See Knowledge, 1; Impli- cation. IN. Introduces English, French, and Latin phrases : 1. English, (i) The preposition: within, inside of, surrounded by.'? Under a statute requiring notices to be posted " in " public places, a posting " at" such places may not be sufficient.^ ■ Hess V. Muir, 65 Md. 586, 598 (1886). = Union Pacific R. Co. v. Cbmmissioners, 4 Neb. 466 (1876); Dawson County ij. McNamar, 10 id. 281 (1880); Traver v. Merrick County, 14 id. 333 (1S83); Blair v. Cuming County, 111 U. S. 370-73 (1884), cases. " Chase v. Jef ts, 58 N. H. 281 (1878). < [Emerson v. Bowers, 14 N. Y. 454 (1866): s. 0. 14 Barb. 660; CoopB v. Lowen'e, 1 Barb. (3h. 47 (184S). ' People V. Hain, 62 Cal. 123. (1882). • Dillon V, Rogers, 36 Tex. 163 (1871). ' See Mayor of New York v. Second Avenue E. C!o., 31 Hun, 245 (1883). BHilgers v. Quinney, 51 Wis. 71 (1881) IN 529 IN, In a bond payable " in twenty -five years "means, at the end o£ that period, not within nor at any time ding- ing the period.' " The city of Wichita claims that when the act was passed there was no Gilbert's addition in the city, upon which the act could operate. Such addition may have been in the town or city, considering the collect- ive body of people in that vicinity as the town or city, and not merely the corporate limits." ' In action. See Action, 2 ; Chose. In banc or bank. See Bank, 2 (1), In blank. See Blank. In case. See Case, 1. In chief. See Chief. In court. See Out, Of court. In equity. See Equity ; Law. In evidence. See Evidence. In fact. See Fact. In fuU. See Indorsement. 2 ; Receipt, 2. In gross. See Gross. In kind. See Kind. In law. See Fact ; Law. In like manner. See Likewise. In mercy. See Merct. In possession. See Possession. In tbat case or , event. See Then ; Upon, 2. In the peace. See Peace, 1. In the presence. See Presence. In the same manner. See Manner. (2) The adverb: not out, within; invested with title or possession : as, " in " by descent, "in" by purchase. 2. French. Used for en — equivalent to the English and Latin in. In autre droit. In another's right. See Droit. In pais or pays. In the country : iq deed. See Pais. In ventre. In the womb. See Abor- tion; Venter. 3. Latin. (1) An inseparable particle, meaning not. Like the English un, nega- tives the sense of the simple word. Before I, changes to il, as in illegal; before b, m, p, (labials), changes to im, as in imbecile, immaterials; before r, changes to ir, as in irregular, irrelevant. Compare En, 8; Non. (2) A preposition, denoting rest or motion within or into a place or thing. Opposed to ex, coming out from within. May be trans- lated in, into, within, among; to, toward, at; on, upon ; against. Compare En, 1. ' Allentown School District u Derr, 115 Pa. 446 (1887). " City of Wichita v. Burleigh, 36 Kan. 41 (1886). In adversum. Against a resisting party. Compare In invitum. In eequali jure. In equal right. See Jus. In articulo mortis. At point of death. See Article, 3. In banco. In bank. See Bank, 2 (1). In bonis. In property. See Bona. In capita. Among the persons. See Caput. In capite. In chief. See Chief. In cujus rei testimonium. In testi- mony of which thing ; in testimony whereof. In consimili casu. In like cause. See Casus, Consimili. In custodia legis. In possession of the law. See Custody. In dubiis. In matters of doubt. In esse. In existence; opposed to in posse, q. V. See Remainder ; Sale. In extenso. At length; fuUy. See At Large, 1. In extremis, (a) At the end, the last. See Article, 3 ; Nuncupative. (6) Under stress of apparent necessity. A movement in extremis by a vessel is not charge- able as a fault in the master or pilot, though erroneous and useless.' In facie eeclesise. Before tlie church. See Dower. • In fevorem libertatis. In favor of lib- erty. In favorem vitse. In favor of life. In flctione. See Fiction. Tn fieri. In the to be made : in the mak- ing ; in process of being made, created, com- pleted : not completed. During the term of a court, proceedings are said to be in fieri.^ In fine. At the end — of the page, title, etc. Abridged in fin., inf. In forma pauperis. As a poor person. See Pauper, 1. In foro conscientise. Before the bar of conscience. In foro domestico. Before the home tribunal. In foro seculari. Be- fore the civil court. See Forum. In fraudem legis. In evasion of the law. In faturo. At a future time. 1 The Alabama, 17 F. R. 864 (1883), cases; 11 id. 932; Ua U. S. 526. 2 18 Wall. 193; 109 U. S. 499; 70 Ala. 403; 87 Ind. 26; 3 Bl. Com. 407. IN 530 INCAPABLE In kind ; opposed to in spe- In the boBom, protec- See In genere. eie, q. v. In gremio legis. tion, of law. See Lex. In hac parte. On this side. In hsec verba. In these words. Verbum. In hoe. In this ; as to this. In individuo. In the undivided state: entire. In inB,nitum. To infinity; indefinitely. In initiov In the beginning ; from the first. In integruni. In the unbroken state: whole, entire. In invittun. Against one not Assenting : unwillingly; as, a tax levied in invitum. See Invitus. In judicio. By judicial procedure; in cburt. In jure. In right : rightfully. In limine. At the threshold : at first in- ception ; at first opportunity. An objection to testimony must be offered in limine.^ In litem. In the suit. See Oath, In litem. In loco parentis. In the place of the parent. Guardians and teachers are said to stand in loco .parentis. See further Parens. -In miserieordia. In mercy. Abridged in m'ia. See Mercy. In mitiori sensu. In the milder mean- ing. See Slander ; Sensus. -In mortua manu. In dead hand — mort- jnain, q. v. In nubibus. In the clouds : in abeyance. -In nullo erratum. In nothing is there error. See Erratum. In odium spoliatoris. In hatred of a despoiler. See Alteration, 3: Spoliation. In pari causa. In an equal cause : equal right. In pari delicto. In equal wrong- doing. See Delictum. In pari materia. On like subject. See Materia ; Repeal. In perpetjiam rei memoriam. For preserving evidence of the matter. In personam. Against the person; op- posed to in rem, q. v. See Persona. In pios usus. For religious purposes. See Use,, 3, Pious. ' 109 U. S. 70, 71 ; 181 id. 400. In posse. In possibility; opposed to in esse, q. v. In prseparatorio. In preparation : being fitted out.i In prsesenti. At present time. See Marriage. In propria persona. In his own person. See Persona. In propria causa. In his own suit. See Causa. In quo. In which. See Locus. In re. In the matter of: in regard to. See Res. In rem. Against a thing — property ; op- posed to in personam, q. v. See Res. In rerum natura. In the nature of things ; in existence. In se. In itself. In solido; in solidum. For the whole; as an entire thing ; exclusive of another. In the case of a joint and several obligation, each obligor is liable for the whole amount; so, possession by a partner accrues to all copartners.^ In specie. In the very thing; also, ac- cording to the precise terms ; opposed to in genere, in kind. See Deposit, 3; Distress (4) ; Genus ; Loss, 3 ; Species. In statu quo. In the condition in which — a person or thing was formerly. See Status ; Rescission. In terrorem. For a warning: as a threat. In testimonium. In witness whereof. In thesi. For a proposition: in state- ment. In totidem verbis. In the very words : word for word. See Verbum. In toto. In the whole: entirely; abso- lutely. In transitu. In passage; on the way. See Stoppage. INABILITY. See Ability ; Disability. INACCURACY. See Ambiguity. INADEQUATE. See Adequate. INADMISSIBLE. See Admission, 1. INALIENABLE. See Alien, 3. INAUGURATION. See Oath, Of office. In order to vest official authority In a President or governor elect, it is oUly necessary that he take the oath of office. INCAPABLE. Referring to a person disqualified from administering upon an es- tate, is not limited to mere mental or phys- > 107 U. S. 71. INCAPACITY 531 INCIDENT ical incapacity ; includes the idea of unfitness, BBBuitableness.i Compare Improvident. HTCAPACITY. See Capacity. INCEM-DIAEY. See Arson. rNCERTA. See Cebtum. HfCEST.s Illicit intercourse between persons within those degrees of consanguin- ity as to which marriage is forbidden by law.' There may be a certain power exerted, resulting from age, relationship, or other circumstance, which overcomes the objections of the female, without amounting to that violence which would constitute rape.* Incestuous adultery or fornication.. The crime of adultery or fornication aggra- vated by the additional crime of incest. While cognizable as an offense under the canon law, incest does not seem to have been punishable by indictment at common law. It is now punishable by statutes, which also presc'ribe the prohibited degrees of kinship.' Where a defendant in an action for libel alleged that the plaintiff had committed incest from which she was pregnant, and did not attempt to prove the latter act, the plaintiff was held entitled to a verdict.* See Ignorance; Polygamy. INCHASTITY. See Chastity; Incest. INCHOATE.'' Commenced, but not com- pleted; not fully in existence or operation; inceptive; incomplete ; imperfect. Opposed, conxummate, q. v. Designates a right, title, or claim, not yet complete.^ Thus, a marriage between minors is inchoate and in- complete.' Before the husbands death, right to dower is inchoate.'" The right of an unborn child to take by descent is inchoate." A legacy transfers an inchoate property to the legatee, perfected by assent of the executor." The right to a copyright may be inchoate." From the moment of his invention, an inventor has an in- ■ Drews' Appeals, 58 N. H. 320 (1878), cases. "F. inceste; L. incestua: in, not; castue, pure. = Daniels v. People, Mich. 336 (1859); Territory v. Corbett, 3 Monta. 55 (1877); Ctommonwealth u. Lane, 113 Mass. 463 (1873); 39 Mich. 1S4; 44 Pa. 310. « Eaitord v. State, 68 Ga. C7J (1883). « See 4 Bl. Com. 64; 1 Bishop, Cr. L. § 502, 1 Mar. & D. § 312, St. Cr. § 727; 2 Kent, S3; State v. Fritts, 48 Ark. 68-70 (1886), cases. •Edwards v. Kansas City Times Co., 32 F. B. 813 (1887). ' In'-co-ate. L. inchoare, to begin. « Trenier v. Stewart, 101 U. S. 802 (1879). "1 Bl. Com. 436. i»2Bl. Com. 130. " Marsellis v. Thalhimer, 2 Paige, Ch. 35 (1830). 1=2 Bl. Com. 512. "Lawrence v. Dana, 4 Cliff. 66 (1869). choate property in his invention, which he may com- plete by taking out a patent.^ A purchaser at a judicial sale acquires an inchoate right to the property.i An informer, by commencing suit, obtains an inchoate property in the penalty, con- summated by judgment.^ The law forbids the incho- ate step to an illegal act,' See Perfect. IN'CIDENT.4 Whatever inseparably be- longs to, is connected with, or inheres in an- other thing as principal; less properly, a thing connected with another, even sepa- rably. 5 Incident; incidental. Connected with something of more worth or importance ; oc- cupying a subordinate relation; accessory; collateral. The " incidental " labor for which a mechanic's lien maybe filed in Colorado must be directly done for, con- nected with, or actually incorporated into the building or improvement, and not indirectly and remotely as- sociated with the construction." Customary incidents. Such incidents as originate in usage or custom.' Annex incidents. Show what things are to be treated as incidental to another thing the subject of a contract. ^ Parol evidence is admissible to annex incidents. The rule is that the incident follows the principal. " When the law doth give anything to one, it giveth, impliedly, whatever is necessary for enjoying the same."" . When the use of a thing is granted, everything is granted by which the grantee may enjoy such use. The grantor is presumed to intend to make the grant effectual. ' » Thus, whatever is part and parcel of a house, mill, or factory is conveyed eo nomine.^^ Land covered by the eaves of a house goes with a grant of the house. '^ The use of a front-door, entry, windows, closets, pumps, etc., is incident to the tenancy of a room in a house, unless otherwise agreed. The key is an inci- dent to a building; so are the title-deeds to the land; so is rent to the reversion; >' and so is a remainder to the particular estate. The right of alienation is neces- sarily, incident to a fee-simple at common law.'* ' Delaplaine v. Lawrence, 10 Paige, 602 (1844^ i'2Bl. Com. 437. « Trist V. Child, 31 Wall. 451 (1874). ' L. incidere, to fall upon or into. » See Neal v. East Tennessee College, 6 Yerg. 208 (1834). • Kara Avis Mining Co. -u. Bouscher, 9 Col. 388 (1886). ' 1 Whart. Ev. § 069. e 1 Greenl. Ev. | 294. » 2 Bl. Com. 36. '" Steam Stone Cutter Co. v. Shortsleeves, 16 Blatch. 882 (1879), cases. I'-l Greenl. Ev. §§ 286, 294, cases. 12 Sherman v. Williams, 113 Mass. 484 (1873). "2B\. Com. Ill, 176. n 1 Washb. R. P. 54. INCIPITUR 533 INCOMPATIBLE "A vessel is incident to its keel; the frame to a pict- ure; tlie halter (o a horse sold; wool upon a pelt to the pelt; wages to freight; interest to its principal; the subscription list to a newspaper establishment ; the cuscody of goods by ah innkeeper to the contract for entertainment; such subordinate acts by a special agent as are usually done' in' connection with the principal act.^ Sbnie writs are incidents to the other writs. Power to make rules of court is incidental to the general power invest€!d in every court of record.^ Pbwer to call for proofs, to compel the attendance pf witnesses, and to fine or imprison for non-attendance or non- production, is incidental to the power to hear' and de- termine causes.^ Costs follow a judgment as an inci- dent thereto. Power to make by-laws is incident to general cor- porate powers. See further Accessory; Appeneaob; Appendant; Appurtenant; Cession; Command; Grant, 2, 3; Join- der; Machinery; Messuage ;"PaiKcipAL, 1; Prohibi- tion, 1; Railroad. nfCIPITUIl. L. It is begun: the be- ginning. Formerly, when parties came to an issue, the plaint- iff entered it, with all prior pleadings, on an issue-roll ; later, only the commencement of the pleadings was entered. This was termed entering the incipitur — the'beginning.' IWCLOSE. "Inclose" and "include" are of the same derivation. One of their common significations is, to confine within.s See Include. Indosure. A tract of land surrounded by an actiial fence, and such fence." See Close, 3. A' testator directed his executors " to inclose with an iron fence the Friends' meeting-house grounds, the school-house grounds, and the Friends' burial-ground." These three grounds were adjoining. Held, that there was no latent ambiguity as to his intention to inclose each of the grounds on all sides.'' INCLIIDE.s To confine within ; to com- prise, embrace, comprehend. See Inclose. Including. A legacy of "one hundred dollars, including money trusteed " at a bank, was held to in- tend a gift of one hundred dollars only.' Inclusive. Embraced ; comprehended ; opposed to exclusive. See Day ; Consisting. I S Pars. Contr. 67. 2 25 Pa. 5)6; 3 Binn. 417, 877. ' 1 Greenl. Ev. § 309. » See 3 Steph. Com. 566, n.; 1 Arch. Pr. 350. s [Campbell v. Gilbert, .57 Ala. 671 (1S77), Brickell, Chief Justice. • Taylor v. 'Welbey, 36 'Wis. 44 (1874); Pettit v. May, 34 id. 672 (1874); Porter v. Aldrich, 39 Vt. 331 (1866); Gundy v. State, 63 Ind. 530 (1878); 8 Hun, 269. ' Appeal of Hall, 112 Pa. 62 (1886). 8 L. in-claudere, to shut in, keep within. » Brainard v. Darling, 132 Mass. 218 (1882). INCLtrSIO. See EXPRESSIO. INCOME. That which comes in, or is received from any businiess or investment of capital, without reference to the outgoing expenditures. Applied to the affairs of an individual, conveys the same idea that " rev- enue " expresses when applied to the affairs of a state or nation. Sometimes, is synony- mous with " profits," the gain as between receipts and payments, i See Peoitt, 1. Compare Earnings. The " income of an estate " is the profit it will yield after, deducting the charges of management, or the rent which may be obtained for the use of it. " Rent and profits," " income," and " net income " of the es- tate, are equivalent expressions.* The income from a profession, trade, or employ- ment, whiehmay be taxed, is the result of the business for a given period, the net result of many combined influences: the creationof capital, industry, and skill.s In the ordinary comi^ercial sense, " income," es- pecially when connected with the word '" rent," may mean net or clear income. But one may say that his " income " from a certain property amounts to a par- ticular sum, and yfet be speaking merely of the accru- ing rent, without regard to insurance, taxes, or repairs. Outside of business circles we can never know whether net or gross income is meant without further inquiiy. " Produce "' or " product," as a substituted word, may relieve a will from obscurity.* " Income " is the gain which accrues from property, labor, or business. It is applicable to the periodical payments, in the nature of rent, usually made under mineral leases.* May mean " money," and not the eacpectation of receiving or the right to receive money at a future time. A note is ground for expecting income, and, in the sense of a statute taxing incomes, the amount thereof is to be returned when paid." See Bond. An absolute gift of all of the income of property, without limitation as to time, is a gift of the property itself.' INCOMMUTABLE. See Commutation. INCOMPATIBLE. Offices are said to be "incompatible and inconsistent " when, 1 [People V. Supervisors of Niagara, 4 Hill, 23 (1842), Bronson, J. 2 Andrews v. Boyd. 5 Me. *203 (1828), Weston, J. Compare Scott v. 'West, 63 Wis. 532, 590 (1885). 3 Wilcox -v. County Commissioners, 103 Mass. 546 (1870), Ames, J. * Thompson's Appeal, 100 Pa. 481-82 (1882), Gordon, J.; Sim's Appeal, 44 id. 347 (1863). « Eley's Appeal, 103 Pa. 306 (18S3), Sterrett, J. ? United States v. Schillinger, 14 Blateh. 71 (1876); Gray v. Darlington, 15 Wall. 63 (1872). See also 14 La. An. 815; 9 Mass. 372; 8 Duer, 426; 30 Barb. 637; 4 Abb. N. C. 400; 1 Wil. (Ind.)219; 16F.R.14. ' Bristol V. Bristol, 53 Conn. 259 (1885); Sproul's Ap- peal, 105 Pa. 441 (1884); 2 Roper, Leg. 371. INCOMPETENT 533 INDEBTED from the multiplicity of business, they can- not be executed by the same person with care and ability ; or, when their being sub- ordinate and interfering with each other in- duces a presumption that they cannot both be executed with impartiality and honesty.' Incoinpatibility. See Divorce. INCOMPETENT. See Competent. INCOMPIiETE. See Inchoate; Per- fect. INCONCLTJSrVE. See Conclude, 2. INCONSISTENT. See Condition; In- compatible; Repugnant. INCONTESTABLE. See Contest. INCONVENIENCE. See Hardship. INCORPORATE. See Corporate. INCORPOREAL. See Corporeal. INCORRIGIBLE. See Reformatory. INCREASE. That which grows out of land or is produced by the cultivation of it.^ Compare Accretion; Earnings; Income; Profit. Increased costs. See Costs. INCREDIBIiE. See Credit. INCREMENT. See Accessory; Inci- dent; Ice. INCRIMINATE. See Criminate. INCULPATE. See Culpa. INCUMBENT. 1. Resting as a duty or obligation. 2. One who is legally authorized to dis- charge the duties of an office.3 See Vacancy. INCUMBIT. See Probare, Probatio. INCUMBRANCE.'' A burden, an ob- struction, impediment. Whatever charges, burdens, obstructs, or impairs the use of an estate in land, or pre- vents or impairs its transfer.* An estate or interest in or a right to land, to the diminution of its value.* Every right to or interest in land which > People V. Green, 46 How. Pr. 170 (1873): 4 Inst. 100; Bac. Abr. See also Commonwealth i: The SheritE, 4 S & E. *377 (1818); Commonwealth v. Binns, 17 id. *320 (1838); State v. Buttz, 9 S. C. 179 (1877); Constitution, Art. I, sec. 6, cl. 3. 2 Do Blane v. Lynch, 23 Tex. 87 (1859). estate V. McCoUister, 11 Ohio, 60 (1841); County of .Scott V. Ring, 89 Minn. 403 (1882). See Cooley, Const. Lim, 748; 2 Whart. Cr. L. §§ 2386, 2.544; 2 Chitty, Cr. L. 42; 1 Kuss. Cr. 326; 2 S. & E. *91; 128 Mass. 52; 2 C. & K 9a3. » United States v. Smith, 11 F. E. 663, 665 (188S), Barr, District Judge. 3 United States v. Lof tis, 12 F. E. 671 (18S2), Deady, J. « McJunkins v. State, 10 Ind. 145 (1858), Hanna, J. See Jennings v. State, 16 id. 335 (1861); Ardery v. State, 56 id. 328 (1877). s Van Houten v. State, 46 N. J. L. 17 (1884), Beasley, Chief Justice. •Mitchell V. Work, 13 E. I. 646 (1882), cases. ' Seller v. Jenkins, 97 Ind. 430 (1834), cases, 6 L. indemnitas; in-demnis, unharmed, free from dammlm, hurt, loss. ' See Weller v. Eames, 15 Mmn. 467 (1870); 2 McCord, Indemnify. To compensate for loss, sus- tained or anticipated. Indemnitor. He who undertakes to pro- tect another from loss that may be incurred on account of an act or action by the latter in behalf of the former. Opposed, indemnitee.! Property insurance is a contract for indemnity. Officers selling personalty, under executions, require bonds of indemnity against damages recoverable for trespass.'^ Persons who distribute trust moneys re- quire bonds for pj-o rata repayment in the event of unexpected claims arising; and settlements and wills may contain clauses of indemnity for the protection of executants. There is difference between an agreement to in- demnify and an agreement to pay.^ See Damnum, Damniflcatus; Injunction; Insdhance; Surety. 3. Statutes designed to relieve the occu- pant of an office who has failed to do some act necessary fully to qualify him for the discharge of the duties of the oflice, or to ex- empt from punishment persons guilty of offenses, have been called "acts of indem- nity." See Amnesty. INDENTURE.! a deed: a writing sealed and delivered.* A deed inter partes, or a mutual deed.6 Named from being indented or cut on the toj) or the side by a waving line or a line of .indenture so as to fit the counterpart from which It is supposed to have been separated.* Formerly, when there were more parties than one to a sealed instrument, a copy for each was made, and cut or indented (in acute angles instar denfium; like the teeth of a saw, but, later, in a waving line) on the top or side, to tally with the other; which deed, so made, was called an "indenture." Both parts were written on the same piece .of pardhment, with some word or letters between them and through which the parchment was cut so as to leave half on each part. Later, the indenting was not through any word at all; and, in time, the term " indenture " served merely to give name to the species of deed. The part executed by the grantor was the original, the others counter- parts. Where all the parties executed every part, each part was an original. Opposed, defid-j)oH.T By 8 and 9 Vict. (1848), c. 106, the necessity for in- denting was q.bolished in the case of ordinary deeds, and by 2i Vict. (1861), c. 9, as a requisite in gifts of land to charities.' '30 Minn. 321; 15 id. 461. 2 87 111. 243. s Wicker v. Hoppock, 6 Wall. 99 (1867). * L. L. indenture, to notch: L. dejis, a tooth. * Overseers of Hopewell v. Overseers of Amwell, ' 6 N. J. L. 176 (1822). a Bowen v. Beck, .94 N. Y. 89 (1883). ' 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 in writing ; but may have a narrower signifi- cation.! INDEPENDEIfCE. The Declaration of Independence, the state paper issued July 4, 1776, by the "Eepresentatives of the United States of America," was, " that these United Colonies, are and of Eight ought to be, Free and Independent States ; that they are Ab- solved from Allegiance to the British Crown, and that all political connection between them and the State of Great Britain is and ought to be totally dissolved ; . . . and that as Free and Independent States they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Inde- pendent States may of right do." 2 Tlie inherent rights which lie at the foundation ot all action between fellow-men ai'e happily expressed in the preamble, viz.: "We hold these truths to be self-evident " — that is, so plain that their truth is rec- ognized upon their mere statement, — "that all men are endowed " — not by edicts of emperors, or decrees of Parliament, or acts of Congress, but " by their Creator with certain iualienable rights" — that is, rights which cannot be bartered, given, or taken away except in punishment of crime, — "and that among these are life, liberty, and the pursuit of happiness, and to secure these" — not grant them — "govern- ments are instituted among men, deriving their just powers from the consent of the governed." " See Confederation; Happiness. IndependenoB Day. See Holiday. INDEPENDENT. See Dependent; Covenant. INDEX. A portion of a book exhibiting, in alphabetical order, and in more or less detail, the contents of the whole volume; or, a book in itself containing, in like order, references to the contents of a series of vol- umes. Latin plural, indices; English plural, indexes. Direct index. Exhibits the names of grantors, lessors, mortgagors, and other par- ties of the first part to recorded instruments. Indirect or reverse index. Gives the names of grantees, lessees, mortgagees, and other like parties to whom recorded instru- ments were executed ; also called ad seotam index: literally, at the suit of, that is, orig- ■ United States v. Irwin, 5 McLekn, 183-84 (1851). 2 See Rev. Stat., 2 ed., pp. 3-6. s Butchers' Union Co. v. Cresent/City Co., Ill U. S. T56 (1884), Field, J. inally, containing instruments made or de- livered to plaintiffs. Indexes, directed by statute to be made, are de- signed to facilitate the examination of records, not to protect the interests of persons whose conveyances are recorded. In such case the failure of the oflBcer to make the index will not prejudice the title of a grantee or mortgagee.' See Idem, Sonans. INDIAN. Includes descendants of Indi- ans who have an admixture of white or negro blood, provided they retain their dis- tinctive character as members of the tribe from which they trace descent. - The United States adopted the principle originally established by European nations, that the aboriginal tribes were to be regarded as the owners ot the terri- tories they respectively occupied.' See Discovery, 1. Indians who maintain their tribal relations are the subjects of independent governments, and as such not in the jurisdiction of the United States, because the Indian nations have always been regarded as distinct political communities between which and our govern- ment certain international relations were to be main- tained. These relations are established by treaties to the same extent as with foreign powers. They are treated as sovereign communities, possessing and ex- ercising the right of free deliberation and action, but, in consideration of protection, owing a qualified sub- jection to the United States.* If the tribal organization of Indian bands is recog- nized by the political department ot the National gov- ernment as existing; that is to say, if the government makes treaties with and has its agent among them, paying annuities, and dealing otherwise with "head men " in its behalf, the fact that the primitive habits and customs of the tribe have been largely broken into by intercourse with the whites, does not authorize a State government to regard the tribal organization as gone, and the Indians as citizens of the State where they are and subject to its laws.^ When members leave their tribe and become merged into the mass of the people they owe complete ' Nichol V. Henry, 89 Ind. 54, 58-59 (1883); Bedford v. Tupper, 30 Hun, 176 (1883). See also .35 Ala. 23; .50 Ga. 337; 19 111. 486; 29 La. An. 116; 81 id 33; 44 Mich. 1£3; 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; Cooley, Torts, p. 387, cases. 2 Wall V. Williams, 11 Ala. 836 (1847). See Relation of Indians to Citizenship, 7 Op. Att.-Gren, 746, 750 (1856); Campan v. Dewey, 9 Mich. 435 (1801). s United States v. Rogers, 4 How. 667 (1846): Johnson V. M'Intosh, 8 Wheat. 574, 584 (1823); United States v. Kagama, 118 U. S. 331-82 (1886); 3 Kent, 378; 2 Washb. R. P. 581. « Exp. Reynolds. 18 Alb. Law J. 8 (U. S. D. C, W. D. Ark., 1878), Parker, J. See also Cherokee Nation v. Georgia, 5 Pet. '16 (1831); Worcester v. Georgia, 6 id. 515, 5&4 (1832); Dred Scott v. Sandford, 19 How. 4C3 (1856); Cherokee Trust Funds, 117 U. S. 288 (1686); 2 Story, Const. §§ 1097-1100; 3 Kent, .308-18; 50 Mich. 585. ' The Kansas Indians, 5 Wall. 737, 756 (1866), Davis, J. INDIAN 536 INDICIA allegiance to the government of the United States and are subject to its courts." A white man who is incorporated with a tribe by- adoption does not thereby become an Indian, so as to cease to be amenable to the laws ot the United States or to lose the right to trial in their coui'ts.* Under the Constitution " Indians, not taxed " are not counted in apportioning representatives and direct taxes among the States; and Congress has power to regulate commerce with the Indian tribes. The tribes are alien nations, distinct political communities, with whom the United States have habitually dealt either through treaties or acts of Congress. The members owe immediate allegiance to their several tribes, and are not part of the people of the United States. They are in a dependent condition, a, state of pupilage, re- sembling that of a ward to his guardian. Indians and their property, exempt from taxation by treaty or statute of the United States, cannot be taxed by any State. General acts of Congress do not apply to Indi- ans, unless so expressed as to clearly manifest an in- tention to include them. The alien and dependent condition of the members of the tribes cannot be put off at their own will, witfiout the assent of the United States. They have never been deemed citizens, ex- cept under explicit provisions of treaty or statute to that effect; nor were they made citizens by the Four- teenth Amendment. 3 While the government has recognized in the Indian tribes heretofore a state of semi-independence and pupilage, it has the right and authority, instead of controlling them by treaties, to govern them by acts of Congress: they being within the geographical lim- its of the United States, and necessarily subject to the laws which Congress may enact for their protection and that of the people with whom they came in con- tact. A State has no power over them as long as they maintain their tribal relations: the Indians then owe no allegiance to the State, and receive from it no protection.* In construing a treaty, if words be used which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used in the latter sense. How the words were understood by the unlettered people, rather than their critical meaning, should form ■ the rule of construction.* The relations between the United States and the different tribes being those of a superior toward an inferior who is under its care and control, its acts touching them and its promises to them, In the execu- tion of its own policy and in the furtherance of its own interests, are to be interpreted as justice and rea- son demand in all cases where power is exerted by the strong over those to whom they owe care and ' Bxp. Reynolds, ante. ■^United States v. Rogers, 4 How. 567(1846); 3 Op. Att.-flen. 693; 4 id. 258; 7 id. 174. 'Elk V. WilMns, Iia U. S. 99-100,-102 (T884), cases, Gray, J. « United States v. Kagama, 118 U. S. .375, 381-82 (1886), cases, Miller, J. Act 3 March, 1871: R. S. § 2070; 119 a. s. 27. 6 Worcester v. Georgia, 6 Pet. *582 (1832), M'Lean, J. protection. The inequality between the parties is to be made good by the superior justice which looks only to the substance of the right, without regard to tech- nical rules framed under a system of municipal juris- prudence, formulating the rights and obligations of private persons, equally subject to the same laws. . . A treaty is not to be read as rigidly as a document be- tween private persons governed by a system of- tech- nical law, but in the light of that larger reason which constitutes the spirit <)f the law of nations, i Indian country. That portion of the United States declared such by act of Con- gress ; not, a country owned or inhabited by Indians in whole or in part. ( As, in the act declaring it a crime to introdnce spirituous liquors in such country.^ Applies to all the country to which the Indian title has not been extinguished, whether within a reserva- tion or not, and whenever acquired.* Indian Territory. An act approved February 15, 1888 (26 St. L. 33), provides that any person hereafter convicted in the United States courts having jiunsdic- tion over the Indian Terrritory or parts thereof, of stealing any horse, mare, gelding, filly, foal, ass or mule, when said theft is committed in the Territory, shall be punished by a fine of not more than one thou- sand dollars, or by imprisonment not more than fifteen years, or by both, at the discretion of the court. Sec. 2. That any person convicted of any robbery or burglary in the Territory shall be punished by a fine not exceeding one thousand dollars, or imprisonment not exceeding fifteen years, or both, at the discretion of the court; Provided, Tliat the act shall not be con- strued to apply to any offense committed by one In- dian upon the person or property of another Indian, or so as to repeal any former act in relation to robbing the mails or robbing any person of property belonging to the United States; nor shall the act affect or apply to any prosecution now pending, or the prosecution of any offense already committed. Sec. ,3. That all acts inconsistent with this act are hereby repealed: Provided, however. That such acts shall remain in force for the punishment of persons who have heretofore been guilty of the crime ot lar- ceny in the Territory. See Commerce; Expatriation; Extradition, 1; Grain; Partus; Pueblo.. INDICATE. See Show. INDICIA. L. Marks; signs; appear- ances! color. In civil law, circumstantial evidence — facts which give rise to inferences. In common law. indications ' Choctaw Nation v. United States, 119 U. S. 28 (1886), Matthews, J. On Indian citizenship, see 20 4m. Law Rev. 188-93 (1886), cases. i" United States v. Seveloff, 2 Saw. 311 (1873); Peloher V. United States^ 3 MeCrary, 510, 515 (1S83), cases; United States ti. Martin, 8 Saw. 473 (18E3), cases; Forty- Three Cases of Brandy, 14 F. R. 639-42 (1882), cases; United States v. Earl, 17 id. 75 (1883), cases; United States V. Holliday, 3 Wall. 407, 416-19 (1865). > Exp. Crow Dog, 109 U. S. 656, 561 (18£3). See also United States v. Le Bris, 121 id. 287 (18S7): R. S. § 2139. INDICTMENT 537 INDICTMENT of character: as, indicia of authority, of fraud, of title.' See Badge, 8. INDICTMENT.2 A written accusation of one or more persons of a crime or misde- meanor, preferred to and presented upon oath by a grand jury.' Indict. To charge with crime by means of an indictment. Indicted. Charged by indictment. Indictor atid indictee are not now in use. Indictable. Admitting of prosecution by indictment. "Rill of indictment. The written accusa- tion presented to the grand jury, and found by them to be a "true bill" or " not a true bill." The indictment intended by the Vth Amendment is the presentation to the pi'oper court, under oath, by a grand jury, duly im- paneled, of a charge describing an offense against the law for which the party may be punished.'' Ko change can be made in the body of such instru- ment without a re-submission to the grand jury — ex- cept where statutes prescribe othei-wise. But changes may be made in the " caption." * The object of indictment is, first, to furnish the ac- cused with such a, description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same offense; and, second, to inform the court of the facts alleged, so that it may decide whether they are suflftoieut in law to support a conviction if one should be hj.d.' The object is, that the defendant may know what to meet; that he may plead a ;Eormer acquittal or con- viction; and that he may take the opinion of the court before which he is indicted, by demurrer or motion in arrest of judgment, or, the opinion of a court of error on the sufBciency of the statements in the indictment." Facts are to »e stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth with reasonable particularity of time, place, and cu-cumstances. Every ingredient of the offense must be clearly alleged. Where the definition of an offense includes generic terms, the indictment must state the species.' > '60 Mo. 420; 1 Pars. Contr. 45. ar. indicter, to accuse: L. L. indifMre, to point out: L. indicere, to proclaim. 3 4 Bl. Com. 302. See also 4 Col. 203; 12 Conn. 452; 4 Mich. 424; 72 Mo. 106; 13 Wend. 317; 21 id. 570; 11 Ohio, n; 19 Ohio St. 255. 'Exp Bain, 120 U. S. 1, 6-0 (1887), cases. Miller, J. And see 26 Am. Law Reg. 416-47 (1887), cases. » United States v. Cruikshank, 92 U. S. 558 (1875), njnited States v. Bennett, 16 Blatoh. 350-51 (1879), Blatchford, J.; Bradlaugh v. The Queen, L. E.,3 Q. B. 616 (1878). „ ., ^ c. * ' United States v. Cruikshank, supra; United States Where the offense is a common-law offense, the technical words of the common law must be usec\; where the offense is statutory, the substance of the words may be followed.' For a statutory offense, the charge must be so laid as to bring the case within the description of the of- fense given in the statute, alleging distinctly the essential requisites. Nothing is to be left to implica- tion or intendment. It is sufficient to pursue the words of the act, or, if that would leave an ambiguity, then the substance and legal effect of the words.^ The I'ule that a statutory offense need not be charged in the words of the statute does not apply to tech- nical terms and words of art which have acquired a conventional meaning and cannot be dispensed with, such as "murdered," "feloniously," and the like. But every material ingredient, constituting the description of the offense in the statute, whether an act done, knowledge had, an Intent or purpose enter- tained, or the existence of any collateral fact, must be afarmatively stated in plain, direct, intelligible lan- guage. = Where tue statute simply designates the offense, and does not in express terms name its constituent elements, the information must sometimes be ex- panded beyond the statutory terms.'' When a statute contains provisos and exceptions in distinct clauses, it is not necessary to state that the defendant does not come within the exceptions, or to negative the provisos. But if the exceptions are con- tained in the enacting clause, it will be necessary to negative them, that the description of the crime may in all respects correspond with the statute.' Where an offense may be committed by doing any one of several things, the indictment may, m a single count, group them together, and charge the defendant with having committed them aU, and a conviction may be had of any one of the things, without proof of the commission of the others." Several offenses of the same class or kind, growing out of the same transaction, though committed at dif- ferent times, may be joined in the same indictment in separate counts.' Where the same offense is charged in different V. Cook, 17 WaU. 173-77 (18T3), cases; United States v. Hess, 184 U. S. 483 (1888), cases. 'United States i). Bachelder, 2 Gall. *18 (1814), Story, J.; Cannon d. United States, 116 U. S. 78 (1885), Cd.&6S ' United States v. Staats, 8 How. 44 (1850), Nelson, J. a Edwards v. Commonwealth, 19 Pick. 125 (1837), Shaw, C. J. See 4 Bl. Com, 307, 287; 11 F. R.,240; 2 Flip. 319; 87 Ind. 70; 30 Kan. 365, 612; 17 Nev. 280; 60 Pa. 848; 77Va. 54. 4 State V. Gavigan, 36 Kan. 327 (1887); 30 id. 365. See generally State v. CampbeU, 28 Tex. 46 (1867), cases: 94 Am. Dec. 863-58 (1888), cases. » 1 Chitty, Cr. L. 283 6, 284: United States v. Britton, 107 U. S. 670 (1882); United States v. Cook, 17 Wall. 173-74 (1872), cases. » Bork V. People, 91 N. Y. 13 (1863); State «. Gray, 29 Minn. 144 (1882), cases. 7 United States v. Wentworth, 11 F. E. 58 (1882); Exp. Peters, 13 id. 461 (1880); ib. 464, cases; R. S. § 1024. INDIFFERENT 538 INDORSE counts, the whole indictment may be submitted to the jm-y, with instructions, it they find the defendant guilty upon any count, to return a general verdict of guilty; otherwise, where one count is had, and the evidence thereon is submitted with the rest, against objection.' See Bad, 2. For a common-law offense, the conclusion of an in- dictment is "against the peace and dignity" of the commonwealth or State; for a statutory offense, " against the form of the statute in such case made and provided."'^ See Amendment, 1; Form, 2, Of statute. An indictment is to be distinguished from a pre- sentment and an inform atioi^, gg. v. See also Abbreviations; Caption, 2; Challenge. 2; Commencement; Confession, 2; Copt; Crime; De- mubrbr; Divers; Evidence; Exceeding; Idem, So- nans; Identity. 1; Ignore; Indorse, 1; Infamy; Jeo- fail; Joint; Jury; Negative; Or, 2; Nolle Prosequi; Nolo Contendere; Place, 1; Quash; Sentence; Xhen AND There; Verbum, In hsec. rWDIFFERENT. 1. Said of an ap- praiser, whei'e property has been taken in execution: impartial, free from bias. 3 2. Said of a juror: that the mind is in a state of neutrality as respects the person and the matter to be tried; that there exists no bias, for or against either party, calculated to operate upon him ; that he comes to the trial vpith a mind uncommitted and prepared to weigh the evidence in impartial scales.* Compare Impartial. INDIGENT. See Pauper; Pock. A gift "to aid indigent young men" of a certain town or State "in fitting themselves for the evangel- ical ministry," is not void for uncertainty. The words " indigent " and " evangelical " are sufficiently definite, within ordinary intelligence. "They describe a man .who is without sufficient means of his own, and whom no person is bound and able to supply, to enable him to prepare himself for preaching the Gospel." ^ INDIGNITY. What acts or course of conduct will amount to ■ such indignities as constitute a cause for divorce seems to be nowhere defined, and they are perhaps inca- pable of exact specification. 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 ' Commonwealth v. Boston, &c. E. Co., 133 Mass. 391-92 (1882); lU Gray, 11, 17; 120 Mass. 372. " See Insall v. State, 14 Tex. Ap. 144(1883); Holdent). State, 1 id. 234 (1876), cases. = Fox V. Hills, 1 Conn. 307 (1815) ; Mitchell i). Kirtland, 7 id. *231 (1828); Fitch v. Smith, 9 id. *i6 (1831). ■i People V. Vermilyea, 7 Cow. 123 (1887). ' Storr's Agricultural School v. Whitney, 54 Conn. 3S2 (1887), cases, Pardee, J.: 35 Alb. Law J. 387, cases. Compare Hunt v. Fowler, 121 111. 269 (1887), cases: 36 Alb. Law J. 113; ib. 115, cases. intolerable and her lite burdensome. Indignities to the person need not be such as would endanger life or health; they may be such as would render life too hu- miliating to be borne.' In North Carolina, the indignity must be such as may be expected seriously to annoy a woman of ordi- nary good sense and temper, and must be continued in, so that it may appear to have been done willfully or at least consciously." That condition which renders life burdensome must be shown to exist in fact, and not be merely inferred from facts.' Compare Cruelty, 1. INDIKECT. See Direct. INDISPUTABLE. See Presumption. INDIVIDUAL. Pertaining or belong- ing to a single or distinct person, considered apart from a number of persons jointly asso- ciated or involved; personal; private: as, individual — assets, liability. See Liability ; Partnership ; Contribution. Individuals. See Police, 3 ; Welfare. INDIVISIBLE. See Division, 1. INDORSE.* 1. To write upon the back of any instrument or paper : as^ to indorse a deed with the day or book of its record; to indorse a pleading filed with the time of re- ceipt, payment of costs, etc. ; to indorse a warrant of arrest prior to action under it in another county.* In many cases, simply to write upon. In this sense words may be indorsed upon the face of a paper, even upon the face of a bill of exchange or promissorj' note.^ While the word has no definite technical meaning, other than that of some writing "upon the back," its particular meaning is always determined by the con- text, if in writing, and by its connection, if in spoken words. ^ Indorsement. Has its ptimitive and popular sense of something written on the outside or back of a paper, on the opposite side from which something else had been previously written, when the context shows that that sense is necessary to give effect to ' May V. May, 62 Pa. 210 ( " Miller v. Miller, 78 N. C. 106 (1878). 3 Cline V. Cline, 10 Nev. 474-77 (1881), cases. ^ F. ejidosser, to put on the back of: en, L. in, on; dos, L. dorsum, the back. Indorse seems to be prfr ferred to endorse. 'See 2 Bl. Com. 408; Hartwell v. Hemmenway, 7 Pick. 119 (1828); Marian, etc. Gravel Road Co. v. Kes- singer, 66 Ind. 653 (1879). •Commonwealth v. Butterick, 100 Mass. 16 (1868); 2 Bish. Cr. L. | 570 a. i 'Commonwealth v. Spilman, 124 Mass. 839 (1878); Davis V. Town of Fulton, 52 Wis. 663 (1881). INUOESE 589 INDORSE the pleading or other instrument in which it occurs. 1 2. For the person to whom or to whose order a bill cf exchange or a promissory note is payable, to write his name on the back of such bill or note in order to assign over his property therein. ^ That is the common meaning, but it is not impos- sible to indorse by placing the name upon the face of the bill or note.^ Indorser. He who writes his name upon a negotiable instrument prior to transferring it by delivery. Indorsee. He to whom the instrument is delivered ; the transferee. Indorsement. The act by which a bill or note payable to order is transferred ; the transfer of the legal title to any such instru- ment. As far as it operates as a transfer of the instru- ment, it is an executed contract; and also, since it im- ports, unless restricted, future liability in the indorser, it is an esecutory contract. But every contract, whether executed or executory, evidenced by a writ- ten instrument, must be delivered and accepted. Hence, to complete a contract of indorsement, in ad- dition to writing the name of the payee on the back, the further act of delivering the instrument to the per- son to whom title is to be transferred is necessary. Indorsing, then, imports delivery.* Accommodation indorsement. In effect, a loan of the indorser's credit without consid- eration. Blank indorsement. The form in which the indorser does not name the transferee. Indorsement in full. Contains the name of the transferee.^ Irregular indorsement. An indorsement which departs from common practice as to the place where the name should be written.^ Qualified indorsement. By this form the indorser limits or modifies his liability as ordinarily understood. The words used are "without recourse:" without liability in case of non-acceptance or non-payment. They are written after the indorser's signature.' Evidence that an indorsement in blank was " with- > Powell V. Commonwealth, 11 Gratt. 830 (1854). 2 8 Bl. Com. 468. s Haines v. Dubois, 30 N. J. L. 268 0863), cases; Com- monwealth V. Butterick, ante; Clark v. Sigourney, infra. ' Clark V. Sigourney, 17 Conn. »619 (1846). » See Byles, Bills, lBO-51, by Sharswood. • See 24 Cent. Law J. 3-6 (1887), cases. ' Story, Prom. Notes, i§ 138, 140; Bailey v. Falconer, 33 AJa. 539 (1858). out recourse" is inadmissible.' See further Re- course. Restrictive indorsement. Restrains nego- tiability to a particular person, or for a special purpose.2 "Unqualified" and "unrestricted" designate that form of indorsement wliich is most common — the wholly unmodified form. And this, the ordinary con- tract, imports: as to a bill, that the indorser will pay it at maturity, if, on presentment for acceptance, it is not accepted, and he is duly notified of the dishonor; and as to a hill or note, that the indoi'ser will pay it if it is not duly paid by the acceptor or maker, and he is duly notified; that it is genuine; that the signatui'cs of the immediate parties, and, in the better opinion, of prior indorsers, are genuine; that it is a valid and sub- sisting obligation according to the ostensible relations of the parties; that the original parties, and, in the bet- ter opinion, prior indorsers, could bind themselves as they have assumed to do; and that the indorser has a lawful title and the right to transfer it.^ An indorser's contract is a new one, as compared with the maker's. He is not a surety, as is sometimes said, for a surety is a joint promisor with the principal.* The maker is liable without demand of payment — his undertaking being conditional; but the indorser undertakes 'to pay only if the maker does not pay, which makes it necessary for the holder to take proper steps to obtain payment from the maker, from which it follows that his contract is that due diligence shall be used to that end.^ An indorser is only conditionally liable. His re- sponsibility is a contingent one, and, ordinarily, per- formance of the condition to make demand of the maker and give notice of his default in due time is an essential part of the title of one who asserts an indor- ser's liabihty. The reason is, that the indorser, if looked to for payment, may have the earliest oppor- tunity to take steps for his own protection. There is much inconsistency in the decisions whether demand and notice is necessary when they by no possibility could have enabled him to protect himself. The best considered cases hold that he is entitled to notice al- though he has taken indemnity from the maker — since that may prove insul^cient. In general, every indorser ought to have notice whenever he has a rem- edy over against the maker. Where, by agreement with the maker, the indorser has become the principal debtor, no notice is needed— -for the indorser then has no remedy over.' 1 Martin v. Cole, 104 U. S. 30, 36-80 (1881), cases. See generally, as to parol explanations of indorsements, 18 Cent. Law J. 382-86 (18841, cases, 2 See Armour Banldng Co. v. Riley County Bank, 3D Kan. 165 (1883); 11 R. I. 119. Suffixes as descriptio personcB, Falk v. Moebs, 127 U. S. 597, 602-7 (1888), ' See 1 Daniel, Neg. Inst. 498. < Ross V. Jones, 22 Wall. 588 (1874), cases. > Cox V. Nat. Bank of New York, 100 U. S. 713 (1879), cases. • Ray V. Smith, 17 Wall. 415 (1873), Strong, J. INDUCEMENT 540 INFAMY An indorser may sue all prior parties concurrently or successively, but can have only one satisfaction. ^ Contracts of indorsement are to be construed ac- cording to the law of the place where made, unless it appears that they are to be performed according to the laws of another State. ^ See further Accept, S; Accommodation; Assign, 2; Bearee; Blank.; Descbiptio Personae ; Exchange, 3, Bill of; Faith, Good; Guaranty; Negotiate, 2; Note, 2; Protest, 3. INDUCEMEM'T, 1. In pleading, matter merely introductory to the essential ground or substance of the complaint or defense, or explanatory of it or of the manner in which it originated or took place.^ Being explanatory, it does not, in general, require exact certainty. Matter unnecessarily stated may be stricken out, or need not be proved.* Thus, in trover, the loss and the finding of the goods, and, in nuisances, the possession of the subject injured, are alleged by way of inducement.^ Thus, also, in a suit upon a negotiable coupon, ex- planation of the relation the bond and the coupon have held, is by way of inducement: in the nature of a pre- amble, stating the circumstances under which the con- tract to pay interest was made.* Commonly commences with the word- "whereas." The importance of stating matter of inducement has been much relaxed by legislation. See Amendment, 1. 2. In the sense of motive, see Conpession, 3; Con- sideration. INDULGENCE. See Forbearance ; Favor ; Surety. INEBRIATE. See Intemperate. INELIGIBLE. See Eligible. INEQUITABLE. See Equity, Equi- table. INEVITABLE. See Accident; Neces- sity. INFAMY. The condition of being with- out repute, honor, or character: disqualifi- cation to testify as a witness or to sit as a juror, on account of conviction of a heinous offense. Whence infamous. " No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger. . ." * ''Infamous crime " is descriptive of an offense that subjects a person to infamous punishment or prevents his being a witness. The fact that aa offense may be 1 Bi-ooklyn City, &c. R. Co. u. Nat. Bank of the Re- public, 102 U. S. 35-37 aSSO), cases. 2 Briggs V. Latham, 36 Kan. 259-61 (1887), cases. 3 [Gould, Plead. 42. * City of Kenosha v. Lamson, 9 Wall. 482 (1869); 1 Chitty, PI. 290. 6 Constitution, Amd. V. or must be punished by imprisonment in the peniten- tiary does not necessarily make it, in law, infamous.' The Fifth Amendment had in view the rule of the common law, governing the mode of prosecuting those accused of crime, by which an information by the attorney-general, without the intervention of a grand jury, was not allowed for a capital crime, nor for any felony ; rather than the rule of evidence, by which those convicted of crimes of a certain character were disqualified to testify as witnesses. In other words, of the two kinds of infamy known to the law of England before the Declaration of Independence, the Constitutional Amendment looked to the one founded on the opinions, of the people respecting the mode of pimishment, rather than to that founded in the con- struction of law respecting the future credibility of the delinquent. The leading word " capital '' describ- ing the crime by its punishment only, the associated words, " or other infamous crime " must, by an ele- mentary rule of cpnstri^ction, be held, to include any crime subject to infamous punishment, even if they should be held to include also cirimes infamous in their nature, independejitly of the pimishment- affixed to them. Having regard to the object and the terms of the Amendment, as well as to the history of its pro-' posal and adoption, and to the early understanding and practice under it, no person can be held to answer, without presentment or indictment by a grand jury, for any crime for which an infamous punishment may be lawfully imposed by the court. The t«st is whether the crime is one for which the statutes authorize the court to award an infamous punishment, not whether the punishment ultimately awarded be an infamous one; when the accused is in danger of being sub- jected to an infamous pimishmeht if convicted, he has the right to insist that he shall not be put upon his trial except on the accusation of a grand jury. What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another. For more than a century, imprison- ment at hard labor in the State prison or peniten- tiary has been considered an infamous punishment, in England and America. Such imprisonment with or without hard labor is at present considered infamous pimishment. 8 The term " infamous " —without fame or good re- port — was applied at common law to certain crimes, upon conviction of which a person became incom- petent to testify as a witness. This was upon the theory that a person would not commit a crime of such heinous character, unless so depraved as to be wholly insensible to the obligation of an oath, and, therefore, nnworthy of credit. These crimes are treason, felony, and the crimen falsi. As to what or whether all species of the last are infamous, there is 1 United States v. Maxwell, 3 Dill. 276 (1875), cases, Dillon, Cir. J.; Peoples. Sponsler, 1 Dak. 297 (1876); Jones V. Robbins, 8 Gray, 34S-49 (1857) 3Mackiu v. United States. 117 U. S. 330-53 (1886), Gray, J.; Exp. Wilson, 114 id. 429, 422-29 (1885), cases, , Gray, J. ; Parkinson v. United States, 121 id. 281 (1887). See also Star-Route Cases (United States v. Brady). 3 Cr. Law Mag. 69 (1881). INFANT 541 INFIRM disagreement among the authorities. . , A crime is not infamous, within the Fifth Amendment, unless it not only involves the charge of falsehood, butimay also Injuriously affect the public administration of justice by tlie introduction therein of falsehood and fraud.i Under the Constitution and statutes there are no infamous crimes except those therein denounced as capital, or as felonies, or punished with disqualiflca- tiou as witnesses or jurors. If Congress makes a crime non-infamous, it can be pui'sued through in- formation. . Stealing from the mails has not been made infamous.^ In early times the character of the crime was deter- mined by the punishment inflicted, but in modem times the act itself, its nature, purpose, and effect, are loolced at in determining whether it is infamous or not. Passing counterfeit money is not an infamous crime. 5 Infamous persons are such as maybe challenged as jurors propter delictum; and, therefore, they shall never be admitted to give evidence to inform that jury with whom they are too scandalous to associate.* See Crimen, Falsi; Turpitude. HfPANT.s A person under the age of legal capacity ; a minor. Infancy. The status of one who has not attained his majority ; minority ; non-age. An infant has a mind, but it is immature, insufii- cient to justify his assuming a binding obligation." He can do no legal act that will bind him, except enter into an apprenticeship, contract for necessaries and teaching,' and, perhaps, enlist in the army or navy.' He may deny or avoid any other contract during his majority or after he comes of age. At common law, also, a male under fourteen, and a female under twelve, cannot make a will.* But an infant may serve as agent. He sues by his guardian or next friend, and he defends by his guardian, per- haps by a special guardian ad litem.^" Under the age of discretion he is not punishable criminall.y.^i If he understands the nature of an oath, he may give evidence.'* 1 United States v. Block, 4 Saw. 81S (1877), Deady, J. ; Sylvester v. State, 71 Ala. 25 (1881). ' United States v. Wynn, 3 McCrary, 276 (1882), Treat, Judge. •United States v. Yates, 6 F. E. 866 (1881), Benedict, J. ; United States v. Petit, 11 id. 58 (1882); United States v. 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. 6 L. m, not; faw, speaking: fari, to speak. •Dexter v. HaU, 15 Wall. 21 (1872). ' 1 Bl. Com. 465. 84 Binn. 487; 5 id. 423; 30 Vt. 357. •2 Bl. Com. 497; 1 id. 463. >» 1 Bl. Com 464. 114B1. Com. 22. "See Commonwealth v. Lynes, 142 Mass. 570-80 (1833), cases. At common law, the father is liable for torts com- mitted by an infant." His disabilities are really privileges: to secure him from loss by improvident acts." In England, the lord chancellor is the general guardian of all infants. The origin of the jurisdiction of the court of chancery is in the crown as parens patriae.^ See further Abandon, 2(2); Affirm, 2; Age; Dis- abilty; Capax; Child; Discretion, 1; Friend, Next; Guardian; Laches; Necessaries, 1; Negligence; Oath; Orphan; Parent; Ratification; Void; Ward, 3. INFANTICIDE. See Homicide. LNTEOrPMENT. See Feoffment. INFER. To bring a result or conclusion from something back of it, that is, from some evidence or data from which it may logic- ally be deduced.* To " presume " is to take or assume a matter be- forehand, without proof — to take for granted.* Inference. A deduction or conclusion from facts or propositions known to be true.^ See Presumption. INPEMOB. 1. The lower of two grades of authority or jurisdiction ; subordinate : as. an inferior court or tribunal, an inferior offi- cer. Opposed, sttpei-ior. See Court ; Officer. 2. Of less worth or importance; the less significant : as, when it is said that terms of a lower class cannot be extended by construc- tion to include terms or members of a higher class. Thus, the term "animals," meaning quadrupeds, will not be held to include "birds." • See General; Superior. INFIDEL. One who does not recognize the inspiration or obligation of the Holy Scriptures, or the generally recognized feat- ures of the Christian religion.^ See Atheist ; Oath. Infidelity. See Charity, p. 170, col. 3. INFINITE. See Distress. INFIRM. 1. Legally . insufficient ; lack- ing legal efficacy ; incomplete ; invalid. See Faith, Good ; Negotiable. 3. As to physical and mental infirmity, see Influence; Insanity. 1 18 Cent. Law. J. 3-7 (1884), cases. = 1 Bl. Com. 464. » 3 Bl. Com. 141; L. E., 10 Eq. 630. * Morford v. Peck, 46 Conn. 386 (1878), Loomis, J. 6 Gates 11. Hughes, 44 Wis. 336 ^1878). • Reiche v. Smythe, 13 Wall. 164(1871); United States V. Mattock, 2 Saw. 149-51 (1878). ' Gibson v. American Mut. Life Ins. Co., 37 N. Y. 584 (1868), Hunt, C. J.; Hale v. Everett, 53 N. H. 55 (1868); Omichund v. Barker, 1 Sm. L. C. 7S9-54, cases. INFLUENCE 543 INFORMATION rNFLUETfCE. Most frequently used in connection with " undue," and refers to per- suasion, machination, or constraint of will presented or exerted to procure a disposition of property — by gift, conveyance, or will. The influence which is undue in cases of gifts inter vivos differs from that which is required to set aside a will. In testamentary cases, undueinfluence is always defined as coercion or frauds but, inter vivos, no such definition is applied. Where parties occupy positions in which one is more or less dependent upon the other, courts of equit.y hold that the weaker party must be protected, and they set aside bia gifts if he had not proper advice independently of the other.' Influence, to vitiate an act, must amount to force and coercion destroying free agency; it must not be the influence of affection or attachment; not the mere desire of gratifying the wishes of another. There must be proof that the act was obtained by coercion, by importunity which could not be resisted; that it was done merely for the sake. of peace; so that the motive was tantamount to force or fear.* Undue influence is often defined by the courts to be a " fraudulent and controlling influence." In any ap- plication, the phrase savors of what is meant by fraud. ^ When a person, from infirmity and mental, weak- ness, is likely to be easily influenced by others, a transaction entered into by him, without independent advice, will be set aside, if there is any unfairness in it. Thus, where there is great weakness of mind in a grantor, arising from age, sickness, or other cause, though not amounting to absolute disqualification, and the consideration is grossly Inadequate, a court of equity, upon proper and seasonable application of the person injured, his representatives or heirs, will set the conveyance aside. In such case, it is sufficient to show : great mental weakness — not amounting to insanity or extreme imbecility; and, inadequacy of considera- tion." Influence obtained by modest persuasion and argu- ments addressed to the understanding or by mere appeal to the affections, cannot be termed " undue; " but influence obtained by flattery, importunity, supe- riority of will; mind, or character, or by what art soever that human thought, ingenuity, or cunning may employ, which would give dominion over the will of the testator to such an extent as to destroy free agency or constrain him to do, against his will, what he is unable to refuse, is " undue." * The undue influence for which a deed or will will ■ . ' Haydook v. Haydock, 34 N. J. B. 575 (1681); Hugue- nin V. B£»seley, 2 L. C. Eq., 4 Am. ed,, 1271, 1198-1890, cases. 2 Goodwin v. Goodwin, 59 CaJ. 501 (1881): Jarm. Wills, Perk. Notes, 41 ; Layman v. Conrey, 00 Md. 232 (1883). s Wessell v. Bathjohn, 89 N. C. 383 (1883). ' AUore v. Jewell, 94 U. S. 511-12 (1876), Field, J. Ap- proved, Griffith V, Godey, 113 id. 95(1885); Crebs v. Jones, 79 Va. 382 (1884). See also Harding v. Wheaton, 8 Mas. 3S0 (1821), Story, J.; Harding v. Handy, 11 Wheat. 103, 119 (1886), Marshall, C. J. » Schofleld V. Walker, 58 Mich. 106 (1885), quoting pro- bate court of Kent county. be annulled must be such that the party making it has no free will but stands in vinculis. " It must amount to force or coercion, destroying free agency." The ground upon which courts of equity grant relief is that one party by improper means has gamed an un- conscionable advantage over another. Each case must be decided on its own merits.' Where a testator embraced spiritualism as practiced by his beneficiary, .and became possessed by it, and this belief was used by the beneficiary to alienate him from his only child, his will was set aside." See Ddkess'; Fraud; Insanity, 2 (6); Beading; SpiritcAlism. INFORMALITY. See Formality. INFORMATION.s Knowledge im- parted or obtained. See Belief ; Communi- cation. In a statute intended to prevent physicians from disclosing "information" acquired from patients, comprehends knowledge acquired in any way while attending a patient, whether by the physician's own insight, or by verbal statement from the patient, from members of his household, or from nurses or stran- gers, given to aid the physician in the performance of his duty. Knowledge, however communicated, is in- formation.* An answer to a decoy letter written in a fictitious name, giving " information " of an article reputed to prevent conception, was held not to be within the meaning of a statute prohibiting the mailing of ob- scene matter.* 3. A complaint preferred on behalf of the government in a civil cause. Bill of information. A bill in equity filed by the attorney-general, or other proper officer, in behalf of the state or of those ' Conley v. Nallor, 118 U. S. 127, 133, 134-35 (1880), cases. Woods, J. See further, as to gifts or conveyances, Nichols v. McCarthy, 53 Conn. 814-21 (1885), cases; Woodbury ii. Woodbury, 141 Mass. 331-38(18^0), cases; Dunn v. Dunn, 42 N. J. E. 481 (1886); DaviS v. Dean', 66 Wis. 110-11 (1886). cases; Bingham v. Fayerweather, 144 Mass. 51 (1887), cases; June u. Willis, 30 F. E. 11, 14 (1887), oases; Hall V. Knappenberger, Sup. Ct. Mo. (1888): 26 Cent. Law J. 317; ih. 319-22 (1888), cases; 3 McCrary, 050; 69 Cal. 500; 12 Mo. Ap. 298, 314; 34 N. J. E. 570; 1 Story, Eq. §§ 237-88; — as to wills, 22 Cent. Law J. 173 (1880), cases; 28 AJa. 107; 69 Ga. 89; 22 Kan. 79; 99 Mass. 112; 58 Mich. 106; 63 N. Y. 504; 88 id. 857; 41 Pa. 817; 43 id. 46; 76 id. 114. '' Thompson v. Hawks, 14 F. R. 902 (1883), Gresham, D. J. ; ib. 905, note. See Lyon v. Home, L. E., 6 Eq. *655 (1868); Robinson v. Adams, 62 Me. 869 (1S74); Smith's Will, 52 'Wis. 543,(1881); 86 Am. Law Reg. ^23- 81 (1887), cases. ^L. i'n-/o)-ma)'e, toputintoshape:/orma, form. See Informatus. ■* Bdington v. Mut. Life Ins. Co., 5 Hun, 8 (1875): 2N. Y. E. S. 406, § 78. <• United States v. Whittier, 6 Dill. 42 (1878). INFORMATION 543 INFRA whose rights are the objects of its protec- tion.! One method of redressing such injuries as the crown may receive from the subject is by an informa- tion filed in the excliequer by the king's attorney- general. This is a suit for recovering money or other chattel, or for obtaining satisfaction in damages for any personal wrong committed in the lands or other possessions of the crown. It differs from an informa- tion filed in the court of king's bench, in that this is instituted to redress a private wrong by which the property of the crown is affected; that is, is calculated to punish some public wrong, or heinous misdemeanor. It is grounded on no writ under seal, but merely on the intimation of the king's officer, who " gives the court to understand and be informed of " the matter in question; upon which the party is put to answer, and trial is had, as in suits between subject and sub- ject. The most usual informations are those of in- trusion or trespass committed on the lands of the crown; and debt upon any contract for moneys due to the king, or for forfeiture upon breach of a penal statute. There is also an information in rem, when any goods are supposed to become the property of the crown, and no man appears to claim them.^ In the United States, the more familiar informations are informations in the nature of a quo warranto, proceedings against persons alleged to be usui-piug a franchise or oflice ; and qui tarn informations — actions upon penal statutes, part of the penalty being for the use of the plaintiff; and proceedings to recover for- feitures imder the revenue laws. See further Qui Tam ; Warkaktdk; Revenue. 3. A complaint lodged with a magistrate clothed with power to commit to prison, that a person named is guilty of a criminal of- fense. The purpose is to effect a summary conviction of the accused, or a holding to bail for indictment and trial. In the latter case, a paper, called the " infor- mation," containing the details of the complamt, the names of the witnesses, the hearing or hearings had, the judgment, items of costs, etc., is transmitted to the grand jury for use in finding their biU of indictment, and perhaps accompanies the indictment into court before the trial jury.' 4. A criminal proceeding at the suit of the king, without a previous indictment or pre- sentment by a grand jury.< An "indictment" is an accusation found by the oath of a grand jury ; an " information " is the allega- tion of a law-officer.' An information was filed in the king's bench at the mere discretion of the proper law-officer of the gov- ernment, and ex officio. It is sometimes called a " criminal " information.' Prosecution by criminal information as at common law having been used for oppression, the statute of 4 and B William & Mary (l(i9.3), c. 18, was passed, re- quiring express leave of court to institute the pro- ceeding.* Under the laws of the United States, informations are resorted to in cases of illegal exportation of goods,' of smuggling,* and for offenses, not infamous, against the elective franchise.* See further Infamy. Informer. He who prefei-s a charge against another person by way of an infor- mation in a court exercising penal or crim- inal jurisdiction. Common informer. A person who sues for forfeitures created by penal statutes." Whether the information he gives applies to cus- toms, internal revenue, criminal matters, or forfeit- ures for any reason, an informer is one who gives the information which leads directly to the seizure and condemnation, regardless of the questions of evidence furnished, or interest taken in the prosecution.' See Action, 2, Popular; Qui Tam; Moiety; Paruon. INFORMATTJS. L. Instructed; in- formed. Non sum inform.atus. I am not in- formed. A judgment by default, when a defendant's attorney declares he has no in- struction to say anything by way of answer or defense. 8 INTRA. L. Below, beneath, under; within ; during. Opposed, supra. Used alone, refers to a citation or other matter fur- ther on, as in the text or at the foot of the particular page. Whence also ut infra, as (see) below. Infra setatem. Under age. Infra annos nubiles. Within marriage- able years. Infra annum luctus. "Within the year of mourning. See Anttos, Luctus. Infra corpus comitatus. Within the body of the county. See County, Body of. Infra hospitium. Within the inn,— said of property in charge of an innkeeper. Infra sex annos. Within six years. See Annus. ' [1 Bouvier's Law Diet. 245. = 3B1. Com. 261; 4 id. 308. See also 3 Pick. 324; 6 Leigh, 588; 15 Johns. *387. » See Goddard v. State, 12 Conn. *451 (1838). • [4 Bl. Com. 308. » United States «. Borger, 19 Blatch. 253 (1881); 4 Tex. ■See 2 Story, Const. §1780; 3 id. §669; 1 Bish. Cr. Proc. § 141 ; Edwards v. Brown, 67 Mo. 379 (1878) ; State V. Concord, 20 N. H. 296 (1850). » See 4 Bl. Com. 311. • 1 GaU. 3. < 1 Mass. 482, 500; 1 Wheat. 9; 9 id. 381. » Act 31 May, 1870: R. S. 1 1023. «3B1. Com. 161; 2 jd. 437. ' The City of Mexico, 32 F. R. 106 (1887), cases, Locke, Judge. e [3 Bl. Com. 397. INFRINGEMENT 544 INHERIT INFRINGEMENT.! Breaking, infrac- tion, violation; a trespass, transgression, in- vasion. Infringer. One who invades or violates another's right. Infringement, with its inflections is used of a viola- tion of a law, regulation, contract, or common right; more often of the usurpation of an exclusive right. Thus ic has acquired a use almost technical in refer- ence to the law of copyrights, patents, and trade- marks; an infringement of any one of which consisting in violating the exclusive right another person has se- cured to make, sell, or use the thing in question. In determining the question of the infringement of a patent right, the court or jury, as the case maybe, are not to judge about similarities or differences by the names of things, but are to look at the machines or their several devices or elements in the light of v> hat they do, or what office or function they perform, and how they perform it, and to find that one thing is sub- stantially the same as another, /if it performs substan- tially the same function in substantially the same way to obtain the same result, always bearing in mind that devices in a patented machine are different in the sense of the patent law when they perform different functions or in a different way, or produce a substan- tially different result.* Where a defendant, who had been enjoined from using an invention, asked that he might give bond so that he could continue to use the invention and fill contracts therefor, it was held that a bond would not be adequate protection to the complainant's rights. The defendant also asked that the life of the injunc- tion be limited to a day when,' it was alleged, the patent would expire; but the court held that the time being in litigation the question could be disposed of on a motion to dissolve when that time arrived. It was further decided that the court had no authority to re- strain the complainant from publishing the fact that the Injunction had been issued.^ A right of action for the infringement of a patent survives to the personal representative of the patentee, and he may transfer the right to another person. There is no Federal statute of limitations in force respecting infringements committed since June 22, 1874. State statutes of limitations have no applica- tion.* See Copyright; Design, S; Patent, S; Propit, 2; Trade-mare. Compare Interference. INGRESS. The right of entry upon land in a prescribed way. " Egress " is the right of going off the premises to other points in any lawful way. "Regress" is the right of returning in any of these ways. ^ L. in-fringere, to break into, in upon. 2 Union Paper-Bag Machine Co. v. Murphy, 97 U. S. 123 (1877), Clifford, J. Approved, Cantrell v. Wallick, 117 id. 695 (1886), Woods, J. ' Westinghouse Air Brake Co. v. Carpenter, 32 P. R. B45 (1887), Shiras, J. * May V. County of Logan, 30 P. R. 250 (1887), oases, Jackson, J. A grant of a right of " ingress, egress, and regress" is of a right of way from the lociis a quo to the locus ad quern, and from the latter forth to any other spot to which the grantee may lawfully go, or back to the locus a quo.^ INHABITANT.!! Implies a more fixed and permanent abode than "resident; " fre- quently imports many privileges and duties to which a mere resident could not lay claim or be subject.' One domiciled : one who has his domicil or fixed residence in a place, in opposition to a mere "sojourner."* A person may be an inhabitant without being a citi- zen; and a citizen may not be an inhabitant, though he retains his citizenship.^ A legal voter; as, in a statute requiring that a sub- scription in aidvof a railroad must be approved by the inhabitants of a town.* In a figurative sense, a corporation may be said to inhabit the place where its members reside; andsince, in a legal sense, it may be an occupier of land, any such corporation in England has been called an inhab- itant. But aji ordinary business corporation, keeping an ofSce merely as a place for transacting busmess, cannot be said to inhabit the town where such office happens to be.' Inhabitancy. A fixed and permanent abode or dwelling-place for the time being, as contradistinguished from a mere tempo- rary locality of existence. Not the same as "domicil," when applied to successions to personalty.8 See Habitanct. See Belong; Citizen; Domicil; Residence. INHERIT. To take property by descent as an heir. As used by a testator, may refer to lands devised or conveyed by an ancestor." ' Somerset v. Great Western Ry. Co., 46 L. T. 884 2 L. in~habiiare, to dwell in: hafyitwre, to have (one- self) often: habere, to have. * Supervisors of Tazewell Coimty v. Davenport, 40 HI. 306 (1866)? 19 Wend. 13. * Bamet's Case, 1 Dall. *153 (178B) ; Borland v. Boston, 132 Mass. 98-99 (1882). ' "Picquet v. Swan, B Mas. 46 (1828), Story, J. ' Walnut V. Wade, :^03 U. S. 694 (1880). ' Hartford Fire Ins. Co. v. Hartford, 3 Conn. 25 (1819). 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. 88; 87 Me. 369; 3 Gray, 484; 133 Mass. 98-99; 45 N. H. 87; 23 N. J. L. 537; 36 id. 368; 8 Wend. 141; 10 id. 186; 4 Barb. 521 ; 48 id. 51 ; 1 Bradf . 83; Cooley, Const. Lim. 7B5. sjSe Wrlgley, 8 Wend. 140 (1831); 133 Mass. 98; 9 F. E. 229. »De Kay v. Irving, B Denio, 646, 654 (1846); 113 U. S. . INHIBITION 545 INJUNCTION May refer to a distributive share of the proceeds arising from the sale of land.' Disinherit. To direct by wiU that an heir shall receive no part of the testator's estate. See Inofficious. Heritable. Capable of taking, or of pass- ing, by descent. Inheritance. An estate which descends, or may descend, to the heir upon the death of the ancestor ; ^ also, the fact of receiving an estate as heir. Estates of freehold are estates of inheritance, ab- solute or limited; and estates not of inheritance, or for life only." In its popular acceptation, " inheritance " includes all the methods by -which a child or relative takes property from another at his death, except by devise, and includes as well succession as descent. As appKed to personalty, signifies succession.* An estate acquired by inheritance is one that has descended to the heir, and been cast upon him by the single operation of law.^ Shifting inheritance. An inheritance liable to be defeated by the birth of a nearer heir. Does not prevail in the United States, where change of title from the living person is made by deed, rather than by the statute of descent, as in England where the canons of descent are designed to accumulate property in the hands of a few. By the rule of shift- ing inheritances, " If an estate is given to an only child, who dies, it may descend to an aunt, who may be stripped of it by an after-born vmcle, on whom a subsequent sister of the deceased may enter, and who again will be deprived of the estate by the birth of a brother." ' See Descent; Freehold; Heib, 1; Sdocession, 1; Waste, 1. rNHIBITION.' Forbidding; interdic- tion; prohibition. A-wi-it to forbid a judge from proceeding in a cause, or an individual from doing some act. Nearly the same as "prohibition" (g. V.) at common law, and "injunction" in equity.s INITIAIjS. See Idem, Sonans ; Name, 1. Uf JXnfCTIOIf.' A remedial writ, for- merly issued almost exclusively by a court > Eidgeway v. Underwood, 67 Bl. 426 (1873). ' [2 Bl. Com. 201. » 2 Bl. Com. 104, 120. * Homer v. Webster, 33 N. J. L. 413 (1867). » Estate of Donahue, 36 Cal. 332 (1868). « 2 Christ. Bl. Com. 208 n; Bates v. Brown, 5 Wall. 713-19 (1866), cases. ' L. in-hibere, not to have: to keep in, hold in, check. 8 See Termes de la Ley; Wharton's Law Diet.; 6 Q. B. D. 420. " L. injunctio: injungere, to bid, command. (35) of chancery, to restrain the commission of a threatened act, or the continuance of an act. A judicial process operating in personam, and requiring the person to whom it is di- rected to do or to refrain from doing some particular thing.l Unjoin. To prohibit by an injunotion.2 Preliminary injunction. An injunc- tion granted at the outset of a suit brought to restrain the doing of a threatened act, until the rights of the disputants have been determined. ' Called also an interlocutory or provisional injunction, or an injunction pendente lite; and, also, a mandatory or pre- ventive injunction, according as the order is to do or refrain from doing the particular act. Opposed, final injunction: issued upon final adjudication of the rights in ques- tion. Being designed to effect permanent relief, is frequently termed the perpetual injunction. The object of a preliminary or interlocutory injunc- tion is, in general, simply preventive — to maintain things in the condition they are in at the time, until the rights and equities of the parties can be consid- ered and determined after a full examination. Such injunction is never awarded, except when the right or equity of the plaintiff is clear, at least supposing the facts of which he gives prima facie evidence to be ultimately established. All injunctions are generally processes of mere restraint; yet final mjunctions may certainly go beyond this and command acts to be done or undone. They are then called " mandatory; " and often are necessary to do complete justice. But the authorities are clear that an interlocutory or prelim- inary Injunction cannot be mandatory. . . Injunc- tion as a measure of mere temporary restraint is a mighty power to be wielded by one man. .. An in- terlocutory injunction may be granted on an ex parte application; when it is upon notice it is upon ex parte affidavits.' As a preliminary injunction is in its operation somewhat like judgment and execution before trial, it is only to be resorted to from a, pressing necessity to avoid injurious consequences which cannot be re- paired imder any standard of compensation,* 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- arable mjuryis threatened; and the court should be ' High, Injunctions, § 1. a See 31 Alb. Law J. 181, 220, 240, 279 (1885). ' Audenried v. Philadelphia & Beading R. Co., 68 Pa. 375-78 (1871), cases, Sharswood, J. See generally 18 Cent. Law J. 323-26, 343-46 (1884), cases. * Mammoth Vein Coal Co.'s Appeal, 54 Pa. 188 0867), Thompson, J. See also Ballantine v. Harrison, 37 N. J. E. 561 (1883); Stanford v. Lyon, ib. 113 (1883). INJUNCTION 546 INJURY satisfied that in attempting to prevent such injury as to one party it will not bring like injury upon the adverse party.' An injunction is generally «■ preventive, not an afBrmative, remedy. But it is sometimes used in the latter character to cany into effect a court's own de- cree; as, to put into possession the purchaser under a decree of foreclosure of a mortgage.^ Where granted wittout a trial at law, it is upon the principle of pre- serving the property until a trial at law can be had. A strong privia facie case of right must be shown, and there must have been no improper delay. In granting or refusing the writ, the court exercises a careful discrimination. ^ ' A coin-t of equity may substitute a bond of indem- nity for an injunction, if the ends of justice will thereby be promoted: especially if a public interest may suffer by the continuance of an injunction.* An injunction is available to stay proceedings at law; to restrain the transfer of stocks, notes, bills, and other evidences of debt; to restrain the transfer of the possession or title to property; to restrain one from setting up an inequitable defense at law; to re- strain the infringement of a patent, a copyright, a trade-mark; to prevent the removal of property or the evidence of title to property or of indebtedness out of the jurisdiction; to restrain the commencement of proceedings in a foreign court; to restrain an illegal act by municipal officers; to prevent the creation or the continuance of a niiisance; to restrain acts of waste. A court of equity has no power to enjoin the prose- cution of an offense in a court of common law.* But there must be no plain, adequate, and complete remedy at law. The writ will not be granted at all while the rights between the parties are undetermined, except, as seen, where iiTeparable injury will be done. The petition or bill must sufflcientiy appraise the re- spondent as to what duty is required of him.^ An injunction must be respected while in force, al- though improperly granted; but it cannot affect the rights of a person who is not a party or privy to the proceeding. "^ In England, a common injimction has been issued as of course when the defendant failed to enter his ap- pearance or to answer the bill within the prescribed time ; and a, special injunction, by leave of court, upoh proof of the charges and notice to the adverse par- ties. At present, it seems, that any court of that country may issue injunctions of all kinds. ^ See Ade Wagner D. Drake, 31 F. K. 853 (1887); High, Inj. §§ 7-10, cases. • " Walfcley v. City of Muscatine, 6 Wall. 483 (1867). s Parker v. Winnipiseogee, &c. Co., 2 Black, 532 t Northern Pacifle E. Co. v. St. Paul, &o. Co., 4 F. E. 688 (1880). 'Suess V. Noble, 81 F. E. 855 (1887); Re Sawyer, 184 U. S. 310 (1888), cases. , » See E. S. §§ 718-80; 1 Hughes, 607; 3 F. E. 607; 4 Dill. 600; 2 Woods, 681. ' Eoberts v. Davidson, 83 Ky. 283 (1885). » 1 Story, Eq. § 893. INTUBIA. L. Wrong ; injury. A tor- tious act, whether willful and malicious, or. accidental.! Compare Delictum. Ab assuetis non fit injuria. From mat- ters of long standing no injury krises. Acquiescence with a state of things as it has long existed, operates as a waiver or abandonment of one'$ right therein. See Estoppel. Damntun absque injuria. Loss with- out such injury as the law recognizes. See further Damnum. De injuria. Of (his own) wrong. See Replication. Volenti non fit injuria. To him who wills a thing there can be no injury. See further VoLO, "Volenti. INJURY. A privation of legal right ; a wrong ; a tort. See Injltiia. _ A wrong done to a person ; a violation of his right.2 "Injury " is the wrongful act or tort which causes harm or injury to another. " Damages " are allowed as an indemnity to the person who suffers loss or harm from injury. "Injury "denotes the illegal act; "dam- ages," the sum recoverable as amends for the wrong.* Civil injury. A private wrong ; an in- fringement or privation of the private or civil rights belonging to an individual con- sidered as an individual. It affects an absolute or relative right, and i^ com- mitted with force and violence, as in battery and false imprisonment; or without force, as in slander and breach of contract. Public injuries are public wrongs or crimes,* q.v, Eesults from non-feasance, misfeasance, or mal- feasance; and affects the person, personalty, or realty. See Take, 8. Irreparable injury. Injury of such nat- ure that the party wronged cannot be ade- quately compensated in damages, or when the damages which may result cannot be measured by any certain pecuniary stand- ard. 5 All that is meant is, that the injury would be a grievous one, or at least a material one, and not ade- quately reparable in damages. The term does not mean that there must be no physical possibility of re- pairing the injury." > Wright V. Chicago, &c. E. Co., 7 Bradw. 446 (1880). » Parker v. Griswold, 17 Conn. *302 (1845). = North Vernon v. Voegler, 103 Ind. 319 (1885), El- liott, J. ; 25 Am. Law Eeg. 101, 113-rl5 (1886), cases. 4 3 BI. Com. 2, 118. • [Wilson t). Mineral Point, 39 Wis. 164 (1S75): High, Injuno. § 460. • Sanderlin v. Baxter, 76 Va. 306 (1882): Kerr, Injimo. 199; Moore v. Steelman, 80 Va. 340 (1885), cases; Wahl& V. Eeinbach,76 111. 336 (1875). INJUSTICE 547 INN The word " irreparable " Is unhappily chosen to ex- press the rule that an injunction may issue to prevent wrongs of a repeated and continuing character, or which occasion damages estimable only by conjecture and not by any accurate standard.' In the sense in which used in conferring jurisdiction upon courts of equity, does not necessarily mean that the injury complained of is incapable of being meas- ured by a pecuniary standard.^ Literally, anything is irreparable injury which can- not be restored in specie. In law nothing is irreparable which can be fully compensated in damages. To en- title a party to an injunction, he must show that the injury <;omplained of is irreparable because the law affords no adequate remedy.^ Injuriously affect. See Take, 8. See further Admission, 2; Cask, S; Cause, 1; CoN- TiNnODS, S; CoNT^NUANDo; Declaration, 1; Inspec- tion, 2, Of person. Compare Dauaoe; Eedress; Re- lief; Tort; Wrong. nfJUSTICE. See Justice, 1. HfK. See Writing. HfLAND. See Commerce; Exchange, Bill of ; Navigation. In the act of July 2, 1864, § 7, that no procerty seized upon "any of the inland waters of the United States," by the naval forces, shall be regarded as maritime prize, " inland " applies to all waters upon which a naval force could go, other than bays and harbors on the sea-coast.* nrNT. A house where the traveler is fur- nished with everything which he hath occa- sion for whilst upon his way.' A public house of entertainment for all who choose to visit it.* A house kept open publicly for the lodging and entertainment of travelers in general, for a reasonable compensation.' The leading ideas of all the definitions are, that an inn is a house for the entertainment of travelers and wayfarers, at all times and ■ Commonwealth v. Pittsburgh, &c. B. Co., 24 Pa. 160 (1854), cases. " Wilmarth v. Woodcock, 68 Mich. 485 (1885), Champ- lin, J. » Brace Brothers v. Evans et al., C. P. No. 1, Alle- gheny Co., Pa. (April 21, 1888), Slagle, J.: 35 Pitts. Leg. J. 406, cEises. A boycotting case. "The business lost, and which will be destroyed by defendants' acts, cannot be restored. If permitted, plaintiffs may build up a new business, but the old one cannot be replaced. It is gone irreparably." See also Breusohke v. The Furniture Makers' Union, Sup. Ct. Cook Co., 111. (188-); Western Union Tel. Co. v. Rogers, 42 N. J. E. 314 (1886); Emack v. Kane, 3 Ry. Corp. Law J. Sir (1888). • Porter v. United States, 106 U. S. 612 (1882). • Thompson v. Lacy, 3 B. & A. 285 (1820), Bayley, J. • Wintermute v. Clarke, 5 Sandf. 247 (1851), Oakley, C. J.; Walling u. Potter, 35 Conn. 185 (1868); 36 Barb. 462. '2 Kent, 595. seasons, who properly apply and behave with decency, and this as guests for a brief period, not as lodgers or boarders, by contract, for the season. 1 Synonymous with "tavern" and "hotel;" not with "boarding-house," "restaurant," or "lodging- house." ^ Innkeeper. A person who makes it his business to entertain travelers and passen- gers, and provide lodging and necessaries for them, their horses and attendants.' He is a guest at an inn or hotel who is away from home and receives accommodations at the house as a traveler. See further Quest. An innkeeper's liability for a loss to his guest is the same in character and extent as the liability of a common carrier. In the absence of proof that the loss was occasioned by the hand or through the negli- gence of the hotel keeper, or by a clerk or servant em- ployed by him, the guest cannot recover the amount of the loss from the keeper.* His responsibility approximates to insurance when an article (a valise) is entrusted by a guest to his keep- ing.' An innkeeper impliedly engages to entertain all persons who apply; and an action on the case will lie against him for damages, if, without good reason, he refuses to admit a traveler. To frustrate, in that way, the end of the institution, was held to be disorderly behavior. Indeed, for an unreasonable refusal to re- ceive travelers, the proprietor could even be indicted and his inn suppressed.^ The common-law liability of an innkeeper has been generally changed by statute. He is not now liable for money, jewelry, or other valuables, lost or stolen, if he provides a safe for their keeping and duly noti- fies guests thereof. Nor should he be held liable for goods stolen from a room furnished for the display of samples of merchandise.^ He is not liable as an innkeeper for the loss of 1 Bonner v. Welborn, 7 Ga. 307 (1849). » People V. Jones, 54 Barb. 316-17 (1863), cases; Pink- erton V. Woodward, 33 Cal. 596 (1867), cases. ' Bacon, Abr., Inn. B. ; Carter u Hobbs, 12 Mich. 56 (1863); Howth v. Franklin, 20 Tex. 801 (1858). < Elcox V. Hill, 98 U. S. 224 (1878), cases; 66 Ga. 206; 1 Bl. Com. 430; 2 Kent, 892; Story, Bailm. § 470. » Murray v. Marshall, 9 Col. 482 (1886), cases. •3B1. Com. 166; 4 id. 16T. ' Fisher i;,Kelsey, 121 U. S. 383, 385-86 (1887), cases. The plaintiff, a traveling salesman, engaged a room in the Planters' House, city of St. Louis, for the exhi- bition of articles of jewelry. During his occupancy of the room, articles valued at $12,600 were stolen, without neglect in him or in the proprietor of the hotel. Held, that the relation of innkeeper and guest did not exist as to the use made of the sample room; also, that knowledge in the proprietor that the articles were brought into his hotel to be exhibited for sale, did not relieve the owner from serving written notice upon the proprietor, as required by statute in Mis- souri that he had such merchandise in his possession. INNER 648 INOPS COSILII money deposited with Mm for saJe-keeping by a per- son not a guest.' The owner of a steamship is not an innkeeper.' See Board, 1; Hotel; Lien, Common-law; Lodger; Beside; Eestaukant; Eight, 2, Civil Rights Acts; Tavern. Inns of court. Originally, town-houses in which the nobility and gentry resided when in attendance at court; later, schools for the study of law. The name was given to law societies which occu- pied certain " Inns," as Lincoln's Inn, Gray's Inn. The buildings were originally private residences, or hospUia — town-houses. They retained, in their new use, their former names; in them lectures were read, and degrees conferred in the common law.^ See Bencher. INNER. See Barrister. INNOCENCE. Being free from the guilt of crime, fraud, or negligence. Innocent. Not chargeable with fault, fraud, or wrong: as; an innocent purchaser or holder. 1. Where one of two innocent parties must suffer through the fraud or wrong -of a third party, the loss falls upon him who gave the credit; as, where one signs his name to blank paper which is afterward fraudulently made a promissory note.* If one of two innocent parties must suffer for a deceit, it is more consonant to reason that he who " puts the trust and confidence in the deceiver (agent, cashier, etc.) should be the loser, rather than the stranger."" , The loss should fall on him who by reasonable dili- gence could have protected himself.^ He who gave the power to do the wrong must bear the burden of the consequences.^ In the negotiation of commercial paper, a holder is not innocent where there is any circumstance to excite the suspicion of a man of ordinary caution as to a de- fect or irregularity in the paper, or a want of power in any party thereto.^ See Faith, Good; Enowl- EDGE, 1. 2. In the law of criminal procedure, innocence is presumed until the contrary is proven. That is, a rea- sonable doubt of guilt is a ground of acquittal, where, if the probative force of the presumption were ex- cluded, there might be a conviction. This presump- » Arcade Hotel Co. v. Wiatt, 44 Ohio St. 45-46 (1886). As to lien, see 31 Am. Law Eev. 079-95 (18S7), cases. » Clark V. Burns, 118 Mass. 377 (1875), cases. See, in general, 25 Am. Law Reg. 904-6 (1886), cases; 1 Sm. Ld. Cas. 401-6, cases. » See 1 Bl. Com. S3-25; 3 id. 39. , * Bank of Pittsburgh v.' Neal, 23 How. Ill (1859), cases. » Carpenter v. Longan 16 Wall. 373 (1872). • Nat. Savings Bank v. Creswell, 100 U. S. 643 (1879). 'People's Bank v. Manufacturers' Nat. Bank, 101 U. S. 183 (1879). ' 6 Merchants' Bank v. State Bank, 10 Wall. 604, 646 (1870); 34 La. An. 180; 34 N. Y. 30. tion or probative evidence is not applicable in civil cases or in revenue seizures — where the issue depends upon the evidence, but the defendant is. not put to his defense until a prima facie ease is made out by the plaintiff.! Innocence is always presumed, except as against the publisher of a libel." See Doubt, Reasonable; Intent; Libel, 5. INNUENDO. L. With the meaning; thereby meaning. A clause in a pleading explanatory of a preceding word or aver- ment. The same in effect as " that is to say." While used almost exclusively in actions for defamation, it may be inserted in declarations in other actions, to explain the meaning of a written instrument. ■ In a declaration for slander or libel, explains the words uttered; annexes to them their proper meaning.* It cannot enlarge or extend the sense of expressions beyond their usual, natural import, unless something is put upon the record by way of introductory matter with which they can be connected. Then, words which are equivocal or ambiguous, or fall short in their nat- ural sense of importing any defamatory charge, may have fixed to them a meaning certain and defamatory, extending beyond their ordinary import.'* If the words impute an infamous crime punishable by law, an inmtendo, undertaking to state the same in other words, is superfluous; if they do not, an in- nuendo cannot aid the averment^ as it is a clear rule of law that an innuendo cannot introduce a meaning broader than that the words naturally bear, unless connected with proper introductory averments.* See Colloquium; Libel, 5; Slander. INOFFICIOUS. An inofficious will is one in which natural affection and the claims of near relationship have been disregarded.^ The civil law defines an inoliflcious or undutif ul will to be such as substantially departs from the disposition of the estate which would be made in case of intestacy. In America, authority to make a will implies the power to discriminate between, or to disinherit, next of kin; and the fact of such discrimiifation raises no presumption of undue influence.' See Testamentum, Inofficiosum. INOPERATIVE. See Operative, 3. INOPS CONSILII. L. Without legal counsel. Devises by will are more favored in construction than formal deeds, which are presumed to be made 1 Lilienthal's Tobacco v. United States, 97 U. S. 267 (1877); 15 Gray, 416; 2 Whart. Ev. § 1245. 2 1 Greenl. Ev. § 36; 1 Cr. Law Mag. 1; 4 id. 643, 845. » See Whitsett v. Womaok, 8 Ala. 483 (1845). * Beardsley v. Tappan, 1 Blatch. 591 (1860), cases. Nelson, J. ; Young v. Cook, 144 Mass. 41-42(1887), cases. » Pollard V. Lyon, 91 U. S. 283 (1875), cases, Clifford, J. See also 8 Biss. 268; 29 Kan. 618; 50 Mich. 640; 5 Johns. *438; 63 Pa. 418; 59 id. 488; 114 id. 558. » Banks v. Goodfellow, 39 L. J. E., Q. B. 248, 344 (1870), Cockburn, C. J. ' Stein V. Wilzinski, 4 Eedf. 450 (1880). ^\ INQUEST 549 INSANITY with great caution, forethouglit, and advice. In this principle originated executory devises.' INQUEST. An inquiry by a jury, duly impaneled by the proper officer, into any cause, civil or criminal ; also, such jury itself. Compare Inquikt, 2, 3. Coroner's inquest. An inquiry by a coroner, assisted by a jury, into the manner of death of one who has been killed, or died suddenly or in prison. See Coroner. Grand inquest. The grand jury, q. v. Inquest of lands; sheriffs inqviisition. In Pennsylvania, after a sherifiE has levied upon a debtor's realty, he summons a jury of at least six men who ascertain whether the rents and profits of the estate, beyond aU reprises, will be sufficient, within seven years, to satisfy the judgment and costs of suit. The right to the proceeding is frequently waived.' Inquest of ofllee. A method of redress- • ing an injury which the crown (state) receives from a subject. An inquiry made by a sheriff, coroner, escheator, or commissioners specially appointed, concerning any matter that entitles the king to the possession of lands or tenements, goods or chattels; as, reversions accru- ing to the crown, escheats, forfeitures, whether one is a lunatic and what property he has, the fact of a wreck, of treasure-trove, etc. Also known as " oflBce found,"' q. v. nfQUIEY. A seeking: search, investi- gation. Compare Inquest. 1. When there are facts sufficient to put a man of ordinary caution upon inquiry, the means of knowing and knowledge itself are, in legal effect, the same thing. See further Knowledge, 1 ; Notice, 1. 2. In the oath of grand jurors " diligently inquire" means diligently inquire into the circumstances of the charges, the credibility of the witnesses, and, from the whole, judge whether the accused ought to be put upon trial.* 3. A writ by which the sheriff is directed to summon a jury to ascertain the damages due from a defendant against whom there has been an interlocutory judgment, entered either by default or by confession, the amount not being ascertainable by mere calcula- tion.' 13 Bl. Com. 381, 172, H5, 108. 2 See 1 Bright. T. & H. Pr. §§ 1222-36. >3 Bl. Com. 258; 2 Kent, 10, 33. * Eespublica v. Shaffer, 1 Ball. *237 (1788). » See 3B1. Com. 398; Hanley u. Sutherland, 74 Me. 213 (1882), cases; McHenry v. Union Passenger Ey. Co., 14 W. N. C. 404 (Pa., 1884). INQUISITION. See Inquest; Inquiry. INSANITY.! Disorder of mind from disease or defect in the brain ; disease of the mind. 1. In pathology. A condition in which the intellectual faculties, or the moral senti- ments, or the animal propensities, — any one or all of them,— have their free action de- stroyed by disease, whether congenital or acquired. . . A disease of the brain, af- fecting one or more of the mental faculties — intellectual or emotional. ^ A manifestation of disease of the brain, characterized by a general or partial derange- ment of one or more faculties of the mind, and in which, while consciousness is not abolished, mental freedom is perverted, weakened, or destroyed.' By " disease " is here meant structural change due to injury, malformation, malnutrition, non-develop- ment, or other cause.' Insanity is due: I. To defective development of fac- ulties; called idiocy or ivibecility, resulting from con- genital defect, or from an obstacle to development, supervening in infancy. II. To lesion of faculties sub- sequent to development; called mania, intellectual or affective, and either general or partial, or demen- tia, consecutive to mania, o^ to injury to the brain, or else senile. * Most of the definitions, so called, are merely sententious descriptions of the disease. It is impossible to frame a perfectly consistent definition. No words can comprise the differ- ent forms and characters the malady may as- sume. The more common forms are mania, monomania, and dementia; each of which implies a derangement of the faculties of the mind from their normal or natural condition. Idiocy (q. v.) is more properly the absence of mind than derangement of its faculties; it is congenital, and consists not in the loss or de- rangement of the powers, but in the destitu- tion of powers never possessed. Mania is derangement accompanied with more or less excitement, amounting, in cases, to a fury. The individual is subject to hallucinations and illusions ; is impressed with the reality ' L. insaniias, unsoundness of mind: in, not; sanus, healthy, whole, sound. " Tuke (Bucknill & T.), Insanity, ed. 1858, p. 88. 'Hammond, Treatise on Insanity, 265 (1881). See also Ray, Med. Jurisp. of Ins. § 54; Elwell, Malpr. &c. 338. «Eay, Med. Jurisp. of Ins. (1871), § 56. See further 25 Cent. Law J. 195-218 (1887), cases. INSANITY 550 INSANITY of events which have never occun-ed, and of things which do not exist ; and acts more or less in conformity with these particulars. The mania may be general, and afiect all or moat of the operations of the mind ; or par- tial, and be confined to particular subjects — which last constitutes monomania. An ab- sence of reason on one matter, indeed on many matters, may exist, and at the same time the patient exhibit a high degree of in- telligence and wisdom on other mattersj The cases show a want of entire soundness of mind or partial insanity. This form does not necessarily unfit the patient for transacting business on all subjects. Dementia is de- rangement accompanied with general en- feeblement of the faculties. It is character- ized by f orgetfulness, inability to follow any train of thought, and indifference to passing events. There is not usually equal weakness exhibited on all subjects, nor in all the facul- ties. Matters which, previously to the exist- ence of the malady, the patient frequently thought of, are generally retained with greater clearness than less familiar subjects. One faculty, as, the memory, will be greatly impaired, while other faculties retain some portion of their original vigor. The disease is of all degrees, from slight weakness to ab- solute loss of reason. These three forms of insanity, — mania, monomania, dementia, — present themselves in an infinite variety of ways, seldom exhibiting themselves in any two cases exactly in the same manner.l Emotional insanity. The condition of one, in possession of his ordinary reasoning faculties, whose passions convert him into a maniac, and, while in this condition, he com- mits an act in question. Impulsive insanity. Exists when one is irresistibly impelled to the commission of an act.2 To be distinguished from the case where, being in possession of his reasoning faculties, the person is im- pelled by passion merely." See Impulse. Moral insanity. Describes a mind which, while undisturbed by hallucination or illu- sion, and qualified to judge between right and wrong, is yet powerless to control conduct according to knowledge ; as, in kleptomania. ' Hall V. Unger, 3 Abb. U. S. 510-15 (1867), Field, J., Cir. Ct., 9th Cir., Dist. Cal. 2 Mut. Life Ins. Co. v. Terry, 15 Wall. 590 (1872). Consists in a morbid perversion of the feelings, affections or active powers, without any illusion or erroneous conviction impressed upon the understand- ing.' 3. In medical jurisprudence. The law, being neither a medical nor a metaphysical science, has no theory on the subject of dis- eases of the brain. It seeks practical rules which may be administered, without inhu- manity, for the security of society, by pro- tecting it from crime. It holds every man responsible who is a free agent. ' ' Insanity " is really not a legal term. Questions involving sanity arise in determining what degree of unsoundness will make void a mar- riage, disqualify for the duties of an office or trust, render incompetent or discredit as a witness, advise commitment to an asylum, or negative consent in the commission of certain crimes. On these and kindred subjects, no imifoi"m test has been established: each case is to be decided from a consideration, of its own circumstances. 2 In the Revised Statutes and in any act or resolution of Congress passed subsequently to February 1, 1871, the words "insane person" and "lunatic" include every idiot, non compos, lunatic,-and insane person.* In particular, questions as to legal capacity arise in connection with tlie receiving of testimony, with the right to exercise the elective franchise; in proceed- ings to place a person or his property in charge of a committee or trustee; in discussions as to the validity of contracts, and deeds ; upon contests as to the vahd- ity of wills; and with regard to punishment for crime. (1) As to giving testimony. A person affected with insanity is admissible as a witness, if it appears to the court, upon examining him and competent witnesses, that he has sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters he has seen or heard in reference to the questions at issue.* (2) As to exercising the elective franchise. A per- son who is capable of doing ordinary work, and trans- acting business, who knows what money is and its value, makes his own contracts and does his own trad- ing, or a person vacillating and easily persuaded, or a person who has been laboring under some kind of illusion or hallucination, but not so as to incapacitate him for the general management of business, which Illusion or hallucination is not shown to extend to po- litical matters, cannot be denied the privilege of the elective franchise on the ground of a want of mental capacity. 6 (3) As to proceedings de lunatico. The inquiry is as iJorman's Will, 54 Barb. 291 (1869); Prichard, Ins. 16,19,30. See Taylor v. Commonwealth, 109 Pa. 270 (1885). Moral mania, 3 Law Quar. Rev. 339 (If 8"). 2 People u.'Finley, 38 Mich. 483 (1878); United States V. McGue, 8 Curtis, 13 (1851). = R. S. § 1. ■> District of Columbia v. Armes, 107 TT. S. 621 (1882), Field, J. ; Regina v. Hill, 5 Cox, Cr. 0. 266 (1850). ' Clark V. Robinson, 88 111. 499, 502 (1878), Sheldon, J. INSANITY 551 INSANITY to the individual's fitness to manage his own affairs, and to conduct himself with safety to himself and others. See further Lunacy. (4) As to contracts and deeds. The inquiry is, what degree of mental capacity is essential to the proper execution of the act; and was that capacity possessed at the time of the execution. Different degrees are requisite for contracts of a complicated character, and for a single transaction of a simple nature. The law presumes every adult sane, his will stand- ing as the reason for his conduct. Whoever denies his sanity must establish the position. Testimony as to previous or subsequent insanity will not answer, imless the insanity be shown to be habitual, that is, continu- ous and chronic. Habitual insanity, once shown, is presumed to continue.^ The burden of proof is upon him who alleges inca- pacity, unless it is shown that he %vas insane prior to the date of the contract; then the burden shifts, and the person claiming under the contract must show that it was executed during a lucid interval. Partial insanity, in the absence of fraud or imposition, will not avoid a contract, unless it exists with reference to the subject of it at the time of its execution; but in cases of fraud it may be considered in determining whether a party has been imposed upon.^ In a pohcy of insurance, " sane or insane " refers to intended self-destruction, whether the insured was of sound mind or in a state of insanity. To avoid the policy, the insured must have been conscious of the physical nature of his act, and intended by it to cause his death, although at the time he was incapable of judging between right and wrong, and of understand- ing the moral consequences of what he was doing.^ See further Suicide. (5) As to testamentary capacity. A testator must have a sound and disposing mind and memory: he ought to be capable of making his will with an un- derstanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It Is sufficient if he has such a mind and memory as will enable him to understand the ele- ments of which the matter is composed — the disposi- tion of his property in its simple forms. Bodily health may be in a state of extreme infirmity, and he yet have sufficient understanding to direct how his prop- erty shall be disposed of. His capacity may be per- fect to dispose of his property by will, and yet be inadequate to the transaction of other business, as, the making of a contract. . He expresses the pre- viously formed deliberations of his own mind. Sound- ness is to be judged from his conversation and actions at the time the will is made.' 1 Hall V. Unger, 2 Abb. U. S. 513-15 (1867); 8 Conn. 39; 1 Ga. 484; 32 Ind, 126; 56 Me. 846; 58 id. 453; 33 Md. 23; 4 Neb. 115; 23 N. J. E. 509; 9 Gratt. 704. iiMcNett V. Cooper, 13 F. E. 586, 590 (1882), cases; Dexter v. HaU, 15 Wall. 9, 20 (1872), cases; Grifflth v. Godey, 113 U. S. 95 (1885). > Bigelow V. Berkshire Life Ins. Co., 93 U. S. 287 (1876), cases, Davis, J. * Harrison v. Eowan, 3 Wash. 585-86 (1820), Washing- The mere fact that a testator is subject to insane delusions is no sufficient reason why he should be held to have lost his right to make a will, if the jury are satisfied that the delusions have not affected the gen- eral faculties of his mind and cannot have influenced him in any particular disposition of his property.' Want of the requisite soundness is incapable of definition suited to all cases. Each case is largely to be tested by its own facts. ^ The best considered cases put the question upon the basis of knowing and comprehending the nature of the transaction.^ Old age, failure of memory, eccentricity, ignorance, credulity, vacillation of purpose, irritability, passion, prejudice, meanness, and even degrees of idiocy, may all exist along with adequate capacity.* When the due execution of a paper, rational in its provisions and consistent in its details, language, and structure, has been proven, the propounder has made out a prima facie case. The burden of showing that the testator was not of disposing mind then shifts to to the contestant.* See further Influence. (6) As to responsibility for crime. The decisions show " a steady amelioration, in the light of advanc- ing medical knowledge." They have regard to the possession of the faculty of understanding right from wrong. But some, in addition, regard the power of choosing between acts. All well considered cases, since 1843, in both Eng- land and America, are founded upon the doctrine laid down by the fourteen judges in M ^Naghten's Case^^ that " the jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the com- mitment of the act, the party accused was laboring imder such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing ; or, if he did not know it, that he did not know he was doing what was wrong." That rule, however, is not universal. In some States the question is left to the jury, in a general way, whether insanity caused the act; in others, knowledge of right and wrong is the test; and in others, to that test is coupled an inquiry as to the power to control action. ton, J. Approved, 1 Eedf. Wills, 30; 29 Pa. 302,— in many cases. 1 Banks v. Goodfellow, 39 L. J. E., Q. B. 237, 248 (1870), Cockbum, C. J. 2 Thompson v. Kyner, 65 Pa. 878 (1870). = 1 Redfleld, Wills, '124; 18 Cent. L. J. 282-86 (1884), cases; 26 Alb. L. J. 384-86 (1883), oases. ■" See generally 2 N. J. E. 11; 3 id. 581; 6 John. Ch. 158; 87 Ind. 18; 50 Mich. 456; 9 Oreg. 129; 33 Pa. 469; 65 id. 377; 8 W. N. 0. 203. ' Fee V. Taylor, 83 Ky. 261 (18a5), Holt, J.; 18 Cent. Law J. 282-87 (1884), cases. "M'Naghten's Case, 10 CI. & F. 210, 200 (House of Lords), per Tindal, Ld. C. J.; United States u. Holmes, 1 Cliff. 120(1858), Clifford, J.; 2 Steph. Hist. Cr. L. Eng. 158. INSANITY 553 INSOLVENCY The right and wrong test seems to prevail in Ala- bama, California, Connecticut, Delaware, Georgia, Louisiana, Maine, Mississippi, Missouri, Nebraska, New Jersey, New York, North Carolina, Tennessee, Texas, Virginia, Wisconsin, and in the Federal courts.' To that test seems to be added the power to control acts, in Indiana, Iowa, Kentucliy, Massachusetts, Min- nesota, Ohio, and Pennsylvania." While in Illinois, Kansas, Michigan, .and New Hampshire, responsibility- would seem to be left in broad terms to the jury.' The required proof of insanity is either preponder- ance of testimony, or satisfaction beyond a reason- able doubt. The burden to establish a prima facie case rests upon the accused; after which the prosecu- tion may rebut. The defendant is not entitled to the benefit of a reasonable doubt whether he was or was not insane.* See DoDBT, Reasonable. That the accused is more ignorant and stupid than common men, of bad education, and of bad passions and bad habits, does not excuse. Those qualities are but the common causes of crime. ^ To constitute the crime of murder, the assassin must have a reasonably sane mind. " Sound -memory and discretion," in the old common-law definition of mur- der, means that. The condition of mind of an irre- sponsibly insane man cannot be separated from his act. If he is laboring under disease of his mental faculties to such extent that he does not know what he is doing, or does not know that it is wrong, he is wanting in that sound memory and discretion which make a part of the definition of murder. As insanity is the exception, the law presumes sanity. It is for the defendant to prove insanity in the first instance, to show that the presumption is a mistake as far as it relates to him. Mind can only be known by its out- ward manifestations, — the language and conduct of the man. By these his thoughts and emotions are read, and according as they conform to the practice of people of sound mind, who form the large majority of mankind, or contrast harshly with it, we form our judgment as to his soundness of mind. . . Was the accused's ordinary, permanent, chronic condition 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. 57; 26 La. An. 302; 34 id. 186; 67 Me. 574; 3 S. & M. 518; 64 Mo. 591; 4 Neb. 407; 21 N. J. L. 196; 58 N. Y. 467; 75 id. 159; Phil. L. E. 376; 3 Heisk. 348; 40 Tex. 60; 20 Gratt. 860; 40 Wis. 804; mid. 56; 1 Cliff 118. ' 31 Ind. 492; 88 id. 27; 26 Iowa, 67; 41 id. 832; 1 Duv. 224; 7 Met. 600; 13 Minn. 341; 23 Ohio, 146; 4 Pa. 264;, 76 id. 414; 78 id. 128; 88 id. 291; 100 id. 573. 831 m. 386; 11 Kan. 38; 17 Mich. 9; 19 id. 401; 43 N. H. 284; 60 id. 369. See generally 16 Cent. L. J. 288-86 (1883), cases; 17 id. 408-10 (1883), cases; 36 Alb. Law J. 336-31 (1887), cases. < State V. Johnsdn, 91 Mo. 443 (1886); United States v. Eidgeway, 31 F. E. 144 (-1887). As to "reasonable doubt," see also 18 Cent. Law J. 402-6 (1884), cases. 5 United States v. Cornell, 2 Mas. 109 (1820), Story, J. ; Goodwin v. State, 96 Irid. 650 (1888). See also 16 Cent. Law J. 288-86 (1883), cases; 4 Crim. Law Mag. 512-14 (1883), cases; Med. Leg. J., Sept. 1883; Wash. Law E., May, 1888. mind such, in consequence of disease, that he was unr able to understand the nature of his actions, or to distinguish between right and wrong in his conduct? Was he subject to insane delusions that destroyed his power of so understanding? And did this continue down to and embrace the act for which he is tried? If so, he was simply an irresponsible lunatic. The an- swer of the judges in M^Naghteri's Case has not been deemed entirely satisfactory, and the courts have set- tled down upon the question of knowledge of right and wrong as to the particular act, or rather the capacity to know it, as the test of responsibility. . . Distinction must be made between mental and moral obliquity; between a mental incapacity'to understand the distinctions between right and wrong, and a moral indifference and insensibility to those distinctions. Indifference to what is right is not ignorance of it, and depravity is not insanity.' The opinion of a non-professional witness as to the mental condition of a person, in connection with a statement of the facts and circumstances, within his- personal knowledge, upon which that opinion is formed, is competent evidence. In a substantia,l sense, and for every purpose essential to a safe conclusion, the mental condition of an individual, as sane or insane, is a fact, and the expressed opinion of one who has had adequate opportunities to observe his conduct and appearance is but the statement of a fact., Insan- ity is a condition, w,^ich impresses itself as an aggre- gate on the observer. 3 See Delirium; Delusion; Intelligence; Luom In- terval; Will, 1. INSCKIPTIOWS. See Evidence, Sec- ondary. INSENSIBLE. See Sense. INSIMUL. See Computake, Insimul. INSINUATION. Suggestion; informa- tion communicated : as, at the insinuation of the plaintiff, the court made a particular order. INSOLVENCY. Sometimes, the insuf- ficiency of the entire property and assets of an individual to pay his debts — the general and popular meaning. In a more restricted sense, inability to pay debts as they become due in the ordinary course of business. The term is used in the latter sense when traders and merchants are said to be insolvent, also in bank- rupt laws. With reference to persons not engaged in trade and commerce, the term may have a less re- stricted meaning,' Opposed, solvency^ q. v. In the sense of the Bankrupt Act, means that a party, whose business affairs are in question, is unable ' United States v. Guiteau, 10 F. E. 163, 166, 167-68, 182-83 (Jan. 85, 1882), Cox, J. ; note and cases to same, pp. 189-208, by Dr, Wharton. " Connecticut Mut. Life Ins. Co. v. Lathrop, 111 U. S. 618-20 (1884), Harlan, J. ; 1 Whart. & S. Med. J. § 237. s Toof i;. Martin, 13 Wall. 47 (1871), Field, J. See Clarion Bank v. Jones, 81 id. 338 (1874); Cunningham V. Norton, 185 U. S. 90 ( INSPECTION 553 INSPECTION to pay his debts as they become due in the ordinary course of his daily business.^ Insolvency is owing debts in excess of the value of one's tangible property. Without debts there can be no insolvency. Poverty and insolvency are not synon- ymous terms within the meaning of a statute confer- ring the right to administer upon an estato.^ Insolvent.- 1, adj. Not possessing the means with wliich to pay debts in full ; con- cerning one so involved. In the last sense " insolvency " is frequently used. Thus we have insolvent debtor, trader, criminal, cir- cumstances; and insolvent or insolvency laws. 3, n. A person who is not pecuniarily able to pay his debts as they fall due ; also, a per- son whose property, if distributed pro rata among his creditors, would hot be sufficient to pay their claims in full. Insolvency or insolvent laws. Laws passed by the individual States for the distri- bution, among creditors, of the property of persons who are unable to pay their debts in the ordinary course of business. In strictness, "bankrupt" laws apply only to traders or merchants, and "insolvent" laws to all other persons. Insolvent laws 'are banlcrupt laws passed by the States. Bankrupt laws discharge abso- lutely; insolvent laws leave future acquisitions liable. State laws are suspended while a national law is in operation. 8 See Bankruptcy; Cause, 1 (3), Probable; Ciroum- STANCES, 2; Contemplation; Pbefebenoe. INSPECTION". A looking at : examina- tion ; view. Whence inspector, inspectorship. 1. An official examination of articles of food or of merchandise, to determine whether they are suitable for market or commerce.'' " No State shall, without the Consent of the Con- gress, lay any Imposts or Duties on Imports or Ex- ports, except what may be absolutely necessary for executing its inspection Laws." ^ 1 Buchanan v. Smith, 16 Wall. 308 (1872), Clifford, J. ; Wager v. Hall, ib. 690 (1872); Dutcher v. Wright, 94 U. S. 5B7 (1876); May v. Le Clau-e, 18 F. R. 16G (1882); iJe Bininger, 7 Blatch. 264, 273 (1870), cases. '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. 401; 9 Cal. 45; 33 id. 625; 20 Conn. 69; 2 Ind. 67; 88 id. 573; 19 La. An. 183, 197; 4 Cush. 134; 3 Gray, 600; 3 Allen, 114; 133 Mass. 13; 9 N. Y. 594; 15 id. 9, 199; 43 id. 75; 35 Hun, 169; 4 HiU, 652; 57 N. H. 458; 2 N. J. E. 173; 9 id. 467; 12 Ohio, 336; 13 Gratt. 683; 116 E. 0. L. 1090; 2 Bl. Com. 286, 481; 2 Kent, 389. s Sturges v. Crownmshield, 4 Wheat. 195 (1819), Mar- shall, C. J. ; 3 Mas. 160; 12 Wheat. 230. 4 See 2 Woods, 390; 30 Blatch. 303. "Constitution, Art. I, sec. 10, cl. 2. The object of inspection laws is to improve the quality of articles produced by the labor of a country; to fit them for exportation, or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of commerce among the States, and prepare it for that purpose. They form a portion of that immense mass of legislation which embraces everything within the territory of a State, not surrendered to the general government: all of which can be most advantageously exercised by the States themselves.^ The scope of inspection laws is not confined to arti- cles of domestic produce or manufacture, or to arti- cles intended for exportation, but applies to articles imported, and to those intended for domestic use as well." Recognized elements of inspection laws have always been quality of the article, form, capacity, dimen- sions, and weight of package, mode of putting up, and marking and branding of various kinds; all these mat- ters being supervised by a public officer having au- thority to pass or not pass as lawful merchandise, as it did or did not answer the prescribed requirements. It is not necessary that all these elements should co- exist to make a valid inspection law. Quality alone may be the subject of inspection, or the inspection may be made to extend to all of the above matters. These laws are none the less inspection laws because they may have a remote and considerable influence upon commerce. Congress may interpose if a stat- ute, under the guise of an inspection law, goes beyond the limit prescribed by the Constitution. = A State may not require the payment of an assess- ment or fee for each passenger upon an ocean vessel who is inspected to ascertain if he has leprosy, and impose a fine upon the owners of the vessel for non- payment.* See Police, 2. Inspection laws have exclusive reference to per- sonal property; they never apply to free human be- ings. A State cannot make a law designed to raise money to support paupers, to detect or prevent crime, to guard against disease, and to cure the sick, an in- spection law, within the constitutional meaning of that word, by calling it so in the title. . . An in- spection is something which can be accomplished by looking at or weighing or measuring the thing to be inspected, or applying to it at once some crucial test. When testimony is to be taken and examined, it is not inspection in any sense whatever. = 3. In the reception of evidence, a substitu- tion of the eye for the ear. 1 Gibbons v. Ogden, 9 Wheat. 303 (1834), Marshall, C. J.: 8 Cow. 46; 64 Pa. 105. ^Neilson v. Garza, 2 Woods, 290(1876), Bradley, J.; Brown v. Maryland, 12 Wheat. 438 (1837), Marshall, C. J. s Turner o. Maryland, 107 0. S. SS, 54, 51-54, note (1882), cases, Blatohford, J. « People V. Pacific Mail Steamship Co., 8 Saw. 640 (1838), Sawyer, Cir. J. > People ti. Compagnie GSnSrale Transatlantique, 107 V. S. 61-63 a882\ Miller, J.: 20 Blatch. 390; 10 F. R. 357; Story, Const. § 1017; Cooley, Const. Lim. 730. INSPECTION 554 INSTAR Inspection of documents, or of rec- ords. Refers to the right of a party to a suit to inspect and take copies of writings or records, in the possession of his opponent or of a pubh'c ofScer, which are material to the maintenance of his case. In civil practice, independently of the old doctrine of prof ert and oyer, a rule may be granted to compel the production and permit the copying of such papers as are essential to the maintenance of a contested right. But surrender of the documents will not be or- dered. The doctrine applies to public, corporation, and private documents, in which the petitioner has an interest, and which are not of an incriminating- nature. Previous demand must have been made, and the doc- uments must be under respondent's exclusive control. ' See DiscovEBT, 6, Bill of; Produob, 2; Eecord, Nul tiel. Inspection of the person. In an ac- tion for damages for personal injuries, the plaintiff may be required by the court, upon application, to submit his person to an ex- amination for the purpose of ascertaining the character and extent of his injuries. The courts have held in divorce cases, that an ex- amination may be ordered of a defendant alleged to be impotent.^ Trial toy inspection. When, for the greater expedition of a cause, in some point or issue the object of the senses, the judge, upon the testimony of his own sense, decides the point in dispute.' When the fact, from its nature, must be evident to the court either from ocular demonstration or other irrefragable proof, there the law departs from its usual custom, the verdict of twelve men, and relies upon the judgment of the court alone; as, in allega- tion^ of non-age, that plaintiff is dead when one call- ing himself plaintiff appears, that a man is an idiot; and in references to the almanac. But in all these 1 Whart. Ev. §§ 845-47, cases; 25 Law J. 3-7 (1887), = [4 South. Law Eev.'639 (1878), cases. ' Spelled, also, instalment. iPelton V. Bemis, 44 Ohio St. 57 (1886); Eyall v. Prince, 82 Ala. 866 (1886). » Cushman v. Jewell, 7 Hun, 526 (1876); Smith v. Newland, 9 id. 563 (1877); 89 ni. 233; 20 Kan. 137; 27 Mich. 209, 463; 38 id. 94; 41 N. Y. 155; 70 id. 466; 13 Bep. 511. » 3 Chitty, Bl. Com. 287. ' See 3 Kent, 365, 378; 18 Johns. 292. 8 Moffat V. Dickson, 3 Col. 315 (1877). « 1 Bl, Com. 266; 2 id. 466; 3 id. 231. "4B1. Com. 155. " 4 W. N. C. (Pa.) 500. INSTITUTE 555 INSURANCE IlfSTITUTE. 1. To commence: as, to institute an action, proceeding, suit. 2. To appoint: an instituted executor is one chosen by the testator. 3. To establish upon a permanent basis. Whence institutional. Institutes. Text-boolis exhibiting the established principles of jurisprudence ; com- prehensive treatises upon elementary law; commentaries upon law. Institution. A permanent establish- ment, as contradistinguished from an enter- prise of a temporary character.! See Per- manent. Sometimes describes the establishment or place where the business or operations of a society or asso- ciation are carried on; at other times, designates the organized body.'' HTSTIlirCT. 1. To give orders to an agent in relation to the duties of his employ- ment. Section 251, Eev. St., empowei-ing the secretary of the treasury to issue regulations for the government of collectors of revenue, makes a distinction between " instructions " and " regulations," which is inherent in the nature of the two things. An instruction is a direction to govern the conduct of the particular ofQ- cer to whom it is addressed; a regulation affects a class or classes of ofBcers.' 3. To direct a jury as to their duties under ■ the law in a cause about to be submitted to them for a verdict. Binding or peremptory instruction. Directs the kind of verdict the jury should return. The jury may be instructed to And for the defend- ant, where, if the verdict were against him, the coiirt would set it aside.^ The practice saves time and costs; gives the cer- tainty of applied science to the results of judicial in- vestigation; draws clearly the line which separates the provinces of the judge and the jury, and fixes where it belongs the responsibility which should be assumed by the court.' Misinstruet. To charge a jury errone- ously with respect to the law in the case pending before them. See Advise; Charge, 3 (2, c); Jury, Trial by. I Indianapolis v. Sturdevant, 24 Ind. 895 (1865). a Gerke v. Purcell, 85 Ohio St. 244 (1874); Appeal Tax Court V. St. Peter's Academy, 50 Md. 345 (1878). 3 Landram v. United States, 16 Ct. CJ. 86 (1880). 4 Griggs V. Houston, 104 V. S. 553 (1881); Montclau- v. Dana, 107 id. 162 (1882); 93 id. 143; 106 id. 30; 122 id. 411; g McCrary, 268; 17 F. E. 133. 'Merchants' Nat. Bank v. State Nat. Bank, 10 Wall. e37 (1870), Swayne, J. INSTEUMENT. 1. An implement or tool, qq. V. 2. Whatever may be presented as evidence to the senses of an adjudicating tribunal, — a document, witness, or even a living thing produced for inspection.! A means of proof ; the means by which the truth is in fact established, and whether written or unwritten.2 3. Anything reduced to writing: a " writ- ten instrument " or " instrument of writ- ing ; " more particularly, a document of a formal or solemn character. Common descriptive epithets: commercial, negoti- able, sealed and unsealed instruments. "Instruments in writing," associated in a statute with "bonds," "laws," "deeds," and "records," has a restrictive connotation. Independently of such sur- roundings, the expression, by itself, does not compre- hend all written papers, but only written papers of a class. An instrument is " something reduced to writ- ing as a means of evidence." Returns of births, mar- riages, and deaths, to a department of government, are not "instruments." * A generic term for bills, bonds, conveyances, leases, mortgages, promissory notes, wills, and like formal or solemn writings. Scarcely includes accounts, letters in ordinary correspondence, memoranda, and similar writings, with respect to which the creation of evi- dence to bind the party, or the^stablishment of an ob- ligation or title, is not the primary motive.* Instruments will be so construed as to carry into effect the intention of the parties, but there must al- ways be sufficient words to enable the courts to ascer- tain what this intention was. The rule that courts will so construe an instrument as to make it effective, does not mean that they will inject into it -new and dis- tinct provisions. Thus, that an instrument may have effect as a conveyance, it must contain words import- ing a grant.' See Alteration, 2; Caption, 2; Cancel; Date; De- scription; Forgery; Lost, 2; Paper; Presents (1); Peofert; Eedundancy; Eeform; Eepugnant; Seal, 1; Sign; SpEOiAt.TY; Spoliation; Sobscribe; Writing. INSITPFICIENT. See Sufficient. rCfSULT. See Assault; Provocation. INSUBANCE. Making sure, secure, safe: indemnity against loss; a contract to pay money in the event of pecuniary loss from a specified cause. Assurance. Formerly used in the sense of insurance ; is sometimes limited to risks upon lives. Whence " assurer " and " assured." 1 [1 Whart. Ev. § 61^. "IGreenl.Ev. §§3, 806-8. s State V. Kelsey, 44N. J. L. 34 (1882), Beasley, C. J. < [Abbott's Law Diet. ; Hankinson v. Page, 31 F. E. 186 (1887). ' Hummelman v. Mounts, 87 Ind. 180 (1882). INSURANCE 556 INSURANCE There are instances in which "the assured" refers to the person for whose benefit the contract is efEected, and " the insured " to the person whose life is insured. The application of either term to the party for whose benefit the insurance is effected, or to the party whose life is insured, has generally depended upon its collo- cation and context in the policy. * Insurer. The party who engages to make the indemnity. Insured, n. He who is to receive the indemnity : also, the person the continuance of whose life has been made the subject of a contract. The subjects of insurance are property, life, and health. In fire and marine insurance', the subject is property ; in life and accident insurance, the lives, and health or freedom from physical injuries, of human beings. Contracts are also made upon the fidelity of agents and trustees, and upon the honesty of customers as debtors ; upon titles to realty ; upon valuables against theft; upon plate- glass wmdows&gamst breakage; upon sieam- ioilers against explosion ; upon the lives and good condition of domestic animals. There are also other species. The commonest kinds are accident, fire, life, and marine insurance. In general, insurance is applicable to protect men against uncertain events which may in any wise be of disadvantage to them.2 Insurance is a contract whereby one, for a consideration, undertakes to compensate an- other if he shall suffer loss.' A contract of insurance is an agreement, by which one party, for a consideration (usually paid in money, either in one sum or at different times during the continuance of the risk), promises to make a certain pay- ment of money upon the destruction or injury of something in which the other party has an interest.* A contract between A and B, that, upon A's paying a premium equivalent to the haz- ard run, B will indemnify him against a par- ticular event.5 Policies of insurance against fire and marine risks are contracts of indemnity, — the insurer engaging to make good, within 1 Connecticut Mut. Life ins. Co. v. Luchs, 108 XT. S. 504 (188.3), Field, J. ^ See May, Ins. § 73. 2 May, Ins. § 1. * Commonwealth v. Wetherbee, 105 Mass. IGO (1870), Gray, J. Approved, 71 Ala. 443; 30 Kan. 687; 72 Mo. 169. = 2 Bl. Cora. 458; Cummings v. Cheshire County Fire Ins. Co., 55 N. H. 468 (1875), Foster, C. J. Jimited amounts, the losses sustained by the assured in their buildings, ships, and effects. The contract called life assurance is a mere contract to pay a certain sum of money on the death of a person, in consideration of the due payment of a certain annuity for his life. This last species in no way resembles a contract of indemnity, i ' Guaranty insurance is instituted as a sub- stitute for private suretyship, to aid per- sons in obtaining places of trust and respon- sibility, and to protect employers from the unfaithfulness of their employes.^ The word "insurance," in common speech and with propriety, is used quite as often in the sense of contract of insurance, or act of insuring, as in that expressing the abstract idea of indemnity or security against loss.' , A contract of life assurance is not an assurance for a single year, with a privilege of renewal from y,ear to year by paying the, annual premium, but an entire contract of assurance for life, subject to discontinu- ance and forfeiture for non-payment of any of the stipulated premiums. The paynaent of each premium is not, as in fire policies, the consideration for insur- ance during the next following year. It often happens ■ that the assured pays the entire premium in advance, or in five, ten, or twenty annual installments. Each installment is, in fact, part consideration of the entire insurance for life. The annual premiums are an annuily, the present value of which is calculated to correspond with the present value of the amount in- sured, a reasonable percentage being added to the premiums to cover expenses and contingencies. The whole premiums are balanced against the whole ,in- . surance. . . All the calculations of the insurance company are based on the hypothesis of prompt pay- ments. Forfeiture for non-payment is a necessary means of protecting itself from embaiTassment. ^ The insured parties are associates in a great scheme. This associated relation exists whether the company be a mutual one or not. Each is interested in the en- gagements of all; for out of the co-existence of many risks arises the law of average, which underlies the whole business. An essential feature of the scheme is the mathematical calculations referred to, on which the premiums and amounts assured are based. And these calculations, again, are based on the assumption of average mortality, and of prompt payments and Compound interest thereon.* ' Dalby v. The Indian & London Life Assur. Co.,' 80 E. C. L. ♦887 (1854), Parke, B. See also Mutual Life Ins. Co. V. Girard Life Ins. Co., 100 Pa. 180 (1883). 2 May, Ins. §§ 73, 540. ^ Fupke V. Minnesota Farmers' Mut. Fire Ins. Asso- ciation, 29 Minn. 864 (188S), cases; 44 N. J. L. 87. < New York Life Ins. Co. v. Statham, 93 U. S. 30-31 (1876), Bradley, J.; Klein i). New York Life Ins. Co., 104 id. 88(1881); Thompson «. Knickerbocker Life Ins. INSURANCE 557 INSURANCE A policy of marine insurance is a contract of indemnity against all losses accruing to the subject-matter of the policy from certain perils during the adventure. This subject- matter need not be strictly a property in the ship, goods, or freight.! The contract of insurance sprang from the law maritime, and derives all its material rules and inci- dents therefrom. It was unknown to the common law. Its first appearance in any code or system of laws was in the law maritime as promulgated by the various maritime states and cities of Europe. It grew out of the doctrine of contribution and general aver- age, which is foimd in the maritime laws of the an- cient Rhodians. By this law, if ship, freight, or cargo was sacrificed to save the others, all had to contribute their proportionate share of the loss. This division of loss suggested a previsional division of risk; first, among those engaged in the same enterprise; and, next, among associations of ship-ov(mers and shipping merchants. Hence, too, the earliest form of the con- tract was that of mutual insurance. The next step was that of insurance upon premium. Capitalists, familiar with the risks of navigation, were found will- ing to guarantee against them for a small considera- tion or premium paid. This, the final form, was in use as early as the beginning of the fourteenth cen- tury.' Insurable interest. (1) In life insur- ance. Any reasonable expectation of pecun- iary benefit or advantage from the continued life of another creates an insurable interest in such life. Examples are, the interest of a man in his own life, in the life of his v^ife or chQd ; the interest of a vpoman in her hus- band ; a creditor's interest in the life of his debtor ; interest in one's ovrn life for a rela- tive or friend ; the interest of tvro or more in their joint lives for the survivor. The essen- tial thing is, that the policy is obtained in good faith, and not for the purpose of specu- lating upon the hazard of a life in which the insured has no interest.' It is not easy to define with precision what will in all cases constitute an insurable inter- est, so as to take the contract out of the class of wager policies. It may be stated gener- ally, however, to be such an interest, arising from the relations of the party obtaining the insurance, either as creditor of or surety for Co , ib. 252 (1881); Connecticut Mut. Life Ins. Co. v. Home Ins. Co., 17 Blatch. 146-47 (1879); 100 Pa. 180. 1 Lloyd V. Fleming, L. E., 7 Q. B. 303 (1873), Black- burn, J.; 3 Kent, 253. 2 New England Mut. Marine Ins. Co. v. Dunham, 11 Wall. 31-33 (1870), Bradley, J. a Connecticut Mut. Life Ins. Co. v. Schaef er, 94 U. S. 460, 457 (1876), Bradley, J. the assured, or from the ties of blood or mar- riage to him, as will justify a reasonable .ex- pectation of advantage or benefits from the continuance of his life. It is not necessary that the expectation of advantage or benefit should be always capable of pecuniary esti- mation ; for a parent has an insurable interest in the life of his child, and a child in the life of his parent, a husband in the life of his wi.'e, and a wife in the life of her husband. The natural affection in cases of this kind is con- sidered as more powerful, as operating more efficaciously, to protect the life of the insured than any other consideration. But in all cases there must be a reasonable ground, founded upon the relations of the parties to each other, either pecilniary or of blood or alfinity, to expect some benefit or advantage from the continuance of the life of the as- sured.! Otherwise, the contract is a mere wager, by which the party taking the policy is directly interested in the death of the assured. Such policies have a tendency to create a desire for the event. They are, therefore, independently of any statute on the subject, con- demned as being against public policy. For which reasons, a person who has procured a policy upon his own life cannot assign it to a party who has no insur- able interest in his life.' (3) In fire and marine insurance. These being contracts of indemnity, the insured must have some interest in the property at the time of injury.2 But he need not have either a legal or equi- table title. If he has a right in or against the property, which some court will enforce, a right so dependent for value upon the con- tinued existence of the property alone as that a loss of the property will cause him pecun- iary damage, he has an insurable interest.' A right of property is not indispensable. Injury from its loss or benefit from its preservation may be 1 Wamock v. Davis, 104 U. S. 779, 782 (1881). Field, J. Approved, Connecticut Mut. Life Ins. Co. v. Luchs, 108 id. 605 (1883). See also 82 Alb. Law J. 385-88, 403-6 (1885), cases; 2& Cent. Law J. 27 (1887), cases; 2i How. 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- signing life policies, see McCnun d. Missouri Life Ins. Co., 36 Kan. 148 (1887), cases; 18 Cent. L. J. 346-49 (1884), cases; 84 Am. Law Reg. 763-09 (1885), eases. Eights in policy for the benefit of a wife af tir the death of her husband, 27 id. 377-81 (1888), cases. 2 Connecticut Mut. Life Ins. Co. v. Schaefer, ante. ' [Rohrback v. Germania Fire Ins. Co., 63N. Y^64 (1875), Folger, J. See also Buck v. Chesapeake Ins. Co., 1 Pet. 151 (1828); 13 Iowa, 287; 42 id. 13. INSURANCE 558 INSURANCE sutScient. Hence, an agent, factor, bailee, carrier, trustee, consignee, mortgagee, or otlier lien-holder, may insure to the extent of his interest; and by the clause " on account of whom it may concern," for all others to the extent of their interests, where there is previous authority or subsequent ratification.' The owner of an equity of redemption (an equitable interest) has an insurable interest equal to the value of the buildings, whether personally liable for the mort- gage debt 01- not. And so has the holder of a mechan- ic's lien.^ From the nature of the contract of insurance as a contract of indemnity, the insurer, when he has paid the assured the amount of the indemnity agreed, upon, is entitled, by way of salvage, to the benefit of anything that may be received, either from the remnants o£ the goods or from damages paid by third persons for the loss.' The insurance which n person has on property is not an interest in the property itself, but is a collat- eral interest, personal to the insured." Xnsurance agent. An insurance company is re- sponsible for the acts of its agent within the general scope of the business intrusted to his care, and no lim- itation on his power, unloiown to strangers, will bind them.s 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 behalf of an agent of the company, the broker solicits the insurance, he is the agent of the company.^ Insurance company. An association, usually incorported, which makes a business of entering into contracts of insurance. Mutual insurance company. This is com- posed of the persons insured, in their lives or property. They contribute pro rata upon the amount they have insured (and, possibly, a sum per capita, annually or otherwise) to a fund, out of which losses and expenses are paid. 'Hooper v. Eobinson, 98 U. S. 538 (1878), cases, Swayne, J. ; Home Ins. Co. •«. Baltimore Warehouse Co., 93 id. 643 (1876), cases. » 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. «The City of Norwich, 118 U. S. 494 (1886), cases. Contracts as effected by changes of title, 19 Am. Law Eev. 895-915 (1886), cases. After-acquired titles, 21 Cent. Law J. 600-3 (1885), cases. On assigning flre and marinje policies, see 1 Harv. Law Eev. 388-98 (1888), cases. 6 Union Mut. Ins. Co. v. Wilkinson, 13 Wall. 222, 235 (1871), cases. See also 25 Conn. 53, 465, 542; 26 id. 42; 37 N. H. 36; 19 N. Y. 305; 23 Pa. 60, 72; 26 id. 50; 3 Phill. Ins. § 1848; May, Ins. §§ 118-55. » Mohr Distilling Co. v. Ohio Fire Ins. Co., 13 F. E. 74 (1882); May, Ins. § 123. See also Haden v. Farmers', &c. Fire Association, 80 Va. 683 (1885); Kyte v. Com- mercial Union Assurance Co., 144 Mass. 46 (1887). The tbeorj- is that the premiums paid, or to be paid, constitute a fund for the liquidation of losses. They may be paid by note or cash.' Mutuality exists when the members contribute cash or assessable notes, or both, to a common fund, out of which each is entitled to indemnity in case of loss." Stock insurance company. In this the members contribute a capital whjch is liable for losses and expenses, and the insured pay premiums. There are companies which combine both schemes. Insurance loss. The occurrence of a casualty insured against — the loss of a life or lives, the impairment of health, or the de- struction of property, with consequent dam- age. Insurance policy. A contract for insur- ance reduced to writing. Called, briefly, " a policy ; " practicallj', a bond of indemnity. Implies a contract in writing, the usual mode among prudent persons.^ But, unless prohibited by positive regulations, may be by parol.* The contract may be either made or changed by parol. ^ Blanket or floating policy. Is issued to a factor or warehouseman, and intended to cover margins uninsured by other poUcies, or to cover the limited interest of the factor or warehouseman.^ Endowment policy. In one respect, a con- tract payable in the event of a continuance of life ; in another respect, in the event of death before the period specified.'' Interest policy. States or intends that the insured has a real and substantial interest in the thing insured. Opposed, ijbager policy.^ Open or running policy. Enables a mer- chant to insure goods shipped at a distant port when it is impossible for him to be ad- vised of the particular ship upon which they ' State V. Manufacturers' Mut. Fire Ins. Co., 91 Mo. 318 (1886), cases. ! Spruance v. Farmers', &c. Ins. Co., 9 Col. 77 (1885), cases. s Manny v. Dunlap, 1 Woolw. 374(1869); 11 Paige, 556. ' Humphry v. Hartfleld Fire Ins. Co., 15 Blatch. 611 (1879), cases; Eelief Fire Ins. Co. u. Shaw, 94 U. S. 574 (1876), cases. s Cohen v. Continental Fu-e Ins. Co. , 67 Tex. 328 (1887), " Howe Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 541 (1876). ' Brummer v. Cohn, 86 N. Y. 17(1881). s See Sawyer v. Dodge County Ins. Co., 87 Wis. 539 (1876); May, Ins. §33. INSURANCE 559 INSURRECTION are laden, and when, therefore, he cannot name the ship in the policy. The usual words are the cargo " on board ship or ships," with a condition that the particular ship, as soon as known, shall be declared to the underwriter, whose agreement is that the policy shall attach it the vessel is seaworthy. From the uncertainty attending the unknown condition of the vessel, a high rate of premium is demanded.' Paid-up policy. A policy upon which all the annual premiums are paid, or considered as paid, at one time. A policy of life insurance containing a provision that a default in payment of premiums shall not work a forfeiture, but that the sum insm-ed shall then be reduced and commuted to the annual premiums paid, confers the right on the assured to convert the policy at any time, by notice to the insurer, into a paid-up policy for the amoimt of premiums paid.> Time policy. In this the duration of the risk is fixed by definite periods. In a voyage policy the duration is determined by geo- graphical limits. 3 Valued policy. When the parties, having agreed upon the value of the interest insured, to save the necessity of further proof, insert the valuation in the policy in the nature of liquidated damages.* See Value, Equitable. Wager policy. In this the insured party has no interest in the matter insured, only an interest in its loss or destruction. Void, as against public policy or positive law. But precisely what interest is necessary to take a policy out of this category has been the subject of much dis- cussion. In life insurance it is at least essential that the policy be obtained in good faith, and not for specu- lation upon the hazard of a life in which the insured has no interest. In marine and fire insurance, where the insurance is strictly an indemnity, the difference is not so great.* See further Insurable Interest j Wager, 8. Insurance risk or peril. The event or casualty insured against. See Peeil ; Risk. Double insurance. A second insurance upon the same interest, against the same perils, in favor of the same person.^ 1 Orient Mut. Ins. Co. v. Wright, 23 How. 405-6(1859), cases. Nelson, J.; 38 Ohio St. 134; 8 Kent, 258, 272; May, Ins. § 31. ' Lovell V. St. Louis Mut. Life Ins. Co., Ill U. S. 264, 272 (1884), Bradley, J. 'May, Ins. §34. * See 3 Kent, 272; May, Ins. § 30; Wood, Ins. § 41; 88 Ohio St. 134; 100 Mass. 475. ' Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 460 (1876), Bradley, J.; 2B1. Com.460; 8 Kent, 275; May, Ins. §33. • See Turner v. Meridan Fire Ins. Co., 16 F. K. 454, 460-65 (1883), cases; May, Ins. § 440. In such case the policies are considered as one; the insurers are liable pro rata, and are entitled to con- tribution to equalize payments made on account of losses. ' Over insurance. Insurance upon prop- erty in an amount exceeding the value. See Valuation, Over. Premium of insurance. The consid era- tion in a contract of insurance. ' Usually paid in money, in one sum, or at different times during the continuance of the risk. The amount may be secured by a, premium note. See Premium. Re-insurance. Insurance upon an un- derwriter's contracts of insurance.^ Contracts of re-insurance, by which one insurer causes the sum which he has insured to be re-assured to him by a distinct contract with another insurer, with the object of indemnifying himself against his own responsibility, though prohibited for a time in England by statute, are valid by the common law, and have always been lawful in this country ; and in a suit upon such a contract, the subject at risk and the loss thereof must be proved in the same manner as if the original assured were the plaintiff.' When a policy of insurance contains contradictory provisions, or has been so framed as to leave room for construction, rendering it doubtful whether the par- ties intended the exact truth of the applicant's state- ments to be a condition precedent to a binding con- tract, the court should lean against that construction which imposes upon the assured the obligations of a warranty. It is the language of the company which the court is invited to interpret, and it is both reason- able and just that its own words should be construed most strongly against itself.* As to fire and marine insurance, see Aeajidon, 1; Accident; Average; Capture; Conceal, 5; Con- tained; Contribution; Departure, 2; Deviation; Freight; Hazardous; Loss, 2; Occupied; Premises, 3; Befobh; Eepresentation, 1; Seizure, 2; Under- writer; Valuation. As to life insurance, see Declare, 4; Disease; Epi- demic; Forfeiture; Intemperate; Representation, 1; Suicide; True; nS'SURBECTION'. A rising against civil or political authority ; the open and act- ive opposition of a number of persons to the ' Sloat V. Royal Ins. Co., 49 Pa. l4, 18 (1865); 2 Wood, Fu-e Ins. §§ 372-407. 2 See Commercial Ins. Co. v. Detroit Fire & Mar. Ins. Co., 38 Ohio St 15-16 (1882); May, Ins. § 11; PhilUpc, Ins. § 374. » Phoenix Ins. Co. v. Erie Transp. Co., 117 U. S. 323 (1886), cases. Gray, J. ; Sun Mut. Ins. Co. v. Ocean Ins. Co., 107 id. 485, 510 (1882); 2 Kent, 278-79. • First Nat. Bank of Kansas City v. Hartford Ins. Co., 95 U. S. 678 (1877), Harlan, J. ; Grace v. American Cen- tral Ins. Co., 109 id. 282 (1883 1; Moulor v. American Ins. Co., Ill id. 341-42 (1884); Dwight v. Germania Life Ins Co., 103 N. T. 347-48 (1886), cases; Travelers' Ins. Co. v. McConkey, 127 U. S. 666 (1888), cases. INTELLIGENCE 580 INTENT execution of law in a city or a state ; a rebell- ion; a revolt, i See Mob; War. INTELLIGENCE. Discernment; un- derstanding ; knowledge. The possession of intelligence is not a test of sanity ; for with it there may be an absence of power to deter- mine the nature of the act, and its effect upon the sub- jeot.2 INTEMPERATE. If the rule or habit is to drink to intoxication when occasion offers, and sobriety or abstinence is the ex- ception, then the charge of "intemperate habits" is established. It is not necessary that the custom be an every-day rule.^ " Sober and temperate " does not imply total absti- nence from intoxicating liquor. The moderate, tem- perate use of intoxicating liquors is consistent with sobriety.* While in a very clear case a court may assume that certain facts disclose a case of habitual intemperance, or that they warrant the opposite conclusion, in the main these are questions to be submitted to the jury.' A life policy provided that it should be void if the insured "became so far intemperate as to impair health, or induce delirium tremens." The trial court charged that the " impairment of health " was not the indisposition arising from a drunken debauch, but that arising from such frequency of use as indicated an in- jurious addiction to the practice. Held, that it was for the jury to decide whether death was caused by an excessive use of stimulants.^ See Drunkenness; Habit; Intoxicate. INTENDMENT. The correct under- standing or intention of the law; the true meaning or correct policy of a law. INTENT; INTENTION. Design; de- termination; purpose. "Intent" implies purpose only — refers to the quality of the mind with which an act is done. " Attempt " (q. v.) implies an effort to carry intent into execution.' Common intent. The ordinary meaning of words. 1 County of Allegheny v. Gibson, 90 Pa. 417 (1879): Worcester's Diet. 'Ortwein v. Commonwealth, 76 Pa. 42i (1874); Ben- nett V. State, 57 Wis. 86 (1883). " Tatum V. State, 63 Ala. 163 (1879), Stone, J. * Brockway v. Mutual Benefit Life Ins. Co., 9 F. E. 863 (1881). See Knickerbocker Life Ins. Co. v. Foley, 105 U. S. 354 (1881); 122 id. 512; Union Mut. Life Ins. Co. 1). Reif, 36 Ohio St. 599 (1881); 62 Cal. 178; 34 Iowa, 222; 70 N. Y. 605; 9 E. I. 346; 1 F. & F. 736. ' Northwestern Mut. Life Ins. Co. v, Muskegon Bank, 182 U. S. 608 (1887), Miller, J. s^Etna Life Ins. Co. v. Davey, 123 U. S. 743-44 (1887); N. W. Life Ins. Co. v. Muskegon Bank, 132 id. 506 (1887), distinguished. 'Prince V. State, 35 Ala. 369 (1860), cases. Criminal intent. Evil, malicious will expressed in a criminal act. While crime proceeds from a criminal mind, ignor- ance of the law is not a defense. General intent. A purpose to do some- thing in general : as 1, to benefit a class of persons or objects by a charitable devise; 3, to violate law. Opposed, 1, particular intent: an intent, expressed in a will, which cannot be given effect, — see Cy Pkes ; and, 2, specific intent: applied to an act done with a particular design. When an act, in general terms, is indictable, a crim- inal intent need not be shown, unless, from the lan- guage or effect of the law, a purpose to require the existence of such intent can be discovered. To intro- duce into the law the requisite of a guilty mind it must appear that such was the intent of thelaw-maker.i Neglect to discharge a duty, or indifference to con- sequences, is, in cases, equivalent to a specific crim- inal intent.' '* Act " and " intention," in the phrase " die by his own act or, intention," mean the same as "act " alone, for act implies intention.^ A criminal intent and a criminal act make a crime. But here a " specific intent " and a " criminal intent " are not to be confounded: they have nothing in com- •mon except as mental operations. The former deter-, mines the object toward which the act shall be di- rected; the latter that the act so directed shall be done. The former, as part of the crin^inal act, must be alleged and proved as any other portion of the act; the latter is neither alleged nor proved, but inferred from the commission of the act. Thus, a criminal act presumes criminal intent, though the accused was in- toxicated ; but where th& existence of a specific intent is necessary to the act, a degree of drunkenness incom- ' patible with the formation of that intent negatives the act and dispi-oves the crirne.' See further Crime; In- dictment; Malice: PREMEmTATE. Intention is judged of with reference to volimtary action. » When guilty knowledge is an ingredient of an of- fense, evidence may be given of the commission of 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. Intention may be proved inductively by collateral facts; as, in trespass, slander, libel, fraud, adultery, questions of good faith, of prudence, etc' > Halsted v. State, 41 N. J. L. 652, 589-91 (1879), cases, Beasley, C. J. See also United States v. Bayaud, 16 P. K. 383 (1883). = United States v. Thomson, 13 F. E. 245 (1882). ' Chapman v. Eepubliclns. Co., 6 Biss. 340 (1874). « See 3 Greenl. Ev. §§ 13-19; 1 Bish. Cr. L. §§ 488-9'3; Broom, Com. 876, 887-88; 2 Steph. Hist. Cr. Law Eng. 110-13; Commonwealth v. Hersey^ 3 Allen, 179-81 (1861), cases. « Ee Binlnger, 7 Blatch. 267 (1870). •People V. Qibbs, 93 N. Y. 473 (1883); 58 id. 555. ' 1 Whart. Ev. |§ 31-37, cases. INTENT 561 INTEREST At common law, an intention to commit a felony- does not amount to the felony, though it did, by stat- ute, where the intention was to commit treason.^ An intention to commit a fraud has been given the force and effect of fraud.' " Intent to injure and defraud " charges embezzle- ment, forgery, and like offenses.' As men seldom do unlawful acts with innocent in- tentions, the law presumes a wicked intent from any such act; but the prima facie case thus made out may be rebutted by showing the contrary. Thus, in mur- der, malice is presumed from the fact of killing.* Every person of sound mind is presumed to intend the necessary, natural, or legal consequences of his deliberate act.' This presumption may be conclusive, as when the consequences must necessarily follow the act; or be disputable, rebuttable by evidence of want of intention, where the consequences do not necessa- rily follow the act. Thus, where one voluntarily points a loaded pistol at a vital part, the law declares that the natural, inevitable consequence of that act is to kill, provided the pistol be fired; and the individual cannot be heard to say that he had no intent to kill. So, when a debtor procures his property to be taken on legal process, the effect being to defeat or delay the operation of a bankrupt act, he is held to have in- tended that effect." The intention is the turning point in an issue to decide whether a judgment against an in- solvent was obtained with a view to give a preference.' Persons of sound mind and discretion are under- stood to intend, in the ordinary transactions of life, that which is the necessary and unavoidable conse- quences of their acts, as they are supposed to know what the consequences of their acts will be in such transactions. This rule applies in civil and criminal cases. Exceptions may arise; as, where the conse- quences likely to flow from the act are not matters of common knowledge, or where the act or the conse- quence is attended by circumstances tending to rebut the ordinary probative force of the act or to exculpate the intent of the agent — as, that the holder of a warrant to confess judgment could enter judgment to get a preference.' See further Oonsequences. Intention is gathered from all the things done, said, written; in ordinary documents, any words express- ing it may be used. In wills it is " the pole-star of in- terpretation," when no rule of law is violated. In construing writings generally, the courts strive after the intention, putting themselves in the place of the party or parties.' See Abandon; Contkact; Domicil; Grant; Iqno- banoe; Statute; WhIj. 1 4 Bl. Com. 221. s 2 Pars. Contr. 772. = United States v. Taintor, 11 Blatch. 378 (1873). * 1 Greenl. Ev. § 34. » Reynolds v. United States, 98 U. S. 167 (1878). « Be Bininger, 7 Blatch! 268, 277 (1870), cases. ' Little V. Alexander, 21 Wall. BOO (1874). 'Clarion Bank v. Jones, 21 Wall. 337 (1874), Clifford, -Justice. •1 Greenl. Ev. §§ 287-89. As to presumptions, see 30 Alb. Law J. 66-70 (1884), cases; evidence of, 22 Cent. Law J. 271 (1880), oases. (36) INTER. L. In the midst; among; be- tween. Used in Latin phrases, and in compound words; in the latter, the simple words are sometimes separated by a hyphen. Inter alia. Among other things. Inter alios. Among other persons — as to strangers. See Res, Inter, etc. Inter.com. See Interim, Committitur. Inter conjuges. Between husband and wife. Inter pares. Between equals — in capac- ity or opportunity. Inter partes. Between persons — the im- mediate parties to an instrument. See Paes, Inter, etc. Inter rusticos. Among the unlearned. Inter se, or sese. Between themselves. Inter vivos. Between living persons. See Gift. IWTERCOMMON. See Common, Right of. INTEECOXJIISE. Between nations and the States, see Commerce. Between persons, see Access ; Cohabit. rNTEEESSE. L. To be of interest to : interest. See Interest, 1. Interesse termini. Interest in a term. " A bare lease does not vest any estate in the lessee, but only gives a right of entry, which right is his in- terest in the term, or interesse termini." ' The right to the possession of a term at a future time.' See Terminus, 2. Pro interesse suo. To the extent of his interest. A party may intervene in litigation instituted by others, pro interesse suoJ INTEREST. I. Lat. It interests, con- cerns, is of importance to. Interest reipiiblicae ut sit flnis litium. It concerns the commonwealth that there be an end to lawsuits. The general welfare re- quires that litigation be not interminable. No maxim is more firmly established or of more value in the administration of justice. It prevents re- peated litigation between the same parties in regard to the same subject.' It prevents multiplicity of suits." In it originates the rule against circuity of action; ' 2 Bl. Com. 144, 314. a 4 Kent, 106; 72 Mo. 542. 3 106U. S. B65. 'United States v. Throckmorton, 98 U. S. 65 (1878); MUes V. Caldwell, 2 Wall. 39 (1864); 3 Bl. Com. 308. J Stark V. Starr, 94 U. S. 485 (1876); 71 Pa. 177; 2 Pars. Contr. 620. INTEEEST 563 INTEREST and it states the principle upon whioli rest statutes of setrofl and of limitations. For this reason, the prevention of litigation is a valid consideration,' For this reason, also, but one action lies for aU the articles converted by one aot,^ It is the policy of the law to settle in one suit the interests, of all parties in the subject-matter, leaving as little room as possible for multiplicity of actions.' 3. Eng. (1) Concern, advantage, good; share, portion, part, participation.* Concern, advantage, benefit. Such rela- tion to the matter in issue as creates a liabil- ity to pecuniary gain or loss from the event of the suit.5 Opposed, disinterest. In this sense a witness is said to be incompetent, and a judge or juror disqualified, from interest. At common law, a party could testify for himself only when he alone knew the matter to be proved. This was to prevent absolute failure of justice, where his right to relief was shown by other evidence.* An interest disqualifying a witness, at common law, must be legal, real, substantial, present, certain, vested, and ex parte. Interest in the question is not meant, nor inclination arising from relationship, friendship, or other motive. The meaning is that parties legally interested in the result are incompetent. This interest is to be real, not merely apprehended, and in the event of the cause. The true test regards gain or loss by the judgment. The degree is not regarded. A remote, contingent, uncertain interest does not disqualify. One may testify against his interest ; and an offer to release an interest qualifies.' ' Equal interest on both sides does not dis- qualify. Objection for interest must be made before examination. Precisely what interest disqualifies is largely a question for the court. ^ But the common-law rule has been generally abro- gated. The effect of interest upon credibility is now left to the jury to determine.' See further Pabtt, 8; Witness. (2) Right of property in a thing. May denote the property itself, objectively considered.9 A claim to advantage or benefit; any ' 1 Pars. Contr. 438; Smith, Contr. 179. " Phillips V. Berick, 16 Johns. 140 (1819). See also 105 111. 108. ■ 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 Mass. 432; 99 id. 203; 4 Allen, 473; 16 .Gray, 87; 5 id. 197; 1 id. 303; 24 Pick. 61; 22 id. 83; 21 id. 263; 20 id. 290; 15!U 286. ' Fitch V. Bates, 11 Barb. 473 (1851). ' Bouvier, Law Diet. ; Inhabitants of Northampton V. Smith, 11 Mete. 394-96 (1846), oases, Shaw, C. J. •United States v. Clark, 96 U. S. 41 (1877); 3 Bl. Com. 370;,lGreenl. Ev. §.348. ' 1 Greenl. Bv. §§ 386-430, oases. s 1 Whart. Ev. § 419; 30 Hun, B57; 63 Pa. 156; 64 id. 89; 65ici. 126; 38 Tex. 141. » Pierce v. Pierce, 14 E. L 617 (1884). j right, in the nature of property, less than title ; title to a share.' Spoken of as present or vested, contingent or future, chattel or landed, beneficial, reversionary, un- divided, legal, equitable, etc. The quantum depends upon the title in the pos- sessor. As respects realty, this may be freehold or less; as respects chattels, it is Joint, — shared with other persons; or several or sole, — possessed by on© person exclusively, or by more than one, their inter- ests then not being in common. The chief use of the word is to designate some right which cannot or need not be defined with precis- ion. In some connections it includes title; in others, advantages less than title. Sometimes it is added to words of more definite meaning by way of precaution that no conceivable claim shall be omitted; sometimes it signifies an undefined share.' Compare Claiu; De- mans. Community of interest. See Commu- nity, 1. Coupled with an interest. Said of an agency in which the agent has a business in- terest, along with his principal. A power coupled with an interest is where the grantee has an interest in the estate as well as in the exercise of the power. It is deteiTQined to exist or not according as the agent is found to have such estate or not before the execution of the power. If his interest is only a right to share the proceeds which result from the execution of the power, he has no such power. 2 Such a power survives the person giving it, and may be executed after his death. This refers to an interest in the thing itself, a power which accompanies, or is connected with, an interest.' Equitable interest. Such interest as is cognizable in a court of equity. Iiegal in- terest. An interest cognizable in a court of common law. Immediate interest. See Immediate. Interest or no interest. Refers to g. policy of insurance which is to be valid whether the insured has or does not have an insurable interest,* q. v. Opposing interest. At the meeting of the cred- itors of a bankrupt to elect an assignee, if no choice was made, the judge, or, if there was " no opposing interest," the register, appointed a person. This meant, not merely an interest contending by vote for the election of a particular person, but an interest in ' [Abbott's Law Diet. = Flanagan v. Brown, 70 Cal. 259 (1886); Brown v. Pforr, 38 id. 550 (1869); Hartley's Appeal, 53 Pa. 218 (1866); Frink v. Eoe, 70 Cal. 310 (1886). ' Hunt V. Eousmanier, 8 Wheat. 203 (1823), Marshall, C. J.; Walker v. Walker, 125 U. S. 343 (1888); 59 Tex. 399. ♦ See 2 Bl. Com. 460. INTEREST 563 INTERFERENCE opposition to the power of appointment by the reg- ister.' (3) Increase by way of compensation for the use of money ; price or reward for the loan of money ; a premium for the hire of money ; a reasonable equivalent for the tem- porary inconvenience the lender of money may feel by the want of it.^ Compensation allowed by law, or fixed by the parties, for the use or forbearance of money, or as damages for it detention.' A compensation for the loan or use of money.* The measure of damages for money with- held upon contract, s Though interest, eo nomine, may be a creation of statute law, it is allowed as mulct or punishment for some fraud, delinquency, or injustice of the debtor, or from some injury done by him to the creditor.* Simple interest. Interest computed solely upon the principal of the loan. Com- poiind interest. Is reckoned upon the principal for the first period, and thereafter upon both principal and accrued interest; interest upon interest. " Compound interest " signifies the adding of the growing interest of any sum to the sum itself, and then the taking of interest upon this accumulation.' At interest. In ordinary parlance "money at interest " refers more to money loaned than to interest-bearing notes and ac- counts received for property sold. 8 Ex-interest. Said of a sale of stocks or bonds without interest already or soon pay- able. See Ex, 3. With interest. When a note is made payable at a future day, " with interest " at I R. S. § 5084; Be Jaclison, 7 Biss. 287 (1876). ' [2 Bl. Com. 454. ' Brown v. Hiatts, 15 Wall. 185 (1872), Field, J. ; In- surance Co. V. Piaggio, 16 id. 386 (1872), cases; Aurora City V. West, 7 id. 105 (1868), cases; Eedfleld v. Ystaly- fera Iron Co., 110 U. S. 176 (1884); 12 F. R. 864; 2 McCrary, 394; 8 Saw. 189. ' Turner v. Turner, 80 Va. 381 (1885). 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 6a. 501; 3 N. Y. 355; 87 id. 437; 13 Barb. 76; 30 Pa. 341; 34 id. 211. •Rensselaer Glass Factory v. Reld, 5 Cow. 609-18 (1825), cases; Heidenheuner v. Ellis, 67 Tex. 438 (1887), cases. 'Campu Bates, 11 Conn. 501 (1836); Koshkonong v. Burton, 104 U. S. 677 (1881), cases; 105 HI. 558; 34 Pa. 212. « Wasson V. First Nat. Bank of Indianapolis, 107 Ind. 212 (1886). a prescribed rate per annum, such interest does not become due or payable before the principal, unless there is a special provision to that effect.i The rate, or sum, depends upon the usual or gen- eral inconvenience of parting with the loan, and the hazard of losing it entirely. Where the hazard is peculiarly great, as in contracts of bottomry and re- spondentia, policies of insurance, and annuities upon lives, the rates are high. Charging an exorbitant rate, in an ordinary case, is usury,' q. v. As compensation for the use or detention of money, has its origin in the usages of trade, by contract, or by statute. Hence, the rules in regard tu it are as di- versified as the trade, habits of the people, and their peculiar laws may be.^ Spoken of as lawful or legal, and unlawful or illegal, excessive or usurious, as marine or maritime, etc. Follows the principal as an incident. Not chargeable upon claims against the assets of an insolvent from the date of the assignment, or against the estate of a decedent from the day of death; nor upon an advancement; nor upon costs. Where not stipulated as part of a contract, given as damages for detaining money, property, or services, and from the day of default.* In torts, allowance as damages rests in the discre- tion of the jury. Has been allowed upon money ob- tained by fraud or detained by an officer.* The practice of the treasury department of the United States has always been not to pay interest upon claims against the government, without express statutory authorization; and Congress has repeatedly refused to pass any general law for the allowance of interest.' Compound interest is riot recoverable, imless there has been a settlement, or a judgment whereby the ag- gregate amount of principal and interest due is turned into a new principal; or where there is a specific agreement to do so.' If interest upon interest were allowed in all cases, debts would increase beyond all ordinary calculation and endurance; common business could not stand the overwhelming accumulafriofi.* See Bonus; Coupon, Bond; Damages; Deposit, 2; Discount, 2; War. rNTERFEBENCE. Is used in the Re- vised Statutes prescribing proceedings when an Application is made for a patent which 1 Tanner v. Dundee Land Investment Co., 12 P. B. » 2 Bl. Com. 454. » Stokely v. Thompson, 34 Pa. 211 (1869). < United States v. HUls, 4 dm. 621-22 (1878), cases. • Lincoki v. Claflin, 7 Wall. 139 (1868); Frazer v. Bigelow Carpet Co., 141 Mass. 127-28 (1886), cases. • Angarica v. Bayard, 127 U. S. 260 (1888), cases. ' Stokely v. Thompson, Camp v. Bates, sy,pra. 6 Connecticut v. Jackson, 1 Johns. Ch. •14 (1814), Kent, Ch. See generally Selleck v. French, 1 Conn. 33(1814): 1 Am. L. C. 500-35, cases; 25 Cent. La«f J. 293 (1887), cases. INTERIM 564 INTERPRETATION may interfere with a pending application or with an unexpired patent.! gge. Patent, 2, INTEKIM. L. Inter ipsum (tempus), within that time: in the meantime, mean- while ; provisjionally. Ad interim. For the time intervening. Interim eommittitur. In the mean- time, let him be committed; meanwhile be will be kept in prison. Abridged to "inter, com.," has been used for the docket entry in cases "where, until some fiui;her action can be taken or proceeding be had, a prisoner is re- manded to jail ; as, in a case of conviction for murder, when sentence of death is pronounced, to be carried into execution at a distant day. Interim ofBlcer. One appointed when another, the principal, is absent, is incapable of acting, or has not yet been chosen or fully qualified. Sometimes termed the ad interim officer. Such is a provisional assignee, trustee, curator, guardian. Interim order. An order taking effect provisionally, or until further direction; in particular, an order made pending an appeal. laterim receipt. A deposit or protec- tion receipt for money paid on a proposed contract of insurance; also, ad interim re- ceipt. Holds the applicant/secure until his proposal is ac- cepted or rejected. If the risk is not approved, the money is returned, less the premium for the time b^ing.^ INTERLINEATION, See Alteration, 2; Blank, 2. INTEIILOCUTOBY.3 Intervening — happening, accruing, or imposed between the commencement and the termination of pro- ceedings — during the progress of an action at law or of a suit in equity : as, interlocutory — costs, decree, judgment, order, report, qq. v. Compare Final. rNTEBMAERIAGE. See Maekiage. INTERMIXTtrRE. See Accession. INTERN.* To imprison by restricting to a limited territory: as, to intern a political prisoner within a city or upon an island. INTERNAL. See iMEBOYHaviENT ; Rev- enue;. INTERNATIONAL. See Exteadition ; Law; Nation. > See E. S. § 4904; Gold Separating Co. v. Disintegrat- ing Co., 6 Blatch. 310 (1889). ^SeeMay, Ins. |§ 57-59. «L. inter-loqui, to speak in between. 'L. internus; intra, within. INTERNUNCIO. See Ministee, 3. INTERPLEAD. To become parties liti- gant; to determine a dispute by judicial action. Interpleader; bill of interpleader. Where a person, who owes a debt to one of the parties in a suit, but, till the determina- tion of it, he knows not to which one, desires that they may interplead, that he may be protected in making the payment.' The stakeholder prays that the court judge between the claimants, to whom the thing belongs, and that he be indemnified. He alleges that the persons have pre- ferred a claim against him, and for the same thing, that he has no beneficial interest in the matter, and that he cannot determine, without hazard, to which of them the thing or right belongs.^ The plaintiff must have no interest in the thing, no adequate remedy at law, and be ignorant of the rights of the claimants.^ , If the thing claimed is a sum of money, the holder may pay it into court. The bill will not lie if the complainant sets up an interest in the subject-matter of the suit, and the re- lief sought relates to that interest. The relief sought, in a bill in the nature of a bill of interpleader, must be equitable.* i In cases of adverse independent legal titles, the party holding the property must defend himself as well as he can at law.** INTERPRETATIO. L. Expounding, explanation : construction, interpretation, q. V. Ex antecedentitaus et consequent- ibus, fit optima interpretatio. From what things go before and come after, the best explanation is had. A doubtful word or passage may be best understood by refer- ence to the whole instrument — deed, will, contract, statute. Intention may be read in the light of surrounding circumstances.^ Compare NosciTUE, A sociis. INTERPRETATION. Is used inter- changeably with " construction." Opposed, misinterpretation. The act of finding out the true sense of any form of words, that is, the sense their > [3 Bl. Com. 448. = Atkinson v. Marks, 1 Cow. 703 (1883). s Howe Machine Co. v. GifEord, 66 Barb. B99 (1872). See also 2 Paige, Ch. 800; 8 Story, Eq. Oh. XX. * Killian v. Ebbinghaus, 110 U. S. 571 (1884), cases. " )i Story, Eq, S 820; Third Nat. Bank v. Lumber Co., 138 Mass. 410 (1888), cases. See generally McMunn v. Carpthers, 4 Clarke, Pa., 134r^6 (1848); 8 Pomeroy, Eq. §§ 1319-89. » 2 Bl. Com. 379; 1 Greenl. Ey. §§ 201, 437; 71 Pa. 301; 76Va. 714. INTERPRETER 565 INTOXICATE author intended ; and of enabling others to derive from them the same idea.i Properly precedes construction, but does not go be- yond the written text." See furtlier Constbdotioh; Ikterpretatio. INTERPRETER. One who translates the testimony of witnesses speaking a foreign tongue, for the benefit of the court and jury. His re-statement is not hearsay; it may he im- peached for inacciu-acy.^ INTERROGATORY. One of a series or set of written questions prepared by coun- sel for the examination of a party to a suit in equity. A formal question, in writing, for the judicial examination of a party or a witness.* Direct or original interrogatory. An interrogatory exhibited by the party who calls a witness in the first instance. Counter or cross interrogatory: is exhibited by the adverse party. Pishing interrogatory. Inquries after a matter as to wliioh proponent has no right to a discovery. Suggestive interrogatory. Indicates the answer desired. Interrogatories accompany bills in the nature of discovery, proceedings for contempt, attachment in execution against garnishees, commissions to take tes- timony out of court. They are subject to the same rules as examinations in court.' See Chancery, Bill in; Deposition; Discovert, 6; Examination, 9; Question, 1. INTiJRSECT. Ordinarily, to cross.6 A railroad which runs along a turnpike so as to re- quire a change in the traveled path, does not intersect the turnpike. • Beads intersect at their middle lines.' INTER-STATE. See Commerce; Ex- TKADiTioN, 2 ; State, 3 (3). INTERVAL. See Lucid Interval. INTERVENE.8 To file a claim or a de- fense in a suit instituted by or against others. Intervener; intervener. One who ap- plies to be heard as an original party in an- other's suit, he being interested in the result of the suit. > Lieber, Herm. 23; 14 How. Pr. 272; 36 N. J. L. 209; 1 Bi; Com. 59. ' 2 Pars. Contr., 7 ed., 491 (a). '1 Whart. Ev. §493. Pearce v. Mulford, 102 U. S. 118 (1880), Strong,. J. ' Smith V. Nichols, 31 Wall. 119 (1874), Swayne, J. See also Stephenson v. Brooklyn E. Co., 114 U. S. 154 (1885), INVENTORY 567 INVESTIGATION Inventor. He who originally contrives or devises a new article or thing. Inventors "are a meritorious class generally, and ' favored in law. i Acts intended to determine the value, utility, or success of an invention are liberally con- strued." But inventoi-s must comply with statutoiy conditions. They cannot, without cause, hold an ap- plication pending more than two years.^ Exact description is requisite: that the government may know what it has granted, and what will become public property when the patent expires; that licen- sees may know how to use the invention; and that subsequent inventors may know what portion of the field has been occupied.* While an agreement to assign in gross a man's future labors does not address itself favorably to the courts, an inventor may dispose of his invention and bind himself to assign to the purchaser any improve- ments he may thereafter make; and a pecuniary in- terest in the sale of the patent does not seem to be necessary to the validity of such a bargain.* See further Okiginalitt; Patent, 2; Telephone Case; Use, 2, Useful. nrVElTTORY.s A list or schedule of articles of property. A list or schedule, or enumeration of the articles of property, setting out the names of the different articles, either singly or in classes.^ Accounts of the items of property levied upon are called inventories; and insolvents file inventories of assets. ^ more common use is in the administra- tion of the estates of decedents. The representative, at the outset, files an inventory of the assets. This is made by two or more fair-minded persons as sworn appraisers. The representative is then charged with the amount of the inventory. Articles not converted into money, and disbursements, may afterward be al- lowed as credits. The inventory exhibits to creditors, legatees, and distributees, the nature and amount of the estate. The inventory made by a landlord who distrains for rent should be full enough to inform the tenant of the articles distrained, for which he may have a writ of replevin.^ INVENTUS. See Find, 3. INVEST. 1. To clothe with power or authority. See Vest. 2. In common parlance, to put out money on interest. ' Wilson V. Rousseau, 4 How. 674 (1846). 'Jennings v. Pierce, 15 Blatch. 45-46 (1878), cases; Lyman v. Maypole, 19 F. E. 735, 737-44 (1884), cases. ' Planing-Machine Co. v. Keith, 101 U. S. 485 (1879). « Tucker v. Tucker Manuf. Co., 4 Cliff. 400 (1876), Clifford, J.; Parker v. Stiles, 5 McLean, 55 (1849). 'AspinwaU Manuf. Co. u. Gill, 32 F. R. 700 (1887), JBradley, J. ^ L. in-venire, to find. ' [Silver Bow Mining Co. v. Lowry, 5 Monta. 621 (1885). « Richards v. McGrath, 100 Pa. 400 (1882); 59 Wis. 403. To place money so that it will yield a profit; as commonly undei-stood, to give money for other property, i Includes, but is not restricted to, " loan." ' Does not universally import preservation or a per- manent keeping for the purpose of collecting income. " It is not uncommon to have it said that the best in- vestment of money is in paying debts." " Invested. A sum represented by any- thing but money is invested.* Money loaned is invested in a debt against the bor- rower, regardless of the evidence.' Investment. Laying out money in such manner that it may produce a revenue, whether the particular method be a loan or the purchase of stocks, securities, or other property. In common parlance, putting out money on interest, either by way of loan or by the purchase of income-producing prop- erty. •> An investment of money in the business of another is more than a loan: it is a contribution to the capital.' Neglect by a trustee to invest moneys in his bands is a breach of trust, and ground for removal.^ The rule is everywhere recognized that a trustee, when investing property in his hands, is bound to act honestly and faithfully, and to exercise a sound dis- cretion, such as men of ordinary prudence and intel- ligence use in their own affairs. In some jurisdictions, no attempt has been made to establish a more definite rule; in others, the discretion has been confined, by the legislature or the courts, within strict limits." INVESTIGATION. Inquiry by obser- vation, experiment, or discussion. W The Penal Code of New York, § 79, makes it com- pulsory upon persons concerned in bribery to testify "upon any trial ... or investigation" thereof, their testimony not to be used against them in any subsequent proceeding. This, does not refer to an " investigation " in the course of a criminal prosecu- tion, but to any inquiry in the conduct of which per- sons may be called by authority to testify, and hence includes an inquiry directed by the legislature, and conducted by any of its committees.^* > Neel v. Beach, 98 Pa. S26 0879). 'Shoemaker v. Smith, 87 Ind. 127 (1871). ' New England Life Ins. Co. i;. Phillips, 141 Mass. 640, 543 (1886). < Parker Mills v. Commissioners, 23 N. T. 244 (1861). 'Jennings v. Davis, 31 Conn. 140 (1862). See also 2 Cow. 678; 1 Edw. 513; 10 Gill. & J. 299. • Una V. Dodd, 39 N. J. E. 186 (1884), Van Fleet, V. C. See also People v. Utica Ins. Co., 15 Johns. '392 (1818). ' Lyon V. Ziramer, 30 F. R. 410 (1887). 8 Cavender v. Cavender, 114 U. S. 473 (1886), cases. ' Lamar v. Micou, 112 U. S. 465-70 (1884), cases, Gray_ v J. ; New England Trust Co. v. Eaton, 140 Mass. 635 (1886), cases; 25 Am. Law Reg. 217-34 (1886), oases. 10 Wright V. Chicago, 48 111. 290 (1868). " People V. Sharp, 107 N. Y. 427 (1887). INVESTITURE 568 ISSUE HTVESTITURE. A grant of land in feudal ages was perfected by the ceremony of corporal investiture: open and notorious delivery of possesion in the presence of other vassals. Made by putting a vestis, a robe, upon the tenant. Perpetuated memory of tbe transaction at a time wben writing was little known.' See Delivery, 1. INVIOLABLE. See Impair. INVIOLATE. See Jury, Trial by. INVITATION. See Negligence. INVITUS. L. Against the will; unwill- ing. Ab invito. From an unwilling person. In invito. Against a resisting party. Frequently applied to proceedings against a party who opposes the demand made upon him, and also to the judgment or decree made in such case. Taxes are said to be levied in invitum. Invito domino. The owner being un- willing. Said of the " taking " in larceny. INVOICE.2 A document transmitted from the shipper to his factor or consignee, containing the particulars and prices of the goods shipped.' A written account of the particulars of merchandise shipped to a purchaser, factor or consignee, with the value or prices and charges annexed.* Invoice cost or price. Sometimes, the prime price or cost of goods, whether there is an invoice in fact or not.' An invoice is not a bill of sale, tior is it evidence of a sale. It is a mere detailed statement of the nature, quality, and cost or price of things invoiced, and is as appropriate to a bailment as to a sale. It does not of itself necessarily indicate to whom the things are Bent, or even that they have been sent at all. Hence, standing alone, it is never regarded as evidence of title." See Book-Entries. INVOLUNTARY. See Voluntary. IPSE. L. He himself. Jpsud, it itself ; the very same. Ipsissimis verbis. In tha identical words. See Verbum. 1 3 Bl. Com. 53, 311. ' A corruption of envots, Eng. plural of F. envoi, a Bending. s Le Roy v. United Ins. Co., 7 Johns. *354 (1811). < Pipes V. Norton, 47 Miss. 76 (1872), Tarbell, J.; 16 Op. Att.-Gen. 160. » Sturm V. Williams, 6 Jones & S. 343 (1874); 7 Johns. *354. ' Dows V. Nat. Exch, Bank of Milwaukee, 91 U. S. 630 (1875), Strong, J. See 8 Wash. 134, 155; 4 Abb. Ap, Dec. 78. Ipso facto. By the rnere fact. Ipso jure. By the law itself. IRON CLAD OATH. See Oath, Of ofSce. IRREGULAR. See Erroneous; Reg- ular. IRRELEVANT. See Relevant. IRREPARABLE. See Injury. IRRESISTIBLE. See Accident ; Force. IRRESPONSIBLE. See Responsible. IRREVOCABLE. See Revoke. IRRIGATION. See Aqua, Currit, etc. ; Riparian. IS. L. That one ; he. Inflections : id, ei, ejus, eo, qq. v. ISSINT.i Introduced a statement that special matter amounted to a denial — " the general issue with an issint." ^ ISSUABLE. See Issue, 3. IS SUE. 3 1, V. To send out: as, to issue a writ or process. A process is " issued " when made out and placed in the hands of a person authorized to serve it, with a bona fide intent to have it served.* n. A causing to gO forth: as, the issue of an order or writ, the issue of letters patent or letters testamentary. Compare Exire, Exit. Re-issue; re-issued. Refer, in particu- lar, to a continuation of an original patent. Whence re-issuable. Whenever a patent is inoperative or defective, by reason of a defective or insufficient specification or claim of more than the applicant has a right to as new, if the error has arisen by inadvertence, accident, or mistake, and without deceptive intention, the com- missioner of patents, on the surrender of such patent, shall cause a new patent to issue in accordance with the corrected specification. The surrender takes ef- fect from the issue of the amended patent, and runs for the unexpired term of the original patent. But new matter may not be introduced.* The surrender of valid patents, and the granting of re-issued patents thereon, with expanded or equivocal claims, where the original was clearly neither " inoper- ative nor invalid, "'and whose specification is neither "defective or insufBcient," is a great abuse of , the privilege granted, and productive of great injury to the public* A re-issue must be for the same invention, and, in ' Norm. F., thus, so. = Gould, PI. 313; 4 Eawle, 83. " F. issir; L. ex-ire, to go out. * Mills V. Corbett, 8 How. Pr. Thompson, 17 S. 0. 378 (188S). ' R. S. §§ 4916, 4895. • Burr V. Duryee, 1 Wall. 577 V. Campbell, 104 U. S. 371 (1881). (1863); Bragg V. Grier, J. ; James ISSUE 569 ISSUE judgment of law, is only a continuation ot the original patent.' If, on comparing a re-issue with its original, the former appears on its face to be for a different inven- tion from that described or indicated in the latter, it must be declared invalid.' A re-issue can only be granted for the same inven- tion which was originally patented. If it were other- wise, a door would be opened to the admission of the greatest frauds. Claims and pretensions shown to be unfounded at the time, might, after the fapse of a few years, a change of ofiScers in the patent office, the death ot witnesses, and the dispersion of documents, be set up anew, and a reversal of the first decision be obtained without an appeal, and without any knowl- edge of the previous investigations on the subject. New light breaking in upon the patentee as the prog- ress of improvement goes on, and as other inventors enter the field, and his monopoly becomes less and less necessary to the puhhc, might easily generate in his own mind an idea that his invention was really broader than had been set forth in the specification of his pat- ent. It is easy to see how such new light would natu- rally be reflected in a re-issue of the patent, and how unjust it might be to third parties who had kept pace with the march of improvement.^ By a curious misapplication of the law it has come to be principally resorted to for the purpose of enlarg- ing and expanding patent claims. And the evils which have grown from the practice have assumed large proportions. Patents have been so expanded and idealized, years after their first issue, that thousands of mechanics and manufacturers, who had just reason to suppose that the field of action was open, have been obliged to discontinue their employments, or to pay an enormous tax for continuing them.* The patentee has no rights except such as grow out of the re-issued patent. No damages can be recovered for any acts of infringement committed prior to the re-issue. The reason is, the original patent, which is surrendered, becomes extinguished by a re-issue.* Whether there was an " inadvertent " mistake in the specification, is, in general, a matter of fact for the commissioner of patents to decide ; but whether the application for re-issue is made within a reasonable time is a matter of law, which the courts may deter- mine by comparing the re-issued patent with the orig- inal, and, if necessary, with the records in the patent office when presented by the record." A patentee who imposes words of limitation upon his claim, especially so when required by the patent ' Read v. Bowman, 2 Wall. 604 (1804), Clifford, J. ' Ball V. Langles, 102 U. S. 130 (1880), cases. Strong, J. 'Swain Turbine & Manuf. Co. v. Ladd, 102 U. S. 413 (1880), Bradley, J. ; Parker & Whipple Co. v. Yale Lock Co., 123 id. 87, 97 (1887). ' Miller v. Bridgeport Brass Co., 104 U. S. 353 (1881), Bradley, J. » Peck V. Collins, 103 TJ. S. 664 (1880), Bradley, J. See also ib. 791; Heald v. Rice, 104 id. 749 (1881); Wing v. Anthony, 106 id. 147 (1882); Moffltt v. Rogers, i6. 423, 428 (1882), cases; 18 Blatch. 534; 17 F. R. 235. "Mahn v. Harwood, 112 U. S. 3S9-60 (1884), cases, Bradley, J. ; Hoskin v. Fisher, 125 id. 223 (1888), cases. oflHce in taking out his re-issue, is bound by such limit- ations in subsequent suits on the re-issued patents.' See Patent, 2. 3, V. To put Into circulation; to emit, q. V. : as, to issue bank notes, bonds, script. n. All of a class or series of like securities or instruments for the payment of money put forth at one time. 2 3, n. The disputed point or question. 3 A single, certain, and material point, aris- ing out of the allegations or pleadings of the parties, and generally made by an afiSrmative and a negative. < When the parties come to a point which is affirmed on one side, and denied on the other, they are said to be "at issue." All debate is then contracted into a single point, which must be determined in favor of one of the parties.* Issuable. Permitting an issue to be framed : as, issuable matter, or plea ; to plead issuably. Issue, exitus, is the end of all pleadings. It is upon a matter of law or of fact. An issue upon a matter of law is called a demurrer, q. v. An issue of fact is where the fact only, and not the law, is disputed.* When either side denies the facts pleaded by his an- tagonist, he usually "tenders an issue." If the denial comes from the defendant, the form is "And of this he puts himself upon the coimtry ; " if from the plaint- iff, the form is " And this he prays may be inquired of by the country " — a jury. Thereupon the other party subjoins " And the said A does the like." Which done, the issue is said to be " joined," both parties agreeing to rest the fate of the cause upon the truth ot the fact in question.' Thus also in equity, the plaintiff may aver, in reply, that his bill is true, certain, and sufficient, and defend- ant's answer the reverse, which he is ready to prove as the coiu:t shall award; upon which the defendant re- joins, averring the like on his side.* Collateral issue. An issue upon an in- cidental matter.^ Feigned issue. As no jury is summoned to attend a court of equity, a matter of fact, strongly controverted, is directed to be tried at the bar of a court of law, upon a " feigned " issue. This is an action wherein the plaint- ' Crawford v. Heysinger, 123 U. S. 606 (1887), cases, Blatchford, J. ' See 8 Mich. 104; 2 McQrary, 449; 17 Barb. 341. ' Seller v. Jenkins, 97Ind. 438 (1884). [3 Bl. Com. 462. 2 American Dock, &c. Co. v. Trustees of Public Schools, 37 N. J. B. 269 (18S8), Depue, J. = See3 Bl. Com. 305; i id. 340; BB Vt. 9.7; Gould, PI. 282-315. ' See 3 Bl. Com. 305; Gould, PI. 284. * [Wooden v. Waflle, 6 How. Pr. IBl (18B1). and which the defendant controverts by Ms pleadings. I 4, n. Issues: rents and larofits of realty: as, in the expressioh, "rents, issues, and profits." 2 5, n. Heirs of the body; all ones lineal descendants indefinitely: as, in the expres- sions, issue of body, failure of issue, die with- out issue.3 • In wills and deeds of settlement, while " issue " is construed to include grandchildren, "child "or "chil- dren " is notj unless a contrary intent is clear.* "Issue ''•necessarily includes children; but "chil- dren " does not include more remote issue.* In a will, " issue " means, prima facie, the same as "heirs of the body," and in general is to be construed as a word of limitation. But this construction will give way if there be on the face of the instrument suf- ficient to show that the word was intended to have les» extended meaning, and to be applied only to children or to descendents of a particular class or at a particu- lar time."* in a devise, "issue" is a word of purchase or of limitation, as best answers the intention; in a deed, it is always a word of purchase.^ Issue of body. Is more flexible than " heirs of the body ; " courts more readily in- terpret the former as synonymous with " chil- dren " and a mere description of persons, s See Child; Descend; Die, Without issue; Failu|IB^ Heir; Shelley's Case; Tail; Will, 2. ITA. See Lex, Ita, etc. ITEM.9 1. In like manner; after the same manner; likewise; also; again. 3. A particular in an account or bUl. See Account, 1 ; Balance. Formerly used in wills to mark a new paragraph or division after the first paragraph — which, was the im- prim^is.^^ See Also; First. ITINERAIfT. See Circuit. > King V. Chase, IB N. H. 16 0844), Parker, C. J.; 55, id. 593; 58 id. 117, 471; 4 F. E. 390; 18 Blatoh. 457. » 3 Bl. Com. 280; Perot's Appeal, 108 Pa. 256 (1883). sHoUand u Adams, 3 Gray, 193 (1865), Shaw, C. J. ; 140 Mass. 267; 60N.H. 451. « Ingraham v. Meade, 3 Wall. Jr. 43 (1855); Adams », Law, 17 How. 431 (1854). ' Bigelow V. Morong, 103 Mass. 289 (1869). " Taylor v. Taylor, 63 Pa. 483 (1870), Sharswood, J.; Kleppner v. Laverty, 70 id. 73 (1871); Pobins v. Quin- liven, 79 id. 338 (1875) ; Wister v. Scott, 105 id. 300, 214-16 (1884), cases; Keinoehl v. Shirk,, id. (1888), cases; Pal- mer V. Horn, 84 N. Y. 519 (1881), cases; Magnum v. Pie- ster, 16 S. C. 324 (1881); Atkinson v. M'Cormick, 76 Va. ' 2 Washb. E. P., 4 ed., 604: 4 T. E. 299; 13 N. J. 177; 33 Pa. 483; 28 id. 103; 40 id. 65; 100 id. 540. " Daniel v. Whartenby, 17 Wall. 643 (1873). ^ L. ita, so; or, is, id, that same. '» See Hopewell, u. Ackland, 1 Salk. '►239 (1710). 571 JEOPARDY J. J. The initial letter of judge and justice, words frequently abbreviated : J. A. Judge-advocate. J. A. J. Judge -advocate general. J. J. Junior judge. J. P. Justice of the peace, i JJ. Justices or judges. Other abbreviations: A. J., associate judge or justice; C. J., chief justice; F. J., first judge; L. J., law judge; P. J., president judge. See Judqb. JAC. Jacobus : James, king James. JACKASS. See title Horse. JAdTITATIOK".2 An assertion repeated to another's inquiry. Jactitation of marriage. When a, person gave out that he was married to another, whereby common reputation of theii- matrimony might ensue. Upon proof of the wrong, the boaster, made respondent to ahbel in the ecclesiastical court, was enjoined to per- petual silence.^ Under canon law, false claims of right to a church sitting, and of title to certain tithes, were also species of jactitation. The law of Louisiana has allowed an action of jac- titation for slander of title. JACTUS. See Jettison. JAUj.* a house or building used for the purposes of a public prison, or where per- sons under arrest are kept.^ Originally, a place where persons were confined to await further judicial proceeding ; as, a debtor, till he paid his debt, a witness, or an accused person, till the trial came on. A "prison" was for confinement as punish- ment.'' Every county has two gaols; one for debtors,— any house where the sheriff pleases; the other format- ters of the crown,— the county or common gaol.' Jailer. The keeper of a jail. Formerly, a servant of the sheriff. He keeps safely persons committed to him by lawful authority." Jail delivery. A commission to mem- bers of the courts of oyer and terminer and general jail delivery, empowering them to 1 Shattuck V. People, 5 HI. 481 (1843). « L. jaetitare to utter. « [3 Bl. Com. 93; 1 Chitty, Pr. 459. < Formerly, gaol: F. gaole,a, prison: L. 1,. gabiola, gabia, a cage: L. cavea, a cave. « State V. Bryan, 89 N. Car. 533 (1883), Merrimon, J. • [Bouvier's Law Diet. ' [Jacob's Law Diet, « [1 Bl. Com. 340. try and to deliver every person held in pro- visional confinement, when the judges ar- rived at the circuit town. This commission was at first special, issued for in- dividual cases, but in time became general, or for all persons so confined. Under this practice the jails were cleared, and all offenders tried, punished or de- livered, twice each year. A Jail liberties, or limits. A limited region of liberty for a person imprisoned for debt. Equivalent expressions are: "prison bounds," and " rules of the prison, " ^ Compare Intern. See Imprisonment; Prison. JAIflTOR. A person employed to take charge of rooms or buildings, to see that they are kept clean and in order, to lock and un- lock them, and, generally, to care for them.' JEOrAIL.* Mistakes in pleading are helped by the statute of amendments and jeofails: so called because when a pleader perceives a slip in the form of his pleadings and acknowledges the error (jeofaile, I have failed), he may amend it." These statutes did not extend to proceedings in criminal cases. They cut off niceties in pleading which had disgraced the courts, and permitted writs of error only for material mistakes.^ See Amesi>- MENT, 1. JEOPAKDY.' Hazard; danger; peril.* 1. The act of March 3, 1825, § 22, prescribes addi- tional punishment for any person who, in robbing the mail, puts the life of the carrier in jeopardy by the use of a dangerous weapon. Held, that if the carrier's 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 in jeopardy, provided a robbery is committed.'' 2. " Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." '" The constitutions of the several States contain a like provision. "Jeopardy of life or limb" originally referred to trial by battel," g. -u. ' See 4B1. Com. 869; Law Mag. & E., May, 1883; Great Law of Pa. (1683): Linn, 120. 2 See United States v. Knight, 14 Pet. 312, 314 (1840). ' Fagan v. Mayor of New York, 84 N. T. 352 (1881). • J6f'-fal. F. j'ai failli, I have erred, failed. » [3 Bl. Com. 407. •4 Bl. Com. 375, 439; 3 id. 407. See Wilder?). Oilman, 55 Vt. 504 (1883). ' F. j'ai perdu, I have lost; jeu perdu, a lost game, OTJeu parti, a divided game: of equal chance; hence, risk, peril,— Skeat. 6 See United States v. Gibert, 2 Sumn. 38-62(1834), cases, Story, J. ; 4 Wash. 402; 44 Wis. 2S7. » E, S. § 5472; United States v. Wilson, Baldw. 98 (18.30). i» Constitution, Amd. V. Eatifted, Dec. 15, 1791. 11 McFadden v. Commonwealth, 28 Pa. 16 (1853), Black, C. J. JETTISON 573 JOINT " Jeopardy " has, in the Constitution, its technical common-law sense; it applies only to strictly criminal prosecutions. There is no case where a conviction has been held a bar to a citU action for damages.' A person is in legal jeopardy when put upon trial before a court of competent jurisdiction, under au in- dictment or information sufilcient in form and sub- stance to sustain A conviction, and a jury has been charged with his deliverance — that is, empanelled and sworn. ^ A prisoner is in jeopardy when a jury has been em- panelled and sworn to try him upon a capital charge. 3 The discharge ol the jury without the prisoner's consent, after it has been sworn, is allowable only in a. case of absolute necessity; if made without such necessity, it will operate as an acquittal.^ The provision, properly interpreted, refers only to treason and felonies; but it is made to include misde- meanors. It does not extend to proceedings for the recovery of penalties, nor to apjilication for sureties of the peace.* A prisoner who is indicted for murder, convicted of murder in the second degree, and granted a new trial, cannot, on the second trial, be convicted of a higher crime than murder in the second degree.^ Where a new trial is granted to one found guilty of manslaughter under an indictment for mm'der, he may again be tried for murder.* See further Conviction, Former; Punished, Twice; Vexation. JETTISON", or JETSAM.' Any throw- ing overboard ; a throwing overboard for the preservation of ship and cargo ; also, to oast overboard.8 Sometimes designated as jactus or the jactus. Jetsam is where goods, cast into the sea, sink and remain under water." Opposed, flotsam, ligan. See further AvEEAGB, General; Wreck. ' See United States v. Gibert, ante. 2 Cooley, Const. Lim. 327-88, cases. s Hilands v. Commonwealth, 111 Pa. 4 (1886), cases, Mercur, C. J. See also People v. Horn, 70 Cal. IB (1886); 24 Cent. Law J. 563 (1887), cases; 18 id. 43-45, 63-65 (1884), cases ; 17 Am. Law Rev. 735-63 (18B3), cases ; 4 Or. Law Mag. 31-38, 487-508 (1883), cases; 71 Ala. 309; 88 Cal. 467; 41 id. 211; 48 id. 324, 331; 59 id. 359; 1 Idaho, 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, B86; 23 Pa. 12; 12 Vt. 93; L. E., 1 Q. B., 289; 2 Benn. & H., Ld. Cr. Cas. 337. * 1 Bish. Cr. L. § 990. » State V. Belden, 33 Wis. 120, 124 (1873), cases; 1 Bish. Cr. L. § 849; Cooley, Const. Lim. 328. Contra, State v. Behimer, 20 Ohio St. 572 (1870); State v. McCord, 8 Kan. ml (1871), cases; United States v. Harding, 1 Wall. Jr. 187 (1846). • Commonwealth v. Arnold, 83 Ky. 11 (1886), cases. ' O. F. Jett-er, to throw; -son, together. L. jactus, thrown. s Butler v. Wildman, 3 B. & Al. 236 (1820). » 1 Bl. Com. 292; 1 Story, Eq. § 490; 3 Kent, 185; Gib- Bone V. The Jessup, &c. Paper Co., 14 Eep. 644 (1682); 19 How. 162; 10 id. 305; 14 F. E. 59; 19 id. 162. JEWEL. An ornament of the person, such as an ear-ring, a pearl, a diamond, pre- pared to be worn. 1 A watch is not carried as a jewel or ornament, but as an article of ordinary wear, and of hourly use. It is as necessary to a guest at an inn in his room as out of it, in the night as in the day-time.^ Jewelry. In a statute which prohibits peddling jewelry without a license, a term of the largest import, including all articles under the genus. ^ As generally used, includes articles of personal adornment, and imports that the articles are of value in the community where they are used. . . If by a pleasing combination of materials, by an attractive arrangemeut of parts, an article is produced bearing a general resemblance to real jewelry ornaments, and suitable for similar uses, it may fairly be called " imi- tation jewelry." * See Baggage. JEWS. See Sunday. JOBBER. A merchant who purchases goods from importers and sells to retailers.6 JOHN DOE. See Doe. JOINDEK. Joining; coupling; uniting. See Joint. Joinder in denmrrer. Accepting the issue tendered b)' defendant. See Dbmueree. Joinder of actions or causes of action. Stating more than one cause in the same declaration. See Count, 4. Joinder of issue. Acceptance of an issue of fact tendered by one's opponent. See Issue, 3. Joinder of offenses. Incorporating two or more distinct charges of crime in one in- dictment. Joinder .of parties. Uniting two or more persons in one action as co-plaintiffs or as co-defendants. 6 See Party, 2. Mis-joinder. Joining in an action as co- plaintiffs or co-defendants persons who ought not to be joined. Non-joinder. Failure to join persons as co-parties." JOINT. Joined; united; done by or against, or shared between, two or more per- sons in union.8 Compare Co, 3. • Cavendish v. Cavendish, 1 Brown, Ch. *46S (1785). 'Hamaley v. Leland, 43 N. Y. 641 (1871): 4 Hand, 539. ' Commonwealth v. Stephens, 14 Pick. 373 (1833), Shaw, C. J. * Eobbins v. Eobertson, 33 F. E. 710 (1888). 'Steward 11. Winters, 4 Sandf. Ch. *590 (1847): Web- ster's Dict„; L. E., 7 P. C. 104. « See 1 Chitty, PI., 16 Am. ed., 53; Prunty u Mitchell, 76 Va. 170 (1882). ' See Heinlen v. Heilbron, 71 Cal. 560 (1887). ' [Abbott's Law Diet. JOINT 573 JOINTURE Joint and sev^al. Said of an obliga- tion in which all the obligees are to be held either collectively or as individuals. Com- pare Sole. As, a joint, or a joint and several — action or suit, bond, contract or covenant, interest, obligation; a joint — administration, execu- tor or trustee, adventure, creditor, debtor, indictment, judgment or decree, life, party, tenant, trespass, stock company, qq. v. Parties are not said to be joint merely because tbey are ^connected in an interest which is common to them both: they must be so connected as to be in some measure identified. They have not several and respect- ive shares which being united make a whole; but these together constitute one whole, which, whether it be an interest or an obligation, belongs to all. Hence arises an implied authority to act for each other.' A joint and several contract contains distinct en- gagements—that of each contractor individually, and that of all jointly; and different remedies may be pursued upon each. In co-partnerships there is no such several liability.^ Every contract for a joint loan is in equity deemed, as to the borrowers, a joint and several contract — the larger security.' Even without satisfaction, a judgment against one of two or more joint contractors is a bar to an action against the others, within the maxim transit in rem jvdicatam; the cause of action being changed into a matter of record, which has the effect of merging the inferior into the higher remedy.' " A covenant is to be construed as joint or several according to the interests of the parties appearing upon the face of the obligation, if the words are capa- ble of such construction; but it will not be construed as several by reason of several interests, if it be ex- pressly joint."' Where the obligation is joint and several, the ob- ligee may elect to sue the obligors jointly or singly. Hence, if he obtains a joint judgment, he cannot then sue the obligors separately — the contract being merged into a judgment; nor can he maintain a joint action after a recovery in a separate action against one party.' If one of two joint obligees (sureties) dies before the principal, his representative cannot be charged — the obligee having elected to take a joint judgment at law or a joint and several obligation. Equity can give relief only when the joint obligation does not ex- press the meaning of the parties.' S ee Reform. ' 1 Pars. Contr. 21. ! Mason v. Eldred, 6 Waa 235-11 (1867), cases. ' 1 Story, Eq. § 163. •"United States v. Ames, 99 U. S. 41 (1878), oases. "Fami v. Tesson, 1 Black, 315 (18G1): Parke, B.; Cal- vert V. Bradley, 16 How. 596 (1833); Seymour v. West- em B. Co., 106 U. S. 331 (1882), cases. « Sessions v. Johnson, 95 U. S. 347-48 (1877), cases. 'United States v. Price, 9 How. 91-95 (1850), cases; Piokersgill v. Lahens, 15 Wall. 143-44 (1873), cases; 1 Btoiy, Eq. §| 162-64. Persons engaged in committing the same trespaai are joint and several trespassers. Like joint and several contractors, all, or one, may be sued in one action. Where more than one is sued, they may sever in their pleas, and the juiy may find several verdicts. But the acceptance of any one verdict is a satisfaction of all the others, except as to costs, and is a bar to another action.' See Contribution. Before the Supreme Court, where the judgment or decree is joint, all the parties against whom it is ren- dered must join in a writ of error or an appeal, in order, first, that the successful party may enforce the judgment or decree against the parties who do not de- sire a review ; second, that the same question on the same record may be decided at the hearing.^ The parties non-assenting to the review maybe sev- ered. The party whose interest is affected by the al- leged error may carry up the case alone, by sununona and severance.^ Joint-debtor Acts. In most of the States legislative acts have been passed, called Joint-debtor Acts, which, as a substitute for outlawry, provide that if process be issued against several joint-debtors or partners, and served on one or more of them, and the others cannot be found, the plaintiff may proceed against those served, and, if successful, have judgment against all. Such judgments are generally held to bind the com- mon property of the joint-debtors, as well as the sepa- rate property of those served with process; and, while they are binding personally on the former, they are regarded as either not personally binding at all or only prima facie binding on the latter.* JOINTirilE. 1. Originally, an estate limited to both husband and wife; but in common acceptation extends also to a sole estate limited to the wife only, and made in satisfaction of her whole dower. In the lat- ter sense, as defined by Lord Coke, " a com- petent livelihood of freehold for the wife, of lands and tenements ; to take effect, in profit or possession, presently after the death of the husband, for the life of the wife at least." s One mode of barring the claim of a widow to dower is by settling upon her an allowance previous to mar- riage, to be accepted by her in lieu thereof. This is called a jointure.' ' Love joy v. Murray, 3 Wall. 10 (1865); The Atlas, 93 U. S. 315 (1876); Sessions v. Johnson, 95 id. 348 (1877). » Masterson v. Hemdon, 10 Wall. 416 (1870). s Simpson v. Greeley, 20 Wall. 157 (1873), cases; Han- rick V. Patrick, 119 U. S. 163 (1886); 121 id. 632. • Hall V. Lanning, 91 U. S. 108 (1875), Bradley, J. See generally 36 Alb. Law J. 215-49, 265-69 (1887), cases. •2 Bl. Com. 137: 1 Coke, Inst. 36. • 1 Washb. R. P. Ch. VHI. See also Grogan v. Gar- rison, 27 Ohio St. 60 (1875); Vance v. Vance, 21 Me. 364 (1842); 3 Miss. 692; 19 Mo. 469; 3 Meto., Ky., 151; 12 Bush. 513. JOURNAL 574 JUDGE Although once common in England, of little mo- ment since the Dower Act of 3 and 4 Wm. IV (183S), 0. 105, placed the subject of the wife's dower under the control of the husband in all cases where special pro- vision is not made in her favor; which is usually done by marriage settlements. See Settle, 4. Jointures, where recognized, are legal or equitable in nature, and may be made before or after marriage. They have been regulated largely bj' the statute of 87 Hen. vni (1636), c. 10,— the Statute of Uses." See Use, 3, Statute, etc. 3. An estate in joint-tenancy. JOURNAL. A record of the proceedings of a legislative body. "Each House shall keep a Journal of its Proceed- ings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, on the Desire of one fifth of those Present, be entered on the Journal." ' The constitutions of the States contain similar pro- visions. The journal is a public record of which the courts may take judicial notice. If it appears that an act did not receive the requisite vote, or that it was uncon- stitutionally adopted, the court may adjudge it.void.^ No court has assumed to go beyond the proceedings of the legislature, as recorded in its journals, on the question whether a law has been adopted. Many cases follow The King -7. Arundel, Hobart, *109 (1617), adopt- ihg the attested enrollment as conclusive on the ques- tion of passage. But in many States, Ohid among them, the journals, which are required to be kept by the constitution, are regarded. In the time of Hobart the journals were not records, but " remembrances for forms of proceedings to the record " — the enrolled bill.' See Entry, II, 6; Teas amd Nays. JOURNET. Originally, a day's travel; now applied to travel by land from place to place, without restriction as to time, and without the ordinary habits, business, or duties of the person, to a distance from his home, and beyond the circle of his friends or acquaintances ; as, in a statute against carry- ing concealed weapons, except while travel- ing on a journey.5 Travel in the neighborhood of one's home, though in another county, is not contemplated in the Ten- nessee act of 1870.» 13B1. Com. 180. 2 Constitution, Art. I. sec. 5, cl. 3. = Koehler v. Hill, 60 Iowa, 549-63 (1883). cases; Wise 17. Bigger, 79 Va. 280-81 (1884); Cooley, Const. Llm. 135, cases; 2 Story, Const. % 301; 94 V. S. 263; 40 Ark. 209; 25 111. ]81 ; 4S id. 119; 11 Ind. 4M; 26 Pa. 450; 5 W. Va. 85. « State, ex rel. Herron v. Smith, 44 Ohio St. 362-405 (1886), cases pro and con. See also Attorney-General V. Eice, Sup. Ct. Mich. (1887): 26 Am. Law Beg. 304rll, cases; 37 Alb. Law J. 428-83, 449-55 (1888), cases. = Gholson V. State, 53 Ala. 521 (1875), Briokell, C. J. • Smith V. State, 3 Heisk. 511 (1872). Journeyman. A servant by the day — whether the work is done by the day or by the piece. 1 JR. See Junior, 1 ; Name, 1. JUDEX. 1. In Roman law, when a suit was commenced, the parties appeai-ed before the praetor, who made a preliminary exam- ination to find the precise point in contro- versy. From the statements of the parties he constructed a formula, or brief technical statement of the issue. He then appointed a judex to try the case according to the issue, to condemn or acquit the accused, and to make return of his judgment.^ 2. In civil law, a magistrate who conducted the proceedings in a cause from its first in- ception, and finally decided it. 3. In English law an officer who admin- isters justice in a court of law ; a judge. Boni judlcis est ampllare jurisdio- tionem. It is the part of a good judge to enlarge his jurisdiction — in order to prevent a failure of justice. Lord Abinger said " that the maxim of the law is to amplify its remedies, and without usurping jurisdic- tion, to apply its rules to the advancement of substan- tial justice." ^ Lord Mansfield suggested that the reading should be ^^ a-mpliare justitiam." * The idea is about this, that the law provides.a rernedy for every ' wrong.* Coram judice. Before a judge. Coram non judice. Before one not a judge. That is, before a court clothed, or not clothed, with jurisdiction in the matter.* See Jueis- dictiOn. Wemo debet esse judex in propria sua causa. No one should be judge in his own cause. No one can be at once judge and party. In a state of mere nature each individual is his own judge; which is one of the evils society is intended to remedy. The power is now lodged in the civil magis- trate.' JUDGE.8 A public officer whose function is to declare the law, to administer justice in ' Hart V. Aldridge, 1 Cowp. 55 (1774), Mansfield, C. J. ' See Hadley, Eom. Law, 60. » Eussell V. Smith, 9 M. & W. *818 (1848). * Eex V. Phillips, 1 Bur. *304 (1757). 'Eeynolds v. Hoxsie, 6 E. I. 468 (1860); 1 Story, Eq. §§ 49-50; Bacon, Aph. 96; 12 C. B. 413; 17 Mass. 310; Broom, Max. 81, 84, • See Virginia v. Eives, 100 U. S. 316 (1879). '4B1. Com. 8. See 64 Pa. 184^85; 93 N. T. 896; 59 Tex. 447; 6 Q. B. 753; 18 id. 421. ^F- juger: L. jus dicare, to pronounce the right. See Judex. JUDGE 575 JUDGE a court of law, to conduct the trial of causes between litigants according to legal forms and methods. 1 As sometimes used, includes any officer ap- pointed or commissioned to decide a litigated question or questions: as, a justice of the peace, a referee, master, arbitrator. It is in this sense that jurors are said to be " judges of the fact." 2 Frequently interchanged with "justice." See Jus- tice, 3. Originally, the king determined causes; but in time he delegated the power to judges of his courts, which powei'ls merely an emanation of the royal prerogative. A judge is the law's vicegerent; he is the law speak- ing.' Associate judge or justice. A fellow member of a court, learned (or unlearned) in the law, and of equal (or unequal) authority in the decision of causes. Chief or presi- dent judge or justice. The member of a court who presides at its sessions and in its deliberations, directing the business before it, assigning causes to his associates for written opinions of the court, signing orders, and the like. See Learned. The supreme court is composed of a chief justice and eight associate justices; any six of whom consti- tute a quorum.* Various courts of appeal are composed of a chief justice and associate judges or justices. " Associate " does not here import inferiority in any sense. But it is otherwise where the associates are laymen: then, while the laymen are judges, and consult with the jjresident judge, their authority is inferior, and they do not have an equal vote. Law judge. A judge learned in the law ; £18 opposed to a judge, perhaps an " asso- ciate " justice, who has not had legal train- ing. See J. Senior judge. In the Ohio act of April 7, 1883, the judge who has served the longest under his present commission. In Nevada, the senior justice in commission is chief justice, and when the commissions of any two bear the same date, they determine by lot who shall be chief justice. In Kentucky, the judge having the shortest time to serve is styled the chief justice. Sim- ilar provisions are found in California, Georgia, Mich- igan, Mississippi, Missouri, Nebraska, Oregon, and West Virginia, while in nineteen States there is no provision for the selection of a chief justice, no such offtcer seeming to be known, and in the remaining States the matter is either determined by the governor. or by the legislature, or the choice is made by the court itself. In the newer States of the west and south, the policy of short determinate terms is favored, while in many of the older Atlantic States the policy of priority by reason of service is recognized. The policy of Ohio accords with the former class." The duties of a judge, in forming his judgment, are: to gather the materials (facts, law, authorities) on which to form his opinion; to estimate authorities at their proper value as guides; to solve the diflftculties presented; and, aided by his own knowledge and rea- son, and the arguments of counsel, with an unpreju- diced mind to make a decision; and, in so doing, to regard the nature of the case, as new, as within some rule, or as governed by precedent Maxims: a judge is to expound, not to make, the law; must hear both sides; cannot punish an injury done to himself; cannot be a witness or a judge in his own cause; is not to act upon his personal judgment or from a dictate of private will, but to pronounce ac- cording to law and justice; ought ever to regard equity; should have two salts: the salt of wisdom and the salt of conscience. See Discretion, 5. The power and jurisdiction of a judge constitute the office of a judge. The constitutional grant of this po iver is incapable of any limitation but that attached to the grant; and the object is to secure independence in the judiciary. But the aggregate of the duties of a judge maybe diminished by the division of his district or by the election of an assistant." Upon a judge as such no functions can be imposed except those of a judicial nature. Judicial authority, conferred upon a court, is to be exercised by the judges organized as a court.* All judicial officers are exempt from liability tor their judicial acts done within their jurisdiction; and judges of subordinate and general authority are ex- empt even where the judicial act is in excess of their jurisdiction, unless, perhaps, when done maliciously or corruptly. Judges of linlited and inferior authority are protected when they act within their jurisdiction.' It is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, should be free to act upon his own convictions, without ap- prehension of personal consequences to himself. This rule exists for the benefit of the public, and was estab- lished to secure the independence of the judge. Should •See Opinion of Commission, 57 N. T. 405 (1874); 8 Heisk. 650. = See 4 Call. *339; 3 Yates, 314; 3 Cush. 584. " [1 Bl. Com. 267; 3 id. 34. «See3Bl. Com. 395-96. JUDGMENT 577 JUDGMENT Domestic judgment. A judgment ren- dered by a court at the domicil of the parties. Foreign judgment. That rendered under some other and independent or foreign juris- diction. An action of debt lies upon a foreign judgment.' At common law such a judgment was pHvia facie evi- dence of tlie debt adjudged to be due. It maybe shown that the court had no jurisdiction or that the judgment was obtained by fraud. A domestic judg- ment, at common law, could not be collaterally im- peached, if rendered in a court of competent jurisdic- tion ; but oidy by a writ of error, a, petition for a new trial, or a bill in chancery.^ Judgments recovered in one State, when proved in the courts of another, differ from judgments recov- ered in a foreign country in no other respect than that of not being re-examinable upon the merits, nor im- peachable for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and of the parties.^ Though the judgment be set out in full in the com- plaint, the action, whether debt or assumpsit, will not be held to be brought on such judgment as a record, if the complaint alleges that by reason of the judgment the defendant became indebted.* See Faith, Full, etc. ; Law, Foreign. Pinal judgment. Such judgment as at once puts an end to the action by declaring that the plainti£E has or has not entitled him- self to the remedy for which he sues. In- terlocutory judgment. Is upon some intermediate plea, proceeding, or default, and does not finally determine or complete the suit. The "interlocutory judgment" most frequently spoken of is that incomplete judgment whereby the right of the plaintiff is established, but the quantum of damages is not ascertained.* A "final judgment" at once puts an end to the ac- tion, by determining that the plaintiff is, or is not, entitled to recover, and the amount in debt or damages to be recovered.' No judgment is final which does not terminate the litigation between the parties.' A motion for a new trial prevents a judgment from 1 3 Bl. Com. 160, 438. 2 Michaels v. Post, 81 Wall. 436 (1874), cases; Thomp- son V. Whitman, 18 id. 461-69 (1873), cases; Glass v. Blackwell, 48 Ark. 55-56 (1886), cases; 17 Am. Law Eev. 411-22 (1383), cases; 18 Cent. Law J. 203-6 (1884), cases; Columbia Jurist, 1886: 3 Kan. Law J. 178, 193 (1886), cases; E. S. § 905; 21 W. Va. 116. a Hanley v. Donoghue, 116 U. S. 4 (1886), cases. «MeUinii. Horlick, 31 F. B. 867-88 (1887), cases. ' 3 BI. Com. 398, 396-97. » Mahoning County Bank's Appeal, 33 Pa. 160 (1858). 'St. Clair County v. Lovingston, 18 Wall. 628 (1873); ib. 588; Weston v. City Council, 2 Pet. *464 (1829); United States v. Abatoir Place, lOF U. S. 163 (1882), cases; 118 id. 48. (37) becoming efiPectual as a final judgment, until the date of the order refusing the new trial. ^ All that is required is that the judgment should de- termine the issues involved in the action. It may be that some future order may become necessary to cany the judgment into effect.^ A judgment being the final determination of the rights of the parties in an action, it must be final — that is, it must settle the matter which it purports to conclude. The reasons annoimced form no part of it.^ A judgment is '"interlocutory" when given in the course of a cause before final judgment.* See further Decree, Final. A judgment for damages, estimated in money, is sometimes called by text writers a specialty or " con- tract by record," because it establishes a legal obliga- tion to pay the amount recovered ; and, by a fiction of law, a promise to pay is implied where such legal ob- ligation exists. But this fiction cannot convert a transaction wanting the assent of parties into one which necessarily implies it, as, a judgment for a t-ort.^ In some decided cases, and in text books, judges and jurists have spoken of judgments as " contracts." They have been so classified with reference to the remedies upon them. But, strictly, as said by Lord Mansfield, in 1764, " a judgment is no contract, nor can be considered in that light: tov judicium redditur in invitum" — consent and consideration are both wanting.^ The judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar; or, as evi- dence, conclusive between the same parties, upon the same matter, directly in question in another court. The judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose. But the judgment of neither a court of concurrent nor of exclusive jurisdiction is evidence of any matter which came collaterally in question, though within the jm'isdiction; nor of any matter indirectly cognizable; nor of any matter to be inferred by argument from the judgment.' A judgment is valid upon its face, if It appears that the court had jurisdiction of the subject-matter and 1 Brown v. Evans, 18 F. R. 56-61 (1883), cases. * Perkins v. Sierra Nevada Co., 10 Nev. 411 (187(i), cases. See also 3 Ala. 226; 9 Ark. 352; 1 Cal. 28; 6 Conn. 61; 21 id. 284; 5 Fla. 450; 40 Ga. 320; 9 Iowa, 46; 24 Pick. 300; 3 Wend. 35; 9 Oreg. 441; 37 Tex. 390. 3 Butt V. Hemdon, 36 Kan, 372 (1867), cases, Horton, Chief Justice. * Nacoochee Hydraulic Mining Co. v. Davis, 40 Ga. 320 (1869); Mora v. Sun Mutual Ins. Co., 13 Abb. Pr. 307 (1861). s Louisiana v. Mayor of New Orleans, 109 U. S. 289 8 O'Brien v. Young, 95 N. Y. 430-^1 (1884), cases. Earl, J, ; Bidleson v. Whytel, 3 Burrow, 1548 (1764). ''Dachess of Kingston's Case, 20 How. St. Tr. 355 (1776), De Grey, Ld. C. J.: s. c. 3 Sm. L. C. •784; 3 Gall. 229; 17 Pick. 7-14; 2 Kent, 119. JUDICATURE 578 JUDICIAL of the parties, and that a judgment had in fact been rendered.' 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- f mse. Whether fraud in procuring it is, seems to de- fend upon the practice in the forum where the action iiibrought.2 See JnKisnicTiON. A distinction between erroneous and void judg- ments is universally recognized.^ See Ekror, 2 (3), E rroneous. At common law, a judgment was not a lien upon 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 extend the land fixed the lien upon it. The reason was, lands answered for feudal duties, and a new tenant could not be forced upon the lord.* (Judgments rendered in the courts of the United States are liens upon the defendant's realty in all cases where similar judgments of the State courts are made liens by the law of the State." See Addenda^ //30 The lien of a judgment is co-extensive with the ter- ritorial limits of the court in which the judgment is rendered." Judgment-docket. A public record in- tended to afford purchasers and subsequent incumbrancers reliable information in regard to the existence or lien of judgments. If the entry of a judgment is wrong in name^ amount, or time, a third person who does not know of the error, will be protected against loss from having acted upon the reliability of the record statements ^ See Idem, Sonans. See Amendment, 1; Confession, 1; Conviction; Creditor; Debt; Decree; Default; Demurrer; Ex- ecution. 3; Joint AND Several; Merger, 2; Open, 1 (4); Pa^BJUDiCE, Without; Praesumptio, Omnia; Ee- covery; Render, 4; Reversal; Review, 2; Satisfac- tion; Sign; Term, 4; Terre-tenant; Valid. JUDICAT17B,E. The state or profes- sion of those employed in the administration ■of justice ; judiciary ; jurisdiction ; a tribunal. ** Parliament was originally a court of judicature." Judicatvtre Acts. Statutes of 36 and 37 Vict. (1873), 0. 66, and of 88 and 39 Vict. o. 77, with their supplements. These statutes made important changes in the or- ganization of the courts, and in principles of proced- ure. The first went into effect Nov. 1, 1876.' See Courts, of England. •1 Maxwell v. Stewart, 22 Wall. 79 (1874); Moore v. Tovrn of Edgefield, 32 P. E. 50\ (1887), cases. ^^ Freeman, Judgments, § 576, cases. = Hall V. Law, 102 U. S. 464 (1880), cases. * Morsell v. First Nat. Bank, 91 U. S. 860 (1875), cases; Shrew .«. Jones, 2 McLean, 78 (1840). * Ward V. Chamberlain, 3 Black, 438 (1803), cases. ■< Lombard v. Bayard, 1 Wall. Jr. 196 (1648). ' Appeal of Nat. Bank of Northumberland, 100 Pa. 427 (1882); Moore v. MoKinley, 60 Iowa, -373 (1882). ■e Preface to i5 Eng. Rep., by Moak; 2 Law Q. Eev. 1-11 (1886). JUDICIAIi. Whatever emanates from a judge as such, or proceeds from a court of justice.' Pertaining to the administration of justice by a judge or court; also, authorized by law. Extra-judicial. Outside of lawful pro- cedure; emanating from a person who is a judge but not from him as a judge; not sanctioned by law. As, judicial or a judicial — act or action, admission or confession, authority, capacity, circuit, cognizance, comity, construction, day, decision or determination, department, dictum, discretioh, district, document, er- riaine, notice, oath, office or offi:cer, opinion, power, proceeding, proof, question, record, report, sale, separation, trial, writ, qq. v. Extra-judicial is applied; almost exclu- sively, to an act or action, an admission or a confession, a decision or an opinion, and to an oath. Judicial act. An act done in the exer- cise of judicial power: an act performed by a court, touching the rights of parties, or property, brought before it by voluntary ap- pearance or by the prior action of ministerial officers. 2 See Ministerial. A "judicial act" determines what the law is, and what the rights of parties are, with reference to trans- actions already had. A "legislative act " prescribes what the law shall be in future cases.' Judicial action. What shall be adjudged between litigants, and with which is the right of the case, is judicial action, by hear- ing and determining it.* where any power is conferred upon a court, to be exercised by it as a court, in the manner and with the formalities used in its ordinary proceed- ings, the action of the court is to be regarded as judicial, irrespective of the original nature of the power. 1 Judicial action is the application to persons or things of legal sequences from facts agreed or judi- cially ascertained. There must therefore be parties, an issue, and a judgment." " Ee Cooper, 23 N. T. 82, 84 (1860), Selden, J. = Flournoy v. Jeffersonville, 17 Ind. 173-74 (1861). s Sinking Fund Cases, 99 U. S. 761 (1878), Field, J.; Mabry v. Baxter, 11 Heisk. 690 (1873). • Ehode Island v. Massachusetts, 12 Pet.*718 (1836), Baldwin, J. " Tindal v. Drake, 60 Ala. 177 (1877),' Stone, J. See also Be Saline County Subscription, 45 Mo. 63 (1869); Mills V. Brooklyn, 32 N. Y. 495 (1865); Be Zborowski, 68 id. 97 (1877). JUDICIARY 579 JURAT Judicial power. The power of inter- preting law — of declaring what the law is or has been.i " The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. . The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treat- ies made, or which shall be made, under their Au- thority; " — to all Cases affectine Ambassadors, other public Ministers and Consuls; — to all Cases of admi- ralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Contro- versies between two or more States; — between a State and Citizen of another State ; — between Citizens of dif- ferent States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State or the Citizens thereof, and foreign States, Citizens or Subjects." This provision embraces alike civil and criminal cases. A case " arises " under the Constitution, a law, or a treaty, when its correct decision depends upon the construction of either. Cases arising under the laws are such as grow out of the legislation of Con- gress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted. A case may arise out of the implication of the law.^ How jurisdiction shall be acquired by the inferior courts, whether it shall be original or appellate, and the manner of procedure in its exercise, are not pre- scribed. These subjects are remitted without check or limitation to the wisdom of Congress.* Except in the cases in which the Supreme Court is given by the Constitution original jurisdiction, the judicial power is to be exercised as Congress may direct.® A proceeding to ascertain the compensation for land taken for a public use is a " suit at law," within the meaning of the Constitution and acts conferring jurisdiction on the Federal courts.' See Case, 2; Courts, United States; Power, 3. JXTDICIAEY. 1. Pertaining to the de- partment of government which expounds the laws. 2. The body of officers who administer the law ; the judges taken collectively ; the bench. ' [Wolfe V. M'CauU, 76 Va. 880 (1831). 2 Constitution, Art. HI. sec. 1, 8. ' Cohens v. Virginia, 6 Wheat. 379 (1821), Marshall, C. J.; Osboum v. United States Bank, 9 id. 320 (1824); Tennessee v. Davis, 100 U. S. 264 (1879); The City of Panama, 101 id. 460 (1879); Manhattan R. Co. v. Mayor of New York, 18 F. E. 196 (1888); 8 Stoiy, Const. § 1647. * Mayor of Nashville v. Cooper, 6 Wall. 251 (1867), Swayne, J. 5 New Orleans, &c. E. Co. v. Mississippi, 108 U. S. 141 (1880), Harlan, J. See Ames v. Kansas, 111 id. 46.3- 72 (188(4), cases; 65 Barb. 448; 65 N. Y. 150. • Searl v. School District, 124 U. S. 199 (1888), cases; Colorado Midland E. Co. v. Jones, 29 F. E. 193 (1886). Frequently spoken of as the Federal and the State judiciary. Elective judiciary. When the judges of the courts of a State are chosen by popular vote they are said to constitute an " elective judiciary." Opposed, appointed judiciary. See Judge. Judiciary Act. The act of Congress of September 34, 1789, under which the Federal courts were originally organized, i The bill was prepared by Oliver Ellsworth. The wisdom and forethought with which the act was drawn have been the admiration of succeeding generations. It remains to the present day, with a few unimportant changes, the foundation of our sys- tem of judicature, and the law which confers, gov- erns, controls, and limits the powers of all the Federal comets, except the Supreme Court, and which largely regulates the exercise of its powers. = JUDICrUM. See Judgment. JUMP BAIL. A colloquial expression describing the act of the principal in a bail- bond in violating the condition of the obliga- tion by failing to do the thing stipulated, as, not appearing in court on a particular day to abide the event of a suit or the order of court, but, instead, withdrawing or fleeing from the jurisdiction. JUNIOR. 1. Although usually attached to a person's name, is not regarded as a part thereof. "Junior "and "senior "are words of description, constitute no part of a name, and may be added or omitted in different counts in an Indictment without affecting its sufiSciency.' See Name, 1. 2. Younger ; opposed to senior : as, junior counsel. 3. Younger in time ; later or more recent: ■ opposed to priqr : as, a junior judgment, ex- ecution, writ, creditor, patent, survey. JURA. See Jus. JURAIi. Pertaining to natural or posi- tive right.'' JURAT. From the L,a.tinjuratum, sworn; the emphatic word in the Latin form of the certificate to an affidavit or deposition that it was sworn to. The common form is " Sworn to (or affirmed) and subscribed before me Ihis day of , 1888." See Affidavit. 1 See 1 St. L. 78. = United States v. HoUiday, 3 Wall. 414 (1865), Miller, J. ; Jones v. Foreman, 66 Ga. 377 (1881). = Geraghty v. State, 110 Ind. 104 (1886): 52 id. 486; 10 Paige, 177; 7 Johns. 549; 17 Pick. 200; 131 Mass. 184. ' [Webster's Diet. JURE fiSO JURISDICTION JURE; JTTEIS. See Jus. JURIDICAL. Pertaining to the distri- bution of justice; used or recognized in courts of justice.i Opposed, non-juridical; as, that Sunday is a non-juridical day. JURISCOlfSULT. The juris consuUi, or jurisconsults, were experts in the law, re- sorted to by all persons concerned in the administration of justice, both officials and advocates, and even private persons who wanted advice as to their legal rights. Often, especially in earlier times, they were elderly men who, after passing through the series of political distinctions, found an agreeable occupation for their advanced years in giving to their fellow-citizens the benefit of their knowledge and experience." 3. A person who is familiar with interna- tional or public law. JUBISDICTION.s 1. Governmental au- thority. In extradition treaties, more than mere physical, territorial, quasi territorial, or treaty jurisdiction ; has the enlarged meaning which is equivalent to *' author- ity, cognizance, or power of the courts." * See State, 8(2); Tebbitobt, 1. 3. Power to hear and determine a cause.' Power to hear and determine the subject- matter in controversy between parties to a suit, to adjudicate or exei-cise any judicial power over them.* Relates to the exercise of judicial powers.^ Refers to the power of the court over the parties, the subject-matter, the res or prop- erty in contest, and the authority of the court to render the judgment or decree which it assumes to make.s By jurisdiction over the " subject-matter " is meant the. nature of the cause of action or relief sought; and this is conferred by the sovereign author- ity which organizes the court, and is to be sought for 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- tary appearance of the party in the progress of the cause. Jurisdiction of the " res " is obtained by seizure ' [Webster's Die. i'Hadley, Bom. Law, 61, 59; Cushing, Rom. Law, §§ 5-6; Maine, Anc. Law, 35-38. " L. jus, right; dicere, to proclaim. < Exp. Vogt, 18 Int. Rev. Ree. 18. 'United States v. Arredondo, 6 Pet. »r09 (1S32), Bald- win, J. ; Cornell v. Williams, 20 Wall. 249 (1873). •Rhode Island v. Massachusetts, 12 Pet. 'TIS (1838), Baldwin, J. ' Reid V. Morton, 119 HI. 130 (1886). « Cooper V. Reynolds, 10 Wall. 316 (1870), Miller, J.; 19 Cent. Law J. 102-4 (1884), cases; 25 id. 435 (1887), cases. • under process of the court, whereby it is held to abide such order as the court may make concerning it.^ See Notice, 1, Judicial. Hence, want of jurisdiction may be shown as to the subject-matter, the person, or, in proceedings in rem, as to the thing. '^ ^ Any movement by a court is the exercise of juris- diction. . . If the law confers the power to render a judgment or decree, then the court has jurisdiction. ^ Jurisdiction is coram judice whenever a case is presented which brings the power into action.* Opposed, non-jurisdiction: the want of jurisdiction. Jurisdictional. Concerning, also ex- hibiting, the power to hear and deteVmine a cause; opposed to non-jurisdictional: as, a jurisdictional amount, fact, limit, question; non-jurisdictional facts." Original jurisdiction. Jurisdiction con- ferred upon, or inherent in, a court in the first instance. Appellate jurisdiction. Power to review the final judgment, order or decree, of some inferior court.^ The essential criterion of appellate jurisdiction ip, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. It implies that the subject-matter has been already in- stituted and acted upon by some other court whose - judgment or proceedings are to be revised.' Exclusive jiirisdiction. Jurisdiction confined to a particular tribunal or grade of courts. Concurrent or co-ordinate juris- diction. Exists co-extensively and cotem- poraneoiisly in courts of equal or of different grade or systems. Exclusive jurisdiction is necessarily original, though original jurisdiction is not necessarily e^iclusive.^ The rule that among courts of concurrent jurisdic- tion the one which first obtains jurisdiction has the exclusive right to decide every question arising in the case, is limited to suits between the same parties or privies, seeking the same relief, and to such questions ^ Cooper V. Reynolds, ante. ' Thompson v. Whitman, 18 Wall. 401-68 (1873), cases. 3 Rhode Island v. Massachusetts, ante. < United States v. Arredondo, 6 Pet. *709 (1832). See also 2 How. 338; 7 Saw. 385; 17 F. R. 724; 25 Ala. 91; 71 id. 477; 11 Ark. 544; 26 id. 436; 10 Cal. 292; 43 id. 368; 44 id. 88; 16 Pla. 332; 54 Iowa, 79, 157; 17 La. An. 70; 27 id. 71 ; 57 Me. 154; 8 Mete, Mass., 462; 74 Mo. 423; 34 N. J, L. 422; 39 id. 262; 63 N. Y. 450; 72 id. 231; 36 Barb. S44; 13 Pa. 630; 32 id. 357; 42 Tex. 339; 48 id. 440; 44 Wis. 454. » 106 U. S. 681, 682, 636. " See Exp. Batesville, &c. R. Co., 39 Ark. 87 (1882). ' 2 Story, Const. § 1761 ; Piqua Bank v. Kaoup, 6 Ohio St. 330 (1856); Auditor of State v. Atchison, &c. IJ. Co., 6 Zan. 505 (1870). 8 Commonwealth v. O'Connell, 8 Gray, 465 (1857). JURISDICTION 581 JURISPRUDENCE as arise ordinarily and properly in the progress of the first suit brought. 1 The forbearance which courts of co-ordinate juris- diction, administered under a single system, exercise toward each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanc- tion than the Utility which comes from concord; but between State courts and those of the United States, it is something more. It is a principle of right and of law, and therefore of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent; and although they co-exist in the same place, they are independent and have no common superior. They exercise jurisdiction in different planes.' Where a cotirt, whether State or Federal, has legal custody of persons or property, the courts of the other jm-isdiction will not arrest such persons or property. The possession of the officer is the possession of the court, and such action would invade the jurisdiction of the court.* Where, in attachment proceedings in a State court, the sheriff is unable to make actual seizure because the property is in the possession of a United States marshal under an attachment from a Federal court, the creditor, though residing in the same State with the defendant, may, upon service of notice of his claim upon the marshal, intervene in the Federal court, a!nd, upon showing a properly adjudicated claim, secure a right to share in the proceeds of the sale of the property.* Limited or special jurisdiction. Juris- diction which is confined to particular causes, as, those involving demands for money up to a certain sum. General jurisdiction. Extends to all cases comprised within a class or classes of causes, in particular to causes of a civil nature.' Inferior jurisdiction is opposed to superior jurisdiction, civil to criminal jurisdiction, equitable and statutory to common-law juris- diction.* In chancery, ordinary jurisdiction is that wherein the common law is observed; extraordinary, that of equity and good conscience. See Chancery. iBuck V. Colbath, 3 Wall. 345 (1865); Heidritter v. Elizabeth Oil Cloth Co., 113 U. S. 294 (1884), cases; Smith V. Bauer, 9 Col. 3S0 (1886). ' Covell V. Heyman, 1 11 U. S. 182 (1884), Matthews, J. ; Ableman v. Booth, 21 How. 516 (1858). 'Senior v. Pierce, 31 F. R. 637 (1887), cases; Melvin v. Robinson, ib. 634 (1887), cases; Judd v. Bankers', &c. Tel. Co., ib. 183 (1887), cases. ' Gumbel v. Pitkin, 124 U. S. 131 (1888), cases, Mat- thews, J. ° See Grace v. American Central Ins. Co., 109 U. S. 283 (1883). « As to conditional statutory jurisdiction, see 26 Am. Law Reg. 481-506 (1887), cases. Where there is a lack of jurisdiction, a judgment is void; where there is a wrongful or defective exercise of the power, the judgment is voidable,' q. v. Jurisdiction once acquired is effectual for all pur- poses, and exclusive.^ But the court must proceed according to the established modes governing the class to which the case belongs, and must not transcend the law in the extent or character of its judgment." Jurisdiction having attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud. Every intendment is to be made to support the pro- ceeding. Infinite confusion would ensue were the rule otherwise.* The record of a court of special jurisdiction must show its jurisdiction: nothing is presumed in its favor; otherwise, as to a court of general jurisdiction.* See further Apfabeue, De non, etc. Jurisdiction is given by the law ; consent can neither give nor take it away," — except, perhaps, as to juris- diction over the person.' Where there is collusion to give jurisdiction, the court will dismiss the suit for want of jurisdiction.^ When a law conferring jurisdiction is repealed without a reservation as to pending cases, suc*h cases fall with the law." See Court; Judgment; Judicial, Power; Judex, 2, Boni, etc.; Prohibition, 1. JUEISPRUDENCE.io The science of law ; the practical science of giving a wise in- terpretation to the laws and of making a just application of them to cases.n Whence juris- prudential. Comparative jurisprudence. The study of different systems of laws, or the laws of different nations. Equity jurisprudence. That portion oi remedial justice which is administered in courts or equity.^''' > Gray v. Bowles, 74 Mo. 423 (1881). ' French v. Hay, 23 Wall. 263. (1874), cases; Ober v Gallagher, 98 U. S. 206 (1876), cases. 'Windsor v. McVeigh, 93 U. S. 282 (1876), cases United States v. Walker, 109 id. 867 (1883). 'Cornett v. Williams, 20 Wall. 850 (1873), Swayne, J 'See Galpin v. Page, 18 Wall. 365-66 (1873), cases Mousseau's Will, 30 Minn. 205 (1863), cases; Dick v Wilson, 10 Oreg. 490 (1883), cases; Wade v. Handcock 76 Va. 635 (1883), cases. • Home Ins. Co. v, Morse, 20 Wall. 451 (1874), cases Santom v. Ballard, 133 Mass. 465 (1882). ' Grimmett v. Askew, 48 Ark. 156 (1886); 49 N. Y. 309 s WUliams v. Nottawa, 104 U. S. 200 (1882); Coffin v Haggin, 18 Rep. 547 (1883): Act 3 March, 1875, § 5. • Baltimore, &o. R. Co. v. Grant, 98 U. S. 401 (1878) cases; Sherman v. Grinnell, 123 id. 6S0 (1887). '» L. jus, right; providens, foreseeing. ' ' [Bouvier's Law Diet. "[1 Story, Eq. § 35; Jackson v. Nimmo, 3 Lea, 60' a879). JURIST 582 JURY Medical jurisprudence. See Medicine, Medical, etc. jp"KIST. .One versed in the science of law. Juristic; juristical. Pertaining to the science of law; concerning a jurist, or juris- prudence. A "jurist," if anything more than, a fine word for a lawyer, means a lawyer who is mainly eminent through his familiarity with the theoretic side of the law, Sav- igny and Austin, for instance, were jurists in this sense. But . a judge who has a wide practical acquaintance with cases, and knows how to administer the law found in them, is more than a "jurist:" he is an excellent lawyer and judge. ^ JUROR. See Jury. JURY.2 .A body of persons sworn, or af- firmed, to decide a matter of fact in contro- versy in a court of justice. A body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society. ^ gee Peer. The persons are, individually, jurors or jurymen.'* The term usually imports a tribunal of twelve mpn presided over by a court hearing the allegations, evidence, and arguments of the parties; a common or petit jury,^ q, v. But it may import more or less than twelve, as when the reference is to a grand jury, a coroner's or a s^erifC's jm'y.* The common-law jury of twelve persons has seldom been allowed in courts of special, inferior, or limited jurisdiction, such as police com-ts, courts of justices of the peace, probate courts, courts of equity, or in re- viewing courts. '^ G-rand jury. Twenty-four [twenty- , three] freeholders returned by the sheriff to each session of the court of oyer and termi- ner and general jail delivery, to inquire, present, and do all other things commanded them.^ 1 The Nation, No. 935, p. 456 (May 31, 1883). ^ F. jur4e, a body of sworn men : L. jurare, to bind by oath. sstrauder v. West Virginia, 100 TJ. S. 308 (1879), Strong, J. 4 Fife V. Commonwealth, 39 Pa. 439 (1857). " See State v. Kemp, 34 Minn. 63-64 (1885); 67 111. 172; 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 id. 75; 3Dall. 335. fl Fitchburg R. Co. v. Boston, &c. E. Co., 3 Cush. 85 (1849); Knight v. Campbell, 62 Barb. 33 (1873). ' State V. City of Topeka, 36 Kan. 86 (1886). «4B1. Com. 303. Having been first instructed in their duties by the judge, they withdraw to hear accusations by bills of indictment, whether there is sufficient causfe to call upon the party to answer before the petit jury. They inquire for the body of the county; and find a bill to be "true " or " not true " by vote of at least twelve members.^ The institution serves to protect persons from be- ing put to the trouble and expense of a trial upon groundless accusation ; constitutes a security against vindicative prosecutions by the government, political partisans, or private enemies.* The institution of the grand jury is of very ancient origin. For a long period its powers were not clearly defined; it seems at first to have both accused and tried public offenders. At the time of the settlement of this country, it was an accusing tribunal only, without whose action no person charged with a felony, except in certain special causes, could be put upon trial. In the struggles which arose in England between the powers of the king and the rights of the subject, it often stood as a barrier against persecution in his name. Thus it came to be regarded as an institution by which the subject was rendered secure against op- pression from unfounded prosecutions of the crown. In this country, from the popular cliaracter of our in- stitutions, there has seldom been any contest between the government and the citizens which required the existence of the grand jury as a protection against op- pressive action of the government. Yet the institution was adopted and is continued from considerations sim- ilar to those which give it its chief value in England, and is designed as a means, liot only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from ■ the government, or is prompted by partisan passion or private enmity. No person shall be required, ac- cording to the fundamental law of the country, except in cases mentioned, to answer for any of the higher crimes, unless this body, consisting of not less than sixteen nor more than twenty-three good and lawful men, selected from the body of the district, shall de- clare, upon careful deliberation,, under the solemnity of an oath, that there is good reason for his accusation and ferial." While there is now no danger to the citizen from the oppressions of a monarch, or from any form of ex- ecutive power, it remains true that the grand jury is as valuable as ever in securing individual citizens from an open and public accusation of crime, and from the trouble, expense, and anxiety of a public trial before a probable cause is established by the presentment and indictment of a grand jury.* Objection to the qualification of grand jurors, or to the mode of summoning or impanelling them, must be 1 4 Bl. Com. 303. 3 2 Story, Const. § 1785. 3 Charge to Grand Jury, 3 Saw. 668-69 (1872), Field, J.; Hurtado v. California, 110 tJ. S. 555 (1884); Exp. Bain, 121 id. 10 (1887). *Exp. Bain, 131 U.S. 12 (1887), Harlan, J., quoting Jones V. Bobbins, 8 Gray, 329 (1857). JURY 583 JURY made by a motion to quash, or by a plea in abate- ment, before pleading in bar.i A grand jury is a component part o£ the court, and is under its general supervision and control. Individ- ual jurors may be punished (or contempt consisting in willful misconduct or neglect of duty; but they are in- dependent in their actions in determining questions of fact, and no investigation can ever be made as to how a juror voted, or what opinion he expressed on a matter before him. Investigations before a grand jury must be made in accordance with the well-established rules of evidence, and it must hear the best legal proofs of which the case admits. Whether a witness is an expert must be first deter- mined by the court. Evidence of confessions should not be admitted, ex- cept under the direction of the court, or, perhaps, unless the prosecuting oiSicer makes the preliminary inquiries necessary to render such testimony admis- sible. Since they are sworn " to inquire and a true present- ment make," they may order the production of other evidence than that adduced by the prosecution, which they believe exists and is within reach. A witness's testimony before a grand jury is not a confidential communication. It is a high contempt of court for a person volun- tarily to communicate with a grand jury with refer- ence to a matter which may come before them. The court is the only proper source from which a grand jury may obtain advice as to a question of law. Courts sometimes permit the district attorney, or his assistant, to go before a grand jury, when requested by the foreman or when necessary for a proper ad- ministration of justice. These officers may then assist in examining witnesses; may advise in matters of pro- cedure, according to well-settled practice; may read statutes upon which bills of indictment are founded ; but they may not advise as to the suflBciency of evi- dence.' While grand jurors are sworn to secrecy, the later doctrine is tliat, to prevent justice from being de- feated, a member may testify what evidence was given before the body. ^ Local statutes regulate the qualifications, summon- ing, organization, and duties of grand juries.* Commoii, petit, or traverse jury. Common jury. Originally, a jury summoned to try matters of an ordinary nature. Not for each separate cause, as at first, but consist- ing of one panel for every cause, of forty-eight to seventy-two jurors, twelve of whose names are drawn for the jury itself.' 1 United States v. Gale, 109 U. S. 65, 71 (1883), cases. 'United States v. Kilpatriek, 10 F. R. 765 (1883), Dick, J. ' State V. Grady, 13 Mo. Ap. 363 U888), cases; 4 Crim. Law Mag. 171-87 (1883), cases; 21 Cent. Law J. 104-6 (188.i),. cases and statutes. » See generally Thompson & M., Juries, Ch. XXVII- XXXIV; Proffatt, Jury Trials, %% 41-01. » [3 Bl. Cora. 357. Petit jury. The lesser jury, which passes finally upon the truth of the fact in dispute ; a common jury of twelve men. Traverse jury. The jury which passes upon the truth of the facts traversed or de- nied ; a common or petit jury. Mixed jxiry. A right to which every col- ored man is entitled is, that in the selection of jurors to pass upon his life, liberty, or property, there shall be no exclusion of his race, and no discrimination against them be- cause of color. This is a different thing from a right to have the jury composed in part of colored men. A mixed jury ■ in a particular case is not essential to the equal pro- tection of the laws. ' See Citizen, Amendment, XIV. Special or struck jury. Originally, drawn in causes of too great nicety for the discussion of ordinary freeholders, or where the sheriff was suspected of partiality.^ The sheriff produced his freeholder's book, and an oflacer took indifferently forty-eight names. From these names each side struck off twelve, and the re- maining twenty-four were returned upon the panel, from which a jury of twelve men were selected. * Of rare occurrence. The method of selection is reg- ulated by local law, and varies as to details in different jurisdictions. In some States thegury is granted as of course upon application; but genei'ally it must appear that a fair trial cannot be otherwise had, or that the intricacy or importance of the case requires men spe- cially qualified for the service.' Trial by jury. A trial by a common-law ' jury, a body of twelve men.'' A trial by one's peers; secured, originally, by Magna Charta. The bulwark of the subject's liberties.' In the time of Henry II, trial by twelve men gener- ally superseded tiial by an indefinite number of suitors of court, which was in common use in Saxon times.® The very spirit of trial by jury is, that the experi- ence, practical knowledge of affairs, and common sense of jurors may be appealed to, to mediate the in- consistencies of the evidence, and reconcile the ex- travagances of the opposing theories of the parties.' " In com-ts at common law. where the value in con- troversy shall exceed twenty dollars, the right of trial 1 Virginia v. Rives, 100 U. S. 3i3 (1879). 2 3 Bl. Com. 357. s See Thompson & M., Juries, §§ 12, 14, cases; Prof- fatt, Jury Trials, §§ 71-75, cases; Abb. N. Y. Dig., tit. Trial, §§ 190-208; 1 T. & H. Pr. (Pa.) § 630. « People V. Justices, 74 X. Y. 407 (1878). •3 Bl. Com. 349; 4 id. 414. See also States. Kemp, 34 Minn. 63-64 (18£5). ' 12 Alb. Law J. 113. See generally 11 Am. Law. Eev. 24-S0(1876); 1 Kan. Law J. 100-3 (1885); ib. 357; 4 id. 161 (1886); 1 Steph. Hist. Cr. Law Eng. 252-78. ' Standard Oil Co. v. Van Etten, 107 U. S. 334 (1882), Matthews, J. See also Sioux City, &c. R. Co. v. Stout, 17.WaU. 604 (1873), Hunt, J. JURY 58i JURY by jury shall be preserved, and no fact tried by a jury shall, be otherwise re-examined in any Court of the United States, than according to the rules of the com- mon law." * This relates to trials in the Federal courts; the States are left to regulate trials in their courts in their own way. The Constitution only secures trials in State coui-ts according to the settled course of judicial pro- ceedings.'* The right does not extend to cases of equity juris- diction ; as, in claims for damages for alleged infringe- ment of letters-patent. 8 , An application for trial by a jury in a patent case by a defendant against whom an injunction is asked may be granted in the discretion of the court; but if the question can be determined more properly by a chancellor, the application should be refused.* The constitutions of the several States provide that "trial by jury shall be as heretofore, and the right thereof remain inviolate,"" The legislature may withhold trial by jury from new offenses created by statute and unknown to the common law, as in the case of the Sunday Law, and of numerous enactments in the nature of police regu- lations for preserving the peace; from new jurisdic- tions created by statute and clothed with no common- law powers, as, in Pennsylvania, in the case of the Justices' Hundred Dollar Law, and of the authorities that enforce the liability of counties for property de- stroyed by mobs ; from proceedings which, though in common-law courts, are out of the course of the common law, as in motions for summary relief against judgments; and, in equity suits. Proceedings in or- phans' courts, and many in quarter sessions, are other examples. Trial may be denied to municipal corpo- rations. Jn these instances it is no invasion of the rights of the citizen to provide some other mode of trying contested facts, because "heretofore," that is, at the common law which antedated our constitutions, trial by jury did not exist in such cases.'' The meaning is that a jury trial is to be preserved in all cases in which it existed prior to the adoption of the constitution. The right is preserved, not extended : it re- mains "inviolate" — that is, not disturbed or limited,^ i Constitution, Amd. VII. Ratified, Dec. 15, 1791. 2 Walker v. Sauvinet, 93 U. S. 93 (1875), cases, Waite, C. J. ; Pearson v. Yewdall, 95 id. 396 (1877); Callan v. Wilson, 137 id. 547 (1888). ' 3 Herdsman v. Lewis, 20 Blatch. 266(1883); Rubber Co. V. Goodyear, 9 Wall. 788 (1869); Cawood Patent, 94 U. S. 695 (1876); Marsh v. Seymour, 97 id. 348 (1877); 3 Flip. 712; 13 Rep. 139; 68 Pa. 130; 73 id. 169. ^Keyes v. Pueblo Smelting, &c. Co., 31 F. R. 560 (1887). fiRhines v. Clark, 51 Pa. 101 (1865), Woodward, C. J.; Haines v. Levin, ib. 414 (1865); Appeal of Borough of Dunmore, 53 id. 374 (1866); La Croix v. County Com- missioners. 50 Conn. 337 (1883), cases. ■J Re Rolfs, 30 Kan. 763 (1883). Brewer, J. Refers to Byers v. Commonwealth, 43 Pa. 94-96 (1862), Strong, J., as presenting a "clear and forcible discussion of the subject." See also Van Swartow v. Commonwealth, 24 Pa. 134 (1854), Black, C. J.; Callan v. Wilson, 127 U. S. 552-55 (1888), cases. as ample and complete as when the constitution was adopted.^ The provision is intended to secure a benefit or right to a party to a suit which he may avail himself of or waive at its election; and the legislature may make reasonable laws regulating the mode in which the right shall be enjoyed.^ -The right " to a, speedy public trial by an impar- tial jury of the county wherein the offense shall have been committed," is waived by the accused, when, upon his application, the place of trial is changed to another county. ^ An accused person cannot waive the right unless waiver is expressly authorized.'* See Waiveb. See CosviOTioN, Summary; Defense,2, Affidavit of. Questions of law are to be determined by the court; questions of fact by the jury. In this regard the authority of each is absolute.^ The jury should take the law as laid down by the court, and give it full effect; but its application to the facts, and the facts themselves, it is for them to de- termine. The court may not enter their distinctive province. These are the check and balance which give to trial by jury its value. ^ Where the facte are undisputed, their effect is for the judgment of the court; where different minds may honestly draw different conclusions from the facts, as where care or negligence is to be inferred, the question is for the jury J What is said by the court as to the weight of evi- dence is advisory, in nowise intended to fetter the ex- ercise of the juror's independent judgment. With this limitation, it is the right and duty of the court to aid them by recalling the testimony to their recollec- tion, by collecting its details, by suggesting grounds of preference where there is contradiction, by direct- ing their attention to the most important facts, by eliminating the true points of inquiry, by resolving the evidence, however complicated, into its simpler elements, and by showing the bearing of its several parte and their combined effect, stripped of every consideration which might other ivise mislead or con- fuse them. How this duty shall be performed de- pends upon the discretion of the judge. Without this aid, chance, mistake, or caprice may determine the result, s In dvil cases, the jury are to find for the party in whose favor the evidence preponderates. In criminal 1 State V. City of Topeka, 36 Kan. 86 (1886), Valen- tine, J. 2 Foster v. Morse, 132 Mass. 355 (1883), cases. 3 Bennett v. State, 57 Wis. 69 (1883); ib. 74-75, cases. * Wartner v. State, I93 Ind. 52-53 (1884). cases. On abolishing trial by jury, see 20 Am. Law Reg. 661 (1886). The system of jury trial, 21 Am. Law Rev. 859-68(1887), Hon. Samuel F. Miller. 5 Nudd V. Burrows, 91 U. S. 439 (1875). As to questions of fact for the court, see 27 Cent. Law J. 4r-8 (1888), cases. « Hickman v. Jones, 9 Wall. 201-3 (1869), cases, Swayne, J. 7 Sioux City, &c. R. Co., v. Stout, iV Wall. 663 (1873), Hunt, J. ; Mutual Life Ins. Co. v. Snyder, 93 U. S. 393 (1876). JURY 585 JURY trials, the accused is entitled to the legal presumption in favor of innocence, which, in doubtful cases, Is al- ways sufficient to turn the scales in his favor, i See further Doubt, Reasonable. The jury are no more the judges of the law in a criminal case, upon the plea of not guilty, than they are in «. civil case, tried upon the geheral issue. In each case, their verdict, when general, is necessarily compounded of law and fact. In each, they deter- mine the law and the fact. In each, they have the physical power to disregard the law, as laid down by the court. But they have not the moral right to de- cide the law according to their own notions or pleas- ure. On the contrary, the most sacred constitutional right of every person accused of a crime is that the jury should respond as to the facts and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the juiy to follow the law, as laid down. This is the only protec- tion of the citizen. If the jury were at liberty to settle the law for themselves, the effect would be, not only that the law itself would be uncertain, from the different views juries might take of it; but, in case of error, there would be no remedy for the injured party; for the court would not have any right to review the law as it had been settled by the jury. Indeed, it would be almost impracticable to ascertain what the law, as settled by the jury, actually was. On the other hand, if the court should err, in laying down the law, remedy may be had by a motion for a new trial or by a writ of error. Evei-y person accused as a criminal has a right to be tried by the fixed law of the land.2 The jurors have the power to give a general verdict upon the general issue, which includes the question of law, as well as of fact; but when, by pleading, special verdict or demurrer to evidence, the law is separated from the fact, they have no right to decide the law, but must follow it as laid down by the court.' The right of a trial by a jury in a criminal case is not more distinctly secured than it is in a civil case. The right exists only in respect to a disputed fact. Where the facts constituting guilt are undisputed, it is the duty of the court to direct a verdict of guilty.* The jury judge of the law in criminal cases. Hav- ing the power, they have a right to give a verdict con- trary to the instructions of the court upon the law. The court may present the considerations which should induce them to follow its instructions, but should not give a binding instruction which it would be powerless to enforce by granting a new trial if the instruction should be disregarded. This power is one 1 Lilienthal's Tobacco v. United States, 97 U. S. 866 (1877), Clifford, J. ' United States v. Battiste, 8 Sumn. 843 (1835), Story, Judge. s Stettinius v. United States, 6 Cranch, C. C. 573, 584- 99 (18.19), cases, Cranch. C. J. See also United States V. Wilson, Baldw. 108 (1830); State v. Croteau, 23 Vt. 14, 19-81 (1849), cases; Robinson v. State, 66 6a. 518 (1881); Maloneu State, ib. .548-43 (1881). « United States v. Anthony, 11 Blatch. 209-10 (1873), Hunt, J. Cmtra, United States v. Taylor, 3 McCrary, 530-5 (1882), cases, McCrary, J. of the most valuable securities guaranteed by the Bi of Rights. Judges may be partial and oppressivi from political or personal prejudice.^ By reason of the experience of the judge the jui will doubtless highly regard his opinion, and inclii to adopt it rather than a contrary view presented t counsel; but his instructions are only advisory, tt jury are not bound to follow them ; and hence the d tendant may present views and interpretations of tl law differing from those stated by the court. Tl argument must of course be confined to the issue, ar be presented in a respectful manner; and the con may restrict the time within reasonable bounds.* It is not improper to instruct the jury that if tht can saty upon their oaths that they know the law be ter than the court itself, they have a right to do s but that before saying this it is their duty to refle whether from their study and experience they are be ter qualified to judge of the law than the court.' The reasons for constituting the juiy the " judg of the law and the fact " in criminal cases, seem have been : 1. Having the power to pass upon the la by a general verdict, their right to do so necessari followed. 2. Up to the time of the prosecutions England for seditious utterances, the right, while a mitted to exist, was seldom exercised, but the com tion of affairs in the time of Judge Jeffreys caused vigorous assertion of the right.* In capital cases, the jurors are kept together uni discharged; but pending a trial for a misdemeant they may be permitted by the court, without ti knowledge of the defendant, to separate, witho vitiating their verdict.' Facts found by a jurj' may be revised by a motii for a new trial, or by a writ of error. Jirry box. The space set apart for a jui while engaged in a trial. A revolving barrel is a " box," within the requii meat of a statute that names of jurors, before bei drawn, shall be placed in a box and shaken togethe Jury commissioner. An officer wl provides panels of jurors for the successi- terms of a court. ■ Kane v. Commonwealth, 89 Pa. 525-87 (1879), Sha wood, C. J. ! State V. Verry, 36 Kan. 430 (1887), cases, Johnston, "Spies etal. v. People, 128 111. 85 (1887), cases. * See 8 Steph. Hist. Cr. Law Eng. 313, et seg. " The jurors were necessarily the judges in all cai of lite, limb, crime, and disherison of the heir m capi The king could not decide, for he would then ho been both prosecutor and judge, neither could : justices, for they represent him." Bracton, 119: Litt. § 308; 3 Coke, Litt. 8860. See generally 3 Cr. Law Mag. 484- (1883), Wade, J.; 4 id. 15-37(1882); 17 Am. Law Rev. 398-410 (18S 83 Alb. Law J. 40-1 (1882). » United States v. Bennett, 16 Blatch. 374 (1879), cas Commonwealth v. Walsh, 133 Mass. 10 (1888), cases. improper interference with juries, see 26 Am. L Beg. 666-73 (1887), cases. e Commonwealth v. Bacon, 135 Mass. 525 (1863). JUS 586 JUS Jury list. A paper containing the names, occupations, and place of residence of a panel of jurors. Jury process. The writ by which a jury is Bummoned. Jujy "wheel. A revolving receptacle in which are placed, at designated intervals, the names of persons qualified for service as jurors, and from which panels are drawn. See further Array; Call, 3; Challenge, 4; Charge, 2 (2, c); Contempt, 1; Codntry, 2; Elisor; Embrac- ery; Foreman; Impartial; Indifferent; Indictment; Labor, 2; Mediatas Linguae; Opinion. 2; Pack; Panel; Privilege, X; Process, ,1, Due; Punished, Twice; Qualify, 2; Eight, 2, Civil Eight's Acts; Stand Aside; Tales; Trior; Vagrant; Venire; Ver- dict; Vicinage; View; Waiver; Withdrawing. JUS. L. Kight; law, in the abstract; justice; jurisprudence. Plural, jMra. Other forms are jure, juris. See below. Lex is law in the concrete sense. See Equity. Alieni juris. See Sui juris. Apex juris. A subtlety of the law; a legal nicety. A doctrine carried to an ex- treme of refinement. Apices juris non sunt jura. Subtleties of the law are not (do not define) rights — law or equity. 1 Jus acereseendi. Right of survivorship. See SURVIVB, 3. Jus ad rem. Eight {o a thing. JuS in re. ■Right in a thing. Denote, the first, a right without possession- — an inchoate right, an incomplete title ; the second, a right with possession — a perfected title. A lien with possession is a jus in re; a lien resting in a contract, a jus ad rem. In civil law, a ju.t ad rem obtains mediately and from relation to a particular person; a jus in re, im- mediately and absolutely, and is the same as against all persons.'' See Res. , Jus dare. To make the law. Jus di- cere. To say what the law is ; to apply the law. Jus dicere, non dare. To declare, not to make, the law. The duty of a judge is to apply the law as made, not to legislate. The courts^administer the law as they find it; they are not to make or modify it. Hence, considerations as to expediency are to be addressed to the law-mak- ing body.' See Hardship. ' See Broom, Max. 188; 2 Story, 143; 5 Conn. 334. 2 See 3 Bouv. 30; 2 Ul. Com. 312; 20 Wall. 163. - a 1 Cranch, 177; 21 Wall. 178; 100 U. S. 288, 406, 738; 102 id. 515; 50 Conn. 189; 1 Bl. Com. 79. Jus dispondendi. The right to part with a thing, — to give property away as the owner pleases. See WILL, 3. Jus et norma. See Usus, Norma, etc. Jus flduciarum. See Use, 2. i Jus gentium. The law of all nations; the law which natural reason establishes among all races of men ; also, international law.i Jus mariti. The right of the husband — in the wife's movable property. See Jure uxoris. Jus personarum. Rights of persons. Jus rerum. Eight of things. See Jura, Jus possessionis. Right of possession. Jus postlimini. The right of reprisal,— postliminy, g. v. Jus precarium. See Use, 2. Jus privatum. Private right : law reg- ulating the affairs of individuals. Juris pri- vati. Of private right. Jus puWieimi. Public right: law regulating affairs of the state. Juris publici. Of public^ right.^ When private property is " affected with a public interest, it ceases to be jiirisprivctii" (Hale, Ld.C.J.). Property becomes clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. In such cases the owner in effect grants to' the public an interest in the use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.' Jus proprietatis. Right of property: proprietorship. Jus representationis. The right of representation, or of being represented, by another. Jus seriptum. Written law; statute law. Compare Lex, Scripta. Jus tertii. Right in a third person. Thus, a tenant may plead a, new attornment; a bailee may show that his bailor has parted with his right.* Jura personarum. Rights of persons. Jura rerum. Rights in things. The rights which concern or are annexed to the persons of men ; and such rights as a man may ac- quire over external objects.^ ' See 1 Bl. Com. 43. = 2 Bl. Com. 9; 37 Wis. 442, 445. s Munn v. Illinois, 94 TJ. S. 186, 130 (1876), cases, Waite, C. J. « 93 U. S. 580; 2 Pars. Contr. 204. «1B1. Com. ia3;aid. 1. JUST 587 JUSTIF1CATI0> Jura summa Imperii. Supreme rights of dominion. Jure alluvionis. By right of alluvion. See Allcvio. Jure divino. By Divine right or law. Jure humano. By human law. Jure naturse. By the law of nature. Jureuxoris. The right of the wife. See Jus mariti. Juris et de jure. Of right and by right — bylaw. Applied to an irrebutable presumption; as, that a man at Rome cannot be at London the same day. Op- posed, a presumption jurist See Pbesdmption. Juris privati. See Jus privatum. Strietum jus. Severe right or law; law in its rigor as opposed to equity. Siricti juris. Of strict right. Strictissimi juris. Of the strictest right. Subject to the strictest con- struction, the most rigorous application, of law. Applied to a license or a grant highly advantageous to the receiver; to maritime liens {q. v.) which are not extended by construction, analogy, or inference; ^ to a claim against a. surety (3. v.), whose obligations are never increased by presumptions and equities." Sui juris. Of one's own right ; of capac- ity to act for one's self. Opposed, non sui juris: not of one's own right; and, alieni juris: of the right of another — under an- other's control. What one sui juris may himself do, he may dele- gate to another to do for him.* Sui juris cannot be accurately used to denote the possession of any degree of physical or mental power.* Roman citizens were either sut juris (jnen of their own right), acting for themselves independently of family control, or alieni juris (subject to another's right), subject to the control of one who stood as the head of the family. Both enjoyed alike the rights of freemen. "^ JTJST. 1. Probable; reasonable: as, just cause to make an arrest,. to suspect one of crime. See Cause, Probable. 2. Fair, adequate, equivalent: as, just compensation, q. v. In the assessment of property for general taxation, a "just" or equal valuation is more important than an absolutely "true" one; therefore it is no answer ' 1 -Whart. Ev. §§ ia32--.7; 1 Greenl. Ev. § 15 (1). 2 Vandewater v. Mills, 19 How. 89 (1356). 'Leggett V. Humphreys, 21 How. 75 (1858); Smith V. United States, 2 Wall. 235 (1864). * Story, Agency, § 11. ■'■ 38 N. Y. 455; 47 id. 317; 63 id. 104; 15 Alb. L. J. 327. •Hadley, Eom. Law, 107, 119. to a complaint of unequal valuation, that the prope is assessed at its " true cash value." ' JUSTICE. 2 1. Rendering to every m his due. The dictate of right according to the co mon consent of mankind generally or of t portion associated in one government governed by the same principles and moral "In a judicial sense, exact conformity to some ligatory law." The domg of justice is, then, the r formance toward another of whatever is due him virtue of a perfect and rigorous right, the execut of which he may demand by forcible means.' In its nature justice is preventive, and remedial. Every man for an Injury done him may have ri| and justice, freely without sale, fully without den and speedily with delay," A refusal or neglect of justice is remedied b; procedendo, a mandamus, or a prohibition." Offenses against justice are : embezzling or vacat records; personating others in court; obstructmg execution of process; escape; breach of prisi rescue; receiving stolen goods; common barrat maintenance; champerty; compounding prosecutio conspu-acy; perjury; bribery; embracery; false v diet; negligence of public oSBcers; oppression magistrates; extortion by ofQcers,' qq. v. See Conscience; Equity; Fugitive; Tkial, Speei 2. A justice of the peace : an inferior jui cial officer. See Peace, Justice of. 3. Is interchanged with judge. " Circuit justice" and " justice of the c cult " designate the justice of the Suprei Court allotted to a circuit; and "judge applied generally to any circuit, will also i elude such justice.* The members of most supreme courts a styled "justices" — chief justice, associa justice, etc. See Judge. JUSTICIAR. See Chancelloe. JUSTIFIABLE. See Battery; Hoi CIDE. JUSTIFICATION. Making an act matter of right. 1. Allegation of a reason why defenda might lawfully do the act complained of. In libel, common as a plea on the gi-ound of pri lege, or of truth and public advantage. The eflf< ' Dundee Mortgage Trust Investment Co. v. Cha ton, 38 F. R. 194 (1687). ^ L. justitia; Justus, rightful. ' [Duncan v. Magette, 25 Tex. 263 (1860), Roberts, » Borden v. State, 11 Ark. 628 (1861), Scott, J., quoti Burlamaqui. » [1 Bl. Coih. 141: Magna Charta, c. 29. •SBl. Com. 109. ■• 4 Bl. Com. 127. «E. S. § 605. K 588 KENT then is that the plamti£E never had any right of action, because the act charged was lawful. ^ See Slander. 2. Proof that bail is sufficient. Made by oath of the person proposed, that he pos- sesses the qualifications required by law. K. K. As an abbreviation, commonly de- notes king. Compare Q. K. E. King's bench, q. v. K. C. King's council, or counsel, qq. v. KEEP. Varies in meaning with the con- nections in -which it is found — the context or circumstances. Keep a gaming table. Implies a use not merely temporary. 2 Keep a nuisanoe. See Maintain. Keep a woman. In popular acceptation, imports an illicit i-elation.s Keep an inn. Keep a house for the en- tertainment of travelers and others, for pay.* Keep down interest. Pay interest peri- odically as it becomes due.' Keep house. May be said of a trader who secretes himself in his house to avoid his creditors. 6 Keep in repair. See Eepaik. ' Keep liquor. Keeping spirituous liquor for sale is having possession and control of it with intent and readiness to make a sale or sales. , This may be a long-continued practice or it may be instantaneous.' Keep open. Implies a readiness to carry on the usual business in a store, saloon, eto.8 To allow general access, for purposes of traffic,, although the outer entrance is closed. 9 Keep the peace. To avoid disturbing the peace ; to prevent others from breaking the peace. Keeper. 1. A person placed in charge of attached personalty, i" 1 Steph. PI. S34; 3 Bl. Com. 306. 2 United States v. Smith, 4 Cranch, C. C. 660-63 (1836). ' Downing v. Wilson, 36 Ala. 719 (1830). < [State V. Stone, 6 Vt. 298 (1834). sRegina v. Hutchinson, 82 E. C. L. *211 (1854). » Gumming v. Baily, 6 Bing. *370 (1830). . 'State V. Haney, 68 N. H. 379 1878). "Lynch v. People, 16 Mich. 477 (1868). » Commonwealth v. Harrison, 11 Gray, 308 (1858). " See Cutter v. Howe, 132 Mass. 543 (1877). 2. One who assists in superintending a gamin g-house.i See Disoedeely House. 8. One who harbors a dog upon his prem- ises is responsible, as keeper of the animal, for injuries done by him. 2 4. Owner, proprietor. See Inn; Livery- stable; Saloon. Keeper of the Icing's conscience. The lord chancellor — formerly an ecclesiastic. Keeper of the seal. See Seal, 1. KENO. See Game, 2. KENT, James. Was born in Putnam county, New York, July 31, 1763, and died December 12, 1847. His grandfather was a clergyman, his father a law- yer; and both were graduates of Yale college. He entered Yale in 1777, and was graduated with distinction in 1781. In July, 1779, the students being dispersed by the invasion of New Haven by the British troops, he withdrew to a small town, where he chanced to read a copy of Blackstone's Commentaries, the pe- rusal influencing him in deciding to study law. He was admitted to the bar in 1185, and began the practice at Poughkeepsie, where he had pursued his studies. In 1790, and in 1793, he was elected to the legislature from Duchess county. He was an active Federalist, and had the friendship of Jay and Hamilton. In 1793, he removed to New York city, and in the following year began to deliver lectures in the law de- partment of Columbia college. The attendance upon the course for 1795 did not encourage him to deliver another course. The iirst three lectures were after- ward published, but the sale of copies did not repay the expense of publication. In 1796, he was appointed one of the two masters in chancery in New York city, and was also re-elected to the legislature; and the next year he was made recorder of the city. In 1798, he was appointed a judge of the supreme court, in which capacity he continued sixteen years, during ten of which be was chief justice. At that time there were neither reports nor precedents of the court ; the judges pronounced their opinions orally and at very irregular intervals; the law itself was embryonic and unsettled. Kent decided cases without delay, and, in cases of importance, delivered written opinions. The most of these opinions have been preserved in the three voliimes of Johnson's Cases (1779-1803), the four- 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 eighth Johnson, all of one term, are by him, alfhough not so indicated. " English authorities did not stand high in those feverish times, and this led me," he wrote, "to bear down opposition, or to shame it, by ' Stevens v. People, 67 HI. 590 (1873). = Barrett v. Maiden, &c. R. Co., 3 Allen, 101 (1861); Commonwealth v. Palmer, 134 Mass. 637 (1883); Cum- mings V. RUey, 52 N. H. 369 (1872); Grant v. Ricker, 74 Me. 488 (1883). EENT 589 KIND exhausting research and overwhelming authority. Our jurisprudence was probably on the whole im- proved by it. . . The judges were Republicans, kindly disposed to everything French; and this en- abled me, without exciting alarm or jealousy, to make free use of such [French] authorities, and thereby enrich our commercial law." From 1814 to 1828, he presided over the court of chancery in the State of New York. The seven vol- umes of Johnson's Chancery Reports contain his de- cisions tor that period, and present an extended and learned exposition of equity jurisprudence. " For the nine years I was in that ofSce," he further wrote, " there was not a single decision or dictum of either of my predecessors — Livingston, and Lansing, 1777 to 1814 — cited or even suggested to me. I tookthe court as if it were an institution never before known m the United States. I had nothing to guide me, and was left at liberty to assume all such English chancery practice and jurisdiction as I thought applicable under our constitution. . . I was only checked by the senate as a court of errors." He left no aspect of a case unexamined and unde- cided. His dicta have furnished the basis of count- less adjudications. In 1S23, being in his sixty-first year, and, under the constitution, no longer qualified for judicial ofiice, he resumed residence in New York city, and was re- elected to the chair in Columbia law school which had been vacant since he left it in 1795. Here he delivered the lectures which constituted the substance of his " Commentaries on American Law," as first published. " Having got heartily tired of lecturing, I abandoned It, and it was mj- son that pressed me to prepare a volume of lectures for the press. I had no idea of publishing them when I delivered them. I wrote a new volume and published it. This led me to remodel and enlarge, and now the third volume will be out in a few days; and I am obliged to write a fourth to com- plete my plan." The first volume of the Commentaries was published in 1826, the second in 1827, the third in 1829, and the fourth in 1830. Up to the time of his death, in 1847, he had revised five other editions. His son Judge William Kent superintended the preparation of the seventh edition in 1852, the eighth in 1864, the ninth in 1858, and the tenth in 1860. The eleventh edition was prepared by Judge George F. Comstock, in 1868, the twelfth by Oliver Wendell Holmes, Jr., In 1873, and the thirteent'u by C. M. Barnes, in 1884. Of part of Kent's judicial labors Story said that " to unfold the doctrines of chancery in our country and to settle them upon immovable foundations, it re- quired such a man with such a mind, at once liberal, comprehensive, exact, and methodical; always rev- erencing authorities and bound by decisions; true to the spirit yet more true to the letter of the law; prov- ing principles with a severe and scrupulous logic, yet blending with them the most persuasive equity." Story also wrote that the Commentaries were new proof of the author's accurate learning, extensive re- bearch, and unwearied diligence.' ' See autobiographical letter of 1828, first published in 1872, in 1 South. Law Eev. 382; re-published in Alb. | KEROSENE. See Oil. KEY. See Donatio, Mortis, etc. ; Hous: KIDNAPINa.i The forcible abductic or stealing away of a man, woman, or chi from his or her own country, and sending i taking him or her into another country.^ The equivalent of abduction, q. v. Bringing into the United States any person inveigl or kidnaped in any 'other countiT with intent to ho such person to involuntary servitude (g. «.) is a felon punishable with as much as five years imprisonme and five thousand dollars fine.^ Physical force is not necessary. The crime is us ally committed by threats. It is sufficient to show mind operated upon by falsely exciting the fears, 1 threats, or other undue influence, amounting substa tially to a coercion of the will, as a substitute for vi lence. The condition of the person kidnaped, the ag education, condition of mind, and other circumstanc* are to be considered.* See Extradition. KILL. See Defense, 1; HoMicrD: Wanton. . KIN; KINDRED. Relationship 1 blood ; persons legitimately related by blooc Next of kin. Nearest of blood relative "Next of kin," "nearest of kin," "nearest of ki dred," and " nearest blood relatives " primarily ini cate the nearest degree of consanguinity, in wM sense also they are most frequently used.'' Does not include a husband or wife, unless plain BO intended.^ Nor does it ordinarily include a widow; but it m: include such one, as, in a will."* Refers to the relatives of an intestate. In gener; no one comes within the term who is not included the provisions of the statutes of distribution.^ See CoNSANGDiNiTv; Descent; Heir; Relation, Widow. KIND. Originally, race, kin ; now, genu generic class. Law J. 40. See also 13 Alb. Law J. 206-10 (1876) ; Am( ican Cyclopaedia. ' Orig., to steal a child: kid, slang for child; na to nab. Formerly spelled kidnapping. 2 [4 Bl. Com. 219. > Act 23 June, 1874: 1 Sup. E. S. 103. « See Moody u People, 20 111. 318-19 (1858); State Rollins, 8 N. H. 565-67(1837); Click v. State, 3 Tex. S (1848); 2 Bish. Cr. L. §§ 750-56. 5 McCord V. Smith, 1 Black, 470 (1861); 62 Ga. 145; Cush. 25; 73 N. Y. 315; 16 Wis. 635. « Swasey v. Jaques, 144 Mass. 138, 137 (1887), cas( Field, J. ' Haraden v. Larrabee, 113 Mass. 431 (1873), case Wetter v. Walker, 62 Ga. 145 (1878). * Keteltas v. Keteltas, 72 N. Y. 815 (1873), cases. 9 Steel V. Kurtz, 28 Ohio St. 196 (1876). See als< Bradf. 495; 28 Md. 412; 67 N. Y. 389; 24 Hun, 15; Barb. 28; 34 id. 410; 43 id. 1G2; 63 N. 0. 242; 17 Ohio i 367; 4R. L4; 62 Wis. 135. KING 590 KNOWLEDGE In kind. A payment of money, the de- livery or deposit of an object, as of rent, or services rendered, are made or rendered " in kind," when of a thing or services which correspond in class or general nature to that intended. Opposed, in specie: in the identi- cal state or condition, in exact terms. See Deposit, 3, General. Compare Genus. KING; QUEEN. 1. The person in whom is invested the supreme executive power of the government of Great Britain. 2. Sovereign power; government; com- monwealth ; state. Compare Rex. The crown is hereditaiy, in the feudal path for suc- cession to landed estates as marked out by the com- mon law; but this does not imply an indefeasible right. Therefore, in his political capacity, the king never dies.* ' His duty is to govern according to law;. disobedi- ence to his command is a high contempt or a mis- prision.2 As the fountain of justice, he is always ubiquitous — always present in his courts; hence he cannot be non-suit, and does not appear by attorney.^ He is the steward of the public, to dispense justice to whomsoever it is due.* In foreign affairs he represents the nation: sends and receives ambassadors; makes treaties; proclaims war, and peace; issues reprisals, grants, safe-conducts. In domestic affairs he is part of the supreme legisla- tive power: may negative a new law, and is bound by none unless specially named; is the general of the kingdom — raises armies, defends the kingdom ; con- fines subjects within the realm, recalls them from abroad; is the general conservator of the peace — erects courts, prosecutes offenders, pardons crimes, issues proclamations; is the fountain of office and privilege; is the arbiter of domestic commerce — erects marts, regulates weights and measures and the coinage of money; and is the supreme head of the church — convenes and dissolves synods, nominates bishops, and receives appeals. His revenue is ordinary: ecclesiastical and tem- poral — from demesne lands of the crown, from the Courts of justice, royal fish, wrecks, jetsam, flotsam, ligan, royal mines, treasure-trove, waifs, estrays, for- feitures for offenses and for deodands; from escheats, and from the custody of lunatics; and extraordinary: aids, subsidies granted by the Commons — now a tax, charged with the civil list, and with which the expenses of the civil government are defi'ayed.^ In the kfing there can be no negligence; no delay bars his right.' See Tempus, Nullum, etc. " The king can do no wrong." This means either that whatever is excep'tional in the conduct of public > 1 Bl. Com. 191, 193, 196. 2 1B1. Com. 23.3; 4 id. 122. »1B1. Com. 270; 3 id. 24. < 1 Bl. Com. 266. « 1 Bl. Com. ch. vn, vm. 8 1 Bl. Com. 847. affairs, is not to be imputed to him; or, that the pre- rogative extends not to an injury; in his political ca- pacity the king is absolute perfection.' The maxim has no place in our systems of constitu- tional law. The Constitution admits that heads of departments may do wrong, and provides for their impeachment.* A wrong attempted in the name of a State is im- putable to its government. 8 Statutes of parliament are generally cited by the name and the year of the sovereign in whose reign they were passed. In the subjoined table the Boman numerals indicate the year of accession: 1. William 1, 1066. 20. Henry VHI, 1509. 2. WUliam H, 1087. 21. Edward VI, 1547. 3. Henry I, 1100. 22. Mary, 1553.'' 4. Stephen, 1135. 23. Elizabeth, 1669. 5. Henry H, 1164. 21. James 1, 1608. 6. Richard 1, 1189. 25. Charles 1, 1626. 7. John, 1199. 26. The Commonwealth, 8. Henry IH, 1216. 1649. 9. Edward 1, 1273. 27. Charles II, 1649.' 10. Edward II, lS07. 28. James H, 1686. 11. Edward III, 1327. 29. William and Mary, 1689. 12. Richard H, 1377. 30. William HI, 1695.= 13. Henry IV, 1399. 31. Anne, 1702. 14. Henry V, 1413. 38. George 1, 1714. 15. Henry VI, 1422. 33. George H, 1727. 16. Edward IV, 1461. 34. George III, 1760. 17. Edward V, 1483. 35. George IV, 1820. 18. Richard m, 1483. 36. William IV, 1830. 19. Henry VII, 1485. 37. Victoria, June 20, 1837. See Bench; Council; Counsel; Court, T; Crown; Fe[jd; Government; Parliament; Patent, 1; Patria; Peace, 1; Prerogative; Tenure,!; Treason; Ubiq- uity, 1. KISS THE BOOK. Placing the Bible to the lips in attestation of the obligation of an oath just administered. See further Oath. KLEPTOMANIA. See Insanity. KNIGHT. See Feud. KNOCKDOWN. See Auction; Bid Off. KNOT. See Milb. KNOW ALL MEN, etc. See Pres- ents, 1. KNOWLEDGE. 1. A being aware of: information, cognizance; notice. Absolute knowledge can be had of few things.^ 1 1 Bl. Com. 246; 2 id. 243; 3 id. 254; 4 id. 32. 2 Langford v. United States, 101 U. S. 343 (1879). =1 Virginia Coupon Cases, 114 U. S. 290 (1885). * In 1554, married Philip of Spain; hence, Philip and Mary, 1554-58. ^ Ascended the throne in 1C60; his regnal years are counted from' 1649 — when Charles I died. 1^, Normans; 5-12, Plantagenets; 13-15, House of Lancaster; 16-18, House of York; 19-83, House of Tudor; 24-25, 87-31, House of Stuart; 32-37, House of Hanover. "Mary died in 1694. ' Story V. Buffum, 8 Allen, 38 (1864). KNOWLEDGE 691 LABOR Kno-wledge and belief. Nothing more than firm belief. Belief applies to the im- pression on the memory. The difference Is in degree.i See further Belief. Personal knowledge. Actual knowl- edge of the truth or falsity of a matter, not derived from another person.^ An affidavit filed in an application tor a change of venue, alleging that the defendant had not th6retof ore " full knowledge " of a particular fact, was held to be too indefinite, as an averment. "Full knowledge might never come to him ; but he had knowledge, and, for aught that appears, it might have been sufficient to satisfy his mind." ' Knowledge is imputed from a duty to exercise ordi- nary care. Inquiry is a moral duty where the circum- stances are such that a person of ordinary prudence would refuse to act.* One who has reason to believe that a fact exists knows that it exists.* Where there is enough to put one concerned upon 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 persons, an inquiry as to the facts is a moral duty, and diUgence an act of justice. Whatever fairly puts a party upon inquiry in such case is sufficient notice in equity, where the means of knowledge are at hand; and, if he omits to inquire and proceeds to act, he does so at his peril, as he is then chargeable with all the facts which by a proper inqmry he might have ascertained.' Knowledge of facts which will enable a party to take effectual action is implied in such terms as " ac- quiescence," "estoppel," "waiver,"' 33. v. Equal knowledge on both sides makes contracting parties equal. Information in the agent is information in the prin- cipal; » but not so, it professional confidence would be betrayed, as, between an attorney and hisclient." See further Agent. Knowingly. Imports thit an accused person knew what he was about to do, and with such knowledge proceeded to commit the offense charged. 2 Known; unknown. In tlie laws of tax- ation and seizures of property, apply to own- ers whose residence is, and is not, known. See Notice, 1. See Fraud; Guilty; Ignorance; Ignore; Informa- tion, 1; Innocence; Inquiry; Intent; Permit; Eepre- SENTATION, 1; RESCISSION; WiLL, 1; Wittingly. Com- pare NosciTUR ; Scire. 2. Sexual bodily connection : carnal knowl- edge.' " Carnally knew " is the technical phrase used in charging rape, 3. u. KU KLUX. See United States v. Harris, Conspiracy. See Hard- L. 1 Hatch V. Carpenter, 7 Gray, 374 (1867). son V. Beard, 30 Kan. 533 (1883). ' See West v. Home Ins. Co., 18 F. E. 622 3 McCann v. People, 88 111. 105 (1878). Compare White V. Murtland, 71 id. 259 (1874); Roberts v. People, 9 Col. 4B3 (1886). « Lawrence v. Dana, 4 Cliff. 68-89 (1869), cases. ' Shaw V. North Pennsylvania R. Co., 101 U. S. 566 (1879). « Jones V. Guaranty, &o. Co., 101 V. S. 633 (1879), Swayne, J.; Hoyt,;. Sprague, 103 id. 637 (1880); Good- man V. Simonds, 20 How 367 (1857). ' Angle V. N. W. Mutual Life Ins. Co., 92 U. S. 342 (1875) cases, aiflord, J. See also Commissioners of Leavenworth Co. v. Chicago, &o. R. Co., 18 F. R. 210 (1883)- Martin v. Smith, 1 DUl. 90 (1870), cases; Filmore V. Eeithman, 6 Col. 129 (1881), cases; Efflngar v. Hall, 81 Va. 106 (1386), cases. 8 Pence v. Langdon, 99 U. S. 581 (1878), Swayne, J. "Smith V. Ayer, 101 U. S. 327 (1879); Rogers v. Pal- mer, 102 id. 263 (1880). L. An abbreviation, chiefly of large, Latin, law, leading, lord : L. C. Leading case ; lord chancellor. Ii. F. Law French ; levari facias. I,. J. Law Journal; law judge. L. JJ. Law judges. L. L. Law, late, or low Latin, q. v. Ii. R. Law reports. L. S. Loeus sigilli, place of the seal, g. v. LL. Laws. LL. B. Bachelor of laws. LL. D. Doc- tor of laws. LL. M. Master of laws. See Degree, 3. LABEL. See Book, 1; Copyright; Trade-mark. LABOR. 1, n. Manual exertion of a toilsome nature. < This is the meaning in statutes, unless plainly used in another sense. Toil, or that which does or may pro- duce weariness, and not mere business, is the idea conveyed by the word as ordinarUy employed in Sun- day laws.' Technically, embraces all sorts of services, whether physical or me ntal, or whether the iThe Distilled Spirits, 11 Wall. 366-67 (1870), cases. As to presumptions of knowledge, in general, see 18 Alb. Law J. 7-9 (18831, cases. 2 United States v. Claypool, 14 F. R. 128 (1882); Greg- ory V. United States, 17 Blatch. 330 (1879). See gener- ally 2 Steph. Hist. Cr. Law Eng. 114-18. .Commonwealth v. Squires, 97 Mass. 61 (1867), cases. . Bloom V. Richards, 2 Ohio St. 401 (1853), Thurman, J ■ More V. Clymer, 12 Mo. Ap. 15-16 (1882); Richmond «. Moore. 107 ni. 437-38 (-"""- LABOR 593 LABOR main ingredient is manual toil or professional or other skill ; but in the naiTOwer and popu- lar signification, is restricted to physical toil.' In its most extended sense, includes every possible human exertion, mental or physical.^ Common labor. Ordinary manual labor, as distinguished from intellectual labor. In the Sunday law of Ohio, embraces "trading, bartering, selling, or buying any goods, wares, or mer- chandise." ' Gaming is not an act of " common labor " or of one's usual vocation.* Hard labor. State's prison convicts often are sentenced to perform " hard labor." This imports nothing more than ordinary in- dustry at some mechanical trade.* Imprisonment at hard labor may be changed to mere imprisonment, where an act provides for im- prisonment only.^ Where hard labor is prescribed as part of the pun- ishment it must be included' in the sentence; but where naere imprisonment is required, a Federal court is au- thorized, in its discretion, to order its sentence to be executed at a place where, as part of the discipline, hard labor is required.' When the use of the word "hard " may be treated as surplusage, the sentence will still stand.^ Hard labor was first introduced into English prisons in 1706. See further Imprisonment; Infamy. Laborer. One who labors in a toilsome occupation.' One who gains a livelihood by manual toil ; one who depends on hand work, not on head work, for a living.!" He is a species of servant, hired by the day or week, and not part of the family of the employer. ^^ In statutes giving laborers a lien or priority, or a special remedy, " laborer " means a person engaged in manual occupation, rather than one engaged in a learned profession. '" Within the meaning of lien laws " labor" has been held to include the services of an architect; '" but not 1 Weymouth v. Sanborn, 43 N. H. 173 (1861), Bellows, Judge. "Brockway v. Innes, 39 Mich. 48 (1878); Peck v. Miller, ib. 697 (1878). ' Cincinnati v. Rice, 16 Ohio, 240-41 (1846). ' State V. Conger, 14 Ind. 396 (1860). s See 4 Bl. Com. 370. 377. « Eeynolds v. United States, 98 U. S. 169 (1878). ■rHxp. Karstendick, 93 U. S. 393 (1876); United States V. Coppersmith, 3 Flip. 633 (1880). B Weaver v. Commonwealth, 3!) Pa. 448 (1857). See iSe Edwards, 43 N. J. L. 555 (1881), cases. » Blume V. Bicbards, 2 Ohio St. 401 (185.3). 1" Pennsylvania, &c. R. Co. v. LeufEer, 84 Pa. 171 (1877); Caraker v. Mathews, 25 Ga. 570 (1858); Be Hoking, 8 Saw. 439-40 (1883). 11 [1 Bl. Com. 426. "18 La. An. 80; 13 Minn. 475; 86 N. J. E. 29, 389; 84 of one who superintends the erection of a building; i nor of a civil or consulting engineer; " nor of the fore- man of a mine; ' nor of an overseer of a plantation; * nor of a teamster; • nor of a tidie-keeper and superin- tendent; = nor of a cook in a hotel.' Bodily labor bestowed upon a subject which before lay in common to all men, gives the most reasonable title to an exclusive property therein.^ Labor is property. As such it merits protection. The right to make it available is next in importance to the rights of life and liberty. It lies,' to a large ex- tent, at the foundation of most forms of property, and of all solid individual and national prosperity.' The act of Congress of February 26, 1886 (23 St. L. 333), makes it unlawful for any person to assist or en- coiu'age the importation or migration of foreigners under contract to perform labor or service of any kind, made previous to the importation. The penalty is a forfeiture of one thousand dollars for every laborer brought into the country; and tbe master of any ves- sel who knowingly brings in such emigrant laborer shall be guilty of a misdemeanor, pay a fine of not more than five hundred dollars, and be imprisoned for a term not exceeding six months. The act excepts foreigners engaged as private secretaries, servants or domestics of foreigners, skilled workmen performing labor in a new industry, professional actors, artists, lecturers, singera, domestic servants, and relatives and friends assisted to come here for settlement. That act was amended by the act of February 23, 1887 (24 St. L. 414), empowering the secretary of the treasuiy to execute the original act, and, for thatpur- pose, to make contracts with State officers — to take charge of immigration, to examine ships as to the con- dition of passengers, to report to the collector of the port any persons within the prohibition of the act, and that such persons shall not be permitted to land, but shall be sent back to the country whence they came, at the expense of the owners of the vessel in which they emigrated. Labor, ■bureau of. An act approved Jime 27, 1884 (23 St. L. 60), provides that therei shall be estab- lished in the department of the interior a bureau of labor, to be under the charge of a commissioner of labor, appointed by the President, with tbe consent of the Senate. The commissioner shall hold office for four years, and, until his successor shall be qualified, unless sooner removed, at a salary of $3,000 a year. He " shall collect information upon the subject of la- N. Y. 482; 37 id. 610; 76 id. 50; 35 Pa. 423; 90 id. 47. Contra, 12 Bush. 75; 41 Me. 397; 6 Mo. Ap. 445. 1 2 Monta. 443. ' 38 Barb. 340; 39 Mich. 47; 84 Pa. 171. = 16 Hun, 186; 17 id. 463. Contra, 11 Nev. 304; 104 U. S. 177. 181N. C. 340. i>46 N. Y. 521; 100 Pa. 550; 49 Wis. 169. ' 14 Kan. 566. '77 Pa. 107. See generally Flagstaff Mining Co. v. Collins, 104 U. S. 177-79 (1881), cases. ° 2 Bl. Com. 5. « £lau3hter-House Cases, 16 Wall. 137 (1872), Swayne, Judge. LACHES 593 LADINU bor, its relation to capital, the hours of labor, and the earnings of laboring men and women, and the means of promoting their material, social, intellectual, and moral prosperity." The secretary of the interior, upon the recommendation of the commissioner, shall ap- point a chief clerk, at a salary of 82,000 a year, and such other employees as may be necessary for the bu- reau. Dvu:ing the necessary absence of the commis- sioner, or when the office shall become vacant, the chief clerk shall perform the duties of the commis- sioner. The commissioner shall annually report in writing to the secretary of the interior the informa- tion collected and collated by him, and such recom- mendations as he may deem calculated to promote the efficiency of the bureau. See Author; Chinese; Employment; Lien, Mechan- ic's; Material-man; Ocoupanot; Sertakt, 2; Strike, 2; Sdhday; Trade; Wages. 2, V. To influence a jury against its duty ; to persuade a juror not to appear at court. The first lawyer who came from England to prac- tice in Boston is said to have been sent bacii; for "laboring" a jury. LACHES. 1 Neglect, negligence ; default.^ Inexcusable delay in asserting a right. ATI infant loses nothing by non-claim or neglect to demand his rights; nor, in general, shall any other " laches " or negligence be imputed to him.' Neglect to do something which by law a man is obliged to do.* Such neglect or omission to do what one should do as warrants the presumption that he has abandoned his claim, and declines to assert his right.s The term implies knowledge of one's rights.' The law of laches was dictated by experience, and is founded m a salutary policy. The lapse of time carries with it the memory and the life of witnesses, the muniments of evidence, and other means of proof. The law is necessary to the peace, repose, and welfare of society.' If the case of the plaintiff, as stated in his bill, will not entitle him to a decree, the judgment of the court maybe required by demurrer whether the defendant ought to be required to answer the bill,' Where, from delay, no correct account can be taken, and any conclusion the court may arrive at must at best be conjectural, and the original trans- action has become so obscured by lapse of time, loss of evidence, and death of parties, as to render it difB- ■ F. lache, indolent, lax: L. laxus, loose. 5 [1 Bl. Com. 247; 3 id. 317; 4 id. 403. • [1 Bl. Com. 465. •Sebag V. Abitbol, 4 Maule & S. 463 (1816), Ellen- borough, C. J. « Wissler v. Craig, 80 Va. 30 (1885), Eiohardson, J. » Massie v. Heiskell, 80 Va. 805 (1885). ' Brown v. County of Buena Vista, 95 U. S. 161 (1877), Swayne, J. See also 77 Va. 576, 688. s Lansdale v. Smith, 106 U. S. 392-93 (1883), cases. (38) cult to do justice, the case is one of " laches," and the court will not relieve the plaintiff. ^ The question is one of fact, is an equitable defense determinable by the particular facts.' Laches is not imputable to the government: upon considerations of public policy. The government acts through agents, and these are so numerous and scat- tered that the utmost vigilance would not save the public from serious loss, if the doctrine applied.* The rule Is essential to the preservation of the inter- ests and property of the public. The state's agents have not the incentive of personal interest to prose- cute her claims.* See Estoppel; Delay; Disability; Limitation, 3; Reform; Rescission; Stale. LADING-. That which constitutes a load; burden; freight. Laden. May not mean " fully " laden.s Bill of lading. A contract by which a common carrier engages to carry and deliver goods to the consignee, or to the order of the shipper.8 A written acknowledgment, signed by the master of a vessel, that he has received the goods therein described from the shipper, to be transported on the terms therein ex- pressed, to the described place of destination, and there to be delivered to the consignee or parties therein designated. ' A receipt as to quantity and a description of the goods, and a contract to deliver them, acknowledg- ing the goods to be on board. As between the original parties, being like a receipt, is open to explanation.' Usually executed in triplicate: one part each for the consignor, the carrier, and the consignee. Termed a " clean bill " when silent as to the place of stowage. The understanding is that the goods are to be stowed " under "deck; parol evidence of an agreement tor stowage " on " the deck is inadmissible.* A bill of lading is a symbol of property, and, when properly indorsed, operates as a delivery of the prop- erty itself, investing the indorsee with a constructive custody, which serves all the purposes of an actual possession, and so continues until there is a valid and ■ Wissler v. Craig, 80 Va. 22, 29 (1885), cases. 2 Pike V. Martindale, 91 Mo. 285 (1886), Ray, J. ' United States v. Kirkpatrick, 9 Wheat. 735 ( Story, J. * Weber v. Harbor Comipissioners, 18 Wall. 70 (1873); United States v. Thompson, 98 U. S. 489 (1878); United States V. City of Alexandria, 19 F. R. 609 (1882); United States V. Barnes. 31 F. R. 709 (1887), cases. » Searight v. Stokes, 3 How. 169 (1846). « [The Farwell, 8 Biss. 64, 71 (1877), Dyer, J. ' The Delaware, 14 Wall. 600 (1871), cases, Clifford, J. s See 14 Wall. 600, supra; 105 U. S. B, post; 1 Biss. 379; 5 Ala. 433; 3 Iowa, 103; 33 id. 32; 34 Me. 659; 16 Mich 113; 9 Mo. 194; 4 Denio, 330; 14 Wend. 28; 12 Barb! 310; 4 Ohio, 346; 28 Vt. 124; L. R., 2 C. P. 45. » 14 WaU. 602, 579, supra; 2 Whart. Ev. § 1070. LADING 594 LAND complete deliveiy under and in pursuance of tlie bill of lading, to the person entitled to receive the prop- erty.' It is not a representative of money; does not pass from hand to hand as a bank-note or coin. It is a contract for the performance of a certain duty, at the same time that it is a symbol of ownership of the goods covered by it, a representative of those goods, and regarded as so much cotton, grain, iron, or other merchandise which is sold or pledged by a transfer of the bm." In the hands of the holder, a bill of lading is evi- dence of ownership, special or general, of the property mentioned in It, and of the right to receive the prop- erty at the place of delivery. Notwithstanding that it is designed to pass from hand to hand, with or without indorsement, and is ef&cacious for its ordinary pur- poses in the hands of the holder, it is not a negotiable instrument in the sense that a bill of exchange or a promissory note is negotiable. Its transfer does net preclude, as with them, inquiry into the transaction in which it originated, because it has come into the hands of a person who has innocently paid value for it. The doctrine of bona fide purchaser applies only in a lim- ited sense. It may therefore be shown that neither the master of a vessel, nor the shipping agent had the authority to bind the vessel or its owner by giving a bill for goods not received for shipment. ^ The holder of a lost or stolen bill of lading is no more protected in his title than the buyer of lost or stolen property.^ The transfer and delivery of a bill of lading of goods, by the consignee to a person who advances money upon them, is not in effect a mortgage, but vests in the lender a property in the goods which en- titles him to maintain an action against one who wrongfully converts them. It is not necessary for the person to whom an inland bill is delivered for valu- able consideration to take possession of the property upon its arrival, or to give notice to the person who has the actual possession of the property. Delivery to an unauthorized person, who does not produce the bill, is a conversion.* Placing in a bill a direction to notify a certain per- son is a plain indication, in the absence of further directions, that he is not the consignee.* When a shipper attaches his bill to a draft upon the > Hi'eskell -o. Farmers', &c. Bank, 89 Pa. 155 (1879), cases; Dows v. Nat. Exchange Bank, 91 U. S. 618, 629 (1876), cases; Moors v. Kiddet, N. Y. Ct. Ap. (1888): 37 Am. Law Reg. 107, 115-17, cases. s Shaw V. North Pennsylvania E. Co., 101 U. S. 564 (1879), Strong, J.; Steiger v. Third Nat. Bank, a McCrary, 499-500 (1881); Wertheimer v. Pennsylvania E. Co., 17 Blatch. 432 (1880), cases. = Pollard V. Vinton, 105 U. S. 8 (1881), Miller, J. ; Iron Mountain E. Co. v. Knight, 123 id. 87 (1887); Seeligson „. Philbrick, 30 F. E. 601 (1887). 4 Forbes v. Boston & Lowell E. Co., 133 Mass. 154^^8 (1882), cases, Morton, C. J. s Furman v. Union Pacific E. Co., 106 N. Y. 579 (1887); North Pennsylvania E. Co. v. Commercial Bank, 123 U. S. 737 (1887). consignee, he intends that the goods shall be delivered only upon payment of the draft.' When Indefinite in its terms, a bill will be construed reasonably, according to the presumed intention to be gathered from the situation of the parties, and their relations to the ship and to each other.' See Damage; Fkeight. LAGAN. See Ligan. LAITY. See Lay, 1. LAKE. See Riparian; Tide. A grant of land to a natural pond or lake extends only to the water's edge. . . Mere proprietorship in the surrounding lands will not, in all cases, give own- ership to the beds of natural non-navigable lakes, re- gardless of their size. Each ease depends largely upon its own facts. ^ Xiakes Ontario, Erie, Superior, etc., are in- land seas. Different States border on thern on one side, and a foreign nation on the other. A great and growing commerce is carried on upon them, subject to all the incidents and hazards that attend commerce on the ocean. Hostile fleets have encountered on them, and prizes been made; and every reason which exists for the grant of admiralty jurisdiction to the general government on the Atlantic sea^ applies with equal force to the lakes. . . The lakes and the waters connecting them, although not tide-waters, are un- doubtedly public^ waters, and within the grant of ad- miralty and maritime jurisdiction in the Constitution.* See Admiralty; Sea, High. LAMB. See Sheep. LAND. 1. Comprehends all things of a permanent, substantial nature ; being a word of very extensive signification. ^ Eeal prop- erty; realty. All corporeal hereditaments — ground, soil or earth, with all objects under or upon the same, as, trees, herbage, water, minerals, buildings. By the simple word "land" everything terrestrial passes. * Land often passes by other terms; as, house, mill, messuage, gg. v. The ''tunnels, tracks, substructures, superstruct- ures, stations, viaducts, and masonry " of a railroad are " land," within the meaning of a tax law.' ' Wells, Fargo & Co. u Oregon Ey . & Nav. Co. , 33 F. E. 54 (1887), cases; The John K. Shaw, ib. 491 (1887), cases, = Gronstadt v. Witthofl, 15 F. E. 265 (1883). » State of Indiana v. Milk, 11 Biss. 197, 806 (1883), cases, Greshara, J. ; Forsyth v. Smale, 7 id. 301 (1876), cases; Smith v. City of Rochester, 93 N. Y. 473 (1883), cases. * The Propeller Genesee Chief v. Fitzhugh, 12 How. 453, 457 (1851), Taney, C. J.; Act 36 Feb. 1846: 5 St. L. 736. See also -The Hine v. Trevor, 4 Wall, 563(1866); The Eagle, 8 id. 20 (1868). •2B1. Com. 16; 3 id. 317. • 2 Bl. Com. 16; 38 Miss. 464; 1 N. Y. B64; 33 Ind. 403; 6 Conn.. 517; 9 id. 377. ' People, ex rel. New York & Harlem E. Co. «. Cpm- missioners, 101 N. Y. 323 (1886). LAND 395 LAND Everything essential to the henefloial use and enjoy- ment of the designated property, in the absence of language indicating a different intention in a grantor, passes by a conveyance of the property.' Lands. The same as land ; one piece will satisfy the term. 2 Iianded. Consisting of realty: as, landed — estate, property, security. "Landed estate" is an interest in or pertaining to lands. A "landed proprietor" is a person who has an estate in lands, whether highly improved or not.^ Improved land. Reclaimed, cultivated land ; land used for purposes of husbandry. Wild land. Land in a state of nature.^ See Impkove ; Seated ; Vacant. "Improved land " has no precise legal meaning.' Interest in lands. In the Statute of Frauds, does not include ripe though un- gathered fruits, or crops annually removed ; otherwise as to such produce of the soil as is capable of permanent attachment to it.^ See Frauds, Statute of. Iiand warrant. The evidence in writing which the state, on good consideration, gives that the person therein named (the war- rantee) is entitled to the quantity of land specified.' The issue of the warrant and the rights of the war- rantee are regulated by statute. The application marks the inception of the title, and prevails against a later settler with notice; but not so as to a warrant and survey which differ from the application.'* Presumption of abandonment from neglect to re- turn a warrant is rebutted by possession in the war- rantee.' A warrant descriptive of the land confers title from date, if followed up with diligence in obtaining a survey,'" Shifted land warrant. A warrant which calls for the survey of other land than that surveyed. When fairly made, returned, and accepted by the proper authorities, holds the land from the time of acceptance, provided there is no intervening oppos- ing right." 1 Sheets v. Selden, 3 Wall. 187 (1884), eases. ' Birch V. Gibbs, 6 Maule & S. 116 (1817). » St. Mary v. Harris, 10 La. Afl. 677 (1855), Merrick, Chief Justice. * Clark V. Phelps, 4 Cow. 303 (1835). "> Bond V. Fay, 8 Allen, 315 (1864), Hoar, J. • 1 Whart. Ev. § 866, cases. ' Neal V. East Tennessee College, 6 Terg. 205 (1834). 8 Mix V. Smith, 7 Pa. 75 (1847); 5 Binn. 304. ' Burf ord v. McCue, 63 Pa. 437 (1866). i« Fox V. Lyon, 37 Pa. 9 (1856); 33 id. 474; 34 id. 74; 43 id. 197; 73 id. 316. " Smith V. Walker, 98 Pa. 141 (1881). Public lands. " The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Terri- tory or other Property belonging to the United States." i See Teebitory, 3. " Public lands " is habitually used in legis- lation to describe such lands as are subject to sale or other disposal under general laws.''' In the act of July 4, 1866, applied to aU unsurveyed lands, whether previously granted or not, and distin- guishes such lands from surveyed and segregated lands, where the right of private proprietorship has attached.' The laws prescribe with partictdarity the manner in which portions of the public domain may be ac- quired by settlers. They require personal settlement upon the lands desired and their inhabitation and im- provement, and a declaration of the settler's acts and purposes to be made in the proper office of the dis- trict, within a limited time after the public surveys have been extended over the lands. By them a land department has been created to supervise the steps required for the acquisition of the title of the govern- ment. Its officers are required to receive, consider, and p^s upon the proofs furnished as to the alleged settlements upon the lands, and their improvement, when pre-emption rights are claimed, and, in case of conflicting claims to the same tract, to hear the con- testing parties. The proofs offered in compliance with the law are to be presented, in the first instance, to the officers of the district where the land is situated, and from their decision an appeal lies to the commis- sioner of the general land-office, and, from him to the secretary of the interior. For mere errors of judg- ment as to the weight of evidence on these subjects, by any of the^subordinate officers, the only remedy is by an appeal to his superior of the department. The courts cannot exercise any direct appellate jurisdic- tion ever the rulings of those officers or of their supe- rior in the department in such matters, nor can they reverse or correct them in a collateral proceeding be- tween private parties. It would lead to endless litiga- tion, and be fruitful of evil, if a supervisory power were vested in the courts over the action of the numer- ous officers of the land department, on mere questions of fact presented for their determination. It is/ only when those officers have misconstrued the law appli- 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- ceded to them, or where misrepresentations and fraud have been practiced, necessarily affecting their judg- ment, that the courts can, in a proper proceeding, in- terfere and refuse to give effect to their action. . . The misoonstraction of the law, which will authorize the mterference of the court, must be clearly mani- fest, and not alleged upon a possible finding of the ' Constitution, Art. IV. sec. 3, cl. 3. sNewhall v. Sanger, 92 U. S. 763 (1875), Davis, J.; Wirth V. Branson, 98 id. 118 (I878), cases. s Heydenf eldt v. Daney Minmg Co., 10 Nev. 314 (1875), Hawley, C. J. LAND 596 LAND _ facts from the evidence different from that reached by them. And where fraud and misrepresentations are relied upon as grounds of interference, they should be stated with such fullness and particularity as to show that they must necessarily have affected the action of the officers of the department. ' The testimony proving fraud in the government officials must be clear, unequivocal, and convincing. A bare preponderance of evidence which leaves the issue in doubt is not sufficient. To raise a suspicion of wrong-doing in its own officers, is not enough to justify the government in casting upon the defendant, alleged to be a bona jide purchaser for value without notice of the supposed fraud, the burden of establish- ing his title.* The government can proceed by a bill in equity to have a decree of nullity and an order of cancellation of a patent issued in mistake, or obtained by fraud, where it has a direct interest or is under obligation to make good a title to an Individual, or duty to the pub- lic requires such action. ^ There was a time when a party who settled in ad- vance of the public surveys was regarded as a tres- passer, to be summarily ejected. But all this has been changed within the last half century. The settlers of Oregon, and of California, organized a, provisional government embracing guaranties of all private rights. "When the laws of the United States were extended over the country, the regulations for the occupation of the land were respected, and the rights acquired under them recognized and enforced. In no instance have the claims of an intruder upon the prior bona fide posses- sion of others, or in disregard of those rights, been sustained. When the legal title has passed from the United States to one party, when in equity, and in good conscience, and by the laws of Congress, it ought to go to another, a court of equity will convert the holder into a trustee of the true owner, and compel him to convey the legal title.* Congress has ttie sole power to declare the dignity and effect of titles emanating from the United States. All legislation declares the patent the superior and conclusive evidence of legal title. Until its issuance, the fee is in the government, which, by the patent, passes to the grantee, who may recover the possession by ejectment.* The certificate which is given vests an equitable right to demand tte patent after such further proceed- ings as the laws, and the course of business in the de- partments, require. The fact of the issue of a patent 1 Quinby v. Conlan, 104 U. S. 425-26 (1881), cases, Field, J.; Steel v. Smelting Co., 106 id. 450-52 (18S3), cases; Johnson v. Towsley, 13 Wall. 73, 80-85 (1871), Miller, J. 2 Colorado Coal & Iron Co. v. United States, 193 U. S. 807 (1887), cases, Matthews, J. See further Doolan v. Carr, 125 id. 624r-35 (1888), cases. 8 United States v. Ss^n Jacinto Tin Co., 125 U. S. 273 (1888); United States v. Beebe, 137 id. 342 (1888). * Rector v. Gibbon, 111 U. S. 284-87, 291 (1884), cases, Field, J. See especially Lamb v. Davenport, 18 Wall. 307, 313-15 (1873). Miller, J. 6Bagnell v. Broderick, 13 Pet. 436 (1839). is a matter of record, a copy of which may be so ^ easily obtained that no necessity exists for accepting the receipt of a register as a substitute ; if never i ssued, it is obvious that the title remains in the United States. ^ All that can be claimed as to the effect of documen' s of title 'executed by officers of the government is, that they pass such an estate as the government it- self, on whose behalf the official acts appear to have been done, had at the time, but do not conclude the fact that the estate conveyed was lawfully vested in the grantor, 2 Lands granted by Congress to aid in the constmc- tion of railroads do not revert after condition broken until a forfeiture has been asserted by the United States, either through judicial proceedings instituted under authority of law toj^ that purpose, or through some legislative action legally equivalent to a judg- ment of office found at common law. Legislation to be sufficient must manifest an intention by Congress to reassert title and to resume possession. As it is to take the place of a suit and a judgment estabhshing the right, it should be direct, positive, and free from all doubt or ambiguity. 3 When the United States acquire lands within a State by purchase,' with the consent of the legislature of the State, for the erection of forts, magazines, arse- nals, dock-yards, and other needful buildings, the Constitution confers upon them exclusive jurisdiction of the tract; but when they acquire such land in any other way, their exclusive jurisdiction is confined tc the structures and land used for public purposes. A State making a grant may prescribe conditions not inconsistent with the effective uses of the property for the purposes intended; as, by reserving the right to tax private property within the limits of the tract,* An act of Congress approved March 3, 1887 (24 St. L. 476), provides that it shall be unlawful for any per- son or persons not citizens of the United States, or who have not lawfully declared their intention to be- come citizens, or for any corporation not created by or under the laws of the United States or of some State or Territory, to hereafter acquire, hold, or own re&l estate so hereafter acquired, or any interest therein, in any of the Territories or in the District of Columbia, except such as may be acquired by inherit- ance or in good faith in the ordinary course of justice in the collection of debts heretofore created: £ro- vided. That the, prohibition of this section shall not 1 Langdon v. Sherwood, 124 U. S. 83 (1888), Miller, J. See also Fenn v. Holme, 21 How, 488 (1858); Hooper v. Scheimer, 23 id. 249 (1859); Foster v. Mora, 98 U. S. 425 (1878). = Sabariego v. Maverick, 124 U. S. 283 (1888); Herron V. Dater, 120 id. 464 (1886). a St. Louis, &c. E. Co. v. McGee, 115 U. S. 473-74 (1885), cases, Waite, C. J.; New Orleans Pacific R. Co. u. United States, 124 id. 129 (1888), cases; Soutl^ern Pacific R. Co. V. Orton, 32 F. R. 457 (1879); Same v. Poole, ib. 451 (1887); Denny v. Dodson, ib. 899 (1887). * Fort Levenworth R. Co. v. Lowe, 114 U. S. 525, 530, 538 (1885), Field, J. ; Chicago, &c. R. Co. v. McGlinn, ib. 5i5 (1885); Foley v. Shriver, 81 Va. 568, 571-75 (1886), cases. LAND 597 LANDLORD apply to cases in -whicli the right to hold or dispose of lands la the United States is secured by existing trea- ties to the citizens or subjects of foreign countries, which rights, so tar as they may exist by force of any such treaty shall continue to exist so long as such treaties are in force, and no longer. Sec. 2. That no corporation or association more than twenty per centum of the stock of which is or may be owned by any person or persons, corporation or corporations, association or associations, not citi- zens of the United States, shall hereafter acquire or hold or own any real estate hereafter acquired in any of the Territories or of the District of Columbia. Sec. 3. That no corporation other than those organ- ized for the construction or operation of railways, canals, or tumpilses shall acquire, hold, or own more 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- ritory, other than as may be necessaiy for the proper operation of its railroad, canal, or turnpike, except such lands as may have been granted to it by act of Congress. But the prohibition of this section shall not affect the title to any lands now lawfully held by any such corporation. Sec. 4. That all property acquired, held, or owned in violation of the provisions of this act shall be for- feited to the United States, and it shall be the duty of the attorney-general to enforce every such forfeiture by bill in equity or other proper process. And in any suit or proceeding that may be commenced to enforce the provisions of this act, it shall be the duty of the court to determine the very right of the matter with- out regard to matters of form, joinder of parties, multifariousness, or other matters not affecting the substantial rights either of the United States or of the parties concerned in any such proceeding arising out of the matters in this act mentioned. Similar legislation has been enacted in several of the Western States. An act approved March 9, 1888 (26 St. L. 45), pro- vides that the foregoing act shall not apply to or oper- ate in the Iftstrict of Columbia, so far as relates to the ownership of legations, or the ownership of residences by representatives of foreign governments, or at- taches thereof. See, as to public lands, Boontt; Domain, 1; Grant, 3; Patent, 3; Pre-emption; Proclamation, 2; Ee- SEEVE, 3; Restore; School; Timber. See generally Abandon, 1; Air; Allitvion; Along; Conversion, 2; Covenant, Real; Crop; Dedication, 1 ; Deed, 2; Derelict; Description, 1; Domain, 1; Dona- tion; Easement; Ejectment; Entry, I, III; Escheat; Estate, 3; Eviction; Execution; Farm; Feud; Fixt- ures; Grant, 2, 3; Hereditament; Homestead; Ice; Inclose; Incumbrance; Lien; Map; Meadow; Mine; Mineral; Mortgaoe; Nuisance; Occupy; Parcel, 2; Partition; Railroad; Realty; Bun; Support, 2; Survey; Take, 8; Tax, 2; Tenement; Tenure, 1; Title, 1; Trespass; Wall; Water; Woods. Compare Solum; Terra. 3. Place; country; sovereignty; territo- rial jurisdiction: as, in inland, law of the land. LANDING-. A place on a river or other navigable water for lading and unlading goods, or for the reception and delivery of passengers. . . The terminus of a road on a river or other navigable water, for the use of travelers, and the loading and unload- ing of goods.' Whether it is public or private, depends on the character of the road which leads to it.' Either the bank or wharf to or from which persons or things may go from or to some ■ vessel in the contiguous water : or the yard or open place used for deposit and conven- ient communication between the land and the water. 2 A road to it is essential to malce it public, unless where it may be used only in connection with trans- portation by water. Obstructing the road one hundred yards from the landing is not obstructing the landing itself. 2 A landing for loading and unloading boats engaged in the coal trade differs from that of a harbor or place to lay up boats empty or laden.s See Riparian. LANDLORD. 1. He of whom land is held subject to the rendering or payment of rent or service.* Correlative, tenant, q. v. One who owns lands or tenements which he has rented to another or others. In feudal times, the proprietor of lands. He gave the possession and use to another person, in consider- ation of a return in services or goods, and retained the ultimate property in the fee."* See Feud. Landlord and tenant. Describes the relation which subsists between the parties to a contract for the occupation of land or buildings thereon. Arises by implication from the use of lands; or is created in express terms by a lease. Paying rent ac- knowledges, prima facie^ a tenancy. Landlord's warrant. Written author- ity from a landlord, to a constable or other person, to levy upon property of his tenant, and, within the time prescribed by law or by agreement, to make public sale of the same, in order to constrain the tenant to observe one or more of the conditions in the contract for ocqupancy, as, that he will pay rent as it becomes due. After the tenant has entered, the landlord's rights respect the rent and the reversion. It the tenant is to repair, the landlord is not liable for a nuisance from 1 State V. Randall, 1 Strobh. Ill (S. C, 1846), Frost, J. 2 State V. Graham, 15 Rich. L. 310 (S. C, 1868), Ward- low, A. J. s Hays v. Briggs, 74 Pa. 385 (1873). ■> Hosford V. Ballard, 39 N. Y. 151 (1868). 5 Patty V. Bogle, 69 Miss. 493 (1882). LANDMARK 598 LARCENY non-repair. The landlord's principal obligation is for quiet enjoyment. Unless otherwise stipulated, he pays taxes, municipal assessments, ground-rent, in- terest upon a mortgage, and insurance. The tenant, upon entry, is invested with all the rights incident to possession; must so use the premises as not to injtire private persons or the public, or the owner's reversion ; ■and must make reasonable repairs. His estate may merge in the fee by his purchase or by descent, and he may surrender his lea^e to the landlord. See further Disclaimer, 1; Dispakaqement, 3; Dis- tress; Ejectment; Emblements; Entry, I; Eviction; FrsTDRES; Ground; Lease; Month; Quit, 2; Rent; Tenant; Use, 2, Occupation; Waiver; Waste. LAIfDMAEK. See Mark, 1 (3); Monu- ment, 1. LANDSCAPE. The law does not recog- nize any easement or right of property in a landscape or prospect. Therefore the owner of a villa has no right to abate, as a nuisance, a building which mars the prospect.' S6e Light. LANGrUAGE. See Art, 3; Construc- tion ; French ; Latin ; Libel, 5 ; ^lander. LANGUIDUS. L. Sick; ill. The return made by an officer, when a per- son, who is to be arrested, is so sick that to remove him would endanger his health or life. Such defendant may be left in the charge of «• deputy. LAPSE.2 A failure, defeat ; also, to fail, pass by or aside. Lapsed. Failed in its destination; be- come ineffectual. Said of a devise or legacy when the de- visee or legatee dies before the testator, or before a given age or event;' of land when the right to pre-empt it is lost.; of a patent to land wjien a petitioner neglects to com- plete his applicatiron and secure a grant ; of a policy of insurance vi'hich is allowed to ex- pire for non-payment of one or more premi- ums; of time when a reasonable period in which to assert a right has passeid. LAECElSrY.* Theft; the felonious tak- ing and carrying away of the personal goods of another. 5 1 Bowden v. Lewis, 13 E. L 191 (1881); Aldred's Case, 9 Rep. .ir, 6, 58 &; 5 Coke, *58 (1611). ^ L. labi, lapsus, to fall, slip. s [3 Bl. Com. 513; 94 Am. Dec. 15S, cases; 13 East, 534; 9 B. Mon. 206. * Contracted from latrociny: L. latrociniujn, rob- bery: latro, a robber, free-booter,— 4 Bl. Com. 229. O. F. larrecin; F. larcin. The y is an English addi- tion,— Skeat. »4 Bl. Com. 229; 3 Coke, Inst. 107. The wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another, from any place, with the felonious intent to convert them to his (the taker's) own use, and make them his property, without the consent of the owner.' A taking and a carrying away of personal property with an intent to steal it.^ Laroenist. One guilty of larceny. Larcenous. Of the nature of larceny. Grand larceny. Larceny of goods above the value of twelve pence.* Mixed or eompound larceny. Includes the-aggravation of a taking from one's house or person. 3 Petit latceny. When the goods are of the value of twelve pence or under.' Simple larceny. Plain theft, unaccom- panied by any other atrocious circumstance.' " Petit larceny " having ceased to exist in England by 7 and 8 Geo. IV. (1827), o. 29; and largely in the United States, the single word "larceny" means " grand larceny," not of the compound sort. Further, having no " simple larceny," we have no, use' for the correlative " grand." * Larceny is an offense against the right of private property. The " taking " implies a want of -consent in the o^pner: therefore, a delivery to another upon trust cannot become the ground of a larceny at common law. But if the bailee opens a package and takes away a part he is guilty of larceny; for then the animo furandi is manifest. Nor was it, at common law, more than a breach of trust for a servant to run away with goods committed to him.* See Embezzle- ment, 3. There must be a " carrying away " — some removal from the place where the goods are found.' See Carry Away. The intent must be " felonious " — aniyno furandi, taking to use and return is a mere trespass.^ The property must be " personalty." At common law, taking a tree, flowers, fruit, or title-deeds is a trespass upon the land. But it any such object was severed by the owner, or by the thief at another time, that act made it personalty. Statutes have made felonious, appropriations of many such articles as, for- merly, constituted trespasses. 12 East, PI. Cr. 553. "The most approved defini- tion " — Ransom v. State, 22 Conn. *166 (18S3), Storrs, J. 2 Commonwealth o. Adaips, 7 Gray, 44 (1666), Met- calf , J. See also State v. South, 28 N. J. L. 39-30 (1859), cases. Green, C. J.; State v. Wingo, 89 Ind.' 206 (1883): 4 Cr. Law M. 661, 604-69 (1883), cases; 70 Ala. 9; 62 Cal. 141; 66 Ga. 193-94; 94 N. Y. 90, 95; 31 Hun, 58; 1 McAll. 196; 5 Cranch, C. C. 493; 3 Bish. Cr. L. § 757. « 4 Bl. Com. 229, 239; 59 Cal. 391. <■ 2 Bish. Cr. Law, %% 757-58, cases. » 4 Bl. Com. 230; 59 Miss. 279; 62 Wis. 63. « 4 Bl. Com. 231 ; 76 Mo. 245. '4 Bl. Com. 232; 82 'Ala. 51. LARGE 599 LAUNDRIES Formerly, also, bonds, bills, notes, and otber evi- dences of debt, having no intrinsic value and not im- porting property in the possession of the holder, were not subjects ot larceny. " Property " includes money, goods, chattels, things in action, and evidences of debt.* Nor, at common law, are animals, at their natural liberty and unreclaimed, which are unfit for food, as, dogs ; for these a civil action for damages may be had.^ Obtaining possession of personalty by fraud, with Intent to convert the same to one's own use, the owner intending to part with the possession only, is larceny.' See Crime; Decoy; Indictment; Lucrum; Pre- tenses, False; Robbery. IiABGE. See At Large; Enlarge; Great; Gross. IiASCIVIOUS.-' Lustful ; wanton ; lewd. Any wanton act between persons of different sexes, who are not inter-married, originating in lustful pas- sion, and not otherwise punished as a crime against chastity or public decency, is called " lascivious car- riage." May also include an indecent act against the will of another.' To sustain an indictment under the Virginia act of 1878, forbidding lascivious cohabitation, the evidence must establish that the parties, not being married, lewdly and lasciviously associated and cohabited, that is, hved together in the same house and as man and wife live together.' See Lewd; Morals. LAST. See Said ; Will, 3. LATE. 1. Existing not long ago, but now departed this life:'' as, the late A. B. 2. Last or recently in a place: as, A. B, late a resident, etc.s 3. Recently in office : as, A. B, late sherifif. Compare Ex, 2. LATENT.9 1. ijTot observable; not ap- parent: as, latent defects in an article of merchandise or machinery, or in an animal. See Caveat, Emptor; Negligence. 2. Applying equally to two or more differ- ent things; opposed to patent: as, a latent ambiguity, q. v. LATERAL.!" Proceeding from, or con- nected with, a side or one side : as, a lateral railroad, lateral support, qq. v. Compare Bilateral; Collateral. 1 Cal. Penal Code, § 7: 70 Cal. S33. »4B1. Com. 332-^5; 72 N. Y. 349, infra. 'Commonwealth n, Barry, 124 Mass. 325 (1878): 125 id. 393 (1878), cases; Phelps v. People, 72 N. Y. 334, 348 (1878), cases. * L. lascivus: laxits. loose. ' [Bouvier's Law Diet. •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). " L. latens: latere, to lie hid. ■i" L. latus, a side. LATH. See Timber. LATIN. Compare French. Pleadings and records were at first written in the Latin language; later, in the Norman or law-French. The arguments of counsel and the decisions of the courts were likewise in Latin. " Law -Latin " is a technical language, easily appre- hended, and durable. On these accounts it is suited to preserve memorials intended for perpetual rules of action. In the time of Cromwell (1649-60), recordswere writ- ten in English. Upon the restoration of Charles n (1660), that innovation was discountenanced: practitioners found the Latin the more concise and significant. Statute of 4 Geo. n (1730). c. 26, directed that proceed- ings should again be written out in English, that the common people might understand somewhat of proc- esses, pleadings, record entries, etc. But the transla- tions of many phrases, names of writs and processes (such as nisi prius, fieri facias, habeas corpus), sounded so ridiculous that, two years later, by 6 Geo. n, c. 14, all technical terms were allowed to remain in Latin, As regards its technical expressions, the law merely stands upon the same footing as other studies.* The conciseness, expressiveness, and condensability of the Latin language fitted it for preserving the prin- ciples of jurisprudence. The civil and canon laws were in Latin, and quoted in the original, as often aa translated. After the Conquest, the conflict between Saxon and French promoted the use of an available neutral speech. As the use and knowledge of Latin declined, misuse of its terms became frequent. See Arhaiqn. LAUlfCH. A vessel already in the water cannot be " launched," the meaning of which in such cases is, " to cause to move or slide from the land into the water." 2 LAUNDKIES. See Chinese. A city ordinance which makes it an oflfense to keep a laundry wherein clothes are cleansed for hire, within the limits of the larger part of a city, without regard to the character of the structure or the appliances used for the purpose, or the manner in which the oc- cupation is carried on, is unconstitutional.' To make an occupation, indispensable to the health and comfort of civilized man, and the use of the prop- erty necessary to carry it on, a nuisance, by an arbi- trary declaration in a city ordinance, and suppress it as such, is to confiscate the property and to deprive its owner of it without due process of law. It also abridges the liberty of the owner to select his own oc- cupation and methods in the pursuit of happiness, and thereby prevents him from enjoying his rights, privi- leges and immunities, and deprives him of the equal protection of the laws, secured to every person by the Constitution.' The ordinances of San Francisco giving the board of supervisors authority, in theii" discretion, to refuse ' 3 Bl. Com. 317-23; 4 id. 418. a Homer v. Lady of the Ocean, 70 Me. 352 (1879). ' Be Sam Kee, 31 F. E. 680 (If 87), Sawyer, J. LAW 600 LAW permission to carry on laundries, except when located in buildings of brick or stone, are unconstitutional.' So is an ordinance providing that permission shall be granted only upon recommendation of twelve citi- zens and taxpayers in the particular block.^ So is an ordinance which makes it an offense for any person to carry on a laundry for pay, within the habitable portion of the oity.^ But an ordinance prohibiting washing and ironing between certain hours of the night may be constitu- tional.^ LAW.5 1. A rule of action dictated by a superior being." The command of a su- perior.' A command addressed by the sovereign of the state to his subjects, imposing duties, and enforced by punishments.^ Laws are made for the government of actions.* The parts of a law are: the " declaratory " part, which defines the right to be observed and the wrong to be eschewed; the " directory " part, which enjoins observance of the right and abstaining from the wrong ; the ' ' renjedial ' ' part, which provides a method to recover a right or to redress a wrong; and, the "vindicatory" part, which prescribes the penalty for a transgression.'" 3. In an important use "law" excludes the methods and remedies peculiar to equity and admiralty, and confines the idea to the action of tribunals proceeding by fixed rules, and employing remedies operative directly upon the person or property of the individ- ual ; as, in the expressions, a court of law, a remedy at law, an action at law, at law.ii Compare Common Law. 3. A positive law; an enactment; an act of the legislative department of government ; a statute. 12 4. " Law " and " the law " frequently refer to systematized rules of action, — the science of jurisprudence as a study or a profession. ' Tick Wo V. Hopkins, 118 TJ. S. 366, 365 (1886), Mat- thews, J. « Be Quong Woo, 13 F. R 339 (1883), Field, J. 'Be Tie Loy, 26 F. E. 611 (1886) — Stockton Case, Sawyer, J. * Soon Hing v. Crowley, 113 U. S. 703 (1885), Field, J. ; Barbier v. Connolly, ib. 87 (1885). ' A. S. lagu, that which is laid, set, fixed: L. lex. Compare Statute, Constitution. • 1 Bl. Com. 3S. ' 1 Shars. Bl. Com. 39. 8 3 Stephen, Hist. Cr. Law Eng. 76: Austin. » Reynolds v. United States, 98 U. S. 166 (1878), Waite, Chief Justice. '» [1 Bl. Com. 63. ' ' [Abbott's Law Diet. ; Atistin v. Butland E. Co., 17 F. E. 469 (1883). ' " See Walter v. Greenwood, 29 Minn. 89 (1883). The primary end of law is to maintain and regulate the absolute rights of individuals.' The law is a science which distinguishes the criteri- ons of right and wrong, and teaches to establish the one and to prevent, pimish, or redress the other. " Locke's division of law: divine law — the law of God, natural or revealed; civil law — the municipal law; law of reputation — morality. Austin's division: divine law — the revealed law of God; positive human law — municipal law; positive morality — morality; laws metaphorically so called — the laws of animate and inanimate nature.* The "laws of a state" usually mean the rules and enactments promulgated by the legislative authority thereof, or long estab- lished local customs having the force of laws. The decisions of the courts are only evidence of what the laws are.* The term " laws " includes not only writ- ten expressions of the governing will, but also all other rules of property and conduct in which the supreme power exhibits, and according to which it exerts, its govern- mental force.5 Natural law, or law of nature. The rule of human action prescribed by the Cre- ator, and discoverable by the light of reason." Divine or revealed law. The law of nature, imparted by God himself." Law of nations, or international law. The law which regulates the conduct and mutual intercourse of independent states with each other by reason and natural jus- tice.' Law of the flag. The law of the nation to which a vessel belongs. Civil law. The law of citizens : the law which the people of a state ordain for their own government. (1) By " the civil law," absolutely taken, is understood the civil- or municipal law of the Roman empire, as comprised in the institute, code, and digest of the emperor Justinian, and the novel constitutions of himself and predecessors.* Whatever strength these Imperial laws may have obtained in Great Britian is due to immemorial usage ' [1 Bl. Com. 124. = [1 Bl. Com. 27. See 25 Tex. 353. ^ Austin, Jurisp., Lect. I, sec. 8. See Maine, Anc. Law, Ch. v. * Swift V. Tyson, 16 Pet. 18 (1848), Story, J. « Phelps V. The City of Panama, 1 Wash. T. 523 (1877), Greene, A. J. » 1 Bl. Com. xxiv, 39-43; 11 Ark. 527; 64 Am. Dec. 817. ' 1 Bl. Com. xxiv, 43. 8 1 Bl. Com. 80, 14: 5 La. 493. . LAW 601 LAW in particular cases and in particular courts, or to in- troduction by express consent o£ Parliament.' See Pandects. (2) The laws which a community or state has established for the regulation of its own affairs, as distinguished from the law of na- tions ; also, that portion of such laws which regulates dealings between subjects or citi- zens, in distinction from criminal law, mili- tary law, maritime law, and the general law-merchant. Compare Municipal Law. Organic law. The fundamental law of a community or state; whether written or unwritten. Positive law. May refer to law actually existing at a given time, or to enacted law. General law. Relates to a whole genus or kind, to a whole class or order. Opposed, local or special law. See Public Law. A law which aflfeots a class of persons or things less than all, may be a " general " law.^ A general law may not import universality in the subjects or in its operation. ^ General laws relate to or bind all within the juris- diction o£ the law-making power, limited as that power may be in its territorial bperation or by constitutional restraints. * A "special" law is such as, at common law, the courts would not notice unless it were pleaded and proved like any other fact.* That a statute be " public " it is not necessary that it be equally applicable to all parts of the State. All that is required is that it apply to all persons within the territorial limits described in the act. " Special " laws provide for individual cases. "Local" laws, while applicable to all persons, are confined in their operation to certain prescribed or defined territorial limits.' Public law. (1) International law. (2) A law involving public interests. Op- posed, private law: a law for the benefit of an individual or individuals. In one sense " public " law designates international law, as distinguished from the laws of a particular nation or state; and in another sense, a law or statute that applies to the people generally of the nation or state adopting or enacting it, as opposed to a "pri- ' 1 Bl. Com. 80, 14; 6 La. 493. = Brooks V. Hyde, 37 Cal. 376 (1809), Sanderson, J. ' Van Eiper v. Parsons, 40 N. J. L. 8 U878), Beasley, C. J.; ji). 126. 'Sedgwick, Stat. & Const. Law, 30: People v. Cooper, 83 111. 569 (1876); 102 id. 219, 229. ' Hingle v. State, 24 Ind. 34 (1865), Frazer, J. ; 26 id. 431; 27 id. 95. « State 1!. Commissioners of Baltimore County, 29 Md.,620 (1868), Alvey, J. See also 17 Cal. 547: 19 Iowa, 43; 22 id. 391; 26 id. 340; 46 N. J..L. 473,513; 39 N. J. E. 126,391; 106 Pa. 377. vate " law which affects an individual or a small num- ber of persons.' Legislative acts concerning public interests are necessarily " public " laws. These may be abolished at the will of the legislature. . . The Dartmouth College Case has no application where a statute is a public law relating to a public subject within the do- minion of the general legislative power of the State, and involving the public rights and public welfare of the entire community.'' ' Foreign law. A law of another sover- eignty or nation. Foreign laws and usages are to us matters of fact,* and must be proved as facts; but not so with the law of nations.* The existence of a foreign law is not judicially no- ticed, unless proved as a fact. A written law is proved by a copy properly authenticated; unwritten law, by the testimony of experts, that is, by those acquainted with the law. As to the manner of authentication there is no general rule, except this: that no proof shall be received which presupposes better attainable testimony. A written law may be verified by an oath, or by an exemplification of a copy, under the seal of the state, or by a copy proved to be a true copy by a witness who has examined and compared the copy with the original, or by a certificate of an officer au- thorized to give a copy, the certificate being duly proved. But these modes are not exclusive of others, especially of codes and accepted histories.' The courts of one state not being presumed to know, are not bound to take judicial notice of, the laws of another State. In this respect they are foreign to each, other. The Supreme Court, exercising an appellate jurisdiction, takes judicial notice of the laws of every State, because those laws are known to the court below as laws alone, needing no averment or proof.* See Comity; Faith and Credit. Municipal law. The rule of civil con- duct prescribed by the supreme power in a state, commanding what is right and prohib- iting what is wrong;' also, the laws of a locality. The municipal laws of England are the unwritten or common law, and written or statute laws.' See Written Law. Pertains solely to the citizens and inhabitants of a state, and is thus distinguished from political law. ' Morgan v. Cree, 46 Vt. 786 (1801), Peck, J. ' Newton v. Commissioners of Mahoning County, lOO U. S. 557-69 (1879), cases, Swayne, J. 8 Dainese v. Hale, 91 U. S. 20 (1875). < The Scotia, 14 Wall. 186(1871). ' Ennis v. Smith, 14 How. 420 (1852), coses, Wayne, J. ; Pierce u Indseth, 106 U. S. 651(1882); 1 Whan. Ev. §§ 287-316, cases. « Hanley v. Donoghue, 116 U. S. 4, 6 (1886), cases. Gray, J.; Fourth Nat. Bank v. Francklyn, 120 id. 751 (1887). See generally 19 Cent. Law J. 226-29, 242-47 (1884), eases. ' 1 Bl. Com. 44; 15 Barb. 114. 8 1 Bl. Com. 63. LAW 602 LAW commercial law, and the law of uations. Is now more usually applied to the customary laws that obtain in any particular city, or province, and which have no authority in neighboring places.^ Defines the just and necessary limits of natural liberty, 2 A city ordinance (g. v.) is not a law in this sense. A constitution is a law in the sense that no State shall pass any law impaiiing the obligation of con- tracts.' See further Impair. Common law. The law common to all the realm. A collection of maxims and cus- toms, of higher antiquity than memory or history can reach.* Nothing else but custom, arising from the universal agreement of the whole commu- nity. * Custom handed down by tradition, use, and experience. 6 See Unwritten Law. Reason dealing by the light of experience with human affairs.^ A system of elementary principles and of general juridical truths, which are continu- ally expanding with the progress of society. 8 Common law develops with new ideas of right and justice.' Common law grows out of the general customs of the country, and consists of defi- nitions of them and of those ancillary prin- ciples that naturally accompany them, or are deduced from them. The common law of our country or century is not necessarily the common law of another, because customs change. It is a sort of law created by the people themselves. When the judges de- clare it, they merely discover and declare what they find existing in the life of the people as a rule of their relations. When the custom ceases, the law ceases. It is this law that people emigrating take with them — by tacit adoption, as far as is consistent with their new circumstances, i" 1 fWharton's Law Diet. > [1 Shars. Bl. Com. 12T. = Ohio, &c. E. Co. ■«. McClure, 10 Wall. 515 (1870); Pacific E. Co. V. Maguire, 20 id. 36 (1873); Lehigh Val- ley E. Co. V. McParlan, 31 N. J. E. 723 (1879); Fiskti. Jefferson Police Jury, 116 U. S. 135 (1886). ' 1 Bl. Com. 67; 2 id. 95. ' [1 Bl. Com. 472. « [1 Bl. Com. n. ' Diokerson v. Colgrove, 100 U. S. 581 (1879), Swayue, J. ■ » P.erce v. Proprietors of Swan Point Cemetery, 10 E. I. 240 (1872). 1 Hurtado v. California, 110 U. S, 5.31 (1884). '" Efanger v. Lewis, 32 Pa. 369 (1859), Lowrie, C. J. ; The term may be used in distinction to "statute law," to "equity law," and the "Roman law" or "civil law." Every country has its common law. Ours is com- posed partly of the common law of England, and partly of our own usages. When our ancestors emi- grated from England they took with them such of the English principles as were convenient for the situ- ation in which they were about to place themselves. . . By degrees, as circumstances demanded, we adopted the English usages, or substituted others better suited to our wants, till at length, before the time of the rev- olution, we had formed a system of our own, founded in general on the English constitution, but not without considerable variations. ^ The common law of England is not to be taken in all respects as that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.'' The common law of England can be made part of our Federal system only by legislative adoption. The United States has no common law. Each State may have its own local customs and common law. The power of the United States is expressed in the Con- stitution, laws, and treaties. The English common law was adopted by the original Thirteen Colonies only so far as it suited their conditions, from which circum- stance what is common law in one State is not so con- sidered in another. The judicial decisions, the usages and customs of the respective States, determine to what extent the common law has been introduced into each State.' The old common law is the basis of all State laws, modified as each sees fit.* It has been repeatedly held that the common law of England, up to the time of the Declaration of Inde- pendence, is as much a part of our system of juris- prudence as it is of that of Great Britain. The decis- ions of the common-law courts of the counti-y show what that common law is. We have modified the law by enactments and practice.* The common law being the substratum of the juris- prudence of the Thirteen States by which the Constitu- tion was adopted, and the framers being educated under it, the terms of the -instrument are to be con- strued by the common law.* Nor have the Federal courts jurisdiction of com- mon-law offenses. The laws of the Federal govern- 37 id. 19. See also Jacob v. State. 3 Humph. 514-15 (1842); Morgan v. King, 30 Barb. 13-15 (1858). ' Guardians of the Poor v. Greene, 6 Binn. *558 (1813), Tilghman, C. J. 2 Van Ness v. Pacard, 2 Pet. *144 (1829), Story, J. See also 1 Story, Const. § 157; State v. Eollins, 8 N. H. 561 (1837); Clawson v. Primrose, 4 Del. Ch. 652-53 (1873); Chisholm v. Georgia, 2 Ball. 435 (1793). ' Wheaton v. Peters, 8 Pet. »658-59 (1834), M'Lean, J. * The Lottawanna, 21 Wall. 672 (1874); Clark v. Clark 17 Nev. 128 (1882). " Brown v. Philadelphia, &c. E. Co., 9 F. E'. 185 (1881). " 1 Shars. Bl. Com. 66-67. LA.W 603 LAW oient, as stated, are embodied in the Constitution, acts of Congress, and treaties made by its authority.' The Federal courts do not enforce the common law in municipal matters in the States because it is Fed- eral law, but because it is the law of the State.' The common law is necessarily referred to by the Federal authorities for definitions.* It is- a general repository of rules, principles, and forms.* Because the Federal criminal jm-isprudence has no substantum of common-law crimes upon which to draw for elements of an offense, the com-ts must fol- low the statutes exclusively; using the common law, if necessary, only for definitions of terms.' When acts of Congress use words which are famil- iar in the law of England, they are supposed to be used with reference to their meaning in that law.' By " common law " and " law," the tramers of the Constitution meant not merely suits which the com- mon law recognized; but suits in which legal rights were to be ascertained and determined, in contradis- tinction to those where equitable rights and remedies were regarded; or, where, as in admiralty, a mixture of public law and of maritime law and equity were often found in the same suit.' See Judicial, Power. While we have no general system of judicial na- tional common law, in matters not subject to judicial jurisdiction, we have a complete system of "execu- tive national common law," which frequently differs from the common law administered in the courts. In the administration of the various executive depart- ments, usages have prevailed and are growing up; national and international comraon-law principles have been, and are being, announced and settled; con- sti'uction has been, and is being, given to all the writ- ten laws, — an entire system of executive national common law is in full operation. This grows put of executive administration, and the perfect independ- ence of co-ordinate departments.^ There is no common law of the United States, in the sense of a "national customary law," distinct from the common law of England, as adopted by the L .^ — ' Pennsylvania v. Wheeling Bridge Co., 13 How. 5G3 <18B1), M'Lean, J. 2 Transportation Co. v. Parkersburg, 107 U. S. 700 <1862), Bradley, J. See Livingston v. Jefferson, 4 Hughes, 606 (1811); 1 Kent, 378. ' United States v. Durkee, 1 McAllister, 801 (1856). * Commonwealth v. Webster, 5 Cush. 303, 3i3 (1650). » United States v. De Groat, 30 F. E. 766 (1887), Ham- mond, J. • United States v. San Jacinto Tin Co., 125 U. S. 280 <1888). The Judiciary Act of 1789, § 3, which created the office of attorney-general, without accurate defini- tion of his powers, in saying that " there shall be ap- pointed a meet person, learned in the law," etc., must have had reference to the similar ofBee, with the same designation, existing under the English law. And see, as to a treaty between Mexico and the United States, Benson v. McMahon, 127 U. S. 466 (1888). ' Parsons v. Bedford, 3 Pet. *447 (1830), Story, J. See Fenn v. Holme, 21 How. 486 (1858), cases; Ellis v. Davis, 109 U. S. 497 (1883), cases. 8 3 Lawrence, Compt. Dec. xxii-iv; United States V. Macdaniel, 7 Pet. *15 (1833). several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statute. A determination in a given case of what that law is may be different in a court of the United States from that which prevails in the judicial tribunals of a particular State. This arises from the circumstance that the courts of the United States, in cases within their jurisdiction, where they are called upon to administer the law of the state in which they sit or by which the transaction is governed, exercise an independent though concurrent jurisdiction, and are required to ascertain and declare the law accord- ing to their own judgment. . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Con- stitution is necessarily infiuenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. The code of constitutional and statutory construction which, therefore, is gradually formed by the judgments of the Supreme Court, in the applica- tion of the Constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and constitutes a common law resting upon national authority.' One of the merits of the common is that, instead of being a series of detailed practical rules, estab- lished by positive provisions, and adapted to the pre- cise circumstances of particular cases, which would become obsolete when the course of business ceased or changed, it consists of a few comprehensive princi- ples, founded on reason, natural justice, and enlight- ened public policy, modified and adapted to the cir- cumstances of all the cases which fall within it. These general principles are rendered precise, specific^ and adapted to practical use, by usage, which is the proof of their general convenience, but still more by judicial exposition; so that, when in a course of proceeding by tribunals of the highest authority, the general rule has been modified, limited and applied, according to par- ticular cases, such exposition, when settled and acqui- esced in, becomes itself a precedent, and forms a rule of law for future cases under like circumstances. The effect of this expansive character of the common law is, th^t while it has its foundations in the principles of equity, natural justice, and that general convenience which is public policy,— although these general con- siderations would be too uncertain for practical pur- poses, in the business of an active commimity, — yet the rules of that law, so far as cases have arisen and practices actually grown up, are rendered precise and. certain by usage and judicial precedent. Another con- sequence is, that when new practices spring up, new combinations of facts arise, and cases are presented for which there is no precedent in decision, they must be governed by the general principle, applicable to cases most nearly analogous, but modified and adapted to new circumstances, by considerations of fitness and propriety, of reason and justice, which grow out of those circumstances. Hence, when a new practice or course of business arises, the rights and duties of ' Smith V. Alabama, 124 U. S. 478 thews, J. >, cases. Mat- LAW 604 LAW parties are not without a law to govern them; the general considerations of reason, justice, and policy, which underlie the rules of the common law, will stUl apply, modified and adapted, by the same considera- tions, to the new circumstances. If these are such as give rise to litigation, they, like previous cases, soon come to be settled by jtidicial exposition, and the principles thus settled come to have the efEect of pre- cise and practical rules, i La'w of the States. The general system of law regulating the relative rights and duties of persons within the jurisdiction of a State, operating upon tham even when engaged in inter-State commerce, and sub- ject to be modified by State legislation, whether consisting in that customary law which prevails as the common law of the laud in each State, or as a code of positive provisions expressly enacted, is nevertheless the law of the State in which it is adminis- tered, and derives its force and efEect from the actual or presumed exercise of its legis- tative power. < This law does not emanate from the authority of the National government, nor flow from the exercise of any legislative powers conferred upon Congress, nor can it be implied as existing by force of any other leg- islative authority than that of the several States in which it is enforced. It has never been doubted that this entire body and system of law, regulating in gen- eral the relative rights and duties of persons witliin the territorial jurisdiction of the State, without regard to their pursuits, is subject to change at the will of the legislature of each State, except as that will may be restramed by the Constitution of the United States. It is to this law that persons within the scope of its oper- ation look for the definition of their rights and for the redress of wrongs. It is the source of all those relative obligations and duties enforceable by law, the observ- ance of which the State undertakes 'to enforce as its public policy. And it was in contemplation of the con- tinued existence of this separate system of law in each State that the Constitution was framed and ordained with such legislative powers as are therein granted expressly or by reasonable implication. 2 Written law; Tinwritten law. The mu- nicipal laws of England are : (1) The unwrit- ten or common law, which includes customs, general and particular, and particular laws. General customs, or the common law prop- erly so called, are founded on immemorial universal usage, whereof judicial decisions are the evidence. Particular laws are such as, by special custom, are adopted and used ' Norway Plains Co. v. Boston, &c. E. Co., 1 Gray, 337-^8 (1P54), Shaw, 0. J. See also, in general, 22 Am. Law Rev. 1-29, 30-S6, 57-65 (1888); 21 id. 270-84 (1887). = Smith V. Alabama, 124 U. S. 475 (1888), Matthews, Justice. only in particular courts, and under the con- trol of the common and statute la^s; naniely, the Roman civil, and canon laws. (3) The written or statute law; being acts of legis- lative bodies, to supply what is defective, or to amend what is amiss, in the unwritten laws.i See Statute. Law of the land. (1) The general public law of a State, binding upon all the members of the community under all circumstances, and not partial or private laws, affecting the rights of private individuals or classes of in- dividuals.^ Also, due process of law. See Process, 1, Due, etc. (3) " This Constitution, and the Laws of the United States which shall be made in pursu- ance thereof ; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." 3 This means that the Federal Constitution, laws and treaties, are to be of jjaramount obligation when State and Federal laws conflict — the principle on which the authority of the Constitution is based.* See Govern- ment. The term "law " accompanies many common words as ^ prefix or adjective, in senses largely self-explan- atory: as, la.w-adviser, law-blanks, law-c/erfc, la.w-fii~m, layr-publications, la.vf^writer, l&w-language, law- terms, \&vi-Latin, l&yf-judge, law-ma.Tims, law-mafcer, law-o.^cer, layf -practice, \&w-reports, law-stde, law- student. Maxims: The contract makes the law. The law aids the vigilant; forces no one to do a vain, useless, or impossible thing; injures no one ;— never works an injury; does nothing in vain; regards not trifles; re- gards equity; always gives a remedy; speaks to all with one mouth — is no respecter of persons. What is just and right is the law of laws. Law day. The day appointed in a mort- gage for the payment of the money; orig- inally, the time after which all legal rights were to be forfeited.* Compare Lex. See By-law ; Canon ; Chtieoh ; Code ; Commebcial; Constitotion; Lykoh; Maritime; Mar- tial; Merchant; Military; Pamphlet; Political. See also Act, 3; Bill, II; Conflict; Court; DbciS' ' [1 Bl. Com. 63-91, xxiv. " Millett V. People, 117 111. 301 (1886), cases, Sohol- field, J. See also 61 111. 118; 5 Mich. 264; SO Miss. 479; 48 N. H. 61; 20 Barb. 199; 67 Pa. 479; 6 E. L 146; 5 Heisk. 189; 30 Wis. 146. ^ Constitution, Art. VI, par. 2. \£a5). Siebold, 100 U. S. 399, 392 (1879), Bradley, J.; Exp. Wall, 107 id. 289 (1882); 21 Cent. Law J. 147-48 (1885), cases; Cooley, Const. Lim. 353. » Kortright v. Cady, 21 N. Y. 345, 366, 367 (1860); 11 id. 365; 10 Conn. 280; 24 Ala. 149; 70 id. 265-66; 17 F. E. 778. LAWFUL 605 LEAD ion; Forum; Judge; Judgment; Jury; Lawful; Lawyer; Learned; Outlaw; Flace, 1; Prescrip- tion, 1; Protection; Provided; Kelioion; Repeal; Retrospective; Right; Road, 1; Sanction; Techni- cal; Uniform. LAWFUL. In accordance with the law of the land ; according to the law ; permitted, sanctioned, or justified hy law. Unlawful. Implies that an act is done or not done as the law allows or requii-es.i "Lawful," "unlawful," and "illegal," refer to tiiat which in its substance is sanctioned or prohibited by the law. " Legal " occasionally refers to matter of form alone. Thus, an oral agreement to convey land, thougfi void by law, is not "unlawful:" it is " illegal," because not in lawful form." "Lawful" properly implies a thing conformable to or enjoined by law; " legal," a thing in the form or after the manner of law or binding by law.' See fur- ther Legal. A "lawful" writ, warrant, or other process does not imply a process legally sufficient, but is the same as "legal" process or process "of law." A writ or warrant issuing from any court, under color of law, is a "legal" process, however defective.* The insertion of "unlawfully" in an indictment may not dispense with the necessity of speoiflcally alleging the elements of the offense.' But the charge of an offense in the precise words of the statute will dispense with the addition of " unlaw- fully." " "It shall be lawful" may, or may not, impose an imperative duty.' Other expressions are: lawful age;= lawful and vmlawful assembly, g. v.; lawful and unlawful con- dition or covenant, qq. v.; lawful deed, g. v.; lawful discharge;' lawful goods;'" lawful issue;" lawful juror; >" lawful money,'' q. v.; lawful trade; '* law- ful authorities.'^ Ciompare Juridical; Legitimate; Illicit; Valid; Voro. LAWSUIT. A popular term for a suit at law to which there are two parties. May include an arbitration." See Lis, Pendens; Maintenance, 1. I State V. Massey, 97 N. C. 468 (1887). ' [Bouvier's Law Diet.] 8 [Crabbe, Syn. 579, ed. 1879. » Nason v. Staples, 48 Me. 128 (1857). 'Commonwealth v. Byrnes, 126 Mass. 849 (1879), cases. •United States v. Thompson, 6 McLean, 56 (1863). ' See 17 N. J. L. 169; 1 Edw. 84; 11 Ad. & E. 823 MMd. Ch. 238. » 1 Wheat. 447; 13 id. 377. 10 1 Johns. Cas. 1 ; 2 id. 77, 180. " 3 Edw. 1 ; 10 B. Mon. 188; 31 Tex. 804. ■no y erg. 524. '3 16 Ark. 83; 3 Ind. 358; 2 How, 844; 3 id. 717. " 15 Wend. 18; 3 T. R. 782. '•8 Pet. 449; 9 id. 711. >• Packard v. Hill, 7 Cow. 434, 441 (1827). LAWYER.' A popular term for a per- son whose business it is to know and to prac- tice law : give advice, prepare papers, con- duct proceedings, etc. The term does not discriminate between the func- tions of an advocate, attorney, barrister, counsellor, conveyance, proctor, and solicitor. Any person who, for fee or reward, prosecutes or defends causes in coiuis of record, or other judicial tribunals of the United States, or of any of the States, or whose business is to give legal advice in relation to any cause or matter whatever." See Attorney. LAY. 1, adj. (1) Pertaining to the laity; not of the legal profession. Layman. A person not admitted to prac- tice law ; one not learned in the law.' (3) Not ecclesiastical ; organized for secular purposes : as, a lay corporation, q. v. 3, V. To state, name, allege, charge: as, to lay an offense, damages, venue.* Compare Lie, 1 (3). Lay days. Days allowed for loading and unloading the cargo of a vessel.5 See Work- ing-days. Lay out. In highway laws, embraces, ordinarily, all the acts necessary to the com- plete establishment of a highway." May include every order of municipal authorities by which private property is taken for public use.' To locate and establish a new highway.' May mean to take and maintain a road." " Lay out and complete a street: " to determine the time at which it shall be graded, finished, and fitted for travel; to make a de facto street.'" " Lay out " and " lay off " a road: to lay down the whole ground covered, specifying the width." LEAD, V. To conduct in the way of duty. More frequently, "mislead." See INSTRUCT, 3. Lead a use. To declare or specify what ude.^^ Lead a witness. To suggest, by inter- rogation, the nature of the answer or answers » -yer is a suffix, as in sawyer. "Revenue Act 13 July, 1866, § 79: 14 St. L. 121. » Gk. laoa, the people. * A. S. lecgan, to cause to lay: licgan, to lie. » 8 Kent, 202. • [Cone V. Hartford, 38 Conn. 376 (1859), Storrs, C. J.; 19 id. 597. 'Fuller V. Springfield, 128 Mass. 291 (1877), Gray, C. J. 'Foster v. Park Commissioners, 133 Mass. 329 (1882), Field, J. » Charlestown, &c. R. Co. v. County Commissioners, 7 Mete. 84 (1843). 1" Bowman v. Boston, 5 Cush. 8 (1849); Fernald c. Boston, 12 id. 678-79 (1863). " Small V. Eason, 11 Ired. L. 97 (1850). 1" See 2 Bl. Com. 863. LEAD-WORKS 606 LEASE' it is desired that the witness shall make. See Leading Question. Ijead in a cause or trial. To have the chief management of one side of a matter in litigation. See Leading Ccnmsel. Leading ease. A decision which is re- garded, more or less generally, as settling the law upon the question involved. The idea may have been originally that such case stands first, in time, in a series of cases — takes the lead, is followed by others, enunciates the rule. Decisions, with and without annotations, and illus- trative -of different branches of the law, have been collected and styled " Leading Cases." Leading counsel. That attorney, of two or more employed upon the same side of a cause, who has the principal management of his client's case. Leading question. A question which plainly suggests the answer wanted from a witness. See further Question, 1. LEAD-WORKS. See Nuisance. LEAF. See Folio. LEAGrUE. The jurisdiction of the United States extends into the sea a marine league or three geographical miles, l q. v. LEAKAGE. An allowance for loss by leaking. When bottles which have been filled and corked are found partly empty, while still whole, and the corks in their places, the deficiency, whether called ' ' ullage ' ' or " wantage " or by any other name, can only have arisen from leakage. = LEAKTINGr. The courts are said to lean or to have a leaning againsi a, particular construction or result, when some rule of policy or expediency directs them to presume in favor of another view or result.' LEAP. See Yeae. LEARNED. Judges who have been reg- ularly educated in the law by study find practice are said to be " learned in the law," in distinction from judges, not possessing such qualifications! and said to be "not learned" or "unlearned" in the law, who formerly, as advisers or associates, sat with such law-judges. LEASE.^ A conveyance of. any lands or tenements (usually in consideration! of rent ■ Acts 5 June, 1T94, 20 April, 1818; 1 Story, L^W3,353; 3 id. 1694. » Cory V. Boylston Ins. Co., 107 Mass. 144 (1871). = See First Nat. Bank of Kansas City v. Hartford Fire Ins. Co., 95 U. S. 678 (1877), Harlan, J. j 111 id. 341-43. * F. laisser, to let go: L. faxare, to slacken, let go. or other annual recompense,) made for life, for years, or at will, but always for a less time than the, lessor has in the premises.^ A conveyance of the whole interest constitutes an assignment. 2 Also, to convey the use of realty by a lease. See Let, 3. A contract for the possession and profits of land and tenements on the one side, and a recompense of rent or other income on the other; in other words, a conveyance to a person for life, or years, or at will, in consid- eration of a return of rent or other recom- pense. ' The creation of an estate for years, commonly called a term. While this is both the ordinary and the strictly legal signification, the word may be used in a different sense.* A lease for years is a contract for the pos- session and profits of lands for a determinate period, with the recompense of rent.' A conveyance by the owner of an estate to another of a portion of his interest therein, for a term less than his own, in considera- tion of a certain annual or stated rent, or other recompeuse.6 Lessor. A person who grants a lease. Lessee. He to whom a lease is made. The usual words are "demise, grant, and to farm let,'" It is not necessary that " lease " be used. What- ever is equivalent will be equally available, if the words assume the form of a license, covenant, or agreement, and the other requisites of a lease as a contract are present.^ A lessee entering into possession under a lease is estopped, while retaining possession, to deny his land- lord's title. This arises from the nature of the con- tract of lease, which is for the possession and use, for a, prescribed period, of the lessor's property, under considerations to him by way of rent or otherwise. It implies an obligation to surrender the premises to the lessor on the termination of the lease, that is, at the expiration of the time during which the owner has stipulated that the lessee may have the use and pos- session of his property. The lessee cannot be allowed 1 3 Bl. Com. 317. = 3 Bl. Com. 317; 105 Pa. 473; 13 B. L 358. = Branch v. Doane, 17 Conn. *411 (1845), Storrs. J., 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. < Jamaica Pond Aqueduct Corporation v. Chandler, 9 Allen, 167-69 (1864), Bigelow, C. J. " United States v. Gratiot, 14 Pet. S38 (1840), Thomp- son, J.; Thomas v. West Jersey E. Co., 101 XJ. S. 78 (1879). "Gray v. La Fayette County, 6B Wis. 570 Lyon, J. ' 2 Bl. Com. 317. « Moore v. Miller, 8 Pa. 383 (1848), Coulter, J. LEASE 607 LEGACY to controvert the title ot the lessor without disparag- ing his own, and he cannot set up the title of another without violating that contract by which he obtained and holds possession, and breaking that faith which he has pledged, and the obligation of which is still con- tinuing and in full operation. ^ A lease may be at will, for years, for life, of perpet- ual duration, — for any period which will not exceed the interest of the lessor, and subject to a condition, which is a qualification annexed to the estate by the grantor, or lessor, whereby the estate or term granted may, among other things, be defeated or terminated.' A lease not to exceed three years from the making need not be in writing. But in Maine, Massachusetts, New Hajnpshire, Ohio, Vermont, and perhaps in other States, a parol lease creates merely a tenancy at will.' Iioase and release. A conveyance for transferring a fee-simple. Invented after the Statute of tTses was enacted. A lease (a bargain and sale) for years was made by the tenant of the freehold. This, unrecorded, made the bargainor stand seized to the use of the bargainee, and vested in the latter the use of the term; whereupon the statute immediately vested the possession. The bargainee, being in possession, could receive a release of the freehold and reversion, which was made the next day — and this supplied the place of livery of seizin, and amounted to a feofEment.* Leasehold. An estate in land for a fixed term of years. The disposition has been to assimilate leaseholds, at least for long terms, to real estate. The courts have sometimes construed the words '* realty " and " lands " to include them. Some of the States have by statute made them real estate.^ At common law, a leasehold interest in land is per- sonal property, and subject to levy and sale as such," Perpetual lease. A lease unlimited in respect to length of term ; a fee-farm. See Farm. Short lease ; long lease. In common speech, refer, somewhat indefinitely, to the period of time a lease is to run. Sublease; underlease. A lease of prem- ises already leased, made by the first lessee. ' Robertson v. Pickrell, 109 U. S. 614-15 (1883), Field, Justice. Quotes Marshall, C. J., in Blight's Lessee v. Eochester, 7 Wheat. 547 (1882). See also Rector v. Gib- bon, 111 U.' S. 284 (1884); Tilyou v. Reynolds, 108 N. T. 563 (1888), cases. "Wain^r v. Tanner, 38 Ohio St. 120 (1888), cases,- Okey, C. J. 5 1 Washb. E. P. 614. < 2 Bl. Com. 339; 4 Kent, 482. 5 Dawson v. Daniel, 2 Flip. 317, 313 (1878), Hammond, Judge. " Freeman v. Dawson, 110 U. S. 270 (1884), cases. Ef- fect of destruction of the estate, 94 Am. Dec. 662-65, oases. Implied warranties, 84 Cent. Law J. 149 (1887), Whence sub-lessee, under-lessee : a sub-ten- ant, an under-tenant. 1 See Condition; Cbop; Demise; En.ioyment; Flooh; Grant, 2, 3; Landlord; Mineral; Month; Nuisance; Parties; Release; Rent; Surrender, 3; Waiver; Years; Yielding. LEAST. See At Least. LEAVE. 1. To die seized of or owning.- 3. To dispose of by will : as, for a decedent to "leave" property to a certain person.' 3. To die with kindred surviving. " Leave " no issue, referring to realty, means an in- definite failure of issue; referring to personalty, a. definite failure of issue.* A posthumous child may be said to be a child whom an intestate "leaves" at his death.^ See Die, With- out children. Leave of court. Permission given by a court to do something; as, to withdraw an appearance, or a paper filed. Compare Desertion; License; Start. LECTURES. Ctompare Drama. Where persons are admitted, as pupils or otherwise, to hear public lectures, it is upon the implied confi- dence and contract that they will not use any means to injure or take away the exclusive right of the lect- urer in his lectures, whether that be to publication in print or to oral delivery.* A professor in a university, orally delivering lectures of his own composition, does not so communicate them to the public as to entitle a hearer, without permission, to republish them.^ LEDGE. See Vein. LEDGER. See Book, Of accounts. LEGACY.5 A bequest, or gift, of goods and chattels by testament.' A bequest of personalty ; but will be con- strued to apply to realty, if the context re- quires it.i" Compare Devise. Legatee. The person to whom the gift is made. 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). ' Thorley v. Thorley, 10 East, 458 (1809). * Hall V. Chaffee, 14 N. H. 231 a843), cases. » Pearson v. Carlton, 18 S. C. 57 (1882). See 1 Roper, Leg. 1563. •Tompkins v. HaJleok, 133 Mass. 45 (1882), cases. ' Caird v. Sime, H. L., 12 Ap. Cas. 386 (1887): 36 Alb. Law J. 891; 36 Am. Law Reg. 754; ib. 762-690887), cases. Commented on, 36 Alb. Law J. 258-60 (1887): London Law Times. « Mid. Eng. legacie: L. legatum, a bequest: legare, to appoint as deputy. »2B1. Com. 512. loBm-well v. Mandeville, 2 How. 678 (1844), cases; 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 sum of money payable out of a particular fund or thing. A pecuniary legacy, given generally, but with demonstration of a par- ticular fund as the source of its paypient.^ A " demonstrative " legacy differs {roin a " specific " legacy in this respect, that if the fund out of which it is payable fails for any cause it is nevertheless entitled to come off the estate as a general legacy : and it dif- fers from a " general " legacy in this, that it does not abate in that class, but in the class of speciflc lega- cies." All cases proceed upon the principle that whether a legacy Is demonstrative or specific must be decided by the intent of the testator as it appears from the will; -and that, where a legacy is held to be demonstrative, a general intent is shown to have it paid without refer- ence to the fund on which it is primarily charged. ^ The rule that demonsti'ative legacies, or such as are payable out of a specific fund, are preferred, as to that fund, in a case of deficiency of assets to pay all legacies, is a rule of intention merely.* General legacy. A legacy so given as not to amount to a bequest of a particular thing or money, distinguished from all others of the same kind. I^pecific legacy. A be- quest of a part of the testator's personal es- tate which is so distinguished.^ A legacy is " general " where its amount or value is a charge upon the general assets, and where, if these are sufificient to meet all the provisions of the will, it must be satisfied. A legacy is " specific " when it is limited to a particular thing, subject, or chose in ac- tion, so identified as to render the bequest inapplicable to any other; as, the bequest of a horse, a picture, a jewel, or a debt due from a person named, and, in spe- cial cases, even of a sum of money." A " specific " legacy is one that can be separated from the body of the estate and pointed out so as to individualize it, and enable it to be delivered to the legatee as a thing sui generis.'^ A " general " legacy may or may not be a part of the testator's property; but a " specific " legacy must be a part, severed or distinguished.* • Glass V. Dunn, 17 Ohio St. 434 (1867). 2 Armstrong's Appeal, 63 Pa. 316 (1869); 1 Eoper, Leg. 191, 198. See also 47 Ala. 654; 66 Md. 122; 23 N. H. 164; 16 N. Y. 365; 19 (Jratt. 438; 1 Ld. Cas. Bq., W. & T., *274. s Stevens v. Fisher, 144 Mass. 127(1887), cases, Devens, Judge. * Eambo v. Rumer, 4 Del. Ch. 9 (1866); 1 Hop. 192. i Tift V. Porter, 8 N. T. 518 (1853); Schofieldj). Adams, 12 Hun, 369 (1877): 1 Eop. 191. « Langdon u. Astor's Executors, 3 Duer, 643 (1864), Duer, J. ' Harper v. Bibb, 47 Ala. 653 (1872), Peters, J. 8 [Bothamley v. Sherson, L. E., 20 Eq. 308-9 (1875), Jessel, M. E. See also Bradford v. Haynes, 20 Me. 107 (1841); Loring v. Woodward, 41 N. H. 394 (1860); Be Es- tate of Woodworth, 31 Cal. 601 (1867); Smith v. MoKitt erick, 51 Iowa, 551-52 (1879); Ashbumer u. Maguire, 2 To make a legacy " speciflc " it must appear by ex- press words, or by inference resting upon a strong, solid, rational interpretation of the will, that the testa- tor intended that the legatee should take the particular thing and nothing else.^ If the thing specifically bequeathed does not remain at the death of the testator, there is no legacy." Vested legacy. When the interest of the legatee is so fixed as to be transmissible to his personal representatives, although he dies before the period arrives for payment of the money. Contingent legacy. When, from the terms of the bequest, or from the uncertainty of the event, upon which the legacy is made payable, no immediate inter- est passes to the legatee, but his title to the legacy depends upon his being in a condition to receive it when due. ^ Where a legacy is given to a person to be paid or payable at or when he shall arrive at the age of twenty-one, or at a future definite period, the interest in the legacy vests immediately on the testator's death, the time being annexed to the payment and not to the gift of the legacy. This rule is positive except when clearly overborne by the expressed or necessarily im- plied intention of the testator.* When there is a substantive bequest of money to be paid at a future time, the legacy is "vested." When there is no antecedent bequest, independent of, the period fixed for payment, the legacy is ■' contingent." ^ In England, when a legacy is given to a person " as," "if," "when," or "provided" he arrives at a certain age, or " at " that time, and there is no other control- ling evidence of intention, the legacy is contingent. The rule' is a correct one where the words "if" or " provided " are used, and in cases where the other words are used in giving a legacy to a minor if there is a provision for intermediate support or other evi- dence of an intention to give contingently. "See When. The words " in case " imply a condition as ex- plicitly as "if," "upon," and the like, and express a contingency.' A direction to pay when the legatee attains a cer- tain age, the interest of the fund being given him in the meantime, shows that a present gift is intended, and the legacy vests in interest at the death of the testator. But a direction to pay at a future period vests in interest immediately, if the payment bepost- Ld. Cas. Eq,, W. & T., »267, 274, 320, cases; 2 Williams, Ex. [1158], cases. > Wyckofl V. Perrine, 37 N. J. E. 120-21 (1883); 1 Eop. 234. = Hoke V. Herman, 21 Pa. 305 (1863), cases. ^ 1 Eoper, Leg. 550. « Bayard v. Atkins, 10 Pa. 17-18 (1848), cases; Pen- nook V. Eagles, 102 id. 294 (1883). 5 Bowman's Appeal, 34 Pa. 23 (1^9), cases; Seed's Appeal, 118 Pa. 820 (1888). » Colt V. Hubbard, 33 Conn. 286-86 (1866). See also House V. Ewen, 37 N. J. E. 374 (1883). 'Eoberts' Appeal, 69 Pa. 72 (1868). LEGACY 609 LEGACY poned for the convenience of the estate or to let in some other interest.' Ordinarily, an unqualified gift of the use, income and improvement of personal estate vests an absolute interest.* A rule of construction is, that when a bequest is made to individuals by name, although they in fact constitute a class, the intention to give to them in- dividually is indicated, and thus the share of one dying before the testator will become intestate property. But this rule, founded on the supposed wish of the testator, may be controlled by those portions of the will, if such exist, which indicate an intent that such shall not be the result. If it appears from the whole will that the testator intended that his beneficiaries should take as a class, the share of one who dies before the testator will go to the survivors.^ When a legacy is given to a class as " the children " of a person, and no period is fixed for the distribution of the legacy, it is considered as due at the testator's death, and none but children born or begotten pre- viously are entitled to share in it. Where there is postponement of the division of a legacy given to a class until a period subsequent to the testator's death, any one who answers .the description so as to come within the class at the time for division will be entitled to a share, though not in esse at the death of the tes- tator, unless the will shows an intention in the testator to limit his boimty to such of the class as would an- swer the description when the will took effect by his death. Where the bequest is in terms immediate, and so intended to be. and the description of persons to take is general, there none that do not fall within the description at the time of the testator's death can take. * See Each. Other descriptive terras applied to legacies are: absolute, vesting at once, uncondition- ally; accumulative, cumulative, or addi- tional, superadded to another legacy ; alter- native, of one of two things; conditional, dependent upon some event, contingent; lapsed, where the legatee dies before the testator, or before a specified event ; residu- ary, of the residuum (q. v.) of the estate. The want of permanency in the condition of differ- ent kinds of personal property has occasioned much difBculty in construing bequests of future interests in chattels personal. Without considering such bequests, and having in view only general bequests of personal property or money, the rule is that, by means of an express trust, personal property may be subjected to any hmitations not inconsistent with the rule against perpetuities, and it is established that, by or without •Cropley v. Cooper, 19 Wall. 174 (1873), cases, Swayne, J.; 2 Bl. Com. 513. ' Chase v. Chase, 132 Mass. 474 (1883), cases; 86 Cent. Law J. 573-76 (1888), cases. 'Towne v. Weston, 133 Mass. 516(1883), cases. ' Chasmar v. Bucken, 37 N. J. E. 418 (1883), oases, Eimyon, Ch. On legacies given in a particular char- acter, see 8 Va. Law J. 198, 366, 335, 396 (1884), cases: 18 Cent. Law J. 87, 104, 126, 146 (1884),— Joum. Jurisp. (39) creating an express trust, an executory bequest of personal propei-ty to take effect on a contingency that must happen, if at all, on the death of the first taker, may be a valid bequest'. In cases of deficiency of assets, general legacies " abate " proportionably ; but a specific legacy not at all, unless there is not sufficient without it. Demon- strative legacies abate as between themselves, and pari passu with specific legacies, but are preferred to general legacies." See Abatemknt, 3. Specific legacies are invariably liable to " ademp- tion;" as a rule, general and demonstrative legacies are not.* See Ademption. A legacy equal to or greater than a debt is a " satis- faction " of the debt; less than the debt, it is not a satisfaction pro tanto. But slight circumstances will rebut this presumption. Where there are two legacies of equal amounts, the legatee takes one only; other- wise, if the amounts are unequal.' A bare direction that a devisee shall pay money to a legatee creates a personal obligation. To constitute a " charge upon the land " devised, there must be ex- press words to that effect or a necessary implication that such was the intention.* Realty will not be charged with the payment of debts and legacies when there is personalty more than sufficient to pay them, unless the intention to charge the realty and exonerate the personalty is clear. ^ When the testator has not created an express trust fund wherewith to pay legacies, but has made a gen- eral residuary disposition of his whole estate, blending realty and personalty in one fund, the realty is con- structively charged with the legacies.' If a legacy is made a personal charge on a devisee, acceptance of the devise imposes a personal liability on him, and he takes as a purchaser in fee; but if the legacy is charged on the estate, he takes as a benefi- cial devisee.' A devise or bequest to a person for the benefit of himself and others, though accompanied with power to sell, lease, use, or expend, does not confer an abso- lute property in the first taker, nor make the object liable for his debts.' A legacy is the transfer o£ an inchoate interest, and not perfected until the executor consents to pay it. His duty is first to see that the debts of the estate are ' Hooper v. Bradbury, 133 Mass. 306, 308 (1883), cases. Field, J. 22 Bl. Com. 513; 4 Ves. 160; 11 Pa. 72; 1 Story, Eq. §555. « 2 Story, Eq. § 1111. « See 2 Story, Eq. § 1110; 3 Duer, 541 ; 9 Barb. 57. » Walter's Appeal, 95 Pa. 307 (1880), cases; Cable's Appeal, 91 id. 339 (1879). » Eaverson's Appeal, 84 Pa. 178 (1877): 1 Bop. 699. 'Lewis V. Darling, 16 How. 10-11 (1853), cases; Al- legheny Nat. Bank v. Hays, 13 F. R. 664(1882); New- som V. Thornton. 82 Ala. 402 (1886), cases. » Funk V. Eggleston, 92 111. 534 (1879), Baker, J. •Wetherell v. Wilson, 1 Keen, 15 Eng. Ch. E., 81 (1831), cases; 1 Jarm. Wills (Bigelow's ed.), *398, cases; Burt V. Herron, 66 Pa. 403 (1870); Biddle's jVppeal, 80 id. 364 (1876); Pennock's Estate, 20 id. 368 (1853). LEGAL 610 LEGAL paid. Interest is payable after a year from the deatli of the testator.^ v LEGAL.2 1. Pertaining to the under- standing, the exposition, the administration, the science and the practice of law : as, the legal profession, legal advice ; legal blanks, newspaper, qq. v. 3. Allowed or authorized by law ; as, legal — discretion, holiday, interest, tender, trade, qq. V. 3. Implied or imputed in law ; opposed to actual: as, legal malice, q. v. 4. Sufficient to meet the requirements of law : as, legal — charity, condition, consider- ation, contract, covenant, cruelty, notice, obligation,* qq. v. 5. Appointed or designated by law : as, a legal representative, q. v. 6. Cognizable in a court of law ; as opposed to equitable, cognizable in chancery: a3, legal — assets, defense, estate, interest, owner, proceedings, remedy, right, wrong, waste, qq. v. " Legal " looks more to the letter, and "lawful " to the spirit, of the law. " Legal " is more appropriate for conformity to positive rules of law ; " lawful " for accord with ethical principle. "Legal" imports rather that the forms of law are observed, that the proceeding is correct in method, that rules prescribed have been obeyed; " lawful " that the act is rightful • In substance, that mo"al quality is secured. " Legal " is, moreover, the antithesis of "equitable," and the equivalent of " constructive." * Compare Valid. Illegal. Contrary to law. 1. Without authority or support of law, «€ither common or statute. 3. In violation of law; in contravention [Lloyd V. Wyckoff, 11 N. J. L. 227 (1830); 22 id. 383. 2 Pracht V. Pister, 30 Kan. 673 (1883). s Chittenden v. Rogers, 42 111, 105 (1866), cases; Cris- fleld 1). Neal, 36 Kan. 882 (1887), cases ; Long u Hall, 97 N. C. 293 (1887). See also 9 Ala. 619 ; 23 How. 469 ; 10 B. Mon. 120-; 27 La. An. 266, {,.59; 28 Miss. 283; 21 N. J. L. 1.50; 14 N. Y. 270; 29 id. 471; Slid. 102; 8 Wend. 446; 14 id. 123; 19 id. 496; 23 id. 462, 490; 16 Johns. 287; 34 Barb. 553; 10 Ohio St. > 488; 9 Pa. 349; 37 id. 600; 46 id. 394; 68 id. 70; 77 id. 103. ' Miller v. Sherry, 3 Wall. 249 (1801); 7 Dana, 110. s Vallfi V. Fargo, 1 Mo. Ap. 345, 361-53 (1876). ° Levy Cburt v. Coroner, 8 Wall. 507 (1864). ' Old Eng. lewd, ignorant, vile: A. S. Imwed, en- feebled, ignorant, lay; base, licentious. 'State V. Lawrence, 19 Neb. 318 (1886): Webster's- Diet.; Snow v. Witcher, 9 Ired. L. 348 (1849).- LEX 615 LEX Before a person can be convicted of "lewd and lascivious cohabitation," it must appear on the face of the indictment that both parties lewdly and lasciv- iously associated " together " or *' with each other." ' A " lewd house " is a house in which fornication or adultery is practiced; ahouse given to the unlawful in- dulgence of lust.'* But the sexual cohabitation of persons who have in good faith but illegally married is not " lewd and las- civious." ^ Lewdness. An offense against morality by frequenting houses of ill-fame, or by some grossly scandalous aiid public indecency.* Inchides illicit sexual intercourse, and the irregular indulgence of lust, whether public or private ; as, in the nuisance of keeping a house for lewdness." No particular definition of what constitutes " open and gross lewdness "is given in statutes prohibiting it. The indelicacy of the subject forbids it, and does not require of the court to state what particular con- duct wiU constitute the offense. The common sense of the community, as well as the sense of decency, propriety, and morality which most people entertain, is sufHcient to apply- the statutes to each case, and point out what particular conduct is rendered criminal by it." The word " open " qualifies the intention of the per- petrator of the the act; it does not fairly imply that the act must be public, in the sense of being in a pub- lic place. Or in the presence of many people. The offense does not depend upon the number present; it is enough if it be an intentional act of lewd exposure, offensive to one or more persons present. " Open " In Bjch cases is opposed to " secret." ' Compare Bawd; Obscene; Open, 2 (2). LEX. L. That which is laid, or fixed : the law, q. v: In Eoman law, often synonymous with jus, q. v. ; also, a written law, a statute, an enactment; the law of the Twelve Tables. In old English law, a collection of laws; as, the Eoman or civil law. Lex denoted law in its concrete sense; jus, in the general or abstract sense ; like loi and droit in French, and gesetz and recht in German. A verbis legis non est reeedendum. From the words of the law let there be no departing. If the language of a statute expresses a single meaning, effect must be given to it.» Compare Ita lax, etc.; see Statute. 1 State i;. Foster, 21 W. Va. 775 2 Clifton V. State, 53 Ga. 244 (1874). 3 Commonwealth v. Munson, 127 Mass. 470 (1879). ' 4 [4 Bl. Com. 64. ' Commonwealth v. Lambert, 12 Allen, 179 (1860). « State V. Millard, 18 Vt. 577 (1846), Williams, C. J. 'Commonwealth «. WardeU, 188 Mass. 64 (1880), Colt, J. "Broom, Max. 622; 66-Pa. 136. De minimis non curat lex. The law does not concern itself with trifles. To this maxim there are numerous exceptions and reservations. Every legal right, regardless of its ex- tent or value, may be enforced; and every wrong, however slight, has its remedy.' Every felonious taking of property is criminal. Any rude, violent, or insolent touching of another's person is a battery ; and any apprehension whatever is an arrest. Any stepping upon another's land is a trespass.^ In burglary, thrusting any part of the body within the building is an entering. And in arson, the extent of the burning is not regarded, only that some integral part be destroyed. In petty misde- meanors, shades of guilt are not distinguished. ^ One' cent may do for earnest-money, or as a consid- eration. * Any indulgence whatever to the debtor will discharge the surety, g. v. A trust accepted for a moment is thoroughly accepted.^ If land abide in the husband as his own 'a single moment, the wife has dower.* But for a trifling deficiency in the quantity of land a purchaser may not rescind.' Trifling waste is not considered.^ Ground made by alluvion, little by little, belongs to the adjoining land." Where the new evidence is slight, a new trial will be refused. In practice, trifling defects and deviations are not noticed Equity will not relieve where the in- jury is trifling.'" See Scintilla. Ita lex soripta est. The law is so writ- ten. The law, as enacted, must be applied. Where an act allowed an appeal from the granting of a preliminary injunction, but none for a refusal of it, the court observed " Whether the reason be sufS- cient for the distinction or not, it is not enough for us to say, Ita lex soripta esi— the legislatm-e has plainly so declared. ' ' See Hardship. Lex domicilii. The law of the place of domic il. Lex fori. The law of the forum : the place where a remedy is sought. Lex loci. The law of the place. , "Lex loci:" lex loci contractus, the law of the place where the contract is entered into or is to be performed. It may mean lex loci domicilii, the law ' 5 Hill, 170; 20 Barb. 651. 2 3 Bl. Com. 209. 3 4 Bl. Com. 36. < 3 Pars. Contr, 52. » Armstrong v. Morrill, 14 Wall. 139 (1871). « 2 Bl. Com. IBS. ' D'Wolf V. Pratt, 42 111. 198 (1866). f 3 Bl. Com. 238. » 2 Bl. Com. 16, 262. i» See generally 4 Barb. 614; 6 Duer, 590; 6 Exch. 369; 4 Burnt. & E. 763; 69 Cal. 2U7; 70 id. 521; 68 N. H. 39; 37 Hun, 14; 22 Pa. 303; 57 id. 62, 432; 73 id. 129; 97 Mass. 83; 1J8 id. 176; 76 Va. 906; 57 Wis. 110; 61 id. 264, 615; C6 id. 288; 67 id. 347; 31 Alb. I^aw J. 186, cases; Broom, Max. 142. 1 ' Hilbish V. Catherman, 60 Pa. 444 (1£69). See also 39 id. 136; 54 id. E03; 66 Ga. 317; 30 Kan. 762; 3 McCraiy, 275; 111 Mass. 408; 1 Bl. Com. 33. LEXICOGRAPHERS 616 LIABLE of the domicil; ,or lex loci rei sites, the law of the place where the subject-matter is situated; or lex fori, the law of the place of remedy. See Place, 1, Of con- tract. Lex mercatori. The law-merchant. See Merchant. Lex uemiuem cogit ad vana seu inu- tilia peragenda. The law forces no one to do vain or useless things.' Lex non cogit ad impossibilia. The law does not require impossible things. ^ See Possible. Lex non scripta. The unwritten law ; the law of custom ; the common law. , Lex scripta. The written law ; statute law.s Lex rei sitae. The law of the place where the thing in dispute is situated. See Lex Loci. Lex solutionis. The law of the place of performance. Lex talionis. The law of retaliation, q. v. Lex terrse. The law of the land. Lex vigilantitaus favet. The law sus- tains the watchful. See Vigieans. Salus popnli, suprema lex. The wel- fare of the people is the highest law. Individual interests yield to the public welfare; as. iu destroying private property to stay a conflagration, or to aid the common defense in time of war. The powers of taxation, of eminent domain, and of general or internal police, all rest upon this principle.* See Police, 2. Silent leges inter arma. Or, inter arma silent leges. Laws are silent amidst arms. The law of military necessity supersedes all civil Jaw. In time of war administration of the municipal law may be suspended.^ See Martial, Law. LEXICOaEAPHEES. See Dictionary. LIABLE.e 1. Bound, bound for, obli- gated ; responsible, answerable, accountable, chargeable with : as, liable for money. 3. Subject to ; exposed to. That a vessel shall be "liable" to forfeiture for using a certificate of registry to which it is not en- titled, implies that the government may not discover or enforce the forfeiture.' 'Broom, Max. 243-51; 110 U. S. 460; 14 Gray, 78; 3 Johns. 593 ; 103 N. Y: 347 ; 44 Ohio St. 1 71 ; 7 Pa. 806, S14. 2 Broom, Max. 243; 8Cranch,346; 17N.H.411; 55 id. 211; 55Vt. 153. 3 1 Bl. Com. 63. « How. 545; 94 U. S. 6)5; 97 id. 33; 30 P. R. B5; 105 III. 346; 97 N. C. 479; 17 Wend. 285; S3 N. J. L. 690. = 4 Inst. 70; 30 P. R. 179; 79 Va. 641. ^ P. and L. li-, to bind. ' The Mary Celeste, 3 Low. 354 (1874). Liability. 1. The state of being bound or obliged in law or justice.' That condition of affairs which gives rise to an obligation to do a particular thing to be enforced by action. ^ ' May include every form of punishment to which a man subjects himself by violating the common laws of the coimtry.3 2. Obligation to pay money ; indebtedness ; a debt.< See Inc0e. A man's liability for a demand is measured by the amount of property that may be taken from him to satisfy the demand." Conditional or contingent liability. A liability which is not "absolute," but depends upon an uncertain event ; as, the liability that an indorser will be required to pay the note. Before demand and notice, the claim of the holder of a note agaiLSt the indorser is a contingent liability.* See Indorsement", 3. As soon as a surety's obligation becomes absolute he may require the principal to exonerate him, al- though the creditor may not have demanded pay- ment.? See Surety. ^ Individual liability. (1) That of a mem- ber of an association for the obligations of the whole body. See Stock, 3 (3). (3) That of one of two or more wrong-doers for the acts of all. See Contribution. Joint liability. When two or more pei'- sons are bound . as one person to do a thing ; as, to pay money. Joint and several liability. When two or more persons together, or any one of them singly, may be required to do the thing. Limited liability. A liability restricted in any way; in particular the liability of a part- ner for the debts of a limited partnership, q. V. ; also, of a ship-owner for. loss or dam- ages to goods,8 as see Collision, 1. ' Joslin V. New Jersey Car Spring Co., 36 N. J. L. 145 (1873). See also McElfresh v. Kirkendall, 36 Iowa, 326 (1873); Choate v. Quinichett, 13 Heisk. 433 (1873). ' Haywood v. Shreve, 44 N. J. L. 104 (1883)., See also Wood V. Currey, 57 Cal., 209 (1881). ' United States v. Ulrici, 3 Dill, 584 (1875); E. S. § 13. « See Stanton v. Wilkeson, 8 Bened. 357, 3Bo (1876); McGafBn v. City of Cohoes, 74 N, Y. 38P (1878).- » The City of Norwich, 118 U. S. 603(1886), Bradley, J. » Be Loder, 4 Bened. 308, 8J9 (1870); French v. Morse, 2 Gray, 111 (1854). ' Ardesco Oil Co. v. North America Mining & Oil Co., 66 Pa. 381 (1870). ' Providence, &c. Steamship Co. v. Hill Manufactur- ing Co., 109 U. S. 578 (1883). LIBEL 617 LIBEL Vioarious liability. An obligation incurred as agent or representative. LIBEIi.^ 1. In the civil law, the declara- tion in an action. 3. In ecclesiastical law, the formal com- plain t.^ Simple, when the cause of action is briefly set forth; articulate, when stated in distinct averments. 3. A petition for a decree of divorce from the marriage relation ; a statement in writ- ing of charges of such misconduct in a hus- band or wife as will justify a dissolution of the contract of marriage, presented to a court empowered to grant divorces. Filed by the husband in his own person, or for the wife by her next friend (g. v.X at the place of domioil; alleges, under oath, a legal marriage contracted and existing, the cause of complaint or the grounds for a divorce, non-collusion in the prooeedmg, and residence for the required period ; and prays that the respondent be subpoenaed to appear and answer, and that, after the evidence has been heard, a decree of absolute divorce be granted.^ See Divorce. 4. The first proceeding taken in a suit in admiralty; also, to proceed against some res or subject-matter: as, to libel a vessel for materials furnished, for wages due, for dam- ages suffered. Thus, (or example, a libel for a collision avers juris- diction in the court; describes the vessel, her condi- tion, ownership, whereabouts, etc.; states the time and place of the collision, and how, by negligence, it happened, and the extent of the damage done; and prays that process issue against the offending ship, that all persons interested in her be cited to appear and answer, and that the court decree relief in the premises.' See AnMiBALTif. Libel, in the foregoing senses, corresponds to the " declaration " at common law. to the " complamt " or "petition" of modern codes, and to the "bill" fllable in equity practice. Libelant.5 The person who institutes proceedings in an ecclesiastical court, in a court of divorce, or in admiralty. Libelee. The person who is called upon to answer the charge exhibited in a libel. 5. Slander by written or printed words, pictures, signs, or the l ike.^ ■ Mid. Bng. libel, a brief writing: L. Ubellus, a little book, a pamphlet. Libellus faniosus, a defamatory pamphlet,-* Bl. Com. 160; 3 id. 100; 5 Coke, *125; 8 Bin. 'SIT. = See 3 Bl. Com. 100; 3 Steph. Com. 3'.4. 3 See Hancock's Appeal, 84 Pa. 470 (1870); Eealf v. Realf, 77 id. 31 (1874). «See Dun). Adm. Pr. 113; 7 Cranch, 389, 394; 9 Wheat. 380, 401; 3 Mas. 503; 2 Gall. 485. ' Li'-bel-ant. Also spelled libel/ant. » 8 Bl. Com. 125. Malicious defamation of a person made public either by printing, writing, signs or pictures, in order to provoke him to wrath or expose him to public hatred, contempt, and ridicule. 1 See Depamatoht. That species of defatuation which is ef- fected by writing or printing or by pictures and signs. 2 A publication without justification or law- ful excuse, which is calculated to injure the reputation of another, by exposing him to hatred or contempt.'' Any publication the tendency of which is to degrade and injure another person, or to bring him into contempt, ridicule, or hatred, or which accuses him of a crime punishable by law, or of an act odious and disgraceful in society.* Every publication, either by writing, print- ing, or pictures, which charges upon or im- putes to any person that which renders him liable to punishment, or which is calculated to make him infamous, or odious, or ridic- ulous, is prima fade a libel, and imputes malice in the author or publisher toward the person concerning whom such publication is made.' Every publication in writing or in print which charges upon or imputes to a mer- chant or business man insolvency or bank- ruptcy, or conduct which would prejudice him in his business or trade, or be injurious to his standing and credit as a merchant or business man.' A false and malicious publication concern- ing the person, which exposes him to public ridicule, hatred, or contempt, or hinders virt- uous men from associating with him. 7 A censorious or ridiculous writing, picture, or sign, made with a mischievous and mali- cious intent to ward government, magistrates, or individuals." "■4B1. Com. 150. = White V. Nichols, 3 How. 285 (1845), Daniel, J. s Whitney v. Janesville Gazette, 5 Biss. 331 (1873), Davis, J. * Dexter v. Spear, 4 Mas. 116 (1833), Story, J. •White V. NichoUs, 3 How. 291 (1846), Daniel, J.; Steele a. Southwiok, 1 Am. L. 0. *10(i-17, cases. • Erber v. Dun, 12 F. R. 531 (1882), Caldwell. D. J. ' Donaghue v. GafCy, 54 Conn. 208 (1880), Pardee, J. « People V. Croswell, 3 Johns. Cas. *354 (180J), Alex- ander Hamilton. " That definition is drawn with the utmost precision,"— Steele v. Southwiok, 9 Johns. »215 (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 importing a direct charge; they tend to bring the per- son into ridicule and. contempt. ^ Words relating merely to the quality of articles made, produced, furnished, or sold by a person, though false and malicious, are not actionable without special damage,-^ unless they attack the individual. '■' LibelGr.3 One chargeable with a libel. Libelous, Of the nature of, pertaining to, a libel or libels. Blasphemous libel. See Blasphemy. Criminal libel. Such defamatory publi- cation as tends to cause a breach of the pub- lic peace. Seditious libel. Such publication as tends to disturb the tranquillity of society by exciting the people against the government.^ See Sedition. The communication of a libel to one person is a publication,^ q. v. Where the publication is m terms so clear that no circumstances are required to make it clearer, the question of libel or uo libel is one of law for the court. ^ Every libel tends to a breach of the peace, by pro- voldug the person libeled to break it. In criminal prosecutions this tendency is all that the law consid- ers; it pays no regard to the falsity, except, perhaps, £.s a matter in aggravation of guilt, enhancing the punishment.' Upon this principle is explained Lord Mansfield's observation that " the greater the truth, the greater the libel; " that Is, in criminal law, the greater the appear- ance of truth in malicious invective, the more it tends to produce a disturbance of the peace by stirring up the object of it to revenge, perhaps to bloodshed. The maxim used to be "the greater the truth, the greater the libel:" the injurious publication of the truth about a person would be more likely to sting him to a breach of the peace than would the publica- 'tion of a falsehood which he could refute. But now, under the sixth section of Lord Campbell's Act, .6 and 7 Vict- (1843) c. 96, the defendant, in an action for criminal libel, may prove not only that his assertion was true, but also that it was for the public benefit that the statement should be published. The statute does not apply in cases of blasphemous, obscene, or seditious libels.* 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 Mich. 375; 30 Minn. 43; 11 Neb. 281; 3 Johns. 354; 9 id. 215; 24 Wend. 440; 25 id. 198; 87 Pa. 390; 13 R. L 327; 4 McCord, 33 1 ; 4 Wis. isS ; 6 M. & W. 108 ; 15 id. 344, 435 ; 2 Kent, 13; Towns. Sland. 75, § 20, cases; Stark. SI. 4. 1 Solverson v. Peterson, 64 Wis, 201 (1885), cases. i^Dooling V. Budget Publishing Co., 144 Mass. 259 (1887), cases. a Spelled also libeUer. ■" See Queen v. O'Brien, 4 Grim. Law Mag. 424 (1883). fi 4 Bl. Com. 150. Donaghue v. Gaffy, 54 Conn. 266 (1886), cases. '3B]. Com. 125; 4 id. 150. p Odgers, Libel & Sland. *388-90; Folkard's Starkie, Remedies: indictment for the public offense; an action on the case for damages for the private injury. ^ Author, printei', and publisher are alike liable. As to signs or pictures, it is necessary to show, by innuendoes and averments of the defendant's mean- ing, the import and application of the scandal, and that special damage has followed.^ In a civil action, the libel must appear to be false as well as scandalous; for, if the charges ai-e true, the plaintiff has received no legal injury. Therefore' it is that the defendant may "justify," that is, prove the truth. 3 The truth of the matter, as a defense, must be spe-^ cially set up, for use by way of justification or in mit- igation of damages. It makes no difference that the matter is not libelous per se, so long as it shows on its face personal animosity equivalent to actual malice.* Innocence is not presumed; nor is proof of malice required : proof of the pubhcation alone is sufficient. Justification, excuse, or extenuation proceed from the defendant. * If the cbarge is false, malice need not be proved: it is implied. The only perfect answer and bar is the truth of all of the publication. The words are to be taken in their ordinary sense ; and they are actionable per se if directly calculated to degrade, or to injure one in his business." A witness may not give his opin- ion as to the meaning of the words.'' Malice may consist either in a direct intention to injure another or in a reckless disregard of his rights and of the consequences that may result to him.^ The essence is malice: the mind must be at fault. If the language is actionable, the publication is pre- sumed to have been malicious, unless the occasion rendered it prima facie privileged — which circum- ^ stance will rebut the legal inference of malice, and place the btn-den of proving malice in fact upon the plaintiff. » The rules applicable are about the same as in slan- der. But, because effected with greater coolness and deliberation, and more permanent and extensive in its operation, libel is treated with sterner rigor.^ The later constitutions declare, as a right, that' "No conviction shall be had in any prosecution for the publication of papers relating to the official con- duct of officers or men in public capacity, or in any other matter proper for x)ublic investigation or infor- Sland. & Lib. •21-22; Queen v. O'BrJen, 4 Cr. Law M. , 424 (1883); Saffyn's Case— De Libelis Famosis, 5 Coke, *125 (1606). 1 3 Bl. Com. 125. = 3B1. Com. 126. 3 3B1. Com. 126; 4 id. 151. * Donaghue v. Gaffy, 53 Conn. 51-52 (1885). 6 White V. Nicholls, 3 How. 291 (1845); 1 Greenl. Ev. §35. fl Whitney v. Janesville Gazette, 5 Biss. 331- (1873); Dexter tj. Spear, 2 Mas. 115 (18;i5); Commonwealths. Morgan, 107 Mass. 199 (1871). ^Gribble v. Pioneer Press Co., Sup. Ct. Minn. (1887): 26 Am. Law Reg. 797-802 (1887), cases. ^ Gott V. Pulsifer, 122 Mass. 239 (1877), cases, Gray, Chief Justice. e Stewart v. Hall, 83 Ky. 380, 382 (1885). LIBER 619 LIBERTY mation, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direccion of the court, as in other cases." * In discussions, in good faith, of the public conduct and qualiScations of public men, the defendant is not bound to prove the exact truth of his statements and the soundness of his inferences, provided that he is not actuated by express malice, and that there is reason- able gi'ound for such utterances.^ Voters have the constitutional right publicly to dis- cuss and canvass the qualifications of candidates for public oifice, and information honestly communicated at a public meeting, to the effect that a candidate had been charged by a reputable citizen with grave miscon- duct, is a privileged communication, and the person is not liable in an action of libel, although the falsity of the charge could have been discovered by inquiry. In such a case, in the absence of proof of actual malice, the court may nonsuit the plaintiff." Charges of crime, which are false, mad© in a news- paper, against a candidate, though made without mal- ice, and in honest belief of their truth, are not privi- leged communications ; but, if published in good faith, after proper investigation, this fact may go in mitiga- tion.* The constitutional provision referred to does not apply to a civil action for damages.* See Communication, Privileged, 2; Damages; Innu- endo; Liberty, Of the press. Of speech; Mainer; Malice; Newspaper; Review, 3; Rumor; Shyster; Slander. LIBER. See Homo. LIBEIIAL. See Construction, 2. LIBERAEI. See Execution, 3, Writs of. LIBERTY.* 1. The condition of a free- man ; freedom from restraint ; freedom. In its broad sense, the right not only of freedom from servitude, imprisonment or restraint, but the right of one to use his fac- ' Penn. Const. Art. I, sec. 7. Compare Const, Ala. I, 5, 13; Ark. II, 6; Cal. I, 9; Col. II, 10; Conn. I, 5-7; Del. I, 5; Fla. D, R. 10; Ga. I, 9; Dl. n, 4; Ind. I, 9-10; Iowa, I, 7; Kan. B. E. 11; Ky. Xin, 9-10; La. 4; Me. I, 4; Mass. 1, 16; Mich. IV, 43, VI, 25; Minn. I, 3; Miss. I, 4; Mo. II, 14; Neb. I, 5; Nev. L 9; N. H. I, 22; N. J. I, 5; N. Y. I, 8; N. C. I, 20; Ohio, 1, 11; Oreg.I, 8; R. L I, 20; S. C. I, T-8; Tenn. I, 19; Tex. I, 8; Vt. 1, 13; Va. I, 14; W. Va. I, 7-8; Wis. I, 8. « Crane v. Waters, 10 F. R. 620-21 (1882X cases, Low- ell, C. J.; Express Printing Co. v. Copeland, 64 Tex. 354 (1885). cases: 24 Am. Law Reg. 644^8 (1886), cases. ' Briggs V. Garrett, 111 Pa. 404 (1886), cases; 18 Cent. Law J. 112-14 (1884), cases. < Bronson v. Bruce, 59 Mich. 467 (1886), cases. See also Cranei). Waters, 10 F. H. 619 (1883); 31 Cent. Law J. 86-90 (1885), oases. s Barr v. Moore, 87 Pa. 392 (1878). See generally Coo- ley, Const. Lim. 414-26, 431^3, cases. ^ L. libertas; liber, free. ulties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation, i Watural liberty. Consists in the power of acting as one thinks fit, without any re- straint or control, unless by the laws of nature.2 Political or civil liberty. The power of doing whatever the laws permit ; ' that liberty of a member of society, which is no other than natural liberty so far restrained by human laws as is necessary for the gen- eral advantage of the public.^ " Moral liberty " or "natural liberty "is the right which nature gives to all mauMnd of disposing of their persons and property after the manner they judge most consonant to their happiness, on condition of their acting within the limits of the law of nature, and that they do not in any way abuse it to the prejudice of any other man.* " Civil liberty " is the power of doing whatsoever we will, except when restrained by just and equal laws. ''Political liberty " is that condition in whicha man's civil liberty is fully secured.* In constitutional law " liberty " means, not merely freedom to move about unrestrained, but such liberty of conduct, choice, and action as the law giv^s and protects. Liberty is classiHed as natural, civil, and political liberty. " Natural liberty " is commonly em- ployed in a somewhat vague and indeterminate sense. One man will understand by it a liberty to enjoy all those rights which .are usually regarded as funda- mental, and which all governments should concede to all their subjects ; but as it would be necessary to agree what these are, and the agreement could only be ex- pressed in the form of law, the natural liberty, so far as the law could take notice of it, would be found at last to resolve itself into such liberty as the govern- ment of every civilized people would be expected by law to define and protect. Another by natui-al liberty may understand that freedom from restraint which exists before any government has imposed its limita- tions. But as without government only a savage state could exist, and any liberty would be only that of the wild beast, in which every man would have an equal right to take or hold whatever his agility, courage, strength, or cunning could secure, but no available right to more, it is obvious that a natural libei'ty of the sort would be inconsistent with any valuable right whatever. A right in any valuable sense can only be that which the law secures to its possessor, by requir- ing others to respect it, and to abstain from its viola- tion. Rights, then, are the offspring of law; they are born of legal restraints. " Civil liberty " is the condi- ' Re Jacobs, 98 N, Y, 106 (1885), Earl, J. See also People V. McCoy, Cr, Ct. Cook Co., 111., 20 Chic. Leg. N. 151 (1888) — on right of a physician to advertise. 2 1 Bl. Com. 125; 20 Barb. 331. > [1 Bl. Com. 6. < Snyder v. Warford, 11 Mo. 515 (1848): Burlamaqui. ' 1 Shars. Bl. Com. 6. LIBERTY 630 LIBERTY tion in which rights are established and protected, by means of such limitations and restraints upon the ac- tion of individual members of the political society, as are needed to prevent what would be injurious to other individuals, or prejudicial to the general welfare. This condition may exist in any country, but its extent and securities must depend largely upon the degree of political liberty which accompanies it. " Political liberty " may be defined as consisting in an effectual participation of the people in the making of the laws.^ The Constitution provides that " No person shall be . . deprived of liberty . . without due process of law." Liberty here means freedom from all restraints but such as are justly imposed by law; 2 more, then, than freedom from physical restraint or the bounds of a prison: freedom to go whei'e one may choose, and to act in such manner, not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of his happiness; that is, to pursue such callings and avocations as may be most suitable to develop his capacities, and give them their highest employment.^ " Civil liberty " exists only where every individual has the power to pursue his own happiness according to his own views, unrestricted, except by equal, just, and impartial laws,* Every member of a political community must nec- essarily part with some of the rights which, as an indi- vidual, not affected by his relation to others, he might have retained. Such concessions make up the consid- eration he gives for the obligation of the body politic to protect him in life, liberty, and property.' Personal liberty. Consists in the power of locomotion, of changing situation, or moving one's person to whatever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law.6 Next in importance to personal security, q. v. Vio- lated by false imprisonment, q. v. The right forbids that a man be excluded from his country unless by sentence of law.' See Arrest, S (2, 3); Habeas Corpus; Imprison- ment; Life; Magna Charta; Police, 3; Right, 2 (2), Absolute. Liberty of conscience. See Conscience ; Religion. Liberty of speech. The right to state facts and express an opinion. Members of legislatures, "for any Speech or Debate in either House, . . shall not be questioned in any » [Cooley, Princ. Const. Law, 225-23, Torts, 8-10. 2 Constitution, Amd. Art. V; Slaughter-House Cases, 16 Wall. 127 (18T2), Swayne, J., dissenting. 3 Munn V. Illinois, 94 U. S. 142 (1876), Field, J., dis- senting. See also People v. Marx, 99 N. Y. 386 (1885). < Bufchers' Union Co. v. Crescent City Co., Ill U. S. 758 (1834), Field, J., dissenting; ib. 762. ' Canada Sorfthem E. Co. v. Gebhard, 109 U. S. 536 (1883), Waite, C. J. » 1 Bl. Com. 134. ' 3 Bl. Com. 127; 1 id. 124, 137. other Place." ^ But a printed and published speech might not bear this privileged character. Counsel, in presenting his client's view of a case, may use language derogatory to adverse persons; but if he goes out of the way of fair criticism, pertinent to the matters in dispute, and maliciously defames a. party or witness, he becomes liable to damages in an action for the slander.* See further Attorney. Liberty of the press. Consists in lay- ing no previous restraints upon publication ; not, in freedom from censure for criminal matter when published. 3 Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press; but if he pub- lishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done [down to 1694J, is to subject all freedom of sentiment to the prejudices of one man. But to punish dangerous or offensive writings, which, when pubhshed, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of .civil liberty. Thus the will of the individual is left free; the abuse only of that free will is the object of legal punish- ment.* " The liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends, whether it respects government, magistracy or individuals." ' Tte right, in the conductor of a newspaper, to print whatever he chooses without any previous license.*' " Congress shall make no law . . abridging the freedom of speech, or of the press." ' Provisions of like import are embodied in the con- stitutions of the States. Thus, the constitution of New York provides that " Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press." ^ That a legislature may not pass any such law, ap- ^ See Constitution, Art. I, sec. 6, cl. 1. 2 See 3 Chitty, Pr. 887; Maulsby v. Eeif snider, Md. Sup. Ct. (1888), cases. = 4 Bl. Com. 151. < 4 Bl. Com. 152. = People V. Crosswell, 3 Johns. Cas. '394 (1804), Kent, Judge. « Sweeney v. Baker, 13 W. Va. 183 (1878), Green, P. J. See, at length, Commonwealth v. Kneeland, 30 Pick. 219 (1838), Shaw, C. J. \^ Negley v. Farrow, 60 Md. 176-77 (1883). ' Constitution, Amd. Art. I. ' N. Y. Const. Art. I, sec. 8. See references Libel, 6 ; also. State v. Judge of District Court, 34 La. An. 743 (1882). LIBRARY 631 LICENSE plies to all citizens, whether in private or official sta- tion.^ Dining a political canvass, every person has a right to speak, write and publish " his sentiments " and opinions, and to discuss the character, fitness, qualifl- cations, habits, opinions, defects, merits or lack of them, of any candidate for office, in such form and manner as to hira shall seem proper, subject, in law, only to responsibility for the abuse of that right. For such discussions the law sets up no standard of moral- ity, taste, humanity or decency, but leaves those mat- ters wholly to the censorship of the moral sense of the people, except that when such writings or pubU- cations are libelous in their character, and are not privileged, the publisher mtist be able, on a criminal prosecution, to show to a jury not only that they are true, but that they were published with good motives and for justifiable ends. But these provisions will be searched in vain to find any right to publish as genuine any false or forged letter or instrument purporting to be the act of another, although he be a candidate for office. In such a case, neither the forger nor the publisher of the forgery is writing or publishing his sentiments or opinions within the protection of the constitution, or discussing any question within the range of his lawful rights and privileges. ' ' The general liberty of the press must be construed in subordination to the right of any person calumni- ated thereby to hold it responsible for an abuse of that liberty.' Liberty of circulating is as essential to the liberty of the press as liberty of publishing. Hence, printed matter excluded from the mails may be transported otherwise, as merchandise.* Liberty of worship. See Religion. 2. The expression "improper liberties," taken with a woman, is ambiguous. It may mean no more than undue familiarities, but it may also refer to unlawful sexual com- merce.* See Battery. 3. A franchise; also, the place or district where any such special privilege is enjoyed : as, the northern liberties of Philadelphia, the northern and eastern liberties of Pittsburgh. See Franchise, 1. Jail liberties. See Jail. LIBRARY. The room or place where books are kept, or the books in the aggregate.* LICENSE.^ Permission or authority : as, a license to do a particular thing.8 See Permit. . ' Louthan v. Commonwealth, 79 Va. 196 (1884). 'People V. Morey, N. Y. (1881), Davis, J. s Barr v. Moore, 87 Pa. 393 (1878). « Exp. Jackson, 96 IT. S. 733, 735 (1877). 5 State V. Carr, 60 Iowa, 455 (1883), Day, C. J. • Carter v. Andrews, 16 Pick. 9 (1834), Shaw, C. J. ' F. licence: L. licentia, freedom to act: licere, to be left free, to be allowable. ' Gibbons v. OgSen, 9 Wheat. 313 (1824), Marshall, C. J.; 33 How. 240. Licensor. He who has given a license. Licensee. He who has received a license. Letter of license. An agreement whereby the creditors of an insolvent debtor consent to a temporary suspension of their rights, and bind themselves not to sue or molest the debtor for a specified lime, during which he is allowed to carry on liis business at his own discretion.' See Composition, 3. More specific significations of license are : 1. Authority given to do some one act, or a series of acts, on the land of another, with- out passing any estate in the land: as, a license to hunt on another's land, or to cut down trees. 2 "A mere license passes no interest . . only makes an action lawful, which, without it, would have been unlawful." If the instrument passes an interest, it is a grani.^ Imports leave, permission, sufferance, authoriza- tion: as, a license to enter upon land to erect a party- wall.* In this sense, license is contrasted with easemejii, which implies an interest in another's land, distinct from the ownership of the soil, and enjoyable at all times ; and with lease, which transfers the right to take the profits pf the land.= Any such license may be oral, or implied from acts, and executed or executory. An executory license, not founded on a consideration nor coupled with an interest, may be revoked. A mere hcense to a party, without words showing it was meant to be assignable, is the gi'ant of a per- sonal power to the licensee, and not transferable." A hcense to do a particular act need not be in writ- ing: it amounts to nothing more than an excuse for an act which would otherwise be a trespass. But a per- manent right to hold another's land for a particular purpose, and to enter upon it at all times without his consent, is an important interest, which ought not to pass without writing.' A licensee (of a mine) is not a lessee.' 1 [4 South. Law Eev. 639 (1878), cases. 2 Cook «. Stearns, 11 Mass. *537 (1814), Parker, C. J.; Cheever v. Pearson, 16 Pick. 273 (1834), Shaw, C. J.; Morgan «. United States, 14 Ct. CI. 327 (1878); 19 Ark. 32-33; 41 N. J. L. 75; 31 Pa. 477. 'Washburn v. Gould, 3 Story, 163 (1844), Story, J. : , Thomas v. Sorrell, 1 Vaugh. 351 (1706), Vaughan, C. J.; Wood D. Leadbitter, 13 M. & W. •844 (1845). * Sun Printing, &c. Association v. Tribune Associa- tion, 44 N. Y. Super. Ct. 140 (1878), Sanford, J. ; 7 How. Pr. 84. « See 1 Washb. E. P. 398; 19 Ark. 33; 74 111. 185; 40 Iowa, 456. « Troy Iron, &c. Factory u. Coming, 14 How. 216 (1853); Oliver v. Rumford Chemical Works, 109 V. S. 82 (1883), cases. ' Cook V. Steams, 11 Mass. *637 (1814), Parker, C. J; ' Wheeler v. West, 71 Cal. 129 (1886), cases. LICENSE 633 LICENSE A license creates no interest in the land. It is a mere power or authority, founded on personal con- fidence, not assignable, and revocable at pleasure, unless cubsidlary to a valid grant, to the beneficial en- joyment of which its exercise is necessary, or_ unless executed under such circumstances as to warrant the interposition of equity. This is the result of the best considered cases. The doctrine of early cases, which converted an executed license irto an easement, is now generally discarded as being " in the teeth of the statute of frauds.'" See Negligence: Ticket, Theater. 2. Any conveyance of a patent short of the entire monopoly, for the whole country or a particular district. 2 Liicensee. One who has transferred to him, in writing or orally, a less or different interest than the interest In the whole pat- ent or an undivided part of such whole in- terest, or an exclusive sectional interest.' Compare Assignee ; Chantee. A license to make and use a patented invention, as, a machine, need not be in writing, nor recorded. It conveys neither an interest in a patent itself, nor a power authorizing a third person to construct the in- vention.'* A similar use of the WOTds license and licensee ob- tains in the law of copyright. See Draua. 3. In popular understanding, a permission to do something which without the license would not be allowed. This is also the legal meaning.5 Permission granted by some competent authority to do an act which, without such commission, wc^ld be illegal. ^ Evidence of permission to exercise a trade or calling in consequence of the payment of a tax or duty.' Essentially the granting of a special privi- lege to one or more persons, not enjoyed by citizens generally, or, at least, not enjoyed by a class of citizens to which the licensee be- longs. 8 ' Johnson v. Skillman, 89 Minn. 97-99 (1683), Vander- burg, J. See Jackson v. ^Philadelphia, &c. R. Co., 4 Del. Ch. 181 (1871), oases; 14 Ct. CI. 827, eases. 2 [Curtis, Patents, § 212. "Potter V. Holland, 4 Blatch. 211 (1858): Act 4 July, 1836, §§ 13, 14; Kelly v. Porter, 17 F. R 519 (1883); ib. 6.S8; 15 Barb. 310; 5 Fish. Pat. Cas. 411; 1 id. 3S7; 1 Holmes, 149; 21 Wall. 205; 12 Blatch. 202. < Baldwin v. Sibley, 1 Cliff. 155 (1858); Brooks v. Byam, 2 Story, 641 (1843). = Youngblood v. Sexton, 33 Mich. 419 (1875), Cooley, J. • State V. Hipp, 38 Ohio St. 226 (1882), oases, Okey, C. J. ; 60 &a. 530; 11 Neb. 547. ' [United States v. Cutting, 3 Wall. 443 (1805), Grier, J. s State V. Frame, 39 Ohio St. 413 (1383), Mollvaine, J.; Anderson v. Brewster, 44 id. 587 (1886). Vocations which need special sdrveillance, and others which are fit subjects for the exaction of a rev- enue, are restricted to persons who procure a formal permit. This system enables the authorities to regis- ter all such licensees, and to hold them to answer for • any disobedience of law. These licenses are always in writing, in an ofQcial form, and run for a limited term. I A " license " to be produced as a defense in a crimi- nal prosecution is the right to do the thing in any mode permitted or not prohibited by law.^ Comprehends cases in which statutes declare that persons of certain occupations may do the thing, as, druggists, officers of the law. and other persons al- lowed to sell or distribute liquors. = In this sense, contrasted with contract. Thus, lot- tery charters are not contracts, but mere licenses, and, as such, subject to future legislation.* See Lot- tery. The privilege of running street cars may be in pur- suance of a license, not of a contract, from the city authorities.^ Also contrasted with tax. A "license" is a right granted by some competent authority to do an act which, without such license, would be illegal. A " tax " is a rate or sum of money assessed on the same person, property, etc., of the , citizen. A license is issued under the police power. If the fee required for a license is Intended for revenue, its exaction is an ex ercise ofthe power of taxation." A "tax" upon a business is no more the granting of permission to engage in it than is the levying of a tax upon the property employed in the business. The distinction between a "tax" upon a business, and what might be termed a "license," is, that the former is exacted by reason of the fact that the business is carried on, the latter, as a condition precedent to the right to carry it on. In the one case the individual may rightfully engage-in the business without paying the tax. A license may exist without the imposition of a tax, and a tax may be imposed without the grant- ing: of a license.' A license issued under the act of Congress of June 30^ 1864, " to provide internal revenue," conveys no au- thority to carry on the business within a State. The requirement of paying for such a license is only a mode of imposing taxes on the business.^ ' [Abbott's Law Diet.] 2 Commonwealth ti. Carpenter, 100 Mass. 206 (1868), 2 Commonwealth v. Kennedy, 108 Mass. 894 (1871), cases. * Stone V. Mississippi, 101 U. S. 814 (1879). s Union Passenger Ry. Co. v. Philadelphia, 101 U. S. 528 (1879). ° Home Ins. Co. v. Augusta, 60 (3a. 637 (1874), Trippe, J. See also Chilvers u. People, 11 Mich. 49 (1862); Burch V. Savannah, 42 Ga. 598 (1871); Fuller v. State, 48 Ala. 293-94 (1872); Wiggins Ferry Co. v. East St. Louis, 102 111. 560, 566-68 (1882), cases. ' Adler 11. Whitbeck, 44 Ohio St. 558-59 (1886), Min- shall, J ; Anderson v. Brewster, ib. 588 (1886); Home Ins. Co. V. Augusta, 50 Ga. 537 (1874). B License Tax Cases, 5 Wall. 462 (1862), Chase, C. J. LICENTIA 633 LIEN It is the generally received doctrine that, in the case of useful employments, prohibition cannot be exer- cised under authority to license.^ The power to license is a police power, although it may also be exercised for the purpose of raising rev- enue.* A license authorizing a person to retail spirituous liquors does not create a contract between him and the government. The effect is merely to permit him to carry on the trade under certain regulations and to exempt him from the penalties provided for unlawful sales.' A licensee to keep a pool-table tor hire takes his license subject to such conditions as the legislature may see fit to impose at any time.* See Drummer; Lottery; Police, 2; Prohibition, 2. LICEWTIA. See Imparlance. LICENTIOUSNESS. 1. Doing as one pleases, without regard to the rights of others. See Liberty, NaturaL 2. Lewdness, q. v. LICITATION.5 Where the co-heirs or co-proprietors of a thing by undivided inter- est put it up at auction among themselves, that it may become the property of the one who will offer the most for it. The thing remains charged with unpaid shares.' Where there is disagreement between the owners of a vessel, there may be " licitation " and partition for a moiety by order of' a court. The petition prays for a sale, and distribution of the proceeds. The proceeding is justified by the necessity, in. the interests of com- merce, and the relief of the parties, when they have reached a present actual inability to use the vessel.' LIDFORD LAW. See Lynch Law. LIE. 1, «. (1) To exist; subsist: as, to " lie in grant:" said of an incorporeal right; a corporeal right is said to " lie jn deed." See Grant, 1. (2) To be maintainable, sustainable : as, an " action lies." Compare Lay, 2. (3) To be concealed, or in ambush : as, to lie in wait. See Lying. ■City of Burlington v. Bumgardner, 42 Iowa, 673 (1876). * Wiggins Ferry Co. v. East St. Louis, 107 U. S. 373 (1832); State v. Hipp, 38 Ohio St. 225 (1882). s Calder v. Kurby, 5 Gray, 693 (1850), Bigelow, J. See also Yan Hook v. City of Selma, 70 Ala. 363 (1881), cases; Prohibitory Amendment Cases, 24 Kan. 724 (1881), cases; La Croix v. County Commissioners, 60 Conn! 329 (1882), cases; Chilvers v. People, 11 Mich. 40 (1862) ;, State i). Holmes, 38 N. H. 227 (1859). * Commonwealth v. Kinsley, 133 Mass. 579 (1882), cases. »L. licUatio: liceor, to offer a price. * Hache v Ayraud, 14 La. An. 179 (1859): Pothier. 'The Annie Smith, 10 Bened. 110-17, 135, 1.38 (1878), 2, 11. A willful untruth ; a falsehood. See Deceit; Decoy ; Estoppel; Falsehood; Fraud ; Represen'tation, 1 ; Slander. LIEGE. See Allegiance ; Feud ; Lord, 1. LIEN.i A tie that binds property to a debt or claim for its satisfaction.^ Originally, a tie or bond. In the meta- phorical sense in which it is used in law, such hold or claim upon a thing, for the satisfac- tion of a debt, duty or demand, that it can- not be taken away until the same be satisfied and paid. 3 A hold or claim which one person has upon the property of another, as a security for some debt or charge.* • A right to possess and retain property, until some charge attaching to it is paid or discharged. 5 In its widest sense, includes every case in which personal or real property is charged with the payment of a debt.'' Lienor. He who is invested with a right of lien ; he who may enforce a lien.' Liens exist at common law, arising from usage, ex- press contractor contract implied from dealings; they are recognized in equity and in admiralty; and are created also by statutory enactment. Common-law liens are displaced by surrender of possession. Liens by contract depend upon the terms of the contract, and statutory liens upon the construction of the stat- utes.' A court of equity will relieve as against a lien at law, if, from difficulties, the parties are unable to ob- tain justice at law.' 1 Le'-en. F. h'en, band, bond, tie; L. ligare,to bind. ' Stephani v. Bishop of Chicago, 2 Bradw. 253 (1878), Pleasants, J. ' Stansbury v. Patent Cloth Manufacturing Co., 5 N. J. L. 441 (18)9), Kirkpatrick, C. J. * Hardy v. Norfolk Manufacturing Co., 80 Va. 418 (1885), Lacy, J. ' 1 Story, Eq. § 506. • SuUivan v. Portland, &c. E. Co., 4 Cliff. 225 (1874), Clifford, J. See also 19 Am, LawHev. 7a3-89 (1885), cases; 1 Mas. 221; 2 Story, 131; 13 Ala. 434; 12Fla. 85; 46 Ga. 5C8; 33 111. 594; 69 Me. 427; 1 Mich. 472; U Miss. 618; 85 N. C. 432; 49 N. H. 362; 50 id. 75; 46 N. Y. 17; 4 Johns. 112; 12 Wend. 262; 26 id. 472; 49 Barb. 244; 11 Ohio St. 68; 7 Oreg. 434; 30 Pa. 277; 32 id. 360; 81 id. 132; 7 Heisk. 290; 2 Utah, 91 ; 21 Vt. 602; 48 Wis. 253; 2 East, 235; 15 id. 554; 2 Camp. 582. ' See 10 Bencd. 557. ' 1 Story, Eq. § 506; Wilkie v. Day, 141 Mass. 73 (1886), cases; 4 Cliff. 225; 2 Flip. 413. Effect of taking secu- 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- gage and privilege, embraces the peculiar securities which in the common and mari- time law, and in equity, are termed liens. See Maritime Lien. II. At common law, the essence of a lien is the right of possession or retainer, until the charge is satisfied. Meanwhile, the chat- tel is regarded as in the custody of the law. The doctrine is based upon principles of natural equity and of commercial necessity ; it also prevents circuity of action.' See Par- ticular Lien. Common-law liens are acquired by bailees: trades- men, carriers, innkeepers, farriers; by non-bailees: vendors, salvors, impounders of estrays, finders — for a reward earned, but not for trouble atid expense ; and by usage of trade. III. In equity liens are most largely recog- nized and liberally treated. They may exist without possession ; and they are enforced by decree of foreclosure and sale. Such are vendors' liens, liens by deposit of deeds, partnership liens, liens pendente lite, liens of agreement. See Lien by Agreement, Vendor's Lien. A lien in equity is not, in strictness, a jus in re or a jus ad rem; that is, neither a property in the thing it- self, nor a right of action for the thing. It is a charge upon the thing; a right to possess and retain the prop- erty, until some charge attaching to it is paid or dis- charged.* IV. In maritime law, liens do not require possession. They obtain for supplies fur- nished, for seanaan's wages, for damages from collision. See Maritime Lien. V. Liens created by statute cover cases where possession is, not had with consent of the owner, or where exclusive possession is impossible. Such are the liens of mechanics, builders of houses, ship-builders, log-drivers, material-men, some claims of judgment and mortgage creditors, the claims of municipal corporations, and of mutual insurance com- panies.' See Judgment Lien, Mechanic's Lien, Municipal Lien. Statutory liens have, without possesdon, the same operation and efflcienoy that existed as to common- law liens with possession. Thus, a personal chattel on the premises, sold in the ordinary course of trade, without knowledge of the lien, is not subject to its operation.* 1 3 Pars. Contr. 834. 'Exp. Foster, 3 Story, 144-45 (1842), cases, Story, J.; 1 Story, Eq. § 506; 2 id. § 1215. 3 3 Pars. Contr. 241. * Beall V. White, 94 U. S. 386 (1876), oases, Clifford, J. A statutory lien implies a security upon the thing before 'a warrant to seize it is levied. It ties itself to the property from the time it attaches to it, and levy and sale are the means of enforcement. That is, proceed- ings are not necessary to fix the status of the property. Thus, for example, in the absence of this statutory lien, it is necessary for a landlord to take proceedings to acquire a lien on the property of his tenant.^ Although a lien on land constitutes no property or right in the land itself, still it confers a right to levy oh the same to the exclusion of other adverse inter- ests-acquired subsequently to the judgment, and when the levy is actually made, the title of the creditor gen- erally relates back to the time of the judgment, so as to cut out intermediate incumbrances. Different reg- ulations, however, prevail in different jurisdictions, and in some States neither judgments nor decrees for the paymient of money, except in cases of attachment on mesne process, create a preference in favor of the creditor until the execution issuing on the same has been duly levied on the land.' Eq.uitable lien. Such lien as exists in equity, and of which a court of equity alone can have cognizance. In most instances, this lien arises from some constructive trust. * An equitable lien exists in favor of the assignee of a debt, on the money in the hands of the debtor.* See Assignment, Equitable. If a mortgagor is bound to insure the premises for the benefit of the mortgagee, the latter, to the extent of his interest in the property destroyed, has an equitable lien upon the iSioney due on a policy taken out by the mortgagor. This is the law though the mortgagee may insure at the mortgagor's expense.^ See Fejidor's lAen. General lien. See Particular Lien. Judgment lien. At common law, a judg- ment is not a lien upon the land of the debtor; but now, in most of the States, by statute, alien attaches immediately upon the judgment being regularly docketed. See Judgment. Iiien by agreement. A party by agree- ment may create a charge in the nature of a lien on realty or personalty whereof he is the owner or in possession, which a court of equity will enforce against him and volun- teers or claimants under him with notice of the agreement.^ I Morgan v. Campbell, 22 Wall. 390-92 (1874), cases, Davis, J. = Ward V. Chamberlain, 2 Black, 437 (1868), Oifford, Judge. = 2Story, Eq. §1217. * Trist V. Child, 21 Wall. 447 (1874), cases; Ketchum 1. St. Louis, 101 U. S. 316-17 (1879). 5 Wheeler v. Factors & Traders' Ins. Co., 101 U. S. 442 (1879), cases, Bradley, J. "Ketchum v. St. Louis, 101 U. S. 316-17 (1679), cases, Harlan, J. LIEN 635 LIEN Lien by deposit of deed. See Deposit, 3. Lien of a mortgage. See Mortgage. Lien pendente lite. See Lis, Pendens. Maritime lien. This " privilege " or lien is adopted from the civil law, and imports a tacit hypothecation. It is the subiect-matter of the contract which must be maritime, not the mere object — the ship. Thus, no lieu exists for compressing cotton upon land and before an affreightment contract, binding upon the ship, is made.> A jus in re, without right of possession; divested by a proceeding in rem peculiar to admiralty. This lien is " secret," that is, it may operate to the prejudice of general creditors, and of purchasers without no- tice; wherefore, it is a stricti juris, and cannot be extended by construction, analogy, or inference." Does not depend upon possession, being a right af- fecting the right itself, which gives a proprietary inter- est in the thing and a right to proceed against it to recover that interest. The lieu adheres to the proceeds in case of sale, follows the same, and may be attached in admiralty.' Confers upon its holder such a right in the thing that he may subject it to condemnation and sale to satisfy his claim or damages. When the lien arises from a tort committed at sea, it travels with the thing, wher- ever it goes and into whosesoever hands it may pass. The object of the proceeding in rem is to make the right available, to carry it into effect.* A collision Impresses upon a wrong-doing vessel a maritime lien. This the vessel carries with it. The lien is inchoate at the moment of the wrong, but be- comes perfected by subsequent proceedings. . It is in the nature of the hypothecation of the civil law. It may be lost by laches.' Advances made upon the credit of a ship for neces- sary repairs or supplies in a foreign port create a mari- time lien. The lien is a jus in re, an incumbrance on the property of the ship, which is not divested by the death or insolvency of the owner. The process in rem obtains the thing itself or a satisfaction out of it. The interest is insurable.* A carrier by water has a lien for freight. The lien is not an hypothecation, which remains a charge after possession is given, but analogous to the common-law lien of a carrier by water, who is not bound to deliver the goods until the charges are paid, and, if he deliv- ers them, the lien is lost.' Liens equalling or exceeding the whole value of the vessel should be enforced with diligence; otherwise they will be postponed for laches in favor of subse- quent liens of navigation acquired without notice. By » The Paola E, 32 F. K. 174 (1887), cases. = VandewAter v. Mills, 19 How. 89 (1856), cases, Grier, J.; 18 F. E. 743; 10 id. 489-96, cases. 5 The Lottawanna, 31 Wall. 698 (1874), Clifford, J. * The Eoek Island Bridge, 6 Wall. 215 (1867), Field, J. "The China, 7 Wall. 68 (1868), cases, Swayne, J.; The Belfast, ib. 642 (1868), cases. ' Merchants' Mut. Ins. Co. 17. Baring, 20 Wall. 163 <18ra), cases, Clifford, J. ' Bags of Linseed, 1 Black, 113 (1861), Taney, C. J. (40) the general maritime law, liens ex delicto are interior to lieins ex contractu. A prior lien for supplies is enti- tled to a preference, as a mere question of rank, and in- dependent of the equitable marshaling of securities or remedies, over a subsequent lien for damage upon the same voyage.^ The plaintiff may waive the lien in rem in admi- ralty and pursue his remedy by a suit in personam; or, he may institute an action at law, if the common law is competent to give a remedy." Liens on vessels encumber commerce and are dis- couraged. While the owner is present, no lien is ac- quired by a material-man; nor is any lien acquired where the vessel is supplied or repaired in a home port. A lien attaches to a foreign vessel only in a case of necessity and in the absence of the owner. ' See Admiralty; Charter-party; Freight; Hy- pothecation. Meohanio's lien. A lien allowed to a person who furnishes materials or labor toward the construction or improvement of property, as, a building, or a vessel. Not intended to secure the contractor, but those who lose by confiding in him. The owner of the prop- erty is compelled to take care of the material-man and the laborer. The lien prevents one portion of cred- itors from being paid at the expense of the labor and property of other creditors.* When such liens were unknown, the builder could collect the contract price of the work from the owner, and refuse to pay his subordinates, who could not sue the owner nor reclaim what they had contributed. Now, the claims having been regularly filed, the prop- erty may be sold to pay them.* See Incidental; La- borer. Municipal lien. A claim filed by the proper officer of a city or borough against property specially benefited by a public im- provement ; as, for the opening, grading, pav- ing, or curbing of a street, the laying of water-pipes, the construction of a sewer, and other like municipal claims. Such liens are of purely statutory origin. The de- tails of the work of improvement are provided for by ordinance of councils. The requirements of the law must be substantially complied with.* " The Young America, 30 F. E. 792-800 (1887), cases. » Norton v. Switzer, 93 U. S. 356 (1876); Leon v. Gal- ceran, 11 Wall. 190 (1870). See The Woodland, 104 U. S. 180 (1881). • People's Ferry Co. v. Beers, 20 How. 401 (1857); The Edith, 94 TJ. S. 518 (1876); 2 Law Q. Eev. 363 (1886). * Winder v. Caldwell, 14 How. 446 (1853), Grier, J.; Bullock V. Horn, 44 Ohio St. 425 (1886). "For whom mechanics' liens are created, see 21 Cent. Law J. 306-9 (1885), cases. On the property of married women, 23 id. 293 (1886), cases. As to the waiver of, 19 id. 26a-65 (1884), cases. •See 38 Pa. 3-39; 18 id. 26, 195; 25 id. 128; 61 id. 253, 399; 65 id. 146; 69 id. 352; 72 id. 82; 79 id. 346; 80 id. 505; 83 id. 369; 85 id. 366. LIEN LIFE Particular lien. The right to retain a particular piece of property until a claim against it alone is paid. General lien. A right to retain property generally, on account of charges attaching to any or all article or « articles. The earliest form of lien was specific in nature. "Wliere net arising from a contract of sale, this form was confined to transactions in which the justice or necessity of the case peremptorily demanded its al- lowance. The right to a general lien existed at first only by express contract, but it was in time allowed to be claimed, by implication, from the general usage of trade, or the mode of dealing between the parties.' See Bai^ajsce. Partnership lien. See Pabtnership. Secret lien. By this lien the vendor of personalty, who has delivered possession to the purchaser, is treated as the owner until the purchase money has been paid. Such arrangement, when it has served to give false credit to the vendee, will be held to be a constructive fraud upon the creditor. The property will be viewed as the vendee's. The transaction is not changed by assuming the form of a lease. The courts look at the purpose rather than at the form of the contract. For these reasons chattel-mortgages are required to be recorded." See Mantime Lien; Sale, Conditional. Vendor's lien; vendee's lien. A vend- or's hen on land holds for any part of the - purchase - money which remains unpaid, against all persons except a purchaser for a valuable consideration without notice. A vendee's lien arises in cases where he pays the purchase-money prematurely, and the vendor, from inability or other cause, does not complete the title. Both are equi- table liens.' An equitable lien also exists in favor of the vendor of goods, provided no innocent third party has ac- quired an interest in them, where the vendee by fraud conceals his insolvency and his intention not to pay, and induces the owner to sell on credit.* The seller of realty has a lien for the unpaid pur- chase-money; the buyer has an equitable title only.' This is true, though the seller made an absolute conveyance by deed, and though the consideration is expressed to have been paid; unless there was an ex- press or implied waiver of the lien. Such lien is not affected by the vendor's takmg the bonder bill single ' 3 Pars. Contr. 235. 2 See Hervey v. Rhode Island Locomotive Works, 93 U. S. 673 (1876); 37 111. 370; 46 id. 488; 15 Conn. 384; 47 Barb. 648; 5 Craiich, 461; 4 Wash. 591; Story, Sales, §313. = 3 Pars. Contr. 277-78; 4 Kent, 151. ' < Donaldson v. Farwell, 93 U. S. 633 (1876), cases; 19 Cent. Law J. 2-7, 24-29 (1884), cases. 'Lewis V. Hawkins, 23 Wall. 125 (1874), cases. of the vendee, or his negotiable promissoty note, or his check, if unpaid, or any other instrument involving merely his liability. Intent not to rely exclusively upon such security may always be shown. The lien may be enforced against the vendor or vendee, as the case may be, and all holding under him, except boiia fide purchasers without notice.' The vendee is treated as the equitable owner of the land, and the vendor as the owner of the money. The purchaser may devise the land, even before a convey- ance is made, and it will pass to his heir. The vendor stands seized for the benefit of the purchaser. In fine, equity treats contracts respecting lands as if they had been speciflcally executed.^ See Idem, Sonans; Marshal, 2; Others; Besistby; Tax, a. IiIF£. 1. For purposes of inheriting or receiving a beneficial interest, begins with conception.' 2. Under the common law as to abortion, began with quickening,* q. v. 3. For the purpose of transferring civil rights, begins with birth. Civil life. Ends with extinction of civil rights. Natural life. Ends with natural death. As we have no civil death, nor, practically, any forfeiture of land, there is now no occasion~to use the' expressioQS.' Compare Death, Civil, Natural. Joint lives. A gift or grant to two or more persons, to be enjoyed while any two of them are aUve, is spoken of, most fre- quently in English books, as for the joint lives of the beneficiaries. *' No person shall , . be depraved of life, liberty, or property, without due process of law." ' " Life " here means something more than mere ani- mal existence. The inhibition extends toallthoselimbs and faculties by which life is enjoyed — life and what- ever God has given with it, for its growth and enjoy- ment.' " Life, liberty, and property " comprehend every right known to the law.8 To secure rights of life and liberty, governments are instituted. The foregoing constitutional provision] secures the individual from the arbitrary powers of " Cordova jj. Hood, 17 Wall. 5-6 (1872), cases. Strong, J. ^1 Story, Eq. § 790, cases; Gunton u. Carroll, 101 TJ. S. 426 (1879); 2 Black, 460; 2 MoCrary, 103, 106; 3 id, 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), cases; as to assigning liens, 25 Am. Law Reg. 393-97 (1886), cases. » 1 Bl. Com. 130. * 1 Bl. Com. 129. » See 2 Bl. Com. 121. ' Constitution, Amd. Art. V. ' Munn V. Illinois, 94 XT. S. 142 (1876), Field, J. 'Cummings v. Missouri, 4 Wall. 320 (1866); Baxte- meyer v. Iowa, 18 id. 136 (1878). LIFT 637 LIMIT government, unrestrained by the established principles of private rights and distributive justice.' See Damages; Death; Homicide; Liberty, Per- sonal; Punishment; Process, 1, Due, etc.; Security, 1, Personal; Survive, 2. Compare Natus; Vie; VrvERi:. Life annuity. A yearly income during life. See Annuity. Life assurance or insurance. Insur- ance upon a life or lives. Life policy. A policy of insurance upon a life. lAfe risks. The obligations of a com- pany insuring lives — a life company. See Insurance. Life estate. A right in realty (usually), limited by one or more lives. Conventional life estate. Is created by the act of the paa-ties. Legal life estate. Is cre- ated by construction and operation of law.^ Legal life estates comprise: tenancy in tail after possibility of issue is extinct; tenancy in curtesy; tenancy in dower. Conventional life estates comprise : an estate for the term of the grantee's own life; an estate for the life of another or the lives of others. That for another's life is the lowest species of free- hold. A grant not fixing the term nor mentioning heirs is construed a life-estate. So is an estate held on the uncertain contingency that it may possibly last for life. , And so also is a conveyance to a woman as long as she remains a widow, or during coverture; or as long as one shall live in a certain house or place; or, till a sum be paid out of the income of an estate. ' LIFT. A promissory note is said to be lifted when any person liable upon it pays it or substitutes another obligation for it. LICrAK. Goods sunk in the sea, but tied to a buoy that they may be found again. 3 Compare Flotsam; Jettison. LIGHT. The right to the free access of the sun's rays to one's windows. A species of easement; spoken of as "the right to light and air," also as "ancient lights:" because the possessor must have enjoyed them for at least twenty years before dlaiming the right. At common law, light belongs to the first occupant during the time he holds possession. In England, this doctrine is still recognized, the right arising by pre- scription, or from an express or implied grant. In this country, the doctrine has been repudiated; at most, the right can be acquired only by express grant. • See Bay-window; Occupancy. False light. See Wreck; Yacht. ■ United States v. Crulkshank, 92 U. S. 554-55 (1875); Bank of Columbia v. Okely, 4 Wheat. 324 (1819). »2 Bl. Com. 130. >\ B!. Com. 292. ' See Story v. Odin, 12 Mass. '160 (1815), cases; Swans- borough V. Coventry, 9 Bing. (23 E. C. L.) 593-94 (1832),, cases; Haversick v. Sipe, 33 Pa. 370 (1859); MuUen v. Strieker, 19 Ohio St. 143-44 (1869), cases ; Keats v. Hugo, LIGHTNIH-a. A policy of insurance which provides that the insurer shall be lia- ble for fire by lightning, does not cover dam- age where there is no ignition. i A tornado, due to electrical disturbance, and caus- ing results like those produced by lightning, may be "lightning; " and expert testimony is receivable that lightning accompanying a tornado was the proximate cause of a loss.'' Where a horse is described in a policy against fire, to which is attached a clause of indemnity against lightning, " as contained in " a specified building, the animal need not be kept in the building all the time: it may be pastured in an adjoining field, and, if killed there by lightning, the insurance is recoverable.^ LIKS. Not, necessarily, identical with.* Likeness. Resemblance ; similitude. See Copy; Equal; Manner; Noscitur; Photo- graph. Compare Instar; Quasi; Stmtt.ts. Likewise. In a will, may mean "also," rather than " in like manner." 5 A devise commencing with "likewise" was held to be subject to a contingency mentioned in connection with a preceding gift.^ LIMB. See Body, 1 ; Mayhem. Limb of the law. A metaphorical ex- pression, of uncertain origin, for a member of the legal profession. LIMIT. 7 To mai-k out, define, indicate the extent or duration of. " To limit " an estate is to define the period of its duration. The words employed are thence termed "words of limitation," and the act itself "limiting" the estate. See Limitation, 3. Marking out an estate in lands, as, for a life, in tail, or in fee-simple, is *' limiting " it.* Limitation. Boundary ; circumscription ; restriction; curtailment; termination. See Provided. 1. In constitutional law, the bound set to legislative power: as, constitutional limita- tion. See Constitution. 115 Mass. 208-11 (1874), cases; Ray v. Sweeney, 14 Bush, 8-10 (1878), cases; Hayden v. Dutcher, 31 N. J. E. 218- 84 (1878), cases; Tunstall u. Christian, 80 Va. 4 (1885), cases; 2 Bl. Com. 14; 3 Kent. 466; 2 Washb. R. P. 02. ' Babcock v. Montgomery Co. Mut. Ins. Co., 4 N. Y, 331-37 (1850), cases. ' Spensley v. Lancashire Ins. Co., 54 Wis. 433, 440-41 (1882); Same v. Same, 63 id. 448 (1885). See Kenniston V. Mut. Ins. Co., 14 N. H. 341 (1843). ' Haws u. Philadelphia Fire Assoc. 114 Pa. 481 (1886). « United States v. Wallace, 116 U. S. 400 (1886). » State Bank v. Ewing, 17 Ind. 74 (1861). ' Paylor v. Pegg, 24 Beav. 105 (1857). 'F. limite: L. limitem; limes^ a boundary. 8 Williams, Real Prop. 140. LIMITATION 628 LIMITATION 3. In deeds and devises, marking out an interest in property ; the restricted duration -of an estate. Collateral limitation. Gives an inter- est for a prescribed period, but makes the right of enjoyment depend upon some col- lateral event. As, an estate vested in one person till another shall go to Rome, or to one and his heirs till the construc- tion of a CQit'tain cathedral shall be finished.^ Conditional limitation. Where an es- tate is so expressly confined and limited by the words of its creation that it cannot endure for a longer time than till the contingency happens upon which the estate is to fail.' ^ As, when land is granted to a man " while " he coi^l: tinues immarried, or " until " out of the income he ■shall make a specified amount. In such case the es- tate determines as soon as the contingency happens, and the next subsequent estate becomes immediately vested without any act to be done by him who is next In expectancy. 2 " An estate upon condition" enures beyond the time when the contingency happens, unless the grantor, his heir or assign, talies advantage of the breach of the condition. 3 A condition followed by a limitation over to a third person in case the condition be not fulfilled, or there be a bieach of it.* A " condition " determines an estate after breach, upon entry or claim by the grantor or his heir, or the heir of the devisor. A " limitation " marks the • period which determines the estate without any act on the part of him who has the next expectant inter- est. Upon th^ happening of the prescribed contin- gency, the estate first limited* comes at once to an end, and the subsequent estate arises. A " conditional limitation " is, therefore, of a mixed nature, partaking both of a condition'and of a limitation: of a condition, 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 expectant interest, without entry or claim.* See Condition. If the event upon which the estate is limited may by possibility not occur within the term of a life in being and twenty-one years afterward, it is too remote. . . Regai'd is' had to possible not to actual events. That a limitation might include objects too remote is fatal to its validity, irrespective of the event.' See Alienation. 1 See 4 Kent, 128; 1 Washb. E. P. 315-16. '8 Bl. Com. 155; The Fifty Associates v. Howland, 11 Mete. 102 (1846). s [3 Bl. Com. 155. See also 4 Kent, 121. < Proprietors of Brattle Square Church v. Grant, 3 Gray, 147 (1855), Bigelow, J. See also 4 Hughes, 694 ; 16 Me. 160; 5 Neb. 407; 73 N. C. 125; 5 E. I. 312; 76 Va. 145; 18 Ves. 433; 3 Washb. E. P. 457-60. « Donohue v. McNichol, 61 Pa. 78 (1869): 3 Gray, 163; Iiimitation over. See Devise, Execu- tory. Special limitation. A qualification serving to mark out bounds of an estate, so as to determine it ipso facto in a given event without action, entry, or claim, before it would or might otherwise expire by force of or according to the general limitation. May be created by the words " until," " so long as,", "if," "while," "during." The estate determines as soon as the contingency happens, and the subsequent estate becomes immediately vested. ^ Words of limitation. Language which marks out the nature of an estate ; opposed ■to "words of purchase.'' When it is said, with reference to a conveyance to A and his heirs, that "heirs " is a word of limitation and not of purchase, the meaning is, that "heirs" marks out the nature of the estate taken by A — a fee- simple; and that his heirs take nothing directly (i. e., by purchase) under such limitation. 2 "Words of limitation " are such as limit or mark out the estate to be taken by a grantee. At the pres- ent day, when the heir is perhaps the last person to get the estate, these words are regarded simply as for- mal means conferring powers and privileges on the grantee — as mere technicalities. In ancient times such words meant what they said, and gave the estate to the "heirs" or the "heirs of the body" of the grantee, after his decease, according to the letter of the gift.* See If; Pkovidkd; Remainder; Shelley's Case; Then; When. 3. In statutes regulating judicial proceed- ings, the time beyond which a plaintiJf can- not lay his cause of action.* A bar to the alleged right of the plaintiff to recover in the action, created by or arising out of the lapse of a certain time after the cause of action has accrued, as appointed by. law. 5 Refers to the time which is prescribed by the authority of the law during which a title may be acquired to property by virtue of simple adverse possession and enjoyment, or the time at the end of which no action at law or in equity can be maintained.^ In the Eoman law, called prcRscriptio. But the word also applies to criminal proceedings, 8 id. 85. 97; 15 Eng, Ch., 3 K., 54; 8 Sim. 615; 10 id. 57; 1 Jarm. Wills, 233. ' Henderson v. Hunter, 59 Pa. 340 (1868): Smith, Ex. Int. 12; Fearne, Eem. 10-13; 3B1. Com. 155. 2 [Mozley & W. Law Diet. " Williams, Eeal Prop. 245; 3 Washb. E. P. 604. 1 [3 Bl, Com. 307. » Christmas v. Eussell, 5 Wall. 300 (1866), Clifford, J. ' 8 Campbell v. Holt, 115 U. S. 632 (1885), Miller, J., quoting Angell, Lim. Actions. LIMITATION 639 LIMITATION as to which the period is extended in some proportion to the gravity of the offense. An indictment for mur- der may be found at any time during the life of the alleged felon. The limitation for other offenses varies from years to days, as from ten years to sixty days. At common law, there is no absolute limitation.' Under the laws of the United States, offenses not capital, except as provided in Rev. St., § 1046, may not be prosecuted after three years." The statute begins to run from the cessation of criminal conduct, as that of carrying concealed weap- ons.3 The most important English statute relating to civil suits is the famous Statute of Limitations of 21 James I (1634), o. 16; the general principles of which underlie, or are embodied in, the American statutes. At the same lime, each State has its distinctive legis- lation, relating to both civil and criminal suits. Pro- visions of lite nature exists in acts of Congress. Equity and admiralty courts apply the principle of these statutes as a matter of discretiop. The periods of time vary with the law of the place or courts.* The piUTJOse of such -statutes is to preserve the peace, and to prevent perjuries which might ensue if men were allowed to bring actions for injuries com- mitted at any distance of time.' The statutes confer no right of action. They re- strict the period within which the right, otherwise un- limited, might be asserted. They are founded upon the general experience that claims which are valid are not usually allowed to remain neglected. The lapse of years, without any attempt to enforce a demand, creates, therefore, a presumption against its original vaUdity, or that it has ceased to subsist. The presump- tion is made by these statutes a positive bar; and they thus become statutes of repose, protecting parties from the prosecution of stale claims, when by loss of the evidence by the death of some witnesses, and the imperfect recollection of others, or the destruction of documents, it might be impossible to establish the truth. Their policy is to encourage promptitude in the prosecution of remedies. For this purpose they prescribe what is supposed to be a reasonable period." Statutes of limitation are necessary to the welfare of society. The lapse of time carries with it the means of proof. They do not impair the remedy: they require its application within the reasonable time specified.^ The common law fixed no time for bringing actions. Limitations derive their authority from statutes.' 1 See Whart Cr. PI. & Pr. §§ 316-89, cases; 1 Bish. Cr. Pr. §405; 3B1. Com. 307. !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 (1870). »3B1. Com. 307. ' Eiddlesbarger v. Hartford Ins. Co., 7 Wall. 390 (1368), Field, J. See also Spring v. Gray, 5 Mas. 6S3 (1830), Story, J. 'Edwards v. Kearzey, 96 U. S. 603 (1877); Levy v. Stewart, 11 Wall. 849 (1870); United States v. Wiley, ib. Bl3(1870); 17F. R. 140. 8 United States v. Thompson, 98 U. S. 489 (1878). The statutes are entitled to the same respect as other statutes, and are not to be explained away.' Affecting existing rights, they are not unconstitu- tional, if a reasonable time is given for the commence- ment of an action before the bar takes effect." See Impair; Remedy. They apply, in terras, to legal remedies. Courts Of equity are bound only in cases of concurrent jurisdic- tion. In other cases, these courts act by analogy, not in obedience to the statutes.' But a court of equity will not apply the statute, by analogy, when it would be against conscience to do so — when wrong and injustice would be wrought.* If the facts on which any right of action is based have been fraudulently concealed, or if the fraud is such as conceals itself, the statute runs from the dis- covery of the fraud, or of such information as, dili- gently followed up, would discover it.' When the object is to obtain relief against a fraud, the bar of the statute does not begin to run until the fraud is discovered or becomes known to the party in- jured by it. . . In suits in equity, where relief is sought on the ground of fraud, the authorities, with- out conflict, hold that where the ignorance of the f laud has been produced by aifirmative acts of the guilty party in concealing the facts from the other, the stat- ute will not bar relief, provided that suit is brought within proper time after the discovery of the fraud. We also think that in suits in equity the decided weight of authority is in favor of the proposition that where the party injured by the fraud remains in ignorance of it, without any fault or want of diligence or care on his part, the bar of the statute does, not begin to run until the fraud is discovered, though there be no spe- cial circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party. On the question as it arises in ac- tions at law, there is in this count^a very decided conflict of authority. Many courts hold that the rule is sustained in courts of equity only on the ground that these courts are not bound by the mere force of the statute as courts of common law are, but only as they have adopted its principle as expressing their own rule of applying the doctrine of laches in analogous cases. They, therefore, make concealed fraud an ex- ' ception on purely equitable principles. On the other hand, the English courts, and the courts of Conuecti- cut, Massachusetts, Pennsylvania, and others of great respectabihty, hold that the doctrine is equally appli- cable to cases at law. The weight of judicial au- thority, as stated, is in favor of applying the rule to suits at law as well as in equity. This is founded in a sound and philosophical view of the principles of the 1 United States v. Wilder, 13 Wall. 2X (1871); Spring ■u. Gray, 5 Mas. 523 (1830). s Terry v. Anderson, 95 U. S. 633-33 (1877), cases. ' Hall V. Law, 103 U. S. 466 (1880). See also Chewett V. Moran, IT F. B. 828-24 (1883), cases; Hutoheson v. Grubbs, 80 Va. 3.57 (1885), cases. * Buckingham v. Ludlum, .37 N. J. E. 147(1883); 17 F. B. 871. ' Yancy v. Cothran, 33 F. R. 689 (1887), cases. The courts have engrafted this rule on R. S. § 5057. LIMITATION 630 LIMITATION statutes of limitations. They are enacted to prevent frauds; to prevent parties from asserting rights after the lapse of time had destroyed or impaired the evi- dence which woMd show that such rights never existed, or had been satisfied, transferred, or extin- guished, if they ever did exist. To hold that by concealing a fraud, or by committing a fraud in a manner that it concealed itself until such time as the party committing it could plead the statute of limita- tions to protect it, is to make the law which was de- signed- to prevent fraud the means by which it is made successful and secure. And we see no reason why this principle should not be as applicable to suits tried on the common-law side of the court's calendar as to those on the equity side. . . When there has been no negligence or laches on the part of a plaintiff in conjing to the knowledge of the fraud which is the foundation of the suit, and when the fraud has been concealed, or is of such a character as to conceal it- self, the statute does not begin to run until the fraud Is discovered by, or becomes known to, the party suing, or those in privity with him. ^ The California statute applies to suits in equity as well as actions at law ; and the statute provides all ex- ceptions to the running intended to be allowed. The remedy at law being complete, there is no ground for equitable relief.^ The presumption of a statute of limitations extends ,only against individuals: their personal interest in- duces vigilance in the enforcement of their claims. It does not extend against the state, which acts through numerous agents, having no such inceutive to prose- cute her claims. She, therefore; is not embraced in a statute, unless expressly designated or necessarily in- cluded by the nature of the mischiefs to be remedied.' See Laches ; Tempus, Nullum, etc. The statute runs against a cestui que tjtisf from the time he learns that the trustee repudiates the trust and claims to hold the estate as his own; * from the time that the trust is openly disavowed by the trustee Insisting upon an adverse interest which is clearly made known to the beneficiary. ^ The statute does not begin to run till the cause of action is complete and the party capable to sue; but, once begun, nothing stops the running. In civil mat- ters, part payment, or an explicit acknowledgment ' Bailey v. Glover, 31 Wall. 347-50 (1874), cases, Miller, J. See also United States v. Beebe, 127 U. S. 347 (1888); Smith «. Clay, Ambl. 645 (1767): 3 Brown, Ch. *639-43, Ld. Camden; Cholmondeley v. Clinton, 1 Jac. & W. 138-41 (1820), Pulmer, M. R. ; Gresley ?;. Monsley , 4 De G. & J. *95-96 (18B9), cases; Jackson v. McNabb, 39 Ark. 116 (1882), Ealrin, J.; Angell, Lim, 25. 2 Chemical Nat. Bank v. Kissane, .32 F. E. 429 (1887), Sawyer, J.; Norris v. Haggin, 28 id. 282 (1686). 3 Weber v. Harbor Commissioners, 18 Wall. TO (1873); United States v. Thompson, 98 U. S. 489 (1878); United States V. Nashville, &c. B. Co., 118 id. 125 (1886), cases; United States v. Beebe, 17 F. E. 36, 39-41 (1883), cases: 127 U. S. 344-47 (1888), cases. 4 United States v. Taylor, 104 U. S. 222 (1881), cases; 4 Hughes, 312, 317; 37 N. J. E. 144; 59 Tex. I,i0, cases. 1 Speidel v. Henrici, 120 U. S. 386 (1887), cases. Gray, J. that a claim is still due, will take a case out of the statute. A disability to prevent the statute from running must exist at the time the action accrues; and, after the statute has once commenced to run, no subse- quent disability will interrupt it.^ A defendant who desires to avail himself of the statute as a defense must raise the question in plead- ing, on the trial, or before judgment.^ See further Accrue, 3; Acknowledguent, 1; CoN- CEAi., 4; Coupon, Bond; PiYiaENT, Part; Fossessiok, Adverse; Promise, New; Bepose; Sate; Stale; Stat- ute, English. Iiimited. Confined; restricted in durar tion, extent, or scope: as, a limited — ad- ministration, divorce, fee, jurisdiction, lia- bility, partnership, qq. v. Compare Absolute. LINE.3 1, Exterior limit; limit of posses- sion or ownership ; boundary. If a boundary line runs to or by the Hne of an ob- ject, such as a house or a lot, ordinarily the exterior limit is intended. And the grantor in a deed may use the word in this sense with respect to the line of a street. ' But the general rule is that a grantee takes only to the middle of a street as a boundary, unless the deed or the character of the locality indicates a different intention. It will not ordinarily be presumed that the grantor intends to reserve a narrow strip of land, of no special use to him, and of no value, should the way be discontinued.* See further Along; Bound- ary; Thread; Wall. ■-3. A connected series, as, of facilities, means of conveyance, transportation, or transmission. As, a continuous line, intersecting lines, competing lines of railroad or telegraph communication. See Carrier, Common; Connection, 1 ; Extend; Parallel; Telegraph. 3. The connection between persons de- scended from a common ancestor ; course of descent. Direct line. Persons immediately de- scended one from the other. Collateral line. Persons descended from the same ancestor, but not from each other. Paternal line. Descent as traced through the father. MaternallinB. Descent traced thjpough the mother. These lines are in turn spoken of as ascending^ and descending: proceeding upward, and downward. Lineal; lineage. Lineal implies immedi- ate descent, direct course of descent : 5 as, ■ McDonald v. Hovey, 110 U. S. 631 (1684), cases: B. S. §1008. = Eetzer v. Wood, 109 U. S. 187 (1883), cases. * L. linea, thread, string. ■> Hamlin v. Pau-jioint' Manuf. Co., 141 Mass. 56 (1886), cases. 'SeeSBl. Com. Ch. XIV. LINGUA 631 LIQUOR lineal — consanguinity, descent, warranty, gg. V. See also Ancestor; Pedigree. LINGUA. See Medietas. LINK. A " link in the chain of evi- dence,'' a " link in the chaint>f title," a " link in the record," are common figurative ex- pressions. Such "links" may often be supplied by presump- tion,' g. V. See also Chain. LIQUIDATE.2 To clear off, clear up, clear away. 1. To clear away, to lessen debts, to pay. 2 To liquidate a balance is, in common par- lance, to pay it.s 2. To determine the amount to be paid : as, to liquidate a debt, a demand, damages. Liquidated. A debt or demand is liqui- dated when the amount due is agreed upon by the parties, or is fixed by the operation of law.* Unliquidated. Undetermined, un- ascertained. Idguidated account. Has its amount cer- tain and fixed, by act of the parties or opera- tion of law.5 Liquidated damages. When the amount thereof is ascertained. 5 See Damages, Liqui- dated. Liquidated debt. Has certainty as to what is due." Liquidated demand. Has the amount as- certained, settled, by agreement or other- wise.' Liquidating. The member who settles the affairs of a partnership, by adjusting claims and paying debts, is called the " liqui- dating " partner. See Liquidator. Liqmdation. The act or matter of ad- justing claims of indebtedness, or for dam- Board of Liquidation. In Louisiana, in 1874, an agency of the State government to carry into effect a plan of consolidating its outstanding debt and convert- ing it, with the consent of creditors, into a uniform bond, with the same rate of interest, and providing additional security for the payment of the new bonds.' 1 See 2 Whart. Ev. §§ 1347, 1354. ' L. L. liguidare, to make liguidus. clear. • [Fletcher u United States, 8 Wheat. 863 {18S:3), Etory, J.; Eichmond v. Irons, 121 U. S. 61 (1887). '* Hargroves v. Cooke, 15 Ga. 333 (1854); 48 Conn. 365. 'Nisbet V. Lawson, 1 Ga. 287 (1846). •Eoberts v. Prior, 20 Ga. 563 (1856). ' Mitchell V. Addison, 30 Ga. 53 (1856). B See Martin v. Kirk, 3 Humph. 531 (1841). » Durkee v. Board of Liquidation, 103 U. S. 647 (1880); When, after duties have been liquidated, a reliqui- dation takes place, the date of the latter is the final liquidation for purposes of protest.' Liquidator. One who settles up the business affairs of an insolvent — individual, partnership, or company. Under the English bankruptcy act of 1869, the cred- itors of an embarrassed person may resolve that his affairs shall be liquidated by a trustee, with or with- out a committee of inspection. The property of the debtor thereupon vests in the trustee, who has the powers of a trustee in bankruptcy. By resolution, at a general meeting, the creditors may close the liquida- tion an4 discharge the trustee. See Wimd Up; Bake, a (2), National. LIQUOR. "Liquors" commonly in- cludes all liquors that are spirituous, vinous, inferior fermented, and malt.^ Intoxicating liquor. Any kind of liquor that will intoxicate, whether distilled or fermented.' In Massachusetts, any beverage that contains more than three per centum, of alcohol, by volume, at sixty degrees Fahrenheit.* Spirituous liquor. Distilled liquor. All spirituous liquor is intoxicating ; yet all in- toxicating liquor is not spirituous, as, fer- mented liquor. 5 " Spiritous " was held to mean " spirituous " liquor.' Vinous liquor. Liquor made from the juice of the grape.' Liquor dealer. Selling an occasional drink out of a bottle was held not to consti- tute carrying on the business of a retail liquor dealer.^ Liquor shop. A house where spirituous liquors are kept and sold. 9 Ale. Held to be within the terms of a statute pro- hibiting the sale of " strong or spirituous liquors '* without license.'" See Cider. Board, &c. v. Louisville E. Co., 109 id. 331, 328 (1883); N. O. Board, &e. v. Hart, 118 id. 140 (1886). 1 Eobertson v. Downing, 137 U. S. 60S (1888). " People V. CriUey, 20 Barb. 348^9 (1855); State v. Brittain, 89 N. C. 576 (1883). 8 State V. Eeynolds, 47 Vt. 299 (1875); Conmiissioners V. Taylor, 21 N. Y. 173 (1860). • Mass. Act 33 April, 1880, 191, c. 339, § 5. » Commonwealth v. Grey, 3 Gray, 503 (1854). See State V. Haymond, 20 W. Va. 31 (1883), cases; State v. Oliver, 86 id. 436-26, 431-33 (1885), cases. « Commonwealth v. Burke, 15 Gray, 408 (1860). ' Adler v. State, 55 Ala. 34 (1876); 38 Iowa, 467. 8 United States v. Jackson, 1 Hughes, 531 (1875): E. S. §§ 3342, 3244. » Wooster v. State, 6 Baxt. 634 (1873). '» Nevin v. Ladue, 3 Denio, 43, 437 (1846;; 20 Barb. 246; 105 Mass. 480; 30 Conn. 56; 33 Ind. 206; 12 Mo. 389; 44 N. H. 511. LIQUOR 633 LIQUOR Beer. The courts will take judicial notice that "lager beer" is a malt liquor.* In the absence of evidence to the contrary, beer will be presumed to be an intoxicating liquor.^ In section six of the Illinois Dram-shop act, "intox- icating liquor" means spirituous, malt, or vinous liquors. Proof, therefore, of a sale of beer (to a minor) without showing the kind of beer, and whether malt, vinous, or spirituous, is not sufficient to sustain an indictment. There are kinds of beer which are neither a malt liquor nor intoxicating. ^ When a witness testifies to the sale of beer under circumstances which make the sale of any intoxicat- ing liquors unlawful, the prima facie inference is that the beer was of that quality declared by statute to be an intoxicating liquor.* "Whether a particular kind, as, "Schenck beer," is Intoxicating, may be a question of fact for a jury; that it contains alcohol may not be conclusive upon this point.6 So as to "hop beer." * " Strong beer " is within the meaning of the term ■*' strong or spirituous liquors," in a statute to suppress intemperance.' Cider. An averment of the sale of "intoxicating liquor " was held sustained by proof of the sale of un- fermented cider. ^ Whether ale and cider, after fermentation, are in- toxicating liquors, is a question for a jury.* Neither cider nor crab-cider are included within the term " spirituous liquors, wine, ale, porter, beer, or any drink of like nature." i" Gin. • The court will take judicial notice that gin is an intoxicating liquor. »i Fop. Where the charge was selling "intoxicating liquors," and the proof was a malt liquor of an intoxi- cating quality called " pop," a conviction was sus- tained. '" Bum. This is a spirituous liquor, within a statute against selling such liquor without first paying a license tax. 13 Wine. Is a fermented, i^ot a spirituous, liquor, i* Whether " blackberry wine " is a spirituous liquor was left to a jury to decide.** 1 Watson V. State, 55 Ala. 158 (1876). a State v. Teissedre, 30 Kan. 484 (1883): 6 id. 371; 16 Mo. 389; 14 Ohio, 586; Brifiat v. State, 58 Wis. 39, 44 (1883): 3 Park. Cr. R. 9; 21 N. T. 173; 63 id. 277; 11 E. I. 592. 8 Hansberg v. People, 120 HI. 21, 25 (1886), cases. * Myers v. State, 93 Ind. 253 (1883), cases: 5 Grim. Law Mag. 360-63 (1884), cases; Commonwealth w. Magee, 141 Mass. 113 (1886). « Commonwealth v. Bios, 116 Mass. 56 (1874). « State V. McCateerty, 63 Me. 223 (1874). 7 Excise Commissioners v. Taylor, 21 N. Y. 173 (1860). 8 Commonwealth v. Dean, 14 Gray, 99 (1859). ■8 State V. Biddle, 54 N". H. 379 (1874); 69 Me. 133. 10 State V. Oliver, 26 W. Va. 422, 425, 427 (1885). 1 1 Commonwealth v. Peckham, 2 Gray, 514 (1854). ii! Godfriedson v. People, 88 III. 284 (1878). '3 United States v. Ajigell, 11 F. R. 34 (1881). 1* Caswell V. State, 2 Humph. 402 (1841); State v. Moore, 5 Blackf. *118 (1839); 19 Conn. 493. ift State V. Lowry, 74 N. C. 121 (1876.) " CJhampaigne wine " was held to be a liquor.^ " Port wine " is an intoxicating liquor. ^ Alcohol and gum-camphor mixed do not constitute a "spirituous liquor." ^ Whatever is generally and popularly known as in- toxicating liquor, such as whiskey, brandy and gm, is within the prohibitions of the Kansas act of 1881, and may be so declared as matter of law by the courts, — that act prohibiting the sale of intoxicating liquors except for medical, scientific, and mechanical purposes, and providing that no one shall sell for the excepted purposes without a druggist's permit from a probate judge. Whatever is generally and popu- larly known as medicine, an article for the toilet, or for culinary purposes, recognized, and the formula for its preparation prescribed, in some standard authority, and not among the liquors ordinarily used as intoxicat- ing beverages, such as tincture of gentian, paregoric^ hay rum, cologne, essence of lemon, are not within the statute, and maybe so declared as matter of law ^y the courts, notwithstanding such articles contain al- cohol and may produce intoxication. But as to arti- cles intermediate between these two classes, articles not known to the United States dispensatory or other standard authority, compounds of intoxicating liq- uors with other ingredients, whether provided for a single case, or compounded upon a formula and sold Tinder a specific name, as, 'bitl:ers, cordials, tonics^ whether they are within or without the statute, is a question of fact for the jury alone. The test is tjiis: If the compound be such that the distinctive character and effect of intoxicating liquor are gone, that its use as an intoxicating beverage is practically impossible, by reason of the other ingredients, then it is not in- cluded within the statute. But if the intoxicating liq- uor remains as a distinctive force and the compound is reasonably liable to be used as an intoxicating beverage, then it is within the statute.* Any State may prohibit the manufacture and sale of intoxicating liquors for use as a beverage.* At common law, traffic in intoxicating liquors was a lawful business. The original of the statutes licens- ing the traffic is found in 5 and 6 Edw. "VI (1552), c. 25." Iq the exercise of the police power, a State may commit the sale of liquor to any class of persons the legislature deems peculiarly fit for the duty.'' Under a statute which imposes a fine for selling liquor to a minor, no conviction can be had if ttie ac- cused exercised reasonable caution, and honestly be- lieved that the purchaser was of age.^ An injunction will not be granted by a Federal court iKizer v. Randleman, 5 Jones L. 428 (N. C, 1858). estate u Packer, 80 N. C. 439 (1879). 3 State V. Haymond, 20 W. Va. 18 (1882). * Intoxicating-Liquor Cases, 25 Kan. 766-68 (1881), Brewer, J., citing 38 Iowa, 426; 130 Mass. 68; 33 Vt. 659. See generally 5 Crim. Law Mag. 360-65 (1884), cases. fi Prohibitory-Amendment Cases, 24 Ean. 722 (1881), cases. 8 State V. Hipp, 38 Ohio St. 219 (1882), Okey, C. J. ' Koester v. State, 33 Kan. 32 (1886). 8 Kreamer v. State, 106 Ind. 192 (1885), cases: 25 Am. Law Reg. 517 (1885) ; ib. 518-21, cases pro and con. LIS 633 LIS to prevent a State court from enforcing Its decree re- straining plaintiff from selling liquors, and abating his saloon as a nuisance, under State law, after the case has been removed to the Federal court. The injury to the plaintiff may be fully compensated at law, in the event of the removed case being decided in his favor.' A person who knowingly purchases liquor from one unauthorized to sell it does not aid and abet the crime.' See further ^lcohol; Bar, 2; Bottle; Comuekce; Condition; Distiller; Dram; Drummer; Drunkard; Health; Indian Country; Intemperate; Intoxicate; Keep; Merchant; Morals; Option, Local; Police, 2; Privilege, 3; Prohibition, 8; Repeal; Eetail; Sa- loon; Tavern. Ills. A dispute, a controversy; a suit at law. Lis alibi pendens. An action pending elsewhere: a. plea that a suit is pending in another court for the same cause of action. Not good when the litigation is in a court of foreign jurisdiction. The rule is modified by courts of equity and admiralty, which will require a plaintiff who has a suit elsewhere for the same cause, and with an equally advantageous remedy, to elect which he will prosecute.3 Lis mota. A controversy begun. A declaration which is hearsay evidence is receiv- able of a matter of general interest, provided it be made ante litem motam — before any controversy arose upon the particular matter. People are not wholly indifferent in view of threatened litigation. The rule was familiar to the Roman law; but in that law li8 mota refeired to the commencement of the action. With us, lis has its earlier and larger sense of controversy, strife. Opposed to ante litem motam is yost litem, motam.* Lis pendens. A suit in progress : a suit pending. Pendente lite. While a suit pends ; during the continuance of litigation. Administration may be granted pendente lite, till the validity of an alleged will be determined. An al- lowance to a wife, as complainant or respondent in proceedings for a divorce, is alimony pendente lite. And he who buys realty, in actual litigation in court, is a purchaser pendente lite, or a holder with notice of lis pendens, and affected in his title by the result. A purchase made of property actually in litigation, pendente lite, for a valuable consideration, and with- out express or implied notice in point of fact, affects the purchaser as if he had such notice.' The doctrine of lis pendens is that realty, or, to some extent, personalty, when put in litigation by a > Wagner v. Drake, 31 F. R. 851 (1887). = State V. Teahan, BO Conn. 100 (1883): 28 Pick. 476; 84 id. 3C6; contra, 2 Head, 135. 3 Lynch v. Hartford Fire Ins. Co., 17 P. R. 628 (1883), Lowell, J., citing 28 Ch. Div. 397; 23 id. 825. « See 1 Greenl. Ev. § 131; 1 Whart. Ev. §§ 193, 218; 4 Campb. *417; 1 Pet. 337; 77 Va. 689. 5 1 Story,, Eq. §405. suit in equity, will, if the suit is prosecuted with rea- sonable diligence, be bound by the final decree, not- withstanding any intermediate alienation. The doc- trine is founded on the policy that property which is specifically sued for shall abide the result of the suit; for, otherwise, by successive alienations, the litigation might be indefinitely prolonged. It relates only to changes of ownership, but assumes that the property itself will remain either identically the same or be at least traceable into some new form in which it can be reached. The doctrine will not be extended without strict necessity. A bill in equity seeking to recover the value of wood out upon realty, the title of which was held to be in the complainant, cannot be main- tained: it would be in effect an action of trover and conversion. ' The doctrine, as generally understood, is not based upon presumptions of notice, but upon a public policy imperatively demanded by a necessity which can be overcome in no other manner.^ Lis pendens ia ssiid to be general notice to all the world. The doctrine rests upon public policy, rather than upon notice: the law does not allow parties to give to others, pending the litigation, rights to prop- erty in dispute so as to prejudice the opposite party. A lis, to affect a person's power of alienation, must be a lis in which a decree could be entered against him as to the property. In the earlier cases it -was held that lis pendens was notice to all the world.^ ' Among the actions to which the dpctrine applies are suits : to foreclose unrecorded mortgages, and vendors' liens, to set aside a decree of partition, to enforce the specific performance of a contract for the sale of realty, to enforce a charge against realty whatever the form of the action. Actions in the nature of cred- itors' bills have been considered as giving notice to subsequent purchasers of the particular property in controversy.* The rule does not apply to negotiable securities purchased before maturity. And the considerations which exclude the operation of the rule apply whether they were created during the suit or before its com- mencement, and to controversies as to their origin or transfer. 5 He who intermeddles with property in litigation does so at his peril, and is as conclusively bound by the results of the litigation, whatever they be, as if he had been a party from the outset.' A lis pendens, duly prosecuted, and not conclusive^ is notice to a purchaser so as to bind his interest by the decree; and the lis pendens begins from the sei*v- ice of the subpoena after the bill is filed. This is no more than the adoption of a rule in a. real action at ' Gardner v. Peckham, 13 R. I. 103-104 (1880), Durfue, C. J., citing Bellamy v. Sabine, 1 De G. & J. *666 (1857). ' Freeman, Judg. § 191, cases. 3 Dovey's Appeal; 97 Pa. 100 (1331), Paxson, J. ; 1 De G. & J. 580; 2 Rand. 93. ' Smith V. Kimball, 30 Kan. 485 (1887), cases. 5 County of Warren u. Marcy, 97 U. S. 105-7 (1877), cases, Bradley, J. ; County of Cass v. Gillett, 100 id. 593 (1879). « Tilton V. Cofield, 93 U. S. 168 (1876), cases, Swayne, Justice. UST 634 LITTORAL common law, where, if the def eudant aliens after the pendency of the writ, the judgment will overreach Buch alienation. The rule may ^ometimes operate with hardship, especially where the notice is construct- ive, as in many cases, but general convenience re- quires it.^ Litis contestatio. A statement in de- nial ; a defense : as, a general answer of de- nial; in admiralty, a jbinder of general issue. 2 Litis dominus. See DoMmus. Litis magist^r. He who controls a suit.' LIST. 1. A catalogue, roll, or statement, more or less orderly in arrangement, of names, causes, issues, etc.* Compare ClL- ENDAE, 3. Argument list. Consists of causes for argument on issues Of law. See Aegtjment. Call list. See Call. Civil list. (1) A statement of civil causes. Criminal list. A list of criminal cases. (2) Tiie civil ofScers of a government ; also, appropriations to support such officers; in England, the expenses of the sovei-eign's household.* Jury listi A calendar of the jurors summoned, or in attendance upon a court. Trial list. A calendar of causes ready for trial by jury. See also Lloyd's List; Sdbsoeiptioh. 3. A schedule of the polls and ratable es- tate of the inhabitants upon which taxes are to be assessed. 6 The same as "grand list." A list that represents real estate may answer the requirement of a statute.^ Listed. Said of the persons or property so noted or enumerated. Lister. The person whose business is to pi'epare such formal statements. Compare Enlistment; Inventout; Register. LITEBA. L. Letter ; written character. IdtercB. Letters, writings, documents. Qui hseret in litera, hseret in cortiee. He who clings to the letter, sticks in the bark. He who regards the mere words of ■ Murray v. Ballou, 1 Johns. Ch. 676-80 (1815), cases, Kent, Ch. See generally i Cent. Law J. 27-29 (1877), cases; 26 id. 411-17 (18S8), cases; 14 Am. Deo. 774; 1 Story, Eq. §§ 405-7; 3 Pars. Contr. 282. ' See 3 Bl. Com. 298; Story, Eq. PI. § 877. s 37 N. J. E. 397. 4 See Homer v. Cilley, 14 N. H. 100 (1843); WUliamsti. Hempstead County, 39 Ark. 179 (1883). ' See 1 Bl. Com, 333. « Wilson V. Wheeler, 55 Vt. 453 (1882), Eoyce, J. an instrument cannot arrive at its meaniBtg.l See CONSTEUCTION. LITEEAL. According to the words, language, or exact terms: as, a literal con- struction of a document, a literal perform.- ance of a contract. See Liteea ; Obliteea- TION. LITEBABY. Applied to property, re- fers to the right an author has in his own composition, so that no other person, with- out his leave, may publish or make profit of the copies: the production of an original work by the exertion of the rational powers.^ SeeCoPYEiGHi; Occupancy. In statutes exempting property devoted to literary purposes from taxation, " literary " has no fixed legal signification, but is to be taken in its ordinary meaning. "Literary iiistitutions " are those in which the positive sciences ai-e taught, or persons eminent for learning associate for purposes connected with their professions. It is not then, prop- erly used, descriptive of a school for the in- struction of youth.' Literary associations. See Associa- tion. LITHOGRAPH. See Copyeight ; Nos- CITUE. LITIGATE.* To carry on or defend a suit, at law or in equity. Litigant. A pEirty to a lawsuit, — usually an active party. Litigation. A contest in a court of jus- tice ; a judicial proceeding. See Inteeest, 1, Eei publicsB, etc. ; Lis, Pendens. Litigious. 1. Subject to judicial recog- nition. 3. Too ready to go to law ; over-fond of lawsuits. Once, a thing which created litigation, LITIS. See Lis. LITTER. See Paetus. LITTORAL.5 Belonging to the shore; riparian.' ' 2 Bl. Com. 379; 118 U. S. 638; 3 How. 255; 69 Iowa, 133; SGa. 252; 22 Pick. 657; 38 N. Y.433; 74 id. 389; 72 Pa. 241, 483; 74 id. 201; Sedgw. Const. Laws, 253. M3 Bl. Com. 405 ; Woolsey «. Judd, 4 Duer, 379 (1855) ; 2 Kent, 306-15; Keene v. Wheatley, 9 Am. Law Beg. 44 (1860); 17 Cent. Law J. 268-71' (1883), cases. * Council of Indianapolis v. McLean, 8 Ind. 333 (1856); Kendrick v. Farquhar, 8 Ohio, 107 (1837). * L. lis, dispute; agere, to carry on. ^ L. Utus. the sea-shore. « 17 How. 436; 7 Cush. 94; 3 Kent, 437. LIVE 635 LOADED LIVE. 1, V. In a devise of " the farm on •which F. now lives," held equivalent to sub- eist, obtain a livelihood, rather than to dwell or reside. 1 A child en venire will take under a devise to the testator's children " living " at his death,* Occasional acts of intercourse will not constitute "living together." SeeAnDLTBRT; Cohabit; Douioil; .Beside. 2, adj. Within a duty law, " live animals " was held to include singing birds.' But " live stock " was held not to include fowls.* See £tock. 1; Team. LIVERY .5 Delivery; tradition. The act or the form by which possession of land was formerly given or received. Livery in chivalry. When the heir- male at twenty-one, or an heir-female at six- teen, sued out a delivery of his or her lands from the guardian. 6 livery of seisin. Pure feudal investi- ture, or delivery of corporal possession of land or of a tenement.' Was absolutely necessarf to complete a donation ; the last act by which a feoffment was perfected. It preserved the testimony of the grant in the community. It was necessary to the grant of an estate of freehold in a corporeal hereditament; impossible in the case of an incorporeal hereditament; and not essential to a lease for years or other chattel interest. Hence, a, freehold could not be made to commence in futuro, the actual manual tradition of the land being want- ing. Livery in deed. Livery actually made on the land, before witnesses. Livery in law. Livery made In sight of the land. Both were succeeded by delivery inwriting.' Land granted by livery of seisin, without defining the quantity of the estate, was treated as a life-estate." Where there was a delivery of possession, without de- fining the term, there arose only a tenancy at will.' •See further Delivery, 1. LIVERY-STABLE. A place where horses are groomed, fed, and hired, and where vehicles are let.' Live'ry-statale keeper. One whose busi- ness is to Jieep horses for hire, or to let, keep, feed, or board, horses for others. i" A livery-man is bound to keep safe horses, or fully » Kendall v. Miller, 47 How. Pr. 449 (1874). 'Picot v. Armistead, 2Ired. Eq. 230 (1843). s Eeiche v. Smythe, 7 Blatch. 235 (1870). ' The Matilda Lewis, 5 Blatch. 583 (1867). ^ F. livrie, a thing delivered, a delivery. » [2 Bl. Com. 68. ' [2 Bl. Com. 313-16; 2 Utah, 45. 8 Efanger v. Lewis, 32 Pa. 370 (1859). 1 Williams v. Garignes, 30 La. An. 1005 (1878). '« Eevenue Act, 13 July, 1866, § 9: 14 St. L. 116. disclose the character of the horse to the driver at the time of letting him.' A person who hires a public hack and gives the driver directions as to the place to which he wishes to be conveyed, but exercises no other control over him. is not responsible for his negligence, nor prevented from recovering from a railroad company for injuries suffered from a collision of its train with the hack, caused by the negligence of both the managers of the train and the driver.^ See Bailment; Condition; Nuisance. , LIVELIHOOD. See Business; Employ- ment; Teade; Slander. LIVXNa. See Life ; Live, 1. LLOYD'S. An association in London whose members underwrite each other's ma- rine policies. Named from Lloyd's coffee-house, the resort of sea- faring men and those who did business with them, in the times of William the Third and Anne — 1690-1700. Lloyd's lists. Accounts of the arrivals, departui-es, casualties, and losses to ships. Lloyd's bonds. Sealed acknowledgments of debt by a borrowing company, with cove- nants for payment.' LOAD. Compare Laden. Of a wagon, does not include the weight of any part of the vehicle, nor the weight of the driver.' See Car. XiOading off shore prohibited. These words, in a policy of marine insurance, are capable of being construed by the court without the aid of extrinsic evidence. In the absence of such evidence, they may be held to prohibit loading while the vessel lies at anchor away from the shore, and not to forbid loading at a bridge pier." LOADED. Charged, and ignitible. Plugging the touch-hole may destroy a weapon's use as a "loaded" fire-arm. So, too, may the re- moval of the flint or the priming from a blunderbuss.* A box containing powder and detonators, aiTanged ' Huntoon v. Trumbull, 12 F. E. 844 (1880). 2 Little v. Hackett, 116 U. S. 366, 371 (1886), cases, Field, .1. ; criticising Thorogood v. Bryan, 8 C. B. 115 (1847). The last case was expressly overruled in The Bernina, 12 P. D. 58-99 (1887), cases. See casfes col- lected, Noyes V. Towniof Boscawen, Sup. Ct. N. H., 27 Am. Law Reg. 118 (1888); ib. 129-32; 35 Alb. Law J. 326, 330 (1887), cases; St. Clair Street By. Co. v. Eadie, 43 Ohio St. 95-96 (1885), cases; 24 Am. Law Keg. 710-16 (1885), cases. " See 2 Steph. Com. 139, 108, n. ; Am. Mar. Ins., 4 ed., 13B; 1 Lindley, Partn. 284; L. R., 2 Ex. 226; 4 Oh. Ap. 748; 11 M. iSrW. 116; 5 C. & P. 482; 2 Bing. 241; 33 Law Times, 638, 551; 46 Fortn. Rev. 528. ■• Howe V. Castleton, 85 Vt. 167 (1853). • Johnson v. Northwestern Nat. Ins. Co., 39 Wis. 87, 90 (1875). » Rex V. Harris, 24 E. C. L. 854 (1831); Reg. v. Lewis, 38 id. 207 (1840); Rex v. Carr, 1 Russ. & Ry. 377 (1819); Reg. V. Gamble, 10 Cox, C. C. 545 (1867). LOAN 636 LOCATE to ignite on opening, is not a loaded weapon.' See further Weapon. LOAN.^ 1. Referring to a chattel, a bail- ment without reward ; also, the thing itself so bailed. Iioan for consumption. Contemplates a return of the article in kind: strictly, a barter or an exchange.' Compare MUTUtJM. See Legacy. Loan for use. A bailment of goods to be used by the bailee temporarily, or for a certain time, without reward.* See Bail- ment; Hieing. 2. (1) Referring to money, never implies a return of the identical coin or notes; yet the idea of a reward for the use is not excluded. The delivery by one party, the lender, to, and the receipt by, another party, the tor- rower, of a given sum of money, upon an agreement, express or implied, to repay the sum with or without interest.' (2) The advance upon a note discounted, without reference to its character as business or accommodation paper. * See Discount; Interest, 2 (3); TTsdbt. Loan association, or society. See Building, Association. liOan certificate. During times of financial panic, in New Tox-k City, and perhaps elsewhere, what are known as " loan certificates " are issued by the clear- ing-house to the associated banks, to the amount of seventy-five per centum of the value of the collaterals . deposited by the borrowing banics with the loan com- mittee of the clearing-house. LOBBY.7 1. The part of a hall of legis- lation not appropriated to official use. 2. The persons who occupy such space on business concerning proposed legislation. Lobbying. Seeking to influence the vote of a member of the legislature by bribery, promise of reward, intimidation, or other dishonest means.' Lobby services. Services rendered in pro- curing the passage or defeat of a bill pend- 1 Eex V. Mountf ord, 32 E. C. L. 693 (1835). ' A. S. Icen, a lending. = Story, Bailm. § 439; 3 Mas. 478; 8 N. T. 433; 4 Ohio St. SB. • Story, Bailm. §§ 6, 219; 2 Kent, 573; 20 Barb. 348; 16 Ga. 25; 7 Pet. 109. » [Payne v. Gardiner, S9 N. T. 167 (1864), MuUin, J. See also 17 N. J. L. 206; 13 Barb. 75. « Nat. Bank of Gloversville v. Johnson, 104 U. S. 277 <1881), Matthews, J. ^ L. L, lobia. portico, gallery: G. loube, arbor, bower. 8 Const. California, Art. IV, sec. 35. ing before a legislative body, by persons who influence individual legislators in private. Lobbying is a felony, by the constitutions of Cali- fornia and Georgia. By the constitutions of several States, any person may be compelled to testify in any investigation or proceeding to establish lobbying, but his testimony cannot be used against him, except to prove perjury.' A contract to take charge of a claim before Con- gress and prosecute it- as agent and attorney for the claimant, is void as against public policy. Such con- tract is distinct from one for purely professional serv- ices as an attorney, within which are Included: draft- ing a petition which sets forth the claim, attending to the taking of testimony, collecting facts, preparing arguments, and submitting them to a committee or other authority, with other services of like character intended to reach only the understanding of the per- sons sought to be influenced.^ LOCAL. See Locus. Relating to a place : belonging to a partic- ular district; confined to a limited region. Opposed to general, personal, transitory, qq. V. As, local or a local — act, action, allegiance, commerce, court, custom, government, law, legislation, option, statute, venue, qq. v. The local character of an improvement may depend upon the special benefit which will result to the prop- erty adjoining or near the locality in which the im- provement is made.' LOCALITY. See Place, 1. LOCATE. See Locus ; Permanent. 1. To ascertain the place where a thing be- longs : as, to locate a call in a survey. Locative. Referring to a physical object by which the boundary of land may be iden- tified.* See Call, 3 (8). 2. Said of a building : to erect, put up ; not» necessarily, to complete.' 3. To select the line upon which a road or way is to be constructed. Whence relocate. The ordinary meaning of the words " to locate " a way is " to ascertain and determine the place of " the way, and in this sense they might well be used in'con- nection with the technical words " to lay out." • In statutes relating to ways, " location " sometimes ' 1 Stimson, Am. Stat. Law, § 153. 'Trist V. Child, 21 Wall. 441, 449-50 (1874), Swayne, J. ; Osoanyan v. Winchester Arms Co., IDS U. S. 275 (1880). ' State V. District Court of Ramsey County, 33 Minn. 307(1885); 32 id. 507. « See Johnson v. Pannel, 2 Wheat. 211 (1817); McDow- ell V. Peyton, 10 id. 463 (1835); 8 Bibb, 414. 'Waldron v. Marcier, 83 111. 560 (1876); Moule o. Plank Road Co., 6 How. Pr. 39, 40 (1851). " Foster v. Park Commissioners, 133 Mass. 3.33 (1883), Field, J. ■ LOCATIO 637 LODGER means the land included within the limits of the way as laid out, and sometimes is synonymous with " lay- ing out" — establishing a new highway, * See Aban- don, 1; Extend; Eaileoad; Take, S. Locator. (1) He who places, that is, bails, a thing with another for a compensa- tion. See LOCATIO. (2) One who locates, or is entitled to locate, land. See 4, infra. The claim of a "locator," in Kentucky, is for a por- tion of the land in compensation for his services.^ 4, To appropriate land as a mining claim. See Mining, Claim. LOCATIO. L. A placing: letting out for hire. See Locus. Writers who follow the civil law have divided con- tracts of hiring into: 1. Locatio rei, the hiring of a thing, personalty or realty, 2, Locatio operisfaciendi, hiring for work to be done or care to be bestowed. To which class belong: the undertakings of a mechanic, artisan, tailor, of a warehouseman, wharfinger, quasi- agister, postmaster. H. Locatio operis mercium ve- hendarujn, a hiring of the labor of carrying goods. To this class belong: a private carrier, with or without pay; a common carrier of goods — express, freight, transfer, packet companies ; quasi -carriers — telegraph companies, innkeepers. This class also embraces com- mon carriers of passengers. ^ See Bailment. LOCK. See Navigation, LOCK-OUT. See Strike, 2. LOCK-UP. A lock-up house : a place for the temporary confinement of law-breakers. See .Prison, LOCO. See Locus. LOCOMOTIVE. See Bicycle; Rail- road. LOCUM. See Locus'. LOCUS. L. Place: locality, territory, jurisdiction; stead, situation; space, room, period ; opportunity. Compare Situs. Loco parentis. In the situation of a par- ent. Predicated of a person who assumes the parental character, or discharges the parental duties. See fur- ther Parens. Locum tenens. Holding the place: a representative. See Active. Locus contractus. The place of con- tract ; where a contract is made or is to be performed. See further Lex, Loci. Locus criminia. The place of crime: where a crime was perpetrated. ' Foster v. Park Commissioners, 133 Mass <1883); 117 id. 416; 6Bradw. 119. ' HoUingsworth v. Barbour, 4 Pet. 473 (1 '3 Kent, 585; Jones, Bailm. 35; 8 Pars, CoritjrfFRil,' 136. Locus delicti. The ' place of wrong : where an offense was committed. See De- lictum. Locus in quo. The place in which: where an alleged thing was done, as, a tres- pass committed; or, where land in dispute lies — the place in question. " The loctis in quo was not a legally established street."' See Alibi; View, Locus poenitentisB. Place for repent- ance : an interval or opportunity in which to reconsider and withdraw, as, from a proposed contract, or from unlawful action. Thus, the law affords a person an opportimity to withdraw from any illegal contract before it has been executed; ' to recall a bid made at a sale of realty before his name has been written down; to decide not to complete a gift; for a return to a deserted wife or husband within a prescribed period; to go on and per- form a contract, after a declaration made not to be bound by it; 3 to abandon any criminal intention. See Delictum, In pari, etc. Locus regit actum. The place governs the act : the law of the locality regulates the thing to be done,' See Lex, Loci. Locus rei sitae. The place of the situa- tion of a thing. See Lex, Loci. Locus sigilli. Place of the seal, q. v. Locus standi. Place for standing : right to be heard, 5 LODE. See Vein. LODGE. 1, V. (1) To make, prefer: as ,to lodge a complaint or information. (3) To deposit with; to file with, as, for transcribing. A deed sent to a coimty clerk for record, unaccom- panied with the fee, and, therefore, pigeon-holed by him, is not ** lodged " with him so as to be notice to a subsequent creditor of the vendor." See File, 3, Ji, A fraternity or brotherhood. See Association; Clubs. LODGER. One who occupies hired apartments in another's house ; a tenant of part of another's house,' See Distress. In the present state of the decisions, it is not possi- ble to frame a definition which will accurately distin- guish between a boarder, a guest, and a lodger,' See Boarder; Gdest; Innkeeper; Residence, 1 4 Wall. 194; 2 id. 42; 109 U, S. 562. ' a Wall. 154; 4 id. 518; 18 id. 355; 117 U, S, 503; 72 Pa, 213. > 8 Biss. 16, 4 18 Blatch. 154; 91 U. S. 406, iS3 U, S. 277. lerson v. Bowers, 48 N. J. E. 296 (1886). fman v. State, 1 Tex. Ap. 223 (1876); Burrill's Law !ict. » See 16 Ala. 666; 9 Pick. 280; 36 Barb, 460; 1 Tex, Ap, LOG LORD LOG. See Mile. Log-book. Vessels making foreign voyages, or of the burden of seventy-five tons or more, from an Atlantic to a Pacific port, or vice versa, must liave an ofQcial log-book.^ Tlie entries slaall be of matters occurring during tbe voyage, sucli as offenses by tlie crew, punishments in- flicted, any cage of illness, injury, death, birth, mar- riage, discharges of seamen. For neglect of this duty the master is punishable by fine." LOGIC. See Evidence ; Pleading ; Pee- SUMPTION; EEASON. LOG-ROLLING. Embracing in one bill distinct matters, none of which, perhaps, could singly obtain the assent of the legisla- ture, and procuring its passage by a combi- nation of the minorities in favor of the separate measures. ^ See Title, Of act. LOGS. The stems or trunks of trees cut into convenient lengths for the purpose of being afterward manufactured into lumber of various kinds. So held in a statute creating a lien in favor of per- sons who furnish supplies to men pngaged in taking logs out of the forest.* A person using a public stream by floating logs is not responsible at common law to a riparian proprie- tor for damages occasioned by the stranding of logs upon his land, if the driver has used reasonable effort to retain the logs within the stream." LONDON". See Custom; Feme Sole; Fleet; Gazette; Rack. LONG. See Account, 2 ; Lease. LONGEVITY. See Table, 4. LOOKOUT. A person, upon board a vessel, stationed in a favorable position to see and near enough to the helmsman to communicate with him, and exclusively em- ployed in watching the movements of other vessels.* LOOM. See Heirloom; Flxtuee. LOOSE. See Animal; At Large; Es- TEAY. 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, Landl. & T. 177. » R. S. § 4290. ' "E. S. §§ 4391-93. See 1 Whart. Ev. § 648, cases; 1 Greenl. Ev. § 49S, cases. a [Walker v. GrifBth, 60 Ala. 369 (1877), Manning, J.; 86 Kan. 340. 'KoUock'u Parcher, 53 Wis. 398 (1881), Taylor, J. See 40 Me. 145. ' Carter v. Thurston, 58 N. H. 104, 107 (1877), cases; . , • Genesee Chief v. Fitzhugh, 12 How. 462 (1861), Taney, C. J. See also Eeed v. Steamboat New-Haven, 18 How. Pr. 485 (1869). LORD. 1. A feudal superior; one of whom an estate was held. He was a lord paramount or a lord paravail. lAege lord was contradistinguished from " liege man." Landlord was originally used in this sense. See Feud. 3. In England, a title of nobility, belong- ing, strictly, to the degree of a baron, but applied to the' whole peerage.^ Lords spiritual. A constituent part of parliament, being two archbishops and twenty-four bishops.^ Lords temporal. All the peers of the realm, by whatever title distinguished, and forming another constituent part of parlia- ment.^ House of lorqis. The branch of parliament consisting of the lords spiritual and the lords temporal. See Parliament. 3. A title bestowed upon persons occupy- ing certain high ofiSces. Lord advocate. The principal proseout-_ ing ofBcer employed on behalf of the crown. See Advocate. Lord chancellor. The presiding judge in the court of chancery. See Chancel- LOE, 1. Lord commissioner. A person charged with the execution of any high public office put into commission. In lieu of the lord treasurer and the lord high ad- miral of former times, there are now the lords com- missioners of the treasury, and the lords commissioners of the admiralty; there are also lords commission-' ers of tbe great seal, etc. Lord justices. 1. Persons appointed to administer government temporarily during an emergency. 2. Two judges appointed, under an act of 1851, to assist the lord chancellor in hearing appeals.' Lord lieutenant. 1. The principal offi- cer of a county. 2. The representative of the crown in Ireland.* Lord mayor. The chief officer of the corporation of London. Lord mayor's court. The highest court of record, of law and equity, within the city of London. 5 Lord treasurer. An officer who had charge of the royal revenues. ' [1 Bl. Com. 396. = [1 Bl. Com. 156-57. = 2 Steph. Com. 477; 3 id. 331. < 1 Bl. Com. 413; 4 id. 373 'See3Bl. Com. 81. LORD, YEAR OF 639 LOST Hife functions are now vested in the lords commis- sioners of the treasury.' LORD, YEAB OP. See Yeae. Lord's day. See Sunday. LOSS. 1. Privation; injury; damage. See Damage ; Damages. A community of profits implies a community of losses: losses are, in a sense, nothing more than a diminution of profits.^ 2. Dam^e to or the entire destruction of an insured subject by a contemplated peril. Actual loss. Where there is a real de- struction of the subject. Constructive loss, or constructive total loss. When the injury is so great that the insured may abandon the remnant to the insurer. Partial loss. When the subject is dam- aged but not destroyed. Total loss. When the subject is wholly destroyed. Total loss. The total destruction of the thing insured; also, such damage to the thing, though it may remain in specie, as renders it of little or no value to the owner. ' Actual total loss. When the subject in- sured wholly perishes, or its recovery is ren- dered irretrievably hopeless.*- It is not necessary to a total loss that there be an absolute extinction or destruction of the thing insured, so that nothing can be delivered. A destruction in specie, so that while some of its component elements or parts may remain, the thing which was insm-ed, in the character or description by which it was insured, is destroyed, is a total loss.^ As applicable to a building, means, not that its materials were utterly destroyed, but that the build- ing, though part of it remains standing, has lost its identity and specific character as a building, and, in- stead, has become a brolcen mass, or cannot longer properly be designated as a building. Absolute ex- tinction is not meant. "Wholly destroyed" may be an equivalent expression.* As long as a vessel exists in specie in the hands of the owner, although she may require repairs greater tlian her value, a case of *' utter loss," within the meaning of a bottomry and respondentia bond, does not arise and she continues subject to the hypothecation.^ I See 3 Bl. Com. 38, 45, 56. ' Priest V. Chouteau, 13 Mo. Ap. 856 (1882). ' [Livermore v. Newburyport Mar. Ins. Co., 1 Mass. *279 (1804), Sedgwick, J. • Burt V. Brewers', &c. Ins. Co., 9 Hun, 384 (1876); Biurill's Law Diet. ' Great Western Ins. Co. u Fogarty, 19 Wall. 640, 643 (1873), cases. Miller, J. • [Oshkosh Packing, &o. Co. v. Mercantile Ins. Co., 31 F. E. 204 (1887), Dyer, J. ; May, Ins. § 421 o, cases; 1 Wood, Ins. § 107, cases. ' Delaware Mut. Safety Ins. Co. v. Gossler, 96 U. S. 645, 653 (1877), cases, aifford, J. " Freight " may be lost in the sense that by reason of the perils insured against the ship has been pre- vented from earning freight; and, also, in the sense that it is lost to the owner, after it has been earned, by some circumstance unconnected with the contract between the assured and the underwriters on the freight.' See Avkkage; Indemnity; Insurance; Ooctjb. Proof of loss. A written and sworn state- ment, made to an insurance company by the beneficiary, of the fact of a loss. In fire insurance, analogous to the "protest" in marine insurance. The time when the loss occurred, the cause of it, the value of the property, the name of the owner, incumbrances, and like facts, are usually required to be furnished. Waiver of "preliminary proof of loss" by an in- surer may be proved indirectly by circumstances, as well as by direct proof; and so also may authority in an agent to make the waiver be proved.^ Preliminary proof of a death is not required, when the insurer, on being notified thereof, denies his lia- bility and declares that the insiu-ance will not be paid.^ LOST. 1. The finder of lost property has a valid claim against all persons but the true owner. See further Find, 1. 2. The contents of any written instrument lost, or destroyed, may be proved by compe- tent evidence. Judicial records and all other kinds of documents of a kindred nature are within the rule.* If a note has been destroyed by fire, it may be said to be "lost." * If a bill of exchange or a promissory note, indorsed in blank and payable to bearer, be lost or stolen, and be purchased in good faith without Imowledge of want of ownership in the vendor, the holder's title is good.* The rule is otherwise as to a bill of lading, q. v. A lost will may be established by evidence, as in the case of a lo. County of Cass u. Johnston, 95 U. S. 369 (1877), cases. Miller and Bradley, JJ., dissenting. See also 23 Alb. Law J. 44-47 (1880), cases; 48 111. 263; 69 Ind. 503; 22 Minn. 63; .33 Mo. 103. > See 1 Story, Const. § 3.30. < F. mal: L. male: malus, bad. ' See Minkler v. State, 14 Nev. 183 (1883). MALEFICIUM 618 MALICE MALEFICIUM. L. Wrong-doing ; un- lawful action; injury; tort. Ex maleflcio. On account of misconduct. See Thust, 1, Trustee. MALFEASANCE. See Mal ; Feasance. M ALICE. 1 Wicked intention to do an injury.2 In law, any improper and sinister motive ; not necessarily spite and hatred.^ Wantonness ; willful disregard of right and duty : doing an act contrary to a man's own convictions of duty.* The state of mind in which one willfully does that which he knows will injure an- other's person or property. ^ Not limited to acts done from hatred, re- venge, or passion ; includes all acts wantonly or willfully done, that is, acts which any man of reason, knowledge, and ability must know to be contrary to his duty.* In homicide, a wicked, malignant, and re- vengeful act, flowing from a heart regardless of social duty, and fatally bent on mischief.' In trespass, when the injury has been wan- ton, ol- gross and outrageous.8 Not merely the doing of an unlawful or injurious act, but an act conceived in a spirit of mischief, or of criminal indifference to civil obliga- tion.9 Thus, in malicious prosecution, the term is quite comprehensive, and includes many phases of wrong motive and conduct. There may be ill-will, malevo- lence, spite, a spirit of revenge, or a purpose to injure without cause, but it is not necessary there should be. If the prosecution is willful, wanton or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy, it is malicious. ^° ^ F. malipe: L. malitia, badness. See Malitia. 2 Tuttle u Bishop, 80 Conn. 83 (1861). ' Mitchell V. Wall, 111 Mass. 498 (1873), eases. ' United States v. Buggies, S Mas. 192 (1838), Story, J. ii Territory v. Egan, 3 Dak. 130 (1882), Kidder, J. » United States v. Coffin, 1 Sumn. 398 (1833), Story, J.; Wiggin V. Coffln, 3 Story, 1 (1888); Dexter v. Speai', 4 Mas. 117 (1826); United States v. Harriman, 1 Hughes, 5-38 (1878). ' United States v. Ruggles, supra. See also 37 Ind. 114; 89 id. 193; 26 Ga. 156, 275; 30 Miss. 678; 31 Mo. 147; 19 Iowa, 447; 85 Mich. 16. s Day V. Woodworth, 13 How. 371 (1851). « Philadelphia, &c. E. Co. v. Quigley, 21 How. 214 (1853), Campbell, J.; Milwaukee, &o. R. Co. ^v. Arms, 91 U. S. 493 (1876). ' '» Hamilton v. Smith, 39 Mich. 329 (1878), Graves, J. ; Be Murphy, 109 111. 33 (1884) ; Ramsey v. Arrott, 64 Tex. 323 (1885). In a newspaper publication, malice in uttering false statements may consist either in a direct intention to injure another, or in a reckless disregard of his rights, and of the consequences that may result to him. J Want of knowledge may aggravate the malignity of the case by showing an indiscriminate malice and in- difference to the peace of the innocent.-* Actual malice J malice in fact; ex- press m.alice. Malice existing as a matter of fact. Express malice in homicide exists when one, with a sedate, deliberate mind and formed design, doth kill another; which design is evidenced by external cir- cumstances discovering that inward intention; as, lying in wait, antecedent menaces, former grudges, and concerted schemes to do bodily harra.^ Express malice consists in the deliberate intention of doing any bodily harm to another, unauthorized by law.^ Express malice means a deliberate intention and design to commit the offense in question^" Constructive malice; implied malice; legal malice. Malice inferred from acts; malice imputed in law. Implied malice, or malice in law, is malice inferred from an act, presumed from a deliberate act, though no particular enmity can be proved. -As. where a man kills another without provocation — which evidences an abandoned heart; or where a criminal kills a, per- son who is endeavoring to make a lawful arrest; or where a person, intending to commit another felony, kills a man — as, shoots at A and kills B against whom he has no ill-intent; or, a killing by an abortionist. Any such killing is murder, because of the previous felonious intent, which the law transfers to the act. Indeed, all felonious homicide is presumed to be ma- licious until the contrary appears. ° Implied malice is malice which has no existence in fact, but which the law imputes to the guilty party. ^ Implied malice exists where mischief is intention- ally done without just cause or excuse." Malice aforethought "or prepense. In homicide, Hot so properly spite or malevo- lence to the deceased in particular, as an evil 1 Gott V. Pulsifer. 133 Mass. 239 (1877), Gray, C. J.; Lothrop V. Adams, 183 id. 479.(1882); Barr v. Moore, 87 Pa.. 393 (1878); Negley v. Farrow, 60 Md. 171" (1882); Odgers, Lib. & SI. *264; Townshend, SI. & Lib. § 87. 2 Dexter v. Spear, 4 Mas. 11" (1835), Story, J. s 4 Bl. Com. 199. * People V. Clark, 7 N. T. 333 (1858). » [Anthony v. State, 21 Miss. 264 (1850). ' 4 Bl. Com. 199-301. ' Darry v. People, 10 N. Y. 188 (1854). * Parke v. Blackiston, 3 Harr. 378 (Del.. 1841). See, on express and implied malice, 31 Cal. 53 ; 12 Pla. 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. 684; 25 Mo. 151; 43 id. 161, 3!3; 11 S. & R. 40; 82 Tex. 641; 33 id. 645; 8 Tex. Ap. 109; 4 B. & C. 353; 9 CI. & F. 32; 2 Steph. Hist. Cr. Law Eng. 118-21. MALICE 649 MALPRACTICE design in general ; the dictate of a wicked, depraved, and a malignant heart.i Is not confined to homicide committed in cold blood, with settled design and premeditation, but extends to all cases of homicide, however sudden the occasion, when the act is done under such cruel circumstances as are the ordinary symptoms o£ a wicked, depraved, and malignant spirit.^ Includes not ouly anger, hatred, and revenge, but every other unlawful and unjustifiable motive. Is not confined to ill-will toward one or more individual per- sons, but is intended to denote an action flowing from any wicked and corrupt motive, a thing done malo animo, where the fact has been attended with such circumstances as carry in them the plain indication of a heart regardless of social duty, and fatally bent on mischief. Therefore, murder is implied from an.y de- liberate or cruel act against another, however sudden. The words do not imply deliberation, or the lapse of considerable time between the malicious intent to take life and the actual execution of that intent, but they rather denote purpose and design, in contradis- tinction to accident and mischance.^ Whenever a homicide is shown to have been com- mitted without lawful authority and with deliberate intent, it is sufficiently proved to have been with mal- ice aforethought. It is not necessary to prove that any special or express hatred or malice was enter- tained by the accused toward the deceased. It is suf- ficient to prove that the act was done with deliberate intent, as distinct from an act done under the sudden impulse of passion, in the heat of blood, and without previous malice.* See Murder. Particular malice ; personal malice. Particular malice is ill-will, grudge, a desire to be revenged on a particular person.''' Personal malice is spite against some particular in- dividual. It is one of the two varieties of malice in fact, the other being what Blackstone terras " uni- versal " malice, or malice against the world generally, without reference to individuals: as, where a person discharges a gun into a multitude, or starts out to kill and does kill the first man he meets." Malicious. Characterizes an act not only when it arises fi-om personal spite, but when it is a wanton and intentional injury, when it is willful.' ' 4 Bl. Com. 198. ■' United States v. Cornell, 2 Mas. 91 (1820), Story, J. ■Commonwealth, v. Webster, 5 Cush. 304-0(1850), Shaw, C. J. • United States v. Guiteau, 10 F. R. 162, 165 (1882), Cox, J. ; Davison v. People, 90 111. 229 (1878); Spies et al. D.TeopIe, 122 id. 174 (1887). 1 Brooks V. Jones, 11 Ired. L. 261 (1850). " See 4 Bl. Com. 200; Brown's Law Diet. See gen- 'erally 1 Curtis, 4; 1 Dak. 458; 29 Ga. 594; 29 Kan. 427; 13 Mo. 332; Ifl Nev. 307; 49 N. H. 399; 13 Wend. 159; 68 Pa. 9; 14 Tex. Ap. 236, 300, 331 ; Law Mag. & Rev,, Aug. 1883. ' Dexter v. Spear, 4 Mas. 118 (1825), Story, J. In a legal sense, describes any unlawful act done willfully and purposely to the prejudice and injury of another.' The intentional doing of a wrongful act with knoivl- edge of its character, and without cause or excuse.^ Describes the state of mind in which many acts (crimes and torts) are done: as, malicious — abandon- ment, arrest, battery, burning, communication, deser- tion, injury, intention, libel, mischief, prosecution, publication, gg. v. Maliciously. With deliberate intention to injure ; willful : as, the malicious burning of a building.' Maliciously suing out an attachment means not only malevolent intention to do injury, but also that careless disregard of the rights of others which, with- out real ill-will, the law implies as malice.* In a spirit of wicked revenge toward a person, or of wanton cruelty toward an animal.^ In misdemeanors and felonies, imports a criminal motive, intent or purpose.^ See Dbuberation, 3; Damages, Exemplary; In- tent: Knowledge, 1; Motive. MALITIA. L. Vicious will; evil de- sign ; wickedness ; malice. Compare Dolus ; Malus. Malitia supplet setatem. Viciousness makes up for age ; a wicked design supplies the want of years. Between seven and fourteen an infant is prima facie incapable of criminal intention. Evidence of naischievous discretion will rebut this presumption.' MALO. See Malus. MALPRACTICE.8 Unskillful treatment by a physician or surgeon, in consequence of which the patient is injured more or less seriously, perhaps permanently. Spoken of as ignorant, negligent, or willful. Some authorities hold that the ofi^ense, however oc- casioned, is a misdemeanor: it implies a violation of confidence.* The patient may have a civil action for damages. The majority of the cases arise from amputations, 1 [Commonwealth v. Snelling, 15 Pick. 340 (1834), Shaw. C. J. 2 Rounds V. Delaware, &c. R. Co., 3 Hun, 383 (1874). See also 9 Mete. 106; 29 Tex. 266; 76 Va. 132. = Tuttle V. Bishop, .30 Conn. 85 (1861). « Jennan v. Stewart, 12 F. R. 868 (1882), Hammond, District Judge. ' Commonwealth v. Walden, 3 Cush. 559 (1849). See also 7 Ala. 728; 1 Minn. 292; 3 Terg. 878. « Commonwealth v. Brooks, 9 Gray, 303 (1857); Com- monwealth V. Boynton, 110 Mass. 345 (1874). That a malicious act of itself gives no right of action, see 18 Cent. Law J. 424-28 (1884), cases. ' 1 Bl. Com. 46.5; 4 id. 2, 83; 2 Kent, 233. 9 L. mal praxis, bad or faulty practice. See Mal. ' See 3 Chitty, Cr. L. 863; 1 Pr. 43; 2 Russ. Cr. 277; Mass. 134; 8 Mo. 561; 3 C. & P.629; 4 id. 423. MALTREATMENT 650 MANAGE fractures, and dislocations. The surgeon must know and apply what is settled in his profession, and bring to the performance "of an operation at least ordinary skill; and the patient must not directly contribute, to an extent that cannot be distinguished, to the results of the treatment he afterward complains of.' See Care; Maltreatment. MALTREATMENT. Synonymous with bad treatment. Does riot imply, necessarily, conduct that is either willfully or grossly careless. Results from ignorance, negligence, or willfulness. This, at least, is the mean- ing, as applied to the treatment of a wound by avsur- geon.2 Compare Malpkaotice. Maltreatment of anituals. See Cruelty, 3. MALUM. See Malus. MALUS. L. Bad ; evil. Compare MAt. Mala. JBad ; in or witli tiiat which is bad, evil, unlawful. Mala fides. Bad faith; opposed to tona fides. See Fides. Mala grammatica. Bad grammar, q. v. Mala mens. Bad mind: fraudulent or criminal intention. Mala praxis. Bad treatment: malprac- tice, q. V. Malo. With or in bad, evil, unlavvful. Malo animo. With bad intent ; maliciously." Malo sensu. In the bad meaning. See Slander. Malum. Evil, an evil, a wrong. Plural, mala. Malum in se. Evil in itself; an act per- nicious in its very nature. Malum prohib- itum. A forbidden evil; an act made wrong by legislation. Crimes and misdemeanors, such as murder, theft, and perjury, are mala in se, and contract no addi- tional turpitude from being declared unlawful by a human legislature. But it is otherwise as to thi;igs in themselves indifferent: these become right or wrong, just or unjust, duties or misdemeanors, as the munici- pal legislator sees proper for promoting the welfare of society, and more effectually carrying on the purposes 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- 'See Hibbard v. Thompson, 109 Mass. 288 (1872), cases; Potter v. Warner, 91 Pa. 386 (1879): 36 Am. Rep. 668, 670, cases; Elwell, Malp. 65; 9 Conn. 209; 13 B. Mon. 819; 27 N. H. 460; 7 N. Y. 397; 25 Ohio St. 86; 82 Pa. 861; 68 id. 168; 39 Vt. 447. As to criminal liability for death, see 27 Alb. Law J. 101-5 (1888), cases. ' Commonwealth v. Hackett, 2 Allen, 148-43 (1861), Bigelow, C. J. 3 1 Bl. Com. 54, 57. rive their guilt merely from prohibition by the laws of the laud.^ MALVERSATION. Any punishable fault committed in the exercise of an office. Originally, a term in French law.' MAN. l.'include's all human beJngBpjr any human being whether male or .Xemale : as, in the expressions, offenses a,gainst man, manslaughter, material-man, remainder^' man, warehouseman, and perhaps- bonds- man. Compare Hojao ; Person. 3. Restricted to males — adults: as, in al- dermanj assemblymah,"cbngressman, jury- ma-nT'talSSHianr " In a statute, " single man" and "married man" may be taken in a generic sense, and the former in- clude an unmarried woman. ^ " When any man shall die leaving minor children and no widow," in a statute of descents, " man " will include a woman who dies leaving a minor child, and no husband.* See Gender. 3. In feudal law, a vassal. See Feud. Man of straw. See Straw. MANAGtE.s To direct, control, govern, administer, oversee. It is not easy to establish a rule as to what may be considered " unmanageableness " in a horse, and much depends upon the circumstances of each case.^ Management. 1. The management of an engine consists in part of the management of whatever gen- erates the motive force. ' 3. The body of persons who have charge of the af- fairs of a corporation. See Director. Manager. 1. An officer of a corporation chosen to superintend its affairs. An ambiguous word, since it may mean either a person retained generally to represent the principal in his absence, or one who has the superintendence of a particular contract or job, in which latter case he is like a fellow- workman. 8 General manager. The person who really has the most general control over the affairs of a corporation, and who has knowledge of all its business and property, and who can act in emergencies on his own responsibility. 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. = Silver v. Ladd, 7 Wall. 326 (1868). « Smith V. Allen, 31 Ark. 871 (1876). ' F. manege, control of a horse, handling: L. mantis, a hand. « Spaulding v. Winslow, 74 Me. 636 (1883): 3 Cliff. 81; ' 100 Mass. 49; 185 id. 583; 132 id. 49; 73 N. Y. 365; 81 Pa. 50; 2 Thomp. Neg. 1207, cases. ' Smith V. Old Colony, &c. E. Co., 10 R. I. 88 (1871). 8 Murphy v. Smith, 19 C. B. N. s. *360 (1865), Erie, C. J. MANDANT 651 MANDAMUS He may be considered as the "principal oflS- cer." 1 Managing agent. An agent having gen- eral supervision over the affairs of a corpo- ration. ^ Distinguishes a peraon, representing a corporation, who is invested with general power, involving the ex- ercise of judgment and discretion, from an ordinary- agent or employee who acts in an inferior capacity, and under the discretion and control of superior au- thority, both in regard to the extent of the work and the manner of executing it.^ Such agent need not have charge of the whole busi- ness of the corporation.* In several cases in New York, it has been held that "managing agent" means a person exercising the functions of an officer in the contrpl and management of the business of a company or corporation, and does not include a pereon having charge of some special work, as, a baggage-master in respect to baggage, or a person employed to purchase horses and feed, or an assistant secretary, or a person who sells tickets, or who has charge of the transfer of the stock and the transmission of assessments. The adjudications have not gone so far as to hold that no agent is a " manag- ing agent " who does not participate in the control of every part of the corporate business, and of every cor- porate act. Still less has such construction been given where it would defeat justice, and enable a corporation to violate the law with impunity." See Principal, 4, Vice. 3. In England and Canada, the chief exec- utive oiBcer of a branch bank. 3. A member of the impeaching branch of a legislature, selected to assist as counsel at a trial. ' MANDANT. See Mandate, 3. MANDARE. L. To enjoin, command : literally, to put into one's hand. Mandamus. We command; we com- mand you. The emphatic word in the Latin form of the writ of that name : a command issuing in the king's name, directed to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court has previously deter- I Wheeler & Wilson Manuf. Co. v. Lawson, 57 Wis. 404(1883), cases, Orton, J.; 110 U. S. 6. ■' Upper Mississippi Transportation Co. v. Whittaker, 16 Wis. a.35 (1862), Paine, J. ' [Redd'ington v. Mariposa Land, &c. Co., 19 Hun, 408 (1879), Ingalls, J. •Palmer v. Pennsylvania Co., 35 Hun, 371 (1885). 'Hat-Sweat Manuf. Co. v. Davis Sewing-Machine Co., 31 F. E. S95 (1887), cases. Brown, J. mined, or at least supposes, to be consonant to right and justice.' A high prerogative (discretionary) writ of a most extensively remedial nature, where justice is refused or neglected. It issues where a party has a right to have a thing done or has no other specific means of compelling its perf oimance : as, to compel admission or restoration to an or.ice or franchise of a public nat- ure ; for the production or inspection of public docu- ments; to compel a judge of an inferior court to do justice according to the powers of his office, as to admit an attorney to practice.^ A proceeding to compel officers and others to act in the discharge of the duties and trusts imposed upon them. It is not de- signed to review their action when discretion may be exercised, or where action depends upon facts to be determined by them.^ The courts are disposed to confine the remedy to cases where there is no other adequate specific remedy. ■ The writ affords a summary and specific remedy where without it the party will be subjected to serious injustice.* In modern practice, in effect, is nothing more than an ordinary -action at law between the parties, and not regarded as a prerogative writ. It came into use by virtue of the prerogative power of the English crown, and was subject to rules and regulations long since disused.* It may be said to be an established remedy to oblige inferior courts and magistrates to do that justice which they ai'e in duty, and by virtue of their office, bound to do." The writ lies where the plaintiff has a clear legal right to the performance of an official or corporate act, by a public officer or corporation, and no other adequate, specific remedy exists.' Regularly the writ lies against a public officer to compel the performance of a public duty; never to restore to a private office or to execute a private right; and, as a rule, never where the applicant has another adequate remedy."^ Its office is to compel the performance of a duty resting upon the person to whom the writ is sent. The 13 Bl. Com. UO; 1 Cranch, 169; 5 Pet. *193; 13 id. *014. 2 3 Bl. Com. 110, 264. " Scripture v. Burns, 69 Iowa, 73 (1883), Beck, J. See also 22 N. J. L. 47; 28 N. Y. 114. •Tawas, &c. R. Co. o. Judge of Iosco County, 44 Mich. 47ii, 483 (1880): 24 id. 468; Huston, &c. E. Co. v. Commissioner of Land Office, 36 Tex. 399 (1873); King V. Baker, 3 Bur. 1267 U702); State v. Board of Liquida- tors, 29 La. An. 267 (1877). 'Kentucky v. Dennison, 24 How. 97(1860), Taney, C. J.; Hartman r. Greenhow, 102 U. S. 675 (1880); State V. Lewis, 70 Mo. .379-81 (1882); High, Extr. Rem. 4. « Virginia v. Rives, 100 U. S. 323 (1879), Strong, J. ■ ' Smalley v. Yates, 36 Kan. 523 (1887), cases, Horton, Chief Justice. 8 Tobey v. Hakes, 54 Conn. 374r-75 (1886), cases. MANDAMUS 653 MANDATUM law geeks to enforce a personal oliligation, whatever the facts or relations out of which the duty grows. It is a pei^onal action, resting upon the averred and as- sumed fact that the defendant has neglected or refused to perform a personal duty, to the performance of which by him the relator has a clear right. Hence, demand, ^nd refusal, to do the thing, is necessary.' The writ is grounded on a suggestion of right in the petitioner, and a denial of justice; whereupon, in order more fully to satisfy the court that there is probable ground for such interposition, "a rule is made (except where probable ground is manifest) directing the /party complained of to show cause why a man- damus should not issue; and if he shows no sufficient cause, the writ itself is issued, at first in the alterna- tive: to do thus or show some reason to the con- trary; to which an answer is made at a certain day; and if the respondent shows an insufficient reason, there issues & peremptory mandamus: to do the thing absolutely; to which perfect obedience is required," A rule fU'st issues to show cause why a peremptory writ should not issue. After due service, the respond- ent makes return to the charge contained in the rule — by denying the matters .or setting up new matter, or he moves to quash the rule, or demurs to the allega- tions. A matter charged and denied must be proved by the relator, and new matter in avoidance, if denied by the relator, must be proved by the respondent. Several defenses may be set up.^ The appropriate functions of the writ are the en- forcement of duties to the public by officers and others, who neglect or refuse to perform them, and for which there is no other specific remedy. The presentation of a prima facie case of duty in the re- spondent and an obligation to perform it precedes the granting of an alternative writ, and this is considered as done when the court has awarded the writ. The respondent is bound to deny the allegations in the writ, or else by a demurrer or by a traverse of the facts, generally or by confession and avoidance, show cause why he should not. In case of traverse, the facts relied upon must be set forth clearly, specific- ally, and certainly, so that the court may see at once that the facts, if established or admitted, are sufficient as the alternative for obedience to the writ.* The writ does not lie to control judicial discretion, except when that discretion has been abused; but it is a remedy when the case is outside of the exercise of this discretion, and outside of the jui'isdiction of the court or officer to which or to whom the writ is ad- dressed. A peculiar and common use is to restrain in- ferior courts and to keep them within their lawful bounds.* 1 United States v. Boutwell, 17 Wall. 607 (1873), Strong, Justice. 2 3 Bl. Com, 110, 264; 53 Wis. 426; 40 Tex. 683. 3 Exp. Newman, 14 Wall. 166-67 (1871), cases, Chf- ford, J. ^ Commonwealth, ex rel. Armstrong v. Commission- ers of Allegheny County, 37 Fa. 379 (1860): Tapping, Mand. 347; 33 Pa. 218; 34 id. 496. 6 Virginia v. Rives, 100 U. S. 323 (1879): Exp. Burtis, 103 U. S. 238 (1880), cases; lOpfd. 186. The writ does not abate by expij'ation of the terra of office, where there is a continuing duty irrespective of the incumbent. 1 There is a preponderance of authority in favor of the doctrine that private persons jnay move for a mandamus to enforce a public duty, not due to the government as such, without the intervention of the government law-officer. The principal reasons urged against the doctrine ai-e that the writ is prei'ogative — a reason which is of no force in this country, and no longer in England,— and that it exposes the defendant to be harassed with many suits — but the writ, being discretionary with the court, will not be unnecessarily granted.* The writ lies to restore an attorney who has been disbarred unlawfully, and for cases where there is a legal right without any other remedy;^ to compel Satisfaction of a judgment against a municipality, by the levy of a tax, if the authorities have taxing power, and the creditor is unable to obtain payment by exe^ cution.* But not to compel the officers of a State to perform their political duties, as, to levy a tax for the payment of bonds, the payment being repudiated by the State, s The Supreme Court has power to issue the writ in cases warranted by the principles and usages of law to the Federal courts or officers, where a State, an ambassador or other public minister or consul is a party." Application for the writ to a subordinate court is " warranted by the principles and usages of law " in cases where the subordinate court, having jurisdiction, refuses to hear and decide the contro- versy, or where such a court, having heard the cause, refuses to render judgment^ or enter a decree, but not to re-examine a judgment or decree, nor to direct what judgment or decree shall be rendered, nor where remedy by appeal or writ of eiTor lies.' Mandatum. L. A gratuitous bailment. See Mandate, 3. Quando aliquid mandatur, mandatur et omne per quod pervenitur ad illud. When anything is commanded, commanded also is everything by which it can be effected. The law authorizes the doing of every thing neces- sary to accomplish what it commands; as, where effect is to be given to a statute. For this reason, also, a constable may order by-standers to assist him to compel offenders to keep the peace, and the sheriff command citizens to join the posse.^ Compare Grant, 2, 3; Incident. * Thompson v. United States, 103 U. S. 483 (1860), cases. 3 Union Pacific R. Co. v. Hall, 91 U. S. 355-56 (1875), cases. 3 Exp. Bradley, 7 Wall. 376 (1868). * Meriwether u Garrett, 102 U. S. 518-21 (1880). * Louisiana u Jumel, 107 U. S. 711 (18e2). « R. S. §§ 688, 716, cases. ''Exp. Newman, 14 Wall. 165 (1871), cases. As to jurisdiction in the Federal courts, see 19 Am, Law Rev. 505-46 (1885), cases. 8 8 Cush. 345; Broom, Max. 485. MANDATARY 653 MANNER MAlfDATABY. See Mandate, 3. MANDATE.! ]. a charge, command; a judicial command. 2 Includes "■ writ, process or other written direction issued pursuant to law out of a court, or made pur- suant to law, by a court, or a judge, or a person act- ing as ei, judicial officer, and commanding a court, board or other body, or an officer or other person named or otherwise designated therein, to do or re- frain from doing an act therein specified.* The rescript or precept promulgated upon the de- cision of a cause by the Supreme Court is called a mandate. It embodies what shall be done by the lower court. Mandatory. Involving a command ; op- posed to directory, q. v. Many statutory requisitions, intended for the guid- ance of offlcers in the conduct of business, do hot limit theii" power or render its exercise in disregard of the requirements Ineffectual. Such are regulations de- signed to secure order, system, and dispatch in pro- ceedings. Provisions of this character are not manda- tory unless accompanied by negative words importing that the acts shall not be done in any other manner or time than that designated. But when the require- ments, as, in a tax sale, are intended for the protection of the citizen, and to prevent a sacrifice of his prop- erty, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must then be fol- lowed or the acts done will be invalid. The power of the officer is limited by the manner and conditions prescribed for its exercise.* Compare PRonmiTioN, 1. 2. In a few of the States, the writ of man- damus, q. V. 3. A contract by which a lawful business is committed to the management of another, and by him undertaken to be performed without reward.' Mandant or mandator. The bailor in a contract of mandate. Mandatary. The bailee in such contract. See Bailment. MAITDATUM. See Mandare, Manda- tum. MATJTA.6 1. Mental derangement ac- companied with excitement. 2. Madness, irresistible impulse, insanity. ' Mandare, q. v. " See McKelsey v. Lewis, 3 Abb. N. Cas. 63 (1877). 3 N. Y. Code Civ. Proc. § 8343, subd. 2; People ex rel. Munsell v. Oyer & Terminer, 36 Hun, 381 (1885). 1 French v. Edwards, 13 WaU. 511 (1871), Field, J. See also 20 How. 290; 3 McCrary, 333, 349; 13 F. E. 512, 608, cases. Stery, Bailm. % 137. See also 8 Ga. 178; 5 La. An. 207, 672; 10 Minn. 421; 42 Miss. 543; 35 Mo. 492; 58 N. H. 17. • Gk. mani'a, mental excitement, frenzy, rage. Dipsomania. A madness for drink. Kleptomania. An uncontrollable impulse to steal. Mania a potu. A frenzy for drinking. Monom^ania. Insanity upon one subject only. See further Insanity. MANIFEST. 1 1. Apparent by examina- tion, without need of evidence to make it more clear ; open, palpable, incontrovertible. Synonymous with evident, visible, plain, obvious to the understanding from an exam- ination : as, that there is eri'or in an assess- ment from inspection of the roll or return.^ 3. A document showing of what goods a. cargo consists, where laden on board, for whom laden, to whom consigned, etc.3 MANKIND. See Man, 1. MANNER.* A word of large significa- tion, but cannot exceed the subject to which it belongs : the incident cannot be extended beyond the principal.* The power to direct the " manner," the mode, the way, in which an act shall be done, and the power to do the act itself, are, obviously, not identical. To pre- scribe the manner of election or appointment to an office is an ordinary legislative function; to make an appointment is an administrative function.* In like manner. Assessment of damages "in like manner," as prescribed by a former act, may re- fer merely to the general method.' In tlie same manner. By similar proceedings, so far as such proceedings are applicable to the sub- ject-matter.* That a mining tax shall be enforced '* in phe same manner " as a certain annual tax, does not necessarily mean within the same time.^ Manner and form. Words used in tendering an issue, general or special. When of the substance of the issue, they put in issue the circumstances to the principal matter denied, — time, place, manner, etc.; otherwise, when not of the substance. When the cir- cumstances are originally and in themselves material, and therefore to be proved as stated, the words *' in manner and form " are of the substance. . The words put in issue all material circumstances, and no other.'" See Mode; Modus. 1 L. manifestus, lit., struck by the hand: palpable; apparent, evident. = Matter of Hermance, 71 N. T. 486 (1877), Allen, J. > See 1 Story, U. S. Laws, 593. * F. manier, habitual: main, hand. 6 Wells V. Bain, 75 Pa. 64 (1874), Agnew, C. J. See Brown v. O'Connell, 36 Conn. 447 (1870); 70 N. T, 483. » State, ex rel. Attorney-General v. Kennon, 7 Ohio St. 560 (1857). ' Thirty-fourth Street, Philadelphia, 81 Pa. 31 (1876). * Phillips u. County Commissioners, 122 Mass. 260 (1877). 9 State V. Eureka Consolidated Mining Co., 8 Nev. 29 (1872). See United States v. Morris, 1 Ciu-tis, 26 (1851). i» [Gould, Plead. 293; Steph. PI. 213. MANOR 654 MANUFACTURE MAWOK.i 1. A tract of land held by a lord or other personage. Out of this tract the grantee or lord reserved a " demesne " contiguous to his castle. On one pare of the rest were settled " military tenants " sufficient in number to perform the services their employer owed to his lord; on another part dwelt the "socage ten- ants," who farmed the land and paid rents in cattle, grain, etc.; and on a third part were the "villains," who served at base or servile labor at dictation. Roads, commons, and waste ground took up the re- mainder of the district. " Book " or " charter land " was held by deed under fixed rents and free services. " Folk land " was held by no assurance in writing, but distributed among the common people, and reserved at the pleasure of the lord. The "court-baron" re- dressed misdemeanors and nuisances within the manor, and settled disputes^ between tenants as to property, before at least two freeholders as a jury.* See Demesne ; Copyhold ; Feud. 2. In the older parts of the United States (the interior of New York and eastern Penn- sylvania, for example), land held on a fee- farm rent, and descending to the oldest son of the proprietor — the patroou.'* See Feud. MANSION. See House, 1 ; Manor. MANSLAUGHTER. The wrongful killing of another person without malice, express or implied. Voluntary manslaughter, A kijling upon a sudden heat ; a killing upon a sudden quarrel, in the first transport of passion and^ before reason has time to resume her empire.** Killing after passion has subsided is murder. Not, then, the same as excusable homicide in self-defense. Involuntary manslaughter. A killing in the doing of an act unlawful in itself, or a lawful act in an unlawful or careless way.* As, where a workm'&.n flings <* piece of timber into the street and kills a man; where the owner allows a vicious animal to run at large; where one fires off a pistol, against law, and kills another, or drives a loco- motive engine at an unlawful speed ; where one cor- rects a child immoderately. When no more is intended than a civil trespass, a killing is "voluntary" man- slaughter; but where a felony is intended, a killing is murder.^ Manslaughter is the killing of another without mal- ice. It is "voluntaiy" when the act is committed with a real design and purpose to kill, but through the violence of sudden passion, occasioned by some great provocation, which, in tenderness to the frailty of ^ F. manoir, mansion: L. manere, to remain, reside. 2 3 El. Com. 90. 3 See People v. Van Rensselaer, 5 Seld. 391 (1853) ; The Century Magazine, Dec. 1885: Manor of Gardnier Island. 44 Bl. Com. 191-93, Approved, 87 Ind. 154; 78 Ky. 177; 23 111. 31 ; 34 La. An. 38; 7 N. J. L. 243; 31 Pa. 201 ; 3 Gratt. 605. human nature, the law considers sufficient to palliate the criminality of the offense. It is " involuntary " when the death' is caused by some unlawful act, not accompanied with any intention to take life. . The true nature of manslaughter is, that it is homicide mitigated out of tenderness to the frailty of human nature. ' Where there is no evil intent, it is not necessary that the killing should be the result of an unlawful act; it is sufiELcient if it is the result of reckless or foolhardy presumption, judged by the standard of what would be reckless in a man of ordinary prudence under the same circumstances. ^ In the courts of the United States, the crime is pun- ishable by imprisonment not exceeding ten years, and by a fine not exceeding one thousand dollars,^ See Homicide; Malice; Murder. MAlSrSTEALING. See Kidnaping. MANU. See Manus. MANUAL. See Delivery; Labor, 1. Compare Corporeal. MAITXJFACTUIIE.4 Making an article by hand; making an article, either by hand or by machinery, into a new form, capable of being used, in ordinary life. In some in- stances, may refer to the process performed upon what is found in a natural state, in others, to a subsequent process.^ To manufacture is to change and modify natural substances so that they become articles of value and use. The publisher of a newspaper is not a "manu- facturer."^ The meaning has expanded as workmanship and art have advanced; so that now nearly all artificial products of human industry, nearly all such materials as have acquired changed conditions as new and spe- cific combinations, whether from the direct action of the human hand, from chemical processes devised and directed by human skill, or by the use of machinery, are now commonly designated as "manufactured." Making flour from wheat is " manufacturing." ^ ' Commonwealth v. Webster, 5 Cush.Jp4, 307 (1650)i Shaw, C. J. ; United States v. Outerbridge, 5 Saw. 622 (1868), Field, J. 2 Commonwealth v. Pierce, 138 Mass. 174 (1884), cases, Holmes, J. The defendant, who publicly practiced as- a physician, caused a patient to be kept in flannels, saturated with kerosene, for three days, from which treatment she died. Same case, 24 Am. Law Reg. 117, 124r-20, cases. As to deaths from accidents, see 21 Cent. Law J. 267-69 (1885), cases. 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 Mag. 669, 679. * L. manu, by the hand; facere, to make. ^ [Lawrence v. Allen, 7 How. 794, 793 (1849), Wood- bury, J. See also Schrieffer v. Wood, 5 Blatch 216 (1864). » Re Capital Publishing Co., 3 MacAr. 412 (1879), Mac- Arthur, J. ; Re Kenyon, 1 TJtaJti, 47 (1873). ' Carlin v. Western Assurance Co., 57 Md. 526 (1881), MANUFACTURE 655 MANUSCKIPT The application of labor to an article, either by hand or by mechanism, does not make the article necessarily a "manufactured" article, within the meaning of that term as used in the tariff laws. Thus, scouring wool does not make the resulting wool a manufacture of wool; nor does cleaning and ginning cotton make the resulting cotton a manufacture of cotton; nor (case in issue) are shells cleaned by acid, and then ground on an emery wheel, and some after- ward etched by acid, and all intended to be sold for ornaments, as shells.' Pressed and baled hay is not a "manufactured article."'' Cutting and storing ice is not "manufacturing: " the material is in no way changed or adapted to a new or different use.^ Nor is mining coal "manufacturing." * Animal charcoal or bone-black, and bone-dust, are " manufactures of bone." ^ "Manufactures of metals" mean manufactured articles in which metals form a component part; not articles in which metals have lost their form entirely, and become the chemical ingredients of new forms, as, white lead, nitrate of lead, oxide of zinc." " Domestic manufactures," in a State statute, refer to manufactures within its jurisdiction.*' Manufacturer. One '"engaged in the business of making raw materials into wares suitable for use.'" The builder or repairer of vessels is not, then, a manufacturer. ^ Not, necessarily, one who produces a new article out of materials entirely raw. He is, who gives new shapes, new qualities, new combinations to matter which has already gone through some artificial pro- cess.'' A cooper who makes barrels from staves was held not to be a manufacturer within an exemption iaw.^ An ice-creaoa confectioner is not a manufacturer; "> nor is the publisher of a newspaper, as seen above." A pei'son who slaughters hogs, adding to their value by certain processes and by combination with other materials, whereby they are conveited into bacon. Ritchie, J. See also Holden v. Clancy, 58 Barb. 597 (18711. I ' Hartranft v. Wiegmann, 1-Jl U. S. 609, 615 (1887), cases, Blatchford, J. 2 Frazee v. Moffitt, 20 Blatch. 208 (1882). = Hittinger v. Westford, 133 Mass. 263 (1883). Contra, Attorney-General v. Belle Island Ice Co., 63 Mich. -(18S6). ' Byers v. Franklin Coal Co., 106 Mass 13] (1870). » Schrieffer v. Wood, 6 Blatch. 216 (1884). See also 100 Mass. 183; 9 N. J. E. 289; 4 Lans. 511. •Meyer v. Arthur, 91 V. S. 570 (1875). ' Commonwealth v. Giltinan. 04 Pa. 103 (1870). ^People y. N. Y. Floating Dry-Dock Co., 63 How. Pr. 453 (1882): Webster's Diet. ; s. u., 92 N. Y. 489 (1883). 'New Orleans u. Le Blanc, 34 La. An. 597 (1882), Bermudez, C. J. '» New Orleans v. Mannessier, 32 La. An. 1075 (1880). " See Norris v. Commonwealth, 27 Pa. 496 (1856). lard, and cured meats, with a view of making gain or profit, is taxable as a manufacturer.' See Art; Design, 8; Mechanic; Phocess, 2; Tkade- MARK. MANUMISSION. Giving liberty to one who has been in servitude, with the power of acting except as restrained by law. 2 MANURE. See Waste, S. Made upon a farm, from consumption of its prod- ucts, is part of the realty. Made from hay brought upon the land, has been held to be personalty, es- pecially when gathered into heaps. If abandoned in a highway by the owner of the animals, the first taker has a right to it.' Manure which had accumulated in a public street, the fee of which belonged to the borough, was raked into heaps by the plaintiff during the evening of one day, to be removed the next evening. In this he was prevented by the defendant, who carted the manure away to his own land. In an action of trover by the plaintiff for the value of the manure, it was held; That the manure was personalty; that it belonged originally to the owners of the animals that dropped it, but was to be regarded as abandoned by such own- ers; that the first occupant had a right to appropriate it; that after the plaintiff had added to its value by the labor of raking it into heaps he was entitled to it; and that he had a reasonable time in which to re- move it.* MANUS. L. A hand. F. main, q. v. Mauu brevi. With shorthand: briefly. Manu forti. With strong hand : forcibly. See Hand, 3. MoUiter manus imposult. He laid hands upon him lightly. A plea justifying an assault or trespass, committed to preserve the peace, to prevent a crime, or to protect one's habitation.'* MANUSCBIPT.e a writing of any kind, as opposed to printed matter or a picture; a book, paper or document in written charac- ters. In copyright law, an unpublished literary production, however prepared ; not, then, a picture or painting,' At common law, the sole proprietorship in manu- script, before publication, is in the author or his as- signee ; but an unqualified publication, such as is made by printing and offering copies for sale, dedicates the 1 Engle V. Sohn, 41 Ohio St. 691 (1885). 2 Fenwick v. Chapman, 9 Pet. "■472 (1835), Wayne, J. = 1 Washb. R. P. 6, cases; llComi. 525; 68 Me. 204; 13 Gray, 63; 110 Mass. 94; 2 Ii-ed. L. 3-'U; 44 N. H. 120; 48 id. 147; 49 id. 62; 28 N. J. L. 581 ; 15 Wend. 169; 17 Pa. 202; -43 Vt, 83; 2 Chip. (Vt.) 114. ' Haslem v. Lockwood, 37 Conn. 500, 505 (1871), cases. * 3 Bl. Com. 121. "L. manu, by hand; scriptum, written. ' Parton v. Prang, 3 Cliff. 537, 544 (1872), cases, Clif- ford, J. MAP 656 MARITIME contents to the public, unless the sole right of printing, publishing, and vending is secured by copyright. In communicating the contents of his manuscript, the author may impose such restrictions as he pleases upon the extent of its use.^ At common law, the author has a property in his manuscript, and may obtain redress against one who deprives him of it, or by improperly obtaining a copy endeavors to realize a profit by its publication. The copyright law protects this property which an author has at common law, and which would be protected by a court of chancery. !* See further Bagqags; Copyright; Letter, 3; MAm, 2; Writing. MAP. A transcript of the region which it portrays, narrowed in compass so as to facilitate an understanding of the original.' Maps showing boundaries are receivable in evi- dence, if it appears that they were made by persons having adet^uate knowledge.* Where one map appears to have been substantially copied from a copyrighted map, there is clearly an in- fringement, which a court of equity will enjoin, with an order that an account be taken of the profits made by the infringer.' See Appendage; Chart; Verba, lllata. MAEAUDER.6 A soldier who commits larceny or robbery near camp, or while wan- dering from the army.' A rover in quest of plunder; a plunderer. ^ MARG-IN.s In a brokers contract for the sale of stocks: security against loss on the part of the agent, — money or other prop- erty, i' Additional collateral security against loss to the broker, while he is carrying stock for his employer. 11 See Futures; Option; Wagering. MABINE.12 1, adj. Pertaining to f}he high seas, to navigation or comiusrce upon the sea, to the perils of the sea. Compai-e Maeitimb. > Parton v. Prang, ante. ' Wheaton v. Peters, 8 Pet. 656, 661 (1834), M'Lean, J. See also Story, Eq. §§ 943-51; Paige v. Banks, 13 Wall. 608 (1871). ' Banker v. Caldwell, 3 Minn. 103 (1859), Flandrau, J. n Greenl. Ev. § 139, cases; 1 Whart. Ev. §§ 194, 668, 670, oases. s Chapman v. Ferry, 18 F. E. 639 (1883). «F. maraud, a rogue, vagabond: marir, to stray, wander. ' [Curry v. Collins, 37 Mo. 328 (1866). « Webster's Diet. • L. margin-, margo, a border, brink. "Markham v. Jaudon, 49 Barb. 465 (1867), Leonard, Presiding Justice. "McNeil V. Tenth Nat. Bank, 56 Barb. 64 (1869), Potter, J. 12 L. marinus; mare, the sea. Marine contract. A maritime contract. q. V. Marine court. In the city of New York, a court exercising the jurisdiction of a justice of the peace, with cognizance of actions under city laws for penal- ties from twenty-five to one hundred dollars, and claims for services rendered upon the high seas where the State courts have juris-diction, though the amount exceeds one hundred dollars. The court exercises no real admiralty powers. Marine insurance. See Insurance, Marine. Marine interest. Extra interest paid for the loan of money upon bottomry or re- spondentia bonds, gg. v. Marine league. See League. Marine risk. A peril necessarily inci- dent to navigation. Marine toft. A maritime tort, q. v. 2; n. Any person employed on a vessel to assist in the mgin purpose of the voyage.^ Mariner. A person employed upon a merchant ship or a ship-of-war. Includes common sailors, a cook, porter, steward, purser, clerk, engineer, surgeon, captain, admiral — whoever has to do with the equipment and preservation of the vessel, or the welfare of the crew.^ MARITAGIUM. L. A daughter's mar- riage portion. In feudal law, the right in a lord, of whom land was held by knight-service, to control the marriage of his vassal's daughter. See Feud; Marital; Mar- riage, 2. MABITATi.3 Pertaining or belonging to a husband: as, marital rights, and duties. See Jas, Mariti ; Separate, 2. MARITIME.* Pertaining to navigation or commercial intercourse upon the seas, great lakes and rivers. Maritime. Primarily, bordering on the sea : as, a maritime town, coast, nation ; sec- ondarily, belonging to those who border on the sea: as, maritime laws, rights, pursuits. Marine. Primarily, of or pertaining to the sea: as, marine productions; secondarily, transacted at sea: as, marine service; or, again, doing duty on the sea: as, marine forces. 5 Maritime cause. An action the subject- matter of which arises out of the business or ' The Ocean Spray, 4 Saw. 106, 111 (1876), Deady, J. ' 1 Conk. Adm. 107; 80 N. Y. 71; 7 How. 89; 3 Sumn. 115; 1 Bl. Com. 419. 3 L. marit'tts, a married man. * Milr'-J-tKme. L. maritimus: mare, the sea. ' Webster's Diet. ; Crabbe's Synonyms. MARITIME 657 MARK commercial relations of persons upon the public navigable waters — seas, rivers, lakes. See Admiralty. Maritime contract. A contract which relates to commerce, or navigation upon the high seas, or navigable lakes or rivers. See Admiralty. Maritime court. A court exercising the powers of a court of admiralty, q. v. Maritime interest. Marine interest, q. v. See also Maritime Loan. Maritime jurisdiction. Such as is ex- ercised in the cognizance of maritime causes ; the jurisdiction exercised in admiralty, q. v. Maritime law. The law of the sea. The body of principles and usages whi9h, by the consent of civilized communities or nations, has been adopted to regulate the affairs of men engaged in navigation and marine com- merce. No single nation can change the law of the sea. That law is of universal obligation. Like all the laws of nations, it rests upon the common consent of civil- ized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Many •of the usages which prevail, and which have the force of law, doubtless originated in the positive prescrip- tions of some single state, which were at first of lim- ited effect, bufc which, when generally accepted, be- came of universal obligation — as in the cases of the Rhodian law, the Amalphitan table, the ordinances of the Hanseatic League, parts of the ordinances of Louis XIV, the British orders in council of 1863, and our act of congress of 1864. These have become the law of the sea by reason of their acceptance as such. Of these, courts take judicial notice without proof. ^ See Olebon; Rhodian. While the general maritime law is the basis of the maritime law of the United States, as well as of other ■countries, it is only so far operative as it has been adopted by our laws and usages. It has no inherent force of its own. The general system, familiar to law- yers and statesmen, was meant when it was declared that "The judicial Power shall extend . . to all •Cases of admiralty and maritime Jurisdiction." " Thus adopted, it became the maritime law of the United States operating uniformly. The question as to the limits of maritime law and admiralty jurisdiction is judicial, and no law can make it broader or narrower than the judicial power may ■determine those limits to be. But what the law is "Within those limits depends on what has been receive'd as law in the maritime usages of this country, and on ■such legislation as may have been competent to affect it.3 1 The Scotia, 14 Wall. 187-88 (1871), Strong, 'J. ' Constitution, Art. Ill, sec. 8. » The Lottawanna, 21 Wall. 573-76 (1874), Bradley, J. (42) The French writers on maritime subjects are dis- tinguished for their learning and acumen. The prin- cipal text law on which they rely, prior to the Ck)de of Commerce adopted in the present century, is the Or- donnance de la Marine of 1681.' Maritime lien. A lien upon a vessel, for money advanced, labor done, supplies fur- nished, seamen's wages due, damages from collision, etc., authorized by the maritime law. See further Lien, Maritime. Maritime loan. A contract by which the lender, in consideration of the sum, which he will lose, if the thing upon which he has made the loan should perish by inevitable casualty, is authorized to stipulate for an in- terest or extraordinary profit, in case the thing arrives at the proper port. 2 Maritime property. See Abandon, 1; Dereliction, 3. Maritime service. A service which is performed upon a public navigable water and has some relation to commerce or naviga- tion — some connection with a vessel em- ployed in trade, with her equipment, her preservation, or the preservation of her cargo or crew.s Maritime tort. A wrong committed upon a navigable water over which a court of ad- miralty exercises jurisdiction ; in no case, a tort committed or consummated upon land.* See generally Admiralty. MARK. 1, n. (1) A sign made on paper, instead of a signature. Consists of two lines traced across each other between the Chris- tian name and the surname, with " His " written above, and "mark" below, the crossed lines. Marksman. One who signs by means of a mark. The method of the Saxons was for such as could not write to subscribe their names to a deed, and, whether they could write or not, to affix the sign of the cross; which custom our illiterate vulgar to this day keep up by signing a cross for their mark, when unable to write their names.* Binds an intelligent maker as to parties accepting the document on the faith of the mark. If the maker is able to write, a mark for his name is presumed ac- > The City of Norwich, 118 U. S. 496 ( "The Draco, 2 Sum. 184 (1885): Valin. ' [Cope V. Valette Dry-Dock Co., 4 Woods, 267 (1883), Woods, J. ■" See The Plymouth, 3 Wall. 33 (1865), Nelson, J. Ap- proved, Exp. Phenix Fire Ins. Co^, 118 U. S. 018 (1886). See also The Arkansas, 17 F. R. 387-88 (1883). » 2 Bl. Com. 305. MARKET 658 MARKET cidental, or as an incomplete signature. A mark made by an attesting witness is verified as is the mark of a party.! gge Cancel. (2) A label, token, or impression; a sign, badge, index: as, post-mark, trade-mark,^ qq.v. Ear-mark. A mark placed upon a thing by which to identify it. Land-mark. A monument indicating the boundaries of land. See Mark, 2 (3). 2, V. (1) To point out, settle, define, de- scribe — with or without visible boundaries: as, to mark and lay out the bounds and rules of a prison.' (2) To determine by marks on the ground : as, to mark a boundary line.* (3) To note or enter upon a record : as, to mark for use — indicate upon the record of a suit or judgment for whose benefit the same is maintained or exists. Marked ballot. A ballot so prepared as to indicate to by-standers the nominee for whom it is to be cast. See Ballot. MARKET.s 1. A place for public trafiic; also, a franchise or liberty to have a place for such resort.* A place where comestibles [eatables], per- ishable in their nature, are sold for the daily consumption of the people.' A designated place in a town or city to which all persons can repair who wish to buy or sell articles there exposed to sale. 8 The privilege within a town to have a mar- ket ; as now used, includes the idea of land and buildings or suitable erections for the accommodation of those who attend the market to sell or buy the articles brought there for sale.^ See Establish. 2. Buying and selling generally; trade, ■ See Barnard v. Heydrick, 49 Barb. 68 (1866) ; 1 Whart. 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; 19 Mo. 609; 24 Pa. 503. ' See Adams v. Heisel, 31 F. E. 280 (1887). = Allen V. Smith, 12 N. J. L. 165 (1831), Ewing, C. J. • Keller u Young, 78 Pa. 170 (1875). » L. mercatus, traffic: mercari, to trade: merx, mer- chandise. • See a Bl. Com. 37. ' New Orleans v. Morris, 3 Woods, JOS, 107 (1877), cases, Billings, D. J. 8 Caldwell v. City of Alton, S3 111. 419 (1864), Breese, Justice. « Ketchum v. City of Buffalo,' 21 Barb. 296, 298 (1854), Marvin, J. trafiic, irrespective of place — as, in mai'ket price or value, q. v. Market overt. Open market; a public market. In England, a sale of anything vendible therein is good as between the parties, and binding on all who have a property in the thing. But a sale out of mar- ket overt of stolen goods does not alter the ownership, and the owner' may take them wherever he finds them.' A fair or market held at stated intervals in partic- ular places by virtue of a charter or permission. To this our ordinary markets bear no resemblance.'* There is no law recognizing the effect of sales in market overt in any of the United States. ° The privilege given by law to a sale in market: overt, of binding property against the true owner, was originally intended to encourage markets and com- merce. The property must still be, so openly ex- posed that the vendor may conclude that no person but the true owner would dare expose it for sale. . . The privilege arose when there was great simplicity of practice between buyers and sellers, in markets and fairs. Shops were few, and persons whose goods were taken feloniously would know where to resort to find them. The privilege was designed to protect buy- ers: if a man did not pursue his goods to market where they were openly sold be ought not, to interfere with the right of the bona Jide purchaser; but he can require that the goods be exposed, and the whole transaction completed, so as to give him opportunity to pursue the goods. Therefore, a sale by sample is not such a sale as is entitled to the privilege.* Market place. Usually a market-house.* In a rule of charges, either a district of country in which trade in one or several articles is so habitually conducted as to f lu-nish a criterion of the value of the thing or things sold, or, the point to which the trade of a district centers.* Market price or value. A price estab- lished by public sales in the way of ordinary business, as, of merchandise.'' The price at which the owner or the pro- ducer of goods holds them for sale ; the price at which they are freelj' offered in the mar- ket; such price as he is willing to receive when the goods are sold in the ordinary course of trade. ^ ' 2 Bl. Com. 449. ' Fawcett v. Osbom, 32 111. 426 (1863), Breese, J. = See 2 Kent, 324; 1 Johns. 478; 8 Cow. 341; 32 111. 411. ' Crane v. London Dock Co., 117 E. C. L. '330, 318 (1864), Blackburn, J., Cockbum, C. J. See Ventress v. Smith, 10 Pet. *ir6 (1836); The Case of Market Overt, 2 Tud. L. 0. »718-35, cases. " Smith V. City of Newbern, 70 N. C. 18 (1874). " [Hilliard'Fluihe Co. v. Woods, 1 Wyom. 397 (1878), Peck, J.' ' Murray v. Stanton, 99 Mass. 348 (1848), Wells, J. 8[Cli(luot's Champagne, 3 Wall. 125, 142 (1865), MARKET 659 MARRIAGE " Market value," " actual market value," and " fair market value " mean the same. The only other pos- sible meaning of the word " actual " is value in actual market, as contradistinguished from a hypothetical, notional, or ideal value, which may be affixed to an article in a, particular case, for a particular reason. What men in the ordinary dealings of society,' be- tween man and man. would consider to be the fair act- ual market value of property, is the actual mrrket value.' See further Value, Market. Market stall. The purchase of a stall or stand in a public market confei*s an easement or exclusive right to occupy the stall, with its appendages, for the purposes of the market, and subject to the regulations thereof.' Marketable. Vendible in market; mer- chantable ; free from plausible or reasonable objection : as, a marketable title to land. Op- posed, unmarketable.^ See Merchantable; Title, 1, Marketable. Munieipal market. Consists in a place for the sale of provisions and articles of daily consumption; in convenient fixtures; in a system of police regulations, fixed market hours, provision made for lighting, -watch- ing, cleaning, for detecting false veeights and unwholesome food, and other arrangements calculated to facilitate the intercourse and insure the honesty of buyer and seller; also, in proper olficers to preserve order and en- force obedience to rules.* Every municipal corporation that has power to es- tablish ordinances to promote the general welfare, and preserve the peace, may fix the times or places of holding public markets for the sale of food, and make such other regulations concerning them as may con- duce to the public interest. The right to establish a market includes the right to shift it from place to place, as the convenience or necessities of the people demand; but no right is implied to build it upon a public highway.' The court of the clerk of market has been incident to every market, to punish misdemeanors therein, especially the use of false weights and measures.' See Engross, 2; ForesTallikg; Inspection, 1 ; Mee- chakdise; Otherwise; Eegratisg; Staple; Toll, a. Swayne, J.; Cases of Champagne, 1 Bened. 251 (1867), Blatchford, J. 1 Sherry Wine Case, 2 Bened. 26T-68 (1868), Blatch- ford, J. ' Rose V. Mayor of Baltimore, 51 Md. 256, 268 (1878). ■ 1 Pars. Contr. 584, cases. < [City of Cincinnati v. Buckingham, 10 Ohio, 261 (1840), Lane, C. J. » Wartman v. City of Philadelphia, 33 Pa. 209 (1859), Black, C. J. See Gall v. City of Cincinnati, 18 Ohio St. 563, 567 (1869); Mayor of Savannah v. WUson, 49 Gft. 476 (1873). •4B1. Com. 275; 1 id. 274. MARQUE,! LETTER OF. Permission granted by one ruler to make reprisals on the country of another ruler, with particular reference to the apprehension of the latter's subjects within the march or limit of the for- mer's country.^ Marque and reprisal. Reprisal : taking in return; marque: passing the "frontier" to do so. Letters of marque and reprisal are grantable by the law of nations whenever the subjects of one state are injured by those of another and justice is denied by the state to which the oppressor belongs. By vir- tue of such commission the bodies and goods of sub- jects of the offending state may be seized until satis- faction is made, wherever they happen to be found. The custom is dictated by nature herself; but in soci- ety, that the private sufferer should not be left to act as judge in his own cause, the sovereign power is called upon to determine when reprisals may be made.^ A private armed vessel or privateer is a vessel owned and officered by private persons, but acting under a commission from the state, usually called letters ,of marque: originally, letters of license to go across the boundary and make reprisals.* " The Congress shall have Power . . to grant Letters of Marque and Reprisal." ' " No State shall . . grant Letters of Marque and Reprisal." ' MARRIAGE.'' 1. The private relation which includes the reciprocal duties of hus- band and wife.8 An engagement by which a single man and a single woman of sufficient discretion take each other for husband and wife.^* Also, the act or ceremony by which such engagement is solemnized. As between the immediate parties, under the law, a civil contract; as between them and the State, a status or relation.'" "Matrimony" is the state into which the parties enter. Although marriage is a sacred obligation, it is still a civil contract regulated by law." Statutes may regulate the mode of entering into 1 F. marque, a boundary, limit, frontier. ' [Skeat, Etym. Diet. " 1 Bl. Com. 258. « Woolsey, Int. Law, § 127. See Wheat. Int. L. § 290. » Constitution, Art. I, sec. 8, cl. 11. • Ibid. sec. 10. See 2 Story, Const. § 1356. ' F. mariage: L. maritare: maritus, a husband. Compare Marital. 6 [1 Bl. Com. 433. • Milf ord V. Worcester, 7 Mass. *52 (1810), Parsons, Chief Justice. >» MoCabe v. Berge, 89 Ind. 229 (1883). See also 44 Ala. 674; 30 Ga. 176; 9 Ind. 50; 19 id. 57; 4 Mo. 126; 50 N. Y. 184; 4E.L101; 13 id. 98. II Reynolds v. United States, 98 U. S. 165 (1878), Waite, Chief Justice. MARRIAGE 660 MARRIAGE the contract, but they do not confer the right, A mar- riage valid at common law is valid under a statute un- less the statute contains express words of nullity. ^ Marriage is an institution founded upon mutual consent. That consent is a contract, but sui juris. It supersedes all other contracts between the parties, and, with certain exceptions, it is inconsistent with the power to make new ones. It may be entered into by persons under the age of lawful majority, but it can neither be canceled nor altered at will. An entire failure of the power to fulfill by one party, as in the case of permanent insanity, does not release the other from, the pre-existing obligation. Perhaps the only element of a " contract," in the ordinary acceptation, that exists, is that the consent of the parties is neces- sary to create the relation. Marriage is the most im- portant transaction of life ; it is the basis of the entire fabric of all civilized society.^ While marriage is often termed by text-writers and in decisions of courts a civil contract— generally to indicate that it must be founded upon agreement of the parties, and does not require any religious cere- mony for its solemnization ^ it is something more than a mere contract. The consent of the parties is of course essential to its existence, but when the con- tract to marry is executed by the marriage, a relation ' between the parties is created which they cannot change. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested.^ Being a contract, an action is maintainable for damages for " breach of promise " to marry, though the defendant is an infant. Either pai'ty may bring it. Anything accepted in satisfaction Is a discharge. If the plaintiff is of bad character, the defendant may rescind.* The brekch of promise is not a tort, though it may resemble a tort in its consequences. ° Contracts in restraint or in procuration of marriage are void, as against sound policy. Canonical disabilities which at common law made the contract voidable were: pre-contract; consan- guinity or affinity within near degrees; corporal in- firmities. Civil disabilities which made the contract void ab initio were: prior marriage; want of age — under fourteen in a boy, and twelve in a girl, but ren- dered valid by consent at age; want of consent of par- ent or guardian, which is statutory; want of reason.^ A clergyman, or a magistrate, need not be present. For civil purposes, reputation and cohabitation are sufficient evidence. But in adultery, bigamy, and criminal conversation, strict proof of marriage is nec- 1 Meister v. Moore, 96 tJ. S. 78 (1877), Strong, J. At common law, 12 Va. Law J. 1-13 (1888), cases. 2 Randall v. Kreiger, 33 Wall. 147 (1874), Swayne, J. 3 Maynard v. HUl, 125 U. S. 210-11 (1888), cases, Field, Judge. See Bish. Mar. & D., ed 1864, § 3, cases. * 1 Chitty, Bl. Com. 433; 18 Cent. Law J. 441-46 (1884), » Malone v. Ryan, 14 R. I. 617 (1884). •1 Bl. Com. 434; 3 id. 202, 70. essary. ^ It is not presumed where cohabitation would be unlaw'ful.2 In Massachusetts, two persons cannot marry themselves, though their intent is good, wit- nesses are present, and a certificate has been taken taken out.^ To a valid marriage, consent is all that is necessary. If made^er verba de prcesenti, by words in the pres- ent tense, though not consummated by cohabitation, or per verba de futuro, by words of the future tense, and followed by consummation (q. v.\ it amounts to a valid marriage, in the absence of civil regulations to the contrary. It may be proved by reputation, decla- rations, conduct and other circumstances usually ac- companying the relation;* and by what would be proof where the ifiarriage took place.^ Where no ceremonies are required, and no record is made to attest the marriage, some public recognition of it is necessary as evidence of its existence. The protection of the parties and their children and consid- erations of public policy alike require this recogni- tion; and it maybe made in any way which can be seen and known, such as living together as man and wife, treating and speaking of each other in the pres- ence of third parties as being in that relation, and de- claring the relation in documents executed by them while living together. From such recognition the rep- utation of being marked will obtain among friends and acquaintances, which is of itself evidence of a persuasive character,^ In tiie absence of civil or statutory regulations, the mutual present assent to immediate marriage, by per- sons capable of assuming that relation, is sufficient without any formal solemnization. Such a contract constitutes a marriage at common law, and its valid- ity will be sustained, unless some statute expressly declares it to be void. Furthermore, marriage, being a natural right, existing before the statutes, is favored by the law, and statutory regulations, if the language will permit, are to be construed as merely directory. The legislature has power to prescribe reasonable regulations, and a provision punishing those who sol- emnize marriage contrary to statutory command is within legislative authority. Punishment may be in- flicted for disregarding statutory conditions, without rendering the marriage itself void. Most statutory regulations are wise and salutaiy. They give publicity to a contract which is of deep con- cern to the public, discourage deception and seduction, prevent illicit intercourse under the guise of matri- mony, relieve from doubt the status of parties who live together as man and wife, and the record required 11 Whart. Ev. §§ 83-87, cases; Commonwealth v. Stump, 53 Pa. 133 (1866). » Williams v. Williams, 46 Wis. 464 (1879) ; 49 Tex. 556. 3 Commonwealth v. Munson, 127 Mass. 459 (1879), cases. * Richard v. Brehm, 73 Pa. 144 (1873); Jewell v. Jew- ell. 1 How. 231, 233 (1843); 17 F. R. 16; 1 B\. Com. 439. = Patterson v. Gaines, 6 How. 587 (1848). Maryland v. Baldwin, 112 U. S. 495 (1884), Field, J. As to presumption of, see 81 Alb. Law J. 106-9, 127-30 (1885), cases. MAREIAGE 661 MARSHAL to be made furnishes evidence of the legitimacy of their offspring, i Marriage is a valuable consideration; no other is so much respected. While of the highest value, it is not reducible to a value which can be expressed in dol- lars.^ Articles of marriage. A memorandum between persons intending marriage as to settlement of property. Furnishes the data for a formal settlement. ' Marriage brokage or brokerage. The act of negotiating a marriage ; also, compen- sation for such service. Mixed marriage. A union between per- sons of different races ; in particular, between a Caucasian and an African. A State may forbid whites and blacks to inter- marry. The Xrvth Amendment does not prohibit such legislation. The relation is a privilege belonging to persons as members of society, and as citizens of the States in which they reside. ^ The rule that if valid where celebrated, then valid everywhere, does not apply to a, maiTiage involving polygamy or incest, nor to those> prohibited from motives of public pohcy.' Marriage license. An official permit to marry. In Arkansas, California, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, llaine, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, North Carolina, New Hampshire, New York, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Washington Territory, and perhaps in other States and Territories, persons intending to be married must apply for a license, or cause notice of their in- tention to be entered of record Jn a designated public of&ce. Substantial compliance with the provisions of such laws is generally all that is required. Marriage portion. The property which a woman brings to her husband at marriage. See Dowry. Marriage settlement. A conveyance whereby, in consideration of marriage, prop- erty is secured as a provision for the wife, children, or husband. See Settle, 3. See Bigamy; Cohabit; Divorce; Dower; Gretna Green; Husband; Incest; Jactitation; Religion; Solemnize. ' State V. Walker, 36 Kan. 303-4, 307 (1887), Johnston, J.; Teter v. Teter, 101 Ind. 129 (1884); Beverlin v. Bev, erlin, 89 W. Va. 735 (1887), cases. As to foreign mar- riages, see 27 Cent. Law J. 182-88 (1888), cases. sprewit V. Wilson, 103 U. S. 24 (1860), cases; 7 Pet. »393; 5 Allen, 468. ^Exp. Kinney, 3 Huehes, 9, 17-lS (1879); Ex rel. Hobbs, 1 Woods, 537 (1871); Exp. Francois, 3 id. .367 (1879); Green v. State, 58 Ala. 193-97(1877); 59 id. 60. 'Kinney's Case, 30 Gratt. 865 (1878), cases; Green- how V. James, 80 Va. 636, 639-41 (1885), oases; Story, Confl. L. § 113; 1 Greenl. Ev. § 645. 3. In feudallaw, a power which the lord or guardian in chivalry had of disposing of his ward in matrimony. While the infant was in ward, the guardian could tender her a suitable match, without disparagement or inequahty. If the infant declined the match, she forfeited, as the value of the marriage, as much as a jury would assess, or as any one would bona fide give for such an alliance.' MAERIED WOMAN. See Husband; Woman. MAESHAL.2 1, n. (1) In old English law, the title of several officers of different grades and powers, judicial or executive. The lord-marshal presided in the court of chivalry ; the knight-marshal had judicial authority within the king's palace ; the marshal of the king's bench was prison-keeper to that court; the marshal of the ex- chequer had the custody of debtors of the revenue; the marshal to the judge of assize swore in the grand jury. And the naarshalsec, was the seat or court of the marshal of the king's house, instituted to admin- ister justice between the king's domestic servants.^ In Connecticut, the executive offlcer of the courts is first mentioned (1649) as the "marshal." At the May session of the General Court in 1698, it was enacted that the " marshal of the colony " be called the High Sheriff, and the '* county marshal " the County Sher- iff. Formerly, and within the memory of persons still living, the sheriff was the marshal at all public pro- cessions.-* 2. An officer of the United States whose chief duty is to execute the processes of its courts. He and his deputies have in each State the same power in executing the laws of the United States as the sheriffs and their deputies in such States may have in executing the laws thereof.** He is appointed for a term of four years, for each district. He chooses his own deputies, but they are re- movable by the circuit or district court. He attends these courts, and executes their lawful precepts di- rected to him under authority of the United States. He may command necessary assistance in executing the laws." He cannot perform all his duties without the aid of other persons as deputies, general and special. A statute conferring upon him the powers of a sheriff does not take away powers already vested.' When process, issued under a particular law, as, a revenue law, is lawfully issued to him for service, in executing it he acts under the authority of that law. 1 2 BI. Com. 70. ''F. mare-schal, n horse-servant, «. groom; later, u title of honor,— Skeat. » See 8 Bl. Cora. 37, 39, 75, 76, 285. « See Appendix to 63 Conn. 609-10. » R. S. § 78'^. • R. S. §§ 77f.-a3, 943^4. ' The Gorgas, 10 Bened. 468, 471 (1879): Act 1861, ch. 25, § 7: E. S. 788; 10 F. R. 8C:; 13 id. 855. MARSHAL 663 MARTIAL And so as to all persons who assist him in the perform- ance of his ofScial duty.' The marshal, in preserving arrested property, acts as a bailee, and is responsible to parties interested for its proper care. In the absence of a statute or rule of court, he should be paid his fees when he delivers the property to the person entitled to it.^ The clerks employed by the marshal to keep his accounts are not officers of the court, and so are en- titled to fees and mileage if used as witnesses for the Government. Unless a deputy marshal, who is an of- ficer, be actually engaged in waiting upon the court, he is entitled to per diem and mileage if smnmoned as a witness for the Government.* See Costs; Execution, 3; Fee, 2, Docket; Jdeis- bicTiON, 2, Concurrent; Sheriff. (3) In the western and southwestern States, an officer of the peace, appointed by author- ity of a city or borough, who holds himself in readiness to answer such calls as fall within the general duties of a constable or sheriff. " The marshal elected for the county of St. Louis shall have the same power, be subject to the like pro- ceedings, and incur the same liabilities, on all process placedln his hands, as the sheriff of the county has, and is subject to, in similar cases."* Sudh mairshal is elected in the same manner as the sheriff of that county, for a term of two years. He gives bond to the State. He attends on the criminal and the probate courts, and executes all processes is- sued by them , or by a judge or clerk thereof, or by the county court of St. Louis. 2, V. To arrange or rank in order. Marshaling assets, funds, mortgages, securities. Such arrangement of different funds, under administration, as will enable all the parties having equities thereon to re- ceive their due proportions, notwithstand- ing the intervening interests, liens, or other claims of particular persons to prior satis- faction out of a portion of the funds.s The principle is that he who has a right to resort to two funds, in one of which alone another party has a subsidiary lien, shall be compelled to exhaust the one to which the other cannot resort, before coming upon the one in which both have an interest. 6 ' Davis V. South Carolina, 107 U. S. 600 (1882). As to his duties and responsibilities, see Lammon v. Feusier, 111 id. 17 (1884); Covell v. Heyman, ib. 176 (1884); 3 Wall. 384; 10 id. 308; 109 U. S. 216, 219. ! The Georgeanna, 31 P. R. 405 (1887). ' Exp. BuTdell, 32 W. E. 681 1,1887); United States v. Meigs, 9.5 U. S. 748 (1877). ■I Missouri Statutes, sec. 26. '[lStory,Eq.§§ 658,633. • Nat. Savings Bank v. Creswell, 100 U. S. 641 (1879), Miller, J. The equitable principle that where a creditor has a lien on two funds in the hands of the same debtor, and- another creditor has a lien only on one of the funds, the former may be compelled to levy his debt out of the fund to which the latter cannot resort; or, what is tantamount thereto, if the former takes his money out of the fund in which alone the latter has a lien, he may, to that extent, be subrogated to the rights of the former as agaiust the other fund. Both funds must be in the hands of the common debtor of both creditors. 1 See Marshaling Liens. Marshaling boundaries. See Bound- ary. Marshaling charities. The doctrine that where there are funds of pure and mixed personalty applicable to the payment of debts and charitable legacies, the latter being charged upon the pure personalty and the debts upon the remainder of the fund, and there is a deficiency of assets, the charity legacies will be held to have failed in the proportion of the mixed to the pure person- alty.2 Marshaling liens. The doctrine that where realty, bound by a judgment or a mortgage, has been alienated in separate parcels to various persons at different times, such parcels may be subjected to the satis- faction of the lien in the inverse order of their alienation. The first purchaser has a right to suppose that the part he leaves with the mortgagor will be first sub- jected to the payment of the mortgage,- and a second purchaser, who buys all or a part ot the residue, should not be placed in a better position than that of his grantor.* See Marshaling Assets. Marshaling words. See Construction. MABSHALSEA. See Marshal, 1 (1). MARTIAL.! Belonging to war, or to an army or a navy. Gourt-martial. A tribunal which has jurisdiction of offenses against the law mili- tary by soldiers in the army, navy, or militia. In the strictest sense, a court of justice, organized in pursuance of statutory regula- > Exp. Kendall, 17 Ves. *523 (1811), Eldon, Ld. C. See also Aldrich v. Cooper, 8 Ves. 308 (1803): 1 Lead. Cas. Eq. *78-lll: 2 White & T. id. 228-358, cases; 25 Cent. Law J. 228-31 (1887), cases; 11 Biss. 294; 15 F. R. 170; 32 Pa. 103; 77 Va. 248; 1 Story, Eq. §§658-64, 63.M5; Bisph. Eq. §341; 1 Pomeroy, Eq. §§410, 396; 3 id. § 1414. = [2 Story, Eq. § 1180 a. ^ee Philanthropic Society v. Kerap, 4 Beav. 681 (1841). = Nat. Savings Bank v. Creswell, 100 U. S. 640-43 (1879), cas^s. * L. mars, god of war. MARTIAL 603 MASSES tion, and taking cognizance of the duties which the citizen assumes when he enters into the military service of the country.! In cases fitted tor its determination, its judgment is final, conclusive, and authoritative. ' Courts-martial derive their jurisdiction from and are regulated by an act ot Congress, in which the crimes that may be committed, the manner of charg- ing the accused, and of trial, and the punishments, are expressed in terms; or they get jurisdiction by a fair deduction from the definition of the crime that it com- prehends, and that Congress meant to subject to pun- ishment, or from the practice of the courts-martial of the nations generally. If such a court has no juris- diction over the subject-matter of the charge it has been regularly convened to try, or if it inflicts a pun- ishment t<>rbidden by law, the civil courts, at the in- stance of the aggrieved, may inquire into the want of jurisdiction, and give redress -by habeas corpiis.' Their jurisdiction extends to the trial and punish- ment of acts of officers which tend to bring disgi'ace upon the service of which they are members, whether those acts are done in the performance of military duties, in a civil position, in a social relation, or in private business.' Any such court is a, court of limited and special jurisdiction. When the object of its creation has been accomplished it is dissolved. To give effect to a sen- tence, it must appear affirmatively ^nd unequivocally that the court was legally constituted, that it had ju- risdiction, that aU statutory regulations governing its proceedings had been complied with, and that its sen- tence was conformable to law. There are no pre- sumptions in its favor as to these matters. . The sentence of a genei*al court-martial, in time of peace, to the effect that a commissioned officer be cashiered (dismissed from service), is inoperative until approved by the President in person ; and that he approved it must be stated in positive terms, and not be left to be inferred argumentatively.* Courts-martial are spoken of as general, regimental, and garrison. Those for the regulation of the militia are held in the States, and, in the main, resemble the courts provided for the army of the United States." See JoDGE Advocate. Martial la'w. The law of military neces- sity in the actual presence of war, adminis- tered by the general of the army. » Records of Courts-Martial, 11 Op. Att.-Gen. 138-39 (186.5); Approval of Court-Martial Sentence, 15 id. 297- 303 (1877), note. i" Dynes v. Hoover, 20 How. 82-63 (1857), cases, Wayne, J. See also Barrett v. Hopkins, 2 McCrary , 131 (1881); Be White, 17 F. E. 723(1883); Keyes v. United States, 109 U. S. 340 (1883;, cases. s Smith 11. Whitney, 116 U. S. 183 (1886), Gray, J. 4Runkle v. United States, 122 U. S. 555-57 (1887), cases, Waite, C. J. ; Articles of War, No. 65, 2 St. 359, 367, c. 29. » See, as to the army, E. S. § 1342, arts. 61-121; as to the navy, § 1624, art. 8; as to the militia, ^§ 1649, 1658. Of necessity it is arbitraiy, but it must be obeyed.' It is the will of the general who commands the army. It supersedes all existing civil laws; and is regulated by a known system or code of laws. The commander is the legislator, judge, and executioner. There may or may not be a hearing upon the charges, at his will. This law is resorted to only in cases of necessity; which is to be shown affirmatively by the commander who assumes to exercise it." In time of insurrection it cannot be applied to citi- zens in States in which the courts are open and their process unobstructed.' For any abuse of the authority, the officer ordering and the person committing the act may be liable as Martial law is built upon no settled principles, but is entirely arbitrary in its decisions; in reality it is no law, but something indulged rather than allowed as law. The necessity of order and discipline in the army alone gives it countenance; and therefore it is not permitted in time of peace, when the courts are open for all persons to receive justice according to the laws of the land.' " Martial law " is exercised over all classes of per- sons indiscruuinately, in the actual presence of war. " Military law " governs persons in the miUtary serv- ice only, in time ot peace as well as in time of war, by regulations previously defined; and is a permanent branch ot the law of the land. See Military; Wak. MASONIC LODGES. See Associa- tion, page 85, note 4. MASSES. Whether gifts to a Roman Catholic church for paying for masses are legal " charities," has been variously decided. A devise to a church to be devoted to paying for the repose of the testator's soul is not a devise to a " char- itable or religious use." * Such a devise or bequest is certainly a "xeligious* use." If, therefore, in Pennsylvania, it is made within one month before death, it falls within the prohibition of the act of April 26, 1855.' " Masses are religious ceremonials or observances, . . ahd come within the religious or pious uses which are upheld as public charities." In the case cited, the language of the will was that the residue of the estate should be disposed of " tpr charitable purposes, masses," ete.* A bequest of all the residue of a testator's estate to his executors " for the purpose of having prayers of- fered for the repose ot my soul, the souls ot my fam- 1 United States v. Diekelman, 98 U. S. 586 (1875), Waite, C. J.: s. c. 11 Ct. CI. 439. ' Be Egan, 5 Blatoh. 321-23 (1806), Nelson, J. » Exp. Milligan, 4 Wall. 107, 183, 187 (1866). < See Mitchell v. Harmony, 13 How. 128 (1851). « 1 Bl. Com. 413. See 7 How. 59-88; 15 id. 115; 16 id. 144; 8 Op. Att.-Gen. 365-74; 39 Ala. 658; 44 111. 153; 81 Ind. 377; 8 Stoiy, Con.st. § 1348; North Am. Eev., Oct. 1861; 1 Lieber, Civ. Lib. 130. « Be Estate of Power, 35 Leg. Int. 68 (Pa., 1878). ' Rhymer's Appeal, 98 Pa. 142, 146 (1880). 6 Schouler, Pijtitioner, 134 Mass. 487 (1883). MASTER 664 MATERIA fly, and the souls of all others in purgatory," is invalid, for want of a defined beneficiary.' See Chaeitt, 2. MASTER.2 A person authorized to con- trol another or others in some relation, or charged with the execution of a service as an assistant to a court of equity. 1. He to whom an apprentice is indent- ured. "Master and servant" expresses the relation be- tween the parties. See further Apprentice. 2. He who hires another to serve him as a domestic or as a common laborer ; an em- ployer. 3 "Master and servant" expresses the relation in private life, founded in convenience, whereby a man calls in the assistance of others when his own skill and labor is not sufficient to answer the cares incumbent upon him.' See further Servant. 3. Any person having the chief charge or command of the employment and navigation of a vessel.* See Ship, 3. 4. An officer of a court of chancery to whom was referred a bill alleged to contain scandalous or impertinent matter. 5 An officer whose duty was to make in- quiries, when so directed by the court, into matters which, from the constitution of the court, it could not conveniently, without as- sistance, make for itself, and to report to the court his findings or conclusions.^ Clerks, commissioners, and referees now perform many matters formerly entrusted to masters. Their chief duties are to make inquiries, take accounts, sell estates, and adjust other matters, before there can be a final disposition of a cause.'' A master is appointed in an equity case to sift the testimony and to collate and report the facts. He is both an examiner and master. Having heard the witnesses and familiarized himself with the case, he is competent to pass upon the credibility of witnesses and to judge of the evidence. By his being fully pos- sessed of the case, the dispute is likely to be confined to the real grounds of the controversy. ^ The document exhibiting his findings and conclu- sions is called his "report; " the office of which is to present the case to the court in such a manner that intelligent action may be had; and it is this action that finally determines the rights of the parties.^ ■ Holland v. Alcock, 108 N. Y. 318, 316 See generally 32 Alb. Law J. 367-70 (1885), cases. ' F. maister: L. magister; magnus, great. Compare Maglstrate. s [1 Bl. Com. 423. < R. S. § 2768; 20 Wend. 182; 41 How. Pr. 73. « [3 Bl. Com, 442, 450. • [Holthouse's Law Diet.] ' Beebe v. Eussell, 19 How. 285i«6 (1856). 8 Backus's Appeal, 58 Pa. 192 (1868), Agnew, J. » North Carolina E. Co. v. Swaaey, 23 Wall. 410 (1874), He must follow the directions contained in the order of his appointment.' The court will review the report only as to matters specified in exceptions tiled thereto, and the parts of ,th6 evidence particularly referred to.' It may set aside the report for manifest error in law or fact, or recommit it, if the means of correction are furnished.' When, by reason of the large amount of equity business, it is impossible for a court to examine every case in detail, its attention may be brought directly to the points of the contest by a preliminary hearing be- fore a master, who can take time to examine the case thoroughly; and report upon it intelligently and accu- rately. The effect is to eliminate what is undisputed, and to develop the true points of contest. The pro- ceeding before the master develops the rights and lia- bilities of the parties for the court's consideration; the party dissenting from the master's views bringing the points into review by exceptions. What shall be re- ferred to a master, general or special, is a matter in the discretion of the court. , Properly speaking, no report is conclusive. That would be to make the judgment of an officer performing an ancillary service superior to the judgment of the court itself. When he reports facts directly proved by the witnesses, the court will give his report great weight, because of his superior opportunities for judging of the credibility of the witnesses and the effect of their testimony. But when the fact is a deduction merely from the facts reported by him, his conclusion is simply a result of reasoning, of which the court is as competent to judge as he. Hence, the report is neither a decision nor an infallible guide, but a serviceable instrumentality to- aid the court in performing its own functions.* See Final. The compensation of masters, whose functions are judicial, may be measured by the standard of judicial salaries.' See Costs; Fee, 2. ^ Master of the rolls. One of the judges of the English court of chancery. He formerly had the custody.of the rolls of all pat- ents and grants which passed the great seal, and of the records of chancery. He presided in the EoUs Court, as assistant to the lord chancellor. His jurisdiction is now transferred to the supreme court of judicature.' Mate, See Marinee; Ship, 3. MATERIA. L. Substance: matter, sub- ject, subject-matter. In, pari materia. Upon like (equal) mat- ter ; in regard tp the same matter. Waite, C. J. See also Hatch v. Indianapolis, &c. E. Co., 11 Biss. 138 (1882). 1 Felch V. Hooper, 4 Cliff. 494 (1878). = Harding v. Handy, 11 Wheat. 126 (1826). ' Steam Stone Cutter Co. v. Windsor Manuf Co., 17 Blatch. 24 (1879); Kisor's Appeal, 62 Pa. 435 (1869). * Phillips's Appeal, 68 Pa. 137 (1871), Agnew, J.;. SprouU's Appeal, 71 id. 137 (1872); Clai-k's Appeal, 62 id. 461 (1869);, Tilghman v. Proctor, 125 U. S. 149 (1888). ' Middleton v. Bankers' & Merchants' Tel. Co., 82 F. E. 524 (1887), n Spence, Eq. "357-60. MATERIAL 665 MATTER Statutes in pari materia are to be construed to- gether. Such statutes relate to the same person or thing or the same classes. They are usually general laws made at different times, in reference to the same subject.' The rule does not apply where the language of an act is free from uncertainty.^ The rule applies to a section of a statute construed with reference to prior statutes; " to sections of a re- vised code; ^ and to constitutional provisions having a common purpose.* The legislature is presumed to have had former statutes before it, and to have been acquainted with their judicial construction.^ Where divers statutes relate to the same thing, all are to be considered, in construing any one of them.* MATSRIAL. 1, n. Any article used in building or repairing houses, ships, etc' More often, materials. Material-man. One who has furnished any merchandise or stuff for the erection or repair of a building, vessel, or other struct- ure. See Case, Mixed ; Labor, 1 ; Lien, Me- chanic's. 2, adj. Of the substance ; essential ; im- portant. Opposed, immaterial: formal; not vital ; unnecessary : as, a material or im- material — alteration, amendment, averment or allegation, fact, issue, matter, party, rep- resentation, testimony, witness, gg. v. See also Matter. MATERNAIi. See Ancestor; Consan- guinity; Line, 3. MATHEMATICAL. See Evidence. MATRICIDE. See Homicide. MATRIMONTT. Marriage, as a relation or status. Matrimonial causes. In England, cer- tain suits, involving rights relating to mar- riage, which have constituted a branch of ecclesiastical jurisdiction. As, suits for jactitation of marriage, for restitution of conjugal rights, for judicial separation and dissolu- tion, for alimony. By the Divorce Act of 1857, these causes passed under the cognizance of a court created by the act, and are included in the probate, divorce, and admiralty division of the high court of .iustice. See Divokoe. MATRONS, JURY OF. See Venter, 1. » See 7 Conn. 456; 9 Barb. 311; 10 Greg. 62; 97 U. S. 223; 101 id. 281, 771. a Barnes v. The Railroads, 17 Wall. 302 (1872). 'Roberts II. Briscoe, 44 Ohio St. 600 (1886), cases. * Strauder v. West Virginia, 100 U. S. 306 (1879). 'Steele v. Lineberger, 72 Pa. 241 (1872). « United States v. Freeman, 3 How. 564 (1845). 'See 71 Pa. 293; 36 Wis. 29. MATTER. 1. Whatever is perceptible by the senses ; any material. See Materia^ Material; Patent, 2. 2. The subject of legal action, considera- tion, complaint or defense. The fact or facts constituting the whole or a part of a gi-ound of action or defense.^ 3. Some substantial or essential thing ; op- posed to form,? q. v. Material matter. Anything essential to the understanding or determination of an issue or proceeding. Immaterial matter. Anything not of importance to an adjudica- tion. In a pleading, an " immaterial matter " is anything stated therein which, if established on the trial, would not entitle a party to, or aid him in obtaining, the re- lief demanded, or in sustaining the defense pleaded.*- Matter in controversy. See Contro- versy. Matter in deed. See Deed, 1 ; Estoppel. Matter in dispute. See Dispute. Matter in issue. See Issue, 3. Matter in mitigation. See Aggrava- tion. Matter in pais. See Pais ; Deed, 1. Matter of aggravation. See Aggrava- tion. Matter of avoidance. See Confession. Matter of course. See Course, 2. Matter of fact. See Fact. Matter of form. See Form; Concensus, ToUit, etc. Matter of law. See Law ; Fact. Matter of record. See Record ; Estop- pel. Matter of substance. See Form. New matter. In pleading, matter not previously alleged or pleaded in avoidance.* " New matter constituting a defense " is not pleaded by averments which simply deny the allegations of the complaint, but only when they constitute a state- ment of facts the proof of which avoids the legal con- clusion otherwise to be drawn from the statement of facts in the complaint. It is in the nature of a plea of confession and avoidance.' Special matter. Facts of a particular nature which a defendant, under a plea of ' Nelson v. Johnson, 18 Ind. 332 (1863), Perkins, J. » Douglas V. Beasley, 40 Ala. 148 (1866). s Johns V. Pattee, 65 Iowa, 667 (1881), Seevers, J. * See 3 Bl. Com. 309, 313. « Craig r. Cook, 28 Minn. 234 (1881): Pomeroy, Rem. §§ 690-92. MATURE 666 MAY the general issue, may give in evidence in his defense. The character of the matter is indicated in a notice served upon the plaintiff. Sutajeet-matter. See Subject, 2 (1). MATURE; MATURITY.^ 1. In a will, may import maturity of mind and char- acter, the combined result of age and educa- tion. 2 3. Applied to bonds or similar instruments, and to negotiable instruments generally, re- fer to the time fixed for payment, — the ter- mination" of the period they have to run.^ Opposed to immature, immaturity. See Dub ; Negotiate, 3. " At maturity " includes the whole day, unless ex- pressly limited to a certain hour.* When a promissory note payable on a certain day bears interest "after maturity," interest should be computed from the day fixed for payment, not from the last day of grace.* MAXIM." " A proposition to be of all men confessed and granted without proof, argument, or discourse. . . A conclusion of reason." So called quia maxima ejus dignitas et certissima See 3 Bl. Com. 31. MEN 670 MERCHANT Immemorial. Beginning or occurring time out of mind: as, an immemorial cus- • torn, q. V. MEN. See Man. MENACE. See Assault; Defense, 1; Duress. MENAaERIE. See Animal. MENIAL. See Servant. MENS. L. The intellect ; judgment, in- tention, mind. See AaaREGATIO ; COMPOS. Mala m.ena. Bad mind; fraudulent in- tention. Mens legis. The intent of the law. Mens rea. Criminal intent. MENSA. See Divorce. MENTAL. See Labor, 1 ; Mind. MERCANTILE. Pertaining to mer- ' chandise ; having to do with the business or relations of merchants. See Merchant; Merchandise. Mercantile agency. See Communica- tion, Privileged, 3. Mercantile law. The law-merchant. Mercantile paper. See Merchant, Law. Mercantile partnership. A partner- ship which habitually buys and sells, — buys for the purpose of afterward selling. A coal and oil association is not such a partner- Bhip.' MEB,CHANDISE.2 Defined in the early dictionaries as " commodities or goods to trade with." * " Objects of commerce, wares, goods, commodities; whatever is usually bought or sold in trade." Provis- ions daily sold in market, horses, cattle, and fuel are not usually included, and realty never. The word conveys the idea of personalty used by merchants in the course of trade, and is usually, if not universally, applied to property which has not yet reached the hands of the consumer. The baggage (g. v.) of a pas- senger is not merchandise.* Has no fixed legal signification ; compre- hends whatever is usually bought and sold, w^hat merchants commonly trade in.5 Is limited to things that are ordinai-ily bought and sold, — the subjects of commerce and trafiic; things that have an intrinsic ' Commonwealth v. Natural Gas Co., 3S titts. L. J. 310 (1883). ' L. mercari, to trade: merx, trafdc. s Passaic Manuf. Co. v. Hoffman, 3 Daly, 512 (1871). * The Marine City, 6 F. E. «3, 415-16 (1881), Brown, District Judge. » Kent V. Liverpool, &e. Ins. Co., 26 Ind. 297-98 (1866), EUiott, J. value, in bulk, weight, or measure, and which are bought and sold.i Does not apply to mere evidence of value, as, a note, a policy of insurance, a bUl of lading, and the like, although some of these are sometimes bought and sold.' May include shares in a joint-stock company.' And may even embrace animate property; as, in a common count for goods sold and delivered.' In duty -laws, includes goods, wares, and chattels of every description capable of being imported.' See Baggaoe; Commeeoe; Goods; Inspection, 1; Invoice; Mail, 2; Meboantile; Merchant; Trade- mark; Wares. MERCHANT.^ Originally, one who traded with foreign countries; at present, one whose business is to buy and sell mer- chandise. ^ One who buys to sell again, and who does both, not occasionally or incidentally, but habitually and as a business." One who buys and sells an article; not, then, a manufacturer who sells his own pro- ductions.8 A banker is a merchant, according to both the commercial and the civil law." A commercial traveler is not a merchant: he does not sell his own goods. ^"^ Nor is a brewer; s nor an apothecary, selling liquor for medical uses; " but a hotel-keeper is, if he sells liquors, tobacco, etc., in his hotel; '" so may be the keeper of a boardiog-stable; '' but not a stock-specu- lator." Commission merchant. A factor, q. v. Forwarding merchant. See For- warder. Law-merchant; law of merchants. A system of law consisting of certain principles of equity and usages of trade which geiieral convenience and a common sense of justice ' Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 53-54 (1841), cases, Story, J. » Pray v. Mitchell, 60 Me. 435 (1872); Fine v. Homsby, 2 Mo. Ap. 64 (1876). 'Weston o. McDowell, 20 Mich. 357 (1870); United States V. One Sorrel Horse, 22 Vt. 656 (1847). • [R. S. 1 2766. See also 6 Pet. 163; 11 Biss. 55; 40 Ind. 593; 65 Iowa, 620; 20 Pick. 13; 5 Mich. 112; 44 N. T. 305; 43 Pa. 360; 47 Wis. 616. "• L. ruercator: mei-x, traffic, merchandise. « See Thomson v. Hopper, 1 W. & S. 469 (1841). ' Commonwealth v. Natural Gas Co., 32 Pitts. L. J. 310 (1883). ' Josselyn v. Parson, 50 L. E., 7 Ex. 129 (1872). » Brown v. Pike, 34 La. An; 678 (1882). " Exp. Taylor, 68 Miss. 481 (1880). '' Anderson v. Commonwealth, 9 Bush, 571 (1873). " Campbell v. Finck, 2 Duv. 107 (1865). 1' Be Odell, 17 Bankr. Eeg. 73 (1877). '* Be Woodward, 8 Bened. 665 (1876). MERCY 671 MERGER have established to regulate the dealings of merchants and mariners in all the commer- cial countries of the civilized world, i On mercantile questions, such as relate to bills of exchange and the like, in marine causes relating to freight, average, demurrage, insurance, bottomry, and others of a similar nature, the law-merchant, which is a branch of the law of nations, is followed. ^ The law-merchant was not made: it grew. Customs have sprung from the necessity and convenience of business and prevailed in duration and extent until they acquired the force of law. This mass of our jurisprudence has thus grown, and will continue to grow, by successive accretions. It is the outcome of time and experience, wlserlaw-makers, if slower, than legislative bodies. ^ The rules applicable to commercial paper were transplanted into the common law from.the law^mer- chant. They had their origin in the customs and course of business of merchants and bankers, and are now recognized by the courts because they are de- manded by the wants and convenience of the mercan- tile world.* See Paper, 4. Merchants' accounts. Within the mean- ing of the exception in statutes of limitations, accounts between merchants for merchan- dise, consisting of debts and credits, unset- tled and mutual.5 See Account, 1. Merchant appraiser. See Appeaiser. Merchant vessel. See Vessel. Merchantable. Vendible in market. Merchandise is vendible because of its fitness to serve its proper purpose. As applied to forage, merchantable means edible.6 The terms used In defining the word are " ordinaiy quality," " marketable quality," " bringing the aver- age price," " at least of medium quality or goodness," "good, lawful merchandise of suitable quality," " good and sufficient in its kind," " free from any re- markable defect." ' See Custom; Makket; Merchandise; Statute-mer- chant. MERCY.8 Compassion; leniency; clem- ency. 1. At common law, the conclusion of a judgment for the plaintifEwas that the defendant "be m mercy" (misericm-dia.\ that is, be fined for his delay of justice; and when the judgment was for the defendant, the 1 3 Kent, 3. ' 4 Bl. Com. 67; 1 id. 75, S73. ' Merchants' Bank v. State Bank, 10 Wall. 651 (1870), Swayne, J. < Woodbury v. Eoberts, 59 Iowa, 349 (1882), Beck, J. 5 Fox V. Fisk, 7 Miss. 846 (1842). •Wood V. United States, 11 Ct. CI. 685 (1875), Lorlng, Judge. ' Warner v. Arctic Ice Co., 74 Me. 478 (1883), cases, Symonds, J. See 9 Oreg. 411 ; 34 Barb. 206. * F. ■mercij pardon: L. merces, fine, pains. conclusion was that the plaintiff be in mercy for his false claim. ' See Amerce. 2. Justice is to be administered with mercy: it is reserved for the sovereign or his deputy to extend mercy wherever he thinks it deserved, holding a court of equity in his own breast to soften the rigor of the law in such criminal cases as merit an exemption from punishment." See Pardon. 3. Deeds, of mercy in Sunday laws, see Sunday. MERE. See Motion, 1 ; Right. MERETRICIOUS.s Pertaining to un- lawful sexual relation. If persons under legal incapacities wed, the union is meretricious.* MERGER.^ A sinking: absorption, coa- lescence, union, extinguishment — of a lesser estate, obligation, right, or wrong, by a larger one ; the smaller ceasing to exist, and the greater not increasing. 1. Merger of estates. Whenever a greater estate and a less coincide and meet in one and the same person, without any in- termediate estate, the less is immediately an- nihilated ; or, in law phrase, is " merged," that is, sunk or drowned in the greater.* As, where the reversion of a fee-simple descends to or is purchased by the tenant for years or life. Consists in a thorough coalescence, indis- soluble union of merging estates; each re- taining its rights and advantages, while imparting to the other the whole of its pe- culiar attributes.' The extinguishment, by act of law, of one estate in another by the union of the two estates. 8 The whole title, legal as well as equitable, must unite in the same person.* While a merger at law follows inevitably upon the union of a greater and lesser estate in the same owner- ship, it does not so follow in equity. There the doc- trine is not favored, and the estates will be kept separate where such is the intention of the parties, and justice requires it.'" Merger is a matter of intention, declared or pre- 1 See 3 Bl. Com. 376; 4 id. 379. = 4 Bl. Com. 397; 1 Kent, 265; 3 Story, Const. § 1488. • L. meretrix, a courtesan: merere^ to earn money. • 1 Bl. Com. 436. • L. mergere, to sink under water. »2 Bl. Com. 177; Mangum v. Piester, 16 S. C. 330 (1881); Little v. Bowen, 76 Va. 727 (1882). ' [Den V. Vanness, 10 N. J. L. 106 (1828), Ewing, C. J. ; Duncan v. Smith, 31 id. 327 (1865), Beasley, C. J. 8 State V. Koch, 47 Mo. 584 (1871), Wagner, J. • Jordan v. Cheney, 74 Me. 362 (1883). '» Smith V. Eoberts, 91 N. Y. 475 (1883), cases; HiU v. Pixley, 63 Barb. 203 (1873); Cook t>. Brightly, 46 Pa. 444 (1864). MERGER 673 MESSAGE ■sumed. The person in whom the estates meet may prevent it. Thus, the owner of the fee in land may acquire and hold a mortgage interest therein.' 3., Merger of agreements, contracts, obligations. When an engagement by- simple contract is afterward confirmed or continued by a sealed instrument, or when the demand or right of one party as against the other under their sealed or unsealed en- gagement is transformed into a judgment. The simple contract hecomes lost, smik, as it were, and swallowed up in that under seal, and becomes totally extinguished.'' A judgment on a note, or a contract, merges the note, or the contract, and no other suit can be main- tained on the same instrument. ^ A judgment against one of several joint-contractors on a bond merges the contract into tjie higher secu- rity. The , instrument, in either case, is thereafter functus officio.* See Gtbeater; Joint. Extinguishment by merger takes place between debts of different degrees, the lower being lost in the higher, and, being by act of law, it is dependent upon no particular mtention. It takes place only where the ■debt is one, and the parties to the securities are iden- tical. Hence, there is no merger where a stranger ^ves a bond for a simple contract debt, or confesses judgment for a debt. . . The debt remains the same, though the old evidence of it melts into the new one, and the creditor merely gains a higher security. . .' In merger there is a change only of the secu- rity; in satisfaction by "substitution" there is a change of the debt.* See Seoukity, Collateral. All verbal agreements between the parties to a written contract, made before or at the time of the ■execution of the contract, are considered as merged into the written instrument, and are inadmissible to vary its terms or to affect its construction. But oral agreements subsequently made, on a new and valid consideration, and before the breach of the contract, in cases falling within the rules of common law, and not within the Statute of Frauds, stand upon a differ- ent footing. They may have the effect to enlarge the time of performance specified in the contract, or may vary any other of its terms, or they may waive or dis- charge it altogether.' -^See Parol, Evidence. 3. Merger of wrongs. When a private ■wrong and a public offense [a felony] is com- mitted by one and the same act.'' 1 Winona, Belk V. Meagher, 104 U. S. 284, 281-88 (1881), Waite, C. J.; Forbes v. Gracey, 94 id. 768 (1876); E. S. §2319; Erhardt v. Boaro, 113 U. S. 535 (1885). See generally Steel V. Smelting Co., 106 id. 449, 457 (1882); Jackson v. Boby, 109 id. 441 (188,3); Chambers v. Harrington, 111 id. 350 (1884). ' Colorado Coal & Iron Co. v. United States, 123 U. S. 825 (1887), cases, Matthews, J. ' Iron Silver Mining Co. v. Reynolds, 124 U. S. 383 (1888), Field, J. ; Noyes v. Mantle, 127 id. 353 (1888). As to mining on public lands, see 86 Cent. Law J. 334-68 MINERAL 677 MINISTER A member may convey his interest ivithout dissolv- ing the partnership; and the death or insolvency of a member will not work a dissolution. But a member may not pledge the credit of the association.' Such partnership exists where the owners of a mine co-operate in working it." See Adit; Mineral; Aijua, Currit, etc.; Land, Pub- lic; Ore; Vein: "Waste. i MINERAL. That which is mined. Though frequently applied to substances containing metals, in its proper sense in- cludss all fossil bodies or matters dug out of mines.' A fossil, or what is dug out of the earth. In its enlarged sense, comprises all the sub- stances which form, or have formed, part of the solid body of the earth, both external and internal, and which are now destitute of, and incapable of supporting, animal or veg- etable life.* Petroleum is a mineral, and as much a part of the realty as timber or coal.' A right to experiment for oil, and to sever and re- move it upon giving a portion to the lessor, is a license to work land for minerals; and so coupled with an in- terest as not to be revocable at the pleasure of the licensor.* Where the grantor in a deed conveying realty re- served certain timber and "all minerals," and the grantee claimed the mineral oil, the court said: " It is true that iietroleum is a mineral; but so are salt and other waters, impregnated or combined with mineral substances; so are rocks, clays, and sand: anything dug from mines or quarries; in fine, all inorganic sub- stances are classed under the general name of ' min- erals.' It the reservation embraced all these things, It is as extensive as the grant. That something may be retained for the vendor, ' minerals ' must then be limited in its meaning. The parties doubtless thought and wrote, not as scientists, but as business men using the language of every-day lif e ; and in popular estima- tion petroleum is not regarded as a mineral substance any more than is animal or vegetable oil, and it can, indeed, be so classified only in the most general or sci- entific sense.' Minerals beneath the surface may be conveyed by a deed, distinct from the right to the surface. They constitute a corporeal hereditament, and pass by apt words, with delivery of the deed and registration. « > Kahn v. Smelting Co., 102 U. S. 645 (1880); Bissell v. Toss, 114 id. 360 (1883), cases; 4S Cal. 370; 79 Va. 160; 60 E. C. L. 685. ' Higgins V. Armstrong, 9 Col. 46 (1885); 5 id. 111. ' Eosse V. Wainman, 14 M. & W. *872 (1845), Parke, B. < [Bainbridge, Mines, &c., 1, cases. 5 Appeal of Stoughton, 88 Pa. 198 (1878). 8 Funk V. Halderman; 53 Pa. 229 (1866). ' Dunham v. Kirkpatrick, 101 Pa. 43^4 (1883), Gor- don, J. See also Hartwell v. Camman, 10 N. J. E. 128, 132-36 (1854). 8 CaldweU v. Fulton, 81 Pa. 475 (1858). The law recognizes horizontal divisions of land. A severance of the surface from the underlying strata may be created, either by reservation or express grant; after severance, a mineral right is an inde- pendent interest. Thus, one person may own the iron- ore, another the coal, another the limestone, another the petroleum, and another the surface.' But each proprietor must so use hie own property as not to injure another proprietor." A tenant for life cannot open and operate a new mine: it would injure the inheritance; but his right to operate previously opened mines, and work them, even to exhaustion, cannot be questioned. ^ What is termed a mineral lease is frequently found to be an actual sale of a portion of the land. It differs from an ordinary lease in this, tliat, although both convey an interest in land, the latter merely con- veys the right to its temporaiy use and occupation, while the former conveys absolutely a portion of the land itself. If the entire interest of the lessor is conveyed, in the whole or a portion of his land, the conveyance cannot properly be regarded as a " de- mise," but as an " assignment." * See Mine; Aqua, Currit, etc.; Land, Public; Qdarey; Vein; Waste, 1. MINISTER.5 1. An officer of a court charged with the execution of processes. Ministerial. Done or executed, or serv- ing, under the authority of, or in obedience to, another person as superior: as, a minis- terial — act, duty, office, officer, trust, writ. Opposed to judicial: involving the exercise of discretion. A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obe- dience to the mandate of legal authority, and without regard to, or the exercise of, his own judgment upon the propriety of the act to be done.' As, the act of bringing a party into court; • select- ing jurors; ' delivering a patent to land after the right thereto is complete.' A ministerial duty, the performance of which may, in proper cases, be required of the head of a depart- ment of government, by judicial process, is one in re- 1 Caldwell v. Copeland, 37 Pa. 430-31 (1860); Sander- son V. City of Scranton, 105 id. 472 (18S4); 31 id. 476, 482; 1 Maule & S. 81; 2 Barn. & Aid. 654; 2 Strange, 1142; 11 M. & W. 33; L. E., 4 Eq., 19; 8 Exch. 800; 6 id. 644; 5 E. L. & E. 526; 3 Dr. & S. 393. " Erickson v. Michigan Land & Iron Co., 60 Mich. 604, 609-10 (1883), cases. s Bley's Appeal, 103 Pa. 307 (1883), cases. * Sanderson v. City of Scranton, 105 Pa. 478-73 (1884), Clark, J. On opinions as to the value of a silver or gold mine, see Southern Development Co. v. Silva, 135 U. S. 247, 253 (1888). ' L. minister, a servant. ' Flournoy v. Jeffersonville, 17 Ind, 173-74 (1861), Per- kins, J.; 54 id. 377; 15 F. R. 16; Eoins v. Simpson, 50 Tex. 501 (1878). ' Exp. Virginia, 100 U. S. 348 (1879). 6 Simmons v. Wagner, 101 U. S. 861 (1879). MINISTER 678 MINISTER spect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.^ See Execution, 3, Writ of; Judge; Officer; Sher- iff; 2. A person ordained to preach the gospel. ^ See Ordain, 3. 3. In laws respecting foreign relations, a person invested with and exercising the prin- cipal diplomatic functions. 3 " The President , . shall nominate, and by and with the Advice and Consent of the Senate, shall ap- point Ambassadors, other public Ministers and Co^- snls. . ."* roreign minister. In the diplomatic sense, a minister who comes from another jurisdiction or government.' The modern law of nations recognizes a class of public officers, who, while bearing various designations, chiefly significant in the relation of rank, precedence, or dignity, possess in substance the same functions, rights, and privileges, — being agents of their respective governments for the transaction of diplomatic business abroad, possessing also such powers as their respective governments may please to confer, and enjoying, as a class, established legal rights and immunities of person and property in the governments to which they are accredited as the represent- atives of sovereign powers. Disregarding questions of dignity, these diplomatic agents might all be denominated ambassadors, because they are immediate officers of the sovereign ; or envoys, because they are persons sent ; or ministers, because engaged in public service or duty ; or procu- rators, because they are the proctors of their respective governments; or legates, because officially employed as the substitute of the superior; or nuncios, or internuncios, be- cause they are messengers to or between governments; or deputies, because they are deputed; or commissioners, because they hold ' Mississippi v. Johnson, 4 Wall. 498 (1866), Chase, C. J. See also Kendall v. Stokes, 3 How. 67, 98 C1845); South V. Maryland, 18 How. 396, 403.(1855); Conner v. Long, 104 U. S. 334-44 (1881), cases; 7 Ct. CI. 293; 49 Ala. 311; 39 Ark. 85; 18 Conn. 404; 13 Ohio St. 132; 40 Wis. 175. 2 See 1 Mass. 32; 5 id. 524; 6 id. 401; 7 id. 60, 230; 14 id. 333; 3 Pick. 403; 1 Me. 103; 11 id. 487. 2 E. S. § 4130; Act 1 Feb. 1876; 19 St. L. 2. « Constitution, Art. U, sec. 2, cl. 3. a Cherokee Nation ii. Georgia, 5 Pet. »56 (1831), Thompson, J. and discharge commissions ; or chargis d'af- faires, because they are charged with busi- ness; or agents, because they act for their governments. All these, and other designa- tions of public ministers, are found in the history of modern negotiations, the name having no fixed relation to the functions or powers, or true nature of the office. In the simple indication of duties these public min- isters would be divisible into three subdivisions of dif- ferences: ministers, representatives, and agents; ordi' nary, and extraordinary, that is, special; resident, and non-resident or ti'ansient; and plenipotentiary, and not plenipotentiary or with limited powers. But, in process of time, sometimes to flatter the pride of the sovereign represented, or that of the rep- resentative, or that of the government addressed; at other times to indicate shades of differences in func- tions, or in the place or manner of exercising them, and for other causes, arbitrary and artificial distinc- tions have grown up, in the use of titles, or names, which for' the most part are independent of, or abso- lutely contrary to, the truth and substance of the things they pretend to designate. Thus it is that '• ambassador^" in origin the most equivocal of all the titles — for " ambascia " is " offlcium vel ministerium quodcunque, nobile et iguobile," and " ambisciata " at this day is any message, though borne by a house- hold servant — lias come, notwithstanding its humble origin, to designate a diplomatic agent of the highest rank in the class, because taken to be the most direct representative of the sovereign; in this, reviving its original use of the personal client or agent of the chief or prince. Thus it is that the Papal See appoints peculiar ministers assumed to belong to the highest rank, under the name of "legate '* or " nuncio," both in nature as ordinary, and the latter as humble, as any in the whole category. . Thus it is that the ordi- nary " envoy," or agent of regular and ordinary fimc- tions, is by mere titular exaggeration turned into "envoy extraordinaiy," while another agent, who is no more a resident minister than he, and just as much an " extraordinary " envoy, is denominated merely a " minister resident." Thus it is, also, that in one of the varieties of agents, to "envoy extraordinary," which is false, is added "minister plenipotentiary," which is inexact in fact and by specialty of applica- tion; for it is not usual to give any diplomatic agent general " plenipotentiary " powers, but limited ones; and such powers, whatever they may be, as are given to envoys ordinary and extraordinary are frequently given to commissioners, ministei-s resident, or even chai'gfis d'affaires. And thus it is that " chai'g6s d'affaires," in itself quite as general as any title, and often borne by persons exercising as high functions as any other, has settled into the designation of a mere provisional officer, in dignity of the lowest rank. Thus, also, while "commissioner," which in fact is more comprehensive than the others, like " deputy," when held by a person having foreign diplomatic functions, as distinguished from functions^intemal or administrative, has come to have something of a spe- cific meaning by reason of its vagueness, as implying MINOR 679 MISCARRIAGE a diplomatic agent whose functions are undefined as respects the nature of his powers or the place of exer- cising them, — the term has more commonly been held to denote a minister the range of whose duties and powers is not confined to a particular court and does not depend on his presentation there. The Constitution, specifying "ambassadors" as examples of a class, empowers the President to ap- point these and other " public ministers," that is, any such officers as by the law of nations are recognized as "public ministers," without making the appoint- ment of them subject, lilie " other (non-enumerated) officers," to the exigency of an act of Congress. In a word, the power to appoint diplomatic agents, and to select any one out of the varieties of the class, accord- ing to his judgment as to the needs of the public serv- ice, is a constitutional function of the President, not derived from nor limitable by Congress, but requiring only the ultimate concurrence of the Senate; and so it was understood in the early practice of the govern- ment.' The United States has never sent an " ambassa- dor."' The power to appoint a representative includes the power to remove him.' " In all Cases affecting Ambassadors, other public Ministers and Consuls . . the supreme Court shall have original Jiu-isdiction." * The purpose was to keep open the highest coin-t of the nation for the determination, in the first instance, of suits involving a diplomatic or commercial repre- sentative of a foreign government. This was due to the rank and dignity of such representatives. . . . They may sue in any court they choose ihat is open to them. As to consuls, the commercial representatives of foreign governments, the jurisdiction of the Supreme Court was made concurrent with the district courts. Congress may confer jurisdiction, in cases of consuls, upon the subordinate courts of the Union.* SeeAi.jEH, 1; ARkEST,2(3, 3); Asylum; Consul; Ex- BQUATUK, 2. MTNOE.* A person not twenty-one years old ; an infant, q. v. Minority. 1. The civil condition of a minor; infancy. 3. The smaller number of votes or voters. See Majority. 3. The smaller number of citizens. See Constitution. MINSTRELS. See Theater. MUfT. The United States mint was es- tablished by act of April 3, 1793, and located at Philadelphia. There are branch mints at ' Ambassadors and Public Ministers, 7 Op. Att.-Gen. 190-93 (1855), Caleb Cushing. = 1 Kent, 39, u. See 1 Bl. Com. 253. ' Exp. Hennen, 13 Pet. 259 (1839). •• Constitution, Art. in, sec. 2, cl. 2. •Ames V. Kansas, 111 U. S. 464 (1884); BSrs v. Pres- ton, ib. 252, 265 (1884), cases. • L. minor, less, younger. San Francisco, New Orleans, Carsonj and Denver.! See Coin. MINUS. See Major; Minor; Diminu- tion. MINUTES.2 1. Official memoranda of what takes place in a court; made by the clerk, and preserved in his " minute-book." From these memoranda the record is afterward made, the minutes themselves not being considered part of the record. The courts are to take notice how the records of their own and of other courts are in fact made and kept. The clerk must of necessity take down the do- ings of the court in brief notes. This he usually does in a minute-book called the " docket," from which a full, extended, and intelligible record is afterward to be made up. Until they can be so made, these short notes must stand as the record." But it is not the office of the clerk's minutes to in- dicate the legal questions raised upon the trial of a case.* 3. The record of the proceedings had be- fore the board of directors of a corporation ; usually made by the secretary. Failure to make minutes will not invalidate a cor- porate act, even where the charter directs that they be made or kept. If not kept, or if lost, destroyed, or for other reason not produced after request duly made, secondary evidence of the proceeding will be admit- ted.' MIS.6 A prefix denoting error, fault, de- fect, wrong ; also, ill or bad. Compare Mal. MISADVENTURE. An accident, usu- ally resulting in the death of a person, where a lawful act is being done. Homicide by misadventure is where a man, doing a lawful act without any intention of hurt, vmf ortunately kills another.' MISAPPLY. See Application, 3. MISAPPROPRIATE. See Appropri- ate, 1 (1). MISBEHAVIOR. See Behavior. MISCARRIAGE. 1. Erroneous domg; faulty behavior; a wrongful act incurring liability in damages.' See Frauds, Stat- ute of. ' See E. S. § 3495; 1 Story, Laws, 227. = L. minttto(smp See Smith «. State, 33 Me. 60 (1851); Commonwealth V. EaUing, 113 Pa. 37(1886). 2,L. miscere, to mix; genere, to beget. 3[4B1. Com. 843. ■• [Commonwealth v. Walden, 3 Cush. 561 (1849). See also 101 m. 394; 110 Mass. 402; 49 Miss. 337; 37 N. J. L. 120; 3 D. & B. (N. C.) 131; 2 Whait. Cr. L. §§1065-88, cases. ' State V. Watts, 48 Ark. 67-69 (1886), Battle, J, ; 8 Whart. Cr. L. §§ 1067, 1076, oases ; 1 Bish. Cr. L. §§ 568-69, 626, cases. MISCONDUCT. "Misconduct in of- fice " was held to apply to a wrongful per- formance of an authorized act.' See Arbi- trator ; Attorney ; Misdemeanor, 1; Ver- dict. MISDATE. See Date. MISDELIVERY. See Delivery. MISDEMEANOR. 1. Misconduct; mis- behavior, not amounting to a crime, in dis- charging the duties of a public office. As, in a statute enacting that whenever a sheriff shall have been guilty of any default or misdemeanor in office, the party aggrieved may apply to a court for leave to prosecute his official bond.* Compare Mis- conduct. 3. Any indictable offense under the grade of felony.3 Vrhere a municipal ordinance prohibits an act not punishable at common law or by statute, and pro- vides, as a penalty, a fine, and, in default of payment thereof, imprisonment in the county jail, the violation of such ordinance is not a misdemeanor under a stat- ute defining a misdemeanor to be " an act or omission punishable by fine and imprisonment or by fine or im- prisonment." * The prgvision in the Constitution that " the trial of all crioies, except in cases of impeachment, shall be hy jury," construed in the light of theprinciples of the common law, embraces not only felonies punishable by confinement in the penitentiary, but also some classes of misdemeanors the punishment of whichjnay involve deprivation of liberty. The word "crime," in its more extended sense, comprehends every viola- tion of public law; in a limited sense, it embraces of- fenses of a serious or atrocious character.* Misdemeanant. A person convicted of 'a mis- demeauor. (Rare.) See further Crime; IF'elony. MISDESCRIPTION. See Description. MISDIRECTION. See Chabge, 3 (3, c). MISERICORDIA. See Mercy, 1. MISFEASANCE. See Feasance. MISFORTUNE. See Accident ; Homi- cide; Misadventure. MISINSTRUCTION. See Charge, 3 (3, c); Instruct, 2. MISINTERPRETATION. See Inter- pretation, MISJOINDER. See JoiNdee. MISLAID. See Find, 1. ' State V. Leach, 60 Me. 66 (1872). See aJso 37 How. Pr. 20; 1 Den. 267. " State ex rel. Blinebury v. Mann, 21 Wis. *687 (1867). 'See 4 Bl. Com. 6; 6 Ark. 190; 65 111. 60; Wend. 222; 18 id. 314; 86 Hun, 60; 9 Humph. 50; 1 Bish. Cr. L. §624. * City of Oshkosh v. Schwartz, 55 Wis. 483 (1883). ' Callan v. Wilson, 137 U. S. 549 (1888), Harlan, J. MISLEAD 681 MISTAKE MISLEAD. See Charge, 3 (3, c); In- struct, 3. MISNOMER. Misnaming: giving a wrong name to a person, in an instrument or document of any nature.! See Alias, 1 ; Name, 1. MISPLEADING. See Pleading. MISPIIISION.2 1. Formerly, any dere- liction or ofiEense which had no distinctive name.' Any such high offense as is under the de- gree of capital, but nearly bordering thereon ; is contained in every act of treason and in every felony.* Negative misprision. The concealment of something which ought to be revealed. Positive misprision. The commission of something which ought not to be done. The concealment of treason, of a felony, or of treasure-trove, were examples of negative misprisions. Positive misprisions included all contempts and high misdemeanors: as, the maladministration of officers in public employment, embezzling public money ; con- tempts of the executive department: as, refusing to advise in public councils, refusing to help defend the realm, neglecting to join the posse comitatus, disobey- ing any lawful command; contempts against the king's person and government: as, speaMng against them, wishing them ill, acts lessening them in esteem; contempts against the king's title not amounting to treason or prcemunire: as, denying his right to the crown in common discourse; also, contempts against the courts of justice.* 3. Misapprehension of duty; a clerical error, by an inferior judicial oflBcer. " The omission of the clerk to enter on the record the judgment upon the demurrer, or to state its waiver, if it was abandoned, would be merely a cler- ical mistake; and it is well settled at common law that a misprision by a clerk, if the case be clearly that alone, though it consists of the omission of an impor- tant expression, is not ground to reverse a judgment, where substance enough appears to show that all that was required was properly done." * " Inasmuch as the statute provides what judgment shall be rendered on joint debts where only one party is served, this [the entry of ' defendant ' for ' def end- ants '] is a mere clerical misprision." • See Recobd, Judicial. MISREADING. See Reading. MISRECITAL. See Becital. ' See 3 Bl. Com. 303; 4 id. 334; 77 Mo. 370. " Mis-prlzh'-un. F. mispris, neglect, contempt: mi, amiss; prendre, to take. »See3Coke, Inst. 36.- <4 Bl. Com. 119; 1 Hawk. P. C. 60; R. S. §§ 5390, 5333. ' Townsend v. Jemison, 7 How. 720 (1849). "Holcomb V. Tift, 54 Mich. 648 (1884). MISREPRESENTATION. See Rep- resentation, 1. MISTAKE. Some intentional act, or omission, or error, arising from ignorance, surprise, imposition, or misplaped confi- dence. 1 When a person, under some erroneous con- viction of law or fact, does, or omits to do, an act which but for the erroneous convic- tion he would not have done or omitted.2 That result of ignorance of law or of fact which has misled a person to commit that which if he had not been in error he would not have done.' An erroneous mental conception that influ- ences the will and leads to action.4 The doing of an act under an erroneous conviction, which act, but for such convic- tion, would not have been done.s Mistake of fact. Takes place either when some fact which really exists is un- known, or some fact is supposed to exist which really does not exist. Mistake of law. When a person, having full knowledge of facts, comes to an erroneous conclusion as to their legal effect.^ Mistake of judgment. See Dikectors v Discretion; Sewer. Mutual mistake. A mistake reciprocal and common to both parties ; as, the parties to a contract when each alike labors under the same misconception with respect to its terms.' The rule is that a mistake of law affords no ground for relief, and that a mistake of fact may furnish such ground. In the latter case the fact must be material to the act or contract, that is, must be essential to its character, and an efficient cause of its concoction, and must also be such fact as the complainant could not by reasonable diligence get knowledge of, when put upon inquiry. When the fact is known to one party, and unknown to the other, the ground of relief is, not the mistake or ignorance of material facts alone, but the unconscientious advantage taken by the conceal- • 1 Story, Eq. § 110; Chicago, &c. R. Co. v. Hay, 119 111. 504 (1887). > Bispham, Eq. § 185. > Bruse v. Nelson, 35 Iowa, 100 (1872): Jeremy. * West Portland Homestead Association v. Lowns- dale, 17 F. R. 616 (1883), Deady, J., citing 3 Pom. Eq. » Cummins v. Bulgin, 37 N. J. E. 477 (1883),Van Fleet, Vice-chancellor. » Hurd D. Hall, 12 Wis. '124 (1860), Dixon, C. J. ' [Botsford V. McLean, 45 Barb. 481 (1S06), E. D. Smith, J. ; Massie u Heiskell, 80 Va. 801 (1886). MISTRIAL 683 MOBILIA ment. If the parties act fairly, one not being bound to communicate the facts to the other, a court of equity will not interfere, i To entitle a plaintiff to relief in equity the mistake must be clearly established." " We think that no case can be found where a court of equity has relieved a party on account of a mistake which was made thrdugh the mere carelessness and negligence of the party asking relief, where there rested a duty upon him toward the other party to use due care and diligence not to make a mistake." ' Kellef for a mistake of law cannot be granted in a Federal court.* iSee furthel: Consensus, ToUit, etc.; Ignorance; Knowledse, 1; Mispkision, 2; Payment, Voluntary; Receipt; Recobd, S; Hbform; Rescission; Will, 2. MISTRIAL. See Trial. MISUNDERSTAN-DIWa. See Assent; Mistake. MISUSER. See Use, 1. MITIGATION.s Lessening the degree of ; diminution as to the severity of ; reduc- tion of the amount of : as, of damages, pun- ishment or penalty. The criteria by which the sufficiency of a pleading is ordinarily determined, that i^, materiality and rel- evancy, may not be strictly applied to allegations in an answer of facts by way of mitigation. Such alle- frations should not be stricken out on motion, unless it is clear that under no possible circumstances could the matter pleaded have the bearing claimed for it.^ See Aggravation. MITIORI. See Sensits. MITTIMUS. L. We send: a ivarrant of commitment, q. v. MIXED. Partaking of two or more nat- ures or characteristics ; of two or more spe- cies, characters, races, etc. Mixed action. An action in its nature both real and personal. See Action, 2; Ejectment. Mixed case. A case involving principles of law and equity or admiralty. See Ad- miralty. 1 1 Story, Eq. §§ 140-47; Grymes v. Sanders, 93 U. S. «0-63 (1876), cases: .8 Wheat. 211; 1 Pet. 1; 13 id. 26; 2 McCrary, 440; 10 Bened. 408; 13 F. R. 356-60, cases; 14 id. 498; 15 id. 368; 7 Ga. 64; 94 N. Y. S47; 9 Cow. 685-87, 674; 3 Lead. Gas. Eq. 411. 2 Baltzer v. Raleigh, &c. R. Co., 115 U. S. 645 cases; Cummins v. Bulgin, 37 N. J. E. 477 (1883); Ben- son V. Markoe, Sup. Ct. Minn. (1887), cases; 18 Cent. Law J. 7-10 (1884), cases; 1 Law Q. Rev.'298-813 (1885), oases; a id. 78-83 (1886), cases; 1 Story, Eq. § 157. ' Bio.vn I'. Bosworth, 53 Wis. 339 (1883), Taylor, J. Hurd V. Hall, 12 id. *124-28 (1860), cases, Dixon, C. J. ■■ Allen V. Galloway, 30 F. R. 467 (1887), cases. s L. mitis, soft, mild. • Bradner v. Faulkner, 93 N. Y. 515, 518 Mixed jury. A jury of white and black persons. See Jury. Mixed larceny. Larceny characterized by circumstances of aggravation ; compound larceny, g. v. Mixed marriage. A marriage contracted between persons of difEerent races. See Marriage. Mixed property. Property of the nat- ure of both realty and personalty. See PropertyI Mixed question. A question involving matters of law and of fact. Mixed schools. Schools for the educa- tion of different races; specifically, of the white and black races. See School. MIXTIOIf. See Confusion. MOB. A " rebellious mob " commits high treason ; a " common mob '' commits a riot : the latter wants a universality of purpose to make it rebellious. ' The Pennsylvania act of May 31, 1841, which makes the county of Philadelphia liable for property de- stroyed by a mob, and which was extended to Alle- gheny county by the act of March 20, 1849, is not repealed by the constitution of 1874. The act is both remedial and penal, and must be liberally construed. .The fact that county authorities are unable to quell a riot does not limit the liability of the county for dam- ages done thereby. The act embraces every kind of riotous disturbance.'' See Assembly, Unlawful ; Insurrection; Riot. MOBILIA. L. Movable things; mov- ables, q. V. Mobilia non habet situin. Movables have no situs. ^ Mobilia personam sequuntur, immo- bilia situm. Movables follow the person, immovables the locality. The use and trans- fer of personalty is regulated by the law of the domicil of the-owner; the use and dispo- sition of realty, by the law of the place where situated.4 See Place, 1; Property; Situs. ' [Angell, Ins. § 136; Harris v. York Mut. Ins. Co., 60 Pa. 341 (1855). 2 County of Allegheny v. Gibson's Son & Co., 90 Pa. 397, 404 (1879) : Httsburgh Riot of July 20-84, 1877. See also Solomon v. Kingston, 24 Hun, 562 (1881); Hart i;. Bridgeport, 13 Blatch, 289 (1876); Wing Chung v. Los Angeles, 47 Cal. 351 (1874); Atchison v. Twine, 9 Kan. 356 (1872); Dale County v. Gunter, 46 Ala. 118 (1871); Baltimore v. Poultney, 25 Md. 107 (1866;; Darlington v. New York City, 31 N. Y. 187-89 (1865); 16 Alb. Law J. 109 (1877), cases and statutes; Wis. Act 1886. 3 4 Johns. Ch. 472. «4 Kent, 613; 3 id. 67; 2 Greenl. Ev. § 668; Stoiy, Confl. L. §§ 376, 424. MODE 683 MONEY MODE. The manner in which a thing is done : as, the mode of proceeding, the mode of process. 1 See Modus. Mode of operation. In specifications for letters patent, where the invention falls within the category of machines, a claim for the mechanism and also for the mode of operation generally, is void.' MODEL. A copy or imitation of the thing intended to be represented.' A model of an invention need not be furnished, un- less required by the commissioner of patents; and, when required, it is not to exceed one foot in any of its dimensions, except as to working models of compli- cated machines.* See Invention. MODERATE.^ 1. L. adv. Moderately: reasonably. Moderate castigavit. He punished with moderation. A plea justifying a battery by one who has a right to correct another. See Battery. 2. Eng. adj. Reasonable; proper. What Is a "moderate speed" for a vessel depends not upon the speed of the vessel herself, but upon the position she is in, whether in a crowded channel or on the open sea.* MODiriCATION. See Contract. MODUS. L. Manner; way. Modo et forma. In manner and form. See Manner. Modus et eonventio vineunt legem. Manner and agreement overrule the law. The terms and effect given to an agreement, not contrary to law, may control a rule of law.f See Conventio. Modus legem dat donationi. The manner gives law to a gift. A donor may attach to his gift such condition as he pleases. « MOrETY .9 A half ; an undivided half. Joint tenants are said to hold by moieties. See Par- tition; Entirety. Moieties, being half of the penalty or forfeiture, were formerly paid to informers under the laws for- bidding smuggling. The act of June 23, 1874, abolished the practice, directed that all fines should be paid into the Treasury, and that whatever compensation might be due to informers should be reported to Congress for action.'" 1 See 10 Wheat. 29; 9 Pet. 356; 14 id. 316; 16 id. 313; 1 How. 306. ' Hatch V. MoiBtt, 15 F. E. 252 (1883). > State V. Fox, 25 N. J. L. 602 (1856). • See B. S. § 4930. » L. mod-e-ra'(or ra')-tS. Eng. mod'-Sr-Ste. 8 The Elysia, 46 L. T. 840 (1882). ' 13 Pick. 491; 22 N. Y. 252; 59 Pa. 389. 8 Broom, Max. 459; Whart. Max. 259. • F. moitie: L. medietatem, a half. i»l Sup. E. S. p. W; United States v. Auffmordt, 19 F. E. 893, 898 (1884). MOLLITITR. See Manus. MONASTERY. See Death, Civil. MONEY. An universal medium, or com- mon standard, by comparison with which the value of all merchandise may be ascer- tained ; a sign which represents the respective values of all commodities, i In its strict technical sense, coined metal, usually gold or silver, upon which the gov- ernment stamp has been imposed to indicate its value ; in its more popular sense, any cur- rency, tokens, bank-notes, or other circulat- ing medium, in general use as the represent- ative of value.2 A generic term ; includes, but is not con- fined to, coin; whatever is lawfully and act- ually current in buying and selling, of the value and as the equivalent of coin. By universal consent, bank-notes, lawfully is- sued, actually current at par in lieu of coin, are money. "Paper money" is as accurate an expression as "coined money." ' The lawful currency of a country; that which may be tendered and must be received in discharge of a subsisting debt.* A simple bequest of " money " will not carry secu- rities. When it can be gathered from the will that the testator used the word in the sense of personal estate, that intention will be given effect.' Power to coin and regulate the value of money is one of the ordmary prerogatives of sovereignty. The power is vested in the national government in order to produce uniformity of value and to prevent the em- barrassment of a perpetually fluctuating medium." Lawful m.oney. " Lawful money of the United States " is lawful money of any State or Territory.' ■1 Bl. Com. 276, 329; 2 id. 446; 3 id. 231; 2 Story, Const. § 1118. 2 Kennedy t'. Briere, 45 Tex. 309 (1876), Moore, A. J.; Block V. State, 44 id. 622 (1876). >Klauber u. Biggerstaff, 47 Wis. 657 (1879), Eyan, Chief Justice. < Morris v. Edwards, 1 Ohio, 204 (1823). See also 2 Cranch, C. C. 43; 3 T. B. Mon. 100; 15 Pick. 173; 34 Mich. 490; 6 N. J. L. 826; 5 Humph. 140; 71 Ala. 554. BQlendenning u. Glendenning, 9 Beav. 334 (1846); Eogers v. Thomas, 2 Keen, *S (1837); Dowson v. Gas- koin, ib. *14 (1837); Smith v. Davis, 1 Grant, 158 (1858); Paul i>. Ball, 31 Tex. 10 (1868); Blood v. Fairbanks, 48 Cal. 171 (1874); Smith v. Burch, 93 N. Y. 231-34 (1883), cases; 2 Eedf. Wills, 111, 437; Jarm. Wills, Ch. 24; 2 Williams, Ex. 1025. ' 2 Story, Const. § 1123; Legal Tender Cases, 13 Wall. 602(1870); 1 Bl. Com. 276. 'Cocke •». Kendall, Hempst. 236 (1834); 1 Call. *125, 175; 7 Wall. 247. MONEY 684 MONITION Nothing is "lawful money of the United States " but gold or silver coin, United States treasury notes, or fractional currency. Na- tional bank notes are not such money. ^ See further Tender, 2, Legal. The notes issued by the Confederate States had no real value; they were made current as dollars by irre- sistible force. They were the only measure of value the people had, and their use was a matter of almost absolute necessity. This use gave them a sort of value, insignificant and precarious' enough it is true, but always having a sufficiently definite relation to gold and silver, the uniform measure of va,lue, that it was always easy to ascertain how much gold and silver was the equivalent of a sum expressed in this currency. The notes were considered as if issued by a foreign government temporarily occupying our territory. Con- tracts for payments in this currency were not regarded for that reason only, as made in aid of the foreign in- vasion in the one case, or of the domestic insun-ection in the other. They had no necessary relation to the hostile government. They 'were transactions in the . ordinary course of civil society, and, though they might indirectly and remotely have promoted the ends of the imlawful government, were without blame, ex- cept when proved to have been entered into with an actual intent to further invasion or insurrection. Such contracts should be enforced after the restoration of peace.'' Deferred payments under a contract for the sale of land, made in 1856, came due during the war and were paid to the representative of the vendor in Confeder- ate money. Held, that, as against the heirs of the vendor who did not ratify it, the payment did not ex- tinguish the indebtedness; that lawful money of the United States was contemplated.^ Money bills. In the constitution of Massachusetts, bills before the legislature that transfer money or property from the people to the State ; not bills that appropri- ate from the treasury of the State. Bills for revenue.* Money counts. Claims in an action of assumpsit (q. v.) for money expended in be- half of the defendant or received by him for the plaintiff. 5 See Count, 4 (1), Common. Money judgment. A judgment for a sum of money, rather than for other prop- erty. Opposed to personal judgment. Money made. See Make, 7. 1 Hamilton v. State, 60 Ind. 194 (1877). 2 Thornington v. -Smith, 8 Wall. 11-13 (1868), Chase, C. J.; Efflnger v. Kenney, 115 U. S. 566, 669-76 (1886); Wilmington, &c. R. Co. v. King, 91 id. 3 (1875); Stew- art V. Salamon, 94 id. 484 (1876); Cook v. Lillo, 103 id. 792(1880); Rives v. Duke, 105 id. 140 (1881). > Opier. Castleman, 32 F. R. 511 (1887), Jackson, J. ' Opinion of the Justices, 126 Mass. 601, 593 (1878). ^ See Brand v. Williams, 29 Minn. S Money-order. The act of June 8, 1872, c. 355, provided for the establishment of the money-order system of the United States, i Moneyed capital. As used in Rev. St., § 5319, forbidding a State to tax shares of stock in national banks at a greater rate than is assessed upon other " moneyed capital " in the hands of individual citizens of the State, embraces capital employed in national banks, and capital employed by individuals when the object! of their business is the making of profit by the use of their moneyed capital as money. It does not include moneyed capital in the hands of a corporation, even if its business be such as to mak& its shares moneyed capital when in the hands of in- dividuals, or if it invests its capital in securities pay- able in money.2 Moneyed corporation. See Coepoea- TION. Moneys. Is not more extensive than " monej-." ' Public money. In the statutes of the United States, orclinarily, the money of the government, received from the public rev- enues or intrusted to its officers charged with the duty of receiving, keeping, or disbursing the same.'' See Revenue. See Appropriate, 1 (J^; Attach, 2; Available; Baggage; Bank, 2; Capital, 2; Chattel; Check; Cir- culation: Condemnation; Coin; Conversion, 2; Cor- ruption; Credit, Bill of; Currency, 2; Deposit, 2; Dollar; Due; Goods; GtReenback; Identity, 2; In- come; Interest, 3; Invest, 2; Payment; Pound, 1; Price; Purchase-money; Specie; Sum; Tax, 2; Treas- ure-trove; Usury. Compare Aes. MONITION.5 A process, in the nature of a summons, issued by courts proceeding ac- cording to the civil law; in particular, by admiralty courts.^ 1 See E. S. §§ 4037-^8; 1 Sup. E. S. p. 155. Compai-e 3 & 4 Vict. c. 96; 11 & 12 Vict. o. 88. ! Mercantile Bank v. New York, 121 U. S. 163. 155-57 (1887), Matthews, J. See on same subject. Bank of Eedemption v. Boston, 126 id. 60 (1888); Hepbui-u v. School Directors, 23 Wall. 480, 483 (1874) ; First Nat. Bank of Utica V. Waters, 19 Blatch. 242 (1881); Evansville Nat.' Bank v. Britton, 105 U. S. 322 (1881); Boyer V. Boyer, 113 id. 689 (1886); McMahon v. Palmes', 102 N. T. 176, 188 (1886): Wasson v. First Nat. Bank of Indian- apolis, 107 Ind. 206 (1886); Richards v. Town of Rock Rapids, 31 F. R. 508 (1887); Tennessee v. Whitworth, under Tax, 2. 'Mann v. Mann, 14 Johns. *12 (1816); 1 Johns. C2i. 231; 9 Barb. 35; 4 Jones, Eq. 244. * Branch v. United States, 13 Ct. CI. 289 (1876). * L. monere, to make to think, advise. * See St. Louis v. Richeson, 76 Mo. 484 ( MONK 685 MONOPOLY General monition. A citation or sum- mons to all persons interested to appear and show cause why the libel should not be sus- tained and the prayer for relief granted. Special monition. A similar warrant giv- ing special notice to persons named, of the pendency of the suit, the grounds of it, and the time and place of trial. Mixed moni- tion. Contains directions to all persons in- terested and a special summons to particular persons. 1 Acts of Congress and the rules and practice of the courts prescribe the time and manner of notice and service of the several writs. A writ may issue upon libel or information against a promissory note to at- tach, seize, or arrest it.^ See Res, 3. MONK. See Death, Civil. MONOGRAPH.^ A discourse or treatise, frequently in pamphlet form, upon a special subject, usually a branch to a more general division ; as, on the removal of causes from a State court to the United States circuit court. Whence monographic, monograph- ical. MONOMANIA. See Mania. MONOPOLY.* A license or privilege allowed by the sovereign for the sole buying and selling, making, working, or using of anything whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before.' An exclusive right granted to a few, of something which was before of common right. Lord Coke's definition is " an institu- tion by the king, by his grant, commission, or otherwise, to any persons or corporations, of or for the sole buying, selling, making, working or' using of every thing, whereby any persons or corporations are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade." 6 A grant which gives to one person, or to one association of persons, an exclusive right to buy, sell, make, or use a given thing or > [Dunlap, Adm. Pr. 132. 2 Pelham v. Rose, 9 Wall. 103 (1869). s Gk. monoa, single, one; graphein,U> wnte. < Gk. monus, sole, exclusive ; polein, to sell. s 4 Bl. Com. 159. •Charles River Bridge u. Warren Bridge, 11 Pet. *607 (183T), Story, J.; 3 Coke, Inst. 181. See also Slaughter-House Cases, 16 Wall. 102 (1873). commodity, or to pursue a designated em- ployment. 1 The prerogative of granting such rights having been abused, the courts adjudged them illegal,* and Parliament, by statute of 21 James I (1624), c. 3, abro- gated the practice, except with respect to patents for fourteen years. A patent resembles a contract more nearly than it resembles a monopoly, in the common- law sense of the latter term.^ All such grants relating to any known trade or manufacture have been held by all the judges of England to be void at common law as destroying the freedom of trade, discouraging labor and industry, restraining persons from getting an honest livelihood, and putting it in the power of the grantees to enhance the price of commodities.-* A legislative grant of an exclusive right to supply water or gas to a municipality and its inhabitants is a grant of a franchise vested in the State, in considera- tion of the performance of a public service, and, after performance by the grantee, is a contract protected by the Constitution from impairment. Such franchise is violated by a grant to an individual of the right to supply his premises with water (or gas) by the same means, namely, by pipes laid through the public streets. In making such grants, a State legislatiu'e does not part with the police power and duty of pro- tecting the public health, the public morals, and the public safety, as one or the other may be involved in the exercise of that franchise by the grantee.' Though the use of a street for water mains may not be of common right, yet when the use would assist in the maintenance of a claim of exclusive right to sell water, the courts, in view of the constitutional decla- ration that monopolies " shall never be allowed," will give no sanction to a contract entered into by the city resulting in a monopoly. The exercise of such a fran- chise, involving, as it does, a use of the public streets, is subject to control.* 1 City of Benham v. Benham Water Co., 67 Tex. 561 (1887), Stayton, A. J. 2 Case of Monopolies (Darcy v. AUein), 6 Coke, 84 (1601). See Butchers' Union Co. v. Crescent City Co., Ill U. S. 761 (1684); Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn. 36 (1856); Slaughter-House Cases, infra. spennock v. Dialogue, 2 Pet. 'IS (1829); Gayler v. Wilder, 10 How. 494 (1850); Turrill v. Michigan, &o. E. Co., 1 Wall. 491 (1863); 111 U. S. 763. • Slaughter-House Cases, 16 Wall. 102 (1872), Field, J. dissenting; 18 id. 138 (1873). See also 19 Pick. 54; 13 Allen, 372; 1 Wash. T. 284. » New Orleans Water- Works Co. v. Rivers, 115 IT. S. 674 (1885), Harlan, J. ; Louisville Gas Co. v. Citizens' Gas Co., ib. 683, 691 (1885); New Orleans Gas Co. v. Louisiana Light Co., ib. 650 (1885) ; New Orieaus Water- Works Co. V. Louisiana Sugar Refining Co., 12.j id. 18 (1888). See also Memphis v. Water Co., 5 Heisk. 495 (1871). See generally Pullman Palace Car Co. v. Texas, &c. R. Co., 11 F. R. 625 (1882); ib. 632-34, note. • [City of Benham v. Benham Water Co., 67 Tex. 661 (1887). Compare Norwich Gas Co. r. Norwich City Gas Co., 25 Conn. 19 (1856); State v. Cincinnati Gas Co., 18 MONSTRANS 686 MONTH Plaintiff by its cliarter was given tha exclusive horse-railway franchise, of Omaha for fifty years. Defendant, under a city ordinance, consented to by the people, undertook to lay a cabiQ tramway on streets occupied by the plaintiff. The court refused to enjoin the defendant, holding that the grant of the monopoly was of forms of transportation then fcnown^ and not of such as might subsequently be devised.^ " The fuel company has placed itself in the position of seeljing to obtain from the railroad company, not merely favorable rates, but a discrimination against . other parties. The result will be the building up of a monopoly in the coal business. A party who volun- tarily enters into such a contract is in no position to asl£ the courts that anything be strained in his behalf. If the fuel company Qould make similar contracts with other transportation companies, running to other fields, it would soon be master of the coal business of the northwestern country. It would have the monop- oly of that business, and could dictate prices to the consumer and starvation wages to the producers ; and, when the first contracts had expired, it could dictate transportation rates to the railroad companies. . . It is impossible to disintegrate the contract, and say that one part is good and the other bad. The parties entered into it as a whole, and the courts should not try to divide it in order to uphold parts. If one part is void and the rest valid, the contract must be read as an entirety, and the whole declared void. Any other doctrine would result in building up monopolies. Per- sons who enter into such contracts need never expect, no matter what the conduct of the other party, recog- nition in courts of justice.^ See Combination, 8; Happiness; Police, 3; Privi- lege, 1, Special; Railroad; TRAnB-MARK; Trust, 2. MONSTRANS DE DROIT. F. Man- ifestation or plea of right; shovFing title. A method, at common law, of obtaining possession or restitution from the crown of either real or per- sonal property. When the right of the party,, as well as the right of the crown, appears upon record, that party shall have monstrans de droit, which is putting in a claim of right grounded upon facts al- ready acknowledged and established and praying the judgment of the court, whether the king or his sub- ject has the right. The remedy was extended by statutes to almost all cases where a subject based his claim against the crown upon an inquisition of ofiice. When the evidence of the subject's right was not of record, he formerly presented a " petition de droit " in which he set out the facts constituting his claim, whereupon a commission issued to inquire of the truth of the suggestion. Either proceeding could Ohio St. 262 (1868); Memphis v. Memphis Water Co., 5 Heisk. 495 (1871); Crescent City (3as Co. v. New Orleans Gas Co., 27 La. An. 138 (1875). ' Omaha Horse-Railway Co. v. Cable Tramway Co., 30 F. E. 334 (1887), Brewer, Cir. J. Compare Bridge Proprietors v. Hoboken Company, 1 Wall. 116 (1863). = Burlington, Cedar Eapids & Northern E. Co. u. Northwestern Fuel Co., 31 F. R. 657, 659 (1887), Brewer, J. On limitation on grants, see 26 Am. Law Reg. 66- 71 (1887). cases. be prosecuted in the chancery or exchequer courts. The judgment, if against the crown, was that 'of ouster le main or arftoveas jnanus.^ MONTH. At common law, twenty-eight days, unless otherwise expressed : a uniform period, falling into a quarterly division of weeks. 2 Astronomical month. One-twelfth of the period during which the sun passes through the zodiac. Calendar month.. A month known as January, February, March, etc. See Calen- dar, 1. Civil month. The same as solar month. Lunar month. Twenty-eight days, the period of one revolution by the moon. Solar month. One of the months in the Gregorian calendar, of twenty-eight to thirty- one days. Monthly. Once each calendar month; as, a monthly trip.' The common law construed " month " as a lunar month; the general commercial law, as a calendar month. The common-law courts in time adopted the latter rule in construing commercial instruments, while they adhered to the former rule in construing common-law papers.* The term " month " is not technical. When parties have not given it a definition, and there is no legisla- tive provision on the subject, it will be construed in its ordinary sense of calendar month. ^ When parties contract for the performance of an act during the first half of a month of thirty-one days, the act is to be done by noon of the sixteenth day." A letting by parol for a sum certain per month, without anything said about a year, constitutes a lease from month to month. If the tenant holds over for more than a year he remains a tenant from month to month; and one month's notice to him to quit is bufificient.7 "3 Bl. Com. 256-57; 3 Steph. Com. 656-57; Brown v. Commonwealth, 5 Leigh, *516 (1834); Fiott v. Common- wealth, 12 Gratt. 576 (1855). ! 2 Bl. Com. 141. s Pacific Mail S. Co. u. United States, 18 Ct. a. 38 (1883). * See Redmond v. Glover, Dudley, 107 (Ga., 1832); 2 Whart. Contr. § 896, cases; Bish. Contr. § 1339, cases. » Sheets v. Selden, 2 Wall. 190 (1864). See also 2 Dall. 302; 4 id. 143; 3 Cranch, 0. C. 218; 21 Ala. 42; 31 Cal. 173; 5 Conn. 357; 2 Harr., Del., 548; 16 Ind. 275; 8 Me. 163; 17 Md. 260; 2 Mass. 170; 4 id. 460; 19 Pick. 532; 37 Miss. 667; 72 N. C. 146; 29 N. H. 385; 4 Wend. 612; 10 id. 393; 8 Cow. 260; 1 Johns. Cas. 99; 3 Johns. Ch. 74; 15 Johns. 119, 868; 28 N. Y. 444; 6 W. & S. 179; 6 S. & E. 539; 2 Vt. 138; 1 Wash. T. 618. » Grosvenori;. Magill, 37 111. 240 (1865). 1 HoUis V. Bums, 100 Pa. 206 (1882); Taylor, Land. & T. § 57. MONUMENT 687 MORTAL MOinJMENT.i 1. A memorial; a per- manent landmark. Artificial momunent. A mark made by man ; as, a post, or a clearing. Mural monument. A memorial made in a wall. Natural monument. Some natural ob- ject, like a spring, a stream, or a tree. In the determination of monuments, boundaries control courses and distances, because less liable to mistakes. But the rule ceases with the reason for it. If they are inconsistent with the calls for other monu- ments, and it is apparent that they were inadvertently inserted, they will be rejected as false and repugnant." See fiu-ther Boukdary; Hearsay, 3. 2. Something designed to perpetuate the memory of a person or event.^ MOOT.* To debate, make the subject of contention. For exercise in arguing; for the purpose of pleading or trying mock causes or issues : as, a moot court. Moot ; mooted. Debated, undecided : as, a mooted question. The covu-ts will not give an opinion upon a moot or fictitious case." See Fictitious. MORAXi.^ 1. Conformed to rules of right: as, a moral character, q. v. 3. Condemned on ethical considerations; perpetrated or existing in fact: as, moral fraud, g. v. 3. Not of legal sanction; not imposed or enforced by positive law; opposed to legal, immoral: as, a moral — consideration, duty, obligation, qq. v. See also Right, 1. 4. Inhering in the affections, inclinations, and temper : as, moral insanity, q. v. 5. SufiBcient in degree to authorize action ; established by proof, beyond a reasonable doubt : as, moral — certainty, evidence, proof, qq.v. Morals. Manners, conduct, deportment. Offenses against good morals include indecency, ob- scenity, lascivious carriage, exposures of the person, public drunkenness, gambling, and the like.' A contract opposed to good morals, that is, sound » L. Tnonere^ to remind, Advise. a White v. Luning, 93 U. S. 534-25 (1676); Land Co. v. Saunders, 103 id. 316 (1880); Morse v. Rogers, 118 Mass. 678 (1875), cases. > See Mead v. Case, 33 Barb. 204 (1860); Cooke v. Mil- lard, 65 N. Y. 363 (1875). < A. S. -mot, a meeting. » Bartemeyer v. Iowa, 18 Wall. 135 (1873). » L. mos, moT; manner, custom. ' See 2 Bl. Cora. 42 ; 36 N. Y. 238. morality., will not be enforced by the courts; as, an obligation resting upon any immoral consideration, a contract which is an incentive to crime, offensive to decency, or pernicious in its consequences. See Legal, Illegal. As the end of fiuman law is to regulate the behavior of men as members of society, they have no concern with other than social or relative duties. The man who keeps his wickedness to himself, and does not of- fend against the rules of public decency, is out of the reach of such laws. But if he makes his vices public, though they be such as seem principall.y to affect him- self, they then become, by their example, of perni- cious effects to society; and, therefore, it is then the business of human laws to correct them. Public so- briety is a relative duty, enjoined by the laws.* Bee Obscene; Police, 2; Religion; Sdndat. MORE OB LESS. The addition of these or like qualifying words provides against ac- cidental variations arising from slight and unimportant excesses or deficiencies in num- ber, measure, or weight. 2 They qualify a statement of an absolute and defi- nite amount, so that neither party to a contract can avoid it by reason of a deficienc.y or surplus occa- sioned by no fraud or want of good faith, if there is a reasonable approximation to the quantity named. They create " an absolute contract for a specific quan- tity within a reasonable limit." ^ Where land is sold at a fixed price per acre, and the vendor misrepresents the number of acres, the vendee is entitled to an abatement on the purchase price, though the deed contains the phrase "more or less." * Where a person purchased at a judicial sale, held to pay the debts of a decedent, one hundred and twenty- eight acres of land in a tract supposed to contain forty acres, his heirs may recover the excess or en- force payment therefor." See About ; Description, 1 ; Estimate; Lex, De minimis, etc. MOREOVER. See Also. MORET LETTER. See page 631, n. 3. MORMONISM. See Polygamy. MORTAL. See Wound. MORTALITY, BILL OF. 1. An offi- cial record of deaths. ■ 1 Bl. Com. 124; 4 id. 41^2; 2 Steph. Hist. Cr. L. Eng. 76. 2 Brawley v. United States, 96 U. S. 173, 171 (1877), Bradley, J.; Norrington v. Wright, 115 id. 204 (1885). 8 Cabot D. Winsor, 1 Allen, 550 (1861), Bigelow, C. J. See also 1 Pet. C. C. 49; 4 Mas. 418-22, cases; 99 Mass. 232-35, cases; 103 id. 344; 9 Ct. CI. 244; 11 id. 522; 17 Ves. 894; 2 B. & Ad. 106; 19 Ark. 102; 69 Ga. 511; 3 Marsh. J. J. 421; 5 id. 181; 5 Bush, 663; 29 Md. 305; 3 Md Ch 24; 4 id. 96; 24 Miss. 597; 24 Mo. 574; 40 id. 79; 62 id. 405; 4 N. J. E. 212; 14 N. Y. 143; 83 id. 116; 9 S. & E. 80; 13 id. 143; 24 Tex. 845; 59 id. 604; 21 W. Va. 333, 647; 81 Va 183; 12 Rep. 565. •Tyler v. Anderson, 106 Ind. 189-91 (1886), cases: 24 Am. Law Reg. 570 (1885); ib. 574-80, cases. 'MUler V. Craig, 83 Ky. 623 (1886). MORTGAGE 6S8 MOETGAGE 2. The district included in such record ; as, that a person resides within tlie bill of mor- tality.! MORTGAGE.^ A transfer of property as security for a debt.* In most of the States, not now regarded as a conveyance, but as a mere lien or incum- brance upon the property for the payment of a debt or the performance of some other pecuniary obligation.^ In effect, a sale with a power of defeas- ance, which may ultimately end in an abso- lute transfer of the title.5 The conveyance of an estate by way of pledge for the security of debt, and to be- come void on payment of it.6 The legal ownership is vested in the creditor; but, in equity, the mortgagor remains the actual owner, until he is debarred by his own default or by judicial decree. ° In equity, a mortgage is a security — an incident to the debt it secures. In law, as between the parties, it is a transfer of the legal title, leaving in the mortgagor a right to redeem.' Mortgages are not sales, transfers or conveyances, in the usual acceptation of those terms, but securities ^or the payment of money. ^ " A mortgage is but a mere security for the debt, and collateral to it. The debt has an independent exist- ence, and remains notwithstanding a release of the naortgage. The debt is the principal, the mortgage an incident, though not an indispensable incident. An assignment of the debt will, in equity, carry the mort- gaged propertj^ with it.** A mortgage is an estate held in dead pledge: where & man borrows a sum of money and 'grants the lender an estate in fee, on condition that if Jie repays the money on a day mentioned in the deed he may re- enter on the estate; or (the more usual way) the lender will reconvey the estate to him. In case of non-payment, the land is forever dead and gone from the borrower and the lender's estate is no longer con- > See 3 Bl. Com. 369; 1 Greenl. Ev. § 310. ' F. moH, dead; gage, pledge, q. v. 3 Conard v. Atlantic Insiu-ance Co., 1 Pet. 441 Story,' J. May also be used in verbal senses. Brown V. National Bank, 44 Ohio St. 374 (1886). * Terrell v. Allison, 21 Wall. 293 (1874), Eield, J.; Nes- lin V. Wells, 104 U. S. 440 (1881). ' Willamette Manuf . Co. v. Bank of British Colum- hia, 119 U. S. 198 (1886), Miller, J. • 4 Kent, 136; Cowles v. Dickinson, 140 Mass. 876 (1886) ; 49 Conn. 318-19; 2 Dak. 263; 34 La. An. 800; 10 S. C. 868-75. ' Marks v. Eobinson, 82 Ala. 77 (1886), Stone, C. J. 8 Judge V. Connecticut Ins. Co., 182 Mass. 523 (1882), Devens, J. ; Friezen v. AUemania Fire Ins. Co., 30 P. E. S58 (1887). » Hatch V. White, 2 Gall. 154 (1814), Story, J. ditional but absolute. In effect, a mortgage is an es- tate defeasible upon a condition subsequent, i An agreement to pay "a mortgage" refers to the mortgage debt." Mortgagor. He who makes a mortgage.' Mortgagee. He to whom a mortgage is given. The estate transferred is a trust, a qualified estate and security. When the debt is discharged, there is a resulting trust for the mortgagor. It is, therefore, only in a loose and general sense that it is called a " lien; " and then only by way of contrast to an estate absolute, and indefeasible.* As between the mort- gagor and strangers, the mortgage is a lien, a security, not an estate; as between the parties, or their privies, it is a grant which operates to transfer the legal title to the mortgagee, and leaves the mortgagor only the right to redeem. The legal title is in the mortgagee until redemption, and bills to redeem are entertained upon the principle that the mortgagee holds for the mortgagor when the debt has been paid or tendered.^ Under the old theory the mortgage was the convey- ance of a conditional estate, which became absolute upon breach of condition. But the courts of equity, viewing the transaction as one of security and not of purchase, interfered and- gave the mortgagor the right to redeem after a breach and forfeiture, upon dis- charge of the obligation within reasonable time. The mortgagee, after the close of the reasonable period unused, could sue to foreclose this equity of redemp- tion. To this proceeding the holder of the equity was an essential party — his equity being regarded as the real and beneficial estate, subject to transfer and to seizure and sale. Hence, the owner of the property must be heard as to the existence of the obligation alleged, before a eale can be made.^ The obligation and the mortgage are inseparable, the latter being an incident. An assignment of the obligation carries the mortgage with it, while an as- signment of the mortgage alone is a nullity. The mortgage can have no separate existence. When the obligation is discharged, the mortgage expires. This dependent relation is the controlling consideration, and takes a case out of the rule applied to choses in action.' 1 [2 Bl. Com. 157; 1 Washb. R. P. 477. See also 2 Sumn. 533; 17 F. B. 778; 18 id. 391; 9 Cal. 407, 426; 10 Conn. 294; 6Del.326; 4 Fla. 347; 17111. 361; 37Ind. 472; 44Me. 299; 55 id. 355; 6 Gray, 153; 83 Ky. 395; 7 Mich. 527; 6 Neb 389; 11 N. H. 574; 34 N. J. L. 502; 9 N. Y. 213; 23 Wend. 668; 38 Tex. 442; 9 Wis, 508; 12 id. 420. As to essential formalities, see 23 Cent. Law J. 221 (1886). ' Tuttle V. Armstead, 63 Conn. 181 (1885). ' Pronounced as it spelled mortgage-or, -i. e., gej-or. Mortgageor and -er are rare, in law publications. Com- pare Pledgor. < Conard v. Atlantic Ins. Co., 1 Pet, 441 (1828), Story, Justice. ' Brobst V. Brock, 10 Wall. 529 (1870), Strong, J. ; Hutohins v. King, 1 id. 58 (1863); 107 U. S. 392. » Terrell v. Allison, 21 Wall. 292 (1874), Field, J. ' Carpenter v. Longan, 16 Wall. 274 (1872), Swayne, J.; Myel- v. Western Car Co., 102 U. S. 10 (1880). MORTGAGE 689 MORTGAGE A bond being the principal thing containing the ob- ligation, and a mortgage a security to insure the per- formance of that obligation, the terms of the bond control.' The mortgagor may sell fixtures, timber, or min- erals; otherwise, the means of paying the lien would be taken fi-om him, and a purchaser of the products of the realty would have to get the assent of lien cred- itors, to be safe from constructive fraud. ^ It is the land that is pledged, jiot the rents and profits; they belong to the tenant in possession, unless otherwise agreed. As long as the mortgagor is al- lowed to remain in possession, he is entitled to the income of the estate. If the mortgagee wishes to re- ceive the rents he must take means to obtain the pos- session. The mortgagor contracts to pay mterest, not rent.' The mortgagee may sue on the obligation, bring ejectment, or file a bill for foreclosure and sale; ' or, he may, perhaps, enter upon the land." Under a decree of foreclosure, the title of the pur- chaser takes effect by relation to the date of the mort- gage and defeats any subsequent lien ' In a " pledge," the possession passes out of the pledgor; in a mortgage it need not pass. Again, the general property passes by a mortgage; by a pledge. only a special property passes.' See Pledge. A " conditional sale " is a purchase with an agree- ment to resell; in a mortgage a debt still subsists.' See Sale, Conditional. An instrument " once a mortgage is always a mort- gage.'" The interest of the mortgagee is not subject, at common law, to levy and sale.'" A court of equity will not undertake to determine the validity of a title prior to the mortgage, and ad- verse to both mortgagor and mortgagee." Chattel mortgage. A mortgage of per- sonal property. 12 A bill of sale with a defeasance incorpo- rated in it. ' Indiana, &c. B. Co. v. Sprague, 103 U. S. T61 (1880). 2 Angler u Agnew, 98 Pa. 589 (1881), cases. 2 Kountz V. Omaha Hotel Co., 107 U. S. 392 (1882), Bradley, J.; Teal v. Walker, 111 id. 260 (1884); Freed- man's Saving Co. i); Shepherd, 137 id. 502 (1888), cases. As to lien of mortgagee on insurance money, see 38 Alb. Law J. 188-191 (1888), cases. •Oilman v. Illinois, &c. E. Co., 91 U. S. 617(1875), cases. « Brobst V. Brock, 10 Wall. 530 (1870). « Osterberg v. Union Trust Co., 93 U. S. 428 (1876). ' Himtington v. Mather, 2 Barb. 543 (1848); Chamber- lain V. Martin, 43 id. 610 (1865). 'Slowey V. McMurray, 27 Mo. 116 (1858); Flagg v. Mann, 2 Sumn. 527 (1837), Mortgages as choses in ac- tions, 37 Alb. Law J. 4446 (1888), cases. , « Dean v. Nelson, 10 Wall. 171 (1869). '» Morris v. Barker, 82 Ala. 274-75 (1886), cases. "Hefner v. Northwestern Mut. Life Ins. Co., 123 U. S. 751 (1887), cases. Gray, J. On the assumption of mortgages, see 18 Cent. Law J. 23-?r (1884), cases. " 2 Kent, 516. (44) A seal is not necessary. If the transaction rests on good consideration and is h(ma fide, the mortgagor may retain possession, — in obedience to the wants of trade.' The nature of the agreement must be such that by the mere non-performance of the condition by the mortgagor the title will be transferred to the mort- gagee. In a " pledge," possession only is transferred.'* Common mortgage. A mortgage that, under common-law rules, cannot be fore- closed before the lapse of a year and a day after breach of the condition. Sharp or tight m.ortgage. Allows no days of grace, or a limited number (as, thirty, sixty, or ninety days), after a default in paying in- terest, principal, premiums of insurance, taxes, etc., before foreclosure proceedings may be begun. These distinctions may obtain in localities only, and be merely colloquial. Equitable m.ortgage. 1. A mortgage of an equitable interest. 2. The lien of a vendor of realty for unpaid purchase-money, q. V. 3. A lien upon realty, recognized in a court of equity, as security for money loaned or due ; as, in the case of a deposit of title- deeds with a creditor. Legal mortgage. A conveyance expressly intended to be a mortgage. It may be laid down as a rule, subject to few excep- tions, that wherever a conveyance, an assignment, or other instrument transferring an estate, is originally intended between the parties as a security for money, or for any other incumbrance, whether this intention appears from the same instrument or from any other, it is always considered in equity as a. mortgage, and, consequently, is redeemable upon the performance of the conditions or stipulations thereof .^ A court of equity will treat a deed, absolute in form, as a mortgage, when it is executed as security for a loan of money. The coiu't looks beyond the terms of the instrument to the real transaction, and any evi- dence, oral or written, tending to show this is admis- sible. While the written language used cannot be qualified or varied from its natural import, inquiry into the object of the parties in executing the instru- 1 Gibson v. Warden, 14 WaU. 247 (1871), Swayne, J.; Eobinson v. Elliott, 22 id. 523 (1874); 8 W. Va. 40. "Parshall v. Eggart, 52 Barb. 871 (1868); Wright v. Boss, 36 Cal. 438, 441 (1868); Evans v. Darlington, 5 Blackf . 322 (1840); 4 Kent, 138. As to description of property, see 24 Cent. Law J. 339 (1887), cases. See also 13 Ark. 112; 36 Cal. 428; 8 111. 463; 16 Ind. 390; 97 Mass. 452, 489; 7 Mich. 47; 6 Ired. L. 319; 9 N. T. 217; 54 id. 23; 8 Johns. 98; 23 Wend. 668; Penn. Act 28 April, 1887: P. L. 32. '2 Story, Eq. § 1018; 2 Washb. R. P. 479, cases; 4 Kent, 143; 3 Pars. Contr. 280. MORTGAGE 690 MOETUUS ment is always permissible. This serves to prevent fraud or oppression, and to promote justice.^ First mortgage. Implies a lien prior to all other liens. Second mortgage. Is without intervening liens between it and the first mortgage.^ Mortgage-bonds. As individual holders of mort- gage-bonds issued by a railroad corporation, and se cured by the same mortgage, have mutual contract interests and relations, there is nothing inequitable, when the power exists, in subjecting a small minority to the will of a decided majority, in re-organizing the mortgage indebtedness when the corporation is em- barrassed.3 See Railroad-MoHgage. Piirchase-m.oney m.ortgage. A mort- gage upon realty given to secure a balance due upon a conveyance thereof. Favored over mortgages for loans. See Purchase- money. Railroad-mortgage. Railroad-mortgages con- stitute a peculiar class of securities. A trustee is appointed who represents the mortgagees. In t-he exe- cution of his trust he may exercise Ms discretion within the scope of his powers. He is to follow the voice of the majority of the bondholders', they acting in good faith, and their request being consistent with the nat- ure of the trust. He represents them in legal proceed- ings, and whatever binds him binds them.* The trustees of a railroad-mortgage having obtained a decree for possession of the road are also entitled, there being no debts for current expenses, to receive profits earned since the suit was begun, the effect of the decree being to establish their right of possession when suit was entered."^ , See Advances, Future; Condition; Defeasance; Emblements; Fixture; Foreclosure, 1; Lien, Equi- ' Peugh V. Davis, 96 U. S. 336 (1877), cases. Field, J. ; Teal V. Walker, 111 id. 246 (1884), cases; Horbach v. Hill, lis id. 144 (1884); Coyle v. Davis, 116 id 108 (1885,); ■ Jackson v. Lawrence, 117 id. 681 (1886), cases; Cadman V. Peter, 118 id. 80 (1886)J cases; Husheon v. Husheon^ 71 Cal. 411-413 (1886), cases; Kemper v. Campbell, 44 ^Ohio St. 210 (1886); 1 Cranch, 218; 1 How. 118; 38 Ala. 643; 36 Me. 116; 21 Mo. 325; 38 N. H. 22; 13 N. J. L. 244; 2 N. M. 318; 7 Johns. Ch. 40; 20 Ohio, 464; 64 Pa. 319; 100 id. 18, 113; 6 Humph. 99; 59 Tex. 203, 425; 76 Va. 668; White & Tud. L C, Am. ed., 241, cases. ' 2 Green's Appeal, 97 Pa. 347-48 (1881); 79 id. 168; Min- nesota, cSc. E. Co. V. Sibley, 2 Minn. 24 (1858); Clark v. Edgar, 12 Mo. Ap. 353 (1882). s Canada Southern E. Co. ■«. Gebhard, 109 U. S. 535 '(1883). « Shaw V. Little Eock, &c. E. Co., 100 U. S. 611-12 (1879), Waite, C. J. : 121 id. 86. See also Fosdick v. Schall, 99 id. 232 (1878) ; Bumham v. fiowen. 111 id. 776 (1884) ; Woodworth v. Blair. 112 id. 8 (1884). 5 Dow '0. Memphis, &c. E. Co. 124 U.. S. 654 (1888), Waite, C. J.; Sage v. Memphis, &c. R. Co., 125 id. 361, 377 (1888), As to claims for labor and materials, over the lien of railroad-mortgages, see 21 (ient. Law J, 126- 29 (1886), oases; as to foreclosure of, 30 Am. Law Rev. 867-88 (1886), cases. table; Marshal, 2, Liens; Pledge; Eeceivee, 2; Rec- ord; Redeem; Res, In rem; Tabula; Tacking; Terre- tenant; Under and Subject. MOETMAIW.' Originally, a purchase of land by any corporation, sole or aggregate, ecclesiastical or temporal. But these pur- chases having been chiefly made by religious houses, in consequence of which the lands became perpetually inherent in one "dead hand, " occasioned the appellation to be ap- plied to such alienations alone. ^ The members of ecclesiastical bodies were at that time reckoned as V dead " in law. . The statutes in England which prohibit corporations from taking lands by devise, even for chaiities, except in special cases, are called the Statutes of Mortmain, w,, 2, Nulla. If. D. Northern district. See D, 3. N. E. 1. Non est inventus, he has not been found. See Find, 3. N. P. Neither party ; nisi prius; notary public, qq. v. If. E. New reports: non-resident; not reported. N. S. New series. WAKED. 1. Nude; uncovered. Publishing photographs of girls bare to the waist will not support an indictment for publishing obscene pictures of " naked " girls,' 2. Incomplete, wanting in the quality that would invest with full power. Naked authority. The authority of an agent who acts wholly for the benefit of his principal. See Authority, 1. Naked confession. A confession of guilt not induced by promise of a reward or fear of a threat. See Confession, 3. Naked contract. An agreement without consideration. See Obligation, 1 ; Pact. Naked deposit. A bailment without re- ward. See Deposit, 3. Naked trust. A passive or dry trust, q. v. NAM. L. For; because. Sometimes used to introduce maxims. NAME. 1. A designation by which a person, natural or artificial, is known. It is merely a custom for males to take the name of their parents, and not obligatory,^ When two names have the same original, or one is an abbreviation or corruption of the other, but-bothiu common usage are the same, the use of one name for the other is not a material misnomer, ^ When a person is known equally well by two names he may be sued or indicted by either name, or by both,' When a nickname is used, evidence will be received as to the true name. Such a name is but an alias for the true Jiame.' ' Commonwealth v. Dejardin, 120 Mass. 47 (1878), 2 Petition of Spook, 2 Hilt. 568 (1859). = Gordon v. Holiday, 1 Wash. 289 (1805); 13 Mo. 92. ' 'Eagleston v. Son, 5 Robt. 640 (1866); Kennedy v. People, 39 N. Y. 250 (1868). ' Knapp V. Fuller, 55 Vt. 313 (1883); President, &c, v. Norwood, 1 Busb, Eq, 67 (1852) NAME 693 NATION The rule that the middle name is really no part of one's name has not been extended to the Christian name; on the contrary, the law presumes that every person has a Christian name. Where there is a mis- take in the name used in the writ, and the writ is yet served on the right person, he is thereby informed that he is the person meant, and he should pleEid the misnomer in abatement. A non-resident, to whom a wrong name is given in an order of publication, re- ceives no legal notice.* The law recognizes only one Christian name. There are cases countenancing, if not establishing, that the omission of a middle letter is not a misnomer or vari- ance; if so, the middle letter is immaterial, and a wrong letter may be disregarded." Signing by initials satisfies the statute of frauds. ^ And a legatee may be designated by initials.* The effect of designating a candidate for election by his initials has been variously decided.^ ■'Jr." or "Sr." is not part of a name." Nor is *' Mrs." a part.' When father and son have the same name, the use of the name presumptively' designates the father.* Identity of name is prvma facie evidence of identity of person.* As to names having the same sound, see Ideu, Sonans. At common law, a man may lawfully change his name. He is bound by any contract into which he may enter in his adopted or reputed name, and by his recognized name he may sue and be sued.^" As to the use of a name as part of a trade-mark, see that title. 3. A man's name, as the synonym of his power and personality, is often put for the man himself. Thus, an agent is said to buy " in the name " of his principal when he buys 1 Skelton v. Sackett, 91 Mo. 379-80 (1886); 37 id. 301. 'Keene v. Meade, 3 Pet. *" C1830), cases; Games v. Stiles, 14 id. Zil (1840); Commonwealth v. O'Heam, 132 Mass. 553 (1882); State v. Black, 12 Mo. Ap. 534 (1882), cases; State v. Teeny, 13 R. I. 623 (1S82), See also 32 Cent. Law J. 487 (1886), cases; 17 Ala. 179; 39 Dl. 457; 52Ind. 347; 20 Iowa, 98; 10 Miss. 391; 28 N. H. 561; 14 Barb. 261; 5 Johns. 84; 19 Ohio, 423; 4 Watts, 329; 7W. & S. 406; 14 Tex. 402; 28 id. 772; 26 Vt. 599. > Addison, Contr. 46, n; 1 Denio, 471. * Abbot V. Massie, 3 Ves. *148 (1796). See also Minor V. State, C3 Ga. 321 (1879). 'Cooley, Const. Lim. 766; 38 Me. 559; 16 Mich. 283; 8 Cow. 102; 4 Wis. 429. •Commonwealth v. Perkins, 1 Pick. 338 '(1823); 8 Conn. 280; 23 Me. 171; 9 N. H. 519. ' Elberson v. Richards, 42 N. J. L. 70 (1880). 8 Brown v. Benight, 3 Blackf. 39 (1832). • Stebbins v. Duncan, 103 U. S. 47 (1832), cases; State V. Kelsoe, 76 Mo. 507 (1882); 25 Pa. 133; 68 id. 200; 53 Mi. 427. '» Linton u. First Nat. Bank of Kittannlng, 10 F. R. 897(1882), cases; Commonwealth v. Trainor, 123 Mass. 414 (1877). See generally 32 Cent. Law J. 220, 244 (1886), for him, declaring his agency. A man in- vests " in his own name " (as executor) when he invests openly for himself, though he only receives evidence (bonds) of the invest- ment.! See Addition, 3 ; Alias, 1 ; Fohoery ; Mis- nomer ; Signature. Compare Nomen. Namely. See "Wit. NABCOTICS. See undei- Alcohol. NAKBATIO. A statement of the facts constituting the ground of action in a cause ; a declaration, q. v. Abbreviated narr., nar. Narrator. One who files a declaration. NASCITUE.ITS. See Natus. NATION. Implies a body of men united together to procure their mutual safety and advantage by means of their union. . . ■' State " and " nation " frequently import the same thing.2 See State, 3. But " nation " is more nearly synonymous ^-ith **pe.ople." While a " state " may embrace different nations or peoples, a nation is sometimes so divided politically as to constitute several states.^ National. Belonging to, affecting, or per- taining to, a particular nation: as, national domicil, the national government. Often op- posed to State, and nearly synonymous with Federal, q. v. : as, in national bank (q. v.), or national banking association. The word national was excluded from the Constitu- tion because it might seem to present the idea of the union of the people without bringing into view that the one republic was formed out of many states. Toward foreign powers the country presented itself as one nation.* No bank or banker other than a national banking association, and except a savings bank authorized by Congress, may use the word " national " as a portion of its title." International. Concerning, or existing between, distinct nations or independent sovereignties: as, international — comity, commerce, copyright, extradition, qq. v. La'w of nations; international law. That law which regulates the conduct and mutual intercourse of independent states ' Carpenter v. Carpenter, 12 R. I. 548 (1880), Durfee, Chief Justice. ' Cherokee Nation v. Georgia, 5 Pet, 52 (1881), Thomp- son, J. ; Vattel, Law of Nations, § 1 ; Texas v. White, 7 Wall. 720 (1808). ' Cooley, Princ. Const. Law, 20, Const. Lim. 1 ; 1 Story, Const. § 207; Langford v. Monteith, 1 Idaho, 617 (1876). '2 Bancroft, Const. 208; ib. abr. ed. 358 (1884). " E. S. § 6813; Act 3 March, 1873. NATION NATURALIZE with each other, by reason and natural jus- tioe.i A system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world, in order to decide disputes, regulate ceremonies and civilities, and insure the ob- ■ servance of justice and good faith in their mutual in- tercourse. This general law is f oimded upon the prin- ciple that different nations ought in time of peace to do one another all the good they can, and in time of war as little harm as possible, without prejudice to their own real interests. And, as none of these states will allow a superiority in the other, no one can dic- tate or prescribe the rules of this law to the rest; but such rules must necessarily result from those princi- ples of natural justice in whi(ih all the learned of every nation agree; or they depend upon mutual com- pacts or treaties, in the construction of which there is no judge to resort to but the law of nature and rea- son,— the only law in which all the parties are equally conversant and to which they are equally subject.^ International law is' part of the universal law of reason, justice, and conscience. ^ The principal of- fenses against the law of nations are: violations of safe- conducts or passports; infringement of the rights of ambassadors; piracy; ^ injuring a state at peace with the United States by exercising a commission to serve a hostile state, arming a vessel to cruise for such hos- tile state, assisting its armed vessel or setting afloat a mihtary expedition for it.^ The nation injured by the subject of another first demands satisfaction and that justice be done on the offender by the state to which he belongs; and if that be refused, the sovereign then avows himself an abettor of his subject's crime." Public international law comprises the rights and duties of sovereign states toward each other. Private international law com- prises the rights and duties of the subjects of different states toward each other — refers to the power of the state to act upon the per- sons and property within the limits of its own territoryj-' The rules of private international law are: 1. Every nation possesses an exclusive sovereignty and juris- diction within its own territory — as to all property, persons, and contracts. 2. No state can, by its laws, directly affect or bind property out of its territory, or persons not resident therein. 3. Whatever force and obligation the laws of one country have in another depends solely upon the laws of the latter, that is, upon the comity exercised by it.' See CoMiTy; Disoovbbt, 1, Eight of; Indian; Mer- chant, Law; Poblioist; Theaty; Wab. ' 1 Bl. Com. xxiv, 43. 2 4 Bl. Com. 67-68. 3 Wilson V. McNamee, 103 U. S. 674 (1880). See Hogs- heads of Sugar V. Boyle, 9 Cranch, 198 (1815); 1 Op. Att.-Gen. 27; 7 id. 18, 229; 37 Miss. 230. « Wharton, Cr. I;aw, 130. ' See. Story, Confl. Laws, §§ 18-23; Hoyt v. Sprague, 103 U. S. 630 (1880). NATIVE. See Citizen. NATURA. L. Disposition ; nature. See Animal. NATURAL; NATURE. Are employed with little or no deviation from the vernacu- lar meaning: as, in natural — affection or love, allegiance, birth, boundary, child, day, death, duty or obligation, equity, fruits, guardian, law, life, liberty, monument, obli- gation, person, presumption, right, qq. v. With some of these terms, opposed to arti- ficial, with others to civil, and political. See also Act, Of God; Alluvion; Cause, 1. Naturally. In the usual course of things ; as, in the rule, that the damages recoverable for breach of a contract are such as natui-ally arise. 1 Ifature of the transaction. " Without knowl- edge of the nature of the transaction " may be a very misleading expression. =* NATURALIZE. To make an alien a citi- zen or as if native-born. Naturalization. The act or proceeding by which an alien becomes a citizen.8 "The Congress shall have Power ,. . To estab- lish an uniform Rule of Naturalization." * Before the adoption of the Constitution, each State exercised this right.^ The provision quoted vests the power exclusively in the Federal government. A State may make a person its own citizen. = The oiiginal status of an alien is presumed to con- tinue until the contrary is shown. Naturalization is strictly a judicial act. The action of the court must be recorded as its judgment; if valid, it is final. In the absence of proof of its loss or destruction, the record can be proved only by itself, or by an extract. Naturalization cannot be proved by parol.^ The provisions of the Revised Statutes, Title XXX, respecting naturalization, areas follows: " Sec. 2165. An alien may be admitted to become a citizen of the United States in the following manner, and not otherwise: " First. He shall declare on oath, before a circuit or district court of the United States, or a district or supreme court of the Territories, or a court of record of any of the States having common-law jurisdiction, and a seal and a clerk, two years, at least, prior to his admission, that it is bona fide his intention to become a citizen of the United States, and to renounce forever 1 Mitchell V. Clarke, 71 Cal. 164 (1886). " King V. Ward, 74 Me. 3B1 (1888). 3 LI Bl. Com. 374; 9 Wheat. 827; 9 Op. Att.-Gen. 359. * Constitution, Art. I, sec. 8, cl. 4. ^Eee R. S. §§ 2165-74, [393. 6424-29; 2 Wheat. 339; 7 How. 656; 19 id. 393, 419; 4 Dill. 4S6; 6 Cal. 30O; 36 id. 658; 66 How. Pr. 5. » Charles Green's Son v. Salas, 31 F. R. 106 (1887), Speer, J. On citizenship by naturalization, see 18 Am. Law Reg. E93-612, 666-76 (1879), cases. NATURALIZE 697 NATURALIZE all allegiance and fidelity to any foreign prince, po- tentate, state, or sovereignty, and, particularly, by name, to the prince, potentate, state, or sovereignty of whicli the alien may be at the time a citizen or sub- ject." ' " Second. He shall, at the time of his application to be admitted, declare, on oath, before some one of the courts above specified, that he will support the Constitution of the United States, and that he abso- lutely and entirely renounces and abjures all alle- giance and fidelity to every foreign prince, potent- ate, state, or sovereignty; and, particularly, by name, to the prince, potentate, state, or sovereignty of which he was before a citizen or subject: which proceedings shall be recorded by the clerl: of the court." * " Third. It shall be made to appear to the satis- faction of the court admitting such alien that he has resided within the United States five years at least, and within the State or Territory where such court is at the time held, one year at least; and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitu- tion of the United States, and well disposed to the good order and happiness of the same; but the oath of the applicant shall in no case be allowed to prove his residence." * " Fourth. In case the alien applying to be admit- ted to Citizerfship has borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, he shall. In addition to the above requisites, make an express renunciation of his title or order of nobility in the court to which his application is made, and his renunciation shall be recorded in the court." ' Fifth. Any alien residing within the United States before January 29, 1795, may be admitted as a citizen on due proof made to any court specified that he has resided two years within the United States, and one year, immediately preceding his application, within the State or Territory where such court is held, and on his declaring on oath that he will support the Con- stitution, and that he renounces allegiance, etc., as particularized in the sections preceding. » Sixth. Any ahen who was residing within the United States between June 18, 1798, and June 18, 1812, and who has continued so to reside, may be admitted as a citizen without previous declaration of intention to become such; but whenever any person, without a certificate of such declaration, makes application to be admitted, the court must be satisfied that he was a resident before June 18, 1812, and has continued so to reside; and his residence for five years immediately preceding his application must be proved by the oath of citizens; and such residence shall be set forth, with the names of such citizens, in the record of the court admitting the applicant.^ The declaration of intention, required by section 2165, may be made before the clerk of any of the courts therein named; and all declarations as heretofore May, 1824, 1 Feb. 1876. .' Acts 14 April, 1808, 2 Act 14 April, 1802. 3 -Acts 22 March, 1816, 24 May, 1823 made are as valid as if made before one of said courts.^ '*Sec. 2166. Any alien, of the age of twenty-one years and upward, who has enlisted, or may enlist, in the armies of the United States, either the regular or volunteer forces, and has been, or may be hereafter, honorably discharged, shall be admitted to become a citizen of the United States, upon his petition, without any previous declaration of his intention to become such; and he shall not be required to prove more than one year's residence within the United States previous to his application to become such citizen; and the court admitting such alien shall, in addition to such proofs of residence and good moral character as are now provided by law, be satisfied by competent proof of such person's having been honorably discharged from the service of the United States." " " Sec. 2167. Any alien, being under the age of twenty- one years, who has resided in the United States three years next preceding his arriving at age, and who has continued to reside therein to the time he may make application to be admitted a citizen thereof, may, after he arrives at the age of twenty -one years, and after he has resided five years within the United States, includ- ing the three years of his minority, be admitted a citi- zen of the United States without having made the declaration required in the first condition of section 2165; but such alien shall make the declaration re- quired therein at the time of his admission; and shall further declare, on oath, and prove to the satisfaction of the com-t, that, for two years next preceding, it has been his bona fide intention to become a citizen of the United States; and he shall in all other respects com- ply with the laws in regard to naturalization." ^ "Sec. 2168. When any alien, who has complied with the first condition specified in section 2163, dies before he is actually naturalized, the Avidow and chil- dren of such alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such, upon taking the oaths prescribed by law." * " Sec. 2169. The provisions of this title shall apply to aliens [being free white persons, and to aliens] of African nativity and to persons of African descent." * " Sec. 2170. No alien shall be admitted to become a citizen who has not for the continued term of five years next preceding his admission resided within the United States." ' " Sec. 2171. No alien who is a native citizen or sub- ject, or a denizen of any country, state, or sovereignty with which the United States are at war, at the time of his application, shall be then admitted to become a citizen of the United States; but persons resident within the United States " June 18, 1812, " who had before that day made a declaration, according to law, of their intention to become a citizen or who were on that day entitled to become citizens without making ' Act 1 Feb. 1676. = Act 17 July, 1S03. s Act 26 May, 1824. • Act 26 March, 1804. s Acts 14 July, 1870, 18 Feb. 1875. •Act 3 March, 1813. . NATUS NAVIGABLE such, declaration, may be admitted to become citizens thereof, notwithstanding they were alien enemies at the time and in the manner' prescribed by the laws heretofore passed on that subject. . " i " Sec. 2172. The children of persons who have been duly naturalized under any law of the United States, or who, previous to the passing of any law on that subject, by the government of the United States, may have become citizens of any one of the States, under the laws thereof, being under the age of twenty-one years at the time of the naturalization of theii" parents, shall, if dwelling in the United States, be considered as citizens thereof: and the children of persons who now are, or have been, citizens of the United States, shall, though born out of the limits and jurisdiction of the Ujiited States, be considered as citizens thereof." ' "Sec. 3174. Every seaman, being a foreigner, who declares his intention of becopiing a citizen of the United States in any competent court, and shall have served three years on board of a merchant-vessel of the United States subsequent to th^ date of such decla- ration, may, on his application to any competent court, and the production of his certificate of dis- charge and good conduct during that time, together with the certificate of his declaration of intention to become a citizen, be admitted a citizen of the United States ; and every seaman, being a foreigner, shall, after his declaration of intention to become a citizen of the United States, and after he shall have served such three years, be deemed a citizen of the United States for the purpose of manning and serving on board any jnerchant-vessel of the United States, anything to the contrary in any act of Congress not- withstanding; but such seaman shall, for all purposes of protection as an American citizen, be deemed such, after the filing of his declaration of intention to be- come such citizen." ^ See Alien, 1; Chinese; Citizen; Indian. NATUS. L. Born; already bom ; alive. Agnati. Persons related through a male as their father — ad eum nati. Cognati. Persons related through a woman as their mother. Anglicised "agnates" and "cog- nates." In Roman law, the agnate family consisted of such cognates (blood-relations) as could trace their lineage through males alone (father, grandfather, etc.) up to a common male ancestor, whose family-name they all bore, and to whose patHa potestas they would have been subject had he lived to their time. But persons brought into a family by adoption became agnates; and those who passed out of it either by adoption or emancipation ceased to be agnates (though still cog- nates).* Ante natus. Born before ; a child born before another person, or prior to a particu- lar event. Post natus. Born after ; after- born. 1 Acts 14 April, 1802, 30 July, 1813. 2Act 14 April, 1803. 8 Act 7 June, 1872. « Hadley, Roman Law, Lect. VI, p. 129 ; 2 Bl. Com. 235. Nasciturus. Yet to be born j unborn. NAUTICAL. See Assessor, 1. NAVAL, See Graduate ; Navy. NAVIGrABLB.i Refers to waters which afford a channel for commerce or intercourse. Opposed, non-navigable, unnavigable. Capable of being used for purposes of navi- gation, of trade and travel, in the ordinary modes, without reference to the extent or manner of use; sufficiently wide, deep, and free from obstructions to be useful for pur- poses of trade and transportation. 2 *• Navigable waters '' has three distinct meanings: 1, as synonymous with "tide- waters," being waters, salt or fresh, wherever the ebb and flow of the tide from the sea is felt; 2, as limited to tide-waters capable of being navigated for some useful purpose; 3, as including all waters, whether within or beyond the ebb and flo iv of the tide, which can be used for navigation 3 a river, navigable in its general character, does not change its legal characteristics by a disturbance which, at a point, breaks the continuity of actual navi- gation.* Congress has power " to regulate commerce," and "commerce" includes navigation. But the power does not extend to such small creeks and coves as are not navigable for any general purpose useful to com- mercial business.^ See further Commerce. The admiralty and maritime jurisdiction granted to the Federal government by the Constitution extends to all navigable lakes and rivers, where commerce is carried on between States or with a foreign nation.' See Lakes. With us the ebb and flow of the tide is no test, as at common law and in England. There, no waters are navigable to any considerable extent which are not subject to the tide; from which circumstance tide- water and navigable water there signify substantially the same thing. Some of our rivers are navigable hundreds of miles above tide-limits. The test with us is navigable capacity. Those are public navigable rivers in law which are navigable in fact; when tiiey are susceptible of being used, in their ordinary condi- tion, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they con- stitute navigable waters of the United States within the meaniflg of the acts of Congress, in contradistinc- 1 L. navigabilis: navis, a ship; -igare, to drive, a Sullivan v. Spotswood, 82 Ala. 16&-6S Cl886j, cases. 8 Reservation at Niagara, 16 Abb. N. Cas. 159 (1884). * Commonwealth* v. Vincent, 108 Mass. 447 (1871), Gray, J. * Groton v. Hurlburt, 22 Conn. 183-86 (1852); Gibbons V. Ogden, 9 "Wheat. 186 (1824). " The Genesee Chief, 12 How. 443 (1851); The Hine v. Trevor, 4 Wall. 561 (1866). NAVIGABLE 699 NE tion to the navigable -waters of the States, when they form, in their ordinary condition by themselves, or by uniting with other waters, a continued highwaj- over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water ' The capacity of use by the public for purposes of transportation and commerce affords the true crite- rion. If the river be capable in its natural state of be- ing used for purposes of commerce, no matter in what mode the commerce may be copducted, It is navigable in fact and becomes in law a public river or highway. The essential point is whether the river is such that it affords a channel for useful commerce.* The navigable waters of the United States include such as are navigable in fact, and which, by them- selves or their connections, form a continuous channel for commerce with foreign countries or among the States.' In the absence of -legislation by Congress, a State may authorise a navigable stream within its limits to be obstructed by a bridge or highway.* If, in the opinion of a State, its commerce will be benefited by improving a navigable stream within its borders, it may authorize the improvement, although increased inconvenience and expense may thereby at- tend the business of individuals. <^ That the navigable streams shall be highways with- out any tax, impost, or duty, has reference to naviga- tion in its natural state. The constitutional provision did not contemplate that such navigation might not be improved by artificial means, and that for the ex- pense a State should not exact reasonable tolls.' There is no common law of the United States which prohibits obstructions and nuisances in navigable rivers, unless it be the maritime law; but no precedent exists for the enforcement of such law. There must be a direct statute of the United States in order to bring within the scope of its laws, as administered by courts of law and equity, obstructions in navigable streams within the States. Such obstructions are, or may be, offenses against the laws of the State, but not against Federal laws which do not exist. On the ground that the litigant parties are citizens of difCer- 1 The Daniel Ball, 10 Wall. 563 (1870), Field, J.; Esca- naba Co. v. Chicago, 107 U. S. 68a (1882). " The Montello, 80 Wall. 441^43 (1874), cases, Davis, J. See also Little Eock, &c. E. Co. v. Brooks, 39 Arli. 409 (1882). » Miller v. Mayor of New York, 109 U. S. 385, 395 (1883), Field, J. « Card well ti. American Bridge Co., 113 U. S. 205, 308-12 (1885), cases. See generally Shaw «. Oswego Iron Co., lOOreg. 373 (1832); Smith v. City of Roches- ter, 93 N. Y. 479 (1883); 93 id. 156-56; 18 Blatch. 212; 7 Saw. 137, 141; 16 Op. Att.-Gten. 333; 33 Ala. 593; 6 Cal. 443; 20 Conn. 217; 5 Ind. 8; 28 id. 270; 3 Iowa, 1; 50 Me. 479; 21 Pick. 344; 8 Mich. .320; ION. J. E. 211; 35 N. Y. 459; 23 Ohio S.t. 533; 42 Pa. 219. »Huse V. Glover, 119 U. S. 543 (1886). "Sands v. Manistee River Imp. Co., 123 U. S. 896 (1887); Huse v. Glover, 119 id. 548 (1886). ent States, the circuit courts may take jurisdiction. ' See Bbidoe. Navigation. The science or business of conducting vessels or materials 6ver navi- gable watei-s.'' Moving an unfinished vessel about in the course of her construction is not "navigation.' Inland navigation. Navigation carried on within a. country, on its rivers or other bod- ies of water, without reference to their mag- nitude, if such bodies are not so connected with the ocean, in the commerce of the world, as to be considered a part of the ocean or highway of nations.* Rules of navigation. Regulations designed to prevent collisions between vessels. I A leading system is that promulgated by the corpo- ration of the Trinity House, October 30, 1840' but each commercial country has its own rules, made up of principles of the general maritime law, and of special enactments. Important legislation by Congress went into effect September 1, 1864 ' Sailing rules and regulations prescribed by law fur- nish the paramount rule of decision, when they are applicable; but where a disputed question arises, with regard to which neither they nor the rules of the Su- preme Court regulal^ing the practice in admiralty have made provision, evidence of experts as to the general usage is admissible.' See Admihalty; Puepresture; Regular; Rhodiai;; Sea; Span. NAVY. See Graduate; Judge- advo- cate; Martiai,,; War; Warrant, 3. " The Congress shall have Power . To provide and maintain a Navy; To make Rules for the Govern- ment and regulation of the . . naval Forces." ' This power authorizes the United States to buy or build vessels of war, to establish a naval academy, to punish desertion and other crimes, and to make other needful rules for the government of persons enlisted in the naval force, and the regulation of all affairs connected with naval warfare.^ NAYS. See Yeas. NE. L.. and F. Not; lest. Ne exeat. L. That he does not depart the jurisdiction. See further Exieb, Ne exeat. ' Willamette Iron Bridge Co. v. Hatch, 135 U. S. 8 (1888), cases, Bradley, J. 2 See Gerrish v. Brown, 51 Me. 263 (1863); Harrigan v. Connecticut kiver Lumber Co., 129 Mass. 584 (1880). ' The Joshua Leviness, 9 Bened. 339 (1878). • [American Transportation Co. v. Moore, 5 Mich. 400 (1858), Manning, J.; 24 How. 37 (1860); 26 F. E. 772-73. ' 13 St. L. 5-!; The Scotia, 14 Wall. 185-86 (1871); 1 W. Eob. Adm. 488. « The City of Washington, 92 U. S. 39 (1875). ' Constitution, Art. I, sec. 8, cl. 13-14. "See Dynes v. Hoover, 20 How, 78-79 (1857). NEAR 700 KECESSAEIES Ne Tinques aeoouple. F. Never joined — in lawful matrimony. Denies, in an action for dower, the validity of the mar- riage. Ne unques executor. F. Never exec- utor. A plea denying that a plaintiff is a lawful executor. K"e varietur. L. Let it not be changed. Words written upon a bill or note for iden- tification. I IfSAIl. As applied to space, has no pre- cise meaning ; is a relative term, depending for its signification on the subject-matter, and the circumstances under wliich it is to be applied to surrounding objects. 2, 3 A statute which authorizes commissioners to build bridges over streams '* near county or town lines," empowers those officials to determine the location of a particular bridge, as, within a mile or other reason- able distance from a town line, regai'd being had to ex- pense, accessibility, etc.s The location of a railroad twenty-five himdred feet from another road may be " near " the latter road.'' A statute which forbids liquor-selling "near" an election ground prohibits a sale within a mile and a quarter of such ground.* Between the shoulder blades is " near " the shoul- ders.^ An allegation of a failure to keep a road in repair " near the house of K.," whereby the plaintiff was in- jured, does not describe the spot with sufficient cer- tainty."* Compare Adjacent; On; Vicinity. As near as. An affidavit that the-defendant is in-, debted to the plaintiff in an amount specified "as near as " the plaintiff can determine, is insufficient.' ISTearest. The " three nearest towns " not inter- ested in taking ,land, may refer to the situation of the towns to each other, not to the tract to be viewed." Provision that a cause shall be removed to some ad- joining county, the court-house of which is "nearest the court-house of the county in which tjae suit is pending," does not necessarily mean the nearest by geometrical measurement, but the most convenient of access and nearest to the usually traveled route." See Practicable. ' See firabston v. Gibson, 9 How. 278 (1850); Fleckner V. United States Bank, 8 Wheat. 348 (1823). 2 [Fall Eiver Iron V?orks v. Old Colony, &c. R. Co., 6 Allen, 227(1862), Bigelow, C.-J.; Barrett v. County Court, 44 Mo. 202 (1869; ; Kirkbride v. Lafayette County, IDS U. S. 211 (1883); 1 Gray, 367; 39 N. J. E. 435. 3Insley «. Shepard, 31 F. B. 872 (1887), Blodgett, J.; 111. Act. 28 March, 1883, § 106. ' Manis v. State, 3 Heisk. 315 (1871). ° Fassett v. Eoxbury, 55 Vt. 654 (1883). ^ Kellogg V. Inhabitants of Northampton, 4 Gray, 67 (1855). ' Hawes v. Clement, 64 Wis. 152 (1885). ' Reed v. Hanover Branch R. Co., 105 Mass. 301 (1870). • Shaw V. Cade, 64 Tex. 307 (1881). NEATr "Beeves" may include neat stock, but all " neat st6ck " are not beeves.' IirECESSAEIES.2 Refers to things es- . sential or proper for the support of a wife, infant, or ward, and to the maintenance of a vessel. 1. In the rule as to supplying a wife or an infant, and recovering from the husband, parent), or guardian, " necessaries " is not used in its strictest sense, nor limited to that which is required to sustain life; Things proper and suitable to each individual, according to his circumstances and condition in life, are necessaries, if not supplied from some other source.' It is not desirable to attempt to prescribe a universal rule for the specific determination of what arp and what are not necessaries. In a general way, it may be said that whatever naturally and reasonably tends to relieve distress, or materially and in some essential particular to promote comfort, either of body or^nind, may be deemed' to be a necessary, for which a wife, under proper circumstances, may pledge her hus- band's credit. Each case is to be determined by its own circumstances.* See Husband. The necessaries for which a minor may bind him- self are for suitable food, shelter, clothing, washing, medicine, medical attendance, and education. But what is proper in quantity and quality depends upon what the court or jury may think, in each case, regard being had to the condition and station in life.* Cf. Want. 3. To bring an article within the descrip- tion of necessaries for a vessel it need not appear that the voyage could not by any pos- sibility be made without the article. It is sufficient if the article forms a part of the natural and reasonable outfit of the vessel, or of the business in which she is engaged.* Those things which pertain to the naviga- tion of the vessel, and which are directly incidental to and connected with her navi- ' Castello V. State, 36 Tex. 324 (1871); Hubotter v. State, 32 id. 484 (1870). ^ L. necessanus, needful. s Davis V. Caldwell, 12 Gush. 513 (1853), Shaw, C. J. * Conant v. Burnbam, 133 Mass. 504 (1882), C. Allen, J.; Hamilton u. Lane, 138 id. 360 (1885); Skelton v. Pendleton, 18 Conn. ♦423 (1847), cases; Harris v. Dale, 6 Bush, 63 (1868). ^ Munson v. Washband, 31 Conn. 306-8 (1863),.cases, Hinman, O. J. ; Breed 1;. Judd, 1 Gray, 458 (1854); Trainer V. Trumbull, 141 Mass. 630 (1886), cases: 25 Am. Law Reg. 69S-99 (1886), cases; Ayers v. Burns, 87Ind. 248 (1882), cases; 36 Alb. Law J. 283: 35 W. R. 806. See generally Ee Steele, 2 Flip. 328 (1879), cases. « The Plymouth Rook, 7 Bened. 449 (1874), Benedict, Judge. NECESSAEY 701 NECESSITY gation; that is, those things which directly aid in keeping her in motion for the purpose of receiving, carrying, and delivering car- goes, i This is the meaning in the twelfth Admiralty Rule, which provides that in suits by material-men for sup- plies, repairs, or other necessaries furnished to a for- eign ship or a ship in a foreign port, the libelant may proceed against the ship and freight in rem, or against the master or owner in personam, and that in cases of domestic ships the proceeding shall be in per- sonam only. Under the foregoing definition, a claim for storing sails would not be a subject of admiralty iurisdiction.i See Necessary; Provisions. NECESSARY. Frequently imports no more than convenient, essential, or useful to some end in view. The term admits of de- grees : a thing may be necessary, very neces- sary, or absolutely necessary.''' To employ "means necessary to an end" is generally understood as meaning to em- ploy means calculated to produce the end, not as being confined to some single means without which the end would be unattain- able. 2 It is in the looser sense that the word is used in Art. I, sec. 8, el. 8, of the Constitution, empowering Congress to pass laws " necessary and proper " for carrying its express provisions into efLCCt. When the framers intended an indispensable necessity, as in Art. X, sec. 1, they coupled the word "absolutely" with it.^ See Constitution. What is " necessary to the beneficial enjoyment of an estate " cannot reasonably be held to be limited to absolute physical necessity, but to what is reasonably necessary.* '• Necessary help " for the warden of a prison in- cludes the services of a physician. < A statute exempting from execution "necessary household furniture " includes more articles than such as are absolutely indispensable,— articles which, to the common understanding, are required for com- fort and convenience. But " necessary " is not to have the liberal sense given it in the rule as to " nec- essaries," * q. V. " Necessaiy implication," in construing a will, means so strong a probabilit.7 of intention that an in- tention contrary to that imputed cannot be sup- 1 Hubbard v. Eoach, 9 Biss. 376-77 (1880), Dyer, J. "M'CuUooh V. Maryland, 4 Wheat. 413 (1819), Mar- shall. C. J. ; Legal Tender Case, 110 U. S. 440 (1884); 83 Ind. 14.S^5; 47 N. J. L. 3»-3?. a Pettingill v. Porter, 8 Allen, 6 (1864). * State V. Hobart, 13 Nev. 420 (1878). 6 Hitchcock V. Holmes, 43 Conn. 529 (1876). « [Wilkinson v. Adam, 1 Ves. & B. *406 (1812). See also 6 M. & W. 402; 4 De G., M. & G. 85; 15 N. T. 558; 9 Yerg. 164. Referring to taking private property for public uses, "necessary" means expedient. ' In a statute requiring a railroad to construct a farm-crossing when " necessary " for the use of the proprietors of adjoining lands, held equivalent to " reasonably convenient." 2 "Necessary repairs" to a vessel means such as are reasonably proper under the circumstances; not merely such as are indispensable for the safety of the ship or the accomplishment of the voyage.^ See Baggage; Necessity; Sunday. NECESSITAS. L. Necessity. Necessitas putalica major est quam privata. Public necessity is greater than private. A private right or necessity must yield to the public good ; as in the exercise of the powers of eminent do- main and taxation.* Necessitas vincit legem. Necessity overcomes law, — is paramount to any rule of law. 5 See Necessity. Trinoda neoessitas. A threefold neces- sity or burden. In England, anciently, when lands were granted free of services, they were still subject by implication, under a certain trinoda necessitas, to the expense of repairing bridges and forts, and of repelling inva- sions.^ NECESSITY. Constraint upon the will, whereby a man is urged to do that which his judgment disapproves; and which, it is to be presumed, his will, if left to itself, would reject.' An inevitable or unavoidable necessity is regarded as a defect of will, and excuses an act otherwise crim- inal in nature.' Moral necessity; physical necessity. Moral necessity arises where there is a duty incumbent upon a rational being which he ought at the time to perform. It presupposes a power of volition and action, under circum- stances in which he ought to act, but in which he is not absolutely compelled to act by overwhelming superior force. It means a sense of duty, when it becomes imperative by its urgency upon his conscience and judg- ment. That is not a physical necessity where " Stuyvesant v. Mayor of New York, 7 Cow. 606 (1827) ; 7 Johns. Ch. 315; 6 E. I. 325. 2 Chalcratt v. Louisville, &c. R. Co., 113 Dl. 88 (1885). 3 The Fortitude. 3 Sumn. 237 (1838), Story, J. See generally 50 Cal. 302; 50 Conn. 155,253; 27 Ind. 191; 6 Iowa, 432; 13 Mass. 278; 112 id. 3-4; 3 Pa. 331. * Bacon, Maxims. » Cooley, Const. Lim. 747. « West River Bridge Co. v. Dix, 6 How. 543, 545 (1848); 2B1. Cora. 102, ' 4 Bl. Com. 27. NEED 703 NEGATIVE the agent is called upon to exercise judg- ment and discretion, to act or not to act.^ A master may sell his vessel, in case of wreck or irreparable disaster — the necessity being extraordi- nary, paramount, actual and not merely apprehended: a question which the court passes upon.^ See Hy- pothecation. At common law, to prevent the spreading of fire, in a case of actual necessity, any one might destroy realty or personalty with no responsibility in him and no remedy in the owner.^ See Fire. Work of necessity. In the exception to the prohibition of labor, business, or work on the Lord's day, the reference is not to a physical or absolute necessity. Any labor, business, or work which is morally fit and proper to be done on that day, under the cir- cumstances of the case, is a work of neces- sity.* Not limited to labor for the preservation of life, health, or property from impending danger. The necessity may grow out of, or be incident to, the gen- eral course of trade or business, or even be an exi- gency of a particular trade or business. For example, a danger of navigation being closed may make it law- ful to load a vessel on Sunday, if there is no other time to do so. So, as to keeping a blast furnace open. If absolute necessity were intended, it would be unlaw- ful to prepare a meal. ^ See Sunday. WEED. See Want. Weedful. Rules " needful " for the government, good order, and efficiency of a school refer to such rules as will best advance the pupils in their studies, tend to their education and mental improvement, and promote their interest and welfare.'' Needless. Characterizes an act done without any useful motive, in a spirit of wanton cruelty, or for the mere pleasure of destruction. In an act authorizing indictment for " needlessly killing " an animal, cannot reasonably be construed as characterizing an act which might by care be avoided.' See Cruelty, Needlessly. The requirement that compensation must be made or secured'bef ore private property can be "needlessly disturbed," indicates that some dis- turbances might be " needful," such as running a sur- vey, locating a line of railroad, and such others as the le^islatiu'e may specify.^ 1 [The Fortitude, 3 Sumn. 248 (1838), Story, J. 2 The Heniy, 1 Blatch. & H. 469-71 (1834). 8Bowditch V. Boston, 101 U. S. 18-19 (1879), cases; The Tornado, 108 id. 342 (1883). 4 Flagg V. MiUbury, 4 Gush. 244 (1849), Wilde, J. fi McGatrick v. Wason, 4 Ohio St. 57;;-74 (1855), Thur- man, C. J. ; Burns v. Moore, 76 Ala. 342 (1884), cases. See also 55 Ga. 126; 31 111. 473; 76 Ind. 310; 56 Md. 415; 97 Mass. 407, 411. • State, ex rel. Bowe v. Board of Fond du Lac, 63 Wis. 237 (1885). ' Grise v. State, 37 Ark. 456 (1881). ^ e McClam v. People, 9 Col. 194 (1886). liTeedy. A devise to a trustee of an estate to be distributed among the testator's *' next of kin who may be needy, in such proportions and at such times as in his opinion may be best," was held valid as to the class designated " the next of kin," but invalid, for uncertainty, as to the individuals to be selected as (the most); " needy." * NEGATIVE. la used in an untechnical sense, in opposition to affirmative or positive; as, negative or a negative — allegation, aver- ment, condition, covenant, easement, evi- dence, statute, qq. v. Whoever asserts a right dependent for its existence upon a negative must establish the truth of the nega- tive, except where the matter is peculiarly within the knowledge of the adverse party — as, that the latter I>as no license for selling liquor.^ It is not a maxim of law that a negative is incapable of proof. WTien the negative ceases to be a siniple' one,— when it is qualified by time, place, or circum- stance, — much of the objection is removed; andproof- of a negative may reasonably be required when the qualifying circumstances are the direct matter in is- sue, or the affirmative is either probable in itself, or supported by a presumption, or peculiar means of proof are in the hands of the party asserting the neg- ative. . . When a presumption is in favor of a party who asserts the negative, it affords an additional rea- son for casting the burden of proof on his adversaiy ; it is when a presumption is in favor of the party who asserts the affirmative that its effect becomes visible, as the opposite side is then bound to prove his nega- tive. One class of exceptions to the rule, that the burden of proof rests on the party holding the affirm- ative, includes the cases in which the plaintiff grounds his right of action upon a negative allegation which is an essential element in his case. . . So, where the negative allegation involves a charge of ci'iniinal neglect of duty, or fraud, or the wrongful violation of actual lawful possession of property, the party mak- ing the allegation must prove it; for in those cases the presumption of law is in favor of the party charged.^ See Affirm, 1. Negative pregnant. The statement of a negative proposition in such a form as may imply or carry with it the admission of an affirmative. A fault, within the rule that a pleading must not be ambiguous in meaning.* J Fontaine v. Thompson, 80 Va, 229, 232, 234 (1885), cases. 2 Goodwin v. Smith, 73 Ind. 113 (1880); 67 id. 375;. 68 id. 254; 78 N. Y. 480; 37 Am, R. 141, cases; Gould, PI. 93, 344. 3 Best, Ev. (Am. ed., 1883), §§ 270, 273, 276, cases; 1 Greenl. Ev. §§ 78, 80. Approved, Colorado Coal & Iron Co. V. "United States, 123 U. S. 317 (1887), Matthews, J. See 1 Whart. Ev. § 356, cases. * Steph. PI. 408-9; Gould, PI. 298; 16 M. & W, 708; 13 Wall. 307; 107U. S. 275. NEGLECT 703 NEGLIGENCE NEGLECT. Omission or forbearance to do a thing that can be done or that is re- quired to be done.l Does not generally imply carelessness or Impru- dence; simply, an omission to do or perform some work, duty, or act.^ ■Willful neglect. An intentional failure to per- form a manifest duty in which the public has an inter- est, or which is important to the person injured, in either preventing or avoiding injury.^ See Fault; Nj;qligence. NEGLIGENCE.* Failure to do what a reasonable and prudent person would ordi- narily have done under the circumstances of the situation, or doing what such a person would not have done.^ The essence of the fault lies in omission or commis- sion. The duty is dictated and measured by the exi- gencies of the occasion.* The measure of care against accident which one must take to avoid responsibility is that which a per- son of ordinary prudence and caution would use if his interests were to be affected, and the whole risk were his own.' The omission to do something which a rea- sonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.' Failure to observe, for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury.s The want of care and diligence, and the degree of one is in inverse proportion to the degree of the other.' The absence of care according to the cir- cumstances, i" Where the duty is deflned, a failure to perform it is of course negligence, and may be so declared by the court.'" ' [Malone v. United States, 5 Ct. CI. 489 (1869). 1 Rosenplaenter v. Roessle, 64 N. Y. 268 (1873). See also 6 Gray, 324; 2 Grant, 60; 13 Conn. 52; 53 How. Pr. 122. ' Kentucky Central R. Co. v. Gastineau, 83 Ky. 128 (1885), Holt, J. * L. negligentia: negligere, to neglect. » [Baltimore, &o. E. Co. -u. Jones, 96 U. S. 441 (1877), Swayne, J.; The Lizzie Fi-ank, 31 F. E. 478 (1887). • Nitro-Glycerine Case, 15 Wall. 638 (1872), cases. Field, J. 'Blyth V. Birmingham Water Works Co., 11 Ex. 784 (1836), Alderson, B. ; 36 E. L. & E. 508. e Cooley, Torts, 630. ' Hodgson V. Dexter, 1 Cranch, C. C. Ill (1803). '» Philadelphia, &o. E. Co. v. Stinger, 78 Pa. 225 (1876). A failure to perform some act required by law, or doing the act in an improper raan- nei-. The law determines the duty; the evidence shows whether the duty was performed. ' willful negligence, against which a carrier may not exact exemption, means gross omission of duty, in-, volving intentional or willful misconduct.'* When a person inadvertently omits or falls to do some act required in the discharge of a legal duty to another, whether such duty arises from contract or from the nature of his employment, and as an ordinary or nat- ural consequence daniage ensues to that other person, such omission constitutes actionable negligence.' What facts will constitute that diligence which the law requires must depend upon the circumstances of each case. The omission must be considered in rela- tion to the business in wliich the person, who is to ex- ercise the care, is engaged, and with reference to the persons, whether adults or children, who may be in- jured by the want of care.^ Negligence is only actionable when it involves a breach of duty toward the person injured.' In its degrees, negligence ranges between pure ac- cident and actual fraud. " Fraud " commences where negligence ends. Negligence is evidence of fraud, not fraud in itself.' The difference between negligence and "willful- ness," in a ci?il action for damages, is in the degree only, not in the essence of the wrong -doing." ComparatiTe negligence. The doctrine obtains in several of the States that a plaint- iff, though guilty of negligence contributing to the Injury complained of, may still recover damages. If his negligence is slight, and that 1 Nolan V. New Tork, &c. E. Co., 53 Conn. 471 (1885), Carpenter, J. ' Missouri Pacific E. Co. u. Harris, 67 Tex. 169 (1886), Stayton, A. J. ' Galveston City E. Co. v. Hewitt, 67 Tex. 478 (1887), Stayton, A. J. < Sisk V. Crump, 112 Ind. 504 (1887), — for the value of a horse injured by a barbed-wire fence along a high- way. See other definitions, Whart. Neg. § 3; 10 F. E. 711; 13 id. 69; 17 id. 68; 19 id. 637; 3 McCrary, 352; 29 Ala. 302; 16 Ark. 308; 34 Cal. 75; 55 id. 596; 39 Conn. 210; 39 111. 353; 94 id. 352; 29 Iowa, 99; 5 Kan. 178; 80 Ky.' 84; 10 Bush, 677; 34 La. An. 144, 181 ; 29 Minn. 3; 30 id. 483- 70 N. C. 380; 25 N. H. 549; 33 N. J. L. 440; SSid. 11; 41 N. Y. 629; 91 id. 306; 30 Hun, 600; 62 Barb. 1^; 40 Pa. 402; 67 id. 331; 78 id. 219; 89 id. 312; 2 E.I. 409; 19 S. C. 24, 29, 497; 46 Tex. 366; 59 id. 376; 66 Vt. 487; 9 W. Va. 252; 17 id. 196; 53 Wis. 633; 2 Steph. Hist. Cr. L. Eng. 122. » Gardner v. Heartt, 3 Denio, 237 (1846); 20 111. 2S6; 48 N. H. 41. « Field V. Chicago, &c. E. Co,, 14 F. E. i NEGLIGENCE 704 NEGLIGENCE of the defendant gross in comparison there- with. But there must at least be no want of ordinary care on the part of the plaintiff.' Contributory negligence, the absence of reasonable care and caution in a given case, on the part of a complainant.^ If the complainant's fault, whether of omission or commission, has been the proxi- mate cause of his injury, he is without rem- edy against one also in the wrong.' Any want of ordinary care, even in a slight decree, which directly contributes to the in- jury.* Where tlie plaintiff alone is negligent he can have no relief. Where the defendant also is negligent in the same connection, the question is whether the dam- age was occasioned entirely by the improper conduct of the defendant; or, whether the plaintiff himself so far contributed to the misfortune by his own improper conduct, that but for such conduct the misfortune would not have happened. In the former case the plaintii¥ may recover, in the latter case not.^ The negligence of the plaintiff must have been the proximate cause of the injury.^ Where a passenger is injured by the negligence of a carrier, an act done by the passenger to avoid im- pending danger does not constitute contributory neg- ligence, although it helped produce his injuries.' Contributory negligence is to be proved by the de- fendant by a preponderance of evidence. ^ Criminal negligence. In some of the States acts of-gross negligence by common carriers of passengers or their employees have been made punishable as criminal offenses.' Culpable negligence. The omission to do something which a reasonable and pru- ' Wabash, &c. E. Co. v. Moran, 13 Bradw. 76 cases, Bailey, P. J. ; Chicago, &c. R. Co. v. O'Connor, ib. 65-66 (1883), cases; Union Ey. & Transit Co. v. Kal- laber, 13 id. 404 (1883). See Kansas Pacific E. Co. u. Peavey, 29 Kan. 180 (1883); 124 Mass. BO. = [Washington, &c. E. Co. v. Gladmon, 15 Wall. 401 (1872). 3 Little V. Hackett. 116 U. S. 371 (1886), Field, J. « Neanow v. Uttech, 46 Wis. 590 (1879). ' Baltimore & Potomac E. Co. v. Jones, 95 U. S. 443 (1877), cases, Swayne, J. 'Cornwall V. Charlott, &c. E. Co., 97 N. C. 11 (1887). 'Ladd V. Foster, 31 F. E. 831 (1887), cases; 23 Cent. Law J. 559 (1886) — Irish Law Times. See generally Wells V. Coe, 9 Col. 160-62 (1886), cases; Farley v. Rich- mond, &c. E. Co., 81 Va. 781-85 (18S6); 36 Alb. Law J. 324-25 (1887), cases. By passengers on street cars, 24 Am. Law Eeg. 739-42 (1685), cases. s Indianapolis, &c. E. Co. v. Horst, 93 U. S. 298 (1876); Washington. &c. R. Co. v. Gladmon, 15 Wall. 406-8 (1872), cases; 16 F. R. 76, 160; 62 Cal. 334; 59 Iowa, 186; 34 La.. An. 1086; 101 Mass. 464-65; 92 Pa. 432, 479-81. » See Cook v. Western, &o. R. Co., 72 eta. 48 (1883). dent man would do, or the doing of some- thing which such a man would not do, under the circumstances.' Involves a breach of duty toward the person com- plaining.'^ Grross, ordinary, and slight negli- gence. " Gross negligence " is the orhission of that care which even inattentive and thoughtless men never fail to take of their own property or interests.' "Gross negligence" is a relative term. It implies a greater want of care than is implied by "ordinary negligence," — or, simply, the absence of the care that was necessary under the circumstances.* The expressions " gross negligence " and "ordinary negligence," strictly speaking, are indicative rather of the degree of care and diligence which is due from a party and which he fails to perform, than of the amount of inattention, carelessness, or stupidity which he exhibits. If very little care is due, and he fails to bestow that little, it is called " gross negligence." If very great care is due, and he fails to come up to the mark required, it is called "slight negli- gence." And if ordinary care is due, such as a prudent man would exercise in bis own affairs, failure to bestow that amount of care is called "ordinary negligence." In each case, the negligence, whatever epithet we give it, is failure to bestow the care and skill which the situation demands ; and hence it is more accurate, perhaps, to call it simply " negligence." This is the tendency of mod- ern authorities.* The Supreme Court has disapproved of attempts to fix the degi'ees of negligence by legal definitions. " The law furnishes no definitions which can be ap- plied in practice, but leaves it to the jury to determine in each case what the duty was, and what omissions amount to a breach of it." * 1 Woodman v. Nottingham, 49 N. H. 392 (1870). 2 Rush V. Missouri Pacific E. Co., 36 Kan. 135 (1887). = [Goodman v. Simonds, 20 How. 367 (18S7), Clifford, J. < Milwaukee, &c. E. Co. v. Arms, 91 U. S. 495 (1875), cases, Davis, J. ^ New York Central R. Co. v. Lockwood, 17 Wall. 382-83 (1873), cases, Bradley, J. ; Steamboat New World V. King, 10 How. 474 (1853); Griswold v. New York, &c. E. Co., 53 Conn. 390 (1885). 1 Milwaukee, &o. E. Co. u. Arms, 91 U. S. 494 (1875), Davis, J. See also as to gross negligence. 3 Mas. 1-32, Story, J.; 14F.E.710; 80 Ala. 496; 23 Conn. 443; 73 III. 857; 45 Mo. 22; 22 Barb. 151; 38 Ohio St. 639; Story, Bailm. § 17; as to ordinary, 5 Kan. 180; 10 id. 288; 7B. NEGLIGENCE 705 NEGLIGENCE Where neither fraud nor collusion, nor privity of contract exists, a party will not be held liable for his act of negligence, unless the act is one immediately dangerous to the lives of others.' The limit of the doctrine relating to actionable neg- ligence Is, that the person occasioning the lops must owe a duty, arising from contract or otherwise, to the person sustaining such loss. Such a restriction upon the right to sue for a want of care in the exercise of an employment or the transaction of business is plainly necessary to restrain the remedy from being pushed to an impracticable extreme. There would be no bounds to actions and litigious intricacies, if the ill effects of negligence could be followed down the chain of results to the final effect." An adult must give that care and attention to his own protection that is ordinarily exercised by persons of intelligence and discretion. From an infant of tender years less discretion is required and the degree depends upon his age and knowledge. The caution required is according to the maturity and capacity of the child, — a matter to be determined in each, case by circumstances.' One is bound to exercise reasonable care to antici- pate and prevent injury to a child of such tender years as to have little discretion, although a trespasser.^ The rule is that a master is exempt from liability to a servant for injuries caused by the negligence of a fellow-servant. It is implied in the contract that the servant risks the dangers which ordinaril.v attend the business — among which is the carelessness of those in the same employment, with whose habits, conduct, and cafiacity he has an opportunitj' to become ac- quainted, and against whose neglect he may guard himself. It is implied, also, that in the selection of the physical means the master will not be wanting in proper care. His negligence in that regard is not a hazard usually attendant upon the business; nor is it one the servant is presumed to risk, for be has, ordina- rily, no connection with their purchase, preservation. or maintenance. Although the master's liability is not that of a guarantor of the absolute safety or perfection of apparatus provided for use, yet he is bound to ex- ercise the care which the exigency reasonably re- quires, in furnishing such as is adequate and suitable. It is for the jury to say whether in relying upon a promise given to repair, and using machinery after he Mon. 663; 61 HI. 160; 71 Me. 41; 6 Met. 26; 25 Mich. 297; a4N.Y.181; 40 id. 39: as to slight, 35 N.Y. 27; 3 Oreg. 145; 64 Tex. 151 ; 43 Wis. 509. > Savings Bank v. Ward, 100 U. S. 204 (1879), cases. ' Kahl V. Love, 37 N. J. L. 8 (1874), Beasley, C. J. ; Gordon v. Livingston, 12 Mo. Ap. 267, 872 (1882). ' Washington, &c. E. Co. v. Gladmon, 15 Wall. 408 <1872), cases. Hunt, J. ; Union Pacific R. Co. v. Fort, 17 id. 553 (1873); Sioux City, &c. E. Co. v. Stout, ib. 660 (1873); Collins v. South Boston E. Co., 142 Mass. 313 <1886), cases; 124 id. 57; 91 N. Y. 420; 48 Pa. 230-28; 88 id. 520; 100 id. 149. * Kentucky Central E. Co. v. Gastineau, 83 Ky. 125-27 (1885), cases. See generally as to young and inexperi- enced persons, Hickey v. Taaffe, 105 N. Y. 36 (1887), cases: 26 Am. Law Reg. 734-43 (1887), cases; 23 id. 591-94 (1886), cases; 8:3 Cent. Law J. 33, 459 (1886), cases. ' (45) knew its defective condition, the servant was in the exercise of due care. In such case the burden of proving contributory negligence is upon the master." Where the master has expressly promised to rem- edy a defect, the servant can recover for an injury caused thereby within such a period of time after the promise as it would be reasonable to allow for its per- formance, and for an injury suffered within any pe- riod which would not preclude all reasonable expecta- tion that the promise might be kepf Usually, where some instrument or appliance has become unsafe and the danger from its use is not im- minent or obvious, the servant may use it for a short time with the expectation that the master will remedy the detect. Where the master has been informed of a defect, and agrees to remedy it, the servant may con- tinue for a reasonable time in the employment, so as to give the master an opportunity to fulfill his prom- ise. Where the danger is one to which the servant is not exposed in the ordinary course of his employment, but is one which he is required to immediately en- counter by special command of a superior, without time for reflection, he may obey without being guilty of contributory negligence or forfeiting his right to recovery in case injury results. When the danger is not always obvious or imminent, and both employer and employee, with full knowledge, enter upon or con- tinue the contract of employment, neither is guilty of culpable negligence; while if the danger is obvious and imminent, and it is encountered by the servant, then both are equally guilty — that of the employee being culpable contributory negligence. ^ When one enters the employment of another he as- sumes all the ordinary risks attendant upon it; and where a number of persons enter a common employ- ment for another, all being upon a common footing, and one receives an injur.y by the neglect of another, they are the agents of each other, and no recovery can be had against the employer. The English rule has been that it did not matter if the injured servant was subordinate to the neglectful one and under his con- trol ; or if they were engaged in different grades of the service. To hold the master responsible he must have had personal connection with the injury, provided he was not neglectful in selecting and retaining his serv- ants. This rule seems to prevail in many courts in ' Hough V. Texas & Pacific E. Co., 100 U. S. 213-26 (1379), cases, Harlan, J.; Union Pacific E. Co. v. Fort, 17 Wall. 557 (1873); Packet Company v. McCue, ib. 508 (1873); Tuttle v Detroit, &c. E. Co., 122 U. S. 195 (1887); North Chicago Rolling Mill Co. v. Johnson, 114 111. 64 (1885). 2 Hough V. Texas, &c. E. Co., 100 U. S. 225 (1879), cases. ' Rush, Adm'x v. Missouri Pacific E. Co., 36 Kan. 136-88 (1887), Valentine, J. See as to the effect of a promise to remedy a defect, Indianapolis, &c. R. Co. V. Watson, 114 Ind. 20 (1887), cases: 37 Alb. Law J. 169, 171, cases; 25 Am. Law Reg. 617-32 (1886), cases; 93 Am. Dec. 213-21. cases. Presumption, where the appliance is within control of the defendant, Sheeler v. Chesapeake, &c. R. Co., 81 Va. 199 (1885); 20 Am. E. D. 245-47, 261, eases. Want of knowledge, as a defense, 20 Cent. Law J. 163-66 (1885), cases. NEGLIGENCE 706 NEGOTIATE this country, except that if the injured party be in a different grade of the service, the employer may be responsible; the establishment of the rule being largely due to the opinion of Chief Justice Shaw in the case of Fanvell v. Boston, Ac. R. Co., 4 Meto. 57 (1842). The courts of Ohio and Kentuclcy have ex- tended the rule; and the leaning in New York is in the same direction: they holding not only that the master is liable for an injury to one servant by another in a different grade of employment, but, also, when en- gaged in the same common employment, provided the neglectful one is superior to or in control of the injured one.' Carriers of passengers must exercise ordinary care. According to the best considered adjudications, and upon the clearest grounds of necessity and good faith, " ordinary care," in the selection and retention of serv- ants and agents, implies that degree of diligence and precaution which the exigencies of the particular serv- ice reasonably require. It is such care, as, in view of the consequences that may result from negligence on the part of employees, is fairly commensurate with the perils or dangers likely to be encountered. Ordi- nary care implies the exercise of reasonable diligence, and reasonable diligence implies, as between employer and employee, such watchfulness, caution, and fore- sight as, under all the circumstances of the pai'tlcular service, a corporation controlled by careful, prudent officers ought to exercise. A degree of care "ordi- narily exercised in such matters " may not be due, or reasonable, or proper care, and therefore not ordinary care.^ The occupant of land or a structure, who " invites " another to come upon it for a lawful purpose, is liable to such person, not chargeable with contributory neg- > Louisville, &c. R. Co. v. Moore, 83 Ky. 683-84 (1886), cases. Holt, J. See further, as to master and servant, and fellow-servants, Herbert v. Northern Pacific R. Co., 3 Dak. 50-58 (1889), cases; Rogers v. Overton, 87 Ind. 412 (1882), cases; Baltimore & Ohio K. Co. v. McKenzie, 81 Va; 73-75, 84-85 (1885), cases; Little Rock, &c. R. Co. v. Leverett, 48 Ark. 347 (1886), cases; Sanborn v. Modera Flume, &c. Co., 70 Cal. 265-68 (1886), cases; Rogers v. Ludlow Manuf. Co., 144 Mass. 200 (1887); Rice v. King Philip Mills, ih. 235 (1887); Porter v. West. N. Car. R. Co., 97 N. C. 75 (1887); 24 Am. Law Reg. 462-67 (1885), cases; 25 id. 481-93 (1886), cases; 26 id. 636^1 (1887), cases; 23 Cent. Law J. 316-23, 555-59 (1886), cases. As to contracts limiting the liability of the employer, see Lake Shore, &c. R. Co. v. Spangler, 44 Ohio St. 476 (1886), cases: 26 Am. Law Reg. 46-47 (1887), cases; 26 Alb. Law J. 64-67 (1882), cases. "Wabash R. Co. v. McDaniels, 107 U. S. 459-61 (1882), cases, Harlan, J. ; Randall v. Baltimore & Ohio R, Co., 109 id. 483 (1883); Armour v. Hahn, 111 id. 318 (1884), cases; Chicago, &c. R. Co. v. Ross, 112 id. 382-83 (1884), cases: 20 Cent. Law J. 87 (1885), cases; Northern Pacific R. Co. V. Herbert, 116 id. 647 (1886); Atchison, &e. R. Co. II. Moore, 39 Kan. 644 (1883); Peschel v. Chicago, &c. R. Co., 62 Wis 340 (1885); 2 McCrary, 235, 243; 3 id. 433-35; 11 Biss. 862; 14 F. R. 833-46; 39 Ark. 1, 26; 3 Cal. 499; 60 Conn. 433, 457; 88 111. 270; 125 Mass. 485; 130 id. 102; 22 Minn. 185; 86 Pa. 439-40; 100 id. 301, 306. ligence, for an injury occasioned by the unsafe condi- tion of the land and its approaches, if such condition was known to the occupant and he suffered it to-exist without giving notice to those lilcely to act upon the invitation. An invitation will be inferred where there is a common interest or mutual advantage ; while a "license" will be inferred where the object is the mere pleasure or benefit of the person using it. Each case rests largely upon its own circumstances.' A passive acquiescence in a certain use of land by others involves no liability; but if the owner or occu- pier directly or by implication induces persons to enter or pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use.'' While a railroad company is not bound to the same degree of care in regard to a mere stranger wl;io is evenpunlawfully upon its premises that it owes to pas- sengers, it is not exempt from responsibility to such stranger for an injuiy arising from its negligence or tortious act.° What is negligence and what is ordinary care must be submitted to the jury, if there be any dispute or reasonable doubt as to the facts claimed to establish the alleged negligence, or as to the just inferences to be drawn therefrom. If, however, the facts be ad- mitted or ascertained, it is the province of the court to declare the law thereon.* See further Bailment; Care; Carrier; Case, 3; Cause, 1; Check; .Collision; Consequences; Dam- ages; Diligence; Fault; Fire; Fraud; Injury; Jury; Laches; Livery-keeper; Prudence; Servant, 3; Telegraph; Tort, 2. NEGOTIA.TE.5 1. To cond^ct business : to discuss the terms of a bargain; to en- deavor to efEect an agreement ; to conclude a contract. 8 3. To transfer by indorsement or delivery. A bill of exchange is "negotiated" when it has passed into the hands of the payee, ' Bennett v. Louisville, &o. R. Co., 102 U. S. 580 (1880), cases, Harlan, J. See also Nickerson v. Tirrell, 127 Mass. 239 (1879), cases; Converse v. Walker, 30 Hun, 601 (1883); Parker v. Portland Publishing Co., 69 Me. 173, 176 (1879), cases; McKee v. Bidwell, 74 Pa. 218, 283 (1873); American Steamship Co. v. Landreth, 108 id. 264 (1885); 111 id. 423; Marshall v. Heard, 59 Tex. 266 (1883), cases. = Crogan v. Schiele, 53 Conn. 205-7 (1885), cases. ' Sioux City, &c. R. Co. v. Stout, 17 Wall. 661 (1873), Hunt, J. < Baker v. Fehr, 97 Pa. 70 (1881), cases; Abbott v. Chicago, &c. R. Co., 30 Minn. 483 (1883); Mares v. Northern Pacific R. Co., 3 Dak. T. 343^44 (1884), cases. That the Government is not liable for the negligence of its employees, see Robertson v. Sichel, 127 U. S. 515 (1888), cases. " L. negotiare, to do business: negotium. • See Inhabitants of Palmer v. Ferry, 6 Gray, 423 (1866); Yerkes v. National Bank, 69 N. Y. 886 (1877); Coles V. Shepard, 30 Minn. 448 (1883). NEGOTIATE 707 NEG-OTIATE or indorsee, or other holder for Talue, who thereby acquires a title to it.i Negotiable. Capable of being ti-ansferred by assignment ; also, a thing which may be transferred by a sale and indorsement or de- livery :- as, a negotiable or a non-negotiable instrument, negotiables and non-negotiables. A note, to be negotiable, must not be encumbered by a collateral agreement to be determined by a jury.' The tendency is to enlarge the rule as to the negoti- ability of paper. Stipulations which do not render uncertain thg amount to be paid, or the time of pay- ment, but which tend to increase the value of the in- strument, do not impair its negotiability.* At common law, no contract was assignable with a right in the assignee to sue in his own name. To this rule bills of exchange and promissory notes, payable to order or bearer, were made exceptions by the law- merchant. They may be transferred by indorsement and delivery, and such a transfer is called " negotia- tion." It is a mercantile business transaction, and the capability of being thus transferred, so as to give the indorsee a right to sue on the contract in his own name, is what constitutes negotiation. The term expresses, at least primarily, this mode and effect of transfer." As to bills and notes, other consequences follow; B. g., liability of an indorser after notice of non- payment; non-availability, as to a bona fide indorser for value, before maturity, in the regular course of business, of an equity good as against the original payee, or the fact that the paper was lost or stolen. But " negotiability " may exist without these conse- quences. Thus, a past-due note or bill payable to order or bearer is negotiable, but defects then existing,— all prior equities, and the defense that the paper was lost or stolen,— attach to it." Vouchers for money due, certificates of indebted- ness for services rendered or for property furnished for the use of a city, orders or drafts drawn by one city officer upon another, or any other device of the kind, used for liquidating the amotmts due public creditors, are not negotiable. To make such instru- ments negotiable, in the broad sense, rendering them in the hands of bona fide holders absolute obligations to pay, would be an abuse of their character, convert municipal corporations into trading companies, and put it in the power of corrupt officials to bankrupt a community." Nor does the term apply to securities to pay for ex- tensive public works, the expense of which is beyond the immediate resources of reasonable taxation, and capable of being spread over a long period.' > Barmg v. Lyman, 1 Story, 416 (1841), Story, J. » Walker v. Ocean Bank, 19 Ind. 260 (1862), Hanna, J. s Woods V. North, 84 Pa. 409 (1877); Garretson v. Purdy, 3 Dak. 182-83 (1882), cases. » Schlesmger v. Ariine, 31 F. E. 649-58 (1887), cases. 'Shaw V. North Pennsylvania R. Co., 101 U. S. 6«2- 64 (1879), cases. Strong, J. See also Paine v. Ontral Vt. R. Co., 118 id. 160 (1886), cases. •Mayor of Nashville v. Ray, 19 Wall. 477-78 (1873), Bradley, J. County waiTants are not negotiable, in the sense of the law-merchant, so that when held by a bona fide purchaser, evidence of their invalidity, or defenses available against the original payee, would be ex- cluded. The transferee takes them subject to ail de- fenses which existed as against the instrument in the hands of such payee.' Bills of exchange and promissory notes are distinct- ively negotiable insisoiments. They are the represent- atives of money, and circulate as money. They are held sacred in the hands of a bona fide holder, for value, without notice. Without this they could not perform their peculiar functions. On account of their negotiable quality and convenience in mercantile affairs, they are favored by the courts. Possession is prima facie evidence of title. Nothing short of fraud, not even gross negUgence, will invalidate title from mere possession." It, in a suit brought by the indorsee or transferee of a negotiable instrument, the maker or acceptor, or a party who is primarily bound by the original consid- eration, proves that there was fraud or illegality in the inception of the instrument, the burden of proof is thrown on the plaintiff to show that he is a holder for value.' As between the payee of a promissory note, pay- able to order, and not indorsed, and a stranger having possession, the payee is prima facie the legal owner; so that mere possession cannot avail the holder in an action by the payee.* If any previous holder was a bona fide owner for value, the plaintiff, by showing that he paid value, can avail himself of the position of such holder. In cases to the contrary, there was no bona tde previous holder; yet in such case the plaintiff has recovered advances made before he learned that prior parties were not bona fide holders.' See further Assign, 2; Bank, 2 (2); Bearer; Cer- tainty; Circulation; Collection; Coiipon, Bond; 1 Wall V. County of Monroe, 103 U. S. 77-78 (1880), Field, J. ; County of Ouachita v. Wolcott, ib. 559 (1880), MUler, J. 2 Shaw 17. North Penn. E. Co., 101 U. S. 564 (1879), cases; Perley v. Perley, 144 Mass. 107 (1887), cases. See alao, as to the effect of negligence. Credit Co. v. Howe Machine Co., 54 Conn. 38.3-84 (1886), cases; 23 Cent. Law J. 149-54 (1886), cases. Why negotiable^ paper is favored. Merchants' Bank v. McClelland, 9 Col. 611 (1886), cases. 8 Pana v. Bowler, 107 U. S. 542 (1882), cases. Woods, J. See also Goodman v. Simonds, 20 How. 364-65 (1857), cases; Smith v. Sac County, 11 WaU. 154 (1870), cases; Hotchkiss V. National Banks, 21 id. 359 (1874), cases; Collins V. GUbert, 94 U. S. 754 (1876), cases; 2 McCrary, 568; 11 Biss. 66; 4 Hughes, 5*4; 18 Ct. CI. 399; 133 Mass. 151; 38 Mich. 299; 52 Miss. 919; 15 Mo. 342; 73 X. Y. ^73; 29 Wis. 191. * Durein v. Moeser, 36 Kan. 443 (1887), cases. 'Butterfleld v. Town of Ontario, 32 F. R. 892 (1887), cases. As to diligence required in collecting from in- dorsers, guarantors, and sureties, see 21 Cent. Law J, 6-9 (1886), cases; 26 Am. Law Reg. 129-47, 201-18 (1887), cases. NEGRO 708 NEWSPAPER DisoocNT, 2; Dishonor; Drxinkenness; Exohanoe, 3, Bill of ; Face, 1; Faith; Forgery; Holder; Indorse- ment; Lading, BUI of; Lost, 2; Matore, 2; Merchant, Law; Note, 2; Order, 1; Paper, 4; Parol, Evidence; Place, 1, Of payDient; Present, 2 (1); Protest, 2; Renew; Retire, 2; Security; Sight; Suspicion; Tur- pitude; Value, Received. Warrant, 2 (3). NEGKO. See Citizen; Colok, 1; Mu- latto; Partus; Rights, Civil; Slavery; War; White. WEIGHBOE. See Police, 2, Public; Utere, Sic utere, etc. Weightoorhood. See Country ; Vicinity. NEMO. L. No man ; no one. Kemo alligaus. See Turpitude. Nemo dat. See Dare. Nemo bis vexari. See Vexarl Nemo debet judex. See Judex. Nemo debet testis. See Testis. Nemo exuere patriam. See Expatria- tion. Nemo hseres viventis. See Hjkres. Nemo plus juris. See Transpbrrb. Nemo tenetur aecusare. See Accusare. NEPHEW; NIECE. The immediate descendants, mAle and female, respectively, of brothers and sisters. May be shown, by circumstances, to include grand- nephews and grand-nieces, even a great-grand niece, ^ or a nephew or niece by marriage. = See Consan- guinity. NET ; NETT.8 The quantity, amount, or value of an article or commodity, after all tare and charges are deducted.* That which remains after deducting all charges or outlay; as, net — earnings,^ bal- ance, income, proceeds, proiits, value, weight, qq. V. NEUTRALITY. Siding with neither party iu a war; sustaining a relation of amity to belligerents. Neutrality is "strict," and "imperfect;" and im- perfect neutrality is either " impartial " or " quali- fied." • NEVER INDEBTED. See Debt, 2. ' Cromer v. Pinckney, 3 Barb. Oh. 475 (1848), cases. 2 Green's Appeal, 43 Pa. 30 (1862); Merrill v. Morton, 43 L. T. 750 (1881). 8 F. net, pure; clean, clear. • Andrews v. Boyd, 6 Me. *202-3 (1828). <■ St. John V. Erie R. Co. , 22 W^U. 148 (1874) ; 10 Blatch. 271 ; 99 U. S. 420; 50 Ga. 360; 71 Pa. 74. •See Woolsey, Int. Law, Ch, 11; 1 Kent, 116; R. S. § 5286: United States v. Rand, 17 F. E. 143 (1883); United States V. Quincy, 6 Pet. 445 (1833); 3 Whart. Cr. L. |§ 2778-2803. NEW. 1. Applied to the same subject or object, stands opposed to old, as in " new patent : " more or less efficacious, or possess- ing new properties by a combination with other ingredients, not from a mere change of form produced by mechanical division.' See Novelty. 2. In technical phrases, varies only slightly, , if at all, from the popular signification : as, in new — acknowledgment, assets, assign- ment, buildings, evidence or proofs, matter, parties, promise, trial, qq. v. Of. Renew. !N"e"w for old. In adjusting losses in marine in- surance, the rule has been to apply the old materials toward paying for new, on a valuation of one-third for the old. 2 See Building; Restitutio, 2. ETewly discovered evidence. See Discovery, 3. NEW MEXICO. See Pueblo; Terri- tory, 2. NEW YEARS. See Holiday. NEWGATE. An underground prison in Connecticut, in use for more than fifty years after the close of the Revolution. The place, for its horrors, has been compared to the Black Hole of Calcutta. ^ NEWSPAPER. A publication, contain- ing a narrative of recent events and occur- rences, published regularly at short intervaJs from lime to time.* In the usage of the commercial world, " a publication in numbers, consistingccommonly of single sheets, and published at short in- tervals, conveying intelligence of passing events." 5 As ordinarily understood, a publication which contains, among other things, what is called the general news, the current news, or the news of the day; not, a publication which does not usually contain such news, and is not intended for general circulation.^ Such a newspaper is adapted to the general reader. Where the object of the publication of a summons is considered, the reasonableness of such a construction of the word as requires the publication to be made ' See Lessee of Pollard's Heirs v. Kibbe, 14 Pet. 364 (1840); Glue Co. v. Upton, 97 U. S. 6 (1877). ' Eager v. Atlas Ins. Co., 14 Pick. 143-45 (1633), cases; 2 Pars. Mar. Ins. 129, 385. ' See 1 McMaster, Hist. Peop. U. S. 98. < Attorney-General v. Bradbury, 7 Exch. 103 (1851), Martin, B. Postal Law, — "The Household Narrative of Current Events." s 4 Op. Att.-Gen. 11 (1843). Postal Law,— " The Ship- ping and Commercial List and New York Price Cur- rent." « [Beecher v. Stephens, 36 Minn. 147 (1878), Berry, J. NEWSPAPER 709 NIGHT where it will be likely to meet the eye of the general reader, is apparent. The " Northwestern Reporter," wliile a, legal newspaper, is not a newspaper in the or- dinary sense.* In another case a paper devoted to disseminating legal news among lawyers and business men was held to be a newspaper.' . A newspaper is of itself a public print, and imports publicity. The word " public " need not therefore be used in describing the paper.* A " daily newspaper " is published every day of the week except one, whether Sunday or any other day, as, Monday.* A statute providing that laws of a general charac- ter shall be published " in a daily and weekly news- paper," contemplates publication in the daily and weekly editions as a single insertion, and not as a sepa- rate insertion in each edition. ^ A paper which is composed and issued in a place is "published" at that place, although the press- work is done elsewhere." A paper made up partly of a " patent inside," printed in another State, is printed " in the county where it is issued," within the meaning of a statute regulating publication of notice in actions against non-residents.' Since, in nearly all counties, newspapers are pub- lished but once a week, a legislature, in prescribing publication a certain number of weeks, will be pre- sumed to have intended publication once a week.^ A newspaper may bo admissible in evidence to im- pute knowledge of a fact, as, the dissolution of a partnership; when verified, to prove prices-current, but not, generally, for other purposes. Knowledge derived from a newspaper is provable inferentially, as, from familiarity with the paper. "^ When the publication of news is made in good faith, in the ordinary course of business, without intent to defame, and without negligence, a person injured may be restricted in his recovery to actual damages.*" Fair reports of what takes place before legislative bodies and their committees, and in the courts, are privileged — the report being confined to the proceed- ings, and without defamatory headings or comments. * * ■ [Beecher v. Stephens, ante. ' Kerr v. Hitt, 75 HI. 51 (1874), — " Chicago Legal News. " See also Kellogg v. Carrico, 47 Mo. 159 (1870),— " Legal Record and Advertiser." = Bailey v. Myrick, 60 Me. 181 (1860). < Richardson v. Tobin, 45 Cal. 30 (1873),— " San Fran- ^co Chronicle." ' Montgomery Advertiser Co. v. Burke, 82 Ala. 3SS (1886). » Bayer v. Hoboken, 44 N. J. L. 131 (1882),— " Hobo- ken Advertiser." ' Palmer v. McCormick, 30 F. R. 82 (1887). 'Greenwood v. Murray, 28 Mmn. 123 (1881),— "St. Paul Daily Evening Dispatch." ' 1 Whart. Ev. §§ 671-73, cases. "Detroit Daily Post Co. v. McArthur, 16 Mich. 447 (1868); Perrott v. New Orleans Times, 25 La. An. 170 (1873). " See Pittock v. O'Niel, 63 Pa. 253 (1869); Storey v. Wallace, 60 HI. 51 (1871); Scripps v. BeUly, 38 Mich. 10 The law favors publicity of legal proceedings, as far as attainable without injustice being done to any person immediately concerned. The public being permitted to attend, may be served with reports of, judicial inquiries, provided these reports are so full and impartial as not to convey a false impression. . A report must be strictly confined to the actual pro- ceedings, and contain no defamatory comments. It has been held that the publication of ex parte pro- ceedings, or merely preliminary examinations, is not privileged. Reports of these tend " to prejudge those whom the law presumes innocent; to cause the judg- ment of conviction to be pronounced before trial; to poison the sources of justice — the mass of the people from whom jurors are drawn." - But it is not lawful to publish even a correct account of the proceedings in a case in court, if the account contains matter of a blasphemous or indecent nature.* See Contempt, 1; Communication, Privileged, 2; Distribution, 3; Editor; Mail, 2; Opinion, 2; Packet; Peooi^mation, 2; Review, 3; Science; Sunday; Week. NEXT. Nearest. A return of process to the " next term " means to the next term to which the law directs return.* A writ of attachment was issued in September, 1880, returnable to the "next March term, 1880." Held, that the writ being returnable to an impossible day, all pro- ceedings were void.* NICKEL. See Coin. NICKNAME. See Name, 1. NIECE. See Nephew. NIGHT. In the law of burglary, there must not be day-light enough to discern a face.* It will not avail the prisoner that there was light enough from the moon, street-lamps, and buildings, aided by snow, to discern the featm-es of another per- son." Within the meaning of a statute forbidding the keeping open of tippling-houses on the Sabbath day and night, " night " includes the time between mid- night on Saturday and the dawn of Sabbath morning.' See Day. (1878); Bathrick v. Detroit Post and Tribune Co., 50 id. 680, 644 (1883). 1 See Cooley, Const. Lim. 448-^1 : Eex v. Fisher, 2 Campb. ♦570-71 (1811), EUenborough, C. J.; Stanley v. Webb, 4 Sandf. 21, 30 (1&50), Campbell, J.; 16 Alb. Law J. 327 (1877), cases; 18 id. 142 (1878), cases; Eex v. Lee, 5 Esp. 123 (1804j; Stiles v. Nokes, 7 East, 493 (1600); Lewis V. Clement, 3 B. & Aid. 702 (1820). 2Kmg V. Carlile, 3 B. & Aid. 167 (1819); ib. 161. See generally Odgers, Lib. & SI. 243-59, cases; StarMe, Si. 6 Lib. 173, 186, cases; Townshend, SI. & .Lib. §§ 217-22, cases; as to privileged communications, 21 Cent. Law J. 86-90, 450-55 (1886), eases. > Rivers v. Hood, 72 Ga. 194 (1883). * Holzman v. Martinez, 2 N. M. 272 (1882). See also 7 Ga. 107; 1 Mass. 411; 4 Johns. Ch. 26; 64 111 256. ' 4 Bl. Com. 224. " State V. Morris, 47 Conn. 179 (1879). ' Kroer v. People, 78 HI. 295 (1875). I^IHIL 710 NOISE ITight-walkers. Those who are abroad during the night and sleep by day, and are of suspicious appearance and demeanor, i " Those who eave-drop men's houses, cast men's gates, carts, and the like into ponds, or commit other outrages or misdemeanors in the night, or shall be suspected to be pilfering, or otherwise like to disturb the peace, or that be persons of evil fame or report generally, or that shall keep company with any such, or with other suspicions persons in the night." ' Watchmen and constables may arrest night-walkers and commit.them to custody till morning.* NIHIL ; NIL. L. Nothing. Nil is the contracted form. Various returns to process are termed returns of nihil. Nihilor nil debet, or indebitatus. He owes nothing. See Debet, 3. Nihil or nil dicit. He says nothing. A judgment in default of a plea or an answer. See Retkaxit. Nihil est. There is nothing. A fuller answer to the command of a summons than is non est inventus. It means that the defendant has nothing in the bailiwick, — no dwelling-house, no family, no residence, no personal presence.^ Nihil habet. He has nothing. The re- turn when the oflBicer has been unable to find the defendant. Nihil alone is often used. It is used as the return to a scire facias that the defendant, or his bail, has nothing by which the officer can " make known " to them,— two such returns being sometimes considered equal to a service. Thus, two " nihils " in a suit on a mortgage may equal a personal service. The name is also given to the return that nothing is subject to gar- nishment. Compare Bona, 2, Nulla. NIHILIST. 1. One who denies that anything can be known or shown to exist.* See Nihil ; Oath. 2. In Russia, a member of a secret society whose aim is the overthrow of authority as at present constituted, the ulterior view of the more advanced members being the es- tablishment of a socialistic or communistic republic.'' §ee Anaechy ; Communism ; Gov- ernment. NISI. L. Unless; conditionally. A rule or order which is to become abso- lute (g. V.) " unless " cause to the contrary be shown is termed a rule nisi. The continuance of a case nisi is to a time 1 State V. Dowers, 45 N. H. 644 (1S64), Bellows, J. ; Thomas v. State, 55 Ala. 260 (1876); State v. Russell, 14 R. I. .506 (1884). ' 4 Bl. Com. 292. 3 Siierer v. Easton Bank, 33 Pa. 133 (1859). < [Worcester's Diet. certain unless something shall occur to cause action to be taken upon the case before that time.i Nisi prills. Unless before. Formerly, was applied to a court holding jury trials. The two words were the most emphatic in the venire for summoning the jurors. - This use of the word originated in a, fiction. An issue of fact was to be tried at Westminster by a jury from the county wherein the cavse arose, " unless be- fore " the day set the judges, upon their circuit, came to that county.^ It being found a burden to compel the parties, wit- nesses, and jurors to go — say from Westmoreland, to try actions of trifling value at Westminster, the prac- tice obtained to continue such actions in the court at Westminster until the itinerant justices, of whom two were of the Westminster bench, came to the county where the cause arose, whereupon the cause was re- manded from Westminster for trial. For a period, the proceedings were returned to Westminster for judg- ment. Holding trials in this manner became the prin- cipal civil employment of the justices." An advocate is said to be a good nisi prius lawyer when he possesses the qualifications required to attain success in the management of trials at nisi prius. NO. See Award: Bill; Defense, 2; Funds; Goods. Compare Nul; Nullus. See also Number. , NO MAN'S LAND. See iNDLiN, Coun- try. NOBILITY. See Title, 4. NOISE. See Air ; Disorder ; Nuisance ; Police, 3. , , If a use of property is objectionable solely on ac- count of the noise which it makes, it is a nuisance, if at all, by reason of the effect upon the health or comfort of those who are within hearing. The right to make- a noise for a proper purpose must be measured with reference to the degree of annoyance which others may reasonably be required to submit to. In connec- tion with the importance of the business from which it proceeds, that must be determined by the effect of noise upon people generally, and not upon those, on the one hand, who are peculiarly susceptible to it, or those on the cither who by long experience have learned to endure it without inconvenience; not upon those whose strong nerves and robust health enable them to endui'e the greatest disturbances without suf- fering, nor upon those lyliose mental or physical con- dition makes them painfully sensitive to everything about them. That this must be the rule in regard to public nuisances is obvious. It is the rule as well, and for reasons nearly if not quite as satisfactory, in rela- tion to private nuisances. Upon a question whether one can lawfully ring his factory bell, or run his noisy 1 Commonwealth v. Maloney, 145 Mass. 208 (1887)., = 3B1. Com. 59. ' 3 Bl. Com. 352. NOLLE 711 NON machinery, or whether the noise will be a private nui- sance to the occupant of a house near by, it is neces- sary to ascertain the natural and probable effect of the sound upon ordinary persons in that house — not how it will affect a particular person who happens to be there to-da.y, or who may chance to come to-mor- row.* Where a noisy nuisance is complained of, it is a question of degree and locality. K the noise is very slight, and the inconvenience merely fanciful, or such as would be complained of by people of elegant and dainty modes of living, and inHicts no serious or sub- stantial discomfort, a court of equity will not take cog- nizance of it. But if unusual and disturbing noises are made, and particularly if they are regularly and persistently made, and if they are of a character to afiect the comfort of a man's household, or the peace and health of his family, and to destroy the comfort- able enjojrment of his home, a court of equity will pre- vent continuance of such injuries.^ NOLLE. L. To not wish or desire : non velle. Compare VoLO. WoUe prosequi. To not care to proceed. A record entry that the prosecutor does not care to proceed further in the particular case. An agreement not to proceed further in that suit, as to the particular person or cause of action to which it is applied. ^ Said of a judgment in a criminal case by which the attorney-general, or other repre- sentative of the state, voluntarily declares that he will not further prosecute a suit or indictment, or a particular count, or as to a particular defendant.* 1 Rogers v. Elliott, 146 Mass. 351 (March 2, 1888), cases, holding that a person who by reason of a sun- stroke was peculiarly susceptible to the noise caused by the ringing of a church bell, situated directly op- posite his house in a thickly popiilated district, can- not, in the absence of evidence of express malice, or that the bell was objectionable to persons of ordinary health and strength, maintain an action against the custodian of the church for sufferings caused by the ringing of the bell. " Appeal of Ladies' Decorative Art Club, 28 W. N. 75 (April 23, 1888). AfBrmed the lower court in enjoining the hammering of brass by the pupils of an art school located in a thickly populated square in the city of Philadelphia, to which the plaiptiff, with his family, had moved five years after the school had been opened, and into an adjoining house. Ball v. Ray, 8 Ch. Ap. 467 (1872), and Broder v. Saillard, 2 Ch. Div. 692 (1876), followed. See also Yocum v. Hotel St. George Co., 18 Abb. N. Cas. 340 (1886), cases,— in which the noise and vibration caused by an electric engine and dynamos was enjoined; 23 Cent. Law J. 510 (1886) - Solicitors' Jour. (London). » Minor v. Mechanics? Bank, 1 Pet. 74 (1828), Story, J. * Commonwealth v. Casey, 12 AUen, 218 (1866), cases. Sometimes spoken of as allowing a nolle. Not a bar to another prosecution for the same of- fense,* but such termination as will allow an action for malicious prosecution.* See Proseqtji. Nolo contendere. I do not care to dis- pute it. A plea in effect the same as a plea of " guilty," so far at least as regards proceedings on the particular indictment." NOM. See Nomen, Nomine. Nom. de plume. See Coptkight. NOMEN. L. A name. Nomen collectivum. A class name. Thus, " heir " may include all the heirs of a person, and " misdemeanor " includes many different species of offenses. Nomen generalissimum. A very gen- eral name : a comprehensive term. Such are the terms crime, demand, draft, estate, goods, grant, heir, house, instrument, interest, laud, merchandise, obligation, offense. Nomine. By name ; under the name of. NOMINAL. Existing in name only ; ap- parent, formal, not real or substantial: as, nominal — damages, date, partner, party, qq.v. NOMINEE. See Candidate; Officer; Resignation. NON. L. Not; no. A particle of negation, whether occurring as a single word or as a prefix to a word of affirmative sig- nification. Used with words of Latin origin. Un is used with words of Anglo-Saxon origin. 1. Pure Latin phrases : Non accrevit. See Acceesceee, Non assumpsit. See Assumpsit. Non oepit. See Capere. Non compos. See Mens. Non constat. See Constat, 1. Non cul; non culpatailis. See Culpa. Non damniflcatus. See Damnum. Non demisit. See Demitteke. Non detinet. Se« Detinere. Non est factum. See Facebe. Non est inventus. See Find, 3, Non juridicus. See Dies. Non obstante. See Veredictum. Non prosequitur. See Prosequi. 1 state V. Primm, 61 Mo. 166, 178 (1875), cases. ' Woodworth v. Mills, 61 Wis. 44, 60-53 (1884), cases; Graves v. Dawson, 113 Mass. 419 (1882), cases. See ,; generally 5 Crim. Law Mag. 1-16 (1884), cases. » Commonwealth v. Horton, 9 Hck. 206 (1829); Com- monwealth V. Tilton, 8 Mete. 282 (1844); United States V. Hartwell, 3 Cliff. 232 (1869), cases. NON 713 NOSCITUR ITon sui juris. See Jus. Ifon sum informatus. See Infoematus. Non usiprpavit. See Usurp. 3. Illustrative English compounds : Non-acceptanoe. See Accept, 3, Non-access. See Access. STon-age. See Age. Non-apparent. See Easement. Non-appearance. See Appeabance, 3. Non-assessable. See Assess, 1, Non-claim. See Claim. Non-combatants. See War. Non-commissioned. See Opfioer. Non-contestable. See Contest. Non-continuous. See Continuous. Non-court. See Day, Judicial. Non-delivery. See Delivery. Non-discovery. See Discovert. Non-intercourse. See Access. Non-feasance. See Feasance. Non-fulflUment. See Perb;oemancb. Non-joinder. See Joinder. Non-jurisdiction. See Jurisdiction. Non-payment. See Payment. Non-negotiable. See Negotiate, 3. Non-performance. See Performance. Non-resident. See Resident ; Tax, 3. Non-sane. See Insanity. Non-service. See Service, 6. Non-taxable. See Tax. Non-use; non-user. See Use, 1.. NONSUIT. Not following: failure in a plaintiff to make advance in his cause : a giv- ing up or renunciation of his suit. If the plaintiff is g:uilty of a delay or default against a rule of law, as, by not filing a pleading within the allotted time, he is adjudged *' not to follow " or pur- sue his remedy as he ought to do, and thereupon a ** nonsuit " or non prosequitur is entered, and he is said to be " nonpros'd." * " The plaintiff thereupon became nonsuit, and com- menced this action " in the circuit court.* After a nonsuit, and payment of costs, the plaintiff may begin suit again. After a retraxit — an open and voluntary renunciation of a suit — he forever loses his right of action.' Compulsory or involuntary, and vol- untary, nonsuit. When the plaintiff per- ceives that he has not given evidence suf- ficient to maintain the issue it is usual for him to be " voluntarily nonsuited," or to A^ithdraw himself.' ' 3 Bl. Com. 295-96, 316; 7 Q. B. D. 332; 12 Vt. 490. = Bucher v. Chesire E. Co., 125 V. S. 657 (1888). "3B1. Com. 376. For if he was not present when the jury came in to deliver their verdict, no verdict could be received.* An " involuntary " or " compulsory " non- suit is for neglect, in the plaintiff, either to appear, or, having appeared, for failure to present evidence sufficient in law to support a verdict in his favor.2 ■ In either case, the court, at the request of the de- fendant or his counsel, may enter a judgment of non- suit against the plaintiff. Judgments of involuntary nonsuit are not allowed in the Federal courts." Before the evidence in a case is left to the jury, there is a preliminary question fpr the judge, not whether there is literally no evidence, but whether there is any upon which the jury can find a verdict for the party producing it. If there is not sufQcient evidence, the judge may instruct the jury to find against the failing party. This has superseded the practice of demurrer to evidence: by which a party admits the truth of the testimony and the conclusions of fact the jury may fairly draw, but contests the legal suiHciency of the testimony. If the court is satisfied that, conceding all the infer- ences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury.* It would be an idle proceeding to submit evidence to a jury when they could justly find one way only.* See Defense, Affidavit of; IksTRPCT, 2; Scintilla. NORMAN. See Feud; French; Latin; Seal, 1. NORTH. Not synonymous with ' ' north- erly" or "northwardly." And "northly" and " northwardly " may mean due north.* Northern passage. See Art, 3. NORTHAMPTON TABLES. See Ta- ble, 4. NOSCITUR. L. It is known. Noscitur a sociis. It is known from its associates or associations. A word or a par- 1 8 Bl. Com. 376. "See Pratt v. Hull, 13 Johns. 334 (1816); Eunyon v. Central E. Co., 2S N. J. L. 656 (1856). ' Oscanyan v. Arms Company, 103 U. S. 264 (1880). * Pleasants v. Fant, 22 VFall. 121 (1874), cases, Miller, J.; Randall v. Baltimore, &o. E. Co., 109 U. S. 482 (1883), cases ; Suydam v. Williamson, 20 How. 436 (1857), cases; Phoenix Ins. Co. v. Doster, 106 U. S. 32 (1882), cases; Carter v. Goff, 141 Mass. 125 (1886), cases; 69 Ga. 619; 15 Kan. 244; 58 Me. 384; 106 Mass. 271; 40 Mo. 151; 89 N. C. 464 ; 49 N. J. L. 671 ; 91 N. T. 141 ; 64 Pa. 201 ; IS S. C. 23, 32. 'North Pennsylvania E. Co. v. Commercial Nat. Bank of Chicago, 123 U. S. 733 (1887). • See Garvin v. Dean, 115 Mass 378 (1874); Howard v. College of the Holy Cross, 116 id. 120 (1874); 1 Johns. 156; 21 Barb. 404; 1 Bibb, 53. NOSE 713 NOTE agraph is to be read in the light of its con- text or surroundings. A word is best understood by the meaning of asso- ciated words.' Wliere " printed matter " was named in a list with engravings, maps, chai'ts, and illnstrated papers, it was held that printed pietui-es (lithographs) were naturally associated with those articles." When several particulars are enumerated, followed by a general provision, the latter will be limited to things of like kind:' In a penal act, " things," in the expression " obscene books, pamphlets, ballads, printed paper or other things," means other things of like kind.* The principle extends to the interpretation of every species of writing, as, letters, libels, contracts, wills, as well as statutes." It is analogous to the principle of circumstantial evidence.* NOSE. See Mayhem. NOT. In its untechnical sense begins several phrases. Compare Ne ; NoN. Not a true bill. See Ignore. Not found. See Ignore. Not guilty. See Guilty. Not proven. See Proof. NOTABT.' Anciently, a scribe who took notes or minutes, and made short drafts of ■writings and instruments, both pubUc and private.^ Notary pubUe. An officer who pub- licly attests- deeds or writings to make them authentic in another country, principally in business relating to merchants.' An officer who confirms and attests the truth of writings, to render them available as evidence. Notarial. Pertaining to, originating with, a notary : as, a notarial act, a notarial seal. Some of his chief duties are connected with mer- cantile transactions, as in noting (g. v.) paper pre- sented for payment and dishonored. At common law, a minor could be a notary.'" " N. P.," for notary public, is in common use. The 'Neal c Clark, 95 U. S. 708(1877); Pickering v. McCullough, 104 id. 317 (1881); Adams v. Bancroft, 8 Sumn. 386 (1838). ' Arthur v. MoUer, 97 U. S. 368 (1878). « Harwood v. City of Lowell, 4 Cush. 318 (1849). •Commonwealth v. Dejardin, 126 Mass. 47 '1878); 105 id. 433. ' 1 Bl. Com. 60. •1 Greenl. Ev. §11. See also 31 F. B. 187; 54 Conn. 467; 3 Dak. 103; 35 Ohio St. 563; 61 Wis. 583; 62 id. 38. ' L. notarius, one who makes notes, a. scrivener: nota, a note. 8 [Byles, Bills, 282. "KirkseyiJ. Bates, 7 Port. 531 (Ala., 1838), Collier, Chief Justice. '"United States v. Bixby, 10 Biss. 523 (1881). courts take judicial notice of the meaning of the abbreviation.' In the absence of positive law prescribing otherwise, it is enough that the impress of a die seal used by him be readily identified upon inspection. The courts take judicial notice of the seals of notaries public, foreign as well as domestic, for they are officers recognized by the commercial law of the world." The use of the seal of another person was held not to invalidate the certificate of acknowledgment to a. chattel mortgage." See Protest, 2; Seal, 1. NOTE. 1. A brief statement in writing; a memorandum,* q. v. See also Refresh. Bought note; sold note. Where a broker is employed to buy and sell goods he gives the buyer a note of the sale called a " sold note," and the seller a like note called a " bought note," in- his own name, as the agent of each, and thereby they are respect- ively bound, if he has not exceeded his authority.5 " What he delivers to the seller is called the sold note: to the buyer the bought note." ^ Judge's notes. Memoranda taken by the judge who tries a cause, of the testi- mony of witnesses, of documents admitted in evidence, of offers of evidence, etc. They are no part of the record, and he is not re- quired to take them.' 2. A written promise to pay money; a " promissory note." Judgment note. A promissory note with a power of attorney authorizing entry of judgment by confession, in default of payment. Not generally negotiable, but transferable by formal assignment under seal. See further Attorney, War- rant of. Promissory note. A plain and direct engagement, in writing, to pay a sum speci- fied at the.time therein hmited to a person therein named, or, sometimes, to his order, or often to the bearer at large.s > Rowley v. Berrian, 12 111. 200 (1850). "Pierce v. Indseth, 106 U. S. 548-^9 (1882), cases. Field, J.; The Gallego, 30 F. E. 274 (1887); Story, Bills, § 277; 1 Greenl. Ev. § 5. "Muncie Nat. Bank v. Brown, Ind. Sup. Ct. (1887): 37 Alb. Law J. 68. * See Clason v. Bailey, 14 Johns. 402 (1817). » [Story, Agency, § 28, 9 ed., text and note. •1 Benj. Sales, § 276; ib. §§ 294-302, cases. See also Butler V. Thomson, 92 U. S. 416-17 (1875), cases; 1 Whart. Ev. § 76, cases. ' 1 Greenl. Ev. § 166. 8 2 Bl. Com. 0r. NOTE 714 NOTICE A written engagement by one person to pay, absolutely and unconditionally, to an- other person therein named, or to his order or to the bearer, a certain sum of money at a specified time or on demand, or at sight.' No precise words of contract are necessary, pro- vided they amount, in legal effect, to a promise to pay." Held to be valid notes were the following: " Due A. $325, payable on demand; " " I acknowledge myself indebted to A. $109, to be paid on demand for value re- ceived; " "I. O. U. S85 to be paid May 5th." ' A bank-bill is a promissory note, in an indictment for stealing or forging a promissory note.^ Giving a new note for an old one which bad become due, the amount and makers of the two notes being the same, will not be treated as payment or extin- guishment of the old note or of the pre-existing debt, unless the parties so expressly agree; but will be re- garded merely as an extension of credit upon the debt; and the surrender of the old note will not of itself raise a presumption of such agreement to extinguish the old note by the new one, it being considered as a conditional surrender and that its obligation is re- ceived, if the new note is not paid. And the new note will nob be regarded as a payment of the old even when it is so expressly agreed, if such agreement was obtained by the concealment of any material fact af- fecting the security of the debt; nor does the pre- sumption of payment apply where the creditor aban- dons some security which he held when he takes the new note. 5 Taking a note, bill or check in payment of another note is generally conditioned upon the payment of the latter — except, perhaps, in Indiana, Louisiana, Maine, Massachusetts, and Vermont. ^ ' Haised note. A negotiable promissory note increased in the amount called for on the face, by fraudulent alteration. If the maker is not chargeable with negligence in putting in circulation an instrument susceptible of alteration so as to deceive a person of ordinary cau- tion, he is not liable upon his raised note.' ■See further Alteration, 2; Bearer; Certainty; Check; Collection; Doe, 1; Exchange, a; Forqert; Genuine; Grace; I O U; Lost, S; Negotiable; Pat- ent, 2; Payment; Post-note. > Hall i;. Farmer, 5 Denio, 486 (1848), cases. Beards- ley. C. J. See also 13 Bradw. 101 ; 34 111. 170; 96 id. 144; 31 La. An. 122; 49 Me. 518; 60 Md. 685; 10 Neb. 287; 6 Cow. 108; 6 Humph. 304; 47 Wis. 665; 53 id. 606. " Cowan V. Halleck, 9 Col. 578 (1886), cases. ' 1 Daniel, Neg. Inst. § .39, cases. 1 Commonwealth v. Butts, 124 Mass. 452-63 (1878), cases; 126 id. 56, 262. « Merchants' Nat. Bank v. Good, 21 W. Va. 466, 464- 67 (1883), cases, Snyder, J. ; Green v. Russell, 132 Mass. 536 (1882). « Henry v. Conley, 48 Ark. 271-72 (1886), cases; 2 Dan. Neg. Inst. § 1260. ' Knoxville Nat. Bank v. Clark, 51 Iowa, 264 (1879), casesl ' .:" NOTICE.i In its untechnical sense, is equivalent to information, intelligence, knowledge. 2 1. In its legal sense, embraces a knowledge of circumstances that ought to induce sus- picion or belief, as well as direct inf ormation.3 Actual notice. Notice directly and per- sonally given to the party to be notified. Constructive notice. When the party, by circumstances, is put upon inquiry, and must be presumed to have had notice, or, by judgment of law, is held to have had notice.^ Whatever fairly puts a party upon inquiry, where the means of knowledge are at hand, is constructive notice of all the facts a proper inquiry might have ascertained.^ Express is used by some writers for actual., notice, and implied for constructive, V A subsequent purchaser has actual notice of record when he has actual knowledge of such facts as would put a prudent man upon inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of the right or title in conflict with that which he is about to purchase.^ Constructive notice is a legal inference from established facts ; ' no more than evi- dence of notice, the assumption of which is so violent that the court will not allow of its being controverted.^ Thus, it a mortgagee has a deed put into his hands which recites another deed showing a title in a third person, the court will conclusively presume that he has notice of that fact.^ Constructive notice is resorted to from the neces- sity of finding a ground of preference between equities otherwise equal, but the doctrine cannot be applied in support of a charge of direct personal fraud.' The doctrine of constructive notice depends upon two considerations: first, that certain things existing in the relation or the conduct of parties, or in the case between them, begjet a presumption so strong of act- ual knowledge, that the law holds the knowledge to exist because it is highly improbable that it should not 1 L. notitia, a being known. "Wile V. Town of Southbury, 43 Conn, 54 (1875), Par- dee, J. ; United States v. Foote, 13 Blatoh. 420 (1876). s Pringle v. Phillips, 5 Sandf. 165 (N. Y., 1851), Duer, J. < Jordan v. Pollock, 14 Ga. 156 (1863); Johnson v. Dooly, 72 id. 299 (1884). ' Angle V. Northwestern Mut. Life Ins. Co;, 92 U. S. 342 (1876), cases, Clifford, J. As to proving actual no- tice, see Knapp v. Bailey, 79 Me. 202 (1887). • Brinkman v. Jones, 44 Wis. 498, 521-33 (1878), cases, pro and con; 1 Harv. Law Rev. 1-16 (1887), cases. ' Birdsall v. Russell, 39 N. Y. 249 (1864). » Plumb V. Fluitt, 2 Anstr. 438 (1791), Eyre, C. B. Ap- proved, Townsend v. Little, -109 U. 8.511.(1883), cases. "Wilde I'. Gibson, 1 H, L. Cas. 623 (1848), Cottenham, Lord Chancellor. NOTICE ri5 NOTICE «xist; second, that policy and the safety of the public forbid that a person should deny knowledge while he is so acting as to keep himself ignorant, or so that he may keep himself ignorant, and all the while his agent know, and he himself, perhaps, profit by that knowl- edge.' Constructive notice is knowledge imputed by the court on the pvesiunption, too strong to be rebutted, that the knowledge must have been communicated.'' To confine actual notice within the narrow limits of actual knowledge, as a definition, is to render the former next to impossible of application. To insist that it must be imparted in words, verbal or writterf, is too exclusive on its face to render the definition of utility. " Conatructive notice " (so-called) is depend- ent upon actual facts, and " actual notice " upon con- clusions of law. The only necessity for drawing the distinction nicely is wliere actual notice is impera- tively demanded.^ The doctrine of constructive notice from possession is applied as a shield to protect him who has equitable rights.* A party to a suit is Constructively present in court during the entire term at which his cause is set for hearing, and, as th^ doings of the court are matters of record, he is chargeable with notice of all that is done during the term affecting the suit.^ There must be notice of some kind, actual or con- structive, to a valid judgment affecting one's rights; . and, until given, the court has no jurisdiction over the subject-matter or the person. This affords opportunity 10 be heard upon the claim or charges made, and is a summons to him to appear and speak, if he has any- tMng to say, why the judgment should not be ren- dered." A person not notified of an action nor made a party thereto, and who had no opportunity or right to con- trol the defense, introduce or cross-examine witnesses, or to prosecute a writ of error, is' not bound by the judgment that may be rendered.' But, unless so di- rected or intended by statute, the notice need not be "personal."' See Cite, 2; Indictment; Kmowlbdbe, 1; Pkocess, 1, Due; Record; Sebvice, 3. ■Kennedy v. Green, 3 Mylne & K. *719 (1834), Brougham, L. C. ' 1 Story, Eq. g 399, cases. ' 19 Am. Law Rev. 74, 89 (1885), W. P. Wade; Wade, Notice, Ch. I, II, cases. 4 Gill V. Hardin, 48 Ark. 412 (1886); Groton Savings Bank v. Batty, 30 N. J. E. 131 (1878). See generally 23 Alb. Law J. 116-27 (1881),' cases; 24 Cent. Law J. 290 (1887), cases; 10 id. 313-14 (1880), cases. 6 Railroad Co. v. Blair, 100 U. S. 663 (1879). •Windsor v. McVeigh, 93 U. S. 277 (1876), Field, J.; Pennoyer v. Neff, 95 id. 727 (1877); St. Clair v. Cox, 106 id. 353 (1883); Freeman v. Alderson, 119 id. 188 (1886); Sabariego v. Maverick, 124, id. 292 (1888), cases; Eliot u. MoCormick, 144 Mass. 11 (1887); 18 Blatch. 28; 12 F. B. 398, 401 i 9 Oreg. 210. 'Hale V. Finch, 104 U. S. 265 (1881): Brooklyn City, &c. R. Co. V. National Bank, 102 id. 21 (1880). sBetancourtxi. Eberlin, 71 Ala. 468 (1882), cases. Ju-dieial notice. The knowledge which a judge will officially take of a fact without proof. A court will notice, judicially, a thing in the com- mon knowledge and use of the people throughout the country: as,— the general customs and usages of merchants; the seals of notaries; things which must happen according to the laws of nature; the coinci- dence of the days of the weekwith those of the month; the meaning of words in the vernacular language; the customary abbreviations of Christian names; the ac- cession of the Chief Magistrate to office, his leaving it, and the appointment of members of his Cabinet; the election and resignation of Senators; the appointment of marshals and sheriffs, but not of their deputies; of the ports and waters where the tide ebbs and fiows; of the boundaries of the States, and of judicial and col- lection districts.' So, of law, statutory, constitutional, and military, the law-merchant, maritime law, and the ecclesiastical laws of Christendom as part of the common law.:" See Law, Foreign. Executive and judicial documents are judicially noticed. The public seal of the state and the seals of courts are self-prov- ing. The existence of foreign sovereignties is also noticed; likewise, judicial offlcers and judicial prac- tice.' So is the course of the seasons; the limitation of life as to age ; the demonstrable conclusions of science and of political economy; the familiar principles of psychological and physical laws; leading political appointments; leading public events; leading domes- tic geographical features. In fine, whatever is known to all intelligent persons in the community, is received as true beyond dispute; for notoriety needs no proof.* Yet the power is to be exercised with caution. The requisite notoriety mu.st exist. Every reasonable doubt is to be resolved in the negative.' The courts of the United States take judicial notice of the public statutes of the several States." Kecord notice. The contents of a record, or of that which is legally recorded in a pub- lic record, is supposed to be known to all the world. Not demandable by the parties to an instrument, or by such other persons as have actual notice." See Record: Keqistrv. Without notice. A brief expression for " without notice of fraud or other fact in- validating title." Most frequently applied to an innocent holder of commercial paper. See Negotiable. 3. A letter or memorandum containing in- 1 Brown v. Piper, 91 U. S. 42-43 (1876), cases, Swayne, Justice; 104 id. 43. 2 1 Whart. Ev. §§ 276-86, cases: 24 Kan. 715. 3 1 Whart. Ev. §§ 317-26, cases. < 1 Whart. Ev. §§ 327-40, cases. See generally 24 Am. Law Reg. 553-73(1885), cases. ^Knower i'. Haines, 31 F. B. 513 (1887); Fourth Nat. Bank v. Francklyn, 120 U. S. 751 (1887); Hanley v. Donoghue, 116 id. 6 (1685), cases. « Moore v. Simonds, 100 U. S. 145 (187B). NOTING 716 NOVELTY formation by advertisement, posting, or per- sonal service. See Place, 1, Public; Proc- lamation; Publication. A notice required by common law need not be in writing; otherwise as to a notice which a statute di- rects to be given, 1 See' Notify. '"Legal notices " was hfeld not to include proceed- ings of a common council, within the meaning of a law providing for advertising certain notices." Notices, known by various names and in great nxun- ber, are in daily use: as, notice — of acceptance of a bill of exchange; of an action about to be brought against a justice of the peace; to admit the genuine- ness of a document; of appearance; of dishonor, non- payment, protest; of lis pendens; of a motion for an order or rule; to plead to a declaration or to a bill; to produce (g. v.) papers at a trial; to quit possession of leased premises. The duty of an insured to pay his premium on the day specified is the same whether notice be given or not of the day. And banks are not obliged to give notice of the approaching maturity of a promise to pay a note or bill.^ If otify. In legal proceedings, and in re- spect to public matters, imports notice given by some person whose duty it is to give it, in some manner prescribed, and to some person entitled to receive it.< The word does not require a written notice, imless expressly so stated.* Ifotiflcation. In the law requiring that the holder of dishonored paper shall give notice of that fact to antecedent parties, "notice" does not mean mere knowledge, but actual notification.* NOTING. The minute made on a bill of exchange by the officer at the time of refusal of acceptance or payment. Consists of his initials, the month, day, year, and his charges for minuting, and is considered as prepar- atory to protest.^ NOTORIOUS.8 1. Manifest to all per- sons ; generally known ; open : as, a notorious act of ownership,^ a notorious mistake in a ■Jones D. Van Zandt, B How. 225 (1847); Lane v. Gary, 19 Barb. 538-39 (1855), oases; People v. Croton Aqueduct Board, 26 id. 248 (1S57); Pearson v. Lovejoy, B3 id. 411 (1866), cases; Vinton v. Builders', &c. Asso- ciation, 109 Ind. 363 (1886). ' MaoArthur v. City of Troy, 24 Hun, 55 (1881). ' Thomipson v. Knickerbocker Life Ins. Co., 104 U. S. 258 (1881), Bradley, J. ' Potwine's Appeal, 31 Conn. 384 (1863), Butler, J. See also Mlnard v. Douglas County, 9 Oreg. 310 (1881); 50 Mich. 277. , * Vinton v. Builders', &o. Association, 109 Ind. 353 ■(1886). " Byles, Bills, § 271, cases. ' [Byles, Bills, § 263; 4 Term, 175. * L. notorius, manifest: notus, known. «3B1. Com. 174. • record,! a custom (q. v.) which has become notorious. Referring to adverse possession (g. v.), denotes that the possession must be more than secret, and unknown to the disseised owner.* In Maryland, whether intestacy be so " notonous " as not to require proof, so that letters may issue forth- with, is a matter within the knowledge and judgment of the probate judge.^ See also Entbt, 1, 1; Notice, Judicial; Open, 2 (13). 2. Known to discredit or disadvantage ; of •bad or questionable repute. See Fame, Ill- fame. NOVATION.^ The substitution of one debtor for another, or of a new for an old obligation, which is thereby extinguished.^ The doctrine is of civil-law origin. The common- law equivalent is " assignment " or " merger." The requisites are: a previous valid obligation; agreement of all parties to the new contract; extinr guishment of the old contract; and a valid new con- tract.* In the civil law, the substitution may be in the debt, the debtor, or the creditor.^ The new creditor may maintain an action in his own name, founded upon the assignment and the ex- press promise of the debtor to pay him. Without this promise, the assignee m ust sue in the name of the as- signor. ^ See Assignment, 2; Delegation, 2. NOVEL. See Assignment, 1. NOVELTY.9 The quality in an inven- tion of being "new:" this pertaining to the general relations of the invention to the ex- isting state of the art. See New, 1. Want of novelty will defeat an application for a pat- ent, invalidate a patent already issued, and defeat an action for an infringement. When a machine is new and its product or manu- facture old, the machine is patentable. When the machine is substantially old and the product new, the product is patentable. When both are new, both are patehtable. And so of processes and their results. Patentability may exist as to either, neither, or both, according to the fact of novelty or the opposite. ■* It is not sufficient that the thing is new and useful; and the author must find it out by mental labor and ■ 4 Bl. Com. 391. ' Sheaffer v. Eakman, 56 Pa. 163 (1867), Strong, J. = Bslin V. District of Columbia, 23 Ct. 01. 162 (lgS7). * L. novatio: novus, new. * [Guichard ti. Brande, 57 Wis. 636 (1883), Cole, 0. J. » Clark V. Billings, 59 Ind. 509 (1877), Biddle, C. J. ; 64 id. 413. ' Adams V. Power, 48 Miss. 454 (1873). sMowry v. Todd, 12 Mass. '•284 (1815), Parker, C. J.; Derby v. Sanford, 9 Cush. 264 (1852); 8 Paige, Ch. 238; 9 Baxt. 10. "L. novellitas^ newness: novus, new. "Rubber Company v. Goodyear, 9 Wall. 796 I Swayne, J. NOVELTY 717 NUISANCE intellectual creation. If the result of accident, it must be what would not occur to all persons skilled in the art, who wished to produce the same result. There must be some addition to the common stock of knowledge, not merely the first use of what was known before. ' A new combination, if it produces new and useful results, is patentable, though all the constituents were well known and in common use before the combina- tion was made. But the results must be a product of the combination, not a mere aggregate of several re- sults, each the complete product of one of the combined elements. Combined results are not necessarily a novel result, nor are they an" old result by a new and improved manner. Merely bringing old devices into juxtaposition, and allowing each to work out its own effect, without the production of something novel, is not invention.' The combination must produce a different force or effect, or result in the combined forces or processes, from that given by the separate parts. There must be a new result produced by their union; if not so, it Is only an aggregation of separate elements. Thus, sulphur, mixed with India-rubber, produces vulcanized rubber — a new article. The action of a stem-winding watch is another instance. In each case the result comes from the combined effect of the several parts, not from the separate action of each part. The re- quired result does not follow from attaching a piece of rubber to a lead-pencil. ^ The combination must form either a new machine of a distinct character and function, or produce a re- sult due to the joint and co-operating action of all the elements, and which is not the mere adding together of separate combiiiations. Otherwise, it is a mechan- ical juxtaposition, not a vital union.' The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in ad- vance in the useful arts, not to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of ■exclusive privileges would tend to obstruct rather than stimulate invention.^ The application of an old process or machine to a similar or analogous subject, with no change in the manner of application, and no result substantially dis- tinct in its nature, will not sustain a patent, even if the new form of result has not before been contemplated.' See further Combination, 1 ; Patent, 2. » Earle v. lawyer, 4 Mas. 5 (1825), Story, J. 2 Hailes v. Van Wormer, 20 Wall. 368 (1873), Strong, J. = Eeckendorfer v. Faber, 92 U. S. 357-58 (1876), Hunt, Justice.' * Pickering v. McCullough, 104 U. S. 318 (1881), Mat- thews, J. » Atlantic Works v. Brady, 107 U. S. 201 (1882), Brad- ley, J.; Phillips V. Detroit, 111 id. 608 (1884); 17 F. E. 630. • Pennsylvania R. Co. v. Locomotive Truck Co., 110 U. S. 494 (1884), cases, Gray, J. NOVUS. See Novation ; Novelty ; Ve- nire, De novo. NOW. See Immediately ; Nunc. NOXIOUS. See Animal; Cruelty, 3; Nuisance. To constitute the offense of administering a " nox- ious thing," within the meaning of the statute of 24 and 25 Vict. (1861), c. 180, s. 58, the thing must be nox- ious in itself, not merely so when taken in excess, and although it may have been administered with intent to injure or annoy. ' See Administer, 1. NUDE. See Indecency; Naked, 1; Ob- scene; Obligation, 1; Pact. NUDUM. See Pactum. NUGATORY.2 Of no force ; ineffectual ; null, q. V. " Laws without competent authority to secure their administration from disobedience and contempt woidd be vain and nugatory." " A direction in a will may be " nugatory and void." * See Felo de sb, 2. NUISANCE.5 Whatever unlawfuUy an- noys or does damage to another. As an injury to realty: anything that worketh hurt, inconvenience, or damage.^ That which annoys and disturbs one in the possession of his property, rendering its ordi- nary use or occupation physically uncom- fortable to him." An actionable nuisance is anything wrong- fully done or permitted which injures or annoys another in the enjoyment of his legal rights.^ Something which produces retil discomfort or an- noyance through the medium of the senses; not from delicacy of taste or a refined fancy. The injury must be physical, not purely imaginative.^ A person who is injured by a "continuing nui- sance " may maintain an action against the original tort feasor who creates it, or against any grantee who continues it after a request to abate it.'" ' Regina v. Hennah, 19 Moak, 570 (1877); The Queen V. Cramp, 29 id. 314 (1880). ^L, nugatoriuSf worthless, useless, futile: nugax^ trifiing. 8 4 Bl. Com. 286. •Newcomb v. WUliams, 9 Meto. 533 (1846). * F. nuisance, a hurt; nuire: L. nocere, to hurt. •3 Bl. Com. 6, 210; 49 Conn. 117; 39 Ga. S18; 32 Tex. 210. ' Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 329 (1883), Field, J. 6 Railroad Co. v. Carr, 38 Ohio St. 453 (1882): Cooley, Torts, 565. » Westcott V. Middleton, 43 N. J. E. 486 (1887). '"Prentiss v. Wood, 132 Mass. 488 (1882), cases. See Sloggy V. Dilworth, Sup. Ct. Minn. (1888), cases: 2(5 Cent. Law J. 442-43 (1888), cases. NUISANCE 718 NUL Cases of nuisance which rest for their sanction upon the intent of the law under which they are cre- ated, the paramount power of the legislature, the principle of the "greatest 'good of the greatest num- ber," and the importance of the public benefit and convenience involved in their continuance, are termed " legalized nuisances," * Private nuisance. Anything done to the hurt or annoyance of the lands, tene- ments, or hereditaments of another. Pub- lie or common nuisance. Doing a thing to the annoyance of the public, or neglecting to do a thing which the common good re- quires. 2 Examples: a house so close to another as to cause rain-water to fall upon its roof; animals kept so near a dwelling-house that tiie stench taints the air; any offensive trade, as, a tanner's, a tallow-chandler's, lead- works the fumes of which poison the herbage; diverting water that naturally runs to another's land; corrupting or poisoning running water by maintaining a dye-house or a lime-kiln ; obstructing a right of way ; a ferry or bridge unlawfully near another; disorderly houses; and all lotteries.' A business which is lawful, carried on reasonably, and does not necessarily affect health, comfort, or the ordinary uses and enjoyment of property in the neigh- borhood, is not a nuisance in fact or in anticipation.^ As the atmosphere cannot rightfully be infected with noxious smells or exhalations, so it should not be caused to vibrate by ringing bells, in a way to wound the sense of hearing.* Noise (as, the ringing of a factory bell), which con- stitutes an annoyance to a person of ordinary sensibil- ity to sound, such as materially to interfere with the ordinary comfort of life, and impair the reasonable enjoyment of his habitation, is a nuisance to him, the continuance of which may be restrained by injunc- tion." See Noise. If a party may acquire a prescriptive right to con- tinue a nuisance, it can only be by continuous use for twenty years. No acqtiiescence short of that period will bar one from complaining of the nuisance, unless by some act or omission he has induced the party causing the nuisance to incur large expenditures, or tb take some action upon which an estoppel may be 1 Fertilizing Company v. Hyde Park, 97 TJ. S. 670 (1878), Swayne, J. *3 Bl. Com. 316; 4 id. 166; 40 Ark. 87; 49 Conn. 117; 7 Ga. 311; 80 Ky. 138, 146; 30 Me. 174; 74 id. 371; 34 Mich. 473; 80 N. Y. 582; 37 Ohio St. 516; 17 Tex. 503; 1 McLean. 381. 3 3 Bl. Com. 216-20; 4 id. 167-69. < Ehodes v. Dunbar, 57 Pa. 290 (1868); Strawbridge v. Philadelphia, 13 Rep. 216 (1882). Harrison v. St. Mark's Church, 3 W. N. C. 384 (1877): 15 Alb. Law J. 248, 245. 8 Davis v. Sawyer, J 33 Mass. 390 (1883), cases. See further, as to a planing-mill, Hurlburt v. McKone, 55 Conn. 31 (1887), cases. T Campbell v. Seaman, 63 N. T. 568, 584 (1876), cases. Belief is had by abatement, ^ injunction, action for damages, or criminal prosecution. A public nuisance can only be redressed by public prosecution, unless the complainant suffers damage diffei-ing in kind from that sustained by the public at large.* In regard to public nuisances, the jurisdiction of courts of equity^ seems to be of a very ancient date. The jurisdiction is applicable not only to public nui- sances, strictly so called, but to purprestures upon public rights and property. An indictment lies to abate public nuisances, properly so called, and to punish the offender; and an information lies in equity to redress the grievance b'^ injunction.^ The ground of this jurisdiction is the ability of courts of equity to give a more speedy, effectual, and permanent remedy than can be had at law. They cannot only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate 'those in progress, and, by perpetual injunction, protect the public against them in the future ; whereas courts of law can only reach existing nuisances, leav- ing future acts the subject of new proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubt- edly exists.* Courts of law afford redress by giving damages against the wrong-doer, and, when the cause of the an- noyance is continuous, courts of equity will restrain the nuisance. . . Grants of privileges or powers to corporate bodies confer no license to use them in dis- regard of the private rights of others, and with immu- nity for their invasion.^ The measure of damages is not simply the depreci- ation of the property; the jury may take Into consid- eration personal discomfort, and any causes which produce a constant apprehension of danger.* See Abatement, 3; Air; Blacksmith Shop; Dam- ages; Health; Ik junction; Pardon; Police, 2; Pur- PRESTURB ; Undertaker. WITL. No, no one, none. Law-French, from Latin nullus^ q. v. Nul agard. No award, q. v. iSee Bowden v. Lewis, 13 R. 1. 191 (1881); 19 Cent. Law J. 4^-45 (1884), cases. 2 School District v. Neil, 36 Kan. 619-20 (1887), cases; Hogan V. Central R. Co?, 71 Cal. 86 (1886). 3 2 Story, Eq. §§ 921-22. 4 Mugler V. Kansas, 123 U. S, 6V2-73 (1887), cases, Harlan J. That an injunction will not be granted where there is a remedy at law, see Sellers v. Parvis Co., 30 F. R. 164 (1887). ^ Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 331 (1883); Georgetown v. Alexandria Canal Co., 12 Pet. 91 (1838); Pennsylvania v. Wheeling Bridge Co., 13 How. 518 (1851); Mississippi, &c. R. Co. V, Ward, 2 Black, 485 (1862); Parker v. "Winnipiseogee Co., ib. 545(1862); 49 Md. 277; 50 id. 516; 10 Oreg. 170, 172; 2 Bish. Cr. L. § 856; Whart. Cr. L. § 1410. * Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 335 (1883). NULL 719 NURTURE Nul disseisin. No disseisin : the gen- eral issue in a real action. Iftil tiel corporation. No such corpora- tion : a plea denying the existence of a cor- poration. Nul tiel record. No such record : a plea denying the existence of the alleged record upon which an action has been brought. See Record, Nul, etc. Nul tort. No wrong: a plea denying wrong alleged, in a real action. See Toht, 1. Nnl waste. No waste: a plea denying alleged waste, q. v. NULL. As nothing; as if not existing, made, or done ; without force or effect ; in- valid. See Nugatory ; Nullus. Ifiillity. An act which has no more ef- fect than if it had not been done; a proceed- ing of no legal effect or efficacy. Such a defect as renders the proceeding in which it occurs totally void, of no avail or effect whatever, and incapable of being made so.i See Void. NXTLLITS. L. No person; nothing; no. Kulla bona. No goods. See Bona, 3. Ifiillius Alius. See Filius. Nullum artaitrium. No award, q. v. Nullum commodum.. See Commodum. Nvilltim simile. See Similis. Nullum tempus. See Tempus. NUMBER.^ See Ant; DBSCElFTiOJf ; Divers; Indictment ; Tkade-mark ; Unusual. " A number of days " and " some days " may mean two or more days, but neither expression necessarily includes more than two days' The plural number includes the singular. Thus, in construing a penal statute, "houses " will apply to a house, " notes " to a note, etc.* NtnytERALS. See Figures; Ncmber. NUNC PRO TUNC. L. Now for then. Said of a thing done in the present time which is to have the same effect as if it had been done at a time gone by, when it should have been done.' > [Salter v. Hilgen, 40 Wis. 365(1876); Jenness v. La- peer Circuit Judge, 42 id. 471 (1880); MacNamara, Nul- lities, &c., 4; 85 Tex. 530. 2L. numerus. The Eng. "No." is from numero, in number. s Chase v. aeveland, 44 Ohio St. 513 (1886). ■■ See E. S. § 1 ; 1 Bl. Com. 88 ; State v. Main, 31 Conn. 574-75 (1863), cases; State v. Nichols, 83 Ind. 228 (1882), cases; 87 id. 54; 71 Ala. 157; 29 Kan. 734; 54 Mieh. 243, 647:. 77 Mo. 246; 11 Biss. 111. » See Secou v. Leroux, 1 N. Mex. 390 (1866). Thus, when a party has omitted to take some step which he ought to have taken, as, to file the service of a notice or a pleading, the court will sometimes permit him to do it after the proper time has passed, and ac- cord to it the effect it would have had if regularly done in due season. A decree nunc pro tunc is admissible where a decree, which was ordered or intended to be entered, was omitted by inadvertence of the court. ^ Courts always have power over their own records to make them conform to what was actually done at the time, nunc pro tunc.^ Every court has a right to judge its own records and minutes; and if it appear that an order made at a former term was not entered of record, it may at any time direct it to be entered as of the term when made, whether the proceeding be criminal or civil. a Whether an order for entry of judgment nunc pro tunc shall be made is a matter of discretion with the court, to be exercised as justice may reo[uire, in view of the circumstances of the case.' See Actus, Curiae; Laches; Term, 4. NUNCIO. See Minister, 3. NUNCUPATIVE.5 Originally, to pro- nounce or declare publicly in solemn words. In the civil law, to pronounce orally or in words without writing; to dictate. 6 Whence nuncupatory, nuncupation. A nuncupative will depends upon oral evidence, being declared by the testator m extremis before a sufloient number of witnesses, and afterwards re- duced to writing.' " Last sickness," referring to the making of a nun- cupative will, means in extremis; that is, the law con- templates sudden and severe illness immediately preceding physical dissolution, when there is neither, time nor opportunity to make a written wUl, in which case, of necessity, a will must be verbal.* See further Will, 2. NUNQUAM. See Assumpsit. NUPTIAL. " Ante-nuptial " and "post- nuptial" refer, respectively, to a contract entered into or other act done by a woman before marriage, and after marriage. See Husband ; Settle, 4. NURSERY TREES. See Emblements. NURSING-. See Medical, Attendance. NURTURE. See Guardian. 'Gray v. Brignardello, 1 Wall. 630 (1863); MitcheU V. Overman, 103 U. S. 65 (1880). ' Mtna, Fire Ins. Co. v. Boon, 95 U. S. 125 (1877). a Benedict v. State, 44 Ohio St. 684-85 (188T), cases. t Borer v. Chapman, 119 IT. S. 596 (1887), cases. * Nun-cu'-pa-tive, or -nun-'. L. nuncupare: nomine, by name ; capere, to take, call. " [Succession of Morales, 16 La. An. 269 (1861). '2 Bl. Com. 600; 4 Kent, 576; 1 Jarm. Wills, 130, 136. 8 Carroll v. Bonham, 42 N. J. E. 627 (1886), note. Sec generally 2 Law Q. Eev. 444-52 (1886); 26 Am. Law Eeg. 570-72 (1887), cases. o 730 OATH o. O. Is sometimes used as an abbreviation : O. C Old code ; orphans' court. O, S. Old series. OATH, 1. Calling God to witness the truth, of what is said.i A solemn adjuration to God to punish the af&ant, if he swears falsely.^ A religious asseveration by which a person renounces the mercy and imprecates the ven- ;geance of Heaven, if he does not speak the truth.3 Assurance of the truth of an assertion by an appeal to an object which is regarded as high and holy.* Belief in a future state of rewards and punish- ments, entertaining just ideas of the moral attributes of the Supreme Being, and a firm persuasion that he superintends and will finally compensate every action in human life, — these are the foundation of all judicial •oaths; which call God to witness the truth of those facts which, perhaps, may be known only to Him -and the party attesting.* The sanction of an oath is a belief that the Supreme Being will punish falsehood; and, whether that pun- ishment is administered by remorse of conscience or in any other mode in this world, or is reserved for the future state of being, cannot affect the question, as the sum of the matter is » belief that God is the Avenger of falsehood.' " Oaths were instituted long before the beginning of the Christian era, and were always held in the highest veneration. The substance of an oath has nothing to do with Christianity. The forms have always been different in different countries. But still the substance is the same, which is that God in all of them is called upon to witness to the truth of what we say. Such infidels who believe a God and that he will punish them if they swear falsely," may be admitted AS witnesses. And *' such infidels (if any such there be) who either do not believe a God, or, if they do, do not think that he will either reward or punish them in this world or In the next, cannot be witnesses in any case nor under any circumstances, . . because an oath cannot possibly be any tie or obligation upon them."' SeeATBUEisT; Infidel. 1 Parkas v. Parkes, 25 E. L. & E. 61'9 (1852). 2 Blocker v. Bumess, 2 Ala. 355 (1841). s King V. White, 2 Leach, Cr. Cas. 483 (1786). * [Savigny, Rom, Eecht. Vin, 48. = 4 BI. Com. 43. 8 Blocker v. Bumess, supra. See also Chappell v. State, 71 Ala. 324 (1882); Bush v. Commonwealth, 80 Ky. 248, 250 (1883); 7 Conn. 79; 10 Ohio, 123; 13 Vt. 366. ' Ormichund v. Barker, Willes, 545, 547, 549 (1744), Willes, C. J.; 1 Sm. L. C. 194. See also Wakefield v. Koss, 5 Mas. 19 (1827); United States v. Kennedy, 3 McLean, 175 (1843); Bush -v. Commonwealth, 80 Ky. Assertory oath. See Official Oath. Corporal oath. An oath taken by kiss- ing or laying the hand upon a copy of tiie Gospels. Synonymous with " solemn oaiii " or an oath taken with the uplifted hand. " So called from the ancient usage 6t touching the corporate or cloth that covered the consecrated elements." ^ Applies to any bodily assent to the oath.'* Judicial oath. An oath administered in some judicial proceeding, under direction of law. Extra-judicial oath. An oath taken without direction or authority of law. In the Revised Statutes or any act or resolution of Congress, passed subsequently to February 35, 1871. a requirement of an " oath " shall be deemed complied with by making affirmation, in judicial form.^ See Affirm, 4. An extra-judicial oath, when false, does not expose the person to punishment for perjury. A common form for the judicial oath, which is usually adminis- tered by the clerk of the court to the witness, who either kisses a copy of the Gospels or raises his right hand toward Heaven, is, in substance: "You do swear that, in this issue joined between A and B, you. will tell the truth, the whole truth, and nothing but the truth. So help yoii God," — or " as you shall answer at the Great Day. ' ' But the form deemed most obliga- tory by the witness will always be used.* The testimony of living witnesses personally cogni- zant of the facts of which they speak, given under the sanction of an oath in open court, where they may be subjected to cross-examination, affords the greatest security of truth.* A child under seven may testify if the court be first satisfied, by examination, that he appreciates the obligation of an oath.." In English practice, it is usual for the judge to ex- amine the child as to his competency to testify, and if found incompetent to defer trial till such a time as he may, by instruction, be qualified to take an oath. Some American authorities favor this practice.' Perjury (g. v.) consists in taking a false judicial oath.^ The time and form of administering oaths, as well 348-49 (1883); 1 Whart. Ev. §§ 395-96, cases ; 1 Greenl. Ev. §328;15Mass. 184. 1 Jackson v. State, 1 Ind. 185 (1848): Webster's Diet. 2 State V. Non-is, 9 N. H. 101 (1837). 3R. S. §§ 1, 5013. *'l Whart. Ev. §§ 386-88. "All witnesses shall give or deliver in their testimony, by solemnly promising to speak the truth, the whole truth, and nothing but the truth, to the matter or thing in question." — Great Law of Penn. (1682), Ch. XXSyi: Linn, 116. e Chaffee v. United States, 18 Wall. 541 (1873). « Hughes V. Detroit, &c. R. Co., Sup. Ct. Mich. (1887), cases. ' Commonwealth v. Lynes, 142 Mass. 5T9-80 I » United States v. Grottkau, 30 F. E. 672 (1887). OATH 731 OBIT as the persons empowered to administer them, are regulated by statute.' Oath decisory; decisive oath. In civil law, where a party to a suit was not able to prove his charge and offered to refer the de- cision of the cause to the oath of his adver- sary. ^ This the adversary was bound to accept, or tender the same proposal bacl£ again ; otherwise the matter was talten as confessed. The sacramentum decis- ionis.^ Oath in litem. In civil law, an oath taken by the complainant as to the value of the thing in dispute, on failure of other proof, and to prevent a defeat of justice.' Oath of ofla.ce; ofllcial oath. An oath taken by an oflacer that he will faithfully discharge the duties of his office. An assertory oath is an oath required by law upon induction to ofSce. A promissory path is an official oath that the person will discharge the duties required of him. The breach of these oaths may not involve perjury.* The form of official oaths is prescribed by statute or the constitution. Thus, " Before he [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation:— I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitu- tion of the United States." ° "The Senators and Representatives . and the Members of the several State Legislatures, and all ex- ecutive and judicial Officers, both of the United States and of the several States, shall be bound by O^th or Affirmation, to support this Constitution. . ." » " No person shall be a Senator or Eepresentative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an of- ficer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebell- ion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability." ' The political disabilities imposed by that amend- ment were removed by act of May 22, 1872, except as to Members of thethirty-sixth and thirty-seventh Con- > See Oaks v. Eodgers, 48 Cal. 197 (1874); Arnold v. Middletown, 41 Conn. 206 (1874). »8 Bl. Com. 842. See Dunlap, Adm. Pr. 290. »See 1 Greenl. Ev. § 348; 1 Pet. 591, 596; 16 id. 203; 9 Wheat. 486; 16 Johns. 193. * See State v. Dayton, 28 N. J. L. 49, 54 (1850). = Constitution, Art. 11, sec. 1, cl. 8. » Constitution, Art. VI, cl. 3. ' Constitution, Amd. Art. XTV, sec. 3. Ratified July 28, 1868. (46) gresses, officers in judicial, military, and naval service, heads of departments, and foreign ministers.' Act of May 13, 1884, repeals Rev. St. § 1756, and pro- vides that office-holders in the civil, military, and naval service, except the President, shall take the oath prescribed in § 1757; the repeal not to affect the oaths prescribed for the performance of duties in special or particular subordinate employments." Rev. St. § 1757, directs that the following oath shall be taken and subscribed to: "I, A B, do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought, nor accepted, nor attempted to exercise the functions of any office whatever, under any authority, or pretended authority, in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or con- stitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faith- fully discharge the duties of the office on which I am about to enter, so help me God." " See Amnesty; Of- ficer. Suppletory oath. The oath of a party, administered in order that he may furnish the measure of proof required (5f a fact : as, his oath to the correctness of his books of account and of the justness of the claim he makes. . Its original is found in the civil law. which requires the testimony of two persons to a fact: plena proba- tion full proof; the testimony of one person being semi-plena probatio, half-full proof. To make up the complement, when there is one witness only, the party may be examined in his own behalf, and the oath administered is called the " suppletory oath. " * Test oath. See Test, Oath. 3. As to profane oaths, see Blasphemy; PROrANITT. OBIT. L. A corruption of obiit or obivit, he died or has died. Post obit, or post obitmn. After he died, or after death. ' See 17 St..L., ch. 193, p. 142. Proceedings to remove disqualified office-holders were discontinued by proc- lamation of President Grant, June 1, 1872. lb. Ap. No. 11, p. 956. " See 23 St. L. 21-22, ch. 60, sec. 3. » Act 2 July, 1862, ch. 128: 12 St. L. 502. By Act 24 Jan. 1865: 13 St. L. 424, made to embrace attorneys of the courts of the United States. See Exp. Garland, 4 Wall. 374 (1866). « [3 Bl. Com. 370. OBITER 733 OBLIGATION Post-obit bond. An agreement, for money, to pay a larger sum, exceeding legal interest, upon the death of a person from whom the obligor has expectations, if he survive him.' Being a fraud upon the expectations of the ances- tor, such obligations are annullable in equity." OBITEB,. L. On the way, by the way ; in passing. Applied to an opinion given by a judge incidentally or as an illustration, and not as part of the decision of the court. See further Dictum. OBJECT. 1. The thing aimed at, the end sought to be accomplished.' Whatever is presented to the mind or to the senses ; whatever, also, is aeted or oper- ated upon aflSrmatively, or intentionally in- fluenced by any thing done, moved or applied thereto. < " Objects charged with internal tax " is equivalent to " subjects of taxation." * 2. A person who is to be benefited by a dis- tribution of the property or income of a trust is spoken of as " the object " of the power or of the donor's or testator's bounty. See Trust, 1. OBJECTIOM". See Exception, 4; Pro- test, 1. OBLIGATE; OBLIGE.5 Oblige: To place, or become held, under a bond or legal I duty. As, in the saying that one " obliges himself " by a •written instrument; ^ that the civil and canon laws " oblige," as far as adopted.' " Every act that causes damage to another ' obliges ' ;him to repair it," That is, the wrong done creates an obligation — brings into existence the relation of 'debtor and creditor between the parties.^ Obligate : To promise, perhaps more or less formally, to do or to refrain from doing some act ; to covenant in writing ; to execute an instrument under seal. Has about superseded " oblige " in legal expression. vObligatory.9 A "writing obligatory" means, simply, a written contract under seal." 'J [Boynton v. Hubbard, 7 Mass. *n9 (1810), Parsons, C. J.; Chesterfield v. Janssen, SVes. Sr. *iao, 157(1760). ' ) Story, Eq. §§ 342-44. -spaxton V. Baum,57Miss. 536 (1882). « Wells V. Shook, 8 Blatch. 257 (1871), Woodruff, J. ^ F. obliger; L. ob-Ugare, to bind together, to con- strain. Obligatio, a tying up, a binding. « 2 Bl. Com. 840. ' 1 Bl. Com. 13. 6 La. Civ. Coile, Art. 2315; United States v. New Orleans, 17 F. R. 487 (1883). 5 Ob'-ligatory. " Watson V. Hoge, 7 Terg. 350 (1885). Obligation. A ligament or tie; some- thing which binds one to do or not to do an act.i 1. In its most extensive sense, synony- mous with "duty." ^ Natural or moral obligation. An obliga- tion which cannot be enforced by action, but which is nevertheless binding in conscience and according to natural justice.' Opposed, civil or legal obligation. When an action upon a civil obligation is barred by an act of limitations, or by a discharge under a bank- rupt law, or as having been entered into during in- fancy or coverture, the natural obligation still subsists ; it is a sufQclent consideration for anew contract; and money paid upon account of it cannot be recovered.* See Consideration, Moral. Perfect obligation. An obligation which gives to the opposite party the right of com- pulsion. Imperfect obligation. An obliga- tion which is not binding, as between man and man ; a duty not enforceable by human law.5 See Assent; Duty, 1 ; Equity; Joint AND SEVERAL; RIGHT, 3. In Roman law, a contract was a pact (g. v.\ a con- vention plus an obligation. So long as the pact re- mained unclothed with the obligation, it was '* nude " or "naked." An obligation was ^^juris vinculum, quo necessitate, adstringimur alicujus solvendoe rei" (Justinian, Inst. Ht, 13, 1). The obligation is the " bond " or "chain," with which the law joins persons togetherjn consequence of their voluntary acts. Ob- ligatio may signify a right as well as a duty. The picture is that of a "legal chain," and the two ends were equally regarded.* The obligation was a personal relation between two parties, a debtor bound to render some service, a cred- itor to rfeceive it. The debt was a binding (obligatio), the payment a releasing (solutio), of the person. ' The creditor's hold was on the person (later, on the prop- erty) of the debtor. The imperfect obligatio (natur- alis) could not, like the perfect (civilis), be enforced by a direct action, but might have force in indirect ways. Natural obligations arose from transactions which would have created civil ones, but for some defect in form or in legal capacity. Civil obligations were those stricti juris, subject to a literal and rigorous construction, and those bonce fldei, in which the aims ' [Blair v. Williams, 4 Litt. *36, C6 (Ky., 1823). 2 Crandall u. Bryan, 15 How. Pr. 55-66 (1&57); Sibilrud V. Minneapolis, &c. R. Co., 29 Minn. 60 (1882). = [Goulding v. Davidson, 25 How. Pr. 484 (18C3); Teb- betts V. Dowd, 23 Wend. *383 (1840). 4 See 2 Bl. Com. 446; Hemphill v. McClimans, 24 Pa. 371 (1855); Chitty, Contr. 10; Langd. Contr. §71; Leak, Contr. 86. » [Aycock V. Martin, 37 Ga. 128 (1867): Vattel, Law of Nations, *lxii, § 17. ' Maine, Ancient Law, 813-14. See also Goodsell v. Benson, 13 R. I. 239 (1881), note; Hare, Contr. 64. OBLIGATION 733 OBLITERATION of the parties and the demands of reason and equity were considered, i 2. A legal duty ; a legal liability.^ A valid, subsisting obligation consists of a legal debt or duty, and the remedy to en- force it. 5 3. An undertaking under seal; also, the instrument or writing by which it is evi- denced.'' A bond, or other writing in the nature of a bond. In a popular sense, any act by which a person becomes bound to or for another, or to perform something.' See Bond. Obligee. He to whom an obligation or bond is given. Obligor. He who enters into a bond or obligation.* A " co-obligor " is a person who is jointly bound, by the same instrument, with an- other person. Obligation is a generic word, including every kind of contract by which parties bind themselves. Used without limitation, will include a coupon bond pay- able to bearer.' An obligation is " a deed in writing, whereby one man doth bind himself to another to pay a sum of money or do some other thing." No precise form of words is necessary. Any memorandum under seal, whereby a debt is acknowledged to be owing, will ob- ligate the party to pay. The terms must at least cre- ate a debitum in prcesenti, though the solvendum may be in future, even after the death of the obligor,' Obligation of a contract. The law which binds a party to a contract to perform his undertaking.' The power and efiBcacy of the law which applies to and enforces performance of the contract, or the payment of an equivalent for non-performance. " 1 Hadley, Rom. Law, 235, 84S, 252, 255. ' Crandall v. Bryan, 15 How. Pr. 55-56 (1857). -s Cocke V. Hoffman, 5 Lea, 113 (1880); 6 Barb. 563. 'Smith v.. Ellington, 14 Ga. 383(1853); Hargrovea v. Cooke, 15 id. 330 (1854). ' Strong V. Wheaton, 38 Barb. 624 (1861). See also 2 Bl. Com. 340; 1 Ark. 112; 6Minn. 353; 38 L. T. R. 378. "2 Bl. Com. 340. Obli-jee'; obli-gor'. ' [Sinton «. County of Carter, 23 F. R. 535, 538 (1885). 6 Cover V. Stem, 67 Md. 451 (1887), Alvey, C. J., quot- ing Shep. Touch. 367, and holding that the words " At my death, my estate or my executor may pay Ann Cover $3,000 — David Engel, " created neither an obliga- tion to pay money, nor, under the Maryland act of 1884, a will. ' [Sturges V. Crowninshield, 4 Wheat. 197 (1819), Slar- shall, C. J. i» Ogdenu. Saunders, 12 Wheat. 318 (1827), Trimble, J. See also Wachter v. Famachon, 6i Wis. 121-22 (1885). " No State shall . pass any . Law Impair- ing the Obligation of Contracts." ' The constitutions of the several States contain a similar restriction upon the exercise of legislative power." The reference is to the means provided by law by which a contract can be enforced,— by which the par- ties can be obliged to perform it." The " obligation " is foimd in the terms of the agree- ment, sanctioned by moral and legal principles.* It includes everything within the obligatory scope of the contract.' Implies a duty, that may be enforced by law, to perform the contract according to its terms.' Consists in the remedy given by law to enforce the contract. While this remedy may be changed by an enactment, it cannot be taken away or lessened, at least not without leaving the parties " a substantial remedy," according to the course of justice as it ex- isted when the contract was made.' See further Im- pair. 4. An instrument for the payment of money. " Obligation or other security of the United States," in the Crimes Acts, means, all bonds, certificates of indebtedness, national cur- rency, coupons, United States notes, Treas- ury notes, fractional notes, certificates of deposit, bills, checks, or drafts for money, drawn by or upon authorized officers of the United States, stamps, and other representa- tives of value issued by any act of Congress. Any person who, with intent to defraud, falsely makes, forges, or counterfeits, or alters any such obli- gation or security, shall be punished by a line of not more than five thousand dollars, and imprisoned not more than fifteen years. * See Merger, 2. OBLITERATION". Is not confined to effacing letters or words so that they cannot be read. A line drawn through a writing (testamentary) obliterates it, though left as 1 Constitution, Art. I, sec. 10, cl. 1. = Consult Story, Const. § 1373; Cooley, Const. Lim. 273-94. = Louisiana v. New Orleans, 102 U. S. 206 (1880), Field, J. ; Seibert v. Lewis, 122 id. 295 (1887). * Charles River Bridge v. Warren Bridge, 11 Pet. •572 (1837), M'Lean, J. ' Edwards v. Kearzey, 96 U. S. 600 (1877). » [Wachter v. Famachon, 63 Wis. 121 (1885), Orton, J. ' Bank of Louisville v. Trustees of Public Schools, 83 Ky. 227 (1885) ; McCracken County v. Mercantile Trust Co., 84 id. 348-52 (1886), cases. See also 1 How. 311; 16!d. 301; 8 Wheat. 1; 16 Wall. 317; 70 Ala. 161-52; 9 Cal. 83; 31 Conn. 265; 38 Ga. 369; 15 Iowa, 130; 4 Litt. »36; 29 Minn. 537-33, 546; 41 Pa. 446; 11 B. L 354; 37 Vt. 603; 18 Gratt. 370. » R. S. § 6413; Act 30 June, 1864. OBLOQUY 724 OBSTRUCT legible as before.! See Alteration, 3; Cancel. OBLOQUY.^ Censure; reproach. To expose one to obloquy is to expose him to cen- sure and reproach,-- these words being synonymous ■with "obloquy." 5 OBSCENE.4 Includes what is foul or in- decent, and what is immodest or calculated to excite impure desires. ^ Is applied to language spoken, written, or printed, and tq pictorial productions. Obscene, lewd, or lascivious publications of an indecent character, are neither mailable ' nor import- able.' He who deposits such publications in the mails, and he who receives the same for circulation, shall be guilty of a misdemeanor, punishable by a fine of one hundred to five thousand dollars, with imprisonment for one to ten years, or both.^ The test is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands a publication of the sort may fall. A book need not have words which are in themselves obscene, in order to be obscene. Regard is had to the idea conveyed by the words used, in any substantial part of the publica- tion. *' Obscenity " is that form of indecency which is calculated to promote general corruption of morajs. " Lewdness " has a tendency to excite lustful thoughts. . . The indictment need not specify in what respect a picture is unlawful. . One may have what views on religion he pleases, and publish the same, ]but not in connection with obscene matters sent through the mails." The prohibition applies to an obscene writing or letter inclosed in a sealed envelope.'" The pmpose is to exclude from the mails only such articles as are impure and immodest and tend to cor- rupt the morals.'^ The fact that the publications were sent in the real 1 Evans's Appeal, 58 Pa. 244 (1868), Strong, J. See also 123 Mass. 102; 22 N. J. E. 463; 2S Am. E. 35; 19 Alb. L. J. 323; 1 Williams, Ex. 144. ' "L. ob-loqui, to speak against: contradict. ' Bettner v. Holt, 70 Cal. 275 {1880), Foote, J. * L. obscenus, repulsive, foul. » [United States v. Lottis, 12 F. E. 673 (1882), Deady, D. J. : Worcester's Diet. ; s. c, 8 Saw. 194. • Act 12 July, 1876; E. S. §§ 3893-94; 1 Sup. E. S. p. 239, Act 3 March, 1879: 1 Sup. E. S. p, 456. 'R. S. §2491; 22St. L. 489. » E. S. §■ 3394. See Addenda. "United States ti. Bennett, 16 Blateh. 336, 360-62,366- 69 (1879), cases, Blatchford, J. Definitions approved. United States v. Slenker, post. ■» United States u Gaylord, 11 Biss. 438 (1883), Treat, J.; Same v. Same, 17 F. E. 438 (1883), Drummond, J.; United States v. Hanover, ib. 444 (1883), cases; United States V. Fero, 18 id. 900 (1884), cases; Thomas v. State, 103 Ind. 421 (1885). " Exp. Doran, 32 F. R. 76 (1887). or supposed interest of science, philosophy, or moral- ity is immaterial. The indictment should allege a scienter. An alle- gation that the accused "knowingly deposited" the objectionable matter cannot be extended to embrace an averment of scienter.^ The fact that post-bfBce inspectors used test or de- coy letters to bring to justice a person suspected of mailing obscene literature does not discredit their tes- timony.^ Any offense, which, in its^ nature and by its ex- ample, tends to the corruption of morals, as, the exhi- bition of an obscene picture, is indictable at common law." Whether matter published is obscene or not, is a question of law for the court. H the matter is too gross to be spread upon the records that fact may be averred as an excuse for not setting the matter out. But this rule is not general. ^ See Verbum, In haec. See also Book, 1; Decoy; Indecent; Naked, 1; Police, 2; Publicatioh, 2. ^1,^/30 OBSOLETE. Worn out: old and not enforced. Obsolescent. Falling into disuse. " It must be a strong case to justify the court in de- ciding that an unrepealed act is obsolete and invalid. I will not say that such case may not exist: where there has been a non-user for a great number of years; where, from a change of times and manners, an ancient sleeping statute would do great mischief, if suddenly brought into action; where a long practice, inconsistent with it, has prevailed, and, especially, where from other and later statutes it might fairly be inferred that, in the apprehension of the legislature, the old one was not in force." * See Repeal. OBSTA PBrNCIPHS. L. Adhere to first principles. In this sense constitutional rights are to be liberally construed.^ OBSTEUCT. To pile up or against : to render passage difficult or impossible ; to im- pede or retard action, hinder or prevent from performing a duty or service. 1. To obstruct travel is to stop up and wholly pre- vent travel upon a road, or render the road unfit for travel.* A fence along a high-^'ay is an obstruction thereof, if it prevents public travel from being perfectly safe. > United States v. Slenker, 32 F. E. 694 (1887), cases, Paul, J. ; United States v. Wightman, 29 id. 636 (1886), cases, and note. ' Commonwealth v. Sharpless,-2 S. & R. *91, 101 (ISIB), Tilghman, C. J. = McNair v. People, 89 HI. 441 (1878); 92 id. 182. See generally 2 Whart. Cr. L. § 1432; Bradlaugh v. The Queen, L. E., 3 Q. B. D. 607 (1878). * Wright V. Crane, 13 S. & R. *452 (1825), TUghman, C. J. See also Snowden v. Snowden, 1 Bland, Ch. 556 (1829); Hill 11. Smith, 1 Morris, *79 (Iowa, 1840). » Boyd V. United States, 116 U. S. 635 (1886). " [Newburyport Turnpike Corporations. Eastern E. Co., 23 Pick. 329 (1839); 21 N. J. E. 27; 78 Pa. 93. I OBSTRUOT 725 OCCUPY although it does not extend across the road.' See Open, 1 (7). The primary purpose of streets is use by the public for travel and transportation, and the rule is that any obstruction or encroachment which interferes with such use is a public nuisance. But there are exceptions to the rule, born of necessity and Justified by public convenience. An abutting: owner engaged in building may temporai-ily encroach upon the street by the deposit of building materials. A tradesman may con- vey goods to or from his adjoining store, A coach or omnibus may stop to take up or set down passengers, and use for public travel may be temporarily inter- fered with in a variety of other ways without the cre- ation of a nuisance; but all such interruptions and obstructions must be justified by necessity. It is not sufficient that the obstructions are necessary with ref- erence to the business of him who creates and main- tains them. They must also be reasonable with reference to the righ^Xjf ttje public, who have inter- ests which may not be sacrificed or disregarded. Whether an obstruction is -necessary and reasonable must generally be a question of fact to be determined upon the evidence relating thereto. ^ One who wrongfully pulls a signal rope and stops a train does not "obstruct " the train.' 2, " Any person who shall knowingly and willfully obstruct or retard the passage of the mail, or any car- riage, horse, driver, or carrier carrying the same, shall, for every such offense, be punishable by a fine of not more than one hundred dollars." * When acts which create an obstraction of the mails are in themselves unlawful the intention to obstruct will be imputed to their author, although to attain an- other end may have been his primary object. The pro- hibition has no reference to acts lawful in themselves, from the execution of which a temporary delay to the malls unavoidably follows.^ The offense is complete when one or more persons imlawf ully prevent the moving of a raUroad train car- rying the mails.* 8. Obstructing an offtcer executing lawful process Is an offense against public justice.' The offense is committed when he is prevented by actual violence, or by threats of violence which it is in the power of the offender to enforce, from execut- ing the writ.* See Resist. > Mosher v. Vincent, 39 Iowa, 609 (1874); Stater. Lea- ver, 62 Wis. 892 (1885). So as to obstructing a railroad track. State v. Kilty, 88 Minn. 422 (1881). In Nashville, &c. E. Co. V. Carroll, 6 Heisk. 368 (1871), held that such " obstruction " was not for expert testimony. 2 Callanan v. GUman, 107 N. Y. 865 (1888), cases. » Commonwea,lth v. Killian, 109 Mass. 374 (1872). See Eeg. V. Hardy, L. R., 1 C. C. 280 (1870), as to false signal. < R. S. § 3995: Act 8 June, 1872. 'United States v. Kirby, 7 Wall. 486 (180G), Field, J. » United States v. Kane, 19 F. R. 42 (1884). See also United States v. Claypool, 14 id. 127 (1882). ' 4 Bl. Com. 129. s United States v. Lowry, 2 Wash. 170 (1808); United States V. Lukins, 3 id. 387 (1818); 1 Idaho, 211; 15 Mo. 487; 25 Vt. 421. OBTAIN. See Acquire. In a statute punishing false pretenses, may refer to obtaining some benefit to the party, rather than to defrauding or depriving another of his property.' OCCASIONAL. See Regular. OCCTJPY.2 To bold in possession; to hold or keep for use ; as, to occupy an apart- ment.' Implies actual' use, possession or cultiva- tion by a particular person : as, in a devise of land "occupied" by the testator.* " Occupy " and its inflections may well enough be used in the sense of possess; "occupancy" and "oc- cupant" for assuming property which has no owner; " occupation" and " occupier " for the more general idea of possession."* Occupied; unoccupied. As used in policies of insurance, are always construed with reference to the character of the build- ing, the purposes for which it is designed and the uses contemplated by the parties as ex- pressed in the contract. The occupancy of a dwelling, and of a bam or a mill,, is in each case essentially different in its scope and character. " Occupied " always implies a sub- stantial and practical use of the building for the pur- poses for which- it is intended, and as contemplated by the terms of the policy. A dwelling-house is occu- pied when human beings habitually reside in it, and unoccupied when no one lives or dwells in it.* Occupation of a dwelling-house, within the meaning of a policy of insurance, requires that there be in the house the presence of human beings as at their cus- tomary place of abode, not absolutely and uninter- ruptedly continuous, but the house must be the place of usual return and habitual stoppage.' See Vacant. Within the meaning of a tax law, the owner of land may be in occupation of it by his tenant; so that " un- occupied " will mean untenanted.' See Use, 2. Occupancy. Possession ; actual control ; occupation,!' q. v. ■People V. General Sessions, 13 Hun, 400 (1878); Re- gina V. Garrett, 1 Dears. C. C. 242 (1853), Parke, B. ^ L. occupare, to lay hold of. "Missionary Society v. Dalles, 107 U. S. 843(1882): Webster's Diet. « Jackson v. Sill, 11 Johns. *214 (1814), Thompson, C. J.; Inhabitants of Phillipsburgh v. Bruch, 37 N. J. E. 486-60 ( 1H83), cases. ' [Abbott's Law Diet. • Sonneborn v. Manufacturers' Ins. Co., 44 N. J. L. 223 (1882), Green, J. See also 112 Mass. 422; 136 id. 491. ' Herrman v. Adriatic Fire Ins. Co., 83 N. Y. 169 (1881), Folger, C. J. ; Barry v. Prescott Ins. Co., 35 Hun, 603 (1885). 8 State t'. Reinhardt, 31 N. J. L. 218 (1865); Imperial Fire Ins. Co. i>. Kiernan, 83 Ky. 473 (18S5); Stensgaard V. National Fire Ins. Co., 36 Minn. 181 (1886). » See Walters r. People, 21 111. 178 (1859); 38 id. 263; 110 Mass. 175; 113 id. 518; 25 Barb. 54; 33 Wis. 73. OCCUR 726 OFFER Title by occupancy is the taking possession of those things -which before belonged to no- body, i The foundation of property, of hol4.™g those things in severalty whicli by the law of nature, unqualified by that of society, were common to all mankind.^ Thus, at common law, one may take to his own use goods of an alien enemy; movables returned into the commop stock of things by abandonment; the ben- efits of the elements — light, air, water; and wild ani- mals. Other examples of title acquired by first oc- cupancy are: emblements; additions to property by accession, or by wrongful confusion of goods; an au- thor's right in his literary composition ; the right to the exclusive use of a trade-mark, or of a firm name.^ Lest this property should determine by the owner's dereliction, or death, whereby the thing would again become common, society has established contracts, conveyances, wills, and beirships, by which to continue the property of the first occupant.' See Discovert, 1. Occupant; occupier. The " first occu- pant " is he who first declared his intention to appropriate a thing to his own use, and actually took it into possession. * An " occupant " has the actual use or pos- session of a thing.* An "occupier" is one in the use and en- joyment of a thing.P May imply that the person is in the actual bona fide. possession of land as a resident.^ See Abandon, 1; Find, 1. Occupation. 1. Actual possession of real property. ^ See Use, 3. 3. Employment at a particular business; engagement; vocation; calling; trade.' See Employment; Pkofession; Trade; Tax, 3. OCCUR. Generally, to happen, m "After a loss shall occur," inapolicy of insurance, refers to the ^ime when liability becomes fixed, by proofs of loss, etc., — when the insurer may lawfully be compelled to pay the amount of the loss." Occurrence. See Res, Gestae. OCTO. See Tales. ' S Bl. Com. 258. ' 2 Bl. Com. 400, 407. s 8 Bl. Com. 3-11, 400. See 110 U. S. 374.' * a Bl. Com. 258. 5 Redfleld v. TJtica, &o. E. Co., 25 Barb. 68 (1851); City of Bangor v. Eowe, 5T Me. 439 (1869). " [Fleming v. Maddox, 30 Iowa, 242 (18T0). ' Hussey u Smith, 1 Utah, 133 (1873): 8 Op. Att.-Gen. 186 (1880); ib. 182 (1837); Abbott v. Upham, 13 Mete. 174 (1847)? O'Neale v. Cleavelan(J,.3 Nev. 493 (1867). sLawrence v. Fulton, 19 Cal. 690 (1862); McKenzie v. Brandon, 71 id. 211 (1888); Fleming v. Maddox, 30 Iowa, 248 (1870). » See Schuchardt v. People, 99 111. 506 (1881). i» Johnson v. Humboldt Ins. Co., 91 111. 96 (1878). ' ■ Hay V. Star Fu:e Ins. Co., 77 N. Y. 243 (1879). OF. By ; belonging to ; upon. In the expression " bounded north of the heirs of A," held to mean by,^ The infirmary " of " a county is equivalent to " the property of " or "belonging to " th^ county.' Entered " of record " means upon a record or rec- ords; in the appropriate of^ce as a matter of public record. " Of force " means of binding force, obligatory al- though possibly not enforced.^ Of course. See Course, 3. OFrElfSE.^ The transgression of a law ; 5 a orinae.6 Any crime or act of wickedness. As a genus, com- prehends every crime and misdemeanor; as a species, ■ signifies a crime not indictable but punishable sum- marily or by the forfeitu^e of penalty. Offenses are: treasons, felonies or major ofEenses, and misdemeanors or minor offenses.^ Includes also such violations of municipal ordi- nances as are punishable by fine or imprisonment.^ Offenses are spoken of as capital and non-capital, as cumulative, criminal, political, etc. See Chime; Extradition; Misdemeanor, 2; Wrong, Public. OFFER. 1. A proposition to do a thing.' May be convertible with " attempt," '" q. v. ; but "offering" does not mean the same as " promising" a reward to a voter. 'i An offer of a bargain by one person to another im- poses no obligation upon the former until it is accepted by the latter according to the terms in which the offer was made. Any qualification of, or departure from, those terms invalidates the offer, unless agreed to by the person who made it. Until the terms of the agree- ment have received the assent of both parties the negotiation is open and imposes no obligation upon either party. '^ An offer to sell, subject to acceptance, binds the party offering, but not the other party until accept- ance. And so, also, as to an optional purchase, based upon a sufficient consideration. 's An offer to do a thing, as, to insure property, made by mail, binds the person making the offer, according 1 Hannum v. Kingsley, 107 Mass. 361 (1871). 2 Davis V. State, 38 Ohio St. 606 (1882). ' See 1 Paine, 336; 21 Barb. 475. * Spelled also offence. O. F. offence, offense: L, of- fensa: 'of-fendere, to dash against. ' Moore v. Illinois, 14 How. 19 (1858). 'People V. Police Commissioners, 39 Hun, 510 (1886). See also 1 Oreg. 193; 3 Tex. 314; 18 Gratt. 965. ' [Wharton's Law Diet. ' 8 State V. Cantieny, 84 Minn. 9 (1886). ' People V. Ah Took, 62 Cal. 494 (1881). ^" Commonwealth u Harris, 1 Pa. Leg. Gaz. R. 457 (1871). 'I State V. Barker, 4 Harring. 561 (1846). I'Eliason v. Henshaw, 4 Wheat. 838 (1819), Washing- ton, J. See also Tilley v. Coimty of Cook, 103 U. S. 161 (1880), cases; 12 Mo. Ap. 884. " Butler V. Thompson, 98 U. S. 415-ie[ (1875; ; Langd. Contr. § 151. OFFICE 727 OFFICE to the terms tendered, it an answer is transmitted in due course of mail accepting the terms, unless a with- drawal reaches the addressee before his letter an- nouncing acceptance has been transmitted.' The contract is deemed complete the moment the letter assenting to the latest proposition is mailed. ^ The offer may be of such a nature that the person mailing it has a right to expect an answer by return mail.' A proposal to accept, or an acceptance, upon terms varying from those offered, is a rejection of the offer, and puts an end to the negotiation, unless the party who made the original offer renews it, or assents to the modifications suggested. The other party, having once rejected the offer, cannot afterward revive it by tendering an acceptance of it. If the offer does not limit the time for its acceptance, it must be accepted within a reasonable time. If it does, it may, at any time within the limit and so long as it remains open, be accepted or rejected by the party to whom, or be withdrawn by the party by whom, it was made.* See Assent; Compromise; Tender, 3. 2. A proposal made to the court by coun- sel, at the trial of a cause, to put in as evi- dence testimony then about to be adduced. The court may require such "offer ''to be reduced to writing, stating clearly what it is proposed to prove, and the purpose thereof; and then either admit or reject the offer. OFFICE.* 1. A right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging. i* The right, and correspondent duty, to exe- cute a public or private trust, and to take the emoluments belonging to it.' That function by virtue whereof a person has some employment in the a£Eairs of an- other.* A public station or employment, conferred by the appointment of government, and em- bracing the ideas of tenure, duration, emolu- ment, and duties.' ' Tayloe v. Mercliants' Fire Ins. Co., 9 How. 400 (1850), NMson, J. 2 Darlington Iron Co. v. Foote, 16 F. R. 646 (1883). "Dunlop V. Higgins, 1 H. L. 387 (1848); Maclay «. Harvey, iX) 111. 525 (1878). * Minneapolis, &c. E. Co. v. Columbus Rolling Co., 119 U. S. 151 (1886), cases. Gray, J.; 7 Am. Law Rev. 433-56 (1872), cases; 8 Kent, 477. » L. offlcium, doing a service: duty; function. • 2 El. Com. 36, ■> 3 Kent, 454. " Matter of Hathaway, 71 N. Y. 243 (1877), Allen, J. 'United States v. Hartwell, 6 Wall. 393 (If 67), Swayne, J. See also 103 U. S. 8; 2 Bened. 306; 12 Rep. 483; 43 Ala. 245; 28 Cal. 389; 33 Ga. 274; 45 111. 414; 6 Cush. 181; 40 Miss. 629; 89 N. 0. 133; 29 Ohio St. 348; 7 id. 556; 26 Pa. 77; 62 id. 349; 33 Wis. 127; 4 id. 646. Offices may be classed as civil and military; and civil offices as political, judicial, and min- isterial. Judicial offices are those which relate to the administration of justice. Min- isterial offi.ces are those which give the officer no power to judge of the matter to be done, and require him to obey the mandates of a superior. Political offices are such as are not immediately connected with the ad- ministration of justice, or the execution of the mandates of a superior officer, i A civil ofBce, at common law, is regarded as a bur- den wliich, in the interest of the commimity and of good government, the appointee is bound to bear. Hence, an office cannot be laid down without the con- sent of the appointing power, in order that public in- terests may not suffer. A resignation is complete when the proper authority accepts it, or, what is tan- tamount, appoints a successor.^ Public offices are trusts, held solely for the public good. They are conferred from considerations of the ability, integrity, and fitness of the appointee. What- ever introduces other elements to control the appoint- ing power must necessarily lower the character of the appointments, to the detriment of the public. Agree- ments for compensation to procure these appoint- ments tend to introduce such elements, and are there- ' fore viewed as inconsistent with sound morals and public policy.' The incumbent of an office has not, xmder our sys- tem of government, any property in it. His right to exercise it is not based upon any contract or grant. It is conferred as a trust to be exercised for the bene- fit of the public. Such salary as may be attached to it is designed to enable the incumbent the better to per- form the duties by the more exclusive devotion of his time thereto. A public office and its creation is a matter of public, not of private law. The decisions of some States proceed upon the ground that an incum- bent has a property in his office and that he cannot be deprived of his right without the judgment of a court; a view suppoi-ted by the doctrines of the common law which regarded an office as an hereditament, but which has no foundation in a representative govern- ment.* An office of constitutional creation is beyond the control of tiie legislature, except as prescribed in the constitution. The salary or compensation provided by the constitution is an incident to the office, and cannot be detached from it.' 1 Twenty Per Cent. Cases, 13 Wall. 675 (1871), cases, CUfford, J. » Edwards v. United States, 103 U. S. 473 (1880), cases, Bradley, J. See also 15 Op. Att.-Gen. 3, 207, 449; 10 F. R. 463-64; 39 Arlc. 211. ' Tool Company v. Norris, 2 Wall. 55 (1864), cases, Field, J. • State, ex rel. Attorney-General v. Hawkins, 44 Ohio St. 109. 113 (1886), ca.ses, Minshall, J. » Blair v. Marye, 80 Va. 492, 490-97 (1886), cases. OFFICE 738 OFFICE 2. A place for transacting business, public or private. 1 OflB.ce book. See Document, Public; Eecoed. Oflaee copy. See Copt. Ofllee found. At common law, an alien may take realty by act of the grantor, and bold it until "office found;" that is, until the fact of alienage is authoritatively estab- lished by a public officer, upon an inquest held at the instance of the government. The proceeding which contains the finding is tech- nically designated as "office found." It removes the fact from the region of uncertainty and makes it a matter of record. It was devised as a means to give the king his right by solemn matter of record, without which he could neither take nor pai*t with anything. SoEfie equivalent proceeding was essential at civil law. The proceeding was necessary before the sovereign could devest title." See Ikcjuest, Of office. Ofl3.cer. One lawfully invested with an office.3 One invested by a superior authority, par- ticularly by government, with the duty of transacting affairs of a certain class ; an in- cumbent of an office ; a person designated to execute some function of government.* The word " officer " is very elastic. As applied to the military establishments of the army and navy, it would be more definite, perhaps, and somewhat so as applied to the civil establishments, whei'e there are indicia of authority to point them out; but, as used in statutes, the term often cannot be so confined. Even by common understanding in the army and navy, as well as in the civil service, there are distinctions, so- cial, technical, and arbitrary, that frequently Infiu- ence the judicial determination of administrative reg- ulations. One of the earliest definitions of " ojfficium " is " that function by virtue whereof a man hath some employment in the affairs of another, as of the king or another person."' " The word principally implies a duty, and then, the charge of such duty; and it is a rule that where a man hath to do with another's af- fairs against ^is'will, and without his leave, that is an office." ' In the Revised Statutes or any act or resolution of Congress passed since February 25, 1871, reference to any " officer " includes any person authorized by law ' See Commonwealth v. White, 6 Gush. 183 (1860); Shaw V. Morley, L. R., 3 Ex. »140 (1868). 2 Phillips V. Moore, 100 U. S. 213 (1879), Field, J.; Hauenstein v. Lynham, ib. 484 (1879); Fairfax v. Hun- ter, 7 Cranoh, 631 (1813); 3 Bl. Com. 259. 2 [Bouvier's Law Diet. < [Abbott's Law Diet. 1 United States v. Trice, 80 F. R. 493-94 (1887), cases. Hammond, J.; Cftwell, Diet ; 4 Jac. Diet. 433; 2 Toml. Diet. 664. to perform the duties of such office, unless the con- text shows that a more restricted sense is meant,' One who receives no certificate of appointment, takes no oath of office, has no term or tenure of office, discharges no duties and exercises no powers depend- ing directly on the authority of law, but simply per- forms such duties as are required of him by the per- sons employing him, and whose responsibility is limited to them, is not an officer. "Office" implies authority to exercise some portion of the sovereign power of the state." City officer. One whose functions relate exclusively to the local affairs of a city. State officer. One whose duties concern the State at large or the general public. 3 CivU officers. Within the meaning of Art. II, sec. 4, of the Constitution, all officers of the United States who hold their appoint- ments under the national government, whether their duties are executive or judi- cial, in the Highest or in the lowest depart- ments of the government, with the excep- tion of officers in the army or navy." What is necessary to constitute a person an officer of the United States, in any of the various branches of its service, was very fully considered in United States V. Germaine, 99 U. S. B09-10 (1878), in which case it was distinctly pointed out that, under the Constitution, all its officers were appointed by the President, by and with the consent of the Senate, or by a court of law, or the head of a department, and the heads of the de- partments were defined to be what are now called the "members of the cabinet." Unless a person in the service of the government, therefore, holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not, strictly speaking, an officei' of the United States. Where Congress may have used the word " officer " in a more popular sense, it is the duty of the court to ascertain such meaning and to be governed accord- ingly. = Commissioned officer; non-commissioned officer. Whenever the United States statutes speak of " officers " of the army, they re- fer to commissioned officers. ' ' Non-commis- sioned officers " are not officers in the sense in ■ [R. S. S 1. 2 Olmstead v. Mayor of New York, 42 N. Y. Super. 487-88 (1877). ' Burch V. Hardwicke, 30 Gratt. 33-35 (1878), cases. < 1 Story, Const. § 792. 'United States u. Mouat, 124 U. S. 307 (1888), Miller, J.; United States v. Hendee, ib. 313 (1888),— in which the word is used in a general sense which would in- clude a pay -master's clerk. See also United States v. Smith, ib. 533 (1888), deciding that a clerk in the office of a collector of customs is not a pu|3Uc officer within B. S. § 3639. OFFICE 729 OFFICE which the latter term is generally used, i See Cadet. Executive officer. A person in whom re- sides power to execute the laws.2 Judicial officer. A person concerned in deciding or administering the law. See Judicial. Legislative officer. A person empowered to assist in enacting laws. Ministerial officer. A person whose duty- it is to execute the mandate of a superior officer. See Minister, 1. Officer de facto. Not a mere usurper {q. v.), nor yet within the sanction of law, but one who, ■' colore ofiRcii," claims and assumes to exercise ofiBcial authority, is reputed to have it, and the community acquiesces accoi-d- ingly. Officer de jure. An officer of right, a rightful officer.' A de facto ofiQcer is one who discharges the duties of an oflSce under color of title. One who, having been elected to an office, assumes to exercise its duties without having attempted to qualify, is without color of title and not such an officer.* One who acts as an officer de facto is estopped from denjong that he is such an officer, even on a criminal prosecution for malfeasance in office.* The validity of an act done by one in a public sta- tion is not, as a rule, to be tried by his title. State v. Carroll, 38 Conn. 468-77(1871), which contains an ex- haustive examination of the cases, decides that com- petent authority in the appointing or electing body is not requisite to make a de facto officer.* The acts of an officer de facto are held to be valid, because the public good requires it' His acts, within the sphere of the powers and duties of the office, are as binding as the acts of an officer de jure: ^ as. for ex- ample, the act of a judge defacto.^ There can be no officer, either de jure or de facto, if there be no office to fill. The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or ' Babbitt «. United States, 16 Ct. CI. 214 (1880); E. S. §§ 1280, 1293. 2 Thome v. San Francisco, 4 Cal. 146 (1854). 3 Hussey v. Smith, 99 U. S. 24 (1878), cases. •Creighton v. Commonwealth, 83 Ky. 147 (1885), Pryor, J. s People V. Bimker, 70 Cal. 215 (1886), cases. •State, exrel. Herron v. Smith, 44 Ohio St. 868(1886). ' Hussey v. Smith, 99 U. S. 24 (1878), cases; Koontz v. Burgess of Hancock, 64 Md. 134 (1885). 8 Phillips V. Payne, 92 U. S. 13 .'(1875), cases. » Boiling V. Lersner, 91 U. S. 6!)6 (1875), cases. A de- cree by a judge whose commission had expired four days before was held valid in Cromer v. Boinest, 27 S. C. 430 (1887), cases. See, as to a justice of the peace holding over, Hamlin v. Kassafer, 16 Oreg. 456 (1887), cases: 36 AJb. Law J. 95-98 (1888), cases. election, is founded upon considerations of policy and necessity, for the protection of the public and individ- uals whose interests may be affected thereby. Offices are created tor the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society, their author- ity is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. Endless confusion would result if in every proceeding before such officers theu- title could be called in question. But the idea of an officer im- plies the existence of an office which he holds. ^ In ordinary cases, where an election of officers of a corjjoration has been omitted, the old officers may continue to act as officers de facto, beyond their reg- ular term (though not compelled to do so), and their acts will bind the corporation; but not so, where the functions of the corporation have been abrogated or superseded.^ Public officer. A person who has some duty to perform concerning the public.' Where an individual has been appointed or elected in a manner required by law, has a designation or title given him by law, and exercises functions concerning the public, assigned to him by law, he must be re- garded as a " public officer." * It is well settled that a court of equity has no juris- diction over the appointment and removal of public officers, whether the power of removal, as well as that of appointment, is vested in executive or administra- tive boards or officers, or is intrusted to a judicial tri- bunal. The jurisdiction to determine the title to a public office belongs exclusively to the courts of law, and is exercised either by certiorari, error, or appeal, or by mandamus, prohibition, or quo warranto, ac- cording to the circumstances of the case, and the es- tablished mode of procedure.^ Superior officer; inferior officer. These ex- pressions designate, respectively, an official high, or low, in grade or rank, or one in au- thority over, or subordinate to, another. The President " shall' nominate, and by and with the Advice and Consent of the Senate shall appoint 1 Norton V. Shelby County, 118 U. S. 44^-43 (1886), Field, J. ; ib. 442-49, cases; 36 Alb. Law J. 606-10 (1887), cases. » Burkley v. Levee Commissioners, 93 U. S. 263 (1876), Bradley, J. ; Mining Co. v. Anglo-Calitornian Bank, 104 id. 192(1881); Cole v. Black Elver Falls, 67 Wis. 113 (1663), cases; 7 Ala. 638; 38 Conn. 471; 69 111. 529; 48 Me. 80; 27 Minn. 293; 3 Monta. 430; 17 Nev. 170; 33 N. J. L. 201; 24 Wend. 530; 73 N. C. 650; 21 Ohio St. 618; 85 Pa. 472; 59 Tex. 344; 33 Gratt. 513; 2 Kent, 205. 3 Hill V. Boyland, 40 Miss. 625 (1836), cases. ' Bradford t'. Justices, 33 Ga. 336 (1862). See also 49 Ala. 89; 45 111. 400; 29 Ohio St. 348; 34 N. Y. 398; 62 Vt. 104. ' Be Sawyer, 124 U. S. 212 (1888), cases. Gray J. As to the judicial control of public officers, see 24 Cent. Law J. 172 (1886), cases. OFFICE 780 OIL Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the. Ap- pointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." i "Inferior officer" here means one subordinate to those officers in whom the power of appointment may be vested by act of Congress, to wit, .the President, the courts of law, and the heads of departments." The rule of official obligation, as imposed by law, is that the officer sh^iU perform the duties of his office honestly, faithfully, and to the best of his ability. This is the substa^ice of all official oaths. In ordinary cases, to expect niore than this would deter upright and reasonable men from taking office. This is sub- stantially the rule by which the common law measures the responsibility of those whose official duties require them to have the custody of property, public or pri- vate. If a more stringent obligation is desirable, it must-be prescribed by statute or exacted by express Stipulation. 3 No public officer is responsible in a civil suit for a judicial determination, however erroneous it may be, or however malicious the motive which produced it.^ The government does not guarantee the integrity of its officers nor the validity of their acts. It prescribes rules for them, requires- an oath for the faithful dis- charge of their duties, exacts a bond with stringent conditions; provides penalties for their misconduct or fraud ; but there its responsibility ends. They are but the servants of the law; if they depart from its re- quirements the government is not bound.* Official. 1. An ofBcer, q. v. 3. Pertaining to the functions of an office : as, an official — act, bond, certificate, com- munication, oath, report and reporter, qq. v. Opposed, (1) extra-official: beyond or out- side of the legitimate functions of one's office : as, an extra-official act; (3) unofficial: as, an unofficial report, q. v. See further Amotion; Arrest, 2 (3, 3); Color, 2; Compensation, 1; Continuance, 3; Corporation; County; Disability; Embezzlement; Emolument; Ex- tortion; Fee, 2; Government; Impeach, 4; Incompat- ible; Liberty, 1, Of the press; Magistrate; Marshal, 1; Misdemeanor, 1; Oath, Of office; Obstruct, 3; Officium; Onus, Cum onere; Personate; Power, Appointing; Qualify; Rank; Reinstate; Resignation; Revenue; Service, 3, Civil; Sheriff; Tenube, 2; Tort; Vacancy; Warrant, 2; Writ. ' Constitution, Art. II, sec. 2, cl. 2. 2 Collins V. United States, 14 Ct. Cl. 574 (1878). ' United States v. Thomas, 15 Wall. 342 (:872), Brad- ley, J. See also People v. Faulkner, 31 Hun, 325 (1884) ; 74 Me. 264. « East River Sas-Light Co v. Donnelly, 93 N. T. 559 (1883). 5 Moffat V. United States, 112 U. S. 31 (1884), Meld, J. See also 1 Addison, Torts, 31, note by Wood. OFFICnfA CHAETARTJM. L. The office of writs: the ordinary side of the court of chancery {q. v.), because out of it issued, and to it returned, all writs.i OFnCIUM. L. Duty, authority, office. See Inofficious. Colore officii. Under color of office: under semblance or pretense of authority. Implies an illegal (but not a corrupt) claim of au- thority, by reason of holding a particular office, to do a thing in question." See Virtute Offlcii; Color, 2. Ex officio. From the nature of the office. Ex officio authority is authority by virtue of one office to perform the duties of some other office.3 But making a person an ex officio officer does not merge the two offices into one.* Functus officio. Discharged his or its office; exhausted his power; fulfilled the purpose. Applied to a person whose official authority has ceased, and to a thing which once possessed virtue or force: as, for example, an agent who has fully exe- cuted his agency; a referee who has rendered his de- cision; a bill, note, or mortgage which has been paid or merged into a judgment; a trust deed given to se- cure a note, after the note has been paid.^ An officer arresting a party cannot arrest him upon an exhausted first writ — it has become functus offi- cio.'^ Virtute officii. By virtue of office ; offi- cially. A peace officer, iiirtute officii, may arrest for crime committed in his presence. An act done virtute officii is an act within the au- thority of the officer, but in doing it he exercises that authority improperly, or abuses the confidence which the law Imposes in him. An act done colore officii is of such a nature that the office gives no authority to do it.' OPFSPRrNTG. See Partus ; Patee. OIL. See Mineral ; Residuum, 3. Whether benzine is a "chemical oil or burning fluid " is a question for a jury.^ ' a Bl. Com. 273, 60. " See Burrall u Acker, 23 Wend. 608 (1840); Kelly v. McCormick, 28 N. Y. 321 (1863); Mason v. Crabtree, 71 Ala. 481 (1882). s Clay County v. Simousen, 1 Dak. 425 (1877). ■" People II. Leet, 13 111. 268 (1851); People v. Ross, 38 Cal. 76 (1869); Territory v. Hitter, 1 Wyom. 318, 333 (1875). 'See 93 U. S. 382; 103 id. 167; 83 III. 363; 7 Barb. 22; 23 Tex, 561; 81 Va. 648. » Cook u Bangs, 31 F. R. 646 (1887). 'People V. Schuyler, 4 N. Y. 187 (1850); Seeley v. Birdsall, 15 Johns. *269 (1818); 74 Qa. 618; 1 Bl. Com. 349. "Mears v. Humboldt Ins. Co., 92 Pa. 19 (1879); Carri- gan V. Lycoming Ins. Co., 53 Vt. 426 (1881). OLD 731 OLEOMARGARINE Benzine is a " rock or earth oil," made from petro- leum." I£ a policy ot insurance forbids the keeping of gaso- line or benzine on the premises, authority to use gaso- line gas does not warrant keeping either fluid there for any other purpose than for the manufacture of gas.2 OLD. See New. Referring to a road, does not necessarily mean long-existing, ancient. May be so opposed to a " new " road as to mean simply a road already laid out and used." Old people. See Dementia; Infltjenob;. OLEOMARGAEINE.i Artificial butter made out of animal fat, milk, and other sub- stances ; imitation butter. A patentee is not authorized by the patent laws to manufacture and sell the patented article in violation of the laws of a State." Statutes prohibiting the sale of articles made in imitation and designed to take the place of genuine butter, unless the packages are so labeled or marked as to prevent deception upon those who desire to pur- chase butter made from cream only,are constitutional. ' The legislature of a State may prohibit the sale of oleomargarine, suine, and like compositions, as an ex- ercise of the police power, q. i'.' The New York act of 1884 was held to be unconsti- tutional in so far as it prohibited the making or using of any compound designed as a substitute for butter or cheese, however wholesome, and however openly and fairly the character ot the substitute may be avowed. " Such enactment conflicts with the consti- tutional right of liberty in every citizen to adopt and follow such industrial pursuit, not injurious to the community, as he may see fit." * But the act of 1886, which forbids the manufacture or sale of products not made from unadulterated milk in imitation or resemblance, or designed to take the place of butter, is constitutional. It is not necessary, under the latter act, that the buyer should be deceived, or that there should be an attempt to deceive him; and evidence of the presence of unnecessary coloring matter, designed . to make the oleomargarine resemble dairy butter, will justify conviction.* 'Buchanan v. Exchange Ins. Co., 61 N. Y. 29 (1874); Bennett v. North British Ins. Co., 81 id. iliS (1880); Morse v. Buffalo Ins. Co., 30 Wis. 534 (1872). 5 Liverpool, &o. Ins. Co. v. Gunthur, 116 U. S. 113, 126 (1885). s People V. Griswold, 67 N. Y. 61 (1876). * O'-le-o-mar'-ga-rlne. » Be Brosnahan, 18 F. E. 62 (Mo., 1882). 'People V. State, 39 Ohio St. 236 (1883); Pierce v. State, 63 Md. 593 (1886). ' State V. Addington, 77 Mo. 110 (1883); Common- wealth V. Powell, 1 County Ct. R. 94 (Pa., 1885). e People v. Marx, 99 N. Y. 377, 386 (1885); People v. Ahrenberg, 103 id. 388 (1886); Butler v. Chambers, 36 Minn. 69 (1886); People v. West, 44 Hun, 163 (1887), cases; Taylor v. State, Tex. Ap. (1886), cases. •People V. Arensburg, 105 N. Y. 123 (1887): 103 id. 388 (1886). The Pennsylvania act of May 21, 1885, is within the power to legislate for the public health. That some persons suffer loss from prohibiting the manufactiu-e and sale of the substance cannot defeat the purpose of the act; nor either can the opinion of individuals that the legislature mistook the necessity for such a law. And the further fact that the pure substance may be wholesome is irrelevant in a judicial inquiry: the legislature may still restrict or prohibit traffic in the substance. If there is probable ground for believ- ing that entire prohibition of traffic in any prepara- tion is the only way effectually to prevent its being fraudulently substituted for the real article, then such prohibition may be upheld as a reasonable police regulation, although the preparation is in fact innocu- ous. On this principle, mixing milk and water, and adultering confections and provisions, have been made penal offenses." That statute of Pennsylvania, which was designed " to protect the public health, and to prevent adultera- tion of dairy products and fraud in the sale thereof," does not deny to persons the equal protection of the laws, nor deprive them of property without compensa- tion as required by law, nor of any right of liberty or property without due process of law, — within the meaning of the Fourteenth Amendment. "The (Su- preme) court is unable to afllrm that this legislation has no real or substantial relation to such objects " as are expressed in the title of the act.* An act of Congress, approved August 2, 1886 (24 St. L. 209), provides, section 1, that for the purpose of the act "butter" shall be understood to mean "the food product usually known as butter, and which is made exclusively from milk or cream, or both, with or without common salt, and with or without additional coloring matter." Sec. 2. " That for the purposes of this act certain manufactured substances, certain extracts, and cer- tain mixtures and compounds, including such mixtures and compounds with butter, shall be known and des- ignated ' oleomargarine,' namely: All substances here- tofore known as oleomargarine, oleo, oleomargarine- oil, butterine, lardine, suine, and neutral; all mixtures and compounds ot oleomargarine, oleo, oleomarga- rine-oil, butterine, lardine, suine, and neutral; all lard extracts and tallow extracts; and all mixtures and compounds of tallow, beet-fat, suet, lard, lard-oil, vegetable-oil annotto, and other coloring matter, in- testinal fat, and offal fat made in imitation or sem- blance of butter, or when so made, calculated or in- tended to be sold as butter or for butter." Sec. -3. Imposes special taxes as follows: $000 upon manufacturers for salfe; $480 upon wholesale deal- ers—those who sell in the original packages, except such as sell only their own production; §48 upon retail dealers. Sec. 4. Besides being liable for said tax, every per- 1 Powell V. Commonwealth, 114 Pa. 250, 292 (1887), Eterrett, J. See Commonwealth v. Waite, 93 Mass. 264 (1865), and Commonwealth v. Evans, 132 id. 11 (1882),— as to selling milk mixed with water; 26 Am. Law Eeg. 88-91 (1887), cases; 26 Am. Law Eev. 97-104 (1888), cases. 2 Powell V. Pennsylvania, 127 U. S. 678, 684 (1888), Harlan, J.; Field, J., dissenting. OLEOMARGARINE 732 OMNIS son -who carries on the business of manufacturer with- out having paid the tax therefor, shall be fined, for I each offense, from §1,000 to $5,000; every person who so wholesales, from §500 to $2(000; and every person who so retails, from $50 to $600. Sec. 5. Every manufacturer shall conduct his busi- ness under such regulations as the commissioner of internal revenue, with the secretary of the treasm-y, may require as to notices, inventories, bonds, books of account, signs, surveillance of officers, etc. The bond shall' be in a penal sum of not less than $5,000, and may be increased from time to time. Sec. 6. All oleomargarine shall be packed in wooden packages, not before used for the purpose, each con- taining not less than ten pouiQds, and marked, stamped, and branded according to the regulations; .and all sales by manufacturers or wholesale dealers shall be in original stamped packages. Retail dealers may sell only from such packages, in quantities not exceeding ten pounds, and shall pack in suitable ^vooden or paper packages, marked and branded as prescribed. A per- son who knowingly violates this section shall be fined, for each offense, not more than $1,000, and be impris- oned not moi'e than two years. Sec. 7. Evei"y manufacturer shall securely affix, by pasting, on each package, a label giving his number, district, and State, that he has, complied with the law, and that persons are not again to use the package, or the stamp, nor to remove the contents without de- . stroyiug the stamp. Neglecting to affix, and removing, the label, are finable $50 for each package in respect to which the offense is committed. Sec. 8. Upon oleomargarine which shall be manu- factured and sold, or removed for consumption or use, there shall be collected a tax of two cents per pound, to be paid'by the manufacturer. The tax levied shall be represented by coupon stamps, engraved, issued, destroyed, etc., as are stamps relating to tobacco. Sec. 9. When any manufacturer has removed for sale or consumption oleomargarine without the use of proper stamps, the commissioner of internal revenue, within two years at most, upon satisfactory proof, shall estimate, and make an assessment for the amount, and certify the same to the collector. The tax shall be in addition to the penalties imposed by law for such sale or removal. Sec. 10. Regulates importation from foreign coun- tries. Sec. 11-12. The penalty for knowingly purchasing or receiving for sale oleomargarine which has not been branded or stamped is $50 for each offense; and for oleomargarine as to which the special tax has not been paid, $100, with forfeiture of the articles or the value thereof. Sec. 13. Provides as penalties for not destroying stamps upon emptied packages, fines up to $100 and imprisonment not more than one year. Sec. 14. Provides for employing analytical chemists and microscopists, regularly and in particular cases; and for appeals from the decisions of the commissioner of internal revenue to a board of final decision, consist- ing of the surgeons-general of the army and navy, and the commissioner of agriculture. Sec. 15. Packages subject to tax, without stamps or marks as provided, and oleomargarine adjudged dele- terious to the public health, shall be forfeited to the United States. Willfully removing or defacing stamps, rtiarks, or brands on packages regularly taxed, is a misdemeanor, punishable by a fine of $100 to $2,000, and imprison- ment thirty days to six months. Sec. 16. Provides for exporting to foreign countries, without payment of tax or stamping, under prescribed regulations, each package being branded " Oleomar- garine " in plain Eoman letters at least one half an inch square. Sec. 17. Any manufacturer who defrauds or at- tempts to defraud the United States of the tax shall forfeit the factory and apparatus used, and all oleo- margarine and raw material on the premises, and be fined $500 to $6,000, and be imprisoned six months to three years. i Sec. 18. For any forbidden act. for which no specific penalty is imposed, the penalty shall be $1,000; if done by a manufacturer or a wholesale dealer, he shall for- feit all the oleomargarine owned by him. Sec. 19. Penalties may be recovered in any court of competent jurisdiction. Sec. 20. The commissioner of internal revenue, with the approval of the secretary of the treasury, may make regulations needful for carrying the act into effect. Sec. 21. The act shall go into effect on the ninetieth day (Oct. 31, 1886) after its passage. OLEEOlf , LAWS OF. A code of mari- time laws, promulgated during the twelfth century from the island of Oleron, off the coast of France. The code was greatly improved, if not indeed wholly compiled, by Richard the First (1189-99), the island being then a possession of England, and became the substructure of the maritime constitutions of aU the nations in Europe.^ OIiOGEAPH. See Holograph. OMITTED. See Blank, 3 ; Casus, Omis- sus. OMNIS. L. Every; every thing, every one; all. Omne majus. See Major. Omnia prsesumuntur. See PR.a:su- MERE; SP0LLA.TION. Omnia rite. See Prjlsumebe. Omnibus. For all: containing two or more independent matters. Applied to a count in a declaration, and to a bill of legis- lation, and perhaps to a clause in a will, which comprises more than one general sub-, jeot.2 See Title, 3, Of act. Ominis deflnitio. See Definitio. Omnis ratihabitio. See Ratihabitio. 1 See 1 Bl. Com. 418; 4 id. 423; 1 Chitty, id. 418; Coke, Litt. 2; 3 Kent, 12; 1 Pars. Ship. & Adm. 9; 1 Pet. Adm. E. Ap. ■ ' See 14 Md. 193; 64 Pa. 438; 107 U. S. 153. ON 733 OPEN ON. Upon; at; near to. A deed described land as " on a, railroad," Held, in a suit to set aside the conveyance for misdescrip- tion, tliat "on," as denoting contiguity or neighbor- hood, may mean as well "near to" as "at." ' See Contained. A vessel may be in distress " on the shore " without being actually iu contact with the shore. ^ " On a decree " being made means after the decree is made — contemporaneously or immediately after.' See Upon, 2. On account. See Account, 1. On account of. See Concern; Condi- tion. On condition. See Condition ; Provided. On default. See Default. On demand. See Demand. On file. See File. On or about. Unless otherwise provided by statute, may not recite a date or an oc- currence with sufficient certainty. An allegation in an indictment that the accused did the act " on or about " a certain day may be void for uncertainty, as not showing but that the action is barred by lapse of time.* The actual day may be before or after the day stated. ° On or before. An act to be done " on or before" a day named, permits a doing on that last day.* OWCE A WEEK. See Newspaper; Week. ONCE IN JEOPARDY. See Jeqpaedt. ONEBABI. See Onus. ONEROUS.' Burdensome, oppressive. See Onus. In the civil law, referring to a contract: made for some consideration, however small; referring to a gift: subject to charges imposed on the donee. ONLY. Solely; alone. A clause in an act of sale restricting a warranty to troubles, evictions, etc., arising from the acts of the " vendor only," will be limited to that person exclu- sively.' ONTARIO, LAKE. See Lakes. ONUS. L. A charge, burden, incum- brance. ' Burnam v. BanKs, 45 Mo. 349, 351 (1870). ' The Mac, 46 L. T. 907 (1882). " Bradley v. Bradley, L. E., 3 P. D. 60 (1878). ' United States v. Winslow, 3 Saw. 342 (1876). ^Conroy v. Oregon Construction Co., 23 F. E. 73 (fcW;. « Walfw. Simpson, 6 J. J. Marsh. 165 (1831); James v. Benjamin, 72 Ga. 185 (18£3); Scheerer v. Manhattan Ins. Co., 16F. R. 720(18f3). ' Pronounced 6n'-er oua. 8 New Orleans, &c. E. Co. v. Jourdain, 34 La. An. 648 U883). Cum onere. With the charge or dis- advantage. Part of the maxim transit terra cum onere, land passes with the charge,— is transferred as incumbered. Every benefit is to be enjoyed cum onere.^ The right to engage in a restricted business is a privilege cum onere.'' It a legatee accepts the bequest, it is with the disabilities annexed, cum- onere.^ The incmnbent of a public office takes it cum, onere, — with a liability of having new labors imposed upon him without any countervailing addition to his salary.* See Compensation, 1. Exoneretur. Let the burden, the liabil- ity, be removed; let him be discharged. A note indorsed on a bail-piece that the surety is relieved. Allowed when the condition imposed is fulfilled by an act of God, an act of the obligee or of the law." When of right, to be applied for; and the matter thereof is pleadable in defense. When of favor, avail- able only on order of court.* Onerari non. Not to be charged. A plea that defendant should not be held indebted. Onus proband!. Burden of proof, g. v. OP. An abbreviation of opinion. OPEN. 1, V. (1) To begin : as, to open an argument. See Affirmative (1). (2) To order a resale: as, to open biddings received on judicial sale for irregularity, fraud, or gross inadequacy of price.' See further.BlD. (3) To proclaim as convened and ready for the transaction of judicial business : as, to open court. Compare Open, 2, (6); Crier. (4) To set aside, vacate : as, to open a de- cree, a judgment. (5) To restore or recall to its conditional state : as, to open a rule made absolute, in order to admit of cause being shown against the rule. (6) To explain the nature of the issue, and the evidence to he offered: as, to open a trial, a hearing, a case.s (7) To admit the public to its use ; to clear of obstructions : as, to open a street or road.' 1 Mundorfl v. Wickersham, 63 Pa. 89 (1869), cases. 2 Finch V. United States, 102 U. S. 272 (1880). s Rogers v. Law, 1 Black, 361 (1861). * State 1). Kelsey, 44 N. J. L. 33 (1882). 'Taylor v. Taintor, 16 Wall. 369 (1872). • Beers v. Haughton, 9 Pet. 368 (1856), Story, J. ' See Tripp v. Cook, 26 Wend. 156-57 (1841); 31 Miss. 514; 13 Gratt.639; Sugd. Vend. 90. 8 [3 Bl. Com. 366; 10 F. E. 825; 89 N. C.543; 10 Oreg. 176. » [State V. Commissioners, 37 N. J. L. 14 (1874), Beas- ley, C. J. OPERA 734 OPINION Whenever a public road is traveled it is in fact opened, although nothing may have been done by the overseers for the purpose of opening it. ' A road which is not closed or inclosed, shut up or obstructed, must be an opened road,^ A highway laid out and established through wild and unf enced lands, and afterward used and traveled by the public, is " lawfully opened." ' 2, adj. (1) Subject to adjustment or dis- pute ; still continuing : as, an open account, q. V. (2) Public; overt, q. v.: as, an open act of crime. See (10); Patent, 1. (3) With names of witnesses not named, or time and place not fixed : as, an open com- mission to take testimony. (4) Unperformed : as, a contract left open. (5) In which all members have a voice in the election of officers : as, an open corpora- tion, q. V. (6) In session, organized for the transaction of judicial business; or public, free to all: as, open court.^ See Open, 1, (3); Chambers. Courts of equity are said to be always " open." ^ (7) In the presence of witnesses; public: as, an open entry upon land." (8) In a condition admitting the filing of objections: as, open to exception. (9) With no property applicable to the pay- ment of debts : as, open insolvency.' (10) Opposed to secret. Indecent exposure of the person to one individual of the opposite sex constitutes " open " lewdness, q. v. (11) Not restricted as to person, time, or, perhaps, as to price : as, an open order to sell realty. (13) With the value of the subject to be as- certained in case of loss : as, an open policy of marine insurance, q. v. (13) An instruction that if a defect in a sidewalk was "open and notorious" the defendant is charge- able with notice, is not erroneous. "Open" would not imply the existence of an " open hole " in the sidewalk, but " not concealed, not hidden, exposed to view, apparent," a secondary signification in which the word is frequently used.* Keep open. See Keep. Open door. See HorsE. OPERA. A composition of a dramatic kind set to music and sung, accompanied 1 Wilson V. Janes, 29 Kan. 260 (1883). ^ City of Topeka v. Russam, 30 Kan. 569 (1883). ' State V. Wertzel, 62 Wis. 190 (1885). < Hobart v. Hobart, 45 Iowa, 604 (187!'). » 3 Bl. Com. 48. » See Thompson v. Kenyon, 100 Mass. Ill (1868). ' See Hardesty v. Kinworthy, 8 Blackf. *305 (1846). ' Kelleher v. City of Keokuk, 70 Iowa, 475 (1888). with musical instruments, and enriched with appropi-iate costumes, scenery, etc.' Opera bouse. The house in which operas are represented. i A dedication to the public of the arrangement of a musical composition for the piano does not dedicate what it does not contain and what cannot be repro- duced from it, and an unauthorized person does not therefore possess the right to perform such compo- sition as set for an orchestra, although he have an opportunity to copy it. An opera is more like a pat- ented invention than a common book, as to the rule that he who obtaius similar results, better or worse, by similar means, though the opportunity is furnished by an unprotected book, should be held to infringe the rights of the composer.' A performance on the stage is not such a publica- tion as will destroy the exclusive common-law rightof the author and his assigns to a dramatic or lyrical composition of this sort, though the composer as an alien is not entitled to the benefits of our law of stat- utory copyright.'' See Composition, 1, Musical; Cdpv- right; Drama; Theater. Opera glass. See Baggage. OPERATE. For associates " to operate on lands" purchased, was held to include selling timber to be cut and removed. ^ Operation. 1. Of a law: its practical working and effect.* See Uniform. Operation of law. The application of legal rules to a given set of facts : as, to succeed to property by act and operation of law. See Merger. 2. In patent law, see Patent, 2 ; Mode. Operative. 1, n. An employee, a serv- ant, 5 q. V. See also Proprietor, 2. 2, adj. Effective: the "operative words" in an instrument contain its essential terms or conditions. Inoperative provisions are such as cannot be enforced. See Legal, Illegal; Surplus- age. OPINION. An inference or conclusion drawn by a witness, expert, juror, judge or court, or counsel ; and regards either or both facts and law. See Value. 1. The exception to the rule that the opinion of a witness is not competent evidence is not confined to the case of expert testimony. Wliile it is necessary that the witness should first state the facts upon which he bases his opinion, it is not necessary to do so where the facts are not capable of reproductio^j^ 1 Rowland v. Kleber, 1 Pittsb. 71 (1853). • 2 Thomas v. Lennon, 14 F. E. 849 (1883), cases, Low- ell, Cir. J. » Eaton V. Smith, 20 Pick. 157 (18gS). * Geebrick v. State, 5 Igwa, 496 (1857). » See 1 Pa. L. J. 368; 2 Cranch, 240, 270. OPINION 735 OPINION such a way as to bring before the minds of the jury the condition of things upon which he bases his opin- ion. Such evidence is competent from the necessity of the case. ^ Facts which are made up of a great variety of cir- cumstances and a combination of appearances, which, from the infirmity of language, cannot be properly described, may be shown by witnesses who observed them; and, where their observation is such as to jus- tify it, they may state the conclusions of their own minds. In this category may be placed matters in- volving magnitude or quantities, portions of time, space, motion, gravitation, value, and such as relate to the condition or appearances of persons or things. On the same principle, the emotions or feelings of persons, such as grief, joy, hope, despondency, anger, fear, and excitement, may be likewise shown.* See Character; Expert; Representation, 2. S. The courts are not agreed as to the knowledge upon which the opinion of a juror must rest in order to render him Incompetent, or whether the opinion must be accompanied by malice or ill-will; but all hold that it must be foimded upon evidence, and he more than a mere impression, — if hypothetical only, the partiality is not so manifest as necessarily to set the juror aside. For an opinion need not make him impartial. An impression formed from reading news- papers does not necessarily unfit one for the service. ^ Upon the trial of the issue of fact raised by a chal- lenge to a juror, in a criminal case, on the ground that he has formed and expressed an opinion as to the issue, the court is practically called upon to say whether the nature and strength of the opinion are such as in law necessarily raise the presumption of partiality. The question is one of mixed law and fact — the latter to be tried upon evidence. The find- ing ought not to be set aside, unless the error is mani- fest, unless it be clearly made to appear that, upon the evidence, the court should have found that the juror had formed such an opinion that he could not in law be deemed Impartial. The case must be one in which it is manifest that the law left nothing to the conscience or discretion of the court* "Those strong and deep impressions which close the mind against the testimony which may be offered in opposition to them, which will combat that testi- mony and resist its force, do constitute a sufHcient objection " to a juror.' " Sanf ord's impressions [based upon rumor or news- paper statements] were not such as would refuse to 1 Jones V. Fuller, 19 S. C. 06 (1882); Commonwealth V. Sturtivant, 117 Mass. 133 (1876); Hardy v. Merrill, 56 N. H. 234 (1875); 1 Whart. Ev. §§ 511, 450. ''State V. Baldwin, 36 Kan. 10 (1886), cases, John- ston, J. « Reynolds v. United States, 98 U. S. li)5-56 (1878), cases; 19 Blatch. 255; 47 Conn. 530-31 ; 49 iii. 376; 6 Col. 456. < Reynolds v. United States, 98 U. S. 156 (1878), Waite, C. J. Approved, Spies u Illinois, 123 id. 179 (1887). » United States v. Burr, 1 Burr's Trial, 416 (1807), Marshall, C. J. yield to the testimony that might be offered, nor were they such as to close his mind to a fair consideration of the testimony." i Prejudice against crime will not of itself disqualify a man as a juror.^ A statute of Illinois, in force since July 1, 1874, pro- vides that it shall not be a cause of challenge that a juror has read in the newspapers an account of the commission of the crime charged, nor shall the tact that he has formed an opinion or impression, based upon rumor or newspaper statements (about the truth of which he has expressed no opinion), disqualify him, if he shall upon oath state that he believes he can fairly and impartially render a verdict in accordance with the law and the evidence, and the court shall be satisfied of the truth of such statement. '* It is not a test question whether the juror will have the opinion which he has formed from newspapers changed by the evidence, but whether his verdict will be based upon the account which may here [before the trial court] be given by witnesses under oath." A similar statute was enacted in New York in 1878, in Michigan in 1873, in Ohio in 1880, in Nebraska in 1885; all which have been sustained by express decision or treated as valid by the highest courts of those States. The rule of the statute of Illinois, as construed, is not materially dif- ferent from that adopted by the courts in many of the States without legislative action; and the same is not repugnant to the guaranty for an impartial jury in criminal trials.^ See further Challenge, 4; Impar- tial: Prejudice, 1; Religion. 3. The view of the facts in a case enter- tained by the judge who presides at the trial. It is no longer an open question that a judge of a court of the United States, in submitting a case to the jui-y, ma.y, in his discretion, express his opinion upon the facts; and that when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jmy, such expressions of opinion are not reviewable on writ of error.* See further Charge, 2 (2, c). The statement of the reasons advanced by a judge or court in support of a decision ren- dered. See Decision ; Dictum, 2 ; Judgment. Concurring opinion. An opinion that agrees with the conclusions in another opin- ion rendered in the same case. Dissenting opinion. An opinion that does not agree with the views expressed by the majority of a court in its opinion. Whence dissentients. (Rare.) Judicial opinion. A ruling upon a ques- tion directly involved in an argument or cause. Extra-judicial opinion. A ruling upon a point either only incidentally raised 1 Spies et al. v. People, 122 Hi. 262 (1887). 2 Spies et al. v. People, 128111. 263-64,(1887). "The Anarchists' Case,— Spies v. Illinois, 123 U. S. 167-69 (1887), cases, Waite, C. J. « Rucker v. Wheeler, 127 U. S. 93 (1888), cases. OPPOSING 736 OPTION or else without any bearing whatever; a dictum, q. v. ^ Whenever, in any civil suit or proceeding in a cir- cuit court held by a circuit justice and a circuit judge or a district judge, there occurs any " difference of opinion " between the judges as to any matter or thing to be decided, ruled, or ordered by the court, the opin- ion of the pr&iding justice or judge shall prevail, and be considered the opinion of the court for the time being. ^ In criminal proceedings the point shall, " upon the request of either party or their counsel, be stated under the direction of the judges, and certified, under seal of the court, to the Supreme Court at their next session." But the cause may proceed " if in the' opin- ion of the court, further proceedings can be had with- out prejudice to the merits." Where the judges dis- agree as to the imprisonment or punishment, none shall be permitted.^ v Where, on a certificate of division from a circuit court, the Supreme Court is equally divided in opin- ion, the case will be remitted to the court below to en- able it to take such action as it may be advised.^ The Supreme Court will not take jurisdiction of the case, if the certificate, instead of being confined to the single points of law, presents either questions of fact or the whole case for adjudication.* A certificate of division can be resorted to only when " a question " has occurred in which the judges differ, and where " the point" of disagreement may be distinctly stated. It cannot be resorted to to pre- sent a question of fact, a question of fact and law, or a difference of opinion on the general case.* Each question certified must be upon a distinct point of law, clearly stated, and not upon the whole case, nor v^hether upon the evidence judgment should be for one party or for the other.* 4. A statement, often in writing, made by an attorney, of what he supposes the law to be with r^erence to a matter or case. See Attoknet, At law. OPPOSING. See Inteeest, 2 (2). OPPOSITE. See Adverse ; Paety. OPPRESSION. An act of cruelty, se- verity, unlawful exaction, domination, or use of excessive authority.' Compare Ex- tortion. ■ R. S. §§ 650, 652. 'R. S. ,§ 651; United States v. Harris, 106 U. S. 629 (1882). ' Hannauer v. Woodruff, 10 Wall. 483 (1870); Silliman V. Hudson River Bridge Co., 1 Black, 582 (1861). See generally Durant v. Essex Company, 7 Wall. 110 (1868). < Weeth ■(/. New Eng. Mortgage Co., 106 U. S. 605 (1882), cases. * California Natural Stone Paving Co. v. Molitor, 113 U. S. 609 (1885). ' Williamsport Bank v. Knapp, 119 U. S. 360 (1886), cases; Jewell ij. Knight, 123 id. 432-33 (1887), cases. ' United States v. Deaver, 14 F. E. 595 (1882), Dick, District Judge. To make an act oppressive on the part of an^oflicer under Rev. St., § 3169, subdivision 1, it must be done willfully, "under color of law," and "without legal authority." ' OPTIMTTS. SeeUsus. OPTION. Right of choice, selection or election, A covenant in a lease giving the option to purchase is in the nature of a continuing offer to sell.'' The option to avoid or accept a sale by a trustee is to be exercised within a reasonable time.^ Buyer's option. A right on the part of a purchaser to take' and pay for the purchase at any time within a given period.^ Iiocal option. Refers to a law which enables voters to decide whether licenses to sell intoxicating liquors within their particu- lar district or locality shall or shall not be granted. The weight of authority favora the constitutionality of local option laws. A legislature cannot delegate its power to make a law, but it can make a law to del- egate power to determine some fact or the state of things upon which the law makes, or intends to make, its own action depend. There are many things, upon which wise and useful legislation must depend, which cannot be known to the law-making power, and must, therefoi'e, be a subject of inquiry and determination outside of the halls of legislation.' Compare Prohi- bition, 2. Option contract. An agreement be- tween the so-called " buyer " and " seller " of a commodity (or a security for money) that they will adjust the account between them at a future day by one paying the other the difference in the market value of the article on that day as compared with the value on the day of "sale." A contract for the sale of property to be delivered at a future time at the option of the purchaser, there being no understanding by both parties that the prop- erty is to be delivered, but rather that the obligation is to be satisfied by the payment of differences, is void." The question of the legality of sales by option de- ^ United States v. Deaver, ante. 2 Willard v. Tayloe, 8 Wall. 564 (1869), cases. ' Twin-Lick Oil Co. v. Marbury, 91 U. S. 591 (1875). * [Pickering v. Demerritt, 100 Mass. 421 (1868), Foster, Judge. "Locke's Appeal, 72 Pa. 498, 494-508 (1873), cases; Halley v. State, 14 Tex. Ap. 510-12 (1883); Menken v. Atlanta, Sup. Ct. Ga. (1887); State v. Pond, Sup. Ct. Mo. (1888); 12 Am. Law Reg. 129^3 (1873), cases; 12 Cent. Law J. 123-27 (1881), cases; 36 Ark. 69; 42 Conn. 364; 4 Harr., Del., 479; 42 Ind. 547; 33 Iowa, 134; 14 Bush, 671; 42 Md. 71 ; 108 Mass. 27; 109 id. 199; 62 Mo. 168; 36 N. J. L. 720; Cooley, Const. Lim. 125. ' Melchert v. American Union Tel. Co., 11 F. E. 193 (1882), cases; ib. 201-5, cases: s. c. 3 McCrary, 521. OR 737 ORDER pends in part on local legislation, in part on judicial precedent, and in part on the special tendency ot the adjudicating court with respect to political economy.' See further Futures; Put, 3; Wagek, S. OR. 1. The ending -or, in assignor, con- signor, covenantor, devisor, donor, grantor, obligor, payor, vendor, vrarrantor, and like words, designates the actor or doer ; while -ee, designates the recipient — the person toward whom the action is directed, for whom the thing is done, as in assignee, consignee, de- visee, etc. Originally, a Latin suffix. The corresponding active form of apx)eUee, ap- pointee, distributee, drawee, patentee, transferee, is, for the most part, the English suffix -er; as, drawer, transferrer, etc.' 2. The disjunctive particle "or" will be read "and" when such change will give effect to the evident intention of law makers, testators, or contracting parties.^ It cannot be construed " and " in a penal statute -when the effect is to aggravate the offense.* "Or" may be used in the sense of "to wit," ex- plaining what precedes. In this sense an indictment may adopt the words of the statute; as, "a bank-bill or promissory note," a horse of "a bay or brown ^jolor." But "spirituous or intoxicating liquor " may be bad for uncertainty.' An indictment for betting on a game of " hazard or skill " is unobjectionable.* Under a statute against permitting gaming in a "*' dram-shop," an indictment for gaming in a " dram- shop or grocery " is not bad for the surplusage.' See And. ORAL. In spoken words: as, an oral agreement, oral evidence. When a pleading sets up a contract and does not Allege that it was in writing, it will be taken to have been oral.' See Ore Tends; Parol, 2. ORATOR.9 A petitioner in a court of equity ; a complainant or plaintiff. Oratrix is the feminine form of the word in Latin. ORCHARD. See Messuage. ORCHESTRA. See Opera. " 11 F. K. aOl, ante. Dr. Wharton. 3 See 2 Bl. Com. 140 (a): Coke, Litt. § 57. " United States v. Fisk, 3 Wall. 447 (1865); Dumont v. U'nited States, 98 U. S. 143 (1878); 14 Ct. CI. 300; 41 Iowa, 593; 20 Pick. 378, 477; 105 Mass. 185; 50 Mich. 581; 64 N. •C. 493, 563; 74 id. 402; 24 N. J. L. 686; 24 N. Y. 463; 40 id. 97; 82 Pa. 326; 83 id. 223; 20 Tex. 438; 24 Wis. 394; 1 Williams, Ex. 932; 9 East, 366; 16 id. 67; 31 L. J. Ex. 38. < State V. Walters, 97 N. C. 490 (1887), cases. ' Commonwealth v. Grey, 2 Gray, 502 (1854), cases; 7 ■Gratt. 392. •State 11. Hester, 48 Ark. 40 (1886); Mans. Dig. § 1835. ' Ballentine v. State, 48 Ark. 48 (1886). ' Schreiber v. Butler, 84 Ind. 583 * L. orator; orare, to petition. (47) ORDAIN". 1. To make, enact, establish: as, to ordain a constitution, a system pf courts. 1 See Okdinanoe. 1. To appoint, institute, clothe with au- thority. A minister is ordained when invested with minis- terial fimctions or sacerdotal power.^ ORDEAIi. An ancient species of trial by appeal to Providence. Fire ordeal was performed by taking In the hand, unhurt, a piece of red-hot iron of one to three pounds weight, or by walking barefooted and blindfolded over nine red-hot ploughshares laid lengthwise at unequal distances. Escaping uninjured was adjudged evidence of innocence. This species was for persons of rank. Water ordeal was performed by plunging the bare arm up to the elbow in boiling water, or by casting the person into a pond or river. Escaping unscalded, or floating without the action of swimming, as the case might be, was deemed evidence of innocence. This species was for the common people. Either species could be performed by a deputy; whence the expression "go through fire and water" for another. The cold-water ceremony was ^o a test for the possession of witches. Both species were abolished by 3 Henry IH (1319).' Compare Battel, Trial by. ORDER. A command, direction, man- date. 1. An informal note requesting the pay- ment of money, or the delivery of personalty, to a person named or to the bearer of the note.* The word does not import exclusively a written in- strument.' On a promissory note, bill of exchange, or check, makes the paper negotiable (9. v.), although imper- sonal words are used." By the law-merchant, the purchaser of negotiable paper, payable to order, imless it be indorsed by the payee, takes the paper subject to any defense the payor may have against the payee. ^ In statutes against forgery, a written direction ad- dressed by one who either has in fact, or in writing professes to have, control over a fund or thing, to an- other who either purports in the writing to be imder obligation to obey, or who is in fact under such ob- ligation, commanding him how to appropriate the fund or thing. There are two kinds of orders: such M VSTieat. 334; 4 id. 402. "Kibbeu Antram,4 Conn. 139(1821); Baker d. Fales, 16 Mass. 512 (1820). 3 4 Bl. Com. 343; 110 U. S. 529-30; 3 Am. Jur. 280 (1829); 1 Steph. Hist. Cr. L. Eng. 250. < See Hmnemann v. Kosenback, 39 N. T. 100 (1808). » Treat v. Stanton, 14 Conn. 456 (1841). » Mechanics' Bank v. Straiten, 3 Keyes, 366 (N. Y., 1867). ' Osgood V. Artt. 17 F. K. 575 (1883) ^ Cassidy v. First Nat. Bank, 30 Minn. 86 (1882). OEDER 738 ORDINANCE as are orders on their face ; and such as may be shown to be orders by averment and proof.' See Store-orders. 3. Any direction of a court, other than a judgment or decree, made in a cause. The judgment or conclusion of the court upon any naotion or proceeding.^ An '* order " is a decision made during the progress of the cause, either prior or subsequent to final judg- ment, settling some point of practice or some question collateral to the main issue, and necessary to be dis- posed of before such issue can be passed upon by the court, or necessary to be determined in carrying into execution the final judgment. A "final judgment" is the determination of the court upon the issue pre- sented, which ascertains and fixes absolutely and flna,lly the rights of the parties in the particular suit in relation to the subject-matter of the litigation, and puts an end to the suit.' An "order" is interlocutory, and made on motion or petition. A " decree " is final, and made at the hearing of the cause.* Cautionary order. See Caution. Charging order. In England, an order granted to a judgment creditor, that prop- erty of his debtor in public stocks shall stand charged with the payment of the amount of the judgment, with interest and costs.5 See Stop Order, 1. Decretal order. An order which, from a direction contained in it, may terminate the particular suit, like a decree made at the hearing.* Interlocutory order. An order made during the progress of a suit upon some in- cidental matter. Opposed, final order. See Interlocutory. Order nisi. A conditional order, to be- come absolute unless something be done by a specified time. See Rule, 3, Absolute. Order of filiation. See Filiation. Stop order. (1) In English practice, an order in aid of a "charging order" (q. v.); granted, in certain cases, by a vice-chancel- lor, upon a fund in chancery. (2) An order given to a broker to await a certain figure in the price of a particular bond or stock before he buys or sells, and 1 Powers V. State, 87 Ind. 100-1 (1888); Bishop, Stat. Cr. § 327. 2 Gilman v. Contra Costa Co., 8 Cal. 57 (1857), Mur- ray, C. J. a Loring v. Illesley, 1 Cal. *27 (1850), Bennett, J. * [Brown's Law Diet. «See 3 Steph. Com. 587; 9 M. & W. 42; 11 id. 57; 1 & 2 Vict. c. 110, ss. 1«H6; 3 & 4 Vict. 0. 82, o. 1. then to "stop" buying or selling, as the case may be.' Usually signifies that the broker has re- ceived and is bound to obey a direction of his principal to sell at a price prescribed, when that price is reached. ^ The order may describe the price by referring to circumstances and contingencies; a definite figure need not be named.'' 3. A rule of court. Whence general and special orders. See Rule, Of court. 4. Conduct, demeanor; usually, good order, public order: quiet behavior, peace- able deportment. See Disorder, 3 ; Peace, 1. OBDINANCE. 1. A rule or regulation adopted by municipal corporation. See Or- dain, 1. An ordinance of the councils of a municipality, though binding upon the community affected b.r it, is- not a "law " in the legal sense: it is not prescribed by the supreme power in a State, from which alone a law can emanate, and it is not of general authority throughout the Commonwealth.' The terms "by-law," "ordinance," and "municipal regulation" have substantially the same meaning, and are defined to be " the laws of the corporate dis- trict, made by the authorized body, in distinction from, the general law of the State." They are local regular tions for the government of the inhabitants of the par- ticular place.* The same act may constitute an offense against the- law of a municipality and the law of the State. Ordinances relating to the health, comfort, conven- ience, good order, and general welfare of the inhabit- ants are authorized by the general police power of the city.* See Police, 2. The ordinances of a city are to its charter as the- statutes of a State are to the constitution. « The same exemption from judicial interference ap- plies to all legislative bodies so far as their discretion, extends. The fact that threatened legislative action may disregard constitutional restraints does not affect the question. A municipal corporation is generally clothed with other than legislative powers, and in their exercise may be brought under the control of the courts.^ 8. Formerly, a state paper, operative as- a fundamental law, yet not describable as. either a constitution or a statute. > Porter u. Wormser, 94 N. Y. 443 (1884). "Wronkow v. Clews, 52 N. Y. Super. 178 (1885)j. Sedgwick, C. J. ' Baldwin v. Philadelphia, 99 Pa. 170 (1881), Paxson, J. * State V. Lee, 29 Minn. 461-53 (1882), cases, Vander- burg, J. •■Exp. Wolf, 14 Neb. 33 (1883). • Quinette v. St. Louis, 76 Mo. 408 (1882). ' Alpers V. San Francisco, 32 F. E. 507 (1887), Field, J.. OEDINARY 739 ORPHAN An "act of parliament" was established by the king, lords, and commons; an " ordinance " by one or two o£ them. While the right o£ the commons to par- ticipate in legislation existed in a state of growth, an ordinance was an experimental act passed for a time only, and, as it were, on trial, and which might after- ward eithei^be converted into a statute, that is, a per- manent act, or else be continued for a time, or dis- charged altogether.' Ordinance of July 13, 1787. This was adopted by the Continental Congress and con- fii-med by the First Congress under the Con- stitution, for the government of the territory northwest of the Ohio river. When a State was admitted into the Union from the Northwest Territory, the ordinance, it has always been held, ceased to have any operative force in lim- iting its powers of legislation as compared with the powers possessed by the original States. The new State at once became entitled to and possessed all the rights of dominion and sovereignty which belonged to those States.'* See Territory, 2; School. OBDIIfABT.a 1, adj. Common, usual, reasonable : as, ordinary — care, diligence, skill, losses, gg. v. Opposed to extraordi- nary, q. V. See also Nequgence. 3, n. A judicial officer who has jurisdic- tion, in England, in ecclesiastical causes ; in the United States, in matters respecting the probate of wills, the administration of estates, guardianships, and related subjects.'' ORDINATION. See Ordain, 2. ORE. See Mine ; Mineral ; Waste, 1. A deed conveyed all the zinc and other ores, except franklinite existing separate from the zinc. Held, that the grantee took both ores when the franklinite was mixed mechanically with the zinc; also, that what was meant by " zinc " might be explained by evidence outside of the deed.* ORE TENtrS. L. By mouth, by word of mouth ; orally, verbally. Oral evidence is evidence ore tenus.* In early times, pleadings were ore tentis, or viva voce, in court, and minuted down by the clerk, whose minutes were called the "parol." ' ' [4 Coke, Inst. 35; Coke, Litt. 159 b; Barr. Stat. 41 (•); 3 Reeves, Eng. Law, 148. ' Willamette Iron Bridge Co. v. Hatch, 125 U. S. 9 (1888), cases. See at length K. S. pp. 13-16; 3 Scribner's Mag. 408 (1888). ' L. ordinarius, regular; also, an overseer; ordo, order. * See 2 Bl. Com. 494, 608. *New Jersey Zinc Co. v. Boston Franklinite Co., 15 N. J. E. 418, 447 (1862). As to the duty on zinc, see act 3 March, 1883, Sch. C: 28. St. L. p. 601; as to oxide of zinc, Sch. A, p. 494. « 3 Bl. Com. 373. ' 3 Bl. Com. 293, 408; 3 id. 291. ORGATflC. See Law, Organic. ORGANIZE. In the sense of to consti- tute, to qualify for the exercise of appropriate functions, may refer to a government, a court, a legislative body, a board of deputies or other officers. See Territory, 2. Organizing an incorporation refers to the choice and qualification of ofBcers necessary for the transac- tion of business.' ORIGINAL.2 1, adj. The first in order or time ; primary ; principal ; leading : as, an original — acquisition, bill, compact, convey- ance, copy, entry, jurisdiction, occupant, owner, party, patentee, proceeding, process, promise, writ, qq. v. 2, n. An original document or instrument. Duplicate originals; siagle original. "Single" when there is but one original instrument; "duplicate" when there are two. In the case of a printed document, all the impres- sions are originals, or in the nature of duplicate orig- inals, and any copy will be primary evidence.^ See Copy. Originality. In the law of patents, the finding out, the contriving, the creating of something which did not exist, and was not known before, and which can be made use- ful and advantageous in the pursuits of life, or which can add to the enjoyments of man- kind.* See Invention. ORNAMENT. See Apparel ; Baggage ; Jewel. ORPHAN.' A fatherless child ; a minor who has lost either or both parents: A child who has lost one or both of its parents.^ Stephen Girard devised property to the city of Phil- adelphia in trust for the founding of a college for white male orphans, preference being given to orphans bom in that city. Francis Lieber, who drew up the plan of government, was of the opinion that the word "orphan," meant a fatherless child. In support of this opinion he had the private views of Chancellor Kent and Judge Story, and, subsequently, a decision by the supreme court of Pennsylvania.' In Wisconsin, a devise for the benefit of the " Roman Catholic orphans " of a diocese was held void for un- ' New Haven, &c. E. Co. v. Chapman, 38 Conn. 66 (1871). "L. origo, beginning; oriri, to rise. ' 1 Greenl, Ev. § 558; 1 Whart. Ev. § 74. * Conover v. Roach, 4 Fish. 16 (1857), Hall, J. ' Gk. irphanos', bereft, destitute. « Beardsley v. Bridgeport, 63 Conn. 493 (1885), Par- dee, J. ' See Soohan v. Philadelphia, 33 Pa. 1, 34-32 (1859). ORTHOGRAPHY 740 OUTLAW certainty, for the reason, among others, that it did not appeg.r whether whole or half orphans were meant.i Orphans' court. In Delaware, New Jer- sey, Pennsylvania, and perhaps in ot^er States, the title of the court having jurisdic- tion to settle the estates of decedents. See Guardian, 2 ; Probate, Court of. ORTHOGRAPHY. See Grammar; Idem, Sonans. OSTENSIBLE. See Paetner. OTHER. Following an enumeration of particulars, embraces unenumerated partic- ulars of like nature only, unless a broader sense is obviously intended.2 A statute gave a lien to " mechanics, tradesmen, or others," for labor or material. Held, that " or others," following the enumeration of particular cases, ,was applicable only to persons in the same category.' See Ejtisdem. Other action pending. See Pend. Otherwise. Shall not stand in market with a " cart, wagon, sleigh, or otherwise " to vend merchan- dise, applies to the subject-matter and includes a box, bench, or stall.* Take " by purchase or otherwise " is authority to take by devise.' Others. In the expression " tenant and others " refers to persons who are not tenants.* , Compare Alias; Aliter; Aliunde; Alius; Autre. OUGHT. See Mat. OUSTER." Amotion of possession: dis- possession. ^ Originally, an injury affecting a right in realty. Amotion of a freehold is by abatement, intrusion, dis- seisin, discontinuance, deforcement. Amotion of a chattel real is by dispossessing a tenant holding by stat- ute-merchant, statute-staple, elegit, or imder an estate for years, s A wrongful dispossession or exclusion of a party from real property who is entitled to the possession.' An entry upon the land of another is an ouster of the legal possession arising from the title, if made under claim and color of right; otherwise, it is a mere ■ Heiss V. Murphy, 40 Wis. 290 (1876). 2 Harlow v. Tufts, 4 Cush. 453 (1849) ; Commonwealth «. pejardin, 128 Mass. 47 (1878); ib. 433; 112 id. 411; 6 Cush. 143; 20 Pick. 201; 14 Gray, 440; 140 Mass. 463; 40 Barb. 574; 67 N. Y. 149; 9 Ohio, 11; 8 Brewst. 325; 9 Tex. 521; 23 How. 117; 117 U. S. 610. s The City of Salem, 31 F. B. 618 (1887) ; Oregon Laws, 1876, No. 9. < Commonwealth v. Rice, 9 Mete. 258 (1845). « Downing II. Marshall, 23 N. Y. 388 (1861). '» Kenney v. Sweeney, 14 E. I. 682 (1884). ' F. outre: L. ultra, beyond. ' [3 Bl. Com. 167, 198. » Newell V. Woodrufe, 30 Conn. 497 (1863), Butler, J. ; Bath V. Valdez, 70 Cal. 357,(1886), Searls, C. trespass. The " intention " guides the entry, and fixes its character.' Compare amotion. Judgment of ouster. In proceedings by quo warranto, excludes an intruder from a public office. 2 Ouster le main. Out of his hands. See Ward, 3. Compare Respondeat, Ouster. OUT. See Without. Out of court. He who has no legal status in a court is said to be " out of court ; " that is, he is not before the court: as, a plaintiff who shows he is unable to maintain ' his action. Having no locus standi is an equivalent phrase. OUTCRY. See Auction; Hue and Cry; Rape. OUTER. See Bar, 1. OUTFIT. Origin ally,, objects, connected with a ship necessary for sailing her, and without which she would not be navigable.' Referring to a whaling vessel, is explainable by proof of usage. 3 OUTGOING. See Partner. ' OUT-HOUSE. See House, 1., OUTLAW; OUTLAWRY.* 1. Out- lawry is putting a man out of the protection of the law, so that he is incapable of bringing an action to redress an injury, and forfeits his goods and chattels to the king. If, after outlawry, the defendant appears publicly, he may be arrested on a writ of capias utiagatum [that you take or seize the outlaw] and be committed . till he appears in court, in person or by attorney. Be- ing merely to compel appearance, any cause, however slight, will reverse the judgment. The punishment tmder an indictment for a misdemeanor is the same as under a civil action,— forfeiture of goods. But an out- lawry in treason or felony amounts to a conviction and attainder. Anciently, an outlawed felon was said to have a cajiut lupinum, — he might be knocked on the head like a wolf by any one, because, having re- nounced all law, he was to be dealt with as in a state of nature; yet now, no man may kill -him, except in endeavoring to arrest him. And any person may ar- rest him, under criminal prosecution, either of his own head or by warrant. If any point be omitted or mis- conducted, the whole proceeding is illegal, and, after reversal upon a writ of error, the accused may defend himself against the indictment. An outlaw eould rep- resent another person under protection of the law.* 1 Ewing V. Bumet, 11 Pet. 52 (1837); Bath v. Valdez, 70 Cal. 357 (1886). 2 Campbell v. Talbot, 132 Mass. 177 (1882). s [Macy v. Whaling Ins. Co., 9 Mete. 364-65 (1845). • Mid. Eng. outlawe: Icel. utldgi, out of (beyond) the law, — Skeat. » 3 Bl. Com. 284;- 4 id., 319; 46 Ala. 138; 37 Me. 391, OUTRAGE 741 OWNER 3. Referring to a claim, as, a debt due on a promissory note, "outlawed" means barred by the statute of limitations, i OUTRAGE. See Damages, Exemplary ; Wrong. OUTSTANDING. 1. Not gathered or harvested : as, an outstanding crop, q. v. 3. Due, but not paid; overdue; uncol- lected: as, an outstanding draft, bond, pre- mium, or other demand or indebtedness. 3. Existing as a distinct interest in lands : as, an outstanding title. OVER. 1. Does not necessarily mean vertically above: as, in an indictment for playing cards in a room over a saloon. 2 " Over " and " under " are not precisely opposites. A railroad constructed " under " a turnpike means ata lerellower than the turnpike; and the railroad may be said to pass " over " the turnpike when both are at the same level.* 3. A devise over is a devise to one person contingent upon the failure or defeat of a gift to some other person. To endorse over; to make over: to trans- fer. See also Hold, Over. Overcharge. See Charge, 3 (1). Overdraft. See Draft, 3. Overdue. See Due, 1. Over-insurance. See Insurance. Overplus. See Surplus. , Overrule. See Rule, 1. Overseer. See Poor ; Wat, Highway. OVERT.i Open; public: opposed to covert. An overt act is something actually done toward carrying out intention, as, to commit treason, or to effect the object of a conspiracy.' An attempt to steal, accompanied by an overt act toward its commission, constitutes an attempt to com- mit larceny. An overt act must be such as will ap- parently result, in the natural course of events, if not hindered by extraneous causes, in the commission of the crime itself. Mere preliminary preparations are not overt acts.* See Accomplice; Conspiracy; Tbbabon. Market overt. A public market, q. v. ' Drew V. Drew, 87 Me. 392 (1854); Waters v. Tomp- ans, 2 Crompt., M. & K. *T26 (183.5); 24 Mich. 22. « Patterson •». State, 12 Tex. Ap. 222 (1882). ' Newburyport Turnpike Corporation v. Eastern E. Co., 23 Pick. 329 (1839); Boston, &c. E. Co. v. Mayor of Lawrence, 2 Allen, 108 (1861). * F. overt; ovrir, to open. » See 4 Bl. Com. 21, TO, >I6, 307; 5 How. 228; 55 Vt. 505. • Sipple V. State, 46 N. J. L. 197 (1884). Pound overt. A common public pound, q. V. OWE. SeeDEBERE; Debt; Due; Duty. OWELTY.i Money paid, or secured, by one co-tenant to another, to equalize a par- tition of their realty. Somewhat in the nature of purchase-money for land.' A court of equity, with a view to the more conven- ient and perfect partition or allotment of the prem- ises, may decree a pecuniary compensation to one of the parties for owelty or -equality of partition, so as to prevent injustice or unavoidable inequality.^ Where equal partition in value cannot be made of any shares or purparts, the inquest shall equalize them by valuing them respectively, and award that any one or more shall be subject to the payment of such sum of money as shall be equal to the difference in value of any other share or shares, and shall return the same with their inquest; which sum or sums, when final judgment shall be rendered on the writ, shall be a lien on the lands designated to pay the same.* OWNER. He who has dominion over a thing, which he may use as he pleases, ex- cept as restrained by the law or by an agree- ment.' Will include the person in possession and control of any article of personalty, as, the one who hires a carriage. ^ In a charter providing for notice to the owner of land to be taken for a street, in- cludes a mortgagor.' Includes any person having a claim or in- terest in real property, though less than an absolute fee.^ In a tax law, may refer to one having a freehold.9 Absolute ownership, or an estate in fee, may not be contemplated; as, in a homestead exemption law.^" The precise meaning depends upon the subject- matter. May designate the person in actual possession and occupancy of premises." • Pronounced 6w'-el-ty. " A half French or half Latin word, from owe,"— Webster. F. owel, equal; en owel main, in equal hand or part. 2 Eeed V. Fidelity Ins. Trust, &c. Co., 113 Pa. 578 (1886). s 1 Story, Eq. § 654, cases. •Penn. Act 7 April, 1807, § 5: 2Purd. 1293, pi. 20; 6 PhUa. 182; 8 Pa. 122. « See Dow v. Gould Mining Co., 31 Cal. 649 (1867). • Camp V. Eogers, 44 Conn. 298 (1877). ' Whiting V. New Haven, 45 Conn. 303 (1877). 6 See Lozo v. Sutherland, 38 Mich. 171 (1878). • Davis V. Cincinnati, 36 Ohio St. 26 (1880). I » Tyler v. Jewett, 82 Ala. 98 (1886). " Schott V. Harvey, 105 Pa. 229 (1884). See, as to land taken for public use. 57 N. H. 110; 36 N. J. L. 184; 4 N. Y. 66; 26 Pa. 238; as to .property exempt, 25 Barb. 52; OXEN 742 Eq.uitatale owner. He for whom ao- other holds property; a cestui que trust; a beneficiary, q. v. Legal owner. He who holds the property for the other. General owner. He in whom a title is vested primarily and principally. Special ■owner. An owner for a particular purpose ; as, a bailee. See Agent ; Factob ; Peopertt, General. Joint owner; part owner. One of two or more persons who own a things especially, a vessel ; a co-owner. Designates a class of persons distinct from partners, •who own property jointly, but in a different manner and by a different tenure.^ Reputed owner. One who, from all ap- pearance, or from supposition, is the real owner of a thing ; as, of property subject to taxation or to assessment for a municipal improvement. A bankrupt, by English law, is the reputed owner of all property in his apparent possession.^ Ownership. The right by which a thing belongs to an individual, to the exclusion of all other persons. ^ In the law of Louisiana, perfect ownership is per- petual; i-mperfect, such as will terminate at a certain time or on a condition being fulfilled.* OXEN". See Team. OYER.' At common law, a defendant may " crave oyer " of the writ, bond or other specialty upon which the action is brought ; that is, petition to " hear" it read. 6 The generality of defendants, in times of simplicity, being supposed incapable to read, the whole of an in- strument sued upon was entered verbatim on the record. The defendant could then take advantage of any part not stated in the declaration." Oyer occurs where the plaintiff in his declaration, or the defendant in his plea, finds it necessary to make profert [production] of a deed, probate, letters of ad- ministration, or other instrument under seal, and the go Ohio St. 473; as to a homestead, 38 Mich. 168; 21 Minn. 101, 107; 2 N. M. 101; as to mechanics' liens, 3 Kan. 499; 25 N. J. -E. 284; 9 N. Y. 435; 11 Barb. 13; 2 E. D. Smith, 681; 12 Abb. Pr. 129; 2 Ohio St. 114, 123; as to tax laws, 2 Gray, 189; 22 Wall. 263; as to dower, 2 111. 814; 3 Kan. 499; as to bailments, 2 Craneh, C. C. 83; 23 Wall. 35; as to a flre-escape, 105 Pa. 232; as to a fac- tory, 9 Mete. B62; as to infected animals, 76 111. 490. " Breck v. Blair, 129 Mass. 128 (1880); 133 id. 318; 18 F. E. 549, 547; Story, Partn. §§ 89,412. " See 2 Bl. Com. 488; 2 Steph. Com. 166, 200. s Converse v. Kellogg, 7 Barb. 597 (1850); Hillu Cum- berland Valley Mut. Protec. Co., 59 Pa. 477 (1858). • Marshall v. Pearce, 34 La. An. 559 (1882). ' Pronouncted o'-yer. L. F. oyer: L, audire, to hear. , « [3 Bl. Com. 299. other party prays that it may be read to him. The effect is to make the instrument a part of the plead- ings.' Giving a copy, or setting forth the instrument in full, — the modern practice, — attains the end sought by oyer, as originally understood. When the com-t deems that knowledge of the con- tents o^ a particular writing is proper and essential to a party to a suit, it may order that he have a copy,, although the writing being unsealed is, strictly, not the subject of oyer.^' Oyer and terminer. Hear and termi- nate or determine. "Terminer" for de- terminer. A court held, originally, before commissioners (of whom two were judges of the cotirts at Westminster) twice in every year in each county, for the trial of all charges of treason, felony, and misdemeanor.^ Now, a court of original jurisdiction for the trial of crimes of the higher grades. OYEZ;'i OYES. Hear yel give heed; attend. Public criers began by exclaiming oyez, — corrupted into Oyes!' Still used by the criers of courts to com- mand attention when a, proclamation is about to be made. See Chieb. OYSTER. See Fishery; Impeovement. P. P. As an abbreviation, denotes page. Par- liament, part, patent, penal, people, perpet- ual, placitum, pleas, jjoor, practice, preced- ents, president (judge), private, privy, pro- bate, protest, public: P. C Patent cases; penal code; pleas of the crown; political code: pracfice cases; precedents in chancery. P. h. V. Pro hac vice, for this occasion. See Peg, etc. P. J. President judge. See Judge. P. L. Pamphlet laws ; poor laws ; public laws. P. M. Post meridiem, after midday. See Afternoon; Day. P. P. Propria persona, in his own person. See Peopeius. > Suydam v. Williamson, 20 How. 436 (1857), Clifford, J.; 58N. H. 313. , = Mealey v. Metropolitan Lite Ins. Co., 23 F. E. 25 (18S5), in which case the court refused to direct the de- fendant to file the application and the medical exam- ination in the clerk's office. See also Sneed v. Wister, 8 Wheat. 695 (1823); 1 Chitty, PI. '»430. » 4 Bl. Com. 269. * Norm. F. oyez; oyer, to hear. • See 4 Bl. Com. 340 (w). 743 PANEL P. &. Public statutes. PACK. To "pack a jury" is to improp- erly and corruptly select a jury sworn and impaneled to try a cause, i PACKAGE. See Contents, 1; Pae- CEL, 1. . In an express receipt stipulating that if the value of the property is not disclosed the shipper will not de- mand more than fifty dollars for the loss of each *' package," means a small parcel or bundle, the ap- pearance of which gives no adequate information of the value. A bale of cotton is not such a package.^ A wagon-box in which paintings are packed for transportation was held to be a " package or parcel." ^ As used in a revenue law, held to mean a bundle (of matches) put up for transpoi'tation or commercial handling; a thing in form to become, as such, an ar- ticle of merchandise or delivery from hand to hand.* PACKET. A small bundle. Within the meaning of a prohibition against the private conveyance of letters and packets, held to in- clude newspapers.* PACT. An agreement, engagement. In Roman law, a pact was the utmost product of the engagements of individuals agreeing among them- selves, and it distinctly fell short of a contract. "Whether it ultimately became a. contract depended upon the question whether the law annexed an obliga- tion to it. A contract was a pact (or convention) plus an obligation. So long as the pact remained unclothed with the obligation it was called " nude " or " naked." " Nude pact. An agreement to do or pay anything on one side without compensation on the other ; ' a promise without a consider- ation. See Consideration, 2 ; Pactum. PACTUM. L. An agreement, engage- ment, pact. Nudum pactum. An undertaking not supported by a consideration. Ex nudo pacta non oritur actio. From a bare agreement no action arises ; no cause of action can be based upon a mere promise, without a legal consideration. See Pact. PAIN. See Damages; Declaration, 1. PAINE. See Peine. J [Mix V. Woodward, 12 Conn. 289 (1837); 100 U. S. 309; 11 Lea, 284. " Southern Express Co. v. Crook, 44 Ala. 475 (1870). But see Lamb v. Camden, &o. R. Co., 2 Daly, 480 (1869). 'Whaite -u. Lancashire, &c. E. Co., L. R., 9 Ex. 69 (1874). •United States v. Goldback, 1 Hughes, 530 (1876): E. S. S 3437. , s United States Mail, &c., 4 Hughes, 376 (1843). " Maine, Ancient Law, 313. See Hadley, Rom. Law, 336. '2 Bl. Com. 445. See 22 WaU. 215; 107 U. S. 544; 60 Md. 436; 76Va. 620. PAINS, BILL OP. See Attainder. PAINTING. See Copyright; Print. Does not include a colored working model and de- sign for carpets and rugs, of no value as a work of art.i Paintings on porcelain, and decorated china, are subject to different import duties." PAIS; PAYS. F. Country. Cry de pais. Hue and cry raised by the country. En or in pais. In the country; out of coui't; in fact: said of a matter not of record, as, an estoppel, q. v. See also Deed, 1. Per pais. By the country, by a jury.' See Country, 2. PAMPHLET. Within the meaning of post-office and copyright laws, see Book, 2 ; Copyright; Obscene. Pamphlet laws. In Pennsylvania, the statutes enacted at each session (biennial) of the legislature, as issued in book form. The official publication. Particular laws are re- ferred to by their number, as, Afct of June 3, 1887, P. L. SUA. PANDECTS. A compilation of the civil law, prepared by direction of the emperor Justinian, and issued as law, A. D. 533. Called pandects (" all-receiving ") from the multi- plicity of its sources. Consists of fifty books, with numerous titles, and the matter of about nine thou- sand extracts, varying from a single line to several octavo pages of average size. Most of the extracts are taken from the law-writings of Ulpian, Paulus, and Papinian. The work, which is also called the Digest, forms the largest fraction of the Corpus Juris Civjlis.* PANEL. 1. The sherifle returns the names of jurors summoned in a panel (a lit- tle pane, or oblong piece of parchment) an- nexed to the writ of venire.^ A schedule containing the names of per- sons whom the sheriff returns to serve on trials.* 2. The body of jurors summoned and in attendance upon a court. Includes the jurors returned upon a special venire, after the regular panel has been exhausted.' See Tales. ' Woodward v. London, &c. R. Co., L. R., 3 Ex. D. 121 (1877). » Arthur v. Jacoby, 103 U. S. 677 (1880). > See S Bl. Com. 894 ; 3 id. 394; 4 id. 349. » See Hadley, Rom. Law, 10-15; 1 Bl. Com. 82; Hare, Contr., Index. »3 Bl. Com. 353; Coke, Litt. 158 b. « Beasley v. People, 89 111. 675 (1878). ' People V. Coyodo, 40 Cal. 592 (1871). PAPfiR 744 PAR Impanel; empanel. To make out the list of persons selected as jurors; to enter names on the panel, i PAPER. 1. Within the meaning of the revenue law, a book is not " paper or manu- facture of paper." 2 2. In a statute against sending obscene papers, includes a letter.'' 3. In the sense of a printed sheet or sheets containing the current news, see Newspaper. 4. A commercial, business, or negotiable instrument. Accommodation-paper. See Accommo- dation. Commercial paper. Paper governed by the rules established upon the customs of merchants: bills of exchange, promissory notes, negotiable bank-checks.* Negotiable promissory notes and bills of exchange, in the strictest sense.* Negotiable papqr given in the due course of business.6 That class of paper which is transferable by indorsement and delivery, and between private parties is exempt, in the hands of in- nocent holders, from inquiry into the circum- stances under which it was put into circula- tion. ^ See further Current, 3 ; Negotiable. Paper credit. Bills of exchange and promissory notes. 8 Paper money. See Tender, Legal. 5. In the language of the courts, has sev- ^iral meanings, somewhat technical. Standing alone, ' ' a paper " often desig- iiates a pleading or other writing rendered necessary by the contentions between the litigants. Lawyers speak of " making out," of " serving," and of " filing papers; " and judges are said to " take tlie papers " in a case just argued, for use in arriving at a decision; and, before a court of error, the record in- cludes all " papers filed " in the court below. Paper book. A collection of the written proceedings in a cause, for the use of the I State V. Potter, 18 Conn. 175 (1846); Porter v. Cass, 7 How. Pr. 443 (1852). " Pott V. Arthur, 104 U. S. 735 (1881). ' Thomas v. State, 103 Ind. 419, 422-25 (1885); * [Re Chandler, 4 Bankr. Reg. 215 (1870), cases. 6 Ross V. Jones, 22 Wall. 593 (1874), Clifford, J. 'Be Sykes, 6 Biss. 114 (1870), Blodgett, J. ' The Floyd Acceptances, 7 Wall. 675 (1868), MUler, Justice. ' [2 Bl. Com. 466. court at argument, and pending subsequent deliberations. A copy of the record delivered to the judges of a court of appeal. 1 By ancient practice in England, on motion days the court began by calling upon the senior barristers to move, in the order of seniority. The next day the same practice was repeated; and thus it happened that sometimes weeks elapsed before the juniors could be heard. Lord Mansfield changed this practice by going through the entire bar before returning to the seniors. He also ordered that motions requiring argu- ment should be put down on a paper (a list), which the court would go through before entering upon the gen- eral call of the bar. The days for hearing these mat- ters became laiown as " paper days," and the briefs required to be furnished the judges, in analogy to the demurrer and issue books of the previous practice, were called "paper books." * Paper title. Describes a claim of title which, while evidenced by one or more writ- ings, is without substantial legal foundation or validity. , 6. In a few of the States, a writing issued by a justice of the peace to a constable, direct- ing hira to do some ministerial act, as, to make a levy.' 7. In international and constitutional law, a document more or less formal or solemn; as, in state paper, paper blockade. See Blockade. Compare Document; Instrument, 3; Writing. PAR. L. Equal; alike. 1. Par delictum. Equal fault. Pari delicto, and in pari delicto. In equal wrong. See further Delictum. Par oneri. Equal to the burden, disad- vantage, damage, or detriment. Pari causa. In equal right ; upon like or equivalent footing. Pari materia. On a like subject. See further Materia. Pari passu. By equal step; at equal rate: without preference or priority, as of one creditor over anotheTf , in marshaling as- sets, q. V. See Inter, Pares; Peer; Umpire. 3. Nominal value ; face value. " Currency at par " means currency equal to gold.* ' [3 Bl. Com. 317. = 1 Chitt. Arch. 95; Tidd, Pr. 507, 727; Steph. PI. 95; 3 Campb. Lives Ch. J., ch. 34; Mitch. Motions & E. 36, note. ' See Ewart v. Davis, 76 Mo. 134 (1882); 41 Ind. 338" » Grim v. Sellers, 37 Ga. 326 (1867); 63 N. 0. 147. PARAFFINE 745 PARDON "Par bank notes" imply a state of equality or equal value; an equality of actual with nominal value. ' " Par value " iinplies a dollar in money for every dollar in seourily.s " At par," " above par," and " below par " denote, respectively, (1) at face or nominal value; (2) higher than nominal value, that is, at a premium; and (3) below nominal value, that is, at a discount. See Exchange, 2. PARAFFHTE. See Distillery. PARALLEL. Compare Along. Eor two lines of street railroad to be parallel, within the meaning: of a statute, it may not be necessary that - the routes should be parallel for the whole length of each or of either route. Substantial parallelism may be all that is contemplated.^ PARAMOITNT.* Above, higher, supe- rior, pre-eminent. As, a paramount equity, incumbrance, title — the origin and soui-ce of another title, as, the title of a landlord in comparison with that of his tenant. Com- pare Para VAIL. The Constitution and laws of the United States are told to be of paramount importance.^ PAEAPHEBNALIA.ii The apparel and ornaments of a wife, suitable to her rank and degree.' A term borrowed from the civil law. Paraphernal. Pertaining to parapher- nalia ; also, to property declared to be given the wife in considei'ation of the marriage.* At common law, such articles as constituted the wife's paraphernalia she became absolutely entitled to at the death of her husband, over and above her jointure or dower, and in preference to all other rep- resentatives. The husband could not bequeath, al- though he might sell or give them away. After his death, the wife retained them against all persons, ex- cept creditors when there was a deficiency of assets and the apparel and omamente were not of a neces- sary Mnd,^. In the United States, the continued ownership and enjoyment of all of a married woman's separate prop- erty are secured to her by legislation.' See Husband ; Sepahate, 2. PABAVAIL.!" Downward ; inferior, sub- ordinate : as, a title paravail, a tenant para- vail. Opposed, paramount, q. v. See Feud. ' Bachmant). Roller, 9 Baxt. 410 (1877). ' Delafleld v. Illinois, 26 Wend. 2.34 (1841); 22 Pa. 480. ' Cronin v. Highland Street R'y Co., 144 Mass. 254 (i«8r). * F. par amount, by what is above, at the top. •1 Black, 23; 2 id. BOO; 92 U. S. 33; 100 id. 384, 886, 392, .397, 399,- 605; 101 id. 451,452. • Gk. pard, beyond, pheriwi, phemA, what is brought — dowery: pherein, to bring. ' [2 Bl. Com. 436. s See Cambre v. Grabert, 33 La. An. 247 (1881). ' 4 Ired. L. -301; 48 N. Y. 212; 74 id. 116. *" F. par, by, avaler, to descend, be under; or par PARCEL. 1. A small bundle or pack- age, q. V. In an indictment, may not sufficiently describe property alleged to have been stolen.' 2. A piece of land of indeterminate extent, but usually not large ; a lot of ground. 2 Within the meaning of a tax law, held to apply to a whole section of land.' PARCENER. See Coparcenary. PARCHMENT. Sheepskin dressed for writing. Formerly, extensively used for preserving evidence of grants and commissions issued by government, of judicial records, and of private conveyances of prop- erty. See Record, Judicial; Writing. PARDON.^ Forgiveness, release, remis- sion.* An act of grace, proceeding from tile power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has commit- ted.5 An act of grace by which an offender is released from the consequences of his oflfense, so far as such release is practicable and within the control of the pardoning power. 6 In the form of a deed, to the validity of which there must he both a deliveiy and acceptance.* Absolute pardon. Frees the offender without condition. Conditional pardon. Has a condition annexed, on the perform- ance of which the validity depends.' General pardon. Extends to all of- fenders — of one or more classes; amnesty. Special or particular pardon. Relieves one individual only. "Pardon^' is a remission of guilt; "amnesty," oblivion or forgetfulness.' " The President . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." " avails, by the avails — referring to the person who got the profits of the land. ' Regina v. Bonner, 7 Cox, Cr. Cas. 13 (1855). ' Martin v. Cole, 38 Iowa, 141, 147 (1874). 8 F. pardon: L. L. per-donare, to remit a debt, for- give. * Exp. Wells, 18 How. 309-12 (1855), cases, Wayne, J. « United States v. Wilson, 7 Pet. 'leo (1833), Mar- shall, C. J. " Knote V. United States, 95 U. S. 153 (1877), cas6s. Field, J. See also 44 Ga. 861; 48 N. J. L. 241; 24 Tex. Ap. 79. ' [4B1. Com. 398; 8 Biss. 823-26; 48 Iowa, 284. " Exp. Law, 35 Ga. 296 (1866). See generally 5 Cr. Law Mag. 457-600 (1885), cases. " Constitution, Art. H, sec. 2, cl. 1. PARENS 746 PARK This inQludes the power to commute sentences.^ In the constitution, the word " pardon " conveys the idea of the power exercised by the English crown, or by its representatives in the colonies: '*awork of mercy, whereby the king, either before attainder, sen- tence or conviction, or after, forgiveth any crime, of- fense, punishment, execution, right, title, debt or duty, temporal or ecclesiastical." ' An absolute pardon releases the offender from all disabilities imposed by the offense, and restores him to all his civil lights. In contemplation of law, the pardon so far blots out the offense that afterward it cannot be imputed to him to prevent the assertion of his legal rights, — gives him a new credit and capacity, and rehabilitates him to that extent in his former position. It does not make- amends for the past, nor afford relief for what has been suffered by imprison- ment, forced labor, or otherwise. ^ The king could not by previous license make dis- punishable an offense malum in se; nor I'elease a recognizance to keep the peace; nor discharge an in- former's moiety; nor remit a forfeiture to the ag- grieved; nor relieve from punishment for maintaining a common nuisance. The exercise of such a power would have been against reason and the common good.' A pardon may be granted before conviction. The power in the President, except in cases of impeach- ment, is unlimited, extends to every offense known to the law, and is not subject to legislative control. * Grantable before indictment; ' and then pleadable in bar,"^ in arrest of judgment,^ or in stay of execu- " tion.s "Void, if the sovereign was deceived. Construed beneficially for the offender. Allowed for all offenses, except when private justice is chiefly concerned; as, in a common nuisance, which is in the nature of a pri- vate injury to individuals, the prosecution being vested in the state to avoid multiplicity of suits. But no par- don can be granted after an information is made upon a penal statute in which the informer acquires a prop- erty in the penalty; nor in cases of legislative impeach- ment. When lawful, makes the offender a new man; acquits him of all corporal penalties and forfeitures; ■operates not so much to restore his former, as to give him a new, credit and capacity." ' Although pardon restores to competency as a wit- jiess one convicted of felony, the conviction may still be used to affect his credit.'" See Accomplice; Eeprieve; Respite. PAEENS. L. A parent ; a father. In loco parentis. In the place of the pai'ent. Said of a person invested with the rights and charged -with the duties of the parent of a child, as, a guardian, ' Mkp. Wells, ante. 2 Exp. Wells, ante: Coke, 3 Inst. 233. s Knote v. United States, ante. ■> Exp. Garland, 4 Wall. 333, 380 (1866), cases, Field, J. s 4 Bl. Com. 316. » 4 Bl. Com. 337. '4 Bl. Com. 376. 8 4 Bl. Com. 402. i>4 BL Com. 398^02; 28 Pa. 297. I » Bennett v. State, 24 Tex. Ap. 79 (1887). and, in some sense, a teacher,, and the faculty of a school.' Parens patriae. Father of the country. In England, the sovereign; in the United States, the state. The sovereign is, theoretically, guardian over all in- fants and committee over all lunatics. As much of the royal prerogative as belonged to the king in his capacity of universal trustee enters into our political state as into the principles of the British constitution." PARENT. The lawful father, or the mother, of another person. Compare Parens. Parent and child. The relation or status subsisting between father, or mother, and offspring ; as, in speaking of the law of parent and child.' There ie no implied contract on the part of a father to pay wages to a child that remains with him and renders him service after becoming of age. The child must show an express contract, before recovery can be had.' See Ancestor; Child; Confession, 2; Father; GuAKDiiN; Infant. PAEES. See Peer. PAEI. See Par, 1. PAEISH.5 1. A circuit of ground com- mitted to the charge of one parson or vicar, or other minister having the cure of souls therein.*" Whence parochial. A corporation established solely for the purpose of maintaining public worship.' Parish church. A select body of Chris- tians, forming a local spiritual association; also, the building in which the public wor- ship of the inhabitants of a parish is cele- brated. ^ A " parochial church " is a consecrated place, hav- ing attached to it the right of burial and the adminis- tration of the sacraments.' 2. In Louisiana, a division of the State known elsewhere as k " county," q. v. Parish court. A local court in one of the parishes of that State. PAEK. 1. In English law, an inclosed chase, extending over a man's own grounds; ' See 1 Bl. Com. 460; 24 N. J. L..683; 19 Ves. 412. » Dollar Savings Bank v. United States, 19 Wall. 239 (1873); New York Life Ins. Co. v. Bangs, 103 U. S. 438 (1880); 17 How. 393; 3 Bl. Com. 427; 4 Kent, 508. s See 1 Bl. Com. 446; 3 id. 140. * Byrnes v. Clark, 57 Wis. 21 (1883), eases. * Gk. paroikia, neighborhood, district. * LI Bl. Com. 111. ' Inhabitants of Milford v. Godfrey, 1 Pick. 97 (1823); Baker v. Fales, 16 Mass. '499 (1820). "Town of Pawlet v. Clark, 9 Cranch, 336 (1815), Story, J. PARLIAMENT 747 PAROL literally, an inolosure,' See Animal; Game, 1. 3. An inclosed place in a city or village, set apart for ornament or to afford the bene- fits of air, exercise, or amusement. ^ A piece o£ ground adapted and set apart for pur- poses of ornament, exercise, and amusement. It is not a street or road, though carriages may pass through it. ' In the exercise of the right of eminent domain, the power to take private property for a puhlicparl^ is not an open question. The judgment of the legislature as to the existence of the public necessity, when fairly exercised, is not revisable by the courts.* See Com- mon, Eight of; Dedication, 1; Square. PABLIAMENT.s The supreme legisla- ' ture of Great Britain, consisting of the queen, or king, the lords spiritual and tem- poral, and the commons. Assembles, at the queen's summons, at least once in three years. Each constituent has a negative in making laws. The powers ate absolute. Each house judges of its own privileges. Members are entitled to the privileges of speech, person, domestics, and prop- erty. The distinctive duties of the house of lords are to sit as a court of review, and to mature bills affect- ing the peerage. The distinctive duties of the house of commons are to impose taxes, to vote money for the public service, and to determine matters concern- ing the election of its members. Bills are read twice in each house, committed, engrossed, and then read a third time. Concurrence in the three branches makes a bill a law. The houses may " adjourn " themselves; but the queen alone can "prorogue" (postpone) or " dissolve " parliament.' See Contempt, 2; House, 2; EJHG. PARLOR CAB. See Carrier, Com- mon; Sleeping-oak. PAROCHIAL. See Parish, 1. PAROL.' 1. Anciently, the pleadings in a cause were viva voce, and thence called " the parol." See Ore Tenus. 2. Not committed to writing: that is, oral, verbal ; also, -written but not sealed. At common law prior to the Statute of Frauds, no distinction was made between an agreement by word of mouth and an agreement in writing without a seal. " Oral " and " verbal " are less comprehensive. Parol agreement, contract, promise, xmdertaking. An agreement entered into 1 [2 Bl Com. 38; 40 N. J. L. 612. sperrinu N. T. Central K. Co., 36 N. T. 126 (1867). s People V. Green, B2 How. Pr. 445 (1873). < Holt V. Council of Somerville, 127 Mass. 413 (1879), by spoken words; also, an obligation not under seal. See Merger, 3. Parol arrest. An anest ordered of a person violating the law in the presence of a judge, magistrate, or other officer of tlie peace ; as, for an offense committed in open court. Parol demurrer. A plpa interposed to stay pro- ceedings in a real action until an infant party became of age. Parol evidence. Evidence not in writ- ing; in particular, evidence outside of a sealed instrument relating to the same sub- ject-matter, — as, the oral negotiations of . parties who subsequently sign a statement of their reciprocal engagements. " Parol evidence is not admissible to vary or con- tradict the terms of a written instrument." The ob- ject of this rale is to protect the honest, accurate, and prudent in making contracts, against fraud and false swearing, carelessness, and inaccuracy, by furnishing evidence of what was intended by the parties, which can always be produced without fear of change or liability to misconstruction.^ Where an agreement is reduced to writing the in- tent and meaning of the same must be sought in the instrument which the parties have chosen as the re- pository and evidence of their purpose, and not in extrinsic facts and allegations." But the rule would become the instrument of the fraud it was intended to prevent, if there were no ex- ceptions to the lUniversality of its application. i Ac- cordingly, it may be shown: that a deed, absolute on its face, is a mortgage; that a resulting trust exists; that a contract was without consideration, is void for fraud, illegality, or disability, has been modified as to time, place, manner of performance, or otherwise, or has been abandoned; what was the situation of par- ties — then- surroimdings, when the contract was made, thus applying it to the subject; that a joint obligor or maker of a note was a surety; that one ac- cepted, made, or indorsed a bill or note for accommo- dation; that a contracting party was an agent; that a mortgage or judgment was assigned by parol.' Parol evidence of surrounding circumstances is ad- missible to show the subject-matter of the contract, when ambiguous or indefinite; but express terms can- not be varied by proof of the negotiations out of which it grew, and the circumstances which sur- rounded its adoption. In construing the contract, such evidence is receivable in order to ascertain the real intention of the parties, but no new obligation can be imposed which is not -ifarranted by a fair and reason- able construction of the language. The current of authorities shows that parol evidence is admissible in » F. parlement: parler, to speak, confer. See 1 Bl. Com. 147. « 1 Bl. Com. Ch. II; Wharton's Law Diet. On Parlia- mentary representation, see 37 Alb. Law J. 61-64 ' F. parole, a word, speech. 1 Union Mutual Ins. Co. u. Wilkinson, 13 Wall. 231 (1871), Miller, J. a Walden v. Skinner, 101 U. S. B84 (1879), cases, Clif- ford, J. s Jones V. N. Y. Guaranty, &c. Co., 101 U. S. 631 (1879), Swayne, J. PAROL 748 PART courts of law only to aid in the construction of writ- ten contracts, admitted or proved; to ascertain ttie subject-matter; to show the real nature of the instru- ment; to explain latent ambiguities or indefinite terms; to give effect to general customs which do not contradict express stipulations; when the original contract was verbal and entire, and only a part of it reduced to writing; and to show a subsequent agree- ment, on a new consideration, varying the terms of the original contract. The exceptions that relate to fraud, mistake, or accident usually arise in courts of ' equity, which have ample and elastic modes of pro- cedure in administering adequate relief. Such courts will look beyond the written terms, consider the whole transaction, and hear parol evidence as ■ to alleged fraud inducing or affecting the contract, if the person seeking relief has acted promptly upon discovering the fraud, and has not derived such benefits as to pre- vent the parties from being placed in statu quo. Proof of fraud in actions at law is restricted to nar- rower limits: the alleged fraud must affect the execu- tion of the instrument.^ To remove such uncertainty as may arise from ap- plying the written terms to the subject-matter, parol testimony is always admissible. Hence, all the cir- cumstances out of which the contract arose may be shown.* The rule does not apply where part only of the orig- inal contract is reduced to writing; nor to a collat- eral undertaking; ^ nor to a distinct subject-matter.* And a stranger is not prevented from introducing such evidence' To admit parol evidence to vary- the terms of an in- strument for fraud in its procurement, there must be evidence of fraud other than that derivable from the ' mere difference between the parol and written terms. There must be fraud, accident, or mistake, established by clear, precise, indubitable evidence.* ' Beceipts, bills of lading, subscription papers, and other informal memoranda are excluded from the rule.' Parol lease. An oral agreement for the use of real property. See Lease. See generally Fkaud, Statute, etc. ; Re- form; Seal, 1. > Chandler u Thompson, 30 P. E. 43 (1886), Dick, J. ' Stoops V. Smith, 100 Mass. 66 (1868), cases. » Chapin u Dobson, 78 N. Y. 79 (1879), cases. * Graffam v. Kerce, 143 Mass. 388 (1887), cases. "Kellogg V. Tompson, 143 Mass. 77 (1886), cases; 1 Gr. Ev. § 279. "Thome v. Warfdein, 100 Pa. 526' (1883), Green, J. See-also Hopkins v. St. Louis, &c. B. Co., 29 Kan. 544, 550 (1883). See also Walz v. Ehodius,8r Ind. 4-11 (1882), cases; Martina v. Berens, 67 Pa. 462-63 (1871), cases; Kosten- bader v. Peters, 80 id. 441 (1876), cases; Bast v. First Nat. Bank of Ashland, 101 U. S. 96 (1879); Martin v. Cole, 104 id. 30 (1881) — as to an indorsement on a note ; Tuley V. Barton, 79 Va. 393 (1884), cases; Hughes v. Tinsley, 80 id. 263 (1885), cases. ' 1 Whart. Ev. § 926, cases; 1 Greenl: Ev. § 275, cases. PARRICIDE. See Homicide. PARS. L. A part ; a party. Ex parte, or ex-parte. From a (one> party ; on behalf of one side. Said of a pro- ceeding had at the instance of one party, without opportunity in the opposing party to appear or participate ; also, of a proceeding to which there is no adverse party. Thus, Ex parte, or Exp., Waite, denotes a petition filed by one Waite for a rfiaTidamus, a quo warranto,. or other writ or proceeding. Inter partes. Between parties; as, a paper executed, or a transaction had, by or between two acting persons. Opposed to an act or transaction by one person only, as in the cases of a bill of sale, a promissory note, a will, a deed-poll. Pars entita. The eldest part : the share of the oldest coparcener, q. v. Pars rationabilis. Reasonable part. See Part, 1, Reasonable. Partieeps. A part-taker :. a participant. Partieeps criminis. A fellow criminal ;. an accomplice. Plural partieipes. See Accom- plice. PARSONAGE. Not a " place of wor- ship," although on land appurtenant to a church. 1 PART. 1. A share, a portion ; a purpart. See Portion. Admission of a part involves an admission of the whole of a document; as, when ofie writing refers to another. This includes all the parts of an account, all indorsements, etc., but not detached items, nor memoranda.'* Bipartite. In two parts — counterparts, q. V. Purpart; purparty. A share of an estate allotted by partition to a coparcener, q. v. Keasonable part. In the time of Henry H (1154-89), a man's goods were viewed as divided into three parts: one each for his lineal descendants, his wife, and himself. If he left children only, or a wife only, they or she took a moiety. The shares of the wife and children were called their reasonable part — pars rationabilis.^ 2. Of part, in part; partial, partially^ as, part — owner, payment, performance, qq. v. Partial. (1) Pertaining to apart: as, par- tial — balance, eviction, loss, qq. v. (3) Bi- ased, prejudiced. See Impartial. ' Church of Our Savior v. Montgomery County, 10 W. N. C. 170 (1881); Wood v. Moore, 1 Chest. Co: 265 (1881). 2 1 Whart. Ev. §§ 019-20, cases. « 3 Bl. Com. 492. PARTICEPS 749 PARTNERSHIP PAETICEPS. See under Pars. PARTICULAR.! Pertaining to a dis- tinct thing, person or party. 1. Involving title to a part only of the •whole inheritance: as, a particular estate, which is precedent to an estate in remain- •der,2 q. v. 3. Respecting a distinct portion or thing : as, particular average, q.v.,a, particular lien, ^. V. , and opposed, respectively, to total and general, qq. v. 3. Directed to one fact, thing, or individual person : as, a particular — averment or state- Tjaent, or malice, gg. v. 4. Affecting a limited district: as, a par- ticular custom, q. v. Particulars. Distinct parts, minutiae; ■details, items ; specific allegations. Bill of particulars. An amplification, or more particular specification, of the matter set forth in a pleading.' Gives precise information as to the nature and ex- tent of the demand made in the declaration. Is de- mandable of right where there are general counts in the declaration, and as to one or all counts. May be voluntarily furnished by the plaintiff. In effect, is an amendment or amplification of the count or counts.^ The scope of an order for particulars must ordi- narily be a question of discretion.^ Independently of statutes, the courts have inherent power to order a bill of particulars in either a civil or a, criminal proceeding. PARTIES. See Party. PARTITIO. L. An apportioning : par- titioning, partition. From partiri, to divide, part. De partitione facienda. Regarding a partition to be made ; for dividing land. A ■writ of partition is sometimes called a writ de partitione, etc. Quod partitio flat. That partition be made : the decree ordering a partition. See Partition. PARTITION. Where two or more joint- tenants, coparceners, or tenants in common, agree to divide the lands so held among them, in severalty, each taking a distributive part.'' ■ L. partlcula, a small part, a " particle." = [2 Bl. Com. 165.] 3 Starkweather v. Kittle, 17 Wend. 81 (1837). * Zacarino v. Pallotti, 49 Conn. 38 (1881), cases; Ches- apeake, &c. Canal Co. v. Knapp, 9 Pet. *564 (1835). ° People V. Gibbs, 93 N. Y. 470 (1883). « 2 Bl. Com. 323. Used both as a verb and a noun. As in some instances there is a unity of interest and in all a unity of possession, the co-owners must mutu- ally convey and assure to each Mher the several estates. 1 May be had amicably, or compulsorily — either by a suit in equity »r by special statutory proceedings on an award of commissioners. Land and buildings which cannot be partitioned without injury to the whole property may be sold and the proceeds divided. The judgment upon a writ at conunoil law is qiiod partitio fiat, that partition be made.* The object is to secure to each tenant the exclusive possession of his share, thereby avoiding the incon- veniences which result from holding property in com- mon. When, therefore, possession cannot follow the judgment, partition cannot be had; that is, an estate must be a subsisting estate held in common or undi- vided, by persons entitled, after partition, to an imme- diate possession in severalty. The proceeding is subject to the rights of a dissenting life-tenant." The difference betwen a judgment and a writ of partition at common law is, that the former operates by way of delivery of possession and estoppel, while in the latter the transfer of title can be effected only by the execution of conveyances between the parties, which may be decreed by the court and compelled by attachment. In many States^ where the equity powers of the court have been aided by statutes to get rid of the difficulty of compelling parties in person to exe- cute conveyances, the court is authorized to appoint a commissioner to execute the conveyances in the names of the parties. In other cases, the statute declares that such decree Itself shall operate as a conveyance of the title.* See further Coparcenary; Owelty; Partition, PARTNERSHIP. A "partner" is a member of a partnership, and a "partner- ship" (often called a "copartnership") is a voluntary contract between two or more competent persons to place their money, ef- fects, labor, and skill, or some or all of them, in lawful commerce or business, with the understanding that there shall be a com- munion of the profits thereof between them.* A partnership exists where parties join to- gether their money, goods, labor, or skill, for the purposes of trade or gain, and where there is a community of profits.^ An association for the purpose of prosecut- > 2 Bl. Com. 323. "See Dana v. Jackson, 6 Pa. 237 (1847). 'See Freeman, Partn. 544; Adams, Eq. 460; 3 Bl, Com. 324; Tableru Wiseman, 2 Ohio, 210 (1853); Striker V. Mott, 2Paige, 389 (1831); 23 Pittsb. Leg. J. 41; Scrib- ner. Dower, 236, § 18. « Gay V. Parpart, 106 U. S. 690 (1882), Miller, J. ; 76 Va. 492. ' Story, Partn. § 2. [3 Kent, 23. e Ward v. Thompson, 22 How. 333 (1859), Grier, J. PARTNERSHIP 750 PARTNERSHIP ing any lawful business, formed by contract between two or more pprsons.i The contract relation subsisting between persons who have combined their property, labor or skill in an enterprise or business as principals for the purpose of joint profit. 2 * No tests have yet been found whicli determine with absolute certainty what contracts will create a part- nership relation;3^ Persons cannot be made to assume the relation, as between themselves, when their purpose is that no partnership shall exist.* A " partner " has a community of interests with the other partners in the whole property, business, and responsibilities of the partnership ; an " agent," as such, has no interest in either. As far as a partner acts for himself in the common concerns of the part- nership, he may be deemed a principal; as far as he acts for his partners, an agent. ^ " Partnership " and '' community " are not the same thing. The first is founded upon the contract of the parties, which thus creates the community; the other may exist independently of any contract. Every partnership is founded in a community of interest; but every community of interest does not constitute a partnership. In every case of partnership there is a community of the property of the partnership between the pai*ties, as soon as it becomes part of the common stock. Every real partnership also imports, ex m ter- Tnini, a community of interest in the profits of the business, that is, a joint and mutual interest, a com- munion of profit, q. V. This is of the very essence of the contract.* Articles of partnership. The instru- ment under which a partnership is begun or continued ; articles of copartnership. Gives the names, style, beginning and ending, nat- ure, management. Contributions, apportionment of profits and losses, accounts, expulsion of members, settlements, etc. Need not be sealed. If no other time is specified, the date of the articles indicates the inception. General partnership. Properly, that in which the parties carry on all their trade and business for the joint benefit and profit of all parties concerned, whether the capital ' Payne v. Thompson, 44 Ohio St. 204 (1886), Owen, Chief Justice. 2 Bates, Partn. § 1. See also 91 U. S. 134; 6 McLean, 88; 18 F. R. 888; 2 Flip. 462; 13 Ark. 31; 9 Gal. 639; 2 Col. 648;' 15 Conn. 72; 8 Ga. 888; 12 Bradw. 528-29; 19 Ind. 115; 12 Iowa, 177; 84 Kan. 340; 88 Me. 555; 46 Miss. 434; 97 Pa. 499; 25 Vt. 890; 12 W. Va. 390. s Blair v. Sheaffer, 33 P. E. 221 (1887), oases, Brewer, J. ; McDonald v. Matney, 88 Mo. 365 (1884). < London Assurance Co. v. Drennen, 116 U. S. 461 " [Story, Partn. § 1. ' Story, Partn. §| 3, 16, 18. As to participation in the profits, see 30 Alb. Law J. 26-30 (1884), oases. Stock be limited or not, and the contributions equal or unequal.' Special partnership. At common law, that formed for a special or particular branch of business', as contradistinguished from the general business or employment of the par- ties, or of one of theiJi. Commonly called a "limited" partnership, when extended to a single transaction or adventure. But the appellation may be applied indifferently to both classes of cases, i Universal partnership. In this the parties agree to bring into the firm all their property, and to employ all their skill, laboF, services, and diligence in trade or business, for their common benefit, so that there is an entire communion of interest between them. 2 Partnerships are "general" and "limited" [spe- cial]. The former exists where the parties are part- ners in all their commercial business; the latter, where the partnership is limited to some one or more branches, and does not include all the business of the partners. There is, probably, no such thing as a " universal " partnership in the sense that every thing done, bought, or sold is to be deemed on partnership account. 2 Limited partnership. An association organized under a statute, with limited lia- bility in some or all of the members.* Byre- cent statutes, the liability of each member is "limited." In the latter sense, the parties file a truthful state- ment of their names, interests, object, place of busi- ness, duration, etc., and publish the word " Limited " in connection with the firm name.^ Probably all of the States have enactments (copied largely from one another) authorizing the creation of " limited " partnerships. The Pennsylvania act of June 2, 1874, is illustrative. It provides that three or more persons may form such a partnership, their principal place of business being within the State, by signing, acknowledging, and recording with the re- corder of deeds a statement setting forth — their full names; the amount of capital subscribed by each; the' total amount of capital, and when and how paid; the character of the business; the location; the name of the association, with " limited " added as part thereof; the duration, which is not to exceed twenty years; 1 [Story, Partn. § 74; 1 Cliff. 38. ' [Story, Partn. § 72. s United States Bank v. Binney, 5 Mas. 183 Story, J. < [3 Kent, 34. » See Ames v. Downing, 1 Bradf. 336 (1860); Jacquin B. Buisson, 11 How. Pr. 390 (1855); Taylor ti. 'Webster, 39 N. J. L. 104 (1876); Bates, Lim. Partn. § 3, Partn. § 460; 1 Lindley, Partn., Swell's ed., »801, cases; SO Am'. Law Eev. 848-66 (1886), cases. PARTNERSHIP 751 PARTNERSHIP and tlie names of officers. Amendments are made and recorded in like manner. These requirements being met, no member is liable for the debts of the association beyond the amount of his subscription. The association must keep a subscription-list book, open to inspection by creditors and members, at rea- sonable times. The word "limited" must be affixed to the name ; for indebtedness or damage due to an omission, every member acquiescing is individually liable. Interests are personalty ; transferable as the association may prescribe. No transferee of an inter- est, nor representative of a decedept or of an insolv- ent, can participate in subsequent . business, unless elected by a vote of a majority of the members in number and value; if no election is made, the interest is appraised by agreement or by a man appointed by court. An annual meeting of the members must be held to select from three to five managers, — one for chairman, one for treasurer, one for secretary or for both treasurer" and secretary. One or more managers contract the debts; when the amount exceeds five hundred dollars, the obligation to pay must be in writing, signed by at least two managers. Dividends must not diminish or impair the capital stock. Loans of credit or capital to members are unlawful; to others, lawful when authorized in writing by a ma- jority in number and value of interest. Dissolution is by expiration of the period fixed, or, earlier, by a vote of a majority in number and value. Notice of wind- ing-up must be given in two newspapers of the proper city or county, six consecutive times, the business ceasing with first notice, except as co the winding-up. Upon dissolution by agreement the property must be distributed first to debts for wages of labor; then to other liabilities; the residue among the members, by three liquidating trustees, elected by the members, "who are to collect and distribute the assets under direction of the court of common pleas.^ When contributions to the stock are to be "cash," neither credits, goods, or notes will be equivalent, al- though convertible into money.^ The statute may direct that a contribution made in property shall be so stated, and the cash value given.^ Limited partnerships are quasi corporations. The members have no general right to inspect the books of the association.* They are partnerships with a limited liability. No restrictions apply to them which do not exist as to other partnerships, except by special ' legislation or strong inference.* A person trading with a limited partnership is chargeable with notice as to the scope of the business, and as set forth in the articles, when the same have been made known according to law.^ 1 Penn. Statutes, 1874 (P. L. 271): 1 Purd. Dig. 937. 3 Van Ingen v. Whitman, 62 N. Y. 513 (1875); Havi- land u Chase, 39 Barb. 283 (1860); Pierce u. Bryant, 5 Allen, 91 (1863). 3 Holliday v. Union Bag Co., 3 Col. 342 (1877), * Patterson v. Tidewater Pipe Co., 12 W.N. C. 452 (1882); Eliot v. Himrod, 15 id. 78 (1884). 5 Greenwood u Hampshire Manuf. Co., 41 Leg. Int. 14 (1883). « Taylor v. Rasch, 1 Hughes, 385 (1874). Secret partnership. Where the exist- ence of certain persons as partners is not avowed or made known to the public. ^ Dormant partner. A partner who takes no part in the business, and whose connec- tion with it is unknown. 2 A partnership is dormant when the name or names of a partner or partners are kept back — dormant as to all whose names do not appear in its transactions. The dormant, sleeping, inactive partner may be known by reputation or declaration of his copartner, but these do not make him an avowed or active one without the- avowal and pledge of his name or paper. The princi- ple which makes a dormant partner liable is, that, having an interest in the profits, which are part of the- fund to which a creditor looks for payment, he shaU be bound for claims and losses. When discovered, h& is liable as a partner; but then he must be shown to- be a partner by an interest in the subject-matter.^ A dormant partner is interested in the business of a firm and participates in the profits, but is not publicly known in this relation. When discovered, he is re- sponsible for the debts contracted by the firm while he was a. member, although he was not known as a. partner when the debts were incurred. On retirement his liability ceases as to debts subsequently contracted by the firm, except as to creditors who knew him to- have been a member and who had no notice of his re- tirement.* A dormant partner takes no part in the control or management of the partnership business. When found out, he is liable like the ostensible partner, for the rea- son that he is a partner. One is not a dormant part- ner because the person who trades with the party" having possession is not aware that another is inter- ested.^ Compare Ostensible Partner. Incoming partner. A person lately or about to be taken into a partnership as a member. Outgoing or retiring partner. One who withdraws from the firm ; a with* drawing partner. Liquidating partner. The member of a dissolved partnership who winds up its business. Wominal partner. A person presented to the public as a partner who in reality is- not a partner. His liability to creditors is imposed upon the ground of a general policy to preserve good faith and prevent frauds in business transactions.* » United States Bank v. Bhiney, 5 Mas. 186 Story, J.; 49 N. H. 227. 2 [Nat Bank of Salem u Thomas, 47 N. Y. 19 (1871). ' Winship v. Bank of United States, 5 Pet. *573-75 (1831), Baldwin, J. * Oppenheimer v. cnemmons, 18 F. E. 890, 889 (1883), Dick, J. ; 6 Tex. 258. 6 Cochran v. Anderson County Nat. Bank, 83 Ky. 44,. 47 (1884), Pryor, J. PARTNERSHIP 753 PARTNERSHIP Ostensible partner. One who exhibits himself to the public as connected with a partnership and interested in its business. ^ A person who conducts himself with reference to the general public in such a way as to induce others, acting with reasonalale caution, to believe that he is a member of a partnership is liable as such to a creditor who contracted with the firm under such belief.* Surviving partner. Although invested with the legal title to the partnership prop- erty on the dissolution of the firm by the death of his copartner, he is not the benefi- cial owner, but a mere trustee to liquidate the partnership affairs by selling the assets and applying them to the payment of the partnership debts J Persons are liable as partners to third persons: (1) Where, although there is no community of interest in the capital stock, the parties have a community of interest or participation in the profit and loss as prin- cipals. (2) Where, strictly, there is no capital stock, but labor, skill, and industry are to be contributed by each person as a principal, and the profit and loss shared in like manner. (3) Where the profit is to be shared between the parties as principals, but any loss, beyond the profit, is to be borne by one party only. (4) Where parties are not in reality partners, but hold themselves out, or at least are held out by the party sought to be charged, as partners to third persons, who gave credit to them accordingly. (5) Where one of the parties is to receive an annuity out of the profits, or as a part thereof.* While it is generally held that sharing profits and losses will constitute a partnership, aij agreement to give a share of the gross profits in consideration of services will not render the parties partners; and the weight of the later decisions is that participation in the net profits does not necessarily create the relation." As a partnership is formed for joint purposes, the membere assume joint risks and incur joint liabilities. Hence, all the members sue and are to be sued. But each is liable for all the firm debts, except in limited associations.^ A contract made by a partner with respect to a matter not falling within the ordinary business objects and scope of the partnership is not binding on the other partners, and creates no liability to a third per- son who knows that the partner acted in violation of his duties. But credit given to the firm within the 1 Oppenheimer v. Clemmons, ante. 2 Sun Ins. Co. v. Kountz Line, 132 U. S. 583, 593 (1887), cases, Harlan J. 3 Fitzpatrick v. Flannagan, 106 U. S. 653 (1832), Mat- thews, J. ; Emerson v. Senter, 118 id. 8 (1885). 4 Story, Partn, § 54; Bigelow v. EUiott, 1 Clife. 32-33 (1850). As to (4), see Thompson v. First Nat. Bank of Toledo, 111 U. S. 536 (1884); Sun Ins. Co. v. Koimtz Line, supra. fi Buzard v. Bank of Greenville, 67 Tex. 89-92 (1886), scope of the partnership, and in the course of its busi- ness, binds all partners, notwithstanding a secret stipulation or reservation between them, unknown to him who gives the credit.* In the absence of proof of its purchase with part- nership funds for partnership purposes, realty stand- ing in the names of several persons is deemed held by them as joint-tenants, or as tenants in common; and one owner cannot sell or bind the interest of his co- owners. ^^ Realty purchased with partnership funds for part- nership purposes, though the title be taken in the name of one partner only, is in equity treated as personalty as far as may be necessary to pay firm debts and to adjust the equities of the partners. The survivor can sell the realty, and the purchaser compel the heirs or devisees of the deceased partner to convey their equi- table titles.* The joint estate of a partnership is that which be- longs to the firm and in which the partners have a. joint interest, at law or in equity, at dissolution. The separate estate is that in which any partner has a separate interest, at law or in equity, at the jsame period.** Partnership effects belong to the partnership and not to the individuals. The right of each partner ex- tends to a share of what may remain after payment of the debts of the firm and the settlement of its ac- coimts. Included in this is the right to have partner- ship property applied to firm debts in preference to the debts of, a partner. This right is an equity as be- tween the partners, and enures to the benefit of cred- itors, who have a privilege or preference, sometimes Joosely denominated a " lien," to have debts due them paid out of the assets of the firm in preference to -creditors of its several members. This equity is a de- rivative one — not held or enforceable in their own right — but practically a subrogation to the equity of the individual partner, to be made effective only through him. Hence, if he is not in a condition to en- force the equity, the creditors of the firm cannot be.* A partnership is dissolved by the death of a partner, but a member may by will authorize a continuance of the relation without subjecting his general assets to joint debts.* If an executor consents to a continuance, his lieji on e Mason v. Eldred. 6 Wall. 235-37 (1867), cases. ^Kimbro u. Bullitt, 22 How. 266-267 (1859), cases, Clifford, J. 2 Thompson v. Bowman, 6 Wall. 317 (1867), Field, J. 3 Shanks u Klein, 104 U. S. 22-24 (1881), cases. Miller, J.; Davis v. Smith, 82 Ala. 202 (1886), cases; 9 Bened. 22; 14 F. B. 617; 87 Ind. 472; 29 Kan. 727; 100 Pa. 487. * Story, Partn. § 373. 6 Case V. Beauregard, m U. S. 124-25 (1878), cases. Strong, J. ; Fitzpatrick v. Flannagan, 106 id. 655 (1882). On the effect of a deed by one partner, see 22 Am. Law Rev. 251-61 (1888), cases; as to admissions by one part- ner, 26 Cent. Law J. 490-98 (1888), cases. That a firm may transfer all assets to one creditor, there being no fraud in the intent, see 26 Am. Law Reg. 789-94 U887), cases. 6 Burwell v. Mandeville, 2 How. 576-77 (1844), cases; Smith V. Ayer, 101 U. S. 320(1879); Jones v. Walker, 103 id. 444 (1880), cases. PARTUS 753 PARTY aCter-aOquired property will be postponed to that of creditors, in an equitable marshaling of assets.* Accounts between partners are to be settled, in court, in one proceeding, by an action of account ren- der or by a bill in equity. In the absence of an ex- press agreement to pay, assumpsit will not lie to recover advances, until the accounts have been set- tled. The object is to avoid a multiplicity of suits.^ The practice in actions between partners for the settlement of their partnership matters is not uniform. In Massachusetts it is held that neither a settlement nor an express promise to pay need be proved on aa- siim^si* for the balance; but the weight of authority is that, before one partner can sue for the recovery of money, an accounting must first be had.^ See further Admission; Agent; Association; Cap- ital, 2; Company, 1; Conversion, 1; Contribution; Delectus; Dissolve, 1; Good-will; Joint; Mining; Profits; Receiver, 2. PABTTJS. L. That which is brought forth, or borne: ofifspring, young. Partus sequitur patr'em. The off- spring follows the father, — the condition of the father. Partus sequitur ventrem. The offspring follows the mother. The former rule prevails in determining the status of children bom of a mother who is a citizen of the United States or of an Indian living with his people in a tribal relation. This was the principle of the Roman and of the common law with regard to the children of freemen. But in the case of animals the second maxim still obtains: the owner of the female owns her progeny — whether brood, foal, or litter. Formerly, also, in the Southern States, the children of negroes took the mother's condition.' Where domestic animals are mortgaged during ges- tation, the offspring, when bom, will, as between the immediate parties, be included as part of the security ; but otherwise as to a bona fide purchaser or incum- brancer acquiring title or lien without notice of the facta and after the period of gestation has passed." PARTY. Compare Charter, 1, Party. 1. One who takes part in anything; a par- ticipant in an act, contract, or suit. 3. He or they by or against whom a suit is brought, whether at law or in equity ; the ' Hoyt V. Sprague, 103 V. S. 624-26 (1880), cases. No- tice of dissolution reqmred, 21 Am. Law Rev. 418-30 (1887), cases; 24 Cent. Law J. 588 (1887), cases: 26 id. 567-71 (1888), cases. « Leidy v. Messinger, 71 Pa. 177 (1872). ' Clarke v. Mills, 36 Kan. 397 (1887), cases. « See generally 2 Bl. Com. 390; as to Indians, United States V. Sanders, 1 Hempst. 486 (l&iT); Exp. Reynolds, 5 Dill. 483 (1879); as to slaves, Andover v. Canton, 13 Mass. *551 (1816); Commonwealth v. Aves, 18 Pick. 222 (1836). 6 Funk V. Paul, 64 Wis. 39^1 (1855), cases. See sher- iff's sale of "mortgaged women" (slaves), frith one child, at Natchez, Miss., in 1841, Fowler v. MerriU, 11 How. 375, 396 (1850). (48) party plaintiff or defendant, whether com- posed of one or more individuals, and whether natural or legal persons.! In legal instruments and proceedings, the common meaning is legal party.^ Others who may be affected by the writ indirectly or consequentially are *' persons interested," not par- ties.* Within the rule that parties having notice of the pendency of a suit in which they are directly inter- ested must exercise reasonable diligence in protecting their interests, " parties " includes all who are directly interested in the subject-matter, and who have a right to make defense, control the proceedings, examine and cross-examine witnesses, and appeal from the judgment. "Strangers " are such as do not possess these rights. 8 Immediate parties. To a bill of ex- change, drawer and acceptor, payee and drawee. Remote parties. Payee and ac- ceptor, indorser and acceptor.^ Nominal or formal party. One who has no real interest in a suit, but is joined with another or others in conformity with some rule of law or practice. Opposed, real or necessary party. ^ See, specially, decisions on next page. Party and party. The contending par- ties in a suit ; plaintiff and defendant, as dis- tinguished from counsel and client. See Costs. Third party. A stranger to the act, con- tract, or suit in question. See Jus, Tertii. As a contract is f oimded upon consent, there must be two or more parties to it; and, unless it is created by law, they must be: of sound mind, of legal age, and under no legal disability. In equity proceedings, all persons who have a ma- terial interest in the subject of the htigation should be joined as parties, complainants or defendants.' But this rule, being founded in convenience, will yield whenever it is necessary to accomplish the ends of justice ; as, where the court may proceed to a decree, and do justice to the parties before it, without injury to absent parties, equitably interested in the litigation, but who cannot conveniently be made parties.' 1 Merchants' Bank v. Cook, 4 Pick. 411 (1826), Parker, C. J.; Douglass v. Gardner, C3 Me. 484 (1874); Rupp v. Swineford, 40 Wis. 28 (1S76); Treleaven v. Dixon, 119 111. 553 (1886). ' English V. Porter, 63 N. H. 215 (1884); ib. 295. » Robbins v. City of Chicago, 4 Wall. 672.(1866), Clif- ford, J. See also 38 Cal. 610; 87 Ind. 333; 21 Me. 482; 41 Md. 369; 74 Mo. 238; 43 N. H. 57; 51 id. 71; 62 id. 163; 66 id. 74; 17 N. J. L. 433; 64 Pa. 245; 5 Sneed, 107. * See Hoffman v. Bank of Milwaukee, 12 Wall. 191 (1870). s See Deford v. Mehaffy, 14 F. R. 181-82 (1882), cases. » Mechanics' Bank v. Seton, 1 Pet. *306 (1828). ' Payne v. Hook, 7 Wall. 431 (1868), Davis, J. PASS 754 PASSPORT Where the parties are numerous and the suit is for an object common to all, some of them may maintain or defend a bill in equity for all.' To a bill in equity there are three classes of parties; (1) Formal parties. (2) Persons having an interest in the controversy, and who ought to be made parties, that the court may act on the rule which requires it to finally determine the entire controversy and do complete justice, by adjusting all the rights involved in it. These are necessary parties; but if their inter- ests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other parties not before the court, the latter are not Indis- pensable parties, (3) Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. ^ As to parties defendant, in particular, all whose in- terests will be affected by the decree sought must be before the court. If they cannot be reached by pro- cess, or do not voluntarily appear, or from a jurisdic- tional objection cannot be made parties, the bill must be dismissed.^ The exact distinction may be stated thus: (1) Where a person will be directly affected by a decree, he is an indispensable party, unless the parties are too numer- ous to be brought before the court, when the case is subject to a special rule. (3) When a person is inter- ested in the controversy, but will not be dii'ectly af- fected by a decree made in his absence, he is not an ■ indispensable party, but he should be made a party, if possible, and the court will not proceed to a decree without him if he can be reached. (3) Where he is not interested in the controversy between the immediate litigants, but 'has an interest in the subject-matter which may be conveniently settled in the suit, and ■therdby prevent further litigation, he may be made a ' iparty or not at the option of the complainant.* But ; ■ no proceeding will prejudice a party who cannot be 'found.' See further Adjudication, Former; Aggrieved; Call, 3; Citation, 2; Contract; Deed, 3; Dependant; Joint a^T) Several; Jurisdiction, 2; Notice, 3,Judi- ■cial; Plaintiff; Privy, 2; Trust, 1; Witness. Party- wall. See Wall. PASS. 1. To undergo an examination without being rejected: as, to pass an ac- count. To examine and approve : as, to pass a title. ' Smith V. Swormstedt, 16 How. 303 (1853), cases. ' Shields v. Barrow, 17 How. 1.19 (1854), Curtis, J. ' Ribon V. Eailroad Companies, 16 Wall. 450 (1872), Swayne, J. ' Williams v. Bankhead, 19 Wall. 571 (1873), Bradley, J. ; Payne v. Hook, 7 id. 431 (1868), Davis, J. ; McArthur V. Scott, 113 U. S. 392 (188S); ConoUy v. Wells, 38 F. E. 207-9 (1887), cases; Lynohburgh Iron Co. v. Tayloe, 79 Va. 671 (1884). •B.S.§§ 737-38, cases. 2. To receive approval: as, for a bill, an act, a law, to pass one or both houses of leg- islation, and be signed by the Executive.' An act of a legislatiu^e is " passed" only when it has gone through the forms necessary by the constitution to give it validity as a binding rule of conduct. Its passage dates from the time when it ceases to be a mere proposition or bill, and passes into a law.' The reference may be to the time when the act is to take effect.' See Act, 8. 3. To continue to another call or list : as, to pass a case. 4. To decide upon, to pronounce : as, for a jury to pass upon the weight of the testi- mony or the merits of a case, and for a court to pass upon a question of law, or to pass sentence upon a convicted offender. 5. To go from one person to another, to become transf eri-ed : as, in saying that a title passes by delivery of a deed or by descent, and that incidents pass with the principal. See Descend. 6. To put off in payment or exchange as money: as, to pass counterfeit or forged paper. " Pass " a note may include utter, publish, and sell. '* Utter and pass" includes any delivery for value, with intent that it shall be put into circulation as money. ^ Compare Utter, 3. Pass and repass. See Travel. PASS-BOOK. See Bank, 3 (3); De- posit, 3. PASSENGER. One who travels in some public conveyance by virtue of a contract, ex- press or implied, with the carrier, as for the payment of fare or that which is accepted as an equivalent therefor.* a mere trespasser, a person who steals a ride upon a railroad train, or who is employed thereon, is not a passenger.' See baggage; Carrier; Commerce; Salvage; Travel; Vessel, Merchant. PASSIVE. See Deceit; Trust, 1. Com- pare Active. PASSPORT. See Sea-letter. ' Waterman v. Philadelphia, 33 Pa. 208 (1859), Black, C. J. ; Chumasero v. Potts, 2 Monta. 285 (1875); 3 Heisk. 442; 1 Paine, 261. ' Charless v. Lamberson, 1 Iowa, 443 (1865). ' United States v. Nelson, 1 Abb. U. S. 135 (1867), cases; 3 Mete, Mass., 464; 4 Allen, 301 ; Baldw. 367. ■" Pennsylvania R. Co. v. Price, 96 Pa. 267 (1880); s. c. 113 U. S. 218 (1885). See also Higley v. Gilmer, 3 Monta. 99 (1878); 24 Cent. Law J. 219 (i887), cases; 25 id. 51 (1887), cases; 139 Mass. 233, 542; Shearm. Sf Eedf. Neg. § 262. As to rights of gratuitous passengers, see 20 Cent. Law J. 485-89 (1885), cases. PATENT 755 PATENT PATENT.i 1 (1) Open to inspection; not closed by sealing. Grants by the king of lands, honors, liberties, fran- chises, etc., are contained in charters or letters-pa*en<, that is, open letters: not sealed up, but exposed to view and addressed to his subjects at large. Other letters OJE the king, directed to particular persons, and for special purposes, not being proper for public in- spection, are closed up and sealed on the outside: writs close, and recorded in the ciose-rolls, as others are in the patent-rolls. = (3) Evident; apparent: as, a patent ambi- guity, q. V. 2. By elision, equivalent to "letters- patent " (noted above, and, more at length, below) for a grant of public land or for a dis- covery, made by government, and consti- tuting a "patent right." A "patent" is a grant by the crown or government.^ Patentable, and non-patentable ex- press, respectively, that letters-patent will or will not be issued for the thing Ln question — a discovery, or land. Patentee. He to whom letters-patent have been granted or issued, in particular for a discovery. Compare Grantee, 3; Li- censee, 3. Patent for land. The instrument by which the government. State or national, passes its title to land ; the government con- veyance. Of itself is evident of title because the government, being the original source of title, is presumed to have retained title until some other disposition is shown.* Ic is the highest evidence of title, and concluBive as against the government and all persons claiming under junior patents or titles, until set aside or annulled by some judicial tribunal. . A bill in chancery is the most convenient remedy to annul a patent; which may be done for fraud in the patentee, for mistake or want of authority in the officer, or because of a higher equity in another claimant.' When a patent has been regularl.y signed, sealed, countersigned, and recorded, the patentee has a per- fect right to its possession. His title is title by record ; delivery of the instrument is not essential to pass the title: that ministerial duty can be enforced by man- ddmus.^ A patent, lawfully issued, cannot be collaterally * The adj. is pronounced pa '-tent or pSt'-ent; the noun, pat'-ent. F. patent: L. patere, to lie open. «2Bl.Com. 346. ' See United States v. Schurz, 102 U. S. 397 (1880). 'Patterson v. Tatum, 3 Saw. 178 (1874), Field, J.; Hayner v. Stanly, 8 id. 221 (1882), Sawyer, Cir. J. » United States v. Stone, 2 Wall. 535 (1804), Grier, J. « United States v. Schurz, 102 U. S. 378, 3! Miller, J. impeached in a court of law. . . A patent from the United States (s the conveyance by which the nation passes its title to portions of the public domain. That the provisions of the law may be properly carried out, a land department has been created to supervise the proceedings taken to obtain a title. The decisions of the officers of that department are conclusive except in direct proceedings for the coiTection or annulment of their acta.* Lapsed patent. A patent which has be- come inoperative through neglect in the pat- entee. Relates to the date of the oi'iginal patent, and makes void all mesne conveyances.^ See more at length Land, Public; Pke-emption, 2; Relation, 1. Patent for a discovery or an inven- tion. A public franchise granted to the in- ventor of a new and useful improvement to secure to him, for a limited term mentioned therein, the exclusive right to make, use, and vend the article or object, as tending to pro- mote the progress of science and the useful arts, and as matter of compensation for the labor and expense in making and reducing the invention to practice for the public ben- efits The grant of a patent is not the exercise of any prerogative to confer upon' a subject the exclusive property in that which would otherwise be of common right. It more nearly resembles a contract which Congress may enter into to secure the inventor, for a limited time, the exclusive enjoyment of the practice of his invention, for disclosing His secret and relin- quishing his invention to the public at the end of the term.* '* The Congress shall have Power . . To promote the Progress of Science and useful Arts, by secur- ing for limited Times to . . Inventors the exclusive Right to their , . Discoveries." * The most important laws passed in pursuance of this power are the acts of July 4, 1836, and July 6, 1870, each of which revised preceding legislation. The act of 1870, changed in its expressions and arrange- ment, and otherwise amended, was re-enacted in the Revised Statutes as sections 4883-4936. The provisions of the acts may be thus summed up: Whoever discovers that a certain useful result will be produced, in any art, machine, manufacture, or com- position of matter, by use of certain means, is entitled to a patent for it: provided he specifies the means in a ' St. Louis Smelting Co. v Kemp, 104 U. S. 640 (1881), Field, J.; MuUan v. United States, 118 id. 278 (1886), cases; Maxwell Land-Grant Case, 121 id. 325, 381 (1887), cases. » Wilcox V. Calloway, 1 Wash. 39 (Va., 1791). ' Seymour v. Osborne, 11 Wall. 5SS (1870;, Clifford, J. ; Wilson V. Rousseau, 1 Blatch. 79 (1845). * Attorney-General v. Rumford Chemical Works, 33 F. R. 617 (1876), Shepley, J. ' Constitution, Art. I, sec. 8, cl. 8. PATENT 756 PATENT manner so full and exact that any one skilled in the gcience to which it appertains can, by using the means specified, without any addition to or subtraction from them, produce precisely the result described. If this cannot be done by the means described, the patent is void. If it can be done, then the patent confers on the patentee the exclusive right to use those means to produce the result or effect he specifies, and nothing more. It malses no difference whether the effect is produced by chemical agency or combination, or by the application of discoveries or principles in natural philosophy known or unknown before his invention, or by machinery acting together upon mechanical principles. In any case, he must describe the manner and process as above mentioned, and the end it ac- complishes. And any one may lawfully accomplish the same end, without infringing the patent, if he uses means substantially different from those described.^ That clear and exact summary of the law affords a key to almost every case that can arise. Everything turns upon the force of the word " means " as there used. The means need not be a machine, or an appa- ratus: it may be api'ocess.^ A patjent-right confers a temporary monopoly iq. -v ), hut the benefit to the public is the primary object. This benefit is the equivalent for the labor of the pat- entee. Hence, the inventor who withholds his inven- tion from the public, to be used solely by himself; will not be aided.\3 And the inventor who suffers his invention to be in public use or on sale two years be- ' fore app!|ying for a patent forfeits his right.* It is not necessary that more than one of the articles be pub- licly used. If the inventor, having made -Jiis device, gives or sells it to another, to be used by the donee or vendee without limitation or restriction or injunction of secrecy, and it is so used, such use is "public," even though the knowledge of ttie use is confined to that one person. But a use necessarily open to public view, if made solely to test the qualities of the inven- tion, and for experiment, is not a public use.^ A patentee cannot be permitted to use for profit a machine which embodies a perfected invention for a period of two years or more, and then obtain a valid patent for the old machine by means of the addition of some new improvement intended, perhaps, to bene- fit the inyentor, rather than the machine.^ The act of March 3, 1839, § 7, did not re^quire that, to invalidate a patent, the public use or sale for the two years, should have been with the consent of the pat- entee.'' A patentable invention is a mental result. It must 1 O'Reilly v. Morse, 15 How. 119 (1853), Taney, C. J. 2 Tilghman v. Proctor, 103 U. S. 728 (1880), Bradley, J. See also R. S. §§ 4889, 4891. 3 Kendall v. "Winsor, 21 How. 328 (1858), Daniel, J. 4 R. S. § 4886, cases. 3 Egbert v. Lippmann, 104 U. S. ?36 (1881), cases, Woods, J.; Worley u Tobacco Co., «&. 340 (1881); Emery V. Cavanagh, 17 F. E. 243 (1883), cases. 8 The Driven-Well Cases (Andrews v. Hovey), 123 U. S. 267 (1887). Blatchford, J., affirming 5 McCrary, 181, 16 F. R. 387; Andrews v. Hovey. 124 U. S. 694 (1888). 7 Smith & Griggs Manuf. Co. v. Sprague, 123 U. S, 257 (1887), cases, Matthews, J. ' be new and of practical utility. Then, everything within the domain of the conception belongs to him who conceived it. The machine, process, or product is but its material refiex and embodiment. * Crude and imperfect experiments are not sufficient to confer a right to a patent. The applicant must have proceeded so far as to have reduced his idea to practice, and embodied it in some distinct form. He is the first inventor, and entitled to a patent, who first perfected and adapted the same to use.^* Such a thing, for example, as a bundle, of kindling wood and afire lighter is not patentable. ^ It is not the object of the laws to grant a monopoly for every trifiing device which would naturally and spontaneously occur to any skilled mechanic or oper- ator, in the ordinary progress of manufactures.'' The design of the laws is to reward those who make some substantial discovery or invention, which adds to oiA" knowledge and marks a step in advance in the useful arts.^ An earlier published description, to invalidate a patent, must exhibit the later intervention in such a full and intelligible manner as to enable persons skilled in the particular art to comprehend it without assistance from the patent, or to make it, or to repeat the process." The patentee must be the first inventor in this country. Foreign use will not affect his right, and a foreign patent will only limit his term to seventeen years from the date or publication of the foreign patent A patent is to receive a liberal construction, so as to uphold, and not destroy, the right of the inventor. = The circuit courts, and district courts with circuit court powers, have original jurisdiction in suits re- specting patents.^ The Federal courts have exclusive cognizance of such suits only as directly involve the validity or the infringement of a patent '*• A patentee, for an infringement, may seek remedy at law or in equity.' ^ 1 Smith V. Nichols, 21 Wall. 118 (1874), Swayne, J. 2 Seymour v. Osborne, 11 Wall. 552 (1870), cases, Clif- ford, J. 3 Alcott V. Young, 16 Blatch. 134, 138 (1879), cases. * Thompson u. Bolsselier, 114 U. S. 12 (1885), cases, Blatchford, J. ^ Atlantic Works v. Brady, 107 U. S. 200 (1882), Brad- ley, J. ; 111 id. 608; 112 id. 59. 6 Downton v. Yeager Milling Co., 108 U. S. 471 (1883), cases, Woods, J. ; Seymour v. Osborne, .11 Wall. 555 (1870); Cohn v. United States Corset Co., 93 U. S. 370 (1876); Eams v. Andrews, 123 id. 66 (1887). 'Comely v. Marckwald, 17 F. R. 83 (1883),- De Florez V. Raynolds, 17 Blatch. 436 (1880); Siemens v. Sellers, 133 U. S. 376 (1887), " Siemens' regenerator furnace." «Turrill v. Michigan Southern, &c. R. Co., 1 Wall. 510 (1863); White v. Dunbar, 119 U. S. 51 (1886), cases; 3 Sumn. 520; 58 N. H. 351. B R. S. § 639. 10 Satterthwait v. Marshall, 4 Del. Ch. 348 (1873); Dale Tile Manuf. Co. v. Hyatt, 135 U. S. 46 (1888), cases; 3 McLean, 523; 58 Pa. 155. i>R. S. §4920. PATENT 757 PATER In the absence of a specific statute, the United States cannot maintain a bill in equity to cancel a pat- ent, i Letters-patent are prima facie evidence that the patentee is the first and original inventor. A bill in equity for a naked account of profits and damages against an infringer cannot be sustained. Such relief, ordinarily, is incidental to some other equity, the right to enforce which secures .to the pat- entee his standing in court. The most general ground for equitable interposition is, to insure to the patentee the enjoyment of his specific right by injunction against a continuance of the infringement; but grounds of equitable relief may arise, other than by way of injunction, as where the title of the complainant is equitable merely, or equitable intei*position is neces- sary on account of the impediments which prevent a resort to remedies purely legal; and such an equity may arise out of, and inhere in, the nature of the ac- coxmt itself, springing from special and peculiar cir- cumstances which disable the patentee from a recovery at law altogether, or render his remedy in u, legal tribunal difiBcult, inadequate, and incomplete; and as such cases cannot be defined more exactly, each must rest upon its own particular circumstances, as furnish- ing a clear and satisfactory ground of exception from the general rule.* A person who marks upon any unpatented article the word "patented "or its equivalent, for the pur- pose of -deceiving the public, is liable, for each offense, to a penalty of not less than one hundred dollars, with costs.^ The plaintiff mustallege an mtention to affix a stamp or plate indicating a present subsisting patent. It is not an offense to give the date of a patent which has expired.* State laws making void notes given in consideration of a patent-right unless the words '■ given for a patents right" are prominently written upon the face of the note, have generally been held to be unconstitutional, on the ground that property in inventions exists by virtue of laws of Congress, and no State may annex conditions to the grant or otherwise interfere with its unrestricted enjoyment.^ A legislature may enact a statute which has the ef- fect to pass title to letters-patent to the assignee of an insolvent.* Patent oflQ.ce, The bureau or office from which letters-patent issue, in which assign- J United States v. American Bell Telephone Co., 33 F. R. 591 (1887), Colt,- J.; Attorney-General v. Rumford Chemical Works, ib. 608 (1876), Shepley, J. The former case was argued on error, before the Supreme Court in October, 1888, and reversed: post, 1016. •■'Rootv. Lake Shore, &c. R. Co., 105 U. S, 189 (1881), cases, Matthews, J. 8 [R. S. § 4901. See Pentlarge v. Kirby, 19 F. R. 501 (1884); ib. 507. ■ * Wilson V. Singer Manuf. Co., 11 Biss. 298 (1882), Drummond, J. ; s. c, 12 F. R. 59. 6 See Exp. Robinson. 2 Biss. 309 (1870); Cranson v. Smith, 37 Mich. 309 (18771; 43 Ind. 167; 53 id. 454; 54 id. 390; 70111. 109; 4 Bush, 311; 25 Ohio St. 26; 18 Pa. 465; 86 id. 173; 23 Minn. 24. < Barton v. White, 144 Mass. 281 (1887J. ments thereof are noted, and other records appertaining to patents made and preserved. The responsible hea'd is the commissioner of pat- enfsy whose office was created by the act of July 4, 1836, In theory, he is to issue no patent which may not be sustained Ijy the courts, as both novel and use- ful. Under that act he was allowed a clerk to assist him in making the necessary examinations under ap- plications. Since the act of 1870, there have been, besides the commissioner and assistant commissioner, three examiners in chief, a chief clerk, an examiner in charge of interferences, twenty-two principal ex- aminers, twenty-two first and twenty-two second as- sistant examiners. ^ All patents shall be issued in the name of the United States of America, under the seal of the patent office, and shall be signed by the secretary of the interior or under his direction by one of the assistant secretaries of the interior, and countersigned by the commissioner of patents, and they shall be recorded, together with the specifications, in the patent office, in books to be kept for that purpose. " The secretary of the interior has no power to revise the action of the commissioner in awarding priority of invention to an applicant for a patent, such action be- ing quasi-judicial. After determining that a patent shall issue, the commissioner acts ministerially in pre- paring the patent for the signature of the secretary, and in countersigning it. A mandamus will lie to compel the performance of these duties.^ As against the patentee himself, an assignment need not be recorded, to retain validity; but as re- spects a subsequent purchaser without notice and for a valuable consideration, a prior assignment must be recorded within three montbs. And as against a third person, a suit may be maintained by an assignee pro- vided he records his assignment before the trial or hearing.* See Abandon, 1; Art, 1; Caveat; Combination, 1; Composition, 2; Damages; Dedication, 2; Delivery, 1; Design, 1; Disclaimer, :i ; Discovery, 2; Equivalent, 2; Extension; Infringement; Interference; Inven- tion; Issue, 1, Re-issue; Machine; Manufacture; Model; New, 1; Novelty; Principle, 2; Process, 3; Profit, 2; Residi/um, 2; Surrender; Telephone Case; Trade-mark; Use, 1, Useful. PATER. L. Father. Compare Partus. Has been used in genealogical tables. Pater est (iuem nuptise demonstrant. The nuptials show who is the father. The marriage of the mother declares the pater- nity of the child. At common law, the nuptials must precede the birth of the child; in the civil law, they may precede or fol- low.* 1 R. S. §§ 476, et seq. * Act 18 Feb. 1888 (25 St. L. 40), amending R. S. §48a3. s Butterworth v. Hoe, 112 U. S. 50 (1884), Matthews, J. * See Curtis, Pat. 183; 20 Am. Law Rev. 703-12 (1886), cases; 1 Story, 273; 3 id. 542, 609; 2 Blateh. 148; 7 id. 195. »! Bl. Com. 446, 454-56; The King v. Luffe, 8 East, 193 (1807). PATERNAL 758 PAVE Paterfamilias. The father (head) of a family ; one not subject to paternal power, but sui Juris. In the Roman law, a paterfamilias was one who either had no father living or had been emancipated from his power. A man who had neither wife nor cl^ld was in this position or status. But a man with a wife and child was a, filiusfamilias, if subject to the family control of a living father — the patria po- testas,^ q. v. Pater patriae. Father of the country. See Parens. PATEBNAL. See Line, 3. PATERNITY. See Bastard ; Filiation ; Pater. PATIENT. See Communication, Confi- dential, 1 ; Physician. PATRIA. L. 1. Belonging to a father ; paternal. Patria potestas. Paternal authority : the power which, under Roman law, the head of a family (paterfamilias) had over that family. Continued to the dose of the father's life; included his own children, the children of his sons and of his sons' sons. Did not include the children of a daugh- ter: these belonged to a different family, the family of their own father. Originally, and for a long time, had a terribly des- potic power. Not only was the father entitled to all the service and acquisitions of his child, as much as those of a slave, but he had the same absolute control over his person. He could sell him into mancipium, a status -analogous to slavery. Down to the Christian era, the father had the jus vitce et necis, the right to tate the life of the child. The reasons which caused the Romans to accept and tenaciously uphold the pa- tria potestas must have been the profound impression of family unity, the conviction that every family was, and of right ought to be, one body, with one will and one executive. The English common law gave the husband a power not much less over his wife, and upon the similar idea of a natural normal imity of the married pair.^^ 2. Fatherland (terra being understood); country. Nemo potest exuere patriam. No one may leave the kingdom. No subject can expatriate himself, — the English doctrine.' See ExPATRlA'noN. Parens patriae. Parent, father, of the iingdom or country. See Parens. PATRICIDE. See Homicide. ' Hadley, Roman Law, 107, 119. ^Hadley, Roman Law, 119-122, 1.30, 140, See also Maine, Ancient Law, 130-141 ; 1 Bl. Com. 452, 444; Mack- sldey, Rom. Law, § 589. s See 3 Kent, 44-50; 9 Op. Att. -Gen. 356; 3 Dallas, 145; 1 Shais. Bl. Com. 370, note. PATRIMONY. Property received from one's father, or ancestors. Whence patri- monial. See Descent. PATRONIZE. To act as a patron to- ward, i The patrons of a house of ill-fame cannot be said to be those who are occupied in the house or about the premises.^ PATTERN. See Design, 3 ; Model. PAUPER. 1. L. adj. Providing little: having little ; indigent, needj', poor. In forma pauperis. In the character of a poor man ; as a poor suitor. "Raupers, or such as will swear themselves not worth five pounds, are to have original writs and sub- pGBuas gratis, and counsel and attorney assigned them without fee, and are excused from paying costs when plaintiff." *^ In admiralty practice, an exception is made in favor of seamen, by Rule 45, in consideration of their necessitous condition, and their presumptive inability to give the ordinary security required of libelants. This is a result of the protection afforded them as wards of the admiralty. It is in conformity with the ancient usage, which, as in the practice in common- law actions permitting suits in f07-ma pauperis, dis- pensed with sureties in suits by poor persons, and allowed, instead, a juratory caution, which is now rarely used.^ The "pauper act" is concerned with liability; the "non-resident act " with security.* Dispauper. To deprive of the privilege of suing in forma pauperis, from subse- quent acquisition pf property, or other cause. 2. Eng. n. One who receives aid and as- sistance from the public, under the laws for the support and maintenance of the poor.^ May designate a poor and indigent person standing in need of relief, a poor person likely to become chargeable, as well as a poor person who has actually received support from the town.* See Poor; Vagrant; Commerce; Inspection, 1. PAVE. To cover with stones, brick, or other suitable material, so as to make a level or convenient surface for horses, carriages, or foot-passengers.'' Re-flagging may be " re-paving." ' ' Raymond v. People, 9 Bradw. 348 (1881). s 8 Bl. Com. 400. ' The Georgeanna, 31 F. E. 406 (1887), Brown, J. See also, generally, Bradford v. Bradford, 2 Flip. 280, 283 (1878), cases, Hammond, J. « Heckman v. Mackey, 32 F. R. 575(1887), Lacombe, J. " [Opinion of the Justices, 11 Pick. .540 (1832); Wilson V. Brooks, 14 id. 343 (1833); 124 Mass. 697. " Walbridge v. Walbridge, 46 Vt. 626 (1874),, Peck, C. J. See also 30 Ark. 768; 49 HI. 186; 69 Iowa, 208; 3 Pittsb. 133. ' Matter of Phillips, 60 N. Y. 22 (1875), Allen, J. ' PAWN 759 PAY Power to pave a street may include, as not unusual, macadainteing and making gutters; ' also raising and lowering parts ot the street." But an order to grade a street does not authorize macadamizing it.' See Bepair, 2; Sidewalk. FAWN.i V. To deliver plate or jewels [or other personalty] as a pledge or security for the repayment of money lent thereon at a day certain. 5 n. A bailment of goods to a creditor, to be kept till the debt is discharged.^ Pawnee; pawnor. The pledgee, and pledgor, respectively, in a contract of pawn- ing. Pawner is common. Pawnbroker. Any person whose busi- ness or occupation it is to take or receive, by way of pledge, pawn, or exchange, any goods, wares, or merchandise, or any kind of personal property whatever, as security for the repayment of money lent lent thereon.'' In Illinois, " every person or company en- gaged in the business of receiving property in pledge, or as security for money or other thing advanced to the pawnor or pledgor." An occasional loan does not constitute a person, under that provision, a pawnbroker: he must so en- gage in the occupation that it may be known as his regular business; and the advances must be upon ar- ticles of personalty.* The pledgor and pledgee have each a qualified property in the goods; the pledgor's property is con- ditional, depending upon the performance of the con- dition for repayment, etc.; and so likewise is the property of the pledgee, which depends upon its non- peiformance." By the common law, a pawnbroker cannot retain goods illegally pawned, e. g., goods stolen; nor can the purchaser from him retain them as against the right- ful owner. ' At common law, the rights of a pawnbroker are the rights of an ordinary pledgee ; but, owing to abuses, legislatm-es seek to control the business by special statutory regulations. See Pledge. > Warren v. Henly, 31 Iowa, 36 (1870). 2 Smith V. Corporation of Washington, 20 How. 147 (1857); Hooe v. Mayor of Alexandria, 1 Cranch, C. C. 98 (1802). s State V. District Court of Ramsey Co.. 33 Minn. 164 (18S5). « F. pan, gown, skirt, pane; L. pannus, cloth. The readiest pledge was clothing,— Skeat. = [2 Bl. Com. 452. « See Coggs v. Bernard, 2 Ld. Hay. 913 (1702); Johnson V. Smith, 11 Humph. 398 (1850); Surber v. McClintic, 10 W. Va. S42 (1877). ' Revenue Act, 13 July, 1869, § 9: 14 St. L. 116. City of Chicago v. Hulbert, 118 111. 63S (1886). ' 2 Bl. Com. 396, PAY.' V. To discharge an obligation by a performance according to its terms or re- quirements, whether the obligation be for money, merchandise, or services.^ To deliver to a creditor the value of a debt, in either money or goods, to his acceptance, by which the debt is discharged. 3 n. Money, other property, or services, ac- cepted in discharge of an obligation : as, an amount given to a person in the military service, in consideration of personal service.* See Fix, 3. Payable. Dischargeable by delivery of an equivalent in value, usually in money ; also, due in present time, matured. See Due. Payee. He to whom payment has been or is to be made. Payer. He who makes or ought to make payment. Payor is rare. Payee refers, in particular, to the person in whose favor a bill of exchange, check, or draft is drawn. Repay. May be synonymous with " re- store." 5 Unpaid. Is more commonly applied to a debt due than to a debt undue.* Payment. 1. Delivery by a debtor to his creditor of the amount due.' Opposed, non- payment. That is payment which the parties contract shall be accepted as payment. It may be made in something else than money.s Originally, the performance of a promise to pay money, at the time and in the manner required by the terms of the contract ; but has been extended to include the delivery of money in satisfaction of a debt after default made in paying according to the contract.' If a commodity, like wood, is accepted, upon a note for money, in pursuance of a subsequent agreement, the transaction constitutes an " accord and satisfac- tion." • Implies a voluntar.y act by the debtor looking to the satisfaction, in whole or in part, of the demand.^" ' F. paier, payer, to content; L. pacere, to pacify, appease. 5 Tolman v. Manufacturers' Ins. Co., 1 Cush. 76 (1848), Forbes, J. ' [Beals V. Home Ins. Co., 36 N. Y. 627 (1867), Hunt, J. ; 15 Barb. 274. « See Sherburne v. United States, 16 Ct. CI. 496 (1880). » Dunnegan v. United States, 17 Ct. 01. 258 (1881). 'Sloaneu Anderson, 57 Wis. IZ^ (1888). ' [Bronson v. Rodes, 7 Wall. 250 (1868), Chase, C. J. s Huffmans v. W^alker, 26 Gratt. 316 (1875). » Ulsoh V. Muller, 143 Mass. 379 (1887), Field, J. i» Detroit, &c. R. Co. v. Smith, 50 Mich. 113(188-3); Bradford Academy v. Grover, 55 Vt. 465 (1883). See PAYMENT 760 PAYMENT 3. As a plea, money or its equivalent in value. , In Pennsylvania, the courts of law, from a time an- tedating 1770, have exercised chancery powers upon a plea of '* payment, with leave, etc." This plea, after notice of the special matter proposed to be offered by way of defense, enables the defendant to give evi- dence of anything which will prove that in equity and good conscience the plaintiff is not entitled to recover. The notice is considered as, in effect, a bill in equity; and the plea and the notice operate substantially as a bill of injunction. The defendant's equity is admin- istered through the medium ol a jury."' Involuntary or compulsory payment, A payment made under compulsion, coercion, or duress. Voluntary payment. A payment made from choice. A "voluntary payment is made by the debtor on his own motion, without compul- sory process. A payment made upon execution is not, therefore, a voluntary payment.^ The coercion or duress which will render a payment involuntary must in general consist of some actual or threatened exercise of power possessed, or believed to be possessed, by the person exacting or receiving the pay- ment, over the person or property of another, from which the latter has no other means of immediate relief, than by making pay- ment. ^ An action does not lie to recover money claimed without right, if the payment was made voluntarily, and with full knowledge of the facts upon which the claim was predicated. It is not enough that the pay- ment was made under protest. To authorize a recovi ery, the payment must have been compulsory, that is, made under coercion, actual or legal. A payment made to prevent a seizure of property which can only take place by legal proceeding, in which the defend- ant may defend, is voluntary.* Where a party pays an illegal demand w ith knowl- edge of the facts which render it illegal, without im- mediate and urgent necessity therefor, and not to release from detention nor to prevent an immediate seizure of his person or property, such payment must be deemed voluntary, and cannot be recovered. Fil- also 2 La. An. 26; 23 Mo. 285; 3 Duer, 441; 19 Barb. 15; 6 Heisk. 136; 12 W. Va. 780. ' Hawk V. Geddis. 16 S. & R. *28 (1827); 1 Eawle, 304; 9 Pa. St. 123; 11 S. & E. *190; 94 N. Y. 333; 2 Greenl. Ev. %% 616-36. 2 [Nichols ■!). Knowles, 3 McCrary, 478 (1882), McCrary, Judge. a Brumagim v. Tillinghast, 18 Cal. 272 (1861), Field, C. J.; Eadioh v. Hutchins, 95 U. S. 210 (1877), Field, J. ■■ Oceanic Steam Navigation Co. v. Tappan, 16 Blatch. 297-302 (1879), cases, Wallace, J.; Nichols u. United States, 7 Wall. 128 (1868),,cases. ing a written protest cannot make a payment invol- untary, i That is a correct statement of the rule at common law. Cases may be found in which the language of the court, separated from the facts, would seem to imply that a protest alone was sufficient to show that the payment was not voluntary; but on examination it will be found that the protest was used to give effect to other attending circumstances,* It suffices if the payment, caused on the one part by an illegal demand, is made on the other part re- luctantly, and in consequence of that illegality, and without the person being able to regain possession of his property except by submitting to the payment.^ See further Duress; Extortion; Protest, 1; Rev- enue; Tax, 2. Non-payment. See Protest, 3. Part payment. The part payment of a debt which will take a case out of the stat- ute of limitations means the payment of a smaller sum on account of a larger sum due. Payment of part of an outlawed debt implies an ad- mission that the balance is still due and a promise to pay it. The act of payment on account takes the case out of the statute.* The principle is that the payer intends to acknowl- edge the greater debt to be still due.^ Oral agreements are competent to prove ihat a pay- ment of money, the delivery of a note, the settlement of accounts, or the assuming of an obligation of a pecuniary nature, are, as between the parties, pay- ments on account or in reduction of a note or other debt within the meaning of the statute.? Nothing can justly be considered as payment in fact but that which is in truth such, unless something^else is expressly agreed to be received in its place.' In ordinary transactions, a. check on a bank, pay- able on demand, is payment. But a note of the debtor, or of a third party, is not a payment of a precedent debt, unless specialli" agreed to.^ By the general commercial law, a promissory note 1 Wabaunsee County v. Commissioners,' 8 Kan. 436 (1871), cases, Valentine, J. 2 Union Pacific R. Co. v. Commissioners, 98 U. S. 544, 643 1,1878), cases, Waite, C. J. » Swift Co. V. United States, 111 U. S. 29 (1884), oases, Matthews, J., quoting Maxwell v. Griswold, 10 How. 266 (1860), Woodbury, J. See also Maxwell v. San Luis Opispo County, 71 Cal. 463 a880); 18 Cent. Law J. 188-CO (1884), cases; 20 id. 224-28 (1886), cases; 20 Cent, Law J. (1886), cases; 68 Ga. 122; 74 Me. 84; 100 Pa. .346; 101 id. 255-57. As to recovery of money paid under a mis- take of fact, see 1 Harv. Law Rev. 211-22 (1887), cases. ■1 Waters v. Tompkins, 2 Crompt,, M, & E. *726 (1635), Parke, B. i> United States v. Wilder, 13 Wall. 266 (1871). » Blanchard v. Blauchard, 122 Mass. 563 (1877), cases, Endicott, J. ; Taylor v. Foster, 133 Mass, 33 (1883), cases; 6 Col, 589; 29 Minn. 171; 91 N, Y. 210; 87 Hun, 97; 22 N. H. 219; 28 Eng, L. & E. 454. ' The Kimball, 3 Wall. 45 (1865). 8 Downey v. Hicks, 14 How. 249 (1862). PAYMENT 761 PEACE does not extingjuish the debt for which it is given, unless that be the express agreement; it merelj- ex- tends the period for payment of the debt. Acceptance of the note is considered as accompanied with the condition of its payment.' Demand of payment of commercial paper must be made on the maker or acceptor personally at his place of business or dwelling. Neither bankruptcy nor death ■will excuse a neglect. The holder is the proper person to make the demand, but the law makes a notary public his agent. What the notary does must appear distinctly in his protest.' See Application, 2; Assumpsit; Debt; Defer; De- UAND, 2; Grace; Neqotiable; Place, 1; Eeimbcbse; Tender, 1, Legal. Payment into court. When the defendant in an action for a certain sum of money ad- mits that a part of the sum is due, he may plead "payment of money into court," thereby stating that he brings a sum into coui-t ready to be paid the plaintiff who has no claim to a larger amount. The plea is accompanied by actual payment of the admitted sum to the proper officer of the court, for the plaintiff. Should the plaintiff not accept the same, but proceed with the action and fail to prove that a larger sum is due, he pays the costs accruing since the tender was perfected. When a debtor, before suit is brought, tenders a certain sum in lawful tender, absolutely and without condition, to his creditor, which sum is refused, after suit brought he will be relieved from paying interest from the date of the tender, and from paying costs, if the plaintiff recovers no more than the sum ten- dered. But, if the tender be made pending the suit, it cannot avail, unless the defendant follows it up with an offer to pay the money into court, or submit to o, judgment for the admitted sum.^ A species of confession of action; and necessary, for the most part, upon pleading a tender,— is itself a kind of tender. The accrued costs are also to be paid into court. All may be done by a motion.* Admits a special contract, sued on. Beyond the sum brought in, is no acknowledgment. Does not waive the benefit of a defense, though that be to the whole claim. After non-acceptance, the case goes on as if no money had been proffered." PEACE.6 A state of 'quiet or tranquillity ; freedom from disturbance, or agitation; calm; repose.' 1 The Kimball, ante; 8 Conn. 473; 37 id. 559. ' Musson V. Lake, 4 How. 374-75 (1846), cases. As to presumptions of payment, see 30 Alb. Law J. 84-88, 103-8, 124--27 (1884), cases. = Coghlan v. South Carolina E. Co., 32 F. E. 316 (1887), cases, Simonton, J. ' 3 Bl. Com. 304. 6 Elliott V. Lycoming County Mut. Ins. Co., 66 Pa. 37 (1870): 1 Tidd, Pr. 624-25; 100 U. S. 673. • L. pax, pacem, compact; pacere, to agree. ' Webster's Diet. The tranquillity enjoyed by a political so- ciety, internally by the pood order which reigns among its members, externally by the good understanding it has with other na- tions. ' 1. Good conduct, public order and deco- rum, within a community. "The common law hath ever had a special care and regard for the conservation of the peace; for peace is the very end and foundation of civil society." ' Offenses against the public peace are : threatening, or demanding any valuable thing, by letter; affrays; riots, routs, unlawful assemblies; forcible entry and detainer; going unusually armed; spreading false news; challenges to flght; libels. All criminal offenses are against the peace, and are so laid in indictments.' Articles of the peace. Complaint on oath to a magistrate of reasonable fear of harm to self or property from what another threatens; " articles to keep the peace." The accused gives security to appear at the next quarter sessions, and, meanwhile, to keep the peace toward all persons. He may except to the complaint for insufficiency; and, by affidavits, he may reduce the amount of bail demanded; but he cannot, by affi- davit, controvert the allegations in the articles. Such articles are included within " surety for good behav- ior; " which may be required of any person suspected to be not of good fame, even of an acquitted prisoner.* Bill of peace. A bill brought by a person to establish and perpetuate a right which he claims, and which, from its nature, may be controverted by different persons, at differ- ent times, and by different actions : or, where separate attempts have already been unsuc- cessfully made to overthrow the same right, and justice requires that the party should be quieted in the right, if it is already suffi- ciently established, or if it should be suffi- ciently established under the direction of the court.5 The design is to secure repose from perpetual liti- gation. Equity suppresses useless litigation and pre- vents multiplicity of suits." Compare Quia, Timet; Quiet, 2. Breach of the peace. An act of assault or violence. A violation of public order ; the offsnse of disturbing the public peace. I [Bouvier's Law Diet. "1 Bl. Com. 340. s 4 Bl. Com. 142-52, 268. The king's peace, 1 Law Q. Eev. 36-50 (1885). < 4 Bl. Com. 031 ; 10 Pa. 3.39; 13 East, 171. » 2 Story, Eq. § 853; Eldridge v. Hill, 2 Johns. Ch. S82 (1816); Alexander v. Pendleton, 8 Cranch, 4(iS (1814); Holland t'. Challen, 101 U. S. 19-20 (1884), cases; 1 Pome- roy, Eq. § 246. PEACE 763 PEDBLEE The term, which is generic, includes unlawful as- semblies, riots, affrays, forcible entry and detainer, the wanton discharge of fire-arms near a sick person, sending challenges and provoking to flght, going armed in public without lawful cause, to the alarm of ' the public, and other acts of a similar character. The offense is committed in the presence of an officer, though at some distance from him and in the dark, if he can detect the act, and could see the person doing it if it were light.* Court of quarter sessions of the peace. See Session, Quarter Sessions. Justice of the peace. An officer origi- nally appointed under the common law to maintain the public peace. An inferior ju- dicial officer with jurisdiction to determine minor statutory controversies, arid to com- mit offenders on criminal complaints. Some justices have their power to maintain the peace annexed to other offices which they hold; and othersiave, or had, it merely by itself, and were thence named custodes or conservatores pacts. Those that were so virtute officii still continue; but the latter sort are superseded by the modern justices. The sovereign is the principal conservator of the peace; hence it is called the " king's peace." The lord chan- cellor and the justices of the king's bench (by virtue of ofSce) are general conservators of the peace, and may commit all breakers of it, or bind them to keep it: other judges are only so in their own courts. The coroner is also a conservator of the peace; and so are sheriffs and constables." Their common-law powers relate exclusively to matters affecting the public peace, and to the arrest and punishment of wrong-doers; the extent of their jurisdiction in the trial and punishment of offenders is regulated by local statutes * They have no civil jurisdiction at common law.* See Arrest, 2; Behavior; Brawl; Constable; Con- tempt, 1; Magistrate; Night-walkers; Paper, 6; Sheriff; Summary. 3. The reverse of war ; that state in which every one quietly enjoys his rights, or, if con- troverted, amicably discusses them by force of argument." A peace between states lately belligerent is a re- turn to a state of amity and intercourse, implying no intention to recommence hostilities. It implies that redress of wi-ongs has been obtained, or that the inten- tion is renounced of seeking to obtain redress. The first agreements are called preliminaries, and a peace 'People V. Bartz, 63 Mich. 495 (1884), Champlin, J.; Galvin v. State, 6 Coldw. S94 (1869); City of Corvallis V. Cdrlile, 10 Oreg. 142 (1882). 2 1 Bl. Com. 349. 3Wenzler u. People, 58 N. Y. 630 (18V4); Allbright v. Lapp, 36 Pa. 101 (1866); Way's Case, 41 Mich. 303 (1879); 15 111. 391 ; 4 Kan. Law J. 113, 128 (1886) — Chicago Leg. Adv. i Dunnagan v. Shaffer, 48 Ark. 477 (1886), cases. = [Vattel, Law of Nations, b. 4, § 1, »430. at this stage is a " preliminary peace " in contrast with the "definitive peace."^^ Articles of peace. The preliminary ar- ticles between Great Britain and the Amer- ican Colonies were signed November 30, 1782, and the definitive treaty at Paris, September 3, 1783.2 PEAS. See Grain. PECULATION.s Appropriation of pub- lic money or goods ; embezzlement of public funds. One of the purposes of the New York act of 1875, c. 19, as the word " peculation " in its title indicates, and perhaps its pritna.ry purpose, is to afford addi- tional security against the betrayal of official trusts by imposing severer punishment for embezzlements, or other frauds by public officers in- misapplying pub- lic property, than was provided by existing laws.* PECUNIAB,Y.5 Pertaining to money; monetary. A pecuniary loss is of money or of something by which money, or a thing of money value, may be ac- quired.^ In Rhode Island, a divorce may be had from a hus- band who, without cause, gi'ossly or wantonly and cruelly refuses or neglects to provide suitable main- tenance for his wife, he being of " sufficient pecuniary ability " to make such provision. The reference is to the possession of means in property to provide the necessary maintenance, not to capacity for acquiring such means by labor.' See Circumstances, 2; -Consideration, 2; Interest, 1; Money; Responsible. PEDDLER. Originally, a foot-trader; by custom, a person who travels from place to place, and carries about with him on his back, on horseback, or in a vehicle, articles of merchandise for sale.* One who deals in small or petty things ; as, one who goes from house to house selling milk in small quantities.' A dealer who supplies the same customers, regu- larly and continuously, may be a peddler; as, a butcher who delivers meat from a wagon, lo ' Woolsey, Int. Law, 5 ed. § 158. 2 As to the effect of the treaty upon citizenship, see Shanks v. Dupont, 3 Pet. *247 (1830). ' t. peculari, to appropriate to one's own use: pecu- lium, private property. ' Bork V. People, 91 N. Y. 10 (1S83). See4 Bl. Com 122. ^L. pecunia, property: pecua, pecus^ cattle. See Webster's Diet. ; 5 Binn. *244. Compare Chattel. " [Green v. Hudson River R. Co., 32 Barb. 33 (I860), Allen, J.; Tilley v. Hudson River R. Co., 29 N. Y.874 (1864). ' Farnsworth v. Famsworth, 16 R. L — (1886); Ham- mond V. Hammond, 15 id. 40 (1885). 'Higgins V. Rinker, 47 Tex. 402-^ (1877). ' City of Chicago v. Bartee, 100 LI. 61 (1881). '» Davis V. Mayor of Macon, 61 Ga. 134 (1879). PEDESTRIAN 763 PENAL A commercial traveler who does not carry with him the goods sold is not a peddler. > See Commerce; Hawker. PEDESTRIAN. See Road, 1, Law of; Sidewalk. PEDIGREE. The lineage, descent or succession of families. All authorities agree that this may be proved by reputation, that is, by hearsay. The term embraces not only descent and relationship, but also the facts of birth, marriage, and death, and the times when those events happened." In order to come within the exception to the rule which excludes hearsay evidence, the question of ped- igree itself must be in issue; and alleged declarations must have been made before the question arose." See Hearsay. PEDIS. See PossESSio. PEER.* An equal in rank or condition : as, in " trial by one's peers.'' In early times the lord was legislator and judge over all his feudatories; and, therefore, the vassals of inferior lords were bound by their fealty to attend their domestic court barons (in.stituted in every manor for doing speedy and effectual justice to all the ten- ants) in order to form a jury or homage for the>trial of their fellow-tenants; Upon this account they are distinguished as the "peers " of the court, pares curtis, or pares curiae. In like manner, the barons them- selves, or the lords of inferior districts, were denomi- nated -peers" of the king's court, and bound to attend him upon summons.* Compare Sdit, 1. By Magna Charta, ch. 29, no freeman shall be af- fected in his person or property " nisi per legale ju- dicium parium suorum vel per legem terrcB," except by lawful judgment of his peers or by the law of the land.' " Judgment of his peers " means " trial per pais," by the country, that is, by a jury.' Peerage. See PAELtAMEST. PEINE. L. Fr. Punishment, penance; also, prison (prisone). Peine forte et dure. Punishment severe and hard; or prison hard and strong. The name of the punishment inflicted upon a prisoner who refused to plead to an indict- ment for felony. ' Exp. Taylor, 68 Miss. 481 (1880). See also 3 Lea, 38; L. R., 8 Q. B. 303; Act of Congress, 1 July, 1862. 2Swink V. French, 11 Lea, 80 (1883): 1 Greenl. Ev. § 104; 1 Whart. Ev. § 208; American Life Ins. & Trust Co. V. Eosenagle, 77 Pa. 516 (1875); 105 id. 577. » Commonwealth v. Felch, 132 Mass. 23 (1882). See generally Fulkerson v. Holmes, 117 U. S. 397 (1886), cases. Woods, J. < F. per, peer: L. parem, par, equal. »2 Bl. Ccm 54, 316; 1 id. 401; 4 id. 260, 348. «3B1. Com. 350-51. ' Fetter v. Wilt. 46 Pa. 460 (1864); Craig v. Fetter, 65 Id. 399 (1870); 3 Md. 453; 63 Barb. 34. The accused, nearly naked, was laid on his back, upon the ground, with arms and feet drawn apart by cords, and with as great a weight of iron or stone placed upon his chest as he could bear. The next day he had three morsels of bread, and the next day three draughts of the stagnant water nearest the prison; and so on, on alternate days, till he died or answered. The practice was abolished in 1772.i The desire probably was to save the accused's prop- erty, otherwise forfeited, to his family.' PENAL.' Pertaining to, prescribing, or incurring punishment; with a penalty at- tached. Penal action. A suit for a penalty. Penal bill. See Penal Sum. Penal clause. The words in a statute which attach a penalty to the act forbidden by it. Penal servitude. See Servitude, 1. Penal statute. An act which inflicts a forfeiture for transgressing its provisions.* See Statute. Penal sum. The sum in a bond declared to be forfeited in case of non-fulfillment of the covenant. When the bond is for the payment of money, the penal sum is usually twice the real debt. The instru- ment was formerly called a "penal bill.'" See fur- ther Penalty. Penalty. Punishment; also, money re- coverable by way of punishment ; and, also, a sum named in a bond as a forfeit in case the obligor fails to comply with the condi- tions. ^ The imposition of the payment of a sum of money, or some personal suffering.'' Is in the nature of a punishment for the non-per- formance of an act or for the performance of an un- lawful act, and in the former case stands in lieu of the act." Involves the idea of punishment, and its character is not changed by the mode in which it is inflicted, whether by a civil or a criminal prosecution.' Includes fines, which are pecuniary penalties.'" " Penalty," " fine," and " forfeiture " are often used 1 4 Bl. Com. 327, 325. a See Washb. Jud. Hist. 142., ' L. poena, pain, suffering, punishment. • [3 Bl. Com. 161. \ » See 3 Bl. Com. 340. « See 2 Bl. Com. 340. ' [Hills V. Hunt, 28 E. L. & E. 396 (1854), Maule, J. 8 County of San Luis Obispo v. Hendricks, 71 Cal. 245(18861, Searls, C. • United States v. Chouteau, 102 U. S. 611 (1880) Field, J. See also 16 S. & R. 323; 13 Abb. Pr. 237; 31 How. Pr. 370; 6 Q. B. D. 696. '"The Strathairly, 124 U. S. 571 (1888), Matthews, J. PENALTY 764 PENSION confusedly. "Penalty" is the general termJ 'See Fine, 2; Forfeiture; Punishment. Wlien a penalty is inserted in an instrument to secure the performance or enjoyment of a collateral object, the latter is considered as the principal intent of the instrument, the penalty as accessory, and, there- fore, intended, only to secure the due performance thereof or the damage incurred by non-performance. In every such case, the true test by which to ascer- tain whether relief can or cannot be had in equity is to consider whether compensation can be made or not. If it cannot be made, a court of eguity will not inter- fere. If it can be made, if the penalty is to secure the mere payment of money, then equity will relieve the party, upon paying the principal and interest. If it is to secure the performance of some collateral act or undertaking, a court of equity will direct an issue quantum damnificatus; and, when the amount of dam- ages is ascertained by a jury, will grant relief upon the payment of suchdamages. As the penalty is de- signed as a mere security, when the party obtains his money, or his damages, he gets all that he expected, all that, in justice, he is entitled to. But there is a distinction between a, "penalty," strictly so called, and " liquidated damages." The latter properly occur when the parties have agreed that, in case one party shall do a stipulated act, or omit to do it, the other party shall receive a certain sum as the just, appropri- ate, and conventional amoimt of the damages sustained by such act or omission. In cases of this sort, courts of equity will not interfere to grant relief; but will deem the parties entitled to fix their own measure of damages; provided always that the damages do not assume the character of gross extravagance, or of wanton and unreasonable disproportion to the nat- ure or extent of the injury. On the other hand, courts of equity will not suffer their jurisdiction to be evaded merely by the fact that the parties have called a sum " damages " which is in fact and intent a pen- alty; or because they have designedly used language and inserted provisions which are in their nature penal, and endeavored to cover up their objects under other disguises.^ See Damages, Liquidated. The mode in which penalties shall be enforced and what disposition shall be made of the proceeds are matters of legislative discretion.^ While the judgment on a penal bond is technically rendered for the full amount of the penalty, the exe- cution will be limited to the amount of the damages proved to have been sustained by the breach of the bond.* Debt lies for a statutory penalty bec.ause the sum demanded is certain, but, though in form ex contractu, » Gosselink v. Campbell, 4 Iowa, aOO (1856); United States V. Mathews, 23 F. R. 75 (1885j. 23 Story, Eq. §§ 1313-18. Approved, Clark v. Bar- nard, 108 U. S. 455 (1883), Matthews, X ; i6. 454-58, cases. And see McPherson v. Robertson, 82 Ala. 462 (1886), cases; 18 Cent. Law J. 143^6 (1884), cases; 17 Ct. CI. 215; 11 F. R. 119; 12 id. 444; 48 Pa. 450; 54 id. 329; 71 id. 180; 19 S. C. 434. " 8 Missouri Pacific R. Co. v. Humes, 115 U. S. 513, 523 (1885). 4 State V. Estabrook, 29 Kan. 744 (1883). it is founded in fact upon a tort. The necessity of establishing a joint liability does not exist; it is suf- ficient if the liability of any of the defendants is shown. Judgment may be entered against them and in favor of the others whose complicity in the offense, for which the penalty is prescribed, is not proved, precisely as though the action were in form as well as in substance ex delicto.^ See Contribution. Penalties are uever en^tended by implication. They must be expressly imposed or they cannot be en- forced. 2 Extreme penalty of the law: death, q. v. PENCIL. See WRiTma. PEND.3 To be in process of settlement or adjustment. . A petition, as soon as filed, is " pending." * An action is " pending " or " depending " until the judgment is fully certified.* " Another action pending," is a plea in abatement (g. v.) that another suit is already pending, upon the same subject-matter or cause of action, and between the same parties, in person or interest. See further Lis, Pendens. PENITENTIARY.^ A prison or place of punishment ; ^ any place designed for the confinement of convicts; a State's prison. By statute 19 Geo. Ill (1779). all offenders liable to transportation maybe confined at hard labor in cer- tain " penitentiary houses," to be created by virtue of that act.^ Sir William Blackstone, co-operating with John Howard, was infiuential in procuring the passage of that act, — legislation which led the way to more just and rational views of prison discipline. ^ See Infamy; Labor, 1, Hard; Prison. PENSION.IO 1. (1) In Gray's Inn, an as- sembly of the members of the society to '* consult " over their affairs. (2) An annual payment due from each member. A " pension writ " was a sort of peremptory order against a member who was in arrears with his dues.i^ 2. In lieu of a corody, especially when due 1 Chaffee v. United States, 18 Wall. 538 (1873), Field, Justice. 2 Elliott V. East Penn. R. Co., 93 U. S. 576 (1878). 3 L. pendere, to hang. 4 Wentworth v. Farmington, 48 N. H. 207 (1868); 3 Cliff. 371; 4 Watts, 156. a_Wegman u Childs, 41 N. Y. 163 (1869); Ulshaferu Stewart, 71 Pa. 170, 174 (1872); 142 Mass. 96. * L. pc^nitentia, penitence: pcena^ punishment. " Penitentiary " has meant: a penitent, an ordainer of penances, and a place for penitents. See Locus, Pen- itentias. ■^ Miliars. State. 2 Kan. 183 (1863). 8 4B1. Com. 371. " 1 W. Bl. Rep. xxi; 1 Shars. Bl. xvi; 4 Bl. Com. 371. ^^F. pension: L. pensionem, pensio^ weighing, de- liberation; payment. '^ [Cowell's Law Diet. PEONAGE 765 PERAMBULATION from ecclesiastical persons, and which is a right of sustenance or to receive certain al- lotments of victual and provision for one's maintenance, a " pension" or sum of money- is sometimes substituted.! 3. A periodical allowance of money granted by a government for services rendered, in particular to a soldier or sailor in connec- tion with a war or with military operations.^ Whence pensionary (n. and adj.) and pen- sioner. See Debt, Public. PEONAGE; The state or condition of a peon,— in Mexico, a debtor held in servitude until he has worked out his debt. See Citi- zen, Amendment, XIV. PEOPLE. Ordinarily, the entire body of the inhabitants of a State. In a political sense, that portion of the inhabitants who are intrusted with political power; the quali- fied voters. 3 The words " the people " must be determined by the connection. In some cases they refer to the qual- ified voters, in others to the state in its sovereign ca- pacity.* The United States government proceeds directly , from the people; is " ordained and established " in the name of the people. It is emphatically and truly a gov- ernment of the people. In form and substance it em- anates from them. Its powers are gi-anted by them, and are to be exercised directly on them, and for their benefit." Under our system, the *' people," who in England are called " subjects," constitute the sovereign.^ The simple word '■ people " is sometimes applied to a nation or foreign power.^ When the constitution of a State directs that pro- cesses shall run in the name of the State, a process in the name of the " people " will be held deficient, not- withstanding the form be statutory." See Citizen; CoiTNTaY; Government; Lex, Salus, etc.; Magistrate; Nation; Sovereignty; State, 3: Welfare, PEPPEBCOBK". The berry of the pep- per-plant. In England, " one peppercorn " is sometimes named as a nominal rent. 13B1. Com. 40;lid. 283. 'See at length R. S. §§ 4602^791; 1 Sup. R. S. p. 468; United States v. Hall, 98 U. S. 343 (1878); United States 1). Moyers, 15 F. E. 417 (1888). 3 [Blair v. Eidgely, 41 Mo. 176 (1867), Wagner, J. ; Koehler v. Hill, 60 Iowa, 568 (18?3); Cooley, Const. Lim. £9, 598. * Black V. Trower, 79 Va. 136 (1884), Lewis, P. » M'Culloch V. Maryland, 4 Wheat. 4034 (1819), Mar- shall, C. J. • United States v. Lee, 106 U. S. 808 (1888). ' United States v. Quincy, 6 Pet. *467 (1838). "Manville v. Battle Mountain Smelting Co., 17 F. R. 186 (1883); Perkins v. State, 60 Ala. 9 (IWT). A peppercorn rent is not a rent within see. 3, subs. 4, of the Conveyancing Act of 1881, such peppercorn not being paid. ' PEE. L. By ; through. Compare Pub. Introduces both Latin and English phrases. Ex- amples of the latter are: per advice; pe»- year; ^ opin- ion per Story, J. The original of the character ^. Per annum. By the year ; yearly. Per capita. By heads — individuals. See Caput, Per, etc. Per curiam. By the court. See Curia. Per iraudem. By fraud: as, a replica- tion alleging fraud as to matter pleaded in discharge. See Fraus. Per industriam. By exertion or labor. Per infortunium. By misadventure. Per minas. By threats. Per my et per tout. L. F. By half and by the whole ; of a moiety and of all. See Joint-tenants. Per pais. F. Per patriam. L. By the country or jury. See Country, 2; Pais. Per proc. By procuration, q. v. ; by let- ter of attorney. Per qtj.od. By which ; whereby. In common-law pleading, introduces a conclusion of law upon facts previously stated. The rule thai special damage must be particularly charged, is termed " laying the action with a per quod." ^ Per quod consortium (q. v.) amisit. By which he (the husband) lost her (the wife's) company. Per quod servitium amisit. By which he (the plaintiflf) lost her (or his) service. Per se. By itself; in itself considered. As, an act of negligence per se; fraud per se; a nuisance per se ; a thing malum per se. Per stirpes. By roots; by the stocks; according to representation. Opposed, per capita, q. v. Per verba. By words — de future, of the future (tense) ; — deprcesenti, of the present (tense). See Marriage. PEEAMBULATION.4 Going around the boundaries of land, with witnesses, to determine and preserve recollection of its extent, and to see that no encroachments have been made and no land-marks removed.^ Compare Processioning. ' Moody V. Yates' Contract, 88 Ch. D. 661 (1885). ' See Curtiss v. Howell, 39 N. T. 213 (1868). '3B1. Com. 124. * L. per-ambulare, to walk through. » [GreenvUle v. Mason, 57 N. H. 392 (1876); 1 Greenl. Ev. § 146, u. PEECEPTION 766 PERFORMANCE PERCEPTION.! Taking, receiving ; per- nancy, q. V. " Perception of rents and profits is the mortgagor's right ijntil a final determination of the right to sell [by the mortgagee], and a sale made accordingly." ' PERCOLATE. See Aqua, Currit, etc. May refer to any flowage of sub-surface water, other than that of a running stream, open, yiBible, clearly traceable." PEREMPTORY.! Pinal, determinate, ; without hope of renewing or altering.' That for which no reason is or need be assigned ; not admitting of contention or con- troversy; final; positive; absolute; obliga- tory : as, a peremptory — challenge, day, de- fense, instruction, mandamus or other writ, nonsuit, rule, qq. v. PERFECT. Complete; also, to make complete: as, a perfect obligation, a perfect title; to perfect^ an appeal, bail, a copy- right, a deed, an invention, qq. v. Whence imperfect. If e^ccepted to, "bail "must be perfected; that is, the persons must justify themselves by each swearing that he is worth the Sum for which he is bail, after paying his debts.* A perfect external " obligation " confers the right of compulsion; a perfect " right," the light to compel those who refuse to fulfill the corresponding obliga- tion,' q. V. A perfect " title " means a title which is 'good in law and equity. ^ A perfect "machine" may mean a "perfected" invention; not a machine perfectly constructed, but so constructed as to embody all the essential elements of the invention, in a form that would make them practical and operative, so as to accomplish the re- sult.* PERFORMANCE.io 1. Accomplish- ment, fulfillment, consummation, discharge. Specifically, doing as one has agreed; also, the thing itself as done; and, also, discharge of the obligation. Opposed non-performance. ^ L. per-cipere, capere, to take wholly or entirely. = Kountze v. Omaha Hotel Co., lOT U. S. 393 (1882), Bradley; J. ; 8 Bl, Com. 163. = Hosier v. Caldwell, 7 Nev. 367 (1872). ^ Per'-emp-tory.' L. peremptoriTis, decisive; per- imere, to take away entirely, cut off, destroy. * [Furman v. Applegate, 23 N. J. L. 89 (1850). «3 Bl. Com. 291. ' [Aycock V. Martin, 37 Ga. 128(1867): Vattel, Law of Nations, § 17. " Warner v. Middlesex Mut. Assur. Co., 21 Conn. *449 (1852). ' American Hide, &c. Splitting, &c. Machine Co. v. American Tool, &o. Co., 4 Fish. 298-99 (1870), Shepley, J. •"M. E. parfourmen, parfournen: O. F. par, per, thoro'oghly; fournir, to furnish. Such a thorough fulfillment of a duty as puts an end to Obligations by leaving noth- ing more to be done.' " Perform " is synonymous with " fulfill." ' In the Statute of Frauds, " performed " means com- pletely consummated.' • "Performance" of a contract means performance in specie of the agreement; "satisfaction" occurs where the contracting party does something in lieu of the thing contracted for.* Part performance. Such an act done in performance of a contract that non-enforce- ment of the contract would be a fraud.5 The Statute of Frauds requires that a contract con- cerning realty shall be in writing. Courts of equity have relaxed the rigidity of the rule, holding that a part performance of an oral contract removes the bar of the statute, on the ground that it would be a fraud for a vendor to take advantage from the absence of a written instrument when he has permitted the con- tract to be partly executed; especially so, where val- uable improvements have been made by the vendee.* Nothing is to be considered as a part performance which does not put the party in a situation which is a fraud upon him unless the agreement is performed. .» The acts should clearly appear to be done solely with a view to the agreement being performed. . . On this account, acts which are merely introductory or ancillary to' an agreement are not considered as a part performance thereof, although attended with expense.' The existence of the parol contract and its terms must be shown by full, complete, satisfactory, and indubitable proof. The evidence must define the boundaries and fix the consideration ; exclusive and notorious possession must have been taken under it, and continuously maintained; and the contract must have been so far in part performed that compensation in damages would be inadequate and rescission inequi- table and unjust.8 Specific performance. Doing as one has agreed to do. That branch of equity jurisprudence which compels a party to per- form his contract in specie. ' Hare, Contracts, 569 (1887). = vEtna Ins. Co. v. Kittles, 81 Ind. 97 (1881). 5 Boydell v. Drummond, 11 East, 85 (1809). On sub- stantial performance, see 19 Cent. Law j. 443-46 (1884), cases. Time, as affecting performance, 26 id. 283-86 (1888), cases. ■• [Johnson v. Collins, 20 Ala. 441 (1852). * [Armstrong v. Kattenhom, 11 Ohio, 271 (1842); 16 id. 248. • Neale v. Neales, 9 Wall. 9 (1669): Purcell v. Miner, 4 id. 517 0866). ' 1 Story, Eq. §§ 761-62; Plymale v. Comstock, 9 Oreg. 318 (1881); Dudley v. Hay ward, 11 F. R. 543 (1882); War- ren V. Warren, 105 111. 576 (1883). ^Brinser v. Anderson, Sup. Ct. Pa. (1888); Brown v. Hoag,36Minn. 375-76 (1886); Burns v. Daggett, 141 Mass. 373 (1886); Halsey v. Peters, 79 Va. 67(1884), cases; 1 Browne, St. P. §§ 457-68. PERFORMANCE 767 PERIOD An equitable remedy, for it gives more than dam- ages for non- performance, which only are recoverable at law. The conti'act constitutes the right. The ob- ject is to place the complainant, as nearly as possible, in the situation in which the defendant had agreed he should be placed. ^ A court of law is inadequate [not competent] to de-' cree a specific performance, and can relieve the in- jured party only by a compensation in damages, which, in many cases, would fall far short of the re- dress which his situation would require. Wherever, therefore, the party wants the thing in specie, and he cannot otherwise be fully compensated, a court of equity will grant him a specific performance.* Specific relief, execution, performance or enforce- ment of contract will be granted when it is apparent, from a view of all the circumstances of the case, that it will subserve the ends of justice ; and it will be with- held when it appears it will produce hardship or in- justice to either party. When specific execution, which would work a hardship were it unconditionally performed, will work equity when decreed on condi- tions, it will be decreed conditionally. Not a matter of right in either party; but a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each case.^ Not decreed in favor of a party who has disregarded his own reciprocal obligationj'nor where duties to be fulfilled (as, by a grantee) are continuous, and involve the exercise of skill, personal labor, and cultivated judgment; nor where there is want of mutuality; nor where there is a complete remedy at law.' A contract for personal services, involving the labor, sMll, and inventive genius of the person in default, cannot be specifically enforced.' The original and sole equity of the jurisdiction is, that an award of damages at law will not afford ade- quate compensation — willnotput the complainant in a situation as beneficial to him as if the agreement were specifically performed " A court of equity may decree specific performance of a contract concerning a chattel, and, while gener- ally it will not exercise it, it is proper so to do where the plaintiff's case is good, his right clear, and the remedy at law inadequate or its enforcement attended with doubt or diflflculty.' While itis a rule that specific performance of a con- ti-aet respecting personalty wlU not be decreed, be- cause compensation is ordinarily sufficient, in cases 1 Tasker v. Small, 3 My. & C. '69 (1837), Cottenham, Lord Chancellor. ' 1 Story, Eq. § 716; Satterthwait v. Marshall, 4 Del. C!h. 338 (1872). » Willard v. Tayloe, 8 Wall. 565-67 (1869), cases, Field, J.; Nickerson v. Nickerson, 127 U S. 675 (1888), cases. * Rutland Marble Co. v. Bipley, 10 Wall. 337-59 (1870), cases, Strong, J. » Wollensak v. Briggs, 119 111. 453 (1887), cases. ' Comer v. Bankhead, 70 Ala. 496 (1881): Lead. Cas. Eq., 4 Am. ed., 1093; Harnett v. Yielding, 8 Sch. & Lefr. «553-54 (1803). ' Johnson u. Brooks, 93 N. T. 343 (1883), where the circumstances are extraordinary, as re- spects either the property or the situation of the pur- ties, and an action for damages would not afford an adequate remedy, equity may be invoked for specific performance. Letters patent and copyrights fall within the exception.' ■He who seeks specific performance must show the facts which make such a decree equitable.^ The question, as already stated, is always one of sound judicial discretion. The contract must be defi- nite in its terms, and be clearly proved. ^ The plaintiff must come into court with clean hands. Omission or mistake in the agreement, or that it is imconscionable or unreasonable, or that there has been concealment, misrepresentation or any unfair- ness, are some of the causes which induce the court to refuse its aid. If the jurisdiction attaches, the court will go on to do complete justice, although in its prog- ress it may decree on a matter cognizable at law.' See Condition; Contract: Covenant; Laches. 2. An exhibition, entertainment, qq. v. F!E!BIIi. The risk, contingency, event, or cause of loss insured against, in a policy of marine insurance. The old phrases " perils of the sea," " perils of navi- gation," and " perils of the river," are interchanged. " Perils of the sea " are all those natural perils and operations of the elements which occur without the intervention of human agency, and which the prudence of man could not foresee, nor his strength resist.* While the phrase " perils of the sea " does not cover all losses that happen on the sea, there is a principle of constinictipn which gives it as extended a meaning as can be reasonably done. All navigation is perilous, and the rule that the insurer is liable only for losses occun'ing from extraordinary causes means nothing more than that a seaworthy vessel will endure all ordi- nary perils. The phrase is only used to describe those abnormal circumstances of dangerous navigation under which the loss occurs, be they what they maj'. Because the "peril" cannot be located it does not follow that there was none." See further Dangers; Risk; Salvage. PERIOD. Any portion of complete time. Designating an act to be done or to be be- gun, though its completion may take an un- certain time, it means the day when the ' New York Paper-Bag Machine Co. v. Union Paper- Bag Machine Co., 32 F. E. 786 (1887), cases, Butler, J. ! Fowler v. Marshall, 29 Kan. 665 (188.3). 3 Shenandoah Valley E. Co. v. Lewis, 76 Va. 835 (1882). * Cathcart v. Eobinson, 5 Pet. *263, 276 (1831), Mar- shall, C. J. » 3 Kent, 300; 62 Barb. 497; 48 N. Y. 419. •Moores v. Louisville Underwriters, 14 F. E. 226 (1888), Hammond, D. J. ; Hazard v. New England Mar. Ins. Co., 8 Pet. 'SS-o (ISM); Thames, &o. Mar. Ins. Co. V. Hamilton, B7 Law T. Eep. 695 (1887), cases. PERISH 768 PERJURY thing commences, as, the exportation of goods. ' ' A stated and recurring interval of time, a round or series of years, by which time is measured. 2 periodical. Recurring, made or to be made, after the lapse of a specified or regular interval of titne : as^ periodical allovpances of money, payments of interest or of principal and interest. PERISH. See Res, Perit, etc. Perishable. Subject to speedy and nat- ural decay. But where, as in the case of a levy upon personalty, the time before a sale can be made is necessarily long, may embrace property liable to material depreciation in value from other causes than decay. = In the commercial sense, designates such property as from its nature decays in a short titae, without reference to the care it re- ceives. Of that character are many varieties of fruits, flowers, some kinds of liquors, and numerous vegetable productions. But merchantable corn is not " perish- able.'" Fattened cattle are perishable property;^ so are potatoes; ^ ajid so are skins and furs.*^ Inherently liable to deterioration and decay. " In this case, the goods can be preserved as they are, by reasonable care, and that the sheriff is bound to be- stow upon them, until the right to make a sale shall be secured by a judgment against the debtor, and an ex- ecution be issued for that purpose. The order should be modified so as to allow sale of the kid gloves, as they are shown to be inherently liable to decay and deterioration, but not so as to the underwear, neckties, ishirts, jewelry, umbrellas, etc., although as to some of these the fashion may change." ^ Where property, attached as belonging to a defend- ant, is sold under an order of court before judgment, the purchaser takes a title good as against all the world. Such sales, which are very ancient in their Vjrigin, proceed upon the principle of necessity. To permit the property to become worthless by natural decay would be to defeat the object of the attachment or levy." See Eeplevin, 1; Sound, 3 (.1). A court will order the sale of realty belonging to an . . . ■ — ^ . ■ [Sampson v. Peaslee, 20 How. 579 (1857), Wayne, J. 2 Eepple V. Leask. 67 N. Y. 528 (1876), Folger, J. s [VS'ebster v. Peck, 31 Conn. 495 (1863), Butler, J. 1 Illinois Cent. E. Co. u. McClellan, 64 111. 67 (1870), Walker, J. 6 M'Call V. Peachy, 3 Munf. 288-(1811). - 8 Williams v. Cole, 16 Me. 208 (1833). ' Astor V. Union Ins. Co., 7 Cow. S02 (1827). 9 risk V. Spring, 25 Hun, 367 (1881). See Schoul. Bailm. 397. •Toung V. Keller, Sup. Ct. Mo. (1888), cases; Mo. E. S. 1879, §§ 424r-25, 470: 86 Cent. Law J. 420-22, 423 (1888), insolvent corporation, when there is no income with which to keep it in repair, and it is of such a charac- ter as to materially deteriorate in value pending pro- tracted litigation.? PERJITRT.2 When a lawful-oath is ad- ministered, in some judicial proceeding, to a person who swears willfully, absolutely, and falsely, in a matter material to the issue or point in question. ^ The willful giving, under oath, in a judi- cial proceeding or course pf justice, of false testimony material to the issue or point of inquiry.* The taking of a willful false oath by one who, being lawfully required to depose the truth in any judicial proceeding, swears abso- lutely in a matter inaterial to the point in questibn.s Taking a false oath in a judicial proceed- ing.'' An offense against public justice. Must be corrupt (committed malo animo)^ willful, positive, absolute; on a point material to the question in dispute; and the oath be administered by a court or ofiOlcer having ju- risdiction or authority over the subject-matter, and in a proceeding relative to a civil suit or a criminal pros- ecution. The breach of an extra-judicial oath is merely ground for damages for the private injury."^ The false statement must have been made " will- fully." « The officer must have had legal authority to admin- ister the oath.' The matter charged to have been falsely stated must have been material to the issue. The words used in Eev. St. are "material matter." These words were adopted from the common lav/ ; and they must be given a signification broad enough at least to cover cases of perjury at common law. • ' The section referred to pro- vides that " If any person in any case, matter, bear- ing, or oth^r proceeding, when an oath or affirmation shall be required to be taken or administered under or by any law or laws of the United States, shall, upoh the taking of such oath or affirmation, knowingly and willingly swear or affirm falsely, every person s6 of- ' Middleton v. New Jersey West Line E. Co., 26 N. J. E. 869 (1875). ^L., perjurare^ to forswear; per, through, over, be- yond; jurare, to bind by oath: jus, right, law, 3 Coke, 3 Inst. 164: 4 31. Com. 137; 86 Ohio St. 88. « 2 Bish. Cr. L., 5 ed., § 1015. = Commonwealth v. Smith, 11 Allen, 253 (1865), Hoar, Judge. « The Queen v. Castro (" Tichborne "), L. E., 9 Q. B. 367 (1874), Blackburn, J. ' 4 Bl. Com. 137; Whart. Cr. Ev. § 1257. » Schmidt v. Witherick, 89 Minn., 156 (1S88). » United States v. Curtis, 107 U. S. 672 (1888). •■1 United States v. Shinn, 8 Saw. 410-11 (1882), Deady, J. ; s. c. 14 F. E. 447; 3 Crim. Law Mag. 469-63 (1883), cases. PERMANENT 769 PERPETUATE fending shall be deemed guilty of perjury, and shall, on conviction thereof, be punished by fine, not exceed- ing two thousand dollars, and by imprisonment and confinement to hard labor, not exceeding five years, according to the aggravation of the offense." * One who swears willfully .to a matter which he rashly believes, which is false, and which he had no probable cause for believing, may be convicted of the crime." The truth must be shown.' ' Parol testimony is admissible.* The testimony of one witness, unsupported, may not be enough to convict; for there may then be merely oath against oath.^ Subornation, of perjury. Procuring another to take such a false oath as consti- tutes perjury in the principal.* " If any person or persons shall knowingly or will- ingly procure any such pei-jury [see above] to be com- mitted, every person so offending shall be deemed giuilty of subornation of perjury, and shall, on con- viction thereof, be punished " by fine, and by imprison- ment at hard labor, as in cases of perjury,' q. v.; and thereafter be incapable of giving testimony in any court of the United States until the judgment is re- versed.^ Subornation of peigury is in its essence but a form of perjury itself. An indictment miist aver that the accused knew that the testimony was false, and that in giving it the witness would commit perjury.' The person solicited is not an accomplice in the crime of subornation; and the fact that he committed per- jury does not prevent the jury from convicting the suborner of the solicitation on his testimony. i" Solicitation to commit perjury, though unsuccessful, is a misdemeanor at common law. " See Suborn. SeeCttiMES, Falsi; Infamy; SwEARrao, False. PERMAIfENT. Does not always em- brace the idea of absolute perpetuity.'^ Thus, " permanent residence^" does.not involve the Idea that a change thereafter may not be made; " it implies that there is no present intention to make a change.'* " Permanently establish a county seat " does not > E. S. § 6392: Act 3 March, 1825, J 13. ' See United States v. Moore, 2 Low. 235-38 (1873), cases; Baldw. 370; 1 Sprague, 558; 4 McLean, 113. s 1 Whart. Ev. § 387. Cr. L. § 1381 ; 27 Gratt. 127. *3 Greenl. Ev. §§ 188-202; 105 Mass. 582; 107 id. 227. •4 Bl. Com. 358. On corroboration, see 25 Cent. Law J. 534 (1885), cases. •4B1. Com. 137. ' B. S. S 5392. e E. S. § 5.393. See also § 5397. 9 United States ti. Dennee, 3 Woods, 41 (1877); Com- monwealth V. Douglass, 5 Mete, Mass., 244 (1842). '"United States v. Thompson, 31 F. E. 331 (1887), Deady, J. "See 2 East, 5; 6 id. 464. n Hascall v. Madison University, 8 Barb. 185 (1850). " Newton v. Commissioners. 100 U. S. 562 (1879). "Dale V. Irwin, 78 Bl. 181 (1875). mean to keep the county seat at a place perpetually, or for all time;' the legislature may at pleasure re- move a county seat "permanently located."" See Forever. An institution of learning is " permanently located " when the trustees by resolution locate the buildings with intention that the place shall be the permanent place for conducting the busiuess of the corporation.' A sidewalk need not be made of stone or brick to be " permanent " rather than " temporary." * Compare Establish; Perpetual. See Alimony. PERMIT .8 Is more positive than "al- low " or " suffer : '' denotes a decided assent.*" Implies assefit given or leave granted.' May mean "suflEer."8 Includes knowledge of what is to be done, and in- tention that what is done is what is to be done.* One definition is "to allow by not prohibiting," as in an ordinance that " no person shall permit swine to go upon a sidewalk."'" See Suffer. Permissive. Allowed ; suffered : as, per- missive waste, q. v. PEBNAHCY." Taking, receifring; en- joyment. Pernancy of the profits of an estate is the taking, perception, or receipt of the rents and other advan- tages arising therefrom. See Perception. Pernor. He who receives such profits, etc.; » cestui que wse.'" PERPETRATOR. See Accomplice. May include an artificial person, as, a, railroad company." PERPETUAL.'* Unlimited in time; con- tinuous: as, a perpetual — injunction, lease, statute, succession, qq. v. A grant of perpetual succession to a corporation does not mean that the corporate existence shall be unending, but only unbroken during the term. ' » Com- pare Permanent. See State, 3 (2). PERPETUATE. To cause to endure in- definitely ; to preserve from the contingency of loss or extinction. ' Newton v. Commissioners, ante. " Harris v. Shaw, 13 111. 465 (1851). » Mead v. Ballard, JTWall. 290 (1868). • City of Lowell ifrrench, 6 Cush. 224 (1850). See also 23 How. Pr. 448; 12 Bush, 541. ' L. per-mittere, to send through, pass through. • City of Chicago v. Stearns, 105 111. 558 (1883). ' Loosey v. Orser, 4 Bosw. 401 (1859). e Territory v. Stone, 2 Dak. 165 (1879). • Gregory v. United States, 17 Blatch. 330 (1879). 10 Commonwealth t). Curtis, 9 Allen, 271 (1864). ' ' Per'-nanoy . F. prendre, to take. '"2 Bl. Com. 163. n Philo V. lUinois Central E. Co., 33 Iowa, 47 (1871). 'i L. perpetualis, universal, permanent: perpetuus, constant, continuous. '» Scanlan v. Crawshaw, 5 Mo. Ap. 339 (1878). (49) PERPETUITY 7T0 PERSON Perpetuate testimony. If a witness to a disputed fact is old and infirm, or going abroad, it is not unusual to file a bill to " per- ' petuate " his testimony, although no suit be pending. 1 Such bills are indispensable in securing justice, as it may be impossible for a party to bring Us rights presently to a judicial decision; and unless, in the meantime, he may perpetuate his proofs, the rights themselves may be lost without default in him. The civil law adopted similar means of preserving testi- mony. Bills to take testimony de bene esse arise when suits are actually pending." PERPETUITY. 1. Of the sovereign! absolute immortality in his political capacity. ' 3. The settlemeht of an interest in prop- erty, which will go in the succession pre- scribed, without any power of alienation.^ A grant of property wherein the vesting of an interest is unlawfully postponed.* So called, not because the grant, as written, would actually make the estate perpetual, but because it transgresses the limits which the law has set in re- straint of grants that tend to a perpetual suspense of the title, or of its vesting, or, as it Is sometimes ex- pressed, with less accuracy, to a perpetual prevention of alienation,^ A limitation of property which renders it inalienable beyond the period allowed by law,8 — a life or lives in being and twenty- one years more, with a fraction of a year added for the term of gestation, in cases of posthumous birth. All that is required is that the estate shall vest within the prescribed period. The right Of possession may be postponed longer.' Perpetuities are abhorred by the law. They make estates incapable of answering the ends of social com- merce, and providing for the sudden contingencies of private life, for which property was at first estab- lished.^ Trusts created for charitable or public pmT)oses are not subject to the rule.' See Accumulation; Charity, 2; Mortmain. 1 3 Bl. Com. 450. = 2 Story, Eq. §§ 1505-13; Hall v. Stout, 4 Del. Oh. 873 (1871); 3 Daniel, Oh. Pr. 955; 1 Pomeroy, Eq. §§ 83, 810. » 1 Bl. Com. 249. » 2 Bl. Com. 174. s City of Philadelphia v. Girard's Heirs, 45 Pa. 26 (1868), Lowrie, C. J.; 10 id. 334; 88 td. 495. «Ould V. Washington Hospital, 95 U. S. 318 (1877), Swayne, J. See also Perin v. Carey, 24 How. 494 (1860) : Saund. Uses, &c. 196; MoArthur v. Scott, 113 U. S. 383- 83 (1885), cases. Gray, J. ' Bruce v. Nickerson, 141 Mass. 403 (1886). « 3 Bl. Com. 174; Quid's Case, sapra; De Wolf v. Lawson, 61 Wis). 474 (1884); 76 Va. 147. « Jones V. Habersham, 107 U. S. 185 (1882); Detwiller V. Hartman, 87 N. J. E. 354 (1888). PERQUISITE. See Emolument. PERSON. Persons in law are either nat- ural or artificial. Ifattiral persons are such as the God of nature formed us ; arti- ficial persons, such as are created and de- vised by human laws for the purposes of society and government — corporations or bodies politic, i which derive their existence and powers from legislation. ^ In the bankruptcy acts, person included a corpora- tion. = In internal revenue laws, includes a partnership, association, company, or coiporation, as well as a natural person.* In the Revised Statutes, or any act or resolution of Congress passed subsequently to February 35, 1874, the word may extend and be applied to partnerships and corporations, unless the context shows that a more limited sense is intended. = A private corporation is included within the prohi- bition of section one of the Fourteenth Amendment, that no State shall deny to any person the equal pro- tection of the laws.* May include a State, or the United States.' Includes Indians, within habeas corpus ^ and inter- course acts.* In a statute, includes women, unless the context clearly shows an intention to liihit it to men." In short, while " any person or persons " compre- hends every human being, the terms will be limited to the class or classes in the mind of the legislature. While a natural person may do any act which he is not prohibited by law from doing, an artificial per- son can do none which the charter giving it existence does not expressly or by fair inference authorize." " Injuries to the person " import hm-t to the body, physical injuries; as, in a civil damage law.'" Offenses against the person are: homicide, may- hem, rape, robbery, buggery, battery, wounding, false imprisonment, kidnaping, abduction. ^^ The rights of persons are those which concern and are annexed to the persons of men; and they are either absolute or relative. See Right, 2. 1 1 Bl. Com. 123, 467. " United States v. Fox, 94 U. S. 331 (1876). " R. S. § 5013. « R. S. § 3140; 15 Op. Att.-Gen. 230. » R. S. § 1; 11 Wheat. 412; 12 Pet. 1.34; 94 U. S. 321; 8 Saw. 239, 269, 274-75, 281, 283-92; 18 F. R. 404; 87 Ind. 696. " Pembina Mining Co. v. Pennsylvania, 125 U. S. 189 'Alabama Certificates, 12 Op. Att.-Gen. 179 (1867); i6. 217; 9 Kan. 194; 33 Minn. 436; 8 N. J. E. 590; ^ Ohio St. 611 ; 24 Tex. 61. ' United States v. Crook, 5 Dill. 458 (1879). • United States v. Shaw-mux, 2 Saw. 364 (1873). " Opinions of the Justices, 136 Mass. 680 (1883); 74 Ga, 795. ■' Smith V. Alabama Life Ins. & Trust Co., 4 Ala. 568 (1843). " Calloway v. Laydon, 47 Iowa, 458 (1877). " 4 Bl. Com. 205-19. PERSONA 771 PETITION Person, fictitious. See Decoy; For- gery. Persons in public employment. See Libel, 5. See also Arrest, 2; Bail, 8; Body, 1; Citizen; Ex- pose; IpENTiTT, 1; Individual; Inspection, 2; Juris- diction, 2; Name, 1. Personal. Pertaining to the person ; be- longing to an individual person; individual: as, personal or a personal — action, asset, baggage, chattel, contract, covenant, credit, demand, disability, estate, goods, injury, knowledge, liability, liberty, note, perform- ance, property, representative, security, serv- ice, servitude, tax. Referring to some subjects — as, an action, asset, chattel, estate, property — " personal " means simply movable, transitory: that which may follow the person of the owner or defendant. Again, referring to some subjects — as, an action, contract or covenant, defendant, in- jury, privilege, security, service, tax — "per- sonal " is contrasted with real, or that which concerns real estate. See those substantives. Personalty. Personal property, q. v. Personate. To assume the character of another without authority and do something to his or a third person's detriment. Known as "false personation," whicli is a misde- meanor both at common law and, generally, by statute.^ ■ In England, since 1874, to personate any person or his heir, executor, etc., with intent to claim succession to property, or falsely- to claim relationship to any family, is a felony, punishable with penal servitude for life.' There may be a false personation of an ofScer for the purpose of maldng a pretended arrest, or collect- ing fines, taxes, or other alleged dues. Falsely personating any person under the provisions of the naturalization laws,' or any person holding a claim against the government, are criminal ofEenses.* See Chinese, p. 177, sec. 7; Pretense, False. PERSONA. L. A person. See Actio, Personalis; Delectus, Desceiptio, Per- sonse: In, Personam, Propria, etc.; Mobilia. PERSUADE. See Influence. To "inveigle, persuade, or entice" a child into in- voluntary servitude, necessarily implies assent yielded as the result of the persuading or enticing, by whom- ■ See 4 Bl. Com. 248; 2 Euss. Cr. 479. ' Stat. 37 & 38 Vict. c. 36. » E. S. § 5434. < E. S. § 54315. soever the influence is brought to bear, whether by parents, uncles, or others.' PERTENTENT. Relevant; materially relevant. Opposed, impertinent. Said of evidence which is useful in proving a cause of action or a defense. See Impertinence ; Eelevant. PETIT; PETTY.2 Small, little; the lesser; opposed to gfrand and high: as, petty constable, g. v.; petit or petty — jury, lar- ceny, treason, qq. v. See also PETTiFoaGEK. Petty-bag office. Proceedings to cancel letters- patent were in the " Petty Bag " office of the court of chancery, in which common-law proceedings were cai^ied on, and all were entitled "In the Petty Bag Office in Chancery." = See Hanapeb. PETITIO. L. Requesting, seeking: pe- tition. Petitio prineipii. A begging of the question: assuming as conceded or settled the question at issue.^ PETITION. Formal written application to a superior for the exercise of his authority. See Petitio. An application, in writing, to bring before a court a matter in regard to which judicial action is necessary, a suit being inappropri- ate from there being as yet no adversary party. 5 Under code practice, the first pleading filed by a plaintiff, wherein he states the facts of his case as they actually occurred.' " Petition " describes an application in writing, in contradistinction to a " motion," which may be viva voce.'' Petitioner. He who presents a petition. The person adversely interested is called the " re- spondent." The use of petitions to induce the exercise of judi- cial discretion or power is manifold. By means of them proceedings are begun, expedited, and termi- nated in the settlement of decedents' and insolvents' estates; in the appointment, change, and discharge of guardians, committees, assignees, and other trustees, and in the filing, auditing, and settling of their ac- counts; in the appointment of viewers under laws re- lating to the opening of highways, the construction of bridges, canals, etc. In equity practice, they are generally ancillary to suits already begun. There are also petitions for alimony and other al- J United States v. Aucarola, 17 Blatch. 423, 430 (1880), Blatchford, J. ^ F. petit. " Petty " is the anglicised word. ' Attorney-General v. Euraford Chemical Worlrs, 38 F. E. 618 (1876). •107D. S. 507; 29V7is. 197. «Bergen v. Jones, 4 Meto., Mass., 376 (1842), Shaw, C. J.; 67 N. Y. 547; 48 Miss. 36. • See Atchison, &c. E. Co. v. Eice, 36 Kan. 599 (1887). PETROLEUM 772 PHOTOGRAPHER lowances, petitions for summons to respondents in divorce, etc. Statements of facts in petitions are required to be verified by accompanying affidavit. Compare Prater. Petition of rights. A parliamentary declaration of the liberties of the people, as- sented to by Charles the First, in 1629.1 Eight of petition. The right of petition- ing the sovereign or either house of Parlia- ment for the redress of grievances.^ The right which the government of Great Britain ac- cords to aliens or subjects to prosecute claims against it. The proceeding is judicial, to be tried like a suit between subjects.* Appertains to every individual when any uncom- mon injury happens, or any right is infringed, which the ordinary course of law is too defective to reach.* Petitory. Said of a suit in v?hich the title to property is to be enforced by means of a petition, or other proceeding.* Suits in admiralty concerning property in ships are " petitory " when the mere title is litigated, and sought to be enforced independently of any possession pre- viously accompanying that title; and "possessory" when they seek to restore to the owner a possession of which he has been unjustly deprived, that posses- sion following a legal title, or being a possession under a claim of title with a constat of property. The former has been silently abandoned in Eng- land, upon the principle that titles to property derived from the common law shall be litigated in the com- mon-law courts — a proposition which, carried to the full extent, would prostrate the entire jurisdiction of admiralty in instance cases. Indeed, titles to ships principally depend upon the maritime law as recog- nized and enforced in the common law ; and the ad- miralty law does little more in instance cases than carry into effect the declarations of the maritime law, so recognized and enforced. In the United States, ad- miralty has jurisdiction of both kinds of actions.* PETROLEUM. See Minekai; Oil; Wager, Contract. PETTIEOGGEB.f 1. A practitioner of law vchose business is chiefly confined to petty causes. 3. One who pretends to practice law, but is without either knowledge of the law or conscience.8 1 1 Bl. Com. 128. ''[IBl. Com. 143. 'United States v. O'Keefe, 11 Wall. 183 (1870); The Fidelity, 16 Blatch. 574 (1879); United States v. Lee, 106 U. S. 205 (1882). ♦ 1 Bl. Com. 143; 4 id. 147; 23 & 84 Yict. (1860), c. 34. » [1 Kent, 871. »The Tilton, 5 Mas. 468-73 (1830), Story, J.; Ward v. Peck, 18 How. 267 (1855), cases; 15 F. E. 285. ' F. petit, little; O. Dut. focker, an engrosser of com- modities,— Skeat. 8 [Bouvier's Law Diet. An inferior attorney employed in mean professional business.! The expression " pettifogging shyster " can only ap- ply to an unscrupulous practitioner who disgraces his profession by doing mean work, and who resorts to sharp practice to do it.^^ PETTY. See Petit. PEW. See Church. In the United States, pews belong to the legal own- ers of the church building. The right of an individual holder is not partial ownership of the building itself. The sale of a pew, as a pew, conveys no such owner- ship. The pewholder's right is incorporeal, a mere easement, or, at most, a usufructuary interest; sub- ject to such changes as the circumstances of the con- gregation require. The holder's consent is not neces- sary to such a change, and his right is extinguished when the edifice is taken down. He is not entitled to a pevv in a new building because he held one in the old. But while his "right remains it is exclusive. He may use the pew on all occasions when the house, aa a church,' is open; he may put a fastening on the door, and deny access to persons other than those whom he chooses to admit; he may even maintain an action at law against an intinider. Acquisition is by perpetual grant from the owners of the edifice, or by demise for a limited term; and, possibly, subject to assessments. For unpaid dues or rents, an action at law will lie. Whether, in the event of failure to dispose of it by will, a pew passes to the owner's heirs, or to his executor or administrittor, de- pends upon the question whether,' by the law of the State, pew rights are real or personal property. In Connecticut, Louisiana, and Maine, pews are realty, and descend to the heir-at-law ; in Massachusetts and New Hampshire, — in most of the States, — they are personalty, and, unless disposed of by will, vest in the administrator or the executor.^ PHABMACY. See Druggist. PHOTOGrRAPHER. Any person who makes for sale photographs, ambrotypes, da- guerreotypes, or pictures, by the action of light.4 An artist who takes impressions or like- nesses of things and persons on prepared plates or surfaces.* His implements are not "mechanic's tools," ex- empted from execution.* See Mechanic. Congress may confer upon the author, inventor, de- signer, or proprietor of a photograph, the rights con- ' Webster's Diet. = [Bailey v. Kalamazoo Publishing Co., 40 Mich. 256 (1879), Campbell, C. J. ' See Strong, Relations of Civil Law to Church Polity, &c, 126-32 (1876); Washb. Easem. 515; Craig v. First Presby. Church, 88 Pa. 51 (1878); Jones v. Towne, 58 N. H. 464 (1878), cases; Livingston v. Rector of Trinity Church, 45 N. J. L. 232-37 (1883), cases. 4 Revenue Act, 13 July, 1866, § 9: 14 St. L. 120. ' Story V. Walker, 11 Lea, 617 I PHYSICAL 773 PILLORY ferred by Hev. St., § 4052, so far as the photograph is a representation ot original intellectual conceptions. The object of the requirement in the act ot June 18, 1874 (18 St. L. 78), that notice of a copyright in a photo- graph shall be given by inscribing upon some visible portion of it the word " copyright," the date, and the name of the proprietor, is to give notice of the copy- 1 right to the public. Whether a photograph is a mere mechanical reproduction or an original work of art is a question to be determined by proof of the facts of originality, of intellectual production, and of thought and conception on the part of the author. * See Print. Having control, as business manager, of sheets of a photograph, is not such possession as will render the person liable to the penalty imposed by Rev. St., § 4965, which provides that when one without permission sells a copyrighted photograph, he shall forfeit one dollar for every sheet found in his possession.' Photographs have been admitted as evidence — (1) from necessity, as, to present accurate copies of public records which cannot be withdrawn from the ffles; ' (2) to identify individuals,* and to furnish ocular evidence of injuries;^ (3) to identify and describe premises in dispute;' (4) upon questions of disputed handvrriting, in addition to the wi'iting itself: in which cases enlarged photographs point out and emphasize peculiarities.' See Satisfactory. PHYSICAL. See Disability; Force; Labor, 1; Necessity; Presumption. PHYSICIAIf. In a statute providing for the,organization of medical societies, held not limited to any school of practitioners." The law implies an undertaking that he will exer- cise reasonable care and skill in the treatment of a patient; not that he willeflEect a cure.' 'Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53 (1884), Miller, J. ; s. c. 17 F. R. 591, 696-601 ; 6 id. 176. ' Thornton v. Schreiber, 124 U. S. 612 (1688), Miller, J., reversing 17 F. R. 603 (Philadelphia case); s. c. 26 Cent. Law J. 550 (1888), cases. s Be Stephens, L. R., 9 C. P. 187 (1874); Leathers v. Salvor Wrecking Co., 2 Woods, 682 (1875); Daly v. Ma- guire, 6 Blatch. 137 (1868); Luco v. United States, 23 How. 541 (1859). Roosa V. Boston Loan Co., 132 Mass. 439 (1882). 2 Madden v. Blain, 66 Ga. 49 (1880). ' Landon v. Humphrey, 9 Conn. 209, 215 (1832). « Becket v. Sterrett, 4 Blackt. *o00 (1838). « See Rex v. Beardmore, 2 Burr. »792 (1859); 1 Chitty, Cr. L. 797; 4 Steph. Com. 443, note; 1 McMasters, Hist. Peop. U. S. 109. • Act 28 Feb. 1839: R. S. § 6327. PILOTAGE 77.4 PLACE By 56 Geo. in (1816), abolished in all cases except perjury; and by 7 'Will. TV (1837), abolislied absolutely in general terms without exception.' PILOTAGE. See Commebce. A libel in rem may be maintained for fees allowed for pilotage services tendered in accordance with the provisions of a State statute, but declined by the mas- ter of the vessel." See Conspikaoy; Ship, 2. PIMP. See Peostitute.3 PIN-MONEY. Money allowed by a man to his wife for her personal expenses. Anciently, a tax was laid for providing the queen ■with pins.* Not a gift out and out, but a sum set apart for a specific purpose. The husband may find the wife in apparel instead of paying this apparel-money, as it may be called.' PIOS. See Usus, Pios. PIRACY.6 Robbery and depredation upon the high seas.^ Eobberyand forcible depredation upon the high sea, animo furandi.^ Eobbery or forcible depredation on the high seas, without lawful authority, done animo furandi, and in the spirit and inten- tion of universal hostility.' Pirate. One who roves the sea in an armed vessel, without commission from any sovereign State, on his own authority, and for the purpose of seizing by force, and ap- propriating to himself, without discrimina- tion, every vessel he may meet.!" Piratical. Imports an aggression unau- thorized by the law of nations, hostile in character, wanton and criminal in its com- mission, and utterly without sanction from any public authority or sovereign power, — that the act belongs to the class of offenses which pirates are in the habit of perpetrating, whether the purpose be plunder, hatred, re- venge, or wanton abuse of power. H ' 1 Steph. Hist. Cr. Law Eng. 490. » The Alzena, 14 F. E. 174-76 (1882), cases. : See also Fahnestock v. State, 102 Ind. 156 (1884). * Barring. Stat. 181. » Howard v. Digby, 8 Bligh, 269 (18M). * F. pirate: Gk. peirates', ore who attempts or at- tacks. ' [4 Bl. Com. 71. 8 United States v. Smith, 5 Wheat. 161-62 (1820), Story, J. » 1 Kent, 183; Dole v. New England Mut. Mar. Ins. Co., 2 Cliff. 416 (1864). '" United States v. Baker, 5 Blatch. 12 (1861), Nelson, J. : Davison v. Seal-skins, 2 Paine, 333 (1838?). '■United States v. The Malek Adhel, 2JHow. 232(1844), Story, J.. Hostilities committed under a commission from a party to a recognized war are not included. In that case the superior may be held for the act.' Piracy is the same offense at sea as robbery on land. It is everywhere punished with death; at com- mon law was punished as an offense against the law of nations (part of the common law) — the universal law of society : a pirate being deemed an enemy of his race, hoatis humani.g&neria.^ Congress shall have power " To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." ' " To define " is to enumerate thecrimes which E^ll constitute piracy.* 2. Infringement of a copyright by reprint- ing all or a substantial portion of the pro- duction, word for word; or, by imitating or copying it with colorable alterations. Citing the most important parts of a copy- righted work, with a view not to criticism but to supersede the use of the original work and to substitute the review.^ In determining the question of piracy, quantity, quality and value are regarded. If the selections are made animo furandi, with intent to make use of them for the purpose for which the original author used them, to convey in a different publication the infor- mation he imparted,' or to supplant him in his own territory, a small quantity will suflflce to support the charge. If the pirated portion, being substantial, cannot be separated from the original matter without destroying the publication, the whole book will be en- joined—upon the principle of the doctrine of "confu- sion of goods.''. ^ See Abridge, 1; Compile; Review,3. PISCARY. See Common, 3 : 1)"ishery. PISTOL. See Baggage ; Weapon. PL. See Placitum, 3. PLACE. 1. Any locality limited by boundaries, however large or small, as, a countrj', a State, a county, a town, or a por- tion thereof. The extent of the locality is to be determined by the connection in which the word is used.'' Often denotes » specific place within a city or town at which a person dwells or transacts business; ' The Chapman, 4 Saw. 511 (1864). 8 4 Bl. Com. 71; 5 Wheat. 158, 161-62; 1 Kent, 183; K. S. §5368; 47 Pa. 169, 187. ^ Constitution, Art. I, sec, 8, cl. 10. * United States v. Smith, 5 Wheat. 161-62 (1820); E. S. §§ 5368-82. " Folsom V. Marsh, 2 Story, 106-7 (1841). ' Farmer v. Elstner, 33 F. E. 499 (1888), cases: 37 Alb. Law J. 230, in which the defendant's " Industries of Detroit " was held to infringe (in 11 out of 70 pages of the first chapter) the plaintiff's " History of Detroit and Michigan," &c. ' Law V. Fairfield, 46 Vt. 432 (1874), Eoss, J.; Clapp V. Burlington, 42 id. 582 (1870) ; State v. Hart, 31 N. J. L. 439(1866); i6. 414. PLACE 775 PLACE as, in the expressions, "place of business," "usual place of business," "usual place of abode," etc., found in statutes fixing the venue of transitory ac- tions, referring to ti-ustee process, taxation of part- nership property, and in provisions for serving writs, notices, etc' See Abode; Business; Residence; Vi- cinity. In a revenue act, may mean a locality more limited than the country where goods are bought or manu- factured." In internal revenue acts, as applied to the place where a licensee may carry on business, construed with reference to the business, but not as an equiva- lent for county, town or State.' In a statute forbidding betting in any " house, office, room, or other place," need not be covered with a root; * an umbrella is such place." A canvas tent may be a disorderly house or place.' In a statute forbidding the sale of liquors " in any place " within four hundred feet of a public school- house, held to include a tent, a booth, an excavation in the ground or anything similar thereto.^ Public place. It would be difficult to , define what is a "public place" within the meaning of statutes against gaming, affrays, retailing liquor, indecent exposure of person a,nd drunkenness, for notices of sale, etc. ; but, generally speaking, it means a place where the public may go uninvited. Not, necessarily, a place devoted exclu- sively to the uses of the public, but " public " in fact, as distinguished from private ; visited by many persons ; usually accessible to the neighboring public. * A public highway is not necessarily a public place; it may be abandoned or traverse a forest." A place where the public has a right to go and be; not every place where people maybe congregated.'" For the purpose of setting up notices of sale, a place likely to give information to those interested, and who may probably become bidders. The term is relative; what is a public place for one purpose may not be public for another. " See Public. Compare Alibi; Locus; Situs; Venue. ' Palmer v. Kelleher, 111 Mass. 331-23 (1878), Mor- ton, J. " Cliquot's Champagne, 3 Wall. 148 (1865), SWayne, J. ; Act 3 March, 1863, § 1. = Salt Company v. Wilkinson, 8 Blatch. 33 (1870). * Eastwood V. Miller, L. R., 9 Q. B. 443 (1874); 10 id. 103; L. E., 3 Ex. 137; 13 L. T. 865. 'Bows V. Tenwick, L. B., 9 C. P. 343 (1874). « Killman v. State, 3 Tex. Ap. 323 (1877). ' Commonwealth v. Jones, 142 Mass. 575 (1886). » Parker v. State, 26 Tex. 207 (1862). » Williams v. State, 64 Ind. 655-57 (1878), cases. '» State V. Welch, 88 Ind.'310 (1882): 52 id. 311. " Cummins v. Little, 16 N. J. E. 53 (1863). See, as to affrays, 22 Ala. 15; 35 id. 392; 29 Ind. 806; as to gaming, 12 Ala. 492; 13 id. 602; 17 id. 869; 19 id. 528, 561; 30 i Hatch V. Standard Oil Co., 100 U. S. 134-35 (1879), cases, Clifford, J. ; Ragland v. Wood, 71 Ala. 150 (1881), cases; Janney v. Sleeper, 30 Minn. 474-75 (188 Story, Sales, § 308; Benj. Sales, ■§ 679; 2 Kent, 505. PLAOITUM 776 PLAINTIFF Place of indiotment. In general, all offenses must be inquired into and tried in the county -where the fact is committed. Yet, if larceny is committed in one county, and the goods are carried into another, the offender may be tried in either, for the offense i^ complete in both. But for robbery, burglary, and the like, be can only be indicted "wjiere the fact was actu- ally committed; for though the carrying away and the keeping of the goods is a continuance of the orig- inal taking, and is therefore larceny in the second county, yet it is not robbery or burglary in that Juris- diction.' ' The crime of murder is complete where the felo- nious blow was struck, notwithstanding that the death happen^ within another jurisdiction. ° In the Federal courts, capital offenses are indictable in the jurisdiction where the offense was committed, when that can be done without great inconvenience; offenses committed on the high seas, or elsewhere out of the jurisdiction of a State or district, in the district where the offender is foimd, or into which he is first brought.^ An offense begun in one circuit and com- pleted in another is deemed committed in either and may be tried in either.* Suits for taxes, penalties, and forfeitures may be begun in the district where they accrue or in which the offender or delinquent is found.' Seizures, made upon the high seas, where the property is brought; made within any district, in that district, unless . otherwise provided." See Descrip- tion, 4; Indictment; Venoe. Place of payment. When no place of payment is expressed in a bill or note, the ri^le, in the absence of any agreement or circumstances fixing or indicat- ing a different intention, is that the place of present- ment is the place where the acceptor or maker resides, or at their usual place of business.' See Business; Pbbsent, 2 (1). 3. To negotiate, or contract, for a thing: as, to place a risk, a mortgage, or other loan ; also, to deliver a thing to a person for a pur- pose. A person who " places " his goods with an agent for a specified purpose does not necessarily authorize him to make a warranty.* Parties to a contract for " placing " mortgages may mean selling or realizing upon them." PLACITUM. L. 1. A plea, or plead- ing; a suit. See Plea. >4B1. Com. 305. ' United States v. Guiteau, 13 Eep. 138, 718-21 (1882), cases. « R. S. §§ 729-30, cases. •E. S. §T31. »R. S. §732. «B. S. §734, ' 1 Daniel, Neg. Inst. §§ 90, 635; Cox v. Nat. Bank of New York, 100 U. S. 709-18 (1879), cases; ^tubbs v. Colt, 30 F. E. 417 (1887), cases. Law of place generally, 21 Am. Law Beg. 403-12(1885), cases. 8 Anderson v. Bruner, 112 Mass. 14 (1873). • Bailey v. Joy, 132 Mass. 359 (1882). 3. A subdivision of an abridgment or di- gest. Abbreviated pi. PLAGIARISM. See Pibact, 3. PLAGUE. See Health. PLAIW. Such as may be read and un- derstood by most persons. " Plain type " means large or ordinary sized type, within the meaning of a statute requiring innkeepers to post up copies of the hotel law.' The *' plain statement " required by the New York code is one that may be readily understood by all per- sons acquainted with the language in which it is- written. 2 PLAINT.' A private memorial tendered in open court to the judge, veherein the party injured sets forth his cause of action. < Preserved in complaint and plaintiff. PLAINTIFF. Originally, one who makea plaint, q. v. The party in whose favor the plaint or suit- purports, on the record, to have been insti- tuted.5 One who complains of injury done, in court. ^ Whoever brings a suit, bill, or complaint, is e "party plaintiff," and whoever is bound to appear and defend is the party defendant,' g, v. In common-law proceedings *e speak of the actor (the party bringing suit) as " plaintiff," and in equity proceedings as "complainant," — a distinction with- out a difference. The terms are convertible, al- though, for the pm-pose of distinguishing whether the suit is at law or in equity, the different names are sometimes used. In the equity rules of the Supreme Court, the actor is always called plaintiff.^ Legal plaintifT. He in -whom the legal title or cause of action is vested, Eciuitable plaintiff. He who in equity is entitled to the thing sued for. Nominal plaintiff. One who is named as plaintiff, but yet has no interest in the controversy, having assigned his right to ^mother for whose use the action is main- tained, and who is therefore the use or real plqintiff. Plaintiff in error. The party who sues out a writ of error. Called also the 'plaint- ' Porter v. Gilkey, 57 Mo. 237 (1674). ''Mann v. Morewood, 5 Sandf. 664 (1852). 8 F. pleinte; L. planctus^ lamentation, lament. < 3 Bl. Com. 273. ' Henry v. Bank of Salina, 5 Hill, 538 (1843). «3B1. Com. 25. ' Canaan v. Greenwoods Turnpike Co., 1 Conn. 9 (1813). 8 Stinson v. Hildrup, 8 Biss. 378 (1878), Drummond, J. PLAN 777 PLEA iff above: the plaintiff in the appellate tri- bunal. See Actor; Appellant; Assign, 1; Call; Com- plainant; Libelant; Litigant; Orator; Party; Prosecutor; Relator; Suitor. PLAN. See Plat. PLANrCiTG-MIIiL. See Nuisance. PLANK-ROAD. See Turnpike. PLANTATION. A place planted; all the land forming the parcel or parcels under cultivation as one farm.i PLANTS. See Crop; Emblements; Larceny. PLAQUE. See Copyright. PLASTERING. As commonly under- stood, includes the work of " lathing." 2 PLAT, or PLOT. A subdivision of lands into lots, streets and alleys, marked upon the earth and represented upon paper.' See Dedication, 1; Map. PLAY. See Drama; Game, 3; Ee- VIEW, 3. PLAZA. See Park, 3; Pueblo. PLEA.* 1. - Anciently, a suit or action : as, in the expressions, " summoned to answer B of a plea of trespass; "5 to "hold pleas," " have cognizance of pleas." ^ Commoii pleas. Civil suits between man and man : tried in the courts of common pleas. Pleas of the crown. Suits prose- cuted by the sovereign ; crimes and misde- meanors.^ By "common pleas " is imderstood such pleas or actions as are brought by private persons against pri- vate persons, or by the government where the cause of action is of a civil nature.^ 2. A formal answer, made by a defendant, to a demand or charge. In common-law practice, the defendant's answer to the merits of the declaration, as opposed to a demurrer, q. v. In equity practice, a short statement, in > Stowe V. Davis, 10 Ired. L.. 433 (1849). See also At- torney-General V. State Board of Judges, 38 Cal. 295 (1869). 2 See Higgins v. Lee, 16 111. 495, 508(1855); Walls «. Bailey, 49 N. Y. 464, 467 (1872); Mellen v. Ford, 28 F. R. 639, 642 (1886). 3 McDaniel v. Mace, 47 Iowa, 510 (1877). • F. pie, plai, plait, plaid: L. L. placitum, a decree, sentence, etc. : placere, to please, seem fit. . » Steph. Pl. 38, 39. • 2 Bl. Com. 37. '3 Bl. Com. 40; 4 id. 2, 265. 8 Dallett V. Feltus, 7 Phila. 628 (1870), Thompson, C. J. response to a bill, of facts which, if inserted in the bill, would render it demurrable.' An " answer " is a complete statement of the de- fendant's cause, and may contain responses to inter- rogatories.' The office of a " plea " in a suit in equity is not, like an " answer," to meet all the allegations of the bill, nor like a " demurrer," admitting those allegations, to deny the equit.y of the bill ; but to present some dis- tinct fact, which of itself creates a bar to the suit or to the part to which the plea applies, and thus avoid the necessity of making the discovery asked for, and the expense of going into the evidence at large.^ The plaintiff may set down the plea for argument, or file a replication to it. It he sets it down for argu- ment, he admits the truth of all the facts stated in it, and merely denies their sufficiency in point of law to prevent his recovery. If he flies a general replication to the plea, no fact is in issue but the ti'uth of the matter pleaded. Objections to the equity of the plaintiff ^s claim, as stated in his bill, cannot be taken by plea. A plea, though under oath and negativing a material averment in the bill, is not evidence in the defendant's favor.^ See Answer, 3. Plead. (1) To carry on a suit or plea ; to litigate. (3) To conduct the allegations of the re- spective parties to a cause. (3) To make an allegation of fact in a cause. (4) To make that allegation of fact which follows and opposes the allegation in the declaration.' In the last sense, " plea " and '* to plead " are now generally understood. Plead and pled are sometimes improperly used for pleaded.* " To plead a statute " is to state the facts which bring a case within the statute, without mentioning the statute itself. Compare Recite. Pleading. (1) A plea of any nature. (2) The statement, in a logical and legal- form, of the facts which constitute the cause of action or the ground of defense. ^ The formal mode of alleging on the record that which would be the support or the de- fense of the party on evidence. 5 " The pleadings" are the mutual alterca- tions between the plaintiff and the defend- ant.* These altercations are set down and delivered into the proper office in writing. Formerly, they were put ' [Hunt, Eq., Part I, ch. 3. See Carter v. Hoke, 64, N. C. 351 (1870). = Farley v. Kittson, 120 U. S. 303, 314-16 (1887), cases. Gray, J. • [Burrill's Law Diet.] « Webster's Diet. ' Read V. Brookman, 3 F. R. 159 (1789), Buller, J. • 3 Bl. Com. 293. PLEADING 7.78 PLEADING in by Counsel viva voce, in court, and minuted dcwn by the chief clerks; whence in law-French the pleadings are called " the parol." » The pleadings are the written allegations of what is affirmed on the one side, or denied on the other, disclosing to the court and jury the real matters in dispute.2 In a large sense, all proceedings from the declaration until issue is joined. In the most limited sense, the defendant's answer to the declaration. 3 In criminal practice, may include the indictment, and pleas in abatement or in bar, but not a motion to quash.* (3) The art or science of preparing such statements. (4) In popular parlance, oral advocacy, forensic argumentation. The office of technical pleading is to in- form the court and the parties of the facts in issue : the court, that it may declare the law ; the parties, that they may know what to meet by their proofs.^ The common law requires that the controversy, be- fore it is submitted to the court or jury, should be re- duced to one or more integral propositions of law or fact; hence, it is necessary that the parties should frame the allegations which they respectively make in support of their demand or defense into certain writings called " the pleadings." These should clearly and succinctly state the nature of the wrong com- plained of, the remedy sought, and the defense set up. The end proposed is to bring the matter of litigation ' to one or more points, simple and unambiguous. Common-law pleading came to its perfection in the reign of Edward III. At one time, the excessive accu- racy required, the subtlety of distinctions introduced by astute logicians, the introduction of cumbrous forms, fictions, and contrivances which seemed to perplex the investigation of truth, bad brought the system of special pleading into disrepute. In more modern times it has been so modified, the pleadings in every form of common-law action have been so re- duced to simple, clear, and unambiguous forms, that the merits of a cause are now reached directly and fully." The object of all pleadings is to develop the real issue.' Definite, legal conclusions cannot be arrived at upon hypothetical averments.* I 3 Bl. Com. 393. ^Desnoyer v. Hereux, 1 Minn. 19 (1851). 3 Lovett V. Pell, 23 Wend. 375 (1839). See also 19 Johns. 37; 33 Barb. 219; 51 Pa. 375; 47 Me. 459. 4 Wagner v. State, 43 Ohio St. 541 (1885). Hill V. Mendenhall, 21 Wall. 455 (1874), Waite, C. J. fl McFaul V. Ramsey, 20 How. 524 (1857), Grier, J. ; 1 Black, 315. 7 Thomas v. Mann, 28 Pa. 522 (1857). * Comihonwealth v. Allegheny County, 37 Pa. 285 , Courts are not ei^tablished to determine what the law might be upon possible facts, but to adjudge the rights of parties upon existing facts; and when their jurisdiction is invoked parties wiU be presumed to present in their pleadings the actual, and not suppos- able, facts touching the matter in controversy.^ In their order, pleadings are: the declaration, de- fense, plea, replication, rejoinder, surrejoinder, rebut- ter, and surrebutter,!* qq. v. These must be single, containing one matter; direct and positive, and not argumentative; have convenient certainty of time, place, persons; must answer allega- tions in every material part; and must be so pleaded as to be capable of trial. No more is to be stated tltea is necessary to set out the cause of complaint or ground of defense; and facte, not inferences or mat- ters of law or evidence, are required.^ The substantial rules of pleading are founded in strong sense and in the soundest and closest logic* All pleading is a logical process. The object is to facilitate the administration of justice, by simplifying' the grounds of controversy and ultimately narrowing the contest to a single and direct affirmative and nega- tive — a definite point of law or fact.^ The rules of pleading involve a methodized body of principles which constitute a complete system of legal logic, artificial in its form and structure, but admirably adapted to the ends of simplicity, imiformity, and cer- tainty in the administration of justice. . . All good pleading is in substance a syllogistic process. For example, in an action for a trespass upon land, the declaration may be presented thus: "From him who forcibly enters upon my land I have a right, by law, to recover damages: The defendant has forcibly entered upon my land: Therefore, from him I have a legal right to recover damages." Here the major proposi- tion asserts the legal principle ; the minor proposition alleges the matter of fact to which the principle is to be applied; the conclusion is the legal inference, re- sulting from the law and fact together. The judgment is but an affirmance or negation of that conclusion. The successful denial of any one of the three proposi- tions will defeat recovery. Denial of the major prop- osition tenders an "issue in law;" denial of the minor proposition an "issue in fact." Assuming the major to be correct in principle, and the minor true in fact, the conclusion inevitably follows,— unless the defendant can repel it by alleging some " new matter " which is inconsistent with it, and, therefore, by conse- quence, implies a denial of it. This new matter must be matter of release, duress, or other matter in con- fession or avoidance.* Dilatory pleas tend to delay or put off the suit [or the plaintiff's eventual remedy] ; Sullivan v. Iron Silver Mining Co., 109 U. S. 555 ; Territory v. Hauxhurst, 3 Dak. 311 (1883). 1 Bissell V. Spring Valley Township, 134 U. S. 233 Field, J. ; Gould, PI. ch. 14, p. 1, § 43. » 3 Bl. Com. 393, 313. 3 3 Chitty, Bl. Com. 293. 4 Robinson v. Raley, 1 Bur. *319 (1757), Ld. Mansfield. ^Gould, Plead, p. 10. « Gould, Plead, pp. 4^10. See also 3 Bl. Com. 396. PLEADING 779 PLEADING by questioning the propriety of the remedy, rather thaij by denying the injury. 1 They are to the jurisdiction of the court : alleging that it ought not to hold^plea of the matter ; to the disability of the plaintiff : as being an infant, a feme-covert, that he has a committee, etc. ; or in abatement of the writ, or declaration, for some defect: as, mis- nomer, that the plaintiff is dead, etc. No dilatory plea is admitted unless verified by affi- davit. Fleas to the jurisdiction conclude by praying " judgment, whether the court will have further cog- nizance of the suit; " pleas to the disability, " judg- ment, if the plaintiff ought to be answered; " pleas in abatement, " judgment of the writ or declaration, and that the same may be quashed," or "judgment of the bill " — when the action is by bill. When any of these pleas is allowed the cause is dismissed from the juris- diction, the plaintiff is stayed till his disability is re- moved, or else he must either sue out a new writ or amend his declaration. "When the plea is overruled, the plaintiff has judgment of respondeat ouster — to answer over in some better manner: it is then incum- bent on him to plead.* Pleas to the action dispute the cause of the suit, — confess or deny the merits of the •complaint. Confession is of all or of a part of the complaint {here applying tender, payment into court, and set-off) ; but the more usual is denial of the truth of the com- plaint by pleading the general issue, or by some special bar to recovery, such as a release, a former recovery, the statute of limitations, a justification, an accord, arbitration, estoppel, or perhaps a pai'don.^ Pxire plea. In equity practice, a plea which relies wholly upon a matter dehors the bill; as, a release or a settled account. Anomalous or negative plea. Such plea as consists mainly of a denial of the substan- tial matters set forth in the bill.!' Bad plea; bad pleading. Not. of the form of action with the last preceding plead- ing: as, a plea in contract to a declaration in tort. Not cured by verdict, as are pleas which, although they would be held bad on demurrer as wrong in form, yet still contain enough substance to put in issue the material parts of the declaration.' See Bad, 2\ Cube, 3. Connter-plea. Of an incidental kind, diverging from the main object of the suit ; as, a demurrer to an erroneous demand of oyer.* (Bare.) 1 3 Bl. Com. 301-3; 4 id. 332. » [Story, Eq. PI. §§ 651, 667; Swayze v. Swayze, 37 N. J. E. 186 (1883). ' Garland v. Davis, 4 How. 131, 144 (1846). * See Steph. Plead. 79. Double pleading. Alleging distinct mat- ters, any one of which would be suflacient ; duplicity, q. v. Implead. To sue in due course of law ; as, A impleaded with B. Each defendant may then interpose his own an- swer.* Abbreviated imp. Interplead. To become a party litigant. See Interpleader. Misplead. To plead amiss or wrongly; as, to misdeclare by misjoining parties. ^ Plead issuably. To plead so as to raise a material issue, of law or of fact. See Issue, 3. Plead over. 1. To pass over, omit to notice, a material allegation or defect in the declaration. 3. To plead again ; as, the gen- eral issue, after a demurrer or special plea has been overruled. Formal defects in a pleading are waived by plead- ing over after demiurer overruled.'' Plead to the merits. See Merits. Special plea, pleading, pleader. When the allegations are not of the ordinary form, but of a complex or special character, they are called "special pleadings;" and when the defendant interposes a plea of this de- scription, that is, a " special plea,'' he "pleads specially," instead of pleading the general issue. Whence "special pleading" for the science, and "special pleader" for a person learned, or employed, in draughting such pleadings. Causes were frequent in which the plaintiff could not aver his cause of action, or the defendant embody his defense, in the then settled mode, but a count or plea adapted to the peculiar facts was necessary. These were called special counts and "special pleas;" draughting them was " special pleadmgs; " and cham- ber counsel who made a business of draughting them were " special pleaders." * Special plea. Also, the allegation of special or new matter to avoid the effect of an allegation by the opposite party. See Abatement, 4; Action, 8; Allesation; Amend- ment, 1; Assignment, 1, New; Bar, 3; Certainty, 3; Color, 2; Confession, 1; Continuance, 1; Count, 4; Disclaimer, 4; Declaration, 2; Demurrer; Depart- ure, 3; Description, 3; Form, Of action; Indictment; Inducement, 1; Issue, 3; Manner and Form; Matter, J See People v. Clarke, 9 N. Y. 308 (1853); 47 Wis. 2-39. 2 See Lovett v. Pell, 28 Wend. 375 (1839) ; 2 Tidd, Prao. 954. » Reynolds v. Lincoln, 71 Cal. 190 (1886). < See Steph. Plead. »29, *162; 1 Chitty, PL, 16 Am. ed., 491.» « PLEDGE 780 PTLURIES New, Special; MtjLTrpARiousNEss; Negative; Oyer; Paper, 5; Practice; Procedure; Profeht; Protes- tation; Eepugnant; Said; State, 1; Surplus ase; Traverse; Videlicet. PLEDGE.! A bailment of personal prop- erty as a security for some debt or engage- ment.2 A deposit of personal property as security, with an implied power of sale upon default.' The thing itself thus deposited or bailed. Pledgee. He who receives a pledge; a pawnee. Pledgor;* pledger. He who delivers a pledge ; a pawnor. A " mortgage " of a chattel is a conveyance of the . legal title upon condition, and becomes absolute at law if not redeemed by a given time. A " pledge " is a deposit of goods, redeemable on certain terms, with or without a fixed period for redemption. In a pledge the general property does not pass, as in the case of a mortgage, and the pawnee has only a special property in the thing. He must choose between two reiriedies: a bill in chancery for a judicial sale under a decree of foreclosure, or a sale without iudicial process, on the refusal of the debtor to redeem^ after reasonable no- tice to do so.^ Delivery of the thing is essential to the completion of the contract. When possession is retained by the pledgor the contract is an hypothecation,* q. v. The pledgee of bills receivable may hand them back to the debtor for collection, or to be replaced by others ; and collections made thereon are for the pledgee.' When the pledgee parts with the pledge to a bona fide purchaser (without notice of any right in the pledgor), the pledgor cannot recover against such pur- cl/aser without first tendering him the amount due.^ The possession which is essential need not be actual: it may be constructive; as, where the key of a ware- house containing the property is delivered, or a bill of lading is assigned. In such case, the act done will be considered as a token, standing for an actual delivery. It puts the property under the control of the creditor.* 1 M. E. plegge, a hostage, security: F. plege, a surety. » Story, BaUm. § 286; 37 Cal. 25; 59 id. lOT; 41 N. Y. 241; 2 Kent, 577. s Jones, Pledges,-|_l. See also 78 lU. 452; 83 id. 326. < * Pronounced as if spelled pledge-or, i. e., pledj-or. Pledgcor is rarely found in standard law publications. Compare Mortgagor. 'Evans v. Darlington, 5 Blaokf. *322(1840); Wright ■». Ross, 36 Cal. 428, 441 (1868); 8 Johns. 98: 2 Barb. 543; 43 id. 610; 38 Md. 251 ; 2 Ves. 378. •See 2 Bl. Com. 159; Jones, Pledges, § 23; Story, Bailm. §§ 286, 308; Brewster v. Hartley, 37 Cal. 25 (1869); Mitchell v. Roberts, 17 E. E. 778, 782U883), cases. 'Clark V. Iselin, 21 Wall. 368-69 (1874): White v. Piatt, 5 Denio, 271 (1848); Casey v. Cavaroo, 96 U. S. 476-80 (1877), eases. . ' Talty V. Freedman's Savings, &c. Co., 93 U. S. 324- 26 (1876), cases. » Casey v. Cavaroc, 96 U. S. 477 (1877), Bradley, J.; Where there is no express agreement, the intention- of the parties, as to the mode by which the security shall be converted into money, must be implied from the nature of the property pledged and the circum- stances of the transaction.* See Bailment; Condition; Factor; Foreclosure j Mortgage; Pawn; Eeueem; Replevin; Security, 1, Compare PiGNUs; Vadium. PLEDGES. See Doe. PLENA. See Peobatio. PLENE. See Administeaee ; CoMpu- TAEE. PLENIPOTEIfTIARY. See Minis- ter, 3. PLIGHT. In old English law, the habit or quality of a thing, whether property, real or personal, or an estate or right therein. 2 To deliver a thing in " the same plight and con- dition " is-a common expression.^ PLOT. See Plat. PLUNDER.* The most common mean- ing is, to take property from persons or places by open force, as in the case of pirates or banditti. In another common meaning (in some degree figurative), expresses the idea of taking property from a person or place without just right, but not stating the nature or quality of the wrong done.' Embraces robbery and fraudulent taking, or em- bezzlement. Thus, a vessel may be said to be plun- dered, not only if openly attacked and robbed, but if property be taken from her furtively, in the night time, or after she has been abandoned by the crew." PLURAL. See Number. Plurality. See Bigamy; Majority. PLURIES. L. Many times; often; for- merly. The emphatic word in the Latin form of a writ issued after a second writ of a like kind had been returned unexecuted. If the sheriff cannot find the defendant upon the first writ of capias, and returns a non est inventus^ there issues an alias writ, and after that a pluries. writ to the same effect as the former, except that after the words " we command you as we have — " *' often " Bank of British Columbia v. Marshall, 11 F. E. 19- (1882). * Merchants' Nat. Bank v. Thompson, 133 Mass. 48&- 87 (1882), cases; Story, Bailm. | 308. 2 Coke, Litt. 221. s See 95 U. S. 764; 101 id. 406, 738; 2 Bl. Com. 485. City of New York v. Miln, 11 Pet. 'ISg (1837), Bar- bour, .1. s [Commonwealth v. Alger, 7 Cush. 85 (1851), Shaw, C. J. ; Commonwealth v. Bearse, 132 Mass. 54U (1888). 4 Webber v. Virginia, 103 U. S. 348 (1880), Field, J. Escanaba & Lake Michigan Transportation Co. v. City of Chicago, 107 U. S. 683 (1882), Field, J. •Barbier v. Connolly, 113 U. S. 31 (1885), Field, J.; Soon Hing v. Crowley, ib. 703 (1885). ' Munn V. Illinois, 94 U. S. 145 (1876), Field, J. ; ib. 113. POLICE 783 POLICE regulation may encroach, upon the free exercise of the power vested in Congress to regulate commerce.^ The power certainly extends to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals. The legislature cannot divest itself of the power to provide for these objects. They belong to that class of objects which demand the application of the maxim, solus populi suprema lexj and they are to be attained and provided for by such appropriate means as the legislative discretion may devise. This discre- tion can no more be bargained away than the power itself." The government may, by general regulations, inter- dict such uses of property as would create nuisances and become dangerous to the lives, health, peace, or comfort of the citizens. Unwholesome trades, slaugh- ter-houses, operations offensive to the senses, the de- posit of powder, the application of steam-power to propel cars, building with combustible materials, and the burial of the dead, may all be interdicted on the general, and rational principle that every person ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community.^ A law passed in the legitimate exercise of this power is not obnoxious because It does not provide compen- sation for inconvenience to the individual. He is re- warded by the common benefits secured. * See Take, 8. Lotteries, for example, are subjects for the exercise pf the power — which the legislature cannot grant away. It is easier to determine whether a particular case comes within the general scope of the power, than to give an abstract definition of the power itself which will be in all respects accurate. ^ The power was not surrendered to the United States, but remains complete, unqualified, and exclusive in the States. If one were to attempt to define a subject so diversified and multifarious, we would say, that every law came within this description which con- cerned the welfare of the whole people of a State,, or of any individual within it; whether it related to their rights or their duties; whether it respected them as men or as citizens of the State, and whether in their public or private relations ; whether it related to the rights of persons, or of properly, of the whole people of a State, or of any individual within it; and whose operation was within the territorial limits of the State, and upon the persons and things within its juris- diction.^ Within its category comes every law for the re- ' Western Union Tel. Co. v. Pendleton, 122 U. S. 359 (1887). ' = Beer Company v. Massachusetts, 97 U. S. 33 (187T), Bradley, J.; Fertilizing Company v. Hyde Park, ih. 699 (1877) ; Justice r. Commonwealth, 81 Va. 213 (1885), cases; State v. Topp, 97 N. C. 478-79 (1887). 3 [2 Kent, 340; Mimn -v. Illinois, 94 U. S. 146 (1876), 4 Bancroft v. Cambridge, 126 Mass. 441 (1879), cases, 6 Stone V. Mississippi, 101 U. S. 818-19 (1879), cases, Waite, C. J, 8 [City of New York v. Miln, 11 Pet. *139 (1837), Bar bour, J. straint and punishment of crime, and for the preserva^- tion of the public peace, health, and morals. ' Although a State is botmd to receive and to permit the sale, by the impoiler, of any article of merchan- dise which Congress authorizes to be imported, it is not bound to furnish a market for it, nor to abstain from the passage of any law which it may deem nec- essary or advisable to guard the health or morals of its citizens, although such law may discourage im- portation, diminish the profits of the importer, or lessen the revenue of the general government.^ The States have power to prevent the introduction into them of articles of trade which, on account of their existing condition, would bring in and spread dis- ease and death. Such articles are not merchantable ; they are not legitimate subjects of trade and com- merce. They may be rightly outlawed, as intrinsic- ally and directly the immediate sources and causes of destruction to health and life.^ If the right of the States to pass statutes to protect themselves in regard to the criminal, the pauper, and the diseased foreigner, exists at all, it is liqaited to such laws as are absolutely necessary, for that pur- pose, — else it invades the power in Congress to regu- late commerce.* In their leading features, the power of " eminent domain " and the " police power " are plainly differ- ent, the latter reaching even to the destruction of property, as in tearing down a house to prevent the spread of a conflagration, or to removal at the expense of the owner, as in the case of a nuisance tending .to breed disease. In the first instance, the community proceeds on the groimd of overwhelming calamity; in the second, because of the fault of the owner of the thing; and in either case compensation is not a condi- tion of the exercise of the power. The same general principles attend its exercise in other directions, aud- it is generally based upon disaster, fault, or inevitable necessity. On the other hand, the power of eminent domain is conditioned generally upon compensation to the owner, and for the most part is founded, not in calamity or fault, but in public utility. These distinc- tions clearly mark the cases distant from the border line between the two powers, but in or near to it they begin to fade into each other, and it is difficult to say when compensation becomes a duty and when not. ° See Domain, Eminent. See also Commerce; Health; Inspection, 1; Levee; Licekse„3; Honopoly; Oleomargarine; Pro- hibition, 2. 1 License Cases, 5 How. 631 (1847), Grier, J. aj&iU 577, Taney, C.J. "Bowman v. Chicago & Northwestern R. Co., 125 U.S. 489 (1888), Matthews, J.; Train v. Boston Disin- fecting Co., 144 Mass. 520, 530-31 (1887). * Chy Lung v. Freeman, 92 U. S. 275 (1875), Miller, J. 6 Philadelphia v. Scott, 81 Pa. 85 (1876), Agnew, C. J. ; Commonwealth V. Alger, 7 Cush. 85 (1851); Cotnmon- wealth u. Bearse, 132 Mass. 546 (1883); Bass v. State, 34 La. An. 496 (1882); HoUingswdrth v. Parish of Tensas, 17 F. R. 114 (1883); Davenport v, Richmond City, 81 Va. 639 (1886). See generally Slaughter-House Cases, 16 Wall. 36, 57 (1872): views of minority (p. 83) explained by Field, J., in Bartemeyeru.Iowa, 18 id. 138-41(1873); POLICY 783 POLITIC 3. The body of oflcers charged with the duty of enforcing those laws of a community (in particular of a municipality) intended to preserve and promote the public peace, mor- als, health, security, and happiness.* Police court. An inferior court exercis- ing a limited jurisdiction over offenses of a criminal nature ; and, perhaps, also, a limited civil jurisdiction. See Peace, 1, Justice; Summary. Police justice or magistrate. A mag- istrate charged exclusively with the duties incident to the common-law office of a con- servator or justice of the peace.^ The prefix " police " may serve merely to distin- guish them from justices having also civil jurisdiction.^ Police officer. May designate one of a class of persons who are not constables.' See Riot. POLICY. 1. Polity; police, q. v. The settled method by which the govern- ment and affairs of a nation are, or may be, administered ; a system of public or official administration, as designed to promote the external or internal prosperity of a state.< Public policy. "What is the " public policy " of a State, and what is contrary to it, if inquired into beyond what its constitution, laws, and judicial decisions make known, will be found to be a matter of great vague- ness and uncertainty, and to involve discus- sions which scarcely come within the range of judicial duty and functions, and upon which men may and will differ.^ What is termed the " policy of the gov- ernment," with reference to any particular legislation, is generally a very uhcertain thing, upon which all sorts of opinions may be formed. It is a ground much too unstable upon which to rest the interpretation of a statute.^ The Federal courts can know nothing of " public policy " except from the Constitution and the laws, 6 South. Law E. 59-79 (1880), cases; 3 Kan. Law J. 386; 4 id. 36 (1886) — Chic. Leg. News; 85 Cent. Mag. 179; 6 Saw. 605; 70 HI. 194; 89 Minn; 451; 18 Mo. Ap. 219-22; U N. J. L. 92. ' See 1 Steph. Hist. Cr. Law Eng. 194; 19 Am. Law Eev. 547-70 (1885), cases. 2 Wenzleri'. People, 58 N. Y. 530 (1874), Allen, J. " Oomtaionwealth v. Smith, 111 Mass. 408 (1873). • Webster's Diet. » Vidal V. Girard's Executors, 2 How. 197-98 (1844), Story, J.; Mageeii. CNeUl, 19 S. C. 185 (1888). • Hadden v. The Controller, 5 WaU. Ill (1866), Field, J. and the course of administration and decision. Consid- erations of policy or expediency must, in general, be addressed to the legislature. Cases in which arguments drawn from public policy have influence are cases in which the course of legislation, and administration does not leave any doubt upon the question what the public policy is, and in which what would otherwise be obscure or of doubtful interpretation may be cleared and resolved by reference to what is already received and established.^ Anything more indistinct, undefined, and incapable of certainty or uniformity than "public policy" in the law determining the responsibility of common car- riers, and restricting its limitation by special contract, can hardly be imagined. Of late years the principle has been invoked with increasing frequency; and, sometimes at least, seems to be made use of as au- thority for deciding in whatever way the court thinks would, on the whole, be most useful.' Void, as " against public policy," are all agree- ments to control the business operations of the gov- ernment, the regular administration of justice, the appointments of public officers, or the ordinary course of legislation. The law looks at the general tendency of such agreements.' See further Legal, Illegality. The phrase "policy of law," in a statute providing that " no interest or policy of law shall exclude a party or person from being a witness," etc., does not include the " public policy " which prevents a hus- band or wife from proving non-access.' 2. A warrant for money in public funds.s The ticket or writing which evidences a lottery contract. See Lottery. 3. A contract of insurance or assurance, as expressed in writing. See, at length. Insur- ance. POLITIC* Referring to public govern- ment: as, in "body politic;" also, concern- ing a public corporation, g. v. See also Body, 2. Political. Pertaining to public policy or politics ; relating to state in distinction from municipal afEairs. Pertaining to policy or the administration of government.' Political' assessment. See Service, 3, Civil. Political corporation. See Corporation. Political law. Law treating of the science of governmeat ; the jurisprudence of govern- ment. > License Tax Cases, 5 Wall. 469 (1866), Chase, C. J.; Soon Hing v. Crowley, 113 U. S. 710 (1885), Field, J. » 8 Pars. Contr, 249. » Providence Tool Co. v. Norris, 2 Wall. 55-^6 (1864). * Tioga County v. South Creek Township, 75 Pa. 437 (1874). 'F. police: L. L. politicum: Gk. poly'ptychon, a writing in many folds or leaves; a register. » Gk. ppliticos', belonging to the citizen or state. ' People V. Morgan, 90 111. 563 (1878): Bouvier. POLL 784 POLYGAMY Political liberty. See Liberty, 1. Political offense. See Exteadition. Political office. May refer to an office not immediately connected with the administra- tion of justice, or with the execution of the mandates of a superior, as, of the President or the head of a department. ' See Office, 1. Political rights. Such rights as may be exercised in the formation and administra- tion of the government.^ Opposed to civil rights. See Right, 3 (a). Politics. The public polity or policy of a state or nation. In its original meaning, comprehends everything that concerns the government of the country. 3 The President cannot be restrained by injunction from carrying into efiEeot an act of Congress alleged to be 'unconstitutional, * See Govehnmekt; Libebtt, 1, Of the press; Policy, Public. POLL.5 1, n. A head ; a person. Polls. Individual persons ; also, the place ■where electors are counted, and the votes by which they are counted. Whence polling place. Challenge to the polls. A challenge to single persons as jurors.^ See Challenge, 3. Deed-poll. A deed made by one party only, the edges of the instrument being " polled " or shaven even.' See further Deed, 2. Poll-tax. A tax upon individual per- sons. See Tax, 2. 3, V. To enter the names of persons on a list or in a registry, as, for purposes of tax- ation, or voting. Poll a jury. To call the names of the per- sons who compose a jury and require each man to declare his verdict before it is re- corded. In most of the States it is the absolute right of an accused person to poll the jury. The right did not ex- ist at common law; it seems to have grown up in ■practice.^ • 1 Twenty Per Cent. Cases, 13 Wall. 576 (1871), Clif- ford, J. 2 People u. Morgan, 90 111. 563 (1878). s Chesterfield v. Janssen, 2 Ves. Sr. *156 (1750), Hard- wicke, Ld. Ch. * Mississippi v. Johnson, 4 Wall. 475 (186G). ^ O. Dut. polle, a head or pate. ' See 3 Bl. Com. 361 ; 4 id. 352. ' See 2 Bl. Com. 296; 2 Hill, 650. •* Doyle u United States, 11 Biss. 106 (1881); 60 Md. The rulings differ as to-Mie right of a party to de- mand a poll of the jury. In some States, in both civil and criminal cases, the right may not be denied; in others, the matter is left to the discretion of the trial judge.! POLYANDRY. See note 3, infra. POLYGAMY.2 The act of formally en- tering into marriage with a third person, by one already sustaining this relation with a second person. More frequently termed 6igr- amy,'^ q. v. Whence anti-polygamy, polyg- amist, polygamous. The anti-polygamy act of March 3, 1887 (24 St. L. 636), amending the act of March 32, 1882 (22 St. L. 30), which in turn amended Rev. Stat. § 5352, provides as follows:^ Sec. 1. That in any proceeding or examination be- fore a grand jury, a judge, justice, or a United States commissioner, or a court, in any prosecution for big- amy, polygamy, or unlawful cohabitation, under any statute of the United States, the lawful husband or wife of the person accused shall be a competent wit- ness, and may be called, but shall riot be compelled to testify in such proceeding, examination, or prosecu- tion without the consent of the husband or wife, as the case may be; and such witness shall not be permitted to testify as to any statement or communication made by either husband or wife to each other, during the existence of the Inarriage relation, deemed confiden- tial at common law. Sec. 2. That in any prosecution for bigamy, polyg- amy, or unlawful cohabitation, under any statute of the United States, whether before a United States commissioner, justice, judge, a grand jury, or any court, an attachment for any witness may be issued by the court, judge, or commissioner, without a pre- vious subpoena, compelling the immediate attendance of such witness, when it shall appear by oath or affirmation, to the commissioner, justice, judge, or court, as the case may be, that there is reasonable ground to believe that such witness will unlawfully fail to obey a subpoena issued and served in the usual com-se in .such cases; and in such case the usual wit- ness-fee shall be paid to such witnesses so attached: Provided, That the person so attached may at siny time secure his or her discharge from custody by exe- cuting a recognizance with sufficient surety, con- ditioned for the appearance of such person at the proper time, as a witness in the cause or proceeding wherein the attachment may be issued. 402; 10 F. E. 274, cases; South. Law J. & E., Dec. 1879: 1 Crim. Law Mag. 170-77, cases. 1 Hindrey v. Williams, 9 Col. 376-77(1886), cases. ^ Gk. polygami'a, marrying many wives :^o^i/'-many ; gam'os, marriage. Polyandry: polys', many; ane7; andros', man, male, husband. Monandry: monos, one. » 1 Bish. Mar. & Div. § 296. See 4 Bl. Com. 164; 4 Steph. Com. 278, note; E. S. § 6353. * The act was received by the President, February 19, 1887, not having been returned by him to the House in which it originated within the time .prescribed by the Constitution, it became a law without his approval. POLYGAMY 785 POLYGAMY Seo. 3. That whoever commits adultery shall be punished by imprisonment in the penitentiary not ex- ceeding three years ; and when the act is committed be- tween a married woman and a man who is unmarried, both parties to such act shall be deemed guilty of adultery ; and when such act is committed between a married man and a woman who is unmarried, the man shall be deemed guilty of adultery. Sec. 4. Thatif any person related to another person within and not including the fourth degree of con- sanguinity computed accoi-ding to the niles of the civil law, shall marry or cohabit with, or have sexual inter- course with such other so related person, knowing her or him to be within said degree of relationship, the person so offending shall be deemed guilty of incest, and, on conviction thereof, shall be punished by im- prisonment in the penitentiary not less than three years and not more than fifteen years. Sec. 5. That if an unmarried man or woman commit fornication, each of them shall be punished by im- prisonment not exceeding six months, or by fine not exceeding 6ne hundred dollars. Sec. 6. That all laws of the legislative assembly of the Territory of Utah which provide that prosecutions for adultery can only be commenced on the complaint of the husband or wife are hereby disapproved and annulled; and all prosecutions for adultery may here- after be instituted in the same way that prosecutions for other crimes are. Sec. 7. That commissioners appointed by the su- preme court and district courts in the Territory shall possess and may exercise all the powers and juris- diction that are or may be possessed or exercised by justices of the peace in said Territory under the laws thereof, and the same powers conferred by law on commissioners appointed by circuit courts of the United States. Sec. 8. That the marshal of said Territory, and his deputies, shall possess and may exercise all the powers in executing the laws of the United States or of said Territory, possessed and exercised by sheriffs, con- stables, and their deputies as peace officei-s; and each of them shall cause all offenders against the law, in his view, to enter into recognizance to keep the peace and to appear at the next term of the court having jurisdiction of the case, and to commit to jail in case of failure to give such recognizance. They shall quell and suppress assaults and batteries, riots, routs, af- frays, and insurrections. Sec. 9. That every ceremony of marriage, or in the nature of a marriage ceremony, of any kind, in any of the Territories, whether either or both or more of the parties to such ceremony be lawfully competent to be the subjects of such marriage or ceremony or not, shall be certified by a certificate stating the fact and nature of such ceremony, the full names of each of the parties concerned, and the full name of every ofBcer, priest, and person, by whatever style or desig- nation called or known, in any way taking part in the performance of such ceremony, which certificate shall be drawn up and signed by the parties to such cere- mony and by every officer, priest, and person taking part in the performance of such ceremony, and shall be by the ofdcer, priest, or other person solemnizing such marriage or ceremony filed in the office of the (50) probate court, or, if there be none, in the office of court having probate powers in the county or district in which such ceremony shalbtake place, for record, and shall be immediately recorded, and be at all times sub- ject to inspection as other public records. Such cer- tificate, or the record thereof, or a duly certified copy of such record, shall be prima fade evidence of the facts required by this act to be stated therein, in any proceeding, civil or criminal, in which the matter shall be drawn in question. Any person who shall willfully violate any of the provisions of this section shall be deemed guilty of a misdemeanor, and shall, on con- viction thereof, be punished by a fine of not more than one thousand dollars, or by imprisonment not longer than two yeai'S, or by both said punishments, in the discretion of the court. Sec. 10. That nothing in this act shall be held to pre- vent the proof of marriages, whether lawful or un- lawful, by any evidence now legally admissible for that purpose. Sec. 11. That the laws enacted by the legislative assembly of Uteih which provide for or recognize the capacity of illegitimate children to inherit or to be en- titled to any distributive share in the estate of the father of any such illegitimate child are hereby dis- approved and annulled; and no illegitimate child shall hereafter be entitled to inherit from his or her father or to receive any distributive shai-e in the estate of his or her father: Provided, That this section shall not apply to any illegitimate child born within twelve months after the passage of this act, nor to any child made legitimate by the seventh section of the act to amend section 5352 of the Revised Statutes, in refer- ence to bigamy, approved March 22, 1882. Sec. 12. That the laws enacted by the legislative as- sembly confen-ing jurisdiction upon probate courts, or the judges thereof, or any of them, in said Territory, other than in respect of the estates of deceased persons, and in respect of the guardianship of the persons and ' property of infants, and in respect of the persons and property of persons not of sound mind, are hereby disapproved and annulled; and no probate court or judge of probate shall exercise any jurisdiction other than in respect of the matters aforesaid, except as a member of a county court; and every such jurisdic- tion so by force of this act withdrawn from the said probate courts or judges shall be had and exer- cised by the district courts of said Territory respect- ivel.v. Sec. 13. That it shall be the duty of the attorney- general of the United States to institute and prosecute proceedings to forfeit and escheat to the United States the property of corporations obtained or held in viola- tion of section three of the act approved July 1, 1862, to punish and prevent polygamy in the Territories of the United States and other places, and disapproving and annulling certain acts of the legislative assembly of Utah, or in violation of section 1890 of the Revised Statutes; and all such property so forfeited and es- cheated shall be disposed of by the secretary of the interior, and the proceeds thereof applied to the use and benefit of the common schools in the Territory in which such property may be: Provided, That no build- ing, or the grounds appm-tenant tliereto, which is held and occupied exclusively for purposes of the worship POLYGAMY 786 POLYGAMY of God, or parsonage connected therewith, or burial ground shall he forfeited. Sec. 14. That in any proceeding f(w the enforce- ment of the provisions of law against corporations or associations acquiring or holding property in any Ter- ritory in excess of the amount limited by law, the court before which such proceeding may be instituted shall have power in a summary way to compel the production of all books, records, pkpers, and docu- ments of or belonging to any trustee or person holding or controlling or managing property in which such corporation may have any right, title, or interest whatever. Sec. 15. That all laws of the legislative assembly of Utah, or of the so-called government of the State of Deseret, creating, organizing, amending, or continuing the corporation or aesojclation called the Perpetual Emigrating Fund Company are hereby disapproved and annulled; and the said corporation, in so far as It may now have, or pretend to have, any legal existence, is hereby dissolved ; and it shall not be lawful for the legislative assembly to create, organize, or in any manner recognize any such corpoi'ation or association, or to pass any law for the purpose of or operating to accomplish the bringing of .persons into the said Ter- ritory for any purpose whatsoever. Sec. 16. That it shall be the duty of the attorney- general of the United States to cause such proceedings to be taken in the supreme court of Utah as shall be proper to carry into effect the provisions of the pre- ceding section, and pay the debts and to dispose of the property and assets of said corporation according to law. Said property and assets, in excess of the debts and the amount of any lawful claims established by the court against the same, shall escheat to the United States, and shall be taken, invested, and disposed Of by the secretary of the interior, under the direction of the President, for the benefit of common schools in 'Said Territory. Sec. 17. That the acts of the legislative assembly incorporating, continuing, or providing for the corpo- "ration known as the Church of Jesus Christ of Latter- Day Saints, and the ordinance of the so-called general • assembly of the State of Deseret incorporating the Church of Jesus Christ of Latter-Day Saints, so far as ■the same may now have legal force and validity, are ■hereby disapproved and annulled, and the said corpo- -ration,.in.so far as it may now have, or pretend to have, any legal existence, is hereby dissolved. That •it shall be the duty of the attorney-general of the United/ States to cause such proceedings to be taken tin the supreme court of Utah as shall be proper to ex- ecute the foregoing provisions of this section and to wind upthe affairs of said corporation conformably to -law; and in such proceedings the court sha,ll have power, and it shall be its duty, to make such decree or decrdeb as shall beproper to effectuate the transfer of -the titletto real property now held and used by said cor- -poration for places of worship, and parsonages con- -nected ^therewith, and burial grounds, and of the de- scription mentioned in the proviso to section thirteen of this act and in section twenty-six of this act, to the respective trustees mentioned in section twenty-six of this act; and for the purposes of this section said ^ourt shall have all the powers of a court of equity. Sec. 18. (a) A widow shall be endowed of third part of all rhe lands whereof her husband was seized of an estate of inheritance at any time during the marriage unless she shall have lawfully released her right thereto. {b) The widow of any alien who at the time of his death shall be entitled by law to hold any real estate, if she be an inhabitant of the Territory at the time of such death, shall be entitled to dower of such estate in the same manner as if such alien had been a native citizen. (c) If a husband seized of an estate of inheritance in lands exchanges them for other lands, his widow shall not have dower of both, but shall make her elec- tion to be endowed of the lands given or of those taken in exchange; and if such election be not evinced by the commencement of proceedings to recover her dower of the lands given in exchange within one year after the death of her husband, she shall be deemed to have elected to take her dower of the lands received in exchange. (d) When a person seized of an estate of inherit- ance in lands shall have executed a mortgage, or other conveyance in the nature of mortgage, of such estate, before marriage, his widow shall nevertheless be en- titled to dower out of the lands mortgaged or so con- veyed, as against every person except the mortgagee or grantee in such conveyance and those claiming under him. (e) Where a husband shall purchase lands during coverture, and shall at the same time execute a mort- gage, or other conveyance in the nature of mortgage, of his estate in such lands to secure the payment of the purchase money, his widow shall not be entitled to dower out of such lands, as against the mortgagee or grantee in such conveyance or those claiming under him. althoxigh she shall not have united in such mort- gage ; but she shall be entitled to her dower in such lands as against all other persons. (f) Where in such case the mortgagee, or such grantee or those claiming under him, shall, after the death of the husband of such widow, cause the land mortgaged or so conveyed to be* sold, either under a power of sale contained In the mortgage or such con- veyance or by virtue of the decree of a court if any surplus shall remain after payment of the moneys due on such mortgage or such conveyance, and tiie costs and charges of the sale, such widow shall never- theless be entitled to the interest or income of the one- third part of such surplus for her life, as her dower. (g) A widow shall not be endowed of lands con- veyed to her husband by way of mortgage unless he acquire an absolute estate therein during the marriage period. (h) In case of divorce dissolving the marriage con- tract for the misconduct of the wife, she shall not be endowed. Sec. 19. That hereafter the judge of probate in each county within the Territory of Utah provided for by the existing laws thereof shall be appointed by the President of the United States, by and with the advice and consent of the Senate ; and so much of the laws of said Territory as provide for the election of such judge by the legislative assembly are hereby disapproved and annulled. POLYGAMY 787 POLYGAMY Sec. 80. That it shall not be lawful for any female to vote at any election hereafter held in the Territory for any public purpose whatever, and nq such vote shall be received or counted or given effect in any manner whatever; and any and every act of the legislative assembly providing for or allowing the registration or voting by females is hereby annulled. Sec. 21. That all laws of the legislative assembly which provide for numbering or identifying the votes of the electors at any election are hereby disapproved and annulled; but the foregoing provision shall not preclude the lawful registration of voters, or any other provisions for securing fair elections which do not involve the disclosure of the candidates for whom any particular elector shall have voted. Sec. 23. That the existing election districts and ap- portionments of representation concerning the mem- bers of the legislative assembly are hereby abolished; and it shall be the duty of the governor. Territorial secretary, and the boai-d of commissioners mentioned in section nine of the act of Congress approved March 22, 1882, to amend section 5352 of the Revised Statutes in reference to bigamy in said Territory, forthwith to redistrict said Territory, and apportion representation in the same in such manner as to provide, as nearly as may be, for an equal representation of the people (excepting Indians not taxed), being citizens of the United States, according to numbers, in said legislative assembly, and to the numberof members of the coun- cil and house of representatives, respectively, as now established by law; and a record of the estalriishment of such new districts and the apportionment of repre- sentation thereto shall be made in the office of the secretary of said Territory, and such establishment and representation shall continue until Congress shall otheiTvise provide; and no persons other than citizens of the United States otherwise qualified shall be enti- tled to vote at any election in said Territory. Sec. 23. That the provisions of section nine of said act approved March 22, 188i?, in regard to registration and election ofiflcers, and the registration of voters, and the conduct of elections, and the powers and duties of the board therein mentioned, shall continue and remain operative until the provisions and laws therein referred to to be made and enacted by the legis- lative assembly of said Territory shall have been made and enacted and have been approved by Congress. Sec. 24. Thafevery male person twenty-one years of age resident in the Territory shall, as a condition precedent to his right to register or vote at any elec- tion, take and subscribe an oath or affirmation, before the registration ofBcer of his voting precinct, that he is over twenty-one years of age, and has resided in the Territory for six months then last passed and in the precinct for one month immediately preceding the date thereof, and that he is a native-born (or natural- ized, as the case may be) citizen of the United States, and further state in such oath or affirmation his full name, with his age, place of business, his status, whether single or married, and, if married, the name of his lawful wife, and that he will support the Consti- tution of the United States and will faithfully obey the laws thereof, and especially will obey the act of Con- gress approved March 22, 1882, to amend section 5352 of the Revised Statutes in reference to bigamy, and will also obey this act in respect of the cringes in said act defined and forbidden, and that he will not, di- rectly or indirectly, aid or abet, counsel or advise, any other person to commit any of said crimes. Such registration officer is authorized to administer said oath or affirmation ; and all such oaths or affirmations shall be by him delivered to the clerk of the probate court of the proper county, and shall be deemed pub- lic records therein. But if any election shall occur in said Territory before the next revision of the regis- tration lists as required by law, the said oath or af- firmation shall be administered by the presiding judge of the election precinct on or before the day of elec- tion. As a condition precedent to the right to hold office in or under said Territory, the officer, before en- tering on the duties of his office, shall take and sub^ scribe an oath or affirmation declaring his full name, with his age, place of business, his status, whether married or single, and, if married, the name of his lawful wife, and that he will support the Constitution of the United States and will faithfully obey the laws thereof, and especially will obey the said act of Con- gress approved March 22, 1882, and will also obey this act in respect of the crimes in said act defined and for- bidden, and that he will not, directly or indirectly, aid or abet, counsel or advise, any other person to com- mit any of said crimes: which oath or affirmation shall be recorded in the proper office and indorsed on the commission or certificate of appointment. All grand and petit jurors in said Territory shall take the same oath or affirmation, to be administered, in writ- ing or orally, in the proper court. No person shall be entitled to vote in any election in said Territory, or be capable of jury service, or hold anyofflce of trust or emolument in said Territoiy who shall not have taken the oath or affirmation aforesaid. No person who shall have been convicted of any crime under this act, or under the act of Congress aforesaid approved March 22, 1882, or who shall be a polygamist, or who shall associate or cohabit polygamously with persons of the other sex, shall be entitled to vote in any elec- tion in said Territory, or be capable of jury service, or to hold any office of trust or emolimaent in said Territory. Sec. 25. That the office of Territorial superintend- ent of district schools created by the laws of Utah is hereby abolished; and it shall be the duty of the su- preme court of said Territory to appoint a commis- sioner of schools, who shall possess and exercise all the powers and duties heretofore imposed by the laws of said Territory upon the Territorial superintendent of district schools, and who shall receive the same salary and compensation, which shall be paid out of the treasury of said Territory; and the laws of the Terri- tor.y providing for the method of election and appoint- ment o£ such Territorial superintendent of district schools are hereby suspended until the further action of Congress shall be had in respect thereto. The said superintendent shall have power to prohibit the use in any district school of any book of a sectarian character or otherwise unsuitable. Said superintendent shall collect and classify statistics and other information respecting the district and other schools in said Terri- tory, showing their progress, the whole number of children of school age, the number who attend school POND 788 PORT in each year in the respective counties, the average length o£ time of their attendance, the number of teachers and the compensation paid to the same, the number of teachers who are Mormons, the number who are so-called gentiles, the number of children of Mormon parents and the number of children of so- called gentile parents, and their respective average attendance at school; all of which statistics and infor- mation shall be annually reported to Congress, through the governor of said Territory and the department of the interior. Sec. 26. That all religious societies, sects, and con- gregations shall have the right to have and to hold, through trustees appointed by any court exercising ptobate povrers in a Teri-itory, only on the nomination of the authorities of such society, sect, or congrega- tion, so much real property for the erection or use of houses of worship, and for such parsonages and burial grounds as shall be necessary for the convenience and use of the several congregations of such religious so- ciety, sect, or congregation. Sec. 27. That all laws passed by the so-called State of Deseret and by the legislative assembly for the or- ganization of the militia or for the creation of the Nauvoo Legion are hereby annulled, and declared of no effect; and the militia of Utah shall be organized and subjected in all respects to the laws of the United States regulating the militia in the Territories: Fro- vided, hoivever, That all general officers of the militia shall be appointed by the governor of the Territory, by and with the advice and consent of the council thereof. The legislative assembly shall have power to pass laws for organizing the militia thereof, subject to the approval of Congress. POND. See Lakes. The great ponds of the commonweilth belong to the public, and, like the tide-waters and navigable streams, are under the control of the government.^ See Ice; Riparian; Water. PONE. L. Put, place. In old English law, an original writ issued out of chancery, to remove a plaint from an inferior to a superior court; also, the initial word of the mandate of an attachment for non-appearance on the return of an original writ. The Latin words were; Fone per vadium, etc., put by gage, etc.^ cPOOL.s The stake played for in certain games of cards.* See Game, 3. " Pool, in the sense here used [ ' a real es- tate pool' ] is of modern date, and may not be well understood, but in this case it can mean no more than that certain individuals are engaged in dealing in real estate as a commodity of traffic." ' » Attorney-General v. Jamaica Pond Aqueduct Cor- poration, 133 Mass. 364 (1882). See also Angell, Wat. C. §41; 3 Washb. E. P. 416. "3B1. Com_M). 5 V.poule, a hen: hen's eggs, as a stake. * Webster's Diet. ' Kilbourn v. Thompson, 103 U. S. 168 (1880), Miller, J. Compare Harris v. White, 81 N. Y. 541 (18S0)., Pooling contracts between railroad companies, by which territory and traffic is divided and rival car- riers discriminated against, are against public policy. They are ultra vires, as amounting to a partnership of corporations; they are combinations against lawful competition in trade; and the courts would possibly condemn the railway managers, who make their com- panies parties to such unlawful confederations, as guilty of a breach of trust toward their stockholders. ' SeeCoMBi^-ATioN, 2; Couuerce, Inter-State Act; Trade, Restraint of; Tbubt, 2. Pooling table. Keeping a pool table for hire is a thing aifecting public morals, which the legislature can either absolutely proliibit or regulate. A com- mon form of regulation is by requiring a license. ^ See Game, 2; Saloon. POOR. In a statute providing for the re- lief of the poor : persons so completely desti- tute of property as to require assistance from the public' In a will, held to include those who have exhausted all means of support and are in a condition to require public aid for the supply of their necessities. < "Poor," "poor person," "person in distress," "in- digent person," and "pauper" may be used synony- mously." ^ "Casual poor" are such poor persons as are sud- denly taken sick, or meet with accident, when from home.^ See Belong; Charity; Imprisoksient, For debt; Pauper. POP. See Liquor. POPULAR.'' Pertaining or belonging to, or obtaining among, the people in gen- eral. A "popular action" is maintainable by any persc« who will sue for the penalty provided for in the case. See Action. 2, Popular. The "popular sense " of words used in a statute is the sense in which they Are understood by persons conversant with the subject-matter. ^ PORCELAIN. See Paintlig. PORK PACKER. See Manufacturer. PORT. Generally, a harbor or shelter for vessels from storms. Applied to a place where there is' no harbor, may mean only a 1 Denver, &c. E. Co. v. Atchison, &c. B. Co., 15 F. E. 650, 667 (18£3), cases, Hallett, J. ; ib. 667-74, cases. ! Commonwealth u Kinsley, 133 Mass. 579 (1883). 'See State v. Osawkee Township, 14 Kan. 421-23 (1875), Brewer, J. 1 Beardsley v. Bridgeport, 53 Conn. 492 (1885). ' Hutohings v. Thompson, 10 Cush. 239 (1852), Met calf, J. « Force V. Haines, 17 N. J. L. 405 (1840), Hornblower, Chief Justice. ^ L. popularis; populus, the people. s GrenfeU v. Commissioners of EeTenue, L. E., 1 Ex. D. 248 (1876). PORT POSSESSIO road or anchorage — a place for loading and unloading cargoes.' May include any place from which mer- chandise can be shipped for importation, or at which merchandise can be imported.^ Foreign port. A port outside of the United States.' The porta of the States are foreign to each other for some purposes; as, tor pledging the credit of the owner for supplies.* See Vessel, Foreign. Home port. The port of enrollment. While it is difficult to formulate a rule by which the home port of a vessel belonging to persons residing in different States may be determined, it is well settled that a vessel cannot have more than one home port, or be a domestic vessel in more than one State. A for- tiori^ if owned by residents of different States, she maj' be a foreign vessel in the port of a State wherein certain of her ownei's reside. Prima facie, the home port is the place of enrollment, where or nearest to which the owner, or, if more than one owner, the managing owner, resides.^ Port of delivery. Sometimes distin- guishes the port of unloading or destination from any port at which the vessel touches for other purposes.** Port of destination. In a time policy, may mean any foreign port to which the ves- sel may be destined, ks well as her home port, and include any usual stopping place for loading or unloading cargoee.' Port of discharge. Any place at which it is usual to discharge cargo, and to which the vessel is destined for the purpose of dis- charging a substantial part.^ To constitute a " port of destination " a " port of discharge " some goods must be unladen or some act done to terminate the voyage there.' Port of entry. A port designated for the entry of vessels, with reference to the execu- tion of laws imposing duties. See Entky, II, 3. ' [De Longuemere v. N. T. Kre Ins. Co., 10 Johns •183 (181-3), Kent, C. J. "R. S. §2767. ' King V. Parks, 19 Johns. *377 (1832); 26 Wend. 511. •The Lulu, 10 Wall. 200 (1869); Negus v. Simpson, 09 Mass. 393 (1808); 2 Low. 663; 2 Abb. U. S. 172. ' The Ellen Holgate, 30 F. E. 1^6 (1887), cases, Wales, Judge. » [The Two Catherines, 2 Mas. 331 (1821), Story, J, ' [Gookin v. New England Mut. Mar. Ins. Co., 12 Gray, 513-16 (1859), Dewey, J. s Bramhall v. Sun Ins. Co., 104 Mass. 513 (1870), Gray, J. ; 1.32 id. 588; 5 Mas. 414; 2 Cliff. 4; 1 Sprague, 485; 18 L. R. 94. » United States v. Barker, 5 Mas. 406 (1829), Story, J. Port-risk. A risk upon a vessel while lying in port, and before she has departed on another voyage.' See Arrival; Blockade; Commerce; Dispatch; Export; Import; Inspection, 1; Use, 1. PORTION. Is synonymous with part.2 Specifically, such part of a parent's estate as is given to each child. Portionist. One who receives a share or portion. Share, part, and portion are frequently synonymous. Applied to property acquired from an ancestor, " por- tion" is the most comprehensive word that can be used.^ See Advancement; Part, 1; Partition; Raise; Satisfaction, S. PORTRAIT. See Heikloom. POSITION. See Baggage; Necessa- ries; Rank; Status. POSITIVE. Express; absolute; not doubtful; affirmative ; direct : as, a positive or positive— affirmation, condition, evi- dence, fraud, proof, statute, qq. v. Positive law. Law actually ordained or established; statutory regulations; enacted law, or enactments ; the lex scripta. POSSE. L. To be able: power; to be ' possible: possibility. ' In posse. In possibility ; opposed to in esse: in actual existence.^ See Contingency. Posse comitatus. The power of the county, q. v. POSSESSIO. L. Being near: posses- sion; seizin. Habere facias possessionem. That you cause to have possession. The emphatic words in the writ of execution, and now the name of the writ itself, where a plaintiff has been awarded the possession of land.s Abbreviated hab. fa. pass., hab. fa., and, perhaps, h.fp. Pedis possessio. Possession of the foot : an actual foothold; actual possession of land. Since standing upon land is a natural symbol of possessing it, the phrase has come to mean actual possession of any particular piece of land, as evi- denced by occupancy, inclosure, etc. Pedis positio. Placing of the foot; a foothold. Possessio flratris. The brother's posses- sion. ■ Nelson v. Sun Mut. Ins. Co., 71 N. Y. 459 (1877). 2 Holly r. State, 34 Ala. 240 (1875). 'Lewis's Appeal, 108Pa. Vil (:885), Mercur, C. J. » See 2 Bl. Com. 397; 10 Johns. 85. » See 3 Bl. Com. 412. POSSESSION 790 POSSESSION In the English law of descents, the possession by one person in such privity with another as to be con- sidered that other's own possession. It was a rule of law that " possession by. a brother of an estate in fee- simple makes the sister to be heir; " his possession makes his sister of the whole blood his heir in prefer- ence to a brother of the half blood." Potior est oonditio possidentis. The stronger is the condition of the party in pos- session.2 See further Conditio, Melior, etc. ; Possession, Adverse. POSSESSIOIf.3 See Possessio. Owning or having a thing in one's power.* Tlie detention or enjoyment of a thing which a inan holds or exercises by himself or by another in his name.^ Holding an exclusive exercise of dominion over land.6 " Possessed " sometimes implies a temporary inter- est inlands; sometimes a corporal having; and some- times no more than that one has a property in a thing — that he has it as owner, that it is his.' Possessor. He who hold, detains, or en- joys a thing as his own. , A bona fide possessor of land is one who not only supposes himself to be the true proprietor, but who is ignorant that his title is contested by another person claiming a better right to the land.* Possessory. Refers to a proceeding in- tended to obtain possession, and not merely to determine title. Thus, ejectment is a possessory remedy. In a possessory action the right of possession, and not that of property, is contested. The action decide.s nothing with respect to the right of property; it merely restores the demandant to that state or condi- tion in which he was, or by law ought to have been, before dispossession. ^ See Petitory. Actual possession. Exists when a thing is in one's immediate occupancy. Con- structive possession. Possession in con- templation of the law.'i Actual possession, which means a subjection to the will and dominion of the claimant, is usually evidenced 1 See 2 Bl. Com. 337; 4 Kent, 384; Eeeve, Desc. 377; 3 Pet. 59, 625. » As to possession in Koman law, see 3 Law Q. Eev. 32-53 (1887). * Pos-sSsh'-un, or z§sh'-un. * Brown v. Volkening, 64 N. Y. 80 (1876), Allen, J. ' [Eedfield v. Utica, &c. E. Co., 35 Barb. 58 (18S1), W. F. Allen, J. * [Booth V. Small, 36 Iowa, 181 (1868),, Beck, J. ^ Mayor of Detroit v. Park Commissioners, 44 Mich. 603 (1880), Cooley, J. 8 Green v. Biddle, 8 Wheat. 79 (1823), Washington, J.; Canal Bank v. Hudson, 111 U. S. 80 (1883). - » [2 Bl. Com. 198, 190. '"Brown v. Volkening, 64 N. Y. 80 (1876), Allen, J.; Lillianskj'Oldt v. Goss, 3 Utah, 397 (1878). by occupatiolQ, by a substantial inclosure, by cultiva- tion, or by appropriate use, according to the particu- lar locality and quality of 'the property.' Constructive possession, where there is no actual possession, is in him who has the legal and rightful title. 2 Adverse possession. Possession of re- alty avowedly opposed to some claim of tit^e in another. A possession not under the legal proprietor, but entered into without his consent, directly or indirectly given; a possession by which . he is disseised and ousted. 3 An adverse and hostile possession is one held for tlie possessor, as distinguished from one held in subordination to the right of another; a possession inconsistent with the possession or right of possession by another. Such is an exclusive possession of one who is not in privity with the true owner.* " Visible " and " notorious " are terms employed to denote that the possession must be more than secret, and unknown to the disseised owner. Since acquies- cence implies knowledge, a possession that he permits must be " notorious " or known to him.* If under claim of right, and uninterrupted, opeUj visible, and notorious for twenty years, such posses- sion is evidence of title in the possessor, and a good defense in ejectment.^ Independently of positive statute law, such a pos- session affords a presumption that all the claimants to the land acquiesce in the claim of the possessor, or that they forbear for some substantial reason to con- trovert his claim or to disturb him in his quiet enjoy- ment. Secret possession will not do, as publicity and notoriety are necessary as evidence of notice and to put adverse claimants upon inquiry. Mere occupation is not suf^cient, but adverse and continuous posses- sion is.^ The weight of authority is that, where one has had the peaceable, undisturbed, open possession of real or personal property, with an assertion of his owner- ship, for the period which, under the law, would bar an action for its recovery by the real owner, the former has acquired a good title — a title superior to that of the latter, whose neglect to avail himself of his legal rights has lost him his title.^ ' Coryell v. Cain, 16 Cal. »573 (1860), Field, C. J. See also 71 Ala. 264; lCal.263; 16icJ. 109; 4 Nev.68; 59N.T. 136! 2 Norris's Appeal, 64 Pa. 282 (1870). s [French v. Pearce, 8 Conn. *443-46 (1831), Hosmer, Chief Justice. 'Sheaffer v. Eakman, 56 Pa. J53 (1867), Strong, J.; Ewing V. BurneU, 11 Pet. *S3 (1837). = Hogan V. Kurtz, 94 U. S. 776 (1876), cases. "Armstrong v. Morrill, 14 Wall. 145-46 (1871), cases, aitEord, J. ; Hughes v. United States, 4 id. 333 (1866). ' Campbell v. Holt, 115 U. S. 623 (1885), cases. Miller, J.; Gilbert v. Decker, 63 Conn. 401-5 (1885), cases; Hol- lingsworth v. Sherman, 81 Va. 671, 674 (1836), cases. POSSESSION 791 POSSESSION Adverse possession of vacant lands, under color of title, includes as much as is within the boundaries of the title, and to that extent the true owner is disseised. But if the latter be in actual possession of any part, his constructive seizure extends to all not in fact occu- pied by the intruder. The reason is, the intruder's acts give notice only to the extent of actual occu- pancy.' Though a presumption of a deed may be rebutted by proof of facts inconsistent with its supposed exist- ence, yet, where no such facts are shown, and the . things done and the things omitted, with regard to the property in controversy, by the respective parties, for long periods after the execution of the supposed con- vej'ance, can be explained satisfactorily only upon the hypothesis of its existence, the jury may be in- structed to presume such a conveyance. The pre- sumption of a grant is indulged merely to quiet a long possession which might otherwise be disturbed by rea- son of the inability of the possessor to produce the muniments of title, which were actually given at the time of the acquisition of the property by him or those under whom he claims, but have been lost, or which he or they were entitled to have at that time, but had neg- lected to obtain, and of which the witnesses have passed away, or their recollection of the transaction has become dimmed and imperfect. And hence, as a rule, it is only where the possession has been actual, open, and exclusive for the period prescribed by the statute of limitations to bar an action for the recovery of the land, that the presumption of a deed can be invoked. , The presumption may be invoked where a pro- prietary right has long been exercised, although the exclusive possession of the whole property may have been occasionally interrupted during the period nec- essary to create a title by adverse possession, if in ad- dition to the actual possession there were other open acts of ownership, as, the payment of taxes." The maxim that the plaintiff must recover upon the strength of his own title, and not upon the weakness of the defendant's, is applicable to all actions for the recovery of property. But if the plaintiff had actual prior possession of the land, this is strong enough to enable him to recover from a mere trespasser who en- tered without any title. He may do so by a writ of entry, where that remedy is still practiced, or by an ejectment, or he may maintain trespass. This rule is founded upon the presumption that every possession peaceably acquired is lawful, and it is sustained by the policy of protecting the public peace against disorder. But, as it is intended to prevent and redress trespasses and wrongs, it is limited to cases where the defendants are trespassers and wrong-doers. It is therefore qual- ' Hunnicutt v. Peyton, 103 U. S. 368-69 (1880), cases. Strong, J. On tacking the possession of several suc- cessive holders together, see Sherin v. Brackett, 36 Minn. 153 (1680), cases. See also, generally, 43 Ala. 633; 33 Ga. 639; 33 W. 141; 13 Ul. 193; 58 id. 689; 30 Md. 409; 33 id. 359; 3 Mete, Mass., 510; 37 Miss. 158; 47 id. 286; 9 Wend. 511; 39 Barb. 513; 54 id. 9; 6 Pa. 810; 11 id. 189; 19 id. 268; 85 id. 858; 53 id. 182, 313; 61 id. 146; 69 id. 300; 85 id. 37. 2 Fletcher v. Fuller, 180 U. S. 551-58, 545-54 (1887), cases. Field, J. ified in its application by the circumstances which constitute the origin of the adverse possession, and the character of the claim on which it is defended. It does not extend to cases where the defendant has ac- quired possession peaceably and in good faith, under color of title. It is also understood that the prior pos- session of the plaintiff has not been voluntarily relin- quished without the animiig revertendi. and that the subsequent possession of the defendant was acquired by mere entry, without legal right. The action, also, to regain the prior possession must have been brought within a reasonable time after it has been lost. If there has been delay in bringing suit, the ani-m-us re- verfe7idi must be shown, and the delay satisfactorily accounted for, or the prior possessor will be deemed to have abandoned his claim." The party who challenges the title of his adversary to realtj' must be diligent in discovering that which will avoid the title or render it invalid, and diligent in his application for relief. Unreasonable delay, not explained by equitable circumstances, is evideace of acquiescence.' Bare possession. See Naked Possession. Concurrent possession. Possession in one person contemporaueous with possession in another person, whether for tlie same time and in the same right or otherwise. Dispossession. Deprivation of posses- sion ; unlawfully excluding from the occu- pation of realty a person who is entitled thereto. Compare Ouster ; Seisin, Disseisin. Fraudulent possession. Such posses- sion of property by an insolvent vendor as secures him new credit from, and to the injury of, a person unaware of the alleged transfer. By statute 13 Eliz. (1578), c. 5, a gift or grant of per- sonalty or realty, with intent to defraud creditors or others, is voidable by such defrauded persons. Under this statute it was held, in Tivyne's Case,^ that if the grantor continues to retain possession it is a badge of fraud. Some American cases make retention of p6s- session fraudulent per se and In law ; others, only evi- dence of fraud for the jury. Transfer of possession and actual removal of per- sonalty is necessary to render a sale or attachment valid as against creditors. This is to prevent fraud — which seeks to favor the vendor or debtor by shielding his property for his benefit from the claims of cred- itors. The rule is one of policy. As matter of evi- dence, the continued possession of a vendor or debtor, who is in embarrassed circumstances, yields a pre- sumption that the process or the sale Is colorable ; tor, In general, no reason can be given why possession should not be taken, except that he should not be in- 1 Sabariego v. Maverick, 184 U. S. 896 (1888), cases, Matthews, J., quoting Christy v. Scott, 14 How. 293 (1858). cases, Curtis, J. 2 Howe u. South Park Commissioners, 119 III. 117 (1886), cases, Scott, J. 8 3 Coke, R. '81 (1602); 2 Bl. Com. 442. POSSESSION 793 POST dulged witii the disposition or use of the property to the injury of others. ^ In the Federal courts, and in Alabama, Florida, Illinois, Indiana, and Kentucky, unless possession fol- lows an absolute sale, the transfer is fraudulent inlaw and void, as against creditors and subsequent bona j^e purchasers; but In the case of a contingent sale or a mortgage, retaining possession is not inconsistent with the nature of the conveyance. The law of New Hampshire, and of South Carolina, resembles this. In Connecticut, New York (before the revised statutes), Pennsylvania, and Vermont, delivery of possession is necessary, as against creditors, in cases of mortgages, contingent transfers, and absolute sales; but the court may say that the reason for non-delivery is good. Arkansas, Georgia, Maine, Massachusetts, Missomi, North Carolina, Ohio, Tennessee, and Texas, follow the Federal courts in the distinction between absolute and contingent sales, but regard retention of posses- sion which is inconsistent with the conveyance as only evidence of fraud and for the jury.^' See further Con- veyance, 2, Fraudulent: Delivery, 1; Sale. Naked possession. Actual occupation of an estate, without apparent right, or shadow or pretense of right, to hold or con- tinue such possession. Called also hare pos- session.^ Thus, where one man invades the possession of an- other, and by force • or surprise turns him out of his occupation, till some act be done by the rightful owner to devest this possession and assert his title, such actual possession is prima facie evidence of a legal title, which, by length of time, may ripen into an in- defeasible title.* A man out of possession has remaining the right of possession, which is an apparent right of possession, defeasible by proof of a better right, and, an actual right of possession, which will stand the test against all opponents.* Reduce to possession. To change a right existing as an actionable claim into actual custody and enjoyment. Thus, at common law, a husband who converted his wife's choses in action into money or property in hand was said to reduce them to possession. 1 Mills V. Camp, J4 Conn. 325 (1841), Sherman, J.; Norton v. Doolittle, 32 id. 410 (1805) ; Hull v. Sigs worth, 48 id. 266 (1880); Warner v. Norton, 20 How. 45&-60 (1857). 2Twyne's Case, 1 Sm. L. C.,7ed., 52, cases: coiitiri- ued in 18 Am. Law Keg. i;3r-53 (1879), cases. See also Lewis V. McCabe, 49 Conn. 148-55 (1881), cases; Lund v. Fletcher, 39 Ark. 332 (1882); City Nat. Bank v. Good- rich, 3 Col. 139 (1^76); Bassinger v. Spangler, 9 id. 175, 183-87 (1886), cases; McKibbin v. Martin, 64 Pa. 350 (1870); Crawford v.Davis, 90 id. 578 (1883); Sauerwein V. Costigan, 41 Leg. Int. 16 (18S3); Mead v. Gardiner, 13 R I. 259 (1881), cases; Blanchard v. Cooke, 144 Mass. £25 (1887) ; 22 Cent. Law J. 57 (1886) — Irish Law Times. 3 See Gillett v. Gaffney, 3 Col. 300 (1877). ^ 2 Bl. Com. 195-96; 3 id. 177, 179. Repossession. Retaking into custody; recaption. See Detainer; Estate, 3, 4; Larceny; Lien; Occu- pancy; Remainder; Seisin; Title, 1; Vest. POSSIBLE. 1. Liable, but not likely, to happen or come to pass. 3. Practicable ; rea- sonable. , " Forthwith give notice" of a loss by fire and "as soon as possible " render an account of the loss, can- not mean instantly and directly, for that might be impossible, but as soon as could be, under the circum- stances, or within reasonable time, or as soon as prac- ticable.' Possitoility . An event which may or may not happen; something that is uncertain.2 Spoken of as " near " or *' remote,'' and aS "ordinary" or "extraordinary," according to the degree of probability. 2 When the condition of an obligation is possible at the time of its making, but, before it can be per- formed, becomes impossible by act of God, the law, or the obligee, the obligation is saved. Otherwise, if im- possible at the time of making. ^ If T^hat is agreed to be, done is possible and lawful, it must be done. Difficulty or improbability will not avail. It must be shown that the thing cannot be effected by any means. If a hardship, it might have been guarded agaiast. At common law, if a lessee covenants to repair and the house burns down, he is bound to rebuild; so, as to i*epairing a bridge which is swept away by flood; so, as to building a foundation, although there be a latent defect in the soil.* The prindple rests upon reason and justice. It regards the sanctity of contracts; requires a party to do what he has agreed to do. Contingent impediments should be guarded against. ° "In contracts in which the performance depends upon the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from tlie perishing of^the person or thing shall excuse the performance." ^ Bona, non impossibilia, cogit lex. Effective, not impossible acts, tbe law requires. Lex non cogit ad impossibiUa. The law does not compel doing impossible things.' See Act, Of God; Res, Perit. POST. 1. "L.prep. After; afterward.' Introduces Latin phrases, and is used in Latin and English compound words. ' Palmer v. St. Paul Ins. Co., 44 Wis. 208-9 (1878), cases; 4 Q. B. D. 673; 29 Moak, 103; 17 F. R. 431. 2 See Bodenhamer v. Welch, 89 N. C. 81 (1883); 46 Barb. 87; 7 Ohio St. 443. s Coke, Litt. 206 a; 3 BI. Com. 340; Davis v. Gray, 16 Wall. 229 (1873). « The Harriman, 9 Wall. 172 (1869), cases, Swayne, J. sDermott v. Jones, 2 Wall. 7-8,(1864), cases, Swayne, J. : 2 Story, Eq. §§ 1004^. « Eliot Nat. Bank v. Beal, 141 Mass. 567-70 (1886), cases. ' 101 U. S. 690; 14 Gray, 78; 7 Cush. 43, 393 j 2 id. 549. POST 798 POSTEA Post diem. After the day — when due ; as, a plea of payment post diem. Post facto. After the fact. See Factum, Post, etc. Post hae. After this. Post litem m.otam.. After controversy begun. See Lis, Mota. Post mortem.. After death. See Coro- ner. Post natus. After-born. See Natus, Ante. Post obit. After he dies. See Obit. Post-date. To date after the true time. See Date. Post-due. Past due. See Due. Post-note. A note payable at a distant day, and not on demand. Differs from othev promissory notes only as to time of payment.^ Post-notes are a, species of obligation resorted to by banks when the exchanges of the country, and es- pecially of the banks, have become embarrassed by excessive speculations. They are intended to supply the place of demand notes, which the banks cannot afford to issue or re-issue, to relieve the neces.sities of commerce or of the bankSf or to avoid a compulsory suspension. They are under seal, or without seal, and at long or short dates, and with or without interest, as the necessities ot the bank may require." Post-nuptial. After nuptials or mar- riage. Opposed, ante-nuptial. See Settle, 4. 2. Eng. n.3 (1) A military station : (2) any fixed place on a line of road ; (3) a convey- ance betvFeen such places, and the person who used relays of horses; (4) speedy con- veyance, rapid travel, quicls communication, communication by letter or message. Whence " the post," "post haste," etc. Military post. A military establishment where a body of troops is permanently sta- tioned.^ Post-office. (1) The department of gov- ernment concerned in receiving and deliver- ing postal matter. The postmaster-general, deputy postmasters, and their assistants and clerks, appointed and sworn as re- quired by law, are public officers; and each is answer- able for his own negligence only.' See Tort, 2. ' Be Dyott's Estate, 2 W. & S. 489 (1841). " Hogg's Appeal, 23 Pa. 488-89 (18S4). = F. paste, a carrier, messenger: L. L. postus, posta, a station, post: L. positus. placed: ponere, to place. A " post-horse " was a horse placed at a sta- tion in readiness for a traveler. ' [Caldwell's Case, 19 Wall. 268 (1873), Hunt, J. = Keenan v. Southworth, 110 Mass. 474 (1872), cases. Compare Robertson !'. Siohel, 127 U. S. 516 (2) The " business" of keeping, forwarding and distributing mailable matter, equally with the "place" where such business is conducted. Such place, to constitute a post-office, may be a buildipg. an apartment in a building, a desk, or a trunk or box to be cari'ied about a house or from one build- ing to another- The place of deposit is the post-office, in this sense. Hence, feloniously removing a letter out of the place where kept, in a post-office, is stealing it from the posl^office. ' " The Congress shall have Power . To establish Post Offices and Post Roads." " This power authorizes the regulation of the entire system: the designation of route, the m.atter — its weight and form, the places where receivable, the charges for carriage, measures to secure safe and speedy transit, prompt delivery, etc.^ Under this power thf} department also determines what matter shall and shall not be mailable. The protection of the public morals is incidental to the protection of the mails.* Post-road. A liighway by land or water over which mails may be lawfully trans- mitted. Post-route. A post-road, or a definite portion thereof, over which mails are usually transported by contract ; a route for which the department contracts for the transportation of a mail.* Letters, and sealed packages subject to letter-post- age, when once entrusted to the care ot the postal de- partment, for transmission, are as fully guarded from inspection, except as to outward form and weight, as if retained by the forwarder in his own domicil. The guarantee against " unreasonable searches and seiz- ures" extends to articles placed in the mails. They can be opened only imder warrant, duly sworn to and particularly describing the thing, as if it were a paper in ones own household. But what is purposely left open to inspection, as, newspapers, magazines, pam- phlets, and other printed matter, may be examined without warrant.^ See further Letter. 3; Maii-, 2; Book, 2; Cibcdi.ar, 2; Liberty, Of the Press; Lottery; Obscene; Rev- enue; Telegraph. POSTEA. L. Afterward. Whatever was done in a cause subsequently to joining issue and awarding trial was entered on the record, and called the postea. The substance is, that postea, afterward, the par- ties appeared by their attorneys at the trial, and a 1 United States v. Marselis, 2 Blatch. 110 (1849), Betts, J.; United States 11. Campbell, 16 F. R. 234(1883). ■' Constitution, Art. I, sec. 8, cl. 7. « Exp. Jackson, 96 U. S. 732 (1877), Field, J. < United States v. Bott, II Blatch. 346 (1873). " Railway Mail Service Cases, 13 Ct. Cl. 204 (1877), , Davis. J. ; Blackham v. Gresham, 16 F. R. Oil (1883); 18 id. 591; R. S, §3829. » Exp. Jacksoii. siqwa; 107 U. S. 218. POSTERITY 794 POUND jury found a verdict,— stating it ; or, that the plaintiff made default, or otherwise, as the case may be. This is added to the roll, which is then returned (from nisi prius) to the court from which it was sent. The his- tory of the cause from the time it was carried out is thus continued in the postea.^ POSTERITY. Embraces descendants to the remotest generation.^ POSTHUMOUS. Describes a child born after the death of its father. Any such legitimate child inherits as if bom before the parent's death, and a will which does not provide for it is regarded as revoked pro tanto.^ See Aiwus, Luctus. POSTLnVUNY. Claiming property after recapture; restitution after recapture. The jus postliminii of the Eoman law. From post, behind, and Hmen, the threshold. A legal fiction, ac- cbrding to which a Roman citizen captured by the enemy was treated as not having been away from home, and all his rights were restored to him. Slaves, ships, mules, horses, and land, on recapture, were also returned to the original owner.* ,The right of postliminiutn is that in virtue of which persons and things taken by the enemy are restored to their former state, on coming again into the power of the nation to which they belonged.^ POSTNATUS. See Natus. POST-OFFICE. See Post, 3. POSTPONE. 1. To put after, place one thing after another; to defer: as, to postpone a claim or lien. See Defer. 3. To put off to a later day ; to adjourn ; to continue, q. v.: as, to postpone a cause or hearing.'' , POSTREMOGrENITUEE. See Pmmo- GBNITUEE. POTESTAS. L. Power, authority, do- minion. See Dedimus ; Delegata ; Pateia ; Sub. Compare Viees. POTIOK. See Delictum, In pari, etc. POTTERY. See Copyright. POUND. 1. Twenty shillings. In calculating the rates of duties, the pound ster- ling shall be taken as of the value of four dollars, eighty-six cents, and six and one-half mills.' The Colonial pound, in Georgia, contained fifteen hundred and forty-seven grains; in Virginia, Massa- 1 3 Bl. Com. 386. ' Breckinridge v. Denny, 8 Bush, 587 (1871). SI Bl. Cora. 130; 3 id. 169; 4 Kent, 412, 521, 525; 3 Washb. R. P. 412; 29 6a. 549; 4 Paige, 52; 6 id. 172; 18 S. C. 55; 3 Munf. 20; 1 Murph. 283. 4 Woolsey, Int. Law, 5 ed. § 151. 5 Vattel, Law of Nations, § 204. See also 1 Kent, 108; 1 N. Mex. 44. 6 See State v. Underwood, 76 Mo. 639 (1882); 8 How. Pr. 448; 13 id. 89. ' R. S. § 3565. See 8 Saw. 169. chusetts, Rhode Island, Connecticut, and New Hamp- shire, twelve hundred and eighty-nine grains; in New, Jei'sey, Delaware, Pennsylvania, and Maryland, one thousand and thirty-one and a quarter grains; in New York, and North Carolina, nine hundred and sixty-six grains. . . In New England, six shillings, or one hundred and eight coppers, made a dollar , in New Je^ey, Pennsylvania, Delaware, and Maryland, ninety pencQ; in New York, and North Carolina, ninety -six coppers, ^ In Pennj^ylvania currency, a pound was equivalent to $2.66^, a shilling to 13}^ cents, and sixpence to G% cents; although the latter passed for 12^ and 6J4 cents respectively . It is suggested that in these values is found the explanation of the origin of the practice by which juries in that State award 6^ cents (a six- pence) as nominal damages — which carry full costs; and the origin of the statutory limit from which no appeal may be had from the judgment of a justice of the peace, to wit, $5.33J^, that is, two pounds. ^ 3. A legal inclosure for the confinement of estrays, or the custody of goods distrained. ^ An enclosed piece of land, secured by a firm structure of stone, or of posts and tim- ber, placed in the ground.'' Like the grant of a mill, house, etc., carries with it the land on which it stands as parcel of the subject- matter of the grant. Necessarily requires, land, and is in its nature pei"petual.* The board of supervisors of San Francisco granted to one A., and his assigns, the exclusive privilege, for twenty years, of having and removing the carcasses of dead animals, not slain for food, subject to certain sanitary regulations, and with the provision that the keeper of the public pound should notify A. to remove animals destroyed thei'ein. Held, that the plaintiff could restrain the pound-keeper from delivering car- casses to any other person.^ Impound. 1. To confine in a pound ; as, an animal estray. 3. To place in the custody of the law ; as, an instrument discovered, in the course of a trial, to be a forgery, An original will is said to be impounded with the register of wills. An executor may impound a legacy to set off a debt due by the legatee.* Things distrained must be first carried to some pound. Once impounded, even though without cause, the owner may not break the pound and take them out: for they are then in the custody of the law. If a live distress of animals be impounded in a com- mon povnd-overt (i, o., open overhead), the owTier ' 1 McMaster, Hist. Peop. U. S. 23, I91, 189-200. » See Chapman v. Calder, 14 Pa. 357 (1850); Hinds v. Knox, 4 S. & R. 417 (1819); Winger v. Rife, 101 Pa. 152, 160 (1882). = A. S. pund: L. parcvs, an inclosure,— 3 Bl. Com. 12. < Wooley V. Groton, 2 Cush. 309 (1848), Shaw, C. J. 6 Alpers V. San Francisco, 32 F. E. 505-6 (1887). ' Ballard v. Marsden, 37 Eng. R. 53, 55 (1880), cases. POUR T95 POWER must take notice at his peril ; but if in a special pound- overt, constituted for the particular purpose, the dis- trainor must f^ive notice to the owner; and in both cases the owner is bound to feed the beasts. But if put in a pound-covei't (i. e., closed), in a stable or the like, the distrainor must feed them.i Being in the custody of the law, taking the distress back by force is a " rescous," for which pound-breach^ a remedy in damages, lies in the distrainor.' See Distress. Pound-master. The keeper of a pound. Poundage. 1. Money paid for the release of animals impounded. 2. An allowance to a sheriff of a percent- age upon the amount levied under an execu- tion. Whether referable to a percentage upon each pound sterling collected, or to the charge for keeping goods impounded, is not settled. POUB. See Pur. POVERTY. See Poor. Poverty-affidavit. A statement, -veri- tied by oath or aflfirmation, required to be filed in court by the law of some States, by a litigant to the eiiect that he cannot furnish security for paying the costs in the case in the event of the issue being determined against him.^ Compare Pauper, 1. POWDEB. See Police, 2. POWER. 1. The authority which one person gives another to act for him : as, the powers of an agent, of an executor, a power of attorney, qq. v. Authority conferred by law to act for one's self or in behalf of the interest or estate of another or others : as, the powers of in- fants, lunatics, married women, of adminis- trators, arbitrators, assignees, executors, guardians, or other trustees, qq. v. See In- terest, 2, Coupled, etc. Power and authority. When a statute confers a power upon a corporation.^to be exercised tor the public good, the exercise of the power is imperative; the words " power and authority " then mean " duty and obligation." ' See May. 2. Authority conferred upon one person to dispose of an estate vested in another. A -power" in a will is never imperative: it leaves the act to be done at the wUl of the party to whom given. A "trust" is always imperative and obliga- tory upon the conscience of the party intrusted.' • 3 Bl. Com. 12-13, 146; 45 Conn. 161; 126 Mass. 364. « See Cole v. Hoeburg, 36 Kan. 263 (1887). 3 Rankin v. Buckman, 9 Oreg. 262 (1881): 20 Md. 458, 477; Dwar. Stat. 712. » Stanley v. Colt, 5 Wall. 168 (1866): WUmot, C. J., 2 Sugd. Few. 588. Powers under the Statute of Uses. Methods of causing a use, with its accom- panying estate, to spring up at the will of a given person.' A mere right to limit a use.2 The right to designate the person who is to take the use is termed the "power of ap- pointment." If the donee of the power has no estate in the land, the power is collateral or naked; if he has an estate, it is appendant or in gross. A power "appendant" is such as he may execute out of the estate limited to him, — depends for its validity upon that estate. He may create an estate which will attach on his interest ; as where, while being a tenant for life, he may make sub-leases. A power " in gross " is a power to create an estate which will not attach on the interest limited to the donee, or take effect out of his interest ; as, where, as tenant for life, he may create an estate to begin after his estate ends. Called " in gross," because his estate has no concern in it. If the donee may appoint to whom he pleases, the power is general. If he is re- stricted to an appointment to or among par- ticular objects, the power is special or partic- ular. If the power be to create a new estate in any one, it is a power of appointment; if to divest or abridge an existing estate, a power of revocation.' A power coupled with an interest imports an interest in the thing itself, — a power en- grafted on an estate in the thing. ^ The power and the interest then unite in the same person, who, in executing the power, may act in his own name. He is not a substitute, but a principal; and the power survives the person who gives it.* If the donee of a power clearly intends to execute, and the mode is unexceptionable, that intention, how- ever manifested, whether directly or indirectly, pos- itively or by just implication, will make the execution valid and operative. Three classes of cases at least have been held to be sufficient demonstration of an intended execution of a power: where there is reference in the instrument to the power; a reference to the property, as the sub- ject, on which it is to be executed; or where the pro- ' Williams, Real Prop. 245. '4 Kent, 334. » [2 Washb. Real Prop. 305, 307, cases. As to naked power, generally, see Franklm v. Osgood, 14 Johns. R, 553 (1817), cases; as to powers in gross, Thorington V Thorington, 83 Ala. 491 (1886). * Hunt V. Rousmanier, 8 Wheat. 203-S (1823), Mar- shall, C. J. POWER 798 POWER vision in the instrument, executed by the donee, would otherwise be ineffectual or a mere nullity." It the will of the donee contains no expressed intent to exert the power, and it may reasonably be gathered from the gifts and directions that the purpose was to execute it, the will must be regarded as an execution. An appointment under a power is an intent to appoint carried out, and if made by will the intent and its exe- cution are to be sought for through the whole instru- ment.'^ The courts look at the design of the parties, and the substantial, rather than liie literal, execution of the power.3 When a power is given to executors to be executed in their official capacity, and there are no w-ords in the will warranting the conclusion that the testator, in- tended a joint execution of the power, as the office suiwives, the power will be construed as surviving. And courts of equity will lend their aid to uphold the power, in order to carry into execution the intention of the testator.^ If land is devised to a person, with general power to dispose of the same, an estate in fee-simple passes. But if the devise is for life, with power to dispose of the reversion, only a life estate passes; and if the dev- isee dies without having disposed of the reversion, it goes to the heir of the devisor.^ While at common law a married woman could not make a will, she could make an appointment by will: the latter concerning the estate of the donor of the power. "J A person, having a power for the benefit of another, cannot use it for his own benefit.' See further Appointment, 2; Discretion, 2. 3. Authority ia the departments of gov- ernment to do any particular act: as, the power in a legislature to make laws; power in a judge or court to decide what the law is, or to administer justice; power in the ex- ecutive to enforce the law. Power of aplpoirLtment. The appoint- ing power ; the power to select and indicate by name individuals to hold office and to ' Blagge V. Miles, 1 Story, 446-47 (1841), cases, Story, J. ; Funk v. Eggleston, 92 111. 5.34-4'/ (1879), cases; Gind- rat V. Montgomery Gas-Light Co., 82 Ala. 603-6 (1886), cases; White v. Hicks, 3.3 N. Y. 892-93 (1865), cases; Hutton V. Benkard, 92 id. 301-3 _(1883), cases; Sewall v. Wilmer, 132 Mass. 134 (1882), cases. 2 Blake v. Hawkins, 98 U. S. 326 (1878), Strong, J. ; Warner v. Connecticut Mut. Life Ins. Co., 109 id. 65-67 (1883). sHarker v. Eeilly, 4 Del. Ch. 80 (1871); ib. 77; 4 Kent, 344. 'Peter .«. Beverly, 10 Pet. *564 (1836); Osgood v. Franklin, 2 Johns. Ch. 19 (1816). 5 Funk V. Eggleston, 92 111. B33 (1879), cases. « Osgood V. Bliss, 141 Mass. 477-79 (1886), cases. ' Shanku Dewitt, 44 Ohio St. 242 (1886), cases. See generally Be Thomson's Estate, 37 Eng. B. 26-35 (1880), cases. discharge the duties and exercise the powers of office. I Constitutional powers are spoken of as granted or reserved; as express, expressed, and implied; as incidental or ancillary; as emmierated and non-enumerated or unenu- merated; as plenary; as legislative, judicial, and executive. " The powers not delegated to the United States by the Constitution, nor prohibited by it to" the States, are reserved to the States respectively, or to the peo- ple." ' "The Congress shall have Power To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested'-by this Constitution in the Gov- ernment of the United States, or in any Department or Officer thereof." ^ Executive power; judicial power; legislative power. "Judicial power "is authority to decide controversies and to ad- minister justice; "legislative power," au- thority to enact laws; "executive power," authority to enforce the laws. In particular, "judicial power" is that power by which judicial tribunals construe the Constitution, the laws enacted by Con- gress, and the treaties made with foreign powers or with the Indian tribes, and detfer- mine the rights of the parties in conformity with such construction.* '* Judicial power " is undoubtedly power to hear and determine; but this is not peculiar to the judicial office. Many of the acts of administrative and exec- utive officers involve the exercise of the same power. Boards for the equalization of taxes, of public woi;ks, of county commissioners, township trustees, judges of election, viewers of roads, all, in one form or an- other, " hear and determine " questions in the exer- cise of their functions, more or less directly affecting private as well as public rights. It may be conceded that power to hear and determine rights of property and of person between private parties is judicial, and can be conferred only upon the courts. But such a definition does not necessarily include the case of the governor of a State, like that of Ohio, empowered to remove any police commissioner, and cannot, there- fore, conflict with the constitutional provision confer- ring judicial power upon the courts.' See further Judicial. 1 Attorney-General v. Kennon, 7 Ohio St. 556 (1857). ^ Constitution, Amd. Art. X. s Constitution, Art. I, sec. 8, cl. 18. See Civil Eights Cases, 109 U. S. 18 (1883). ' Gilbert v. Priest, 65 Barb. 448 (1873), Mullin, P. J. See also -New Orleans, &c. R. Co. v. Mississippi, 102 U. S. 141 (1880). ' State, ex rel. Attorney-General v. Hawkins, 44 Ohio St. 109 (1886), Minshall, J. PEACTICABLE 797 PE^SUMERE Implied power. Such power as is nec- essary to carry into effect powers expressly granted. 1 See Consxitdtion; Cottrts; Deleqatds, Potestas, etc.; Discretion, 5; Goternment. PEACTICABLE. Compare Possible. An agreement to locate a railway station " at the nearest practicable point " within a mile of a court- house was held not to intend the nearest possible point, hut the nearest point at which the depot could be located at a reasonable and ordinary cost, with ref- erence to all the circumstances under which the work was to be done, and in view of the object and purpose inducing the contract.' PRACTICAL. Compare Practicable. A ''practical construction " of a constitution refers to practice sanctioned by general consent,' The "practical location" of a division line was held to be identical with an actual location.^ See Patent, 3; Principle, 8; Process, 3. PRACTICE. The rules adopted by a court to facilitate the transaction of business before it in a proper and orderly manner.^ Sometimes these rules are printed, and called "rules of practice;" sometimeg^ey are embodied in statutes, but perhaps as frequently they are unwrit- ten. In the larger sense, the mode of proceeding by which a legal right is enforced, as distin- guished from the law which gives or declares the right. Sometimes convertible with " pro- cedure."* The procedure in a court of justice, through the various stages of any matter, civil or criminal, de- pending before it. Rules of pleading tell what is the most efficient form to adopt in shaping pleadings. Bules of practice tell in what manner pleadings should be brought under the notice of the court, and what steps should be taken to obtain the benefit of them.'' Compare Procedure. See Error, 1, Commimis, etc.; Tkchnicalities; Usds, Mains, etc. FB,M. See Pre. PRECIPE. L. Command. ]. An original writ in the alternative, commanding the defendant to do the thing required or to show cause why he has not done it. Abridged from prcecipe quod reddat, command that he return. The writ issued where something ' People V. Brown, 3 Utah, 465 (1879)i •■'Wdoters v. International, &o. R. Co., 54 Tex. 300 (1881). » Farmers', &c. Bank v. Smith, 8 S. & R. 69 (1817). * Hubbell V. MoCulloch, 47 Barb. 394 (1860). » [Butler V. Young, 1 Hip. 279 (1872), Sherman, J.; Bowlies V. Brier, 87 Ind. 395 (1882). "Payson v. Minors, L. R., 7 Q. B. D. 333 (1881), Lush, Lord Justice. ' Hunter, Suit in Equity, 2-3. certain was demanded, incumbelit upon the defendant to perf oi-m. ' 3. A paper containing the particulars of a writ, for the instruction of the oflScer who is to issue it. Spelled also precipe. See Pre- cept. PR-ffilMIUM. L. Profit; consideration; price. " Premium " (g. v.) is the Anglicized word. Prsemium pudieitisB. Price of chastity. Compensation for illicit iutercour,se. Some- times termed prsemium pudoris, pay for shame, or disgrace. •An agreement, or security given, for future illicit intercourse, is incapable of Confirmation, or enforce- ment.' PR.a!MUNIRE. L. A corruption of prce-moneri, to fore-warn. The offense, af- fecting the king and his government, of maintaining the papal power — of introduc- ing a foreign power into the realm, and creating imperium in imperio, by paying that obedience to papal process which be- longs to the king alone.3 Statutes of this name were meant to repress the civil power of the pope. Prcemunire [facias), orig- inally the emphatic word in the writ for prosecuting the offense, became the name of the writ and of the offense itself.' The same penalties were subsequently applied to other offenses. PRJESTJMEBE. L. To take in advance of ; to take to be true without positive proof, but upon the basis of probability; to i)re- Bume, Prsesumptio. Supposition, assump- tion, presumption, q. ti. Omnia pr8esum.iiiitur contra spolia- torem. All things are inferred against one who destroys (or withholds) documentary evidence. See further Spoliation, 3. Omnia prsesumuntur rite et solem- nitur esse acta. All things are pre- sumed to have been done in due and solemn form. The principle is, that there is a disposition in the courts to uphold official, judicial, and other acts, rather than to render them inop- erative. Where, then, there is general evi- dence of acts having been legally and regu- larly done, proof of circumstances, essential to the validity of those acts, and by which > 3 Bl. Com. 274. 'See 1 Story, Eq. §§ 296, 299; Contr. § 670. ' [4 Bl. Com. 103, 115, 428; Coke, Litt. 189." PR^SUMERE 793 PREAMBLE they are accompanied in most instances, will be dispensed with.^ The law presumes that every man In his private and official character does his duty, until the contrary is proved ; that all things are rightly done, unless the circumstances of the case overturn this presumption. Thus, it presumes that a man acting in a public office has been rightly appointed; that entries in public books were made by the proper officer; that, upon proof- of title, matters collateral thereto are consistent and regular.'* A superior court of general jurisdiction, proceeding, within the general scope of its powers, is presumed to act rightly. All intendments of law are in favor of its acts. It is presumed to have jurisdiction to give the judgment it renders, until the contrary appears — jurisdiction of the cause or subject-matter of the ac- tion, and of the parties. Tl^e former will generally appear from the character of the judgment, and will be determined by the law creating the court or pre- scribing its general powers. The latter should regu- larly appear by evidence in the record of service of process upon the defendant or his appearance in the action. But where the former exists, the latter will be presumed. The rule is different with respect to courts of special and limited authority: there is no presumption pf law in favor of their jurisdiction ; that must affirmatively appear by sufficient evidence or proper averment in the record, or their judgments will be deemed void on their face.^ Presumptions as to the judgments of superior courte only arise with respect to jurisdictional facts concerning which the record is silent. Presumptions are only indulged to supply the absence of evidence or averments respecting the facts presumed. They have no place for cbnsideration when the evidence'is disclosed or the averment is made. When, therefore, the reqord states the evidence or makes an averment with reference to a jurisdictional fact, it will be under- stood to speak the truth on that point, and it will riot be presumed that there was other or different evi- dence, or that the fact was otherwise than as averred. Were this not so it would never be possible to attack collaterally the judgment of a superior court, although a want of jurisdiction might be apparent upon its face; the answer to the attack would always be that, notwithsta|nding the evidence or the averment, the necessary facte to support the judgment are pre- sumed. These presumptions are also limited to juris- diction over persons within the territorial limits of the courts, persons who can be reached by their process, and also over proceedings which are in accordance with the course of the common law.s " The extent to which presumptions will be made in support of acts depends very much upon whether they are favored or not by law, and also on the nature of the fact required to be presumed." The maxim does 1 3 Best, Ev. § 353; 1 Greenl. Ev. § 19. 2 Bank of United States v. Dandridge, 12 Wheat. 69- .70 (18S7), Story, J. See also 30 Wall. 350; 115 U. S. 451 ; 18 F. R. 36; 4 Hughes, 519. 3 Galpin v. Page, 18 Wall. 365-73 (1873), cases, Field, J. ; Comett v. Williams, 30 id. 350 (1873). not apply to give jurisdiction to magistrates or other inferior tribunals, nor to give jurisdiction in proceed- ings which are not according' to the common course of justice. ' Prsesumptio juris. A presumption of law. Prsesumptio juris et de jure. A presumption of law and of right. The former characterizes a rebuttable, the latter an irre- buttable, presumption. The latter was originally intended to express intense or "superlative" presumptions. Difficulty being felt in finding suitable limits for such presumptions, doubt as to their force was got rid of by making them irre- buttable. Our courts, while holding to the old phrase- ' ology, are so far contracting the range of this class of presumptions that no perfect individual of the class can be found.^ PR.ffiTOR. See Judex, 1. PRAYER. Petition; request. In a bill in equity, a request that the court will grant the relief desired ; also, that part of the bill in which the request is made. Such prayer is for process, for special or general relief, or for both. A common formula for the con- clusion is " And he will ever pray, etc." See Equity; Relief, 3. Compare Orator; Petition; Precatory. On prayers for instruction, see Charge, 3 (3, c). PRE. The Anglicized form of the Latin preposition prce, before. In compounds, ex- presses priority of time, place, or rank. PREAMBLE.3 An introduction or pref- ace. 1. A clause introductory to, and explana- tory of, the reasons for estabUshing a consti- tution. Preamble} to the Constitution of the United States : " We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domes- tic Tranquillity, provide for the common defence, pro- mote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." This preamble has been constantly referred to by statesmen and jurists to aid them in expounding the provisions of the Constitution.* See Welfare. 3. The introductory clause or section of a statute, ordinance, or other like enactment. Usually recites the motives for passing the enact- ment. Eef erred to when doubts and ambiguities arise upon the words of the enacting part. Its office is to expound powers conferred, not substantially to create 1 Sabariego v. Maverick, 134 U. S. 334 (1888); 3 Best, Ev. §§ 353, 363. 23 Wbart. Ev. §§ 1338-37; 1 Greenl. Ev. § 15, note; 3 Best, Ev. § 306. 8 L. prce-ambulare, to go before. , * 1 Story, Const. §§ 460, 458-517; Chisholm v. Georgia, 3 Dall. 474 (1793), Jay, C. J. PREBEND 799 PRECINCT powers. It serves as a guide to the intentions of the framers, -B-hich is only the first stage on the road to construction. Not being an essential part of a stat- ute, it is frequently omitted. * 3. A recital in a contract declaring the in- tention of the parties. See Contract. FBEBEND. An endowment in land, or a pension in money, given to a cathedral or conventual church in prcebendam: for main- taining a secular priest or regular canon as a prebendary. 2 PRECAKIOITS. Revocable at the will of the creator or owner: as, a precarious right or loan. See Precaeium. Compare Precatory. The circumstances of an executor are " precari- ous " ijphen his conduct evidences such improvidence as, in the opinion of prudent men, endangers the se- curity of the trust estate." PRECARIUM. L. A thing held by en- treaty — at the will of another. A contract by which a thing was delivered into the custody of a person until such time as the owner might want it back.* PKECATORY.5 Describes an expression in a will which requests that something be done — recommendatory words. Courts of equity have gone great lengths in creat- ing implied or constructive trusts from such words. The tendency is to discourage extending the doctrine. Whenever the object, or the property, of the sup- posed trust is not certain or definite, or a clear discre- tion and choice to act is given, and whenever prior dis- positions Import uncontrollable ownership, the comts will not create a trust from precatory words." Words of entreaty, recommendation or wish, ad- dressed by a testator to a devisee or legatee, make him a trustee for the person in whose favor such ex- pressions are used, provided the testator has pointed out with clearness the objects of the trust, and the subject-matter on which it is to attach or from which it is to arise and be administered.' U there be a trust sufficiently expressed and capa- ble of enforcement, it does not disparage, much less ■ Copeland v. Memphis, &c. R. Co., 3 Woods, 600 (1878), Woods, J.; Beard v. Eowan. 9 Pet. *317 (1835); Commonwealth v. Smith, 76 Va. 484-85 (1882), cases; IB Cent. Law J. 27-29 (1884), cases — Irish Law Times; 15 Johns. 116; 1 Pick. 251; 69 Pa. 3.33; Dwar. Stat. 107. s Randolph v. Milman, L. B., 4 C. P. *in a868j. 'Shields v. Shields, 60 Barb. 61 (1870), Potter, J. 4 See Story, Bailm. §§ 227, 253 6; Hadley, Rom. Law, 178. 5 L. precari, to pray, entreat, request. •2Story, Eq. §§ 1086-70. 'Warner v. Bates, 98 Mass. 276-78 (1867), cases, Bigelow, C. J. ; Handley v. Wrightson, 60 Md. 198-206 (1883), cases; Knox v. Knox, 59 Wis. 172, 178-85 (1884), cases; Howard v. Carusi, 109 U. S. 725 (1884); 44 Am. Dec. 365, 369; Hawk. Wills, 159 (1885), cases. defeat it, to call it "precatory." The question of its existence depends, after all, upon the intention of the testator as expressed by the words he has used, ac- cording to their natural meaning, modified only by the context and the situation and circumstances of the testator when he used them. On the one hand, , the words may be merely those of suggestion, counsel, or advice, intended only to influence, and not to take away the discretion of the legatee growing out of the right to use and dispose of the propertj^ given as his own. On the other hand, the language may be im- perative in fact, though not in form, conveying the intention of the testator in words equivalent to a com- mand, and leaving to the legatee no discretion to de- feat his wishes, although there may be a discretion to accomplish them by a choice of methods, or even to defeat and limit the extent of the interest conferred upon his beneficiary.* PRECEDENCE. See Minister, 3 ; Pre- cedent; Priority; Privilege; Rank. PRECEDENT.^ 1, adj. Going before; to happen or be performed before any right under it can vest or be claimed : as, a preced- ent condition , q. v. 3, n. An authoritative example. A decision cited in support of a proposi- tion.' See further Decisum, Stare, etc. A draught of a deed, pleading, will, or other instrument serviceable as a model or form. As the title of a law book, " precedents " denotes a collection of forms approved by usage and, perhaps, by judicial decision. PRECEPT. A command or mandate in writing. Of equal import with writ or pro- cess.-' See Precipe. PRECINCT. The limits of an officer's jurisdiction, or of an election district. As used in the return to a process, the ter- ritory within which the officer may legally discharge the duties of his office.* A general word, indicating any district marked out and defined. In a given connec- tion, may signify a district inferior to a county and superior to a township." In Wisconsin, formerly referred to certain districts having similar functions toithose of towns, and which passed away upon the formation of the first legislative ■ Colton V. Colton, 127 U. S. 312-21 (1888), cases, Matthews, J. See generally 20 Cent, Law J. 63-66 (1885), cases; 27 Am. Law Reg. 459-63 (1888), cases; 1 Perry, Trusts, §§ 112-23, cases. '1. Pre-oed'-ent. 2. PrSc'-e-dent. > On the value of, see 10 Va. Law J. 582 (1886). • Adams v. Vose, 1 Gray, 58 (1854), Dewey, J. » Brooks V. Norris, 124 Mass. 173 (1878), Colt, J. •Union Pacific E. Co. -v. Cheyenne, 118 U. S. 524 (1886), Bradley, J. PRECLUDE 800 PREFER districts after the admission of the State into the Union. The term is no longer used, ezcept, perhaps, occasionally as interchangeable with election district. * PRECLUDE. See Estoppel. Preoludi non. L. Ought not to be barred. The clause in a replication to a plea in bar, " that by reason of anything in said plea alleged, plaintiff ' ought not to be barred " from maintaining his said action." The two words were the most emphatic" in the Latin writ. PRE-CONTBACT. See Contract; Maeriage. PREDOMINAITT. Something greater or superior in power and influence to others, with which it is connected or compared : as, a predominant motive.'^ PRE-EMPTION.3 1. The first buying of atfiing. A privilege allowed the king's purveyor up to 1661.* 3. The right to purchase at a fixed price in a limited time in preference to others. ^ The exchisive right in a person to purchase a quantitj' of the public lands in consequence of having complied with the laws of Congress upon the subject.'' Pre-emptor; pre-emptioner; pre- emptionist. He who holds such prior right of purchase. One who by settlement upon the public land or by cultivating a portion of it has obtained the right to purchase a por- tion of such land, to the exclusion of all other persons. " Pre-emption claimant. One who settles upon land subject to pre-emption, with the intention to acquire its title, and has com- plied, or is proceeding to comply, in good faith, with the requirements of the law, to perfect his right to it.^ All public lands are subject to pre-emption, except land included in reservations, land within the limits selected as the site of a city or town, laud actually settled and occupied by trade and business and not for ■agriculture, and lands on which are found or situ- ated any known salines or mines. Any adult citizen of the United States, or a foreigner who has filed his- declaration to become a citizen, who makes a settle- 1 Chicago, &o. E. Co. v. Town of Oconto, 50 Wis. 196 (1880), Orton, J. 2 Matthews v. Bliss, 32 Pick. 53 (1839), Shaw, C. J. 3 L. pi'CB, before; imere, to take. Also printed pre- emption. ■I 1 Bl. Com. 287. ' Bowers v. Keesecker, 14 Iowa, 30" (1862): Davenport ■u. Farrar, 1 Scam. 317 (1836), Lockwood, J. « [Dillingham v. Fisher, 5 Wis. 480 (1856), Whiton, C. J. ' Hosmer v. Wallace, 97 U. S. 631 (1878), Field, J. ment in person, and inhabits and improves the same, and shall erect a dwelling thereon, may enter, for one hundred and sixty acres, with the land-register, upon paying the minimum price of such land, and proving settlement. But one who has three hundred and twenty acres in any State or Territory cannot pre-empt; nor can one who quits his residence on his own land to re- side on public lands in the same State or Territory. Nor can any one file a second declaration for another tract.' A party by mere settlement, with declared intention to obtain a title, does not thereby acquire such inter- est as to deprive Congress of the power to devest it by a grant to another part.y. The power of Congress ceases when all the preliminary acts, prescribed for the acquisition of the title, have been performed by the settler. Then the settler's interest is vested, and he is entitled to a certificate of entry from the local land-office, and, ultimately, to a patent from the United States. Until such entry, the settler has only a privilege or preference of pre-emption in case the lands are offered for sale in the usual manner. The United States only declare by the pre-emption laws that if lands are thrown open for sale, the preference of sale, in limited quantities, shall be in the first person who settles and improves them.^ The pre-emption laws imperatively require a resi- dence both continuous and personal upon the land. The settler may be excused for temporary absences caused by well-founded apprehension of violence, by sickness, by the presence of an epidemic, by judicial expulsion, or by engagement In the military or naval service. 8 See Land, Public; Patent, 2. PRE-EXISTING. Referring to a debt, will include every debt previously contracted, whether payable or not. This, at leasts is the meaning in the insolvent law of Massachusetts.* Compare Previous; Prior. PREFER. 1. To bring or lay a matter before a court: as, to prefer a criminal charge, a petition in divorce. 3. To give advantage, priority (q. v.), or privilege to. Specifically, to favor one or more creditors over others, wlien the debtor has not the means with which to pay all alike. In this sense are used the expressions pre- ferred or preferential — assignment, bonds, creditors, dividend, shares, stock. See Div- idend, 3 ; Stock, 3 (8). "Preferred " means that the thing to which it is at- tached has some advantage over another thing of the same character, which but for this advantage would be like the other." 1 R. S. §§ 2257-^1. 2 The Tosemite Valley Case, 15 Wall. 77 (1872), cases. Field, J. » Bohall V. Dilla, 114 U. S. 51 (1886), Field, J. " Fletcher, Appellant, 136 Mass. 342 (1884). » State V. Cheraw, &c. E. Co., 16 S. C. 530 (1881), Simp- son. C. J. PREGNANCY 801 PREJUDICE Preference. A payment to one creditor which will or, possibly, may give him an ad- vantage over others. 1 In the absence, of a bankrupt law, a failing debtor may prefer one creditor to another by a deed, a judg- ment, or other means, except, in some States, by an assignment in trust. The effect may be to delay a creditor not preferred, in fact to prevent his obtaining payment at all; but if the honest intent was to pay ^he preferred debt, the transaction is not invalidated bj the statute of 13 Elizabeth. That statute Is aimed at intended fraud, — at transfers of property or prefer- ences which are not bona fide, but collusive arrange- ments " to delay, hinder, or defraud " particular cred- itors.' The mere existence of a desire that a particular creditor may succeed by suit,, judgment, execution, and levy, in obtaining a preference, is not sufficient to establish that the debtor "procured or suffered" his property to be taken on legal process with intent to prefer such creditor, if the proceedings were the usual proceedings in a suit, unaided by any act of the debtor, either by facilitating the proceedings as to time or method, or by obstructing other creditors who Other- wise would obtain priority." If debtors could not give preferences to bona fide creditors, while they yet retain dominion over their property, the transaction of business would be em- barrassed.* See Conveyance, 2, Fraudulent; Suffer. PREGN-AJTCY. Being with child. Existing at the time of marriage by another'than the husband, is ground for divorce, provided the hus- band was without knowledge of the woman's condi- tion, either from her confession or appearance.' ' [Re Hapgood, 2 Low. 203 (1873), Lowell, J. 2 York County Bank v. Carter, 38 Pa. 453 (1861), Strong, J.; Worman v. Wolfersberger, 19 id. 61 (1853); Smith V. Craft, 11 Biss. 347 (ia52); Clarke v. White, 12 Pet. 200 (1886); Lucas v. Claflin, 76 Va. 276-79(1882), cases; Tootle v. Coldwell, 30 Kan. 134 (1883), cases; Jewett V. Noteware, 30 Hun, 194 (1883), cases; Sartwell V. North, 144 Mass, 192-95 (1887), cases; 48 Ala. 376; 10 Cal. 277; 19 id. 46; 4 Del. Ch. 5.36; 4 B. Mon. 296; 13 K. L 463; Bump, Fraud. Conv. 220, cases. ' Brown v. Jefferson County Bank, 19 Blatch. 316-17 (1881), Blatchf ord, J. ; Wilson v. City Bank of St. Paul, 17 Wall. 483-87 (1873), Miller, J. ; Jewell t-. Knight, 123 U. S. 434 (18^7), cases. ' Campbell v. Colorado Coal & Iron Co., 9 Col. 64-65 (1885), cases. As to assignments with preferences, see Woonsocket Rubber Co. v. Falley, 30 F. R. 808, 811-12 (1887), cases; Weil v. Polack, ib. 813 (1887), cases. 5 See Hoffman v. Hoffman, 30 Pa. 417, 481 (1858); Baker v. Baker, 13 Cal. 87, 92-106 (1869), cases; Rey- nolds V. Reynolds, 3 Allen, 609 (1862); Leavitt v. Leav- itt, 13 Mich. 452 (1865); Foss v. Foss, 12 Allen, 26 (1866); Crehore v. Crehore, 99 Mass. 330 (1867); Hedden v. Hedden, 21 N. J. E. 61 (1870); Farr«. Farr, 2 McArthur, 35 (1875); Allen's Appeal, 99 Pa. 198 (1883); State v. Shoemaker, 62 Iowa, 344 (1884); Sissung v. Sissung, Sup. Ct. Mich. (1887), cases; 18 Cent. Law J. 115-16 (51) A woman "with child" is a "pregnant woman,' witliin the meaning of a statute punishing assault with intent to procure a miscarriage.' See Quicken- ing. As to pretended or alleged pregnancy, see Re- prieve; Venter, 1. Pregnant. In pleading, see Affirma- tive (2) ; Negative. PREJUDICE. Fore-judgment, pre-judg- ment; detriment, disadvantage. A prejudice is a pre-judgment. The pop- ular meaning involves some grudge or ill- will, as well as a pre-conceived opinion. A disqualifying prejudice in a juror is a fixed judgment or opinion as to guilt or inno- cence.* A man cannot be "prejudiced" against another without being "biased "against-him; but he maybe biased without being prejudiced.' Implies nearly the same thing as opinion; a pre- judgment of the case, and not necessarily enmity or ill-will against a party. A statute excluding as a juror a person who has " formed or expressed an opinion, or is insensible of any bias or prejudice,"" in- tends to exclude any person who has made up his mind, or formed a judgment in advance. Yet. the opinion or judgment must be something more than a vague impression, formed from casual conversations with others, or from reading imperfect newspaper re- ports. The opinion must be upon the merits of the question, and be such as would be likely to bias or prevent a candid judgment, upon a full hearing of the evidence. If one has formed what in ^ome sense might be called an opinion, but which yet falls short of exciting any bias or prejudice, he may consistently discharge bis duty as a juror.* The right to a trial by an impartial jury does not mean that the jurors must have no prejudice or opin- ion as to the policy of enforcing the laws.* See fur- ther Bias ; Impartial, 1 ; Opinion, 2. The " prejudice " in the mind of a judge which will afford ground for a change of venue refei-s to an opinion in regard to the case, formed beforehand, without examination, or a prepossession; not, an opinion on the questions of law involved; » prejudice against the party personally.' Without prejudice. That what is said or done is not(l) to be construed as an ad- mission of liability, or (3) to affect the rights (1884), cases; 1 Bish. Mar. & D. §§ 179-91, cases; 44 Am. B. 112, cases. 1 Eckhardt v. People, 83 N. Y. 464 (1881). - ' Willis V. State, 12 Ga. 448-50 (1863), Nisbet, J. 8 Commonwealth v. Webster, 5 Cush. 297 (1850), Shaw, C. J. 4 United States v. Noelke, 17 Blatch. 562-63 (1880), cases, Choate, J. ; 3 McCrary, 237. ' Hungei-f ord ■«. Cushing, 2 Wis. *405 (1863), Whiton, Chief Justice. " Wheeler v. Lawson, 57 Wis. 402 ( PRELIMINARY 802 PREMISES of the party before the law or his standing in court. Thus, an offer in compromise (g. v.) of litigation is presumed to have been made *' without prejudice." ' A letter marked "without prejudice," and the re- ply, although the latter is not so marked, cannot be used as an admission.^ When a bill in equity is dismissed without a con- sideration of the merits, the practice is for the court to express in its decree that the dismissal is "without prejudice." An omission of the qualification will be corrected. 8 The decree of dismissal is not a bar to a subsequent suit for the same cause of action, if the complainant, in another suit, can obviate the defects of the existing bill.* PEELIMINARY. See Injunction; Peace, 3, Articles of; Peoof. PREMEDITATE. To think of in ad- vance; to determine upon beforehand; to intend, design. To plan, contrive, or scheme beforehand. ^ A " premeditated design" to kill means simply an intent to kill. Design means in- tent, and both words essentially imply " pre- meditation." Premeditation does not exclude sudden intent, and need not be slow or last long.' " Premeditated " has been invariably defined by the supreme court of Missouri as " thought of before- hand for any length of time, however.short." ' The execution of the guilty purpose must be settled upon reflection. A full and determined pm*pose is necessary, as distinguished from an impulsive fatal act. No particular period of time is requisite, but still deliberation must take place. ^ " Deliberation and premeditation " imply that the act has been " done with reflection," " conceived be- forehand." Some time for deliberate reflection is necessary.*" A charge of killing with " premeditation " means that there was design or intent before the act; that is, that the accused planned, contrived and schemed be- forehand to kill. A killing with " deliberation " means that the act was determined upon after reflection, and that " the consequences, chances, and means were weighed, carefully considered and estimated." *" A design to kill must precede the killing by some 1 West V. Smith, 101 U. S. 273 (1879), cases. ! Hoghton V. Hoghton, 15 Beav. 321 (1858). s Durant v. Essex Company, 7 Wall. 109 (1868), Field, Judge. * County of Mobile v. Kimball, 102 U. S. 705 (1880), Field, J. ; Eagsdale v. Vicksburg, &c. R. Co., 63 Miss. 488 (1884); Mobile, &c. E. Co. v. Davis, ib. 271 (1884). » [Craft V. State, 3 Kan. 483 (1866), Crozier, C. J. » [Hogan V. State, 36 Wis. 244 (1874), Ryan, C. J. ' State V. Harris, 76 Mo. 363 (1882), Norton, J. ' People V. Mangano, 89 Hun, 262 (1883), Cullen, J. • Simmerman v. State, 14 Neb. 569 (1883), Lake, C. J. >° State V. McGafflu, 36 Kan. 319 (1887), cases, John- ston, J. appreciable space of time. But the time need not be long. It must be suiflcient for some reflection and consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. When the time is sufBcient for this, it matters not how brief it is. The mind acts with a celerity which it is sometimes impossible to measure, and whether a deliberate and premeditated design to kill was formed must be determined from all the circum- stances of the case.' The killing must be a pre-determined killing upon consideration, and not a sudden killing' upon a mo- mentary excitement and impulse of passion, upon provocation given at the time, or so recently before .as not to allow time for reflection. This design may be formed at the moment of the commission of the act.* The law leaves the existence of a fully formed in- tent as a fact to be determined by the jury from all the facts in evidence.' See DELmERATioN, 3; .Drunkenness; Murder. PREMISES.* Something sent or put be- fore: foregoing statements; facts already mentioned ; introductory matter. 1. (1) In a bill in equity, the stating part, the narrated facts upon which the complain- ant expects to recover. (2) In a declaration, the statements, in the early part, out of which the defendant's liability gi-ows : as, in the ex- pressions, "by reason of the premises," "in consideration of the premises." 2. In a deed, all that precedes the haben- dum; that is, the date, parties, consideration, grant, description, recitals, exceptions, etc' The premises being the part of a deed in which the thing is granted, the habendum, which serves to limit the certainty of the estate, cannot increase the grant.* 3. A distinct portion of realty; land, or lands; tenements, buildings.'?. In common parlance, land with its ap- purtenances. In a conveyance, "the thing demised or granted by the deed." 8 In a policy of insurance on a vessel, " insured prem- ises " means the vessel." In a policy upon a habitation, covers the whole property insured — dwellings, out-houses, and appur- tenances, which together compose the establishment. ' "^ ' People V. Majone, 91 N. "X". 812 (1883), Earl, J. 'McDaniel v. Commonwealth, 77 Va. 284 (1883), Hinton, J. ' Commonwealth v. Drum, 58 Pa. 16 (1868), Agnew, J. * L. prcemissa (sententia), that which is stated be- forehand. ' See 8 Bl. Com. 298; 44 Me. 416; 15 Md. 63. • Brown u Manter, 81 N. H. 633 (1869). 'See Bowers v. Pomeroy, 81 Ohio St. 190 (1871); 4 Duer, 191. 8 Zinc Co. V. Franklmite Co., 13 N. J. E. 331 (1861), Green, Ch. ; 15 id. 468. "Reidu Lancaster Fire Ins. Co., 19 Hun, 386(1879). " Herman v. Adriatic Fire Ins. Co., 45 N. Y. Super. PREMIUM 803 PRESCRIPTION "Premises adjacent to" a place where liquor is sold, embraces a public street or alley fronting on the place.' In a lease of a factory, ** premises " does not include a portable machine worked by a belt attached to the factory." The word never describes personalty ' See Contained; Locus, In quo; View. PREMIUM.* Reward, recompense ; price ; the sum paid or to be paid. To a " wager " or " bet " there are two parties. To a " premium " or reward there is but one party until the act, thing, or purpose for which it is offered, has been accomplished. A " premium " is a reward or recompense for some act done; a " wager " is a stake upon an uncertain event. In a " premium " it is known who is to give before the event; in a " wager " it is not known until after the event.' Compare fur- ther Bet; Bounty; Prize; Wager, 3. At a premium. At a price higher than the nominal value; as, when it is said that a share of stock, or exchange, is at a premium. Premiiim note. A promissory note given for the price of insurance. Premium of insurance. The sum paid for undertaking the risk in a contract of insurance. The payment of the annual premium in life insur- ance is a condition subsequent only, the non-perform- ance of which may incur a forfeiture of the policy, or may not, according to circumstances. The insured may show a waiver of the condition, or a course of conduct which gave him a just and reasonable ground to infer that a forfeiture would not be exacted ' See Inburakce. PBENDEE.; PRElfDEE. F. To take, seize. The right to take a thing before it is offered. Whence " it lies m prendre, but not in render.'" See Profit, A prendre. PREPARATION. See Attempt ; Overt. PREPENSE.' Aforethought; premedi- tated : as, malice prepense, q. v. PREPONDEBANCE.8 Superiority of weight ; outweighing. More, therefore, than "weight." 9 402 (1879); Northwestern Mut. Life Ins. Co. v. Germania Fire Ins. Co., 40 Wis. 446 (1876). 1 Bandalow v. People, 90 111. 218 (1878). » Holbrook v. Chamberlin, 116 Mass. 161 (1874). ' Carr v. Fire Association, 60 N. H. 520 (1881). * L. prcEmntm, profit, advantage. See PiiaaiinM. • Alvord V. Smith, 63 Ind. 62 (1874), Biddle, J. " Thompson v. Knickerbocker Life Ins. Co., 104 U. S. 260 (1881), Bradley, J. On the effect of delivering a pol- icy without payment of premium, see 85 Alb. Law J. 104-5 (1887), cases. ' F. pre-penser, to think beforehand. * L. proB-ponderare, to outweigh. • Shinn v. Tucker, 37 Ark. 588 (1881), Eakin, 3. A mere preponderance of evidence, however slight, must prevail in civil cases. But to sustain a finding of crime, the preponderance must be sufficient to out- weigh the opposing evidence, including evidence of good character, if any, and the presumption in favor of innocence.' In a civil case, the law does not require that the jury be convinced beyond all reasonable doubt, much less beyond any doubt; they must determine the issue upon the weight or preponderance of evidence.'' See further Doubt, Reasonable; Fair, 1. PREROGATIVE.3 That special pre- eminence which tlie king hath over and above all other persons, and out of the course of the common law, in right of his regal dignity. That law in case of the king which is law in no case of the subject.* According to Vattel, the " prerogatives of majesty " are all the prerogatives without which the sovereign command, or authority, could not be exerted in the manner most conducive to the public welfare. One of these prerogatives is the right of eminent domain,' Prerogative writs. Certiorari, prohi- bition, procedendo, mandamus, quo war- ranto, and habeas corpus: writs which do not issue without showing why the extraor- dinary power of the crown is called to the party's assistance.'' Some of the prerogative writs have been, in this country, largely shorn of their prerogative character, so far as their general use is concerned.^ In the United States, the cases proper for the issue of prerogative writs are largely defined by statutes. Before the passage of these statutes no such writ is- sued purely of right, but in the exercise of a sound judicial discretion, which took into consideration the general welfare of the community. See the writs named. PRESCRIPTION.8 That which is de- clared, published, c* directed beforehand. 1. Municipal law is " a rule prescribed." That is, the resolution of the legislator is to be notified to the people who are to obey it, before its commencement as a law. This may take place by universal tradition and long practice, which supposes a previous publication, as in the case of the common law; by viva voce proclama- tion; or by writing, printing, or the like.» The constitutional provision that " a jury trial may 1 Hills V. Goodyear, 4 Lea, 241-43 (1880), cases. ' Whitney v. Clifford, 67 Wis. 157-58 (1883). ' L. prce, before ; rogare, to require, demand. * 1 Bl. Com. 239; 37 Wis. 443. ' Charles River Bridge v. Warren Bridge, 11 Pet. *641-42 (1837); Vattel, Law of Nations, § 45. « [3 Bl. Com. 132; 3 Steph. Com. 629. ' Wheeler v. Irrigation Co., 9 Col. 252 ( 8 L. prcE-scribere, to write beforehand. » [1 Bl. Com. 45. PRESCKIPTION 804 PRESENCE be waived in the manner to be prescribed bylaw," contemplates actual legislation upon the subject.' "Prescription" of a statute is necessary to give it effect. There are other modes of publication than that by the session laws. The doings of the legisla- ture are necessarily public, and the journals of each house are required to be published regularly. Every enactment is, therefore, published in the sense in which publication is intended in the word "pre- scribed," though, by some oversight, it is omitted from the annual volume of laws." Compare Promdl- &ATE. 3. In the Roman law, prcescriptio was an exception written in front of the plaintiff's pleading. It became applied exclusively to the prmscriptio longi temporis, etc., or the prescription founded on length of posses- sion,3 which see, below. 3. " When a man can show no other title to what he claims than that he and those under whom he claims have immemorially used to enjoy it." * Whence prescriptible, imprescriptible, prescriptive. All prescription must be either in a man and his ancestors, or in a man and those whose estate he has, which last is called prescribing in a que estate iguorum statum). Nothing but incorporeal heredit- aments can be claimed by prescription; as, a right of way, or a common. No prescription can give title to lands of which more certain evidence may be had; and it musL always be laid in him that is tenant of the fee: since usage beyond time of memory cannot be predicated of any lesser estate. Nor, again, can it be for a thing which cannot be raised by grant: for the law allows prescription only in supply of the loss of a grant, and, therefore, every prescription presup- poses a grant to have existed.* Title by prescription is a right which a pos- sessor of land acquires by reason of his ad- verse possession during a period of time fixdd by law, and where it does not originate in fraud, and is under a claim of right.s Prescription is a legal fiction to quiet ancient pos- session.^ It rests upon the presumption that there was a grant which by lapse of time (usually twenty years) has be- come lost. ' The presumption is rebuttable.' The doctrine is broader than that of a statute of limitations, although based upon analogous principles of repose to society. ^ "What the primary owner has lost by his laches, 1 Exline v. Smith, 5 Cal. 112 (1885). apeterman v. Huling, 31 Pa. 436 (1858), Strong, J. 3 Bandar's Justinian, 47, 136; Maine, Anc. Law, 275. 4 3 Bl. Com. 263-66. 6 Burden u. Blain, 66 Ga. 170 (1880), Crawford, J. a Folsom V. Freeborn, 13 R. I. 205-f (1881), cases. 'Brookline v. Mackintosh, 133 Mass. 226 (1883); Thomas v. England, 71 Cal. 458 a886). B Bozeman v. Bozeman, 83 Ala. 391 (1886). the other party has gained by continued possession, without question of his right." This is the founda- tion of the doctrine, which, in the English law, is mainly applied to incorporeal hereditaments, but which in the Roman law, and the codes founded on it, is applied to property of all kinds. ^ See Use, 3, User. 4. To fill a druggist's prescription is to fur- nish and combine the requisite materials in due proportion as directed. ^ When a druggist, in good faith, recommends a pre- scription as that of another person, and, at the re- quest of his customer, fills it, charging only for the drugs aijd for compounding them, he is not responsi- ble for injury that may result from the use of the al- leged remedy. 2 See Druggist. PRESENCE, Being in a particular place. Actual presence. Being bodily in the precise spot indicated. Constructive pres- ence. Being so near to, or iU such relation with, the parties actually in a designated place, as to be considered, in law, as in the place. 3 In the cdmmission of crime, not always an actual immediate standing by, within sight or hearing of the fact; may be a constructive presence, as when one commits a robbery or murder and another keeps watch at a convenient distance.^ See Accessary; Principal, 5. Does not depend upon whether a person can be dis- tinctly seen.^ Obscene words uttered in the hearing of a female, are used in her presence; especially so, when ad- dressed to her by name.^ "In the presence of the testator" who can see, means within his sight, at reasonable proximity^ Statutes of wills do not make the test of the validity of a will to be that the testator must see the witnesses subscribe their names. They must subscribe "in his presence; " but in cases where he has lost or cannot use his sense of sight, if his mind and hearing are not affected, and he is sensible of what is being done, and the witnesses subscribe in the same room, or in such close proximity as to be within the line of vision of one in his position who could see, and within his hear- ing, they subscribe in his presence.^ Statutory provisions which require that a will be signed in the presence of the testator are intended to enable him to see that the persons, he confides in are those who attest, and to prevent a, false paper being 1 Campbell v. Holt, 115 U. S. 633 (1885), Miller, J. ; Angell, Limitations, §§ 1, 2. See also 51 N. H. 329; 11 Lea, 388; 32 Pa. 398; 38 La. An. 318. 2 [Ray V. Burbank, 61 Ga. 511 (1878), Bleckley. J. s [Baldwin u. Baldwin, 81 Va 410 (1886): Bouvier's Law Diet. 4 4 Bl. Com. 34. e People %). Bartz, 53 Mich. 495 (1884). 6 Brady v. State, 48 Ga. 313 (5873); 1 Keyes, 66. ' Kay V. Hill, 3 Strob. 301 (1848). 8 Riggs V. Biggs, 135 Mass. 241 (1883), Morton, C. J. PRESENT 805 PRESIDENT imposed upon them. "Presence "is the opposite of absence; it means in company with, within the view of, in the same room with the testator, coupled with consciousness on his part of such proximity.^ As to the presence of the husband when a wife is acknowledging a deed, see Examination, 5. As to presence in the law of estoppel, see Stand By. PRESENT. 1, adj. (1) To be in a desig- nated place, actually, or by construction, of law. See Presence. (2) Now existing ; neither ended nor yet to begin ; neither past nor future : as, present — time, estate, use, enjoyment, qq. v. ^bequest to a "present" attending physician, re- fers to the physician in attendance at the date of the wiil." Presently. Now ; at once ; immediately, A jointure takes effect " presently after the death of the husband; " ^ and a donation viortis causa "pres- ently belongs to the donee," in case the donor dies.* 3, V. (1) To ofiEer for acceptance or pay- ment. Presentment. Producing or tendering, according to the terms of either instrument, (1) a bill of exchange to the drawee for ac- ceptance or to the acceptor for payment ; or (3) a promissory note to the maker for pay- ment.' Presentment of a bill is to be made on the drawee that he may judge of the genuineness and of the right of the holder to receive the contents, and that he may obtain immediate possession of the bill upon payment of the amount." Ordinarily, the instrument should be produced, so that, upon payment, it may be delivered up.' See Ac- cept, 2; Negotiable; Place, Of payment. (2) In criminal law, to find, represent, or report officially. Presentraent. The notice taken by a gi-and juiy of an offense from their own knowledge or observation, without a bill of indictment being laid before them.* Upon this presentment an indictment is framed. In Massachusetts, an indictment begins " the jurors on their oath present." In some other jurisdictions, where the offense is continuing, the charge is that the "Baldwin v. Baldwin, 81 Va. 410-14 (1886), cases. Lacy, J.; Neil v. Neil, 1 Leigh, 11 (1889), Carr, J. See generally 17 Cent. Law J. 413-47 (1883), cases. ' Everett 1). Carr, 59 Me. 333 (1871). '2B1. Com. 137. < 1 Story, Eq. § 606. "See 1 Daniel, Neg. Inst. § 449, as to acceptance; § 571, as to payment. •Mussoni). Lake, 4 How. 274 (1846). ' Codman v. Vermont, &o. R. Co., 17 Blatch. 4 (1879), cases. See generally Cox v. Nat. Bank of New York, 100 U. S. 712-18 (1879), cases. « 4 Bl. Com. 301 ; 13 Fla. 663. defendant, on a day named, and between that day and the day of the " taking of this inquisition," committed certain acts. And in some others the wortls are " the day of the making of this presentment." At common law, every indictment is a presentment. "Present- ment " here means, not the delivery of the indictment tOithe court, but that a certain person has committe{l the acts set forth. The jurors " represent " or "show ■' those facts; present -whtit they find to be the facts, and they find what they represent. The finding and the presentment mean the same. ^ See Indictbient. Presents. (1) In the expressions " Know all men by these presents" and "To all to whom these presents may come," refers simply to the instrument or writing then in hand, or being read or spoken of. The original was prcBsentes Uteres, words before the reader: formal words of description in old convey- ances. "By these presents "is a phrase peculiar to con- veyances and contracts in common-law countries. It is not found in documents executed under the Civil law.^ (3) See Baggage; Gift, 1; Insolvency; Service, 3, Civil. "No Person holding any Office of Profit or Trast under them [the United States], shall, without the Consent of the Congress, accept any present. Emolu- ment, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." ^ PRESIDE. A judge may "preside" whether sitting alone or as one of several judges.* See Judge. PRESIDEN'T. See Agent ; Desceiptio, Personse. Of a bank or corporation. See Bask, 2 (2); Cok- poration. Of the Senate. See Cosghess. Of tlie United States. " The executive Power shall be vested in a President of the United States of America. He shall hold his OfRce during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected as follows " '— by electors, appointed by each State, as see, at length. Electors, Presidential. " No Person except a natural born Citizen, or a Citi- zen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the .ige of thirty- five Years, and been fourteen Years a Resident within the United States."' "In Case of the Removal of the President from OfBce 1 Commonwealth t. Keefe, 9 Gray, 391 (1857), Jlet- calf, J. See also Commonwealth v. Adams, 4 id. 28 (1863); 2 Story, Const. § 1784. 2 Bouldin v. Phelps, 30 F. R. 574 (1887). 3 Constitution, Art. I, sec. 9, cl. 8. 4 Smith I'. People, 47 N. Y. 334 (1872). = Constitution, Art. U, sec. 1, cl. 1. 'Ibid., cl. 5. PRESIDENT 806 PRESUME or of his Death. Resignation, or Inability to discharge the. Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation, or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected." ^ An act approved January 19, 1886 (34 St. L. 1), pro- vides, section one, that " in case of the removal, death, resignation, or inability of both the President and Vice-President, the secretary of state, or if there be none, or in case of his removal, death, resignation, or inability," then each of the following officials, in the order here given and subject to the same conditions as to removal, death, etc., — the secretary of the treasury, the secretary of war, the attorney -general, the postmaster-general, the secretary of the navy, and the secretary of the interior,— " shall act as Presi- dent until the disability of the President or Vice-Presi- dent is removed or a President shall be elected : Pro- vided, That whenever the powers and duties of the office of President . shall devolve upon any of the persons named herein, if Congress be not then in ses- sion, or if it would not meet in accordance with law within twenty days thereafter, it shall be the duty of such person . . to issue a proclamation convening Congress in extraordinary session, giving twenty days' notice of the time of meeting." Sec. 3. The act shall only apply to officers appointed by the consent of the Senate, and to such as are eligi- ble to the office of President, and not under impeach- ment by the House of Representatives at the time. Sec. 3. Repeals Rev. St. §§ 146-50. " The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States or any of them." ^ His salary is at present fifty thousand dollars a year. 5 "Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation : — I do solemnly swear (or affirm) that I will faithfully exe- cute the Office -of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." * " The Prt*3ident shall be Commander in Chief of the Army And Navy of the United States, and of the Militia of the several States, when called into the actual Serv- ice of the United States; he may require the Opinion, in writing, of the principal Officer in each of the ex- ecutive Departments {q. v.), upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons iq. v.) for Offences against the United States, except in Cases of Impeachment." " 1 Constitution, Art. H, sec. 1, cl. 6. ^Ibid., cl. 7. 3 R. S. § 153: Act 3 March, 1873, c. 22G. * Constitution, Art. II, sec. 1, cl., 8. ^Ibid., sec. 2, cl. 1. He may meet invasion or insurrection by military force, previous to any declaration of war by Congress. * See War. " He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties (g. v.), pro- vided two thirds of the Senators present concur; and he' shall nominate, and by and with the Advice and Consent of the Senate, shall appoint (g. v.) Ambassa- dors, other public Ministers (g. v.) and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law : but the Congress may by Law vest the Ap- pointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." ^ See Office. "The President shall have Power to fill up all Va- cancies (q. V.) that may happen during the Recess of the Senate, by granting Commissions which shall ex- pire at the End of their next Session." ^ " He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measiu-es as he shall judge necessary and expedient [see Message] ; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other pub- lic Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Of- ficers of the United States," ^ He and the Vice-President " shall be removed from Office on Impeachment (g. v.) for, and Conviction of. Treason, Bribery, or other high Crimes and Misde- meanors." ^ See subjects relating to the Constitution and govern- ment of the United States; in particular Congress; Service, 3. Civil. PRESS. See Copy; Liberty, 1, Of the press. ' PRESUME. To' take or assume a mat- ter beforehand, without proof; to take for granted. Infer is stronger than presume. The law does not .presume, much less infer, fraud." See Infer. Presumption. Next to positive is cir- cumstantial evidence, or the doctrine of pre- sumptions. When a fact cannot itself be demonstrated, that which comes nearest to 1 R. S, § 1642; Acts 28 Feb. 1795, 3 March, 1807. 2 Constitution, Art. II, sec. 2, cl, 2. " Had the con- sent of the Senate been made necessary to displace &s well as to appoint, the Executive would have suffered degradation ; and the relative importance of the House of Representatives a grave diminution." 2 Bancroft, Const. 191. 3 Constitution, Art. II, sec. 2, cl. 3. * Constitution, Ai*t. H, sec. 3. ^ Ibid., sec. 4. Seegenerally 2 Bancroft, Const. 166-94; 3 Story, Const. §§ 1410-1572. « Morford v. Peck, 46 Conn. 385 (1878), Loomis, J. PEBSUMPTION 807 PRESUMPTION proof of it is proof of the circumstances nec- essarily, or usually, attending it: this proof creates a presumption, which is relied upon till the contrary is established.! Presumptive evidence proceeds upon the theory that the jiuy can infer the existence o£ a fact from another fact that is proved, and which most usually accompanies it.'* Presumption of law. A rule which, in certain cases, either forbids or dispenses with any ulterior inquiry.' A judicial postulate that a particular pred- icate is universally assignable to a particular subject.^ It is founded upon the first principles of justice, a law 01" laws of nature, or the experienced course of human conduct and affairs, and the connection usu- aUy found to exist between certain things.^ Derives its force from jurisprudence. Probability is not necessary to it. It relieves from producing evi- dence. Its conditions are fixed and uniform. It is irrebuttable or absolute, and rebuttable or provisional.* Conclusive, imperative, or absolute pre- sumptions of law. Rules determining the quantity of evidence requisite to support any particular averment, which may not be over- come by proof that the fact is otherwise.' Cases in which the long experienced connection be- tween things has been found so uniform as to make it expedient for the common good that this cormectiou be taken as inseparable and universal,^ and indispu- table. Disputable or rebuttable presumptions of law. These are such presumptions as may be overcome by opposing proof : that facts, usually together, were so in a given case.* The law infers one fact from the proved existence of its common companion ; directs how much shall be proved to make a prima facie case, and that that may be overcome by counter-proof.* Presumption of fact. A mere argu- ment upon the facts in a case ; a natural pre- sumption derived wholly and directly from the circumstances of the particular case, by means of the common experience of man- kind, without the aid or control of rules of law.* ' [.3 Bl. Com. 371.] ' Home Ins. Co. v. Weide, 11 Wall. 440 (1870), Davis, J. See also 26 Ala. 30; 66 Ind. 438; 11 Me. 146; 34 N. H. 365; 27 N. J. L. ISO, 153; 6 Wend. 181; 7 id. 66; 97 Pa. 34; 16 Vt. 71; 12 Wis. 257. ' [1 Greerd. Ev. § 14; Improvement Co. v. Munson, 14 Wall. 449 (1871). 1 1 Whart. Ev. ch. XTV. » 1 qireenl. Ev. §33; 39 Minn. 15. • [1 Greenl. Ev. § 44; 4 Whart. 173; 107 U. S. 502-3; 71 Cal. 276. A logical argument from a fact to a fact ; an argument which infers a fact otherwise doubtful from a fact already proved.! An inference of the existence of a certain fact arising from its necessary and usual con- nectiort with other facts which are known.2 Derives its force from logic. To it probability is necessary. It requires evidence. Its conditions fluct- uate. ^ There are certain departments of scientific knowl- edge where an entire series of facts or forms may al- ways be inferred from the existence of any one, according to the maxim ex pede Herculem. The con- clusion in such cases is deduced from the observed uniformity of physical nature, which by a necessity of our own minds we believe to be invariable. But this mode of reasoning has but a very limited appli- cation in the law of evidence as judicially applied to ascertain the facts and motives of human conduct. It is the foundation of the doctrine of presumptions to the extent to which they are admitted. ^ Psychological presumptions. These are of knowl- edge of law; of ^ fact from a known fact; of inno- cence; of love of life; of good faith; of sanity; of pru- dence; against danger; as to supremacy of husband; of intent as to probable consequences; of malice; against a spoliator.* Physical presumptions. Of incompetency through infancy; of identity; of death; of survivorship in a common catastrophe; of loss of a ship from lapse of time.* Presumptions of uniformity and continuance. As to residence, occupancy, habit, coverture, solvency, value; that foreign law is like our law; as to con- stancy of nature — of physical sequence, animal hab- its, conduct of men in masses.* Presumptions of regularity. As to marriage, and legitimacy ; negotiation of paper; judicial proceedings; dates; formalities of documents; appointments of officers and agents; acts of public officers, of busi- ness and professional men; of the due delivery of letters.* Presumptions of title. In favor of possession of realty — not tortious, and independent; and of per- sonalty — as to vessels, and papers; that the proprie- tor adjacent to a road owns the soil thereof; as to ownership of hedges, land covered by water, alluvion, trees, and minerals. Missing links are proven from long possession, and grants from lapse of time. Ap- plied, also, to licenses from use.* Presumption as to payment. This arises after the lapse of twenty years.' " Facts presumed are as effectually established as facts proved, where no presumption is allowed." * 1 1 Whart. Ev. ch. XIV. 2 Roberts u People, 9 Col. 474 (1886), Beck, C. J. * Sabariego v. Maverick, 124 U. S. 395 1(1888), Mat- thews, J. « 2 Whart. Ev. §§ 1240-69. >2Whart. Ev. §§1270-S3. « 2 Whart. Ev. §§ 1331-S9. ' 2 Whart. Ev. §§ 1360-65. I * Dickens v. Maliana, 21 How. 383 (1858). PRETENSE PRETENSE If the evidence offered conduces in aHy reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury.^ Inferences from Inferences are not permitted: only immediate inferences from facts proved. If the pre- sumed fact has no immediate connection with or re- ^ lation to the established fact from which it is inferred, it is regarded as too remote. Thus, the presumption that a public officer has done his duty does not supply proof of independent and substantial facts.^ In a case where the ultimate fact was whether a renewal premium had been paid to the defendant, it was held that the jury could not infer (1) that the pol- icy did not lapse but was renewed; (2) that the re- newals were paid to the plaintiff's sub-agent; and (3) paid over by the agent to the defendant. ^ A judge, in deciding that evidence of a particular circumstance is not receivable, impliedly decides that no presumption can be drawn from it which ought to have effect with the jury. A presumption which the jury is to draw is not a circumstance in proof, and it is not, therefore, a legitimate foundation for a pre- sumption. There is no " open and visible connection " between the facts out of which the two presumptions arise.* An inference from an inference, if allowed at all, has little probative force.* See PRiESUMPTio ; Evidence. PRETENSE.6 Representation; simula- tion; device. False pretenses. The offense of " obtain- ing property by false pretenses." An offense variously defined by statutes; as generally understood : a knowingly false statement of a supposed by -gone or existing fact with in- tent to defraud, and an obtaining of property thereby. 7 Many statutes are copied from 30 Geo. II (1757), c* 24 — '■ knowingly and designedly, by false pre- tenses," obtaining "from any pei-son money, goods, wares, or merchandise, with intent to cheat and de- fraud any person of the same;" and from S4 and 25 Vict, (1861), c. 96 — obtaining "any chattel, money, or other valuable security with intent to defraud." * A representation of some fact or circum- stance, calculated to mislead, which is not true. 9 1 Home Ins. Co. v. Weide, 11 Wall. 440 (1871). 2 Unite4 States v. Ross, 92 U. S. 283-84 (1875), Strong, J. ; Grand Trunk R. Co. v. Richardson, 91 id. 470 (1875). 5, Manning v. Hancock Mut. Life Ins. Co., 100 U. S. 698 (1879), Strong, J. * Douglass V. Mitchell, 35 Pa. 446-47 (1860), Strong, J.; McAleer v. McMurray, 58 id. 126 (1868). 6 Ayer v. Glaucus, 4 Cliff. 171 (1870). L. pro&tensus: prce-tendere, to spread before, hold out, pretend. Spelled also pretence. ' [Broom, Common Law, 966. « 2 Whart. Cr. L. §§ 1130, 1175, 1186-89; Broom, Com. L. 9G3. » Commonwealth v. Drew, 19 Pick. 184r-86 (1837), Mor- ton, J. A false -pvetense prima facie imports a misrepre- sentation as to something existing. . . The offense and the facts constituting it must be stated; where these facts consist in words, the words must be set forth, I Four things must concur: an intent to defraud; actual fraud committed; false pretenses used; the fraud accomplished by means of those pretenses. =* There must be a scient^^and a fraudulent intent. The representation must relate, to past events: a rep- resentation for the future may be only a promise ; it may be made in any of the ways by which ideas are communicated; and it maybe inferred. The reason of the law is to protect the weak and creduloiM from the stratagems of the artful and cunning; it does not extend to those who, having the means in their own hands, neglect to protect themselves.^ The law gives a different effect to a representation of existing facts, from that given to a representation of facts to come into existence. To make a false rep- resentation the subject of an indictment, or of an action, two things are necessary, viz., that it should be^ a statement likely to impose upon one exercising common prudence and caution, and that it should be the statement of an existing fact; A " promissory " statement is not, ordinarily, the subject either of an indictment or of an action. The law also gives a dif- ferent effect to promissory statements based upon general knowledge, information^ and judgment, and to representations which, from knowledge peculiarly his own, a party may certainly loiow will prove to be true or false.* Collecting money by falsely personating a creditor constitutes false pretenses.^ When the owner parts with the possession of his property, a felonious receiving is "larceny." When he parts with the possession and title (his right of property), the offense is false pretenses.* In England, and Massachusetts, and perhaps in other States, obtaining money as a charitable gift by false pretenses, is indictable; but otherwise, it seems, in New York.'' Any words equivalent to "by means of a false pre- tense," maybe used in the indictment.^ The indictment must set forth distinctly that there was an actual transaction between the parties, a pay- ment of money or a delivery of property; that it was 1 Bardlaugh v. The Queen, L. R., 3 QVB. D. 623 (1878), Bramwell, L. J. 2 Commonwealth t!..McDuffy, 126 Mass. 470 (1879), cases. s Commonwealth v. Drew, ante. 4 Sawyer v. Prickett, 19 Wall. 160 (1873), Hunt, J.; 4Hill,9; 23N.Y.413; 99 Pa. 575; 26 Alb. Law J. 105-6 (1882), cases. 6 State V. Goble, 70 Iowa, 447 (1883). 6*Loomisu People, 67 N. Y. 326-29 (1876), cases; Zinc V. People, 77 id. 114 (1879), cases ; 53 id. Ill ; 43 111. 397; 57 Ind. 341; 39 Mich. 505; 26 Ohio, 15; 11 Ind. 154; 12 Johns. 293. ' Commonwealth v. Whitcomb, 107 Mass. 486 (1871), cases; People v. Ciough, 17 Wend. 351 (1837). e Commonwealth v. Walker, 108 Mass. 312 (1871), cases. PRETIUM 809 PRIMUS the accused's purpose, in making the false pretenses, to effect such a transaction; and that the party al- leged to have been defrauded was actually deceived by the false pretenses.^ See further Cheat; Larceny; Obtain: Spirittjal- isu. PRETIUM. L. Price; value. Pretium affectionis. Price from afiec- tion ; value bestowed on account of associa- tion or endearment. As, regard for a house as an inheritance or a home, for a jewel as a present, for a picture as an heirloom. Unless expressly provided for, this extrinsic value is not recoverable under a contract of insurance. When, it ever, the law affords no adequate remedy for with- holding an article thus enhanced, equity will grant re- lief by ordering a delivery to the owner." Pretium perieuli. Price of the risk. Payment in consideration of which a risk is assumed ; in particular, the risk in a contract of insurance. Compare Pr^mitim ; Premium. PREVAIL. He is the prevailing party, within the meaning of a statute entitling such party to costs, who prevails on the main issue, to a greater extent than admitted by his adversary, though not to the full extent of his claim. 3 To be a prevailing party does not depend upon the degree of success at different stages of the suit; but whether at the end of the suit or proceeding the party who has made a claim against the other has success- fully maintained it.* See Costs. PREVENTIOIf. See Crime ; Defense, 1 ; Homicide; Injunction; Police, 2; Prohi- bition ; Quia Timet ; Suffer. PREVIOUS. Compares an act or state named, to another act or state, subsequent in the order of time, for the purpose of assert- ing the priority of the first.5 Compare Pre- Existing ; Prior. PRICE. The sum of money for which an article is sold ; also, the equivalent or com- pensation, in whatever form received, for property sold. The first and general meaning originates in the fact that property is ordinarily sold for money ; not because the word has necessarily such a restricted meaning.' The Latin is pretium, reward, value, estimation, equivalent. Webster shows that "price" is some- times still used in this sense. ^ Cost price. The price paid for a thing, as, for goodB.2 Prices-current. Prepared by parties furnishing them in the ordinary course of business, may be used as evidence of the value of the articles mentioned in them. 3 See Book, 1; Science. See also Cash; Cost; Inade Hudson Iron Co. v. Alger, ante. " Buck V. Buck, 18 N. Y. 340 (18.5S). s Cliquot's Champagne, 3 Wall. 141, 115 (1805); 1 Bened. 849. 4 [Peters v. Speights, 4 Md. Ch. 381 (1853): Abbott, Shipp. 492.] • Carr v. Austin, &c. E. Co., 18 F. R. 421 (1883). « Advertising Publications, Postage on, 16 Op. Att.- Gen. 304 (1879). ' 3 Bl. Com. 314-16. PRINCIPAL 810 PRINT A prima facie case or evidence is that which, is re- ceived or continues until the contrary is shown. ^ Possession of a negotiable instrument, payable to bearer or indorsed in blanlc, is primafacie evidence of lawful ownersliip; and nothing short of fraud, not even gross negligence, will invalidate the holder's title.' But if the defendant proves that the paper originated in an illegality, or was lost or stolen, the pre- sumption arisen that the holder gave no value for it. In that case, to recover, the plaintiff must show value paid.' See further Evidence; Faith; Nesotiate, 3; Receipt. Primse impressionis. Of the first im- pression, q. V. PRINCIPAL.* Leading; highest in im- portance. See Primary. 1. The original debt or sum loaned : as, in principal and interest. See Interest, 3 (S). 2. The moi'e worthy ; opposed to accessory, appurtenant, incident, secondary, inferior, qq. V. Applied to estates, rights, and obliga- tions. See Challenge,. 4. 3. The person primarily liable ; the orig- inal debtor ; opposed to bail, surety, qq. v. 4. The employer of an agent or attorney ; opposed to agent, q. v. One primarily and ordinarily concerned, and who is not an accessary or auxiliary; as, the person re- ceiving goods or employing workmen for his own advantage. An " agent " is a person employed to manage the aifairs of another; as, he who receives or employs workmen for another.* ^ Vice-principal. A servant to whom his master deputes general supervision of his work, with the power of appointment and dismissal ; a deputy master. Especially is he a vice-principal who is engaged to manage a business distinct from the principal's regu- lar occupation. Theword "manager," asasynonym, is somewhat ambiguous." See Manager, 1. 5. The chief actor in a crime; opposed to accessary. Either the chief actor, that is, the actual perpetrator of the crime, or else he is present aiding and abetting the fact to be done.' One present, consenting, aiding, procur- 1 Troy V. Evans, 97 U. S. 3 (1877); ib. 867, cases. ' Collins V. Gilbert, 94 U. S. 764 (1876), cases. s Commissioners v. Clark, 94 U. S. 285 (1876), cases. * li, pHncipalis, taking'the first place; chief. » [Adams v. Whittlesey, 3 Conn. 567 (1821), Hosmer, Chief Justice. "Murphy v. Smith, 19 C. B. n. s. '366 (1865); Galla- gher -d. Piper, 16 id. *669 (1864); Dwyer v. American . Express. Co.. 55 Wis. 436 (1882); Foley v. Chicago, &c. R Co., 64 Iowa, 630 (1884); 1 Shearm. & R. Neg. §§230- 31 (1888). ' [1 Hale, PI. Or. 615, 618. ing, advising, or assisting in the commission of a crime. Each person present consenting to the commission of the offense, and doing any act which is either, an ingredient in the crime or immediately connected with or lead- ing to its commission.! A principal in the first degree is he that is the actor or absolute perpetrator of the crime. A principal in the second degree is he who is present, aiding and abetting the fact to be done. 2 In treason and trespasses all participants are prin-, cipals. See further Aocessaby; Aid, 1; Presekob. PRINCIPLE.3 1. A fundamental truth; an elementary proposition ; a settled rule of action or procedure. Compare Maxim. 3. In patent law, a fundamental truth, an original cause. These cannot be patented, as no one can claim in either of them an exclusive right. . . The processes used to extract, modify, and concentrate natural agencies, cpnstitute the invention. The elements of the power exist; the invention is not in discovering them, but in applying them to useful objects.* There is no authority for granting a patent for a " principle," an idea, or any other abstraction. . . The principle of a machine is " its mode of opera- tion," or that peculiar combination of devices which distinguish it from other machines. The machine is not the principle or the idea." To make useful and patentable the discovery of a new principle, it must be applied to a practical pur- pose. The practical application to some useful purpose is the test of its value." When mechanical devices operate substantially in the same way, producing a similar result, they are considered the same in principlp.^ See Patent, 2. PRINT. A mark or form made by im- pression : anything printed ; that which, be- ing impressed, leaves its form, as cut in wood or metal, to be impressed on paper; the impression made; a picture; a stamp; the letters in a printed book ; an impression from an engraved plate ; a picture impressed from an engraved plate, etc.* Achromo is a lithographic "print'! in colors; and playing cards, printed in colors, are "prints." ^. > United States u Wilson, Baldw. 103 (1830), Bald- win, J. ; United States v. Hartwell, 8 Cliff. 326-27 (1869), cases. 2 4 Bl. Com. 34; 33 Graft. 868. . 3 F. pjHncipe, beginning: maxim, axiom ' Le Eoy v. Tatham, 14 How. 175 (1852), McLean, J. " Burr V. Duryee, 1 Wall. 570 (1863), Grier, J. " Le Eoy v. Tatham, 22 How. 137 (1859), McLean, J. ' Roberts v. Ward, 4 McLean, 566 (1849), McLean, J.; 2 id. 178; 5 id. 63; 103 U. S. 707; 15 F. R..448. » Yuengling v. Schile, 20 Blatch. 463-64 (1882), cases, PRIOR 811 PRIVILEGE Print means, apparently, a picture, something com- plete in itself, similar in kind to an engraving cut or photograph.' Although the law recognizes a distinction between a " painting " and a " print," a copyright of the former •will protect the owner in the sale of copies which may Jippropriately be called prints or lithographic copies.* See Coptkight; Design, 2; Noscitub, A sociis. Printed. The *' printed " copy of the title of a book or other article required by Eev. St., § 4856, to be deposited with the Librarian of Congress, may be printed with a pen.* The place from which a newspaper is issued to sub- scribers is the place where it is '* printed and pub- lished," although the press-work is done in another city.« That one may subscribe by a printed name, see Subscriber, 1. Printer. In a statute, may include the publisher of a newspaper.* Printing. See Copyright; Original, 2; PoKcnj- ation; Writing. PRIOR; PRIORITY. Prior : a going be- fore. Priority : precedence ; legal preference. A debt, incumbrance, or invention, is said to have or to take priority over another or others ; and United States law, over State law. Compare Junior, 3. In paying the debts of a decedent, his executor or administrator must observe the rules of priority; otherwise, on deficiency of assets, if he has paid those of a lower degree first, he will have to pay those of a higher degree out of his own funds." See Tempus, Prior, -etc. PRISON.' A public building in which may be confined persons charged with or convicted of a crime, and persons who can give important testimony on the trial of criminal cases. Compare Jail; Peniten- tiary; Reformatoey. A "state prison," in its general sense, means a place of confinement for state prisoners; that is, for persons charged with political offenses, and confined for reasons of state. But in some States the term designates the penitentiary maintained by the State for the confinement of prisoners convicted of certain crimes, in distinction from other prisons maintained and used by counties and cities.^ Prison bounds, or limits; rules of prison. A district around a prison within which a debtor, released from confinement under bond, may go at large. Brown, J.; Rosenbaoh v. Drey fuss, 2 F. E. 221 (1880); S Blatch. 3-25; 97 U. S. 365. 1 Yuengling v. Schile, ante. s Schumacher v. Schwenke, 30 F. E. 691 (1887). » Chapman v. Ferry, 18 F. E. 539 (1883). ••Boyer^. Hoboken, 44 N. J. L. 131 (1882). ' Bunce v. Eeed, 16 Barb. 360 (1853). «2 Bl. Com. 511; 1 Story, Eq. §§ 553, 557, 837. ' F. prison: L. prensio, prehenaio, a seizing, seizure. « Martin «. Martin, 47 N. H. 52 (1866), Perley, C. J. A slight, temporary, unintentional overstepping of the line is not such breach of the condition not to go beyond the limits set as will render the sureties liable for the debt.' Prison breach, or breaking. The act of a prisoner in escaping from the place in which he is in lawful custody ; also, the act of breaking into such place to aid a prisoner in escaping. '■= See Escape, 3. Prisoner. A person deprived of his lib- erty by virtue of judicial or other lawful process. Not then, necessarily, a person confined within the walls of a prison, as see Imprisonment; Bail, 2. Eev. St., § 5541, provides that a person convicted of an offense against the United States and sentenced for a term longer than one year, may, by direction of the court, be confined in a State prison.^ To the same effect are §| 5542 and 5548. Congress here recognizes a distinction between a " sentence," and an "order" for the execution of the sentence: the " order " is not necessarily a part of the judg- ment.* There is no reason, in principle, why the prisoner should be present when an order changing the place of his confinement is signed by the court." PRIVATE.' Affecting or belonging to a single person or persons, as distinguished from the people at large ; opposed to public or state. Compare PUBLIC ; Peivy. As, private or a private — agent, boundary, bridge, carrier, charity, corporation, convey- ance, counsel, easement, examination of a married woman or witness, law — act or statute, nuisance, person, property, rights, wrong, qq. v. Privateer. A vessel owned and ofl&cered by private persons, but acting under a com- mission from a hostile or belligerent state, usually called " letters of marque," ' q. v. PRIVIES. See Peivy, S. PRIVILEGE.' 1. Exemption from such burdens as others are subjected to.^ A right peculiar to the person on whom conferred, not to be exercised by another or others.' 1 Eandolph v. Simon, 20 Kan. 406 (1883). ' See 4 Bl. Com. 1-30; 43 N. J. L. 555. 'Exp. Karstendick, 93 U. S. 396 (1876). As to condition of prisons and the prison system, at the close of the last century, see McMaster's Hist Peop. U. S., Vol. 1, pp. 98-103. • Exp. Waterman, 33 F. R. 30 (1887). •L. privatus, apart; privus, sundered, single. • [Woolsey, Int. Law, § 127; 1 Kent, 96. ' L. privilegium^ q. v. ' State V. Betts, 24 N. J. L. 557 (1834), Potts, J. ' City of Brenhara v. Brenham Water Co , 67 Tex. 652 (1887), Stayton, A. J. PRIVILEGE 813 PRIVILEGK The exercise of mental power cannot be a privilege: it is not derived from, a law granting a special pre- rogative contrary to common right, ^ A right peculiar to an Individual or body.^ An exemption or immunity; as, from, taxation,^ See under Tax, 2. Personal privilege. Such privilege as is granted to or concerns an individual per- son. Real privilege. In English law, a privilege granted to a place. Illustrations of personal privileges are: a debtor's -;Clalni for exemption; immunity from ^taxation; a Widow's rights; most disabilities, as, disability in a feme-covert. Many such privileges may be waived. Special or exclusive privilege. Any particular or individual authority or exemp- tion existing in a person or class of persons, and in derogation of common right ; as, the grant of a monopoly.^ Within the meaning of the prohibition in the con- stitution of New York against granting to private corporations "any exclusive privilege," describes grants in the nature of monopolies, of such inherent or statutory character as to make impbssible the co- existence of the same right in another. ^ Grants of special privileges are strictly construed; whatever is not given in unequivocal terms is with- held." See Franchise, 1; Monopoly. " The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several This provision is confined to such privileges and immmiities as are fundamental; which belong of right to the citizens of all free governments; and which have always been enjoyed by citizens of the several Stat-es, from the time of their becoming free, independent, and sovereign. What these funda- mental principles are may be comprehended under these heads: protection by the government, and en- joyment of life and liberty, with the right to acquire and possess property and to pursue and obtain happi- ness and safety, subject to such restraints as the gov- ernment may prescribe for the general good of the whole.^) ^ 1 Lavryers' Tax Cases, 8 Heisk. 649 (1875), Turney, J, ; ib. 473-75. 2 Ripley v. Knight, 123- Mass. 519 (1878), Endicott, J. 8 See Tennessee v. Whitworth, 117 U. S. 146 (1886); 9 Baxt. 546; Louisville, &c. R. Co. v. Gaines, 3 F. R. 278-79 (1880); 80 Ky. 274; 3 N. M. 169; 4 Tex. Ap. 317. * See Elk -Point v. Vaughn, 1 Dak. 118 (1875); 1 Utah, 111; IBl. Com. 373. fi Trustees of Exempt Firemen's Fund v. Roome, 93 N. Y. 328 (1883), Finch, J. «Moram;. Commissioners, 3 Black, 722 (1862); Dela- ware Railroad Tax, 18 Wall. 33*5 (1873); Hannibal, &c. R. Co. V. Missouri Packet Co., 135 U. S. 271 (1888), cases. 7 Constitution, Art. IV, sec. 2. ■^Corfleld v. Coryell, 4 Wash. 380 (1833), Washing- ton, J. ; Felkner v. Tighe, 39 Ark. 357 (1883). fl Slaughter-House Cases, 16 Wall. 75-78 (1872). The privileges and immunities intended are those which are common to the citizens of a State under its constitution and laws, by virtue of their being citi- zens. Special privile'ges enjoyed in one State are not secured in other States. ^ That section of the Constitution is directed against State action. Its object is to place the citizens of each State upon the same footing with citizens of other States, and inhibit discriminative legislation. ^^ ^ " No State shall make or enforce any law which shall abridge the privileges or imlnunities of citizens of the United States." *' The privileges of a citizen are those which he has as a citizen,' first, of the United States, and, second, of the State where he resides as a member of society. The XlVth Amendment forbids the States to abridge the former, but iiot so the latter — one of which, for example, is marriage.*' "Privileges and immunities" are words of very comprehensive meaning. They include, at least, the right of a citizen of one State to pass into any other State for the purjDose of engaging in lawful com- merce, trade, or business without molestation.; to ac- quire personalty; to take and hold realty; to maintain actions in the courts of the State; and to be exempt from any higher taxes or excises than are imposed by the State upon its own citizens. " , The right to practice law in the State courts is not a privilege or immunity of a citizen of the United States, - within the meaning of the XlVth Amendment; nor does the Amendment affect the power of the State to prescribe the qualifications for adibission to the bar.'_ Abridgment of the right to sell intoxicating liquors is not forbidden ; ^ nor of the right of trial by jury in suits at common law pending in the State coiu:t^» The 'Amendment refers to actions of the political body denominated a. State: no agency of a State or of the officers or agefits by whom its powers are exe- cuted, shall deny to any persons within its jurisdiction the equal protection of the law.^"^ See Immunity; PaooBSs, 1, Due; Suffrage. 2. Exemption fi*om arrest, q. v, 3. A communication from a client to his. attorney which the latter may not divulge without the consent of the client. See Com- munication, Privileged, 1. 4. The constitutional provision (intended to secure free expression of opinion) that for any speech or debate in either house of a 1 Paul V. Virginia, 8 Wall. 168 (1868), Field, J. 2 United States v. Harris, 106 U. S, 643 (188S), Woods, Justice. 8 Slaughter- House Cases, 16 Wall. 75-78 (1873). * Constitution, Amd. Art. XIV, sec. 1. Ratified July . 28, 1868. s Exp. Kinney, 3 Hughes, 12-13 (1879), cases. 6 Ward V. Maryland, 12 Wall. 430 (1870), Clifford, J. 7 Bradwell v. Illinois, 16 Wall. 137-43 (1872). 6 Bartemeyer v. Iowa, 18 Wall. 133 (1873). » Walker v. Sauvinet, 92 U. S. 92 (1875). 10 ^xp. Virginia, 100 U. S. 346-47 (1879), Strong, J. PRIVILEGIUM 813 PRIZE legislature the member shall not be ques- tioned in any other place.l The privileges of members of Parliament are: of speech, of person, of domestics, and of goods. ^ *' A breach of privilege is any contempt of the high court of Parliament, whether relating to the House of Lords or to the House of Commons." 5. In maritime law, the lien of a seaman on a vessel for wages. See Lien, Maritime. 6. In civil law, a claim on a thing which exists apart from possession, and until Waiver or satisfaction. • Privileged. Enjoying a peculiar right or immunity: as, privileged from arrest, a priv- ileged communication, qq. v. A privileged debt is payable prior or in preference to some other debt. See Priority. PRIVILEGIUM. L. A private law: an enactment which conferred upon a per- son some anomalous or irregular right, or imposed some sucli obligation or punishment. PRIVITY. See Privy, 2. PRIVY.» 1, adj. (1) Connected with; concerned with ; affected alike. (2) In the sense of "private," used in the English phrases privy council, privy seal, qq. V. Privy verdict. A verdict given privily to the judge, out of court ; similai- to a sealed verdict.^ See further Verdict. 2, n. A person so connected with another in an estate, a right, or a liability as to be affected as he is affected. Privies are persons between whom some connection exists, arising from a mutual contract: as, donor and donee; lessor and lessee ; or, persons related by blood : as, an- cestor and heir.' Privies in blood. Ancestor and heir, and co-parceners. Privies in estate. Lessor and lessee, donor and donee, and joint-tenants. Privies in representation. Testator and executor, intestate and administrator. Priv- ies in law. Are created by the lawcasting land upon a person, as, in escheat." Privity. (1) Mutual or successive rela/- tionship to the same rights of property.^ (2) Participation; complicity. 1 See Constitution, A.-t. I, sec. 6. • 1 Bl. Com. 16-1. ' Pri'v-y. 'L.privaCus, apart: privus, single. «.3 Bl. Com. 377; 5 ?hila. 124; 6 id. 530. s 1 Greenl. Ev. § If i). As to privies in estate, see 20 Am. Law Rev. 3S9-411 (1886), cases. • 1 Greenl. Ev. § 189; 6 How. 59; 15 Barb. 588. May refer to some fault or neglect in which one personally participates; as, in the expression, "loss occasioned without the privity " of another vessel. * Privity of contract. Something on which an obligation, an engagement, a promise can be implied.2 No action lies where there is no privity of contract. Thus, B cannot maintain an action against C, where A. who is under a contract to sell an article to B, is induced by C to sell to C himself." The holder of a bill or check cannot sue the bank for refusing payment, in the absence of proof that the bill was accepted by the bank or cliarged against the drawer.* When one suffers loss from the negligence of an- other, and there is neither fraud or collusion nor priv- ity of contract, the person causing the loss is not liable therefor, unless the act is one immediately dangerous to the lives of others, or is an act not performed in pursuance of a legal duty.' The rule undoubtedly is that a person cannot be af- fected by any evidence, decree, or judgment to which he was not actually, or in consideration of law, a privy. This rule has been departed from so that wherever i-eputation would be admissible evidence, there a verdict between strangers, in a former action, is also evidence; as, in cases of public rights of way, immemorial customs, disputed boundaries, and pedi- grees.* A party claiming through another is estopped by that which is established as to that other respecting the same subject-matter.' The ground upon which persons standing in this re- lation to a litigating party are bound by the proceed- ings is, that they are identified with him in interest; and whenever this identity is found to exist, all are alike concluded.^ See Adjudication, Former. Because they are identified in interest, the admission of one privy binds his fellows." See Res, Inter alios. PRIZE. 1. Ordinarily, some valuable thing, offered by a person for the doing of a thing by others, into the strife for which he does not enter. i" See BET; Lottery. ' Lord V. Steamship C9., 4 Saw. 300 (1877), cases; R. S. §4283: 103 U. S. 541. 2 Cary 1;. Curtis, 3 How. 347 (1845), Daniel, J. See also 4 Pet. 83; 7 Ct. CI. 526; 3 Ga. 430; 41 Iowa, 516; 20 Minn. 431; 35 Nl H. 16; 54 id. 378; 48 Barb. 82; 64 Pa. 346; 4 Lea, 128. s Ashley v. Dixon, 48 N. Y. 430 (1872). * Bank of the Republic v. Millard, 10 Wall. 153 (1869); First Nat. Bank of Washington v. Whitman, 94 U. S. 344 (1876). • Savings Bank v. Ward, 100 U. S. 205-6 (1879), cases, Clifllord, J. 'Patterson v. Gaines, 6 How. 599 (1848), cases, Wayne, J. ' Stacy V. Thrasher, 6 How. 59-60 (1848). 6 1 Greenl. Ev. g 623, cases; Litchfield v. Goodnow, 123 U. S. 561 (1887), cases. » 1 Greenl. Ev. § 189. See generally 1 Harv. Law Rev. 326-32 (1887), cases. 10 Harris v. White, 81 N. Y. 539 (1880), Folger, C. J. PRIZE 814 PROBABLE Prize-fighting. Persons who agree to engage in a prize-flght or pugilistic contest may be held to an- swer tor a conspiracy, and to keep the peace. The pretense that the contest is for scientific "points" will not avail, when the evidence shows that a fight is intended.' 2. In marine insurance,, a capture; any taking or seizing, even unlawfully, by force.2 3. Property captured at sea under the laws of war ; prize of war. Prize-court. A tribunal whicli adminis- ters the law upon the subject of maritime captures made in time of war. The district courts of the United States possess original jurisdiction in all matters relating to the law Of prize. Prize-courts are fconstituted to try judicially the lawfulness of captures at sea, according to the princi- ples of public international law, with the double ob- ject of preventing and redressing wrongful captures, and of justifying the rightful acts of the captors in the eyes of other nations. From the necessity of the case, and to interrupt as little as may be the exercise of the belligerent duties of the captors, or the voyage and trade of the captured vessel if neutral, the proceed- ings are summary. The libel is filed as soon as possi- ble after the prize has been brought into a port of the government of the captors, and does not contain any allegation as to title, or even set forth the grounds of condemnation, but simply prays that the vessel be forfeited to the captors as lawful prize of war. The monition issued and pubhshed upon the filing of the libel summons all persons interested to show cause against the condemnation, and is returnable within a very few days, too short a time to allow of actual notice to or appearance or proof in behalf of owners . residing abroad. The law of nations presumes and requires that in time of war every neutral vessel shall have on board papers showing her character, and shall also have officers and crew able to testify the facts establishing her neutrality. The captors are therefore required immediately to produce to the prize-court the ship's papers, and her master, or some of her principal officers or crew, to be examined on oath upon standing interrogatories, and without com- munication, or instruction by counsel. The cause is heard in the first instance upon the proofs, and if they show clear ground for condemnation or acquittal, no further proof is ordinarily required or permitted. If the evidence in prceparatorio shows no ground for condemnation, and no circumstances of suspicion, the captors will not ordinarily be allowed to introduce further proof, but there must be an acquittal and res- titution. When further proof is ordered, it is only from such witnesses and upon such points as the prize- court may in its discretion think fit.^ ' Commonwealth v. Sullivan and McCaffrey, 16 W. N. C. 14 (Phila,, 1885). ' [Dole V. New Eng. Mut. Mar. Ins. Co., 6 Allen, 388- 90 (1863), cases, Bigelow, C. J. s Cushing v. Laird, 107 U. S. 76-88 (1888), cases, Gray, J.; 15 Blatch. 239. i I A capture made by the army, or b.y the army and navy operating together, inures to the benefit of the United States. If a captor unnecessarily delays insti- tuting proceedings for condemnation, the court may, in case of restitution, decree demurrage against him See Admiralty; Capture; Condemn, 4; Confiscate. PRO. L. For; as for. In such expressions as pro-slavery, pro-license, op- posed to anti, q. v. Proconfesso. As confessed. See Decree. Pro facti. For the fact ; as a fact. Pro forma. For form: as a matter of form; formally. Pro hae vice. For this turn ; for the ac- cession : as, an attorney or judge pro hac vice. Abbreviated p. h. v.^ A charterer is an owner pro hac vice.^ Pro indiviso. For an undivided part ; as undivided. Pro interesse suo. For his interest ; to the extent of one's interest. Said of a person admitted to intervene in ^ suit,^ Pro rata (.parte). For the estimated part ; in proportion ; ratably (or rateably). Whence " prorate: " to divide, as, gain or loss; * to divide or distribute proportionately; to assess pro rata.'' Pro rata itineris. According to the voyage made. See Freight. Pro re nata. For the thing created ; for the exigencies of the occasion ; for the occa- sion. Pro salute animse. For the welfare of the soul ; for reformation. Pro se. For himself; representing one- self: as, "Mr. Miner, pro se, contra.'' Pro tanto. For so much ; for as much as may be ; as far as it goes. A perpetual lease by a life-tenant is good for such interest as he may convey, that is, pro tanto. Pro ut. See Recordum, Prout, etc. PROBABLE.^ Apparently true or real; seeming to be founded in fact or reason; reasonable : as, probable cause. See Cause, 2; Doubt; Presumption; Prosecution, Mali- cious. ' The Nuestra Seflora De Eegla, 108 U. S. 101, 103 ' See 66 Ga. 715; 89 N. C. 513; 1 Bl. Com. 346; S id. 278; 3 id. 13, 243; 4 id. 261, 268. s Thomas v. Osborn, 10 How. 2!) (1866). •Pennimau v. Stanley, 122 Mass. 316 (1877); 7 How. Pr. 415. ' Rosenberg v. Frank, 58 Cal. 405 (1881): 19 Am. Law Reg. 360, n. ; " L. probabilis, provable. PROBARE 815 PROCEDENDO Probably. An instruction, otherwise correct, was held not vitiated by the conclusion that " if there be a reasonable doubt whether the person premeditated to kill the deceased, or to do him bodily harm which would probably [necessarily] occasion death, the jury ought not to find the accused guilty of murder in the first degree." ' Probability. " ProbabUity " and "proof" each expresses a particular effect of evidence ; but " proof " is the stronger term. The dic- tionaries give different definitions of " prob- ability," as see Worcester and Webster.^ A committee of viewers reported that certain land would " in all probability " continue to be used for railroad freight purposes. Held, that if a degree of probability amounting to a practical certainty was Intended, the facts on which the conclusion was based should have been stated, that the court might see on what it rested; also, that a lighter degree of probabil- ity could not affect the case.' PROBARE. L. To prove. Probanduin. See Factum, Probandum ; Onus, Probandi. Probata. Things proven; proofs. See Allegata. Probatio. Proving; proof. Actori incumbit probatio. Upon the plaintiff rests the proving— the burden of proof. Affirjnanti, non neganti, incumbit probatio. Upon the one alleging, not upon him denying, rests the duty of proving. Ei incumbit probatio qui dicit, non qui negat. Upon him rests the burden of proof who avers, not upon him who denies. See further Proof, Burden of. Plena probatio. See Oath, Suppletory. PROBATE.* Formal, oflBcial or legal proof: as, the probate of (and to probate) a claim, a will. When a will is proved, the original is de- posited in the registry, and a copy, made under the seal of the register, is delivered to the executor or administrator, along with a certificate of its having been proven: all which together is styled " the probate." 5 Strictly used, relates to the proof of a will before an officer or tribunal having jurisdic- tion to determine the question of itsvahdity. In common usage, however, often refers to the proceeding incident to the administration 1 Honesty v. Commonwealth, 81 Va. 394 (1886). ! Brown v. Atlanta, &c. B. Co., 19 S. C. 59 (1882). » New York, &c. E. Co. v. New Britaui, 49 Conn. 40 (1881). * L. prohare, q. v. » 2 Bl. Com. 508. and settlement of the estates of decedents, and is, therefore, sometimes so used in stat- utes.i Federal courts have jurisdiction in a controversy between parties of different States respecting the validity, construction, or enforcement of a decree ad- mitting a will to probate; it is in the nature of a pro- ceeding in rem.^ Jurisdiction as to wills, and their probate as such, is neither included nor excepted out of the grant of the judicial power ^ the Federal courts. So far as it is ex parte and merely administrative, it is not con- ferred, and cannot be exercised at all, until, in a case at law or in equity, its exercise becomes necessary to settle a controversy as to which those courts have jurisdiction by reason of citizenship.'' A probate is conclusive until revoked.' Generally speaking, a court of equity will not en- tertain a bill to set aside the probate of a will. Suc- cession to the estate is in the nature of a proceeding in rem, in which all who have any interest are parties, and are concluded as upon a res adjudicata by the decision of the court, which generally has ample pow- ers of process and investigafion.* A statute which provides for an ante mortem pro- bate is inoperative and void." Coiirt of probate. A court exercising jurisdiction over the estates of deceased per- sons, possessing, as to personal assets, nearly all the powers formerly exercised by the courts of chancery and the ecclesiastical courts of England. Such courts collect the assets, allow claims, direct payments and distribution of the property to legatees or others entitled, and, generally, do everything es- sential to a final settlement of the affairs of the de- ceased, and the claims of creditors against the estate. Other names are "orphans'" and "surrogates'" courts.' Such a court has power to administer the equities directly involved in the matter before it.s See Res, 2. PROBATIO. See Probake. PROBATIVE. Tending to prove: as, probative evidence, the probative force of a presumption. PROCEDENDO. L. For proceeding: to proceed. I Reno V. McCully, 65 Iowa, 632 (1885), Reed, J. > Gaines v. Fuentes, 92 U. S. 21 (1875). » Ellis V. Davis, 109 U. S. 485, 494-98 (1883), Matthews, Judge. < Davis V. Gaines, 104 U. S. 391-96 (1881), cases. » Broderick's Will, 21 Wall. 509-14 (1874), cases, Brad- ley, J. • Lloyd V. Wayne Circuit Judge, 56 Mich. 236 (1886);. 24 Am. Law Reg. 790, 794-96 (1886), cases. ' Public Works v. Columbia College, 17 Wall. 531 (1873), Field, J.; Davis v. Hudson, 29 Minn. 34 (1881); Robertson v. Pickrell, 109 U. S. 608 (1883). 8 Hewitt's Appeal, 53 Conn. 37 (1885). PROCEDURE 816 PROCEEDS A writ by which a court of review remits to the inferior court a cause removed on in- sufficient ground. A writ of procedendo ad judicium (to judgment) issues out of the court of chancery, when the judges of any subordinate court delay the parties, as by not giving judgment. In such case a procedendo will be awarded, commanding them to proceed to judgment, but without specifying the form.^ PEOCEDUKE. The body of rules, whether of practice or of pleading, whereby rights are efifeotuated through the successful application of proper remedies. Opposed to the sum of the legal principles which consti- tute the substance of the law, and also dis- tinguished from the law of evidence. 2 The term is so broad that it is seldom em- ployed as a word of art. It includes what- ever is embraced by the three technical terms pleading, evidence, and practice (qq. v.) — practice here meaning those legal rules which direct the course of proceeding to bring joar- ties into the court and the course of the court after they are brought in ; and evidence meaning those rules of law whereby we de- termine what testimony is to be admitted and what rejected in each case, and what is the weight to be given to the testimony ad- mitted. 3 Compare PEOCEEDlNa. The practice, pleadings, and fonns and modes of proceeding in civil cases, other than in equity and admiralty, in the circuit and district courts, shall con- form, as near as may be, to those existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held.* The conformity is to be " as near as may be, "'not as near as possible or as near as may be practicable.^ Adopting the forms of proceeding in the State courts, as near as may be, in the Federal courts, cloes not authorize an equitable defense (g. v.) to an action at law, nor blending legal and equitable claims in one suit.^ The purpose was to bring about uniformity in the law of procedure in the Federal and State courts of the same locality. The legislation had its origin in the code enactments of many of the States. While in the Federal tribunals the common-law pleadings, forms, and practice were adhered to; in the State courts of the same district the simpler forms of the > 3 Bl. Com. 109. ' [Brown's Law Diet. s Bishop, Crim. Proc. § 2; Kring v. Missoui'i, 107 U. S. Grant v. Hartford, &c. R. Co., 93 U. S. 227 (1876), Bradley, J.; s. c, 9 Blatch. 542. < See Leland v. Tousey, Hill, 333 (1844); Nash v. Sullivan, 32 Minn. 190 (1884); 14 Neb. 12. "Wallace v. Berdell, 101 N. Y. 14-15 (1885), cases, Rapallo, J. « [Tutt V. Land, 50 Ga. 350 (1873), Trlppe, J. ; 105 Mass. 105; 13 East, 543. ' Park V. Grant Locomotive Works, 40 N. J. E. 121 (1885), Van Fleet, V. C. PROFIT 822 PROHIBERE call profits "net profits," to avoid confusion.^ See further Partnership. Profit a prendre. The right to take a pai't of the soil or produce of the land. A r i ght to the products or proceeds of Ian d . ^ This right, if enjoyed by reason of holding another estate, is regarded as an easement appurtenant to tlie estate; whereas, if it belongs to an individual, distinct from ownership in other lands, it takes the character of an interest or estate In the land itself, rather than that of a proper easement.^ The right, although capable of being transferred in gross, may be attached by the owner of the land to other land as an appurtenance, and pass as such upon conveyance of the latter. While the technical defini- tion of an easement excludes such right, the right is nevertheless in the nature of an easement.^ See Per- NANOT. Profits of a business. The receipts, de- ducting concurrent expenses ; the equivalent of *'net receipts." 4 Depreciation of buildings is not ordinarily or neces- sarily considered in the estimate.* Wherever profits are spoken of as not a subject of damages it'will be found that something contingent upon future bargains, or speculations, or states of the market, are referred tp, and not the difference between the agreed price of something contracted for and its ascertainable value or cost.^ 3. In patent law, the rule of damages for an infringement i^ the amount the infringer actually realized in profits; not what he might have made by reasonable diligence.^ This amount is estimated by finding the difference between cost and sales. The elements of cost of ma- terials, inierest, expense of manufacture and sale, and bad debts, considered by a manufacturer in find- ing his profits, are taken into account, and no others. Profits due to elements not patentable may sometimes be allowed. Salaries, as dividends of the profit imder another, name, are disallowed. The wrong-doer is made liable for actual, not for possible, gains. The controlling consideration is that he shall not profit by his own wrong. Tjie rule compensates one party and punishes the other. A decree "for all the profits made in violation of the rights of the complainant under the patent aforesaid, by respondent, by the manufacture, use, o'r'sale of any of the articles named in the bill of complaint," is correct in form'.'^ 1 Lindley, Partn. 15; Story, Partn. § 23; 49 Conn. 240, S72; 60 Md. 475; 15 Minn. 519. 2 Huntington v. Asher, 96 N. Y. 610-14 (1884), cases. Finch, J. 3 Pierce v. Keator, 70 jN". Y. 421-22 (1877), Church, C. J. ; 22 Wend. 433; 4. Pick. 145; 5 B. & C. 221; 3 Washb. R. P. 25. ^ Eyster v. Centennial Board of Finance, 94 U. S. 500 (1^76), Waite, C. J. s Hinckley v. Pittsburgh Steel Co., 121 U. S. 275-76 (1HS7), cases, Blatchford, J. Dean -u. Mason, 20 How. 303 (1857), McLean, J. 'Rubber Co. u. Goodyear, 9 Wall. 801-4 (1869), Interest upon the various sums is not allowed,^ In an action at law for the infringement of a pat- ent, the plaintiff can recover a verdict for only the actual damages which he has sustained; and the amount of such royalties or license fees as he has been accustomed to receive for the use of the inven- tion, with interest thereon from the time when they should have been paid, is generally, though not al- ways, taken as the measure of his damages ; but the court may, whenever the circumstances of the case appear to require it, inflict punitive damages, by ren- dering judgment for not more than thrice the amount of the verdict. Upon a bill .in equity^ the plaintiff is entitled to recover the amount of gains and profits that the defendant has made by the use of the inven- tion. This rule was established by a series of de- cisions under the patent act of 1836, which simply conferred upon the courts of the United States general equity jurisdiction, with the power to grant injunc- tions, in cases arising under the patent laws. The reasons for the rule are, that it comes nearer than any other to doing complete justice; that, in equity the profits made by an infringer belong to the patentee; and that it is inconsistent with the ordinary principles and practice of courts of chancery either to permit a wrong-doer to profit by his own wrong or to make no allowance for the expense of conducting his business, or to undertake to punish him by obliging him to pay more than a fair compensation to the person wronged. The infringer is liable for actual, not for possible, gains. The profits, therefore, which he must account for, are not those which he might reasonably have made, but those which he did make, by the use of the invention: or, in other words, the fruits of the advantage which he derived from the use, over what he would have bad in using other means then open to the public and adequate to enable him to obtain an equally beneficial result. If there was no such ad- vantage, there can be no decree for profits, and the plaintiff's only remedy is by an action at law for dam- ages. But if the defendant gained an advantage by using the invention, that advantage is the measure of the pi'ofits to , be accounted for, even if from other causes his business did not result in profits. If, for example, the unauthorized use of a .patented process; produced a definite saving in the cost of manufacture, he must account for the amount so saved. This ap- plication or corollary of ^ the general rule is as well established as the rule itself. . . The profits allowed in equity have been, and are stiU, considered as a measure of unlifc[uidated damages, which, as a rule, and in the absence of special circumstances, do not bear interest until after their amount has been judi- cially ascertained.'' PROHIBERE. L. To hold before, put in one's way : to prevent, forbid, prohibit. Swayne, J.; Livingston v. Woodworth, 15 How. 558 (1853); Dobson v. Hartford Carpet Co., 114 U^ S. 444r45 (1885), cases; Freeman u. Freeman, 142 Mass. 102-3 (1880). 1 Parks V. Booth, 102 U. S. 106 (1880). ^ Tilghman v. Proctor, 125' U. S. 143-49, 160 > cases. Gray, J. PROHIBITION 823 PEOHIBIXION Qui non proliitaet, cum prohlbere possit, jubet. He who does not forbid, when he might forbid, commands. Qui non prohitaet, quod prohibere potest, assentire videtur. He who does not prevent what he can prevent, is viewed as assenting. See Estoppel ; Suffer. PROHIBITION/ 1. The act of forbid- ding or interdicting. Whence prohibitory. Compare Inhibition ; Mandate. The imposition of punistunent implies a prohibition of the act punished.'^ While the Xmth and XlVth Amendments are pro- hibitory, they imply positive immunity from legal discriminations. ^ In marine insurance, words equivalent to a pro- hibition amount to a \rarranty> The right to pass an ordinance usually involves the incidental right to enforce it by a reasonable pecun- iary penalty.' Power " to prohibit and suppress " the maintenance of a place as a nuisance includes the power to provide a punishment.8 Power in the authorities of a city to prohibit or regulate a thing includes partial prohibition or regula- tion.' If a statute does not declare void a contract which is in violation of it, and if it is not necessary to hold the contract void to accomplish the purpose of the statute, the inference is that the statute was Intended to be directory, and not prohibitory of the contract. ^ A statute often speaks as plainly by inference, and by means of the purpose which imderlies it, as in any other manner. When it appears by necessary infer- ence from what is expressed that an act is opposed to the policy of the law, andwUl defeat its purpose, such act should be held to be prohibited. When a statute directs that a thing' should be done in a given manner, it ordinarily excludes other modes of doing it.' See LEGAL.; Illegal. Writ of prohibition. A writ directed to the judge and parties to a suit in any in- ferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some col- 1 L. prohibere^ q. v. 'Exp. Siebold, 100 U. S. 388 (1879). s Strauder v. West Virginia, 100 U. S. 507 (1879); Sxp. Virginia, ib. 345 (1879). *Odiome v. New England Mut. Mar. Ins. Co., 101 Mass. 554 (1869), cases. = 1 Dillon. Mun. Corp. §§ 338, SIB, cases;! Bishop, Stat. Cr. § 21. 8 Rogers u People, 9 Col. 453 (1883). ' Chicago Packing, &c. Co. v. Chicago, 88 III. 821, 225 (1878); Keokuk v. Dressell, 47 Iowa, 699 (1878). 8 Bowditoh V. New England Ins. Co., 141 Mass. 29.5-95 (1886), oases, Morton, C. J. 'United States v. O'Connor, 31 F. E. 451 (1887), Thayer, J. lateral matter arising therein, does not be- long to that jurisdiction, but to the cogni- zance of some other court.^ Commands the person to whom it Is di- rected not to do something which, by th? suggestion of the relator, the court is in- formed he is about to do. 2 Suspends all action, prevents further proceeding in the prohibited direction; is never used as a remedy for an act already completed.^ Prevents an unlawful assumption of jurisdiction.' Cannot be made to perform the offlce of a proceed- ing for the correction of mere errors and irregular- ities. If there is jurisdiction, and no provision for appeal or writ of error, the judgment of the trial court is conclusive.* It is often said that the granting or refusing of the writ is discretionary, and, therefore, not the subject of a writ of error. That may be true, where there is an- other legal remedy, by appeal or otherwise, or where the question of the jurisdiction of the court, whose action is sought to be prohibited, is doubtful, or de- pends on facts which are not made matter of record, or where a stranger, as he may in England, applies for the writ. But where that court has clearly no ju- risdiction of the suit or prosecution instituted before it, and the defendant therein has objected to its jurisdic- tion at the outset, and has no other remedy, he is en- titled to a writ of prohibition as a matter of right; and a refusal to grant it, where all the proceedings appear of record, may be reviewed on error. ^ The writ will not be granted unless the defendant has unavailingly objected to the jurisdiction.' 3. Interdiction of the liberty of making, and of seUing or giving away, intoxicating liquors, for other than medicinal, scientific, and religious (sacramental) purposes. Sometimes called total prohibition, and, of late years, effected by amendments to the constitutions of several of the States. Authority conferred upon a town, by its charter, to prohibit the sale of intoxicating liquors, does not fairly embrace a power to regulate sales. The exercise of the power to regulate sales provides tor the continu- ance of the traffic under prescribed rules. The power to prohibit is to be wielded only for suppression.' " The weight of authority is overwhelming that no 1 3 Bl. Com. 112. 2 United States v. HofEnlan, 4 Wall. 161-62 (1866), Miller, J. 3£Tp. Gordon, IM U. S. 516 (1881), Waite, 0. J. ' ' Exp. Ferry Co., 104 U. S. 520 (1881), Waite, C. J. 'Smith V. Whitney, 116 U. S. 178-74 (1886), cases. Gray, J. See also 49 Conn. 124; 29 Minn. 623; 77 Va. 229, 332; 21 W. Va. 140. « State V. Williams, 48 Ark. 227 (1886); 26 id 53, cases. ' State V. Fay, 44 N. J. L. 476-77 (1882), Dixon, J., cit- ing 68 111. 444; 92 id. 569; 2 Mo. 113. See also48Ind. 308; 25 id. 283; 25 Iowa, 440; 64 Mo. 33, 172; 42 N. J. L. 364; 82N. Y. 318. PROHIBITION ' 834 PROHIBITION such' imtnunity has heretofore existed as would pre- vent State legislatures from regulating, and even pro- hibiting, traffic in intoxicating drinks, with a solitary- exception. That exception is the case of a law oper- ating so rigidly on property in existence at the time of its passage, absolutely prohibiting its sale, as to amount to depriving the owner of his property. A single case, that of Wynehamer v. The People [3 Ker- nan, 378, N. Y., 1856], has held that as to such property, the statute would be void for that reason. But no case has held that such a law was void as violating the priv- ileges or immunities of citizens of a State or of the United States. If, however, such a proposition is seri- ously urged, we think that tlie right to sell Intoxicat- ing liquors, so far as such a right exists, is not one of the rights growing out of citizenship of the United States, and in this regard the case falls within the prin- ciples laid down by this court in the Slaugfiter-House Cases [16 Wall. 36, 1872]." i " No one has ever doubted that a Legislature may prohibit the vending of articles deemed injurious to the safety of society, provided it does not interfere with vested rights of property. When such rights stand in the way of the public good, they can be re- moved by awarding compensation to the owner. When they are not in question, the claim of a right to sell a prohibited article can never be deemed one of the privileges and immunities of the citizen. It is toto coelo different from the right not to be deprived of property without due process of law, or the right to pursue such lawful avocation as a man chooses to -adopt, unrestricted by tyrannical and corrupt monop- olies." a *'I have no doubt of the power of the State to regu- • late the sale of intoxicating liquors, when such regu- lation does not amount to the destruction of the right of property in them. The right of property in an ar- ticle involves the power to sell and dispose of such article as well as to use and enjoy it. Any act which declares that the owner shall neither sell it nor dispose of it, nor use and enjoy it, confiscates it, depriving him of his property without due process of law. Against such arbitrary legislation by any State, the Fourteenth Amendment affords protection. But the prohibition of sale in any way, or for any use, is quite a different thing from a regulation of the sale or use so as to pro- tect the health and morals of the community. All property, even the most harmless in its nature, is equally subject to the power of the State in this re- spect with the most noxious." ^ " If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from provid- ing for its discontinuance, by any incidental inconven- ience which individuals or corporations may suffer. All rights are held subject to the police power of the State" — a power of which the legislature cannot divest itself by contract.* 1 Bartemeyer v. Iowa, 18 Wall. 133 (1873), Miller, J. ''Ibid., 136, Bradley, J. 3 Ibid., 137-38, Field, J. See also State v. Mugler, 29 Kan. 252 (1883). * Boston Beer Company v. Massachusetts, 97 U. S. 33 (1877), Bradley, J. " In Bartemeyer v. Iowa it was decided that a State- law prohibiting the manufacture and sale of intoxicat- ing liquors was not repugnant to the Constitution of the United States. This was re-affirmed in Be^t Com,'' pany v. Massachusetts, and that question is now no longer open in this court." ^ But a State may not by taxation discriminate against the products or the citizens of another State. The police power of a State to regulate the sale of in- toxicating liquors does not warrant the enactment of a law infringing a positive provision of the Constitu- tion of the United States.' " All property is the creation of the law, either the common or the statute law, and must, in its existence and enjoyment, be subjected to the policy and provis- ions of the law."* December 5, 1887, Mr. Justice Harlan, in writing the"* opinion of the Supreme Court in the cases of Mugler V. Kansas and Kansas v. Ziebold, reported in 123 U. S. 623, 657-74, said; The general question is whether the prohibition statutes of Kansas, approved February 19, to take effect May 1, 1881, and March 7, 1885, amend- atory and supplementary to the act of 1881, are in con- flict with that clause of the Fourteenth Amendment which provides that " no State shall make or enforce any law which shall abridge the privileges or immuni- ties of citizens of the United States; nor shall any State depriv4 any person of life, liberty, or property without due process of law." That legislation by a State prohibiting the manufacture within her limits of intoxicating liquors, to be there sold or bartered for general use as a beverage, does not necessarily in- fringe any right, privilege, or.immimity secured by the Constitution, is made clear by the decisions of this Court, rendered before and since the adoption of that Amendment. In the License Cases, 5 How. 504 (1847), the question was whether certain statutes of Massachusetts, Rhode Island, and New Hampshire, relating to the sale of spirituous liquors, were repugnant to the Constitution. In determining the question, it became necessary to inquire whether there was any conflict between the exercise by Congress of its "power to regulate com- merce " and the exercise by a State of what are called "police powers." The members of the Court were imanimous in holding that the statutes under exami- nation were not inconsistent with the Constitution or any act of Congress. Chief Justice Taney said: " If any State deems the retail and internal traffic in ar- dent spirits injurious to its citizens, and calculated to produce idleness, vice, or debauchery, I see nothing iu the Constitution to prevent it from regulating and re- straining the traffic or from prohibiting it altogether." Mr. Justice McLean said: ** A State regulates its do- mestic commerce, contracts, transmission of estates, and acts upon internal matters, which relate to its- moral and political welfare. Over these subjects the » Foster v. Kansas, 112 U. S. 206 (18S1), Waite," C. J. See also Prohibitory Amendment Cases, 24 Kan. 722 (1881). 2 Walling V. Michigan, 116 U. S. 454 (1836), Bradley, J. a Oviatt v. Pond, 29 Conn. 487 (1861), Ellsworth, jj See also'IntOxicatiiigLiqilor' Cases, 25 Kan. 761 (1881); 32 Iowa, 252. PROHIBITION 835 PROHIBITION Federal government has no power. . . The acknowl- edged police power of a State ejrterids often to the destruction of property. A nuisance may be abated. Everything prejudicial to health or morals may be re- moved." Mr. Justice Woodbury observed: "How can they [the States] be sovereign within their respective spheres, without power to regulate all their internal commerce, as well as police, and direct how, when, and where it shall be conducted in articles intimately connected with the public morals, public safety, or public prosperity." Mr. Justice Grier said: "Thetrue question is whether the States have a right to prohibit the sale and consumption of an article of commerce which they believe to be pernicious in its effects, and the cause of disease, pauperism, and crime. Without attempting to define what are the peculiar subjects or limits of this power, it may safely be af- firmed that every law for the restraint or punishment of crime, for the preservation of the public peace, health, and morals comes within this category. . . It'is not necessary, for the sake of justifying the lagis- lation under consideration, to array the appalling sta- tistics of misery, pauperism, and crime which have their origin in the use or abuse of ardent spirits. The police power, which is exclusively in the States, is alone competent to the correction of these great evils, and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that au- thority." In Bartemeyer v. Iowa, 18 Wall. 129 (1873), it was said that, prior to the Fourteenth Amendment, State enactments, prohibiting traffic in intoxicating liquors, raised no question under the Constitution; and that such legislation was left to the discretion of the re- spective States, subject to no other limitation than those imposed by their own constitution, or by the general principles supposed to limit all legislative power. Referring to the contention that the right to sell intoxicating liquors was secured by the Fourteenth Amendment, the court, speaking by Mr. Justice Mil- ler, said that " so far as such right exists, it is not one of the rights growing out of citizenship of the United States." In Boston Beer Co. v. Massachusetts, 97 U. S. 33 (1877> it was said, by Mr. Justice Bradley, speaking for the court, that "as a measure of police regulation, looking to the preservation of public morals, a State law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to any clause of the Constitution. Finally, in Foster v. Kan- sas, 113 U. S. 206 (1884), the court, by Chief Justice Waite, said that the question as to the constitutional power of a State to prohibit the manufacture and sale of intoxicating liquors was no longer an open one. These cases rest upon the acknowledged rights of the States to control their purely internal affairs, and, in so doing, to protect the health, morals, and safety of their people by regulations that do not interfere with the execution of the powers of the general govern- ment, or violate rights secured by the Constitution. The power to establish such regulations, as was said by Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 203 (1834), reaches everything within the terri- tory of a State not surrendered to the National gov- ernment. It is, however, contended that, although the State may prohibit the manufacture of intoxicating liquors for sale or barter within her limits, for general use as a, beverage, "no convention or legislature has the right to prohibit any citizen from manufacturing for his own use, or export or storage, any article of food or drink not endangering or affecting the rights of others." The proposition concedes that the right to manufacture drink for one's personal use is subject to the condition that it does not endanger or affect the rights of othets. If such manufacture does preju- dicially affect the interests of the community, it fol- lows, from the premises stated, that society has the power to protect itself, by legislation, against the in- jurious consequences of that business. As was said in Munn v. Illinois, 94 XJ. S. 124 (1876), by Chief Justice Waite, while power does not exist in the whole-people to control rights that are purely and exclusively pri- vate, government may require " each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another." But by whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink, for gen- eral personal use, will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere; else society will be at the mercy of the few, who, regarding their own appetites- or passions, may be willing to imperil the peace and security of the many, provided only they are per- mitted to do as they please. Under our systeip that power is lodged with the legislature. It belongs to that department to exert what are known as the po- lice powers of the State, and to determine, primarily, what measures are appropriate or needful for the pro- tection of the public morals, the public health, or the public safety. It does not follow that every statute enacted osten- sibly for the promotion of these ends is to be accepted as a legitimate exertion of the police power. There are, of necessity, limits beyond ^hich legislation can- not rightfully go. While every possible presumption is to be indulged in favor of the validity of a statute, the coiu^s must obey the Constitution rather than the law-making department, and must, upon their own re- sponsibility, determine whether, in any particular case, these limits have been passed. Their solemn duty is to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, there- fore, a statute purporting to have been enacted to pro- tect the public health, the public morals, or the public safety, has no real or substantial relation to those ob- jects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and hereby give effect to the Constitution. Keeping in view these principles, it is difficult to perceive any ground for the judiciary to declare that the prohibition by Kansas of the manufacture or sale, within her limits, of intoxicating liquors tor general use as a beverage, is not fairly adapted to the end of protecting the community against the evils which confessedly result from the excessive use of ardent , spirits. There is no justification for holding that the State, under the guise merely of police regulations, is aiming to deprive the citizen of his constitutional right; for we cannot shut out of view the fact, within PROHIBITION 826 PROHIBITION the knowledge of all, that the public health, the pub- lic morals, and the public safety may be endangered by the general use of intoxicating drink; nor the fact establisljed by statistics accessible to every one, that the idleness, disorder, pauperism, and crime existing in the country are, in some degree at least, traceable to this evil. If, therefore, a State deems the absolute pr^ohibition of the manufacture and sale, within her limits, of intoxicating liquors for other than medicaJ, scientific, or mechanical pm-poses, to be necessary to the peace and security of society, the courts cannot, without usurping legislative functions, override the will of the people as thus expressed by their chosen representatives. They have nothing to do with the mere policy of legislation. Indeed, it is a funda- m.ental principle in our institutions, indispensable to the preservation of public liberty, that one of the sep- arate departments of government shall not usurp power committed by the constitution to another de- partment. And so, if, in the judgment of the legis- lature, the manufacture of intoxicating liquors for the maker's own use, as a beverage, would tend to cripple, if it did not defeat, the efforts to guard the community against the evils attending the excessive use of such liquors, it is not for the courls, from their views as to what is best and safest for the community, to disregard the legislative determination of that ques- tion. So far from such a regulation having no relation to the general end sought to be accomplished, the en- tire scheme of prohibition, as embodied in the con- stitution and laws of a State, might fail, if the right of each citizen to manufacture intoxicating liquors for his own use as a beverage were recognized. Such a right does not inhere in citizenship. Nor can it be said that the government interferes with or impairs any one's constitutional rights of liberty or of prop- erty, when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to so- ciety, and constitute, therefore, a business in which no one may lawfully engage. Those rights are best secured in our government by the observance, upon the part of all, of such regulations as are estabhshed by competent authority, to promote the common good. No one may rightfully do that which the law- making power, upon reasonable grounds, declares to be prejudicial to the general welfare,. This conclusion is unavoidable, unless the Four- teenth Amendment takes from the States those pow- ers of police that were reserved at the time the original Constitution was adopted. But this court has declared, upon full consideration, in Barbier v. Connolly^ 113 U. S. 31 (1885), that that Amendment had no such effect. Upon this ground, it is contended, that, as the primary and principal use of beer is as a beverage; as the breweries of the defendants were erected when it was lawful to engage in the manufacture of beer for every purpose; as such establishments will become of no value as property, or, at least, will be materially diminished in value, if not employed in the manufact- ure of beer, for every purpose,— the prohibition upon their being so employed is, in effect, " a talcing of prop- erty for public use without compensation, and depriv- ing the citizen of his property without due proces^ of law." In other words, although the State, in the exer- cise of her police powers, may lawfully prohibit the manufacture and sale, within her limits, of intoxicating liquors to be used as a beverage, legislation having that object in view cannot be enforced against those who, at the time, happened to own property, the chief value of which consists in its fitness for such manu- facturing purposes, unless compensation is first made for the diminution in value of their property, result- ing from such prohibitory enactments. This interpretation of the Fourteenth Amendment is inadmissible. It cannot be supposed that the States intended, by adopting that amendment, to impose re- straints upon the exercise of their powers for the pro- tection of the safety, health, or moi'als of the com- munity. In respect to contracts, the obligations of which are protected against hostile State legislation, this court in Butchers^ Union Co. v. Crescent City Landing Co., Ill U. S. 751 (1884), said that the State could not, by any contract, limit the exercise of her powers to the prejudice of the public health and the public morals. So, in Stone v. Mississippi, 101 U. S. 816 (1879), where the Constitution was invoked against the repeal by that State of a charter, granted to a private corporation, to conduct a lottery, and for which that corporation had paid to the State a valu- able consideration in money, the court said: " No leg- islature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. . . Government is organ- ized with a view to their preservation, and cannot di- vest itself of the power to provide for them." Again, in New Orleans Gas Light Co. v, Louisiana Light Co., 115 U. S. 673 (1885): ''The Constitutional prohibition upon State laws impaiiwng the obligation of contracts does not restrict the power of the State to protect the public health, the public morals, or the public safety, as the one or the other may be involved in the execu- tion of such contracts. Rights and privileges arising from contracts in a State are subject to regulations for the protection of the public health, the public morals, and the public safety, in the same serise, and to the same extent, as are all contracts and all prop- erty, whether owned by natural persons or corpora- tions." The principle that no person shall be deprived of' life, liberty, or property without due process of law, was embodied, in substance, in the constitutions of nearly all, if not all, of the States at the time of the adoption of the Fourteenth Amendment; and it has never been regarded as incompatible with the prin- ciple, equally vital, because essential to the peace and safety of society, that all property is held under the implied obligation that the owner's use of it shall not be injurious to the community, Illustrations of this doctrine are afforded by the cases of Patterson v. Ken- tucky^ 97 U. S. 501 (1878), and Northwestern Fertilizing Co. V. Hyde Bark, ib. 659, 667 (1878), both decided after the adoption of the Fourteenth Amendment. In the first case, a statute of Kentucky, enacted in 1874, im- posed a penalty upon any one selling fluids, the prod- uct of coal, petroleum, or other bituminous sub- stances, which would ignite at a temperature below 130° Fahrenheit. Patterson having sold a certain oil for which letters patent had been issued in 1867, but PROHIBITION 837 PROHIBITION which did not come up to the standard required by said statute, and having been indicted thei-efor, dis- puted the State's authority to prevent or obstruct the exercise of his rights under the letters patent. This coiirt upheld the legislation, upon the ground that • while the State could not impair the exclusive right of the patentee, or of his assignee, in the discovery de- scribed in the letters patent,— the tangible property, the fruit of the discovery, was not beyond control in the exercise of her police powers. In the second case, the coui't sustained the validity of an ordinance of Hyde Park, in Cook county, Illinois, passed under legis- lative authority, forbidding any person from transport- ing through that village offal or other offensive or un- wholesome matter, or from maintaining or cariying on an offensive or unwholesome business or establish- menfwithin its limits. The fertilizing company, at large expense, and under authority expressly con- ferred by its charter, had located its works at a par- ticular point in the county. Besides that, the charter of the village provided that it should not interfere with parties engaged in ti-ansporting animal matter from Chicago, or from manufacturing it into a fertil- izer or other chemical product. The enforcement of the ordinance operated to destroy the business of the company and seriously to impair the value of its prop- erty. As, however, its business had become a nui- sance, producing discomfort, and often sickness, among large masses of people, the court maintained the authority of the village, actmg under legislative sanction, to protect the public health against such nuisance,— to regulate and to abate nuisances being an ordinary exercise of the police power, which the States had never surrendered, but which they all re- tained and still possess. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a "takmg" or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration that its use by any one, for certain forbidden purposes, is prejudicial to the public inter- ests. Nor can legislation of that character come within the Fourteenth Amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of a police regulation, to deprive the owner of his liberty and property, without " due pro- cess of law." The power which the States have of pro- hibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not, and, consistently with the existence and safety of organized society, cannot be burdened with the condition that the State must com- pensate such individual owners for pecuniary losses they may sustain, by reason of then- not being per- mitted, by noxious use of their property, to inflict in- jury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a par- ticular way, whereby its value becomes depreciative, is very different from takmg property for public use. or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated ; in the other, unoffending property is taken away from the innocent owner. It is true, when the defendants erected their breweries, the laws of the State did not forbid the manufacture of Intoxicating liquors. But the State did not thereby give any assur- ance, or come under an obligation, that its legislation upon that subject would remain unchanged. Indeed, as was said in Stone v. Mississippi^ the supervision of the public health and the public morals is a govern- mental power, " continuing in its nature," and "to be dealt with as the special exigencies of the moment may require;" and that, "fortliispurpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power it- self." So in Beer Co. v. Massachusetts: " If the pub- lic safety or the public morals require the discontinu- ance of any manufactm-e or trafflc, the hand of the legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or coiporations may suffer." A portion of the argument in behalf of the defend- ants is to the effect that the statutes of Kansas forbid the manufacture of intoxicating hquors to be exported, or to be carried to other States, and, upon that ground, they are repugnant to the clause of the Constitution giving Congress power to " regulate commerce " with foreign nations and among the several Stivtes. We need only say, upon this point, that there is no intima- tion in the record that the beer which the respective defendants manufactured was intended to be carried out of the State or to foreign countries. And, without expressing an opinion as to whether such facts would have constituted a good defense, we observe that it will be time enough to decide a case of that character when it shall come before us. (See Kidd v. Iowa, p. 832.) Section thirteen of the act of Kansas of 1885 pro- vides, that " All places where intoxicating liquors are manufactured, sold, bartered, or given away m viola^ tion of any of the provisions of this act, or where in- toxicating liquors are kept for sale, barter, or delivery in violation of this act, are hereby declared to be com- mon nuisances, and upon the judgment of any court having jurisdiction {hiding such place to be a nuisance under this section, the sheriff, his deputy, or under- sheriff, or any constable of the proper county, or mar- shal of any city where the same is located, shall be directed to shut up and abate such place by taking possession thereof and destroying all intoxicating, liquors found therein, together with aU signs, screens, bars, bottles, glasses, and other property used in keep- ing and maintaining said nuisance, and the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine of not less than one hundred nor more than five hundred dollars, and by imprison- ment in the county jail not less than thirty nor more than ninety days. The attorney-general, the county attorney, or any citizen of the county where such nuisance exists, oris kept, or is maintained, may main- tain an action in the name of the State to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and no bond shall be reqviired." PROHIBITION PROHIBITION By this section it is not declared that every estab- lishment is to be deemed 'a common nuisance because it may have been maintained, prior to the passage of the statute, as a place for manufacturing liquors. The statute is prospective in its operation; that is, it does not put the brand of a common nuisance upon any place, unless, after its passage, that place is kept and maintained for purposes declared by the legislature to be injurious to the community. Nor is the court required to adjudge any place tb be a common nui- sance simply because it is charged by the State to be snch. It must first find it to be of that character; that i^, must ascertain, in some legal mode, whether the pl^ce in question has been or is being so used as to make it a common nuisance. Equally untenable is the proposition that proceed- ings in equity for the abatement of the nuisances in- dicated in the thirteenth section are inconsistent with due process of law. See further Nuisance. To the objection that the statute makes no pro- vision for a JTiry trial, it is sufificient to say that such a. mode of trial js not required in suits in equity brought to abate a public nuisance. The statutory direction that an injunction issue at the commencement of the action is not to \)e construed as dispensing with -such preliminary proof as is necessary to authorize an in- junction pending the suit. The statute leaves the court at liberty to give effect to the principle that an injunction will not be granted to restrain a nuisance, except upon clear and satisfactory evidence that one exists. Here the faqt to be ascertained was not whether a place, kept for purposes forbidden by the statutes, was per se a nuisance, that fact being con- clusively determined by the statute itself, but whether the place in question was so kept and maintained. If the proof upon that point is not sufficient, the court can refuse an injunction, or postpone action until the State first obtains the verdict of a jury in her favor. Mr. Justice Field, dissenting from the judgment concurred in by the rest of the court in Ziebold's Case, in substance said: I am not prepared to say that the State can prohibit the manufacture of intoxicating liquors within its limits if they are intended for ex- portation, or forbid their sale within its limits, under proper regulations for the protection of the health and morals of the people, if Congress has authorized their importation, though the act of Kansas is broad enough to include both such manufacture and sale. The right to import an article of merchandise, recog- nized as such by the commercial world, whether the right be given by an act of Congress or by a treaty with a foreign country, would seem necessarily to carry the right to sell the article when imported.. In Brown v. Maryland, 12 Wheat. 447 (1827), Chief Justice Marshall, in delivering the opinion of the court, said: ** Sale is the object of importation, and is an essential ingredient of that intercourse of which importation constitutes a part. It is as essential an iugredient, as indispensable to the existence of the entire thing, then, as importation itself. It must be considered as a com- ponent part of the power to regulate commerce. Congress has a right, not only to authorize importa- tion, but to authorize the importer to sell." If one State can forbid the sale within its limits of an imported article, so may all the States, each se- lecting adiflferent article. There would then be little uniformity of regulations with respect to articles of foreign commerce imported into different States, and the same may be said of regulations with respect to articles of inter-State commerce. . . By the thir- teenth section of the act of 1885, the legislature, with- out notice to the owner or hearing of any kind^ declares. every place where liquors are sold, bartered, etc., ta be a common nuisance; and then prescribes what shall follow, upon a court having jurisdiction finding one of such places to be what the legislature has al- ready pronounced it. The court is not to determine whether the place is a common nuisance in fact, but is to find it to be so if it comes within the definition of the statute, and, haVing thus found it, the executive officers of the court are to be directed to shut up and a,bate the place by taking possession of it; and, as though tliis were not sufficient security against the continuance of the business, they are to be required to destroy all the liquor found therein, and all other property used in maintaining the nuisance. It mat- ters not whether they are of such a character as could be used in any other business, or be of value for any other purposes. No discretion is left in the judge or in the officer. These clauses appear to deprive one who owns a brewery and manufactures beer for sale, of property without due process of law. The destruc- tion to be ordered is not as a forfeiture upon convic- tion of any offense, but merely because the legislature has so commanded. Assuming, which is not conceded, that the legislature, in the exercise of that undefine-d power called the " police power," may, without com- pensation to the owner, deprive him of the use of his brewery for the purposes for which it was constructed under the sanction of law, and for which alone it is valuable, I cannot see upon what principle, after clos- ing a brewery, and thus putting an end to its use in the future for manufacturing spirits, it can order the destruction of the liquor already manufactured, which it admits by its legislation may be valuable for some purposes, and allows it to be sold for those purposes. Nor can I see how the protection of the health and morals of the people can require, the destruction of property, like bottles and other utensils which may be used for many lawful purposes. It has heretofore been supposed to be an established principle that where there is a power to abate a nuisance, the abate- ment must be limited by the necessity, and no wanton or unnecessary injury be committed to the property or rights of individuals. Thus, if the nuisance consists in the use to which a building is put, the remedy is to stop such use, not to tear down or to demolish the build- ing itself, or to destroy property found within it. The decision of the court, as it seems to me, reverses this principle. The supreme court of Kansas admits that the legislature, in destroying the values of such lynds of property, may have gone to the utmost verge of constitutional authority. In my opinfon it has crossed the line which separates regulation from confiscation. Section 1553 of the code of Iowa, as amended by the act of April 5, 1886 (Laws, c. 66), § 10, forbids any com- mon carrier to bring within that State, f or'any person or corporation, intoxicating liquors from any other State or Territory, without first having been furnished PROHIBITION '839 PROHIBITION with a certificate under the seal of the auditor of the county to which such liquor is to be transported, or is consigned, certifying that the consignee or person to whom the liquor is to be transported or delivered is authorized to sell intoxicating liquors. Section 1534 excepts from the operation of the law sales by the im- porter thereof of foreign intoxicating liquor, imported under the authority of the laws of the United States, provided that the liquor at the time of sale by the im- porter remains in the original casks or packages in which it was by him imported, and in quantities of not less than the quantities in which the laws of the United States requu^ such liquors to be imported, and is sold by him in the original casks or packages and in said quantities pnly. Held, that § 1553, as amended in 1886, is void, being in conflict with the provisions of the Constitution granting to Congress the power to regu- late commerce among the States.^ Mr. Justice Matthews, delivering the opinion of the court, in the course of his argument, said, in sub- stance: The provision m question (§ 1563, as amended in 1886) was adopted, not expressly for the purpose of regulating commerce between its citizens and those of other States, but as subservient to the general design of protecting the health and morals of its people, and the good order of the State, against the physical and moral evils resulting from the unrestricted manufact- ure and sale of intoxicating liquors. . . The point in judgment in the License Cases, 5 How. 604 (184T), was confined to the right of the States to prohibit the sale of intoxicating liquor after it had been brought within their territorial limits. The right to bring it within the States was not questioned;, and the reason- ing which justified the right to prohibit sales admit- ted, by implication, the right to introduce intoxicating liquor, as merchandise, from foreign countries or from other States, free from the control of the States and subject to the exclusive power of Congress over com- merce. It cannot be doubted that the law of Iowa under examination, regarded as a rule for the trans- ' Bowman v. Chicago & Northwestern B. Co., 125 U. S. 465, 473-^00 (March 19, 1888), Matthews, Miller, Field, and Blatchford, JJ. Field, J., filed a concurring opinion, 50O-9. Waite, C. J., Gray, and Harlan, JJ., dissented — opinion by Harlan, J., 500-24. Lamar, J., not having been present at the argument of the case, took no part in its decision. The plaintiflfs — one of them a citizen of Iowa — applied to the board of super- visors of Marshall county, Iowa, for permission to buy and sell intoxicating liquors for medicinal, culinary, mechanical, and sacramental purposes, but their ap- plication was rejected. They then bought 5,000 bar- rels of beer in Chicago, and tendered them to the railroad company for transportation to Marshalltown, £aid county, without furnishing the required certifi- cate ^^ the company being a common carrier of mer- chandise from Chicago, Illinois, to Council Bluffs, Iowa, and under a duty to carry to all stations along its line merchandise entrusted to. it for that piurpose. The refusal of the company to transport the beer into Iowa, in violation of her laws, was the basis of the suit. The plaintiffs claimed damages upon the ground that they could have s«ld the beer in that State at an advance. portation of merchandise, operates as a regulation of commerce. . . That law, while it professes to reg- ulate the conduct of caniers engaged in transporta- tion within the limits of the State, nevertheless ma- terially affects, if allowed to operate, the conduct of such carriers, as respects both their rights and obliga- tions, in every other State into or through which they pass in the prosecution of their business of inter-State transportation. The defendant is sued as a common carrier in Illinois, and the breach of duty alleged is a violation of the law of that State in refusing to trans- port goods which as a common carrier, by that law, it was bound to accept and carry. It interposes as. a defense the law of Iowa which forbids the delivery of such goods within that State. Has the law of Iowa an extra-territorial force which does not belong to the law of Illinois? If the law of Iowa forbids the deliv- ery, and the law of Illinois requires the transportation, which of the two shall prevail? How can the former make void the latter? In view of this necessary opera- tion of the law of Iowa, if it be valid^ the language o£ this court in the case of Hall v. De Cuir, 96 U. S. 488 (1877), is exactly in point, viz.: "We think it may safely be said that State legislation which seeks to impose a du'ect burden upon inter-State commerce, or to interfere directly with its freedom, encroaches upon the exclusive power of Congress." The statute of Iowa cannot be justified by classify- ing it as an inspection law which the States may pass (Constitution, Art. I, § 10). It has never been regarded as within the scope of an inspection law to forbid trade in respect to any article of commerce, irrespect- ive of its condition and quality, merely on account of its intrinsic. nature and the injurious consequences, of its use or abuse. For similar reasons the statute cannot be regarded as a regulation of quarantine, or a sanitary provision for the purpose of protecting the physical health of the community, or a law to prevent the introduction of disease, — all exercises of power not viewed a& pro- hibited regulations of commerce. For the purposes of its policy a State has legislative control, exclusive of Congress, within its territory of all matters of strictly internal concern. In order to protect its people from the evils of intemperance, it may prohibit the manufacture within its limits of in- toxicating liquors. It may prohibit all domestic com- merce in them between its own inhabitants, whether the articles are introduced from other States or from foreign countries. It may adopt any measures tend- ing, even indirectly and remotely, to make the policy effective, until it passes the line of power delegated to Congress. It cannot, without the consent of Congress expressed or implied, regulate commerce between its own people and those of other States, in order to effect its end, however desirable such a regulation might be. This particular statute falls within this prohibition. It is essentially a regulation of commerce among the States, within any definition heretofore given to that term, or which can be given; and, although its motive and purpose are to perfect the policy of the State iu protecting its citizens against the evils of intemper- ance, it is none the less a regulation of commerce. If it had extended its provisions so as to prohibit the in- troduction of all importations of intoxicating Uquor PROHIBITION 830 PROHIBITION produced abroad, no one would have doubted the nat- ure of the provision as a regulation . of foreign com- merce. Its nature is not changed by its application to commerce among the States. Can it be supposed thatj by omitting any express declarations on the subject, Congress has intended to submit to the States the de- cision of the question in each locality of what shall and what shall not be articles of traffic in the inter- State commerce of the country? If so, it has left to each State, according to its own caprice and arbitrary will, to discriminate for or against every article grown, produced, manufactured, or sold in any State, and sought to be introduced as an article of commerce into any other. . . The section of the statute in question is an attempt to exercise the jurisdiction of the State of Iowa over persons and property within the limits of other States. It seeks to prohibit their importation into its own limits, and is designed as a regulation for the conduct of commerce before the merchandise is brought to its border, v It is not one of those local regulations designed to facilitate commerce; it is not an inspection law to secure the due quality and measure of a commodity; it is not a law to regulate or restrict the sale of an article deemed injurious to tb^ health and morals of the community; it is not a regu- lation confined to the purely internal commerce of the State; it is not a restriction which only operates upon property after it has become mingled with and forms part of the mass of the property within the State. , It is, on the other band, a regulation directly affecting inter-State commerce in an essential and vital point. If authorized, in the present instance, upon the grounds and motives of the policy which have dic- tated it, the same reason would justify any and every other State regulation of inter-State commerce upon any grounds and reasons which might prompt in particular cases their adoption. It is, therefore, a- regulation of that character which constitutes an unauthorized interference with the power given to Congress. If not in contravention of any positive leg- islation by Congress, it is nevertheless a breach and interruption of that liberty of trade which Congress ordains as the national policy, by willing that it shall be free from restrictive regulations. It may be argued, however, that a prohibition of the sale cannot be made effective except by prevent- ing the introduction of the subject of sale; that, if its entrance into the State is permitted, traffic in it cannot be suppressed. But the right to prohibit sales, so far as-conceded to the States, arises only after the act of transportation has terminated, because the sales which the State may forbid are of , things within its jurisdic- tion. Its power over them does not begin to operate until they are brought within its limits. It might be very convenient and useful, in the execution of the policy of prohibition within the State, to extend the power of the State beyond its territorial limits. But such extra-territorial powers cannot be assumed upon such an implication. On the contrary, the nature of the case contradicts their existence; for, if they be- long to one State, they belong to ail, and cannot be exercised severally and independently. The attempt would necessarily produce that conflict and confusion which it was the very purpose of the Constitution, by its delegations of national power, to prevent. It is' easier to think that the right of importation from abi'oad, and of transportation from one State to an- other, includes, by necessary implication, the right of the importer to sell in unbroken packages at the place where the transit terminates; for the very purpose and motive of that branch of commerce which con- sists in transportation is that other and consequent act of commerce which consists in the sale and exchange of the commodities transported. Such, indeed, was the point decided in the case of Brown v. Maryland, 13 Wheat. 419 (1827), as to foreign commerce, with the express statement, in the opinion of Chief Justice Marshall, that the conclusion would be the same in a case of commerce among the States. But it is not necessary now to express an opinion upon the point, because that question does not arise in the present case. The precise line which divides the transaction, - so far as it belongs to foreign or inter-State commerce, from the internal and domestic commerce of the State, we are nqt now called upon to delineate. It is enough to say that the power to regulate or forbid the sale of a commodity, after it has been brought into the State, does not carry with it the power to prevent its intro- duction by transportation from another State. Mr. Justice Harlan, delivering the opinion of the minority, in substance said: The decision of the ma- jority is placed upon the broad ground that intoxicat- ing liquors are merchantable commodities, or known articles of commerce ; and that consequently the Con- stitution, by the mere grant to Congress of the power to regulate commerce, operates, in the absence of leg- islation, to establish unrestricted trade, among the States, in such commodities or articles. To this view we cannot assent. . . The decision, it seems to us, does not conform to the doctrines enunciated and ad- hered to in the cases decided heretofore, the last being Mugler's Case, and may impair. If it does not destroy, the power of a State to protect her people against the injurious consequences that are admitted to flow from a general use of intoxicating liquors. . . If, as the court decides, the Constitution gives the right to trans- port' intoxicating liquors into Iowa from another State; and if that right carries with it, as an essential ingre- dient, authority in a consignee to sell or exchan'ge such articles after they are so brought in, and while in his possession, in the original packages, the regulation forbidding sales of intoxicating liquor, within the State, for other than medicinal, mechanical, culinary, or sacramental purposes, and then only under a per- mit, will be of little practical value. In this view, any one, desiring to sell intoxicating liquors, need only ar- range to have them delivered to him from some point in another State, in packages of varying sizes, 'as may suit customers ; or he may erect his own manufactur- ing establishment or warehouse just across the Iowa line, in some State , having a different public policy, and thence, with wagons, transport liquors into Iowa in original packages. If the State arraigns him for a violation of her laws, he may claim that, although such laws were enacted solely to protect the health and morals of the people, and to promote peace and good order among them, and although they are fairly adapted to accomplish those objects, yet the Constitu- tion, without any action upon the part of Congress, secures to him the right to bring or receive from other PROHIBITION 831. .PROHIBITION States intoxicating liquors in original .packages, and to sell them, while held by him in such packages, to all who choose to buy them. Thus, the mere silence of Congress upon the subject of trade among the States in intoxicating liquors is made to operate as a license to persons doing business in one State to jeop- ardize the health, the morals, and good order of an- other State, by flooding the latter with intoxicating liquors, against the expressed will of her people. It is admitted that a State may prevent the intro- duction within her limits of goods infected with dis- ease, or of cattle or provisions, which, from their con- dition, are unfit for human use or consumption; because, it is said, such articles are not merchantable or legitimate subjects of trade and commerce. But suppose the people of a State believe, upon reasonable grounds, that the general use of intoxicating liquors is dangerous to the public peace, the public health, and the public morals, what authority has Congress or the judiciary tc review their judgment upon that subject, and compel them to submit to a condition of things which they regard as destructive of their happiness and the peace and good order of society? If, consists ently with the Constitution, a State can protect her sound cattle by prohibiting altogether the introduction within her limits of diseased cattle, — as was decided in Hannibal (& St. Joseph R. Co. v. Husen^ 95 U. S. 471 (1877), — she ought not to be deemed disloyal to their Constitution when she seeks by similar legislation to protect her people and theirliomes against the intro- duction of articles, which are, in good faith, and not unreasonably, regarded by her citizens as " laden with infection " more dangerous to the public than diseased cattle, or than rags containing the germs of disease. It is not a satisfactory answer to these suggestions to say that if the State may thus outlaw the manufacture and sale of intoxicating liquors as a beverage, and ex- clude them from her limits, she may adopt the same policy with reference to articles' that confessedly have no necessary or immediate connection with the health, the morals, or the safety of the community, but are proper subjects of trade the world over. This possible abuse of legislative power was earnestly dwelt upon by the counsel in Mugler^s Case. The same argument can be, as it often is, made in reference to powers that all conced e to be vita^ to the public safety ; but it does not disprove their existence. Tl^is court there said that the judicial tribunals were not to be misled by mere pretenses, and were under a solemn duty to look at the substance of things whenever it became necessary to inquire whether the legislature had transcended the limits of its authority; and, fur- ther, that it was difficult to perceive any ground for the judiciary to declare that the prohibition by a State of the flianufacture or sale, within her limits, of intoxicating liquors for general use as a beverage, is not fairly adapted to the end of protecting the com- munity against the evils which confessedly result from the excessive use of ardent spirits. (123 U. S. 661-62.) In the same case the court sustained, without qualifi- cation, the authorily of Kansas to declare, not only that places where liquors were manufactured or kept for sale, barter, or delivery, in violation of her stat- utes, should be deemed common nuisances, but to provide for the forfeiture, without compehsatibn, of the intoxicating liquors found in such places, and the property used in maintaining such nuisances. Now, can it be possible that the framers of the Con- stitution intended — whether Congress chose or not to act upon the subject — to withhold from a. State' au- thority to prevent the introduction into her midst of articles the manufacture of which, within her limits, she could prohibit, without impairing the Constitu- tional rights of her own people? It a State may de- clare a place where liquors are sold for use as a bev- erage a common nuisance, subjecting the keeper to fine and imprisonment, can her people ^e compelled to submit to the sale of such liquors when brought there from another State for that purpose? This court has often declared that the most important function of government was to preserve the public health, morals, and safety; that it could not divest itself of that power, nor, by contract, limit its exercise; and that even the Constitutional prohibition upon laws impairing the obligation of contracts does not restrict the power of the State to protect the health, the morals, or the safety of the community, as one or the other may be involved in the execution of such con- tracts. Does the mere grant of the power to regulate commerce among the States invest individuals of one State with the right, even without the express sanction of Congressional legislation, to introduce among the people of another State articles which, by statute, they have declax-ed to be deleterious to their health, and dangerous to their safety? In our opinion, these ques- tions should be answered in the negative. It is incon- ceivable that the well-being of any State is at the mercy of the liquor manufacturers of other States. These views are sustained by Walling v. 2fichigan, 116 U. S. -HO (1886), the judgment in which case the majority suggest is conclusive upon the issue in this case. The clear implication from the language used in the judgment in that case is that the law of Michi- gan would have been sustained if it had applied the same rule to the products (intoxicating liquors) of Slichigan which it attempted to apply to the products of other States. At the argument it was insisted that the contention of the plaintiffs was supported by Brown v. Maryland^ 12 "Wheat. 436 (1827), where the question was whether the legislature of a State could require an importer of foreign articles or commodities to take out a license before he should be permitted to sell a bale or pack- age so imported. Among other things, it was said in the opinion that the right to sell articles imported from foreign countries is connected with the law per- mitting the importation, as an inseparable incident; observing, at the close of the opinion, that it supposed the principle laid down to apply equally to importa- tions from a sister State. But from the whole opinion it was clear that the court referred to commerce in articles having no connection with the health, morals, or safety of the people, and that it had no purpose to qualify the explicit declaration in Gibbons v. Ogden, 9 Wheat. 198(1824), that the health laws of the States were a component part of that mass of legislation, the power to enact which remained with the States, because never surrendered to the general govern- ment. It was insisted, on behalf of Maryland, that the prohibition of State imposts or duties upon imports PROHIBITION PROHIBITION ceases the; instant goods enter the country ; otherwise, it was argued, the importer " may introduce articles — as, gunpowder — which endanger a city into the midst of its population; he may introduce articles which en- danger the public health, and the power of self-preser- vation is denied." To this Chief Justice Marshall replied: "The power to direct the removal of gun- powder is a branch of the police power which unques- tionably remains, and ought to remain, with the States. . . The removal or destruction of infectious ■or unsound articles is undoubtedly an exercise of that power [to pass inspection laws], and forms an express exception to the prohibition we are considering. In- deed, the laws of the United States expressly recog- i.nize the health laws of a State." This we understand to have been a distinct re-adjudication that the police power remains with the States, and is not overridden by the national Constitution. The purpose of committing to Congress .the regula- tion of commerce was to insure the equality of com- mercial facihties, by preventing one State from build- ing up her own trade at the expense of sister States. BUt_that purpose is not defeated when a State em- ploys appropriate means to prevent the introduction into her limits of what she lawfully forbids her own people from making. It certainly was not meant to give citizens of other States greater rights in Iowa than Iowa's own people have. But if this be , not a sound interpretation of the Constitution; if intoxicating liquors are entitled to the same protection as ordinary merchandise entering into commerce among the States ; if Congress, under the power to regulate com- merce, may, in its discretion, permit or prohibit com- merce in intoxicating liquors; and if, therefore, State police power, as the health, morals, and safety of the people may be involved in its proper exercise, can be , overborne by national regulations of commerce,— -the former decisions of this court would seem to show that such Ist/VfS of the States are valid, even where they affect commercial intercourse among the States, until displaced by Federal Jegislation, or until they come in direct conflict with some act of Congress. . . This principle has been announced in many cases de- , cided by this court — all of them cases of the erection of bi'idges and other structures within the limits of States, and under their, authority, across public navi- gable waters of the United States. They were held not forbidden by the Constitution, although the struct- ures actually interfered with inter-State commerce. Perhaps the language of this court ^^ all the judges concurring — which most, directly -bears upon the ques- tion is found in County of Mobile v. Kimball, 103 U. S. 701 (1880), re-affirming Willson v. Marsh Company, 2 Pet. 250 (1829). It was -.there said:. "In the License Cases, 5 How. 504 (1847), there was great diversity of views in the opinions of the judges upon the operation of the grant of the commercial , power in the absence of Congressional legislation; but .the decision reached was confirmatory of the doctrine that legislation of Congress is essential to prohibit the actions of the States upon the subject thus considered." This lan- guage is significant in view of the iact that in one of the License Cases — Peirce v. New Hampshire, 5 How. 557, 578 — the question was as to the validity, of an act of that State, under which Feirce was convicted £^id fined for having sold, without license, a barrel of gin which he had purchased in . Boston, transported to Dover, New Hampshire, and there sold in the identical cask in which it had been transported from Massachu- setts. In harmony with these principles, the court af- firmed at the present term, ip Smith v. State, 124 U. S. 465 (1888), the yalidlty of a statute of Alabama making it unlawful for a locomotive engineer, even when his train is employed in jnter-State commerce, to operate a train of cars upon a railroad, in that State, used for the transportation of persons or freight, without first having obtained a license, after examination, from a board of engineers. This court held that the statute in question was " an act of legislation within the scope of the admitted power reserved to the States to regu- late the relative rights and interests of persons within its territorial jurisdiction^ intended to operate so as to secure the public safety of perspnal property; ".and that, "so far aa it affects transactions of commerce among the States, it does so _ only indirectly, incident- ally, and remotely, and not so as to burden or impede them; and in the particulars on which it touches those transactions at all it is not in confiict with any express enactment of Congress on the subject, nor contrary to any intention of Congress to bfe presiuned from its silence:" It would seem that if the Constitution does not, by its own force, displace or annul a State law, authoriz- ing the construction of bridges or dams across navi- ^ gable waters, thereby preventing the passage of yes- sels engaged in inter-State commerce, the same con- struction ought not to be held to annul or displace a law of one of the States which,, by its operation, for- bids the bringing within her limits, from other States, articles which that State, in the most solemn manner, Xias declared to be injurious to the health, morals, and safety of her people. The silence of Congress, upon the., subject of inter-State commerce, as affected by the police laws of the State, enacted in good faith to promote the public health, morals, and safety, and to that end prohibiting traffic, withih her limits, in intox- icating liquors to be used as a, beverage, ought to have at least as much effect as the sUence of Congress with reference to physical obstructions placed, under the authority of a State, in a navigable -water of .the United States. The reserved power pf the States to guard the health, morals, and safety of their pegple is more vital to the existence of society than their power in respect to trade and commerce having no possible connection with those subjects. October 22, 1888, the Supreme Court, speaking by Mr. Justice Lamar, in the case of Kidd v. Pearson, decided that the statute of Iowa, under which it had been held by the supreme court of that State ^ that a person had no right to manufactiu^ liquors within the State for exportation to other States^, was not in con- flict with the power to regulate commerce vested exclusively in Congress." See further Police, 3. Compare Oleomaroarine ; Option, Local ; Morai^; Sumptuary^/t-' ^ j R^ ' Pearson et al. v. International Distillery et al, 72 Iowa, 348 (Sept. 1887). 3 Tq be reported in 128 U. S. ■ See.AjipKiroA. PROLICIDE 833 PROMISE PHOLICIDE. See Homicide. PROMISE. A declaration, verbal or written, made by one person to another for a good or valuable consideration, by which he binds himself to do or to forbear from doing some act, and gives to the other a legal right to demand and enforce fulfillment.' Refers to the engagement of a party with- out reference to the reason for it or to the duties of other parties. See Proposal. ''Agreement" is seldom applied to specialties, and " contract " is generally confined to simple contracts.'-' See those terms. Promisor. He who makes a promise. Promisee. He to whom a promise is made. Promissory. Involving a promise; ex- ecutory : as, a promissory — note, oath of office, representation, qq. v. ConcTirrent promises. Where the acts to be performed are simultaneous. Dependent promises. When the agree- ments go to the whole of the consideration on both sides ; when one promise is made the consideration of another. Independent promises. To the extent that the agree- ments do not go to a part of the consideration on both sides. 3 Express promise. A promise made in express tertns, — openly stated. Implied promise. Is inferred from the acts or posi- tion of a person. See Raise. Mutual promises. Promises exchanged at the same time, the one in consideration of the other. A promise on the part of the plaintiff to do something of advantage in law to the defend- ant, and on the part of the defendant to do something of advantage in law to the plaint- iff — one promise being the consideration of the other.^ Whether one promise be the consideration for an- other, or whether the perfoi-manoe, and not the mere promise, be the consideration, is to be determined by the intention and meaning of the parties, as collected from the instrument, and the application of good sense and right reason to each particular case." One dependent promise is a, condition precedent to the other. The breach of an independent promise may be paid for in damages. Either party to a concurrent > [{Tewcomb v. Clark, 1 Denio, 228-29 (1845), Jewett, J. 2 [1 Pars. Contr. 6. See 3 Bl. Com. 158. s [3 Pars. Contr. 677, 588; Dermott v. Jones, 23 How. 331 (1859). 4 Schweider v. Lang, 29 Minn. 256 (1882), Berry, J. 6 Jones V. United States, 96 U. S. 27(1877), Clifford, J. (53) promise may sue the other for a breach of the con- tract, on showing that he was ready to do his part, or was prevented from doing it by the other party. ^ New promise. A promise to pay a debt barred by the statute of limitations. The promise by which a discharged debt is revived must be clear, distinct, and unequivocal. It may, at the same tinae, be either absolute or conditional. If the latter, the pccurrence of the condition must be averred. The rule is different in regard to a debt barred by lapse of time. Acts and declarations recog- nizing the present existence of the debt have been held to take a case out of the statute.' ^he expression of an intention to pay the barred debt is not sufficient. There must be a promise before the debtor is bound. An intention is but the purpose a man forms in his own mind; a " promise " is an ex- press undertaking or agreement to carry that purpose into effect, and must be express, in contradistinction to a promise implied from an acknowledgment of the justness or existence of the debt. The promise must be clear, distinct, omequivocal.' " I will send you the first spare ' V ' or ' X ' I have," does not fairly import a promise to pay absolutely five or ten dollars.* See further Acknowledgment. 1 ; Payment, Part. Original and collateral promise. Ex- pressions used in speaking of liability under the statute of frauds "to answer for the debt or default of another : " the former designat- ing the obligation of the principal debtor; the latter, the obligation of the person under- taking to answer for the debt. " Original " also characterizes any neto promise to pay an antecedent debt of another.s When the object of the promise is a direct benefit to the promisor which he did not enjoy before, and the promise to pay another's debt is a mere incident, the former is not within the sfatute. Within the stat- ute is a promise, where the main object is to obtain the release of the person or the property of the debtor, or other forbearance or benefit to him, though a new consideration moves to the promisor." Cases in which a promise is collateral to the princi- pal contract, but is made at the same time, and be- '8 Pars. Contr. 677. On implied promises, see 19 Cent. Law J. 462-«5, 480-88 (1884), cases; promises en- forcible by strangers, 18 id. 136 (1884), cases. •> Allen V. Ferguson, 18 Wall. 3 (1873), Hunt, J. s Shockey v. Mills, 71 Ind. 293 (1880), Worden, J. ; Hubbard u Farrell, 87 id. 217 (1882); Denny v. Marrett, 29 Minn. 301 (1882); Parker v. Butterworth, 46 N. J. L. 246-47 (1884), cases; Shepherd v. Thompson, 123 U. S. 234-39 (1887), cases; B. S. § 955: 14 F. R. 390, 392, cases. •Bigelow V. Norris, 141 Mass. 15 (1880); Elwell v. Cumner, 136 id. 102 (1883); Dennan v. Gould, 141 id. 16 See generally 27 Cent. Law J. 431 (1888), cases. » [Mallory v. Gillett, 21 N. Y. 414-33 (1860), cases, Comstock, C. J.; 2 Pars. Contr. 7, 9. "Furbish v. Goodnow, 98 Mass. 297 (1867),' cases, Gray, C. J. PROMOTER 834 PROOF comes an essential ground of credit given to the prin- cipal debtor, are generally within the statute; so, also, cases in which the collateral agreement is subse- quent to the execution of the debt, and not the induce- nient to it. But whenever the main purpose of the promisor is not to answer for another, but to subserve some pecuniary or business end of his own, involving benefit to himself or damage to the other party, his promise is not within the statute, although in form and effect to pay the debt of another." The person for whose benefit a binding promise to another is made, unless only incidentally benefited, may maintain an action on it against the promisor.'^ Compare Guaranty. * PBOMOTER. 1. A person who, in a popular or penal action (3. v.), prosecuted of- fenders in the name of the crown and of himself. He was a common informer ; he promoted charges. ^ 2. A person who, by his active endeavors, assists in procuring the formation of a com- pany and the subscription to its shares.* Not a term of law, but of business, usefully sum- ming up in a single woi'd a number of business oper- ations, familiar to the commercial world, by which a company is generally brought into existence.^ ' The promoters of a corporation secured subscrip- tions to its stock without informing purchasers that they were to have stoclt for nothing. Held, that the promoters were fiduciaries, with no right to derive ad- vantage over other stockholders without full disclos- ure, and that the shares of stock should be transferred, and profits refunded, to the corporation." PROMULGATE.' 1. To pubUsh or make known a law after its enactment. Compare Prescription, 1. 3. To announce officially or publicly: as, to promulgate a postal convention, a treaty, a state paper.s See Statute. PEONOUNCE. See Pass, 4. PRONOUNS. See Blank, 2. The use of -" he " in an instrument, in referring to a -person whose Christian name is designated by an 'initial, is not conclusive that the person is a male. Parol evidence is admissible to show that the person ■intended is a female." ' Emerson v. Slater, 22 How. 43 (1859), cases, Clifford, J. ; Wilson V. Hentges, 29 Minn. 104r-5 (1882), cases. ■2 Burton v. Larkin, 86 Kan. 249-50 (1887), cases. s See Trench, Glossary, 160-61. « Morawetz, Priv. Corp. § 546. ' Whaley Bridge Printing Co. u. Green, L. E., 5 Q. B. I)^ 111(1879), Bowen, J. See at length 16 Am. Law Rev. 881-95(1882), cases; Thonjp. Liab. GfBcers, 219; 2 Lindl. Partn. 580; 3 Ap. Gas. 1218. • Chandler v. Bacon, 30 F. E. 540 (1887), eases. ' L. promulgare, to publish. 6 See 1 HI. Com. 45; Aust. Jur., Lect. 28; 17 La. An. 390. » Bemiaad v. Beecher, 71 Cal. 38 (1886). PROOF. "Evidence" and "proof" are often used indifferently, as synonymous ; but the latter is applied, by the most accurate logicians, to the effect of evidence, and not to the medium by which truth is estab- lished. 1 A sufficient reason for the truth of a judi- cial proposition.* This truth is " formal," as distinguished from " real." The object of sound jurisprudence is to ren- der formal truth the reflex of real,— a result which can only be approximately reached; no witness can detail all he saw; no instrument can be framed so as to exclude all doubt as to the intention; and a party may even refuse to explain his conduct. ^ " Proof" means the reasons or grounds on which a proposition maybe maintained; also, conviction; and, also, the instrument or means which tend to lead the mind to a conclusion. ^ " Evidence " includes the reproduction of the ad- missions of parties and of facts relevant to the issue. ''Proof" includes, in addition, presumptions of law and of fact and citations of law.* Judicial proo* is not a matter of arbitrary rule. Its principles are drawn from the experience and observation of men and should be applied as they are by men in general.^ Full proof. Evidence which satisfies the mind of the truth of the fact in dispute, to the entire exclusion of every reasonable doubt. 6 ■ . Preliminary proof; proof of loss. See Loss, 2. Proofs. Evidence given in proof at a trial.' The aggregate of evidence adduced by one or both parties. The obligation to establish by evidence an allegation of fact is called the burden of proof {onus probandi), and often, simply, "the burden." ^ "Burden of proof" is properly applied only to a party affirming some fact essential to the support of his case. In this sense it never shifts from side to side during the trial. Loosely used, it is confounded with the "weight of evidence," which often shifts as ' 1 Greenl. Ev. § 1 ; Schloss v. His Creditors, 31 Cal. 203 (1866) ; Perry v. the Dubuque Southwestern R. Co., 36 Iowa, 106 (1S72). 2 1 Wbart. Ev. §§ 1, 2. s 1 Whart. Ev. § 3. » Lindley v. Dakin, 13 Ind. 389 (1859). » Bell V. Brewster, 44 Ohio St. 699 (1887). « Kane v. Hibernia Mut. Fire Ins, Co., 38 N. J. L. 450 (1876); Starkie, Ev. •817. ' 3 Bl. Com. 367. PROPER 835 PROPERTY facts and presumptions appear and are over- come.i The principle is that he who atarms the existence of a given state of facts must prove it; a rule adopted because the negative does not admit of the direct and simple proof of which the affirmative is capable." The burden of proof resting on a plaintiff is co- extensive only with the legal proposition upon which his case rests. It applies to every fact which is es- sential to or necessarily involved ia that proposition ; not to facts relied upon in defense to establish an in- dependent propoation, however inconsistent with that upon which the plaintiff's case depends. It is for the defendant to furnish the proof of such facts; and, when he has done so, the burden is upon the plaintiff, not to disprove these particular facts, nor the proposi- tions which they tend to establish, but to maintain the proposition upon which his own case rests, nolr withstanding such controlling testimony, and upon tbe whole evidence in the case. The distinction may be narrow, but it is real, and often decisive. ^ He who sets up another's tort must prove it. Con- tributory negligence is to be proven by the defendant. In a suit for non-performance of a contract the plaint- iff proves the non-performance. The rule is altered when the plaintiff sues in tort ; as, in a contract against a bailee, in which case it is sufficient to prove the bailment. If one alleges, he must prove: causes, want of good faith, non-legality. License and formalities are proved by the party to whom they are essential ; crime, be.yond a reasonable doubt.* The burden of proof rests upon the party against who32j|udgment would be given, were no proof to be offered on either side.' In criminal cases toe burden of proof never shifts, but is upon the government throughout.' The weight of evidence shifts from side to side ac- cording to the varying strength of the proofs.' See Allegation; Demonstration, 1 ; DonnT, Reason- able; Evidence; Nesative; Negligence; Offer, 2; Presdmption; Probability; Eedbndancy; Tend; Variance. Compare Probate. Proof-sheets. See Mail, 3. PROPER." 1. Own; one's own: as, proper — costs, county, debt, goods and chat- tels, person. ' Pease v. Cole, 53 Conn. 71 (18S3), Loomis, J. M Greenl. Ev. § 74; 5 Pet. 148; 6 Del. 95; 52 Ga. 180; 119 111. 357; 2 Gray, 132, 527. ' Wilder V. Cowles, 100 Mass. 490 (1868), Wells, J. ; Willett V. Rich, 142 Mass. 357 (1880). '1 Whart. Ev. §§ 358-71. cases; 1 Greenl. Ev. Ch. HI. As to a liquor license, see Mugler v. Kansas, 123 U. S. 674 (18871. 6 1 Whart. Ev. § 357. •Commonwealth v. McKee, 1 Gray, 62-65 (1854), cases; Commonwealth v. Rogers, 7 Mete. 501 (1844). ' Central Bridge Corporation v. Butler, 2 Gray, 132 (1854). On proof and allegation, see 8 Va. Law J. 65 (1884); on right to begin and reply, 25 Cent. Law J. 171, 438-83 (1887), oases. * F. propre: L. proprius^ q. v. 3. Appropriate, q. v.; well adapted; suit- able; fit; sufficient: as, jiroper — action, county, court, form of decree or judgment, legislation. See Necessary. The proper instructions under which the issue in a contested will case is made up and tried are such in- structions as the law of the case and the testimony before the jury make pertinent.^ PROPERTY.- That which is one's own ; something that belongs or inheres exclusively in an individual person. 1. In an abstract sense, ownership, title, estate, right. 3. In a concrete sense, the thing itself which is owned. The right of property is that sole and des- potic dominion which one man claims and exercises over the external things of the world, in total exclusion of the rights of every other individual in the universe. The "ab- solute right of private property" consists in the free use, enjoyment, and disposal of all one's acquisitions, without any control or diminution, save only by the law of the land. 3 Standing alone, the term includes every- thing that is the subject of ownership.* Every species of thing in which there may be own- ership, and which may be made available in the pay- ment of judgments.' A nomen generalissirnum ; extends to every species of valuable right and interest, includ- ing real and personal property, easements, franchises and other incorporeal heredita- ments.' The word "property" alone may include both realty and personalty, unless a different meaning is apparent from the context, as the Revised Statutes of Texas, art. 3140, provide.' May refer to goods and chattels, on the principle of noscitur a sociis.^ Applied to land, comprehends every species of title, inchoate or incomplete. Embraces rights which lie in contract; those which are executory, as well as those which are executted.' ' Wagner v. Ziegler, 44 Ohio St. 69 (1887). 2 F. property: L. proprietas, ownership: proprius^ q. V. > 1 Bl. Com. 139; 2 id. 2; 102 111. 77. ' Stanton n. Lewis, 26 Conn. 449 (1857), Hinman, J. • Baker v. State, ex rel. Mills, 109 Ind. 58 (1886), Zol- lars, J. 8 Boston, &o. R Co. v. Salsm, &c. R. Co., 2 Gray, 35 (1854), Shaw, C. J. ' Moffett V. Moffett, 67 Tex. 644 (1887). s Harwood v. City of Lowell, 4 Cush. 313 (1849). ' [Soidard v. United States, 4 Pet. •512 (1830), Mar- shall, C. J.; 9 id. 133; 10 id. 329. PROPERTY 836 PROPERTY The mere possession of real estate is constantly treated as property.' The word includes choses in action as well as choses in possession — everything that goes to make up one's wealth or estate.' The right to take and prosecute an appeal is prop- erty, within the meaning of a statute against extort- ing property by threats.' Everything which has an exchangeable value is property. The right of property includes the power to dispose of it according to the will of the owner. Labor is property.* That only is property which is recognized as such by the law. When, then, an article, either intrinsic- ally or by use, becomes prejudicial, the law may with- draw from it the attribute of property; as, in the law of nuisances per se.^ See Prohibition, 3. 3. The single word " property" is used as a plea in actions of replevin when a defend- ant claims that the right of property lies exclusively in him. In that case the defendant gives, an obligation called a " claim-property bond," which is substituted for the property.^ See Replevin, 1. Absolute property. A full and com- plete title to and dominion over personalty. Qualified property. A temporary or spe- cial interest, liable to be totally destroyed by the happening of a particular event.' The interest which can be acquired in external ob- jects or things is " property." The things themselves are not, in a true sense, property, but they constitute its founda^tion and material, and the idea of property springs out of the connection, or control, or interest which, according to law, may be acquired in or over them. This interest is "absolute" when a thing is objectively and lawfully appropriated by one to his own use in exclusion of all others; and " limited " or " qualified " when the control acquired falls short of that. To entitle one to bring an action for an injury to any specific object or thing, he must have a prop- ' King V. Gotz, TO Cal. 240 (1886), approving Soulard V. United States, ante. 2 Carlton V. Carlton, 'i2 Me. 116 (1881); Ide v. Har- wood, 30 Minn. 195 (1883); Vaughan v. Murfreesboro, 96 N. C. 317(1887). ' People V. Codman, 57 Cal. 564 (1881). ' Slaughter-House Cases, 16 Wall. 127 (1872), Swayne, J., dissenting; Be Jacobs, 33 Hun, 374, 379 (1884), ^ Cooley, Princ. Const. Law, 315-16; Fisher v. McGirr, 1 Gray, 27 (1854). See also, generally, 4 McLean, 003; 34 Ala. 289; 2 Ark. 299; 2 Cal. 289; 9 id. 143; 31 id. C37; 33 Ga. 294; 102 111. 77; 9 Ind. 202; 34 La. An. 497; 7 Cush. 53; 51 N. H. 511; 33 N. J. L. 561; 1 N. Y. 24; 13 id. 397; 24 id. 384; 56 id. 268; 84 id. 565;' 91 id. 5; 1 Ohio St. 662; 36 Wis. 155; 17F. E. 116, 118. 6 See 1 Wall. Jr. 327; 25 Pa. 197; 52 id. 484; 65 id. 105; 68 id. 221; 2T. &H. S1737. ' [2 Kent, 347. erty therein of one kind or the other. An administra- tor has no property in the body of his intestate.' General property. The general right which one person has in a thing. Special property. Some temporary right of con- trol, until a common purpose is accom- plished. ^ In a contract of bailment the bailor has the gen- eral property, and the bailee a special property, in the thing bailed; and an officer has a special property in goods levied upon. Property in possession " absolute " is where a man has, solely and exclusively, the right, and also the oc- cupation, of any movable chattels; so that it cannot be transf eired from him, or cease to lae his, without his own act or default. "Qualified," "limited," or " special " property is such as is not in its nature per- manent, but may sometimes subsist and at other times not subsist." Private property. Things which belong to an individual or private person. Public property. Anything that belongs to the government — local, State, or national. See Land, Public; Territory, 3. The power of the state over private property is well defined: it may take the property fir a pubhc use, upon compensation being made or secured. It may take by taxation. It may control the use so as to secure equal enjoyment. It may destroy it to arrest a conflagration or the ravages of a pestilence, or to prevent other calamity under an immediate and over- whelming necessity.' See Compensation, 3; Policy, Public. Private property becomes " clothed with a public interest " when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devoteiS his property to a use in which the public has an interest, he, in effect, grants to the public an interest to that use, and must submit to be controlled by the public for the common good, to the extent of the interest thus created. He may withdraw his grant by discontinuing the use. In this category is the business of a common carrier,, an inn- keeper, a warehouseman, miller, ferryman, bridge- keeper, turnpike company, and the like.' Beal property. Consists of such things as are permanent, fixed, and immovable ; as, lands, tenements, and hereditaments of all kinds, which are not annexed to the person, nor can be moved from the place in which they subsist. Personal property. All movable chattels and things thereunto inci- dent; property which may attend a man's person wherever he goes. Mixed, prop- > [Griffith V. Charlotte, &o. R. Co., 23 S. C. 38 (1885), Simpson, C. J. = 2 Bl. Com. 388, 391. ' Munn V. Illinois, 94 U. S. 145, 126, 130 (1876), Field, J. PROPERTY 837 PROPRIETOR erty. Partakes of the characters of realty and personalty; as, a leasehold.' When the term "property " is applied to lands, all titles are embraced, legal or equitable, perfect or im- perfect.^ Personal property has no locality. The law of the owner's domicil determines the validity of a transfer thereof, vmless there is some law of the country, where it is found, to the contrary.^ In a qualified sense, it accompanies the owner whttrever he goes, and he may deal with it and dispose of it according to the law bf his domicil. If he dies intestate, that law, wherever the property may be situated, governs its disposal and fixes the rights and shai-es of the distributees. Such property is taxable where it has its actual sitics.* The maxim that personal property follows the per- son of the owner is but a legal fiction, invented for useful purposes, and must yield whenever the pur- poses of convenience or justice make it necessary to ascertain the fact concerning the situs. In cases of attachment and for purposes of taxation, the maxim is constantly disregarded.' The power of a State to regulate the tenure of real property within her limits, and the modes of its ac- quisition and transfer, and the rules of descent, and the extent to which a testamentary disposition may be exercised, is undoubted. This follows from her sovereignty within her limits, as to all matters as to which jurisdiction has not been transferred to the Federal government. Control over realty would be foreign to the purpose for which the Federal govern- ment was created, and emban-ass the landed interests of the States.' At common law, every corporation has, as an inci- dent to its existence, the power to acquire, hold, and convey realty, except as restrained by its charter or act of parliament. And so, also, as to personalty.' See Abandon, 1; Capital, 2; Caption; Chattel; Commodity; Conceal,!; Condition, Real; Confusion; Conversion, 2; Descent; Devise; Distribution, 2; Effects; Estate; Find, 1; Fixture; Improve; Income; Insurance; Interest, 2; Inventory; Invoice; Money; Mortgage; Nuisance; Ouster; Owner; Partnership; Perishable; Perpetuity, 2; Pledge; Possession; Premises, 3; Prescription, 3; Process, 1, Due; Pub- chase, 2; Pdeprestcre; Bealty; Replevin, 1; Re- puted; Res, 2; Restitution; Rule, 3; Sale; Sepa- rate, 2; Tax, 8; Timber; Title, 1; Trade; Use; Usus; Utere, Sic, etc.; Value; Vest; Will, 2. 1 3 Bl. Com. 144; 8 id. 16; 3 Law Q. Rev. 406 (1887); 106 2 Homsby i-. United States, 10 Wall. 242 (1869), Field, J.; Bryan v. Kennett, 113 U. S. 198 (1883). 3 Black V. Zacharie, 3 How. .514 (1845), Story, J. ' St. Louis V. Ferry Co., 11 WaU. 430 (1870), cases, Swayne, J.; Robertson v. Pickrell, 109 U. S. 610 (1833); 28 Cent. Law J. 7-14 (1886), cases. s Dundee Mortgage Co. v. School District, 19 F. E. 369 (1884), cases. « United States v. Fox, 94 U. S. .320 (1876), Field, J. tJones V. Guaranty, &c. Co., 101 U. S. 625 (1879); Graham v. La Crosse, &c. R. Co., 102 id. 161 (1880); Page V. Heineberg, 40 Vt. 85 (1868), cases: 94 Am. Dec. 381-87, cases; 2 Bl. Com. 256. PROPONEH'T. See Propound. PROPOSAL. "When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtain- ing the assent of that other to such act or abstinence.' When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal when accepted becomes a promise. The person making the proposal is called the "promisor," the person accepting, the "prom- isee." Every promise, and every set of promises forming the consideration for each other, constitutes an agreement. An agreement enforceable by law is a contract.' See Offer, 1. PROPOSITUS. L. Put forward; pro- posed: the person from whom descent is reckoned. 2 See Ancestor. PROPOUND.3 To bring forward; to proffer for judicial action; to propose as genuine : as, to propound a will for probate. See Articulately. Proponent; propounder. He who of- fers for proof, before a court of probate, a writing purporting to be a will. PROPRIA. See Propeius. PROPRIETOR.^ 1. Owner. In the copyright laws, the representative of an artist or author who might himself ob- tain a copyright. 5 From the act of 1790 down to 1870, there could be no " proprietor " except the owner of the work of a citizen or resident author, including a transferee of such resident's right of copyi-ight. When, therefore, in the act of 1870, the word "proprietor" is found used, for the first time, in connection with the words "author, inventor, designer," as a person to whom a copyright may be granted, it must be construed, if possible, m harmony with the inflexible policy and intent of the copyright law up to that date, and held to be used in the sense in which the word had always been used in our copyright law, viz., as meaning the lawful owner and representative, whether by assign- ment, employment, death, or other lawful succession, of the exclusive rights of some native or resident author or artist only." The proprietor of a native work is intended.' See Prist. Proprietary. Belonging to ownership; belonging or pertaining to a proprietor — one who has the legal right or exclusive title to anything, whether in possession or not; an 1 [Pollock, Contr. '0. quoting Indian (India) Conti-act Act, 1872. 2 2B1. Com. 224; 6 Pa. 166. ' L. pio-ponere, to put forward, propose. * L. proprius, q. v. ' Yuengling ^. Schile, 20 Blalch. 459, 461-63 (1882), Brown, J. PEOPEIUS PROSECUTION owner; relating to a certain owner or pro- prietor.! 2. A person in possession : a manager, or operator. A law imposing a penalty upon the " proprietors " of a railroad, for negligence causing death, applies to a corporation owning and operating a road.^ PEOPEIUS. L. One's own ; individual. Propria persona. In his own person; personally. Abbreviated p. p. Applied to an appearance made, a pleading filed, or other thing done in court by a party " in person." Proprio vigore. By its own force; in- trinsically. Tlie same as ex proprio vigore. State rules of practice have no efficacy, proprio vigore, upon the United States courts. They must first be adopted.* When judgment is affirmed by an appellate court, the sureties, proprio vigore, become liable to the same extent as the principal' obligor.* See under Bona, 2; Injuria. PEOPTEE. L. On account, of; by Tea- son of; owing to; for. Propter aflfectmn. Because of favorable inclination. Propter defectum. For incompetency. Propter delictum. For criminal con- duct. See Challenge, 4. Propter impotentiam. On account of helplessness. See Animal. Propter privilegium. By virtue of special exemption. See Animal. PEOSECUTE.6 To carry on a judicial proceeding ; in particular, a proceeding of a criminal nature. Prosecute with effect. To carry on, with due diligence, to a final issue or judgment, and without fraud or unnecessary delay : as, to prosecute ar^ appeal, or a writ of error." The condition to prosecute a replevin bond " with effect " is to be construed as meaning with success, or to a successful termination. The condition is broken by a dismissal of the action.^ Prosecution. 1. The act of conducting any judicial proceeding; also, such proceed- ing itself. ' Ferguson U' Arthur, 117 U. S. 487 (1886): The Impe- rial, Webster's, and Worcester's Dictionaries; Duty Laws, R. S. § 2504, Sohed. M. p. 480. = Commonwealth v. Boston, &c. E. Co., 11 Cush. 512, 616 (1863). » The Mayor v. Lord, 9 Wall. 413 (1869). * 101 U. S. 15; 1 Black, 26S; 86 Pa. 127. " L, prosequi, q. v. » Kasson v. Brocker, 47 Wis. 87-8S (1870), Taylor, J. ' Boom u St. Paul Foundery, &c. Co., .33 Minn. 254 (1885), eases, Dickinson, J.; 101 U. S. 15; 7 Conn. 436; 5 C. & B. 284; 8 M. & W. 477. 2. Specifically, a suit in a criminal court. 3. The informant or complainant in a penal or criminal proceeding, and his counsel. The manner of formal accusation of crime, which is by presentment, indictment, or in- formation.! A criminal proceeding at the suit of the government.* 'Criminal prosecution. A prosecution in a court of justice, in the name of the govern- ment, against one or more individuals ac- cused of crime. 3 In the provisidn that " in all prosecutions the ac- cused shall have a speedy trial," the reference is to criminal prosecutions for violation of the laws of the State, not to prosecutions for violating city ordi- nances.^ Malicious prosecution. A prosecution on some charge of crime, which is willful, wan- ton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy." " Malicious " is not used in the sense often ascribed to it. There may exist ill-will, malevolence, spite, a spirit of revenge, or a purpose to injure without cause; but not necessarily so.^ When the general issue -is pleaded, the plaintiff must prove: the fact of the prosecution; that the de- fendant was the prosecutor or instigator; that the proceedings were finally determined in favor of the accused; that the charge was unfounded; that it was made without probable cause; and that the defendant T\'as actuated by malice. Malice alone is not sufficient, as a person actuated by the plainest malice may nev- ertheless prefer a well-founded accusation, and have a justifiable reason for the prosecution of the charge." In trespass against a collector of revenue for a wrongtul seizure, the sole question is probable cause.' Malice and the want of probable cause must both concur. The existence of malice is always for the jury. The question of probable cause is for the court, on the facts found. Malice may be inferred from the want of probable cause, but the want of probable cause cannot be inferred from any degree of even ex- press malice. Failure in a suit is not evidence of either malice or want of legal cause. ^ 1 [4 Bl. Com. 301. 2 Tennessee v. Davis, 100 U. S. 260 (1879), Strong, J. ' Harger v. Thomas, 44 Pa. 130 (1862) : 1 Chitty, Cr. L. ; State V. Williams, 34 La. An. 1199 (1888); 30 Kan. 763; 3 A. K. Marsh. 74. < State V. City of Topeka,.36 Kan. 87-88 (1886), cases. = Hamilton v. Smith, 39 Mich. 229 (1878), Graves, J. 8 Wheeler v. Nesbitt, 24 How. 649-60 (1860), Clifford, J. 1 Stacey v. Emery, 97 U. S. 645 (1878), Hunt, J. s Stewart v. Sonneborn, 98 U. S. 192-96 (1878), cases, Strong, J. See further McCarthy v. De Armitt (Pitts- burgh Riot, July, 1877), 99 Pa. 63 (1881), cases; Jones v. Jones, 71 Cal. 89 (1886); Neall v. Hart, 115 Pa. 354 (1887); PROSEQUI 839 PROTECTION Legal malice is made out by showing that the pro- ceeding was instituted from any improper or wrongful motiverit is not essential that actual malevolence or corrupt design be shown. ' The criminal prosecution must have terminated— by a verdict ot not guilty, by an ignoring of the bill, by the entry of a nolle prosequi, or by a discharge of the accused from bail or imprisonment. ^ No action lies to recover damages for the prosecu- tion of a civil suit, however unfounded, where there has been no actual interference with either the person or the property of the defendant. ' See Cacse, Probable; Crihs; Indictment; Malice; Sdspioion, 3. Prosecutor. He who carries on or main- tains any criminal proceeding. Prosecu- trix. The feminine form of the Latin word. Public prosecutor. An ofBcer of govern- ment, as the attorney-general, or a district or county attorney, whose duty it is to con- duct criminal proceedings on behalf of the people. See Attorney-General. PROSEQUI. L. To pursue: sue, prose- cute. Nolle prosequi. To not wish to prose- cute. See Nolle, Prosequi. Ifon prosequitur. He does not prosecute. Said of a judgment in a civil action for some default in the plaintiflE, as, a failure to file a declaration or other pleading. Spoken of, briefly, as a non pros., and the plaintiff is said to be "nonpros'd."^ Compare Non- suit. PROSPECT. See Landscape ; Light. PROSPECTIVE. See Damages; Re- trospective; Statdte. PROSPECTUS. The purpose of a pros- pectus of an intended company is merely to invite persons to become allottees of the shares, or original stockholders in the com- pany. a prospectus of an intended company ought not to misrepresent actual and material facts, or to conceal facts material to be known, the misrepresentation or concealment of which may improperly influence and Brewer v. Jacobs, 2-3 F. E. 217-44 (1885), cases; 24 Cent. Law J. 663 (1887), cases; 26 id. 886-88 (1888); 13 F. R. 253; 35 Ind. 15, 286; 43 id. 65; M La. An. 246; 4 Cush. 239; 30 Minn. 518; 76 Mo. 669; 100 Pa. 94; 13 R. I. 617; 64 Tex. 673. 'Cooley, Torts, 185; Peck v. Chouteau, 91 Mo. 149 (1886), cases. 3 Lowe V. Wartman. 47 N. J. L. 413 (1685). » Muldoon V. Rickey, 103 Pa. 112 (1883), cases; Burton t-. St. Paul, &c. R. Co.', 38 Mmn. 191 (1885); 18 Cent Law J. 242-45 (18&4), cases; 32 Alb. Law J. 124-26, 145-48 (1885), cases. 4 See 3 Bl. Com. 296, 316, 376. mislead the reader; for it he is thereby deceived into becoming an allottee of shares, and, in consequence, suffers loss, he may proceed against those who thus misled him.' PROSTITUTE. A female given to in- discriminate lewdness for gain.^ But incontinence with one or two may suffice.' A woman who is unchaste, who has sur- rendered herself to illicit sexual intercourse with men.4 Common prostitute. A public prosti- tute, who makes a business of selling the use of her person to the male sex for thepurpose of illicit intercourse.'' A woman may be a prostitute and have illicit con- nection with one man only; but, to be a " common " prostitute, her lewdness must be more general and in- discriminate.* Prostitution. 1. In i(;s most general sense, the act of setting one's self up for sale, or of devoting to infamous purposes what is in one's power : as, the prostitution of talents or abilities, the prostitution of the press, etc. 2. In a more restricted sense, the act or prac- tice of a female offering her body to an indis- criminate intercourse with men ; the common lewdness of a female.^ Not defined at common law; offenses of the nature not being punishable b.v common-law tribunals. The definitions of Walker, Webster, and Johnston refer to the act of permitting illicit intercourse for hire, an in- discriminate intercourse, or what is deemed '' public " prostitution: common, indiscriminate, sexual inter- course, in distinction from sexual intercourse confined exclusively to one individual. The word has been used in a more loose and general sense."* While the testimony of prostitutes is to be closely scrutinized, credit is not to be withheld if the testi- mony appears to be worthy of confidence.' See Ab- duction; Bawd. PROTECTION. See Assault; De- fense, 1. "Nor shall any State . . deny to any person within its jurisdiction the equal protection of the laws.'" "^ By ' ' equal protection of the laws " is meant equal security to every one in his private rights — in his right to life, to liberty, to 1 Peek V. Gurney, L. R., 6 Eng. & Ir. Ap. 377 (187.3); Simons v. Vulcan Oil, &c. Co., 61 Pa. 202 (1869). 2 State V. Stoyell, 54 Me. 27 (1866), Appleton, C. J. s State V. Rice, 66 Iowa, 431 (1881). • Springer v. State, 16 Tex. Ap. 593 (1881), Willson, J. , = [Carpenter v. People, 8 Barb. 610 (1850), Welles, P. J. » Commouwealth v. Cook, 12 Mete. 07 (1846). Dewey, J. ; Fahnestock v. State, 102 Ind. 163-63 (1885), cases. ' Paul V. Paul, 37 N. J. E. 25 (18&3), cases. ' Constitution, Amd. XIV, sec. 1. PROTEST 840 PROTEST property, and to the pursuit of happiness. It implies not only that the means which the laws afford for such security shall be equally accessible to him, but that no one shall be subject to any greater burdens or charges than such as are imposed upon all others under like circumstances. i See Citizen, page 184. The inhibition qiloted was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legisla- tion. Under the designation " person " a private cor- poration is included." Legislation which applies to particular bodies or as- sociations, imposing upon them additional liabilities, is not forbidden, if all persons brought under its influ- ence are treated alike under the same conditions. ^ PROTEST." A declaration, more or less formal, against an act about to be done or al- ready done, intended to express dissent on the ground of impropriety or illegality, to preserve a right which otherwise might be held relinquished, or to exonerate from a lia- bility which might otherwise attach. 1. Objection, disapproval, dissent: as, to pay money under protest. Duties or taxes illegally demanded may be paid " under protest " and the receiver afterv.'ard be com- pelled to refund them. Such payments are involun- tary." Under acts relating to the recovery of duties paid under protest, a written puotest, signed by the party making it, with a definite statement of the grounds, is a condition precedent to the right to sue for a re- covery.® Protests against the levy of duties are commercial documents, and if they are sufficiently formal and ac- curate to inform the collector distinctly of the posi- tion of the importer, the object of the statute requiring them is accomplished. They have always been liber- ally construed by the courts, and great formality or fullness is not required.' See further Payment, Involuntary. 3. Referring to commercial paper, in a strictly technical sense, not applicable to a 1 County of Santa Clara v. Southern Pacific E. Co., 18 F. E. 398 (1888), Field, J.; ib. 450-51, cases. See also Claybrook v. City of Ownesboro, 16 id. 302-3 (1883), ^ Pembina Mining Co. v. Pennsylvania, 125 U. S. 188 (1888). » Missouri E. Co. v. Mackey, 137 U. S. 309 (1888). « L. profestari, to bear witness. = Philadelphia v. The Collector, 5 Wall. 732 (1866); 13 Pet. 207; 17F. E. 505. 'Nichols V. United States, 7 Wall. 126(1808); E. S. §§ 3931-33, 3011-12, oases. ' Herman v. Schell, 18 F. E. 892 (1884), cases, Coxe, J. ; United States v. Leng, ib. 15 (1883). promissory note. The word, however, by ■ general usage has acquired a more extensive signification, and in a given case may in- clude all the acts which by law are necessary to charge an indorser on such paper.i The formal declaration drawn up and signed by a notary that he presented a [foreign] bill of exchange for acceptance or payment and that that was refused. But, with business men, includes all the steps necessary to charge an indorser.^ Demand of -payment of a note in proper form and at a proper time; and, in case of non-payment, due and reasonable notice to the indorsers, by any suitable person. 3 In the popular sense, includes demand of the maker and notice of . non-payment to indorsers.* Mercantile paper which has " gone to protest " is said to be dishonored, q. v. Protest includes, in a popular sense, all tiie steps taken to fix the liability of a drawer or an indorser. When there is nothing else in a waiver of protest to limit the meaning, the word must be taken as used in that sense, whether applied to foreign or domestic bills or to promissory notes. ^ The object of the notice is to enable the indorser to take measures for his own security. The language used should be such as to reasonably apprise the party of the particular paper on which he is sought to be charged.' Supra protest. Over protest: said of acceptance of a bill of exchange by a person not a party to it, after a protest for non- acceptance by the drawee; also, of a pay- ment, by such a person, after protest for non-payment. When a bill is protested for non-acceptance or for better security, any person may accept it siipra pro- test, for the honor of the drawer or of any indorser. The acceptor personally appears before a notary, with a witness, and declares that he accepts the bill in 1 Coddington v. Davis, 1 N. Y. 189 (1848), Gardiner, J. ; 1 Comst. 186; 3 Denio, 25; 1 Pars. Bills & N. 471, 575, 579, 582, cases. "Townseud v. Lorain Bank, 3 Ohio St. 353 (1883), Eanney, J. See also MoFarland v. Pice, 8 Cal. 636-37 (1837); Sprague v. Fletcher, 8 Greg. 370 (1S80). s [Ayrault v. Pacific Bank, 47 N. Y. 575 (1872), Allen, J. * [Brannon v. Hursell, 113 Ma-ss. 70 (1873), Morton, J. ; 2 Bl. Com. 469. ' Woltord V. Andrews, 29 Minn 261 (1882); Baker v. Scott, 29 Kan. 137 (1883); Annville Nat. Bank v. Ketter- ing, 106 Pa. 531 (1884); 2 Daniel, Neg. Inst. §§ 929, 1094- 95; 42 Miss. 807; 37 Mo. 91; 63 Barb. 467; 7 Hun, 362. « Bank of Cooperstown v. Woods, 28 N. Y. 559 (1864): 19 id. 518; Edwards, BUls, 289. PROTESTANT 841 PROVIDED honor of a party named, and that he will satisfy the same at the appointed time ; and he then subscribes | the foi-mula — '• Accepted, supra prof est, in honor of I A. B. ; " or, as is more usual, " Accepts, S. P." ' Payment supra protest is where a bill, protested for non-payment, is paid by another person for the honor of one of the parties. Any party to a bill may pay for honor; and so may a mere stranger, without previous request or authority. This is a provision of the law-merchant, introduced to aid the credit and circulation of bills of exchange. It extends to no other instruments." See Negotiate, 2. 3. When a vessel from a foreign port is compelled to put into a port for which it is not destined, the master, or person next in command, makes a protest, that is, a decla- ration under oath, as to the causes and cir- cumstances of the distress or necessity. ^ 4. A declaration by a member of a legis- lative body that he dissents from some act or resolution of the body. Protestation. Pleading so as to avoid an implied admission of a fact which cannot be positively aiSrmed or denied, is by a "protestation:" the party interposes an oblique allegation or denial of the fact by protesting {protestando) that the matter does or does not exist ; at the same time avoiding a direct afiBrmation or denial. Coke's defini- tion is " an exclusion of a conclusion." * Prevents the party from beins; concluded by a fact or circumstance which cannot be directly affirmed or de- nied without "duplicity," and which, without protest, he might be deemed to have tacitly waived or admitted.* PROTEST AJS'T. Includes all those who believe in the Christian religion and do not acknowledge the supremacy of the jjope.^ The word is capable of sustaining a charitable bequest. PROTHONOTAET.6 The chief scribe in a court.^ The head clerk in some courts, whose prin- cipal duty is to make and preserve accurate records of proceedings in court, and as pre- scribed by law. In England, prior to 18.37, there were three such of- ficials in the court of common pleas, and one in the king's bench. 1 [Byles, Bills, 807. » [Byles, Bills, 873. ' [E. S. § 2891. <[:3B1. Com. 311; Coke, Litt. 121; 1 Chitty, PI. 534; Steph. PI. 235. 'Tappan's Appea^l, 52 Conn. 418 (1884), Park, C. J.; Beardsley v. Bridgeport, 63 id. 493 (1885). ^ It. protonotarius; Gk. pro'tos, first, chief ; Xi. noia- rius, scribe, clerk. ' [1 Bl. Com. 78. PROUT. See Recoedum, Prout, etc. PROVE. See Appeove ; Deeaign ; Pro- bate; Peoof. Provable debts. See Baxi^lruptcy. PROVIDED; PROVISO.i Employed in contracts, deeds, wills, statutes, and trea- ties in the senses indicated by the author- ities subjoined. " Provided " is an apt word to create a condition. Yet it may not import a condition: it is often used by way of limitation or qualification, especially when it does not introduce a new clause, but only serves to qualify or restrain the generality of a former clause. =^ No word better expresses a condition; and it is always so taken, unless the context shows the in- tent was to create a covenant.^ "Provided," "so that," and "if it shall happen" are all of the same import as " on condition." " Pro- vided always " may constitute a condition, limitation, or covenant, according to the circumstances.* See If. " Provided always " refers to all that has gone be- fore, and qualifies precedinp limitations.*' "Provided" or "proviso," in a deed or will, though appropriate to constitute a common-law condition, does not invariably or necessarily do so. Giving way to the intent, may express a limitation in trust.^ " Proviso," in a statute, is generally intended to re- strain the enacting clause; to except something which otherwise would have been within it; in some measure to modify it.' In deeds and laws " proviso " is a limitation or ex- ception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate, or the other be exercised, unless in the case provided.^ In a statute, excepts something from the enacting clause, qiialifies or restrains its generality, or excludes some possible ground of misinteiTDretation, as, extend- ing to cases not within the purview.^ Carves special exceptions out of the body of a stat- ute.i" Is ordinarily confined to the last enactment; but the context may evince a different intent. ' ^ He who sets up any such exception must establish * L. prO'Videre^ to foresee, act with foresight. Pro- viso: it being provided. •■> Chapin v. Harris, 8 Allen, 596 (1864), Gray, J. » Eich V. Atwat«r, 16 Conn. *419 (1844), Williams, C. J. * Heaston v. Commissioners, 20 Ind. 403 (1863), Wor- den. J. » Martelli v. Holloway, 5 L. E., H. L. S49 (1872). * Stanley v. Colt, 5 Wall. 166 (1806), Nelson, J. ' Wayman v. Southard, 10 Wheat. 30 (1835), Marshall, Chief Justice. s Voorhees v. Bank of the United States, 10 Pet. 471 (1836), Baldwin, J. » Minis V. United States, 15 Pet. 445 (1841), Story, J. ■"United States v. Dickson, 15 Pet. 165 (1841), Story, J.; Eyan v. Carter, 93 U. S. 83 (1870). " Friedman v. Sullivan, 48 Ark. 21S (1886), cases; Exp. Lusk, 83 Ala. 5^-23 (1886), cases. PROVINCE 843 PUBLIC it, as being within the words as well as within the rea- son of the law.' An " exception " is of that which otherwise would be Included in the category from which it is excepted~' See Exception, 2. PROVHTCE. In a figurative sense, power, authority, prerogative: as, in saying that it is the province of the jury to decide the facts, and the province of the court or judge to decide the law. PBOVISION. That which is provided, arranged, or stipulated for : as, the provisions of a contract, of a will, of a constitution, statute, treaty. A rule or doctrine established by judicial decision is a *' provision of law," equally with one enacted by the legislature. 3 See Provided. PBOVISIONAL. Temporary; for the time being : as, a provisional — assignee, com- ■ mittee, court, injunction or other remedy. PEOVISIOIfS. See Geoceeies; Health; Maeket ; Perishable. The "provisions " of a ship mean articles of food or sustenance: her "stores" include wood, coal, and the like.* Fat cattle,' Indian corn," wine and brandy,' have been held to be provisions. fiEOVISO. See Peovided. PBOVOCATIOM". See Defense, 1. No provocation by words, however opprobrious, will mitigate an intentional homicide, so as to reduce it to manslaughter." In the law of voluntary manslaughter, it is not the degree of the force with which a blow may be struck or an assault inflicted that constitutes " legal provo- cation," but it consists in an assault or battery of some degree which, under the attending circumstances, or by reason of its force, is calculated to create, and does create, sudden heat and passion.^ No provocation can render homicide justifiable or excusable; but it may reduce it to manslaughter. ^o That circumstances of mitigation must form part of the res gestce has been repeatedly ruled." In an action of trespass for an assault and battery ' United States v. Dickson, ante. 'United States t;. Cook, 17 Wall. 177 (1872), cases: 1 Ld. Bay. ISO; 1 B. & A. 48. 3 Clark V. Lake Shore, &c. E. Co., 94 N. T. S20 (1883). ' Crooke v. Slack, 20 Wend. 177 (1833), Nelson, C. J. 5 United States u Barber, 9 Cranch, 248 (1815); United States V. Sheldon, 8 Wheat. 119 (1817). « Atkinson v. Gatcher, 23 Ark. 103 (1861). ' Mooney v. Evans, 6 Ired. Eq. 363 (1849). "Commonwealth v. Webster, 6 Cush. 805 (1850), Shaw, C. J. » Williams v. Commonwealth, 80 Ky. 316 (1382), Har- gis, J. '"Honesty v. Commonwealth, 81 Va. 298 (1886). 11 Bonino v. Caledonio, li4 Mass. 302 (1887); 2 Greenl. Ev. § 267. the defendant cannot .give in evidence, in mitigation of damages, matters of provocation on the part of the plaintiff, unless they happened ooniemporaneously with the assault and battery, or so recently as to in- duce the presumption that the assault was committed under the immediate influence of the passions excited by the provocation.! PROXIMATE, See Cause, 1; Damages; Dominion. PROXY. A shortened form of " procu- racy : " procuration, agency. A person empowered to act for another, as, to vote a share or shares of the capital stock of a corporation ; also, the authority itself to represent thei constituent.'' Shareholders cannot vote by proxy without special provision in the charter so' to do." The right of voting by proxy at the meetings of an incorporated company is not a general right, and the party who clai^is it must show a special authority; but where, rejecting all votes cast by proxy, there is still a majority, the minority are bound.* A shareholder in a national bank may vote by proxy, but no officer or employee of the bank may act as proxy." PRUDENCE. Varies with the exigencies that require vigilance and attention, con- forming in degree to the circumstances un- der which it is to be exercised. "Ordinary care and prudence" imports that de- gree of care and prudence which a careful and prudent man would exercise in the same circumstances.^ See Cake; Discretion. PSYCHOLOGY. See Insanity; Pee- SUMPTION. PUBIiIC.7 1, n, "The public" are the body of the people at large ; the people of the neighborhood ; the community at large ; the people. 3, adj. Belonging to, concerning, of inter- est or importance to, affecting the people or community at large ; for the accommodation or benefit of all persons ; also, generally known. Opposed, private, q. v. As in speaking of public or a public — act, administration, agent, assembly, attorney, I Reiser v. Smith, 71 Ala, 481 (1882j: 2 Greenl. Ev. § 93; Field, Dam. § 604; S Sedg. Dam. 547; 1 Waterm. Tresp. § 266; 1 Sutherl. Dam. 287; 1. Mass. 11; 19 Johns. 319; 17 Iowa, 468; 17 Mo. 637. = See 1 Bl. Com. 168, 478; 1 Paige, 590. ' Brown v. Commonwealth, 3 Grant, 209 (1856). • Craig V. "First Presby. Church, 88 Pa. 47 (1878): 2 Kent, 894; Angell & Ames, Coip. §§ 127, 131, 493. « H. S. § 5144. » Fassett V. Roxbury, 55 Vt. 655-56 (1883), Eowell, J. ; 28 id. 180; 36 id. 580; 51 id. 131. ' L. publicus, belonging to the people. , PUBLICATION 843 PUEBLO auction, blockade, boundary, bridge, build- ing, charity, conveyance, corporation, docu- ment, domain, easement, enemy, entertain- ment, exhibition, grant, health, highway, holiday, house or inn, indecency, land, law, notice, nuisance, office or officer, peace, place, policy, property, prosecutor, record, river, sale, school, seal, statute, stocks, trial, use, verdict, vessel, war, water, welfare, wrong, qq. v. "Public" and "general" are sometimes used as synonymous, meaning merely that which concerns a multitude of persons; but in other connections "pub- lic " refei-s to that which concerns all the citizens, and every member of the state, while " general " refers to a lesser, though still a large, proportion of the commu- nity.^ Compare General. The word "public" is used variously, its specific meaning depending upon the subjects to which it is applied. This is illustratTed in the different uses of the word as applied to law, statutes, debts, securities, and taxes. '^ The word sometimes describes the use to which property is applied; at other times, the character in which it is held. If the use is of such a nature as concerns the public, and the right to its enjoyraient is open to the public upon equal terms, the use will be public, whether compensation be exacted or not.^ PTJBIiICATIOlf. 1. Making a thing known to the pxiblic ; proclaiming to general hearing ; exposing to general view. As, putting forth a law in some printed form; ex- hibiting a deposition taken in chancery; inserting a summons or other order in a newspaper as an adver- tisement; the uttering of words in slander, and the declaring by pictures, signs, etc., in libel; a testator's statement that a designated writing is his will. See those general subjects. 3. Something, as, a book or print, which has been published — made public or known to the world. A writing as well as a print- ing may be " published." What constitutes a publication or a making public may be a question, and must generally depend upon the circumstances of each case. But a private letter sent in a sealed envelope can- not be considered » publication within the statute against mailing indecent publications.* See Obscene. The office of an " order of publication" is to notify parties, who are properly such, of the proceeding, and of the object sought ; it is a substitute for a subpoena." ' [1 Greenl. Ev. % )8S. 2 Morgan v. Cree, 46 Vt. 786 (1861), Peck, J. 3 Gerke v; Purcell, 25 Ohio St. 341 (1874), White, J. 4 United States v. Loftis, 8 Saw. 197 (1882), Deady, J. ; s. c. 12 F. B. 673. See United States v. Gaylord, 17 F. E. 438 (1883), Drummond, J. = Savary v. Da Camara, 60 Md. 148 (1882). It is a rule, without qualification or exception, that when it is sought to conclude a party by constructive " service by publication " there must be a sti-ict com- pliance with the requirements of the statute; nothing can be taken by intendment; every fact necessarj' to the exercise of jurisdiction, based on the service, must affirmatively appear in the mode of service. ' An " award " is published when made and notice given to the parties.^ In " slander," words are published although spoken to one person, who knows them to be false. 3 See Slander. But sending a letter containing a "libel" to the person defamed, where no third party hears or reads it, will not support an action for damages.* See Libel, 5. As to publication by "statutes " and •' or- dinances," see Prescription, 1 ; Proclama- tion, 2 ; Promulgate. See also Copyright. The publication of a " will " is the act of declaring or making known to the witnesses that the testator understands and intends the instrument subscribed by him to be his last will. 5 Kepublieation. A re-publishing ; in par- ticular, the revival of a will previously re- voked or changed by the addition of one or more codicils. PUBLICIST. A writer upon interna- tional law — the laws of nations, public law in its comprehensive sense. PUBLISHER. One who by himself or his agent makes a thing publicly known ; one engaged in the circulation of books, pam- phlets, and other papers.' See Editor ; Man- ufacturer; Newspaper; Printer; Utter, 3. PUEBLO. In its original signification, people or population, but is now used in the sense of "town." It has the indefiniteness of that word, and, like it, is sometimes ap- plied to a mere collection of individuals re- siding at a particular place, a settlement or village, as well as to a regularly organized municipality.' I Cissell V. Pulaski County, 3_ McCrary, 449 (1881), cases; Hartley v. Boynton, 17 F. E. 876 (1883). "Knowlton v. Homer, 30 Me. 556 (1849); 9 Bing. 605; 5 B. & Ad. 518; 1 N. J. L. 415. 3 Marble v. Chapin, 132 Mass. 825 (1882). < Spaits 1'. Poundstone, 87 Ind. 524-25 (1882), cases; 1 Am. L. Cas. 114. 5 Lewis V. Lewis, 18 Barb. 23 (1858), Brown, J. ; Wat- son V. Pipes, 32 Miss. 466 (1856): 2 Green!. Ev. § 661. » Leroy v. Jamison, 3 Saw. 377 (1876): Bouvier's Law Diet. 'Trenouth v. San Francisco, 100 U. S. 251 (1879), PUFFINa 844 PUNISH At the time of the conquest of California, July 7, 1846, there was a Mexican pueblo at the site of the present city of San Francisco.' Ownership of the lands in the pueblos could not in strictness be affirmed. It amounted to little more than a restricted and qualified right to alienate por- tions to its inhabitants for building or cultivation, and to use the remainder for commons, for pasture lands, or as a source of revenue, or for other public pur- poses. This right of disposition and use was, in all particulars, subject to the control of the government of the country. The right appears to have been com- mon to the cities and towns of Spain from an early period in her history, and was recognized in the laws governing her colonies on this continent." Upon ^he conquest, the United States succeeded to the rights and authority of the Mexican government, subject only to their obligations under the treaty of Guadaloupe Hidalgo. Before the estate of the pueblo could become absolute and indefeasible, some action was required on the part of the United States. This action was taken by act of July 1, 1804. Down to that time, the city of San Francisco held under its original imperfect Mexican title only. Afterward, it was possessed of the fee " for the uses, and purposes specified" in the Van Ness ordinance. The State statute of limitations began to run, as to this title, July 1, 1804.= The pueblo Indians in New Mexico held their lands by' a right superior to that of the United States. Their title dates back to grants made by Spain before the Mexican revolution, fully recognized by the Mexican government, and protected by it in the treaty of (jruadaloupe Hidalgo, by which the country and the allegiance of its inhabitants were transferred to the United States. " For centuries the pueblo Indians have lived in villages, with municipal government. They adopted the Spanish language, and the Christian relig- ion as taught them by Spanish Catholic missionaries. They are a peaceable, industrious, intelligent, honest, and virtuous people. They are Indians -only in feat- ure, and in a few habits." * PUFFING. See Auction. PUGILISTS. See Peize-fighting. PUIS. See Continuance, 1. PUNCTUATION. Compare Grammar. When the meaning of a clause in an instrument is doubtful, the cpnrt may insert punctuation to show of what constniction the words are capable; and if by such aSd the com-t is enabled to see that the language can bear an interpretation which will make the whole instrument rational and self-consistent, it is bound to adopt that interpretation, in preference to another Field. J.; Grisaru McDowell, 6 Wall. 372 (1867); More V. Steinbach, 127 U. S, 70, 78 C1888), cases. ' Trenouth v. San Francisco, ante. 2 Townsend v. Greeley, 5 Wall. 336 (1866), Field, J. 3 Palmer v. Low, 98 U. S. 16 (1878), Waite, C. J. ; San Francisco v. Scott, 111 id. 768 (1884). * United States v. Joseph, 94 U. S. 618, 616 (1876), Mil- ler, J. which would attribute to the parties an intention ut- terly capricious, insensible and absurd.^ In the interpretation of written instruments veiy little consideration is given by the courts to the punct- uation, and it is never allowed to interfere with or control the meaning of the language used. The words must be given their common and natural effect re- gardless of the punctuation or grammatical construc- tion." When the punctuation is strictly consistent with one or two senses, equally grammatical, and inconsistent with the other, it should be allowed the force of open- ing the question of construction to receiving aid from the context, and from the purpose in view.'* PUWISH.4 To afflict with pain or loss, with a view to amendment ; to impose a pen- alty for the commission of a crime. Punishable. Liable to punishment. * May be punished, or liable to be punished.^ Not, must be punished, but liable to be pimished.^ Punishment. Punishments are evils or inconveniences consequent upon crimes and misdemeanors, and inflicted by human laws, in consequence of disobedience or misbe- havior in those to regulate whose conduct such, laws are made.^ In ex post facto laws, " punishment " is synonymous with chastisement, correction, loss, or suffering to the party supposed to be punished, and not in the legal sense which signifies a penalty inflicted for the commis- sion of crime. Wharton's definition, "the penalty for transgx-essing the law," is, per- haps, as comprehensive and accurate as can be given. 9 The end of punishment is not atonement or expia- tion, but precaution against future offenses.'" The power is exercised through the means which the laws provide.'' A statute which describes an act as punishable and imposes a fine creates an offense." ' Se Denny's Estate, 8 Irish Eq, 447 (1874), Chris- tian, Ld. J. 2 O'Brien v. Brice, 21 W. Va. 707 (1883), Snyder, J.* ' Caston V. Brock, 14 S. C. 107 (1880), Williard, C. J. ; Albright V. Payne, 48 Ohio St. 14-15 (1885j, cases; 65 Pa. 311; 38 Wis. 434. * F. pmiiss-, punir: L. punire, to impose a penalty upon. ' Commonwealth v. Pemberton, 118 Mass. 42 (1875). " United States v. Watkinds, 7 Saw. 94 (1881). ' State V. Neuneri 49 Conn. 233 (1881); 58 Ga. 200. e[4Bl. Com.7. ' Exp. Garland, 4 Wall. 393 (1866), Chase, C. J. See also Matter of Bayard, 25 Hun, 546 (1881). '»[4B1. Com. 11,^3. "Exp. Milligan, 4 Wall. 119 (1866). "Be Jackson, 14 Blatch. 245 (1877). PUNISHMENT 845 PUNISHMENT Arbitrary punishment. Such punishment as in degree or kind is left wholly to the dis- cretion of the- judge, in distinction from such as is defined by statute. Capital punishment. Punishment of death : originally, by decapitation. Abolished in Maine (in ISST), in Rhode Island, and in Wisconsin. Except for treason, never existed in Michigan, until April 0, 18S7.' The legislature of New York, by an act approved in April, 1888, substituted electricity, as the means of ex- ecuting persons sentenced to death, for hanging. A centiuy ago, in Massachusetts ten and in Dele- ware twenty crimes were punishable with loss of life.'" Corporal punishment. Any kind of cor- poral privation or suffering which is inflicted by a sentence, directly by way of penalty for an offense. 3 Also, such chastisement in- flicted by a teacher. The reasonableness of the pvmishment administered by a school teacher to a pupil is a question of fact. The teacher has a right to require obedience to reason- able rules and a proper submission to his authority, and to inflict punishment for disobedience; being gov- erned, as to mode and severity, by the nature of the offense, the age, size, and physical condition o£ the pupil. And in punishing for a particular offense the teacher may take into consideration habitual disobedi- ence.* Cruel, unusual punishment. " Nor " shall •'cruel and unusual punishments " be "in- flicted."* The kind and degree of punishment suited to par- ticular offenses is a matter left to the' discretion of the legislature, with the qualification above noted." Tunce punished. " Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." ' The punishments in use under the colonial and provincial governments were: imprisonment in the common jail ; hard labor in the workhouse or house of correction; the pillory; sitting on the gallows; crop- ping one or both ears ; branding on one or both cheeks, with indelible mk, the letter T for thief, or B for burglar; whipping; sitting in the stocks; in case of lar- ' See North Am. Eev., 1881, p. 657. M McMaster, Hist. Peop. U. S. 100. See 1 Steph Hist. Cr. L. Eng. 457-68, 472-76. 3 People V. Winchell, 7 Cow. 525 (1837), note. » Sheehan v. Sturges, 53 Conn. 4*3-4 (1885), cases; Deskins v. Gose, 85 Mo. 485 (1886), cases: 24 Am. Law Reg. 662, 664-89 (1885), cases. « Constitution, Amd. Tin. See same prohibition in the constitutions of the States. «See Cooley, Const. 296; 18 Am. Law Reg. 681; 70 Cal. 1 ; 1 N. M. 415; 61 How. Pr. 294. On inequality in punishment, see 5 (3r. Law M. 16-31 (1884). ' Constitution, Amd. V. See same provision in the constitutions of the States. ceny, restoration of threefold the value of the property with liability to be sold to service to pay it. ' No man can be twice lawfully punished for the same offense. Although there have been nice questions in the ap- plication of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offense, or to bringing the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete pro- tection when a second punishment is proposed in the same court, on the same facts, for the same statutory offense. In civil causes, the doctrine is expressed by the maxim that no man shall be "twice vexed" for one and the same cause. It is upon the foundation of this maxim that the plea of a former judgment for the same matter, whether for or against the defendant, is a good bar to an action. In criminal law, the same princijjle is expressed thus: No one can be twice punished for the same crime or misdemeanor. Protection against the action of the same court in inflicting punishment twice is as clearly within the maxim as protection from the chances of a second punishment on a second trial. Hence the pleas autrefois acquit, autrefois convict. These are principles of the common law, and em- bodied in all our constitutions. At the time they came into existence almost every offense was punished with death or other punishment touching the person. A second trial may be had, without violating the principle, when the jury fail to agree and no verdict is rendered, or the verdict is set aside on motion of the accused, or on a writ of error prosecuted by him, or the indictment was foimd to describe no offense known to the law. Wlien a court has imposed a fine and imprison- ment, where the statute only confers power to punish by fine or imprisonment, and the fine has been paid, the power of the court to punish further is gone. One judgment only can be pronounced; if that is unwar- ranted by law, the court cannot modify the judgment and impose a new sentence. ' Therefore, sureties on a distiller's bond cannot be subjected to the penalty attached to the commission of an offense, when the principal has effected a com- promise with the government, under the sanction of an act of Congress, of prosecutions based upon the same offense and for the same penall^^.a The principle is, that one shall not be tried a second time for the same offense, after he has been once con- victed or acquitted by a verdict of a jury, and judg- ment has been rendered agamst him or in his favor. There is no implication that he shall not be tried a second time if the jmy in the first trial were discharged without giving a verdict, or if, having given a verdict, the judgment was arrested or a new trial granted at the request of the accused * i Jones u Robbins, 8 Gray, 348 (1857); 1 McMaster, Hist. Peop. U.S. 100-1. 'Exp. Lange, 18 Wall. 163, 168-78 (1873), cases. Miller, J.; Exp. Gilmore, 71 Cal. 635 (1887). 8 United States u Chouteau, 102 U. S. 610 (1880). « [2 Story, Const. § 1787. See Cooley, Const. Lim. 337. PUNITIVE 846 PURCHASE A second punishment does not arise if the court had no Jurisdiction; nor if the first indictment was clearly insufficient and invalid ; nor if by any overruling ne- cessity the jury are discharged without averdict; nor if the term of the court ends before the trial is finished ; nor if the jury was discharged before verdict, by con- sent of the accused, expressed or implied; nor if the first verdict was set aside on motion of the accused, or on error sued out in his behalf; nor if the judgment was arrested on his motion.' Penalty, fine, and imprisonment are only one pun- ishment for the same offense, although the penalty is rscoverable in a civil action and the others are in- flicted by criminal prosecution.^ See further Assess, 2; Burning; Commutation; Jeop- ardy, S; Peine; Penal; Pillory; Qualify, 2; Rack; Retaliation; Servitude, Penal : Vex; Whipping. PUNITIVE. See Damages, Exemplary. PUPIL. See Punishment, Corporal; School. PUR. lu Law French, for. Sometimes .spelled pour. Pur autre vie. For the life of another. See Vie. PURCHASE.3 1. Acquisition, procur- ing, suing out : as, the purchase of a writ of error.' 2. In a popular and confined sense, acqi^isi- tion by way of bargain and sale or other val- uable consideration.' The transmission of property from one person to another by their voluntary act and agreement, founded on a valuable consider- ation. In judgment of law, the acquisition of land by any lawful act of the party, in contradistinction to acquisition by operation of law, and includes title by deed, by matter of record, and by devise." As#to ttje purchase of negotiables,- see Discount, 2. 3./ in the law of real property, originally, any method of acquiring an estate otherwise than by descent.' The possession of lands and tenements which a man has by his own act and agree- ment, and not by descent from any of his ancestors or kindred.8 f In its technical sense, includes all modes of ' Coleman v. Tennessee, 97 XT. S. 620 (1878), cases, Clifford, J., dissenting. See Smith v. State, 41 N. J. L. 598 (1879), cases. 2 Be Leszynsky, 16 Blatch. 9, 13-20 (1879), cases. " F. purchacer, to pursue eagerly, acquire. 1 See 3 Bl. Com. 273. » a Bl. Com. 241. « 4 Kent, 609. See also 2 Washb. R. P. 401 ; 7 Tex. 135. '1 Bl. Com. 241; 2 id. 180, 181. 82 Bl. Com. 241: Litt. § 12; 96 111. 535; 20 Wend. 356; 34 Me. 672. acquisition other than that by descent. But generally, in statutes as in common use, the non-technical sense is employed — acquisition by contract between the parties.' The purchase of an estate includes every lawful method of coming to an estate by the act of the party, as opposed to the act of the law. It includes titles obtained by sale of personal property on execution by the sheriff, or by levy, or in execution of the right of eminent domain. 2 See Occtpancy; Redeem. Purchase-money. The consideration money paid or agreed to be paid to the vendor by the vendee of realty.^ Treated as a lien on the land sold, w-hen the vendor has taken no separate security. The vendee ought not, in conscience, to be allowed to keep the estate without paying the consideration.* The vendor, though he hag made an absolute con- veyance by deed, and though the consideration is in the instrument expressed to be paid, has an equitable lien for the unpaid purchase money, unless there has been an express or implied waiver. The lien is not affected by the vendor's taking the vendee's bond or bill single, or a negotiable promissory note, or a check, if not presented or if unpaid, or any instrument in- volving merely personal liability. Taking a note with a surety is a presumption, rebuttable, however, of an intent to rely exclusively upon the personal security, The lien will be enforced in equity against the vendee and all persons holding under him, except a bona fide purchaser without notice."* The vendee's estate is equitable, and alienable as real estate held by a legal title. Any secm-ity for the purchase-money is personalty. The vendee cannot dispute the title of his vendor." See further Lie Vendor's. Pureliaser. A vendee ; a buyer. The original word, perquisitor, meant one who ac- quired an estate by sale, gift, or other method than by descent. The expression "first purchaser" is still used in this sense.' See Ancestor; Descent. In registrj' acts, a complete purchaser, a purchaser clothed with a legal title.^ May include one who buys at a judicial sale, as in the recording acts of Illinois.* A purchaser of land for a valuable consideration is one'who pays a fair value, or something approaching a fair value, for the premises. '* See Faith, Good. 1 Kohl u United States, 91 U. S. 374 (187S), Strong, J. ; 16 Op. Att.-Gen. 328. 2 Burt V. Merchants' Ins. Co., 106 Mass. 364 (1871), Chapman, C. J. s See 37 111. 441; 38 Md. 279; 15 Barb. 572. ■> Chilton V. Braiden, 2 Black, 460 (1862), Grier, J. « Cordova v. Hood, 17 Wall. 5-6 (18^) cases. Strong, J. ; Maqkrith v. Simmons, 1 Lead. Cas. Eq., H. & W., 235. " Lewis V. Hawkins, 23 Wall. 125(1874), cases, Swayne, J.;2Story, Eq, §1212. ' See 2 Bl. C9m. 220; 5 Pa. 106; 22 id. 297. « Steele v. Spencer, 1 Pet. •569 (1878). » McNitt V. Turner, 16 Wall. 361 (1872). '» Clark u. Troy, 20 Cal. 223 (1862). PURGE 847 PURSUE ■Words of purchase. When, in a will, the limit- ation of a remainder is to a " son " or " sons," " chil- dren " or " issue," " heir " or "heirs " of the life tenant, if the word is a descripUo personm, the descendant takes aa a purchaser; it intended to comprehend a class to take bj- inheritance, the word is a term of " limitation," within the rule in Shelley's case. "Child" and "children" are always regarded as words of purchase, unless the testator unmistakably used them as descriptive of the extent of the estate given, and not to designate the donees, in which case they are woi-ds of limitation. ' " Children " is as certainly a word of purchase as " heirs of the body " are words of limitation. This is the rule, but a testator may evince a diflferent intent." See further Child; Heir; Issns, 5; Limitation, 8; Shelley's Case. PURG-E. To clear of a charge by one's own oath : ' as, to the satisfaction of a court that by a certain act no contempt was in- tended. See Contempt. PURPART. See Part, 1. PURPORT. The substance or general import of language. The " purport " of a communication is its substance, as stated in any other than the identical words in which it was originally expressed. In libel, the exact words are required to be set out. The substance of an instrument as it appears on the face of it to every eye that reads it. " Tenor " (g. v.) imports an exact copy.* PURPOSE. End; view; design; inten- tion, q. V. " Purposely " means intentionally, designedly ; as, to purposely commit a homicide.* " For other purposes," added- to the title of an act, covers every possible subject of legislation.® To all intents and pui-poses, see Intent. Power to borrow money for any " public purpose " gives authority to a municipal corporation to borrow inone.y to aid a railroad company making its road as a way for public travel and transportation, and it may i.ssue Ijonds for the loan. As against bona fide holders of the bonds for value, the corporation is estopped from denying that the power was properly executed.' Money borrowed in the service of such a power, for the construction of a plank road which leads from, extends to, or passes through the limits of the corpora- tion, is boiTowed for a " public purpose." ' ' 2 Washb. E. P 27.3-74, cases. . , ''Oyster v. Oyster, 100 Pa. 540 (1882); Haldeman u Haldeman, 40 Pa. 35 (1861); 3 Jarman, Wills, 3D8. > [4 Bl. Com. 287. * Fogg V. State, 9 Terg. 394 (1836), Reese, J. See also Commonwealth v. Wright, 1 Cush. 65 (1848); Myers v. State, 101 Ind. 381 (1884); Thomas v. State, 103 id. 426 (1885); ie Iowa, 407; 29 Minn. 175; 68 Mo. 386: 2 Bish; Cr. Proc. S 413. « Fahnestock v. State, 23 Ind. 262 (1864); 17 id. 307. •Hadden v. The Collector, 5 Wall. Ill (1866). ' Rogers v. Burlington, 3 Wall. 664 (1805), Clifford, J. • Mitchell V. Burlington, 4 Wall. 370 (1863). Any legitimate expenditure of a State necessary to be provided for by a State tax, is a " State purpose." • See Aid, Municipal. See City; Corpokate: Literary. PURPRESTURE.2 A close or enclos- ure ; that is, when one encroaches or makes that several to himself which ought to be common to many.' In old law-writers, an encroachment upon the king or his subjects. In common ac- ceptation, now an encroachment upon the king, upon his demesne lands, or upon rights and easements held by him for the public, as, upon highways, public rivers, forts, streets, squares, bridges, quays, and the like.^ Where a house is erected or an enclosure made upon any part of the king's demesnes, or of a highway or common street, or public water, or such like public things. < Any encroachment, however slight, upon public property, whether in highways, navigable streams, or streets, is a purpresture, which is in the nature of a trespass upon public property by an individual.' Any erection upon navigable soil, without license, is an encroachment upon the public property of the sovereign,— a purpresture, which he may remove at pleasure, whether it tend to obstruct navigation or not." The term imports an enclosure made by a private party of a part of that which belongs to and ought to be open and free to the enjoyment of the public at large — as of part of a public common, or of a high- way by land or on water. Unlike a public nuisance, a purpresture may exist without putting the public to any inconvenience.' PURSE. See Bet; Prize, 1. PURSUE. 1. To follow, in order to overtake or obtain. Following immediately with intent to reclaim or recapture goods being carried off by a thief, or an es- caping animal, is making " fresh pursuit." ^ 2. To use measures tp obtain ; to prosecute ; to continue : as, to pursue a remedy. Com- pare Suit, 1. See Happiness. ' People ex rel. Thomas v. Scott, 9 Col. 432, 430 (1886). = F. pourpris, a taking without authority; an en- closure,— 4 BI. Com. 167. 3 [3 Story, Eq. 921, cases. < [4 Bl. Cora. 167. ' Wood, Nuisances, § 604. • Weber v. Harbor Commissioners, 18 Wall. 65 (1873); Angell. Tid. W. 108. ' Attorney-General v. Evart Booming Co., 34 Mich. 472-73 (1876), Cooley, C. J. See also Wood, Nuis. § 604; 2 Ct. CI. 401; 30 Ga. 612; 31 Minn. 302; 2 Johrts. Ch. 381; 7Barb.548; 28N.Y.397; 2 Abb. N. Cas. 215. •See 4 Bl. Com. 363; 3 id. i. PURVIEW 848 QUALIFY PURVIEW.i The enacting part of a statute, in contradistinction to the preamble.- See Act, 3 ; Proviso ; Statute. PITT. 1, V. "To put one's self upon the country : " to express' a readiness to submit the truth of an issue of fact to a jury ; to re- quest a jury trial in a civil action. See under Country, 3. Put in fear. See Eobbery. 3, n. The privilege, for a nominal consid- eration, of delivering personalty within a certain time at a specified price.' A "call " is the privilege of calling or not calling for the subject-matter o£ the contract. . " Puts " and " calls " are merely options to sell or buy.* The true idea of an option is embraced in what is called a "put" and "call," — the former being the privilege of delivering or not delivering the thing sold; the latter, the privilege of calling or not calling for the thing bought." See Straddle; Wager, 3. PUTATIVE.6 Supposed; reported; re- puted: as, a putative — father, wife, mar- riage.' See Bastard. Q. Q. As an abbreviation, commonly de- notes quare, queen, qui, or quod. Q. B. Queen's bench. Q. B. D. Queen's Bench Division. Q. C. Queen's counsel. Q. o. f. Quare clausum fregit, why he broke the close. See Close, 3. Q. e. n. Quare eocecuiionem non, why ex- ecution should not (issue). Q. S. Quarter sessions. See Session, 1. Q. t. Qui tarn. See Action, 3. Q. V. Quod videas, which (word, title, subject) see. Plural qq. v., which words, etc., see, consult, compare. QUA. See Qui. QUADROON. See White. QU^RE. L. To _ question, inquire : query, inquiry. Denotes that a point of law is not fully considered, and is deemed doubtful. ^ F. pourvu, provision. i V » Payne v. Conner, 3 Bibb, 181 (1813). ' lExp. Young, Biss. 53-67 (1874), cases; 8 id. 318. < See Pixley v. Boynton, 79 111. 358 (1875). ' Pearce v. Foote, 113 111. 234 (1885), Scott, J. * L. piitatimis; putare, to think. ' Gaines v. Hennen, 24 How. 603, 554 (1860). QU-ffi!STIO. L. An inquiry'; question. Ad qusestionem facti non respondent judices; ad qnsestionem legis non re- spondent juratores. To a question of fact the judges do not respond ; to a question of law the jurors do not respond. See Jury. Cadit qusBStio. The question falls : dis- cussion is at an end ; there is no room for argument. Vexata qusestio. A mooted matter ; a disputed point. QUALIFY. 1. To make fit or capable ; to be made or become fit or capable. Op- posed, disqualify. See Interest, 3 (1). 3. To prepare one's self for the discharge of a duty, or the duties of an office. To qualify as executor is to take an oath to dis- charge the duties of that trust. ^ Qualification. The endowment or ac- quirement which renders eligible to place or position. 2 "Qualifications" and "qualified," in the constitu- tion of Kentucky, have their most comprehensive sense, referring not only to circumstances that render a citizen eligible to office, or entitle him to vote, but also to those that exempt him from all legal disquali- fications for either purpose.' Qualification relates to fitness or capacity for a par- ticular pursuit or purpose. Webster defines it as " any natural endowment or any acquirement which fits a person for a place, office, or employment, or enables him to sustain any character with success." * Disqualification from the put-suit of a particular vo- cation, from positions of trust, from, the privilege of appearing in the courts, or of acting as an executor, administrator, or guardian, has been and, perhaps, may still be imposed as punishment. Jurors in the Federal courts must have the qualifi- cations required'for jurors by the law of the State of which they are citizens to serve in her highest courts. Exceptions are made of certain officials, followers of some vocations, persons over a designated age, .and persons infirm, or infamous.^ "Qualifications" here refers to general qualifications as to age, citizenship, etc., not to bias, intei'est, and the like, which do not disqualify generally, but only at the instance of a party, ^ Conformity to State law is all that is re- quired.' 8. To limit, restrict ; to modify. Predicated of one section of a statute in its opera- tion upon another section; of an indorsement (g. v.) > See Hale v. Salter, 25 La. An. 334 (1873), Morgan, J. 2 Hyde v. State, B2 Miss. 672 (1876), Chambers, J. » [Hall V. Hostetter, 17 B. Mon. 785 (1856); Common- wealth V. Jones, 10 Bush, 744 (1874); 64 Mo. 103. < [Cumraings v. Missouri, 4 Wall. 319-30 (1866), Field, Justice. » See B. S. § 800. • United States v. Williams, 1 Dill. 495 (1871). ' United States v. Collins, 1 Woods, 502 (1873). QUALITY QUARANTINE ■ of a bill -or note which restrains or enlarges liability as ordinarily understood; of a limited right of ownership in property (g. v.)\ of a base fee (g. v.). Qualified, (1) Fitted by endowment or acquirement; capacitated; prepared; en- titled. Qualified elector, A person legally quali- fied to vote.i A "legal voter" is a qualified elector who in fact votes.* Qualified for office. Imports that the per- son has complied with the law, as, by giving a bond and taking the oath of office. ^ "Qualified," in the expression "duly qualified," may refer to the condition or status of the officer or to the act of taking the oath.^ See Vacascjt. Qualified voter. A person qualified to vote generally.* In Colorado, a woman, not being such an elector, cannot, under the constitution, be appointed a notary.* In the constitution of Mississippi, one qualified or entitled to vote, and actually voting.' A voter is one "who votes, not one merely qualified to vote.* (2) Limited, restricted; modified: as, a qualified — indorsement, fee, property, qq. v. See also Provided. Compare Absolute. QUALITY. See Caveat, Emptor; De- scription, 1. QUAKDO. See Accideee. QUAlfTI. See Quantum, 1. QUANTITY. See About, 3; Descrip- tion, 1 ; Divers ; Estimate ; More or Less ; Quantum. QUANTUM. L. 1. How much; as much as ; so much ; whatever. Quanti minoris. Of how much less: what reduction. In Louisiana, an action for an allowance on the price of property on account of a defect discovered after sale.' Quantum danmiflcatus. How much he has been injured. See under Damnum. Quantum meruit. Whatever he de- served.' Quantum valetaat. Whatever it was worth — work, labor, goods, etc. See Count, 4 (1), Common. 8. Amount ; quantity : as, the quantum of consideration, damages, evidence. QUABANTINE.i 1. The period of forty days. The time during ^hich a widow may re- main in her husband's chief " mansion- house" after his death, and until her dower is assigned her.2 This right was allowed, of dowable lands, by Magna Charta. In most of the States the period has been lengthened, as, to one whole year, or is of indefinite duration. 3 3. The days during which persons arriving from an infected country must wait before they may land.'' The forty days probation by ships coming from infected countries, required by 36 Geo. II (1753), c. 36, and 29 Geo. II, c. 8.5 At present, the period varies with the exigencies of the case. That power to establish quarantine regulations rests with the States, and has not been surrendered to the general government, was settled in the case of Gibbons v. Ogden." The source of the power lies in the general right of a State to provide for the health of its people; and, although the power, when exer- cised, may, in a, greater or less degree, affect com- merce, yet quarantine laws are not enacted for that purpose, but solely for preserving the public health. If they injuriously affect commerce. Congress, under the power to regulate it, may control them. Of neces- sity, they operate on vessels engaged in commerce, and may produce delay or inconvenience, but they are still lawful when not opposed to the Constitution or any act of Congress.' Beyond what is absolutely necessary for self-pres- ervation, a State cannot establish quarantine regula- tions which interfere with transportation into or through its territory.^ The act of Congress of April 29, 1878, provides that no vessel or vehicle coming from a foreign port where any contagious or infectious disease may exist, or with infected passengers, merchandise, or animals, shall enter any port of the United States or pass the bound- ary line between the United States and any foreign country, contrary to the quarantine law of any State, except as prescribed in said act." The system of quarantine laws established by stat- utes in Louisiana is a rightful exercise of the police > [Sanford v. Prentice, 38 Wis. 362 (1871), Dixon, C. J. > State V. Niebling, 6 Ohio St. 44 (1856), Bartley, C. J. s [People V. Crissey, 91 N. T. 636 (1883), Finch, J.; 77 Va. 300, 271. < Notaries Public, 9 Col. 629 (1886). • CarroU County v. Smith, 111 U. S. 565 (1884), Mat- thews, J. ; 97 N. C. 233. « Millaudon v. Soubercase, 3 Mart. 287 (1825). ' See generaUy 20 Cent. Law J. 326-^0 (1885), cases. (54) 'F. quarantine or -tame, forty days: quarante: L. quadraginta, forty. ■■■ [2 Bl. Com. ia5; 1 Steph. Com. 271. a See 4 Kent, 62; 1 Washb. R. P. 222; 16 Ala. 148; 20 id. 662; 5 Conn. 462^ 2 Mo. 163; 5 T. B. Mon. 561; 7 id. 337. < [2 Bl. Com. 135. »4B1. Com. 161. > 9 Wheat. 203(1824). ' Peete v. Morgan, 19 Wall. 582-83 (1873), Davis, J. 6 Hannibal, &c. R. Co. v. Husen, 95 U. S. 465 (1877). " 20 St. L. 37: 1 Sup. E. S. p. 313. QUARE 850 QUASI power for the protection of health. While some of the rules may amount to regulations of commerce, though not so designed, they belong to that class which the States may establish until Congress acts in the matter by covering the same ground or forbidding State legislation. The requirement that each vessel passing a quarantine station shall pay a fee for exam- ination as to her sanitary condition and the ports from which she came is a part of all quarantine systems; the fee is a compensation for services rendered to the vessel, not a tonnage tax. Nor does it give a prefer- ence for a port of one State over those of another: that provision (section nine of Article one) in the Con- stitution being a restraint upon the powers of the gen- eral government. Since the government was first organized, Congress has passed no law to protect the people against the invasion of contagious or infectious diseases from abroad, notwithstanding that yellow fever and the cholera have at times been epidemic. The reason is, no doubt, that Congress has believed that the power to do this belonged to the States, or that what ought to be done could be more efficiently done by local authorities familiar with the matter. ^ See Commerce; Health; Police, 3. QUARE. See Q. QUARRY. See Land ; Mines ; Waste, 3. In the Latin of the later ages, quadratarius was a Btone-squarer. The French quarriere, the original of qxiarry, meant the place where stone is cut into squares — a stone pit, referring to a place upon or above, not under, ground. '^ When land is leased with an open quarry, the lessee, unless restrained by the contract, may remove the stone; but he has no right to open a new quarry.* QUARTER. See Coin ; Sessions ; Trea- son. QUARTO. See Dies, Quarto. QUASH.* To make void or abate ;5 to ov^erthrow, annul.* A plea in abatement prays that the writ or declara- tion be quashed — cassetur breve.^ The ground for exercising the summary power of quashing writs is to clear the record of irregular, void, or defective proceedings." When- an indictment is so defective that a valid judgment cannot be given upon it, should the accused be convicted, the court, upon application, may quash it; or the accused may assign the defect as ground for an arrest of judgment.*^ Not being a matter of right, but of privilege, the motion vrill not be received when presented at an un- > Morgan v. Louisiana, 118 XI. S. 455, 466 (1886), Mil- ler, J. ' [Bell V. Wilson, L.,E., 1 Ch. Ap. Cas. 'SOS (1866), Tur- ner, L. J. ' See Bainbridge, Mines, 3. < P. quasser, to break: L. quassare, to shatter. 5 [3 B). Com. 303. ' Crawford v. Stewart, 38 Pa. 36 (1860); United States V. Eoseuburgh, 7 Wall. 583 (1868). ' Commonwealth v. Eastman, 1 Gush. 314 (1848). reasonable time, as, after issue joined on a plea of not guilty. I QUASI. L. As if ; like, corresponding to. Marks resemblance, yet supposes differ- ence, between objects.^ Thus, one may become a quasi accomplice; * bank- notes are quasi cash; * a common carrier is a quasi public officer; * and the postmaster-general is a quasi common carrier." There may be a quasi deposit, as, in finding; and a quasi derelict.' The right of stoppage in transitu constitutes a quasilien.^ The .decisions of administrative commissioners are of quasi judicial character.* A bill of lading is only quasi negotiable. ' <* Acts of qunsi ownership of realty include all acts short of taking possession.*^ Fixtures, chattels real, and leases for years are quasi personalty; heirlooms, and title deeds, quasi realty.*^ A surety is a quasi party, subject to jurisdiction. ** Quasi contract. An unassented-to obli- gation in the nature of a contract. As, the liability of an heir under his ancestor's cov- enant Respecting realty, or of an executor or admin- istrator for the debt of the decedent. Quasi corporation. A body which ex- ercises certain functions of a corporate char- acter, but which has not been created a cor- poration by any statute, i* See further CoR- POEATION, Quasi. Quasi crimes. Offenses not crimes or misdemeanors, but in that' nature — a class of offenses against the public which have not been declared crimes.is In Louisiana, certain offenses are termed quasi of- fenses. Thus, what is an offense in a servant is a quasi offense in the employer.*" Quasi records. The books of a distiller, required to be kept by the revenue laws, are an example.!' ' Eichards u. Commonwealth, 81 Va. 114-13 (1885), cases. » See People v. Bradley, 60 HI. 408 (1871). s 1 Greenl. Ev. § 383. * 2 Chltty, Bl. Com. 384. "3 Pars. Contr. 357 c. » 3 Pars. Contr. 249. ' The Nicholaus, 1 Newb. 449 (1853). 81 Pars. Contr. 599. » Clinkenbeard u United States, 81 Wall. 70 (1874). >" Nat. Bank v. Merchants' Bank, 91 U. S. 98 (1875). '"3 Pars. Contr. 394. 1 = Wharton's Law Diet. " Blossom V. Milwaukee, &C.-E. Co., 1 Wall. 656 (1863). " School District v. Insurance Co., 103 U. S. 708 (1880), Miller, J, ; 91 id. 652; 2 Wall. 508. '•Wiggins V. City of Chicago, 68 HI. 375 (1873), Walker, J. ; 29 Minn. 133, 452. '"Case V. Citizens' Bank, 100 U. S. 450 (1879). "United States v. Myers, 1 Hughes, 534 (1875); E. S. QUAY 851 QUOD QUAY. Is a space of ground appropriated to public use : such use as the convenience of commerce requires.^ QUE ESTATE. See Pkescription, 3. QUEEN. See Bench ; King. QUERELA. See Atjdiee, Audita. QUERY. See Qu^re. QUESTION. Interrogation ; inquiry ; examination. Compare Qu^STio. 1. An interrogation addressed to a wit- ness, requesting him to state his personal knowledge as to a fact. Categorical questions. A series of questions presented in a logical or systema- tized order ; as, the questions propounded in an application for a contract of life insurance. General question. Requests witness to. state all he knows, without directing his at- tention to a particular matter, as is done in a leading question. Leading question. A suggestive inter- rogation. Puts into a witness's mouth words to be echoed back; plainly suggests the answer desired.^ Suggests to the witness the answer he is expected to make, and leads him to make such answer.'' A question is also objectionable as leading ■which embodies a material fact, and admits of answer by a simple affirmative or negative.* Leading questions are not allowed, except: on cross- examination; on a matter introductory to a material part of the inquiry; when the witness appears hostile to the party calling him, is unwilling to testify, or, from want of recollection which a suggestion may assist, makes an omission in his testimony; and in cases where the mind cannot be directed to the sub- ject without particularization. Allowing leading questions is a matter wholly within the dUcretion of the court.' 2. Subject of inquiry; a matter under ex- amination or discussion. May be of pure fact, of pure law, or of both fact and law; m the last case constituting a mixed ques- tion. See Jury; Eeserve, 6. Federal question. See Courts, p. 277. > New Orleans v. United States, 10 Pet. *715 McLean, J. ' [People V. Mather, 4 Wend. 347 (1830): 1 Stark. Ev. 124. s Harvey v. Osborn, 55 Ind. 544 (1877), Howk, J. « [1 Greenl. Et. § 434; 31 N. H. 488. sSee 1 Greenl. Ev. §§ 434-85; 1 Whart. Ev. §§449-504, 537; swash. 580; 11 F. E. 39; 4 Del. Ch. 311; 26 Miss. 159; 40 N. H. 47, 63; 6 Binn. 483; 23 Pa. 143, 440. QUI; QUID; QUOD. L. Who, he who; which, that which; what; that. Other inflections: Cui, to whom; cuicun- que, to whomsoever, euilibet, to any one; cujus, of what one, whose. Quern, which (ob- jective); quicquid, whatever. Qua. On which side ; as far as ; in so far as; considered as; as. Freight gua freight ; ' apartygim party; ^ a judg- ment qua a judgment; ' qiM a contract; qua a regu- lation,* Qui. He who ; whoever. Qui approbat. See Approbai^E. Qui facit. See Facere. Qui hceret. See Litera. Qui non hdbet. See Dare. Qui non prohibere. See Prohibeee. Qui prior tempore. See Tempus. Q}ii sentit commodum. See Commodum. Qui tacet. See Consensus. Qui tarn. See Action, 3. Quid. What. Quid pro quo. What for what ; one thing for another thing ; also, an equivalent, a con- sideration — implied in every sale or ex- change.5 See Consideration, 3. Quo. In what, with what, by what. See Quoad; Quousque. A quo. From which. Correlative, ad quern, to which. Designate, respectively, the court or judge from which, and to which, a cause has been removed; also, the day from which (dies a quo) and the day to which (dies ad quern) a period is to be computed: and also, the limit from which, the starting point (terminus a quo), and the limit to which, the end (terminus ad quern) — as, the beginning and ending of a way, of a risk in marine insurance, of the descent of a title. In quo. In which. See Locus; Status. Quo animo. With what motive. See Animus. Quo jure. By what right. See Jus. Quo warranto. By what authority. See at length Warrantum. Quod. (1) What ; that which. Quod non apparet. See Appareee. Quod populus jussit. See Repeal. (3) That ; to the end that. Quod computet. See Computaee. §Mod partitio fiat. See Paetitio. 1 2 Allen, 90. = 1 T. & H. (Pa.) § 577. ' 43 Pa. 469. < 19 F. E. 711. » 1 Bl. Com. 484; 3 id. 446. QUIA 853 QUIT Quod recuperet. See Recupebabe. Quorum. Of whom. As a substantive, the number of members of a body whose presence is necessary to the transaction of business. See Majority. The commission of oyer and terminer was origi- nally directed to the judges of the courts of Westmin- ster, and several others, but the judges or Serjeants at law only are of the quorum, so that the rest cannot act without the presence of one of them. The words of the commission ran " quorum aliquem vestrum unum esse volumus " — of whom we wish some one of you to be present. The justices referred to were eminent for their skill and discretion.' QUIA. L. Because. Quia emptores. Because purchasers. The initial words of 18 Edw. I (1391), c. 1, statute of Westminster 3, regulating sales of lands and tenements. See Feud, Subinfeuda- tion. Quia timet. Because he fears. A bill in equity in the nature of a writ of preven- tion to accomplish the ends of precautionary justice. 2 Ordinarily, prevents anticipated mischief, and is not merely to redress it when done. The party seeks the aid of the court " because he fears " some future probable injury to his rights and interests. The man- ner in which this aid is given depends upon circum- stances. The court may appoint a receiver to collect Income; order a fund to be paid into court, or that security be given, or that money be paid over ; or issue an injunction or other remedial process, — whether the right of enjoyment is present, or future and con- tingent. ^ Is always used as a preventive process before a suit is actually instituted. A hill of peace, although some- times brought before any suit is instituted to try a right, is generally brought after the riglit has been tried at law." See Quiet, 2; Peacb, l,.BiIl of. QUICK. See Dispatch ; Quickening. QUICKENING. Se^ Abortion; Preg- nancy. Takes place about the sixteenth week from concep- tion, yet may vary from the tenth to the twenty -fifth week.* A woman is " quick with child " from the period of conception and the commencement of gestation; and she is " pregnant with a quick child " when the child has become quickened in the womb.^ > 4 Bl. Com. 270; 1 id. 35T. » [2 Story, Eq. §§ 826-27; 1 id. % 730. 8 2 Story, Eq. § 852; 1 Pomeroy, Eq. §§ 246-51; 3 id. % 1394; Holland v. Challen, 110 U. S. 20 {1&4), cases; United States v. Wilson, 118 id. 87, 89 (1886) ; 7 Wall. 15; 3 Ala. 169. 4Denman, Midw. 129; 1 Leg. Gaz. R. 183. 6 Evans v. People, 49 N. Y. 89 (1872): 8 C. & P. 262; State V. Emerich, 13 Mo. Ap. 492 (1683). QUIET. 1, adj. Peaceable, undisturbed, unmolested : as, quiet — enjoyment, posses- sion, qq. V. 3, V. To settle the ownership or vafidity of, by ending disputes or litigation: as, to " quiet a title " to real estate. The ground of bringing a suit to quiet title is, that the disturber, wliile asserting a claim which is a cloud on plaintiff 's title, refuses, to carry it to the test of a trial in court, and because he refuses to do this a court of equity stops his mouth. * The decree operates by way, of estoppel as to all parties and ends all litigation between them. Those only who have a clear, legal and equitable title to land connected with possession have any right to claim the interference of a court of equity to give them peace or dissipate a cloud. 2 The defendant is forbidden, under contempt of court, to assert his title in conflict with complainant's title.s See further Clodd; Peace, 1, Bill of. QUIT. To abandon, relinquish, surren- der, qq. V. To quit a service is to abandon it, not to leave it expecting to return the next day.* Referring to a notice to a tenant to give up possession of premises, has no technical meaning. Is generally necessary where the relation of landlord and tenant exists, and no definite period is fixed for the termination of the estate. Where a lease is to expire at a certain time, the notice is not necessary, because to hold over woifid be a wrong.* See Lease; Month; Notify. Quitclaim, v. To give up one's claim of title. n. A deed in the nature of a release, con- taining words of r^^^e and of grant." Conveys such inter^^s the grantor may have, without covenants of title ; but covenants against in- cumbrances imposed by him are usually added. The operative words are "remise, release, and forever quitclaim." The term presupposes a previous or pre- cedent conveyance or a subsisting estate and posses- sion.' In Massachusetss, a deed of quitclaim passes all the estate which the grantor could convey by deed of bargain and sale. If he has in fact a good title, his 1 Wright u. Mattison, 18 How. 56-59 (1855), cas«s, Daniel, J. = Qrton V. Smith, 18 How. 265 (1855), Grier, J.; Frost V. Spitley, 121 U. S, 656 (1887), cases. 3 Re ChUes, 22 Wall. 167 (1874). * Heber v. United States Flax Manuf. .Co., 13 E. I. 305 (1881). " Gregg V. Ton Phul, 1 Wall. 281-82 (1863), Davis, J.; Harland v. Eastman, 119 111. 26 (1886). « See Nathans v. Arkwright, 66 Ga. 186 (1880). ' See Ely v. Stannard, 44 Conn. 533 (1877), Park, C. J. ; Hoyti). Ketcham, 54 id. 63(1886); Thornton, Cony. 44; 2Washb. R. P. C06. ' QUO 853 RACK deed conveys his estate as effectually 'as a deed of waiTanty.' To charge a purchaser with notice of an unrecorded instrument, a secret lien or equity, his deed must pur- port to convey and quitclaim no more than the right, title or interest of the grantor. If the Kra'Qtor conveys no more than his title, the presumption is that he had doubt as to his rights and notice of some opposing claim; and he expresses that doubt upon the face of a quitclaim deed. The use of " give, grant, bargain and sell," in addition to " remise, release, and forever quit- claim " the right of the grantor, such as it may be, will not change the character of the conveyance. A "release " is in most States equivalent to the word "quitclaim." 2 The settled law of the Supreme Court is that one who takes by simply a quitclaim deed is not a boTia fide purchaser without notice.^ Quit-rent. A rent paid by a freeholder in consideration of which he went free from all other services.* QUO. See Qui ; Wareantum. QUOAD. L. As to; as regards; con- cerning. A prohibition quoad is as to a particular thing among others. A shareholder in a national bank, who, apprehend- ing a failure of the bank, transfers his stock to an irre- sponsible person, will still be held as a. shareholder quoad the creditors.® Quoad hoc. As to this; as respects the matter in question. « A purchaser or bidder at a master's sale subjects himself quoad hoc to the jurisdiction of the court as a party to the suit.' QUOD. See Qui. ^^ QUONDAM. L. ^ftoerly ; former : as, a person quondam infanT^ QUORUM. See Qui. QUOTA. L. The feminine form of quotus: which or what in number, or order; ' Kyle V. Kavanagh, 103 Mass. 359 (1869); Rawle, Gov. Titles, 36. Compare Cutler v. James, C4 Wis. 177-78 (1885), cases, holding that a quitclaim deed is a " con- veyance." ' Richardson u Levi, 67 Tex. 364, 367 (1887), cases, Willie, C. J. ' Oliver v. Piatt, 3 How. 410 (1845); May v. Le Claire, 11 Wall. 233 (1870); Villa v. Rodriguez, 12 id. 333 (1870); Diekerson v. Colgrove, 100 U. S. 584 (1879); Hastings V. Nissen, 31 F. R. 600 (1887). See generally 12 Cent. Law J. 127-30 (1881), cases; 33 Alb. Law J. 344-45 (1886), « [3 Bl. Com. 42. » Bowden v. Johnson, 107 U. S. 261 " See 1 BI. Com. 91, 357, 430. ' Blossom V. Milwaukee, &c. B. Co., 1 Wall. 656 (1863); Minnesota Co. v. St. Paul Co., 2 id. 634 (1864). 8 Eureka Company v. Edwards, 71 Ala. 266 (1881). of what number ; how many ; what part or portion. Apportionment. The proportion or share of a common bur- den which belongs to several persons or places.! QUOTATION. See Abridge, 1; Re- view, 3. QUOTIES IN VERBIS. See Ambi- guity. QUOUSQUE. L. Until such time as; until : temporary or temporarily. An execution qiiousque has force till the defendant does a thing required of him. Such, for example, is a capias ad satisfacioidum. ■%' A prohibition quousque has effect until some^ct be performed, some event happen, or a certain time elapse, or otherwise, as is specified in the order.* R. R. As an abbreviation, may denote rail- road, railway, real, regina, repeal, report, review, revision, rex, rolls, Roman. R. L. Revised Laws ; Roman Law. R. S. Revised Statutes. See Revise. RACE. See Citizen, Amendment, XIV; Color, 1 ; Slavery. RACES. See Betting; Game, 2. RACEWAY. An artificial canal dug in the earth ; a channel cut in the ground. ^ See Aqua, Currit, etc. RACK. An engine of torture, consisting of a large fi'ame upon which the body of a person could be gradually stretched until the joints became dislocated.* Was used^for extorting confessions from convicts and suspected persons.* Trial by rack is unknown to the law of England. Certain ministers of Henry IV, as a beginning to the introduction of the civil law into the kingdom, erected a rack of torture in the Tower of London ; and this was used as an engine of state, not of law, more than once in the reign of Elizabeth. When, however, upon the assassination of Villiers by Felton, it was proposed to put the assassin to the rack to discover who his accom- plices were, the judges decided that the proceeding was not allowable. ° 1 [Bridgewater o. Plymouth, 97 Mass. 390 (1867), , Foster, J. 2 See 1 Steph. Com. CST. s Wilder v. De Cou, 20 Minn. 17 (1879). * Webster's Diet. ' 4 Bl, Com. 326. See Penny Mag., vol. 1, pp. 53-54 (1832). RADIUS 854 RAILROAD BADIUS. Within a radius of ten miles from a certain village means tvithin ten miles of its 6enter.i BAFFLE. See Game, 3; Lottery. EAILBOAD. "Railroad" and "rail- way " are as nearly exact synonyms as any two words in the language.^ May refer to the road-bed and track, with the superstructure — all that forms part of the completed road. 3 A charter authorizing the construction of a road with one or more tracks, with warehauses, works, and other appendages for the convenient usaof the road, confera the right to construct sidings, turnouts, sta- tions, .engine-houses, and all other works and append- ages usual in the convenient operation of a road.* Switches and side-tracks are essential to the use of " a road." Power to construct them need not he ex- pressed in words; and the spot where they shall be lo- cated rests in the discretion of the company.' There is no rule of law to restrict railroad com- panies as to the curves it shall use in its stations and yards, where the safety of passengers and of the public is not involved. The engineering 'question as to the curves proper in such places is not a question to be left to a jury to determine.* " Eailroad " ea: vi termini includes sidings, branches, and like accessories.' " Boad " or " railroad " will include the principal road and all adjuncts. ^ For the purpose of constructing a " railway " the company may construct such stations and other works as it deems proper. 9 The right to construct sidings to private establish- ments may be granted by the legislature, because therewith the public interests are subserved.^" An extension of the main line may be a " branch."" A " branch" is a section pf a road. It may be an offshoot from the main road, or a direct extension from the terminus. The necessity for such branches, and their direction, rests in the judgment of the offi- cers of the company.'" 1 Cook V. Johnson, 47 Conn. 177 (1879). ' State V. Brin, 30 Minn. 624 (1883). ' Beardsley v. Ontario Bank, 31 Barb. 624 * Philad'a, W. & B. R. Co. v. Williams, 64 Pa. 103 (1867). • Cleveland & Pittsburgh E. Co. v. Speer, 56 Pa. 336 (1867). See also Pfaff v. Terre Haute, &c. R. Co., 108 Ind. 144 (1886), as to the meaning of " track." •Tuttle V. Detroit, &c. R. Co., 123 U. S. 189 (1887). ' Black V. Philadelphia & E. R. Co., 68 Pa. 262 (1868). e St. John v. Brie E. Co., 23 Wall. 148 (1874). 'Lake Superior, &c. E. Co. v. United States, 12 Ct. CI. 64 (1876): 93 U. S. 442; United States v. Chaplin, 31 F. E. 895 (1887). As to incidents, see 25 Am. Law Reg. 648-61 (iaS6), cases. i» Getz's Appeal, 10 W. N. C. 453 (1881). ' ' Howard County v. Boonville Central Nat. Bank, 108 U. S. 314 (1883). '^MoAboy's Appeal, 107 Pa. 548,558(1884); Western Penn. E. Co.'s Appeal, 99 id. 165, 161 (1881). Whether tjie word includes a horse or street rail- road, or is to be confined to roads run by steam, de- pends upon the context and intent. In a general law authprizing consolidation of roads, held to include narrow-gauge roads and horse or street roads.i " Road," referring to a street railway, is hot a tech- nical word, requiring explanation by experts. Under a contract that " the road, rolling and live stock " of a company should be exempt from taxation, stables, shops, and like conveniences were held not exempt* " Railroad " frequently means " railroad com- pany." ' May mean all the land, not exceeding a certain amount in width, taken and included in the location' — the surface of the land within the limits of the locar tion.* The "road-bed" is the bed or foundation upon which the superstructure of the railroad rests. The " roadway " includes all that and whatever ground the company is allowed on which to construct its road- bed and lay its track. As applied to common roads, the two words ordinarily mean the same thing.^ The track on which the steam-cars now transport the traveler or his property is called a road, some- times, perhaps generally, a railroad. Thri term " road " is applied to it because in some sense it is used for the same purpose that roads had been used. But until the thing was made and seen no imagination could have pictured it from any previous use of the woi'd road. So the inclosure in which the passengers travel is less like a " coach " than several other vehi- cles rarely if ever called coaches. It does not, there- fore, follow that when a word was used in a statute or a contract seventy years since, it must be held to in- clude everything to which the same word is applied at the present day. Again, the structure over a stream for a railroad is called a " bridge," yet it is not like the bridge of olden time." When, in an act of Q^gress, a railroad is referred to in its character as a rl^d, as a permanent structure, and designated and required to be a public highway, the term " railroad " cannot be extended to embrace the rolling stock or other personalty of the compafiy. The reference in such case is to the immovable struct- ure stretching across the country, graded and railed for the use of the locomotive and its train of cars. That such road shall be a "public highway," " for the use of the government, free of toll," etc., means that the road shall be open to the 'use of the public with their own vehicles, and that the government shall have ' HestonvUle, &o. R. CO. v. Philadelphia, 89 Pa. 219- 20 (1879); Chicago 1). Evans, 34111. 55(1860); Johnson d. Louisville, &c. E. Co., 10 Bush, 2.33 (1874); 2 Duv. 175. 2 Atlanta Street E'y Co. v. Atlanta, 66 Ga. 107-9 (1880). ' Calhoun v. Memphis, &c. R. Co., 2 Flip. 445 (1879). ' Commonwealth v. Haverhill, 7 Allen, 524 (1863); Worcester v. Western R. Co., 4 Mete. 567 (1843). " San Francisco v. Central Pacific H. Co., 63 Cal. 469 (1883), Thornton, J. ; 60 id. 34; 33 id. 499: 118 U. S. 413 (1886). See also Pfaff v. Terre Haute, &o. R. Co., 108 Ind. 144 (1886), cases. •Bridge Proprietors v. Hoboken Co., 1 Wall. 147-48 (1863), Miller, J.; Omaha Horse E. Co. v. Cable Co., 30 F. R. 329 (1887). RAILROAD 855 RAISE the right to use the road, not to require its transpor- tation to be performed by the railroad company.' In theory, railroads are public highways. In prac- tice, they are operated by the companies that own them, or by those with whom they have permanent arrangements for the purpose. These companies have a practical, it not a legal, monopoly of their use. In some States, as in Massachusetts, where railroads were originally declared public highways, the right of the public to use them has been expressly abro- gated.' See Way. Eailroad corporations are gaa^' public corporations dedicated to the public use. It is upon this idea that they have been invested with the power of eminent domain, and that they exercise the functions of com- mon carriers. Their duties and liabilities are defined by law. In accepting their charters they neces- sarily accept them with all the duties and liabilities annexed. That is to say, they undertake to construct the roads contemplated by their several charters; to keep them in good (Condition ; equip them with suitable rolling stock and safe machinery; employ skilled and trustworthy laborers; provide suitable means of ac- cess to and egress from their trains; erect depots and designate stopping-places whenever the public neces- sities require them ; supply, to the extent of their re- sources, necessary and adequate facilities for the transaction of all the business offered; deal fairly and impartially with their patrons; keep pace with im- provements in machinery; and adapt their service to the varying necessities and improved methods of doing business.^ A state has power to limit the amount of charges by railroad companies for the transportation of per- sons and property within its own jurisdiction, unless restrained by some contract in the charter, or unless what is done amounts to a regulation of foreign or inter-State commerce. This power of regulation is a power of government, and if it can be bargained away at all it can only be by words of positive grant or something which is equivalent in law. If there is a reasonable doubt, it must be resolved in favor of the existence of the power.= Eailroads are not natiu-al highways of trade and commerce. They are artificial creations ; constructed within the territorial limits of the State, by authority of its laws, and ordinarily by means of corporations exercising their franchises by limited grants from the State. The places where they may be located, and the plans according to which they must be constructed, are prescribed by the legislation of the State. Their ' Lake Superior, &c. E. Co. v. United Sta*es, 93 U. S. 442, 449-51 (18T6), Bradley, J. See also Rogers v. Bur- lin^n 3 WaU. 603 (1865); Pittsburgh, &c. E. Co. v. Baltimore, &c. E. Co., 38 Ohio St. 629(1883); Haleu County Commissioners, 137 Mass. 114 (1884). ' M'Coy V. Cincinnati, Indianapolis, &c. E. Co., 13 F. E. 7 (1882), Baxter, C. J. See also Munn v. Illinois, 94 U. S. 126-34 (1876), cases; Pierce v. Commonwealth, 104 Pa. 155 (1883), cases. a Eailroad- Commission Cases, 116 U. S. 325, 334 (1886), cases, Waite, C. J. ; Dow v. Beidelnian, 125 id. 680 (1888) ; Georgia KaUr. & Banking Co. v. Smith, 128 id. 179 (1888). operation requires the use of instruments and agen- cies attended with special risks and dangers, the proper management of which involves peculiar knowl- edge, training, skill, and care. The safety of the pub- lic in person and property demands the use of specific guards and precautions. The width of the gauge, the character of the grades, the mode of crossing streams by culverts and bridges, the kind of cuts and tunnels, the mode of crossing other highways, the placing of watchmen and signals at points of special danger, the rate of speed at stations and through villages, towns, and cities, are all matters naturally and peculiarly within the provisions of that law from the authority of which these modem highways of commerce derive their existence. The rules prescribed for their con- struction and operation, designed to protect persons and property, otherwise endangered by their use, are strictly within the limits of the local law. They are not per se regulations of commerce; It is only when they operate as such in the circumstances of their ap- plication, and conflict with the expressed or presumed will of Congress exerted on the same subject, that they can be required to give way to the supreme au- thority of the Constitution.' See Accident; Along; Agent; Bond; Carrier; Commerce; Compensation, 3; Connection, 1; Coksod- idate; Corporation, Public; Codpon; Damages; Depot; Domain,!; Entry, 1, 3; Extend; Express, 2; Fence; Ferry; Fixture; Franchise, 1; Freight; Intersect; Land, Pubhe; Maintain, 1; Master, 2; Mortgage; Negtjgence; Obstrcot, 1, 2; Over, 1; Passenger; Perishable; Pool; Eecbiver, 2; Sta- tion, 2; Stock, 2; Structure; Take, 8; Tax, 2; Tele- graph; Ticket; Time-table; Toll, 2; Torpedo; Tort, 2. RAISE. To create ; to call or bring into existence ; to infer as the result of construc- tion. Raise a check, note, etc. To increase, by fraudulent means, the face amount or value of a check, promissory note, or other piece of commercial paper. See further Note, 2, Raised. Raise a chUd. A child is ' ' raised " when it attains twenty-one.^ Raise an issue. To produce an issue be- tween parties pleading. The plea of not guilty is said to " raise the general issue." Raise portions. Settling realty upon an eldest son, and charging him with the pay- ment of sums to his brothers and sisters. Raise a presumption. A fact or cir- cumstance, admitted or proven, is said to "raise a presumption" that some other fact, also in issue but not durectly established, is or is not as alleged. ' Smith V. Alabama, 124 U. S. 481 (1888), Matthews, J. a Shoemaker v. Stobaugh, 59 Ind. 598 (1877). RANK 856 RATE Baise a promise. To infer a promise made, as a matter of justice : as when it is said that the law will or will not "raise a promise" or "an assumpsit" from a trans- action. See Assumpsit. Raise revenue. To bring revenue to- gether; to collect revenue; not necessarily to increase the amount. This is the meaning in the declaration that a bill '* to raise revenue " shall originate in the popular house.' See Revenue. Kaise a use. To call a use' into existence ; to infer a use to exist, by construction. In this sense is the saying that equity will " raise a use " from a conveyance in fee -without considel'ation. RANK. Frequently expresses something different from office ; is a designation or title of honor, dignity, or distinction confen-ed upon an officer to fix his position with ref- erence to other officers in matters of priv- ilege, precedence, and sometimes of com- mand, or by which to determine his pay or emoluments.^ See Grade, 2 ; Title, 5. RANSOM. 1. In old English law, money paid for the pardon of some great offense, or to redeejQ the person from imprisonment; the redemption of a corporal punishment. ^ 3. Redemption; repurchase. A friendly belligerent may ransom the property of a neutral after capture. A bill of exchange given as collateral security for the payment of the ransom of a vessel was held to be a contract on which an action could be sustained in a court of common law. Duress, arising from a threat to destroy vessel and cargo, will not avoid the con- tract, where the capture was justified by probable cause. A ransom is in the nature of a repurchase of the actual right of the captor as a prize-court would adjudicate it.* RAPE.5 The carnal knowledge of a woman forcibly and against her will. 6 " It is not easy to express in one definition all the refinements of the decisions upon this subject, espe- ' Perry County u Selma, &c. E. Co., 58 Ala. 557 (1877). = [Wood V. United States, 15 Ct. CI. 159 (1879), Rich- ardson, J. > See 4 Bl. Com. 380; Litt. 127. « Maissonnaire v. Keating, 2 Gall. 325, 337-38 (1815), Story, J. ' Mid. Eng. rape, haste, hurry; seizure by force. A popular etymology cpnnectB it with L. rapere, to seize hastily,— Skeat. «4 Bl. Com. 210; Commonwealth v. Fogerty, 8 Gray, 490 (18157); 143 Mass. 37; 105 id. 376; 11 Ark. 409; 9 Ha. 182; 52 Ind. 187; 25 Mich. 859; 29 id. 284; 14 Neb. 207; 11 Nev. 257; 20 Tex. Ap. 155; 22 Wis. 445; 64 id. 474; 67 id. 562. cially as statutoiy definitions differ, and peculiar cases may be stated which are punishable as rape in some jurisdictions while not in others." By the current of authorities, and by statutes, proof of penetration is all that is required; actual violence is not now neces- sary. If the act was committed without consent, — as where the woman is stupefied by drugs or liquors, or is deceived as to the nature of the act,. or is over- come by diwess or threats of murder,— the case may be rape, although there was no actual, continued re- sistance. A girl under ten is not competent to con- sent 1 (see Seduction), nor is an older female of insane mind. Man-iage gives permanent, irrevocable con- sent. = A male child under fourteen is not conclusively presumed to be incapable of committing the crime.' An assault with intent to commit rape is generally punishable as a distinct offense. " Ravish " or " ravished " is indispensable in an in- dictment.' It is a felony to force even a cencubine or harlot: she may have forsaken her evil ways. . . The party ravished may give evidence, but the credibility of her testimony must be left to the jury. If she be of good fame, presently disclosed the offense, and made search for the offender who has fled: these and like circum- stances give greater probability to her testimony. But, if she be of evil fame, unsupported in her testi- mony by others, concealed the injury a considerable time, and might have been heard, yetmadeno outcry: these and like circumstances create a strong but not a conclusive presumption that her testimony is not to be believed.^ The punishment varies in different jurisdictions. When the crime is committed on the high seas, or in ports, arsenals, etc., within the exclusive jurisdiction of the United States, it is punishable with death.* See Indictment; Prostitute; Will, 1. RASITRE. See Alteration, 3. RATE.' 1. Rank, standard; proportion; value, price, amount : as, in rate or rates of fares, rate of exchange {q. v.), rating of ves- sels. Rate means price, value. " Going rate " as to freight means an established price for the time.^ 2. A sum assessed as a tax ; in England, a local tax: as, the county, the borough, the poor rate. ' See generally Commouwealth v. Roosnell, 143 Mass. - 37-40 (1887). 'Abbott, Bouvier, Law Diets.; 50 Conn. 579; 77 Mo. 157; 50 Wis. 518; 2 Bish. Cr. L. §§ 1107-36; 2 Whart. Cr. L. §§ S50-77. 8 State V. Jones, 39 La. An. 935 (1887), cases. ■"Davis V. State, 42 Tex. 228 (1875); 60 Barb. 132; 18 S. & R. 69; 8 Gray, 490; 3 Ind. 230. » 4 Bl. Com. 213. » R. S. §§ 6345, 6339. ' L. rata (.pars): ratiis, reckoned, calculated. Com- pare Pro Rata. 8 Barrett v. The Wacousta, 1 Flip. 819 (1876). RATIFICATION 857 RATIHABITIO May apply to the percentage of taxation, or to the valuation of the property.^ Katable. " Eatable estate," within the meaning of a tax law, is taxable estate.* Hates of postage. See Mail, 2. RATrPICATION.3 Acceptance or adop- ' tlon of an act performed by another as agent . or representative ; in particular, confirmation f' of what has been done without original au- '' thority.* An adoption of a contract made on our behalf by some one whom we did not author- ize, which relates back to the execution of tbe contract and renders it obligatory from the outset. 5 Requires some positive, assertive act. An " estop- pel" may be created by silence.' Eefers to contracts between private persona, to treaties between states, and to changes proposed in written constitutions. 1. Eatiflcation of the unauthorized act of another operates upon the act ratified as if authority to do the act had been previously given, except where the rights of third parties have intervened between the act and the ratification. In other words, it is essen- tial that the party ratifying should be able not merely to do the act ratified at the time the act was done, but also at the time the ratification was made.' It is by express consent, or by conduct incon- sistent with any other hypothesis than that of ap- proval; but inoperative, if the party sought to be charged was not competent to make the contract when the same was made, nor when the supposed act of ratification was performed, or if the contract was illegal, immoral, or against public policy." Where fraud is of such a character as to involve a crime, ratification of the act from which it springs is opposed to public poUcy, and, hence, cannot be per- mitted; but where the transaction is contrary only to good faith and fair dealing, where it affects individual interest merely, ratification is permitted. Thus, the toigery of an indorsement, being a criminal act, is in- capable of ratific ation.' ^ 1 State V. Utter, S4 N. J. L. 494 (1869), Van Syckel, J.; Burlington, &c. E. Co. v. Lancaster County, 4 Neb. 304 (1876), Lake, C. J. = Marshfleld v. Middlesex, 55 Vt. 546 (1888), Powers, J.; 115 Mass. 186. = L. L. ratificare, to confirm: ratus, settled; facere, to make. * See Negley v. Lindsay, 67 Pa. 228 (1870), oases. ' Hare, Contracts, 272 (1887). « Howell V. McCrie, .36 Kan. 651 (1887). ' Cook V. Tullis, 18 Wall. 338 (1873), Field, J. ; Marsh V. Fulton County, 10 id. 684 (1870), cases; Norton v. Shelby County, 118 U. S. 451 (1886); 19 Cent. Law J. 182 (1884), cases. 8 Supervisors v. Schenck, 5 Wall. 781-83 (1866), cases, aifford, J.; United States v. Grossmayer, 9 id. 72 'Shisler v. Vandike, 93 Pa.. 449 (1880), Gordon, J.; PearsoU v. Chapin, 44 id. 15 (1862). Any ratification by an adult of his act done in in- fancy, of a clear and unequivocal character, showing an intention to affirm, will bind him. Mere acquies- cence is not therefore enough. But it is not necessary that the act of affirmance be as solemn as the original act itself.' A distinction is recognized between acts necessary to avoid and to confirm an infant's deed. Some assert that the avoidance must be by an act as solemn as the deed ; some, that that cannot be done short of an act of entry; others, that it can be done by another deed to a different grantee. But all agree that acts which would not be sufficient to avoid such a deed may amount to an affirmance. Acquiesc^ce, with other circumstances, may establish a ratification. The reason is, a con- firmation is an act of a character less solemn than an avoidance, and it may well be effected in a less formal manner.! No new consideration is required; but it is essential that the person sought to be charged have full knowl- edge of the facts in the case.'* If the principal ratifies that which favors him, he ratifies the whole, as far as it is not unlawful. = To have a retrospective effect, as against the inter- est of a third party, there must be some mutuality be- tween the ratifying principal and such party.* See Affirm, 2; Knowledoe, 1; Batihabitio; Void. 2. Eatification of conventions between independent states. See Tkeatt. 3. Eatification of amendments to constitutions. See Amendment, 2. EATIHABITIO. L. Approval; ratifi- cation, q. V. From ratum-habere, to have or to hold firm or es- tablished. Eatihabitio mandato sequiparatur. A ratification is equal to a command. Abridged from omnis ratihabitio retrotra- hitur et mandato (priori) cequiparatur, every ratification relates back and is equivalent to a (prior) command. An act of ratification has a retroactive effect, and amounts to pre- viously given authority. Where the rights of strangers will not be preju- diced, no maxim is better settled in reason and law. In matters of simple contract, it is as applicable to corporations as to natural persons. The rule is, where the principal, upon full knowledge of all the circum- stances of the case, deliberately ratifies the acts of his agent, he will be bound thereby as fully as if he had originally given direct authority in the premises to the extent to whic h such acts reach.' 1 Irvine v. Irvine, 9 Wall. 637-28 (1869), cases. Strong, J. ; Sims v. Everhardt, 103 U. S. 312 (1880), cases; Fink V. Eoe, 70 Cal. 311 (1886), cases. 2 Drakely v. Gregg, 8 Wall. 267 (1868), Davis, J. ; Ben- ninghoff «. Agiicultural Ins. Co., 93 N. T. 495, 501 (1883), Euger, C. J. ; First Nat. Bank of Ft. Scott v. Drake, 39 Kan. 3^4 (1883), cases; Bohartu. Oberne, 36 id. 391 (1887). s Gaines v. Miller, 111 U. S. 398 (18S4), cases. 4 Johnson i'. Johnson, 31 F. E. 703 (1887), cases. » Story. Agency, § 239; Whitney v. Wyman, 101 U. S. RATIO 858 READING . A legislature may ratify any act whicli it might have authorized.' See Eetrospeouvb. RATIO. L. Reason, cause ; nature, char- acter. Cessante ratione, cessat ipsa lex. The reason ceasing, the law itself ceases. When the reason, which is the soul of a law, ceases to exist, the law itself should lose its opera- tive effect. ' Thus, the essence of a contract being assent, there is no contract where assent is wanting. A right of way of necessity terminates with the necessity which gave rise to it. A litigant, or a witness, is privileged from arrest only while going to, remaining at, and re- turning from, the place of trial. If a corporation, made a grantee of land, be afterward dissolved, the grantor may re-enter; for the cause of the grant has ceased.* But a custom may be good though no reason for it can be assigned.' The maxim means that no law can survive the rea- sons on which it is founded. It needs" no statute to charge it; it abrogates itself. If the reasons on which a law rests are overborne by opposing reasons, which in the progress of society gain a controlling force, the old law, though still good as an abstract principle, and good in its application to some circumstances, must cease to apply as a' controlling principle to the new circumstances.^ Compare Repeal. Ratio decidendi. Reason for deci4ing ; the logic of a ruling.* Ratione materise. From the nature of the subject or subject-matter.'' Ratione personse. From the character of the person.' Ratione privilegii. By reason of privi- lege ; by virtue of a franchise or pi-erogative. 8 Ratione soli. By reason of the soil ; by virtue of ownership in the land.' Ratione tennrse. By reason of posses- sion or tenure. 396-97 (1879); Bird v. Brown, 4 Ex. *799 (1860); 133 Mass. 331; 44 N. H. 407; 37 Pa. 104; 53 id. 479; 57 id. 438; 80 id. 406. JMattingly v. District of Columbia, 97 U. S. 690 (1878); Thomson v. Lee County, 3 Wall. 331 (1865); Beloit V. Morgan, 7 id. 624 (1868); Spaulding v. Nourse, 143 Mass. 492-94 (1887), cases. 2 See 2 Bl. Com. 15, 26, 60, 256, 337, 390; 3 id. 219; 4 id. 336; 1 id. 476, 484. s Smith, Contr. 77. < Beardsley v. City of Hartford, 50 Conn. 542 (1883), Loomis, J. See also 8 Cranch, 249 ; 108 U. S. 3 ; 80 Kan. 238; 143 Mass. 489; 44 N. J. L. 96; 60 Pa, 515; 66 id. 338; 67 id. 203; 79 id. 505; 13 E. I. 594; 67 Wis. 112. ill4U. S. 388. « 17 F. R. 612, 613; 34 La. An. 784. ' 4 Hughes, 343. 8 106 E. Cf. L. 870. Ubi eadem ratio, ibieadem jus. Where the reason is the same, the law is the same. "Like reason malteth like law." Eadem ratio, eadem lex. The same reason, the same law. Contrariorum eontraria ratio. The reason for things which differ is different. Dissimiliuni dissimilis ratio. For unlike things the rule is unlike.i RAVISH. See Rape. RE. 1. In the matter of . See Res, Re. 2. The Latin inseparable particle, re, red, again, against. In compounds, denotes a turning backward, resto- ration to a former condition, transition into the'op- posite state; opposition; return, repetition, iteration. See words following. READING. See Influence. 1. A deed should be read whenever any party to it desires it. It he can, he should read it himself; if he is blind, or illiterate, another should read it to him. If it is read falsely, it will be void.^ ■ If a party who can read will not read a deed placed before him for execution, or if, being unable to read, he will not demand to have it read or explained to him, he is guilty of supine negligence, which is not the subject of protection, in equity or in law.^* If a party who can read and write signs a contract without reading the contents, he will be bound by the contract, in the absence of fraud or coercion in pro- curing his signature.* It is no defense that the defendant was misled as to the contents and effect of the writing, unless it also appears that by reason of some disability he was in- capable of reading and comprehending the writing for himself, or that he was imposed upon by some fraud- ulent device, as, the substitution of one writing for another.* If an applicant for life insm-ance is required to answer questions relating to material facts in writing, and to subscribe his name' thereto, it is his duty to read the answers beforehand, and it will be presumed that he read them.* It is not necessary for a devisee to prove that the will was read to the testator in the presence of the witnesses. In general, this is to be presumed; but if the testator was blind, or incapable of reading, or if a I'easonable ground be laid for believing that it was not read to him, or that there was fraud in the transac- tion, — it is necessary for the 'devisee to satisfy the 1 34 La. An. 94, 117. 2 2 Bl. Com. 304. 2 Greenfield's Estate, 14 Pa. 496 (1850), (Jibson, C. J.; Pennsylvania R. Co. v. Shay, 82 id. 203 (1876); Pacific Guano Co. v. Anglin, 82 Ala. 496 (1887). * Illinois Central R. Co. v. Jonte, 13 Bradw. 430 (1883). ' Taylor v. Fleckenstein, 80 F, B. 100 (1887), cases; 17 Alb. taw' J. 7-10 (1883) — Irish Law Times. • New York Life Ins. Co. v. Fletcher, 117 U. S. 632- .83 (1886), Field, J. REAL 859 RECEIPT jury that the will was so read, or that the contents were known to the testator. ^ 2. In ancient pleading, see Oyer. B£AL.^ 1. Actual ; neither nominal nor formal : as, a real party. See Party, 2. 2. Concerning laud ; relating to one's inter- est, ownership or title in land ; landed. Op- posed to personal.^ As, real or a real — action, asset, chattel, contract, covenant, estate, privi- lege, property, representative, security, qq. v. Realty. Real estate, real property, q. v. REAIiIZiE. To receive money or value. An owner of land who agrees to pay a percentage in the event of his realizing a specified sum of money for the land, becomes bound to pay the percentage the moment a responsible person in good faith offers that Amount for the land.^ See Broker. RE-APPEAISEE. See Appeaiser. BEAR. "In the rear of" a messuage does not necessarily mean directly behind the messuage.^ RE-ARGTJE. See Argument. RE- ARREST. See Arrest, 2. REASON". Presents no meaning peculiar to jurisprudence. Reasonable. Agreeable to sound reason, just, rational; also, conformable to the re- quirements of law, sufficient, proper: as, reasonable — care, diligence, skill ; reason- able — cause, doubt, notice, part, time, qq. v. Compare Ratio ; Sane. REASSURANCE. See Insurance. REBATE. Reduction in the amount of money due in consideration of prompt pay- ment ; discount. Compare Abate. REBEL; REBELLION. See Amnesty; Blockade; Enemy; Government, De facto; Money, Lawful; Tender, 2, Legal ; Treason ; War. REBUILD. See Repair, 1. REBUT .6 To contradict, oppose, do away with ; to adduce counter testimony or proof. Rebut an equity. To impose a construc- tion upon an instrument at variance with the superficial tenor.' 1 Harrison v. Rowan, 3 Wash. 584 (1830), Washing- ton, J. See also Fatton u Hope, 37 N. J. E. 527-28 (1883). " L. res, a thing. See Ees. » On the use of " real " and " personal " in English law, see 4 Law Quar. Bev. 394-408 (1888). 4 Lorillard ii. Silver, 25 Barb. 132 (1861). See also Stanford v. Greene County, 18 Iowa, 220 (1865). » Read v. Clarke, 109 Mass. 83 (1871). • F. rebouter, to repulse, repel. ' [1 Whart. Et. § 973, cases. Rebuttal. As a briefer expression than " rebutting evidence," and also as referring to the time for introducing such evidence, has gained general recognition. Whence " as rebuttal," "on rebuttal," " in rebuttal." Rebutter. In pleading, defendant's an- swer to a sur-rejoinder. Sur-rebutter, Plaintiff's answer to a re- butter, i Rebutting. Referring to evidence, some- times means contradictory only, at other times conclusive or overcoming.^ Rebutting evidence is evidence adduced to rebut a presumption of fact or of law, that is, to avoid its effect; also, any evidence adduced to destroy the ef- fect of prior evidence, whether by explanation or di- rect denial.* RECALL. See Call; Revoke. RECAPTION. See Caption, 1; Re- prisal. RECAPTURE. See Capture. RECEIPT. 1. Tabing or accepting a thing delivered, usually money, but may be any personalty. Receipts: moneys received. See Earnings. 2. Such written acknowledgment by one person of his having received money from another as will be prima facie evidence of that fact in a court of law.* An acknowledgment of payment or deliv- ery. May contain a contract to perform something in relation to the thing delivered.' Receipt in full. A payment of money, or a delivery of other property, in complete discharge of a demand. Receipt on account. A payment or de- livery of money or other property in part fulfillment of a contract. Simple receipt. A bare acknowledg- ment of the payment of money, or of the de- livery of personal property of any kind, to the person who signs the receipt. a receipt in full operates to defeat any further claim for a debt, unless it was obtained under such circumstances of mistake, accident, surprise, or fraud as would authorize a court of equity to set it aside.' A receipt which simply acknowledges a payment or delivery is ijrima facie, not conclusive, evidence of the 1 [3 Bl. Com. 310. ! Fain v. Cornett, 25 Ga. 186 (1K)8). '[3 Steph. Com. 539; People o. Page, 1 Idaho, 194 » Kegg V. State, 10 Ohio, 79 (1840). Grimke, J. « The Missouri v. Webb, 9 Mo. 194 (1845). » Abom V. Rathbone, 54 Conn. 446 (1887). EECEIVER 860 EECEIVEB fact. But if it contains the terms of a contract, it can- not be contradicted or varied by parol," q. v. Receiptor. 1. He who receives any thing delivered by another ; he who gives a writing certifying that he has received money or personal property. See Acceptance, 1 ; Deed, 2; Dischakge; Estoppel; Interim; Warehouseman. 3. A person, other than the execution- debtor, who gives a receipt for property at- tached, engaging, as surety to the officer who makes the levy, that the property will be forthcoming to answer any final judgment the plaintiff may recover.^ BECEIVEB. One who receives any- thing belonging to another or others. 1. One who receives stolen goods. See further Steaj,. 3. A person appointed by a court of equity to take charge of property in dispute. "An indifferent person between parties, appointed by the court to receive the rents, issues, or profits of laud, or other thing in question in court, pending the suit, where it does not seem reasonable to the court that either of the parties should receive it." ^ He is an ofHoer of tlie court; his appointment is provisional — for the benefit of all the parties who may- establish rights in the cause. He is but the creature of the court. He has suph powers only as are con- ferred upon him by the order of his appointment and the course and practice of the court." The order appointing him is in the nature of an in- junction or writ of sequestration, preventing any dis- position of or interference with the property without the consent of the court. ^ To authorize 3^ partner to demand the appointment of a receiver, he must show such a case of gross abuse and misconduct in his co-partner that a dissolution ought to be decreed and the business wound up.^ When a debtor is insolvent, and his mortgaged property is an insufficient security for the debt, and there is reason to believe that it will be wasted or de- teriorated in his hands, as by cutting timber, suffering dilapidation, etc., a court or equity may ta,ke charge 1 1 Greenl. Ev. §§ 805, 812; Bishop, Contr. § 176, cases; 2 Story, Contr. § 1333, cases; 3 Whart. Contr. §§ 938-41, cases; 7 Wait, Actions & Def. 444-50, cases; 63 Ind. 574; 69 Iowa, 367; 16 N. H. 489. = See Story, Bailm. § 124; Stevens v. Bailey, 68 N. H. 564 (1879); Hunter v. Peaks, 74 Me. 363 (1883). ' Booth V. Clark, 17 How. 331 (1854), Wayne, J., cit- ing Wyatt's Prao. Reg. 355. ' Thornton v. Washington Savings Bank, 76 Va. 433 (1882). "Story, Partn. §§ 328, 231; 2 Bates, Partn. §§ 993-1008, cases; 2 Lindley, Partn. *545-55, cases. See also Eanna V. Hanna, 89 N. C. 68 (1883). of the property by means of a receiver, and preserve not only the corpus of the property, but the rents and profits, for the satisfaction of the debt.' He is appointed upon a principle of justice for the benefit of all concerned. Every kind of property of such nature that, if legal, it might be taken in execu- tion, may, if equitable, be put into his possession. Hence, the appointment has been called an " equitable execution." He is virtually a representative of the court, and of all the parties in interest. He is required to take possession of property as directed, because it is deemed more for the interests of justice that he should do so than that the property should be in the possession of either of the parties in litigation. The property in his hands is in the custody of the law. The court gives consent to sue him touching the prop- erty, or for malfeasance, and will not permit his pos- session to be disturbed by force, nor violence to be offered his person. Property claimed by another may be tried by an issue at law, by reference to a master, or otherwise, as the court may direct. . . In the progi'ess of equity jurisdiction it has become usual to clothe such officers with much larger powers than were formerly conferred. In some States they, by statute, settle the affairs of certain insolvent corpo- rations, and sue in their own names. It is not unusual for courts of -equity to put them in charge of railroads financially embarrassed, and to require them to oper- ate such roads until the difficulties are removed or until the roads can be sold with the least sacriiice of the interests of those concerned. In all such cases th(? receiver is the right arm of the jurisdiction invoked. A court of equitj' may, perhaps, accomplish all tha results intended by such legislation. ^ Whether a receiver of the property of a railroad company shall be appointed is a matter within the dis- cretion of the court, which discretion is to be exercised sparingly, and with caution, and with reference to the circumstances of each case." Very little discretion is allowed him. He must ap- ply to the court for liberty to sue, to let the estate, or to lay out money on repairs. Where there are ten- ants, the court is virtually the landlord.* The practice is to ask the court for permission to sue him, as to the property. An unauthorized suit would be a contemptof court.* This rule likewise ap- plies to suits for a money demand, or damages." Without previous consent of court he may not incur any expense on account of the property beyond what 1 Kountze v. Omaha Hotel Co., 107 U. S. 305 (1882), Bradley, J. 2 Davis -!). Gray, 16 Wall. 217-22 (1872), cases, Swayne, J. See 14 W. N. C. 581 (1884), cases. "Sage V. Memphis, &c. R. Co., 125 TJ. S. 376 (1888), Harlan, J. « Booth V. Clark, 17 How. 331 (1854), cases. ' People's Bank of Belville v. Calhoun, 102 U. S. 262 (1880). ' Barton v. Barbour, 104 IT. S. 128-36 (1881), cases. Actions by and against him, 25 Am. Law Eeg. 289-304 (1886), cases; against him, for a personal wrong, Mis- souri Pacific R. Co. V. Texas Pacific R Co., 30 F. E. 167, 169 (1887), cases. EECEIVER 861 RECITE is absolutely necessary to its preservation and use, as contemplated by his appointment.^ He has no extra-territorial power of official ac- tion. If he seeks to be recognized in another jurisdic- tion, it is to take the fund there out of it, without such court having any control of his subsequent action in respect to it." Receiver's certificate. A non-negoti- able evidence of debt, or debenture, issued by authority of a court of chancery, as a first lien upon the property of a debtor corpora- tion in the hands of a receiver.^ The power in a coiu:tof equity to appoint managing receivers of such property as a railroad, when taken under its charge as a trust fund for the payment of incumbrances, and to authorize such receivers to raise money necessary for the preservation and manage- ment of the property, and make the same chargeable as a lien thereon for its repayment, cannot at this day be seriously disputed. It is a part of that jurisdiction by which it is its duty to protect and preserve the trust funds in its hands. It is, undoubtedly, a power to be exercised with great caution; and, if possible, with the consent or acquiescence of the parties inter- ested in the fund.* Many circumstances may exist to make it necessary for the receiver to pay pre-existing debts of certain classes out of the earnings of the receivership, or even out of the corpus of the property, with a priority of hen. Yet the discretion allowing this should be exer- cised with great care.^ The court, in order to preserve the road, and, per- haps, to complete inconsiderable portions of it, and put it into a condition for the transaction of business, may make money borrowed on certificates a lien on the property superior to that of the first mortgage." But, in order to complet-e an unfinished road, except imder extraordinary circumstances, the power of the court ought not to be exercised to enable the trustee to borrow money on certificates and create a para- mount lien therefor. It is better to reorganize the en- terprise on the basis of existing mortgages as stock, or an equivalent, and by a new mortgage, with a lien su- perior to the old, raise the money required without asking the court to engage in railroad building.' 1 Cowdrey v. Galveston, &c. R. Co., 93 U. S. 354 (1876). a Booth u Clark, 17 How. 338-39 (1854), cases. On suing in foreign jurisdictions without leave of the ap- pointing court, see 21 Am. Law Eev. 551-70 (1887), cases. ' Beach, Receivers, § 379; ib. 380-402, cases. See also, generally, High, Eec, §§ 398 c-g, cases; 3 Wood, Railw. Law, 1676-77, cases. « Wallace v. Loomis, 97 U. S. 162 (1877), Bradley, J. Quoted, 106 id. 310, infra. s Miltenberger v. Logansport B. Co., 106 U. S. 811 (1882), Blatchford, J. « Stanton v. Alabama, &c. R. Co., 3 Woods, 506 (1875) ; Kennedy v. St. Paul, &c. E. Co., 2 Dill. 448 (1873). ' Shaw V. Little Rock, &c. R. Co., 100 U. S. 605, 612 (1879), Waite, 0. J. In foreclosing mortgages, see 26 Cent. Law J. 543^6 (1888), cases; points of practice, 19 Am. Law Eev. 400-23 (1885), cases ; his compensation, Where receivers issue and dispose of certificatea contrary to orders, the certificates are invalid, even in the hands of a subsequent bona fide taker for value.* RECESSION. See Cede. RECIPROCITY. See Comity; Extra- dition; Treaty. RECITE. To set forth in writing facts explanatory of a transaction, — its nature, or the reasons for it. In pleading, " reciting a statute " is quoting or stat- ing its contents. " Recital. The statement, in a deed or other instrument, of the reason for execut- ing it, or of its relation to other instruments. Misreeital. An erroneous recital. Constitutes part of the premises of a deed. Usually begins with "whereas," and sets forth such other deeds, agreements, or matters of fact as are necessary to explain the reasons upon which the present trans- action is founded. 3 Particular recitals in a deed may operate as an estoppel upon the parties thereto, and their privies; not so general recitals. But no recital can bind inno- cent third parties. A recital of purchase-money is al- ways open to dispute.* It is laid down generally that a recital of one deed in another binds the parties, and those who claim under them. Technically speaking, it operates as an estoppel, and binds parties and privies,— privies in blood, privies in estate, and privies in law. But it does not bind mere strangers, or those who claim by title paramount to the deed; nor persons claiming by an adverse title or from the parties by title anterior to the date of the reciting deed. But there are cases in which such a recital may be used as evidence even against strangers. If, for instance, there be a recital of a lease in a deed of release, and in a suit agamst a stranger the title under the release comes in question, there the recital is not per se evidence of the existence of the lease. But if the existence and loss of the lease be established by other evidence, the recital is admis- sible as secondary proof, in the absence of more per- fect evidence, to establish the contents of the lease; and if the transaction be ancient, and possession has long been held under such release, and is not other- wise to be accounted for, the recital will of itself ma- terially fortify the presumption, from lapse of time Central Trust Co. v. Wabash, &c. R. Co., 32 F. E. 187 (1887). See generally Union Trust Co. v. Illinois Midland E. Co., 117 U. S. 434 (1866), Blatchford, J.; 23 Cent. Law J. 340 (1886), cases; 3 Law Quar. Eev. 429-45 (1887), cases; 100 U S. 153; 3 Woods, 316, 514, 527, 691; SDiU. 519, 476; 60 Ala. 331; 16 Wend. 421; 71 N. Y. 401; 12 E. I. 497; 11 Heisk. 210, 412. ' Stanton v. Alabama, &0. R. Co., 31 F. E. 585 (1837); Same v. Same, 2 Woods, 512 (1875), cases. 2 Gould, PI., 4 ed., p. 46, note; 6 W. Va. 648. ' [2 Bl. Com. 298. * 2 Whart. Ev. §§ 1039-43; 1 Greenl. Ev. §§ 23, 26; 2 Devlin, Deeds, §§ 992-1009. RECKLESS 862 RECORD and length of possession, of the original existence of the lease. 1 Compare Inducement; Pbeauble. See Bond, Mu- nicipal; Codpon; Estoppel. RECKLESS. See Caee; Negu&ence; Wanton. RECLAIM. 1. To demand back what was formerly parted with : as, in suing (or money advanced upon goods which were never delivered. 2. To domesticate, tame : as, to reclaim an animal (g. v.) of a wild nature ; to cultivate, till : as, to reclaim wild or waste lands. RECOG-NITIOIf. See Acquiescence; Ratification. RECOGNIZAN'CE.2 An obligation of record, entered into before a court of i-ecord or a magistrate duly authorized, with condi- tion to do some pa,rtiQular act ; as, to appear at court, to keep the peace, to pay a debt.' Is commonly applied to all forms of secu- rity for the appearance of the accused in criminal proceedings, whether in the form of a common-law recognizance or of a com- mon bond ; and so of appeals from probate courts. "Bond" is not unfrequently used as a general term, including " recognizance,'' which is but one kind of a bond. The dif- ference in some States is now largely one of form; and the terms are often interchanged.* In most respects a recognizance is like any other bond; the difference being chiefly that a "bond "is the creation of a fresh debt or obligation de novo; a recognizance is an acknowledgment of a former debt upon record. The cognizor (or conusor), the person who enters into it, acknowledges to owe the oognizee, the party to whom it is given (perhaps the common- wealth or government), a specified sum of money, with the condition to be void on performance of the thing stipulated. This, being either certified or taken by the officer of a court, is witnessed only by the rec- ord of that court, and not by the party's seal; so that it is not in strict propriety a deed, though the effects of it are greater than a common obligation, being al- lowed a. priority in point of payment, and binding the lands of the cognizor, from the time of enrollment on record.^ The provision that the cognizor shall not depart without leave of court has often been held to be dis- tinct from those which bind him to answer the speci- I Carver v. Astor, 4 Pet.-*83 (1830), Story, J.; Saba- riego V. Maverick, 124 0. S. 283 (1888), cases, Matthews, J. As to variance in recitals, see 24 Cent. Law J. 66 (1887) — Irish Law Times. " Ee-kSg'-nl-zans, or -kSn'. In legal usage the verb is re-kog'-nize. s [2 Bl. Com. 341, 465. * Ee Brown, 35 Minn. 308 (1886), Mitchell, J. fled charge, or all' matters which may be alleged against him, or to abide the final order of the court. > Recognize. To bind by a recognizance: as, to recognize a witness for his appearance.^ Recognizee. He in whose favor a recog- nizance is executed ; a cognizee. Recognizor; recognitor. He who exe- cutes a recognizance ; a cognizor. Recognizances are also required by courts as secu- rity for the due administration of trust property. A person accused of crime may be "discharged upon his own recognizance " when the evidence against him is slight and the time for trial distant, A recognizance is a matter of record, in the nature of a judgment. The process upon it, whether a scire facias or a summons, is intended to carry it into exe- cution, and is judicial; it is an original suit in the sense that the defendant may plead to it. When final judgment is given, the whole of the proceedings con- stitutes one record. 3 A recognizance is a debt of record, in the nature of a conditional judgment, which a recorded default makes absolute. It is subject onl3' to such matters of legal avoidance as may be shown by the^ plea, or to such'matters of relief as may induce the court to remit or mitigate the forfeiture. The object of a scire facias is to notify the cognizor to appear and show cause why execution should not issue for the sum acknowledged.* See Bail, 2; Onus, Bxoneretm-. RECOMMENDATION". See Letter, 3, page 613. RECOMPENSE. See Compensation. RECONSTRUCT. See Reform; Re- publican, Form, etc. RECONVENTION. In civil law, a species of cross-bill ; an action by defendant against plaintiff, before the same judge.^ ' The defendant does not render unavailable his al- legation that the contract in suit is unlawful by a fur- ther defense in " reconvention; " as, by claiming dam- ages for a non-fulfillmenc of the contract, if valid,^ on the part of the' plaintiff.* RECONVEYANCE," See Convetance. RECORD. 1, V. To preserve the memory of, by committing to writing or printing or by inscription ; to write or ent«r in 'oflBcial ' Commonwealth v. Teevens, 143 Mass. 215-16 (1887), cases. ^[l Greenl. Ev. §313. s Eespublica v. Cobbett, 3 Call. *4r5 (1798). < State V. Warren, 17 Tex. 388 (1856). As to discharge and forfeiture, see 18 Cent. Law J. 245-49 (1884), cases. See also 9 Pet. 339, 356; 15 W. N. C. 229; 30 Cal. 639; 53 111.486; 33Ind.219; 12Kan.465; 73 Me. 564; 43Md.306: 121 Mass. 84; 26 Miss. 54; 56 N. H. 178; 6 Wend. 330; 36 Barb. 433; 2 Greg. 316; 37 Pa. 181. « Story, Eq. PI. § 402; 4 Mart., La., 489; 7 id. 282; 8 id. 516. •Coppell V. Hall, 7 Wall. 642 (1868); Barras v. Bid- well, 3 Woods, 9 (1876); 14 How. 368. RECORD 863 RECORD books for authentic evidence ; to transcribe, in permanent form, for reference. 2, n. A memorial of what has been done; a writing or document preserved as evidence ; authentic written evidence, considered as either public or private, but usually public. See Writing, Public; Recordum. The acts and judicial proceedings of a court of rec- ord are enrolled in parchment for a perpetual memo- rial and testimony; and the rolls are called the "records " of the oom-t.' See Court, Of record. Judicial record. An official record of proceedings in a court of justice. Usage, in England, has made parchment the ma- terial tor perpetual memorials. In the United States, records are kept in bovmd books of linen paper, parch- ment, as the material, no longer entering into the defbaition. In many expressions, refemng to proceed- ings before courts of review, what is really meant is a copy of the record ; as, in the ex- pressions " defect in the record," " diminu- tion of the record," "show error by the record," " error apparent upon the face" or "in the record," "the record shows" or " does not show," " remit the record." A record, or judicial record, is a precise histoiy of a suit from its commencement to its termination, in- cluding the conclusion of the law thereon, drawn up by the proper officer, for the purpose of perpetuating the exact state of the facts. In the language of Lord Coke, " records are memorials or remembrancers, in rolls of parchment, of the proceedings and acts of a court of justice, which hath power to hold plea ac- cording to the course of the common law." * Matter of record. Any judicial pro- ceeding entered upon the records of the court in which it originates, or to which it is carried for review. Thus, the pleadings in an action being entered upon the records of the proper court and filed with its officer as the authentic histoiy of the suit, are thence termed a matter or matters of record. Opposed, " matter in deed," g. u Of record. On record ; recorded. Op- posed, not of record: unrecorded; not legally recorded. Contracts of record. Express contracts evidenced by some matter on record in a court ; as, a judgment, or a charge in that nature. >3B1. Com. 24. "Davidson v. Murphy, 13 Conn. 317 (1839), Williams, C. J.; Coke, Litt. 260 a. See also 18 F. R. 609; 2 Ark. 62; 11 id. 365; 34 Cal. 422; 44 Conn. 53; 2 Dak. 470; 49 Me. 345; 4 Mete., Mass., 423; 51 Miss. 656; 6 Ohio, 427; 18 m?. 469; 7 Bast. 56. Merges any other contract or ground of action; is, in effect, an estoppel, q. v.; requires no consideration; binds the debtor's realty; is avoided by fraud or ille- gality; and is discharged by satisfaction entered on the record itself. Affidavits, depositions, and other matters of evi- dence, though appearing in the transcript of the pro- ceedings of a common-law court, do not form part of the record, unless made so by an agreed statement of the facts, a bill of exceptions, a special verdict, or a demurrer to the evidence. They must be made a part by some regular proceeding at (he time of trial and before the rendition of judgment.^ Nul tiel record. No such record. A plea that there is no such matter of record in existence as the opposite party alleges.^ Puts in issue only that fact; and is met by the pro- duction of the record itself, valid upon its face, or an exemplification duly authenticated. A defense which requires evidence to contradict the record admits its existence and seeks to avoid its effect— by special plea, as at common law, or by an equivalent. De- tects on the face of the record may be taken advantage of upon production, but detects which require extrin- sic evidence to make them apparent must be formally alleged before they can be proven,^ See Appaeere, De non, etc. Denial of a record of a foreign court is tried by a jury, because the existence of the record to be in- spected must first be proven.* Judicial records are " of such incontroulable credit and verity that they admit no averment, plea, or proof to the contrary ; and if such record be alleged, and it be pleaded that there is no such record, it shall be tried only by itself.'' • This is called trial by record, and is by bare inspection whether there is any such record or not; otherwise, there would be no end to dis- putes." See Inspection, 2. The, records of the domestic courts of England and of some of the States are held to import absolute verity, as well in relation to jurisdictional as to other facts, in all collateral proceedings. Public policy and the dignity of the courts are supposed to require that no averment shall be admitted to contradict the rec- ord. But the rule has no extra-territorial force.' See Jurisdiction, 2. If there appears any material mistake of the clerk in making up a record the court will direct him to amend it.^ Courts of record may at any time, of their own motion, without notice, correct the mistake of a recording officer so as to make the record conform to > Baltimore, &c. R. Co. v. Trustees, 91 U. S. 130 (1875), cases, Clifford, J. See also Roanoke Land, &c. Co. v. Hickson, 80 Va. 691 (1885), cases. '_ [3 Bl. Com. 331. s HiU V. Mendenhall, 21 Wall. 456 (1874), cases, Waite, C. J.; Clark v. Melton, 10 S. C. 606 (1883). ' Basset v. United States, 9 Wall. 40 (1869), cases. 'Coke, Litt. 260a; 13 Conn. *218. •3BI. Com. 24, 331. ' Thompson v. Whitman, 18 Wall. 468(1873), Bradley, J. ; State v. Vest, 21 W. Va. 800 (1883), cases. » 3 Bl. Com. 24. RECORD 864 RECOUP the truth. They are the exclusive judges of the pro- priety aiid ot the proof.' SeeEEBOK, 8(1); Mispeision, 2; Nunc ProTuko. The old notion that a record remains in the breast •of the court only till the end of the term has yielded ■to necessity, convenience, and common sense.' See Term, 4. Becorder. 1. An ofificer charged with the preparation and custody of records, espe- cially records of deeds of all descriptions ; a register, q. v. 3. An officer, in cities of a few States, who exercises original jurisdiction in determining some of the more common criminal com- plaints, and adjudicates matters of a limited, civil nature. Anciently, one who recited or testified on recollec- .tion, as occasion required, what had previously passed in coui-t, and this was the duty of the judges, thence 'Called recordeurs.^ In England, he is often a person learned in the law whom the magistrate of a city, by vii-tue of the king's, ■grant, associates with himself for his direction in ju- dicial proceedings. The recorder of the city of Lon- don is practically the judge in the Lord Mayor's court of the city.* Eeeording. Copying an instrument into the public records, in a book kept for that purpose, by or under the superintendence of the officer appointed therefor. 8 Recording Acts. Statutes which regulate the official recording of conveyances, mort- gages, bills of sale, hypothecations, assign- ments for the benefit of creditors, articles of agreement, and other sealed instruments, for the purpose of informing the public, creditors, and purchasers,. of transactions af- fecting the ownership of property and the pe- cuniary responsibility of individual persons. Also, statutes which regulate the registra- tion of vessels. Compare Registry. Public records, by construction of law, are notice to a.11 persons of what they contain. Their contents are matters of public knowledge, because the law requires Ihem to be kept, authorizes them to be used, and se- cures to all persons access to them that knowledge of them may be public; and thence imputes to all inter- ested persons that knowledge the opportunity to ac- quire which it has provided. The law assmnes the iGUmau v. Libbey, 4 Cliff. 454, 460 (1878), cases, ■Clifford, J.; Blanchard v. Ferdinand, 132 Mass. 390 (1882); Hovey v. McDonald, 109 U. S. 157 (1883). = Rhoads V. Commonwealth, 15 Pa. 276 (1850). s Stephen, Plead. App. xix, note 11. 1 Cowell's Law Diet. ; 1 Steph. HistCr. Law Eng. 117; Bespublica v. Dallas, 3 Yeates, 315 (1801). » [Sawyer v. Adams, 8 Vt. 17S (1836), Williams, C. J. fuimiment and not the defeat of its own ends. It will not permit its policy to be gainsaid, not even by a plea of personal ignorance of its existence or extent. It would defeat that purpose not to presume with con- clusive force that the notice, which it was their office to communicate, had reached the party interested in receiving it.^ See Acknowledgment, 2; Authentication; Deliv- ery, 4; Diminution; Ebroe, 2 (3); Evidence; Exem- plification; Face, 1; Faith, Full, etc.; Falsify, 2; Index; Judgment; Lodge, 1 (2); Lost, 2; Notice, 1; Quasi; Remit; Satisfaction, 1. RECORD ARI. L. To be recorded. Recordari facias loquelam. That you cause the plaint to he recorded. A writ formerly in use to remove a suit in replevin from a county court to a superior court. ^ In North Carolina the writ of recordari secures a new trial of a case heard before a justice of the peace, and a reversal of a judgment erroneously rendered by him.' Recordum. A record; a judicial record. Prout patet per recordum. As appears by the record. Abridged prout patet, and prout. A formula for reference to a record. A writing either admitted or rejected as evidence, and excepted to, should appear in the bill of excep- tions by a prout.* RECOUP.s To cut out a part : to keep back, withhold part of a sum demanded. Recoupment. Reduction of a demand. " Recoupe " is synonymous with defalk or discount. ''Recoupment" is keeping back something alleged to be due, because there is an equitable reason for withholding it.6 For example, in an action for damages due on a contract, the defendant may recoup the damages he has sustained from the imperfect execution of the work.' Arises where there is an action upon a contract, or some obligation arising out of it, and there has been a breach of a divisible part of it or of such obligation. ^ Means a cutting back on the plaintiff's claim by the defendant. Properly applicable to a case where the same contract imposes mutual duties and obligations, and one part.y seeks a remedy for the breach of the ' Nesling v. Wells, 104 U. S. 438-41 (1881), cases, Mat- thews, J.; Moore v. Simonds, 100 id. 145 (1875); 1 Greenl. Ev. § 484; 1 Story, Eq. §§ 403-4; 4 Wheat. 487. ' See 3 Bl. Com. 34, 37, 195. s Weaver v. Mining Co., 89 N. C. 189 (1883), cases. 'Wilson D. Horner, 59 Pa. 155 (1868); 10 Me. 1.34; 1 Chitty, Plead. 356. *F. recoupe^ a shred: recouper^ to cut again. Com- pare Coupon. • [Ives V. Van Bpps, 22 Wend. 166 (1839): Tomlins' Law Diet. ' Dermott v. Jones, 23 How. 235 (1859). s Merrill v. Everett, 38 Conn. 48 (1871), Butler, C. J. RECOURSE 865 RED TAPE duty by the second, and the second meets the demand by a claim for a breach of duty by the first. ^ It is the right to set off unliquidated damages. *' Set-off " comprehends only liquidated demands, or depiands which are capable of being ascertained by calculation.^ Anciently, it was applied to the right of deduction from the damages claimed by the plaintiff on account of part-payment, depreciation or failure of consider- ation, or some analogous act. The right is now recog- nized under the name of deduction or reduction of damages; while the meaning of recoupment has been greatly enlarged and changed — extended to cross- demands existing in favor of the defendant, and arising out of the same contract or transaction upon which the plaintiff founds his action.' See Defalcation ; Set-opf. BECOURSE.4 A going back ; resort. ■Without recourse. By the use of these words the holder of negotiable paper may transfer title without incurring the responsi- bility of an indorser.5 See Indoesement, Qualified. EECOVEB. To obtain by judicial ac- tion or proceeding. Referring to a note: to collect or obtain the amount, possibly by a suit at law. 6 Applied to debt and demands generally intends ac- tion by process and course of law.' See Kecupebare. Recovery. Obtaining by l^gal process or proceeding ; restoration of a right by ju- dicial award. The actual possession of anything or its value, by judgment of a legal tribunals Implies adjudication, and receipt of the thing.' As to "recover " is to obtain by course of law, " re- covery " is obtaining a thing by judgment of a court, as the result of an action brought for the purpose.'" ' Davenport v. Hubbard, 46 Vt. 207, 206 (1873), Eoss, J., citing 2 Pars. Coutr. 247, 28 Vt. 414; Roberts v. Don- ovan, 70 Cal. 113 (1886). ' [Parker v. Hart, 32 N. J. E. 230 (1880): Batterman ■u. Kerce, 3 Hill, 174 (1843), Bronson, J. s Emery v. St. Louis, &c. B. Co., 77 Mo. 345 (1888), cases, Martin, C. See also 7 Am. Law Rev. 389-416 (1873), cases; 27 Ala. 574; 17 Ark. 270; 95 111. 476; 9 Ind. 470; 39 Me. 382; 4 Mich. 619; 54 Miss. 563; 49 Mo. 572; 2 N. Y. 286; 13 id. 151; 6 Barb. 391; 28 Vt. 413; 4 Wis. 440; 2 Pars. Contr. 760. * Ee-course'. ' See Byles, Bills, 154, note by Sharswood; 190 U. S. 714; 18 Iowa, 202; 12 Mass. 14; 2 Allen, 434; 18 Ohio St. 515; 8 Pa. 468. • See Douglass v. Reynolds, 7 Pet. '128(1833), St»ry, J. ' [Jones u Walker. 2 Paine, 719(1790?), Jay, C. J. e Strohecker v. Farthers' Bank, 6 Pa. 45 (1847). = [Lapham v. Almy, 13 Allen, 305 (1866), Gray, J.; 1 Wheat. 468. '« [Keiny v. Ingraham, 66 Barb. 257 (1873): Burrill's Law Diet. See also Norton v. Winter, 1 Oreg. 48 (55) Common recovery. A mode of transfer- ring title to land. Abolished in England by 8 and 4 Wm. IV (1834), c. 74. In the United States, either expressly abrogated or fallen into disuse, Consisted of a suit, actual or flctitiovfs, invented to elude the statute of mortmain and to unfetter inherit- ances. The land was recovered against the tenant of the freehold This recovery, as a supposed adjudi- cation of the right, bound all persons, and vested an absolute fee-simple estate in the recoverer. i A religious house, for lexample, set up a fictitious title. The tenant, by collusion, making no defense, judgment was given for the plaintiff. This was a re- covery by sentence of law upon a supposed prior title. In time, the procedure became a common assurance, and a legal mode of conveyance by which a tenant in tail could dispose of his land and tenement." Com- pare Fine, 1. Former recovery. Previous adjudication; former judgment. Upon a question directly involved, a former recov ery is conclusive in another suit.' A plea of former recovery, Whether it be by con- fession, verdict, or demurrer, is a bar to any new ac- tion of the same or the like nature for the same cause. There must be at least one decision on the right. The reason of the rule is, there must be an end to litiga- tion after the merits of a cause have been determined.' See further Adjudication. RECRIMINATION. See Crime, Crim- inate. RECTIFIER. In the internal revenue laws, any one who rectifies or purifies spirits in any manner whatever, or who makes any mixture of spirits with any thing else, and sells it under any name.* See Distiller. RECTUS. See Curia, Rectus. RECUPERARE. L. To recover ; liter- ally, to get again — J-e-copere. Quod recuperet. That he may recover. The ordinary form of a judgment at law for the plaintiff. See Recover. RED TAPE. 1. Tape used for tying up documents. (1853); Hoover u Clark, 3 Murphey, 171 (1819): Coke, Litt. 154. 1 [2 Bl. Com. 367. » 2 Bl. Com. 27), 117. See Lyle v. Richards, 9 S. & E. 364 (1823); Martin v. Strachan, 5T. R. 108, n. (1793); 4 Kent, 487; 8 Mass. *34. » Russell V. Place, 94 U. S. 606 (1876), cases; Cromwell V. County of Sac, ib. 351 (1876), cases; Coleman v. Ten- nessee, 97 id. 525-40 (1878), cases; 101 id. 639. 4Haldeman v. United States, 91 U. S. 586 (1875), Davis, J. » Quantity of Distilled Spirits, 3 Bened. 73 (1868): Act 13 July, 1866, § 9: 14 St. L. 117; United States v. Tenbrook, 1 Pet. C. C. 180 (1815). REDDAEE REFER 3. Extreme official formality.' Order carried to fastidious excess — system run out into trivial extremes.^ REDDAEE. L. To give back.: to return, render, restore. Reddendo singula singulis. Refei-ring the several things to distinct persons : construing disti-ibutively — the particular things enu- merated among the different persons desig- nated.3 Beddendum. Rendering ; yielding : yielding and paying. See Deed, 2; Yieioj- ING. Redditus; reditus. Something given back; return: rent, 3. v. REDEEM.'' To buy back ; to repurchase. Redeemable. Obtainable again by pur- chase. Opposed, irredeemable. Redemption. Purchasing a thing which the buj'er formerly owned ; repurchase. Used of the payment of a mortgage debt — where- upon the absolute title to the property becomes re- vested in the mortgagor; also, by analogy, of the act by which a pledgor pays his debt and receives back the article bailed. Equity of redemption. The privilege in a mortgagor to redeem his property forfeited by default in payment. At common law, when the condition was broken, the estate in the mortgagee became indefeasible. At an early period equity let the mortgagor, within a rea- sonable time, extendible once or of tener, redeem upon payment of the amount due — the debt being regarded as the principal thing. This equity is a distinct estate from that vested in the mortgagee before or after con- dition broken, and is descendible, devisable, and alien- able like other interests in realty. As a right, it is jealously protected; any limitation is contrary to vpublic policy, and void. Proceedings to foreclose the '.equity are regulated by statute, and' the regulations -are part of the mortgage contract. ' See further MORTOAGE. Stock may be pledged for the redemption of certifi- •cates of debt with interest, and foreclosure decreed upon non-payment of any installment.** RE-DIRECT. See Examination, 9. RE-DISCOUNT. See Discount, 2. 1 See Webster's Diet. ^ Webster v. Thompson, 55 Ga. 434 (1875), Bleckley, J. 2 See 12 Pick. 291; 18 id. 228; 148 Mass. 663; 37 N. J. E. 2; 14Ves. 490. ■« L. redimere, to buy back. 'Clark 11. Eeybum, 8 Wall. 321-22 (1868), cases, Swayne, J. See also Peugh v. Davis, 96 U. S. 337 (1877); 40 Cal. 236; 24 Me. 193; 9 Oreg. 351; 44 Vt. 612; 4 Kent, 159. » Swasey v. North Carolina B. Co., 1 Hughes, 1 (1874), Waite, C. J.; 71 N. C. 671; 23 Wall. 405. REDRESS.i A setting right; repara- tion; relief against wrong; satisfaction for an injury done ; remedy. The more effectually to accomplish the redress of private injuries, courts of justice are instituted to protect the weak from the insults of the strong, en- forcing those laws by which rights are defined and wrongs prohibited. This remedy is had by application to the courts, that is, by civil suit or action. But pri- vate injuries may also be redressed: (1) by the act of the injured party, as in defense of self, child or parent; by the recaption of goods; by entry upon realty; by abating nuisances; by distraining animals doing dam- age; (2) by the joint act of the injured and the injur- ing parties, as in accord, and arbitration; (3) by oper- ation of law, as in retainer, and remitter.- See Relief, 2; Remedy; Damages. REDUCE. See Possession -^ Recoup. REDUNDANCY. Matter inserted in a writing foreign to its purpose ; superfluous statement ; surplusage. A material distinction is made between redundancy in allegations and redundancy in the proof. In the former case, a variance between the allegations and the proof will be fatal, if the redundant allegations are descriptive of that which is essential. But in the lat- ter case, redundancy cannot vitiate, merely because more is proved than is alleged, unless the matter su- perfluously proved goes to contradict'some essential part of the allegation.^ See Surplusage. RE-ENACT. See Act, 3. RE-EXAMINE. See Examination, 9. REEVE. Steward; officer. The original Anglo-Saxon was gerefa, distinguished, famous.* The word is preserved in a few proper names and in port-reeve, sea-reeve, shei*ilf, gq. v. REFER. 1. To send to a person specially selected, for examination and report, a ques- tion or issue raised in a pending suit. Referee. The person so designated: an auditor, master, register in bankruptcy, or like officer. As used in Rev. St. § 824, which allows a docket fee to be taxed on a trial "before referees,'' — a class of officers who are appointed in pursuance of State stat- utes, to hear and determine all or a portion of the issues that arise on the final hearing of a cause. It does not refer to or include masters in chancery, how- ever they may hold their places.* Reference. The act, order, or paper by which a matter is committed to one or more persons for investigation and report. Refer bade; reference back. Import a seo- * Re-dress'. "SBl. Com. 3-19. _ ' 1 Greenl. Ev. § 67; 1 Whart. Ev. §| 945, 1004. « See 1 Bl. Com. 116. » Central Trust Co. v. Wabash, &c. E. Co., 33 F. E. 685-86 (1887), cases, Thayer, J. REFLECTION 867 REFRESH ond or new return of a matter to the referee (auditor, master, etc.) for an additional or amended report. When a case is referred, not by a submission in pais, but by a rule of court, the referee derives his authority from the court, not from the consent of the parties. The case remains in court subject to its power, and a judgment must be entered by the court. The proced- ure is a substitute for a trial by jury..' See Arbitration; Audit; Award, 2; FrNoiNO, Spe- cial; Master, 4; Report, 1 (1). 2. A reference in one instrument to an- other incorporates the latter. See further Veebum, Verba illata, etc. REFLECTION. See Deliberation ; Premeditate. REFORM. To rectify; to make an in- strument what it ought to be ; to reconstruct according to the intention of all parties. If through fraud, ignorance, or mistake an obligation does not express the meaning of the parties, it will be reformed so as to con- form to it ; as, where it is joint, or several, or joint and several, by an oversight.2 Where an agreement as reduced to writing omits or contains terms or stipulations contrary to the common intent of the jfarties, the instrument will be corrected so as to make it conform to the real intent. The par- ties will be placed as they would have stood it the mistake had not occurred. The party alleging mistake must show exactly in what it consists and the correc- tion that should be made. The evidence must be such as to leave no reasonable doubt upon the mind of the court as to either of these faults. The mistake must be mutual, common to both parties; it must appear that both have done what neither intended. Mistake on one side may be ground for a rescission, q. v. Where the minds have not met there is no contract, and hence none to be corrected." Where an instrument is executed that professes or is intended to carry into execution an agreement, in writing or by parol, previously made between the parties, but which by mistake of the draftsman, as to fact or law, does not fulfill or which violates the manifest intention, equity will coiTect the mistake so as to produce a conformity of the instrument to the agreement. The reason is, the execution of agree- ments fau'ly and legally made is one of the peculiar branches of equity jurisdiction, and if the instrument intended to execute the agreement be from any cause insufflcient for that purpose, the agreement remains as much unexecuted as if the party had refused alto- gether to comply with his agreement, and a court of equity will afford relief in the one case as much as in ' Seavey i;. Beckler, 132 Mass. 204 (1882), Morton, C. J. Op compulsory references, see 21 Cent. Law J. 284-88 (1885), cases. ' Pickersgill v. Lahens, 15 Wall. 144 (1372), Davis, J. >Hearne v. New England Mut. Mar. Ins. Co., 80 Wall. 490-91 (1874), cases, Swayne, J.; 4 Cliff. 196. the other, by compelling the delinquent party to per- form his undertaking according to its terms and the manifest intention of the parties. At the same time, equity has no power to make agreements for parties.' See Joint. The burden of overcoming the strong presumption 'arising from the terms of a written instrument rests upon the moving party. If the proofs are doubtful and unsatisfactory, if there is a failure to overcome this presumption by testimony entirely plain and con- vincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties.'^ Parol proof, in all cases, is to be received with great caution, and, where the mistake is denied, should never be made the foundation of a decree, variant from the written contract, except the proof be of the clearest and most satisfactory character. Nor should relief be granted where the party seeking it has' un- reasonably delayed application for redress, or where the circumstances raise the presumption that he ac- quiesced in the written agreement after becoming aware of the mistake. " There are many precedents for reforming policies of insurance in cases where the insured has held the policy until after a loss, in silence and ignorance of the necessity for reformation.* REFORMATORY, n. Includes every institution and place in which efforts are made to cultivate the intellect, instruct the conscience, or improve the conduct; any place in which persons voluntarily assemble, receive instruction, and submit to discipline, or are detained therein for either of these purposes by force.' REFRESH. To "refresh the memory" means to consult letters, diaries, or other memoranda in order to be enabled to recall the details of a past eventi After that, the witness is regarded as speaking from mem- ory. A witness may refresh with memoranda not in themselves admissible. He need not remember the 1 Hunt V. Rousmaniere, 1 Pet. *13-]4 (18i8), Washing- ton, J.; Same v. Same, 8 Wheat. 21] (1823); Walden v. Skinner, 101 U. S. 583 (1879); 1 Story, Eq. §§ 151-30; 2 Pomeroy, Eq. §§ 845-71. ■' Howland v. Blake, 97 U. S. 626 (1878), cases, Hunt, J.; Maxwell Land-Grant Case, 121 id. 381 (1887), cases; 4 Cliff. 682; 76 N. Y. 458; 1 Story, Eq. § 1,52. > Snell II. Atlantic Fire & Mar. Ins. Co., 98 U. S. 89-90 (1878), cases, Harlan, J. See also Elliott v. Saekett, 108 id. 142 (1882); Leaver v. Dennett, 109 id. 90 (1883); Baltzer v. Raleigh, &c. H. Co., 115 id. 645 (1885), cases; Coyle v. Davis, 116 id. 108(1885); Reed v. Root, 59 Iowa, S.'iO (1882); Fessenden v. Ookington, 74 Me. 125 (1883), cases; Clark v. Higgins, 1.32 Mass. ,589-90 (1883), cases, ' Palmer v. Hartford Fire Ins. Co., 54 Conn. 501-9 (1886), cases. ' [Hughes V. Daly, 49 Conn. 34 (1882), Pardee, J. REFUND REGISTER independent facts, the notes must be primary, but need not have been made by the witness, as, a deposi- tion. If the notes fail to refresh the witness's memory, the opposing party is not entitled to inspect them.' It is well settled that memoranda are not admissible unless reduced to writing at or shortly after the time of the transaction, while it must have been fresh in the memory of the witness.'* The opposite party may inspect a memorandum and cross-examine in regard to it; and it may be shown to the Jury, to prove that it could not properly refresh the memory.' There are cases which declare that, imless prepared in the discharge of some public duty, or of some duty arising out of the business relations of the witness with others, or in the regular course of his own business, or with the concurrence of the party to be charged and for the purpose of charging him, a private memoran- dum canno.t under any circumstances be admitted as evidence. There are other cases to the effect that where the witness states, under oath, that the memo- randum was made by him presently after the transac- tion to which it relates, for the purpose of perpetuat- ing his recollection of the facts, and that he knows that it was correct when prepared, although he cannot recall the circumstances so as to state them from memory alone, the paper may be received as the best evidence of which the case admits.* The writing is used to aid the memory. As the facts must finally be stated from personal recollection, if the witness has an independent recollection there 'is no propriety in his inspecting any note or writing.^ Refresher. In England, a fee paid to a barrister in a case unexpectedly px-olonged and laborious, either for re-perusal of briefs, or by way of reviving interest in the litiga- tion. Refreshment. See Entertainment. REPUND. To return money which should not have been paid. Refimding bond. An obligation to re- turn money if found to have been prema- turely or erroneously paid, as, money paid to a legatee or to the creditors of an estate. Refunds. In customs and duties laws: (1) moneys paid back on account of goods destroyed by accident ; (S) excess of deposits ' 1 Whart. Ev. |§ 516-26, cases; 1 Greenl. Ev. §§ 436- 2 Maxwell v. Wilkinson, 113 U. S. 658 (1885), cases. Gray, J. ' Commonwealth v. Haley, 13 Allen, 667 (1866), Hoar, J. See also, generally, Commonwealth v. Jeffs, 132 Mass. 6 (1882), oases; Bigelow v. Hall, 91 N. Y. 145 (1883). < Vicksburg, &c. R. Co. v. O'Brien, 119U. S. 102 (1886), cases, Harlan, J. « State V. Baldwin, 36 Kan. 15 (1886). See 86 Cent. Law J. 311-17 (1888), cases; 23 id. 63 (1886), cases. for unascertained duties; (3) duties paid under protest ; (4) proceeds of property seized for violation of the laws. In internal revenue laws: taxes illegally assessed, or erroneously paid; the cash value of stamps spoiled, unused, useless, etc. ; duties on spirits destroyed by ac- cident, fire, or other casualty; excess of taxes paid by national banks; drawbacks on exports; moneyspaid for lands sold for taxes, and the purchase-money on public lands erroneously sold.' REGICIDE. See Homicide. REGIWA. See King. REGISTER. 1, V. To enter officially in proper form, or in the appropriate book or books. 3, n. A book kept by publio authority ; a record. 3, n. A keeper of records; a recorder ; a registrar: as, a register in bankruptcy, of public lands, of vessels, of wills. Registrant. A person who complies with a law requiring a registration ; as, of a trade-mark, q. v. Registration. Recording, in full or in substance, and in due form of law, in an of- ficial book or register. The act of making a list, catalogue, sched- ule, or register. 2 May not intend a literal copying or recording, but entering in a book a statement or menjorandum of facts to serve as memorials or evidence; as, in a stat- ute requiring the certificate of a transfer of stock to be registered on the books of the company which. is- sued the stock.' Registry. 1. The act of recording ; reg- istration. 2. The system of recording transactions as required by law; also, the place where re- corded documents are kept. Registry of deeds.- The object is to im- part to parties dealing with property infor- mation respecting its transfers and incum- brances, and thus to protect them from prior secret conveyances and liens. It is to the registry, therefore, that purchasers, or others desiring to ascertain the condition of the prop- erty, must look; and, if not otherwise informed, they can rely upon the knowledge there obtained. But if they have notice of the existence of an unregistered conveyance, they cannot complain that they are prej- udiced by the want of registry. The general doc- trine is that knowledge of an existing conveyance or ' See R. S., and St. L., Index, " Refunds." '' Appointment of Supervisors of Election, 1 F. R. 5-6 (1680), Bradford, J. ' Fisher u Jones, 88 Ala. 182 (1886), cases. REGNAL REGULAR mortgage, in legal effect, is equivalent to notice by the registry. 1 Eegisti-y of vessels. The purpose is to de- clare the nationality of vessels engaged in trade with foreign countries, and to enable these vessels to assert that nationality. The purpose of an " enrollment " is to evidence the national character of vessels engaged in the coast- ing trade or home trafiHc and to enable them to pro- cure a coasting license. Neither " registry " nor "record" is usually applied to an enrollment. This distriction is observed throughout the legislation of Congress. The general statute on the subject of reg- istry is the act of December 31, 1792; the general stat- ute on enrollment, the act of February 18, 1793.' JRegistry of voters. In statutes relating to elections, " registered voters " uniformly refers to persons whose names are placed upon the registration books provided by law as the sole record or memorial of the duly qualified voters.' " Eegistration," in its ordinary, generic sense, when applied to voters, means any list, register, or schedule containing names, the being on which list, register, or schedule constitutes a prerequisite to voting.* See Record; Tkade-mark. REGNAL YEARS. See King. REGRATING. By statute 5 and 6 Edw. VI (1552), c. 14, buying corn [grain] or other "dead victual," and selling it again in or witliin four miles of the same market. An offense against public trade; because, by the practice, the price of provisions advanced with each change of ownership." Compare Engrossino; FoBESTALLiNO. REGRESS. See Ingress. REGULA. See Regular; Exceptio, Probat, etc. ; Secundum, Regulam. REGTJLAR.<* 1. Following the rule ; ac- cording to rule or law: observing the pre- scribed course: as, a regular — deposit, judg- ment, process or other proceeding. 2. Usual ; general ; not special : as, a reg- ular — election, session.' In the expression " regular navigation," " regular " may be used in contradistinction to "occasional " and 1 Patterson v. De la Bonde, 8 Wall. 300 (1 68), Field, J. In English law, 2 Law Quar. Rev. 324-46 Cl«86); Roman Dutch law, ib. 347 (1886). ' E. S. §§ 4131. 4312: The Mohawk, 3 Wall. 571 (1865), Miller, J.; Gibbons v. Ogden, 9 Wheat. 8l4 (1824), 3 Chalmers v. Funk, 76 Va. 719 (1882), Staples, J. < Appointment of Supervisors, ante. See generally 28 Am. Law Reg. 641-43 (1886), cases. »4 Bl. Com. 168; 1 Euss. Cr. 169. *L. regula, a rule. 'See State v. Conrades, 45 Mo. 47 (1869); Bethel v. Commissioners, GO Me. 538 (1872); 72 N. C. 163. refer to vessels which constitute lines, rattier than to vessels which are regular in the sense of being prop- erly documented.' Irregular. Not in compliance with the rule; regardless of rule or law; also, excep- tional, special. "Irregular process "is usually applied to process not issued in strict conformity with the law, whether the defect renders the process absolutely void or only voidable. 2 Irregularity. Non-adherence to the pre- scribed rule or proceeding ; as, by omitting something necessary for the due and orderly conducting of a suit, or by ordering it in an unseasonable time or improper manner.' See Erroneous; Void; Presumption. Regularly. " Regularly employed " in a trade does not mean continuously so em- ployed.* Regulate-. To lay down the rule by which a thing shall be done ; to prescribe the rule by which a business or trade shall be conducted. Power "to regulate commerce" is the power to prescribe the rules by which it shall be governed, that is, the conditions upon which it shall be conducted; to determine when it shall be free and when subject to duties or other exactions." "To regulate the practice" of a court by rules means to prescribe the manner of conducting pro- ceedings, the time lor pleadings, etc." Power to regulate the use of the streets of a city implies power to.prohibit their use under proper ch-- cumstances.^ Power to regulate the sale of liquor may embrace entire prohibition of sales to certain classes, such as minors." See further Prohibition. Regulation. In an act of Congress, "regulations" of a department means gen- eral rules relating to the subject upon which the department acts, made by the head thereof under some act giving the regula- tions the force of law.' General power to enact " sanitary regulations " in- cludes power to prohibit sales of adulterated milk.'" See Rules and Regdlatioms; Temporary. 1 The Steamer Smidt, 16 Op. Att.-Gen. 277 (1879). 2 Doe dem. Cooper v. Harter, 2 Ind. 253 (1850): Wood- cock V. Bennett, 1 Cow. 735 (1823). » Bowman v. Tallman, 2 Robt. 634 (1864): 1 Tidd's Pr. 512; Baldw. 246; 31 Cal. 626; 43 Mo. 317; 40 Wis. 366; 3 Chitty, Gen. Pr. 609. 1 Wilson V. Gray, 127 Mass. 99 (1879). " Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 803 (1885), Field, J. « Vanatta v. Anderson, 3 Binn. 423 (1811). ' Attorney-General v. Boston, 142 Mass. 203 (1886). e Williams v. State, 48 Ind. 308 (1874). ' itarvey v. United States, 3 Ct. CI. 42(1667), Loring, J. i» Polinsky v. People, 73 N. Y. 65 (1878). REHABILITATE 870 RELEASE REHABILITATE.! To restore to the ability or capacity formerly possessed, but of which the person has been deprived by judg- ment of a court. Reversal of judgment and'pardon (3. v.) rehabili- tates a felon to competency as a witness. ^ KEHEAJRING. See Hearing. REIMBURSE. To pay back again. This, the primary, meaning is to be imputed where not controlled by contract stipulations.^ Compare Disbursement. REINSTATE. To restore to former-po- sition with reference to other persons or things. When' the President is authorized by law to rein- state a discharged army officer, as by act of March 3, 1879 (20 St. L. 484), he may do so without the advice and consent of the Senate; and the right of such offi- cer to pay for the period he was out of the service de- pends upon the will of Congress as expressed in the enactment.^ RE-INSTRUCT. See Instruct. RE-ISSUE. See Issue, 1. REJOIN. To answer a replication. Rejoining gratis. For defendant to re- join without putting the plaintiff to the necessity of obtaining a rule.^ See Joinder. RELATION.^ 1. The principle by which an act done at one time is viewed, by a fiction of law, as done at an antecedent period. Applies where several proceedings are es- sential to complete a particular transaction, as, the execution of a conveyance or deed. The last proceeding which consummates the conveyance is held for certain purposes to take effect as of the day when the first pro- ceeding was had.' Thus, as between the parties to an application for a patent for land, when the title is consummated by all the necessary forms it relates back to the day when the patent was ordered ; but not so when third persons, who are not parties, will be prejudiced thereby.* The doctrine is applied to subserve the ends of jus- * L. re-habilitare, to have again. 2 White V. Hart, 13 Wall. 648 (1871); Knote v. United States. 95 U. S. 153 (1877); 48 Pa. 833. ' Philadelphia Trust, &c. Co. v. Audenreid, 83 Pa. 264 (187T), Woodward, J. See also Fuller v. Atwood, 13 E. I. 316 (1881). « Collins V. United States, 15 Ct. CI. 22 (1S7S), Rich- ardson, J.; Kilbum's Case, ib. 41 (1879); CoUins's Case, 16 Op. Att.-Gen. 624 (1879). ' = Adkins v. Anderson, 10 M. & W. *14 (1842). * L. re-latum^ borne back, carried back. ' Gibson v. Chouteau, 13 Wall, 100 (1871), Field, J. « Heath v. Ross, 12 Johns. *141 (1815). tice, and to protect parties deriving their interests from the claimant pending proceedings for the con- firmation of his title. Effect is given to the confirma- tion as of the day when the proceedings were insti- tuted.' Other -illustrations: an instrument delivered as a deed, but previously held as an escrow, bears the date of the delivery of the escrow; an assignment in bank- ruptcy transfers the debtor's title as it existed at the date of the filing of the petition; an act may give, character to a prior act and make a case of trespass ab initio; the judgment of a court has been held to be rendered as of the first day of the term.^ 2. A narrative ; information : as, in speak- ing of the suit of the State " at the relation " of {ex relatione, or ex rel.) A. B. v. C. D. Relator. An informant : the plaintiff in pi-oceedings by quo warranto. See War- RANTUM. The feminine form relatrix designates the complaint in bastardy proceedings. ^ 3. (1) The connection or tie between per- sons in a social status, as of husband and wife, parent and child, guardian and ward, master and servant. (8) A person connected with another by consanguinity or affinitj'. The more common use expresses kindred of blood or affinity, though properly only the former is em- braced. Hence, in strict technical sense, does not in- clude husband and wife. May include any and every relation that, exists in social life. If literally taken, would have so wide a range as to be liable to objection as indefinite or vague. To avoid this, it has long been settled that a bequest to "relations" applies to those who, by vir- tue of the statute of distributions, would take the prop- erty as next of kin.* " ' Relation"' might better be confined to the con- nection or tie, and ' relative ' to an individual per- son." RELATIVE. See Absolute; Rela- tion, 3; Right, 2. RELEASE. The act or writing by which some claim or interest is surrendered to an- other person. As, the instrument, or act, by which a creditor re- linquishes a demand or all demands whatsoever to his debtor; the instrument or action by which a trustee or witness is discharged from liability, or by which a part of one's property is relieved of the lien of a mort- gage or other incumbrance. 1 Lynch v. Bernal, 9 Wall. 325 (1869), cases. Field, J. ''See 15 Am. Deo. »4li-55, cases; 15 Johns. 309; 3 Kent, .33. s See Volksdorf v. People, 13 Bradw. 534 (1883). « Esty V. Clark, 101 Mass. 38-89 (1869), cases, Ames, J.; Handley v. Wrightson, 60 Md. 206 (1883), cases, BigeloWj C. J. RELEVANCY 871 RELIEF Releasee. He to whom a release is given. Releasor. He by -whom a release is exe- cuted. In the law of real property, a release is a discharge or a conveyance of a man's right in lands or tenements to another that has some former estate in possession. • This may be by way: of enlarging an estate, of passing an estate, of passing a right, of entry and feoffment, or of extinguishment.' While at common law a release conveyed to a per- son in possession the title of the releasor, it may now be used to convey a title to one who has no previous right in the land. In most States it is equivalent to a '* quitclaim " conveyance.^ Compare Confirmation, 2; Extinguishment; Sur- render. See Lease. BELEVAIfCY.3 That which conduces to the proof of a pertinent hypotliesis.^ Relevant. As applied to testimoiry, that wliich directly touches upon the issue made by the pleadings, so as " to assist " in getting at the truth of it.* Relevant means that any two facts lo which it is applied are so related to each other, that, according to the common course of events, one. taken by itself or in conijection with other facts, proves or renders probable the past, present, or future existence or non- existence of the other.6 Irrelevant. Not pertinent ; inapplicable. In pleading, said of a fact or allegation which has no bearing upon the subject- matter and cannot affect the decision of the court.' Testimony cannot be excluded as irrele- vant which would have a tendency, however remote, to establish the probability of the fact in controversy.* '2 Bl. Com. 324; Field v. Columbert, 4 Saw. 527 (1864); Palmer v. Bates, 22 Minn. 534 (1876j. ••'Richardson v. Levi, 67 Tex. 367 (1887), Willie, C. J.; Ely V. Stannard, 44 Conn. 633 (1887); 1 Devlin, Deeds, § 16, cases. * F. relevant: relever, to assist, help, be of use: L. re-levare, to raise again,— 58 Cal. 168; 78 N. Y. 95; 6 How. Pr. 314. « State V. Witham, 72 Me. 637 (1881): 1 VFhart. Ev. Ch. II, § 20. See also Seller v. Jenkins, 97 Ind. 438 (1884). 'Platner v. Plainer, 78 N. Y. 95(1879), Folger, J.; Hagerty v. Andrews, 94 id. 199 (1883). • Lamprey v. Donacour, 58 N. H. 377 (1878), Foster, J. ; Steph. Dig. Ev. (May's Am. ed.) 33; 52 N. H. 405; 58 id. 96. ' Scofleld V. State Nat. Bank of Lincoln, 9 Neb. 321 (1879), Maxwell, C. J. f Trull V. True, 33 Me. 367 (1851). A statement not material to the decision of the case is irrelevant; as, an answer which does not form or tender & material issue. ' A pleading is irrelevant which has no substantial relation to the controversy between the parties to the suit " Irrelative " is, perhaps, more appropriate, In parliamentary debate in England, *' irrelevant " means '• unassisting, unrelieving." ^ Facts, in an answer to a bill in equity, not material to the decision are '* impertinent." The test is whether the subject of the allegation could be put in issue, and would be matter proper to be given in evidence be- tween the parties.^ See Impertinence. In the law of evidence, collateral, disconnected facts are generally irrelevant. But from one part similar qualities of another part may be inferred. Evidence of prior ignitions is admissible against a railroad com- pany charged with the negligent use of fire.< Evidence is admissible which " tends " to prove the issue, or constitutes a Unk in the chain of proof, al- though alone it might not justify a verdict in accord- ance with it.' See Tend. RELICT. The survivor of a married couple, whether husband or wife; the sur- vivor of the union, not simply of thfe dece- dent individual.6 BELICTIOlf. See Alluvion ; Derelict. BELIEF.' 1. In feudal law, a fine or composition paid to the lord of a fee for tak- ing up an estate which had lapsed or fallen by the death of the last tenant. It •' raised up " and re-established the inheritance in the hands of the heir. 8 2. In practice, redress provided by law for deprivation of a right ; such enforcement of an alleged right as is invoked in a suit. To bar equitable relief the legal remedy must be equally effectual with the equitable remedy, as to all the rights of the complainant. Where the remedy at law is not " as practical and efficient to the ends of justice ^nd its prompt administration," the aid of equity may be invoked ; but if, on the other hand, " it is plain, adequate, and complete," the legal remedy must be pursued." Under a prayer for general relief, the plaintiff is entitled to such relief as is agreeable to the ease made in the bill, though different from the specific relief prayed for.'" ' [People V. McCuraber, li N. Y. 821 (1858). ' Seward v. Miller, 6 How. Pr. 313-14(1852), Strong, J.; Morton v. Jackson, 2 Minn. 222(1858). 3 Woods V. Morrell, 1 Johns. Ch. *106 (1814), Kent, Ch. * 1 Whart. Ev. Ch. II. '' 1 Greenl. Ev. § 51 a. ' [Spitler V. Heeter, 42 Ohio St. 101 (1884). ' F. relever: L. re-levare, to raise up again. 8 2 Bl. Com. 06, 60; Williams, R. P. 120. » Lewis V. Cocks, 23 Wall. 470 (1874), Swayne, J. ; Boyoe v. Grundy, 3 Pet. 215 (18.30). ■» Slemmer's Appeal, 58 Pa. 167 (1868); Hiern v. Mill, 13 Ves. *119 (1806); 13 Pa. 70. RELIGION 872 RELIGION That a bill contains a prayer with a " double aspect " forms no objection to the bill. *'Tou may ask the court to come to a conclusion on the facts which you have disclosed, having stated everything that will en- able the court to form a proper judgment. You may ask the judgment of the court on two alternatives." ^ The complainant, if not certain as to the specific relief to wiich he is entitled, may frame his prayer in the alternative, so that if one kind of relief is denied another may be granted; the relief, of each kind, be- ing consistent with the case made by the bill.^ See Compensation, 4; Equity, Bill in; Injury; Prayer; Redress; Remedy. RELIG-ION. In this country, the full and free right to entertain any religious be- lief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property nor infringe personal rights, is conceded to all. The law knows no heresy, is committed to the support of no dogma, the establish- ment of no sect.s Laws are made for the government of actions; and, while they cannot interfere witlL^ere religious belief and opinions, they may with practices. Thus, they prevent human sacrifices, burning alive on the funeral pile, plural marriages, and the like. To permit such practices would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Under such circumstances government could ^exist in name only.* The words ** religion" a,nd "religious," al- though used, are not defined in the national Constitution. Article VI, cl. &, provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." And the first sentence of the first Amendment, ratified in 1791, declares that " Congress shall make no law respecting an establishment of relig- ion, or prohibiting the free exercise thereof." To ascertain the meaning of these provisions, reference must be made to the history of the times in which they originated. Before the adoption of the Constitution, attempts had been made to legislate with respect not only to an establishment of religion, but also as to religious pre- cepts. The people were taxed for the support of sects to whose tenets they could not subscribe, and punish- 1 Wilhelm's Appeal, 79 Pa. 140 (1875), Sharswood, J. : Rawlings v. Lambert, 1 Johns. & H. 466 (.1860). 2 Hardin u Boyd, 113 U. S. 763 (1885), cases, Harlan, Justice. 3 Watson V. Jones, 13 Wall. 728 (1871), Miller, J.; United States u Bennett, 16 Blateh. 359-60 (1879), Blatchford, J. * Reynolds v. United States, 98 U. S. 166 (1878), WaitQ, C. J. See also Guiteau's Case, 10 F. E. 175 (1882). ments were prescribed for non-attendance _upon public worship and even for entertaining heretical opinions. The controversy upon the general subject culminated in'Virginia. There, in 1784, the legislature had under consideration " a bill establishing provision for teach- ers of the Christian religion," Action on this bill was ■ postponed one session; and,jduring the interval, stren- uous opposition to the bill was developed. A remon- strance by Mr. Madison, widely circulated and numerously signed, declared ""that religion, or the duty we owe the Creator," was not within the cogni- zance of civil government. At the ensuing session^ liot only was the proposed bill defeated, but another bill " for establishing religious freedom," drafted by Mr, Jefferson, was passed. This act (ISHerr. St. 84) recites "that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill-tendency, is a dangerous fallacy which at once destroys all religious liberty; — that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order." Therein lies the true distinction between the domains of church and state. About a year later the convention which framed the Federal Constitution met. The instrument as pro- posed and as adopted contained no declaration ex- pressly insuring freedom of religion. New Hampshire, New York, Virginia, and North Carolina suggested such a declarf^tion as an amendment. Accordingly, at the first session of the first Congress, the First Amend- - ment was proposed by Mr. Madison. That amendment ' deprives Congress of all legislative power over mere opinion, but leaves it free to reach all actions which are in violation of social duties or subversive of good order. " The Amendment," said Mr. Jefferson '* builds a wall of separation between church and state." ^ The real object of the Amendment was to exclude rivalry among Christian sects, and prevent any na- tional ecclesiastical establishment- which would give to a hierarchy the exclusive patronage of the national government. It thus cuts off the means of religious persecution.'' The general if not the universal sentiment was that Christianity ought to receive encouragement from the state so far as not incompatible with the private rights of conscience and freedom of religious worship. Any attempt to level all religions, to make it a matter of state policy to hold all in indifference, would have created universal disapprobation, if not imiversal in- dignation. ^ The Amendment prohibits any laws which shall recognize, found, confirm, or patronize any particular religion or form of religion, permanent or temporary, present or future.* But it is a restriction placed upon the legislative power of the United States government alone. The Constitutiqn makes no provisions for protecting the 1 Reynolds u United States, 98 U. S. 162-64 (1878): 1 Jefferson's Works, 45; & id. 113; 2 Howis., Va., 298. 2 2 Story, Const. §§ 1877, 622-23. » 2 Story, Const. § 1874. * 1 Story, Const. § 454; 1 Tuck. Bl. Com. Ap. 396. RELIGION 873 RELIGION citizens of the respective States in the exercise of re- ligious liberty. That is left wholly to the constitution and laws of each State.* The provision against "religious tests " was intended to cut off every pretense of alliance between church and state, and prevent any sect from securing a mo- nopoly of the ofBces of government.' Likewise, the constitutions of the States forbid the establishment of any particular religion. Those of Cal- ifornia, New York, and Pennsylvania may be taken as declaring the sentiment of the people of the other States upon the general subject of the natural rights of conscience and freedom of worship. They provide as follows: " The free exercise and enjoyment of religious pro- fession and worship, without discrimination or prefer- ence, shall forever be allowed [guaranteed] in this State to all mankind; and no person shall be rendered incompetent to be a witness [or juror] on account of his opinions on matters of religious belief; but the lib- erty of conscience hereby secui'ed shall not be so con- strued as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.' " All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be com- pelled to attend, erect, or support any place of worship or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no pref- erence shall ever be given by law to any religious es- tablishment or modes of worship." ^ As early as December 7, 1683, it was enacted by William Penn and the deputies, " That no person, now or at any time hereafter Living in this Province, who shall confess and acknowledge one Almighty God to be Creator, Upholder and Ruler of the World, And who professes him or herself Obliged in Conscience to Live peaceably and quietly under the civil govern- ment, shall in any case be molested or prejudiced for his or her Conscientious persuasion or practice. Nor 1 Barron v. Mayor of Baltimore, 7 Pet. 247 (1833), Marshall, C. J.; Permoli v. First Municipality, 3 How. 009 (1845); Reynolds v. United States, 08 U. S. 162 (1878). = 2 Story, Const, §§ 1847, 1849. 3 New York (Constitution of 1846, Art. 1, sec. 3. The California constitution of 1879, Art. 1, sec. 4, is the same except as to the words inclosed by brackets. * Pennsylvania Constitution of 1874, Art. I, sec. 3. See Vidal v. Girard, 2 How. 198 (1844), Story, J.; Bush V. Commonwealth, 80 Ky. 249 (1882); Cooley, Const. 206; Strong. Giv. Law and Oiurch Pohty, 11-27 (1875). See constitutions of other States as follows; Ala. L 4; Ark. H, 24; Col. H, 4; Conn. I, 34, VH, 1, 2; Del. Pre. 1, 1; Fla. D. E. 5, 23; Ga. I, 6, 12; 111. U, 3; Ind. I, 2^, 7; Iowa, I, 3, 4iKan. B. E. 7; Ky. XIU, 5, 6; La. 12; Me. I, 3; Md. D. E. 36; Mass. H, 1, 2, Amd. 11; Mich. IV, 39, 41; Minn. 1, 10, 17; Miss. I, 23; Mo. H, 5-7; Neb. I, 4; Nev. I, 4; N. H. I, 4-6; N. J. I, 3, 4; N. Y. I, 3; N. C. I, 26; Ohio, I, 7; Greg. I, 2, 3, 6, 7; R. I. I, 3; S. C. I, 9, 10; Tenn. I, 3; Texas, I, 0; Va. 1. 18; Vt. I, 3, D, 14; W. Va. m, 15; Wis. 1, 18, 19. shall he or she at any time be compelled to frequent or maintain any religious worship, place or Ministry whatever. Contrary to his or her mind, but shall freely and fully enjoy his or her Christian liberty in that respect, without any Interruption or reflection. And if any person shall abuse or deride any other, for his or her different persuasion and practice in matters of religion, such person shall be looked upon as a Dis- turber of the peace, and be punished accordingly." ' "Religion " in the constitution of Ohio, in the dec- laration that " religion, morality, and knowledge are essential to good government " refers to the religion of mankind, not of any class of men. There is no such thing as " religion of state." = But "religion," "religious," and equivalent words and phrases, have often been held to refer to the (^ristian religion, in its most comprehensive accepta- tion. Thus, in a will, "religious books" will denote such publications as tend to promote the religion taught by the Christian dispensation, unless associated words or circumstances show a reference to another mode of worship.'' Though the constitution of Xew York has discarded religious establishments it does not forbid judicial cognizance of those offenses against religion and mo- I'ality which have no reference to any such establish- ment, or to any particular form of government, but are punishable because they strike at the root of moral obligation, and weaken the security of social ties.* " The separation of church and state is not so com- plete that the state is indifferent to the welfare and prosperity of the church. This is a Christian com- monwealth. . Eeligion lies at the basis of moral- ity. For the purpose of securing the best and most thoroughly extended morality, it is fitting that religion and the church be recognized." ^ " The criminal laws of every country are shaped in greater or less degree by the prevailing public senti- ment as to what is right, proper, and decorous, or the reverse; and they punish as crimes acts which disturb the peace and order or tend to shock the moral sense or sense of propriety and decency of the community. The moral sense is largely regulated and controlled by the religious belief; and therefore it is that those things which, estimated by a Christian standard, are profane and blasphemous, are properly punished as crimes against society, since they are offensive in the highest degree to the general public sense and have a direct tendency to tmdermine the moral support of the laws and to corrupt the community." « See Assembly; Blasphemy; Camp-meeting; Char- ity; Chobch; Conscience; Holiday; Masses; Mort- main; Oath; Profanity; School; Sunday; Wobship. ' " The Great Law " of the Prov. of Penn. ; Linn, 107, 478. = Board of Education v. Mmor, 23 Ohio St. 243 (1872), Welch, J. ' Simpson v. Welcome, 72 Me. 499 (1881). • People V. Ruggles, 8 Johns. *296 (1811), Kent, C. J. > Commissioners of Wyandotte County v. Presbyte- rian Church, 30 Kan. 637 (188:^), Brewer, J. " Cooley, Const. Lim. 588. On apostacy at common law, see 2 Law (Juar. Rev. 163 (1886). RELINQUISH 874 REMAINDER RELINQUISH. See Abandon; Dere- lict; Discharge; Quit; Release; Remit, 3, 3 ; Renounce ; Waive. REM. See Res. REMAINDER. An estate limited to take effect and be enjoyed after another estate is determined.' As, in the case of a grant of lands to A for twenty years, and, a-fter the determination of that term, to B and his heirs forever. Here A is tenant for years, remainder to B in fee.^ A remnant of an estate in land, depending on a particular prior estate, created at the same time, and by the same instrument, and limited to arise immediately on the determi- nation of that estate, and not in abridgment of it. 2 Generally used of landed property, but there may be a remainder in peisonalty.^ Remainder-man. The owner or tenant of an estate in remainder. There must be a "particular" estate precedent to the estate in remainder ; and the remainder itself must commence or pass out of the grantor at the time of the creation of the particular estate, and vest in the grantee during the continuance of such estate or the instaut it determines.* Contingent remainder. Where the es- tate is limited to take effect as to a dubious and uncertain person or upon a dubious and uncertain event ; sp that the particular estate may chance to be determined and the re- mainder never take effect. Called also an executory remainder, for by it no present iti- terest passes. Vested remainder. Where the estate is invariably fixed, to remain to, a determinate person, after the particular es- tate is spent. Called also a remainder exe- cuted, since by it the present interest which passes is to be enjoyed in the future. ^ Cross-remainder. Where a devise is of black-acre to A and of white-acre to B in tail, and, if both die without issue, to C in fee, — A and B have "cross-remainders" by implication, and on the failure of either's issue, the other or his issue will take the whole ; and C's remainder over is postponed till the issue of both shall fail." ' Si Bl. Com. 163. 2 4 Kent, 197; Bennett v. Garlock, 10 Hun, 337 (1877). ' In Connecticut, may be of realty or personalty, Bristol «. Bristol, 53 Conn. 878 (1885). < 2 Bl. Com. 165-69. * [2 Bl. Com. 168-69; Doe's Case, 6 Wall., post. •2 Bl. Com. 381; Cowp. 777, 797; 4 T. B. 710; 5 id. 431,621: S East, 36. A cross-remainder cannot arise in deeds without express limitation, i It is the uncertainty of the right of enjoyment, not of its actual enjoyment, which i-enders a remainder " contingent." The present capacity of taking effect in possession, if the possession were to beconie vacant, distinguishes a vested froin a contingent remainder, and not the certainty that the possession will ever be- come vacant while the remainder continues.^ A remainder is " vested " when there is a person in being who would have an immediate right to the pos- session upon the ceasing of the intermediate particular estate. It is an estate grantable by any of the con- veyances operating by force of the Statute of Uses. A remainder limited upon an estate-tiiil is a vested re- mainder. A remainder is never held to be contingent when, consistently with the intention, it can be held to be vested." A contingent remainder, amounting to a freehold, cannot be limited to an estate less than freehold. It may be defeated by the determination or destruction of the particular estate before the contingency hap- pens. Hence, trustees are appointed to preserve such remainders.^ The law will not construe a limitation in a will an executory devise when it can take effect as a remain- der, nor a remainder to be contingent when it can be taken to be vested. The rule is, an estate vests at the earliest possible pei'iod, unless there is a clear mani- festation of the intention of the testator to the con- trary.* "Where," "there," "after," "from," and other adverbs of time, used in a devise of a remainder, are construed to relate to the time of the enjoyment qf the estate, not to the time of the vesting in interest. Where there is a devise to a class of persons to take effect at a future period, the estate vests in the per- sons as they come in esse, subject to open and let in others as they are born afterward. An estate once vested will not be devested unless the intent to devest clearly appears.' See Then; Ween. Words directing that laud be conveyed or divided among remainder-men, after the termination of a par- ticular estate, are always presumed, unless clearly controlled by other provisions of the will, to relate to the beginning of enjoyment by the remainder-men, and not to the vesting of a title in them.* , ' a Bl. Com. 381 ; Hall v. Priest, 6 Gray, IS (1836), Big- elow, J.; 8 Washb. R. P. 233; 4 Kent, 201; 1 Prest. Est. 94. ' 4 Kent, 202-6. 'Croxall V. Shererd, 5 Wall. 287-88 (1866), cases, Swayne, J. See also Scott v. West, 63 Wis. 589, 564-65 (1885), cases ; Mercantile Bank of New York v. Ballard, 83 Ky. 487-88 (1885) ; Farnam v. Farnam, 63 Conn. 878-83 (1885), cases. *Do6 V. Con.sidine, 6 Wall. 474-78 (1867), cases, Swayne, J. See also Cropley v. Cooper, 19 Wall. 176 (1873), oases; Mc Arthur v. Scott, 113 U. S. 379-80 (1885), cases; 8 Conn. *m9: 66 Ga. 472-73; 26 N. J. L. 540; 5 Paige, 466; 26 Barb. 224; 37 Pa. 28; 75 id. 220; 83 id. 483. 'McArthur v. Scott, 113 U. S. 380 (1885), casSs, Gray, J. REMAND 875 EEMEBY When the income of property is devised to A dur- ing his life, remainder to B, the interest of B becomes vested at the death of the testator, even though A should have died before the testator. ' If a remainder created by will cannot take effect, the property, according to circumstances, will either fall into the residuum or remain undisposed of. If an executory devise cannot take effect, the estate, ordi- narily, unless the will directs otherwise, will continue in the first taker.* See Abeyance; Devise, Executory; Eevbrsion; Shelley's Case; Waste, 2. REMAHD. 1. When an accused person, after a partial hearing, is sent back to prison to await further proceedings, as, the collec- tion of testimony, the magistrate is said to remand him, and the order of recommit- ment is called the reman d.s 2. An order sending back a cause improp- erly removed into an appellate tribunal ; as, a Qause taken to the circuit court of the United States from a State court. See Ee- MOVK, 3. REMAiraiT.* A cause held over from a former term of court ; a continued or post- poned case. Plural, remanets. REMEDIAL. See Eemedt. BEMEDIUM. L. Redress, relief, rem- edy; reparation. Ubi jus, itai remedium. Where there is a right, there is a remedy. For every legal right the law provides a remedy .* See Damnum, Absque, etc. REMEDY. A mode prescribed by law to enforce a duty or redress a wrong ; not, an obligation to guarantee a right or to indem- nify against a wrong.'' The remedy for every species of wrong is " the being put in possession of that right whereof the party mjured is deprived. The instruments whereby this remedy is obtained are a- diversity of suits and actions." ' I Eobison v. Female Orphan Asylum, 183 U. S. 706-9 (1887). cases, Matthews, J.; 86 Cent. Law J. 552-54 'Medley v. Medley, 81 Va. 270 (1886); Jackson v. Noble, 2 Keen, *596 Ue38); Barnitz's Lessee v. Casey, 7 Cranch, 464 (1813). See generally, as to remainder- man and life tenant, 33 Alb. Law J. 404, 424, 444 (1886), cases; 34 id. 144 (1886), cases. sSeeSBl. Com. 21. < Kem'-a-net. L. remanet, it remains, is left. s Broom, Max. 192; 7 Gray, 197; 1 Sm. L. C. 478. » [United States v. Lyman, 1 Mas. 500 (1818), Story, J.; State v. Poulterer, 16 Cal. 628 (1860). ' Cohens v. Virginia, 6 Wheat. 407 (1831); 3 Bl. Com. 116. " A judicial means of enforcing a right or redressing a wrong." i In saying that, while a contract right may not be impaired, the remedy may be modified without im- pairing the obligation of the contract, the word " rem- edy" pertains to the modes of procedure and plead- ing which lead up to and end in the judgment.' See Impair. Remedial. Affording a remedy ; supply- ing defects in the common or statutory law : as, remedial statutes, legislation. ^ The remedial part of the law is that whereby a method is pointed out to recover private rights, or re- dress private wrongs. See further Statute. Adequate remedy. May mean com- plete satisfaction of such judgment as may be recovered without restriction.* See Ade- quate, 2. Civil remedy. Redress afforded by a civil court for a private injury. Cumulative remedy. A remedy, cre- ated by statute, additional to the other rem- edy or remedies already existing. Where a statute creates a new right or liability and at the s,ame time gives a remedy, such remedy is ex- clusive ; but when the right or remedy was not created by the statute, but would have existed without the statute, the statutory remedy is cumulative.' Whenever a statute gives a new right without cre- ating a special remedy tor its enforcement, it may be enforced by any appropriate common-law action. So where a right is to be enforced by a common-law ac- tion, ifis immaterial whether th^e right has been con- ferred by statute or common law." Equitable remedy. Eedress afforded by a court exercising equity powers. Legal remedy. Eedress afforded by a court exer- cising purely common-law powers. Extraordinary remedy. Eelief fur- nished by a court of chancery exercising its extraordinary jurisdiction. Judicial or legal remedy. "Judicial remedy,'' in its largest sense, comprehends more than a direct proceeding against a party to a contract to compel him to perform its stipulations. It comprises, also, judicial > Stratton v. European, &c. R Co., 74 Me. 488 (1883), Danf orth, J. » Johnson v. Fletcher, 54 Miss. 631 (1877), Chalmers, J. ' [1 Bl. Com. 86. i [United States v. New Orleans, 17 F R. 491 (1883), Billings, J. 5 Godding v. Pierce, 13 R. I. 534 (1882); 11 id. 586; 9 id. 544; 8 Cush. 93; 16 Gray, 821; 1 Chitty, PI. 113. ' Union E. & Transit Co. v. Shacklett, 119 111. 839 (1886); Train v. Boston Disinfecting Co., 144 Mass. 638 (1887). REMISE 876 REMOVE protection against invasion by others of the rights vested by the contract. Any means in the hands of the party aggrieved, or of any other person, though not a court, for en- forcing performance of a contract, — anj' mode agreed upon, if permitted by the law, is a " legal remedy." i Remedy over. A remedy against an- other as a third person. Thus, when an indorser has a " remedy over " he must be given notice of non-payment.^ See Electiojt, 3; Redress; Relief, 2; Suit, 3. KEMISE. To release, q. v. REMISSNESS. In sending and deliver- ing a message, implies a sending in a tardy, negligent or careless manner. ^ REMIT. 1. To send back, as, a record to an inferior court. 3. To release, as, a debt ; to discharge, as, a penalty ; to pardon, as, an offense. 3. To relinquish, give up, as, damages awarded. The right of the trial court, in the exercise of a sound discretion, when it deems a verdict excessive, the result of ignorance, passion or prejudice on the part of the jury, to refuse a new trial, upon condition that the prevailing party remit such a sum as shall leave the recovery not excessive, has often been exer- cised.* See Remittitur, 1. Remitter. At common law, a redress by operation of law : where one who has right to lands, but is out of possession, has after- ward the freehold cast upon him by some subsequent defective title, and enters by vir- tue of that title. ^ The law sends him back to his ancient, more cer- tain title.' REMITTERE. L. To send back : to re- lease ; to remit. Remittit. He releases ; he surrenders. RemittitTir. It is sent back; also, it is released. 1. Relinquishment of a part of the dam- ages found by a jury. Remittitur damnum. The damage is re- leased. Bemittitur damna. It is released as ■ state V. Young, 29 Minn. 634 (1831), GilfiUan, C. J. s Brown v. Maffey, 15 East, 316 (1812). = Baldwin v. United States Telegraph (3o., 6 Abb. Pr. 423 (1867). •"Craig V. Cook, 88 Minn. 237 (1881), cases; North. Paclflc R. Co. V. Herbert,, 116 U. S, 646 (1886), cases; 3 Mas. 107; 36 Cal. 462; 3 Col. 571; 4 Conn. 311; 74 111. 399; 35 Iowa, 432; 28 Me. 97; 97 Mass. 213; 49 N. H. 358; 54 N. T. 225. = [3 Bl. Com. 19, 190; 30 Hun, 190. Remittit damna. He releases to damages, damages. Where an award of daipages is excessive, the court may give the plaintiff the alternative of entering a remittitur- as to the excess, and recovering a judgment upon the verdict as reduced, or of taking his chances under a new trial.' Where, after judgment for a sum of money, a remittitur is entered as to a part, the remittitur does not bind the party making it, if the judgment be va- cated or set aside.* 3. Returning a record from the court of review to the lower court for proceedings as specified, as, for execution, or a new trial. REMOTE. See Damages: Dominion. REMOVE. To change or cause to change place or position. 1. To go from one place to another; to change place of residence.^ 3. To deprive of ofiSce bv the lawful act of a superior, — another officer of the legis- lature. Removal for cause. Imports that a rea- son exists, personal to the individual, which the law and sound public opinion recognize as a good cause for his no longer occupying the place.* Implies some dereliction or general neglect of duty, some incapacity to perform the duties of the post, or some delinquency affecting the incumbent's general character and fitness for the office. ^ The power to remove an officer *' for cause " can be exerted only for just cause, after he has had an op- portunity to defend." 3. To carry away something that pertains to land ; as, in a statute against removing any tree, timber, stone, or other article which would pass by a sale of the land.' 4. To transfer a cause from a State court to the circuit court of the United States. The act of March 3, 1876, § 2, provides that any suit of a civil nature pending in any State court, whei-e the matter in dispute exceeds, exclusive of costs, the sum orvalue of fivfe hundred [now two thousand] dollars, and in which there shall be a controversy between citizens of different States, either party m^y remove said suit into the circuit court for the proper district.^ 1 PoUitz^ V. Sehell, 30 F. E. 422 (1887); Phelps v. Cogswell, 70 Cal. S04 (188D). 2 Planters' Bank v. Union Bank, 16 Wall. 497 (1872). s Society v. Piatt, 12 Conn. *187 (1837). 4 People V. Nichols, 19 Hun, 448 (18T9). ' People ex rel. Munday v. Fire Commissioners, 78 N. Y. 449 (1878), Allen, J. ' " Haight V. Love, 39 N. J. L. 14 (1876): Rex v. Rich- ardson, 1 Burr. 517(1768). ' Bates V. State, 31 Ind. 76 (1869). 1 18 St. L. 470; R. S. § 643. See this subject, as to REMOVE 877 EENEW This means that when the controversy is between citizens of one or more States on one side, and citizens of other States on the other side, either party may re- move the suit without regard to their position as plaint- iffs or defendants. For the purpose, the matter in dispute may be ascertained, and, according to the facts, the parties arranged on the opposite sides. If in such arrangement it appears that those on one side, being all citizens of different States from those on the other, desire a removal, the suit may be removed.^ To bar removal, it must appear that the trial in the State court was actually in progress in the orderly course of proceeding when the application was made. The case must be actually on trial by the court, all parties acting in good faith, before the right is gone. A party may not experiment in the State court, and, meeting unexpected difiHculties, stop the proceedings and take his suit to another tribunal. ^ That is, a party must make an election before he goes to trial or hearing on the merits.' The act of 1875 also requires that the petition be filed in the State court at or before the term at which the suit " cjould be first tried " and before the trial. This refers to the term at which, under the legislation of the State and the rules of practice pursuant thereto, the cause is first triable, that is, subject to be tried on the merits.^ An application to remove a case, made pending trial, is made " before trial thereof," although there may have been several mistrials.* The act means that when there is a controversy wholly between citizens of different States, which can be fully determined as between them, one or more on either side actually interested may effect the re- moval. The right depends upon the case disclosed by the pleading, when the petition is filed. It does not matter that a defendant who is a citizen of the State of a plaintiff may be a proper but not an indispen- sable party. The removal of a separable controversy operates to transfer the whole suit — which was not the case under the act of 1868. * Congress has not provided for the removal of a suit in which the controversy is not wholly between citi- zens of different States, and to the final determination of which an indispensable party on the side seeking the removal is a citizen ot the State of one or more of the parties against whom the removal is asked.' changes made by act of March 3, 1887, under Coukt, United States Circuit, p. 281. ■ Eemoval Cases, 100 U. S. 468, 473 (1879), cases, Waite, C. J. Approved, Bank ot MayviUe v. Claypool, lao id. 269-70 (1887). "Jifkms V. Sweetzer, 102 U. S. 179 (1880), Waite, Chief Justice. » McLean v. St. Paul, &c. E. Co., 17 Blatch. 366 (1879), cases, Blatchford, J. » Fisk V. Henarie, 32 F. E. 425-27 (1887) cases. i Barney v. Latham, 103 U. S. 205, 212-16 (1880), Har- lan, J. ; Anderson v. Appleton, 32 F. R. 859 (1887), cases; Weller v. Pace Tobacco Co., ib. 862 (1887), cases. • Blake v. McKim, 103 U. S. 539 (1880), Harlan, J. See Seldon v. Keokuk Packet Co., 9 Biss. 318-19 (1885), cases. The right, as indicated, being statutory, a party must show that his case is within the statute. The petition becomes part of the record, and must state facts which, with such as already appear, entitle the party to a transfer.' By the act of 1875, § 5, if it appears to the circuit court that the suit does not really and substantially involve a controversy within its jurisdiction, the court may remand the cause back, and the order be re- viewed by the Supreme Court " on writ of error or appeal, as the case may be." Previously, the order was not such a final judgment or decree as gave juris- diction for review; but a mandamus issued to compel the circuit court to hear and decide. Congress s'ub- stituted appeal and writ ot error for mandamus. Such remanding order is not a final judgment or decree; it simply fixes the court in which the parties shall liti- gate. The review by the Supreme Court is not limited by the value in dispute." A removal cannot be had upon an affidavit made, under Bev. St., § 6.39, by the attorney, agent, or other person, for a natural person.' See Dispute; Hearing. BEMUNERATION. See Compensa- tion. RENDER.* 1. To give up, yield, return. 2. To pay : as, to render rent, q. v. 3. To make up, furnish : as, to render an account. See Account, 1. 4. To determine upon, declare, announce : as, to render a verdict, or a judgment. Rendering a judgment is announcing or declaring the decision of the court. » When a judgment is formed in the mind of a justice of the peace and then publicly announced by him it is rendered. " Entered " and " rendered " may be synon- ymous.* RENEW. A common meaning is to make again ; as, to renew — a treaty, a cov- enant, an objection or exception. The written declaration " I hereby renew the within note," imports a promise anew to pay the amount ot the note, not merely an admission that the old note is unpaid.' 1 Phoenix Ins. Co. v. Pechner, 95 U. S. 185 (1877), Waite, 0. J. 2 Babbitt v. Clark, 103 U. S. 610-12 (1880), Waite, C. J. See also Fraser v. Jennison, 106 U. S. 194 (1882); Kmg V Cornell, ib. 395 (1882); Myers v. Swann, 107 id. 646 (1882)- Shainwaldr. Lewis, 108 id. 158 (1883); St. Paul, &c R. Co. V. McLean, ib. 212 (1883); Houston, &c. E. Co. 17. Shirley, 111 id. 358 (1884), Mansfield, &c. R. Co. V. Swan, ib. 379 (1884); Edrington v. Jefferson, ib. 770 (1884). a Duff V. Duff, 31 F. E. 772 (1887), Sawyer, J. Blood V. City of Bangor, 66 Me. 156 (1877). » F. rapeler, to call back, recall, revoke. • Hogaboon v. Highgate, 55 Vt. 414 (1883), cases. ' 1 Bl. Com. 90. SR. S. §12. » R. S. § 13. EEPEAL 880 REPLEVIN it; for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnancy betvpeen the pro- visions of the new law, and those of the old ; and even then the old law is repealed by im- plication only pro tanto, to the extent of the repugnancy. ' Statutes which apparently conflict with each other are to be reconciled as far as may be, on any f^ir, hypothesis, and effect given to each if it can be, and especially if necessary to preserve titles to property.'' Where there are two acts on the same subject the rule is to give effect to both, if possible. But if the two are repugnant in any of their provisions, the lat- ter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first; and even where two acts are not in express terms repug- nant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly show- ing that jit was intended as a substitute for the first act, it will operate as a repeal of that act" That, undoubtedly, is a sound exposition of the law. The doctrine asserts no more than that the former statute is impliedly repealed, so far as the provisions of the subsequent statute are repugnant to it, or so far as the latter statute, making new provisions, is plainly intended as a substitute. Where the powers or directions under several acts are such as may well subsist together, an implication of repeal cannot be allowed,* i A special or local statute, providing for a particular case or class of cases, is not repealed by a subsequent statute, general in its terms, provisions and applica- tion, unless the- intent to repeal or alter is manifest, although the terms of the general act are broad enough to include the cases embraced in the special law.^ The same rule applies as between a treaty and an act of Congress; as, for example, between the Chinese Immigration Treaty of May 9, 1881, and the Eestric- tion Act of May 6, 1888,' as amended July 5, 1884. Since the purpose avowed in the act was to faithfully execute the treaty, any interpretation of its provis- ions would be rejected which imputed to Congress an intention to disregard the plighted faith of the gov- ernment; consequently, the court ought, if possible, to adopt that construction which recognized and saved rights secured by the treaty." 1 Wood V. United States, 16 Pet. 862 (1842), Story, J. To the same effect, Adams Express Co. v. Lexington, 88 Ky. 661 (1886); The Gulf, &c. E. Co. u. Eambolt, 07 Tex, 657 (1887), cases. 2 Beals V. Hale, 4 How. 51 (1846), Woodbury, J. ' United States v. TyneUj 11 Wall. 92 (1870), eases. Field, J. < Henderson's Tobacco, 11 Wall. 657(1870), Strong, J. See also King v. Cornell, 106 U. S. 396 (1882). <• McKenna v. Edmundstone, 91 N, Y, 233 (1883), eases. That repeals are not presumed, see Eyan v. Common- wealth, 80 Va. 387 (1886). » Chew Heong v. United States, 112 U. S. B49 (1884), Harlan, J, But clauses of a statute which have been repealed may still be considered in construing the provisions which remain in force.' See Revised, Statute; Eight, 2 (2), Tested. REPLEAD. See Pleading. REPLENISH. To fill again; to fill up. To replenish a stock of goods means to fill up the stock as reduced by sales. The word necessarily im- plies exhaustion, reduction or diminution in quantity.* REPLEVIN.^ 1. When a person dis- trained upon applies to the sheriff, and has the distress returned into his own possession, upon giving security to try the right of tak- ing it in a suit at law, and, if that be deter- mined against him, to return the goods once more to the distrainor < — or, where the goods ai'e of a perishable nature, to return a' pecuniary equivalent.' In modern practice, a remedy for any un- lawful detention of personalty, the same be- ing delivered to the claimant upon security given either to make out the injustice of the detention or to return the property.* Replevy. To obtain ppssession of person- alty by an action of replevin. Repleviatole; replevisable. Obtain- able by replevin. Opposed, irrepleviable; irreplevisable. Replevisor. The plaintiff in replevin. There must be a tortious taking or detention of the property; not a mere breach of a contract. ' Eeplevin lies wherever trespass lies for taking the plaintili's goods ^ with this difference: trespass will lie upon possession alone, while replevin' requires property in the plaintiff. All that is necessary to sup- port the action is property in the plaintiff, either gen- eral or special, and a wrongful taking from his posses- sion, actual or constructive. The idea_ suggested by Blackst6ne that replevin lies only for goods taken by *' distress " has no foundation. The complaint is, that the defendant took and unjustly detains the plaintiff's goods, not that he took them for any .particular pui^ pose."* ' Exp. Crow Dog, 109 U. S. 561 (1883), eases. See also, generally. State v. StoU, 17 Wall. 431 (1873), cases; Kingi;. Cornell, 106 U. S. 396 (1882); Bed Eock V. Henry, ib. 601 (1882); Cook County Nat. Bank v. United States, 107 id. 451 (1882); Bowlus v. Brier, 87 Ind. 396 (1882); Hogabooh v. Highgate, 55 Vt. 414 (1883). 2 Bynum v. Miller, 89 N, C. 395 (1883), Ashe, J. "F, re, again, plevir, to be surety, — Skeat. L. L. replegiare, to take back the pledge, — 3 Bl. Com. 13. < [3B1. Com. 13. » [3 Bl, Com. 9, 146. ' See Taylor v. The Royal Saxon, 1 Wall. Jr. 326-29 (1859). ' Mead v. Johnson, 54 Conn, 319 (1886). ' Williamson v. Ringgold, 4 Cranch, C. C. 41 (1830), Cranch, C. J. REPLICATION 881 REPORT The action is a special one, entirely regulated by statute, its whole object being to place the plaintiff in possession of personal property, -which he claims to be his either by a general or special title, with a right of immediate possession. The requirements of the stat- ute must,- therefore, be strictly complied with before the plaintiff can avail himself of its aid.^ The better doctrine is that before an action can be brought, a demand of possession of the property must be made when necessary to terminate the defendant's right of possession or to confer that right on the plaintiff; but when both parties claim the ownership and the right of possession as an incident, no demand is necessary.'' The security which the plaintiff furnishes, as a sub- stitute for the property, is called a replevin bond, claim-preperty bond, property bond, or, simply, the claimant's bond. No one account of the course of proceedings, every- -where applicable, can be given. The term is unknown to equity and admiralty jurisprudence, and under codes of reformed procedure the action has been re- placed by " claim and delivery,'' a provisional remedy ancillary to a civil action to try the title to goods; ' the word " replevin " being used as if interchangeable -with such action.^ See Avowry; Capeee, Cepit; Detaimek; Distress; Eloign; Retornum. 2. A writ formerly used for liberating a man from prison or private custody, upon security given that he -n'ould be forthcoming to answer the charges. Otherwise known as the writ de homine replegiando, for replevying a man.* See Habere, Habeas corpus. REPLICATION. Plaintiff's answer to defendant's plea or answer.^ Reply. To respond to a plea or an an- swer. At law, the replication denies the allegation in the plea, alleges new matter in contradiction of it, or con- fesses and avoids it.^ In equity, it puts In issue all matters well alleged in the answer. If none is filed, the ans-n-er will be taken as true, and no evidence be received to contradict anything so alleged.' A general replication denies every allegation in the answer not responsive to the bill.** Replication de injuria. Replication of the wrong : denial of a matter of excuse in an action of tort. ' Spencer v. Bidwell, 49 Com. 63 (1881), Granger, J. See also 81* Pa. 438. "Lamping v. Keenan, 9 Col. 393 (1886), cases. Beck, Chief Justice. ' See as to value Washington Ice Co. v. Webster, 125 U. S. 426-47 (1888), cases. < [3 Bl. Com. 129; 32 Me. 560; 34 id. 136. fi [3 Bl. Com. 309. » 3 Bl. Com. 309-10, 448. ' Brown v. Pierce, 7 Wall. 212 (1868), cases. « Hume V. Scruggs, 94 U. S. 22 (1876). (56) Puts in issue the material averments of the plea; throws on the defendant the burden of proving as much of the plea as constitutes a defense to the action. Numerous decisions hold that it is good only where j the plea sets up matter of excuse, and not matter of justification.' See Traverse. See Answer, 3; Departure, 3. REPORT. 1. (1) An official statement of the facts, or of the facts, proceedings, and law, in a case : as, the report of — an auditor, a commissioner, a master, a receiver, or viewers, qq. v. (2) A published volume of judicial decis- ions ; a volume of reported cases ; a judicial report. 0£Q.cial report. A report prepared and published under the authority of law, and by direction of the judge or judges of a court. Unofllcial report. A report published by an uncommissioned person. In most of the States, statutes have been passed providing for the selection of the cases, the size of volume, the printing by contract, the sale, etc., of the authorized reports. Reports may be of cases upon every branch of jurisprudence, or illustrative of the law of a particular subject. The expression State reports is contrasted with Federal or United States reports. Particular series take their names from the name of the court or courts ; as. Supreme Court reports. Court of Appeals repeats. Circuit and District Court reports. They are sometimes spoken of as the higher and the lower reports; and, from the grade of the court, as law reports and equity reports, the former, too, being either civil or criminal reports, or of the nature of both species. -Side reports is occasionally used in contradistinction to the regular or official reports of a State. While foreign reports are designated by the name of the country in which they originate, or from which they come, as, English, Irish, Scotch, or Canadian, the reports of all countries, and of each of our States,— of any separate or special jurisdiction, are very frequently cited by the name of the person under whose special supervision they are, or have been, collated, indexed, and otherwise prepared. Again, some volumes or series of volumes have also been named after the name of the 1 Crogate's Case, 8 Coke. 138 (1609): 2Sm. L. C, H. & W., 247; Taylor v. Cole, 1 id. 262, 267-73, cases", Ers- kine I). Hohnbach, 14 Wall. 618-30 (1871), cases. EEPOSE 883 EEPEESENTATION judge whose opinions they preserve, chiefly or ex;clusively. A reported case comprises a summary of the points decided, called the syllabus or head-note; a statement of the essential facts in the case, and of the argu- ments of counsel ; and the opinion of the court. Nothing can be so various, as respects grade of merit, as the English reports prior to 1775. Anterior to 1800, there were but two or three American reports.^ In the absence of express legislation to the con- trary, the reporter of court decisions is entitled to a copyright on his volumes for whatever is the work of his Own mind and hand.^ The decisions of the court are public property, and may be published freely by any person whatever,' See Mantjsokipt. The decisions of the courts are the authorized expositions of the laws — unwritten and statutory. Every citizen, being bound to know the law, should have free access to the opinions ; and it is against pub- lic policy to withhold the earliest knowledge of them, as it would be of the statutes. The opinions, after de- livery, belong to the public* The judge who writes an opinion is not an " author " or " proprietor " within Eev. St. § 4952, so that the State can become his assignee and take out a copy- right.' - Reporter. (1) A person who prepares de- cisions for publication. State reporter. An official who edits and publishes the decisions of the highest court of a State. (2) A periodical devoted to the publication of reports, perhaps with annotations from other cases. (3) A person who stenographs a witness's testimony or the charge of a judge. See Stenographee. Unreported.. Said of a decision either not printed in any law publication or else not officially so published. See AuTHOBiTT, 3; Case, 2; Decision; Precedent, 8. 3. As to reporting news, see Newspaper. REPOSE. See Limitation, 3. REPRESENTATION. 1. A statement regarding a fact. False representation. Not necessarily, ' See " The Reporters," &c., 1 South. Law E. 86, 2-23, 497 (1875); 3 id. 268 (1877); 5 id. 53 (1879); 25 Alb. Law J. 261 (1380); History of the Law Reports, 1 Law Quar. Eev. 136^9, 287-97 (1885). = Myers v. Callaghan, 10 Biss. 139, 150 (1881), cases. s Banks v. West Publishing Co., 87 F. E. 56 (1886), cases, Brewer, J.; Banks v. Manchester, 83 id. 143 (1885); 24 Am. Law Eev. 524-27 (1885), cases; 3 Kan. Law J. 242 (1886), cases. « Nashi). Lathrop, 142 Mass. 35-39 (1886), cases; State i V. Gould, 56 Conn. — (1888). ' Bates V. Manchester, 188 U. S. 244 (1888) ; ib. 617, although often, a statement of fact known to be untrue. Misrepresentation. A statement of fact not true in some particular, and misleading another to his injury. In alleging a tort in the sale of an article, it is neces- sary to use "' falsely represented," or an equivalent phrase implying fraud.* (1) Fraud consists in falsely representing a thing as a fact, or in the deceitful conceal- ment of an existing fact.^ Where a party, by words or deeds, intentionally misrepresents a material fact, or produces a false im- pression, in order to mislead or to obtain an undue advantage of another, he is chargeable with positive fraud. The misrepresentation must be (1) of some- thing material, constituting the inducement or motive to the act or omission of the other, and by which he is actually misled to his injury; and (2) as to something as to which one party places a known confidence in the other — not of a matter of opinion, equally open to both for examination and inquiry! and where neither party is presumed to trust to the other, but to rely upon his own judgment. ^ The misrepresentation which will vitiate a contract of sale must relate not only to a material matter con- stituting an inducement to the contract, but also to a matter respecting which the complaining party did not possess at hand the Ineans of knowledge; and must be a misrepresentation on which he' relied, and by which he was actually misled to his injury.* In some cases the falsity of the representation, not the bong, fides, is the determining inquiry.* See Knowledge, 1. ' (2) a. In the law of fire insurance, the statement of something as a fact which is untrue, and which the assured, knowing it to be not true, states with an intent to de- ceive the underwriter, or which he, without knowing it to be true, states positively as true, and which has a tendency to mislead, the fact being material to the risk.s As a representation to obtain insurance must al- ways influence the judgment of the underwriter in re- gard to the risk, it must be substantially correct. It ' Cooper V. Landon, 102 Mass. 60 (1869). = [Grove v. Hodges, 55 Pa. 519 (1867). ' Smith V. Eichards, 13 Pet. 36-37 (1839), cases, Bar- bour, J.; Mason Lumber Co. D.,Buchtel, 101 U. S. 637 (1879); Buckner v. Street, 15 P. E. 368 (1883). < Slaughter v. Gerson, 13 Wall. 383-85 (1871), cases. Meld, J. See generally Welz v. Ehodius, 87 Ind. 12 (1882); Potts V. CSiapin, 133 Mass. 282-83 (1882); Clark ii. Edgar, 13 Mo. Ap. 351 (1882); Cooper v. Schlesinger, 111 U. S. 158 (1884). » Lynch v. Mercantile Trust Co., 18 F. E. 486 (1883), cases; Redgave o. Hurd, L. E., 20 C. D. 12 (1881); Be London, &c. Fire Ins. Co., 24 id. 153 (1883). " [Daniels v. Hudson Eiver Fire Ins. Co., 12 Cush. 425 (1853), Shaw, C. J. REPRESENTATION 883 REPRESENTATIVE differs from an express "warranty," as that always constitutes a part of the policy, and must he strictly and literally performed, i It is the duty of the assured to communicate every material fact; he cannot ui'ge as an excusfe for his omission that a fact was known to the miderwriter, unless the latter's knowledge was as full and particu- lar as his own. 3 Where a policy contains contradictory provisions, or leaves it doubtfvd whether the exact truth should be a condition precedent, that the statements consti- tute a warranty is not to be favored. The policy will be construed against the insured, who prepares it.^ An " affirmative " representation is an affiiTnation of a fact existing when the contract begins ; a " prom- issory" representation, a promise to be performed after the contract has come into existence.* A representation on information derived from others, reported truly and as resting on information, does not avoid the policy, if the information proves incorrect.* b. In the law of marine insurance, an ex- plicit aflirmation or denial of a fact, or such an allegation as irresistibly leads the mind to the same conclusion.^ c. In the law of life insurance, all state- ments must be true when the materiality is removed from the consideration of a court or jury by an agreement that the statements are absolutely true, and that, if untrue in any respect, the policy shall be void.' Where there is no express condition that the state- ments and declarations made in the application are in all respects true, as far as affects the interests of the insurer, every statement and declaration must be true. . There is no place for the argument that a false statement was not material to the risk, or that it was a positive advantage to the insurer to be deceived by it. The statement need not come up to the degree of a warranty, nor be a representation even, if that conveys an idea of an affirmation having any technical character; as, where the insured, being "married;" stated that he was " single." At the same time, there are many cases to the effect that where false answers » Hazard v. New England Mar. Ins. Co., 8 Pet. *580 (1834), M'Lean, .1. See also 49 Me. 200; 21 Conn. 19; 34 N. J. L. 244; 30 Pa. 315; 48 id. 367. ' Sun Mutual Ins. Co. v. Ocean Ins. Co., 107 U. S. 485, 510 (1883), Matthews, J. 'First Nat. Bank of Kansas City v. Hartford Fire Ins. Co., 95 U. S. 678 (1877), Harlan, J. Approved, In- surance Co. V. Gridley, 100 id. 617 (1879). * Kimball v. JEtna Fire Ins. Co., 9 Allen, 543 (1866), Gray, J. "lidmarsh v. Washington Fire, &c. Ina. Co., 4 Mas. 443 (1827), Story, J. ' [Livingston v. Maryland Mar. Ins. Co., 7 Cranch, 641 (1813), Story, J. ' ^tna Life Ins. Co. v. France, 91 U. S. 512 (1875), Hunt, J. ; Knickerbocker Life Ins. Co. v. Trefz, 104 id. 232 (1881). are-made to inquiries which do not r^ate to the risk, the policy is not necessarily avoided unless they influ- ence the mind of the insurer, and that whether they are material is for the determination of a jury.' A false answer, in an application for a policy on a life, as to any fact material to the inquiry, knowingly and willfully made, with intent to deceive the insurer, is fraudulent. If it accomplishes its result, it is a fraud effected; if it fails, it is a fraud attempted.'' See Conceal, 5; Condition; Deceit; Estoppel; Fraud; Insurance; Pretense, False; Valdb; War- ranty, 3. 3. Standing in the place, acting the part, exercising the right, or taking the share, of another person. 3 Representative. (1) One who occupies the position another held, succeeding to his rights and liabilities; as, an heir to his an- cestor, a devisee to the devisor, an executor to his ■testator, an administrator to his intes- tate, an assignee to his assignor, successors in a corporation or partnership to their prede- cessors, a grantee to his grantor, a lessee to his lessor. In a statute, " representative " will be interpreted with reference to the subject-matter.* Legal representative. In the broadest sense, one who lawfully represents another in any matter whatever ;5 ordinarily, an executor or administrator, but this meaning, in a will, may be controlled by the context ; ^ while, strictly, an executor or administrator, is often used in other senses in statutes, wills, deeds, and contracts.' Thus, it may refer to the heir, next of kin, or de- scendants.* In a will, refers to the artificial represen- tation granted by the probate court, or those who take under the statute of distributions. The words by themselves denote the former; But the context may ' Jeffries v. Economical Life Ins. Co., 22 Wall. 53, 66 (1874), cases. Hunt, J. 2 Claflin V. Commonwealth Life Ins. Co., 110 U. S. 95 (1884), Mathews, J.; Connecticut Life Ins. Co. v. Eog- ers, 119 m. 482-83 (1887), cases; Alabama Gold Life Ins. Co. V. Johnson, 80 Ala. 470-75 (1886), cases; Bliss, Life Ins. §§ 83 et seq. ' Abbott's Law Diet. * Duncan i-. Walker, 2 Dallas, 205 (1793); MuUanphy V. Simpson, 4 Mo. 333 (1836); Wear v. Bryant, 5 id. 164 (1839); Loos v. Hancock Mut. Life Ins. Co., 41 id. 541 (1867). » Wear v. Bryant, 5 Mo. 164 (1838). • Cox V. Curwen, 118 Mass. 200 (1875); Lodge v. Weld, 139 id. 504 (1885). ' Bowman v. Long, 89 HI. 21-22 (1878); Wamecke v. Lembca, 71 id. 92-93 (l873); Johnson v. Van Epps, 110 id. 569-60(1884); Halsey v. Peterson, 37 N. J. E. 448 (l.S,-'.3); 34 La. An. 1099. ' Wamecke t: Lembca, supra. REPRESENTATIVE REPUBLIC- show that the testator meant his next of kin within tlie statute.' In a land-patent certificate, may embrace the rep- resentative of the original gi-antee, whether made such hy grant or by operation of law.'' In a contract for tile use of an invention, may include the successors to a partnership or corporation ; ^ in a license for the use of a patent, may include the assigns of the license ; * in a policy of life insurance, may contemplate the as- signs of the assui'ed ; ^ and in bankruptcy, will embrace an assignee.^ In fine, the designation is broad enough to include all persons who, with respect to another's property, stand in his place, and represent his interests, whether transferred by his act or by operation of daw.^ Personal representative. An executor or administrator: he represents the person of the deceased as to personal estate. Real representative. Tlie heir at law: he represents the real estate of his deceased an- cestor. A widow is not a " personal representative; " ' nor is an agent. ^ Representatives of a deceased person are "real " or "personal;" the former being his heirs at law, and the latter, ordinarily, his executors or administrators. The term " representative " includes both classes, i When the'personal representatives alone are intended in a statute they are so named. . . As to personalty, executors and administrators, although the usual, are not the sole, representatives of a deceased party. The next of kin, when they succeed to the personalty, whether through the intervention of the executors or administrators or in any other way, become the repre- sentatives quoad the effects distributed. In wills and settlements, " representatives " and " legal represent- atives " are frequently held to mean heirs and next of kin, and not executors or administrators.* The heir at law succeeds to all the rights and re- sponsibilities of the deceased ancestor in respect-to realtj', and is, in all respects, pro hac vice, his repre- sentative. The exeoutor or administrator, except in special cases, represents the deceased only as to the personal estate, and, hence, is denominated the "per- sonal " representative.'** See Privy, 2. 'Jennings v. Gallimore, 3 Ves. Jr. "148 (1796), cases; ib. *491; Famam v. Tarnam, 53 Conn. 291 (1885). 2 Hogan V. Page, 2 Wall. 605 (1864); Capenter v. Ran- nels, 19 id. 145 (1873). s Hammond v. Mason, &o. Organ Co., 92 U. S. 724 (1875). < Hamilton v. Kingsbury, 15 Blatch. 69 (1878). • New Tork Mut. Life Ins. Co. u Armstrong, 117 U. S. B97 (1886), Field, J. ; New Tork Lite Ins. Co. v. Flack, 3 Md. 352 (1852). » Wright V. First Nat. Bank of Greensburgh, 8 Biss. 243, 246 (1878). ' Hagen v. Kean, 3 Dill. 125 (1875). 8 Jones V. Tainter, IB Minn. 517 (1870). » Lee V. Dill, 39 Barb. 520-21 (1863), Allen, J. i»Card V. Card, 39 N. T. 323 (1868). See also 23 id. 467; 18 id. 349; 71 id. 91; 89 id. 19; 8 Minn. 97. (2) A member of the popular branch of a State or of the national legislature; a mem- ber of the house of representatives. See Assembly; Congress; Parllament. REPRIEVE.! Withdrawing a sentence for an interval of time, whereby the execu- tion is suspended. 2 It is granted ex arbitrio judicis (in the discretion of the judge), before or after judgment, for any reason sufficient to the court. It is ex necessitate legis (from legal necessity), where the offender becomes insane before or after the award of execution: he may have a reason, which he cannot explain, for non-execution. Where a woman, capitally convicted, pleads preg- nancy, execution will be respited till she be delivered.^ A reprieve operates only in capital cases, and is granted either by the favor of his majesty himself, or the judge before whom the prisoner was tried, in his behalf, or from the regular operation of law, in cir- cumstances which render an immediate execution in- consistent with humanity or justice.* See Pardon; Respite. REFRISAIj.9 Recaption: a species of remedy by the act of the party injured.* See Captive; Maequb and Reprisal. Reprises. Deduction on account of j^ay- ments or expenses. The yearly value of an estate ultra reprises, be- yond all subtractions, is spoken of. In Pennsylvania, realty will not be sold by the sheriff when the rents will pa.v the judgment, with interest and costs, in seven years, beyond reprises,' — unless otherwise agreed to by the debtor. REPUBLIC. The commonwealth; the state. See Respublica. In a republic, all the citizens, as such, are equal, and no one can rightfully exercise au- thority over another but by virtue of power constitutionally given by the whole com- munity, which authority, when exercised, is in effect the act of the community. Sover- eignty resides in the people in their political capacity, s Bepublican form of government. "The United States shall guarantee to every State in this Union a Republican Form of Government." * ' F. re-prendre, to take back,— 4 Bl. Com. 394. The same as reprove, but nearer Mid. Eng. repreven, to re- ject, put aside, disallow, — Skeat. 2 4 Bl. Com. 394 ' 4 Bl. Com. 394-96. 4 Sterling v. Drake, 29 Ohio St. 461 (1876): 3 Chitty, Cr. L. 757. " F. represaille, taking or seizing on; L. re-prehen- dere, to seize again. F. reprise, to take back. • [3 Bl. Com. 4. ' Act 16 June, 1836, § 44: P. L. 769; 1 Purd. Dig. 755. ' [Penhallow v. Doane, 3 Dallas, 93 (1795), Iredell, J. 1 Constitution, Art. IV, sec. 4. REPUBLICATION 885 REQUEST No particular government is designated as " re- publican," neither is the exact form to be guaran- teed in any manner especially designated. Here, as in other parts of the Constitution, we are compelled to resort elsewhere to ascertain what was intended. The guaranty necessarily implies a duty on the part of the States themselves to .provide such a government. All the States had governments when the Constitution was adopted. In all, the people participated to some extent, through representatives elected in the manner especially provided. These governments the Constitu- tion did not change. They were accepted precisely as they were, and it is therefore to be presumed that they were such as it was the duty of the States to pro- vide. Thus we have unmistakable evidence of what was "republican" in form, within the meaning of that term as employed in the Constitution. ^ Authority to provide for the restoration of State governments, when subverted and overthrown, is de- rived from this obligation on the United States. Dis- cretion in the choice of means is necessarily allowed. It is essential only t^at the means be " necessary and proper " for carrying into execution the power con- ferred, through the restoration of the State to its con- stitutional relations, under a republican foi^ of government, and that no act be done, no authority exerted, which is either prohibited or unsanctioned by the Constitution. 2 It rests with Congress to decide what government is the establislied one in a State, before it can deter- mine whether it is republican or not.^ See Government; State, 3; War. REPUBLICATION. See Publication. BEPUDIATIOK". See Impair, Obliga- tion, etc. REPUGNANT .4 Inconsistent: irrecon- cilably opposed to, contrary to, or contradict- ory of each other. Said of clauses in contracts, wills, statutes ; of conditions, q. v. ; of statements in a plead- ing militating with statements in a prior pleading. '^''ords and phrases are often found in different pro- visions of the same statute, which, if taken literally, without any qualification, would be inconsistent, and sometimes repugnant, when, by a reasonable inter- pretation, as, by qualifying both, or by restricting one and giving the other a liberal construction, all become harmonious, and the difficulty disappears. In such a case the rule is, that the repugnancy should, if prac- ticable, be avoided, and that, if the natural import of the words contained in the respective provisions tends to establish such a result, the case is one where resort ' Minor v. Happersett, 31 Wall. 175-76 (1874), Waite, Chief Justice. ' Texas v. White, 7 Wall. 738-89 (1868), Chase, C. J. s Luther u Borden, 7 How. 42 (1849), Taney, C. J. See also 2 Story, Const. §§ 1813-25; North Am. Eev., April, 1844, p. 371; Intemat. Eev., Jan., 1875; Federal- ist, No. 43, 44. * L. re-pugnare, to flght against, oppose. may be had to construction for the pui-pose of recon- ciling the inconsistency, unless it appears that the dif- ficulty cannot be overcome without doing violence to the language of the law-maker. ' See Repeal. REPURCHASE. See Redeem. REPUTATION. General opinion in the community. The qualities which a person is supposed to possess. 2 What the community thinks, believes, or says : not the declarations of a person as to a particular fact not of a public nature, s Evidence of reputation is receivable to prove char- acter, heirship, historical facts, and prescription. An existing reputation is a fact to which any one may testify who knows it; he knows it because he hears it, and what he hears constitutes reputation.^ Unwillingness to believe a man under oath must be based upon two facts: that the witness knows the rep- utation for veracity among the man's neighbors, aud that that reputation is bad ^ On the trial of an indictment for murder, the dan- gerous " character " of the deceased cannot be proved by proof of his " reputation," but notice of that char- acter to the prisoner may be shown by proof of the reputation, in connection with proof that he had the means of knowing that reputation. 5 See further Character; Evidence; Hearsay; Pedi- gree; Slander. Reputed. Commonly reported ; generally believed : as, a reputed — marriage, parent, owner. See BasT-4.edy ; Owner ; Putative. Beputation is an incident from which, being joined to cohabitation, the married relation may be inferred. It is essential, however, that the reputation of mar- riage be general. The conduct of the * parties must be such as to make almost every one infer that they were maixied. It is the reputation arising from hold- ing themselves out to the world as occupying that re- lation, to which the law refers. It is not enough that an opinion may exist that they ought to be married, from their intimacy ; it is the belief that they are mar- ried which constitutes the reputation of it. Their acts should be inconsistent with any other inference than that of marriage to justify the repute of it, and tliis repute should be credited by tlieir relatives, neighbors, friends, and acquaintances.' See further Cohabita- tion. REQUEST; REQUIRE. Usage has given these words (of the same origin) some- what different meanings, but these meanings ' New Lamp Chimney Co. v. Ansonia Brass & Cop- per Co., 91 U. S. 6(!3 (1875), Clifford, J. ' Andre u State, 5 Iowa, 394 (1857): Webster's Diet. » [Hunnicutt v. Peyton, 102 U. S. 363 (1880), Strong, J. » Bathrick v. Detroit Post & Tribune Co., 60 Mich. 643 (1883), Cooley, J. » Spies et ah v. People, 12S 111. 203 (1887). » Marts V. State, 20 Ohio St. 108 (1875). ' Brinckle v. Brinckle, 34 Leg. Int. 428 (1877), Biddle, J.,— C. P., Philadelphia. EES RES are really more distinctions in intensity than in eflf eot or substance. ' ' Require " is nearer a command than " request." Neither word may import more than to give notice.! Com- pare Mat; Want. In a will, "request" may impose a duty.' See Preoatort. Generally, when a debt is payable immediately, no request to pay need be made. The necessity for a re- quest may be implied ; as, where one retains an article to be paid for at delivery, the buyer must show a request, or an impossibility in the seller to comply, after request made. A request to marry must also be made before action is begun for a breach of a promise to marry. Generally, it is advisable that re- quests be made in writing. A special request, as pro- vided for in a contract, must be averred in a declara- tion. See Deuand, 8; Notice, 2; Paitment; Quit, 2. RecLuisition. A formal demand or re- f quest. Usually, in writing: as, the request made by the governor of one State on the governor of another State for the extradition of a fugitive from justice. See Extradition. KiBS. L. A thing, or things; whatever may be possessed, seized or attached ; prop- erty ; matter, subject-matter. 1. In the Roman law, property was divided in sev- eral ways; thus into — (1) Ees divini juris, for pious uses, including (a) res sacrce, for the service of the gods, and (b) resreligioscB, for the burial of the dead. (3) Ees humani juris, for secular uses, (a) res ■privatce, belonging to individuals and subject to trafiBc, and (b) res republicos, belonging to the people : res fisci, of the treasury, and res sanctcB, of inviolable character, as city walls and gates; (c) res commune omnium, the common property of all — the air, running water, the sea, etc. Another division was: res corporales, ob- jects apprehensible by the senses; and res incorpo- rales, objects of thought only. A third division was: res mobiles, movables; and res immobiles, immov- ables.' 2. In admiralty, all parties who have an interest in the subject of the suit — the res — may appear, and each independently propound £iis interest. The seiz- ure of the res, and the publication of the monition to appear, is equivalent to the particular service of process in the courts of law and equity. But the res is in no other sense than this the representative of the whole world. To give jurisdiction, there must be a valid seizure and actual control by the marshal.^ Jurisdiction of the res is obtained by a seizure under process, whereby it is held to abide such order as the court may make concerning it.'^ 1 Prentice v. Whitney, 15 N. T. Supr. 301 (1876), Boardman, J.; 68 ff. H. 66; 2 Allen, 86. 2 Hutton V. Hutton, « N. J. E. 271 (1886); Colton v. Colton, 127 U. S. 319 (1888). ' Hadley, Rom. Law, Lect. VII. • Taylor v. Carryl, 30 How. 899 (1857), Campbell, J. » Cooper V. Reynolds, 10 Wall. 317 (1870), MUler, J. The res is that which is seized and brought within the jurisdiction of the court. In admiralty and reve- nue cases the thing condemned is considered the of- fender or the debtor, is seized in its entirety; and a sale passes the entire title. Not so in many other pro- ceedings in rem.' See Service, 6, Substituted. Re, or in re. In the matter of. Desig- nates a proceeding to which there is but one party ; as, in matters in a court of probate, and in insolvency or bankruptcy courts. In rem. Against a thing. Used of a proceeding concerning a particular piece of property. Opposed, in personam, against the owner of property. Proceedings in rem are instituted to obtain decrees or judgments against property for- feited in admiralty or in the exchequer, and to enforce liens in admiralty. Also included are suits to obtain a sentence, judgment, or decree upon the personal status or relation of a, person, such as marriage, divorce, bas- tardy, settlement, and the lilie.^ In rem is a technical term, taljen from the Roman law, where it distinguished an action against the thing from one against the per- son. An action in personam was directed against a specific person ; an action in rem against a specifid thing, and so against whom it might concern — "all the world." A pro- ceeding to determine the status of the par- ticular thing itself, and which is'confined to the subject-matter in specie, is in rem, the judgment also determining the statfe or con- dition, and, ipso facto, rendering the thing what the judgment declares it to be, while a proceeding which seelis the recovery of a personal judgment is in personam.^ In the former, process may be served on the thing itself, and by such service, and by making proclama- tion, the court is authorized to decide upon it without other notice to persons, all the world being parties; while in the latter, to give the court power to adjudge, there must be service upon those whose rights are sought to be affected. As regards rights, the terms signify the antithesis of " available against a particu- lar person." and "available against the world at large." Thus "jura in personam, are rights primarily available against specific persons, jura in rem, rights available against the world at large. " Beyond this, a judgment or decree is in rem, or in the nature of a judgment in rem, when it binds third persons, such as the sentence of a court of admiralty on a question of 1 Day V. Micou, 18 Wall. 163 (1873), Strong. J. ; City of Norwich, 118 TT. S. 603 (1886); 93 id. 168; 106 id. .307. = 1 Greeni: Ev. §§ 535, 541, cases; 3 Sm. L. C. 662. s Cross V. Armstrong, 44 Ohio St. 623-24(1887), Spear, Judge. RES 887 RES prize, or a decree of other courts upon the personal status or relation of the party, such as a dissolution ot a marriage contract, bastardy, etc., a decree admit- tipg a will to probate and record, granting adminis- tration, etc., or a decree ot a court o£ a foreign coun- try as to the status of a person domiciled there.' In admiralty, process m rem is founded on a right in the thing, and the object of the process is to obtain the thing itself, or a satisfaction out of it, for some claim resting on a real or quasi proprietary right in it. Consequently, the court, through its process, ar- rests the thing, and holds possession of it by its of- ficers, as a means of affording such satisfaction, and in contemplation ot law it is the possession of the court itself. Service of process is had upon the prop- erty.' Marine torts are in the nature of trespasses upon the person or upon personal property, and they may be prosecuted iyi personam in any district where the offending party resides, or in rem wherever the of- fending thing is found within the iurisdiction of the com-t issuing the process.* Actions in rem are prosecuted to enforce a right to things arrested, to perfect a maritime privilege or lien attached to a vessel or cargo or both, and in which the thing to be made responsible is proceeded against as the real party. Actions in personam are those in which an Individual is charged personally in respect to some matter of admiralty or maritime jurisdiction. The process, proceedings, and decrees are dilTerent.''' A proceeding to enforce a, debt or demand by at- tachment of a defendant's property partakes of the character of a suit both in rem and in personarn. If there is personal service of process on the defendant or personal appearance by him, the case is mainly a personal action; but if, in the absence of either, his property is attached and sold, it becomes essentially a proceeding in rem, and is governed by the principles applicable to that class of cases. In this class the court cannot proceed without a levy on the property, and the judgment binds the property only. There- fore, seizure under proper process is the foundation of the jurisdiction. A valid writ and levy, judgment, order of sale, sale, and deed, conclude all persons.* Decrees of probate or orphans' courts directing sales for ihe payment of debts or for distribution are proceedings in rem. Sales under attachments, or pro- ceedings to foreclose a mortgage, are at least quasi proceedings in rem. In none of these cases is any- thing more sold than the estate of the decedent, or of the debtor, or of the mortgagor, in the thing. The interests of others are not cut oflE or affected." The probate of a will is in the nature of a proceed- ing in rem.'^ In a strict sense, a proceedmg in rem is one taken ' Cross V. Armstrong, ante. ' The Propeller Commerce, 1 Black, 580 (1861), cases. Clifford, J.; Averill v. Smith, 17WaU. 95 (1872;; 9 id. 456-57; 93 U. S. 103. 1 The Sabine, 101 U. S. 388 (1879), Clifford, J. ' Cooper V. Reynolds, 10 Wall. 316-21 (1870), Miller, J. Day V. Micou, 18 Wall. 162 (1873), Strong, J. ; 2 How. 338; 19 id. 89. ' Gaines v. Fueutes, 92 U. S. 21 (1873). directly against property, and has for its object the disposition of the property; but, in a larger and more general sense, the terms are applied to actions be- tween parties where the direct object is to reach and dispose of property owned by them, or of some inter- est therein. Such are cases commenced by attach- ment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce alien.' The thing, in admiralty, is to be actually or con- structively within reach of the court. An accidental, fraudulent, or improper removal from the custody of the marshal, as, a delivery upon security, does not de- stroy jurisdiction.' Actions in rem, strictly considered, are proceedings against property only, treated as responsible for the claims asserted by the libelants or plaintiffs. The property itself is in such actions with the defendant, and, except in cases arising during war for its hostile character, its forfeiture or sale is sought for the wrong, in the commission of which it has been the in- strument, or for debts or obligations for which by operation of law it is liable. The court acquires jurisdiction over the property in such cases by its seizure, and of the subsequent proceedings by public citation to the world, of which the owner is at liberty to avail himself by appearing as a claimant in the case. There is, however, a large class of cases which are not strictly actions in rem, but are frequently spoken of as actions quasi in rem, because, though brought against persons, they only seek to subject certain property of those pereons to the discharge of the claims asserted. Such are actions in which prop- erty of non-residents is attached and held for the dis- charge of debts due by them to citizens of the State, and actions for the enforcement of mortgages, and other liens. Indeed, all proceedings having for their sole object the sale or, other disposition of the prop- erty of the defendant to satisfy the demands of the plaintiff, are in a general way thus designated. But they differ, among other things, from actions which are strictly in rem,, in that the interest of the defend- ant is alone sought to be affected, that citation to him is required, and that judgment therein is only con- clusive between the parties.' The proceedings may or may not be of ubiquitous obligation.* See Lien; Salvage; Ubiquity, 2. Jus ad rem ; jus in re. See Jus. Res adjudicata. A matter judicially de- cided. See further Adjudicatus. Res gesta. A thing done. Ees gestae. The things done ; the facts of a transaction ; circumstances evidentiary of a litigated fact. The circumstances, facts, and declarations which grow out of the main fact, are con- iPennoyer v. Neff, 95 U. S. 734 (1877), Field, J.; Windsor v. McVeigh, 93 id. 279 (1876); Brigham v: Fay- erweather, 140 Mass. 413-14 (1880), cases. " The Eio Grande, 23 Wall. 464-65 (1874), cases. ' Freeman v. Alderson, 119 U. S. 187 (1886), Field, J. < As affected by death, see 21 Cent. Law J. 65-67 (1885), cases. RES RES tetnporaneous with it, and serve to illustrate its character. 1 All declarations made at the same time that the main fact under consideration takes place, and so con- nected with it as to illustrate its character, are admis- sible'as orig^inal evidence.? The area of events covered by the term depends upon the circumstances of each case. Included are those circumstances which are the undesigned incidents of a particular lit- igated act, and which are admissible when illustrative of" it. These incidents may be separated from the act by a lapse of time more or less appreciable.' / It is not possible to lay down a rule as to what is a part of the res gestoR which will be decisive of the question in every case in which it may be presented by the ever- varying phases of human affairs. Included in it are facts which so illustrate and char- acterize the principal fact as to constitute the whole one transaction, and render the latter necessary to exhibit the former in its true light and give it its proper effect.^ In the complexity of human affairs, what is done and what is said are often so related that neither can be detached without leaving the residue fragmentary and distorted. . . Where sickness is the principal fact, the res gestce are the declarations tending to show the reality of its existence, its extent ai)d char- acter. . . Rightfully guarded in its application, there is no principle in the law of evidence more saf fe in its results. The tendency is to extend the scope of the doctrine.* Where, for example, the fact in question is a loan, the circumstances of the negotiation constitute the res gestce. A draft would be one circumstance; the con- versation of the parties another. Evidence why the loan was made in particular funds or sec urities instead of in cash, is competent where it will tend to elucidate the nature of the transaction, that being the question at issue. . . The manner and form in which an act is done, being one of several acts concurring to the purpose or transaction, indicate, by shades of circum- stances often dif&cult to analyze, what was the char- ■ Stirling v. Buckingham, 46 Conn. 4fi4(1878), Loomis, Judge. 2 MeLeod v. Gtinther, 80 Ky. 403 (1882), Hargis, C. J. ; TeiTitory u Yarberry, 8 N. Mex. 453 (1883), Axtell, C J. See also 76 Ind. 388; 9 Cush. 42; 57 Mo. 98; 32 N. H. 360; 40 N. J. L. B38; 55 Pa. 402. 3 1 Whart. Ev. §§ 258-59, cases; 1 Greenl. Ev. §§ 108-23; United States v. Noelke, 17 Blatch. 570 (1880); United States V. Angell, 11 F. E. 41 (1881), cases. ■> Beaver v. Taylor, 1 Wall. 642 (1803), cases, Swayne, J. ; Little Rook, &c. R. Co. v. Leverett, 48 Ark. 338-43 (1886); Culverius v. Culverius, 81 Va. 813 (1886). 'Travelers' Ins. Co. n. Mosley, 8 Wall. 4( Swayne, J. acter of the act, or the intent and purpose with which it was done. 1 See furftier Admission, 2. Res in re. Member in member. Res Integra. A thing yet entire ; a mat- ter as yet undetermined by decision. Res inter alios acta. A thing done be- tween others. More fully, res inter alios acta alteri nocere non debet, a thing done be- tween others ought not to injure. A trans- action between persons who are "strangers" toward another person cannot affect unfa- vorably the rights of that person. Excepted from the rule are proceedings against a res, and decisions regarded as precedents.^ No person is to be affected by the acts or words of others unless connected with them, personally or by those whom he represents or by whom he is repre- sented. = See Pkivitt, Of contract. Res ipsa loquitur. The thing speaks for itself : the meaning or intent is apparent. The reservation on the face of an instrument of a higher than the legal rate of interest Indicates per se usury. ^ Res judicata. A matter which has been settled ; a decided case. See Adjudicatus. Res nova. A new matter, — point or question. Res nuUius. A thing of no one : nobody's property. In Roman law, an object in which no person could have a property, as, a thing or place consecrated to religious uses; also, property without an owner. See Abandon, 1. Res perit domino. The thing perishes for its owner : where a thing of value is de- stroyed by an act of God or of the public en- emy, the loss falls upon theowner, not upon the person in whose custody it has been tem- porarily placed. ^ The principle is that in contracts in which the per- formance depends on the continued existence of »■ given person or thing, a condition is implied that im- possibility of performance arising from the perishing of the person or thing shall excuse the performance. Excuse for performance is implied by law, because from the natm-e of the contract it is apparent that the 1 Nat. Bank of the Metropolis v. Kennedy, 17 Wall. 24, 26, 19 (1878), Bradley, J. See generally 14 Am. Law Rev. 817-38 (1880), cases; 15 id. 1-20, 71-107 (1881), cases; 24 Cent. Law J. 403 (1887), cases; 26 id. 207 (1888), ''See 8 Best, Ev. § 506; 1 Whart. Ev. §§ 173-76, 760; 2 id. §1041; 1 Wall. 463; lOOU. S. 616; JOl id. 351; 3,Curt. 403; 82 Ala. 500; 77 Mo. 281; 57 N. H. 369; 52 Pa. 229, 413; 55 Vt. 576. 'State V. Beaudet, 53 Conn. 541 (1885); ib. 461. 4 Bank of United States v. Waggoner, 9 Pet. 399 (1635) ; Turner v. Turner, 80 Va. 381 (1885); 32 F. E. 120. EES RESCISSION parties contracted on the basis of tlie continued exist- ence of the particular person or chattel.' When property, real or personal, is destroyed by fire, the loss falls upon the party who is the owner at the time. If, from such destruction, the vendor of a house cannot perform his agreement to convey, he cannot recover or retain any part of the purchase- money.^ The rule of the common law is the civil-law rule, that if one is employed in maldng up the materials or in adding his labor to the property of another, the risk is with the owner of the thing into which the labor is incorporated. . . One who, imder a contract, is doing the ornamental woodwork in a building de- stroyed by Are while under control of the owner, may recover a quantum ■meruit for the work done prior to the fire. An accidental fire is not such act of God or vis major as will excuse the performance of a con- tract.' Where a res is seized by judicial process for debt, which can-ies with it a jus in re, as between debtor and creditor the maxim means that the'destruction of the seized property, without fault of the debtor, works a payment of the debt to the extent of its value. Where third parties voluntarily join the seizing creditor in his proceeding, and unite, so to speak, in the seizure, also asserting claims which carry with them liens, the destruction of the property without fault of the debtor works a payment of their respective claims, to the extent of the value of the property destroyed, in the order of their priority.* Where a vessel, before she breaks ground, is so injured by fire that the cost of repairs would exceed her value when repaired, and she is rendered inca- pable of earning freight, a contract of affreightment for the carriage of cotton, evidenced by a bill of lading providing for the payment of freight-money on the delivery of the cotton, is thereby dissolved, so that the shipper is not liable for any part of the money, nor for expenses paid for stowing the cotton.* Ut res magis valeat quam pereat. That the thing may prevail rather than be destroyed : that the subject-matter may have effect, or the end be promoted, rather than be defeated. The courts aim to uphold, to preserve, not to de- stroy, written contracts, wills, statutes,— all instru- 1 Taylor v. Caldwell, 113 E. C. L. *839 (1863), Black- bum, J.; Appleby v. Myers, L. E., 3 C. P. 'eSS (1867). » Wells V. Calnan, 107 Mass. 515-18 (1871), cases. Gray, J.; Snow V. Alley, 144 id. 551 (1887); Broom, Maxuns, *238, cases. » Haynes v. Second Baptist Church, 12 Mo. Ap. 540-16 (1882), cases, Bakewell, J. 4 Gill V. PaclJard, 4 Woods, 871 (1883), Billings, J.: s. c. 17 F. B. 400. See also Viterbo v. Friedlander, ISO U. S. 712 (1887), cases — leased property; Story. Bailm. §426; Benj. Sales, §570; 8 Kent, 501; 8 Add. Contr. *927; Bish. Contr. § 588, cases; Hare, Contr. 88, 434, 630; 12 Allen, 381 ;, 14 id. 269. 6 The Tornado, 108 U. S. 342 (18&3), cases, Blatohford, J.; Jones v. United States, 96 id. 24 (1877). ments presented for construction. Withhi the spirit of the rule is the cy pres doctrine,' q. v. See other expressions under Alienatio; Ex Neces- sitate; Fordm; Looatio. RE-SALE. See Bid. BESCISSION.2 Cutting off; abrogat- ing, canceling, annulling, nullifying, vacat- ing, avoiding. Bescind. To annul a thing done ; to va- cate, set aside. Eescissory.3 Designed to abrogate, an- nul, av.oid. Used, in particular, of the refusal of a party to a contract to be bound by it, because of alleged disability, mistake, or fraud oper- ating at the time of the formal mak,ing ; also, of the decree of a court of equity canceling a contract for cause shown. The right to rescind a contract of sale pro- ceeds upon the ground that a party has been fraudulently betrayed into making the con- tract, and, having thus been induced to part with his own property, he may resume pos- session of it on returning that which he has himself received, thus placing the other party in the position he was in before the contract was made.< Equity will rescind a purchase induced by a mate- rial misrepresentation of the vendor, though inno- cently made.'' The cancellation of an executed contract is an ex- ertion of the most extraordinary power of a court of equity. The power ought not to be exercised in a clear case, and never for an alleged fraud, unless the fraud be made clearly to appear; never for alleged false representations, unless their falsity is certainly proved,, and unless the complainant has been deceived and injured by them.* The rule that he who seeks to rescind a contract of sale must first offer to return the property received,, and place the other party in the position he formerly occupied, as far as practicable, prevails equally at the civil and the common law. It is a rule founded in natural justice, and requires that the olfer shall be' made by the purchaser to his vendor upon the discov- ery of the defect for which the rescission is asked. ' See 1 Bl. Com. 89; 2 id. 380; 95 U. S. 713; 106 id. 137; 108 id. 401 ; 109 id. 368; 59 Iowa, 3J5; 100 Mass. 113; 108 id. 303; 50 Miss. 96, 103; 89 N. C. 462; 92 N. Y. 315; Broom, Max. 505. "F. rescinder, to cancel: L. re-scindere, to cut off,, annul, ' Ee-siz'-o-ry. ■> Snow V. Alley, 144 Mass. 551-57 (1887), cases, Dev- ens, J. « Curtiss V. Hurd, 30 F. E. 733 (1887), cases. ' Atlantic Delaine Co. v. James, 04 U. S. 214 (1876), Strong, J. RESCISSION 890 RESCRIPT The vendor may then receive back the property, and be able by proper care and attention to preserve it, or he may have recourse upon other parties, the reme- dies against whom mi§;ht be lost by delay. He must be permitted to judge for himself what measures are necessary for his interest and protection, and if the purchaser by delay deprives him of the opportunity of thus protecting himself, he cannot demand a rescis- sion of the contract. 1 Where a party desires to rescind upon the ground of mistake or fraud, he must, upon discovery of the facte, at once announce his purpose, and adhere to it. If he be silent, and continue to treat the property as his dwn, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake or fraud had not occurred. He is not per- mitted to play fast and loose. Delay and vacillation are fatal to the right which had before subsisted. These remarks are peculiarly applicable to speculative property which is liable to fluctuations in value. A court of equity is always reluctant to rescind, unless the parties can be put back in statu quo. If this can- not be done, it will give such relief only where the clearest and strongest equity imperatively demands it. ^ In order to rescind a contract for the purchase of realty on the ground of fraudulent representation by the seller, it must be established by clear and decisive proof that the representation regarded a material fact; that it was false; that the maker knew that it was false; that he made it in order to have it acted upon ; and that it was so acted upon by the other party to his damage, in ignorance of its falsity and with a reasonable belief that it was true.^ There must be knowledge of facte which will enable the party to take effectual action. But he may not willfully shut his eyes to what he might readily and ought to have known. When fully advised, he must decide and act with reasonable dispatch. He cannot rest until the rights of third persons are involved and the situation of the wrong-doer is materially changed. Under such circumstances, he loses the right to re- scind, and must seek compensation in damages. But the wrong-doer cannot make extreme vigilance and promptitude conditions of rescission. It does not lie in his mouth to complain of delay unaccompanied by acts of ownership, and by which he has not been af- fected. The election to rescind, or not to rescind, •once made, is final and conclusive.* The principle of many cases is, that, where the con- tract has been induced by fraud, it is not necessary that the party seeking to rescind should absolutely ten- der what he has received on account of the contract. » Andrews v. Hensler, 6 Wall. 258 C18G7), Field, J. See also PearsoU v. Chapm, 44 Pa. 12 (1862), cases, .Lowrie, C. J. = Grymes v. Sanders, 93 U. S. 62 (1876), cases, Swayne, Justice. 3 Southern Development Co. v. Silva, 125 U. S, 250 (1888), Lamar, J. 4 Pence v. Langdon, 99 U. S. 581 (1878), Swayne, J. See also Indianapolis Boiling Mill Co. u. St. Louis, &c. R. Co. 120 id. 260 (1887), cases; Kraus v. Thompson, 30 Minn. 67 (1882), cases. It is necessary, however, that he should give notice of his intention to rescind, and that at trial he should be in a situation to put the other party in the condition in which he was at the time he discovered the fraud. That the subject-matter has been partially disposed of win not of itself prevent a rescission, unless the greater part has so disappeared.' An application to rescind, like that for specific exe- cution, is addressed to the sound judicial discretion of the coul-t. The maxim that he who seeks equity must do equity emphatically applies. A mistake in law, where there is neither fraud, concealment, nor material mistake in fact, constitutes no ground for I'escinding a contract. The complain&nt must ' not have done any act which will prevent the respondent from being placed in statu quo.^ The cases generally hold that where a vendor un- dertakes to rescind the sale for fraud, he must, before suing for either the goods or their value in money, return or tender to the vendee whatever valuable con- sideration he has received for them. But the cases which so hold are cases where goods were given for goods, or where the action was' replevin to recover the goods sold, in specie, and not trover for their value in money. If this rule were not applied, the fraudulent vendee may lose what the vendor has received, and the vendor get justice without doing it. There is no case in which the rule has been applied in an action of trover against the fraudulent vendee, where the vendor has received nothing but money. ^ See Cancel; Knowledge, 1; Perfohmance, Spe- cific, RESCOUS. See Rescue. IlESCilIPT.4 1. In Roman law, re- SGvipta were answers returned by the em- peror, when consulted on questions of law, either by the parties in some controversy, or, more commonly, by officers charged with the administration of justice.^ In succeeding cases these rescripts had the force of laws, Justinian preserved them in his Institutes. Decretal epistles of the popes are also rescripts in the strictest sense.** 2. In common law, a counterpart. In Massachusetts, the statement of the de- cision of the highest appellate tribunal ; also, the brief statement sent to the court a quo, 1 American Wine Co. v. Brasher, 4 McCraiy, 247 (1882), cases, Hallett, D. J. See also 18 Cent. Law J. 482-87 (1884), cases; 19 id. 7-9 (1884), cases; 53 Cal. 46; 68 Ga, 103; 75 111, 206; 91 N, Y. 155; 44 Pa. 13, cases; 1 Story," Eq. §§ 692-705; 3 Pomeroy, Eq. §§ 84^-71. a Ferry v. Clarke, 77 Va. 409, 406-S (1883), cases, Lacy, J. ; Linhart v. Foreman, ib. 540 (1883); McMuUin v. San- ders, 79 id. 364 (1884), cases. 3 Warner u Vallity, 13 R. I. 484r^7 (1882), cases, Durfee, C J. ■*F. rescript., a written reply: L. re'Scriptum, writ- ten back. 6 Hadley, Rom. Law, 7, 8 1 Bl. Com. 58-59. RESCUE 891 RESERVATION KESCUE. 1. Taking from a distrainor a distress on its way to a pound. On their way to a pound things distrained may he rescued by the owner in case the distress was taken without cause or contrary to law ; as, if no rent he due, if talcen upon the highway, and the lilce. But, once impounded, although unlawfully talzen, the distress may not be retail en. ' 2. Forcibly and knowingly freeing another from an arrest or imprisonment.^ The same offense as a volvmtary escape (g. v.) by a jailor. Not criminal, unless the rescuer knew that the person was held on a charge of crime, or that he was in charge of a public officer, s BESEMBLANCE. See Like; Quasi; Similitude. RESERVATIOIf; RESERVE.* Re- serve: to keep or hold back, withhold, as one thing or right out of another — the sub- ject-matter; also, the thing withheld. Res- ervation: the act of withholding; also the thing itself which is not given up; and also the clause in a writing by which that thing is reserved. 1. An auctioneer sells " without reserve " when no price is prescribed up to which the property must be bid. See Auction. 2. When an author wishes to reserve the right to translate or to dramatize his work he must give notice that that is his purpose by printing "Right of translation reserved " or "All rights reserved," below the notice of copyright entry ; and the librarian of Con- gress is thereby notified to record such reser- vation. See Copyright. 3. Public land withheld from sale, as, for military posts, for parks, for the use of Tn- dian tribes, or other purposes, is called the "public reservation" or simply the "reser- vation." In former years, " reserve " seems to have been in vogue, as, in " Western Re- serve." In this sense reservation does not imply an abso- lute disposition of the land or lands, in all cases, but a withholding for some other disposition, as, sale, or the use of schools." SeePKE-EMPTios, 2; Land, Public. The reservation of lands for any specific purpose ; 5 Pick. 7U; 113 13 Bl. Com. 12, 170; 42 N. H. tr. S. 111-14, infra. ' 4 Bl. Com. 131. 3 See 2 Bish. Cr. Law, 1 1065; 1 Hale, P. C. 606; Find- ley V. McAllister, 113 U. S. 111-14 (1885), cases; 1 Stoiy, 88; 2 Gall. 313. ' F. reserver: L. re-servare, to keep back. « [McConnell v. Wilcox, 2 111. 359 (1837), Smith, J. by the government is but an expression of a desire to use them for that purpose. The same precision in the use of terms is not required as in the case of a convey- ance.' 4. The creation of a right or interest, which ' had no prior existence as such, in a thing or part of a thing granted.^ By a reservation in a deed a new right is created in the thing granted which did not .previously exist, and is reserved to the grantor. ^ An ' ' exception " is always part of the thing granted, and of the whole of the thing excepted. A reservation may be of a right or interest in the particular part which it affects. The terms are often used in the same sense. Though apt words of reservation be used, they wUl be continued as an exception, if such was the de- sign of the parties.^! ' See Exception, 1. 5. Many other rights are said to be re- served or not reserved. Thus, the maker of a power of attorney may reserve the right to revoke the power ; and a respondent in equity may reserve, in his answer, the advantage to be had from a defect in the structure of the bill. As to reserved rights under the Constitution, see that title, pp. 237-39. 6. In practice, when, during the course of a trial, the judge decides, for the time being, a point raised, but subject to revision by the court at the hearing of a motion for a new trial, he is said to "reserve a question of law." The procedure enables the jury to render a verdict on the facts subject to the decision upon the question reserved. The question must be one of pTu:e law. The facts, which are to be agreed upon or else found by the jury, must be stated in the record. The question, moreover, must be such as rules the case: the object of reserv- ing it being to save the necessity for a second trial. An adverse verdict on the facts will, of course, pre- clude the point from arising. The reservation of sub- ordinate questions tends to complicate the case. A point cannot properly be reserved unless, if it be held one way, the court would be bound to instruct the jury tor which of the parties to find.* 7. The sum of money which every national bank in the sixteen largest cities must have on hand — an amount equal to at least ' United States v. Payne, ." McCrary, 301 (1881); 13 Pet. 266; 92 U. S. 738. 2 Kister v. Eei-ser, 98 Pa. 5 (1881), Trunkey, J. ' Perkins v. Stockwell, 131 Mass. 530 (1881), cases, Devens, J. ; Kimball v. Withington, 141 id. 379(1886). See also 2 McLean, 392; 8 Saw. 99: 16 Conn. *482; 38 id. 542; 18 Iowa, 338; 42 Me. 9; 59 id. 340; lOT Mass. 322-23; 126 id. 196: 120 id. 231; 11 N. Y. 321; 41 id. 483; 29 Ohio St. 568; 47 Pa. 197; 44 Vt. 416; 22 Wis. 547. 4 WUde V. Trainer, 59 Pa. 442 (1868), Sharswood, J. RESIDE 893 RESIDE 'twenty-five per centum of the aggregate of its notes in circulation and its deposits. Fif- teen per centum is required of all other na- tional banks. When the reserve falls below this limit, the bank may not increase its liability otherwise than by pur- chasing sight bills oJ exchange, nor may it make a dividend. On failure to make the reserve within thirty days after notice from him, the comptroller of the currency, with the concun-ence of the secretary of the treasury,^may appoint a receiver and wind up the bank.' ^ RESIDE ; RESIDElSrCE ; RESI- DENT.2 May import temporary sojourn or permanent domicil. Illustrative cases are given belovy. The negatives non-residence and non-resident are in frequent use. Eesidence. The legal definitions of the cognate terms "residence" and "domicil" vary with the circumstances of the case and the mental constitution of judges and au- thors. While " residence " generally imports personal presence, one may have a "domicil" in a place fi-om which he is absent most of the time. "Residence" also implies naore than a temporary sojourn. ^ Non-residence. Actual cessation to dwell within 'a State for an uncertain period with- out definite intention as to a time for return- ing, although a general intention to return may exist.^ When a residence has once been established by the concurrence of intention and personal presence, con- tinuous personal presence thereafter is not essential to a continuous residence. Prima facie, a man^s "home "is where his family lives.^ Residence means a fixed and permanent abode or dwelling-place for the time being, as contradistinguished from a mere tempo- rary locality of existence.* Ordinarily, the place of one's permanent domicil, rather than his temporary abode.' In the constitutional requirement that a qualified voter must reside in the district a specified number of days, the same as "domicil" — the place where a man estab- lE. S. §5191; 2 F. resider, to stay: L. re-sidere, to remain back. » [On Yuen Hai Co. v. Boss, 8 Saw. 392 (1882), Deady, J. ■1 [Weitkamp v. Loehr, B3 N. Y. Super. Ct. 83 (1886), cases, — attachment law. = Topsham v. Lewiston, 74 Me. 239 (1882); Greenfield V. Camden, ib. 64-65 (1882). « Ee Wrigley, 8 Wend. 140 (1831), Walworth, Ch., ' [Eeeder v. Holcomb, 105 Mass. 95 (1870), Chapman, Chief Justice. lishes his abode, makes the seat of his prop- erty, and exercises his civil and political rights. 1 Denotes permanency of occupation, as dis- tinct from lodging, boarding, or other tempo- rary occupation; but does not include as much as " domicil," which requires an in- tention continued with residence. 2 May require continuous and voluntary abiding, as, to give jurisdiction ; not, tempo- rary boarding, though for a long period." The precise meaning depends upon the pur- pose and phraseology of the particular stat- ute. May refer to place of business, domicil, or home.* In a statute defining political rights, syn- onymous with "domicil" — a permanent rather than a temporary dwelling-place. "Domicil" is never lost until a new one is acquii-ed ; but a person may cease to "reside " in one place and have no fixed habitation elsewhere. ^ A citizen of one State who in good faith gives up his residence there, and takes up a permanent resi- dence in another State, acquires citizenship in the new place of domicil.^ The. residence of a corporation is the place where its principal office is located, or its principal opera- tions carried on. But a railroad corporation resides in the counties through which its road passes, and in which it transacts business; at least as regards suits- and taxation." The proper seat of residence of a foreign corpora- tion is the State which created it and which continues- it in existence. Otherwise, the corporation might re- side in a multitude of jurisdictions. But legislation may give it status as a resident.^ Resident. Literally, one who sits, abides, inhabits, or dwells in a particular place. A person sojourning (i. e., residing) at a place is. prima facie residing there, and cannot be a resident ' Cha.se v. Miller, 41 Pa. 420 (1862), Woodward, J. 2 [Inhabitants of Jefferson v. Inhabitants of Wash- ington, 19 Me. 300-2 (1811), Whitman, C. J. ' Charter Oak Bank v. Keed, 45 Conn. 395 (1877), Loomis, J. « Tyler v. Murray, 57 Md. 441^B (1881), Irving, J. ; S* id. 512; 35 id. 169; 15 M. & W. 433; 2 Kent, 430, note. 6 [Hannon v. Grizzard, 89 N. C. 120(1883), Smith, C. J. See also Fitzgerald v. Arel, 63 Iowa, 106 (1884). • Chicago, &c. E. Co. v. Ohle, 117 U. S. 127 (1886). ' Thorn v. Central E. Co., 26 N. J. L. 121 (1866); Peo- ple V. Fredericks, 48 Barb. 176 (1866); Baldwin v. Mis- sissippi, &0. E. Co., 5 Iowa, 519 (1857); 8 id. 260; 2 How. 407; 5 Cranch, 61; 4 McLean, 192; 5 id. 455; 28 Me. 434; 40 Mo. 580; 17 Gratt. 176; 33 How. Pr. 160. « Stafford u American Mills Co., 13 E. I. 311 (1831), Durfee, C. J. RESIDUE 893 RESIST ■of another place at the same time. This, at least, is the meaning in attachment laws. The word is of nar- rower significance, then, than " one domiciled in a place;" like inhabitant, it implies bodily presence.' Non-resident is in general use in laws on the sub- ject of attachments, divorce, registration, taxation, and. elections. Non-resident administrator, bond- holder, debtor, executor, guardian, and trustees, es- pecially are of frequent recurrence. The apt of Congress of March 3, 1875, § 8, provides for summoning as parties to a suit persons who are non-residents of the district, by service of an order of court, as therein provided.^ See generally Abode; Citizen; Divorce; Domicil; Dwelling; Fasuly; Home; Inhabitant; Ministek, 3; Permanent; Tax, 2. RESIDUE. That -whioli remains after taking away a part ; surplus. In a will, such portion of the estate as is left after paying the chargeSj debts, devises, and legacies.' The presumption is that a testator uses it in this sense. A contrary intention must clearly appear. ' The "residue" of a man's estate, in testamentary language, means whatever is not specifically devised or bequeathed. The word has this meaning unless the whole will taken together shows clearly that it was not so intended.* The courts incline to extend the word to the whole estate, when it is not clear whether the testator meant it to apply to a residue of the whole or only of a par- ticular part.* Residuary. Relating to the residue ; as, residuary — clause, legatee, devisee, estate. A residuary legatee receives the residuum of an es- tate. Any words indicating that purpose will be suf- ficient to uphold the bequest.' SeeLEifAcv; Eesidudm, 2. RESIDUUM. L. Remainder; residue. 1. In patent law, what is left after a pro- cess of separation. There are as many different residuuras of a sub- stance as there are distinct products which may by taken away from it. Showing that all the matter that is in the residuum of the earlier of two patents is also in, and is obtained by separation from, the residuum of the patent of later date, does not make out an infringe- ment on the former. It does not show that the patents are the same. If the rule were otherwise, a prior patent for the same use, of the common source, would cover both.* 1 [Collison V. Teal, 4 Saw. 243 (1877), cases, Deady, J. » Castello V. Castello, 14 F. E. 207, 210 (1882), cases. a [Phelps V. Bobbins, 40 Conn. 264 (1873), Carpenter, J. « Willard's Appeal, 68 Pa. 332 (1871), Sharswood, J. ; 41 Leg. Int. 314. » Carr u Dings, o8 Mo. 406 (1 874) ; Barker v. Eeilly, 4 Del. Ch. 82 (1871); 8 Eedf. Wills, 448. •Laing v. Barbour, 119 Mass. 525 (1876), cases; 24 Moak, 297; 2 Williams, Ex. 1014; 4 Kent, 541. ' Parsons v. Coalgate, 15 F. E. 600 (1882), Wheeler, J. 3. The surplus of an estate after all debts and particular legacies are discharged.! This goes to the residuary legatee ; if none is named, then to the next of kin, under the intestate law. Anciently, the residuum was taken by the executor, unless otherwise directed.^ If a legacy is not legally disposed of, it falls into the residuum. But where a specific devise of realty is invalid, the realty descends to the heir at law."-* RESIGNATION. Of an office : the act of igiving it up; surrender, relinquishment, renunciation. Need not be in writing, unless required by statute; and may be either express or implied. The question is one of intention. Non-user may indicate absolute relinquishment. ^ At common law, an office was regarded as a burden which the appointee was bound, in the interest of the community and of good government, to bear. From this it followed that after an office was assumed It could not be laid down without the consent of the ap- pointing power. This was required that public inter- ests might suffer no inconvenience for the want of servants to execute the laws. Acceptance may be manifested either Ijy a formal declaration or by the appointment of a successor. In this country, a con- trary doctrine may have obtained; but it will be as- sumed that the common-law rule prevails unless the contrary is shown.* See Office, 1. RESIST. To oppose, meet force with force; to hinder, prevent. Whence resist- irg, resistance. See Defense, 1. Kesistance to a legal arrest is criminal, though the accused be innocent of the charge.' " Besisting " does not necessarily imply assaulting or beating an officer.' "Every person who knowingly and willfully ob- structs, resists, or opposes any officer of the United States in serving, or attempting to serve or execute, any mesne process or warrant, or any rule or order of any court of the United States, or any other legal or judicial writ or process," shall be imprisoned not more than twelve months, and fined not more than three hundred dollars.' The offense is complete when the person refuses to go with the officer.' Eesistance to an officer is opposing hun by direct, active, and more or less forcible means. It implies something more than hindering, interrupting, pre- venting, baffling or circumventing. The gist of the offense is personal resistance, that is, personal oppo- 1 [2 Bl. Com. 614. ! Johnson v. Holifleld, 82 Ala. 127 (1886). > Barbour v. United States, 17 Ct. CI. 163-B4 (1881), cases. « Edwards v. United States, 103 U. S. 473-74 (1880), cases, Bradley, J. ; State v. Clayton, 27 Kan. 446 (1882j, cases, Brewer, J. ; State v. Boecker, 66 Mo. 81 (1874). » Floyd V. State, 82 Ala. 23 (1886). » Woodworth v. State, 26 Ohio St. 196 (1875). ' Act 30 April, 1790: E. S. § 5398, oases. ' United States v. Lukens, 3 Wash. 335 (1818). RESOLUTION 894 RESPONSIBLE sition to the exercise of official authority or duty, by -direct, active, in some degree forcible, means. A per- son may not resist or obstruct an officer after he has made a seizure of property.' See Akkest, 2. RESOLUTION". See By-law, 3. RESORT. The highest or last court to which a cause may he carried for review is called the court or tribunal " of last resort." See Court. RESOURCES. Money, or property, that can be converted into supplies; means of raising money or supplies; capabilities of producing wealth, or of supplying necessary wants ; available means, or capability of any kind. 2 RESPECTIVE. See Sevbral. RESPITE.s Temporary suspension of the execution of a sentence; a delay, forbear- ance, or continuation of time.* RESPOND. To answer — a bill in equity, a libel in admiralty or in divorce, in an ap- peal taken to a higher court, etc. See Ee- SPONDERE. Respondent. One who makes or files an answer in a cause ; a defendant. Co-respondent. A co-defendant; one of two or more respondents; in English prac- tice, the paramour as joint-defendant in pro- ceedings in divorce for adultery. Responsive. Containing or embodying an answer ; completely answering. That an answer in equity must be " responsive " to the allegations in the bill, see Answer, 3. RESPONDERE. L. To answer, re- spond. Ad respondendum. See Capeee, Ca- pias, etc. Respondeat. Let him answer. Bespondeat ouster. Let him answer over. The name of a judgment upon a dilatory plea in a civil suit, that defendant answer in some better man- ner, that is, put in a more substantial plea; * also ap- plicable In criminal cases, when a. demurrer to an indictment or an information is overruled. = See Abatement, 4. Respondeat superior. Let the principal answer. 1 United States v. McDonald, 8 Biss. 439, 448 (1879), Dyer, J.; State v. Welch, 37 Wis. 800-3 (1876), Ryan, Chief Justice. 2 [Ming t). Woolf oik, 3 Mont. 386 (1879) : Webster's Diet. = 1". respite: L. re-spiccrc, to lookbackupon; regard, respect had to proceedings,—- Skeat. 4 Mishler v. Commonwealth, 63 Pa. 60 (1869). '3B1. Com. 303, 397. •4 Bl. Com. 338; R. S. § 1036. The employer is answerable for the act (not wan- ton) of his servant or agent.' See further Agent; Contractor; Njsgli&encb. Respondentia. Ability to answer : a loan upon the personal obligation of the owner of a cargo on board a ship. The loan of money upon merchandise laden on board a ship, the repayment whereof is made to depend upon the safe arrival of the merchandise at the destined port.^ A loan upon the vessel is called "bottomry." In a loan upon the merchandise, which is for sale or ex- change in the course of the voyage, the boiTower only is personally bound to answer the contract, and he is said to take up money at respondentia.'' The money, with maritime interest, is paid to the lender upon the arrival of the merchandise at the ' port.4 See Bottomry; Hypothecation; Salvage. Responsa prudentum or prudentium. Answers of the leai-ned — by learned lawyers. Augustus gave to certain jurists a privilege called jus respondendi; the right of making answers, on points of law submitted by judges, which should have the authority of law. Books of responses, bearing the names of leading jurisconsults, obtained an authority at least equal to that of our reported cases, and consequently modified, extended, limited, or practically overruled provisions of the Decemviral law. These responses were at first opinions interpretative of the written law — explan- atory glosses Opinions were given upon fictitious or imaginary cases ; in which fact Mr. Maine finds an explanation for the thorough scientific development attained by the Roman law. English and American judges confine themselves to the actual cases presented: obiter dicta being regarded with disfavor, if not censured.* RESPONSIBLE. Answerable, account- able, amenable; able to answer just expec- tations ; of pecuniary ability. Opposed, irre- sponsible. Compare Liable. See Circum- stances, 2. A promise to be "responsible " for the contract of another "is a contingent liability, and becomes abso- lute by showing due and unsuccessful diligence to ob- tdin satisfaction from the principal.* A statute requiring that a writ shall be indorsed by some " responsible person " intends that the person ' See generally Philadelphia, &c. E. Co. v. Derby, 14 How. 483-87(1853); Chicago City v. Robbins, 3 Black, 428 (1863); Hilliard v. Richardson, 3 Gray, 350-67 (185B), cases; 5 South. Law Rev. 288-85 (1879), cases; 3 Cent. Law J. 647 (1876) — Solicitors' Joum.; 83 Ky. ^681; 2 Mich. 629; 68 N. H. 63. ' The Brig Atlantic, 1 Newb, 516 (1855), McCaleb, J. » [3 Bl. Com. 468. * Marsh. Ins. 734. See generally 3 Kent, *353, et seq. * Maine, Ancient Law, 38-38; Hadley, Eom. Law, 65-^9. * (Jilbert v. Henck, 30 Pa, 209 (1858); Bickel v. Auner, 9 PhUa. 499 (1872). EESPUBLICA 895 EE8TITUTI0N shall possess sufficient pecuniary ability to pay the costs that may be recovered against the plaintiff. Strictly speaking, "responsible" means liable, an- swerable, rather than able to discharge an obligation.' A testator devised property for founding a school upon condition that within six months after his de- cease '" responsible citizens " should pledge forty thousand dollars to the object. A large number of persons of limited means subscribed small amounts, some conditional. Held, that the subscription list •was not a pledge by such persons as the testator cou- templated.2 In deciding upon the responsibility of bidders for the erection of a public building, it is the duty of the proper officials to consider not only the pecuniary ability of the bidders to perform the contract, but also to ascertain which ones, in point of slcill, ability, and integrity, will be most likely to do faithful, conscien- tious work, and to fulfill the contract promptly, ac- cording to its letter and spu'it.3 The ''lowest responsible bidder" is one who com- plies with all the requirements of the law, not merely one whose bid is lowest.^ In the Pennsylvania act of May 23, 1874, which di- rects that contracts for municipal work shall be awarded to the " lowest responsible bidder," "respon- sible "has been held to refer to pecuniary ability, judgment, and skill. The statute calls for the exer- cise of duties and powers, in the city authorities, which are deliberative and discretionary ; and if they act in good faith, although erroneously or indiscreetly, a mandamus will not lie to compel them to change their decision.' RESPUBLICA. L. The common weal : the commonwealth; the state; the govern- ment. See Interest, 1, Reipublicae, etc. ; Republic. REST. 1, V. To rely upon, trust to the sufficiency of. " To rest a case," and for a party " to rest," is to adduce what is thought to be sufficient testimony to make out an apparent case in chief, or to rebut the adversary's prima facie case. 2, 11. (1) A pause made by an accountant in his entries, in order to strike a balance upon which to allow interest. Spoken of as annual and semi-annual rests; and made by an administrator, executor, guardian, or other trustee.' yC ■Farley v. Day, 26 N. H. 531 (1853), Gilchrist, C. J. ; N. H. Rev. St. ch. 183, § 17. I" Tale College v. Eunkle, 10 Biss. 309 (1881), Drum- mond, J. » Hoole V. Klnkead, 16 Nev. 221 (1881), Leonard, C. J. ; Nev. St. 1881, 59. * Bosker v. Wabash County, 88 Ind, 267 (1882). » Douglass V. Commonwealth, 108 Pa. 663 (1886), Mer- cur, C. J. ; Commonwealth v. Mitchell, 82 Pa. 348 (1876) ; rindley v. City of Pittsburgh, ib. 353 (1876). See also State V. McGrath, 91 Mo. 393-94 (1886), cases. •See Buller v. Harrison, 1 Cowp. 566 (1777); Penny- (3) Peace, quiet. See Peace, 1 ; Sunday. RESTAURANT. Has no such definite legal meaning as necessarily excludes its be- ing an inn ; as currently understood, an eat- ing-house,! q. V. See also Entebtainmext ; Inn; Saloon; Tavern. RESTITXJTIO. L, Restoration; resti- tution, q. V. Restitutio In integrum. Restoration to the original (unbroken) state or condition. 1. In civil law, placing a party in the posi- tion he occupied before he was induced to enter into a contract by reason of fraud, force, fear, mistake, or incapacity. See Re- scission. 3. In maritime law, putting a vessel into the condition it was in before a collision. The owner of a vessel is not liable for losp by col- lision, occasioned without his privity (g. v.) or knowl- edge, beyond the amount of his interest in the vessel, and her freight pending at the time the collision oc- curred. ^ Subject to that provision, the damages recoverable are established in the same manner as in suits for in- juries to other personalty, and the claim for compen- sation may, in certain cases, extend to the loss of the freight, necessary expenses in making repairs, and unavoidable detention. Bestitutio in integrum is the leading maxim as to the measure of damages in such cases. Where repairs are practicable, the rule is, that the damages assessed shall be sufficient to restore the injured vessel to the condition she was in at the time the injury was in- flicted. The rule does not allow deductions, as in insurance cases, for new materials furnished in the place of old, because the claim arises on the wrongful act, and the measure of indemnity is not hmited by any contract. Such repairs may embrace the value of the vessel. If the vessel is wholly lost, the measure is the market value at the time of her destruction. That she sunk is not evidence of total loss." See Collision, 2; Dam- ages; Loss, 2. RESTITUTION. Restoration to former condition or position. See Restitutio. Return of a thing to its owner : the act of making the return, or the proceeding or writ by which directed; ' At common law, when the judgment of a lower court is reversed, the court of review may specially order that the plaintiff in error be restored to what- packer's Appeal, 41 Pa. 501 (1862); 53 id. 5a3; Smith, Eq. 206, 320; 3 Pars. Contr. 151. 1 Lewis u. Hitchcock, 10 F. R. 6-7(1882), cases, Brown, D. J.; s. c. 13 Rep. 300; 1 Hilt. 195; 54 Barb. 311. 2 Act 3 March, 1851: 9 St. L. 035. See PropeUer Niagara v. Cordes, 21 How. 25 (1858). ' The Baltimore, 8 Wall. 385 (1869), oases, Clifford, J. RESTORE RETIRE ever he has lost in consequence of the erroneous judg- ment. Any such order is part of the judgment in reversal. The judgment, in form, is, not only that the judgment of the court below be reversed, but that " it is considered, that the defendant be restored to all things which he has lost on occasion of the judgment aforesaid; " and the writ of restitution which is issued in pursuance of it, and in which the sheriff is com- manded to levy the money of the chattels of the plaint- iff below, or to arrest his person, is strictly an execu- tion.' In crimes, at common law, there was no restitution, because the indictment was in the name of the king. But by gl Hen. VIII (1530), c. 11, on conviction of lar- ceny, the prosecutor was to have restitution of the goods. That act was repealed by 7 and 8 Geo. IV (18^, u. 27, 29, which provides that the court may order restoration to the owner or his representative, from the thief or the receiver from him ; but not so, if the thing stolen was a negotiable security, which has come into the possession of a bona fide holder, for value, without reasonable cause to suspect that the paper was stolen. ^ KESTOEE. Compai'e Restitution. The words "restored to market," in the act of March 3, 1877, § 3,— securing the rights of settlers upon certain railroad lands in Kansas, — signify no more than a withdrawal of the lands from the condition or reservation in which they have been held by reason of the railroad grant. ^ RESTRAIN. 1. To keep in, hold in : to abridge, confine, regulate. To restrain and suppress an amusement is to regu- late or wholly si»ppress it, or regulate it by a license.* .See Peohibition, 2. 3, To limit, restrict, liindei-, repress: as in saying that contracts in restraint of trade, or of marriage, are void. A "restraining statute" limits the action of the common law. See Duress; Imprisonment; Legal, Illegal. 3. To prohibit by judicial order, by injunc- tion ; to enjoin : as, to restrain an act, a pro- ceeding, a defendant. A " restraining order " is of the nature of an injunc- tion. The force of such an order ceases upon the granting of an in^nnctioiL pendente life.^ Restrictive. Limited, to a particular per- son or purpose: as, a restrictive condition, indorsement, q. v. Compare Absolute. RESTS. See Rest, 3. I Duncan v. Kirkpatrick, 13 S. & E. *294 (1825), Gib- son, J. 24 Bl. Com. 362-63; Chitty, ib. » Kansas & Neosho Valley E. Lands, 16 Op. Att.-Gen. 181 (1878). ' Smith V. City of Madison, 7 Ind. 88 (1855); City of Burlington v. Lawrence, 42 Iowa, 681 (1876); 12 Kan. eao. "Cohen v. Gray, 70 Cal. 85 (1886). RESULTING. See Trust, 1; Use, 3. RESURRECTIONIST. See Sepulcher. RETAIL. To sell in small quantities.i To sell by small parcels or quantities, and not in the gross ; as, to sell half a pint of al- cohol at once.2 Retail dealer. One who sells by small quantities, to suit customers, articles which are bought in larger amounts.' A "wholesale dealer" sells in gross, not by the small quantity or parcel.* See Merchant. To constitute the offense of carrying on the business of a retail liquor dealer without having paid the special tax required by United States law, the accused must have procured the liquor sold with intent to retail it, or, having it on hand, formed the intent to retail it,' and carried out that intent by one or more acts.* Gratuitously distributing ardent spirits at a public , gaming-table does not constitute the keeper of the table a retailer of spirituous liquors." RETAINER. 1. The act of engaging an attorney-at-law to prosecute or defend a cause ; also, the formal notice given by the lawyer that he has been so retained; aijd, also, the fee paid — the " retaining fee.'' In particular, the fee of a barrister, or advocate, paid before it is earned. The old rule that all fees should be paid in advance, by removing pecuniary in- terest in the issue of suits, tended to maintain the independence and respectability of the bar.^ See At- torney. 3. At common law, the right in an ex- ecutor or administrator to reserve assets enough to pay his own debt, before other creditors of equal degree. The reason was, he could not sue himself. Now, as a rule, unsecured debts share alike.' RETALIATION. Compare Retorsion. The lex talionis, or law of retaliation, can never be in all cases an adequate or permanent rule of punish- ment. The difference of persons, place^' titne, provo- cation, or other circumstances may enhance or miti- gate the offense; and in such cases retaliation can never be a proper measure of justice.** RETIRE. 1. To withdraw from mem- bership : as, to retire from a firm or partner- ship. Whence retiring partner, q. v. 3. In its application to bills of exchange, is ' Commonwealth v. Kimball, 7 Mete. 308 (1843). s Bridges v. State, 37 Ark. 226 (1881). = State V. Lowenhaught, 11 Lea, 15 (1883), Freeman J. ; Webb v. State, ib. 664 (1883). . ■• United States v. Bonham, 31 F. E. 808 (1887). ' United States v. Mickle, 1 Cranch, C. C. 268 (1803). "Forsythe, Hist. Lawyers, 353. See 3 E. I. 206; 60 Iowa, 520; 3 Chitty, Pr. 116, m. ' See 3 Bl. Com. 18; 63 Ala. 483; 6 Fla. 29; 9 111. 300. « 4 Bl. Cora. 12-13. See Woolsey, Int. Law, § 132. RETORNUM 897 RETROSPECTIVE ambiguous. It is ordinarily used of an in- dorser who takes up a bill by handing the amount to a transferee, after which the in- dorser holds the instrument with all his remedies intact. But it is sometimes used of an acceptor, by whom, when a bill is taken up or retired at maturity, it is in effect paid, and all the remedies on it extinguished. ^ Acts of Congress speak of " retiring " from circula- tion coin or otlier money of a particular issue or de- nomination. BETORNXJM. L. Return, q. v. Betorno habendo. For return had; to have a return. A judgment awarding a de- fendant in replevin the possession and prop- erty of the goods or articles ; a judgment de retomo habendo.^ RETORSION.^ Applying the law of retaliation to another nation, — treating it or its subjects in similar circumstances accord- ing to the rule which is set.* RETRACTION. See Libel, 5 ; Offer, 1. RETRAXIT. L. He has withdrawn. The act of a plaintiff in voluntarily with- drawing from his suit. A " non-suit " is negative, a mere default and neg- lect of the plaintiff, after which, upon paying the costs, he may begin his suit again. A *' retraxit " is positive, being an open and voluntary renunciation of his suit in court, and by which his right of action is forever lost.* RETREAT. In the law of homicide, be- fore a person who is assaulted may kill liis assailant, he must flee as far as he reasonably can, either by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault will permit.* "Retreating to the wall" means that the party assaulted must avail himself of any ap- parent and reasonable avenue of escape, by which the danger might be averted, and the necessity of slaying his*assailant avoided.' But if the attack is of such a nature, or the weapon of such a character, that to attempt to retreat might increase the danger, the party need not retreat.' If retreat does not apparently place the assailed in greater peril he must resort to it.^ ' [Byles, Bills, 226. ' [3 Bl. Com. 150, 413. * L. retorquere, to twist back, retort. * Woolsey, Int. Law, § 118. » [3 Bl. Com. 296; 1 Ala. 47; 31 id. 113; 17 Ga. 251; 68 Ind. 310; 8 Pa. 163; 79 Va. 338. •4B1. Com. 185. ' People V. lams, 57 Cal. 120 (1880), Morrison, C. J. » Carter u State, 82 Ala. 15 (1886), cases. (57) Where the master of a vessel assaults a seaman, who futilely endeavors to escape, the latter may pro- tect himself from iniurj ; if the assault is made with a deadly weapon or otherwise dangerously, he may use equivalent force. ^ RETROSPECTIVE ; RETROACT- IVE. Retrospective: looking backward; retroactive: acting backward. Affecting what is past ; operating upon a past event or transaction. Retrospective is the more com- mon. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed " retrospective." ^ That there exists a general power in the State gov- ernments to enact retrospective or retroactive laws, does not admit of question. The only limitation is the provision ' that the same shall not be such as are technically "ea;posi /acto," or as "impair the obli- gation of contracts." * A legislative body may by statute declare the con- struction of previous statutes so as to bind the courts in reference to all transactions occurring after the passage of the law, and, in many cases, thus furnish the rule to govern the courts in transactions which are past, provided that no constitutional right of a party concerned is violated. Congress cannot, under cover of giving a construction to an existing of ex- pired statute, invade private rights; with which it could not interfere by a new or affirmative statute. But where it can exercise a power by passing a new statute, which may be retroactive in its effect, the form of words used cannot be material, if the purpose is clear, and that purpose is within its power.* The settled doctrine of the Supreme Court is that " words in a statute ought not to have a retrospective operation unless they are so clear, strong and impera- tive that no other meaning can be annexed to them, or unless the intention of the legislature cannot be other- wise satisfied." • ' United States v. Beyer, 31 F. B. 37 (1887). " Society tor Propagating the Gospel «. Wheeler, 2 Gall. 139 (1814), Stoiy, J. See also Dash v. Van Kleeck, 7 Johns. •603-8 (1811), Kent, C. J. Story's definition quoted, Sturges v. Carter. 114 U. S. 519 (1885), Woods, J.;.Eairden v. Holden, 15 Ohio St. 210 (1864), Brinker hoff, C. J. a Constitution, Art. I, sec. 10. •Baltimore, &c. R. Co. v. Nesbit, 10 How. 401-2 (1850), cases, Daniel, J. • Stockdale v. The Insurance Companies, 20 Wall. 831-32 (18T3), Miller, J.; Koshkonong v. Burton, 104 U. S. 679 (1881); Kring v. Missouri, 107 U. S. 221 (1882); 22 Wall. 76; 95 U. S. 654-55; 17 Ct. CI. 171; 2 Story, Const. § 1393. • Chew Heong v. United States, 112 U. S. 559 (1884), cases, Harlan, J., quoting United States v/ Heth, 3 Cranch, 413 (1806), Paterson, J. EETURN 898 REVENDICATION If the judge is satisflepl that the legislative con- struction, expressed in a declaratory act, is wrong, he is bound to disregard it. The act will not be given a retrospective operation, so as to deprive a party of a vested right, unless its language is so plain and ex- plicit as to render it impossible to put any other con- struction upon it. 1 Retroactive effect will not be given to a statute un- less the intention of the law-makers that that is to be the effect is expressed in terms, especially where rights will be taken away or restricted.' See Factum, Ex post; Impair; Usns, Utile, etc. EETURM". 1. To come or go back to the same place,; to revisit.' 3. For an ofiBcer to report to a court what he did toward executing its' process; also, the certificate indorsed upon the writ as to what was officially done, and when and where; and, also, by elision for "return day," the day when such report is to be made or actually is made. See Retoknum. Whatever the sheriif does in pursuance of the com- mand of a writ he must "return" or certify to the court together with the writ itself.* The day on which a defendant is ordered to appear in court, and on which the sheriff i? to bring in the writ and report how far he has observed it, is called the "return " of the writ, or the " return day." ^ Every process issued by a court must be returned, unless some statute otherwise provides, to the court which issues'it. This is essential, that the court may know that its order has been obeyed, and that the record may be complete. The term " return " implies that the process is taken back to the place from which it was issued.' Returns and return days are either general, that is, regular, or special, that is, conven- itional, as corresponds with the requirements of statutes and established practice, or, as in particular cases, the convenience of parties, the engagements of counsel, and the judge or judges of the court, or the effectual ad- ministration of justice, may permit or direct. Due return. Bringing a process into court, with such indorsements as the law requires — whether they in fact be true -or false.T ' Salters V. Tobias, 3 Paige, 344 (1833), Walworth, Ch. '""Hillu Duncan, 110 Mass. 240 (1872), cases, Colt, J See also 25 Am. Law Eeg. 681-95 (18S6), cases: 36 Iowa, 310; 20 Miss. 347; 57 Pa. 433; Barr. Stat. 466; 1 Kent, 455. s Society v. Piatt, 12 Conn. *187 (1837). « [a Bl. Com. 873. « [3 Bl. Com. 875. See Steph. Plead. 84. 'Re Crittenden, 2 Flip. 215 (1878), Ballard, J. ' Harman v. Childress, 3 Yerg. 389 (1838). False return. An incon-ect statement or report of what was done under a judicial mandate. Does not necessarily import willful disregard of facts. Insufficient and irregular also are descrip- tive of defective returns. Beturnable. Requiring official report as to what was done by way of execution of a precept. Said of a summons, citation, capias, writ of execution, of other process, to be returned to the court or officer who ordered it to issue and to be served or otherwise executed by a day named in the process itself. The time within which returns are, in the first in- stance, directed to be made, may, in cases, be " en- larged " by special order. Where intervening rights will not be adversely affected, a return, as made, may be " amended." And when the law has been flagrantly disregarded, a return will be " set aside." Ai^etum, as made, is conclusive in its statements of facts upon the ofldcer and on a party who does not ex- cept to it; it is always construed rigorously against the officer; but it cannot be impeached in a collateral proceeding.' When "false," an action for the loss incurred may be maintained against the offlcer. When the process is void or voidable, the return of service also will be so. There may be an irregular or errone- ous return to legal process. This is true, in a special sense, of returns to writs of execution. See Bona, Nulla ; Gapere, Cepi ; Error, 2 (3) ; Find, 3 ; Nihil; Sbrvioe, 6; Venire, Tarde. 3. To make complaint that one is violating a law ; to inform against ; as, to return a person for selling liquors without license.xor for maintaining a nuisance. See Infoema- TION, 3. REUS. L. A defendant in a civil or criminal suit. See Court ; Mens, Rea. REV. ST. Revised Statutes. See Re- vise. REVE. See Reeve. REVEL. To behave in a noisy, boister- ous manner, like a bacchanal. 2 REVENDICATIOW.3 Demand that a thing be returned or restored; reclamation of a thing sold. The doctrine of stoppage in, transitu appears to have been derived from, or to be analogous to, re- vendication in the civil law; "the pght of an unpaid vendor, upon the insolvenc.v of the vendee, to reclaim, in specie, such part of the goods as remains in the ' See Von Roy v. Blaekman, 3 Woods, 100-8 (1877), cases. ' Petition of Regan, 12 R. 1. 310 (1879). ' L. re, again; vindicare, to lay claim to. REVENUE 899 REVERT hands of the vendee entire, and without havijig changed its quality." ' KEVEN-UE.2 The income of a atflte.a • In a statute providing that appeals should be taken directly to the highest court in " oases relating to the revenue," held, that "revenue" was not used in its most extended meaning, but as embracing public revenue, whether State or municipal — all taxes and assessments imposed by public authority.* " All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may pro- pose or concur with Amendments as on other Bills." » Revenue laws. Laws made for the di- rect and avowed purpose of creating and securing revenue or public funds for the service of the government." Used in connection with a reference to the jurls- diotion of the United States courts, means a law im- posing duties on imports or tonnage, or a law providing in terms for revenue; that is, a law directly traceable to the power granted to Congress " To lay and ooUeot Taxes, Duties, Imposts and Excises.' ' The lexical definition of " revenue " is very compre- hensive: "The income of a nation, derived from its taxes, duties, or other sourceSi for the payment of the national expenses." " Other sources " would include the proceeds of public lands, the receipts of the patent- office and of the post-ofiSce department, in excess of expenditures. The appellative " revenue laws " is ap- plied only to such laws as are made for the purpose of creating revenue or public funds for the service of the government. 8 Bills for raising revenue are such as impose taxes upon the people, directly or indirectly, or lay duties, imposts or excises, for the use of the government, and give the persons from whom the money is exacted no equivalent in return, unless it be the enjoyment, in common with other citizens, of the benefits of good government. It is this feature which characterizes bills for raising revenue. They draw money from the citizen, giving no direct equivalent in return. In re- spect to such bills it was reasonable that the Constitu- tion should provide that the immediate representatives of the tax-payers should alone have power to originate them. It is a very strained construction which would regard a bill establishing rates of postage as a bill for raising revenue.* See Raise, Revenue. ' Benedict v. Schaettle, 18 Ohio St. 580, 518 (1861), Gholson, J., quoting note 8 Nev. & Man. 650. See also 27 E. C. L. 201; L. R., 7 Ap. Cas. 582. ^ F. rev&nir, to come back. ' United States v. Bromley, 12 How. 97(1851), McLean, Judge. < Webster v. People, 98 111. 347 (1881), Walker, J.; Potwin V. Johnson, 106 id. 633 (1883). ' Constitution, Art. I, sec. 7, cl. 1. » United States v. Mayo, 1 Gall. *398 (1813), Story, J. ' United States v. Hill, 188 U. S. 686 (1887), Waite, C. J. "United States v. Norton, 91 U. S. 568-09 (1875), Swayne, J., quoting Worcester's Diet. • United States V. James, 13 Blatch. 208 (1875), -John- son, J.; 1 Stoiy, Const. § 880; 4 Blatch. 311; 1 Woolw. 170. Under the revenue system of the United States, the collection of the revenue in the manner prescribed by law cannot be restrained by judicial proceedings. The only remedip tor an illegal exaction is payment under protest and suit to recover back the money. The reason is, that as it is necessary that the government should be able to calculate with certainty on its reve- nues, it is better that the individual should be required to pay what is demanded under the forms of law, and sue to recover back what he pays, than that the gov- ernment should be embarrassed in its operations by a stay of collection.' Officer of the revenue. In the Revised Statutes, an ofHoer of the revenue from customs; does not therefore Include a postmaster. ' See Duties; Refunds; Stai^p; Tax, 8. REVERSE. To set aside, annul, vacate : as, to reverse a judgment.' Reversal. The act or decision of one court in pronouncing erroneous, and there- fore annulling, the judgment or decree of a lower court. Qpposed, affirmance, q. v. Compare Overrule; Revoke. See Opinion, 3; Ve- NiRE, De novo. REVERT.* For property (usually land) to go back or return to a person who formally owned it but who parted with the possession or title to it, by creating an estate in another which has terminated by his act or by oper- ation of law, " Revert back to my other heirs " means, simply, to go hack to such heirs. ^ Reversion. The residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him. " The returning of lands to the grantor or his heirs after the grant is over."* A return of the estate to the original owner, after the limited estate carved out of it has determined.' The fee-simple of land must abide somewhere; and if he who is possessed of the whole carves out of it a smaller estate, and grants it away, whatever is not so granted remains in him. While a " reversion " is never therefore created by a deed, but arises from construction of law, a " remainder " can never be lim- ited except by a deed or a devise. Both are equally transferable, when actually vested, being estates in proesenti, though taking effect in futuro. A reversion is an incorporeal hereditament." ' Antoni v. Greenhow, 107 U. S. 777 (1882),'Waite, C. J. ' Campbell v. James, 18 Blatch. 196 (1880). ' Laithe v. McDonald, 7 Kan. 868 (1871), Brewer, J. • L. re-vertere, to turn backward. » Beatty v. Trustees, 39 N. J. E. 463 (188S). " 8 HI. Com. 175, quoting 1 Coke, Inst. 142; 86 N. 3i L. 540. '4 Kent, 353-64. 8 8 Bl. Com. 175-76; 4 Kent, 353-56; 1 Washb. R. P. .37,47; 38N. J. E. 124. REVEST 900 REVIEW Reversionary. Pertaining to or partaking of the nature of a reversion. A reversionary interest is the right to en- joy in the future property at present in the possession of anotlier. Reversioner. A person entitled to an es- tate in a reversion. Reverter. Reversion. See Estate, 3; Fixture; Remainder; Table, 4. REVEST. See Vest. REVIEW. Viewing again: a second consideration; revisement, reconsideration, re-examination to correct, if necessary, a previous examination. 1. A re-examination for report upon the /line of a highway as recommended hy a jury of "viewers." The persons who make this second view are called "reviewers," and compose the "jury of review." See View. 3. The revision of a judicial act. Bill of revie'w. A proceeding in a court of equity by which the defendant may have a decree against him reviewed for error upon its face. A^formal mode of rehearing the case, incidental to the original suit.^ A bill in the nature of a writ of error ; its object is to procure an examination, and al- teration or reversal, of a decree made upon a former bill, after such decree has been signed and enrolled.2 If the decree is not enrolled, a " biU in the nature of a bill of review," or a *' supplemental bill in the nature of a bill in review,"- is appropriate.' May be had upon error apparent upon the face of the decree; or,, by special leave of the court, upon oath made of the discbvery of new evidence, which could not possibly be had or used when the decree Lies for error in point of law apparent upon the record, or for some new matter of fact, relevant to the case, discovered since publication passed, and which could not, with reasonali)le diligence, have been discovered before. To enable the court to judge of the propriety of granting a rehearing, the petition must state the grounds upon which it is asked. The petitioner must also show that he has performed the decree, especiall.v as regards the payment of money and costs.'' "No bill of review shall be admitted unless the party first obeys and performs the decree, and enters into a recognizance with sureties, to satisfy the costs ' [Bush V. United States, 13 F. R, 628 (1883), Deady, D. J. : s. c. 8 Saw, 336. ' Story, Eq. PI. § 403. s 3 Bl. Com. 454. •Wiser v. Blaehly, 2 Johns. Ch. *491 (1817), cases, Kent, Ch.; Ketchum u Breed, 66 Wis. 94 (1886), cases. and damages for the delay if it be found against him." ' There is no universal and absolute rule which pro- hibits the court from allowing the introduction of newly -discovered evidence to prove facts which were in issue on the former hearing. The allowance is not a matter of right, hut of sound discretion, to be exer- cised cautiously and sparingly, and only under cir- cumstances which demonstrate that it is indispensable to the merits and justice of the cause.' The bill will be refused, if productive of mischief to innocent parties, or for other cause sufficient to the court. 3 The only questions open for examination on a bill for error of law appearing upon the record are such as arise on the pleadings, proceedings, and decree, without reference to the evidence in the cause.^ A bill must ordinarily be brought within the time limited by statute for taking an appeal from the de- cree sought to be reviewed, where the review is not founded on matters discovered since the decree.® Court of review. A court whose dis- tinctive function is to pass upon (aiBrming or reversing) the final decisions of another or other courts. 3. To examine a literary production and express (usually publish) an opinion as to its merits. A reviewer may fairly cite largely from the original work, if his design is to use the passages for the pur- pose of fair and reasonable criticism. But if he thus cites the most important p^ts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review, such use will be deemed a-piracy." Where an action of libel respects a comment in a newspaper on a matter of public interest, the case is not one of privilege, properly so called, and it is not necessary, in order to give a cause of action, that act- ual malice be proved. The question whether the com- ment is or is not actionable depends upon whether,- in the opinion of the jurj', it goes beyond the limits of fair criticism. •' Whatever is fair and can be reason- ably said of the works of an author or of himself as connected with his work, is not actionable, unless it appears that, under the pretext of criticising the ' Davis V. Speiden, 104 U. S. 84-86 (1881), cases: Ba- con's Law Tracts, 280. 'Wood V. Mann, 2 Sumn. 334, 318-33 (18.S6), cases. Story, J- ; Craig v. Smith, 100 U. S. 234 (1879), Waite, Chief Justice. "Story, Eq. PI. §417; Purcell v. Miner, 4 Wall. 521 (1866); Bicker v. Powell, 100 U. S. 107 (1879), cases- ' Shelton v. Van Kleeek, 106 U. S. 534 (1882), cases. See also Irwin v. Meyrose, 2 McCrary, 244, 260 (1881), , cases; Willamet Bridge Co. v. Hatch, 19 F. R. 347 (1884). iiEnsminger v. Powers, 108 U. S. 302 (1883), cases; Taylor v. Charter Oak Life Ins. Co., 3 McCrary, 4S6 (1882), cases: s. c. 17 F. R. 566. "Folsom V. Marsh, 2 Story, 106, 117 (1841), Story, J. See also 8 South. Law Rev. 160-88 (1883), cases. REVISE 901 REVISE work, the defendant took an opportunity of attacking the character of the author: then it will be iibel." ' See Abridge, 1 ; Dhama. REVISE. To re-examine and amend : as, to revise a judgment, a code, laws, statutes, reports, accounts. Compare Review, 1. Revisions of codes and statutes, partial or entire, have been enacted as follows: In Alabama, in 1876, 1887; Arizona, 1887 (compiled laws); Arkansas, 1874; California, 1873; Colorado, 1877, 1883; Connecticut, 1875, 1887; Dakota, 1877, 1887; Delaware, 1874; Florida, 1872; Georgia, 1832; Idaho, 1878, 1887; Illinois, 1874, 1883; Indiana, 1862, 1881; Iowa, 1813, 1880; Kansas, 1868, 1879; Kentucky, 1873, 1887; Louisiana, 1870, 1875, 1882, 1884; Maine, 1871, 1883; Maryland, 1878, 1886, 1888; Mas- sachusetts, 1860, with supplements to 1872, and to 1882; Michigan, 1871; Minnesota, 1866,1888; Mississippi, 1880; Missouri, 1879; Montana, 1879, 1887; Nebraska, 1881, 1887; Nevada, 1873, 1885; New Hampshire, 1878; New Jersey, 1877, 1837; New Mexico, 1884; New York, 1829, with eight revised editions to 1888; North Carolina, 1883; Ohio, 1880; Oregon, 1872; Pennsylvania, a criminal code in 1863; Rhode Island, 1882; South Carolina, 1882; Tennessee, 1871, 1884; Texas, 1879; Utah, 1876; Vermont, 1880; Virginia, 1873, 1887; Washington, 1881; West Virginia, 1883, 1887; Wisconsin, 1878; Wyoming, 1S76, 188T.2 Revised Statutes. Statutes which have been amended, re-arranged, and re-enacted. Where, by a statute, there is a revision of the whole subject-matter of former statutes, the earlier enact- ments are repealed so far as it appears it was the in- tention of the legislature to repeal them. The revision repeals by implication so far as it is repugnant to the old law, or when it is evidently intended as a substi- tute." A different interpretation is not to be given to re- vised statutes without some substantial change of phraseology other than what may have been neces- sary to abbreviate the form of the law.* Where the language is of such doubtful import as to call for a construction, it is usual to refer to the statute or statutes from which the revision was made. But where the language is plain, and leads to no ab- surd or improbable result, there is no room for con- struction, and such effect will be given it as is required by the ordinary signification of the words used, re- ' Merivale v. Carson, 20 Q. B. D. 275 (1887), cases. The defendant was the editor of a theatrical news- paper called The Stage. A criticism of the play called '"fhe Whii) Hand," published in his paper, falsely charged, plaintiff alleged, that the play had an im- moral tendency. 2 See Stimson Am. St. Law, IX-XTV; 1 Sup. p. 14, § 1047; Banks & Brothers' Catalogue, 188S. For each State there are one or more IJigests, Compilations, or Supplements prepared by private persons, and, therefore, not authoritative. 3 Bowlus V. Brier, 87 Ind. 396 (18g2), Black, C; 41 id. * McDonald v. Hovey, 110 U. S. 628 (1884), cases, Bradley, J. gardless of the prior statute or its construction. The rational rule must be to resort to the prior statute to remove, not to raise, doubts.' Revised Statutes of the United States. An act of Congress, passed June 37, 1866, au- thorized the appointment of three commis- sioners, learned in the law, to revise, sim- plify, arrange, and consolidate all the statutes of the United States, of general or perma- nent nature.2 This revision, which embraced statutes in force up to December 1, 1873, went into ef- fect June 33, 1874. An act of June 20, 1874, dire(!ffed the secretary of state to cause the head and marginal notes to be com- pleted, referring to the original statutes and to decis- ions explaining the same; to annex an index and otherwise prepare the work for printing and distribu- tion; and, finally, to certify the completion of the work. This act provided, further, that, after promul- gation, the printed volumes should be evidence of the laws and treaties therein contained in all courts." The revision repeals all acts embraced within it. No presumption of a legislative intent is to be drawn from the arrangement and classilicution of titles and sections.* • Acts of February 18, and March 3, 1875, declared that acts passed since December 1, 1873, are not af- fected by the revision.* Act of March 2, 1877, authorized the appointment of one commissioner to prepare a new edition; the same to be examined and certified by the secretary of state. ^ This second edition was published February 18, 1878. Act of March 9, 1878, makes the second edition evi- dence, but not to control or affect acts passed since December 1, 1873.' Act of June 7, 1880, authorized a supplement to be prepared and published. The same to be prima facie evidence, but not to preclude reference to, nor control in case of discrepancy, the effect of any original act. nor to change or alter any existing law.* The first edition is a transcript of the original work in the state department. It is prima facie evidence of the law. The second edition is neither a new re- vision nor a new enactment, merely a new publica- tion — a compilation containing the original law with certain alterations and amendments made by subse- quent legislation, incorporated therein according to the judgment of the editor, who had no direction to correct errors or supply omissions.' ' Heck V. State, 44 Ohio St. 637-38 (1886), cases. = See B. S. for 1878, p. 1080. ' R. S. p. 1000. 4 United States v. Jordan, 2 Low. 537, 542 (1876). »R. S. p. 1085; 15Ct. CI. 80. « B. S. p. 1092. ' 1 Sup. R. S. pp. 308, 52, 283. e 1 Sup. R. S. pp. 582-S3. ' Wright V. United States, 16 Ct. CI. 86-89 (1879), Rich- ardson, J. REVIVE 902 EEVOLT Sections in pari materia are to be construed to- gether.' Section 5506 of the reyision indicates a belief on the , part of Congress that all parts Qf acts passed prior to December 1, 18T3, not contained in the revision, are superseded. That is 9, recital of belief, not a declara- tionv and not conclusive. Wliether a statute was re- pealed by a later one is a judicial, not a legislative, question." The revision is the legislative declaration of the statute law on the subjects embraced on December 1, 1873. When the meaning is plain, the courts cannot look to the statutes which have been revised to see if Congress erred in that revision, but may do so when necessary to construe doubtful language used in ex- pressing the meaning.^* The revision as a whole is an £^ct of Congress, ap- proved June 88, 1 874. In cases of uncertainty, the pre- vious statutes may be referred to, to elucidate the legislative intent. But where the language is_ clear, the revision, as expressing the latest will, must gov- ern.* While, in construing the revision, the presumption is against an intention to change the law, yet, where the language cannot possibly bear the same construc- tion as in the repealed act, full effect must be given to the new enactment.' See Eepeal; Statttes, At Large. REVIVE. To impart new life to, renew: to make operative once more ; to restore orig- inal force to : as, to revive a debt, a suit, a judgment. Revival; reviver; revivor. The act or proceeding of giving new life or eflBcacy to that which has lain dormant, been abated, or has or will become outlawed. On the revival of debts barred by the statute of limitations, see Acknowledgment, 1; Payment, Part. Bill of revivor. Sets proceedings in mo- tion again, when a suit has abated by the death of a party,6 or by the marriage of a female plaintiff. when, in the progress of a suit in equity, the pro- ceedings are suspended from the want of proper par- ties, it is necessary to file a bill of revivor.' It is a bill in equity, brought by the personal repre- sentative of a deceased party. A " bill of revivor and supplement " seeks to continue an abated suit, and to > Exp. Karstendick, 93 U. S.' 398 (1876), Waite, C. J. 2 United States v. Claflin, 97 U. S. 648 (1878), Strong, JusJiice. s United States v. Bowen, 100 U. S. 513 (1879), Miller, J.; Myer v. Western Car Co., 108 id. 11 (1880); Cam- bria Iron Co. u. Ashburn, 118 id. 57 (1886); 14 Ct. CI. 2; 7 Rep. 198. * Wright V. United States, ante. 'The Bark Brothers, 10 Bened. 408 (1879), Choate, J.; The-Gorgas, ib. 470 (1879); ib. 170. • [3 Bl. Com. 448. ' Kennedy v. Georgia State Bank, 8 How. 610 (1850). McLean, J. supply a defect in the original bill, arising from a sub- sequent event.' , REVOKE. To call back one's own act or deed, recall ; to cancel, annul, qq. v. Revocable. That which may be annulled by its author. Opposed, irrevocable: past recall. , Revoeaticn. The nullification of a per- son's ov?u act ; the extinguishment of a right by the person who created it ; the cancella- tion of an instrument by its maker. As, to revoke an appointment, a power of attorney, a will, the probate of a will, letters testamentary or of administration, a. submission to arbitrators or a referee, the power of a partner to act for the firm. "To revoke" is to recall what one has done or promised. By a loose use of language, anything which renders a bequest inoperative at the testator's death maybe called a "revocation."' The "ademp- tion " of a legacy is not usually called revocation. When ademption ^is not used, the act is called satis- faction, payment, performance or execution. 2 A revocation is an act done by a testator by which he recalls his will.^ Consists in the purpose to destroy or annul the op- eration of the instrulnent, manifested by some out- ward sign or symbol. The question is one of fact and intention.* REVOLT. Under the Crimes Act of April 30, 1790, consists in the endeavor of the crew of a vessel, or any one or more of them, to overthrow the legitimate authority of her commander, with intent to remove him from his command, or against his command to take possession of the vessel by assuming the government and navigation of her, or By transferring obedience from the lawful com- mander to some other person. 5 An endeavor to excite the crew of a ship to overthrow the lawful authority and com- mand of the master and officers of the ship. In effect, an endeavor to make a mutiny among the crew or to stir up a generar dis- obedience or resistance to the authority of the officers.* 1 Story. Eq. PI. §S 351-87. ,See 8 Paige, 369; 6 Johns. 348; 1 Boot, 578. ■' Langdon v. Aster's Executors, 16 N. Y. 40, 39 (1857), Denio, C. J. " [Lathrop-D. Dunlop, 4 Hun, 315 (1875). ■" Beauchamp's Will, 4 -T. B. Mon. *363 (1887), Bibb, C. J. See also Gay i. Gay, 60 Iowa, 420 (1882), cases; Towne V. Weston, 133 Mass. 515 (1S82); 35 Am. Eep. 35-37, cases. « United States v. 'Kelly, U Wheat. 418 (1826), Wash- ington, J. ' United States v. Smith, 1 Mas 147 (1816), Stoiy, J. REVOLUTION 903 RIEN An open rebellion or mutiny; an usurpation of the authority and command of the ship, and an overthrow of that of the master or other commanding officer. . . Any act done with intent to accomplish such an object is an endeavor to commit a revolt.' A total refusal to perform any duty on board, until the master has yielded to some illegal demand of the crew, when it has produced de facto a compliance, or a suspension of his power of command, is a revolt."-' The act of March 3, 1835 (Rev. St. §§ 6359-60), en- larges the act of 1790, by adding distinct offenses to the "endeavor to make a revolt." These statutes do not include eveiy case of simple passive disobedience by one of the cfew, but do embrace every case of re- sistance to the free and lawful exercise of the mas- ter's authority, when accompanied by force, fraud, intimidation, violence, a, conspiracy among the crew, or concerted action in such resistance or disobedience by one of them. An unlawful confinement of the master is not restricted to a physical confinement of his person.* REVOLUTION. See Independence. KEVOLVER. See Weapon. REWARD. Compare Pbemium; Prize. 1. WTiere a liberal reward was offered for informa- tion leading to the apprehension of a fugitive from j us- tice, and a specific smn for his apprehension, it was held that a party giving the information which led to the arrest was entitled to the " reward," but not to the specific sum, imlesshe, in fact, apprehended the fugi- tive, or the arrest was made by his agents.* Where an offer of a reward is made by public proc- lamation, before rights have accrued under it, it may be withdrawn through the channel in which it was made. No contract arises under such an offer until its terms are complied with. That the claimant was ignorant of its withdrawal is immaterial.* Compare BOONTV. ■ United States v. Hemmer, 4 M»s. 107 (1835), Story, J. ; United States v. HaskeU, 4 Wash. 405 (1833 1 ; ib. 539. 2 United States v. Hames, 5 Mas. 377 (1839J, Story, J. s United States v. Huff, 13 F. R. 630, 036^1 (1883), cases, Hammond, D. J. See also United States v. Peterson, 1 Woodb. & M. 309 (1846); United States v. Nye. 3 Curtis, 327 (1853); R. S. §§ 6339-60, cases. * Shuey, Executor of Ste. Marie v. United States, 93 U. S. 76, 75 (1875), cases. Strong, J. April 30, 1865, the secretary of war offered $35,000 reward " for the apprehension of J. H. Surrat," one of the accomplices of J. WUkes Booth, and a " liberal re- ward for any information" leading lo his arrest. November 34, 1865, the offer was revoked by public ad- vertisement. In April. 1866. Surrat was a. zouave in . the Papal service in Italy. Ste. Marie, who was also in the same service, made known to our minister at Rome that Surrat had confessed to him participa- tion in the plot against the lite of President Lincoln, and kept watch over the fugitive up to November 6, 1E6S, when he was arrested for extradition. At the moment of leaving prison at Veroli, Surrat escaped from his guard, and fled to Alexandria, where he was re-arrested, Ste. Marie having been sent there to iden- tify him. During all this period, both Ste. Marie and Where an advertisement is published offering a re- ward for information in respect to ttr for the return of lost property, an acceptance of the offer by a person who- is able to give the information or to return the property creates a valid contract.' 3. On the subject of reward for the custody of prop- erty, see Bailment; Defo31t, 3. REX. See King. RHODIAN LAW. S6e Maritime Law. The Rhodians were the earliest people that created, digested, and promulgated a system of marine law. Their laws concerning navigation were received at Athens, in the islands of the iEgean sea, and through- out the coastof the Mediterranean, as partof the law of nations. One title in the Pandects of the Roman law contains all the fragments extant of the code of the Rhodians; their laws, by recognition of Augustus and Antoninus, becoming rules of decision among the Romans in all maritime cases in which they were not contrary to their own laws.'* In these fragments is stated the modern law of jettison, average, and contribution, as distinctly as in any recent tex^book. . The Rhodians possessed a flourishing commerce at least one thousand years be- fore the Christian era. Their laws were probably founded upon usages which were themselves of long standing.* RICE. See Grain. RICHARD ROE. See Doe. RIDER. A clause added to a bill pend- ing before a legislative body after it has been reported from committee. Amendments are sometimes made to bUls in Parlia- ment after third reading. It a new clause be added it is done by tacking on a separate piece of parchment called a "rider."* RIDICULE. See Libel, 5. RIFLE-SHOOTING. See Science; Shooting Mark. RIEN. L. F. Nothing. Rien arrere or en arrere. Nothing back. A plea denying that rent is due. Rien per descent. Nothing by inherit- ance ; no assets by descent. the minister were without information that the offer of a reward had been revoked. The claimant died pendente lite. He had been paid $10,000 for the infor- mation as to the identity of Surrat, but later filed a petition in the court of claims to recover 816,000, the balance. he alleged to be due him on account of the " apprehension." 1 Pierson v. Morch, 62 N. Y. 603 (1880). See generaUy Huthsing v. Bousquet, 2 McCrary, 153 (1881); Dunham V. StockbridgS, 133 Mass. 233 (1883); 35 Cent. Law J. .3J1-24 (1887), Eng. cases; 6 Cr. Law Mag. 666-83 (1888;, cases. a3Kent, 4-5, 233; 17 F. R. 26L s 1 Parsons, Mar. Law, 6. < 1 Bl. Com. 188. EIGHT 90i ElfiHT E.IGHT.1 1, adj. Direct, nearest; lineal; legal. " Eight heirs, " in a will, was held to mean children. ' A limitation to one and his " right heirs " is the same as to his "heirs" sifnply; and a limitation di- rectly to the "right heirs " of one carries a fee, with- out the addition of the words "and his heirs." ^ To limit an estate to one's " right hejr," excepting A, who actually is that heir, is palpably inconsistent.'' 3, n. (1) There can be no more uncertain rule of action than that which is furnished by an intention to do "right." How or by whom is .the right to be ascertained? What is right in a particular case? Archbishop Whateley says : " That which is conformable to the supreme will is absolutely right, and is called right simply, without reference to a specific end. The opposite of right is wrong. " This announces a standard of right, but it gives no practical aid. What is or what may be right depends upon many circumstances. The principle is impracticable as a rule of action to be administered by the coui-ts. There is no standard known to us by which we are able to say that it is wrong, for ex- ample, for a person not to pay a debt from which he has been discharged by decree of a bankrupt court. ^ ' Moral right and legal right are not always synonymous.6 (3) A right in any valuable sense can only be that which the law secures to its possessor, by requiring others to respect it, and to ab- stain from its violation. - Rights, then, are the offspring of the law; they are born of legal restraints; by these restraints every man may be protected in their enjoyment within the prescribed limits ; without them possessions must be obtained and defended by cunning and force. ' An enforceable claim or title to any sub- ject-matter whatever: either to possess and enjoy a tangible thing, or to do some act, pursue a course, enjoy a means of happiness^ or be exempt from any cause of annoj-ance; also, one's claim to something out of j)osses- sion ; and, also, a power, prerogative, or priv- ' iV. S. riht: L. reclus, sti-aight, ruled. > Ballentine v. Wood, 4J N. J. E. B57 (1886). » 1 Washb. Real Prop. *5r, ' Minot V. Harris, 138 Mass. 589 (1883); 38 Pa. 431, 438. = Allen V. Ferguson, 18 Wall. 4(18(3), Hunt, J. • Commonwealth v. McDufEy, 186 Mass. 469 (1879). ' Cooley,'Princ. Const. Law, 226. ilege, as, when the word is applied to a cor- poration.! Eight, as in " right of trial by jury," is seldom used in the sense of law. It is to be given its primary and natural meaning, unless there is something which clearly indicates its use in a dilTerent sense.* -The rights of persons that are commended to be ob- served by the municipal law are such as are due from every citizen, Usually called civil " duties; " and, such as belong to him, which is the more popular accepta- tion of the term " rights." Both may be comprised under the latter division, for all social duties are rela- tive: due from, one And to another pei^on.* Those rights which concern and are an- nexed to the persons of men are called rights of persons; such as a man maj* acquire over external objects, rights of (to) things.* The primary rights are the rights of personal secu- rity, personal liberty, and private property; ^ and, the free exercise and enjoyment of religious profession and belief.^ See Duty, 1 ; Obligation, 1. Compare Droit; Jus. Absolute rights. Such rights as apper- tain and belong to particular men, merely as individuals or single persons ; such rights as would belong to their persons merely in a state of nature [whence called natural rights], and which every man is entitled to enjoy, whether out of society or in it. Rela- tive Tights. Eights incident to individuals as members of society, standing in various relations to each other.' Human municipal laws concern social or relative rights and duties, which result from, and are posterior to, the formation of states and societies; the primary end of this being to maintain and regulate absolute rights, to harmonize them with relative rights and duties. These absolute rights are: personal security, personal liberty, and private property,' qq. v. The Constitution does not mean that all persons have an absolute " right to life, libertj'. and the en- joyment of the gains of theirown industry." Each of these rights is held in subordination to the right of society. 8 Bill of rights; declaration of rights. The formal declaration of popular rights wliich accompanies the constitutions of the several States and, in a sense, that of the United States. , See Magna Charta. Declares and sets forth the restrictions which the people in their sovereign capacity (or, in the case of ' [People V. Dikeman, 7 How. Pr. 130 (1858). 2 State V. Worden, 40 Conn. 304 (1878). . ' 1 Bl. Com. 1S3. «1BI. Com. 122; 8 id. 1. "IBLCom. 141. « 2 Kent, 34. ' 1 Bl. Com. 133-24; 28 Barb. 829. 8 State V. Addington, 12 Mo. Ap. 217 (1882). RIGHT 905 RIGHT the United States, the individual States) have impbsed upon their agents — the respective governments. In reality, contains restrictions upon the majorities who choose persons to fill the departments of government. The purpose is to protect the reserved rights. The bill of rights accompanying the national Constitution is found in the amendments thereto,' g. v. For the better security of the rights of lite, liberty, and property it was deemed essential that the funda- mental principles of free government should be set down in a few plain, clear, and intelligible proposi- tions, for the better guidance and control, both of legislatoi-s and magistrates. . The general purpose was to assert and maintain the great rights of English subjects, as they had been maintained by the ancient laws, and the actual enjoyment of civil rights under them.' The purpose of the Declaration of Rights was to announce great and fundamental principles, to govern the actions of those who make and those who admin- ister the law, rather than to establish precise and posi- tive rules ef action. ^ Civil right. (1) A right accorded to every member of a distinct community or nation. Political right. A right exercisable in the administration of government. " Political rights," which consist in the power to participate, directly or indirectly, in the establish- ment or management of government, are defined by the constitutions. " Civil rights " have no relation to the establishment, support, or management of the government; they consist in the power of acquiring and enjoying property, of exercising paternal and marital powers, and the like. An alien has no political rights, but many, if not all, civil rights.'' (2) Such right as belongs to all the citizens of a State or of the United States. As re- ferring to the latter class, these rights were either created or extended by the Xlllth and XIV th Amendments, and secured by the fol- lowing Civil Eights Acts: Act of April 9, 1888 (14 St. L. 37) provides that " All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without re- gard to any previous condition of slavery or servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedihgs for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, stat- ' 1 Shars. Bl. Com^ 124-25. 2 Jones V. Eobbins, 6 Gray, 343^4 (1837), Shaw, C. J. « Foster v. Morse, 133 Mass. 335 (1882), Morton, C. J. See also Orr v. Quimby, 54 N. H. 013-14 (1874). * [2 Bouviel-'s Law Diet. 597.] ute, ordinance, regulation, or custom, to the contrary notwithstanding," — § 1. The other nine sections of the act, known as the Civil Rights Bill of 1868, provided the means for protecting persons in the enjoyment of the rights conferred by the act. The act, held to be constitutional.' as an appropriate method of exercising the power conferred on Congress by the Xlllth Amendment, was replaced by the first section of the XIV th Amendment,— ratified July 88, 1868. But it was re-enacted, with modifications, in sec- tions 16, 17, 18. of the Enforcement Act, passed May 31, 1870 (16 St. L. 140, c. 114), a statute which is purely corrective in its character, intended to counteract and furnish redress against State laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified. The corrective character of this legislation is also preserved in the Revised Statutes — §§ 1977-79, 6510.= Act of March 1, 1875 (18 St. L. 330; 1 Sup. R. S. p. 148; known as Charles Sumner's bill), provides " That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoy- ment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or ■ water, theaters, and other places of public amuse- ment; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous con- dition of servitude," — § 1. For denying, aiding or inciting any violation of the foregoing section, the offender shall forfeit five hun- dred dollars to the aggrieved, be deemed guilty of a misdemeanor, and be finable five hundred to one thousand dollars, with imprisonment from thirty days to one year. The aggrieved may elect to sue for the penalty, or in debt, or proceed under his rights at common law or by State statutes. A judgment for the penalty or upon an indictment bars other remedies, — § 2. Jurisdiction is in the district and circuit courts, — § 3. 'No person possessing all other qualifications which may be prescribed by law shall be disqualified for service as a grand or petit juror in any court on account of race, color, or previous condition of servi- tude. Any oflScer charged with selecting or summoning jurors, who shall exclude or fail to sum- mons any citizen for the cause aforesaid, shall be guilty of a misdemeanor, and finable in a sum not exceeding one thousand dollars,— § 4. The Supreme Court may review the case, regardless of the sum in controversy,- § 5. On the fifteenth day of October, 1883, in deciding five difterent cases, since known as the Civil Riglita Cases, and which had been submitted at the October term of 1882, the Supreme Court, speaking by Mr. Jus- tice Bi-adley (Harlan, J., dissenting), held: That the first and Second sections of the act of 1875 are uncon- stitutional enactments as applied to the States, not being authorized by either the Xlllth or the XlVth Amendment That the XlVth Amendment is prohib- itory upon the States only, and the legislation author- ' United States v. Rhodes, 1 Abb. U. S. 29, 37, 56 (1866). Swayne, J. See Civil Rights Cases, 109 U. S. 22(1883). 2 Civil Rights Cases, 109 U. S. lfr-17 (1883). ' EIGHT 906 RIGHT ized to be adopted by Congress for enforcing it is not direct legislation on the matters respecting which the States are prohibited from making or enforcing cer- tain laws or doing certain acts, but is corrective legis- lation, such as may be "necessary or proper" for counteracting and redressing the effeotof such laws or actions. That the Xinth Amendment relates solely to slavery and involuntary servitude — which it abol- ished; and, although, by its reflex action, it establishes universal freedom, and although Congress may prQb- ably pass laws directly enforcing its provisions, yet such legislative power does not extend beyond the subject of slavery and its incidents; and the denial, by individuals, of equal accommodations in inns, pub- lic conveyances, and places of public amusement im- poses no badge of slavery or involuntary servitude, but, at most, infringes rights which are protected from State aggression by the XEVth Amendment. ^ The court, arguendo, said that the act of 1875 " steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals toward each other, and imposes sanctions for the enforce- ment of these rules, without referring in-auy manner to any supposed action of the State or its authorities. . . If the laws of a State make any unjust discrimi- nation, amenable to the prohibitions of the XlVth Amendment, Congress has full power to afford a rem- edy under that Amendment and in accordance with it. . . Civil rights, such as are guaranteed by the Con^ stitutlon against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judi- cial or executive proceedings. . If the wrongful act of an individual is not sanctioned in some way by the State, the rights of the injured party remain in full force, and may presumably be vindicated by re- sort to the laws of the State for redress." ^ Some of the States have laws embodying the sub- stance (if not couched -in the identical language) of the first and second sections of the act of 1875, as to the subject-matter of which Congress had no legislative power in the first instance, not being legislation cor- rective of enactments, or actions on the part of a State or States. Thus, for example, the Civil Rights Act of April 9j 1873, of New York provides that: No citizen of this State shdll, by reason of race, color, or previous condition of servitude, be excepted or excliided from the full and equal enjoyment of any accommodation, adrantage, facility or privilege furnished by innkeep- ers or common carriers, or by owners, managers or lessees of theaters or other places of enjoyment; by teachers and officers of common schools and public in- stitutions of learning, or by cemetery associations. Ttie violation of this section is a misdemeanor punish- able by a fine of not less than fifty nor more than five hundred dollars ^ See further Citizen, Amendments, p. 183; School; Woman. , Compare IjIbektt, Civil. ' Civil Eights Cases, 100 U. S. 3, 8-26 (1883). Dissent- ing opinion by Harlan, J., ib. 26-62. 2 Ibid, 14, 17, 25. See also United States v. Buntin, 10 F. B. 730, 738 (1682), cases. 3 See Penn, Act 19 May, 1887 (P. L. 72); 7 Alb. Law J. 355 (1873); 8 id. 3 (1873). Common, rigbt. When it is said that a franchise is a privilege which does not be- long, to individuals by " common riglif," the meaning is that the privilege is not a right which pertains to the citizens by common law. " This common law of England is sometimes called right, sometimes common right, and sometimes com- mon justice." 1 In her own riglit- Added to the words " feme- sole owner," merely repeats one of the necessary qualities of ownership. The phrase neither enlarges, abridges, nor qualifies the meaning of the word "owner." There is no greater necessity for its use than for the addition of " absolute " to " fee-simple." " Iiegal right. A right which is recog- nized and protected by a court of common law. Equitable right. A right recognized and protected by a court of equity.* Petition of rigM and of rigM. See under Pe- tition. Private and public right. See Jus,~ Privatum, etc. Reserved right. Rights withheld from a representative, or from a government; as, the rights retained by the States or the peo- ple, at the creation of the national govern- ment. See Bill of Bights; State, 3 (3). Kight of way. See Wat. Rightful. Possessing right under the law ; authoi'ized by law : as, the rightful execu- tor, heir. Vested right. Something more than such a mere expectation as may be based upon an anticipated continuance of the present gen- eral laws; a title, legal or equitable, to the present or future enforcement of a demand, or a legal exemption of a demand made by another.* It is only when rights have become vested under laws that the citizen can claim a protection to them as property. Hights do not vest until all the conditions of the law have been fulfilled with exactitude during its continuance, or a direct engagement has been made, limiting legislative power over and producing an obligation. 6 * When a right has arisen upon a contract or a trans- action in the nature of a contract authorized by stat- ute, and has been so far perfected that nothing remains ' Spring Valley Water Works v. Schottler, 63 Cal. 107 (1882), Thornton, J., quoting Coke's Inst. 142 a. 'Dow V. Gould, &c. Mining Co., 31 Cal.- 649 (1867). sSeelStory, Eq. §25. * Cooley, Const. Lim. 445. * "State Bank of Ohio v. Knoop, 16 How. 408 (1868), Campbell, J. ; Morton v. Nebraska, 31 Wall. 660, 673 (1874). RING 907 RIPARIAN to be done by the party asserting it, the repeal of the statute does not affect it or an action for its enforce- ment. It has become a vested right, which stands in- dependent of the statute.' Wnit of right. In case a right of possession is barred by a recovery upon the merits in a possessory action, or by the statute of limitations, a claimant in fee-simple may have a mere writ of right,— the highest writ in the law." Abolished In England by statute of 3 and 4 Wm. IV (183.S), c. 27, and by the Common Law Procedure Act of 1860, 1 26. RING. 1. See Seal, 1. 2. Persons united with the view of exer- cising control over political affairs, or over commercial or stock-exchange transactions^ for selfish ends; a combination for illegit- imate purposes; a clique.' See Combina- tion, 3. MNGENG BELLS. See Noise; Nui- sance. RINGING UP. This custom, in vogue among brokers and commission merchants, is founded in commercial convenience, and, when not adopted to promote a gambling transaction, is lawful.* RINK. See Exhibition. RIOT.5 Where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel ; as, if they beat a man, or do other unlawful act with force and violence, or even do a lawful act, as, removing a nuisance, in a violent and tumultuous manner.6 A tumultuous disturbance of the peace, by three persons or more assembling together of their own authority, with an intent mut- ually to assist one another, against any one who shall oppose them, in the execution of some enterprise of a private nature, and afterward actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended was of itself lawful or unlawful.'' ' Pacific Mail Steamship Co. v. JoliCfe, 2 Wall. 450, 457 (1864), Field, J. 2 3 BI. Com. 193. See Green v. Liter, 8 Cranoh, 242 (1814). ' [Worcester's Diet. •Ward V. Vosburgh, 31 F. E. 13 (1887); Clarke «. Foss, 7 Biss. 548 (1878). » F. riote, a brawling, strife. • 4 Bl. Com. 146. See also Whitley v. State, 66 Ga. 656 (1881). ' 1 Hawkins, PI. C, oh. 28, p. 513. See also State v. Eussel, 45 N. H. 84 (1863). There must be an unlawful assembly; then, what- ever act will make a trespass, will constitute a riot.' If persons who have met for a lawful purpose after- ward form and execute an unlawful intention, this may be sufScient; and the unlawful act is evidence of the unlawful intent." Kiot Act. Statute of Geo. I (1714), c. 5, for the suppression of riots. Provides that if any twelve per- sons a:-e unlawfully assembled to the disturbance of the peace, any justice of the peace, sheriff, or mayor of a town may, if he shall think proper, command them by proclamation to disperse. Then, if they con- temn his order and continue together for one hour afterward, such contempt shall be a felony.^ The Eiot Act was passed by reason of the tumult attendant upon theaccession of George I to the throne. The act made it a felony to unlawfully assemble and demolish any church or dwelling-house; and provided that the inhabitants of the district should be liable for all damage done. The laws upon the subject were consolidated in IBS", by 7 and 8 of George IV, c. 31. The principle of the original act has been adopted in the legislation of Pennsylvania.* The right to reimbursement for damages caused by a mob or riotous assemblage is not founded upon con- tract. It is a statutory right, and can be withdrawn or limited at the pleasure of the legislature of a State. Municipal corporations are invested with authority to establish a police to guard against disturbances: and it is their duty to exercise their authority so as to pre- vent violence from any cause, particularly from mobs and riotous assemblages. It has therefore been gen- erally considered as a just burden to require them to make good any loss sustained from the acts of such assemblages which they should have repressed. The imposition has been supposed to create, in the holders of property liable to taxation, an interest to discourage and prevent movements tending to such violent pro- ceedings. But, however considered, the imposition is simply a measure of legislative policy, in no respect resting upon contract, and subject, like all other measures of policy, to any change the legislature may see fit to make, either in the extent of the liability or in the means of its enforcement.' See Assembly, Unlawful; Conspiracy; Mob; Eoni; Treason. RIPABIAW.6 Relating to the bank of a stream or other water — river, lake, or sea: as, riparian — proprietors, rights, States. ' The Queen v. Soley, 11 Mod. 'US (1708), Holt, C. J. 'United States v. McFarland, 1 Cranch, C. C. 140 (1803). See also, generally. Commonwealth v. Daley, 4 Pa. Law J. 150 (1844); Commonwealth o. Hare, ib. 257 (1841); Charge of King, P. J., ib. 29: 2 Clark, 275; People V. Judson (Astor Place case), 11 Daly, 1, 17, 63 (1849); State v. Jenkins, 14 Richard L. 215 (1867): 94 Am. Deo. 1.36-38, cases. s [4 Bl. Com. 145.. « County of Allegheny v. Gibson, 90 Pa. 405 (1879), Paxson, J.- Eailroad riot of July 21-4, 1877. ' Louisiana v. Mayor of New Orleans, 109 U. S. 287- 88 (188.3), Field, J. • L. ripa, shore of a river. RIPRAP 908 ROAD Eiparian proprietor. An owner of land bounded generally upon a stream of water, and, as such, having a qualified property in the soil ^o the thread of the stream, with the privileges annexed thereto by law.i Supra riparian. Concerning water- rights higher up the stream than <)ther sim- ilar rights. Where opposite banks of unnavigable streams be- long to different persons, the stream and the bed thereof shall be comQion to both.* The owner of lanti bounded by a navigable river has certain riparian rights, whether his title extends ~ to the middle. of the stream or not. Among them are free access to the navigable part of the stream, and the right to make a landing, wharf, or pier for his own use or for the use of the public. These, being valu- able property rights, may be taken by the public after due compensation is made or secured. They are en- joyed subject to such general laws as the legislature may prescribe for tbe protection of the public right in the river as a navigable stream.^ In applying the rule, that the line between opposite shore-owners is the thread of the current, to non-navi- gable pondg and lakes, because of the practical diffi- culties encountered, an exception is made, and a grant is held to extend only to the water's edge.^ A grant by a government to a private individual of land upon a navigable river is limited to the shore; a grant to a political community extends to the middle of the stream.^ See Ahution; Aqca, Currit.etc. ; Fishery; Ice; Lake; Mill, 1; Water. RIPEAP. A species of wall; stone laid into a kind of shingling, upon the slope of an embankment, at such points as are likely to be washed by water.'' RISE. Danger, hazard, peril; the prob- ability that an insurer may be called upon to pay a loss, and the anticipated cause of that loss. Spoken of as fire, life, and marine risks. Builder's risk. The danger to an insured subject from work being done by mechanics in building, altering, or repairing; specific- ' Bardwell v. Ames, 33 Pick. 355 (1839), Shaw, C. J. 2 E. S. § 3476. 2 Yates r. Milwaukee, 10 Wall. 497, B04-7 (1870), cases, Miller, J, See also Weber v. Harbor Commissioners of California, 18 id. 63 (1873), Field, J.; Von Dolsen t>. Mayor, &c. of New York, 17 F. R. 817, 819 (1883), cases; 109 U. S. 682. • State of Indiana v. Milk, 11 Biss. 206 (1882), oases, Gresham, J. » Barney v. City of Keokuk, 94 U. S. 321, 336 (1876), cases, Bradley, J. 'Wood V.Vermont Central E. Co., 24 Vt. 810i ally, extraordinary danger incident to mate- rial changes in progress. Where there is no increase of risk, notice to the in- surer may not be required.^ Risks of navigation. Is more compre- hensive than ■■perils of navigation." ^ See further Dangees ; Peeil. i See also Insurance; Loss, 2; Carrier. RIVER. A body of flowing water of no specific dimensions — larger than a brook or rivulet, less than a sea; a running stream pent on each side bj- walls or banks.s A considerable stream of water that has a current of its own flowing from higher level, which constitutes its source, to its mouth where it debouches.'' Banks of rivers are the boundaries which contain their waters at their highest flow, making the bed of the river. 5 Elvers have banks, shores, waters, and a bed. Though naturally navigable, even for boats and rafts, rivers and the smaller streams are often regarded as public rights, subject to legislative control, aS the means of creating power for operating mills and ma- chinei'y, or as furnishing supplies of flsh, even where private persons own the banks and soil under the water.** In many States, the public title to the beds and shores of navigable streams is confined to tide-water; in Federal matters, to navigability.' Proprietors bordering upon streams not navigable, unless unrestrained by the terms of their grants, hold to the center of the stream ; proprietors on navigable rivers, under titles from the United States, to the stream. If the latter hold to the center Jine, the pub- lic have an easement for purposes of a highway.*" See- Along; AqoA; Bed, 1; Boundary; Commerce; Dangers; Fishery; Ice; Levee; Meander; Navi- gable; Peril; Property, Qualified; Eipaeian; Sea; Water-mark. ROAD. 1. An open way or public pas- sage; ground appropriated for travel. Ge- nerically, includes highway, street, lane.s ' James v. Lycoming Fire Ins. Co., 4 Cliff. 275-84 (1374), cases, Clifford, J. On expert evidence as to in- crease of, see 19 Am. Law Eev. 701-13 (1885), cases. * Pitcher v. Hennessey, 48 N. Y. 419 (1873). ' Alabama v. Georgia, 23 How. 513 (1859), Woolrych, Justice. < The Garden City, 36 F. E. 773 (1886), Brown, J. See also 14 N. H. 477; 2 Ohio, 497; 8 Gratt. 492; 37 U. C, Q. B. .59. " Howard v. IngersoU, 13 How. 415 (1861). » Holyoke Water-power Co. u. Lyman, 15 Wall. 506-7 (1872), Clifford, J. ' Barney v. Keokuk, 94 U. S. 336-43 (1876). cases. « St. Paul, &c. E. Co. V. Schurmeir, 7 Wall. 287 (1868); Banks v. Ogden, 2 id. 08 (1864). » [Manchester. D. Hartford, 30 Conn. 120 (1867); Web- ster. ROAD 909 ROBBERY Has never beer defined to mean land: it is diffloult to find a definition whicli does not include the se^se of " way," though the latter word is more generic, referring to many things besides roads. " Koad " is generally applied to a highway, street, or lane, often to a path-way or private way, yet strictly it means only one particular kind of way. ' May refer to a traveled place or track, without re- gard to the nature of the user, or to the question of any right thereto in the public' By-road. An obscure or neighborhood road, not used to a great extent by the pub- lic, yet so far a public road that the public have, of right, free access to it at all times.' Plank-road ; turnpike road. See Turn- pike. Private road. A road used by private persons only.* A road must be deemed " private " when its control is not under a public officer, and the public are not botmd to keep it in order, and where an individual might obstruct its use without being guilty of any public offense." Public road. A road dedicated to and kept up by the public* Since "road" and "street" mean ways open to public use, the vrord " public" is un- necessary, even in an indictment.^ Public roads tor travel are often established by ap- plication to the court of quarter sessions, \yith view, report, and confirmation. Once established, they pass into the control and supervision of the township, county, or other local authorities, and are kept in re- pair by local taxation.^ By the common law, the fee of the soil remains in the original owner, with the use of the road in the public. If vacated by the public, he resumes exclusive posses- sion of the ground. While used as a highway, he is entitled to the timber and grass upon the surface, and to all minerals below it. He may sue in trespass one who obstructs the road. But the law is otherwise when he absolutely parts with the fee.' Persons authorized to make or improve highways are not answerable for consequential damages, if they act within their jurisdiction and with care and skill. This doctrine is almost universally received. The rea- son is, the State holds its highways in trust for the 1 Kister v. Eeeser, 98 Pa. 4 (1831), Turnkey, J. See also Mining Co. v. Kennedy, 3 Nev. 373 (1867), Beatty, C. J.; Heiple v. East Portland, 13 Oreg. 103 (1885), « Hart V. Eed Cedar, 63 Wis. 638 (1885). » Wood i: Hurd, 34 N. J. L. 89 (1869), Van Syokel, J.; Yeomans v. Ridgewood, 46 id. 509 (1884). * [Witham v. Osbum, 4 Oreg. 324 (1878). 'Varner v. Martin, 81 W. Va. 563-65 (1883), Green, J. « Mills V. State, SO Ala. 88 (1853); 30 id. 531. ' Homer v. State, 49 Mdj 288 (1878): 3 Yeates, 421 ; 4 S. See generally 4 South. Law Eev. 198-837 (1878), cases; 23 How. 117; 3 Dill. 412; 23 111." 800; 64 Me. 263 25 Barb. 486; 11 Am. B. 751; 53 Mo. 17; 89 N. J. E. 811 52 N. Y. 621; 64 id. 314; 21 Wis. 44; 2 Bedf. Eailr. 504 Jones, Eailr. §§ 146-87, cases. * Hadley, Roman Law, 43-48. ' « 3 Columbia Jurist, 74 (1886); 1 Pomeroy, Eq. §§ 14, 56; Hare, Qontr., Index. See "The Boman Law in Bracton," 1 Law Quar. Rev. 425-41 (1886); " The Boman Bar," 15 Alb. Law J. 405 (1877). ROUT 911 RULE ROUT. Where three or roore persons meet to do an unlawful act upon a common quarrel, as, forcibly breaking down fences upon a right claimed of common or of way, and make some advances toward it.i A disturbance of the peace by persons as- sembling together with an intent to do a thing which, if executed, will make them rioters, and actually making a motion toward the execution thereof. 2 Compare Asseubly, Unlawful; Riot. ROUTE. A way used in going from one place to another. Power to change the route or location of a railroad does not include power to change the termini; they are excluded from the common acceptation of the word." See Adopt, 2; Along; Direct, 1; Maii/-roijte; Rail- road. ROUTINE. See Course, 3. ROYALTY. A prerogative or superior- ity of the king ; also, the amount due to the lessor of a mine.* See Mines. In modern usage, a sum- paid by one who uses the patent of another, at a certain rate for each article manufactured ; 5 also, the sum paid per volume by a publisher who prints and sells a book which another has composed and copyrighted. RULE. 1, V. (1) To hold, lay down, de- cide : as, to rule testimony admissible as evi- dence, to rule on a proposition of law. Overrule. To rule against, reject, refuse to allow or receive : as, to overrule a motion, a plea, an exception. Also, for a court to decide a question of law contrary to a decision in a former case. Whence overruled case. Compare Reverse.' (2) To make or enter a formal order or di- rection. 2, n. Such order or mandate itself. Com- pare Motion, 3. A court, or its officer, grants a rule to show cause, to make a return, to file a declaration or a plea, to make a reference, to strike off an entry, etc. Peremptory rule. An order which is to be observed promptly and fully, without argument contra. > 4 Bl. Com. 146. ' Hawkins, PI. Cr. ch. 65, 5 14. ' Attorney-General v. West Wisconsin R. Co., 36 Wis. 494 (1874). "Sn route," see M'Lean v. United States, 17 Ct. CI. 90 (1881). < See 1 Bl. Com. 294. ' [Webster's Diet. Rule absolute. Said of a rule to show cause which has been heard and a peremp- tory order therein made that a party do as required in the rule. Rule nisi or rule to show cause. A direction that a party do, or be permitted to do, a specified act unless (nisi) a legal reason be shown or appears for his not doing it. A day is appointed for hearing a rule to show cause why the thing requested should not be done. At this hearing, after argument, and, perhaps, the considera- tion of testimony, the rule is either discharged or made absolute, according as the objection is or is not sufficient in law.* Rule of course. A rule granted by an officer of a court, as a matter of routine, and without application being first made to a judge of the court itself. Called also of- fice rule, and, formerly, side-bar rule. Rule day. A day designated under a rule of court for the performance of some duty required of a litigant. Rule of court. An order made by a court of record. (1) A special order in a par- ticular case. See Reference. (3) A general requirement, usually in writing, applicable to all cases of a class. General rules of court. Standing orders, made by a court, to regulate its general prac- tice. 2 Express power to establish rules of court>has been confen-ed by statute upon courts of record. At the same time, such courts have an inherent right to make rules to regulate their practice and to expedite the determination of suits and other proceedings, the rules being consistent with the constitution and laws of the State. Otherwise, the public business could not be dispatched. s Regularity, justice, and dispatch are the objects of rules of court. They are indispensable to routine business.* But they cannot abridge a right secured by positive law: as, alter the general law of evidence,' or the statutory manner of serving a notice; nor add terms to an arbitration law;" nor supersede a special rule > See Stearns v. Barrett, 1 Mas. 162-63 (1816). » See Owens v. Ranstead, 22 111. 173 (1859); Deming v. Foster, 42 N. H. 178 (1860); Dougherty v. Thayer, 78 id. 172 (1875). 'Vanatta v. Anderson, 3 Binn. 423 (1811); Barry v. Randolph, ib. 877 (1811); Fullerton 11. Bank of United States, 1 Pet. •613(1828); Jones v. Rittenhouse, 87 Ind. 350 (1888); 43 Cal. 179; 22 Dl. 173; 18 La. An. 703; 12 Md. 493; 5 Pick. 612; 9 Oreg. 121 ; 26 Pa. 516. < Magill's Appeal, 59 Pa. 430 (1868). » Patterson v. Winn, 5 Pet. *274 (1831); 5 W. & S. Wi. ' Hickemell v. First Nat. Bank of Carlisle, 68 Pa. 147 US. &E. 131; 3 id. 850. .RULE 912 EUMOE where that is contemplated; ' nor supersede a stat- ute;* nor affect iurisdiction. 8 In one case, an imper- fection in a statute was remedied by means of a rule.^ It is not essential that a rule of practice be estab- lished by a written order: it may, be "by a uniform mode of proceeding.^ A rule of court must operate prospectively." An attorney is bound to tnow the rules of his own court.^ The expediency of a rule is determined by the sound dlscretionof the court by whose authority it is estab- lished. Only where wrong is manifest will that dis- cretion be interfered with.* Discretion in applying a rule to a particular case must be authorized by the rule itself.* For the sake of certainty, no departure should be made from a plain, written, express rule.'" The court is the best judge of its own rules; an ap- pellate court will not reverse for a construction not palpably erroneous." Many regulations of practice introduced into Eng- land by statute have been the objects of rules of court in this country.'* The court of common pleas of IPhiladelphia had written rules as early as 1788. Collections were pub- lished in Western Pennsylvania in 1791, 1796, and 1811.'* The Judiciiiry Act of 1789, § 17, confers authority on the Federal courts to establish all rules necessary for the ordinary conduct of their business, not repugnant to the laws of the United States. The act empowera the Supreme Court to regulate the practice of, the dis- trict and circuit courts; and empowers those courts themselves to make such regulations of their practice as may be necessary to advance justice and to prevent delays.'* Like power la conferred upon the court of claims.'^ Kules in admiralty are promulgated in accordance with a special statute.'" ' RingwaltD. Brindle, 69 Pa. 54 (1868); contra, Dough- erty V. Thayer, 78 id. 178 C1875). * Gates V. Mack, 6 Col. 403 (1882). * The St. Lawrence, 1 Black, 537 (1861). 4 Cochran v. Loring, 17 Ohio, 409 (1848). 'Duncan v. United States, 7 Pet. *461 (183.S); contra, Owens V. Eanstead, 22 111. 178 (1859). See also State v. Unsley, 10 Iowa, 150-61 (1869). « Dewey v. Humphrey, 6 Pick. 187 (1827); 11 S. & E. 131. ' ' Dearborn v. Dearborn, 15 Mass. 319 (1818). s Gannon u Fritz, 79 Pa. 307 (1875) ; 7 Watts, 64. •Thompson v. Hatch, 3 Pick. 516 (1826) ; 4 id. 189; 5 M. 187; 22 111. 173; 22 Md. 295; 2 Dak. 467. '» Alexanderu Alexander, 5 Pa. 277 (1847); 56 id. 183; 59 id. 480; 30 id. 272; 18 La. An. 703. ' 1 Coleman v. Nantz, 63 Pa. 178 (1869), cases. '2 Vanatta v. Anderson, 8 Binn. 417 (1811); 35 Pa. 416. "Barry v. Randolph, 3 Binn. 277 (1811); 2 Brown, App. 1-14; Wilkins v. Anderson, 11 Pa. 399 (1849); Fleming c. Beck, 48 id. 309 (1864). ■ '*R. S. 11917-18, cases. See Rules of the Supreme .Court, announced Jan. 7, 1884, in 108 U. S. 573-92, in- dex, 626. '»R. S. §1070. '«5St. L. 518: E. S. §917; 118U. S. 619. The equity rules prescribed by the Supreme Court bind all the Federal courts.' The rules of the high court of chancery in England are of force as analogies.* But Congress has not empowered the circuit and district courts to make rules touching the mode of taking testimony.* 3. A canon ; a principle : as, a rule of con- struction, a case governed by a certain rule, a rule established by or deducible from the decisions or authorities; a rule of law, of practice or procedure, of evidence or of pleading, qq. v. Bule of property. An established prin- ciple regulating the ownership and transfer of property. A decision with respect to the law under which property is held, enjoyed, and transferred, is some- times said to create or indicate the " rule of prop- erty." where a course of decisions, whether founded upon statutes or not, have become rules of property as laid down by the highest courts of the state, by which is , meant the rules governing the descent, transfer, or sale of property, and the rules which- affect the title and possession thereof, they are to be treated, by the Federal courts, as the laws of that state.* Bules and regulations. Power " to establish a uniform rule of naturalization," " to make all needful rules and regulations respecting . property be- longing to the United^ States," "to regulate com- merce," gives plehary control over those subjects. But power to make rules and regulations on a partic- ular subject is, in cases, lim'ited to the mode and form, the time and circumstance, and not to the substance.^ See Regulate. RUMOR. Popular report. In England, and in some of the States, it has been held'that in an action of slander, under the general issue, the defendant may prove, in mitigation of dam- ages, that when the words were uttered a general rumor or report existed in the neighborhood that the plaintiff was guilty of the offense charged. In other States, it has been held that such testimony is inad missible.* Where it appeared that a libelous article was taken from a neighboring sheet as news, with no cir- cumstance of aggravation or malice, it was held that ' M'Donald v. Smalley, 1 Pet. •625 (1828); Hornbuckle ■u.iToombs, 18 Wall. 662 (1873). * Rhode Island v. Massachusetts, 14 Pet. 256 (1840); Pennsylvania v. Wheeling, &c. Bridge Co., 18 How. 460 (1865;; Every v. Candee, 17 Blatch. 303 (1879). sEandall v. Venable, 17 F. R. 163 (1883). See gener- ally, as to rules of court, 35 Am. Law Reg. 188-90 (1886), cases. « Bucher v. Cheshire E. Co., 125 U. S. 00 (1888), Mil- ler, J. » Hamilton v. Dillin, 31 Wall. 93 (1874), Bradley, J. * Pease u Shippen, 80 Pa. 514-15 (1876); cases; 53 id. 346, 431. RUN 913 SAIL the plaintiff was entitled to compensation for the injury suffered, and the manner of the publication could be considered either in mitigation or aggrava- tion.^ EUIf. 1. To stroll without restraint or confinement; as, for an animal '!to run at large." See At Larqe. 3. To pass, spread, communicate ; as, in a statute providing for the payment of dam- ^ages by a person who set a fire that "run upon the land" of another. 2 3. To continue to be valid or binding, to possess legal efiicacy : a bond or a lease may " run for a term " of years, and a note for days or months. 4. A covenant " runs with land'" when the liability to perform it, or the right to take advantage of it, passes to the assignee or pur- chaser. 3 See Covenant, Real. 5. The statute of limitations "begins to run " wlien the cause of action first becomes subject to its operation. And when the statute has once begun, it continues to run until its effect is complete.* See Limitation, 3; Tempus, Nullum, etc. 6. Warrants of commitment and indict- ment "run in the name" of a State when they bear upon their face the name of the proper State as the nominal actor or prosecu- tor. See further PEOPI.E. Running account. See Account, 1. Running at large. See Run, 1. Riinning days. Sea Working Days. Running policy. See Insurance, Pol- icy of. Running water. See Aqua, Currit. s. S. As an abbreviation, is in common use for same, section, select, senate, senior, ses- sion or sessions, sheriff, southern, special. State or States, statute, superior, supreme, surrogate : S. B. Senate bill. S. C. Same case; select cases; supreme court. ' Edwards u. Kansas City Times Co., 33 F. R. 813 (18871. ' Ayer v. Starkey, 30 Conn. 306 (1861). = Spencer's Case, 1 Sm. L. C. 137-228, cases.- 5 Coke, 16 (1583); Willard v. Worsham, 76 Va. 396 (1882); Shaber V. St. Paul Water Co., 30 Minn. 182-83 (188-3). *Sohn V. Waterson, 17 Wall. 506 (1873); Croxall v. Shererd, 5 id. 289 (1866). (58) S. D. Southern district. See D, 3. S. J. 8eni(3r judge ; special judge. S. L. Session laws ; statute laws. S. P. Same principle ; supra protest. SS. Scilicet. See Scire, Scilicet. SABBATH. Sabbath and Sunday are used indiscriminately to denote the Christian Sabbath. 1 See Sunday. SiEVITIA. L. Raging, ferocity : fierce- ness, savageness, barbarity, cruelty, violence. In divorce legislation, personal violence inflicted or menaced, and affecting life or health; also, obscene and revolting inde- cencies.' SAFES. See Tool. SAFETY. See Police, 2 ; Welfare. SAID; AFORESAID. As employed in legal writings, convey certainty of reference. When a name, once introduced into a pleading, is repeated, the repetition must be by such a term of reference as will identify the person named in the latter instance as the one before named — as by " said," " aforesaid," or other term of similar import; other- wise the latter description will be ill for uncertainty. But when there are two or more antecedent persons or subjects to which the name may be referred, it is necessary to use '"first aforesaid," "last aforesaid," or other term of equivalent import.* " Said," in an entry, is a relative term, and refers to its next [nearest] antecedent."* But, in construing a will, there is no invariable rule which refers "said" to the last antecedent, if to so apply it would be at variance with the context." In an indictment, " said " will be referred to the next antecedent only when the meaning plainly re- quires it." See Such. SAIL. A stipulation in a charter-party that the vessel is " now sailed or about to sail with cargo," is a stipulation that she has her cargo on board and is ready to sail.' Sailing. Within the meaning of a char- ter-party, complete readiness for the ' sea, with an intention to proceed at once on the voyage. 8 If a ship quits her moorings and removes, though a short distance, being perfectly ready to proceed upon her voyage, and is detained by some subsequent occur- ' State V. Drake, 64 N. C. 591 (1870). 2 Briggs V. Briggs, 24 S. C. 380 (1885). » Gould, Plead. 78, cases. < Ellis V. Horine, 1 A. K. Marsh. "418 (1818). ' Healy v. Healy, 9 Irish Eq. 418 (1875). « Wilkinson v. State, 10 Ind. 373 (1858): 2 Kent, 555; .34 La. An. 829; 115 Mass. 544; 132 id. 665; 16 Op. Att.- Gen. 236; 10 East. 503. ' Davison v. Von Lingen, 113 U. S. 49 (1885). ' Bowen v. Hope Ins. Co., SO Pick. 278 (1838), Shaw, Chief Justice. SALARY 914 SALE rence, that is a sailing; otherwise, if at the time she quits her moorings and hoists sail slje is not in a con- dition to complete the voyage. ^ Some progress, though by a tow-boat, may be nec- essary.2 See Sea, At sea. Sailor. See Shipping. SALAKY.3 The per annum compensa- tion to men in official and in some other posi- tions.* In Indiana, there have been three modes of making compensation: by a "salary," as defined above; by *' wages,".which are compensation for services by the day, week, etc., as, of laborers, commissioners, and others; and by "fees," which are compensation for particular acts or services, as, of clerks, sheriffs, law- yers, physicians.* According to the most approved lexicographers, " salary " and " wages " are synonymous. Both mean, •' a sum of money periodically paid for services ren- dered." If there is any difference in the popular sense, it is in the application to more or less honorable services.^ See Compensation, 1; -Emolument; Fix, 3; Imfaib; Onus, Cum onere. SAL£. 1. A transmutation of property from one man to another in consideration of some price or recompense in value.^ Technically, a transfer of property in con- sideration of a price paid therefor in money. But it may not mean this." A transfer of the absolute or general prop- erty is a thing for a price in money, s A transfer of the absolute title to property for a certain agreed price. A contract be- tween two parties, one of whom acquires thereby a property in the thing sold, and tte other parts with it for a valuable considera- tion.i" A tx-ansfer of property for a fixed price in money or its equivalent.!' Property or money may be said to be the price of a service; but it can hardly be said that the service is the price of the property or money, or that the prop- 1 Pittegrew v. Pringle, 3 Barn. & Ad. 519 (1833), Teu- terden, C. J. ; Pedersen v. Pagenstecher, 32 F. E. 842 (1887), cases. = The Francesco Curro, 4 W. N. C. 416 (1877.) 8 From saZarmm, which in turn is from sal, salt — an article in which Boman soldiers were paid; that is, salt^money. ' Cowdin V. Huff, 10 Ind. 8S (1857), Perkins, J. ' Commonwealth ex rel. Wolfe v. Butler, 99 Pa. 642 (1882), Sharswood, C. J. «2B1. Com. 446,9. ' [Howard v. Harris, 8 Allen, 298 (1864), Bigelow, C. J. e Benjamin, Sales, § 1 ; 71 N. C. 455. » Story, Sales, § 1; 95 Pa. 158. '» Five Per Cent. Cases, 110 V. S. 478 (1884), Gray, J.; ib. 488. erty or money is sold to the person performing the service. 1 3. A contract for the transfer of property from one person to another, for a valuable consideration.^ A contract between parties, to give and to pass fights of property for money, — which the buyer pays or promises to pay to the seller for the thing bought and sold.s The essential idea is that of an agreement or meeting of minds by which a title passes frora one, and vests jn another.^ The view which seems to reconcile all uses of the word most satisfactorily is to regard a sale as a con- tract or agreement for transferring ownership, and not as the very transfer itself. It may then be applied to lands and rights ip action, as it daily is, as well as to chattels. This view also.supports the convenient ex- pressions " conditional," " executed " and " unexe- cuted " sales.^ To constitute a valid sale there must be: competent parties ; mutual assent ; a thing, the absolute or gen- eral property in which is transferred from the seller to the buyer; and a price in mone.y paid or promised." A commutation of goods for goods is an " ex- change." A transferring of goods for money is a " sale.*' ' In a "barter" the 'Consideration, instead of being paid in money, is paid in goods or merchandise sus- ceptible of a valuation.* "When a liquor-dealer furnishes liquor and receives in payment therefor pool-checks, which he has pre- viously sold, worth the price of the liquor, the trans- action is not a sale, but a barter.^ The difference between a "sale on credit" and a "bailment" may be illustra,ted thus: If I deposit wheat to be stored and kept for me, the property re- mains in me. But if I simply leave the grain and au- thorize the bailee to sell it for his own benefit and not as my agent, he to pay me the value when I demand it, the transaction is a sale on credit.^'* ^ Five Per Cent. Cases, ante. = 2 Kent, 468. " Williamson v. Berry, 8 How. 544 (1850), Wayne, J. < Butler V. Thomson, 92 U. S. 415 (1875), Hunt, J. « [8 Abbott, Law Die. 442. See' also 18 F. E. 541; 54 Ala. 268; 37 Ark. 418; 26 Conn. 31; 1 Ind. 69; 27 Iowa, 173; 71 id. 217; 107 Mass. 550; 10 Mich. 281; 20 Mo. 257; 5 Neb. 269; 83 N. C. 670; 35 N. H. 443; 38 Pa. 398; '85 id. 163; 44 Wis. 691. "Benj. Sales, § 1; Gardner «. Lane, 12 Allen, 4S (1866), Bigelow, C. J. Transactions resembling sales, 27 Cent. Law J. 136-38 (1888), cases. ' 2 Bl. Com. 446. e Commonwealth v. Davis, 12 Bush, 241 (1876); Cooper u State, 37 Ark. 418 (1881). • Massey v. State, 74 Ind. 368 (1881). See also Marmot V. State, 48 id. 21 (1874); Eiokart v. People, 79 111. 85 (1875); State v. Mercer, 32 Iowa, 405 (1871); Seim v. State, 55 Md. 666(1880); Commonwep,lth «. Smith, 102 Mass. 144 (1869); 8 Allen, 297; 30 Ala. 591. »» McCabe v. McKinstry, 5 Dill. 515 (1878), Dillon, J, See SALE 915 SALE Absolute sale. A sale which has been completed or perfected ; a sale outright. Conditional sale. Takes effect or Is to be- come complete on the performance of a con- dition. H the transaction resolves itself into a security, ■whatever may be its form, it is in equity a " mort- gage." If it be not a security, it may be a conditional sale or an absolute purchase, or a lease, i In the case of a conditional sale the vendee has a conveyable and an attachable interest, which can be transformed into an absolute sale by the performance of the condition.^ A contract for the sale of personalty, to be deliv- ered at once to the vendee, the title to remain in the vendor until the price is paid, is valid.' It is sometimes difficult to determine whether a contract is itself a sale of personalty so as to pass ownership to the vendeo, or a sale on condition to be consummated only when the c&ndition shall be per- formed, or a mere agreement to sell. Whether the property passes or not is dependent upon the inten- tion of the parties. Following are the rules by which to construe such contracts: 1. When the vendor is to do a thing to the property in order to put it into the state in which the vendee is bound to accept it, the doing of that thing is a condition precedent to the vest- ing of the property. 2. If a thing is to be done to ascertain the price, as, by weighing, measuring, etc., where the price is to depend upon the quantity or quality, the doing of that thing is also a condition pre- cedent to the transfer, although the individual goods be ascertained. 3. Where the buyer is to do a thing as a consideration on which the passing of the prop- erty depends, the property will not pass until the con- dition is fulfilled, though the goods be delivered into his hands.^ In the absenoe of fraud, an agreement for a condi- tional sale of personal property accompanied by de- livery is valid, as well against third persons as against the parties to the transaction. A bailee of personal property who receives it under an agreement that he may purchase it on the per- formance of conditions on his part, cannot convey title to it or subject it to execution for his own debts, imtil performance of the conditions on which the agreement to sell is made.' also Eahilly v. Wilson, 3 id. 420 (1878); Austin v. Selig- man, 18 F. E. 519 (1883). ' Flagg V. Mann, 2 Sumn. 533 (1837), Story, J. s Vincent v. Cornell, 13 Hck. 296 (1832); Day u Bas- sett, 102 Mass. 447 (1869); Carrier v. Knapp, 117 id. 324 (1875). ' Cooley V. GiUan, 54 Conn. 80, 83 (1886). •Elgee Cotton Cases, 22 Wall. 187-96 (1874), cases, Strojg, J. ; Heryford u Davis, 102 0. S. 246 (1880); Pope V. AUis, 115 id. 363, 371-72 (1885), cases. ^Harkness v. Russell, 118 U. S. 663, 667-82 (1886), Bradley, J., reviewing many cases, American and English. Compare Davidson u Davis, 125 id. 90, 98 (1888). See generally 23 Cent. Law J. 436 (1886), cases; 25 Am. Law Eeg. 313-17 (1886), cases; 27 id. 586-608 Conditional sales were valid by the commcn law, and their validity was not affected by the Statute of Frauds; but there is much contrariety of reasoning and decision relative to their validity in the different States, and often to some extent in the same State. ^ See Installment; Lien, Secret; Mortgage; Pledge; Possession, Fraudulent. Executed, and executory sales. Noth- ing was required at common law to gi^e validity to a sale of personal property except the mutual assent of the parties. As soon as it was shown that it was agreed that the one should transfer the absolute property in the thing to the other for a money price, the contract was considered as proven, and bind- ing on both parties. If the property passed immediately to the buyer, the contract was deemed a " bargain and sale;" but if it was to remain for a time with the seller, and to pass to the buyer at a time or on conditions inconsistent with immediate transfer, the contract was deemed an "executory agree- ment." ^ Where the goods are not specified, the ordinary conclusion is that the parties contemplated an execu- tory agreement. Many cases show that where the goods are clearly specified, and the terms of the sale, including the prfce, are explicitly given, the property, as between the parties, passes to the buyer even with- out actual payment or delivery. Standard authorities also show that where there is no manifestation of in- tention, except such as arises from the terms of the sale, the presumption is, if the thing to be sold is speci- fied and ready for immediate delivery, that the con- tract is an actual sale, unless there is something in the subject-matter or attendant circumstances to indi- cate a different intention. Doubt upon that subject cannot he entertained if the terms of bargain and sale, including the price, are explicit. But when the thing is not specified, or if, when specified, something remains to be done by the vendor to put it into a de- liverable shape or to ascertain the price, the contract is executory.'' The weight of authority is that where the property sold is a part of an ascertained mass of uniform qual- ity and value, separation is not essential, and the title to the part sold will pass to the vendee, if such ap- pears to be the intention of the party. = 1 Blackwell v. Walker, 2 McCrary, 31-36 (1880), cases; Lewis V. M.cCabe, 49 Conn. 14t^54 (1881), cases; Turner V Kerr, 44 Mo. 431 (18G9); 7 Cranch, 218; 12 How. 139; 39 Ala. 156; 33 Cal. 326; 41 id. 22; 49 Ga. 138; 73 111. 156; 80 id. 188; 18 Iowa, 504; 19 id. 336; 15 La. An. 386; .37 Me. 543; 30 Md. 495; 109 Mass. 130; 21 Minn. 449; 51 Miss. 329; 62 Mo. 202; 8 Nev. 147; 47 Barb. 220; 15 Johns. 205; 50 N. Y. 441; 70 Pa. 434; 71 id. 264; 35 Vt. 126; 21 W.Va. 429; 57 Wis. 415. = Hatch u Standard Oil Co., 100 U. S. 130-32 (1879), cases, Clifford, J. 3 Kingman v. Holmquist, 36 Kan. 738-39 (1887), cases. SALE 916 SALE Things not yet existing, ^vhich may be sold, are those which have a potential existence — things which are the natural product or expected increase of sorae- thing already belonging to the owner. . Where a railuoad company makes a general mortgage of its road, this does not pass after-acquired lands, unless Ihey are used in connection with the actual operations of the road as a part thereof.* Under a contract for supplying labor and materials and making a chattel, no property passes to the vendee till the chattel is completed and delivered or ready to be delivered. This rule prevails in all cases, unless a contrary intent is expressed or clearly im- plied. = " The courts of this country have not adopted any arbitrary rule of construction as controlling such agreements, but consider the question of intent, open in every case, to be determined upon the terms of the contract, and tdie circumstances attending the transac- tion." 3 Poreed sale. A sale made under the pro- cess of a court and in the mode prescribed by law.^ When the owner of a homestead estate consents to a sale under an execution or other ]egal process, the sale is not forced, but is as voluntary as when he di- rectly effects the sale and executes the conveyance.^ A sale imder a power in a mortgage is a voluntary, not a forced, sale.^ ' Fraudulent sale. A sale gf either realty or personalty made in fraud of the rights of creditors — usually existing creditors. To render a sale, for a valuable consideration, of personalty delivered into the actual possession of the vendee, invalid as against the creditors of the vendor, the vendee must have had actual knowledge or belief, or at least actual suspicion, that the sale was being made to defraud the creditoi-s. But where it appears that the vendee was free from guilty knowledge or suspicion, mere negligence in not inquiring into facts known to hini which were calculated to put him upon inquiry is not equivalent to a want of good faith, and does not charge him with notice of the fraud.'' See Co2fVEYANCE; POSSESSION, Fraudulent. Judicial sale. A sale made under the process of a court having competent author- 1 Calhoun v. Memphis, &c. R. Co., 2 Flip. 447,442 (1879), cases, Hammond, J.' 2 Williams v. Jackman, 16 Gray, 517 (1860), Bigelow, Chief Justice. 3 Clarksonu Stevens, 106 U. S. 515, 514-15 (1882), cases, Matthews. J. The controversy involved the title to the uncompleted man-of-war " Stevens Battery," on which payments had been made by the secretary of the navy, as the work progressed. * Sampson v. Williamson, 6 Tex. 110 (1851), Hemphill, Chief Justice. * Peterson v. Horublower, 33 Cal. 376 (1867). Patterson u Taylor, 15 Fla. 340 (1875). ' Parker v, Conner, 93 N. Y. 118, 123 (1883), cases, Kapallo, J. On sales voidable for fraud in the vendee, see 18 Cent. Law J. 405-9 (1885), cases. ity to order it, by an officer legally appointed and commissioned to sell.^ A sale made by a court of competent juris- diction in a pending suit, through its author- ized agent. 2 A purchaser at such a sale is protected when the power to sell is expressly given; when he buys on the faith of an order of court which clearly authorizes the act to be done.' He buys the debtor's interest, subject to all out- standing equities.* Should the judgment be reversed, all rights acquired at the sale while the judgment was in force, and which it authorized, will bo protected. It is sufficient for the buyer to know that the court had jurisdiction and ex- ercised it, and that the order, on the faith of which he purchased, was made and authorized the sale.^) ^ The rule of caveat emptor applies to judicial sales. After confirmation (q. v.), the purchaser will not be en- titled to an abatement of the purchase-money. » The policy of tha law is to multiply bidders and increase competition, that the interests of both the debtor and creditors may be advanced. For this rea- son, any attempt in a purchaser to dissuade bidding avoids the sale; for this reason, also, selling in the mass is generally disallowed, but it is not per se evi- dence of fraud in the sale.'' See Bid. Public sale. A sale made at auction to the highest and best bidder. Private sale. A sale not made at public auction. Private sales are always voluntary; public sales are often compulsory or "forced." Administrators, ex- ecutors, guardians, and committees of persons non compos, are required, as a rule, to first obtain the con- sent of court to sales of trust property. Unequivocal direction in a will may obviate this necessity. See Judicial Sale. Sale in gross. A sale without regard to quantity. A " contract of hazard." If there be a mistake in quantity, upon an estimate influencing the price, which, if understood, would probably have prevented the sale, or varied its terms, equity may afford relief.^ See Estimate ; More or Less. ^Williamson u. B,erry, 8 How. 547 (1850), cases, Wayne, J. Approved, Lawsou v. De Bolt, 78 Ind. .'564 (1881), Elliott,, C. J. And see Sturdevant v. Norris, SO Iowa, 71 (1870). 2 Terry v. Coles' Executor, 80 Va. 701 (1885). 3 Gray v. Brignardello, 1 Wall. 636, 634 (1863), cases, Davis, J. 4 Osterman v. Baldwin, 6 Wall. 122 (1867). a Davis v. Gaines, 104 U. S. 391-96, 404-6 (1881), cases. «Boyce v. Strother, 76 Va. 863 (188S); Hickson v. Rucker, 77 id. 135 (1883); 29 Gratt. 351, cases. ' Klopp V. Witmoyer, 43 Pa. 219 (1862) ; Yost v. Smith, 105 id. 631 (1884); Furbush v. Greene, 108 id. 507 (1885). On setting aside a judicial sale, see Aderholt v. Henry, 82 Ala. 542 (1886), cases. 6 Yost t). Mallicate, 77 Va. 610 (1883), cases; Green v. Taylor, 3 Hughes, 400 (1879). SALE 917 SALVAGE Sale on approval or trial; sale or re- tlirn. In the former case, there is no sale till the approval is given, expressly or by im- plication resulting from keeping the goods beyond the time allowed for trial. In the latter ease, the sale becomes absolute, and the property passes, only after a reasonable time has elapsed, without the return of the goods.i Sale on credit; sale for cash. The idea of a sale on credit is that the vendee is to have the thing sold on his assumption to pay, and before actual payment. In a cash sale, possession is given upon payment. It may be agreed that the vendor shall retain the subject until the expiration of the credit, as a security for the payment of the sum stipulated. But such an agreement, being special and unusual, will not be pre- sumed. ^ See Cash. Sale •with, faults. See Fault, 3. Sale, bill of. An instrument evidencing the transfer of title to personalty. Compare Invoice. At common law, personalty can be transferred, or incumbered, without the use of a deed. A chattel mortgage (g. v.) is a bill of sale with an incorporated defeasance. A seal is not essential to a bill of sale.^ Applicable in every case where the thing sold, from its character or situation at the time, is incapable of actual delivery. A ship at sea may be transferred by delivery of a bill of sale, and the cargo, by indorse- ment and delivery of the bill of lading. Indorsement and delivery of a warehouse receipt is equivalent to delivery of the property itself. Such regulations are necessary for the purpose of commerce.^ As fictitious bills of sale are given to protect prop- erty from creditors, statuses have very generally been enacted to prevent frauds of that nature. To affect execution-creditors, registration may be essential. A rule of the maritime courts calls for a written bill of sale of a vessel. And the Revised Statutes direct that in the case of a sale of a registered vessel to a citizen of the United States, there shall be some writ- ing in the nature of a bill of sale, and that this writing shall recite, at length, the certificate of registry ; other- wise, the vessel is incapable of re-registry, and is not OJE the United States merchant marine.' Compare Auction; Conveyance, 2; Grant, 2; Pur- chase; Vend. See generally Account; Agent; Bargain; Caveat, 1 1 Benjamin, Sales, § 911, cases. See also Exhaust Ventilating Qo. v. Chicago, &c. R. Co., 69 Wis. 454 (1887), cases; 13 N. W. Rep. 599. 2 Nat. Bank of Commerce of Boston v. Merchants' Nat. Bank of Memphis, 91 U. S. 95-96 (1875), Strong, J. ' Gibson v. Warden, 14 Wall. 847 (1871), cases, Swayne, Judge. •Gibson v. Stevens, 8 How. 399-400 (1850), cases, Taney, C. J. 'See E. S. §§ 4170, 4193; Weston u Peuniman, 1 Mas. 817 (1817); Hozey v. Buchanan, 16 Pet. 215 (1842). On Emptor; Concern; Contract; Declaration, 1 ; Deed, 2; Delivery, 1; Disparagement, 8; Dispose. 2; Drum- mer; Easement; Execittion.S; Fraud; Lien; Offer,1; Payment; Pereormaxce; Perishable; Place. Of de- livery; Possession; Record; Rescission; Retail; Sample; Stoppage; Tax, 2; Trust, 1; Valid; Value; Venditio; Void; Warranty, 2. SALIC or SALIQUE LAW. The code of laws of the Salians, a German tribe who settled in ancient Gaul. One provision, which has excluded women from in- heriting the crown in France and in a few other conti- nental countries, was that males only should succeed to inheritances. ' SALOON. Originally, a large public room or parlor ; now, usually, a place where intoxicating liquors are sold.^ A licensed saloon-keeper is, therefore, a person licensed to sell intoxicating liquors." Supposed t<^ be a place where persons who call for them are supplied with refreshments." A pool-table is not necessary to the conduct of the business.^ A house or room used for retailing spirituous liquors is sometimes improperly called a saloon, but this use cannot impart to the word any such legal significa-, tion.* See Close, 1 (2); Keep, Open; Restaurant; Tav- ern. SALT LAKE. See Lakes. SALTPETRE. See Drugs. SALTJS. See Lex, Salus populi, etc. SALVAGE.^ 1. Allowance for saving a ship or goods from the danger of the seas, from fire, pirates, or enemies. 6 The compensation allowed to persons by whose assistance a ship or vessel or the cargo of the same, or the lives of the persons be- longing to the ship or vessel, are saved from danger or loss in cases of shipwreck, derelict, capture, or other marine misadventure.' The compensation allowed to persons by whose voluntary assistance a ship at sea, or her cargo, or both, have been saved in whole or in part from impending sea peril, or in re- the English Bills of Sales Acts of 1878, 1882, see 3 Law Quar, Rev. 300 (1887). ' See 1 Bl. Com. 194; Maine, Anc. Law, 155. " McDougall 17. Giacomini, 13 Neb. 484 (1882), Max- well, J. s Bowser v. Birdsell, 49 Mich. 8 (1882), Cooley, J.; Kitson V. Mayor of Ann Arbor, 26 id. 326 (1873). ' State V. Mansker, 36 Tex. 365 (1871), Ogden, J. See also 39 Conn. 40; 105 Mass. 40. * F. salvage: L. salvare, to save. • Weeks V. The Maria, 8 Pet. Adm. 425 (1790;; Lea v. The Alexander, 2 Paine, 469 (Wii?}, Wayne, J. ' The Clarita and The Clara, 23 Wall. 16^19 (1874), oases, Clifford, J. SALVAGE 918 SAMPLE covering such property from actual peril or loss, as, in cases of shipwreck, derelict, or re- capture.! Salvor. A person who renders salvage service. " A person who, without any par- ticular relation to a sliip in distress, proffers useful service, and gives it as a voluntary adventurer, without any pre-existing cove- nant that connected him with the duty of employing himself for the pi-eservation of that ship." 2 Elements of a valid claim are: a marine peril, vol- untary service not owed to the property as a maltter of duty, and success in saving the property, or some portion, from the impending peril; ^ or, again: a ma- rine peril, service voluntarily rendered when not re- quired as an existing duty or from a special contract, and success in whole or in part, or service contributing thereto. Proof of success, to some extent, is as essen- tial as proof of service.^ Suit for salvage may be in rem, against the prop- erty saved or the proceeds thereof, or in personam, against the party at whose request and for whose benefit the service was performed. But both proceed- ings may not be had in one and the same libel. ^ The allowance of a compensation, which much ex- ceeds the risk encountered and the labor employed, is intended as an inducement to render the services which it is for the public interest and the general interest of humanity, to hold forth to those who navigate the ocean.* Liberal remuneration is allowed — to induce the daring to embark in such enterprises, and to withdraw motive to depredate upon the property. Seamen, pilots, and passengers, who 'perform extraordinary services out of their duty, are entitled to it; but not, one who places the property in danger.'' In determining the amount of the reward, courts of admiralty consider as the main ingredients: the labor expended; the promptitude, skill, and energy dis- played; the value of the property employed in render- ing the service, and the danger thereto; the risk incurred; the value of the property saved; and the de- gree of danger from which the property was rescued. The compensation is not viewed merely as pay, on the principle of quantum meruit, or as remuneration pro opere et labore, but as a reward for perilous serv- ices voluntarily rendered, and as inducement to em- bark in such undertakings.' Compensation presupposes good faith, meritorious > The Sabine, 101 U. S. 384^91 (1879), cases, Clifford, J. See also Cope v. Vallette Dry-Dock Co., 119 id. 639 (188T), cases; The Fannie Brown, 30 F. E. 230 (1887). 2 The Neptune, 1 Hagg. 236 (1824), Ld. Stowell. Ap- proved, The Wave v. Hyer, 8 Paine, 130 (1833?); 1 Cur- tis, 378. '' The Clarita and The Clara, ante. ' The Blaireau, 3 Cranch, 26j (1804), Marshall, C. J. Approved, 31 F. R. 426. . = The Blackwall, 10 Wall. 14, 12 (1869), cases, Clifford, J.; The Sabine, supra. service, complete restoration, and incorruptible vigi- lance. ^ Saving a ship in port from imminent danger of destruction by fire is as much a salvage service as sav- ing her from the perils of the seas. The shortness of the time occupied does not lessen the merit of the service. . . A passenger cannot recover for every service which would support a claim by one in nowise connected with the ship; yet, for extraordinary serv- ices, and the use of extraordinary means, not furnished by the equipment of the ship herself, by which she is saved from imminent danger, he may have salvage. . . The amount is largely a matter of fact and dis- cretion, which cannot be reduced to precise rules but depends upon a consideration of the circumstances of each case." See Admiraltt; Consokt, 2; Derelict, 2; Towage. 3. In the law of insurance, see Insurance, Fire. SAME. Refers to the next antecedent.' Does not always mean identical ; fre- quently, of the kind or species, though not the specific thing ; is often a substitute for a word used hefore, and employed as a pro- noun. 3 , In the expression " deliver policies and receive pre- miums on the same," means them. — the policies.* Same manner. See Mannee. Same offense. In the Fifth Amendment to the Constitution, an offense which is the same in law and in fact.^ Same property. The tenant of a stock farm was to draw out the " same property " he put into the busi- ness. Held, that the same description of stock, of equivalent value, was meant.' Same v. Same. The same plaintiff against the same defendant ; the same case as first cited. Sameness. See Patent, 3 ; Tkade-maek. Compare Equal; Equivalent; Ideu; loENTiTy; Like; Said. SAMPLE.' In the law of sales, that which is taken out of a large quantity as a representative of the whole ; a part shown as a specimen.'" The fair import of the exhibition of a sample is that the article to be sold is like that shown as a par- 1 The Island City, 1 Black, 130 (1861), Grier, J. = The Connemara, 108 U. S. 357-69 (1883), oases. Gray, J.; The Tornado, 109 id. 115 (1888). See generally The Egypt, 17 F. R. 367-76 (1883), oases; 9 id. B3, 480; 10 id. E56; 1 Bened. 553; 10 id. 73-74; 1 Sumn. 216; 1 Bond, 117, 270; 2 id. 375; 1 Cliff. 220; 3 Woods, 149. ' 2 Kent, 555: Coke, Litt. 20 6, 385 5. * Carpo V. Brown, 40 Iowa, 493 (1875), Day, J. » United States v. Cashiel, 1 Hughes, 560 (1863). 8 Brockway v. Eowley, 66 111. 99 (1878). ' O. F. ensample, a corruption of example, exemple: L. exetnplum; ex-imere (emere), to take out, select. 8 Webber's Case, S3 Gratt. 904 (1880), Staples, J. SAMPLE-EOOM 919 SATISFY ■ eel. The object is to save the purchaser the trouble of examining the whole quantity.' The rule of caveat emptor does not apply, because there is no opportunity for a personal examination of the iDulk of the <;ommodity which the sample is said to represent.^ A warranty is implied that the bulk corresponds to the sample in nature and quality. But if the sample is fairly drawn from the bulk, and there is a defect in both, unknown and not discoverable by examination, ■ there is no such warranty. A specimen may be shown to enable the purchaser to form an opinion of its prob- able qualities without any intention in the seller to warrant all the goods to be equal to it. Opportunity to examine the bulk is a strong circumstance against considering the sale a sale by sample.' See Caveat, Emptor; Warranty, 2. SAMPLE-KOOM. See Innkeeper. SAN FRANCISCO. See Pueblo. SAIf CTION.'' The vindicatory branch of the law, whereby it is signified, what evil or penalty shall be incuiTed by such as commit any public wrong, and trespass or neglect their duty.* Sanction of an oath. A belief that the Supreme Being will punish falsehood.!* See Oath. SANCTUARY.' 1. Exemption of a place, consecrated to religious duties, from criminal arrests.' As a plea, introduced at a time when superstitious veneration was paid to consecrated ground. The ac- cused first fled to a church or church yard; within forty days, dressed in sackcloth, he confessed his guilt before the coroner, took an oath to abjure the realm, and went with a cross in his hand to a designated port and embarked. The privilege was abolished in 1624, by aiJamesI, o. 28.» > Bradford v. Manly, 13 Mass. *143 (1816), Parker, C. J. 2 Barnard v. Kellogg, 10 Wall. 388 (1870), Davis, J. ' Story, Sales, § 3T0, cases; 3 Benj. Sales, §§ 900-81, cases; 2 Kent, 480, cases; Hare, Contr. 508, cases; Bar- nard V. Kellogg, 10 Wall. 383, 388-94 (1870), cases. In Pennsylvania, until 1887, in the absence of fraud or circumstances fixing the character of a sample as a standard of quality, the sample was a guaranty only that the article to be delivered should follow its kind, and be simply merchantable. Boyd v. Wilson, 83 Pa. 334 (1877, Sharswood, J., dissenting); Selser v. Eoberts, 106 id. 242 (1884). The act of April 13, 1887 (P. L. p. 21), provides that unless the parties agree otherwise, there shall be an implied warranty that the property to be delivered is the same in quality as the sample shown. * L. aanctio: sancire, to render sacred, inviolable. » 1 Bl. Com. 34, 56. ' Blocker v. Bumess, 2 Ala. 355 (1841). 'L. aanctuarium, » shrine: sanctus, consecrated, holy. » [4 Bl. Com. 365. « 4 Bl. Com. 332; 1 Steph. Hist. Or. Law Eng. 491. 2. A place where process of law cannot be executed. Civil sanctuary. The protection af- forded a man by his own house as against the service of civil process. See Asylum; House, 1. SANE.i Whole in mind; healthy in mind ; of sound mind. Insane; nonsane. Not whole, sound, or healthy in mental faculties; unable, from nature or accident, to perform the rational functions common to man.2 Sanity. Mental health; soundness of understanding. See at length Insanity; Will, 1. SANITARY REGULATIONS. See Commerce; Health; Quarantine, 3; Po- lice, 2. SANS. See Sine. SATISFY.^ 1. To supply fully, with what is required ; to free from doubt or un- certainty; to set the mind at rest; to con- vince. " To satisfy fully " is to exclude all doubts, reason- able or otherwise.* " Entirely satisfied " implies a firm and thorough assent of the mind and judgment to the truth of a, proposition. This may exist notwithstanding a possi- bility that the fact may be otherwise.' Satisfactory. As applied to evidence [q. v.), that amount of proof which ordinarily satisfies an unprejudiced mind, beyond rea- sonable doubt.** An action cannot be maintained, for work and la- bor, upon an agreement to construct a book case " to the satisfaction " of the defendant, by proof that the case was made according to the terms of the agree- ment, without also proving that it was accepted by the defendant;' and the same is true as to a contract to make a " satisfactory suit of clothes." ' An agreement to deliver certain notes or " make satisfaction" binds the promisor, for failure to deliver the notes, to make such compensation as the law pro- vides.* A contract to employ one as agent for a year " if he fill the place satisfactorily " may be terminated by 1 L. sanus, sound in mind. ' Den V. Van Cleve, 5 N. J. L. 661 (1819), Kirkpatrick, Chief Justice. » L. satU, enough; facere, to make. < States. Sears, 1 Phil. L. 148 (ISei'). I » People V. Phipps, 39 Cal. 335 (1870). « 1 Greenl. Ev. § 2. ' McCarran t'. McNulty, 7 (3ray, 141 (1856). 6 Brown v. Foster, 113 Mass. 138 (1873). 9 Moore i;. Fleming, 34 Ala. 493 (1859). SATISFY 920 SCANDAL the employer when, in his judgment, the agent fails to meet that requirement.^ " A contract to make a bust with which the defend- ant ought to be satisfied is one thing; an undei;taldng to malce one with which she ivill be satisfied is quite another thing." = The same ruling was made with re- spect to a portrait not to be paid for " if imsatisfac- tory." 3 Wliere S. refused to accept an elevator, costing $3,300, which had been warranted satisfactory in every respect, it was held, reversing the lower court, that, provided he acted in good faith, S. was the sole judge whether the elevator was satisfactory.* If one orders goods (milk-pans) agreeing to pay for them if satisfied, *' he must act honestly, and in ac- cordance with the reasonable expectations of the seller as implied from the contract, its subject-matter, and surrounding circumstances. This dissatisfaction must be actual, not feigned ; real, not pretended. " ^ ' An agreement that the purchaser of an article, sold with warranty, may rescind the sale if the article is not satisfactory, does not preclude him from retaining it, and recouping damages for breach of the warranty, in an action for the price."* ' 2. To comply fully with a demand ; to ex- tinguish, as, by payment or performance. " Satisfied " referring to a note or bond imports that the instrument is paid."^ Satisfaction. (1) The settlement or ex- tinguishment of a demand ; also, the record- entry to that effect. The demand may be of the amount of a judgment, mortgage, or other lien, or of a 'claim not evidenced by a record; but the reference is frequently to mat- ters of record by way of distinction. Accord and satisfaction. See Accoed. Satisfaction piece. An acknowledgment in writing that an incumbrance has been sat- isfied. (3) In equity, the donation of a thing, with the intention, expressed or implied, that it is to be an extinguishment of some existing right or claim ..8 Arises, as a matter of presumption, where a man, being under an .obligation to do an act (as, to pay money), does that by will which may be considered as a performance or satisfaction of the act, the thing done being ejusdem generis with that which he en- 1 Tyler v. Ames, 6 N. T. Supr. 280 (1873). sZaleski 11. aark, 44 Conn. 224 (1876). s Gibson v. Cranage, 39 Mich. 49 (1878). * Smgerly v. Tljayer, 108 Pa. 396 (188S), oases; 25 Am. Law Eeg. 18-31 (1886), cases; Seeley u-Welles, 120 Pa. 74 (1888), as to a machine: 27 Am. Law Eeg. 578-^2 (1838), cases. 5 Daggett V. Johnson, 49 Vt. 349 (1877); 43 id. B28. « Shupe V. Collender, Sup. Ct. Conn. (1888); 15 Atl. E. 405, cases. ' Eenolds v. Bird, 1 Root, 306 (1791). s 3 Story, Eq. § 1099. Approved, 49 Ind. 423. gaged to perform. The presumption m'ay be rebutted by circumstances. The thing so done must be a substi- tute or equivalent for the contract, and not intended as a fulfillment of it. Ina "performance" the thing is done strictly in pursuance and in fulfillment of the contract. The question may arise where there is a portion, secured by a marriage settlement or given by a will, and an advancement is afterward made to the donee; and in case of a legacy to a creditor.^ , See Ademption; Advancement; Election, 3. SAVE. 1. To reserve, exempt out of; to pi-eserve. Statutes allowing summary convictions " save " the right of trial by jury. A saving totally repugnant to the body of a statute is Void." 2. To suspend the operation of ; to bar. The statute of limitations (g. v.) is "saved" when some circumstance prevents the statute from being applied to the case in hand. SAVINGS BANK. See Bank, 3 (2). , . SC. See SciEE, Scilicet. SCANDAL.3 1. In scandalum magna- tum, words spoken in derogation of a peer, judge, or other high officer of the realm. Formerly, more reprehensible than defamation of a common or private person.* " Scandal " and " slander " mean the same thing in law. Esclandre in 3 Edw. I, c. 34, is translated slander in the statute book.^ See Slander. 3. An allegation in a pleading in equity which is expressed in language derogatory to the dignity of the court, or which charges an oflEense irrelevant to the merits of the cause. The allegation in a bill in equity of any- thing which is unbecoming the dignity of the court to hear, or which is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause.* A party may refuse to answer a pleading which contains scandalous matter till the same is expunged ' in pursuance of the report of a master appointed for the purpose.^ But nothing which is positively relevant to the merits of the cause, however harsh or gross the charge, can be treated as scandalous. If, technically, matter ' 2 Story, Eq. %% 1099-1123. See also Exp. Pye, 18 Tes. Jr. 140 (1811), Eldon, L. Ch.; Exp. Pye (Chancey's Case), 2 W. & T., L. C. Eq. 753-833, cases; 1 Pom. Eq. §§531,e State V. Hallock, 16 Nev. 385 (1882), Leonard, C. J. ' L. se-cwrus, free from anxiety. s Wheaton v. Peters, 8 Pet. *660 (1834), M'Lean, J. ' Constitution, Art. I, sec. 8. « Oliver v. Sterling, 20 Ohio St. 401 (1870). 8 Foot V. Webb, 59 Barb. 53 (1866). ' Boston V. Chesapeake, iStc. R. Co^, 76 Va. 181 (1882). » Favorite v. Stidham, 84 Ind. 425 ( SECURITY 931 SECURITY (3) Individual safety. See Personal Secu- rity (3). Securities. Written assurances for the re- turn or payment of money; evidences of indebtedness. In popular acceptation, includes bills of exchange, promissory notes, and bonds for the payment of money.' Collateral security. A security side by side with, or in addition to, other security as the primary or principal obligation, or ad- ditional to the debtor's own engagement. Thus, when one man covenants with another, and enters into a bond to perform the cove- nant, the bond is the collateral security.^ A bond accompanying a mortgage is another example. Such security is frequently termed the " collateral," and the plural " collaterals " is in general use. A sepai-ate obligation, attached to another contract to guarantee its performance ; also, a transfer of property, or of another con- tract, to insure the performance of the prin- cipal engagement * The transfer establishes a privity of contract "which invests the creditor with ownership of the securities for the purposes of dominion over the debt assigned.* The creditor must use due diligence to collect a promissory note left with him as collateral security, or suffer the loss of the amount of it.*" He should give notice of his intention to sell the security, after de- fault of payment, and also of the time and place of sale, in the absence -of a contract to, sell ex mero motu.' But he is not bound to apply the collateral before enforcing his direct remedy against the debtor.' The collateral may be redelivered for collection by the debtor as trustee for the pledgee.* It may be regarded £is settled in commercial juris- prudence — there being no statutory regulation to the contrary — that where negotiable paper is received in payment of an antecedent debt; or where it is trans- ferred by indorsement as collateral security for a debt created, or a purchase made, at the time of the trans- fer; or the transfer is to secure a debt, not due, under an agreement expressed or to be clearly implied from the circiunstances that the collection of the principal ' Jennings u Davis, 31 Conn. 139-40 (1862). ' Chambersburg Ins, Co. v. Smith, 11 Pa. 187 (1849), Coulter, J.; Shoemaker v. Nat. Mechanics' Bank, 2 Abb. U. S. 423 (1869). s [Lochrane v. Solomerf, 33 Ga. 292 (186S). ■ * Hanna v. Holton, 78 Pa. 334 (1875). * Semple Manuf. Co. v. Detwiler, 30 Kan. 398-99 (1883), cases. "Davis V. Funk, .39 Pa. 250 (1861); Loomis o. Stave, 7i m. 623 (1874); 2 Kent, 581-S3; Story, Bailm. § 310. ' Lewis V. United States, 92 U. S. 623 (1«75), eases. 8 White V. Piatt, 5 Denio, 269 (1SJ8); Clark v. Iselin, 2). Wall. 368 (1874). debt is to be postponed or delayed until the collateral matured; or where time is agreed to be given and is actually given upon a debt overdue, in consideration of the transfer of negotiable paper as collateral secu- rity therefor; or where the transferred note takes the place of other paper previously pledged as collateral tor a debt, either at the time such debt was contracted or before it became due,— in each case the holder who takes thp transferred paper before its maturity, and without notice, actual or otherwise, of any defense thereto, is held to have received it in.the due course of business, and becomes a holder for value, entitled to enforce payment, without regard to any equity or de- fense which exists between parties to the paper. But there is a conflict of authority where the note is transferred before maturity as collateral security merely, without other circumstances, for a debt previ- ously created. Abundant authority sustains the posi- tion that if such paper be so indorsed that the holder becomes a party to the instrument, although the trans- fer is without express agreement by the creditor for indulgence, that transfer is not an improper use of the paper, and is as much in the usual course of commer- cial business as is its transfer in payment of such debt. In either case the bona fide holder is unaffp'ted by equities or defenses between the prior parties of which he had no notice.' The doctrine as to an antecedent debt does npt ap- ply to an instrument conveying property as security in consideration only of pre-existing indebtedness.' The decided weight of authority is that antecedent indebtedness constitutes ample consideration for a new contract.* Counter-security. Security given to a per- son who has become surety for another. The condition is that if he who first became surety shall suffer expense or loss, the person accommoda.ted will indemnify him. Marshal securities. See Marshal, 2. Personal security, (i) Evidence of indebt- edness which binds the personalty of the debtor; choses in action or other personal estate pledged to the performance of a con- tract. Opposed, real security: an obligation in the nature of a lien on land. (2) Security of the person ; right of per- sonal security : consisting in a person's legal and uninterrupted enjoyment of his life, limbs, body, health, and reputation,'' qq. v. See also Liberty, 1 ; Right, 2. ' Brooklyn City & Newton R. Co. v. Nat. Bank of the Republic of New York, 102 U. S. 26-28 (1880), cases, Harlan, J. Clifford and Bradley, JJ., filed concur- ring opinions; Miller and Field, JJ., dissented. 2 People's Saving Bank v. Bates, 120 U. S. 564r^7 (1887), cases. 3 Merchants' Bank v. McClelland, 9 Col. 610 (1886), cases. * [1 El. Com. 1 19; Wabash, &c. E. Co. v. Shacklet, 105 111. 379 (1883). SECUS 933 SEDUCTION Public security. The safety or protection of the community. See Police, 2. Public securities. Evidences of indebted- ness on the part of the people of a State or of the United States. May mean securities issued under legislative sanc- tion in furtherance of works deemed promotive of the interests of the public' Railroad bonds are not " public securities," within the /Ordinary meaning of those terms." See Debt, Public. ~ See generally Available; Bond; Deposit, 2; Obli- gation, 4; Tax, 2. SECUS. L. Otherwise ; to the contrary effect. SED. L. But. Sed qusere. But examine. Sed vide. But see. Expressions which direct attention to a case or authority supporting a doctrine contrary to that laid down. See QU..BRB. SEDGE FLAT. A tract of land below high-water mark.^ See Meadow. SEDITIOM"." Conduct tending toward treason, but wanting an overt act; attempts made, by meetings or speeches, or by publi- cations, to disturb the tranquillity of the state, which do not amount to treason.' Called seditious conspiracies and libels. A seditious libel tends to excite disaffection with the government, and thus induce a revolutionary spirit.* The act of Congress of July 14, '1798, was called the " sedition law," because its object was to prevent po- litical disturbances. It was limited to a short dura- tion, and expired by limitation; its constitutionality was questioned, but never passed upon by the courts.' See Search-warrant. SEDUCE.8 " Seduce " and " entice " are often used indifferently in the old, and some- times in the later, books. A journeyman was said to be seduced when enticed away from his employer's service.' Although a general term, having a variety ' Hall V. Commissioners, 10 Allen, 102 (1865); 46 Vt, 786. 2 Hale V. Commissioners, 137 Mass. 114 (1884). As to watering railroad securities, see 21 Am. Law Rev. 696- 704 (1887), cases. s (aiurch V. Meeker, 34 Conn. 424 (1867). . * L. secUtio, a going apart, dissension. ' Abbott's Law Diet. » Cooley, Const. Lira. 426-30; 2 Steph. Hist. Cr. Law Eng. 377; Queen v. O'Brien, 4 Cr. Law Mag. 424 (188.S); Whart. St. Tr. 22. ' 2 Story, Const. §§ 1293-94. 8 L. se-ducere, to lead aside, astray. « Bigelow, Torts, 139. See Lumley v. Gye, 2 El. & B. 216 (1853): Bigelow, Ld. Cas. Torts, 306, 325-28, cases. of meanings according to the subject to which it is applied, when referring to the conduct of a man toward a female is uni- versally understood to mean : an enticement of her on his part to the surrender of her chastity, by means of some art, influence, promise or deception calculated to accom- plish that object, and to include yielding of her person to him.' Seduction. The use of some influence, promise, art, or other means on the part of a man by which he induces a woman to sur- render her chastity and virtue to his em- braces. ^ While now a crime in most of the States, at com- mon law was' not so. An injured husband had an ac- tion for criminal "conversation;" but a parent or master had no standing in court unless the female as daughter or domestic owed him service, and, in conse- quence of the seduction, she was in some degree less able to assist in housewifery work; or, unless there was a trespass upon property. The law, while punisb- ing even with death acts of violence against women, left her chastity exposed to the artifices on the se- ducer." An action for seduction grows out of the loss of service in the relation of master and servant. Some service, however trivial, must be shown to have been done and to have been due from the female to the plaintiff.' The consent of a minor daughter is no defense to an action by the father; and he should be allowed compensation for his mental suffering as well as for the loss of services, etc.* But the parent cannot recover damages when, with his knowledge, the defendant and his daughter slept together according to the custom known as " bund- ling." * The age of consent, in at least twenty States, until recently, was ten years. It has been raised to four- teen in Connecticut, Illinois, Ohio, Wisconsin, and Vermont; to fifteen in Nebraska; to sixteen in Michi- gan, New Jersey, and Pennsylvania; and to eighteen in Colorado and Kansas. In England, since 1886, it has been sixteen.' See Chaste; Conversation, 1; Debauch; Fornica- tion. ' State 11. Bierce, 27 Conn. 320 (1868), Storrs, C. J. ' [Croghan v. State, 22 Wis. 446 (1868), Cole, J. gee also 40 Ark. 482; 77 Ind. 334; 38 Iowa, 224; 108 Mass. 488; 11 Mich. 278; 17 Pa. 126; 100 id. 28. '3 Christian, Bl. Com. *140, 142; 4 Bl. Com. 212; 1 B. & Aid. 722. ■"Wood V. State, 48 Ga. 282 (1873); Kinney v. Laugh- enour, 89 N. C. 367-68 (1883); Wood, Master & S. § 246; Martin v. Payne, 9 Johns. 387 (1812): Bigelow, Ld. Cas. Torts, 286, 290-305, cases. ' Barbour v. Stephenson, 32 r. R. 66 (1887). ' HoUis V. Wells, 3 Clark, *30 (Pai, 184B). ' See generally 3 Cr. Law Mag. 3-31-47 (1882), cases. SEED 933 SEIZURE SEED. See Grain. Millet seed, not in its natural state, but having the outer hull removed and used for making soup and for bird fogd, was found by a jury not to be seed within the meaning of the tariff laws.' SEISIN.2 The possession of land under a claim, either express or implied by law, of an estate amounting at least to a freehold. » See Seisina. Ordinarily, a possession in fact by one hav- ing or claiming a freehold interest. This is known as a seisin in deed; the right of immediate possession is a seisin in law. There may be a constnictive seisin, which is the equivalent of a seisin in deed.* Originally, seisin was the completion of the feudal investiture ; it now means ownership. A " covenant of seisin " and a " covenant of right to convey " are synonymous.5 In Missouri, a covenant of seisin is a covenant of in- demnity, and runs with the land to the extent that it the covenantee takes any estate, however defeasible, or if possession accompanies the deed, though no title passes, the covenant enures to the subsequent grantee who sustains the loss." See Covenant, Real. Livery of seisin. Pure feudal investi- ture or delivery of corporal possession of land or of a tenement.^ Held absolutely necessary to complete a donation.^ See Delivery, 1; Demesne. Disseisin. Ouster or deprivation of a freehold. A wrongful putting of him out of that is seised of a freehold, — is in actual possession. 8 Where one man invades the possession of another, and by force or surprise turns him out of the occupation of lands : being a dep- rivation of that actual seisin, or corporal freehold of the lands, which the tenant before enjoyed. 9 Disseisor. A person who intrudes and ' Nordlinger v. Hobertson, 33 F. B. 341 (1887). ^ F. seisin, to make to possess or sit upon. See Web- ster's Diet. "Seize." >Towle V. Ayer, 8 N. H. 59 (1835), Eichardson, C. J. • Jenkins v. Fahey, 73 N. Y. 368 (1878); Hart v. Dean, 2 MacAr. 63 (1875). «Cook V. Hammond, 4 Mas, 488 (1827), Story, J.; McNitti;. Turner, 16 Wall. 361 (1872); Ford v. Gamer, 49 Ala. 603 (1873), Peters, C. J.; Green v. Liter, 8 Cranch, 242-49 (1814); 4 Kent, 386. « Allen V. Kennedy, 91 Mo. 329 (1886), cases. ' [2 Bl. Com. 311; 1 Washb. E. P. 32-35. « [3 Bl. Com. 169. -» [2B1. Com. 195; 5 Pet. •439; 5 Conn. 257, 518; 58111. 589; 56 Me. 268; 6 Mete. 337, 444; 14 Pick. 224; 2 Wend. 166. ejects another from his possession of an estate of freehold. Disseisee. The freeholder so ejected. The law wiU not construe ^ possession to be tortious unless from necessity. It considers every possession lawful, the commencement and continuance of which is not proved to be wrongful Where, then, a naked possession is in proof, unaccompanied by evidence as to its origin, it will be deemed lawful, and co-extensive with the right set up by the party. If he claims only a limited estate, the law will not, contrary to his in- tentions, enlarge it to a fee. And it is only when he is proved to be in by disseisin that the law will construe it to be a disseisin of the fee, and abridge him of his right to qualify his wrong.' Purchase of the rights of a disseisee (called "buying title " ) was not permitted at common law; one could not sell a quarrel or lawsuit; and was made an offense by 36 Henry "VIII (1545), c. 9. It is generally dUallowed in the United States, but not so in Illinois, Missouri, and Pennsylvania.* See Champerty. SEISINA. L. Actual possession of an estate of freehold ; seisin, q. v. Habere facias seisinam. That you cause to obtain seisin. The emphatic words of a writ of execution by which the sheriff delivered possession of a freehold to the de- mandant.3 Seisina facit stipitem. Seisin makes the stock. Actual seisin formerly made a person the root or stock from which inherit- ance by blood was derived.* Discarded by 3 and 4 Wm. IV (1834), c. 106; and be- lieved to be so in all the States. Descent is now traced from the last " purchaser " — the person last entitled who did not himself inherit.' See Descent. SEilZUBE. Taking a thing into posses- sion, or custody of the law ; caption of prop- erty by authority of law ; manucaption. Examples are: taking property under an alleged forfeiture, or by virtue of a right to hold it under an attachment, or to sell It on an execution. 1. The manner, and whether actual or con- structive, depends upon the nature of the thing. As applied to objects capable of man- ual delivery, the term means "caption:" the physical taking into custody." Compare Arrest, 2 (1). The modes vary: land cannot be seized as a mov- able may be ; actual manucaption cannot be taken of stocks and credits. ' Ricard v. Williams, 7 VFheat. 107 (1822), Story, J. s 3 Washb. E. P. 339. As to seisin of chattels, see 1 Law Quar. Rev. 324 (1885); the mystery of seisin, 2 id. 481-96 (1886). s 3 Bl Com. 412; 2 id. 859. 4 2 Bl. Com. 209. s See 4 Kent, 388-89; 1 Steph. Com. 367. » Pelham v. Eose, 9 Wall. 106 (1869), Field, J. SELECT 934 SENTENCE Seizures are actual or constructive. Taking ]f>aft of the goods in a house in the name of the whole may be a good seizure of all. An assertion of control, with a present power and intent to execute it, may be suf- ficient.' To constitute a valiU seizure, so as to entitle the party to the proceeds of a forfeiture, there must be an open, visible possession claimed, and authority exer- cised under the seizure, A seizure, oncevvoluntarily abandoned, loses its validity.2 See Procure; Suffer. Section 8895, Rev. St, does not constitute a post- master a seizing or detaining officer of suspected letters. It merely directs the disposition to be made of letters " seized or detained for violation of law " under other statutory provisions.^ See Post-office; Search. 2. In marine insurance, the taking of a ship by the act of public authority for a violation of the lavps of trade, or some rule or regulation instituted as a matter of munic- ipal police, or in consequence of an existing state of war.* See Admiralty; Marshal, 1 (2); Prosecution, Mali- cious; Ebs, 2. SELECT. See Council, 2. Selectman. In several States, manage- ment of the public affairs of towns is in- trusted to boards of officers called selectmen. SELF. See Defense, 1; Sui. SELL. See Sale ; Retail. Compare Bis- COUNT. SEMBLE.^ It seems; seemingly. In written decisions, and in notes to cases, indi- cates that the statement following is an ex- pression of opinion as to what a decision on the particular point would be. Compare Dictum, 3. SEMI PROBATIO. See Oath, Supple- tory. . SEMINARY. Has no definite legal meaning ; is used in a general way to desig- nate institutions for the promotion of learn- ing. 6 In a statute exempting from taxation " public school-houses, academies, colleges, universities, and all seminaries of learning," was held to denote any and every place of training or institution of learning not already specifically named, and therefore inclusive of a parish school.' See School. SEMPEB. L. Always; ever. » Miller v. United States, 11 Wall. 296 (1870), Strong, J. 2 The Segunda, 10 Wheat. 32B (1826), Story, J. ' Lotteries, 1 6 Op. Att-Gen, 5 (1878), " « Greene v. Pacific Mutual Ins. Co., 9 Allen, 222 (1864), Bigelow, C. J. ° F. sembler^ to seem : L. aimilis, like. « Chegaray v. Mayor of New York, 13 N. Y. 229 (1865). ' County of Hennepin v. Grace, 27 Mine. 506 (1881). Semper paratus. Always ready. In common-law practice, a plea that the de- fendant always has been and slill is ready to do what is demanded of him. Following a tender by the debtor and a refusal by the breditor, will at least save the costs of the suit to the defendant. In French, tout temps prist.' See Tender, 2. SEN. In New York reports, senator. SENATE. See Congress; House, 3. SENILE. See Dementia. SENIOR. In military usage, "senior" may refer to the person longest in continuous service. Webster defines the adjective as meaning "more advanced in life; older in office or dignity; prior in age or rank; elder; " and the noun as " oneoklerin office, or whose entrance upon an office was an- terior to that of another : " which may mean, not one who entered upon his present term of office first, but one who has been longest in the office. On the other hand, the word may rijfer to the person, as, a judge, who has served longest under his present com- mission.2 See Judge, Senior; Junior; Name, 1. SENSE. Meaning ; import. See Sensus. In the construction (g. v.) of instruments and docu- ments of the various kinds, words are said to be used- in their " common," " popular," " ordinary " sense, or else in an " artificial " or " technical " sense. Insensible. Unintelligible. a pleading which omits a material word may be " insensible," and therefore bad.^ SENSUS. L. Sense; signification. Mains sensus. The bad sense. In malo sensu, or malo sensu. In the less favorable acceptation. Mitior sensus. The milder meaning. In mitiori sensu. In the more favorable accep- tation. The old rule was that language alleged to be de- famatoiy was to be interpreted in the sense most favorable to the defendant. In modern practice, that meaning is attributed which the words ordinarily bear under the circumstances in which they were used.* See Libel, 5; Slander. SENTENCE.* A final determination by a criminal court, or (but less frequently) by a court of admiralty. 1 See 3 Bl. Com. 303. « State ex rel. Belford v. Hueston, 44 Ohio St. 6 (1886), Spear, J. s Steph. Plead. 414. * Reeves v. Bowden, 97 N. C. 29 (1887). B F. sentence: L. sententia, way of thinking. SENTENCE 935 SEPARATE " Judgment " is generally used of a decision in a civil, common-law tribunal; and "decree" of a de- cision in a court of equity or admiralty. "Sentence," or judgment, appropriately denotes the action of a court of criminal jurisdiction in declaring the consequences to a convict of the fact of guilt, confessed or ascertained by verdict.^ Where, upon the trial of an indictment containing several counts charging distinct misdemeanors, iden- tical in character, a general verdict of guilty is ren- dered, or a verdict of guilty upon two or more speci- fied counts, the court has no power to impose a, sentence or cumulative sentences exceeding in the aggregate what is prescribed as the maximum pun- ishment for an offense of the character charged.' In such case the court ha£ power to pass separate sentences exceeding in the aggregate the maxim pun- ishment for the offense. . One judgment only can be passed upon a single indictment, and each count is, in effect, a distinct indictment.' It is not error to make one term of imprisonment commence when another ends. There is no other mode by which a delinquent may be sentenced on several convictions.* The judgment having been executed so as to be a full satisfaction of one of the alternative penalties of the law, the power of the court as to that oif ense is at an end.* And so, also, as to other offenses as to which sentence was not imposed." In the absence of express power, the court cannot at a subsequent terra alter its sentence.' A court has power to remand a convict for sentence for as long a period as may be deemed advantageous to the ends of justice, and in the meantime to receive evidence as to what would be an appropriate sen- tence, where the court has discretion.' Power to suspend sentence is inherent in the court. It is indispensable to the interests of. public justice; it rests upon grounds of public policy, or of legal neces- sity.' The inquiry whether a convicted person has any- thing to say "why sentence should not be passed'* upon him, is supposed to have originated at a time when prisoners were not allowed counsel, in order to ■ [Commonwealth v. Lockwood, 109 Mass. 325 (1872), Gray, J. 2 People ex rei.. Tweed v. Liscomb, 60 N. Y. .560 (1875). 'Castro (" Tichbome ■') v. The (Jueen, 43 L. T. 78 (1880). Affirmed in the House of Lords, 44 id. 350 (1881), cases. See also Be Donnelly, 30 Kan. 424 (1883); Com- monwealth V. Foster, 122 Mass. 818-19 (1877); Exp. Bryan, 76 Mo. 253 (1882); Re Haynes, 30 F. R. 769 (1887). • Kite V. Commonwealth, 11 Mete. 685 (1846). .'Exp. Lange, 18 Wall. 176(1873). • Commonwealth v. Foster, 122 Mass. 319 (18V7), cases. ' Commonwealth v. Mayloy, 57 Pa. 201 (1868); State V. Addy, 43 N. J. L. 116 (18S1). « People 1). Mueller, 4 Cr. Law Mag. 725-39 (1883), cases,— Cir. Ct. Cook Co., 111. See also State v. Addy, 43 N. J. L. 114 (1881), cases; Commonwealth v. Dowdi- can's Bail, 115 Mass. 136 (1874). enable them to move in arrest of judgment any matter sufficient to stay sentence. See further CoNViCTioN; Eebob, 2 (3); Judomknt; Pardon; Reprieve. SEPARATE.! 1, V. To part company. See Jury, p. 585, c. 2. 2, adj. Severed or severable ; set apart ; dis- tinct ; existing, belonging to, enjoyed, main- tained or maintainable by or for one person or class; entirely one's own, individual; in- dependent, exclusive. Opposed, common, joint, firm, partnership. As, separate — acknowledgment, action, assets, claim, covenant, debt, earnings, es- tate, examination, maintenance, property, school, trial, qq. v. See also Partnership. The separate estate of a married woman is that alone of which she has the exclusive control, independent of her husband, and the proceeds of which she may dispose of as she pleases. 2 At common law, separate property in a wife is an estate, held in its use and title, for the benefit and advantage of the wife.3 " Separate " is the most apt word for creating a trust for the benefit of a married woman; it will of itself exclude the marital rights of her husband.^ In the absence of " sole and separate " or equivalent words, or of a provision that excludes the marital rights of the husband, or that gives the wife powers inconsistent with the disabilities of coverture, the rights of the husband will attach." See Sole. The English doctrine is that the wife's capacity to dispose of property settled to her separate use is ab- solute, unless she is expressly restrained by the terms of the settlement; and, generally speaking, the prop- erty is bound by her contracts. In the United States the decisions as to her power over her property, and its liability for her engagements, have not been uni- form ; but the tendency of legislation is to enlarge her power. The American doctrine is that she has no powers except such as are given by the trust instru- ment, and that these "must be strictly pursued. This is the law in Illinois, Mississippi, Ohio, Pennsylvania, Rhode Island, South Carolina (since 1811), Tennessee, and, formerly, in Maryland. The English doctrine has been followed in Alabama, California, Connecticut, ' L. ae-parare, to set or pui.apart. ' Petty V. Malier, 14 B. Mon. 247 (1853), Simpson, J. ; Bowen v. Sebree, 2 Bush, 115 (1867); Alston v. Eowles, 13 Fla. 126(1870). ' George v. Ransom, 15 Cal. 324 (1860); Dow v. Gould, 31 id. 637 (1807). « Lewis V. Mathews, L. R., 2 Eq. 179 (1866); Massey u Eowen, L. R., 4 H. L. C. 294 [(1869); Christian v. Gunn, 80 Va. 372 (1886); Tullett v. Armstrong, 1 Beav. 1, 32 (1638). 'Vail V. Vail, 49 Conn. 52 (1881), cases; Kutcher v. Williams, 40 N. J. E. 438 (1885); 133 Mass. 178. SEPARATE 036 SEQUESTRATION Florida, Georgia, Kentucky, Maryland, Minnesota, Missouri, North Carolina, New Jersey, New Toric, Vir- ginia, and Vermont, and in the Federal courts. The tendency is toward placing her legal and equitable separate estates, as far as regards her power over them, upon the same footing.' See Anticipation, 1; Husband; Joinder; Joint; Right, 2, In own. Separation. Cessation of cohabitation between husband and wife, by agreement.^ Divorce from bed and board is sometimes. called a " separation," leaving the word " divorce " to refer to the dissolution of a valid marriage.' The agreement is usually evidenced by arUcles or a deed of separation. "Voluntary separation," or such as is mutual between the parties, is used in con- tradistinction to such as is "by sentence of court," that is, ' ' separation a mensa et thoro," or " judicial separation." In some States, the expression " judicial separation" has given way to "divorce a vinculo ;" in others, it is still in use, being gi-anted for any c^use not suflSoient to au- thorize an absolute divorce. Such separation works no change in the relation of the parties, toward each other or toward third persons, except in authorizing them to live apart until they •may choose to live together again. A reconciliation, of its own force, annuls a sentence of separation. When the terms upon which a voluntary separation takes place are not unreasonable, particularly as re- gards the rights and claims of the wife, the contract is likely to be upheld as valid.' There are serious objections to voluntary separa- tions' between married persons. Nevertheless, con- tracts for -the separate maintenance of the wife, through the intervention of a trustee, have received the sanction of the courts for so long a period that the law must be considered as settled. His covenant to support her, where ths consideration is apparent, will be enforced, if it appears that the deed was not made in contemplation of a future possible separation, but in respect to one which was to occur immediately, or 1 See 1 Ld. Cas. Eq. 741; Schoul. H. & W. ni; Perry, Trusts, § 655; Hill, Trustees, 657; Bisp. Eq. IV; 17 Ala. 805; 26 id. 213;' 23 Cal. 554; 20 Conn. 175; 4 Fla. 418; 12 Ga. 200; 32 id. 604; 41 id. 147; 128 U. S. 236; 23 111. 209; 61 id. 426; 10 B. Men. 320; 16 id. 482, and statute since; 5 Md. 219; 11 id. 492; 26 id. 5; 12 Minn. 430; 4 N. J. E. 612; 23 id. 529; 17 Johns. 548; 18 N. Y. 265; 23 id. 466; 14 Ohio St. 619; 1 Eawle, 231; 4 Ta 93; 63 id. 430; 80 id. 380; 2E. I. 355; 3 Dessau. 417; 1 Hill, Ch. 228; 1 Strob. E. 27; 8 Humph. 169; 1 Cold. 461; 2 Leigh, 183; 37 Vt. 78; 13 Blatch. 285; 9 Wall. 119. On executions against her separate estate, see 21 Cent. Law J. 44-i9 (1885), cases; as to wife dealing with it, 24 Am. Law Reg. 470-78 (1885), oases. .2 2 Bishop, Mar. & D. § 225. = See 1 Bishop, Mar. & D. §§ 550-58, cases. for the continuance of one already taken place; espe- cially so, if the separation was occasioned by the mis- conduct of the husband, and the provision is reason- able, and not more than the court would have decreed as alimony." See Desbbtion, 1; Divorce; Hdsbakd. SEPULCHER. The place where the body of a human being is buried ; a grave. Violation of sepulcher is the misdemeanor of will fully and unlawfully opening a tomb, vault, or grave, and clandestinely removing the corpse therefrom. The offense has been extended to include the mutila- tion of gravestones, monutnents, fences, shrubbery, etc., in places of interment- See Burial. SEQUESTRATION.^ Separating or setting aside a thing in controversy from the possession of the contending parties. 1. Gathering and taking care of the fruits and profits of a vacant benefice for the bene- fit of the next incumbent.^ Also, an execution against the profits of a benefice to collect the same for the plaintiff till the full sum is realized.^ 3. A remedy, in equity practice, by which property is taken possession of by a court in order to enforce obedience to a decree, or to preserve it in its integrity during the time that a controversy respecting it is pending; Issued at common law, when a defendant eluded service of process, and after a commission of rebelhon was returned non est inventus. It seizes all person- alty, and the profits of realty, and detains them sub- ject to order." It issues either as a mesne process, on the defend- ant's not appearing or not answering, after the whole process of contempt has been spent against him; or as a judicial process, in pursuance of a decree, and to enforce the specific performance of it.^ Where, by the election of a widow to take under the law rather than under her husband's will, a bene- fit accrues to some legatees and a loss is entailed upon others, the income or annual value of the benefits in- tended for the widow and the first class of legatees may be sequestered for the purpose d£ securing com- pensation to the latter class. As, when, from such election, a residuary legatee is disappointed and a General pecuniary legatee is benefited.' 'Walker v. Walker, 9 Wall. 760-51 Davis, J. ' L. sequestrare, to lay aside, surrender: sequester, a mediator, trustee. s See 2 Arch. Pract. 966. 1 [3 Bl. Com. 418. ' [3 Bl. Cora. 444.] ' Herman, Executions, § 4i. i ' McReynolds v. Counts, 9 Gratt. 242, 244 (1858); Firth V. Denny, 8 Allen, 468 (1861); Van Dyke's Appeal, 60 Pa. '.81 (1839); Sandoe's Appeal, 66 id. 314 (1870); Gal- lagher's Appeal, 87 id. 200 (1878); Young's Appeal, 108 id. 17 (1885). SERGEANT 937 SERVANT Sequestrator. The person who is placed in charge of sequestered property. The same general rules apply to him as to a re- ceiver,^ q. V. SERGEANT or SERJEANT .2 In Eng- land, the title of several officers. Sergeant-at-arms. An executive officer to a legislative body, and to a court of chan- cery, one of whose duties is to arrest for con- tempt.s Sergeant-at-law. A barrister of the common-law courts, of high standing. These sergeants seem to have derived their title from the old knights templars, and have continued as a separate fraternity from an early period. Until 1834 they had the exclusive privilege of practicing in the courts of common pleas.* A species of advocate or counsel, but not qualified to execute the full office of advocate till of sixteen years standing; at which time he may be called to the state and degree of Serjeant — servientes ad legem. The first king's counsel under this degree was Sir Francis Bacon.* The degree was deprived of its peculiar advantage, audience in the common pleas, by 9 and 10 Vict. (1846), c. 54, which extends to all ban-isters the privileges of sergeants. In 1839 the court of common pleas had de- cided that the crown, by a mere order, could not open that court to the bar at large, and thereby deprive the seitgeants of the enjoyment of an immemorial ofBce.' Sergeantry. See Feudal System. SERIATIM. L. In a series : severally ; successively : as, the judges delivered opin- ions seriatim; questioiis to be answered seriatim. SERIES. See Bond. SERIOUS. "Serious bodily harm" is synonymous with " great bodily harm." 7 SERVAWT. 1. An assistant about the work of a household; a menial; a domestic; a family servant. A person hired for wages to work as the employer may direct. ^ A hireling who makes a part of a man's family, employed for money to assist in the economy of the family or in matters connected with it; a person who. from the nature of the station, must render servile of- fices within the walls of a house. ' One who is engaged not merely in doing work or services for another, but who is in his service, usually upon or about the premises or property of his em- ployer, subject to his direction and control therein, and liable to be dismissed.^ A " domestic '* servant resides in the house with the master he serves; he is not one whose employment is outside, as, a farm-hand who sleeps and eats outside though -he performs chores within the house." See Family. 3. A person employed to assist another in any vocation, but without the powers of an " agent." 3. An eniploj'ee, in the broadest sense, and inclusive of " agent.'' Co-servants; fellow-servants. Such servants as are employed in the same or a common service and subject to the same gen- eral control.^ Master and servant. Describes the re- lation of employer and employee. The relation which arises out of the contract of hiring; the relation in private life, founded in con- venience, whereby a man calls in the assistance of others, when his own skill and labor is not sufficient to answer the cares incumbent upon him.' Servants are menials or domestics, apprentices, laborers; also, stewards, factors, and bailiffs.' The duty of a father to educate and maintain his minor son entitles him to the son's services, and cre- ates the relation of master and servant between them.' The master acquires a property in his servant's labor, and may therefore recover damages for any de- taining or beating, whereby he loses the labor.* All servants, except apprentices, become entitled to wages according to agreement or custom. What notice, if any, shall be given of an intention to quit a service depends upon the nature of the service. If a servant leaves before the end of the term agreed upon, without good cause, or is dismissed for just cause, he loses his right to wages for the whole period served." The hirixjg of clerks, if general, is construed to be > 2 Story, Eq. § 833. See Steam Stone Cutter Co. v. Sears, 20 Blatch. 29 (1881); Tompkins v. Little Eock, &o. E. Co., 15 F. R. 11 (1 82). ' S&T-, or sSr-. M. E. sergeant: F. sergant, aerjant: L. aerviens, an officer. » [8 Bl. Com. 444.] * Brown's Law Diet. » 3 Bl. Com. 26-37. •The Sergeants' Case, 37 E. C. L. 333 (1839); ib. 360 (1840). 'Lawlorr. People, 74 III. 239-^1 (1874). , » Morgan v. Bowman, 22 Mo. 648 (1856), Leonard, J. 1 [Boniface v. Scott, 3 S. & E. '*354 (1817), Gibson, J. See also Lockett v. Pittman, 72 Ga. 817 (18S4). 2 Heygood v. State, 59 Ala. 51 (1877), Manning, J. See also Lang o. Simmons, 64 Wis. 529-30 (1886); 49 Barb. 298; 3 Eobt. 315; 25 Ohi© St. 168, 6 Q. B. D. 530, 673; 9 Hare, 551 ; 1 M. & K. 660. » Waterhouse v. State, 21 Tex. Ap. 603 (1886). Act 1 Feb. 1870: R. S. 1 1784. ' Act 15 Aug. 1876, § 1 : 1 Sup. B. S. 245. >Exp. Curtis, 106 U. S. 371 (1882), Waite, C. J.; Louthan v. Commonwealth, 7SJ Va. 202-4 (1884). « [KarmuUer v. Krotz, 18 Iowa, 357 (1865), Dillon, J. ; Morgan v. Mason, 20 Ohio, 409 (1851). » Goggs V. Huntingtower, 12 M. & W. '504 (1844), Al- derson, B.; 16 How. Pr. 152. Service of a paper. The judicial deliv- ery or communication of papers ; execution of process. The delivery or communication of a pleading, notice, or other paper in a suit, to the opposite party, so as to charge him with the receipt of it, and subject him to its legal effect. 1 Personal service. Delivery of an orig- inal writ, notice, or other paper, or a copy thereof with oral information as to the con- tents, to the person who is to be afEected by the service. When a statute requires service on a person it means pei-sonal service, unless some other mode is in- dicated." Service by attorney or upon attorney. Notification given to a party's counsel, per- sonally or at his office, as prescribed by stat- ute or rule of court. Service by publication, q. v. By pub- lishing the vsrit or notice as an advertisement in a designated newspaper, in cases where* the party to be served is either a non-resident or else is evading service, and, perhaps, also, by mailing a copy of the paper to his last known address. An affidavit for an order for service by this method must contain evidence tending to prove that the de- fendant could not be.found in the State after due dili- gence." Substituted service. Any mode, pro- vided by statute, instead of personal service, where that is impracticable and service by publication inappropriate. In English practice, service upon another than he upon whom it is primarily to be made, m cases where the latter is impossible.* Sometimes refers to service by publication. Substituted service, by pubUcation, is not allowed in the Federal courts in a purely personal action; only where some claim or lien is to be enforced." Substituted service, where property is once brought under control of the court, may be in any manner sufficient to inform a party of the object of the pro- ceedings. The property is assumed to be in the pos- session of its owner, in person or by agent, and seizure will inform bun of the nature of the proceedings. It suffices in all proceedings m rem. But where the ob- ject is to determine personal rights and obligations, that is, where the suit is merely in personam, such constructive service is ineffectual for any purpose. 1 Walker v. State, 52 Ala. 193 (1875). "Eathburn v. Acker, 18 Barb. 375 (1854). « McDonald v. Cooper, 32 F. R. 748-50 (1887). cases. * See Lush,-Prac. 867. »R. S. § 738; New York Lite Ins. Co. v. Bangs, 103 U. S. 439 (18S0). SERVIENT 943 SESSION Thus, as process from a tribunal of one State cannot run into another State and summon a non-resident to respond to proceedings, so publication of process, in that case, cannot create a greater obligation to ap- pear.' See further Return, 2. SERVIENT. See Easement. SERVITUDE. 1. The condition of a person who is bound to the performance of services. Involuntary servitude. "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly con- victed, shall exist within the United States, or any place subject to their jurisdiction." ^ There is no reference here to servitudes attached to property. That a personal servitude was meant is proved by the use of the word " involuntary," which can only be applied to human beings. The exception as a punishment gives an idea of the class meant. " Servitude " is of larger meaning than " slavery," as the latter is popularly understood. The purpose was to forbid all shades and conditions of African slavery, 2 * The committee on the details of the original Consti- tution used " servitude " as referring to an engagement to labor for a term of yea,rs. The committee on re- vision unanimously substituted " service " for it, serv- itude being thought to express the condition of slaves, service an obligation of free persons.* See Slavery; The act of June 23, 1874, protects persons of foreign birth against forcible constraint or involuntary serv- itude.* Under this act it was decided that an intention in a defendant in bringing a child to the United States to employ him as a beggar, or as a street musician, for his own proflt,Mf such employment would be inju- rious to the morals of the child and inconsistent with its proper care and education, according to its condi- tion, is an intention to hold to involuntary servitude, although the child (in Italy) consented to the employ- ment and did not afterward dissent." See Kidnaping; Persuade. Penal servitude. In England, a punishment in- troduced by 16 and 17 Vict. (185.3), c. 99, in lieu of trans- portation. A convict subjected to this punishment may be kept in any place of confinement in the king- dom, or ' in any river, port, or harbor thereof, or in some place in her majesty's dominions beyond the seas, appointed therefor by order in council, accord- ing as the secretar.7 of the state may direct; and may be kept at har4 labor, and be otherwise dealt with, as was a person transported. Statute 20 and 21 Vict. (1857), c. 3, abolished transportation; and 27 and 28 Vict. (1864), c. 47, sec. 2, forbids sentence to penal 'i Pehnoyer v. Neff, 95 U. S. 727 (1877), Field, J. 2 Constitution, Amd. XIII. Ratified Dec. 18, 1865. s Slaughter-House Cases, 16 Wall. 69 (1872), Miller, J. See also Civil Rights Cases, 109 U. S. 21 (1883). « 2 Bancroft, Const. 211. ' 18 St. L. 251: 1 Sup. R. S. 103. 'United States v. Aucarola, 17 Blatch. 423, 430-31 (1880). servitude for a shorter period than five years.' See Ticket, Of leave. 3. Metaphorically, a charge upon one es- tate for the benefit of another. An incorpo- real right, derived from the civil law, and answering to the easement {q. v.)ot the com- mon law. An example is the right to fasten joists in another's wall." See Support, 1. The Roman law admitted and provided for rights in the property of others, jura in re aliena, or, as they were usually called, jura in re. The oldest of these rights were called servitutes, servitudes, subjec- tions—the subjection of one estate to another, the liability of one estate to be used for the advantage of another. The relation was not affected by a change of owners. Among the most important were servi- tudes of way, drive, road, water-draining. These were known as the "praedial " servitudes. There were also "personal" servitudes, in which the right of use vested in a particular individual, and terminated with- his life. The most important of this class was the usufi-ucUis (q. V.) the right to use and enjoy some property of another. ^ SESSION".'' A sitting ; an actual sitting: a term of a court or of a legislative body. 1. The time during which a court sits for the transaction of business. ^ The whole term, which is construed as but one day, and that the first day of the term.' See Term, 4. Quarter sessions, or oourt of quarter sessions of the peace. A couit held in each county, every quarter of a year, for the trial of the smaller misdemeanors, especially of offenses relating to the highways, bastards, the settlement and provision of the poor, va- grants, apprentices, game, etc' Some of these offenses are proceeded upon by in- dictment, and others in a summary way by motion and order thereon. Capital felonies are remitted to the court of oyer and terminer.' Sessions, court of. In the State of New York, a court composed of the county judge, and two associates, all elected, and styled justices of the sessions. The jurisdiction ex- tends to the trial of misdemeanors — all crim- inal matters formerly cognizable by the court of general sessions of the peace of the county. ' See 4 Steph. Com. 449-53; 1 Steph. Hist. Or. Law Eng. 482, 480-83. 2 3 Kent, 435; Nellis v. Munson, 24 Hun, 576 (1881), s Hadley, Rom. Law, 182, 183, 190. * L. sessio: sedere, to sit. ' See People v. Auditor of Public Accounts, 64 III. 86 (1878); MaoNaughton v. South Pac. C. R. Co., 19 F. R. 882 (1884). « Dew V. The Judges, 3 Hen. & M. 87 (Va., 1808). ' [4 Bl. Com. 271-78; 3 Steph. Com. 43-44. SESSION 943 SET-OFF In the county of New York, a court of special ses- sions,— a court held by any three police justices, with exclusive jurisdiction over miademeanors, unless the accused elects, on his examination before the com- mitting magistrate, to be tried in the court of general session*, which is held by a single judge — the recorder of the county, the city judge, or the judge of general sessions, — and has jurisdiction over all crimes, capital or otherwise, including review of proceedings in special sessions. ' 2. A meeting of the members of a legisla- tive body as such. Sessions of Congress. "The Congi-ess shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day." ^ Each Congi-ess ordinarily holds two ses- sions, known as the first session and the sec- ond session. Extra or special sessions may be called by the President in pursuance of the provision " he may, on extraordinary Oc- casions, convene both Houses, or either of them." 3 The requirements that all Representatives and one- ttiird of the Senators shall be chosen every second year and that Congress shall assemble at least once each year limit "a Congress " to two years continu- ance, of two regular meetings for purposes of legisla- tion, and suggested calling the first and second years the "first" and the "second " sessions respectively.* See Statutes at Large. Sessions of the State legislatures. The constitutions of the States provide for these, as regular and extra sessions. In Rhode Island, a regular session is held twice a year ; in Massachusetts, New Jersey, New York, and South Carolina, once a year; in the other States and in the Territories, gen- erally, once every two years — a biennial ses- sion, with adjourned sessions sometimes held in the intervening year, except in Pennsyl- vania, where such sessions are prohibited. Extra sessions, on extraordinary occasions, may be convened by the governor. While the length of a ses- sion varies in the dieterent States, from forty to ninety ' See N. T. Crim. Code; 1 Abbott's Law Diet. 317; People V. Powel, 14 Abb. Pr. 93 (1863). ' Constitution, Art I, sec. 4, cl. 2. ' Constitution, Art. n, sec. 3. < The first and second sessions of the 1st Congress were held at the City of New York, March 4 to Sept. 39, 1789, and Jan. 4 to Aug. 12, 1790; and the third ses- sion at the City of Philadelphia, Dec. 0, 1790, to March 8, 1791. The sessions of the lid to the Vth Congref s were held at Philadephia, also the first session of the Vlth, closing May 14, 1800. The second session of the Vlth began at the City of Washington, Nov. 17, 1800. days, in most of the States it is sixty days, with pro- vision for continuance a cei'tain number of days upon concurrence of three-fifths or two-thirds of the mem- bers of both houses.^ SET. 1, n. All of several duplicates con- sidered together : as, a set of exchange, q. v. A lease of mines has been called a " mining set." 3, V. In conjunction with other words, has received judicial interpretation : Set aside. To annul, vacate, make void ; ^ " to defeat the effect or operation of : "* as, to set aside — an award, a verdict, report, judgment, writ, the service of a writ, a fraudulent conveyance, qq. v. Compare Cancel. Set down. To place upon the appropri- ate decket or record : as, to set down a case for argument or hearing. Set on fire. A statute allowing damages against one who shall set on fire the property of another does not apply to an accidental firing by a locomotive en- gine, without negligence.* Set out. To aver, allege: as, to set out a writing in its own words ; to set out in an indictment the facts which constitute the elements of the offense charged. 5 Set up. To propose as legally sufficient, by way of explanation or exoneration : as, to set up a defense or a matter in defense. SET-OFF. 1. In law, when the defend- ant acknowledges the justice of the plaint- iff's demand on the one hand, but, on the other, sets up a demand of his own, to coun- terbalance that of the plaintiff, either in whole or in part.^ The subtraction or taking away of one de- mand from another opposite or cross-demand, so as to extinguish the smaller demand and reduce the greater by the amount of the less, or, if the opposite demands are equal, to ex- tinguish both.' Formerly, sometimes called " stoppage," because the amount sought to be set off was stopped or de- ducted from the cross-demand.' Obtains where the defendant has a debt against the plaintiff arising out of a transac- tion independent of the contract on which the plaintiff sues, and desires to avail him- ' See Stimson, Am. Stat. Law, § 370. » State V. Primm, 61 Mo. 171 (1875). s Swalley v. People, 116 HI. 350 (1886). • Missouri, &c. E. Co. u Davidson, 14 Kan. 351 (1875). « See United States v. Watkins, 3 Cranch, C. C. 477 (1829). • 3 Bl. Com. 304. ' Byles, Bills, 365. SET-OFF 944 SETTLE self of that debt in the existiiig suit, either to reduce the plaintiff's recovery or to defeat it altogether; and, as the case may be, to re- cover a judgment in his own favor for the balance.! The defendant's case must be made out in the same manner as if he sought to maintain a separate action upon it." At common law, the right was not recognized : the defendant had his cross-action. To obviate this circu- ity of action, 2 Geo. II (1729), c. 22, § 13, allowed mutual debts to be set one against the other, and the matter to be given in evidence under the general issue, or to be pleaded in bar, notice of the particular debt being given beforehand. And 8 Geo. 11 (173,5), c. 24, § 4, enacted that said § 13 should apply to all mutual debts of a different nature except debts acci*uiDg as a penalty, which were to be pleaded in bar.^ The substance of those statutes has been re-enacted in the States generally, and the principle extended. Antecedently, equity, under peculiar circumstances of right, would compel a plaintiff to submit to a set- off,; but, to obtain this relief, the defendant had to file a sel)arate bill in equity. When the government is plaintiff, no set-off will be allowed, unless Congress has authorized it.* "Offset" has been used, to a limited extent, for set-off. 5 2. In equity, that right which exists be- tween two persons, each of whom, under an independent contract, owes an ascertained amount to the other, to set off their mutual debts by way of deduction, so that in an ac- tion brought for the larger debt, the residue only, after such deduction, shall be recov- ered.6 The mere existence of cross-demands will not be sufBcient to justify a set-off in equity. Indeed, a set- off is there ordinarily allowed only when the party seeking the benefit of it can show some equitable ground for being protected against his adversary's de- mand.*^ But set-off is not allowed of a joint debt as against a separate debt, nor vice versa; that is, more generally stated, it is not allowed of debts accruing in different rights — except under special circumstances, as, where fraud has been practiced.* ' Avery v. Brown, 31 Conn. 401 (1863), Sanford, J. 2Gorham v. Bulkley, 49 Conn. 91 (1881). See also Cook V. Mills, 5 Allen, 37 (1862), Bigelow, C. J.; 64 Mi.ss. 663; 49 Mo. 572. 3 See 3 Bl. Com. 805; 2 Story, Eq. §§ 1431-33; Adams, Eq. 222; Chitty, Contr. 12S7; United States v. Eckford, 6 Wall. 488 (1867). 'United States v. Robeson, 9 Pet. *324 (1835); 9 Cranch,236; 39 Cal. 389. 5 Mandeville v. Union Bank, 9 Cranch, 11 (1815). « Adams, Equity, 222. ' 2 Story, Eq. § 1436; Quick v. Lemon, 105 111. 686 0883). 8 2 Story, Eq. § 1437 ; Gray v. Hollo, 18 Wall. 632 (1873) ; Blake v. Langdon, 19 Vt. 492 (1847). Since the statutes of set-off of mutual debts and credits, courts of equity have generally followed the course adopted in the construction of the statutes by courts of law, and have applied the doctrine to equi- table debts. They have rarely, if ever, broken in upon the decisions at law, unless some other equity inter- vened, which justified them in granting relief beyond the rules of law. , On the other hand, courts of law sometimes set off equitable against legal debts. ^ In Pennsylvania, set-off is permitted of claims which are not mutual, but this is not in accordance with the general rules of equity. " In Kansas, set-off ia allowed for unliquidated damages.^ Compare Defalcation, 1; Recoupment. SETTLE. 1. To set or determine the form of ; as, to settle — a bill of exceptions, interrogatories, an issue. See under Excep- tion, 4. 3. (1) To reside ; to gain a right to main- tenance : as, for a pauper to be settled or to acquire a settlement in a particular town- ship or county.* See Belong. The right is obtained by birth, parentage, marriage, continued residence, payment of taxes, exercise of a public office, hiring and service, serving an apprentice- ship, etc., as local statutes pi'ovide.^ (8) To establish one's self upon ; to occupy, reside upon : as, to settle land. Settler. Within the meaning of pre- emption laws, one who actually resides upon the land in question.^ See further Pre- emption, 2. 3. Sometimes, to pay; sometimes, to ac- count together and strike a balance by com- putation ; at other times, to adjust matters in controversy, and strike a balance by agree- ment.^ "Settle" implies the mutual adjustment of ac- counts, and an agreement upon the balance. ^ An admission that a money demand has been " set- tled " is evidence tending to show payment.^ ^he settlement of an account between parties, re- sulting in a fixed balance, takes the case out of the " Greene v. Darling, 5 Mas. 212 (1828), Story, J. ; Howe V. Sheppard, 2 Sumn. 414-16 (1836); Gordon v. Lewis, ib. 633-34 (1837); Hendrickson v. Hinckley, 17 How. 447 (1854); Wulschner v. Sells, 87 Ind. 75 (1882), cases. = Gray v. RoUo, 18 Wall. 682 (1873). = St. Louis, &c. E. Co. V. Chenault, 36 Kan. 53 (1886), cases. ness or mistake, in law or in fact. If it be confined to particular items it concludes nothing in relation to other items not stated.^ Where an account is settled by the parties with aU the facts equally known to both, and no unfairness is practiced, the adjustment is conclusive.'* Settle up. Referring to the estate of a decedent or an insolvent, means to collect the assets, pay the debts, and distribute the bal- ance, if any, according to law. Compare Administkk, 4. Final settlement. May refer to the pay- ment of the final balance of cash ascertained to be in the hands of an executor or admin- istrator, so as to leave nothing to be done to complete the execution of his trust.* Partial settlement. When founded on regular proceedings is oalj prima facie evi- dence of its own correctness.' A " final settlement " is a conclusive determination of all the past administration.^ When an executor or administrator presents his account, purporting to charge himself with every- thing received and to credit himself with everything disbursed, and showing a balance for distribution, and the court, after due notice to parties interested, ap- proves and allows the account, that is a "final settle- ment " though there is outlying property which may yet come into the accountant's possession for adminis- tration. As to the subject-matter on which it oper- ates the settlement is final. ^ 4. To transfer property, real or personal, for the benefit of another. Whence settlor or settler, and settlement: ante-nuptial, post-nuptial, or marriage settle- ment, articles or deed of settlement, lawful and fraudulent settlements. Deed of settlement. An instrument by which the use of property is settled upon one or more persons (the beneficiaries), with directions as to the mode and time of hold- ing, enjoying, and disposing of the corpus of the property. The beneficiary is the settlor's wife or intended wife, wife and children, near relative, or creditors. 'Johns V. Lantz, 63 Pa. 326 (1809); Moaelland ii. West, TO id. 187 (1871). 2 Perkins v. Hart, 11 Wheat. 256 (1826). s Hager v. Thomson, 1 Black, 93 (1861). * Dufour V. Dufour, 28 Ind. 424 (1867), Frazer, C. J. ; Stevens v. Tucker, 87 id. 114-15 (1882), cases. ' Sims V. Waters, 65 Ala. 445 (1880). •Pomeroy v. Mills, 37 N. J. E. 580 (1883), oases, Dixon, J. (60) A promise to settle property on an intended wife is void, under the Statute ot Frauds; and, made after marriage, is void for want of a consideration. The old doctrine that if the settlor is in debt his deed is void has been generally abandoned. The rule now is that prior indebtedness is presumptive, not conclusive, proof of fraud. Where there is no fraud there will be no infirmity in the deed. Every case de- pends upon its own circumstances. The vital ques- tion is the good faith of the transaction: there is no other test.' The right of a husband to settle a portion of his property upon his wife, and thus provide against the vicissitudes of fortune, when this can be done without impairing existing claims of creditors, is Indisputable. Its exercise tends to the future comfort of wife and children. The right arises from the absolute power he possesses over his own property, by which he can make any disposition which does not interfere with the existing rights of others. The transfer, moreover, may be directly to her: the technical reasons of the common law for conveying through a trustee having long since ceased to exist. A power reserved to re- voke or to appoint to other uses does not impair the efficacy of the transfer; nor wiU such power pass to an assignee in bankruptcy. ^ An ante-nuptial settlement, though made with a fraudulent design on the part of the husband, should not be annulled without the clearest proof of the wife's participation in the intended fraud; for, upon its an- nulment, there can follow no dissolution of the mar- riage, — the consideration of the settlement.^ See Conveyance, 2, Fraudulent. A post-nuptial settlement will be presumed to have been " voluntary." The burden of proof that there was a valid consideration rests upon one claiming a benefit under such settlement.^ Equity of settlement. The right of a wife to have a portion of her equitable es- tate settled upon herself and her children. Termed the " wife's equity " and her "equity to a settlement." By marriage, at common law, the husband acquires an absolute property in all his wife's personalty which is capable of immediate possession, and a qualified right in such property as he may, by legal measures, reduce to possession. But, inasmuch as he cannot reach his interest in her equitable rights (as, for ex- ample, in an estate vested in a trustee), which interest is even less than a qualified one, without application to a, court of equity, in which she must join, that court will not aid him, unless he agrees to " do equity," ' Lloyd V. Fulton, 91 U. S. 485 X1875), cases, Swayne, Ju.stice. ■> Jones I'. Clifton, 101 U. S. 227-^0 (1879), cases. Field, J.; Clark V. Killian, 103 id. 766 (1880); Wallace v. Pen- field, 106 id. 260 (1882): 59 Mo. 158; Moore v. Page, 111 U. S. 118(18(M), cases; Bean v. Patterson, 122 id. 4C9 (1887), cases. 3 Prewit V. Wilson. 103 U. S. 25, 24 (1880). cases. * Periy ti. Ruby, 81 Va. 317, .326 (1886), cases; Adams V. Edgerton, 48 Ark. 424 (1886), cases. SEVER 946 SHALL by making suitable provision for her out of that or other property in the event of her surviving him. The rule applies, also, as against his assignee ; and, also, when she as plaintiff seeks like relief against her hus- band or his assignee.' Strict settlement. A settlement by which laud was limited to a parent for life, and, after his death, to his son, sons, or chil- dren in tail, with one or more trustees inter- posed to preserve contingent remainders.^ In substance, a limitation iirst to the use of the set- tlor himself until a contemplated marriage took place, then to the use of the husband and wife for life, with remainder to the use of their first or other sons in tail; this being as far as a limitation could go without the intervention of a trustee." See Perpetuity. The object was to put it out of the power of parents to deal with the corpus of an estate to the prejudice of their issue. SEVER. To separate, divide, disjoin. Co-defendants may either all plead jointly the same defease, or each may plead a separate defense. The latter course is termed " severing " and '* severance." Severable. Susceptible of separation ; ad- mitting of distinct division, or of independent existence or maintenance : as, a severable — consideration, covenant, contract, g. v. As to severing crops from realty, see Crop; Emble- ment; Fructus. Several. (1) Separated, separate ; distinct ; individual: as, a sevei:al — action, covenant or obligation, fishery, plea. Opposed, joint, q. V. Compare Sep abate, 3 ; Divers. A testator directed that his property should be di- vided after the " several " deaths of persons named. Held, that several v^as not synonymous with " respect- ive; " that the division was to be postponed until all the persons had died.* (3) More than two, but not many. In a case in Alabama, six to seven hundred was held included in " several " hundred dollars — the recom- mended limit of credit to a retailer of groceries.^ May mean all, as, " my several children," used in a will." Severalty. He that holds lands in sever- alty, or is sole occupant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest, during his estate therein. . . Also termed a " sev- eral tenancy." ' 1 See 2 Story, Eq. §§ 1404-8, 1403; 3 Pomeroy, Eq. §§ 1114 et seq. 2 [1 Steph. Com. 333. 3 [2 Washb. E. P. 358. * Colton V. Fox, 67 N. T. 352 (1876). ' Einstein v. Marshall, 58 Ala. 163, 164 (1877). « Outealt V. Outcalt, 43 N. J. E. 501 (1886). '2B1. Com. 179. Unless expressly declared otherwise, all estates are supposed to be of this sort.' Conapa,re Entirety. See Partition. SEWER. Will apply to an underground structure for conducting the water of a nat- ural stream, as well as to a structure used exclusively for surface flpw.s The duties of municipal authorities, in adopting a general plan of drainage, and determining when and where sewers shall be built, of what size ajid at what level, are of a quasi judicial nature, involving the ex- ercise of deliberate judgment and large discretion, depending upon considerations affecting the public health and general convenience throughout an exten- sive teiTitory. The exercise of such judgment and discretion, in the selection and adoption of the general plan or system of drainage, is not subject to revision by a court or jury in a private action for not properly draining a sufficient lot of land. But the construction and repair of sewers, according to the general plan so adopted, are simply ministerial duties; and for negh- ^ence in so constructing a sewer, or keeping it in re- pair, the municipality which has constructed and owns the sewer may be sued by a person whose property is thereby injured. ' See Drainage; Negligence; Repair, 3. SEX. See Citizen ; Dubess ; Influence. SHAIili. As against the government, in a statute construed " may,'' unless a contrary intention is manifest.^ Construed " must " in order to sustain or enforce an existing right; but need not be, to create a new right." See further May. Whether "shall" imports futurity depends upon the subject-matter and the context.** Shall be allowed. An appeal from the circuit court "shall be allowed". — R. S. § 692. This means ynust be allowed, when asked for by one in a position to demand it.' Shall be given. An act provided that certain lands " shall be given to Major-General Nathaniel Greene.'* Held, those are words of absolute donation, and con- vey a present right. ^ Shall be law^ful. The meaning of " it shall be lawful," in a statute, depends upon the subject-mat- 1 3 Bl. Com. 179. 2 Bennett v. New Bedford, 110 Mass. 436 (1872). 'Johnston v. District of Columbia, 118 U. S. 20-21 (1686), Gray, J., citing, as " the leading authorities,!' i Child'-u. Boston, 4 Allen, 41, 51-53 (1862), Hoar, J.; Mills V. Brooklyn, 32 N. Y. 469, 495-50O (1865), Denio, C. J. See ftlso cases collected, 118 U. S. 20; Gilluly v. City of Madison, 63 Wis. 528 (1886); Attorney -General V. Northampton, 143 Mass. 589 (1887), cases; Hitchins v. Frostburg, Md. Gt. Ap. (1887), cases; 24 Cent. Law J. 133, 411 (1887), cases. * Cairo, &c. E. Co. v. Hecht, 95 U. S. 170 (1877). " West Wisconsin R. Co. v. Foley, 94 U. S. 103 (1876). ' Hannibal, &c. E. Co. v. Board of Equalization, 64 Mo. 304 (1876). ■ ' Exp. Jordan, 94 U. S. 251 (1876). 6 Rutherford v. Greene's Heirs, 3 Wheat. 198 (1817). SHAM 947 SHELLEY'S CASE ter. Prima facie the words import a discretion, but they may be imperative.' Shall go. That property held in common between husband and wife " shall go " to the survivor means, shall vest in that person. ^ Shall not. May mean " cannot; " as, in the pro- vision that if a vessel departs without a permit or clearance, and shall not be seized, the owner shall pay a penalty. 3 SHAM. Referring to an answer, de- fense, or plea, — good in form, but false in ' fact ; false and not pleaded in good faith ; so clearly false as not to present a substantial issue ; interposed for delay. The distinguishing characteristic of a sham answer is falsity, and, to warrant applying the severe rule of striking it off the record, the matter must be shown to be unquestionably false and not pleaded in good faith.* Compare FurvoLous. SHARE. A portion of anything: as, a share of stock, a share in an estate, a widow's share. 5 See Paet, 1 ; Portion. A share in a corporation is a right to participate in the profits, or in a final distribution of the corporate property pro rata.' There is no such thing in rerum natura as a *' rail- way share." It is not such a thing as you can see or touch. It is a term which indicates simply a right to participate in the profits of a particular joint-stock undertaking. And the word stock may have the same meaning, as, in a will.^ Share and share alike. Equal in quan- tity and quality ; in equal proportions. In a will, " equally to be divided," " share and share alike," "respectively between and among" certain persons, will generally create a tenancy in common. ^ ■ Shareholder. See Stock, 3. SHARP. In the sense of authorizing summary action, is used (perhaps locally) of a clause in a, mortgage or bond, or of the whole instrument itself, which provides for proceedings in execution immediately upon ' The Queen v. Bishop of Oxford, L. E., 4 Q. B. 257, B63 (1879); 1 Bam. & C. *85; 2 Dowl. & E. 172. » Broad v. Broad, 40 Cal. 496 (1871). 'Parker II. United States, 2 Wash. 363(1809). * See People v. McCumber, 18 N. Y. 821 (1858) ; Thomp- son V. Erie E. Co., 45 id. 471 (1871); Way land v. Tysen, ib. 282-83 (1871); Littlejohn v. Greeley, 22 How. Pr. 345 (18B1); Gostorfs v. Taafe, 18 Cal. 388 (1861); Glenn v. Brush, 3 Col. 31 (1876); Greenbaum v. Turrill, 57 Cal. 287 (1881); Baker v. Foster, 29 Minn. 167 (1882); 1 Chitty, PI. 541. = See 49 111. 110; 13N. Y.98; 27 Barb. 371; 46 Tex. 15; 23 Wis. 655. • Field V. Pierce, 102 Mass. 261 (1869), Ames, J. ; Peo- ple V. Commissioners, 40 Barb. 353 (1863). ' Morrice v. Aylmer, L. E., 10 Ch. Ap. 155 (1874). 6 Gilpin II. HoUingsworth, 3 Md. 194 (1852); Proven- ohere's Estate, 1 Leg. Gaz. E. 69 (1870). default made in complying with any condi- tion; as, for non-payment of money — prin- cipal, interest, premium of insurance, or taxes. SHAVE. To buy any security for money, at a discount ; also, to obtain the property of another by oppression and extortion. To charge a man with using money lor " shaving ",is - not, -within those senses, libelous per se.' SHED. See Arson. SHEEP. See Animal. If a ewe is stolen, it must be so called in the indict- ment; a lamb must be called a lamb; "sheep" is proper only where the animal is a wether.' See Worry. Sheep-shears. See Cutleet. SHEET. See Book, 1 ; Folio. SHELLEY'S CASE. The limitation of a remainder, in fee-simple or fee-tail, to a person who already has an estate of freehold, is governed by a rule of law known as the rule in Shelley's Case — a case decided in 1581 by Lord Francis Coke, and in which the rule was first authoritatively declared, and clearly stated. The rule, as there expressed, is: " When the ancestor by any gift or con- veyance takes an estate of freehold, and in the same gift or conveyance an estate is lim- ited either mediately or immediately to his heirs in fee or in tail, ' the heirs ' are words of limitation of the estate, and not words of purchase." s That is to say, when a person takes an es- tate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the in- terposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of per- sons to take in succession from generation to generation, the limitation to "the heirs" en- titles the ancestor to the whole estate.^ The word " heirs," or " heirs of the body," creates a remainder in fee, or in tail, which the law, to prevent an abeyance, vests in the ancestor, who is " tenant for life," and by the conjunction of the two estates he be- comes " tenant in fee " or " in tail ; " and, whether he takes the freehold by express limitation, by resulting use, or by implication of law, the subsequent remain^ ■ [Stone V. Cooper, 2 Denio, 800 (1845), Walworth, Ch. 2 Rex V. Birket, 19 E. C. L. 482 (1830). ' Shelley's Case, 1 Coke, *104. See Webster v. Coo- per, 14 How. 500 (1852). < Preston, Estates, 263-419. See also 2 Bl. Com. 342. SHELLEY'S CASE 948 SHERIFF der to his heirs unites with, and is executed on, his estate for] if e.i The words " issue of his body " are more flexible than " heirs of his bod}'." The courts more readily interpret the former £vs synonymous with " children " and a description of persons, than the latter.'' The rule is older than Shelley's Case. Some trace its orighi to the feudal system, which favored taking by "descent," for thereby the incidents of wardship, marriage, relief, etc., attached, while in "purchase" the taker was relieved from those burdens. Others attribute it to the aversion of the common law to fees in abeyance, a desire to promote the transferability of realty and make it liable for the specialty debts of the ancestor. 2 The rule, instead of regarding a part of the entire estate as being in the ancestor, and a part in his heirs, considers the entire estate as in him alone; that the intent in creating it was to have it go in a certain line of succession, and, if the first taker died intestate, his heirs should take by descent from him, and not as purchasers under the original limitation. By statutes in some States (as see below), such a limitation is de- clared to be what it purports to be in terms, — a con- tingent remainder in the heirs.^ Applies alike to legal and equitable estates.* Applies, also, to trust estates where both the life estate and the remainder are of the- same, character. The legal effect of the union of the two estates does not occur where the life estate is of an equitable char- acter and the remainder is legal, or vice versa. Both estates must be of the same character, whether cre- ated by deed or devise.^ The rule is that where the ancestor might have taken and been seized, the heir shall inherit.' The rule operates only on the intention (of the dev- isor) when it has been ascertained, not on the mean- ing of the words used to express it. . . It gives the ancestor an estate for life in the first instance, and, by force of the devise to his heirs, general or special, the in^ieritance also, by conferring the remainder on him, as the stock from which alone they can inherit.' The rule, which was adopted as part of the common law of this country, is said to have been abolished, in whole or in part,, in Alabama. Connecticut, Illinois, Kentucky, Maine, Massachusetts, Michigan, Minne- sota, Mississippi, Missouri, New Hampshire (as to de- vises). New Jersey (devises). New York, Ohio (devises), Rhode Island (devises), Tennessee, Virginia, and Wis- consin. ^ See Heir; Issue, 5; Purchase, Words of. 1 4 Kent, 215. 2 Daniel v. Whartenby, 17 Wall. 642-44 (1873), cases, Swayne, J. 8 2 Washb. E. P. 268. * Croxall V. Shererd, 5 Wall. S81 (1866), cases. 6 Green v. Green, 23 Wall. 439-92 (1874), cases, Hunt, J. eWallach v. Van Riswick, 92 U. S. 213 (1875): Thomby v. Fleetwood, 1 Stra. 318 (1720). 'Hileman v. Bouslaugh, 13 Pa. Z'A (1850), Gibson, 0. X; Guthrie's Appeal, 37 id. 1, 13-22 (1860), cases, Strong, J.; Millett v. Ford, 109 111. 162-63 (1886), cases; Allen V. Croft, ib. 479 (1886), cases. 8 See Williams, R. P. 249,4 ed., notes byRawle; S SHELLS . See^ Manufacture. SHERIFF. 1 An officer who represents the administrative power of a State within one of its counties; an officer who executes the mandates of the courts of record within a county; the chief ministerial officer in a county. Sheriffalty. The office of sheriff. Shrievalty is about obsolete. An officer of great antiquity. In Latin, the,t;^ce- comes, the deputy earl, to whom the custody of the shire was committed at the first division of the kingdom into counties. But the earls, in time, by reason of their high employments and attendance on the king's per- son, not being able to transact the business of the county, were delivered of that burden, reserving to themselves the honor, while the labor was laid upon the sheriff. So that now the sheriff does all the king's business in the county ; and, though he is still called the vice-comes, he is entirely independent of the earl; the king by his letters-patent committing the care of the county to the.sheriff alone. =* He was the iiiimediate officer of the king within the shire; received his commission from the king, and directly represented the sovereign power. In this country his fimction has been similar, his relation to the sovereign power the same. He is the chief execu- tive officer of the State in his county. In Missouri his office exists by'provisions of law and of the constitu- tion. He obeys the mandate of the State in executing writs issued to him by the coiu-ts of his own and other counties. He is the State officer whose jurisdiction is ordinarily bounded by his own county.^ Originally, the office*was held by men of large es- tate, able to support the retinue of followers which the dignity of the office required, and to answer in dam- ages for neglect of duty. Now, a bond with sureties is given as security for the execution of the duties therein named, all of which are chiefly ministerial.* In England, in his judicial capacity, he formerly held the sheriff's tourn or county court, and performed certain other functions. As king's bailiff, he seized all escheats, forfeitures, waifs, wrecks, estrays, etc.^ As conservator of the peace in his baili- wick, he represents the sovereign power : has Washb. E. P. 2(38-76; 2 Kent, 214; Tud. L. C. 482; 10 Conn. 448; 23 Ind. 28; 26 id. 251; 88 id, 418; 99 id. 190; 70 Iowa, 61; 15 B. Mon. 282; 18 id. 329; 7 Mete. 173; 16 Gray, 307; 24 Miss. 366; 59 id. 299; 40 N". H. 500; 1 N. J. L. 525; 40 Barb. 468; 5 R. I. 127, 276, 549; 6 id. 264; 7 id. 145, 383; 13 id. 630, 714; 11 Lea, 656; 21 Tex. 804; 22 id. 547; 16 Pa. 93; 36 id. 117; 45 id. 179; 50 id. 483; 64 id. 15; 70 id. 73, 335, 509; 75 id. 339; 83 id. 242, 377; 86 id. 386; 87 lU 144, 248; 91 id. 30. ^ Sax. shii-e, a part sheared off: a division, county; and reeve, a bailiff, officer,— 1 Bl. Com. 116, 117, 339; 56 Pa. 275. See Reeve. 2 1 Bl. Qom. 339, 117. 3 State ex rel. Beach v. Finn, 4 Mo. Ap. 352-53 (1877). 4 South V. Maryland, 18 How. 402-3 (1855), cases. M Bl. Com. 343; 18 How. 401; Dow v. Humbert, 91 U.iS. 300(1875), cases. SHERIFF 949 SHIP care of the county; may make arrests upon view ; may bind to keep the peace ; may com- mand the power of the county. In his min- isterial capacity, he executes all processes issued from the courts : summons and returns juries; makes arrests upon warrants; and executes judgments and sentences.l The office exists in this countiy substantially as de- rived from England,— the details are matters of con- stitutional or statutory regulation. The sheriit is generally elected by the people of the county, tor a term of two or three years. Presiding at inquests is his chief j ud icial duty ; his other du ties are ministerial, and generally performed by deputies. Obedience to all precepts committed to him is the ■whole of his duty ; and hence, if they issue from com- petent authority, and with legal regularity, and so appear upon their face, he is justified for every action within the scope of. his command." His liab'ility varies with the conditions under which he acts. In some matters he stands as an insurer, warranting the practical perfection of his worlf . Thus, he is answerable for the escape of a prisoner in exe- cution; he assumes to know the law, and must not, therefore, commit a legal mistake, and he cannot safely keep property seized in execution.^ Deputy sheriff. A person selected by a sheriff to assist him in discharging tlie duties of his office. An officer coeval with the sheriff himself. The ap- pointment of deputies arose from the impossibility of the sheriff's performing all the duties of his office in person. It was very early decided that the deputy could execute any writ directed to the sheriff by the name of his cffice, and not by a particular name. A "deputy sheriff" is a general deputy, with powers as extensive as the sheriff can delegate. An "under sheriff " may mean a deputy sheriff.* A general deputy attends to all the ordi- nary duties of the office. A special deputy represents the sheriff in some special relation, as, in executing a particular writ. A general deputy executes all processes without special power from the sheriff; m some cases he may delegate authority, in the name of the sheriff, to a special deputy.^ See DEpnTY. High sheriff. Imports no more than the word " sheriff; " " high " is pleonastic. ' 1 Bl. Com. 313; 18 How. 401; Dow v. Humbert, 91 U. S. 300 (1875), cases. ' Watson D. Watson, 9 Conn. *146 (1832), Hosmer, C. J. Approved, Conner v. Long, 104 U. S. 238 (1881). See also 7 Mete. 269; 10 Cush. 46; 2 Gray, 410; 5 Wend, 170; 24 id. 483; 20 How. 65. ' s Strout V. Pennell, 74 Me. 262-63 (1882). « TUlotson V. Cheetham, 2 Johns.* 70, 73 (1806), Kent, Olripf Tii^l'if fi » Allen V. Smith, 12 N. J. L. 162 (1831); Gradle v. Hoff- man, 105 111.' 153 (1882); Eeves v. State, 11 Lea, 186 (im); Oliver v. Athey; ib. 150 (1883); Marx v. Han- thom, 30 F.B. 583(1887). Sheriff's inquest, or jury. A jury, in number not more than twelve, summoned by a sheriff, to hold an inquest of office or make other inquiry required by local law. See Inquest. Sheriff's sale. A sale of property by a sheriff or his deputy, in execution of the mandate of legal process. ^ See Sale, Judi- cial. See also Arrest, 2; Bailiwick; Capere; Corokeb; County; Escape, 2; Exigency; Marshal, 1 (2); PeHt ishable; Return, 2; Service, 6. SHIFTED. See Waerant, Land. SHIFTING-. See Inhekitancb; Use, 3. SHILLITSTG. See Pound, 1. SHINGLES. See Timber. SHIP. 1. The Anglo-Saxon soipe, state, office, calling, destiny. As, in citizenship, exeoutorEhip, guardianship, heir- ship. Judgeship, mastership, membership, partner- ship, receivership, solicitorship, suretyship, survivor- ship, township, trusteeship, wardship. 2. The Anglo-Saxon scip, a ship, literally, a thing shaped: a general designation for any vessel navigated with sails ; ^ any vessel employed In navigation. In the Roman law, anything which floated upon the waters and was accessory to commerce.* Any vessel that substantially goes to sea. By the act of 17 and 18 Vict. (1854), c. 100, s. 2, "every description of vessel used in navigation not propelled by oars." < Includes whatever is built in a particular form for the purpose of being used on water.^ In its ordinary acceptation, it is generic for anything formed for the purpose of going on the water.6 " Ship" and "vessel" are used in a very broad sense, to include all navigable struct- ures intended for transportation. But a fixed structure, like a dry-dock, is not used for such purposes.'' Within the meaning of a particular statute, a ferry- boat may not be a " ship;" " nor may a canal-boat; • nor a coal-barge; ■» nor a small open boat employed 1 See Batchelder v. Carter, 2 Vt. 1T2 ( 2 LTomlins, Law Diet. ; 4 Wash. 530. 8 Raft of Cypress Logs, 1 Flip. 544 (1870). * [Exp. Ferguson, L. B., 6 Q. B. *2i)l (1871). 1 The Mac, 46 L. T. 909 (1882), Brett, L. J. • Ibid. 910, Cotton, L. J. ' Cope c. Valefcte Dry-Dock Co., 119 U. S. 629, 687 (1887), Bradley, J. » 17 Johns. 54. •5 Hill, 34; 17 Barb. 623; 3 Wall. Jr. 199; 2 Grant, 521. Contra, 8 Grant, 4D. 10 3 Grant, 110. SHIP 950 SHIP within a port; ' nor a dredge, or mud-hopper dredge; ' nor, as subject to admiralty n'urisdiction, are flat-boats ■or coal-barges transporting merchandise and sold for lumber at the end of the voyage. ^ A steamship is u vessel whose principal motive power is steam and not sails.* See further Vessel. Domestic ship; foreign ship. Whether a vessel is foreign or domestic depends upon the residence of her owners, and not upon her enrollment, where the two are different. ^ General ship. A vessel which carries merchandise for all persons who may apply for transportation, as distinguished from a vessel chai'tered to one or more individuals. , A ship by which the master or owner en- gages separMely with a number of persons, unconnected with each other, to convey their respective goods to the place of the ship's destination.* Ships are strictly and technically denominated chattels, or personal property, at the common law, although distinguishable from other kinds of person- alty by the solemnities by which the title is ordinarily acquired, transferred, and made susceptible of pledge, lien, or mortgage. The title is now usually acquired, transferred, and evidenced by written documents.' In international law ships are regarded as floating sections of the land to which they belong, and whose flag they carry. Hence, a general assignment under the insolvent laws of a State passes title to a vessel on the high seas, as if within the State. ^ A vessel carries with it the local rights and legal jurisdiction of her state or territory. All persons on board are endowed and subjected accordingly. But the principle is subject to the powers of Congress over conamerce and crimes.^ Ship-broker. One who makes contracts for the employment of vessels. Ship-chandlery. Includes everything necessary to furnish and equip a vessel, so as to render her sea-worthy for the intended voyage.i" Shipped. Placed on board a vessel for the purchaser or consignee, to be transported at his risk. 11 1 5 Wend. 564. 2 15 Can. L. J. 268; 46 L. T. 206, 907. ' 8 Wall. Jr. 53; 1 Flip. 545, a raft. « L, E., 7 Q. B. 669. "The Albany, 4 Dill. 439 (1876), Dillon, Cir. J.; Weaver v. The Owens, 1 Wall. Jr. 365 (1849). « Waru V. Green, 6 Cow. 176 (1826), Savage, 0. J. ; Abb. Ship. 123, 319; 1 Pars. Mar. L. 130. ' Story, Partn. § 416. « Crapo V. Kelly, 16 Wall. 634-33 (1873), cases. Wilson V. MoNamee, 102 U. S. 574 (1880); 1 Kent, 36; Woolsey, Int. Law, § 68. J» Weaver u Ihe Owens, 1 Wall. Jr. 359, 368-69 (1849j. >' Fisher v. Minot, 10 Gray, 363 (1857). Shipper. One who places property of his own on board a vessel for transportation. Shipping. Ships in general, vessels for navigation; also, relating to ships or vessels; and, the act of placing or receiving goods on board a vessel. Shipping articles. An agreement, in writ- ing, between the master and seamen wa board a vessel, specifying the voyage, and time for which the seamen are shipped.' Shipping commissioner. An officer ap- pointed for each of such ports of entry as, in the judgment of the circuit court having jurisdiction, may seem to require it, and charged with general supervision as to the contracts of seamen, and the enforcement of laws made for their protection and relief.^ Shipping, laws of. The law which re- lates to vessels — their construction, tonnage, ownership, registration, inspection, national character; the employment and rights of seamen, the power and duties of their com'- manders; ship-brokers, ship-agents, pilots, etc. ; the transfer of merchant vessels; freight, charter-parties, demurrage, towage, collisions, salvage, etc.^ Ship's bill. The copy of the bill of lad- ing of a vessel retained by the master. The bill delivered to the shipper controls, if the two do not agree as to the terms of the contract of af- freightment.* Ship's husband. The general agent of the owners in respect to a vessel ; in statutes of registration, called the managing owner.' The person who, in a vessel's home port, does what the owner would otherwise do — obtains a cargo, and attends to whatever is essential to the due prosecution of the voyage." There is no maritime lien on a ship in favor of her general agent or husband.' Ship's papers. (1) Documents which, under the laws of individual nations, a ship must carry — a certificate of registry, license, charter-party, bills of lading and of health. (2) Such documents as" the general law of nations requires a neutral ship to carry — a ■ See K. S. § 4509; 3 Sumn. 443; 1 Mas. 443; 2 id. 641; 5 id. 273. 2 See R. S. §§4501-8. = See E. S, §§ 4399, 4463-4500. See generally, as to ship-owners and seamen, ScarfE v. Metcalf, 107 N. Y. 311 (1887), cases: 1 Anr. St. E. 812-14 (1888), cases. "The Thames, 14 Wall. 105 (1871). » 1 Parsons, Shipp. & Adm. 109. " Gillespie v. Winberg, 4 Daly, 332 (1872), Daly, C. J. ' The Esteban de Antunano, 31 F. E. 923 (1887), cases. SHIRE 9ol SIDE passport, sea-brief or sea-letter, proofs of property, muster-roll, charter-party, bill of lading, bill of health, log-book or ship's jour- nal, etc.i Shipwreck. When a ship is so broken, disjointed, or otherwise injured that it no longer exists in its original nature and es- sence.2 Ship-yard. In a, policy of insurance, may mean the yard in actual use, including sidewalks.3 The rules for the acquisition of property by persons engaged in navigation, and for its transfer and de- scent, are, with some exceptions, those prescribed by the State to which the vessel belongs. In general, the legislation of a State, not directed against commerce but relating to the rights, duties, and liabilities of citi- zens, and only indu'ectly and remotely affecting the operations of commerce, is obligatory^ upon the citi- zens, within its territorial jurisdiction, whether on land or water, or engaged in commerce, foreign or inter-State, or in any other pm-suit.-* See Sale, Bill of. See further Abandon, 1; Admiralty; Anchor; Ap- purtenances; Arkest, 2 (1); Barratry, 1; Bilged; Bottomry; Cargo; Charter-party; Coasting Trade; Collision, 2: Commerce; Consort, 2; Conveyance, 1; Crew; Demurrage; Derelict, 3; Deviation; Dis- patch; Dredge; Effects; Embargo; Freight; Furni- ture; Hypothecation; Inspection, 1 ; Lading; Launch; Licit ation; Log-book; Lookout; Loss, 2; Maritime; Moderate, 2; Navigation; Necessaries; Outfit; Petitory; Plunder; Port; Primage; Protest, 3; Provisions; Quarantine, 2; Ransom; Registry, 1; Res, 2, Perit; Respondentia; Restitutio; Revolt; Road, 2; Sail; Salvage, 1; Sea; Search, Right of; Seizure, 3; Stranding; Tonnage; Touch; Towage; Visit, 1; Voyage; Wharf; Wreck; Yacht. SHXRE. See Sheriff. SHOOTING MAEK. See Game, 2. Shooting at a mark is lawful, but not necessary, and may be dangerous, and the law requires extraordinary care to prevent injury to others. If the act is done where there are objects from which balls may glance and endanger others, the act is wanton, reckless, with- out due care, grossly negligent.' SHOP. A place kept and used for the sale of goods. * In this country shops for the sale of goods are frequently called "stores." 'i See further Store, 2; Burglary. ■ FMarsh. Ins. ed. 1802, Ch. VHI, § 5, pp. 317-19. > Peele v. Merchants' Ins. Co., 3 Mas. 42 (1822), Story, J.; 1 Marsh. Ins. Ch. XHI, § 1. 3 Webb V. National Fire Ins. Co., 2 Sandf. 504 (1849). •• Sherlock v. Ailing, 93 U. S. 104 (18T6), Field, J. 'Welch V. Durand, 36 Conn. 185 (1869). « Commonwealth v. Riggs, 14 Gray, 378 '(I860), Met- calf, J. ' Commonwealth v. Annis, 15 Gray, J99 (1860), Mer- rick, J. Shopkeeper. See Trader. Shop-right. See License, 3. • Shops. See Railroad. SHORE. See Beach; Navigable; On; Riparian; Sea. SHORT. 1. More limited in time than some other; brief, or the briefest; opposed to long: as, a short — cause, draft, lease, note, notice, summons, qq. v. 2. Not exhibited in full ; not stated in de- tail : as, a short plea, q. v. See Entry, II. 3. As opposed to long, in the language of brokers, see Put, 2 ; Wager, 2. Shortly. Three months is not " shortly," that is. a reasonable time, within the presumed meaning of a sale of iron-pipe to " arrive shortly." ^ SHORT-HAND. See Stenographer. SHOULD. See May. SHOW. "Show" and "indicate" are not always interchangeable. "To show" is to make apparent or clear by evidence, to prove; an "indication" may be merely a symptom, that which points to, or give direc- tion to the mind. 2 Show cause. See Rule, 2. SHOWS. See Animal. SHRIEVALTY. See Sheriffalty. SHROUD. See Burlil. SHYSTER. See Crank; Pettifogger. Has reference to the professional character and standing of a lawyer. Hence, in an action for libeling one, as respects his character as a lawyer, by the use of the word, an issue as to whether the plaintifiE is a lawyer or not is material.^ In an action for libel expressed in ordinary lan- guage, a witness may not testify as to the sense in which he understood the language, nor that he under- stood it to apply to the plaintiff the term " shyster." * SIC. L. Thus ; so. Sometimes calls at- tention to a quoted word or phrase as being strictly literal. Sic utere. See Utere, Sic, etc. SICE. See Benefits; Charity; Dis- ease ; Influence ; Sunday ; Will, 2. Com- pare Languidus. SICUT. See Alias; Pluries. SIDE. Compare Along. " Fences on the sides of a railroad " may mean fences on the spaces between the road-bed and the outer lines of the company's land; not necessarily on the dividing lines.' ■ Thompson v. Currie, 4 Can. Leg. News, 139 (1881). 2 Coyle V. Commonwealth, 104 Pa. 133 (1883). 8 Gribble v. St. Paul Pioneer-Press Co., 31 Minn. 343. * Gribble v. Same, 37 Minn. 2T7 (1887), eases. 6 Marshall v. St. Louis, &c. R. Co., 51 Mo. 140 (1872). SIDEWALK 952 SIGN Side of tlie court. The laiv side and the equity side of a court designate a court ad- ministering justice, in the former case under the forms of strict law or common law, in the latter case according to the more liberal principles of equity. The' equity side of the courts is deemed always open for pleadings and proceedings preparatory to the ' hearing of causes upon their merits. Side-report. See Report, 3. Side-track. See Railroad. SIDEWALK. " A raised way for foot passengers at the side of a street or road; a foot pavement." ' May rest on posts, as well as on the ground. ^ The word *' street " presumptively always includes the sidewalks: as, in a statute providing for compen- sation for damages from a change of grade in a street, * although " street " often denotes that part of the way devoted to carriage travel. ^ A walk crossing a public alley is a " crosswalk," as distinguished from sidewalk.' In a suit to recover damages for injuries received from a fall caused by a detective sidewalk the plaintiff may show that other like accidents occurred at the same place from the same cause.* The duty of a municipal corporation is to see that its sidewalks are reasonably safe for persons using or- dinary caution. Mere slipperiness, from ice or snow, not accumulated so as to constitute a dangerous ob- struction, is not ordinarily such a defect as will make the city liable for damages occasioned thereby." See Snow; Street. SIDING. See Railroad. SIGHT. 1. Presence, q. v. 2. Presentment. Bills of exchange and drafts are fi-e- quently drawn at sight or a certain number of days after sight. In the former case the paper is called a sight bill or sight draft, pay- able on presentment. Deposits are received by banks subject to sight drafts. 'Challiss V. Parker, 11 Kan. 391 (1873): Webster's Diet. As to power to make, see Attorney-General v. Boston, 142 Mass. 304 (1886). ' City of Kokomo v. Mahan, 100 Ind. 843 (1884). 'Dickinson o. City of Worcester, 138 Mass. 562 (1886). «Pequignot v. City of Detroit, 16 F. R. 211 (1883); O'Neil V. City of Detroit, 50 Mich. 133 (1883). 'District of Columbia v. Armes, 107 U. S. 535-86 (1883), cases. » 2 Dillon, Munic. Corp. § 1006, cases; Chase v. Cleve- land, 44 Ohio St. 515, 609-11 (1886), cases; Boulder v. Niles, 9 Col. 415 (1886); Taylor v. Yonkers, 105 N. T. 305 (1887), cases; -17 How. 169; 32 Iowa, 328; 97 Mass. 269; 77 Pa. 113; 100 id. 119; 101 id. 616. On obstructing the sidewalk, see 84 Alb. Law J. 464-65 (1881), cases. Bills payable at sight are entitled to days of grace ■ by the law-merchant; but statutes may have changed that law. The holder of such paper must use due dili- gence to put it into circulation. The holder of paper payable after sight must present it within reasonable time." See ExoHANSE, 2, Bill of. SIGILLXJM. See Seal, 1. SIGN".2 Although in general understand- ing refers to writing the name at the foot or bottom of a document, is not confined to that meaning. The primary meaning is to write one's name on paper or to show or declare assent or attestation by some sign or mark.3 A " signing " may be at the beginning of a docu- ment, — within the meaning of the Statute of Frauds.* Within the meaning of that statute, also, a memo- randum is " signed " if the name is printed in a letter- head, with the contract underwritten.' But it may be that a will cannot be considered as " signed " unless the testator's name is affixed at the bottom, or otherwise outside the body.' Countersign. (1) To sign on the side opposite to another's name. (2) To sign what has already been signed by a superior; to authenticate by an addi- tional signature. Where the charter of a city required a document to be " signed " by certain officers, " countersigned," prefixed to one signature, was held not to be a mate- rial irregularity.' Sign a judgment. For the pfoper offi- cer of a court to formally enter a judgment. Judgments were formerly pronounced in open court, and are still supposed to be. But now, except in the^case of an issue at law, there is no actual deliv- ery in court or elsewhere. The plaintiff or ,def endant, when the cause is in such a state that by the course of practice he is entitled to judgment, obtains an allow- ance or entry by the proper officer, expressing gener- ally that judgment for a certain amount is given in his favor. This is called " signing " judgment.* Signature. The act of writing or putting down one's own name ; and the name so set down. May imply the personal act of writing one's own name or of actually making one's own mark. 9 > See 1 Daniel, Neg. Inst. §§ 617-19, cases. ^ L. signare; signum, a mark. = James v. Patten, 6 N. T. 12-13 (1851), Paige, J. * Clason V. Bailey, 14 Johns. *486 (1817). ' Drui-y V. Young, 68 Md. 546 (1882), cases. « Catlett V. Catlett, 65 Mo. 339-41 (1874). As an ele- ment of " execution," see Ladd v. Ladd, 8 How. 31 (1860). ' Gurnee v. City of Chicago, 40 111. 167 (1866). » [Steph. Plead. *1]1; Tidd, Pr. 616.] » Chapman v. Limerick, 66 Me. 393 (1868). SIGNET 953 SIMULATED May consist of the act of writing one's name with intention to authenticate the in- strument. 1 At common law, includes a mark unattested, unless the instrument is one whioli must be witnessed, irre- spective of the mole of signing." Where an instrument shows on its face the names of the contracting parties, an agent may sign his own name first, and add to it, " agent " tor his principal, . or he may sign tlie name of the principal first, and add, by himself, "as agent," All that is required is that the contract shall purport on its face to be the contract of the principal.^ See Blank, 2; Date, False; FoRaKRT; Mark, 1; Seal, 2. Sign-manual. (1) The king's signature to grants or letter-patents, as a personal, unofficial act. See Seal, 1, Great. (2) Any autograph signature. SIGNET. See Seal, 1, Great. SILENCE. In the law of estoppel, im- ports knowledge with opportunity to act.* No principle is better established than that a party is not estopped by his silence imless he has misled an- other to his hurt.' Although silence ag to a material fact is not neces- sarily, as matter of law, equivalent to a false represen- tation, yet concealment or suppression by either party to a contract of sale, with intent to deceive, of a material fact, which he in good faith is bound to dis- close, is evidence of, and equivalent to, a false repre- sentation." That sUence in an instrument is exclusion may be applied to a statute.^ Silent. A contract is sometimes said to be silent £is to a contingency. See Implied. See further Accounx, 1; Acijdiescence; Conceal, 5; Consent; Estoppel, Equitable; Knowledge, 1; Kepresextation, 1; Rescission; Stand By. SILK GOWN. See Gown, 3. SILVER. See Coin; Mine; Money; Tender, 2, Legal. SIMILAR. Denotes partial sameness, and, also, sameness in all essential particu- lars. 8 See SIMILIS. Within a statute respecting counterfeit money, is not equivalent to " in the simiUtude of." • See Simili- tude. ' Watson V. Pipes, 32 Mo. 466 (1856): 2 Greenl. Ev. § 674. ' Biokley v. Keenan, 60 Ala. 295 (1877). ' Elwell V. Shaw, 16 Mass. 46 (1819); Smith v. Morse, 9 Wall. 82-83 (1869). * Pence v. Langdon, 99 XT. S. 581 (1878). 'Philadelphia, &c. R. Co. v. Dubois, 12 Wall. 64 (1870); Hill v. Epley, 31 Pa. 334 (1858); Parrish v. Thurston, 87 Ind. 438 (1882), cases. 9 Stewart v. Wyoming Cattle Ranch Co., 128 V. S. 383 (1888). ' Bates ti. Brown, 5 Wall. 717 (1866). 8 Commonwealth v. Fontain, 137 Mass. 454 (1879). ' State V. McKenzie, 42 Me. 394 (1856). SIMILIS. L. Like. Compare Quasi. De similibus idem est judicium. As to like cases, the judgment is the same. See Arqumentum. Nullum simile est idem. No like thing is the same; likeness or similarity is not identity. Thus, while a partner is like a joint-tenant and a tenant in common, he Is neither ; * a telegraph company is like, but is not the same as, a common carrier; ^ an award of arbitrators is not like a judgment in all re- spects; ' a check resembles a bill of exchange, yet it is not the same thing. In the patent and copyright laws, identity, not resemblance, is regarded.* Similiter. Likewise; the like. A reply that as one party has put himself upon the country, the other does the same. The full sentence was et proedictus similiter, equivalent to " and he does the like." Expresses con- currence in referring a trial to the jury. In strictness, no part of the pleadings: it neither affirms nor denies any fact; is matter of form. Spoken of as the w»u!- iter.^ SIMILITUDE. Likeness; resemblance. "In the similitude of" may be synonymous with forged or counterfeited. " Similar " may not be equivalent.' Since, in the act of 1877 against counterfeiting silver coins, the words " in resemblance or similitude " are a variation or exposition of the preceding words- "falsely make, forge, or counterfeit," each meaning to make something in the resemblance or similitude of another, the former expression may be omitted in an indictment.' See Counterfeit; Genuine; Trade- mark. Between articles subject to duty, see Duty, 2. SIMONY. The corrupt presentation of one to au ecclesiastical benefice for money,' gift, or reward. 8 So called from resemblance to the sin of Simon Magus." SIMPLE. See Battery; Contract; Fee, 1 ; Interest, 2 (3) ; Larceny ; Receipt, 2 ;. Trust, 1. SIMPLEX. See Commendatio. SIMULATED." Feigned; fictitious. A simulated sale presents the outward appearances of a sale, while, in reality, no transfer of property is made." ' Story, Partn. § 90. 2 2 Pars. Contr., 6 ed. *257c, 257s. 'Ibid.mi. i Ibid. 257op. See also 2 Bl. Com. 61 ; 2 Story, 512. ' Gould, Plead. 290-91 ; Steph. Plead. 265; 9Mass. 533; 2 Day, 392; 11 S. & R. 32. « State V. McKenzie, 42 Me. 394(1850): Me. R. S., o. 157,. §5. ' United States v. Otey, 31 F. R. 69 (1887). ' 2 Bl. Com. 278-79; 4 id. 62; 1 C. P. D. 649. • L. simul, together; or Hmilis, like. 10 See 34 La. An. 198, 324. SINCE 954 SLANDER An interest conferred upon a person for the purpose of causing the jurisdiction of a partidular court to at- tach, is sometimes characterized as a " simulated in- terest." See Fictitious. SINCE. May cover the whole of a period between an event and the present time; while "subsequently" may refer to a par- ticular time.i SINE. L. Without. Sine die. Without a day — for the re- assembling of a body, or for the appearance of a defendant. Sine hoc. Without this. See Absque. SINGrLE. See Acknowledgment, 3; Adultery; Bill, III; Bond; Man; Orig- inal, 3 ; Sale. SINGULAK. See Number. SINKING FUND. See Fund. SISTER. See Consanguinity. Where a testator's property would be diverted from his lipeal descendants to strangers by construing " sis- ter " to mean half-sister, the burden of proving that that was his intention rests upon the contestant. 2 SIT. To hold a session of court ; to hold court. Sittings. In England, has much the same meaning that session or term has with us. Sittings in bane are for determining matters of law ; sittings at nisi prius, for trying issues of fact. ^ See Session; Teem, 4. SITUATE. To have a situs (q. v.), a place or position. Situated. In the United States, in such expressions as " all that tract of land situ- ated," etc., has been more commonly used than " situate." Personalty is situated wherever it may be at a par- ticular time. Strictly speaking, it cannot have a situs* See Contained. A house may be said to be situated on all the lands within the inclosure necessary for its enjoyment, and actually.so used.' SITUS. L. A thing placed, or lying; manner of lying, local position, place, site, situation. In situ. In place, in position. Personalty has its situs at the place of its owner's domicil. For purposes of taxation, a debt has its situs at the residence of the creditor. Realty has its Htus where it has been placed by nature. > Be Eosenfleld, 7 Am. Law Eeg. 621 (1868); 79 Me. 195. •J Wood V. Mitcham, 93 N. Y. 379 (1883). 2 See Gird v. State, 1 Greg. 311 (I860).. « County of Allegheny v. Gibson, 90 Pa. 397 (1879). i Orr V. Baker, 4 Ind. 88 (1853). Lex rei sitae. The law of the state where realty is situated, where property lies.' Com- pare Lex, Loci. See Property. SIXTY YEARS. See Tempus; Year. SKATING RINKS. See Exhibition. SKEPTIC. See Oath; Religion. SKILL. See Care ; Contract, Implied ; Expert ; Game, 2 ; Invention. SKINS. See Perishable. SLANDER.2 1. Injuries affecting a man's reputation and good name are, first, by malicious, scandalous, and slanderous words, tending to his damage and deroga- tion; and, second, by printed or written libels, pictures, signs, etc., which set him in an odious and i-idiculous light, and thereby di- minish his reputation.3 The former is some- times called oral or verbal slander, the latter written slander or libel. False defamatory words when spokea.* (As, if a man maliciously and falsely utters any false tale of another, which may endanger him in law by impeaching him of some heinous crime, as, to say that a man has poisoned another oris pei-jured: or which may exclude him from society, as, to charge him with having an infectious disease; or which may impair or hurt his trade or livelihood, as, to call a tradesman a bankrupt, a physician a quack, a lawyer a knave. Words spoken in derogation of a peer, a judge, or other great officer of the realm, and words _, tending to scandalize a magistrate or person in a pub- lic trust, are reputed more highly injurious than when , spoken of a private person. For such scandalous J words an action on the case may be had, without prov-# ing any particular damage to have happened, butf merely upon the probability that it might happen! But with regard to words that do not thus upon the face of them import such defamation as will of course be injurious, it is necessary that the plaintiff aver some particular damage to have happened.* Oral slanders, as a cause of action, are: (1) Words falsely spoken of a person which impute the commission of some criminal offense involving moral turpitude, for which, if the charge is true, he may be indicted and punished. (2) Words falsely spoken which impute that he is infected with some conta- giousi disease, and which, if true, would ex- clude him from society. (8) Defamatory words falsely spoken, which impute unfit- ness to perform the duties of an office or employment of profit, or the want of integ- 1 Story, Confl. Laws, § 379. 2 F. esclaiidre, scandal, 2* i*- i'3Bl. Com, 123, 125. \J * Odgers, Libel & Slander, 1, 7. « 3 Bl. Com. 123-24. SLANDER 955 SLAVERY rity in the discbarge of the duties thereof. (4) Defamatory words falsely spoken, which prejudice the person in his profession or trade. (5) Defamatory words falsely spoken, which, though not in themselves actionable, occasion the person special damage. The or- dinary meaning is to be affixed to the words, i Mere scurrility, or opprobrious words which neither import nor are attended with injurious effects, will not support an action. Words of heat and passion, as, to call a man a rogue and rascal, it provocative of no ill consequence, and not being of the dangerous species mentioned, are not actionable; neither are words spoken in a friendly manner, as, by way of ad- vice, admonition, or concern, without any tincture or circumstance of ill will: for. In both cases, they are not spoken maliciously; nor are words used in a legal proceeding, pertinent to the cause. . . If the de- fendant is able to justify- and prove the words true, no action will lie, though special damage en^ue: if the fact be true, any damage is damnum absque injuria.^ The words must be "published," that is, be com- municated to a third person in a language he under- stands. See Publication. A party to a judicial or quasi judicial proceeding may say anything concerning the case that is pertinent and material, and cannot be held to answer for scan- dalous words, unless, under pretense of pleading the cause, he designedly wanders from the question, and slanders another person. The rule is the same as to a witness, and counsel. Public policy dictates that a man should not be hampered in prosecuting or defend- ing a right by fear of an action for defamation. It is only when he abuses his right by using it as a cloak for malice that he will be held responsible.* Evidence of the truth of language is madmissible unless a justification is pleaded.* Under the plea of " not guilty," the defendant cannot, in mitigation, in •effect prove guilt." To establish a justification, the proof must be as broad as the charge; the plea, un- supported, is evidence of actual malice and augments the damages." Where the wordsareprjma/ocze privileged, express malice must be proved.^ After proof that the words were spoken, the plaintiff, to show malice, may give > Pollard V. Lyon, 91 U. S. 226 (1875), Clifford, J. Ap- proved, Page V. Merwin, 54 Conn. 434 (1886). As to injury to business, see Singer v. Bender, 64 Wis. 172 0885). !3B1. Com. 1S4-35. s Stewart v. Hall, 83 Ky. 380-381, 363 (1885), cases. Holt, J. Uttered by witness, see Shodden v. McElwee, «6 Tenn. 149 (1887), cases; in legal proceedings, 26 Cent. law J. 2-8 (1888), cases. ■" Odgers, Lib. & SI. 304, cases. s Smith V. Smith, 39 Pa. 442 (1861), cases; Porter v. Botkins, 59 id. 484 (1869), • Burford v. Wible, 32 Pa. 96 (1858), oases; Gorman v. Sutton, ib. 248 (1858); Howard v. Thompson, 1 Am. L. C. 178-79, cases. ' Brockerman v. Keyser, 1 Phila. 269 (1851). evidence of other words of the same nature (not ac- tionable pe7- se) spoken at different times.' Evidence of the plaintiff 's reputation must relate to . the time before the speaking of the words; since bad reputation, after the utterance, may result from the publication." In the absence of malice, the motive of the speaker may be considered in mitigation of damages. The ■ plaintiff is entitled to reasonable compensation for the injury suffered, but it the injury was unintentional, or committed under a sense of duty, or through an honest mistake, no vindictive damages should be given. ^ Mental suffering is an element of damage.* Evidence of the defendant's pecuniary resources is admissible, to enhance the exemplary damages."* See Attorney ; Bad, 1 ; Colloquium ; Communication, Privileged, 2; Damages, Exemplary; Defamatory; In- nuendo; Libel, 5; Rumor; Scandal; Sensus, Mitiori; Translation, 3. 2. Defamation of one's interest in real or personal property, or of the property itself objectively considered. Slander of another's title, by spreading such inju- rious reports, as, if true, would deprive him of his es- tate, is actionable, provided special damage accrues to the proprietor; as, if he loses an opportunity to sell the land. « w The title is personified, and naSae subject to some of the rules applicable to personal slander when the words are not actionable per se. The language must be false, be uttered maliciously, and be followed, naturally, by pecun1ai*y damage, which must be spe- cially alleged and substantially proved.' That rule " applies not only to actions for slander of title, strictly and properly so called, that is, with refer- ence to real estate, but also to cases in which person- alty is involved, or personal rights and privileges." * SLAUGHTER-HOUSE. See Condi- tion ; Nuisance ; Police, 3. Slaughter-House Cases. See Police, 3 ; Servitude, 1 ; State, 3 (2). SLAVERY. An institution by which one man is made the property of another.' 1 Elliott V. Boyles, 31 Pa. 65 (1857); M'Almont v, McClelland, 14 S. & R. 358 (1826). = Odgers, Lib. & SI. 305; Townshend, § 408. 3 Odgers, Lib. & SI. 302. ■I Mahoney v. Belford, 133 Mass. 394 (1882) oases. » Sec 23 Alb. Law J. 44 (1881), eases. On special dam- ages, see 17 Cent. Law J. 105 (1883). «3 Bl. Com. 124; Malachy v. Soper, 3 Bing. N. C. * 381 (1836); Paul! v. Halterty, 63 Pa. 46 (1889), cases. ' Kendall v. State, 1 Seld. 18 (1831), cases. 8 Halsey v. Brotherhood, L. E., 15 C. D. 514 (1880) [affirmed, 19 id. 386 (1881)], in which B. had stated his belief that H.s patent on a steam-engine infringed his patent; following Wren r. Weild, L. R., 4 Q. B. 730 (1869), which also concerned the infringement of a patent. Compare case of libel of lettere patent, Mey- rose V. Adams, 12 Mo. Ap. 329 (1882), See generally Odgers, Lib, & SI, 138; Heard, Lib, & SI, §§10, 59, 'Douglass V. Ritchie, 24 Mo, 180 (1857): Justinian. SLAVERY 956 SLEEP The wish to use the hodily powers of another per- son as a, means of ministering to one's own ease or pleasure is doubtless the foundation of slavery, i In the United States, up to July 28, 1868 (as see be- low), a slave had no political rights, and only such civil rights as were given him by local law. The off- spring followed the status of the mother. See Partus. The master owned whatever property his slave ac- quired; and the slave could be a witness only for or against another slave or one who had been a slave; and he could sue in court only for his freedom: in other cases the master sued for his own use. If the master neglected to provide proper support for his helpless or Impotent slave, a public officer made the provision at the owner's expense. In Louisiana, for cruel treatment, the slave coiildbe emancipated; in Alabama and Texas, sale to another master was part of the penalty. He could be the subject of unlawful homicide; and was' himself responsible for acts of crime. His owner could manumit him: the effect be- ing to make him, not a citizen, but merely a freeman.'-^ The first governmental action toward abolishing the slave-trade was the provision that " The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited - by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person." ^ In 1807, importing slaves was made to cease after January 1, 1808; and in 1818, a law passed increasing the penalties of the trade. In 1819, the vessels and effects of citizens engaged in the trade were made lia- ble to seizure and confiscation. And by the act of March 3, 1820, all persons over whom our jurisdiction extends, whether found on domestic or foreign ves- sels, concerned in the slave-trade, or in kidnaping ne- , groes or mulattoes, were to be deemed pirates and to suffer death. In Great Britain the trade was declared unlawful in 1807, and in 1SS4 it was made piracy. Since then efforts have been made by that nation, by treaties and otherwise, to suppress the ti'ade every- where. As early as 1793, the State of G-eorgia prohib- ited the trade.* Slavery is a status unprotected by the law of na- tions, supported, where it exists, by local law. Hence persons seized to be sold as slaves in a territory where the importation of slaves is forbidden, commit no crime when they get possession of the vessel, and J Maine, Anc. Law, 158, 157-^1. 2 See 2 Kent, 248-58; Commonwealth v. Aves, 18 Pick. 206-35 (1836), Shaw, C. J.; "Wood v. Ward. 2 Flip. 342-43 (1879), cases; Civil Rights Cases, 109 U. S. 22 (1883); 70 Ala. 388. " Everywhere, always, by everybody, in statutes alike of Virginia and Soiith Carolina, in speeches, in letters, slavery in those days (1787) was spoken of as an evil." 2 Bancroft, Const, 129 (1884). " Every word in the Constitution bearing on the subject was chosen with the greatest caution." lb. 164. See also ib. 141-44, 151-64. 3 Constitution, Art. I, sec. 9. 4 See 2 Story, Const. §§ 1332-37, 1915-27. either slay the crew or compel them to sail for an- other country, * The maxim in international law is that "the air makes free." If then a cargo of slaves is stranded on the soil of a state which prohibits slavery, there is no- process, excepting express treaty, by which they can be prevented from availing themselves of their free- dom. 2 ' But the Constitution provided that " No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour maybe due," s In the Dred Scott Case it was decided : that a free negro, whose ancestors were brought here and sold as slaves, is not a "citizen" within the meaning of the Constitution. "When that instrument was adopted, Africans were not regarded in any State as " people or citizens; " the two clauses which refer to them treat them as persons whom it was lawful to deal in as ar- ticles of property and to hold as slaves. A citizen may take into '[Jnited States ten'itory any article of property recognized as such by the Constitution, and the Federal government is pledged to protect him in his lawful uses of it. Dred Scott acquired no title to freedom by being taken by his owner into Illinois from Missouri; the status of a person of African descent depending on the law of the State in which he re- sides.* - See Amendments XIIJ, XTV, XV, under Citizen j Chattel; Debt, Public; Migration; Villein; War. SLAY. Signifies no more than " kill," and is not necessary in an indictment.^ SLEEB, Occurs in a few expressions in its literal or in a figurative sense. " Sleeping with a man " is equivalent to lying awake with a man, and being " in bed with a man " is equiv- alent to sleeping with him.^ Sleeping on rights. See Delay; Si- lence ; Stale ; Vigilans. Sleeping partner. See Partner, Dor- mant. Sleeping-ear company. Is not respon- sible eithei" as a common carrier or as an inn- keeper. It is bound, however, not only to ^ See "United States v. The Amistad, 15 Pet. 587-98 (1841), Story, J.; "The Case of the Amistad," a pam- phlet read before the New Haven Historical Society in 1886, by Prof. S. E. Baldwin, of Yale Law School. 2 See Priscilla Smith o. Smith, 13 La. *444 (1838); Eliz. Thomas v. Generis, 16 id. *486 (1840); Woolsey, Int. Luw, § 74. ^ Constitution, Art. PV, sec. 2, cl. 3. * Dred Scott v. Sandford, 19 How. 393, 399-456 (1856), Taney, C. J., "Wayne, Nelson, Grier, Daniel, Campbell and Catron, JJ., concurring, 454-539; McLean and Curtis, JJ., dissenting, 529-633. 6 State V. Thomas, 32 La. An. 351 (1880). *> Barnett v. Ward, 36 Ohio St. 110 (1880). SLEEPING-CAR 937 SMUGGLE fui'nish its guest a berth, but to keep a watch during the night, exclude unauthor- ized persons from the car, and take reason- able care to prevent theft. In case of loss from negligence the company is liable for such articles as a passenger usually can-ies about bis person, and such sums of money as may be reasonably necessary for his traveling expenses. The invitation to make use of the bed carries with it an in- vitation to sleep, and an implied agreement to take reasonable care of the guest's effects while he sleeps.' A sleeping-car company holds itself out to the world as furnishing safe and comfortable cars, and, when it sells a ticket, it impliedly stipulates to do so. It invites passengers to pay for, and make use of, its cars for sleeping, all parties knowing that, during the greater part of the night, the passenger will be asleep, powerless to protect himself or to guard his property. He cannot, like the guest of a hotel, by-locking the door, guard against danger. He has no right to take any such steps to protect himself in the sleeping-car, but, by the necessity of the case, is dependent upon the owners and officers of the car to guard him and the property he has from danger from thieves or otherwise. The law raises the duty on the part of the car company to afford him this protection. While it is not liable as a common carrier, or as an inn-holder, yet it is its clear duty to use reasonable care to guard the passengers from theft; and it through want of ■ such care the personal effects of a passenger, such as he might reasonably carry with him, are stolen, the company is liable tor it.^ A passenger is entitled to a continuous passage in such berth and on such car as his ticket calls for, or in an equally desirable berth or an equaljy safe, con- venient, and comfortable car.= The law will not permit a railroad company, en- gaged in carrying persons for hire, through any arrangement with a sleeping-car company whose cars constitute part of its tram, to evade the duty of pro- viding proper means for the safe conveyance of those whom it has agreed to convey.' A company may refuse to sell accommodations to a person who does not have a proper railroad ticket.* 1 Blum V. Southern Pullman Palace Car Co., 3 Cent. Law J. 591 (U. S. C. C. W. D. Tenn., 1876), Brown, J.; Woodruff Sleeping & Parlor Coach Co. v. Diehl, 84 Ind. 481-84 (1882) cases: s. c. IX Am. & Eng. E. Cases, 894, 301 cases; Pullman Co. v. Smith, 73 111. 300 (1874); Pullman Co. v. Gardner, 14 W. N. C. 17 (Pa., 18S3); Pardee v. N. Y. Central Sleeping Car Co., N. Y. (1884): 1 Ey. Corp. Law J. 490. « Lewis V. N. Y. Central Sleeping Car Co., 143 Mass. 273 (18S7), cases, Morton, C. J.; Pullman Palace Car Co V Pollock, 69 Tex. 120 (1887). See also Pullman Co. V Gaylord, Super. Ct. Ky. (1884): 23 Am. Law Eeg. 788- Whitney v. Pullman Co., 143 Mass. 2-13 (1887); 23 I Cent. Law J. 364-05, 367 (1887), cases ; 19 Am. Law Eev. 204-22 (18K>), cases; 20 id. 169-82 (1886), cases. a Pullman Palace Car Co. v. Taylor, 65 Ind. 153 (1879). * Pennsylvania Company v. Eoy, 102 U. S. 457 (1880). » Lawrence v. Pullman P. Car Co., 144 Mass. 7 (1887). The obligation of the company for injury to a per- son, not a passenger, who is wantonly assaulted and beaten by the porter, is not governed by the principles which regulate the liability of a common oarrjer for a lilce assault committed by a servant.' See Carrier, Common. SLIGHT. See Cake; Negligence. SLUICE-DAM. Is for the purpose of utilizing the water of a stream by raising a head sufficient to float logs over obstructions and shoal places down to the' dam ; and then, by letting the water out, flood the stream below so as to carry the logs to their destina- tion. It is constructed with a " sluice-way," or opening, for the passage of logs. To ' ' sluice " and ' ' sluicing " mean simply open- ing the gates for logs to pass through.^ The owner has charge of his own ^iroperty all the time. The owner of the dam has no control over the logs, except by virtue of a lien for toUs.^ SMART-MONEY. See Damages, Ex- emplary. SMELTING. See Art, 1 ; Process, 2. SMOKE. See Aie ; Nuisance; Police, 2. SMUGGLE. 3 The act, with intent to defraud, of bringing or attempting to bring into the United States dutiable articles with- out passing them, or the package containing them, through the custom-house, or submit- ting them to the officers of the revenue for examination.* Implies something illegal, and is inconsistent with an innocent intent. Conveys the idea of a secret in- troduction of goods, with intent to avoid payment of duty.* An article found secreted in baggage will .be for- feited, and a penalty of treble the value imposed.' In other cases the penalty is of a sum of equal or double the value. The penalty for making or attempting to make an entry of merchandise by means of a false invoice, certificate, etc., is forfeiture of the merchandise; ' or the value of the property may be recovered by suit.» See Moiety. If particular goods were actually smuggled or I Williams v. Pullman's Palace Car Co., Sup. Ct. La. (1888), cases. The plaintiff entered a car to ask to be permitted to wash his hands, and, without provoca- tion, was beaten by the porter. s Anderson v. Munch, 29 Minn. 416 (1882), Mitchell, J. " Scan, smug-, to creep through a hole,— Skeat. • [Act 22 June, 1874, § 4: 1 Sup. E. S. 77. 'United States v. Claflin, 13 Blatoh., 184 (1875), Bene- dict, J.; Stookwell v. United States, 13 Wall. 546 (1871). «E. S. §2802. ' E. S. § 2864, cases. e United States v. Flax Spinning Co., 17 Blatch. 138 (1879). SNAKE 958 SOLEMN brought in by fraud, the government is entitled to a decree o£ forfeiture under the act of June 33, 18T4, § 12, notwithstanding the claimant may have pm-chased in good^aith and for full value.' As an indictable oftense, punishable by a flue of as much as five thousand dollars, and with two years im- prisonment, either or both.^ SilVAKE. A bill pending before a legis- lative body, which, while introducing a gen- eral rule of law, is especially designed to change the law in relation to some matter then in controversy, to the advantage of the originator or supporters of the bill. Com- pare RiDEE. SNOW. See Sidewalk. The owner of a building who leases it, reserving only the right to enter "to repair," is not liable to a person injured by a fall of snow from the roof, it not appearing that the tenant might not by reasonable care have prevented the accident. ^ SO. '■ Hence " and " therefore " are some- times the equivalents of " so," and the latter word is thus understood whenever what fol- lows is an illustration of a conclusion from what has gone before.* As a proviso in a will, "so "is a limitation. It is also descriptive, and the same as " hereinbefore." * That " so much " of a piece of land shall be sold, refers to a fractional portion." So help you God. See Oath. So that. See Condition, Precedent; Peovidbd. SOBER. See Intbmpebate. SOCAGE.'' Holding lands in considera- tion of services certain or definite in nature and amount. The principal kind of title to land recognized by modern English law. 8 In the United States, allodial tenure; which is sub- ject only to ultimate rights in the state — such as eminent domain, and escheat. See Feud. SOCIALISM. See Communism; Nihil- ist, 2. SOCIETY. See Association; Benefit; Church ; Compact, Social; Consortium; .Government. > United States v. Certain Diamonds, 30 F. R. 364 (1887). '^ R. S. § S865, cases. Cases on violation of laws, Friedensteiu v. United States, 125 U. S. 324 (1888); Origet V. United States, ib. 240 (1888). 3 Cliftord V. Atlantic Cotton Mills, 146 Mass. 47 (1888), cases. • Clem V. State, 8.3 Ind. 431 (1870). » Giles V. Melsom, 6 L. R., H. L. C. 24 (1873); 42 L. J., Ch.l22; 31 W. R. 417; 28 L. T. 789. « Straw u Poor, 74 Me. 55 (1883). ' Sax. soc. liberty, privilege,— 2 Bl. Com. 80. « See 2 Bl. Com. 79-82; Maine, Anc. L. 225. SODOMY. Carnal copulation, by human beings with each other against nature, or with a beast. 1 Named from the prevalence of the sin in Sodom.'* , The infamous " crime against nature," bommitted either with man or beast; an offence of so dark a nat- ure, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out.s Sometimes called " bestiality" or "buggery." SOIL. See Land. SOJOITEN. Something more than to " travel," and applies to a temporary, as con- tradistinguished from a permanent, resi- dence.^ See Reside. SOLAR. See .DAY ; Month. SOLATIUM. L. A soothing, assuaging ; compensation, indemnification. Compensation for injury to the feelings, as distinguished from indemnification for pe- cuniary loss or for physical suffering.* See Damages, Exemplary. SOLD. Imports a valuable consideration, and a valid contract to sell or convey. 6 See Sale. Sold note. See Note, 1, Bought, etc. SOLDIER. See Bounty; Enlistment; Military ; Militia ; Pension, 3 ; Rank ; War. SOLE. Alone ; single ; separate : individ- ual; opposed to joint and married: as, a sole — administrator, executor, corporation, tenant, use, a feme-sole, qq. v. In a will, " sole " has no fixed technical meaning which requires that a person who contests that mean- ing must show, by implication, that it is not used in a strict technical sense. In a marriage settlement, it may have a particular and exclusive nxeaning.' In a will, was held to mean " absolute," rather than "separate," — the phrase being "sole and separate use." ' See Separate, 2. SOLEMN". Made in due form ; conform- ing to the requirements of law ; formal : as, a solemn — admission, instrument, qq. v. See also Oath, Corporal ; Seal, 1. Solemnize. To be present at a marriage ceremony, that it may have due publication 1 Bishop, Cr. L. § 1029. » Ausman v. Veal, 10 Ind. 356 (1868). " 4 Bl. Com. 215. « [Henry v. BaU, 1 Wheat. 5 (1816), Marshall, C. J. » See Malloy v. Bennett, 15 F. R. 373 (1883); 22 Conn. 398; 132 Mass. 394; 15 N. T. 415; 10 E. L. & E. 437; 2 Greenl. Ev. § 267. « See 74 N. C. 593; 3 Wend. 112; 1 Smith, 54; 5 Wall. 720. ' Massey v. Rowen, L. R., 4 E. & L Ap. 296 (1869). e Lewis v. Mathews, L. B., 8 Eq. *180 ( SOLICIT SOUND before third persons, for -the sake of notoriety and the certainty of its being made.i SOIiICIT.2 To importune, entreat, im- plore, ask, attempt, try to obtain. So held under an indictment for soliciting, by news- paper publication, persons to commit murder.^ A solicitation to commit a crime is a misdemeanor.* See Chastity. Compare Attempt. Solicitor. A practitioner in courts of equity. 5 Solicitor-general. A law-officer next in rank to the attorney-general. In some States, the chief law-officer of the government ; corx'esponding to the attorney- general in other States. See further At- torney. SOIiIDUM. See Consolidate ; In Solido. SOLUM. L. The lowest part : land, soil. .ffidiflcatum solo, solo eedit. What is built upon the land, goes with the land : a building follows the ownership of the land. See Fixture. Cujus est solum, ejus est usque ad eoelum et ad inferos. Of whom is the land, of him is it also to the sky and to the deepest depths : he who owns the land owns all above and all below the surface. Upward no man may erect a building to overliang another's land; and downward, whatever is in a direct line belongs to the owner of the surface.' The owner of land has the right to use that which is beneath the soU, whether rock or water, where there is no intent to injure the adjoining owner.' See Mine; Tree. Solo cedit quod solo implantatur. With the land goes whatever is on the land planted. See Land; Terra. SOLUTIO. See Obligation, 1. SOLVENCY.^ Ability to pay one's own debts — in the ordinary course of business ; also, ability to pay at some future time, upon settlement of one's estate. Solvent. Owning property enough to pay all one's own debts. " Solvency " may mean being in such condition with respect to property that a demand may be collected 1 [Pearson v. Howey, 11 N. J. L. 19 (1889). = L. sollicitare, to agitate, arouse, urge. 3 Eegina v. Most, 44 L. T. 827 (1881). «4B1. Com. 16. 6 [3 Bl. Com. 26. . « 3 BI. Com. 18, 16. ' Redman v. Forman, 83 Ky. 216 (1885). 8 L. mlvens: solvere, to disengage, liberate, be free; to pay. by due course of law; as, within the law of surety- ship, a solvent principal.^ The solvency which will sustain a voluntary deed consists in such condition as to means that payment can be enforced by process of law.'' Does not depend upon the amount of property owned which is subject to execution: the debtor may be solventiand yet have no property liable thereto. '^ "Debts due from solvent debtors," which are tax- able under a statute, refer not to general solvency, but to the amount- which may be realized, that is, to the valuS of the debts.* In Missouri, a bank is solvent which has assets suffi- cient to pay, within reasonable time, all its liabilities, through its own agencies.'^ See further Insolvency. SOLVIT. L. He paid. See Dies, Solvit. SOME. See Number. SON". 1, Eng. See Child; Eldest; Name, 1. 2, F. See Assault ; Tort, 1. SONANS. See Idem. SOON. Within a reasonable time ; a^, in the case of a promise to do an act soon.* See Time. As soon as. A contract to deliver cotton " as soon as it can be picked out and shipped" was held to allow the lapse of a reasonable time, and until the usual mode of transportation could be employed.' The charter of a railroad company authorized it " as soon as it conveniently can " to construct a road, with tracks, works, appendages, etc. Held, that the company was not bound to exercise its whole author- ity in the beginning, when the demands of business are few.« SORCERY. See Witchcraft. SOROCIDE. See Homicide. SOUL. A corporation is sometimes said to have no soul or to be soulless : it is an ar- tificial body. *' Neither can a corporation be excommunicated: for it has no soul, as is gravely observed by Sir Edward Coke; and therefore it is not liable to be summoned into the ecclesiastical courts upon any account." ' SOUND. 1, V. An action brought for damages, as, in covenant or trespass, and not for specific property, is said to "sound in damages." '" 1 Huffman v. Hulbert, 13 Wend. 378 (1836). 2 Eddy V. Baldwin, 32 Mo. 369, 374 (1862). ' McKown V. Fergason, 47 Iowa, 637 (1878). • Lamar v. Palmer, 18 Fla. 155 (18B1). « Dodge V. Mastin, 17 F. R. 665 (1883). • Sandford v. Shepard, 14 Kan. 232 (1875). ' Waddell v. Beddick, 2 Ir.ed. L. 429 (1842). See also Ubsdell V. Cunnmgham, 23 Mo. 134 (1856). « Philadelphia, &o. E. Co. v. Williams, 54 Pa. 107 (1867). • 1 Bl. Com. 477; 10 Rep. 32. >» Stephen, Plead. 105. sous SEING PEIVE 960 SOVEREIGNTY Within the meaning of a particular statute relating to appeals and writs of error, an action " sounding in damages " is one in which the damages cannot be de- termined in dollars by witnesses, but certain facts are proven from which the jury may determine the amount of damages, as, in slander, and the like,— when the damages are not susceptible of direct proof.* Sounding the same. See Idem, Sonans. 3, adj. (1) Referring to wood, vegetables or other inanimate substance: free from decay or rottenness ;2 opposed to tbat which is defective, decaying, injured, — not mex-ely inferior.!! (2) Referring to an animal: that neither from nature, disease, or other cause is the animal incapable of performing its ordinary functions; as applied to organs of seeing, hearing, smelling, etc., that the organ has not, from nature, disease, or other cause any defect which makes it incapable or unfit to perform the services ordinarily required of it.2 Free from disease. . . The only qualification arises from the purpose for which the warranty is given. If a horse is purchased for a specified use, " sound " means that he is useful for that purpose, and " unsound " that he is affected with something which will impede that use.* A general warranty will cover even a patent defect, when so intended." False assertion of soundness, knowingly made, is such a fraud upon the vendeeas will entitle him to a rescission, whether the assertion amounted to a war- ranty or not." In Massachusetts, a representation that a horse is *' sound," known to be false, is a false pretense.' Sound health. See Hbalth. Sound mind and memory. See Insan- ity, 3 (5). SOUS SEING PBIVE.s F. Under his private signature. In Louisiana, an act or contract evidenced by writing under private signature — a " private act." An " authentic act " is an agreement entered into in the presence of a public oflficer.s 1 Bradshaw v. Standard Oil Co., 114 111. 178 (1885). " Bell V. Jeffreys, 13 Ired. L. 35V (1852). s Hawkins v. Pemberton, .35 How. Pr. 383 (1868), Eob- ertson, C. J. ' Kiddell v. Burnard, 9 M. & W. *670-ri (1842), Alder- son, B. » Fletcher u Young, 69 Ga. 593 (1882); Pinney v. An- drus, 41 Vt. 641 (1869). • Nelson v. Martin, 105 Pa. 229 (1884). ' Commonwealth v. Jackson, 132 Mass. 16 (1882); 17 Me. 211; 64 id. 157; 5 Q. B. 49. See also Kingsley v. Johnson, 49 Conn. 462 (1883); Means, u Means, 88 Ind. 196 (1888). ' Privi. See Louque's Dig. (1878) XXTV-V. SOVEREIGNTY.! The public author- ity which orders and directs vv-hat is to be done by each member of a political community in relation to the purposes of the association.^ The supreme power which governs the body politic or society that constitutes the state.3 The exercise of, or right to exercise, su- preme power, dominion, or sway ; as applied to a- State, the right to exercise supreme power, dominion, or authority.* In international law, the uncontrolled ex- clusive exercise of the powers of a state, q. V. ; that is, both of the power of entering into relations with other states, and of the power of governing its own subjects. •' All legislative powers appertain to sovereignty. The original power of giving the law, on any subject whatever, is a sovereign power. In America, the powers of sovereignty are divided between the govern- ment of the Union, and those of the States. I^acli is sovereign with respect to the subjects committed to it« Sovereignty and legislature are convertible terms: one cannot subsist without the other. Legislature is the greatest act of superiority that can be exercised by one being over another. . . "Wherever the power of making laws resides, all other powers must conform to and be directed \iy it. . In a democracy there can be no exercise of sovereignty but by suffrage, which is the declaration of the people's will. In Eng- land, where the people do not debate in a collective body, but by representation, the exercise of sover- eignty consists in the choice of representatives.' The sovereign or supreme power in every state re- sides in the people. Blackstone supposes the jura summi imperii, or the right of sovereignty, to reside in those hands in which the exercise of the power of making laws is placed. Our simple and more reason- able idea is that the government is a mere agency established by the people for the exercise of those* powers which reside in them. The powers of govern- ment are not, in strictness, granted, but delegated powers. They are then trust powers, and may be re- voked. It results that no portion of sovereignty resides in government.^ See further Government; Kins; State, 8; San, 3; Theason. ^ F. soverain: L. L. superanus, chief: super, above. 2 [Vattel, Law of Nations, § 1. = Gilmer v. Lime Point, 18 Cal. 261 (1861). * Territory v. Lee, 2 Monta. 130 (1874j, Wade, C. J.; Moore v. Smaw, 17 Cal. 199 (1861); Chancely v. Bailey, 37 Ga. 532 (1868). ' Woolsey, Int. Law, § 37. » M'CuUoch V. Maryland, 4 Wheat. 409-10 (1819), Mar- shall, C. J. ' 1 Bl, Com. 46, 49, 53, 170-71. See also 1 Story, Const. § 207. 8 1 Sharsw. Bl. Com. 49. See also Penhallow i>. Doane, 3 Ball. *9S (1796). SPAN 961 SPECULATION SPAN.' 1. The word does not, even in architecture, always mean a part of a struct- ure. It perhaps as often denotes the distance or space between two columns. Referring to a bridge, it may therefore designate the measure of the distance between the piers — the space left open for navigation purposes.! The act o£ Congress of July ST), 1866, § 10 of which authorized a bridge to be constructed over the Missouri river at Kansas City, required that the distance of one hundred and sixty feet between the piers should be obtained by measuring along a line between the piers drawn perpendicularly to their faces and the current of the river. Held, that as the length of such a line between the piers actually built measured seven feet less than the required distance, the bridge was not a lawful structure.^ 2. Of horses, see Horse. SPANISH LAWS. See Pueblo. SPARRING MATCH. See Peize- FIGHTING. SPEAKING. See Colloquium; Demur- REE ; Impaelance; Speech. SPECIAL. Relating to a species {q. v.), a single kind or sort : individual ; particular ; peculiar; distinctive. Opposed to common, ordinary, general, 2 qq. v. Compare Partic- ular; Separate; Sole; Specific. As, in speaking of special or a special — ac- ceptance, act, administration, agent, alloca- tur, assumpsit, bail, case, charge, constable, contract, count, custom, damages, demurrer, deposit, deputy, finding, guaranty, indorse- ment, injunction, issue, jury, law, legacy, legislation, lien, limitation, matter, meeting, minister, occupant, partner, plea, pleading, privilege, property, return, rule, session, statute, tail, J;erm, traverse, tribunal, trust, verdict, warranty, qq. v. SPECIALIST. See Expert. SPECIALTY. An instrument under seal. Debts by " specialty," or special contract, are debts whereby a sum of money becomes or is acknowledged to be due by deed or instrument under seal; as, by deed of covenant, by deed of sale, by lease reserving rent, or by bond or obligation.* A specialty is any sealed contract or obligation; a special contract as distinguished from an oral or verbal contract, a parol or unsealed contract, and a contract or obligation of record." See Contract, Special; Covenant; Deeu, 2; Seal, 1. SPECIE.2 Metallic money issued by public authority; generally used in contra- distinction to " paper money." ' SPECIES. L. Look, view ; appearance ; a particular thing among others to which at- tention is directed : speeere, to look, see. Op- posed, (/eiius, q. v. See In Specie; Special; Specie; Specific. SPECIFIC. Characterizing a species (q. v.), a particular kind ; particular ; definite ; limited, restricted. Opposed to general, q. v. As, specific or a specific — intent, legacy, performance, duty, qq. v. SPECIFICATION. A statement of the species or particulars; an account or nar- 'rative in detail. As, a specification of the items of a claim, the plans and specifications of a building. In architecture, not only the dimensions and mode of construction, but a description of every piece of material — its kind, length, breadth, thickness, and the manner of joining -separate parts.' See Jones v. Watson, Contract, Executed. In patent law, see Invention; Issue, 1; Patent, 8. SPECULATION. Gambling is, not to be confounded with speculation. Merchants speculate upon the future price of that in which they deal, and buy and sell accord- ingly. In other words, they think of and weigh, that is, speculate upon, the probabil- ities of the coming market and act upon this outlook into the future.^ But when ventures are 'made upon the turn of prices alone, with no bona fide intent to deal in the article, but merely to risk the difference between the rise and the fail of the price at a given time, the case is changed. The purpose then is nofto deal in the ar- ticle, and the bargain represents not a transfer of property, but a mere stake or wager upon its future price." See Wager, 2. Speculative. See Damages, 1, Specula- tive. ' Hannibal & St. Joseph E. Co. v. Missouri River Packet Co., 125 U. S. 260, 270 (1888), Lamar, J. The defendant, in the court below, recovered §5,300 for damages to steamboats, caused by striking the piers of the bridge. ''See4N. Y. 581; 6id.l76; 12 id. 593; 16 id 80; 18 id. 5T; SO id. 434; 5 Barb. 169; 23 id. 88; 5 Cal. 43; 45 id. 679; 43 id. 70. 3 2B1. Com. 465. (61) ' See January v. Goodman, 1 Ball. 208 (1787); Bank of the United States v. Donnally, 8 Pet. 371 (1834); 10 Ga. 167; 15 Ind. 283; 5 Neb. 87; 10 Ohio St. 40; 2 S. & R. 503. 2 " Money paid by tale ; " probably by confusion with L. abl. specie, as if paid in specie — in visible coin,— Skeat. See Species. s Walkup V. Houston, 65 N. C. 502 (1871), Dick, J.; Webb V. Moore, 4 T. B. Mon. 483 (1837); Henry r. Salina Bank, 5 Hill, 536 (1843). * Gilbert v. United States, 1 Ct. CI. 34 (1863), Casey, Chief Justice. iKirkpatrick v. Bonsall, 73 Pa. 158 (1872), Agnew, J. SPEECH 963 SPRING SPEECH. See Liberty, 1. Of speech; Slander. SPEED. See Moderate. Speedy. See Trial. SPELLING. See Idem, Sonans. SPENDTHRIFT. See Committee; Trust, 1. SPES RECUPEBANDI. L. Hope of recapture. See Capture. SPINSTER. A single or unmarried woman of mature years. Formerly used as a title or addition to the surname. The primitive meaning seems to have been ' ' spinner : ' ' the unmarried daughters who remained at home did the spinning, while the " wife " did the weaving. The termination "-ster"is for"-er," and signifies a fe- male doer. SPIRIT OP A STATUTE. See Casus, Omissus ; Letter, 2. SPIRITS; SPIRITUOUS. See Coupon;' Distillery ; Empty ; Intoxicate ; Liquor. SPIRITUAL ADVISER. See Commu- nication, Privileged, 1. SPIRITUALISM. See Influence. Obtaining money upon a representation that the party obtaining it can cause the spirits of deceased persons to be present in a material form, is punish- able under statutes against false pretenses. ^ See Pre- tense. While, as an abstract proposition, spiritualism does not prove insanity, a person may be a monomaniac upon that subject as upon any other form of religion.^ SPLIT. To split a cause of action is to bring separate actions for parts of a claim or several actions where one action would suffice. A party seeking to enforce a claim must present to the court, by the pleadings or proofs, orrboth, all the grounds upon which he expects a judgment. He may not split up his demand and prosecute it piecemeal, or present only a portion of the grounds upon which re- lief is sought, and leave thB rest for a second suit, if the first fails. Otherwise, there would be no end to litigation. But this principle does not require distinct causes of action, that is, distinct matters, each of wiiich by itself would authorize independent relief, to be presented in a single suit, though they exist at the same time and might be construed together.* ' Eegina v. Lawrence, 36 Law Times, 404 (18T7), Cock- burn, 0. J. ; Eegina v. Giles, 11 id. 643 (1S65), Erie, C. J. ; Thompson v. Hawks, 11 Biss. 440 (1683); Common- wealth ex rel. Gordon v. Keeper of County Prison, 15 W. N. C. 282 (1884). = Conner v. Stanley, 1-2 Cal. 556 (1887): 26 Am. Law Eeg. 523-31 (1887), cases. See also, generally, Chaflu Will Case, 32 Wis. 563 (1873), cases; Smith's Will, 62 id. 543 (1881). 3 Stark V. Starr, 94 U. S. 485 (1876), Field, J. SPOLIATION.! 1. An injury done by one clerk or incumbent to another, in taking the fruits of his benefice without right, but under a pretended title.2 3. Mutilation of an instrument by a stranger. " Alteration " is applied to the act of a party entir tied under an instrument, and imports some fraud or improper design on his part to change its effect. But the act of a stranger, without the participation of the party interested, is a mere "spoliation," or mutilation of the instrument, not changing its legal operation, so long as the writing remains legible, and, if it be a deed, any trace of the seal remains. The law regards a spoliation which destroys the identity of an instru- , ment, as far at least as the rights of the parties are concerned, as an accidental destruction of primary evidence, compelling a resort to that which is second- ary.* See Alteration, 2; Spoliator. SPOLIATOR. L. A despoiler, a de- stroyer; a wrong-doer; one who fraudulently alters a writing. In odium spoliatoris omnia prsesum- unter. In condemnation of the despoiler, all things are presumed. Omnia praesumimter contra spolia- torem. All things are presumed against the' despoiler: every presumption will be made against a person who destroys or sup- presses that which might bg evidence against him; also, all things are presumed against the wrong-doer: no man shall receive ad- vantage from his own wrong.* The rule, applied in all its rigor, is for ^vrong- doers — for those who have been guilty of fraud or willful disregard of duty.* SPORT. See Cruelty, 3 ; Game, 3; Wan- ton. SPRING. A stream of water which does not appear as a stream to casual observation, and which is finally lost in the ground, may be described as a "spring" in a reservation in a conveyance. 8 Appellant and appellee owned adjoining lands, and appellee had been using water that ran from a spring on appellant's land into a pool on his (appellee's) side of the line, from which he watered stock. Although partially subterranean, the course of the vein was 1 Pronounced spo'. L. spoliare^ to strip o£f spoil, despoil. 2 3 Bl. Com. 90. = 1 Greenl. Ev. § 566; 2 Whart. Ev. §§ 1264-65; Medlin. V. Platte County, 8 Mo. 239 (1843). •Armory v. Delamirie, 1 Sm. L. C. 642-45, cases; 2 Best, Ev. §§411-14; Broom, Max. 938; 1 Greenl. Ev.|37. • Knapp V. Edwards, 57 Wis. 196 (1863), Lyon, J. •Peck II. Clark, 142 Mass. 440 (11 SPRINGING 963 STALE well defined, for years running in the same channel, a few feet only, from one farm to another. Held, that the appellant could not he enjoined from interfering altogether with the flow of the water; that he was en- titled to the reasonable use of it for farm purposes, and that if he enlarged the spring and his stock con- sumed all the water, appellee could not complain.' In a recent case in New Yorli, the watere from a spring on defendant's land, one hundred and twenty feet from the plaintiffs line, had been for years con- ducted to a trough; the waste disappeared in the ground, but one hundred feet from the trough, £tnd near the plaintiff's line, appeared on the surface, sometimes in motion toward a sluice under the divis- ion fence, where it again disappeared, and, twenty feet beyond, on the plaintiff's land, arose, forming a spring or reservoir. The defendant diverted the water , from his spring for domestic purposes, thereby inter-, cepting the plaintiff's supply. Held, that the defend- ant was not liable in damages for the diversion. The court said: "No stream or water-course rap from the spring. The source from which it came, and the flow of its waste or surplus, were alike under-ground, con- cealed, and matters of speculation and uncertainty. Such a spring belongs to the owner of the land. It is as much his as^the earth or minerals beneath the sur- face, and none of the rules relating to water-courses and their diversion apply. The only exception estab- lished by the authorities is that of under-ground streams which are kno'wn and notorious, and flow in a natural channel between defined banks. A few such exceptions are admitted to exist, and others may oc- cur. But, outside of these, sub-surface currents or percolations are not governed by the rules and regula- tions respecting the use and diversion of water-courses, and they maybe interrupted or diverted by the owner of the land for any purpose of his own." " See Aqua. Currit; Watee; Well, 1. SPRINGUfG. See Use, 3. SPimiOUS. A spurious bank-bill may be a legitimate impression from the genuine plate, an illegitimate impression from a gen- uine plate, or an impression from a counter- feit plate. It may also be both counterfeited and fo:^ged, or both counterfeited and spuri- ous, but not both forged and spurious. 3 See Gbntjine; Trade-mark. SQTJABE. A dedication of land to public use as a square, means for free passage or for ornamentation and improvement.^ See Ded- ication, 1. In the expression "owners in each fourth of «. square," means each subdivision of the territory bounded on all sides by principal streets." 1 Eedman v. Forman, 83 Ky. 214 (1885). " Bloodgood V. Ayers, 108 N. Y. 405 (1888), cases. » [Kirby v. State, 1 Ohio St. 187 (1853), Corwin, J. * Methodist Epis. Church v. Hoboken, 33 N. J. L. 17 (1868). See also Abbott v. Cottage City, 143 Mass. 583- 26 (1887), cases. s Caldwell v. Rupert, 10 Bush, 181 (1873). Square yard. In a contract for removing earth, held to mean " cubic yard." ' SQUATTER. A person who settles or locates on land without obtaining a legal title.2 See Intruder ; Pre-emption. SQUIRE. See Esquire. SS. See Scire, Scilicet. ST. State; statute. St. L. Statutes at Large, g, v. ST. LOUIS. See County. STAB. To wound with a pointed instru- ment; to penetrate the skin at least, and draw blood.3 See Cut, 1. STABLE. See Arson ; Barn. STAGE. See Drama ; Opera ; Theater. ., STAKEHOLDER. A depositary for both Ijdrties of the money advanced by them re- spectively with a naked authority to deliver it over upon the proposed contingency.* The loser may withdraw his stake at any time be- fore actual payment to the winner. A locus peniten- tice is allowed to each party. Payment by the stake- holder after notice not to pay will make him person- ally liable for the amount." See further Bet; Delictdm, In pari; Game, 2; Wager, 2. STALE. Describes a claim too old to be entertained in a court of equity or of admi- ralty, on account of laches in the complain- ant; antiquated. Those courts have not always considered themselves ' bound by the Statute of Limitations, though the tend- ency is to give the statute uniform application in all courts. Courts of equity, acting on their own inherent doc- trine of discouraging, for the peace of society, anti- quated demands, refuse to interfere in attempts to establish a stale trust, except where the trust is clearly established and the facts have been fraudu- lently and successfully concealed by the trustee from the beneficiary. In a case for relief, the beneficiary should set forth in his bill, specifically, what were the impediments to an earlier prosecution of his claim ; how he came to be BO long ignorant of his rights, the means used to keep him in ignorance, and how and when he first came to a knowledge of the matters alleged in his bill.' 1 Louisville v. Hyatt, 3 B. Men. 182 (1841). 2 O'Donnell v. Mclntyre, 16 Abb. N. Cas. 86 (1885): McAdam, Landl. & T. § 283; 5 Biss. 529; 35 Ga. 141. ' State V. Patza, 3 La. An. 514 (1848); State v. Lowry, 33 id. 1234 (1881); Ward v. State, 66 Ga. 410 (1876). < Fisher v. Hildreth, 117 Mass. 562 (1875), Colt, J. » WilUs 11. Hoover, 9 Greg. 431 (1881), cases; Corson V. Neatheny, 9 Col. 314 (1886), cases; Smith, Contr. 265; 48 Me. 107; 4 Mete, Mass., 10; 8 Johns. 147; 16 S. & E. *148; 33 L. J., Q. B. 397; 5 Ap. Cas. 343. » Badger v. Badger, 2 Wall. 93, 95 (1864), cases, Grler, J. STALL 964 STAPLE To let in a defense that a claim is stale it is not necessary that a foundation he laid in the answer. If the ease, as it appears at the hearing, is liable to the obiection by- reason of laches, the court will, upon that ground, be passive, and refuse relief. Every case is governed chiefly by its own cireumstances; some- times the analogy of the Statute of Limitations is ap- plied ; sometimes a longer period than that prescribed by the statute is required; in some cases a shorter time is sufficient; and sometimes the rule is applied where there is no statutable bar. It is competent for the court to apply the inherent principles of its own system of jurisprudence, and to decide accordingl3\^ Length of time necessarily obscures all human evi- dence, and deprives parties of the means of ascertain- ing the nature of original transactions; it operates by way of presumption in favor of the party in posses- sion. Long acquiescence and laches by parties out of possession are productive of much hardship and i^ justice to others and cannot be excused but by shelv- ing some actual hinderance or impediment caused by the fraud or concealment of the party in possession, which will appeal to the conscience of the chancellor.^ See Delay; Limitation, 3. STALL. See Homestall ; Marketstall. STALLIOIf. See Horse. STAMP. Compare Brand. See Writ- ing. / 1. The act of March 3, 1875, required that every bank check, draft, .order, or voucher for the payment of money, drawn upon any bank, banker, or trust-com- pany, should have a two-cent stamp,^ This act was repealed by act of March 3, 1883. < Regard was had to the form of the instrument rather than to its operation, though the device was in- tended to evade the revenue acts.^ If not attached to a document which the law requires to be stamped, the document is not evidence; but it may be attached before it is offered in evidence.* 2. Although a statute designates stamps as " distil- ler's warehouse " and " tax paid " stamps, a desig- nation in an indictment as " United States internal- revenue distillery warehouse stamps," and " tax -paid stamps for distilled spirits," will be sufficient — the offense charged being the removal, without destroy- ing, of stamps from a cask of distilled spirits.' See Coupon-stamp. 3. A-S to postage-stamps, see Mail, 2. 1 Sullivan v. Portland, &c. E. Co., 94 U. S. 811 (1876), cases, Swayne, J.; 2 Story, Eq. §§ 1519-20 c; 16 Blatch. 661; 4 Cliff. 2S6, cases. 2 Wagner ■«. Baird, 7 How. 258 (1849); United States V. Throckmorton, 98 U. S. 65 (1878); Spidal v. Henrici, 120 id. 887 (1887), cases; Richards v. Mackall, 124 id. 187-88 (1888), cases; Bell v. Hndson, 78 Cal. 287 (1887), cases: 2 Am. St. E. 796-808 (1888), cases; 1 Pom. Eq. §§ 418-19. ' Act 3 March, 1875: 1 Sup. E. S. 132; E. S. § 3418. « 22 St. L. 488, c. 121. 6 United States i-. Isham, 17 Wall. 496(1873). «R. S. |§ 3431-22; 1 Whart. Ev. §§ 697-99; 47 N. Y. 467; 58 Pa. 176; 82 id. 280; 39 Vt. 412; 26 Wis. 163. ' United-States v. Bayaud, 16 F. E. 376 (1883): E.S.§ 3324. STAND. Pleadings and transactions which cannot be shown to be illegal are said "to stand ; " and a person who has or has not a right to sue is said to have or not to have " standing in court." Compare St.4.tus. Stand aside. Statute 33 Edw. I (1308) forbade the crown to challenge jurors except for cause shown. A rule of practice then arose which permitted the prosecution to di- rect jurors to " stand aside until the whole panel be gone through and it appear that there will be a full jury without the persons so challenged." The practice was inherited by us, and has been re- peatedly recognized by the courts. It is precisely the same here as in England, and exists in cases of misde- meanor as well as in felonies. ^ Stand. by. To know of a thing being done against one's right and not to protest until another's interest has been materially af- fected. " Standing by " does not import actual presence, but knowledge under such circumstances as to render it the duty of the possessor to communicate it.^ The expression, often used in discussing cases of estoppel, does not mean actual presence or actual par- ticipation in the transaction, but silence where there is knowledge and a duty to make a disclosure.^ See Estoppel, Equitable. Stand by precedents. See Dectsum, Stare, etc. Stand committed. To be committed.* Stand mute. See Mute. STAPLE. A settled, established mart or market. The grand mart for the principal commodities or manufactures of the king- dom, formerly held by act of Parliament, in certain trading towns, and presided over by a mayor. 5 The hereditary customs of the crown, which were certain customs due on the ex- portation of wool, skins, and leather, were styled "the staple commodities" of the ' See United States v. Shackleford, 18 How, 690 (1855); Haines v. Commonwealth, 100 Pa. 322-23 (1882); Zell v. Commonwealth, 94 id. 272-73 (1880); 14 Cent. Law J. 402-6 (1882), cases; Baldw. 78, 82; 4 Bl. Com. 853; 2 Bac. Abr, 365; Coke, Litt. 166; 2 Hale, P. C. 271; 26 How. St. Tr. 1281;92E. C. L. 92; 7 Watts, 586; 37Pa.54-55; IBish. Cr. Proc, § 938; 2 Whart. Am. Cr. L. § 2966; Thomp. & M., Juries, 147. 2 Hatling v. Eodman, 6 Ind. 292 (1855); 8 Blackf. 47. » Anderson v. Hubble, 93 Ind. 573 (1883), cases, El- liott, C. J. See generally Richardson v. Pickering, 41 N. H. 386, 384-S5 (1660), cases. * Young V. Makepe«ioe, 103 Mass. 57 (1869). '2B1. Com.160. \ STAR 965 STATE kingdom, because they were brought to those ports where the king's staple was es- tablished to be rated before being exported.' " While we make the goods prepared or sold the * staple of the place,' our grandfathers made the place the 'staple' of the goods." '■' Staple productions. Such productions ©f the soil as have an established and defined character in the commerce of the country.' Statute staple. A security for money, entered into before the mayor of the staple. See further Statute-merchant. STAB. In law-books, indicates the line and word at which the pages of the first edi- tion began. STAB-CHAMBER. The room or cham- ber in which were originally kept the chests containing starra or starrs (Heb. shetelr) : the contracts or covenants of the Jews ; no starr being valid unless deposited in the legal re- pository.'' After the Jews were expelled from England the starr-chamber was used by the king's council sitting in their judicial capacity. Later, the room was desig- ziated as the camera-stellaia.* Court of star-cliamber. An ancient English court, remodeled by 3 Hen. YII (1488), and 21 Hen. Vm (1530). The court repressed the turbulence of the nobility and gentry in the provinces, and supplied a court for matters which, being of novel origin, were unprovided for by the existing tribunals; such as riots, per.iury, misbehavior of sheriffs, and offenses against proclamations in ecclesiastical matters. The court enhanced the royal authority by supplying it with speedy and effective machinery. It acted without the assistance of a jury. The abuses to which its processes were liable led to its abolition in 1640, by 16 Char. I, c. 10.' ST ABE. L. To stand, stand firm; to be established. See words following in staf-, and stet. Stare decisis. See Decisum. STABT. Is not limited to setting out upon a journey or a race ; it means, as well, the commencement of an enterprise or un- dertaking; as, in the phrase he "started to leave the State," said of ,an insolvent cred- itor.^ Compare Depaeture, 1. STAT. See Voluntas, Stat, etc. 1 1 Bl. Com. 314. = Trench, Glossary, 187. sKeeran v. Griffith, 34 Cal. 581 (1868). * 4 Bl. Com. 206 a. MBl. Com. 266-68; 4 Steph. ib. 308-10; 13 Am. Law Eev. 21-38 (1877); 1 Steph. Hist. Cr. Law Eng. 168-80; Green, Short Hist. Eng. Peop. 115. « Graw u, Manning, 54 Iowa, 521 (1880), Day, J. STATE.i 1, ?;. To set, set down, estab- lish; to represent as true, declare as fact, allege, aver. " Stating " a case to be within the purview of a statute is simply alleging that it is so; while "show- ing" it to be so, consists of a disclosure of the facts which bring it within the statute,'' State a ease. For parties to agree upon the facts in a case and to submit the same to a court for a decision as to the law govern- ing the case. See Case, Stated. State an account. To exhibit the items which constitute an account. See Account, Stated. State of the case. In New Jersey a narrative of facts which takes the place of a declaration. See Statement. State of the facts. Formerly, each party to a suit in equity placed before the master a statement showing how the party repre- sented the matter in question to be, that is, exhibiting his version of the facts. Statement. A formal narrative of facts ; an averment, allegation: as, a. plaintiff's statement of claim, defendant's statement of defense. See Allegation: Representa- tion, 1. A " declaration " is a specification, in legal and technical fonn. of the circumstances which constitute the plaintiff's cause of action. A " statement " is an immethodical declaration, stating, in substance, the time of the contract, the sum, and on what founded, whether a verbal promise, a book-account, a note, a bond, a penal or single-bill, with a certificate of the belief of the plaintiff, or his agent, of what is really due.' Brief statement. In Maine, a short notice filed by a defendant, without formal or full statement of the matters relied upon. The reply to this, filed by the plaintiff, is called his counter brief statement. They are used instead of pleas and replications, and relieve the parties from that exactness of allegation and denial by which trial upon the merits could formerly be avoided. The statements are, in effect, little more than notices of special matter to be given in evi- dence.' See Plain. Statement by an accused person. In Ala- bama, at trial, on any criminal proceeding. 1 F. estat: L. s(ah(m, a condition: stare, to stand. 2 Spalding v. Spalding, 3 How. Pr. 301 ,(1848). s Dixon u Sturgeon, 6 S. & R. '*28 (1830), Duncan, J. «Trask v. Patterson, 29 Me. 503 (1849), Shepley, C. J. See also Brickett v. Davis, 21 Pick. 406 (1888). STATE STATE the defendant may make a statement as to the facts in his own behalf, but not under oath. He is not then a witness ; nor can he be examined or ■cross-examined, nor impeached by proof of extrinsic facts introduced for that purpose.^ Stated term. <^ne of the terms of a court in their established order. Stating part. The portion of a bill in equity which alleges the facts in the case. See Equity, Bill in. 3, n. The circumstances or condition in which a person or thing stands or exists; standing, status, q. v. 3, n. (1) In general public law, a nation, republic, people, government, qq. v. A body politic or society of men united together for the promotion of their mutual safety and advantage by the joint efforts of their combined strength. 2 A community of persons living within cer- tain limits of territory, under a permanent organization which aims to secure the prev- alence of justice by self-imposed law. The organ of the state by which its relations with other states are managed is the " gov- ernment." 3 A complete body of free persons united to- gether for their common benefit, to enjoy peaceably what is their own, and to do jus- tice to others.* The "people "do not constitute the "state, "though it exists for their benefit, and is maintained by their means. A people without a " pfovernment " is not a state. The people are only an element of the state. When, within prescribed territorial limits, they effect a political organization and establish a government, a state arises. The government is established to protect them f I'om external wrong and internal disorder. In this organization and government what is called *' sovereign power " rests. Under American organiza- tions this power is distributed among the several de- partments, each wielding the portion vested in it, as "well against the body of the people as against individ- uals.^ In its most enlarged signification, the word " state " includes all republics, and governments not monarch- ical ; and even monarchies, if they fall within the rea- son of its use. This comprehensive sense is restrained, in the Con- stitution, by the subject-matter.'* I Chappell V. State, 71 Ala. 338 (1862); Act 8 Deo. 1882. ' [Yattel, Law of Nations, § 1. ■' Woolsey, Int. Law, § 36. « Chisholm v. Georgia, 2 Dall. *455 (1793), Wilson, J. « State D. Young, 39 Minn..538 (1881), Gilflllan, C. J. " [Terry ■;;. Olcott, i Conn. 445 (1823), Hosmer, C. J. (2) In American constitutional law, state means, sometimes, a people or community of individuals united more or less closely in po- litical relations, inhabiting temporarily or permajiently the same country ; often, only the country or territorial region inhabited by such a community; not unfrequently, the government under which the people live; at other times, combines the idea of people, territory, and government. In all senses the primary conception is that of people or com- munity — the fundamental idea upon which our institutions are established. In the Constitution, most frequently ex- presses the idea of the people, territory, and government, — a political community of free citizens, occupying a territory of defined boundaries, and organized under a govern- ment sanctioned and limited by a written constitution and established by the consent of the governed. It is the union of such States, under a common Constitution, which forms the distinct and greater political unit which that Constitution designates as the United States and makes of the people and States which compose it one people and one country. The word is used in the threefold idea in the prohibitions upon the States to make treaties, emit bills of credit, lay tonnage du- ties, in the guaranty of representation in Congress, etc. The geographical idea obtains in the provisions that a representative in Congress shall be an inhabitant of the State in which he is chosen, and that the trial of crimes shall be held within the States where they are committed. Tlie idea of a political community is presented in the provision that the United States shall guarantee to every State a republican form of government, and protect it against invasion. The union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of their common origin, mutual sympathies, kindred principles, similar interests, and geograph- ical relations. It was confirmed and strength- ened by the necessities of war, and i-eceived definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to " be per- petual." And when these Articles were found to be inadequate to the exigencies of STATE 967 STATE the country, the Constitution was ordained " to form a more perfect Union." It is diffi- cult to convey the idea of indissoluble unity more clearly — a perpetual union, made more perfect. But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respect- ively, or to the people. . . It may be not unreasonably said that the preservation of the States, and the maintenance of their gov- ernments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States. ' The people of the United States constitute one na- tion, under one government, and this government, Tfithin the scope of the powers with which it is in- vested, is supreme. On the other hand, the people of each State compose a state, having its own govern- ment, and endowed with all the functions essential to separate and independent existence. The States dis- united might continue to exist. Without the States in union there could be no such political body, as the United States. Both the States and the United States existed before the Constitution. The people, through that instru- ment, established a more perfect union by substituting a National government, acting, with ample power, di- rectly upon the citizens, instead of the Confederate government, which acted with powers, greatly re- stricted, only upon the States. In the Constitution the independent existence and authority of the States is distinctly recognized. To them nearly the whole charge of internal regulation is committed or left; to them and to the people all powers not expressly dele- gated to the National government are reserved. The general condition was well stated by Mr. Madison in the Federalist, thus: " The Federal and State govern- ments are in fact but different agents and trustees of the people, constituted with different powers and des- ignated for different purposes.'' ^ ' Texas v. White, 7 Wall. 730-81, 733 a808), Chase, C. J. ; United States v. Reese, 93 U. S. a49-53 (1875). ' Lane County v. Oregon, 7 Wall. 76 (1868), Chase, "In the early history of the organization of the government, its statesmen seem to have divided on the line which should separate the powers of the National government from those of the State governments, and though this line has never been very well defined in public opinion, such a division has continued from that day to this. The adoption of the flret eleven amendments to tlje Constitution so soon after the original instrument was accepted shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy contin- ued to exist with many patriotic men until the break- ing out of the late civil war. It was then discovered that the true danger to the pei-petuity of the Union was in the capacity of the State organizations to com- bine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the general government. Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government. But, however pervad- ing this sentiment, and however it may have contrib- uted to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still be- lieved that the existence of the States with powers for domestic and local government, including the regula- tion of civil rights — the rights of person and of prop- erty — was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation. But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and even hand the bal- ance between State and Federal power." > For all national purposes intended by the Constitu- tion the States are regarded as domestic, but in all other respects they are foreign and independent.'^ All the rights of the States as independent nations were surrendered to the United States. The States are not nations, either as between themselves or to- ward foreign nations. They are sovereign within their spheres, but their sovereignty stops short of national- ity. Their political status at home and abroad is that of States in the United States. They can neither make war nor peace without the consent of the National government. Neither can they, except with like con- sent, " enter into any agreement or compact with an- other State." 3 C. J. See also White v. Hart, 13 id. 6^0(1871), Swayne, Justice. 1 Slaughter-House Cases, IC Wall. 81-S3 '1873), Miller, J., all the justices concurring. The question concerned the scope of the Xlllth and XlVth Amendments. 2 Buckner v. Finley, 2 Pet. 590 (1829); 44 Pa. 330; 76 Ya. 27. See also Kidd v. Pearson, 128 U. S. 16-18 (1888), Lamar, J. » New Hampshire v. Louisiana, 108 U. S. 90 (1883), Waite, C. J. STATION 968 STATUS The United States is not a foreign sovereignty as regai'ds the several States, but is a concurrent, and, within its jurisdiction, a paramount sovereignty. Every citizen of a State is a subject of two distinct sover- eignties, having concurrent jurisdiction in the State — concurrent as to place and persons, though distinct as to subject-matter. Legal or equitable rights, acquired under either system of laws, may be enforced in any court of either sovereignty competent to hear and de- termine such kind of rights. The one qualification is that where a right arises under a law of the United States, Congress may, if it sees fit, give to the Federal courts exclusive jurisdiction ~- which may be by ex- press enactment or by implication. Thus, where Con- gress creates a penalty, without specifying a remedy, the penalty may be enforced in a State court, which, is as much bound to recognize United States laws as operative as to recognize its own laws. The laws of the two systems form one system of jurisprudence, which constitutes the law of the land of the State. * The political society which attempted to separate itself from the Union did not destroy its identity as a State, nor free it from the binding force of the Consti- tution.* " State " in the Internal Revenue Title of the Re- vised Statutes includes the Territories and the District of Columbia, when such construction is necessary to carry out its provisions.^ " State " in the act of March 2, 1837, relating to the taking of pilots on water forming the boundary be- tween two States, includes an organized Territory.* See Aid, 1; Body, 3; Citizen; Commerce; Constitu- tion; Court; Debt, Public; Departure, 1; Escheat; Evidence; Government; Inspection, 1; Law, Com- mon; Lottery; Militia; Officer; Police, 2; Policy, 1 ; Privilege, 2 ; Prison ; Purpose ; Statute ; Suit ; Tax, 3; Territory, 2; Trial; War. STATION. In the broadest sense, a place, position, or post. Con:ipare Status. 1. It may be said that wherever a man stays in pursu- ance of orders, he is " stationed," and that if he is a military man, such place becomes a " military sta- tion." But as used in the army laws and regulations, "military station" is synonymous with "military post," and means a place where troops are assembled, where military stores are kept or distributed, where military duty is performed, or military protection af- forded,— where, in short, something more or less closely connected with arms or war is kept or is to be done.^ 2. A stopping place at which passenger tickets are ordinarily sold; as, within the meaning of a statute 1 Claflin V. Houseman, 93 U. S. 136-43 (1876), cases, Bradley, J. ; Martin v. Hunter's Lessee, 1 Wheat. 334 (1816), Story, J. 2 Keith V. Clark, 97 U. S. 462 (1878); White v. Hart, 13 Wall. 651 (1871). 3 R. S. § 3140. 4 The Ullock, 19 F. E. 907 (1884); R. S. § 4236. See also 2 Cranch, 445; 1 Wheat. 91; 5 How. 377; 6 Wall. ^•87; 8 Saw. 321. fi United States v. Phisterer, 94 U. S. S32 (1876), Hunt, J.; Caldwell's Case, 19 Wall. 268 (1873). forbidding a railroad company to eject a person from its cars for non-payment of fare, except at " some passenger station." In another statute or connection a different sense nlay be intended.^ As to what constitutes a " station or depot," within the meaning of a statute providing that no railway company shall abandon any station or depot on it's road, after the same has been established twelve months, except by the approval of the railroad com- missioners after public notice and a hearing had, has been discussed in two cases in Connecticut,^ See Abandon, 1 ; Depot, 2 ; Rajlroad ; Usual. STATIONERY. Includes blanks for use in public offices. 3 STATU. See Status. STATUARY. A copy, made by a mod- ern artist, of an antique statute is a "pro- fessional production of a statuary or sculp- tor," -within the customs law. Revised Statutes, § 2504, Schedule M, directs that the duty on "paintings and statuary not otherwise provided for " shall be " ten per centum ad valorem. But the term statuary as used in the laws now in force imposing duties on foreign importations shall be un- derstood to include the professional productions of a statuary or sculptor only." The object of this section is to encourage a taste for art, and hence to admit the work of professional artists at a low rate of duty. A sculptor is " one whose occupation is to carve wood, stone, or other material, into images or statues, " A statuary is " one who professes or practices the art of carving images or making statues." The " profes- sional-productions " of a statuary or sculptor are the practical results of the practice of his profession or occupation,— the "images or statues" produced by the pxercise of his professional skill. In this sense, the statute embraces all the artistic work of a statuary or sculptor who pursues the employment of his class as a profession.* See Copyright; Design, 2; Furniture; Satisfac- tory. STATUS. L. Standing: state, condi- tion, situation. Compare Estate. A corporation has no status as a citizen outside of the jurisdiction where it was created. Statu quo or in statu quo. In the con- dition in which — a person or thing was; upon the original footing. A court in equity is reluctant to rescind a contract unless the parties can be put back in statu quo, that 1 Baldwin v. Grand Trunk E. Co., Sup. Ct. N. H. (1888). s State V. New Haven & Northampton E. Co., 37 ' Cofin. 163 (1870); Same v. Same, 41 id. 134 (1874). 3 County of Knoxu Arms, 22 111. 179 (1859); contra^ Commissioners v. Koons, 1 Col. 160 (1869). See also Commissioners' Court v. Goldthwaite, 35 Ala. 704 (1860). 4 Viti V. Tutton, 14 F. R. 246, 741 (1883), McKennan, Cir. J. ; s. c. 14 Rep. 741; 108 U. S. 313. STATUTE STATUTE is, can be remitted to the position they occupied be- fore the transaction complained of. Where a thing should not have been done, the parties are to be placed, as far as possible, in the situation in which they would have stood if there had been no such trans- action. ^ See Compensation; Damages; Laches; Re- form; Ebscission. STATTJTE.2 1. The written will of a legislature, expressed in the form necessary to constitute it part of the law ; an act of legislation; an enactment ; a written law. The express written will of the legislature, rendered authentic by certain prescribed forms and solemnities. ^ An act of oi'dinary legislation, by the ap- propriate organ of government; the provis- ions of which are to be executed by the executive or judiciary, or by officers subor- dinate to them.* The written laws of the kingdom are statutes, acts, or edicts, made by the king's majesty, by ahd with the advice and consent of the lords spiritual and temporal, and commons in parliament assembled." The great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.' 2. Formerly, the whole legislation of one session of a legislature, each distinct enact- ment being referred to as a "chapter" of the statute ; whence the abbreviations ch. and c. Statutable. Introduced, provided for, or required by express legislative enactment. Statutory. Relating to that which exists, obtains, or is maintainable, by virtue of leg- islation, instead of by force of common law ; regulated by express enactment: as, statu- tory — copyrightj indictment, lien, proceed- ings, remedy, qq. v. General or public statute. An universal rule that regards the whole community.' Local statute. Applies to the citizens of a part of a State ; also, a written law of one State as distinguished from national law. Special or private statute. This is rather an exception than a rule, being that which operates only upon particular persons and private conce rns.'? 1 Neblett v. Mactarland, 92 U. S. 103 (1875), cases; 20 How. 155; 93 U. S. 62; 101 id. 789. ^F.atatut: L. statutum: statuere, to establish, lay down as settled or decided: store, to cause to stand. Compare Constitution; Law. s 1 Kent, 447; 51 Miss. 773; 15 Barb. 114. * Eakin t.. Raub, 12 S. & K. *348 (1825), Gibson, J. » 1 Bl. Com. 85. • Munn V. Illinois, 94 U. S. 134 (1876), Waite, C. J. ' 1 Bl. Com. 86. A ',' public " act or statute relates to the public at large. 1 The disposition is to enlarge the limits of public statutes, and to bring within them ail enactments of a general character or which in any way affect the com- munity at large." Examples of public statutes are: statutes relating to a particular officer, establishing or defining mu- nicipal corporations, respecting roads or navigation generally, regulating the sale of liquors, giving juris- diction to a particular court, affecting all classes of persons in a State : also, municipal ordinances before a municipal court; but the laws of a school board are private." A "private" actor statute concerns the particular interests or benefit of certain in- dividuals or of particular classes of men.i A private statute affects only an individual or a small number of persons ; ' concerns only a particular species, thing, or person.^ A "local" statute touches but a portion of the territory of a State, a part of its peo- ple, or a fraction of the property of its citi- zens.* A local statute may be general or private in nature. In discussions on the relative authority of State and United States laws, " local " statute often refers to the statute law of one State, as opposed to a law, on the same subject, of another State, or of Congress, or the general commercial law. Other distinguishing epithets applied to statutes are : declaratory, directory, manda- tory; enabling, disabling; penal, and reme- dial, qq. V. General or public statutes are noticed judicially without proof. Private statutes are to be formally pleaded and proved.' Private statutes are proved by copy, examined by the roll itself, or by an exemplification under the great seal. In the United States, printed copies of the laws of alegislature, published in " statute-books " by its authority, are competent evidence either by stat- ute or judicial decision; and it is sufiHcient, prima facie, that the book purports to have been so printed. The laws and resolutions of each session of our legis- latures are printed by theu- authority; confidential 1 [Potter's Dwar. Stat. 52: Devine v. Cook County, 84 111. 592 (1877). = Unity V. Burrage, 103 U. S. 455 (1880), cases. Woods, Judge. ' 1 Whart. Ev. § 293, cases. < Morgan v. Cree, 46 Vt. 7S4-86 (1861). •Village of Winooslci v. Gokey, 49 Vt. 285 (1BT7). •People V. Supervisors of Chautauqua, 43 N. Y. 16- 17 (1870); People i'. Squire, 107 id. 593 (1888); 49 id. 135; 68 «. 383; 5 Lans. 115; 2 Abb. Pr. US. See also 22 La. An. 648; 7 Nev. 330; 9 id. 218; IS id. 249; 93 N. Y. :M3; 8 Oreg. 422; 6 W. Va. 349; 10 Wis. 178. 'IBl. Com. 86; Unity u. Bm-rage, 103 U. S. 454 (1880); 8 Oreg. 422. STATUTE 970 STATUTE persons are selected to compai'e the copies witli the original rolls, and superintend the printing. ^ The following rules for the construction of statutes, formulated by Sir William Blackstone,^ are frequently quoted: (1) In construing a remedial statute, the old law, tlie mischief, and the remedy are to be considered. See post, 970, u. 2. (2) A statute which treats of things or persons of an inferior rank cannot by general words be extended to those of a superior rank. See Ejurdek. (3) Penal statutes must be construed strictly. See post, 970, c. 1. (4) Statutes against frauds are to be liberally and beneficially expounded. (5) Onepai-tof a statute must be so construed by an- other that the whole may, if possible, stand. See Res, Ut res, etc. (6) A saving totally repugnant to the body of a statute is void. (7) When the common law and a statute differ the common law gives place to the statute, and an" old statute to a new statute. (8) If a statute that repeals another is itself after- ward repealed, the first statute is thereby revived •without formal words for that purpose. See Repeal. (9) Acts of Parliament derogatory from the power of subsequent Parliaments bind not. (10) Acts of Parliament that are impossible to be performed are of no validity; arid if there arise out of them collaterally any absurd consequences, mani- festly contradictory to common reason, they are, with regard to those consequences, void. . To the foregoing, Judge Sharswood, in his annota- tions to Blackstone's Commentaries, at page ninety- one of book one, adds the following five canons, with references to decided cases: (11) A statute shall always be so c6nstrued as to operate prospectively, and not retrospectively, unless the language is so clear as to preclude all question as to the intention of the legislature. See Retrospective. (13) Contemporaneous usage may be resorted to as evidence of the/ construction put upon a statute by those best acquainted with the mind and intention of the law-makers. See Expositio, Con temp oranea. (13)' The judicial interpretation of the statute of a State as settled by its own courts is to be received and followed by the courts of other States and by the Fed- eral judiciary. See Comity; Decision, Rules of. (14) When there has been a general revision of the statute code of a State, under the authority of the legislature, and the revision has been approved, a mere change of phraseology, introduced by the re- visers, will not be held to have effected a change in meaning unless such clearly appears to have been the intention. See Revised Statutes. (15^ A statute cannot be repealed by usage or be- come obsolete by non-user. That a part of a statute may be unconstitutional, see Constitutional. 11 Greenl. Ev. §480; Young v. Bank of Alexandria, 4 Cranch, 383 (1808); Watkins v. Holman, 16 Pet. 56 0843); Biddis v. James, 6 Binn. *336 (1814). « 1 Bl. Com. 87-91. See also 1 Kent, *i60-65. Blackstone, on pages fifty-nine to sixty-two of the same book (Vol. 1, Book 1) of his Commentaries, had made the subjoined " observations " concerning the interpretation of- particular statutes, which, like the canons given above, are everywhere quoted or cited. Having premised that " the most rational method to interpret the will of the legislator is by exploring his intentions " as evinced by the words employed, the context, the subject-matter, the effect and conse- quences, and the ^irit and reason,— he adds, more at length, that — (1) Words are generally to be understood in their usual and raostknow^i signification; not so much re^ garding the propriety of grammar as their general and popular use. Terms of art, or technical terms, must be taken according to the accejptation of the learned in each art, trade, and science. See Art, 3. (2) If words are still dubious their meaning may be established from the context. (3) As to the subject-matter, words are always to be understood as having a regard thereto, for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. (4) As to the effects and consequences, the rule is that where words bear either none, or a yery absurd signification, if literally understood, the received sense may be a little deviated from. (5) But the most effectual way of discovering the time meaning of a law, where the words are dubious, is by discovering the reason and spirit of it; the cause which moved the legislator to enact it. See Equity, Of a statute, p. 409. The following paragraphs, for the most part from the decisions of "fche Supreme Court of the United States, will serve still further to elucidate this impor- tant subject: Regard is to be had to the words, and to the intent: by reference to the context, previous or current en- actments, the history of the art or rrade, general his- tory, etc.i A meaning is to be accorded, if possible, to every word. That construction which makes a word re- dundant is to be rejected. The light had when the statute was made, and not the light of experience, is to be followed." Every part must be construed in connection with the whole, so as to make all the parts harmonious, if possible, and give a meaning to each part.^ A thing within the intention is as much within the statute as if it were within the letter; and a, thing within the letter is not within the statute if contrary to the intention of it.* 1 Merritt v. Welsh, 104 U. S. 702 (1881). 2 Piatt V. Union Pacific R. Co., 99 U. S. 58-59, 63 (1878), cases. 3 Washington Market Co. u Hoffman, 101 U, S. 115 (1879). ^People V. Utica Ins. Co., 15 Johns. ♦SSI (1818), Thompson, C. J. Approved, Insurance Co. v. Grind- ley, 100 U. S. 615 (1879). See also United States v. Moore, 95 id. 763 (1877); Harrison v. Commonwealth, 83 Ky. 171 (1885). STATUTE 971 STATUTE The intention of the law-maker Is the law. The duty of the court, being satisfied of this intention, clearly expressed in a constitutional enactment, is to give effect thereto, and not to defeat it by adhering too rigidly to the mere letter of the statute, or to technical rules of construction.' The business of the interpreter is to expound, not to improve, the language. The question is not so much what the law-makers meant, as what their lan- guage means.* A construction leading to an absurd consequence is to be discarded. . General terms will he so lim- ited in their application as not to lead to injustice, op- pression, an absurdity, or an unconstitutional opera- tion, if possible. It will be presumed that exceptions were intended which would avoid results of that nature.' It a literal interpretation of any part of a statute would operate unjustlj- or lead to absurd results, or be contrary to the evident meaning of the act taken as a whole, it should be rejected. The best way to discover the meaning, when expressions ai'e rendered ambiguous by their connection with other clauses, is to consider the causes which induced the enactment.' Ko statute, however positive in its terms, is to be construed as designed to interfere with existing con- tracts, rights of action, or with vested rights, unless the intention that it shall so operate is expressly declared or is to be necessarily implied. Hence, a new statute is regarded as applying to future cases." Settled construction is as much a part of a statute as the text itself, and a change of decision is the same in effect on contracts as an amendment of the law by enactment."* The practical construction given to a statute through a long period, and acquiesced in by all the departments of government, should control the court in construing it, though that construction contravene the letter of the law.' Where no Federal question is involved, the Federal courts accept the construction of the statutes of a State made by the courts of the State, however much they may question the correctness of that construc- tion.' Petial statutes are not to be construed so strictly as to defeat the obvious mtention of the legislature. This rule is founded on the tenderness of the law 1 Gates V. First Nat. Bank of Montgomery, 100 U. S. 244 (1879), Harlan, J. 2 Senior v. Batterman, 44 Ohio St. 673 (1887). > United States v. Kirby, 7 Wall. 486 (1868), Field, J.; Carlisle v. United States, 16 id. 153 (1878); Gates v. Nat. Bank, 100 U. S. 244 (1879); Montclalr v. Eamsdell, 107 id. 152 (1882). * Heydenfeldt v. Daney Gold Co., 93 U. S. 038 (1876), Davis, J., quoting Gyger's Estate, 65 Pa. 312 (1870), Sharswood, J. See also Lamp Chimney Co. v. Brass, &c. Co., 91 U. S. 662-63(1875); Leavitt v. Lovering, Sup. CLN. H. (1888). s Twenty Per Cent. Cases, 20 Wdll. 187 (1873), cases. ' Douglass V. Pike County, 101 U. S. 687 (1879). ' Harrison v. Commonwealth, 83 Ky. 170-71 (1885). sErie Railway Co. v. Pennsylvania, 21 Wall. 497 (1874), cases. for the rights of individuals; and on the principle that the power of punishment is vested in the legislature, and not in the judicial department. It would be dan- gerous to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of kindred character with those which are enumerated,' But the court must not disregard the rule that the intention of the law-maker, gathered from the words employed, governs in all cases.* The intention being the law, that sense is to be adopted which best harmonizes with the context, and promotes in the fullest manner the policy and the ob- ject of the legislature.^ A citizen is not to be placed where, by an honest error in construction, he may be prosecuted.' " The criminal law ought to be plain, perspicuous, and easily apprehended by persons of common intel- ligence. Itis cruel and unjust to punish men for ac- tions which can be construed to be crimes only by the application of artificial principles according to a mode of disquisition vmknown in the ordinary pursuits of life." ' Laws in derogation of common law, and statutes conferring exclusive privileges, are also to be con- strued strictly, that is, by close adherence to the words." A remedial statute must be construed liberally, so as to afford all the relief within the power of the court which the statute indicates the legislature intended to grant. Courts will look into the occasion for the pas- sage of such a statute, and consider the evils it seeks to remedy, their nature and extent, to determine how far it was to reach.' The meaning may be extended beyond the precise words used, from the reason or motive upon which the legislature proceeded, the end in view, or the pur- pose designed — the limitation being that to extend the meaning to a case not included in the words, the case must be shown to come within the same reason upon which the law-maker proceeded, and not only within a like reason. ' Contemporaneous construction by those called upon to carry a statute into effect is entitled to great re- spect." 1 United States v. Wiitberger, 5 Wheat. 95, 96 (1820), Marshall, C. J.; 81 Va. 243. 'Be Coy, 31 F. E. 800 (1887), Harlan, J.; State -u. McMahon, 63 Conn. 413 (1885). s United States o. Hartwell, 6 Wall. 395-96 (1867), cases, Swayne, J.; 1 Stoiy, 255; 17 F. R. 437. t United States v. Reese, 92 U. S. 219 (1875). » Lamb V. State, 67 Md. 534 (1887), Bryan, J. » See Wright v. Nagle, 101 U. S. 7S6 (1879); Euggles v. Illinois, 108 id. 681 (1888). 'Johnston v. United States, 17 Ct. CI. 171 (1881), Richardson, J. ; Neurath v. District of Columbia, ib. 233 (1881)- Stewart v. Kahn, 11 Wall. 604 (1870); ib. 515; In- toxioating-Liquor Cases, 25 Kan. 7C4 (1881); 70 N. Y. 228; 1 Kent, 455. 6 United States v. Freeman, 3 How. 565 (1845), Wayne, Justice. » United States v. Pugh, 99 U. S. 269 (1878); Brown v. STATUTE ,973 STATUTE Where English statutes have been adopted, the set- tled construction of them by the English courts has been considered as incorporated in the text.' Decisions made in England since the separation of the Colonies are entitled to great respect, but their authority is not admitted. ^ See Act, 2; Construction; Constitution; Day; Declaratory; Derogation; Exception, S; Expositio; Form; Law; Materia; Ordinance, 2; Preamble, 2; Prohibitory, 1; Provided; Punctuation; Purview; Eepel; Eevise; Eepuonant; Title, 3; Waiver. Statute of Accumulations. See Accu- mulation. Statute of Distributions. See Distei- BUTION, 1. Statute of Elizabeth.. See Charity, 2 ; Conveyance, 3, Frau'dulent. Statute of Frauds. See Fraud, Stat- ute, etc. Statute of Gloucester. See Costs. Statute of Liraitg^tions. See Limita- tion, 3. Statute of Uses. See Use, 3. Statute of Wills. See Will, 3. Statutes at large. Statutes in full or at length as originally enacted, in distinction from abridgments, compilations, and revis- ions. In particular, the title of the publica- tion containing, chiefly, the acts of Con- gress — the United States Statutes at Large. Acts of the State legislatures, as a rule, go by other names, as, "session laws," in Pennsylvania "pam- phlet laws." 2 The United States Statutes at Large exhibit the legislation of the several Congresses from March 4, 1789, the day of the organization of the government and of the first meeting of the First Congress. Each volume after the eighth contains all matters in the nat- ure of legislation ordained or enacted by the Congress or Congresses in session, or by the Administration in power, during the periods covered by the volumes respectively — general or public statutes, private acts, treaties with the Indian tribes and with foreign na- tions, postal, consular and other conventions, public proclamations by the President and by the heads of departments! Executive orders, resolutions by the Senate and House, etc. The different volumes and legislative periods are subjoined. Compare Revised Statutes, Of the United States; Session, 2. Vol. 1. Congresses: I,-" II, HI, IV, V.« March 4, 1789 to March 4, 1799. United States, 113 id. 571 (1865), cases; Barbour v. Louisville, 83 Ky. 103 (1885). ' Pennock v. Dialogue, 2 Pet. *18 (1839); McDonald v. Hovey, 110 U. S. 628 (1884). 2 Cathcart v. Eobinson, 5 P^t. *280-^3 (1831). ' See Dwarris, Statutes, 626. * Held an extra session. Vol. 2. Congresses: VI, VII, VIH, IX, Z, XI,' XH. Dec. 2, 1799 to March 4, 1813. ' Vol. 3. Congresses: XIH,' XIV, XV, XVI, XVII. May 24, 1813 to March 4, 1823. Vol. 4. Congresses: XVm, XIX, XX, XXI, XXTT, XXIII. Dec. 1, 1823 to March 4, 1835. Vol. 5. Congresses: XXIV, XXV,' XXVI, XXVn, XXVm. Dec. 7, 1835 to March 4, 1845. Vol. 6. Private laws. March 4, 1789 to March 4, 1845. Vol. 7. Indian treaties. Sept. 17, 1778 to ^Oct. 11, 1842. Vol. 8. European treaties. Peb. 6, 1778 to Nov. 10, 1845. Vol. 9. Congresses: TXIX , XXX, XXXI. Dec. 1, 1845 to March 4, 1851. Vol. 10. Congresses: XXXU, XXXm. Dec. 1, 1851 to March 4, 18S5. Vol. 11. Congresses: XXXIV,' XKXV. Dec. 3, 1853 to March 4, 1859. Vol. 12. Congresses: XXXVI, XXVIL' Dec. 5, 1869 to March 4, 1863. Vol. 13. Congress: XXXVIII. Dec. 7, 1863 to March 4, 1865. Vol. 14. Congress: XXXIX. Dec. 4, 1865 to March 4, 1867. Vol. 15. Congress: XL.> March 4, 1867 to March 4, 1869. Vol. 16. Congress: XLI." March 4, 1869 to March 4, 1871. Vol. 17. Congress: XLH,' March 4, 1871 to March 4, 1873. Vol. 18. Congi-ess: XLItl. Dec. 1, 1873 to March 4, 1875. Vol. 19. Congress: XLIV. Dec. 6, 1875 to March 4, 1877. Vol. 20. Congress: XLV.' Oct. 15, 1877 to March 4, 1879. Vol.21. Congress: XLVE.' March 18, 1879 to March 4, 1881. Vol. 33. Congress: XLVU. Dec. 5, 1881 to March 4, 1883. Vol. 23. Congress: XLVHL Dec. 3, 1883 to March 4,1885. Vol. 24. Congress: XLIX. Dec. 7, 1885 to March 4, 1887. Vol. 25. Congress: L. Dec. 5, 1887 to March 4, 1889. STATUTE-MERCHANT, STATUTE- STAPLE. A species of estate defeasible on condition subsequent; a security for money. The statute-merchant was entered into before the chief magistrate of some trading town, pursuant to 13 Edw. I (1286), de mercatoribus; the statute-staple, pursuant to 27 Edw. IH (1354), c. 9, before the mayor of the staple, q. v. They are both securities for debts acknowledged'tobe due; and were originally permit- ted only among traders, for the benefit of commerce. They allowed the debtor to be imprisoned, his goods seized, and his lands delivered to the creditor till out of the income the balance of the claim was paid in full. While the creditor held the lan,ds he was tenant ' Held an extra session. I STAY 973 STET by statute-merchant or statute-staple. > Compare Ex- tent, 3. STAY. To interrupt, arrest, suspend. Used also as a noun: as, stay of judgment, sentence, execution, or other proceeding. See Stet; Supersedeas. May result from an agreement, an order of court, or the operation of law — as, when an appeal, a writ of error, or a certiorari is perfected by bail being fur- nished and tlie requirements of the law in other re- spects observed. See Error, 2, (.3), Writ of. Stay-la^ws. Statutes designed to relieve debtors against the oppressive enforcement of remedies for the collection of debts in time of general financial distress. See Impair. STEAL. To commit larceny, q. v. But the words '' he stole my patterns " are not ac- tionable as imputing the felonious taking of property if the defendant meant that the plaintifiE fraudulently used knowledge which he had acquired.^ Receiving stolen goods, knowing them to be stolen, is a misdemeanor.^ The possession of goods recently stolen creates a presumption that the person in whose possession they are found is the thief, but not that he got them by burglary or house-breaking,* The temporary retention of chattels alleged to have been stolen, pending the prosecution of the sup- posed thief, is within the police power.* Stealing public property is a felony. Concealers and receivers are punishable alike.* By 25 Geo. 11 (IToS), c. 36, to advertise a reward for the return of things stolen, with " no questions asked," or other words to that effect, subjects both the adver- tiser and the printer to a forfeiture of fifty pounds each.^ See Compound, 1 (4). As to stolen bills of lading, notes, bonds, and other evidences of indebtedness, see Bearer; Lost, 2; Ne- gotiable. Compare Hook; Plunder. See Restitution; Search-warrant. STEAM. See Negligence; Police, 2; Kailroad ; Ship, 2. STEEB. See Cattle. STENCIL-PLATE. See Brand. STEWOGBAPHEK. A short-hand ■writer or reporter who officially takes down testimony, and the rulings and charge in a case on trial. ' 2 Bl. Com. 160. = Bunnell v. Fiske, 11 Meto. 554-65 (1846). See Alex- ander V. State, 12 Tex. 540 (1854); 1 Sprague, 196; 8 F. E. 24T-49; 10 Oreg. 366. = 4 Bl. Com. 132. * Taliaferro v. Commonwealth, 77 Va. 413 (1883), cases; Jenkins v. State, 62 Wis. 49 (1885); 2 Whart. Cr. Law, % 1605. ' Simpson v. St. John, 93 N. T. S ■« 1 Sup. E. S. 183-84. ' 4 Bl. Com. 134. His transcript of evidence is admissible when he testifies that he took the testimony in shorthand, that the transcript is correct, and exhibits all the testimony received. A deposition should be read to and signed by the witness, after being written out in long-hand.i The official stenographic notes that, by direction of a statute, are the " best authority in any matter of dispute," are the notes made up under the eye and with the approval of the court.^ In Pennsylvania, also, his note of a bill of exceptions taken to the ad- mission or rejection of testimony is sufficient, without the bill being actually sealed by the judge.' But a county is not liable for a transcript of his notes, unless made by order of court, or filed in performance of his general duty.* His notes are still " in writing " although not tran- scribed. Where a record was incomplete for want of transcription not attributable to the plaintiff in error, the case was remanded for a new trial.* A transcribed report cannot be used to contradict the witness on a subsequent trial, the legislature not having made the report evidence for any purpose." But a transcript may be used on the hearing of a bill in equity for a new trial in a suit at law, the stenog- rapher testifying to the correctness of the copy, that the witnesses were sworn, etc' His minutes of the testimony given on a former trial by a witness who has left the jurisdiction are ad- missible.^ But, before such testimony can be used in a later trial, the examination must have been completed, and the stenographer must testify to the accuracy of his report.^ Where a stenographer was employed by the master in a case to take testimony at the accounting before him, the expense was not allowed as costs, the parties not having agreed thereto."* STEP-CHILD. See Child. STET. L. Let it stand or be stayed. Stet processus. Let the process stand; let proceeding be stayed. An entry on a record, by leave of court, by which a plaintiff agreed that no further proceeding should be had. It prevented a defendant who became insolvent 1 Be Cary, 9 F. E. 754 (1881). !■ Taylor v. Pi-eston, 79 Pa. 442 (1875); Act 15 May, 1874. s Chase v. Vandegrift, 88 Pa. 217 (1878); Act 8 May, 1876. *Briggs V. Erie County, 98 Pa. 570 (1881); Lehigh County V. Meyer, 102 id. 479 (1883). ' Nichols V. Harris, 32 La. An. 646 (1880). "Phares v. Barber, 61 111. 272 (1871). ' Brown v. Luehrs, 79 111. 581 (1875). 8 Stewart v. First Nat. Bank of Ft. Huron, 43 Mich. 257 (1880). « Misner v. Darling, 44 Mich. 438 (1880). 10 Bridges v. Sheldon, 18 Blatch. 507 (1880). See also Gunther v. Liverpool, &c. Ins. Co., 20 id. 390 (1882). See generally 10 Am. Law Eec. 257; 10 Law J. 337; 1 Leg. News, 565, 592, 593, 604; 7 Mo. Law Mag. 194. STICK IN THE BARK 974 STOCK pending the action from obtaining judgment as in case of nonsuit. STICK rW THE BARK. See Liteka. STIPITAL. See Stirps. STIPULATION.! 1. The mode of fur- nishing security or bail in admiralty ; also, the instrument by which this is done. The name given to the securities which the parties are required to furnish or enter into, as a means of enabling the court to en- force justice. 2 Corresponds to "bond" and "recognizance" at common law. No particular form of words is used; the instrument states the pendency of the suit, and that the required obligation is assumed; it is acknowl- edged, but need not be sealed. A deposit of money- may be made instead. . The stipulations now in use are for costs, for coasts and damages, for value, to ap- pear and abide the decree, or to pay money recovered. ^ Stipulator. An obligor or surety. Stipulators, like sureties, are not liable beyond the amount specified, except for costs and interest byway of damages in case of default to make payment pur- suant to the terms of the obligation.* The court may require the security to be kept good.^ 8. An agreement between counsel respect- ing business before a court. Generally, by rules or practice of the courts, is to be reduced to writing. May be to refer or to postpone a cause, to admit one or more facts, to waive an ob- jection, to waive a trial by jury, or the like. Once filed, becomes part of the record, to be withdrawn only by leave of court.* See Finding, Special. STIRPS. L. A root, stock; source of descent. Taking property by representation is called succession in stirpes or per stirpes, according to the roots ; since all branches inherit the share that their root, whom they represent, would have inherited. Whence "stipital distribution." Opposed, distribution per capita, by heads or individuals.'' See Caput, Per capita. STOCK.8 1. The animals which are used with, supported by, or raised upon a farm or land.' ' L. stipula, a straw. The early Romans, upon mak- ing a solemn promise, broke a stipula, and, joining the parts, acknowledged the agreement. See The Nation, Tol. 35, p. 445; 36 id. 12. ' 2 Conkling, Adm. 80. 'Benedict, Adm. §§ 489, 401, 493; 3 Bl. Com. 291, 108. 4 The Wanata, 95 U. S. 605-18 (1877), cases. i The City of Hartford, 11 F. E. 89 (1882). »E. S. § 649; 94 U. S. 377; 108 id. 628, 634; 103 id. 554. '2 Bl. Com. 217, 204; 41 N. J. E. 504. 8 A thing "stuck" or fixed; hence a post, trunk, stem, a fixed store, fund, capital, cattle, etc., — Skeat. » [Graham v. Davidson, 3 Dev. & B. 171 (N. C, 1838;. In its popular sense includes the domestic animals, cattle, etc., raised and used upon a farm.l Domestic animals or beasts collected, used or raised on a farm : as, a stock of cattle or of sheep; called also "live-stock. "2 See Animal. 3. Articles accumulated in a business or calling for use and disposal in its regular prosecution. See Store ; Rolung-stook. 3. (1) Public funds ; the indebtedness of a state or government. " The reasonable expenses of a prosecutor are by statute to be allowed him out of the common stock." ^ Shares in a public stock are represented by scrip issued to creditors, or by entries in official books kept in government oifices. The funded national debt of Great Britain is understood to stand whoU.v in the form of stocks. In this country, an issue of bonds has been the more common form, though there have been Federal and State stocks.* Since the introduction of the system of borrowing upon interminable annuities, "stock," instead of sig- nifying the security upon which loans are advanced, has come to signify the principal of the loans them- selves.° (3) The capital of an incorporated com- pany in transferable shares of a specified amount. In a restricted sense, refers to the interests of the respective shareholders. The aggregate of these interests may, in cases, be denominated the stock of the corporation. ^ Capital stock. In its general accepta- tion, money invested in business; " capital" is a synonymous term. In this general sense it is money invested in business operations, whether that business be conducted by a single individual, a partnership, a corpora- tion, or government ; and it makes no differ- ence how the money is obtained, whether by labor, by borrowing, or otherwise. If the money is borrowed it is represented in the hands of the lender by bonds, notes or other papers, with the government by govern- mental securities, sometimes called '•' stocks." But in such cases the lender is not a stock- holder in the business. So far as the party ' Baker v. Baker, 61 Wis. 546 (1881), Cole, C. J. s Inman v. Chicago, &o. E. Co., 60 Iowa, 461 (1883), Day, C. J. ; State v. Clark, 65 id. 333 (1884). s 4 Bl. Com. 362. * Abbott's Law Diet. 5 [Mozley & AVhiteley's Law Diet. « [Bailey v. New York Central, &c. R. Co., 22 Wall. 637 (1874), oases, Clifford, J. ; State Railroad Taxes, 92 U. S. 603(1875); IndianapoUs, &c. R. Co. o. Vance, 96 id. 455 (1877). STOCK 975 STOCK himself is concej-ned, if the money is invested in his business, it is his capital or stock in trade. This is the general meaning of the term. But when it refers to a chartered or joint-stock company, made up of individuals, it has a somewhat more limited signification. It then means the money advanced by the corporators or members as capital, which, for convenience, is divided into equal amounts called "shares," for which each member is entitled to a certificate, showing the number of shares which he has in his company ; or, in other words, the amount of money he has furnished to the common stock; which cer- tificate is the evidence of his being a stock- holder. Referring to a corporation, especially in connection with "subscribing" to its stock, means capital stock. • In the case of an individual, " capital stock" means the fund of money or the property on which he does business; in the case of a voluntary association of persons for conducting a business, as, a partnersliip, the fund of money or property controlled by one or more of the associates, employed as a basis of a business, on which and with which the business is to be commenced and carried on. " Capital" alone means this.- The capital stock of a corporation is the amount of capital prescribed to be contrib- uted at the outset by stockholders, for the purposes of the coi-poration.3 The funds of a corporation may fluctuate — may be increased by surplus profits or be diminislied by losses; but its capital stock remains inviolable, unless changed by legislative authority. ^ The capital stock of a corporation is that money or property, which is put into a single corporate fund, by those who by subscription therefor become mem- bers of the corporate body."* That fund becomes the property of the aggregate body only. A sliare of the capital stock is the right to partake, according to the amount put into the fund, of the surplus profits of the corporation ; and ulti- ■ State V. Cheraw, &c. E. Co., 16 S. C. 528-29 (1881), Simpson, C. J. ' San Francisco v. Spring Valley Water Works, 63 Cal. 529 (1883), Thornton, J. See also People v. Com- missioners of Taxes, 23 N. Y. 219-20 (1861), Corastook, C. J.; approved, 22 Wall. 636, tmte. ' State V. Morristown Fire Association, 23 N. J. L. 196 (1851); Seignouret i). Home Ins. Co., 84 F. R. .333 (1885), cases: 25 Am. Law Reg. 32-34 (1886), cases. On the illegal issue and over-issue, see 27 Am. Law Reg. 667-92 (1888), cases; 21 Am. Law Rev. 696-704 (1887). * Burrall v. Bushwick R. Co., 75 N. Y. 216 (1878), Fol- ger, J. ; Barclay v. Culver, 30 Hun, 5 (188.3). mately, on the dissolution of it, of so much of the fund thus created as remains unimpaired and is not liable for the debts of the corporation.' Referring to a corporation, the property contrib- uted by its stockholders or otherwise obtained by it, to the extent required by its charter. « " Capital stock " and " shares of capital stock " are distinct things. Thus, the capital stock of a bank is the money paid or authorized to be paid in as the basis of the business and the means of conducting its operations. It represents whatever it may be in- vested in. If a large surplus be accumulated, that does not become a part of it. The amount authorized cannot be increased without legal authority. If there are losses which impair it, there can be no formal re- duction without the like sanction. Shares of capital stock in a bank are usually represented by " certili- cates." Each holder is a cestui que trust to the ex- tent of his ownership. The shares are held and may be bought, sold, and taxed like other property. Each share represents an aliquot part of the capital stock. The holder cannot touch a dollar of the principal. He is entitled only to share in the dividends and profits. Upon a dissolution of the institution, each shareholder is entitled to a proportionate share of the residuum, after satisfying all claims. The liens of creditors are prior to his. He, and not the corporation, can vote upon his shares. The capital stock and the shares thereof may both be taxed.' Capital stock exempt from taxation is that which in the legitimate operations of the corporation comes to represent the capital. The capital stock of a bank usually consists of money paid in to be used in bank- ing.' In revenue laws, the capital stock of a corporation often means the capital stock actually issued, not the capital authorized to be issued. ^ The capital stock of a corporation, especially un- paid subscriptions, is a trust fund for the benefit of the general creditors. The board of directors, except by fair and honest dealing and for value, cannot re- lease an obligation to pay a subscription.^ The capital stock of a national banking association is a fund set apart for the payment of its debts; a sub- stitute for the personal liability which subsists in pri- vate corporations. The creditors have a lien upon it. If diverted, they may follow it as far as it can be traced and subject it to the paj'ment of their claims, except as against holders who have taken it bona fide for value and without notice. It is publicly pledged for the security of creditors. Unpaid stock is as much a part of the assets as is the cash paid in upon it.' 1 Burrall v. Bushwick R. Co., ante. 2 Williams v. Western Union Tel. Co., 93 N. Y. 188 (1883), cases. See also .30 Ark. 693; 83 lU. 602; 40 6a. 98; 8 id. 486; 52 Pa. 177; 18Wis. 291. s Farrington u Tennessee, 95 U. S. 686-87 (1877), cases, Swayne, J. * Railroad Companies v. Gaines, 97 U. S. 707 (1878), Waite, 0. J. s Commonwealth v. Texas, &c. R. Co., 98 Pa. 100 (1881). " Sawyer v. Hoag, 17 Wall. 620 (1873), cases. ' Sanger v. Upton, 91 U. S. 60-61 (1875), cases, Swayne, STOCK 976 STOCK The directors of the corporation are the trustees of the capital stock. The trust is to be managed for the benetit of the stockholders during its life, and of its creditors in the event of its dissolution. The trustees are bound to call in what is unpaid. They cannot squander or give away the capital paid in. Accepting and holding a certificate of shares makes the holder liable to all the responsibilities of a shareholder, i Certificate of stock. Not a security for money, nor a negotiable instrument in the strict sense; simply a muniment and evi- dence of the holder's title to a described . share or interest in stock, as, in the property and franchises of a corporation. 2 Does not partake of the character of a negotiable instrument. A bona fide assignee, with power to transfer the stock, takes the certificate subject to the •equities which existed against his assignor. ^ A transfer not ento^-ed on the books of the corpora- tion may be valid against all the world except a sub- 'sequent purchaser in good faith.* Deferred stock. Irredeemable railroad bonds, not entitled to interest until certain common stock has received six per centum, and after that to share pari passu with said common stock, do not constitute " de- ferred stock," in form or substance. They more nearly resemble a perpetual loan, with the interest in- definitely postponed, the owners having no rights as stockholders.^ .Preferred stock. "Preferred," "pref- erence," "preferential" or "guaranteed" shares of stock, as they are indifferently called, are issued by incorporations which have expended their original capital, in order to obtain further capital. The owners .are entitled to profits to a certain extent in preference to other creditors. Opposed, common stock.s J. ; County of Morgan v. Allen, 103 id. SOS (1880) ; Bissit V. Kentucky River Nav. Co., 15 F. R. 353 (1883); ib. 359- 65, cases. 1 Upton V. Tribilcock, 91 U. S. 47-48 (1873), cases, ' [Bailey v. New York Central H. Co., 22 Wall. 636 (1374), eases, Cliiford, J. 2 Mechanics' Bank 11. New York, &c. R. Co., 13 N. Y. en, 687 (1856). « Parrott v. Byers, 40 Cal. 614 (1871). As to risks in purchasing, see 22 Cent. Ijaw J. 3, 269 (1886), cases. On , compelling issue of new certificate, where old negli- gently canceled, see St. Romes v. Cotton Press Co., 127 U. S. 619 (1888), cases. 'Philadelphia' & Reading R. Co.'s Appeal, 39 Leg. Int. 98 (Pa.. 1882). • Lookhart v. Van Alstyne, 31 Mich. 81 (1875), Cooley, J. See also State v. Cheraw, &c. R. Co., 16 S. C. 530- 3i (1881); St. John v. Erie R. Co., 22 Wall. 136 (1874); Warren v. Kin(f, 109 U. S. 389 (1883); N. Y. Central R. Co. V. Niokals, 119 id. 396, 308 (1887); Mackintosh u. Flint, 33 F. R. 350 (1887); Gilkey v. Paine, 80 Me. — X1888); 20 Am. Law Rev. 633-49 (1881), cases; 139 Mass. The object of issuing "preferred" stock is to strengthen the company's standing or to enlarge its business. A crisis having been reached, the old stock- holders are unwilling to risk more money in the enter- prise, yet are ready to give those who will do so a preference in any profits which the increased means may enable the concern to make. The company can- not pay dividends with such stock. , The holders are stockholders, not creditors. The question of the abil- ity to pay dividends or interest upon it will be decided by the court. The declaring of dividends or interest on '' common stock " is discretionary with the direct- ors. The rig|it of a holder of preferred stock extends' only to a priority of dividends out of profits actually earned. 1 ■ Stock associations. A " joint-stock as- sociation" or "company" is a union of per- sons owning a capital .stock devoted to a common purpose, under an organization analogous to that of a corporation ; or, it is a body upon which some of the privileges or powers of a corporation have been conferred. A " joint-stock corporation" is a fully incor- porated body, owning and managing a stock capital. 2 1 A " joint-stock company " is a partnership with shares of capital transferable without the express consent of all the partners ; that- is, no delectus personarum exists, s A partnership made up of many persons acting under articles of association, for the purpose of carry- ing on a partnership business, and having a capital stock, divided into shares transferable at the pleasure of the holder. Never used, in Massachusetts,, of a corporation created by an act of the legislature, and authorized to issue certificates of stock.* English joint-stock companies are not pure corpo- rations, but are intermediate between corporations as known to the common law and ordinary partnerships. ' They are so far clothed with corporate powers that they may be treated in this country, for the purpose of taxation at least, as foreign artificial bodies, or corporations.* Stock-exchange. An association of per- sons who deal in stocks as a business ; also, the building or room maintained by the as- sociation for the public sale of stocks. 9; 24 Hun, 360; 46 N. Y. 468; 78 id. 159; 84 id. 167; 8 R. I. 3B9. 1 Lockhart v. Van Alstyne, ante. 2 [1 Abbott's Law Diet, 652, 654.] ■ See Smith, Contr. 326. s [1 Pars. Contr. 121. " Attorney-General v. Mercantile Ins. Co., 121 Mass. 526 (1877), cases, Endicott, J. See also 1 Disney, 90 (1855). 6 Oliver v. Liverpool, &c. Ins. Co., 100 Mass. 631, 538 (1868). See Liverpool Ins. Co. v. Massachusetts, 10 Wall. B66, 573 (1870). STOCK 977 STOCK The persons transacting business professionally " on the exchange " are either brokers or jobbers; the former are agents merely for customers; the latter deal for themselves, at the same time making pur- chases and sales for customers, chiefly by means of " time bargains." ' Stock-exchange boards are voluntary associations for business purposes, with elective membership, and provisions for a right in each member to assign his "seat" to be sold to an approved purchaser. The number of members being limited, the right to a seat at the board has a moneyed value. When a member fails to perform his contracts, or becomes insolvent, he can no longer be a member, at least, until he re- sumes payment; and his seat may be sold for his ben- efit, or for that of his creditors among the other mem- bers of the board to the exclusion of outside creditors — the seat not being a matter of absolute purchase, but incumbered with conditions of tenure not imposed by the member, and which violate no principle of public policy.' See further Exchange. Stockholder. The owner of one or more shares of stock, eitlier state or corporation ; a shareholder. What he " holds " is strictly a certificate of ownership. Within the meaning of a, statute, a person who holds stock, issued in his name, may be regarded as a stockholder, as well as the person who owns it.^ A stockholder is an integral part of the coi-pora- tion, and is constructively before the court in all pro- ceedings touching the body." The liability of a subscriber is several. By sub- scribing be becomes a separate debtor to the com- pany. His subscription may be enforced without the joinder of other subscribers. Where the object is to wind up the affairs, all the shareholders, as far as as- certainable, should be made parties, in order to equal- ize the burdens and avoid multiplicity.' The individual liability of shareholders m a corpo- ration is a creature of statute. But, on failure of a bank, in which each is liable for twice the amount of his shares, a suit in equity by or for all the creditors is the appropriate mode of enforcing payment.' A certificate is not necessary to perfect a subscrip- tion. All that is needed, as to creditors, is that the subscriber shall have bound himself to become a con- tributor to the fund which the capital stock repre- sents.' In a national bank, the shareholders are individu- ally responsible, equally and ratably, and not one for another, for all engagements of the association, to the extent of the amount of the stock of each shareholder, at the par value, in addition to the amount invested in such shares. This liability" may be enforced through a receiver appointed by the comptroller. ^ The separate property of a married woman who holds stock in a national bank may be charged with an assessment thereon. 2 At common law, the individual property of the shareholder was not liable for the debts of the corpo- ration. Such liability exists now by statutes. In a national bank it exists by contract from assent to the f oregoinff provision in accepting a charter. That lia- bility, as stated, is several. It cannot be made joint; the shareholders are not guarantors or sureties one for another. The insolvency of one shareholder, or his absence, does not affect the liability of another, nor does the fact that the bank itself is a holder. To fix the liability of each shareholder, ascertain the whole amount of the par value of all the stock held by all the stockholders, and the amount of deficit to be paid after exhausting the assets of the bank; and then apply the rule that each share shall contribute such sum as will bear the same proportion to the whole amount of the deficit as his stock bears to the whole amount of the capital stock at its par value.' A purchaser of national bank stock, who, to con- ceal ownership and escape individual liability, trans- fers the stock to a person pecuniarily irresponsible, is still liable, as long as he is the actual owner." The responsibility of a holder ceases upon surrender of his certificate and delivery of a power of attorney intended and sufficient to effect a transfer of the stock : unless, perhaps, the transferee avows an intention not to have the formal entry made in the books of the bank for a period of time unreasonably long.' To enable a stockholder in a corporation to sustain in equity in his own name a suit founded on a right of action existing in the corporation itself, there must exist as a foundation some action or threatened action of the managing board of directors or trustees which is beyond the authority conferred on them by their charter or other source of organization; or, such a fraudulent transaction completed or contemplated by ' Brown's Law Diet.; 2 South. Law Eev. 321^5(1876), cases; L. K., 4 Ch. Ap. 3; L. K., 4 C. P. (Ex. Ch.) 36; L. R., 4 Ex. 81. 2 Hyde v. Woods, 94 U. S. 523 (1876), Miller, J. ; Nich- olson 1;. Gooch,6 El. & B. 999(1856); 9 Reporter, 305; 5 W. N. C. 36; Pancost v. Jowen, 93 Pa. 60 (1879); Dos Passes, Stock Brokers, &c., 14, 87, 96. = State V. Leete, 16 Nev. 242 (1881). ' Sanger v. Upton, 91 U. S. 59 (1875). s Hatch V. Dana, 101 U. S. 311-15 (1879), cases. » Terry u. Little, 101 U. S. 217-18 (1879); Pollard v. Bailey, 20 Wall. 520 (1874); Pittsburgh, &c. R. Co. 1;. Applegate, 21 W. Va. 173 (1882), cases. 'Hawley v. Upton, 102 U. S. 316 (1880), eases. See generally Gray u Town of York, 15 Blatch.- 838-39 (62) (1878), cases; Foreman v. Bigelow, 4 Cliff. 545-49 (1878), oases; Clark v. Bever, 31 F. R. 676-77 (1887), note; 25 Cent. Law J. 411 (1887), cases. On subscriptions by municipal corporations, see Kelley v. Milan, 127 U. S. 150 (1888), cases. 'R. S. §§ 5151, 6234, cases. ! Witters v. Sowles, 32 F. R. 767 (1887), cases. Case of a bill filed by a receiver to enforce payment of an as- sessm^t, Bundy v. Cocke, 128 U. S. 185 (1888). 8 United States v. Knox, 103 U. S. 434-85 (1880), oases, Swayne, J. < Davis V. Stevens, 17 Blatch. 259 (1879); Crescent City Nat Bank v. Case, 99 U. S. 628 (1878). 'Whitney!). Butler, 118 U. S. 655, 663 (1886). As to non-liability for par value, see 26 Am. Law Reg. 161-65 (1887), cases; as to prohibitions on transfer, ib. 104-6 (1887), cases. STOCK 978 STOPPAGE IN TRANSITU the acting- managers, in connection with some other party, or among themselves, or with other sharehold- ers, as will result in serious injury to the coi-poration or to the intei'ests of the other shareholders; or, where the board of directors, or a majority of them, are act- ing for their own interest, in a manner destructive of the corporation itself, or of the rights of the other shareholders; or, where the majority of the share- holders themselves are oppressively and illegally pur- suing a course, in the name of the corporation, which is in violation of the rights of the other shareholders, and which can only be restrained by the aid of a court of equity. Possibly other cases may arise in which, to prevent irremediable injury, or a total failure of justice, the court would be justified in exercising its powers. The complaining shareholder must first make an earnest, not a simulated, effort with the managing body to induce remedial action on their part, and this must be made apparent to the court. If time permits, he must show, if he fails with the directors, that he has made an honest effort to obtain action by the stockholders as a body, in the matter. And he must show a case, if this is not done, where it could not be done, or it was not reasonable to re- quire it.' The capital stock of a corporation exists for the • benefit of the creditors whenever their interests re- quire it. Its payment can be enforced in modes not available to the corporation and without using its name. Creditors' bills in the names of individual creditors, whether by judgment or otherwise, proceed- ings by assignees in bankruptcy either directly by bill or by petition, and proceedings by insolvent assignees or receivers tinder direction of the proper courts, are the ordinary modes; in all which it is essential that there should be an ascertainment of the fact of insolv- ency, of the exhaustion of all other assets, of the amount of the debts due by the corporation, of the amount of capital stock required for the discharge of those debts, and an assessment and call upon the ■stockholders for the payment of the amount due from ■each. If the contract of subscription is without con- ditions relieving the stockholders from paying the full tpar value of the stock, the call may be made by the •directors, and if the corporation is sui juris and has not passed into the hands of assignees or receivers, »the (proceeding to recover the money may be prose- cuted by the corporation in its own name. If, how- ever, the corporation refuses to act, or is disabled, ■either by the terms of its contract or from legal inca- pacity by reason of insolvency, the assessment must be n:iade by a court having jurisdiction of the mat- >ter and 'the parties, in some suitable proceeding by way of bill or petition; and the court will either order an assessment to be made upon each stockholder of ithe amount to be paid by him, and upon which an -action can be tried in the common-law courts, or a decree ican be made directly against each stockholder who has been made a party and served with process, for the payment of the money due by him, and such ' Hawes v.. City of Oakland, 104 U. S. 450, 457, 4G0 (1881), cases, Miller, J; Huntington u. Palmer, t6. 483 (1881); City of Detroit v. Dean, 106 id. 537 (1882); Bulk- ley V. Big Muddy Iron Co., 77 Mo. 108 (1882), cases. decree can be enforced by immediate execution pro- cess.' Letters of administration are sufficient evidence of authority in an administrator to transfer stock. On the same footing is the trustee of an insolvent, and an executor. In general, the transfer agent is not to look beyond tlie certificate or letters of appointment of such person. He may demand inspection of a will, especially where stock is held in trust for a person named. Because the corporation is a trustee of the propeity and title of each owner of stock, it may de- mand this evidence of authority to make a transfer.' A discretionary power to transfer stock cannot be delegated; a mere ministerial power maybe. But a ratification of the delegation of a discretionary power would validate the transfer made.^ A power of attorney to transfer stock is valid, though executed in blank. The right to insert the name of a transferee is implied. The commercial usage is not to insert the name.^ The pledgee of stock may vote on it without losing his character as a pledgee. ^ Where shares of stock are pledged as collateral, the pledgee reserving the right to sell in case of default and of causing a transfer to him on the books of the corporation, until the pledgor's rights are foreclosed by a sale, he may vote the stock, no statute providing otherwise.* See further Bank, 3 (S); Call, 5; Carry, 6; Con- spiracy ; Corporation ; Director ; Dividend, 3 ; Proxy ; Scrip; Subscribe, 2;' Tax, 2; Vote. STOCKS, A contrivance for inflicting punishment, consisting of a frame, acting like a large clamp, with openings for the legs, or legs and arms, and which, when ad justed, held the delinquent in a sitting posture."^ Compare Rack, STOLEN. See Steal. STONE. See Quarry; Writing. STOP. See Estoppel; Order, 2. STOPPAGE IN TRANSITU, The right which arises to an unpaid vendor to resume the possession, with which he has parted, of goods sold upon credit, before they . come into the possession of a vendee wlio has become insolvent, bankrupt, or pecuniarily embarrassed.3 , An equitable extension, recognized by the courts of common law, of the seller's lien for the price of goods » Lane's Appeal, 105 Pa. 62-fi3, 60 (1884), cases, Green, J. 2 Bayard v. Farmers' &c. Bank, 5S Pa. 933, 235 (1866), cases, Strong, J. 3 Bohlen's Estate, 75 Pa. 304 (1874). * German Association v. Sendmeyer, 50 Pa. 67 (1865) ; Denny v. Lyon, 38 id. 101 (1860). ^ Burgess v. Seligman, 107 U, S. 29-31 (1882),, cases. " State V. Smith, 15 Oreg. 98, 112 (1887), cases. ' See Webster's Diet. ; Penny Mag. Vol. 1, 54 (1832). e Inslee v. Lane, 57 N. H. 457 (1876), Foster, C. J. STOPPING-PLACE 979 STORY of which the buyer has acquired tlie property, but not the possession. The right is paramount to any lien created by usage or by agreement between the carrier and the consignee for a general balance of accoiint, but not to the carrier's lien for freight.' The right is personal to the consignor. An exercise of the right is not a rescission of the contract, but, at most, a revesting of possession in the vendor. - The right must be exercised while the goods are in transit. That ends when the goods come into the possession, actual or cpnstructive, of the vendee or his agent; but an ending as to a part is not an ending as to all the goods, unless the contract is entire. The termination may be accelerated by the vendee ; but it may not be prolonged by the carrier. The right is defeated by the consignee negotiating the bill of lading to a bona fide transferee for value.* See Revendication. STOPPING-PLACE. See Usual. STORE. 1, V. To keep merchandise for safe custody, to be delivered in the same con- dition as when received. Safe-keeping is the principal object of deposit, not consumption or sale.^ See Bailment. 3, n. In England, is never applied to a place where goods are sold, only to a place where they are deposited. In this country, denotes both of these places.' A shop for the sale of goods of any kind, by whole- sale or retail. That is, we use "store '' for store-house, a word properly meaning the quantity of a thing ac- cumulated or deposited, for the place of deposit. But " shop " may refer to a place where a mechanic art is carried on.* That Is, again, " store " is of larger signification than " shop." The latter word frequently designates the place in which a mechanic pursues his trade." The common use of "store," when applied to a building, is to designate a place where trafflc is carried on in goods, wares and merchandise, and not to desig- nate a "store-house." ^ Store fixtures. Store fittings or furniture, which are peculiarly adapted to make a room a store rather than something else. " Store " designates a shop or warehouse, never a factory. Therefore, fixtures in a ' Potts V. New Tork, &c. E. Co., 131 Mass. 457 (1881), cases. 2 See Audenried v. Randall, 3 Cliff. 106-9 (1868), cases; Wheelhouse v. Parr, 141 Mass. 595 (1886), cases; Bethell V. Clark, 19 Q. B. D. 553 (1887): 33 Alb. L. J. 446; 1 Law Quar. Rev. 397 (1885); 14 Cent. Law J. 842-44 (1882). cases; 24 id. 387 (1887), cases as to what is a delivery; 1 Am. St. R. 312-14, cases; Story, Sales, §§ 343^7; 2 Kent, 702; 5 Wait, Act. &Def. 613. 3 See O'Niel v. Buffalo Fire Ins. Co., 3 N. Y. 127 (1849); 16 Barb. 129; 6 Wend. 628; 5 Minn. 503. < Barth v. State, 18 Conn. ♦440 (1847), Storrs, J. » State V. Canney, 19 N. H. i37 ^1848), Gilchrist, C. J. « Sparrenberger v. State, 53 Ala. 4S3 (1875), Brickell, Chief Justice. ' Hittinger v. Westford, 135 Mass. 259 (18f 3), Colbum, J. ; Boston Loan Co. v. Boston, 137 id. 335 (1884). shoe factory are not covered by the expression "store fixtures," in a policy of insurance." ' Store orders. Legislation intended to prevent persons sui jiiris from making their own contracts for the sale of labor or merchandise is unconstitutional; as, a statute providing that no person shall issue, for the payment of labor, any order or paper than such as is redeemable in money.'* See Circulation. STORES. See Provisions; Station, 1. STORM. See Accident ; Dangers ; Tem- pest. STORY, Joseph. Was born September 18, 1779, at Marblehead, and died September 10, 1845, at Cambridge, Massachusetts. He was graduated from Harvard college in 1798, standing second in his class; and in 1801 he was ad- mitted to the bar at Salem. From 1805 to 1808 he was a representative in the legislature; in 1808 he was sent to the lower house of Congress from the Essex district; and in 1810, having declined a re-election to Congress, he was returned to the legislature, of which, in January, 1811, he became speaker. November 18, 1811, without solicitation, he was ap- pointed a justice of the United States Supreme Court, which position he filled, with distinction, to the day of his death, thirty -four years later. From the death of Marshall in July, 1835, to the appointment of Taney in March, 1836, he acted as chief justice. His decisions as judge of the circuit court for, the first district are contained in two volumes of reports by Gallison, five by Mason, three by Sumner (Charles), and three by his son William Wetmore Story. His decisions in the Supreme Court are found among the decisions of that Court comprised in volumes seven, eight, and nine of Cranch's reports, the twelve vol- umes of Wheaton, the sixteen of Peters, and the first three of Howard. In 1829 he became law professor at Harvard ilini- versity on a foundation specially established for him by Nathan Dane for the delivery of lectures on gen- eral law and equity. The lectures prepared in dis- charge of the duties of this position were delivered extemporaneously, and so were not preserved. But there is scarcely a branch of the law that he did not illustrate and enlarge — constitutional, admiralty, prize, patent, copyright, insurance, real estate, com- mercial law so-called, and equit.y. In 1833 he published a Commentary, in two volumes, 8vo, on the "Constitution of the United States." Four editions of this work have been issued up to 1889, the original text being preserved intact. In 1834 appeared his "Conflict of Laws," eight edi- tions of which have been issued, the third being the last edition under his supervision. In 1835 he published his "Equity Jurisprudence," a work of which there have been thirteen authorized editions, the fifth being the last revised by the author ■ Thurston v. Union Fire Ins. Co., 17 F. R. 129 (1883); 16 Gray, 359. 2Godchai-les v. Wigeman, 113 Pa. <31 (1886): Act 29 June, 1881. STOWAGE STRAY himself; and in 1833 he published his "Equity Plead- ings," of which there have been nine editions, the third, issued in 1844, by Story himself, the fourth, by Charles Sumner, containing notes left by Story. In 1839 he published his " Agency." The original text is preserved in the ninth, the last edition. His '* Bailments " seems to have been prepared next. The fourth edition of this work, now in its ninth edition, was issued in 1846, the revised matter consisting chiefly of notes to the original text left by Story. la 1841 he published his work on "Partnership." Of this there have been seven editions, the second, issued in 1847, being the last edition embodying changes made by the author, In 184S appeared his "Bills of Exchange." The original text is retained in the four editions. la 1845 came his "Promissory Notes." Of this treatise there have been seven editions, the second, issued in 1847, containing the latest notes prepared by the author. The popular treatises known as Story on " Con- tracts" and on "Sales of Personal Property " were published by his son, W. W. Story, the former in 1814, the latter in 1847. The son also published, in 1851, a life of his father, (2 vols. , 8vo), and in 1854, a collection of his " Miscellaneous Writings." The style of Joseph Stor.y is characterized less by strength than by variety and fullness, his wide learn- ing tending to make him somewhat diffuse. His ex- perience at the bar was of too short duration to demon- strate his ability as an advocate.' STOWAGE. See Lading, Bill of. STBADDIiiEi. In stock-brokers language, the double privilege of a "put and call;" securing to the holder the right to demand of the seller at an agreed price, within a given time, a certain number of shares of specified stock, or to require him to take within the time the same shares of stock. 2 STRANDING. The striking of a vessel upon a rock, bank, reef, or the like.s To constitute a " voluntary " stranding it is not necessary that there should have been a previous in- tention to injure the vessel, nor is that supposed to exist. It is sufficient that the vessel was selected to suffer the common peril instead of the whole of the associated risks, in order that the rest might be saved. A stranding is voluntary whenever the will of man in some degree contributes thereto, though existence of the particular reef or bank was not before known to the master, and though he did not intend to strand the vessel thereon; provided it sufficiently appears that in 1 See Life of Story ; 13 Alb. Law J. 90-92 (1876) ; Am eri- can Cyclopaedia; 6 Am. Law Mag. 841; 1 U. S. Jur. 90, 102. » [Harris v. Tumbridge, 83 N. Y. 95 (1880), Finch, J. s Strong V. Sun Mut. Ins. Co., 31 N. Y. 106 (1865), Denio, C. J.; 13 Ohio, 60; 4 M. & S. 505: 1 Camp. 131; Zid. 431; 4uJ. 474; 4 B. & A. 3i; 5 Q. B. D. 643; Arnould, Ins. §§ 297, 318. exposing the vessel he was aware that stranding was the chief I'isk incurred, and that it was not wholly un- expected by him. I STRANGER. A person who has no di- rect interest in the subject-matter of a suit, and who has, hence, no right to make de- fense, control the proceedings, examine and cross-examine witnesses, and appeal from the judgment. 2 ■A person not a party or privy to an act, contract, or title; as, in saying that a "stranger" must know the extent of an agent's power. Strangers are " third persons " generally — all per- sons in the world except parties and privies. For ex- ample, those who are in no way parties to a covenant, nor bound by it, are said to be strangers to the cove- nant. See Party, 8; Pbivy, 3; Negotiable; Notice; Eec- ord; Res, Inter alios. STRAW BAIL. A nominal or worthless person as a surety. A person who frequents the neighborhood of law-courts ready to be bail for any one on the payment of a fee. Formerly such persons wore straw in their shoes as a sign of their occupation.-'' " We have all h^eard of a race of men who used in former 5ays to ply about our own courts of law, and -who, from their manner of making known their occu- patiW, were recognized by the name of ' straw shoes.' An advocate or lawyer who wanted a conveoient wit- ness knew by these signs where to meet with one, and the colloquy between the parties was brief. ' Don't you remember . . ? ' said the advocate. ' To be sure I do,' was the reply. ' Then come into the court and swear it.' " < " During the process by which the English original writ of summons was gradually falling into disuse and the capias becoming in fact the first process, bail underwent a corresponding change. Originally, when the capias was a real arrest, the bail were two men of substance who bound themselves for the dfefendant's future appeai-ance and obedience. By Blackstone's time common bail had degenerated to the two legal men-of-all-work — John Doe and Richard Roe. But there was an intermediate stage when the bail were required to be men of flesh and blood — money being of no consequence. Hence it became a regular pro- fession to stand about the courts with straw in the shoes, signifying willingness to go any one's bail for a consideration. These were 'men of straw,' and the bail thus put in was ' straw bail.' " * STRAY. A stray beast is one that has left an inclosure and wanders at large with- 1 star of Hope, 9 Wall. 203, 232 (leaoi, cases, Clifford, Justice. , 2 [Robbins v. Chicago, 4 Wall. 672 (1866), Clifford, J. ; 1 Greenl. Ev. § 623. ' Imperial Diet., tit. Bail. * Quarterly Rev., Vol. xxxiii, 344 (1835). nThe Nation, No. 935, p. 467 (1884); 3 Bl. Com. 874, 387, 295. STREAM 981 STRIKE out its owner, and beyond his control.! See ESTRAY. STREAM. See Aqua, Currit, etc.; Spring; Water-course. STaEET.2 Strictly, a paved way or road, but now used for any way or road in a city or village.* In common parlance, a road or highway.^ Prima facie, a public highway.^ As used upon a map of a town Imports a public way for the free passagb of its trade and commerce.' A pubhc way,— a highway or town way, or a way which has become public by dedi- cation or prescription.' Includes the whole surface and so much of the depth as is or can be used, not unfairly, for the ordi- nary purposes of a street.' Includes the sidewalks." The word may not include a road owned by a pri- vate corporation, as, a toll-road within the boundaries of a city.*" A conveyance of laud bounded by a street gives the grantee a title to the middle of the street, if the grantor, owned thereto; and, presumptively, a lot bounded by a street extends to the middle of it." The owner of a lot abutting upon a public street owns to the center. His title is a fee burdened only by the easement in the public." Such owner has a special interest in the street dif- fering from that of the general public.'^ A street cannot be devoted to purposes inconsistent with street pm'poses without compensation being made to the abutting owners. ** A city must keep its streets in a safe condition for use. But this duty is relative, not absolute. Where a defect was created by the unauthorized act of a person not an officer of the city, the duty of the city to make repaii-s arises only after actual notice of the existence ' Sturges I'. Baymond, 27 Conn. 474 (1868). "^ L. strata (via), paved (wa3'). 3 Brace v. N. Y. Central R. Co., 27 N. Y. 271 (1883). » Sharett's Eoad, 8 Pa. 92 (1848); 4 S. & E. 106. » Hamlin v. City of Norwich, 40 Conn. 25 (1873). » City of Denver v. Clements, 6 Col. 486 (1877). ' Commonwealth v. Boston, &c. E. Co., 13S Mass. 551 (1881). 8 Coverdale u Charlton, L. K., 4 Q. B. D. 121 (1878). » Taber v. Grafmiller, 109 Ind. 209 (1886). '» Wilson V. Allegheny City, 79 Pa. 272 (1875). '> Grier ti. Sampson, 27 Pa. 190 (1856). 1= Terre Haute, &c. E. Co. u Eodel, 89 Ind. 129 (1883); Same v. Scott, 74 id. 38 (1881), cases; Columbus, &c. E. Co. V. Witherow, 82 Ala. 195 (1886), cases; 25 Am. Law Eeg. 442-44 (1886), cases. " Brakken v. Minneapolis, &c. E. Co., 29 Minn. 42-43 (1881), cases; Sciota Valley E. Co. v. Lawrence, 38 Ohio St. 45 (1882); 24 Cent. Law J. 51 (1887), cases. "Mahady v. Bushwiok E. Co., 91 N. Y. 153 (188.3); Stoiy V. Elevated R. Co., 90 id. 122 (1882). of the defect, or after such a lapse of time as would justify the imputation of negligence, if the defect or obstruction had not been discovered. What is such reasonable time is a question for a jury." See Dedication, 1; Gutter; Map; Obstruct, 1; Open, 1 (7), 2 (13); Pave; Repair, 2; Road; Sidewalk; Telegraph; Way. Street-ear.2 See Railroad; Vehicle. Street-sprinkler. See Vehicle. » STRICT. In the sense of governed by exactest rule, rigorously regular and legal in form, rigidly interpreted or enforced, is used — of the construction of language, of the performance of a covenant, of proof of marriage in trials for bigamy and criminal conversation, and of settlements of land for remote descendants. See Steictus. STRICTUS. L. Tightly drawn: exact; rigorous; strict, g. v. Strict! juris. Of exact right ; of strict law. See Surety. Strictissimi juris. Of the strictest right; subject to the most rigid construction or rigorous application of the rules of law. An expression applied to licenses and grants to one or more individuals and in derogation of common right. STRIKE. 1, V. See Account, 1; Bal- ance; Bargain; Battery; Hand, 1. Strike off. See Attorney; Jury; Roll, p. 910, c. 2. Struck off. Property at auction is " struclt oflF" or "knocked down" when the auction- eer, by the fall of his hammer or by other audible or visible announcement, signifies to the bidder that he is entitled to the property on paying the amount of his bid, according to the terms of the sale.* Strike out. See Cancel. 3, n. A combination among laborers, or those employed by others, to compel an in- crease of wages, a change in the hours of labor, a change in the manner of conducting the business of the principal, or to enforce some particular policy in the character or number of the men employed, or the like.< > Eehberg v. New York City, 91 N. Y, 142-43 (1883), cases. Andrews, C. J. ; Ironton d. Kelley, 38 Ohio St. 52 (1882); Bennett v. Fifleld, 13 E. I. 139-40 (1880), cases pi'o and con; Hanscom v. Boston, 141 Mass. 245 (1886), cases. " See street railways, generally, 15 Am. Law Eev. 330-404 (1881), cases, > Sherwood v. Eeade, 7 Hill, 439 (1844). * [Delaware, &o. E. Co. u. Bowns, 58 N. Y. 582, 573 (1874), Allen, J. STRIKE STUB A party, contracting to deliver a quantity of any commodity (as, coal) may provide that he shall not be liable for non-delivery in the event of a strike prevent- ing his obtaining the article. ^ The fidelity of the employees of a railroad com- pany is at the risk of the company. Therefore, to a suit for non-delivery of goods within time, the carrier cannot answer that the delivery was prevented by a strike, fjnl ess, perhaps, the interference come from discharged employees.*^ If a society or union bring about a strike and up- hold a striker's extraordinary demand, all who partic- ipate in the action of the association are chargeable with conspiracy.^ " If A is possessed of a stone-pit, and B, intending to discredit it and deprive him of the profits, imposes so great threats upon his workmen, and disturbs all comers, tljireateniig to maim, and tex them with suits, if tljey buy stones, so that sotne desist from working, others from buying, etc. , A shall have an action' upon the case against B, for the profit of his mine is thereby impaired-" * Freedom is the policy of this coimtry. But free- dom doeg not imply a right in one person, alone or with others, directly or indirectly, td injure another in his lawful business, and to threaten him with an- noyance or injury, for the sake of qOpipelling him to buy his peace. ^ With respect to strikes and boycotts generally, the States may be divided into (1) those in which the common law of' conspiracy alone prevails, and (2) those in "which the law is regulated by statute. Arkansas, Halifornia, Florida, Illinois, Iowa, Maine, Missouri, Nevada, New Jersey, &,nd Tennessee follow, in substance, the section (Ch. VIII, § 168, sec. 6) in the New York Code which makes it a crime "to commit any act injurious to the public health, to public mor- als, or to trade or commerce, or for the perversion or obstruction of justice, or of the due administration of, the laws." Michigan, New York, Rhode Island, Texas, and Vermont have statutes to the effect that every person, who by himself or with others shall attempt by force, threats, or intimidation to prevent any other person from pursuing any employment he may think proper, shall be deemed guilty of a misdemeanor. In Kansas and Michigan it is a crime to combine to impede, by any act or by. means of intimidation, the regular operation of any railroad company, or other incorporation, firm, or individual; or to hinder the run- ning of any locomotive engine, freight or passenger train, except by due process of law. It is a crime in Georgia and South Carolina for any one, knowing the fact, to persuade the servant of an- other to leave his employment, when such servant is under an attested contract. » [Delaware, &c. R. Co. v. Bowns, ante. 2 Blackstock v. N. Y. & Erie B. Co., 30 N. Y. 43 (1859); Cooley, Torts, 640. 3 Commonwealth u Curren, 3 Pittsb. 143 (Pa., 1869). * Bacon, Abridg. Actions on the Case, F., Bouv. ed. p. 119; Gwillim's ed. of 1797. 6 Carew r. Rutherford, 106 Mass. 15 (1870), Chapman, C. J. See alsoMapstrick v. Ramge, 9 Neb. 390 (1879). In Alabama, Missouri, and Wisconsin an overt act is necessary to constitute a conspiracy a crime, except when a felony is the object. In Indiana it is a crime to conspire to commit a felony. In Colorado and Maine it has been made a crime to conspire to indict a person, or to do any other unlaw- ful act. In Delaware any railroad employee who, to aid, in- cite, or encourage a strike, shall abandon any train before it reaches its destination, or shall refuse lo move the cars of another company, such company's employees then being on a strike, or if any person in aid of a strike shall molest or obstruct a railroad em- ployee engaged in the discharge of his duty, or de- stroy the traisk, such person shall be guilty of a mis- demeanor. Michigan, New Jersey, New York, and Pennsyl- vania allow employees to combine to leave their em- ployment, and to use peaceable means to pereuade others to leave their employers. ■ See Boycotting; Carrier; Combination, 2; Ob- struct, 2; Riot; Trades-unions. STRIPES. See Whipping. STRONG. See Hand, 3.. STRXTCK. See Strike, 1. STRUCTURE, Compare Building ; Erect, 1. Where a statute provided that for an injury caused by a structure legally placed upon a highway by a railroad company, the company, and not the person bound to keep the highway in repair, should be liable, it was held that by " structure " was meant some per- manent stationary erection, rather thaji an object like a moving car or engine.^ Another statute authorizing a mechanic's lien on any house, manufactory, other building, appurtenance, - fixture, or other structure, and on the interest of the owner in the lot on which the same stands or is re- moved to, for labor, machinery, or materials furnished by the contractor, for erecting, altering, repairing, or removing the sam6, was held not to authorize a lien upon a railroad, although, within the general significa- tion of the term, a railroad may be considered a, " structure." ^ STUB. See Coupon, Stamps. stub duplicate of tax receipts, made by a county treasurer, as required by law, are evidence of the re- ceipt of the tax, although they have never been re- turned to the county auditor, as directed by the same Jaw. ■• 1 22 Am. Law Rev. 241^2 (.April, 1888), citing stat^ utes, codes, cases. See also 21 id. 41-69 U887), cases; 3 Kan. Law J. 339 (1S8G) — Weekly Law Bui. (1886) : 10 Va. Law J. 391; IT Cent. Law J. 163-66 (1683) — Can. Law Times. As to interfei'ence with railroad property in hands of a receiver, see Re Doolittle, 33 F R. 544, 549 (1885), cases; United States v. Kane, 6 Cr. Law Mag. 530 (1885). s Lee V. Barkhampted, 46 Conn. 217 (1878). » Rutherfoord v. Cincinnati, &c. R. Co., 35 Ohio St. 563 (I8fi0). 4 State V. Ring, 29 Minn. 54 (1882). STUDENT SUBMIT STUDENT. See Abode; Graduate; School. STUFF. See Gown, 3. STULTIFY.i To aJlege or prove oneself to have been non compos mentis. In the time of Henry VI (1422-61), the reasoning that a man shall notbeallowedtodisablehimself by plead- ing his own incapacity, because he cannot know what he did under such a situation, was adopted by the judges upon the question whether the heir was barred by his ri^ht of entry by the feoffment of his insane an- cestor. And from these loose authorities the maxim that "a man shall not stultify himself" has been handed down as settled law.* The true and only rational explanation of the maxim is that it is to be understood of acts done by a lunatic in prejudice of others; as to which he shall not be permitted to excuse himself from civil responsibil- ity on pretence of lunacy. It is not to be understood of acts done to the prejudice of himself; for this can have no foundation in reason or natural justice.^ See Insanity. STUTMP. Presumably, a stump rooted in the soil, and not, at least under the cir- cumstances of the case cited, a stump cast upon a highway.* Stumpage. The price paid for a license to enter upon another's land, to cut down standing trees, and to remove the timber.^ See Timber. SUA. See Suus. SUABLE. See Suit. SUB. L. Under, below; upon. As a prefix, expresses inferiority, subordination. In composition before t, /, g, p, r, or m, the 6 changes to that letter. Sub colore juris. Under color of right. Sub conditione. Upon condition. Subjudice. Under advisement. Sub modo. In a manner; qualifiedly. Sub nomine. In name ; under the title of. Sub potestate. Under authority — an- other's power. See Potestas. Sub silentio. In silence ; without objec- tion. SUB-AGENT. See Agent ; Delegatus. SUB-CONTRACT. See Contraptor. SUBINFEUDATION. See Feud. SUBJECT." 1, adj. See Under and Subject. Compare After ; When. 2, n. (1) The thing forming the ground- work; the basis; the matter in contract or in question. Subject-matter. The cause of action, i The thing or matter spoken of, written about, or legislated upon ; the thing or object in controversy or dispute. The subject-inatter of litigation is the right which one party claims against the other, and demands the judgment of the court upon. 2 Section 3263 of the New York Code of CivU Proced- ure authorizes the allowance of extra costs in an ac- tion wherein rights of property are involved and a pecuniary value may be predicated of the subject- matter involved. Held, that "subject-matter in- volved " refers simply to property or other valuable thing, the possession, ownership or title to which is to be determined by the action, and does not include other property although it may be directly or re- motely affected by the result.^ See Mattek; Jurisdiction, 2; Title, 2, Of act. (2) One who owes obedience to the laws and is entitled to partake in the elections into public office.* See further Citizen. SUB-LET. See Lease. SUBMARINE CABLES. See Cable. SUBMIT.^ 1. To place before a court for decision or determination; as, to submit a cause without argument. Compare 3. 2. To place before a jury for their verdict. Thus, a judge may not submit a question when the state of the testimony forbids it. See Nonsuit. 3. To leave to a referee or arbitrators for a finding or an award. A " submission " is a contract between two or more parties whereby they agree to refer the subject in dis- pute to others and to be bound by their award." Parties " submit " a cause when they refer it to the court or a referee. The word is sometimes applied to evidence, though not with the same accuracy. Where in an equity case evidence is brought forward and placed at the disposal of the court, to be admitted or excluded, it is in some sense submitted, and it is cer- tainly offered.' See Abbitbation. Compare Refer, 1. iL. s««iiu«, foolish, simple, silly; irresponsible. 2 2 Bl. Com. 294. > 1 Story, Eq. § 226. See also 4 Keut, 451 ; Owing's Case, 1 Bland Ch. 376-77 (1828). « Cremer v. Portland, 36 Wis, 96 (1874). '^ Blood V. Drummond, 67 Me. 478 (1878). « L. sub-jectus, lying or being under. > Borst V. Corey, 15 N. Y. 509 (1857). 2 Jaeobson v. Miller, 41 Mich. 93 (1879), Cooley, J. 8 Conaughty v. Saratoga County Bank, 92 N. Y. 401, 404 (1883). < Eespublica v. Chapman, 1 Ball. *60 (IIBI), M'Kean, Chief Justice. 5 L. sub-mittere, to put or place under. « Witcher v. Witcher, 49 N. H. 180 (1870), Foster, J. ; 9 Wend. 661 ; 17 How. Pr. 21. ■> Miller v. Wolf, 63 Iowa, 235 (1884), Adams, J. ; Iowa Code, § 2742. SUBORDINATE 984 SUBROGATION SUBORDINATE. See Agent; Dele- gatus; Inferior; Officer; Superior; Su- preme. SUBORN.! To procure another person to commit perjury. Suborner. The active party in such a case. Subornation. The offense (jommitted. See further Perjury. SUBPCENA.2 1. A writ requiring a per- son to appear at a certain time and place, or in default to pay a penalty or undergo pun- ishment. Devised about 1382, by John Waltham, chancellor to Richard II, to make a feoffee to uses accountable in chancery to his cestui que use. The process was after- ward extended to matters wholly determinable at common law. In the time of Edward IV U46I-83), pro- cess by "bill and subpcena" had become the daily practice in chancery. 3 As soon as a common bill is filed, process of sub- poena is taken out, which is a writ commanding the defendant to appear and answer the bill, on pain of one himdred pounds. If he is served and does not ap- pear, within the time limited by the rules of the court, and plead, answer, or demur, he is in contempt.^ Compare Summons. 3. In divorce causes, an order to appear and answer the bill or libel. See Libel, 3. 3. In courts of common law, a process for bringing witnesses into court in order to ob- tain tbeir testimony — a writ of subpoena ad testificandum: a "subpoena for testify- ing,'' for causing a person to appear and testify. The writ commanded the witness, laying aside all pretenses and excuses, to appear at the trial on pain of one hundred pounds to be forfeited to the king, and, by 5 Eliz. (1564), c. 9, twenty pounds to the party ag- grieved, and, also, damages equivalent to the loss sus- tained by the want of the evidence.^ But no witness, unless his reasonable expenses are first tendered him, is bound to appear in a civil suit; nor, if he appears, is he bound to give evidence till such charges are actually paid him.^ Subpoena duces tecum. A subpoena that you bring with you. A writ issued to procure, in addition to a witness's oral testi- mony, the production of one or more writ- ings in his possession. 1 F. suborner: L. subornare: sub, under, secretly; ornnre, to furnish. 2 L. sub-pcena, under penalty. 3 3 Bl. Com. 51-52; 1 Story, Eq, § 46. * 3 Bl. Com. 443, 444-45. = [3 Bl. Com. 363; 1 Greenl. Ev. § 310. - « 3B1. Com. 369; 4 Chitty, ib. 363. It consists of a clause of. requisition, particularly designating the document, added to the ordinary sub- poena. ' A witness examined under Rev. St., § 863, may be compelled to produce books and papers in his posses- sion which would be material and competent evidence for the party calling him, upon the trial of the cause, but he cannot be compelled to produce them merely for the purpose of refreshing his memory.* The writ is used to compel the production of writ- ten testimony. It cannot issue to a witness, not a party, to produce a thing like a stove-pattern. = The witness must obey the subpoena, leaving to the court the sufficiency of the reason for not producing the document. Whether a private paper belongs to him or not, he must bring it into court, if in his pos- session. But a custodian of public records cannot be compelled to produce such records, they not being within his power.* See further Produce, 1. Subpoenas are to be personally served. The length of time depends upon the circumstances of each case; generally, twenty-four hours notice for ea'ch twenty mUes is sufficient.* The manner of service is regulated by local statutes or rules, as are likewise fees, mileage, etc. If the cause goes over to another term, the witness must be subpoenaed anew." 4. The word is also used, as seen above, in verbal senses: to subpoena, be subpoenaed, subpoenaing, etc. See DisoovEKY, 6; Inspection, 2; Pkocess, 1; Wit- IfESS. SUBBOGATION.T The substitution of a new for an old creditor ; more generally, the act of putting, by transfer, a person in the place of another, or a thing in the place of another thing. 8 The doctrine of marshaling securities or funds was derived from the Roman law, in which it was called " subrogation" or " sub- stitution." By that law when a surety paid the creditor he was entitled to a cession of the debt and subrogation to all the creditor's rights against the debtor. 9 See Marshal, 2. The doctrine that w-hen one has been com- pelled to pay a debt which ought to have > See 3 Bl. Com. 388; R. S. §§ 716, 863-71) cases, = United States v. TUden, 10 Bened. 566, 570-^1 (1879), cases. ^ 3 Be Shepard, 18 Blatch. 286 (1880); 9 East, 473; 3 Stark. Ev. p. 1782. • 1 Whart. Ev. § 377, cases. ' 1 Whart. Ev, § 378, cases. • 1 Greenl. Ev. §§ 309-19, cases. ^ ' L. surrogare, to choose in place of another, to sub- stitute. " Houston V. Branch Bank. 25 Ala. 267 (1854), Chil- ton, C. J. ; Knighton u. Cui-ry, 62 id. 408 (1878), oases, Brickell, C. J. • [1 Story, Eq. § 635; 3 Pom. Eq. § 1419. SUfeROGATION 985 SUBSCRIBE been paid by another, he is entitled to a ces- sion of all the remedies the creditor possessed against that other.' Subrogee. He who succeeds to the rights of the creditor in that case. To the creditor, both may have been equally liable, but if, as between themselves, there is a superior obli- gation resting upon one to pay the dfibt, the other, after paying it, may use the creditor's security to ob- tain reimbursement. It is not allowed to one partner as against his copartner, or to a joint debtor as against his co-debtor, because, as between them, there is no obligation to pay the debt resting upon one superior to that which rests upon the other. The doctrine does not depend upon privity, nor is it confined to strict cases of suretyship. It is a mode which equity adopts to compel the ultimate discharge of the debt by him who in good conscience ought to pay it, and to relieve him whom none but the creditor could ask to pay. To effect this, the latter is allowed to take the place of the creditor, and make use of all the creditor's secu- rities, as if they were his own.' The right is not founded on contract. It is a crea- tion of equity; is enforced for the purpose of accom- plishing the ends of substantial justice ; and is inde- pendent of any contractual relation between the parties.'* Subrogation is purely an equitable result. It arises only in favor of a party who on some sort of compul- sion discharges a demand against a common debtor. The doctrine applies in all cases where a payment has been made under a legitimate and fair effort to protect the ascertained interests of the party paying, and when intervening rights are not legally jeopar- dized or defeated. ^ The principle does not apply where one voluntarily pays the debt of another; but only where he is surety for the debt, or is compelled to pay it to protect his own interests, or where the debt is assigned to him on payment, or where he pays it under a special agree- ment that he shall be substituted to the rights of the creditor.* Subrogation in equity is confined to the relation of principal and surety and guarantor; to cases where a pereon, to protect his lien, is compelled to remove a supssriorlien; and to cases of insurance. One under no legal obligation to pay the debt is a volunteer.^ The doctrine requires (1) that the person seeking its benefit must have first paid a debt due to a third party; (2) that he must not act as a mere volunteer, but on compulsion, to save himself from loss by rea- son of a superior lien or claim on the part of the per- son to whom he pays the debt, as, in cases of sureties, prior mortgages, etc. The right is never accorded to one who is a mere volunteer in paying the debt of one person to another.' 1 MeCormick v. Irwin, 35 Pa. UT C18B0), Strong, J. Approved, Beber v. Gundy, 13 F. B. 58 (1882). 2 Memphis, &c. E. Co. v. Dow, 120 U. S. 301 (1887). 3 Mosier-s Appeal, 56 Pa. 81 (1867), Thompson, C. J. ' < Clark V. Moore, 76 Va. 262 (1382), Burks, J. •> Suppiger v. Garrels, 20 Bradw. 629 (1886), cases. •.a;tna Life Ins. Co. v. Town of Middleport, 124 U. S. The surety is entitled to all the means of payment held by the creditor against the principal debtor; and the creditor has a reciprocal right to all the securities the principal debtor may have furnished for the surety's indemnity.^ But before the principle can be applied the whole debt must be paid.'* The doctrine cannot be invoked where it would work inequitably. 3 The right of an insurer, upon paying a total loss, to recover from third persons, is only such right as the assured has.^ SUBSCBIBE.s 1. To sign one's ov.n name beneath or at the end of an instrument ; also, to write one's name as attesting witness. ^ To set one's hand to a wi-iting.' The purpose of a law requiring the subscription to a will to be at the end of the paper is to prevent fraudu- lent additions before or after execution, and a statute of wills should be so construed as to accomplish this purpose.* The subscribmg witnesses to a deed being dead, the execution is to be established by prooi of their hand- writing.* A summons issued by an attorney with his name printed at the end of the paper, is subscribed by him.'" See Attest; Hand, 3: Sign; Witness. 2. To agree in writing to furnish a sum of money, or its equivalent, for a designated purpose; as, to assist a charitable or relig- ious object, or to take stock in a corpora- tion. Applied to a contract for stock in a railroad company, has a definite technical sense, in- cluding the idea of a promise to pay the 549-51 (1888), Miller, J., approving the statement of the doctrine in Gadsden v. Brown, Speer, Eq. 41 (S. Car.. 18i:i). ' Hauser v. King, 76 Va. 733-35 (1882), cases. As to collateral securities, see Exp. Dover, 53 L. T. 131 (1685): 21 Cent. Law J. 460, 464 (1885), cases. 2 Carithers v. Stuart, 87 Ind. 433 (ISSS), cases. « Gerrish v. Bragg, 55 Vt. 337 (1883). See generally Wadsworthu Lyon, 93 N. T. 214 (1883), Gans v. Thieme, ib. 225, 232 (1883); Hampton v. Phipps, 108 U. S. 263-66 (1883), cases; Dering v. Earl of Winchelsea, 1 Cox, 318 (1787)': 1 W. & T. Ld. Cas. Eq 120-88, cases; 25 Am. Law Reg. 465-68 (1886), cases; 20 Cent. Law J. 472-73 (1888), cases; 2 Colum. Jur. 38. ■■ Phoenix Ins. Co. u Erie, &c. Transportation Co., 117 U. S. 312, 331 (1886), cases; Pearman v. Gould, 42 N. J. E. 9-10 (1886), cases. 6 L. sub-scribere, to write under or beneath. • James v. Patten, 6 N. Y. 12 (1851). ' Riley v. Riley, 36 Ala. 502 (1860): Pridgen v. Pridgen, 13 Ired. L. 260 (1852). « Younger v. Duffle, 94 N. Y. 539 (1884), Eari, J. » Stebbinsu Duncan, 108 U. S. 44 (1882), cases. 10 Barnard v. Heydrick, 49 Barb. 62 (1866); Mezchenv. More, 54 Wis. 214 (1882); Herrick v. Morrill, 37 Minn. 252 (18S7). SUBSEQUENT SUBVERT amount subscribed in the manner agreed upon.i A claim for a " subscription " to stoclc implies that the subscription is a writihg, and it must be set out as written.^ A promise to pay a subscription to a charity is a mere offer, revocable anytime before acceptance — some act whereby a legal liability is incurred or money expended on the faith of the promise. The death of a promisor revokes his oiler; but not so if thereby his co-subscribers would have to pay his subscription.^ Where an advance has been made or an expense or liability incurred by others in consequence of a sub- scription, before notice given of a withdrawal, the subscription becomes obligatory, provided the ad- vances were authorized by a reasonable dependence on the subscription. When the subscription is made on the condition that it is not to bind unless a specified sum is raised, all subscribers are equally liable, and if some subscribe only to make up the sum or to induce others, they themselves not to be called upon, no sub- scription is binding. The sum is raised when the sub- scriptions of solvent and responsible {q.v.) persons are received to the full amount. A seal to each name, or one seal with a written declaration that each sub- scriber adopts it as his own seal, will preclude a de- fense on the ground of want of consideration.* A gratuitous subscription cannot be enforced unless the promisee, in reliance on the promise, "has incurred or assumed some liability or obligation.^ An actual manual subscription on the books of a railroad company is not indispensably necessary to bind a municipality as a subscriber to the capital stock. The contract may be effected by the accept- ance of a copy of an ordinance or resolution making a subscription on behalf of the municipality.* pee Consideration, 2; Stock, 8 (2); Sdnday. SUBSEQUENT. See Condition; Con- veyance, 3: Possession; Since. SUBSIDY.' 1. Aid granted, to the king by Parliament, upon exigencies of state, to be levied of each subject upon his property ; also, a custom payable upon exports and im- ports of staple commodities. 8 ' Cberaw, &c. B. Co. v. White, 14 S. C. 63 (1880), Wil- lard, C. J. "Knapp V. Duck Creek Valley Oil Co., 53 Pa. 191 ' Grand Lodge v. Farnham, 70 Cal. 159-160 cases. < 1 Pars. Cpntr. 453-55, cases. 'Cottage Street Church v. Kendall, 121 Mass. 530 (1877), cases. Gray, C. J: 16 Am. Law Reg. 548-54 (1877), cases. See also Miller v. Ballard, 46 111. 377 (1868); Pratt V. Baptist Society, 93 id. 478 (1879), cases; Stuart V. Presbyterian Church, 84 Pa. 388(1877); Williams v. Eogan, 59 Tex. 433 (1883), cases; Eaton u Pacific Nat. Bank, 144 Mass. 280, 374 (1887), cases; 9 Va. Law J. 321- 81 (1835), cases; 26 Am. Law Reg. 1-20 (1887), cases. « Bates County v. Winters, 112 U. S. 327 (1884), cases. T L. subsidium, troops in reserve, assistance. 8 [Mozley & W. ; 1 Bl. Com. 310-12, 315. 2. Pecuniary assistance from a government toward an enterprise of benefit to the public ; as, of money to a steamship company, or of money and lands to a railroad corporation. 3. Money paid an ally in war. SUBSTANCE.i 1. The sustaining ele- ment ; the essential constituent ; the real es- sence; the important part; the material thing. Opposed, form, q. v. See also Pur- port. Substantial. Not merely nominal, but considerable or fair in amount ; as, substan- tial damages ; opposed to formal or technical, as, a substantial right.^ Substantially. Really or essentially the sanae as: as, substantially naphtha. ^ Machines may differ somewhat in their structure, and yet be " substantially the same." If they are sub- stantially alike in structure, and produce a similar effect, they are in principle the same. " Substantial " as here applied is not susceptible of specific defini- tion. . A pleading may be substantially good, though technically informal ; an instrument substan- tially described in a declaration or indictment may be given in evidence.* See Demurrer; Description, 3; Indictment; Same; Trade-mark. 3. In the sense of property, see Effects. SUBSTITUTE. 1, v. To put one thing or person in the place of another. 2, n. A person or thing made to take the place of another. 5 Whence substituted agent, executor, dep- uty, service; substitutionary evidence; and substitution in the sense of subrogation, qq.v. See Delegatus. SUB-TENANT. See Tenant. SUBTRACTION. Withholdmg or with- drawing from another what he is entitled to : as, subtraction of feudal rents and services, of tithes, of conjugal rights, of legacies, of church rates." SUBVERT. To overthrow, overturn. All allegation that a defendant subverted the water from a well, does not charge him with corrupting the water. " Subvert " has no such natural meaning when applied to a material object.' 1 L. sub-stare, to stand under. 2 People V. New York Central E. Co., 29 N. Y". 421, 430 (1804); Eahn v. Gunnison, 12 Wis. *531 (1860). " Commonwealth v. Wentworth, 118 Mass. 442 (1875). < Brooks V. Jenkins, 3 McLean, 456-57 (1844). ' See Henderson u State, 69 Ala. 91 (1877). « 3 Bl. Com. 230, 88, 102, 94, 98. ' Chesley v. King, 74 Me. 170 ( SUCCESSION 9S7 SUFFER SUCCESSION.! The mode by which a right is transmitted to another person or set of persons. 1. Transmission of the rights and obliga- tions of a deceasc-d person to his heir or heirs.2 (Civil law.) Succession tax. As succession is the devolution of title to realty, by will, deed, or the laws of descent, a "succession tax " is a tax imposed upon such devolution.' Not a tax on property, but a premium demanded tor the privilege of transmitting one's estate. In the absence of a, constitutional inhibition, the power to impose such a tax is inherent in o, legislature.* See Descent; Inherit. 2. The mode by which the members of a corporation aggregate acquire the rights which belonged to their predecessors. A method of gaining a property in chattels, whether personal or real; but, in strictness, is applicable only to a corporation aggregate: in which one set of men, by succeeding another set, acquire a property in all the goods, movables, and other chattels of the corpora- tion. In law, the corporation neverdies; predecessors and successors constitute one and the same body. Hence, in a gift to the corporation, no allusion need be made to successors. But in the case of a sole cor- poration, no chattel interest can regularly go in suc- cession. " Successor," applied to a person in his polit- ical capacity, is equivalent to "heir," in his natural .capacity.* In a grant to a corporation aggregate, the word "successors," though usually inserted, is not neces- sary.** By analogy to the rule of the common law, that a grant to a natural person, without words of inherit- ance, creates only an estate for life, the grant of a franchise, without words of perpetuity, to a corpora- tion aggregate, whose duration is limited, creates only au estate for its life.' See Pehpetual. "Heirs," used instead of "successors," will not vitiate a deed.^ 3. To the office of President of the United States, see Peesident. ' L. Stic- iaub), next, after; cedere, to go, follow. 2 See Hunt vMunt, 37 Me. 844 (1853); Blake v. McCart- ney, 4 Cliff. 103 (1869). ' See Blake v. McCartney, 4 Cliff. 103-6 (18C9;; United States V. Hunnewell, 13 F. B. 61T, 018-22 (1882), cases; 2 Bl Com. 616. < Peters v. Lynchburg, 76 Va. 929 (1882): Eyre v. Jacob, 14 Gratt. 428 (1858), Lee, J. »2 Bl. torn. 430-31, 108, 126; 1 id. 468. » Union Canal Co. v. Young, 1 Whart. *425 (1836); Overseers v. Sears, 22 Pick. 132 (1839); Congregational Society v. Stark, 34 Vt. 249 (1861). ' St. Claii- County Turnpike Co. v. Illinois, 96 U. S. 68 (1877). « Walker v. Colby Wringer Co., 14 F. E. 517 (1882). SUCH. The context should show to what antecedent this word refers.' It sometifnes means " the same." ^ A statute in Vermont provides that " such " and " said " in statutes shall be taken to refer to the same person or thing last mentioned. In a statute providing that "in actions by and against executors, administrators, or guardians, in which judgments may be rendered for or against them as such, neither party should be allowed to tes- tify against the other," " as such " refers to those per- sons In their representative capacity.' SUE. See Suit. SUFPEB. Is synonymous with permit, q. V. ; as, in a statute against "suffering " an animal to go at large. To suSfer an act to be done, by a person who can prevent it, is to permit or consent to it, to approve it, not to hinder it. It im- plies willingness. ^ Illustrative expressions are to " suffer " guests ttf use forbidden games, to "suffer" minors to drink liquor in a house, to " suffer " travel on the Lord's day.« Includes knowledge of what is to be done, and intention that what is done is what is to be done.5 The words " grant, bargain, and sell," in a convey- ance of a fee-simple, constitute a covenant against acts done or suffered by the grantor. " Suffered " here implies that the covenant is not confined to the voluntary acts of the grantor, and, therefore, includes a tax assessed during his ownership of title. AU gov- ernmental burdens rest upon the principle of con- sent.' In the sense of the Bankruptcy Act of 1867, a debtor "suffered" or " procured" his property to be seized under an execution, when, knowing himself to be in- solvent, an admitted creditor, who had brought suit against him, and who, as he knew, would, unless he applied for the benefit of the act, secure a preference over other creditors,— proceeded in the effort to get a judgment until one was actually obtained by the per- severance of the creditor and the default of the debtor.' Within the meaning of that act, "suffer" did not import a demonstrative, active course, as did " pro- " Stephenson v. Short, 92 N. Y. 439 (1883); Mott v. Aokerman, ib. 648 (1883); Steinlein v. Halstead, 62 Wis. 291 (1881); 62 id, 96; 65 id. 670; 48 Ark. 81; 41 N. J. E. 97; 12 Wheat. 477. ■' Ackley v. Fish, 65 Vt. 30 (18S3). s Jones J). Parker, 67 Tex. 81 (1886). * [Selleck v. Selleck, 19 Conn. 605-6 (1849), Church, C. J. See also Collinsville v. Scanland, 68 111. 221 (1871). » Gregory v. United States, 17 Blatoh. 331 (1879). •Shaffer v. Greer, 87 Pa. 375 (1878); Blossom v. Van Court, 34 Mo. 390 (1864). ' Buchanan v. Smith, 16 WaU. 277, 300-9 (1872). SUFFERING SUI cure." It aptly applied in the case of pressure and powerful motives brouglit to bear upon a party. Under the influence of their pressure and the opera- tion of these motives he suffered a thing to be done; that is, allowed or permitted it.' See Prefer, 2. SuflFeranee. Consent given from a fail- ure to object; negative permission; tolera- tion ; allowance. Estate at sufferance. Where one comes into possession of land by a lawful title, but keeps it afterward without any title at all. Examples are: the estate of a tenant for years whose term has expired; the estate of a mortgagor who continues in possession after foreclosure; the estate of a grantor who agrees to deliver possession by a certain day and'holds over, without authority from the grantee; the estate of a tenant during the hfe of another person, after the death of that other.'-' A tenant by sufferance is a tenant who comes in by right and holds over without right. =< STXPFERIlfG. See Deglaeation, 1. StrPPICIENT. Adequate, competent, ample in law. Opposed, insufficient: less in amount or degree than satisfies the re- quirements of the law. I Used of allegations of claim and of defense in pro- ceedings in courts of common law, equity, and admi- ralty, and of charges in indictments, in courts of criminal law, which meet or fulfill the requirements of the law with respect to certainty, notice, and the other elements of & prima facie case. Strictly speaking, evidence is " insufScient " in law only when there is a total absence of such proof, in quantity or kind, as, in the particular case, a rule of law requires as essential to the establishment of the fact. Insufficiency in point of fact may exist where there is no insufficiency in point of law; that is, t'here may be some evidence to sustain every element of the case, competent, both in quality and quantity, in law to sustain it, and yet it may be met by countei'vailing proof so potent as to leave no reasonable doubt of the opposing conclusion.* " Sufficient sureties." to an appeal bond, imports two or more persons as sureties.^ See Amswbr, 3; Deed, 3; Defense, 2; Demurrer; Evidence; Indictment. SUFPRAaE.6 Choice, voice, vote; the elective franchise. The right of suffrage is the right to vote at elections of officers of government and 1 Campbell v. Traders' Nat. Bank, 2 Biss. 431 (1871). > 2 Bl. Com. 160. a Cook V. Norton, 48 111. 26 (1868); Anderson v. Brew- ster, 44 Ohio St. 580 (1886); 42 Ga. 574; 18 Barb. 483; 69 Tex. 637; Wood, Landl. & T. 15; 1 Washb. B. P. 524. < Metropolitan R. Co. v. Moore, 121 U. S. 569, 567-68 (ISS/;, cases, Matthews, J. » State V. Fitch, 30 Minn. 633 (1883): 13 id. 420. " L. suffragium, a. voting-tablet, a, ballot; the right to cast a vote. I upon fundamental questions of governmental policy or action. " The right of citizens of the United States to vote shall not be denied or abridged by the United States or by anj^ State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legisla- tion." ' The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the Fourteenth Amendment; and that Amendment does not add to those privileges and im- munities: it simply furnishes an additional guaranty for the protection of such as the citizen already had. Suffrage has never been co-extensive with citizenship in the States. The Constitution did not make all citi- zens voters. A State may confine the right of voting to male citizens of the United States. ^ The Amendment vests citizens of the United States with the right of exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of sei'vitude.^ The right of suffrage is not a necessary attribute of national citizenship. That there shall be exemption from discrimination in exercising the right, for the causes named, is an attribute. The right to vote in the States comes from the States; the right to exemp- tion from prohibited discrimination pomes from the United States.* See Citizen. SUGGESTIO. See Suppeessio. SXJGGESTIOK". 1. Indirect introduc- tion ; informal statement or representation ; indefinite communication ; intimation. Op- posed, suppression. See Suppeessio. Suggestive. Leading, indicating the an- swer desired ; as, a suggestive interrogatory. See Question, 1, Leading. 3. A more or less formal representation; the communication to a court of a fact essen- tial to the adjustment of the rights of parties to a cause, but not as yet of record nor pleadable. In this sense is " suggestion " of and to " suggest " the death of a party, that his representative may be substituted; to "suggest" diminution of record; to " suggest " freehold as security for costs, or in stay of execution. Compare Surmise. SUI. L. Of one's self — himself , her- self, itself, themselves. Other forms are, se, sese, one's self : suus, one's own. Se defendendo. In defending one's self. See Defense, 1. Cf. Felo de se; In se; Inter se; Per sk; Pro se. ' Constitution, Amd. Art. XIV, Ratified July 28, 18C8. 2 Minor v. Happersett, 21 Wall. 162 (1874), Waite, C. J. See also Van Valkenburg v. Brown, 43 Cal. 43 (1872). ' United States v. Reese, 92 U. S. 214 (1875). * United States v. Cruikshank, 92 U. S. 655-56 (1875). SUICIDE 989 SUIT Sua sponte. Of one's own free will ; of 'one's own motion, q. v.; spontaneously. A court may ffuct sponte instruct a jury;^ or sua sponte dismiss a bill where there is adequate remedy at law, or for other cause not first suggested by ooun- sel.» Sixi generis. Of its own kind. Sui juris. Of one's own right. See Jus, Sui. Suo jure. In one's own right. Suum cuique tribuere. To render to each one his ov.n ; give every man his due. The fundamental maxim of distributive justice.' See Law. STJICIDE.* Self-killing, self-destruction ; also, self-murder. The death of a person by his own volun- tary act. " Dying by his own hand " trans- lates this Anglicized Latin word. Life insur- ance companies indiscriminately use either expression, as conveying the same idea. ' Voluntary death caused by an act done by a person sound in mind, and capable of mea-suring his moral responsibility.^ Death by accident or raistalte, as, from drinking a mixture not Itnown to be poison, is, literally, self- killing, but not suicide ; nor is death self -caused by an insane person. Death which is the result of insanity Is.death by disease.' Does not necessarily imply criminal self-destruc- tion. Thus, a condition in an insurance policy pro- viding for forfeiture in case of suicide will not be construed to apply to an act of self-destruction not involving evil will. Death by one's hand, in the case of a person non compos, is the result of disease. To provide for death by disease is the very object of life insurance.^ A self-killing by an insane person, understanding the physical nature and consequences of the act, but not the moral aspect, is not a death by suicide within the meaning 9f a condition that a policy of insurance upon his life shall be void in case he shall die by suicide." 1 96 U. S. 265. a 2 Black, 550; 7 Wall. 618; 2.3 id. 466. » Hurtado v. California, 110 U. S. S31 (1834). « L. sui-cidium, a Wiling of one's self: coedere, to kill, s [Bigelow V. Berkshire Life Ins. Co., 93 U. S. 286 (18T6). « See Connecticut Mut. Life Ins. Co. v. Groom, 86 Pa. 97 (1878), cases. ' Eastabrook v. Union Mut. Life Ins. Co., 54 Me. 227 (1866), cases, Appleton, C. J. See particularly Clif t v. Sohwabe, 54 E. C. L. *457-31 (1846;. « Hancock Mut. Life Ins. Co. v. Moore, 31 Mich. 43 (1876). « Manhattan Life Ins. Co. v. Broughton, 109 U. S. 121, 127-^2 (1883), cases. Gray, J.; Accident Ins. Co. of North America v. Crandel, 120 id. £30 (1887), cases; 21 A policy provided that the insurer should pay the beneficiary within a certain time after proof made that the insured sustained bodily injuries, effected through external, violent and accidental means, which alone caused death within a limited period, -no claim to be presented in case of suicide, felonious or other- wise, sane or insane. Held, that the burden of proof was on the claimant (subject to the limitation that it is not to be presumed as law that the deceased took his own life or was murdered) to show that the death was caused by external violence and accidental means; and that no claim could be made If the de- ceased himself intentionally or when insane inflicted the injuries.* At common law, self-murder is ranked among the highest of crimes. But there was no felony committed where the person lacked years of discretion or was out of his senses. The punishment was forfeiture of goods to the state, and ignominious hurial.' In New York, an attempt to commit suicide is a felony,' but actual self-destruction is not.* An attempt to commit suicide may be considered in connection with previous conduct, as evidence tending to proife insanity. • See Adminibtek, 1; Die, By his own hand; Insan- ity, 2. STJINE. See Olbomaegamne. SUIT .6 1. Followers: witnesses for the plaintiff. The actual production of the " suit," the followers, has been disused since the time of Edward III (1327-77), though the form is continued. This explains the meaning of the phrase, still found in declarations at common law, "and therefore he brings suit:" inde produdt sectam.'' Those words were affixed at a time when a suitor's witnesses were his followers, as prompt to maintain his quarrel in the forum as in the field. Now, as then, a party usually selects his witnesses from among his friends, who insensibly catch the spirit of their side.s See Lis, Mota. Sue out. To seek after ; to apply for and obtain : as, to sue out a writ or a pardon. 9 3. Following another; pursuit; also, at- Cent. Law J. 378-^ (1886), cases; 25 Am. Law Reg. 386- 90 (1886), cases. 1 Travelers' Ins. Co. v. McConkey, 127 U. S. 661 (1888). 2 4 Bl. Com. 189-90. s Penal Code, §§ 173, 174, 178. < Darrow v. Family Fund Society, 42 Hun, 247 (1886). » Wolff V. Connecticut Mut. Life Ins. Co., 2 Flip. 858 (1879) cases; Coyle v. Commonwealth. 100 Pa. 679 « L. secta: sequi, to follow. Whence sue, pursue, prosecute. Ad sectam, abridged to ads, at suit of, is stUl in use, Bowen v. Wilcox, &c. S. M. Co., 86 111. 12 (1877); 31 N. J. L. 313, 316; and see Versus. '3 Bl. Com. 296; 2 id. 84; 8Wheat. 662; 1 Steph. Hist. Cr L. Eng. 07; 63Ga. 638. B Commonwealth v. JoliCEe, 7 Watts, 585 (1838), Gib- son, C.J. ; 71 Pa. 174. 9 2 Bl. Com. 68. SUIT 990 SUIT tendance upon another : as, to do suit, suit at a feudal lord's court, fresh suit. Fresh suit. (1) When a lord distrained animals for rent and the owner rescued or drove them upon ground not belonging to the distrainer, and the latter followed and reseized them. (3) When a person who had been robbed at once followed and apprehended, or after- ward helped to convict, the thief. As punishment for making no effort to capture tlie tliief, the Iting confiscated any goods thrown away .by liim in his flight. ^ 3. Any proceeding in a court of justice by which an Individual pursues that remedy which the law allows him. Whatever the mode, if a right is litigated the proceeding by which the decision of the court is sought is a " suit."- The prosecution, or pursuit, of some claim, demand, or request. In law language, the prosecution of some demand in a court of justice.' To "commence " a suit is to demand something by the institution of process in such court; and to " pros- ecute " a suit is to continue that demand." In any legal sense, action, suit, and cause are convertible terms.' Any proceeding in a court in which a plaintitt' pursues his remedy to recover a right or claim. 5 Any proceeding in a court for the purpose of obtaining such remedy as the law allows a party under the oircumstances." "Suit at law" is synonymous with "action at law." ' Usually "suit" and "action" are synonymous terms, although "suit" is of more general meaning, and is indefinitely applied to proceedings in law as well as in equity, while "action "is applied to proceed- ings at law.® ' 1 Bl. Com. 396-97. = [Weston V. Council of Charleston, 2 Pet. 464 (1829), Marshall, C. J.; Holmes v. Jennison, 14 id. B66 (1840), Taney, C. J. ; Kohl v. United States, 91 U. S. 375 (1875), Strong, J. s Cohens v. Virginia, 6 Wheat. 408-11 (1821), Mar- shall, C. J. < Exp. MUligan, 4 Wall. 112 (1866), Davis, J. See also 4 Conn. 322; 58 N. H. 126; 1 Flip. 605. ^ Sewmg Machine Cases, 18 Wall. 585 (1S73), Clifford, J. ; New Orleans, &c. R. Co. v. Mississippi, 102 U. S. 143^4 (1880). • Harris v. Phcenix Ins. Co., 35 Conn. 312 (1863), Hin- man, C. J. ' White V. School District, 45 Conn. 61 (1877). sMcPike v. McPike, 10 Bradw. 333 (lU., 1882); Ulsha- f er V. Stewart, 71 Pa. 174 (1872). In its most extended sense, a suit includes a crim- inal prosecution. " An indictment is an accusation at the suit of the king." i May apply to a controversy which has not yet taken the form of a pending suif The instruments whereby a remedy is obtained for a wrong done are a divei^ity of " suits " or " ac- tions," which are defined to be the lawful demand of one's right, or, in the words of Justinian, jus prose- quendi in judicio quod alicui debetur, the right of seeking in court whatever is due to anyone." Sue. To institute or continue an action or proceeding for the recovery of a right. To seek for in law; to make legal claim; to prose- cute.^ Suitor. A party to a suit in court; a party litigant. See Action, 3; Cause, 1 (3); Controversy; Inter- plead; Intervene; Lawsuit; Multiplicity; Party, 2; Pbosecute; Record, 2; Vex. Compare Lis. No suit or action can be brought against the Idhg, even in civil matters, because no court can have juris- diction over him ■— in his political capacity. Jurisdic- tion implies supremacy of power."* The principle is elementary tliat a state cannot be sued in its own courts without its consent. This is a privilege of sovereignty.^ " The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." ' The Constitution, as originally adopted, provided that the judicial power of the United States should ex- tend to controversies " between a State and Citizens of another State," or "between a State, or the Citizens thereof, and foreign States, Citizens or Subjects," and that in all cases " in which a, State shall be a Party, the supreme Court shall have original Jurisdiction. " » The Supreme Court, in the case of Chisholm v. Geor- gia,^ decided in 1793, held that under these provisions a State could be sued in that Court by a citizen of an- other State. This decision led Congress in 1794 to pass a joint resolution, proposing an amendment to the Constitution, which, being ratified, became the Elev- enth Amendment.'" Ever,y government has an inherent right to protect > United States v. Moore, 11 F. B. 251 (1882); Com* monwealth v. Moore, 144 Mass. 137 (1886); 3 Bacon, Abr. 542, 544. " Larkin v. Saffarans, 15 F. R. 151 (1883). > 3 Bl. Com. 116; 4 Conn. 322. « [United States v. Moore, 11 F. E. 251 (1882); Web- ster's Diet. » 1 Bl. Com. 243. • Memphis, &c. E. Co. i). Tennessee, 101 U. S. 389 (1879). ' Constitution, Amd. XI. Ratified Jan. 8, 1798. 8 Constitution, Art. Ill, sec. 2. «8 Dallas, 419. '» See New Hampshire v. Louisiana, and New Yorkii. Louisiana, 108 U. S. 86 (1883). SUITABLE 901 SUMMARY itself against suits. It tliey are permitted, it is only,. upon the ^ conditions prescribed by statute. But for the protection which the principle affords a govern- ment would be unable to perform its duties. It might be impossible to collect the revenue for its support, without infinite embarrassments and delays, if subject to civil processes the same as a private person.' A State may withdraw the right while an action pends to secure an adjudication, that being merely an auditing of the claim, not a remedy for enforcing a contract.^ When the power to sue the United States is given in an act of Congress, " State " means a member of the Union, and not the District of Columbia or a Terri- tory. ^ But the ofScers whose acts are illegal and void may be sued.* A cause cannot be maintained against a State, though brought in its name, it the absolute right to the subject in controversy is in an individual (as, the real owner of a bond sued on), the plaintiff State being a mere collecting agent.* Eeference must be had to the real party in interest, not merely to the parties to the record; An action brought to restrain the attorney-general ot a State (Virginia) and the treasurers of the various counties from enforcing certain statutes alleged to impair con- tract obligations ot the State, with respect to coupon bonds issued by her, was held not to be maintainable, although the laws in question might violate such obli- gations.' See Court, Of claims; Eight, 8, Petition ot. SUITABLE. 1. Proper, competent, fit in a legal vievr : as, a suitable person for ad- ministering an estate.' Unsuitable. May imply no want of ca- pacity, but unfitness arising out of the rela- tion of the person to the estate, either from being indebted to it or having claims upon it, 1 Nichols V. United States, 7 Wall. 18S (18GS). » Memphis, &0. R. Co. v. Tennessee, 101 U. S. 339-40 (1879); South & North Alabama B. Co. v. Alabama, ib. 831 (1879). s Scott u Jones, 5 How. 377 (1817), cases. < Newton v. Commissioners, 100 U. S. 580 (1879), cases; Davis V. Gray, 16 Wall. 220 (1878), cases; United States V. Lee, 106 U. S. 198 (1883;. 'New Hampshire v. Louisiana, and New York v. Louisiana, 108 U. S. 77, 91 (18S3), cases, Waite, C. J. 'Exp. Ayers, Scott, and MeCabe, 123 U. S. 443, 483 (1887), Matthews, J., reviewing previous cases; Harlan, J., dissenting. See generaUy United States v. Lee, 103 U. S. 205-22 (1882), cases- Clark v. Barnard, 108 id. 417 (18S3); Vir- ginia Coupon Cases, 114 id. 287-88 (183,j), cases ; Hagood V. Southern, 117 id. 69 (1886), cases; Baltimore, &c. E. Ck). V. Allen, 17 F. E. 171 (1883); ib. 189-97, oases. On compelling a State to pay its debts, see 18 Am. Law Rev. 625 (1878); 15 id. 519 (IBSl); 7 South. Law Eev. 511^8 (1881). 'Peters v. Public Administrator, 1 Bradt. 207 (18S0). or from his interest under a will, Or frpm his situation as heir at law.' 2. A " suitable " bridge or railroad viaduct may mean such structure'as, in the opinion of the proper officer or board, is required for the safety and convenience of the public and the interests of a particular corporation or corporations.^ Under a statute authorizing a town to take land for a public cemetery without the owner's consent, " when land cannot be obtained in any suitable place at a rea- sonable price by contract, " the most suitable land may be taken. What is a suitable place is a question of fact to be determined on a consideration of all the circumstances. The term is a relative one. The leg- islature meant the most suitable place, or a place as suitable as any other, or a place as suitable as the town can afford to pay for.' SUM. Amount.or aggregate: as, the face sum, the penal sum. The word of itself imports a sum of money.* See Dispute; Exceeding; Penalty. SUM UP. To bring together under one view. To address a referee, a board of arbitrators, a master, but more often a jury, at the close of a case, reviewing the evidence and apply- ing the law thereto. Whence summing up, which is applied to the final arguments of counsel, to that part of the judge's charge which reviews the testimony, and to that stage in a case in which these respective du- ties are performed. See Charge, '2 (^, c). SUldVIABY. Without delay for, a trial by a jury ; immediate ; speedy ; peremptory : as, a summary — conviction, or proceeding, summary relief. By the common law ot England and the laws ot many of the Colonies before the Eevolution, and of the States before the formation ot the Constitution, a summary proceeding existed tor the recovery ot debts due to the government, especially of debts due from the receivers of the revenues.' The mode ot assessing taxes by all governments is necessarily summary, that it may be speedy and ef- fectual. But by " summary " is not meant arbitrary, unequal, or illegal. The mode must be lawful, which does not necessarily mean by a judicial proceeding." The term is also applied to statutory proceeding for ' [Thayer v. Homer, 11 Mete. 110 (18451, Hubbard, J. 2 Worcester v. Eailroad Commissioners, 113 Mass. 171 (1873). ! Crowell V. Londonderry, 63 N. H. 48 (18S4). < United States v. Van Auken, 96 U. S. 388 (1877); Tax on Notes, 16 Op. Att.-Gen 344 (1879). 3 Murray's Lessee v. Hoboken Land, &c. Co., 18 How. 280 (1855). » McMillen v. Anderson, 95 U. S. 41 (1877). SUMMING UP 99S SUNDAY the prompt dispossession of a tenant who holds over after default in paying rent, or after his term has ex- pired; to hearings and determinations of charges of the lighter misdemeanors, by committing magistrates without the mtervention of a jury; and to punishments for contempts committed in open court. * See Co^"TEMPT; Conviction, Summary; Jury, Trial by ; PaizE, 3 ; Process, 1, Due. SUMMING UP. See Sum Up. SUMMOW.2 To officially notify a party that he has been sued,'SO that he may appear in court and answer the complaint. Suminoiis. A warning to appear in court at the return-day of the original writ.^ Under codes of civil procedure, not a writ or process of the court, but simply^ a notice to the defendant that an action has been commenced against him, and that he is re- quired to answer the complaint, which is either attached thereto or is or will be filed in the proper clerk's office.* Bouvier, Brown, Wharton, Stormonth, Webster, and Worcester give " summon " as the spelling of the verb and " summons " as the spelling of the noun. Abbott, under the title "Summons," uses that spelling for both the verb and the noun, while elsewhere he em- ploys "summon," "summoned," and " summoning" as the verb and its inflections. Summon, referring to notification to a party, has been used for " subpoena," which, strictly, refers to a judicial command to a witness to appear and testify.* From the time of the service of a summons the court acquires jurisdiction. ^ See Citation, 2; Monition; Process, 1; Service, 6; SuBPtENA. SUMPTUARY-^ "Under the head of public economy may be ranked all sumptuary laws against luxury, extravagant expense in dress, diet, and the like."** These laws were originally passed in England in the view that luxury, in some degrees, was opposed to public policy. Notable statutes were passed in 1336, 1363, 1463, and 1482; but all statutes were repealed in 1603, by 1 James I, c. 85." 1 See Barter v. Commonwealth, 3 P. & W 259 (1831); Philadelphia, V. Duncan, 4 Phila. 145 (1860); United States V. Smith, 17 F. R. 510 (1883). 2F. somoner, semoner: L. summonere, to remind privily. 3 3 Bl. Com. 279. 4 Mezchem v. Moore, 54 Wis. 215-16 (1882), cases, Tay- lor,, J.; Hanna v. Russell, 12 Minn. 86 (1866); Gilmer v. Bird, 15 Fla. 410, 421 (1875). 9 See 1 Greenl. Ev. § 336. e Woodward v. Baker, 10 Oreg. 493-94 (1883), cases. ' L. s^imptuarius: sumpUis^ expense: sumere, to take to use or consume. 8 4 Bl. Com. 170. 8 See 2 Knight, Hist. Eng. 272-74; 2 Kent, »330 (6). The habits, occupation, food, and drink.— the life of the individual, are severally matters for his own determination. They can be abridged by the majority of the people speaking through the legislature only when the public safety, the public health, or the public protection demands it. The constitutional guaranty of '* life, liberty, and the pursuit of happiness " can be limited only by the absolute necessities of the general public* See further Police, 2 ; Prohibition, 2. SUNDAY. The Sabbath, €he Lord's D^y, and Sunday all mean the same thing : the first day of the week. Sabbath laws do not rest upon the ground that it is immoral or irreligious to labor upon the Sabbath day. They simply prescribe a day of rest^ from motives of public policj' and as a civil regulation. The day pre- scribed is the Christian Sabbath : yet, so entirely is the law based upon the ground of public policy that the statutes would be equally constitutional and obliga- tory did they name any other day. ^ The provision in the Massachusetts law which pro- hibits traveling, like the law which forbids the doing of any business, labor or work, excepts what is done from " necessity or charity." The exception covers everything morally fit and propei: to be done upon that day under the circumstances of' each case. " Charity " Includes everything that proceeds from a sense of moral duty or from a feeling of kindness and humanity, and is intended wholly for the relief or comfort of another, and not for one's own benefit or pleasure, — acts to prevent or relieve suffering in men or animals.' The duty of observing the day set apart is imposed upon all as members of the body politic without ref- erence to the religious faith and worship of any. The day, as a day of rest, is a legal holiday rather than a holy day. Jews and Seventh-Day Baptists are- not then compelled, against^ conscience, to keep it as a day of worship.* Laws setting aside Sunday as a day. of rest are up- held not from any right of the government to legislate for the promotion of religious observances, but from its right to protect all persons from the physical and moral debasement which comes from uninterrupted labor. Such laws have always been deemed benefi- cent and merciful laws, especially to the poor and de- pendent, to the laborers in our factories and work- shops and in the heated rooms of our cities; and their validity has been sustained by the highest courts of the States.^ 1 Intoxicating Liquor Cases, 25 Kan. 761 (1881), Brewer, J. a McGatriek v. Wason, 4 Ohio St. 571 (1855), Thurman, C. J. ; Bloom v. Richards, 2 id. 3S7-406 (1853), cases. 3 Doyle V. Lynn, &c. R. Co., 118 Mass. 197 (1875), cases, Gray, C. J. * Exp. Burke, 59 Cal. 6, 13-20 (1881), cases, Morrison, C. J.; Exp. Koser,60id. 188(1882); Commonwealth v Starr, 144 Mass. 361 (1887). 6 Soon Hing v. Crowley, 113 U. S. 710 (1885), Field, J. See also, generally. Shover v. State, 10 Ark. 263 (1850), Johnson, C. J.; Commonwealth v. Nesbit, 34 Pa. SUNDAY E9;i SUPERSEDE '• Besides the notorious indecency and scandal of permitting any secular business to be publicly trans- acted on that day in a country professing Christianity, and the corruption of morals which usually follows its profanation, the keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to the state, considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes, which would otherwise degener- ate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness; it imprints on the minds of the people that sense of their duty to God so necessary to make them good citizens, but which yet vrould be worn out and defaced by an unremitted continuance of labour, without any stated times of recalling them to the wor- ship of their Maker." i At common law, a contract made on Sunday was valid. Legal invalidation must therefore arise from some statute in force at the place where the contract is made.^ A contract made on Sunday is not void unless com- pleted on that day. Therefore, merely signing the paper containing the terms does not vitiate the con- tract. Until the paper is delivered, the parties have a locus penitentwB.^ Making a will is not such secular employment as is forbidden.* Subscriptions made on that day (or the support of public worship are binding. What work is "of neces- sity or charit.y " is a question of law and statutory con- struction. Mere inconvenience of time and opportu- nity cannot be a test.** The publication of notice of a sheriff's sale in a Sun- day newspaper is -void. ^ 405 (1859); Lindenmuller v. People, 33 Barb. 668-75 ; Evansville v. Morris, 87 Ind. 274 (1882), cases; Beitenman's Appeal, 55 Pa. 185 (1867), cases; Swann v. Swann, 21 F. E. 299, 808 (1884), cases. Contra, Eichmond v. Moore, 107 111. 429 (1883); More v. Clymer, 12 Mo. Ap. 11 (1888); 24 Am. Law Eeg. 339-97 <1885), cases. * Beitenman's Appeal, 55 Pa. 184 (1867). ' Allen V. Duffle, 43 Mich. 1, 7 (1880), cases, Cooley, J. ; Dale v: Knepp, 98 Pa. 389, 393 (1881). Contra, Catlett V. Meth. Epis. Church, 62 Ind. 365 (1878). »'Shaw V. Williams, 87 Ind. 158 (1882). (63) Crying newspapers was held disorderly conduct; " and selling newspapers is "business." " Eunning passenger trains is a work of necessity.' Shaving customers is not a work of necessity or charity.* Writs in civil actions cannot be served.' Lading, unlading, and sailmg vessels are works of necessity." A person may be driven to a church in his private conveyance.' In Pennsylvania ice cream may not be sold on that day;' nor cigars.' See further Charity; Chsistianity; Holiday; La- bob, 1; Necessity, Works of; Religion. SUNDEY. See Divers. SUO. See Sui. SUPEE. L. Above, over; upon.. Com- pare Supra ; Sur. Super altum mare. Upon the high sea. Super visum corporis. Upon view of the body. See Coroner. SUPERIOB.io 1, adj. Higher in rank than another person or thing; opposed to inferior, q. v. A statute which treats of persons or things of an inferior rank cannot by general words be extended to those of a superior rank.ii See General, 6. Higher in authority than another, yet not the high- est: as, a court intermediate between an inferior court or courts and a higher court or courts or the court of last resort, and the jurisdiction of which may extend over a city, a county, several counties as one district, or over a State. See further Court. 2, n. One who controls the actions of another; a principal, as distinguished from his agent. See Respondere, Respondeat. SUPERSEDE. 1. To suspend, stay, supplant. Said of a proceeding which arrests ' Commonwealth v. Teamann, 1 Phila. 177 (1853). " Commonwealth v. Osgood, 144 Mass. 362 (1887). " Commonwealth v. Louisville, &o. E. Co. 80 Ky. 291 (1883). Contra, Sparhawk v. Union Passenger E. Co., 54 Pa. 401 (18D7): Act of 1794. 'Phillips V. Innes, 4 Clark & T. 234 (H. L., 1637); Commonwealth v. Dextra, 143 Mass. 28 (1886). 1 Kinney v. Emeiy, 37 N. J. E. 341 (1883), cases in note; 9Pac. E. 798, cases. • Philadelphia, &e. E. Co. v. Steam Towboat Co., 23 How. 219 (1859). ' Commonwealth v. Nesbit, 34 Pa. 398 (1859). As to injuries received when violating the law, see 21 Cent. Law J. 525-29 (1886), cases. e Commonwealth v. Burry, 5 Pa. Co. Ct. E. 481 (1888). Contra, Commonwealth v. Bosch, 15 W. N. C. 316 (Pa., 1884). » Baker v. Commonwealth, 5 Pa. Co. Ct. E. 10 (1888). See generally other decisions, 3 Alb. Law J. 61-64 (1870), cases; 8 id. 161-62 (1873), cases. '" L. superior, higher. I'l Bl. Com. 88. SUPERSEDEAS 994 SUPPORT the operation of another proceeding. See Stat; Supersedeas. 2. To be superseded, in military law, is to have one person put in the place which, by the ordinary course of military promotion, belongs to another, l SUPERSEDEAS. L. That you stay or suspend. The emphatic word of a writ (anciently in Latin) commanding a stay of proceedings in a designated case. It is now oftenest applied to a proceeding which oper- ates as a writ of supersedeas; as, a perfected appeal, writ of error, or writ of certiorari. Merely an auxiliary process designated to supersede the enforcement of the judgment of the court below brought up by writ of error for review.^ in the code of Kentucky, defined to be "a written order signed by tlie clerir, commanding the appellee and all others to stay proceedings on the judgment or order." It is a remedy for the unsuccessful litigant who. complains of errors committed to his prejudice by the court below. It stops all proceedings on the judgment until the appeal is disposed of.s An appeal allowed and security taken operate as a supersedeas. In the absence of fraud, the power of the lower court is exhausted ; all control is transferred to the higher court.* It is a statutory remedy, obtained only by strict compliance with all required conditions.* No execution shall issue upon a judgment, where a writ of error may be a supersedeas, imtil the expira- tion of ten days after the judgment.* See Appeal, 8; Cektiobari; Error, 2 (3), Writ of. SUPERSTITIOUS. See Use, 3. SUPERVISOR. An overseer; a sur- veyor. An officer whose duty it is to take care of public roads. One of a board of persons intrusted with the fiscal affairs of a county. Of elections: a person commissioned by a judge of the United States circuit court in a city of over twenty thousand inhabitants, or in any Congressional district, to 'attend at the registration of voters for Congress- men, and so supervise the registry as to insure the de- tection of improper removals or additions of names.^ 1 Exp. Hall, 1 Pick. *263 (1838). 2 Williams v. Brufty, 102 U. S. 249 (1880), Field, J. ' Smith V. Western Union Tel. Co., 83 Ky. 271 (188B). * Draper v. Davis, 102 U. S.371 (1880), cases; Hoveyu McDonald, 109 id. 169 (1883). s Sage V. Central E. Co., 93 U. S. 417 (1876), cases; 109 id. 160; 9 Bened. 209. » E. S. § 1007; 109 U. S. 159-61. ' See fully E. S. §§ 2011-81 ; Exp. Siebold, 100 U. S. 371 (1879); Exp. Clarke, ib. 399 (1879); Ee Appointment of Supervisors, 9 F. E. 14 (1881). SUPPLEMENTAL. Added to a thing to complete it ; supplying a defect in some- thing that precedes : as, a supplemental affi- davit, bill, answer, complaint, petition, — each of which adds to or supplies matter either not previously known or omitted as non-essential, without taking the place of the original paper or proceeding. See An- swer, 3 ; Bill, IV ; Defense, 2, Affidavit 9f . "Supplementary" and "suppletory" are also used, as, of an oath to books of original evidence, and of comparison of handwriting, at common law. See Oath, Suppletory. As to supplemental legislation, see Title, 2, Of act. SUPPLICAVIT. L. He has besought. A writ in chancery in the nature of a process at common law to find sureties of the peace, upon articles filed for that purpose. Very rarely used, as the common-law. remedy is generally adequate; sometimes resorted to by a wife against her husband.* SUPPORT. 1. Sustenance; mainte- nance, q. V. Gr. sent D. a letter saying " Please let S. and family have whatever they may want for their support, and I will pay you." Held, that D. could not recover for services and medicines furnished by a physician; that "support " is generally used to mean articles for sus- tenance, and that G. did not intend the word^to mean necessaries.'' See Necessaries, 1 ; Means; Want. 2. The right in an owner to rely upon the support afforded his land by the ground ad- joining, in its natural state. Spoken of as "lateral," when the support is thought of as contiguous or adjacent, rather than as sub- jacent. The right to support for land in its natural condi- tion is ex jure katuroe, not dependent on grant and not acquirable by prescription. The right to support for artificial burdens is an easement acquirable only by grant, expi'ess or implied. The right may be im- plied from circumstances, as, where houses, needing the supportof each other, are built by the same owner^ and one is conveyed without stipulation to the con- trary. But such implied right is confined to the status quo at the time of grant, and extends not to increase the burdens upon the soil.^ ' Subject to any express grant, reservation, covenant, or inconsistent right gained by prescription, it is welt established that when the surface of land belongs to one person and the subjacent earth and minerals to- another, the latter is burdened with a natural servi- tude to support the former, and also that the owner of land is entitled to the performance of a similar servi- tude of lateral support by adjacent land; but these easements only extend to the land in its natxu'al and ■ 2 Story, Eq. §§ 1476-77; 4 Bl. Com. 253. = Grant v. Dabney, 19 Kan. 389 (1877), Horton, 0. J. » Tunstall u Christian, 80 Va. 3-9 (1885), cases. SUPPOSE 995 SURETY unincumbered state, and not with the additional ■weight of buildings upon it. To maintain an action for a nuisance affecting ^uch an easement, some ap- preciable damage must be shown. ^ Every land-owner has a right to have his land pre- served unbroken. An ad.lacent owner excavating on his land is subject to the I'estriction that he must not remove the earth so near his neighbor's land that his soil "will crmnble under its own weight and fall. But this right to lateral support extends only to soil in its natural condition. It does not protect whatever is placed upon the soil increasing the downward and lateral pressure. If it did, it would be in the power of a lot-owner, by erecting heavy buildings, to greatly abridge the right of his neighbor to use his lot." See Easement; Utere, Sic, etc. Supports. Of a bridge: the abutments, piers, and trestles on which the string-pieces rest from beneath. The cross-pieces, imder the string-pieces, and to which they are bolted, are not supports.' SUPPOSE. "To suppose" and "to be- lieve" mean substantially the same — to think, to receive as true. As, when a plaintiff compromises what he honestly " supposes " is a good cause of action.* SUPPRESS. To prevent; never, there- fore, to license or sanction. ^ See Suppressio ; Prohibition, 2. SUPPRESSIO. L. Concealing, misrep- resenting; literally, pressing down or under, holding back. Opposed, suggestio, intima- tion. Suppressio veri, suggestio falsi. Concealment of the truth is (equivalent to) statement of what is false: suppression of fact, which should be disclosed, is the same in efiEect as willful misrepresentation.^ See further Deceit ; Fkaud ; Representation, 1. SUPRA. L. Above, over; formerly. Alone, and in ut supra and vide supra, re- fers to matter, of text or citation, preceding in the same book or work, and usually upon ' Moak, Underh. Torts, 419, cases. ' Northern Transportation Co. v. Chicago, 99 U. S. '615 (1878), cases. Strong, J. See also Gilmore u Dris- coU, 132 Mass. 201-9 (1877), cases, Gray, C. J.; Keating 1). Cincinnati, 38 Ohio St. 148-49 (1882), cases; Carlin v. Chappel, 101 Pa.' 350-^ (1882), cases; 3 Kent, 435; 1 Am. LawKev. 1-22 (1866), cases; 87 Am. Law Eeg. 629-39 (1879), oases; 24 Cent. Law J. 270 (1887), cases. s Abbott V. Town of -Wojcott, 38 Vt. 672 (1866). , « See Parker v. Enslow, 102 111. 2?7 (1882). <■ See Sohwuchow v. Chicago, 68 111. 448 (1873); Town of Nevada v. Hutohins, 69 Iowa, 608 (1882). •See Fleming v. Slocum, 18 Johns. *405 (1830); 17 Alb. Law J. 601-4 (1878), cases; 1 Story, Eq. § 191; Bishop, Eq. § 213. the same page ; in this book, upon the same column. Compare Ante. Opposed, infra. Supra protest. Over protest. See Pro- test, 3. Supra riparian. Upper riparian. See Riparian. SUPREME.' Superior to all others ; of the last resort; highest: as, the supreme Magistrate, the supreme court, the supreme powef of a State, the supreme law of the land. Opposed to inferior, subordinate, su- perior, qq. V. See Court; Law; Magis- trate. SUR. F. On, upon; over, beyond. L. super, supra. Sur judgment: upon a judgment; sur mortgage: upon a mortgage; debt swr bond: debt upon a sealed instrument. Observe words following, beginning in sur. SURCHARGE. Overcharge; an excess- ive or unlawful charge. Surcharge and falsify. In the language of the common law " surcharge " imports an overcharge in quantity, price, or value be- yond what is just, correct, and reasonable. In this sense it is nearly equivalent to " fal- sify ; " for every item which is not truly charged as it should be, is false ; and, by es- tablishing such overcharge, it is falsified. But in the sense in which used in courts of equity, the words are contrasted with each other.2 A surcharge is appropriately applied to the balance of the whole account; and supposes credits to be omitted, which ought to be allowed. A falsification applies to some item in the .debits; and supposes that the item is wholly false, or in some part errone- ous. " If any of the parties can show an omission [in a stated account] for which credit ought to be taken, that is a surcharge ; or if anything is inserted that is a wrong charge, he is at liberty to show it, and that is falsification. But that must be by proof on his side." » SURETY. 3 A person who engages to be answerable for the debt, default, or miscar- riage of another. The engagement consti- tutes a contract of suretyship.* A person who, being liable to pay a debt or perform an obligation, is entitled, if it is enforced against him, to be indemnified by > L. supremus, upg^most. ' 1 Story, Eq. § 626, quoting Lord Hardwicke in Pit v. Cholmondeley, 3 Ves. 566-66 (18S4). See also Perkins f. Hart, 11 Wheat. 266 (1826). >F. sureti: L. se-, apart from, free of; euro, anx- iety. * See Evans v. Keeland, 9 Ala. 46 (1846). SURETY 936 SURETY some other person who ought himself to have made or performed before the former was compelled to do so.i The relation is fixed by the arrangement and equities between the debtors or obligors, and may be un lino wn to the creditor.^ ' Co-surety. Persons are co-sureties, so as to give the right of contribution, when they are bound for the performance by the same principal of the same duty.2 A contract of " suretyship " is a direct liability to the creditor for the act to be perforaied by the debtor; a " guaranty " is a liability only for his abil- ity to perform this act. A surety assumes to pierform the contract if the principal should not; a guarantor undertakes that his principal can perform — that he is able to perform. The undertaking in suretyship is immediate and direct that the iact shall be done; if not done, the surety becomes at once responsible. In a case of guaranty, non-ability, that is, insolvency, must first be shown. ^ A "^ surety " is usually bound with his principal, by the same instrument, executed at the same time and on the same consideration. He is an original prom- isor, and a debtor from the beginning, and held to know every default of his principal. He may be sued with the principal. The contract of a "guarantor" is his own separate undertaking, in which the princi- pal does not join. The original contract of the prin- cipal is not his contract, and he is not bound to take notice of its non-performance. He is often discharged by indulgence to the principal, and usually is not lia- ble unless notified of his default. At the same time, each stands responsible for the debt, default, or mis- carriage of the other; each is a favorite in law, and not bound beyond the strict terms of the engagement.* The liabilitj^ of a surety is not to be extended, by implication, beyond the terms of his contract. To the extent, and in the manner, and under the circum- stances, pointed out in his obligation, he is bound, and no farther. It is not sufiSicient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract ; and if he does not as- sent to any variation of it, and a variation is made, it is fatal. The courts scan contracts of sureties with considerable strictness. ^ When a change is made without his assent, he is not bound by the contract in its original form, for that has ceased to exist. He is not bound by the con- ti-act in its altered form, for to that he never assented. " 1 Smith V. Shelden, 35 Mich. 48 (1876), Cooley, C. J. ; Wendlandt v. Sohr, 37 Minn. 163 (1887). 2 Young V. Shunk, 30 Minn. 505 (1883), Gilfillan, C. J. 8 Eeigart v. White, 52 Pa. 440 (1866), Agnew, J. 4 Markland Mining & Manuf. Co. v. Kimmel, 87 Ind. 56&-69 (1882), cases, Zollars, J. S^e also Barns u Bar- row,. 61 N. Y. 42-46 (1874), cases; Kingsbury v. West- fall, ib. 360 (1875); Hammel v. Beardsley, 31 Minn. 315 (1883). 5 Miller v. Stewart, 9 Wheat. 703 (1824), cases. Story, J. 8 Eeese u United States, 9 Wall. 21 (1869); Smith u. He is a " favored debtor." His rights are zealously guarded both at law and in equity. The slightest fraud on the part of the creditor, touching the con- tract, annuls it. Any alteration after it is made, though beneficial to the surety, has the same effect. His contract, exactly as made', is the measure of his liability; and, if the case against hiih be not clearly within it, he is entitled to go acquit. But there is a duty incumbent on him. He must not rest supine, close his eyes and fail to seek important information within his reach. If he does this, and a loss occurs, he cannot, in the absence of fraud by the creditor, set up as a defense facts then first learned which he ought to have known and considered before entering into the contract. ^ "VVTien it is said that the contract is to be construed strictly, the meaning is that the obligation is not to be extended to any other subject, or person, or period of time than is expressed or necessarily included in it This rule applies only to the contract itself, not to matters collateral and incidental or arising in execu- tion of it, which are governed by the rules that apply to like circumstances, whatever the relation of the parties." In the case of an absolute guaranty by a surety of payment of a debt, no duty rests upon the creditor in the first instance to take steps against the debtor, and a request to proceed, and damage resulting to the surety from a failure to proceed, must be shown by the surety, to establish a defense. But in the case of an undertaking of such a nature that proceedings must be taken against the debtor before the obliga- . tion of the surety to pay arises, proof of a request to proceed is not necessary, the law in such case imply- ing the condition precedent that due diligence will be used in proceeding against the principal. ^ Where a law provides that a surety may require his creditor, by written notice, to commence action against the principal, the notice must be unconditional — to commence forthwith ; a notice that the surety "wishes" the creditor to collect the claim or have it arranged, the surety not desiring to remain liable, is mot suffi- cient.^ A surety who pays the debt for which he is bound is not only entitled to all the rights of the creditor against the principal for the whole amount, but against the other sureties for their proportional part.^ United States, 2 Wall. 233-35 (1864), cases; Read v. Bowman, ib. 603 (1864), cases; State v. Churchill, 48 Ark. 442 (1886), cases; 20 Cent. Law J. 183-89 (1885), cases. 1 Magee v. Manhattan Life Ins. Co., 92 U. S. 98 ^1875), cases, Swayne, J. 2 Warner v. Connecticut Mut. Life Ins. Co., 109 U. S. 363 (16a3), Matthews, J. ; Burge, Suretyship, 1 Am. ed. 40. 3 Toles V. Adee, 91 N. Y. 573 (1883), Rapallo, J. 4 Meriden Silver Plate Co. v. Flory, 44 Ohio St. 435 (1836); Baker v. Kellogg, S9 id. 665 (1876): Ohio Rev. St. §5833. 6 United States v. Ryder, 110 U. S. 733 (1884); Hamp- ton V. Phipps, 108 id. 263-66 (1833), cases; Shaeffer v. Clendenin, 100 Pa. 567 (1882); Stevens v. Tucker, 87 Ind. 122 (1882), cases: 1 Harv. Law Rev. 32&-57 (1887), cases; 9 Va. Law J. 1-7 (1885), cases. SURFACE 997 SURPLUSAGE The rule of law is that where one surety has paid the debt, he can recover from a co-surety, at law, an aliquot part of the debt, regard being had to the num- ber, but not to the solvency, of the sureties. It any co-surety is insolvent, a larger proportion may be re- covered in equity.^ When a surety has contracted with reference to the conduct of a party in a proceeding in court, in the ab- sence of fraud or collusion, he is concluded by the judgment. ^ If the surety holds indemnity from the principal, the cx'edltor may have the debt satisfied out of it; if the indemnity Is against a contingent liability, the creditor cannot be substituted until the liability he- comes absolute, that is, until the claim is reduced to judgment.* If the purpose for which the contract is made is illegal, the surety cannot be held. Thus, a bond to re- lease property from an unlawful attachment creates no liability.* Surety company. An association of persons, usually incorporated, which makes a business of acting as surety for persons oc- cupying positions of trust, for a compensa- tion which varies with the amount of the bond or security required. Such companies are sometimes also called " guaranty com- panies." See Alteration, 2; Appeal, 2; Assent; Conteibu- tion; Discussion ;0uaranty, 2; Indorsement; Joint AND Several; Liability, Contingent; Peace, 1; Re- cognizance; Strictus; Subrogation. SUBFACE. May refer to the existing or artificial and not to the original or natural surface. As, Jn a statute which makes a lot-owner liable for damages done by excavating more than a certain number of feet below the aurtaee of the adjoining lot." See Land; Mineral; Support, 2. Surfacing. In a contract for constructing a rail- road, was held not to include the work of filling in be- tween the ties, nor of raising the road-bed. » Surface-water. Ceases to be such after it has entered the space between the banks of a water- course.' See A(JUA, Currit; Percolate; Water- course. , J Griffin v. Kelleher, 132 Mass. 83 (1882), cases; 1 Story, Eq. § 496. » Blalden v. Mercer, 44 Ohio St. 313-46 (1886), cases. ' Macklin v. North. Bank Kentucky, 63 Ky. 319 (1885). ' Pacific Nat. Bank v. Mixter, 1-34 U. S. 729 (1888). Wife as surety for husband, see 20 Cent. Law J. 205 (1885), cases. Sureties on official bonds, 23 id. 124 (1886), cases. Bond signed conditionally, 87 Alb. Law J 188-98 208-12 (1888), cases. Judgment against prin- cipal as' evidence against surety, 36 id. 404-S (1887), cases. Eecovering penalty and interest, 37 id. 108-11 (1888) cases. Limitation of actions for deficits, on U. S. officers' bonds, Act 8 Aug. 1888: 25 St. L. 387. « Burkhardtu Hanley, 23 Ohio St. 559 (1873). •Snell V. Cottingham, 72 111. 167 (1874). ' Jones V. Hannovan, 55 Mo. 466-67 (1874). See Weis SURGERY. See Physician. Surgical instruments. See BAQOAaBi SURMISE. Formerly, as a -verb, to sug- gest ; as a substantive, a statement or alle- gation intended to induce judicial action. When a defendant pleaded a local custom, he had to "surmise," that is, to suggest, that the custom be certified by the mouth of the recorder; without which the issue was tried as any other issue of fact. * SURNAME. See Name, 1. SURPLUS. 2 Excess; residue. Of an insurance company : the fund it has in excess of its capital stock after paying the debts.' "Surplus earnings" of a company: the amount owned by it over and above its capital and actual liabilities.* As used in a will, may have a meaning different from " overplus " or that which shall happen to be left over.^ Where a contractor was to fill a trench and haul away the surplus, it was held that the surplus belonged to him.'' SURPLUSAGE.2 i. Surplus matter; overplus ; residue ; also, a balance over. See More ob Less; Residue. 3. Matter, in any instrument, foreign to the purpose; whatever is extraneous, imperti- nent, superfluous, or unnecessary. Whatever may be stricken from the record without destroying the plaintiff's right of action; as, in a suit for a breach of warranty, that goods were not such as the defendant warranted them— "and that he Imew this." Yet it is not every immaterial or unnecessary allegation that is surplusage; for if the party, in stat- ing his title, should state it with unnecessary particu- larity, he must prove it as alleged. Regard must be had to the nature of the averment itself, and its con- nection with the substance of the charge, rather than its grammatical collocation or structure.' Surplusagium non nocet. L. Surplus- age does not vitiate. Mere surplusage may be rejected. The stotement of what the law implies is surplus- age, and avails nothing. Such is the phrase " value received," on the face of bills and notes; and the V City of Madison, 75 Ind. 241 (1881), cases; M'Clure v. City of Red Wing, 88 Minn. 192 (1881), cases. " Vin. Abr. 246 (P); 1 Burr. 251. SF surplus: L. super, above; plus, more. 3 [State V. Parker, 34 N. J. L 48S (1871), Van Syckel, Judge, ■> [People V. Commissioners, 76 N. Y. 74 (1879), Chiu-oh, Chief Justice. spage V. Leapingwell, 18 Ves. Jr. 'm (1812). e White Lot Sewer, 16 Op. Att.-Gen. 373 (1879). ' 1 Greeul, Ev. § 51, cases; United States v. Burnham, 1 JIas. 67 (1816). SURPRISE SURROGATE words "and the siarvivor of them," in a lease to per- sons for their joint lives. In an indictment, any allegation, not descriptive of the identity of the offense, which can be omitted with- out affecting the charge and without detriment to the complaint, maybe treated as surplusage, and need not be proved. 1 See Description; Ikdictmeht; Ebdundanoy. SURPRISE. 1. In equity is not a tech- nical teim. Johnson's common definition explains it : the act of taking unawares ; the state of being taken unawares ; sudden con- fusion or perplexity. When equity relieves for surprise it is on the ground that the party has been taken unawares, has acted, without due deliberation, under confused and sudden impressions. Loosely used, the word may presume or import "fraud;" in accurate usage it refers to something done which, as being unexpected, misleads or confuses on . the sudden, and thus operates as a fraud. 2 Compare Mistake. 2. In statutes providing for amendments of pleadings at trial, and the granting of new trials : such variance between the alle- gations and the proofs as misleads the oppo- site party in maintaining his action or de- fense on the merits. It constitutes a material variance which the party is not prepared to meet and could not expect.' One remedy for a surprise is a motion for a new trial.* The surprise for which a court will set aside pro- ceedings, fair and regular on their face, which have resulted in vesting rights to realty in a purchaser, must be a legal surprise, without fault in the person alleging it.^ It must be absolutely impossible for the adverse party to be taken by surprise by an amendment which does not touch the merits or substance of a cause. ^ A modification, not a change, in the cause of action, is allowed — any alteration, indeed, which does not affect the identity of the transaction.' See Allegation. SURREBUTTER. See Rebutter: SURREJOINDER. See Joindeb. SURRENDER. To give up, make over, deliver ; also, such act itself. See De- livery ; Waiver. 1 Commonwealth v. Howell, 146 Mass. 130 U888); ib. 146, 286, 331. ' [1 Story, Eq. § 120, note, cases; ib. % 251.] = Nash u Towne, 5 Wall. 698 (1866>, cases, Clifford, J. ' Mulhall V. Keenan, 18 WaU. 343, 350 (1873). 6 Hendrickson v. Hinckley, 17 How. 446 (1654) ; Cen- tral Pacific E. Co. V. Creed, 70 Cal. 501 (1886). » Franklin v. Mackey, 16 S. & R. *11S (1827). ' Farmers', &c. Bank v. Israel, 6 S. & W. *295 (1820). To relinquish or give up, unless the meaning is ex- tended by construction; as, in a statute providing that attached goods should be surrendered upon de- livery of a bond.' Suxrenderee. He to whom a surrender has been made. Surrenderor. He who makes a surrender. Surrender by bail. For a person who has become another's bail or surety to give him over again into the custody of the officer who made the arrest or of the sheriff, mar- shal, or jailor. See Bail, 3. Surrender of a criminal. For the ex- ecutive of a State to give up an alleged fugi- tive from justice to the authorities of the State from which he fled. See Extradition. Surrender of an estate. A yielding up of an estate for life or years to him that has the immediate reversion or remainder, wherein the particular estate may merge or drown, by mutual agreement.^ A " surrender " is the falling of a less estate into a greater; in a " release " iq. v.) the greater estate de- scends upon fhe less. The surrenderor must be in possession, and the surrenderee must have a higher estate into which the estate surrendered may merge. Hence, a tenant for life cannot surrender to him that is in remainder for years. 3 ^ Surrender of a lease. A yielding up, by a tenant, of his estate, to the landlord, so that the leasehold interest becomes extinct by mutual agreement. May be by express words, or by operation of law where the parties have done some act which implies that they both agreed to consider the surrender as made.* See Quit. Surrender of a preference. For a creditor of a bankrupt to turn over to the assignee whatever property or security he may have received in preference to other creditors, in order to share in a dividend.5 SURROGATE-^ 1. One who is substi- tuted or appointed in the place of another. Formerly, a person selected by the bishop to issue, in his stead, licenses to marry. He presided in the 1 Clark u Wilson, 14 E. I. 13 ( " Coke, Litt. 387 6. 3 2 Bl. Com. 326. See also 4 Kent, 103; 26 Minn. 136, 821; 30 N. Y. 462; 12 Johns. 361; 5 Pa. 424; 18 Gratt. 159; 8 Wis. »358. ' Beall V. White, 94 V. S. 389 (1876), cases, Clifford, J.; Spoouer v. Spooner, 26 Minn. 136 (1879), cases; Smith V. Pendergast, ib. 321 (1879), cases; Martin v. Stearns, 52 Iowa, 347 (1879), cases. " See Be Richt^r's Estate, 1 Dill. 552 (1870). oL. surrogatus, elected in place of another: suhi'o- gare. SURROUNDINGS 999 SURVIVE bishop's diocesan court. As representative of tiie ordinary, he granted letters of administration. Whence — 2. A judicial officer, corresponding to the ordinary or to a judge of an orphans' court or court of probate,' qq. v. SUKKOUNDINGS. See Res, GestM. SURVEY.^ A view or examination, usually professional or official, with reference to the boundaries, features, etc., of land, the condition and value of a building, the sea- worthiness of a vessel, or the quality, condi- tion, or value of merchandise. Whence surveyor of land, of highways, of customs or of the port, of vessels ; and sur- veyor-general of public lands. Survey of buildings. In insurance law, a plan and description of the existing state, condition, and mode of use of property. "Plan" and " description" may be synony- mous.' Includes the application, containing the questions propounded and the answers thereto.* Survey of land. The actual measure- ment of land, ascertaining the contents by running the lines and angles, and fixing the corners and boundaries. * In civil engineering, does not necessarily mean a map or profile; but the terms are sometimes convert- ible.' Chamber survey. A survey not made upon the ground. Where a return of an official siuTcy is made and accepted, a p7-ima/aae presumption arises ttiatthe surwy was made upon the ground, but for twenty-one years after the return such presumption maybe re- butted by proof that it was but a chamber survey.' Junior survey and senior survey are used in the ordinary sense of younger or later and older or earlier survey, respectively. In Pennsylvania, unless a survey is returned to the land-oface within a reasonable time,— seven years, as fixed by the courts,— it is regarded as abandoned.* In that State, also, original marks and living monu- ments are the highest proof of a location; calls for adjoining surveys are next in importance. Both these • being wanting, corne rs and distances returned to the ■ See 2 Bl. Com. 503; 3 Kent, 420; 2 Steph. Com. 247. ''F sur, over; veer (voir), to see. 3 Denny v. Conway Ins. Co. , 13 Gray, 497 (1850), Bige- low, J. ' May V. Buckeye Ins. Co., 35 Wis. 307 (1870). » [Winter w. United States, 1 Hemp. 383(1648), John- son, J. 'Attorney-General v. Stevens, 1 N. J. E. 386 (1831). ' Packer v. Schrader Mining, &c. Co., 97 Pa. 383 <1881); 1 Whart. Ev. §§ 668-70. spaxton V. Griswold, 133 U. S. 441 (1887), cases. land-office govern. Surveys constituting a block are treated as one survey; and its lines and corners, be- longing to every sub-tract as much as to any particu- lar one, fixes the location of the whole block. When a survey can be determined by its own marks upon the ground or by its own calls, it cannot be controlled by the lines of an adjoining junior survey; but when marks have disappeared from the senior survey, so that a line is rendered uncertain, original and well- established marks found upon a later adjoining sur- vey, made by the same surveyor about the same time, are admissible to aid the jury in settling the location of the senior sm'vey. After twenty-one years from the return of a survey the presumption is that the warrant was located as returned to the, land-office; but this may be rebutted by proof of the existence of marked lines and monuments, and of other facts showing that the actual location was different from the ofdcial courses and distances. ^ See Boondaky; Take, 8. Survey of a vessel. A public docu- ment which affords the means of ascertain- ing the condition of the ship and ihe other property at hazard.- SURVrVE.s To live beyond an event or person. 1. A right of action is said to " survive," rather than to abate, upon the death of a person, when his representative may insti- tute or continue the action ; as, for breach of a contract or for injury to property.* A right of action survives against one's representa- tives where by means of the offense property is ac- quired which benefited the decedent.' See further Action, 2, Personal. 3. To live beyond another related person. To remain in life after the death of another.* The persons may be partners, executors, adminis- trators, trustees. Whence aurvimng partner, exec- utor, etc., or simply the survivor. " Surviving," " survivor," or " survivors," is often used, in wills, in the broad sense of all " others," rather than' as referring to members of a particular class alone, which is its ordinary and perhaps strict sense.' SeeExECOTOE; Pabtnek. Survivorship. When 'two or more per- sons are seized of a joint estate of inheritance for their own lives, or for the life of another, or are jointly possessed of a chattel interest, the entire tenancy, upon the death of any of 1 Clement v. Packer, 125 U. S. 337, 332, 336 (1888), cases. 2 [Potter u Ocean Ins. Co., 3 Sumn. 43 (1837), Story, J. '¥. survivre, to outlive: L. snper-vivere. * See Jenkins v. French, 58 N. H. 633 (1879). 'United States v. Daniel, 6 How. 13 (1848); 20 Am. Law Kev. 49-79 (1886), cases. ' Hawley v. Northampton, 8 Mass. *31 (1811). ' Scott V. West, 63 Wis. 593-94 (1885), cases. SUS. PER COLL. 1000 SUSPICION them, survives to the survivor, and at length to the last survivor, i Also called jus accrescendi, because, upon the death of one joint-tenant, the right ac'^ cumulates and increases to the survivor. 2 Generally abolished, and preference given to ten- ancy in common, unless otherwise directed in devises, and except as to mortgages, trust estates, and, per- haps, as to devises and conveyances to husband and ■wife.' See Tenant. Where two or more persons, entitled to inherit from one another, perish together in the same shipwreck, battle, or conflagration, or otherwise, the. English common law requires the* matter of successive sur- vivorship to be proved by facts. The French civil code and the civil code of Louisiana deduce rules from the probabilities resulting from age, sex, and strength.* There is no presumption of survivorship in the case of persons who perish by a common disaster. One who claims through a survivorship must prove the survivorship. 6 See Accumulation; Copaecenary; Entirety; Ten- ant, Joint-tenants. SUS. PER COLL. An abbreviation of the Latin suspendatur per collum, let him be hanged by the neck. These words were formerly written on the criminal calendar, opposite the name of a person convicted of a capital felony, and constituted the sheriff's warrant for executing him." SUSPENSIOIT.' Temporary stopping or,intei-diction of the exercise of some power, proceeding, right, or law. As, the suspension of, and to suspend, — a right of entry upon, and the pre-emption of, public lands, the running of the statute of limitations, the privilege of the writ of habeas corpus (q. v.), rendering a decision or pronouneuig a sentence, execution of a judgment or sentence, or from office.^ See Arrest, 1; Reprieve; Sentence; Stay; Va- cancy. SUSPICIOIf. " The act of suspecting, or the state of being suspected; imagina- tion of something ill; distrust, mistrust; doubt." 9 1. "Suspicions" is frequently applied to ' 2 Bl. Com. 183-84; 4 Kent, 360. " 3 Bl. Com. 183. s See 1 Washb. E. P. 408, note; 4 Kent, 361-62. < 1 Greenl. Ev. §§ 39-30, cases; 2 Wha»t. Ev. §§ 1S80-82, cases; 30 Alb. Law J. 45-46 (1884), cases; 14 Cent. Law J. 367-71 (1882), cases,— Irish Law T. 'Newell V. Nichols, 75 N. Y. 86-90 (1878), cases, Church, C. J. ; Eussell v. Hallett, 23 Kan. 378 (1880), cases; Johnson v. Merithew, 80 Me. — (1881 ■> 4 Bl. Com. 403; 44 L. T. 365, "^ L. suspendere, to hang up. 6 See Richards v. Burden, 69 Iowa, 766 (188S). 'McCalla 11. State, 66 Ga. 318 (1881), Speer, J. an act, thing, or occurrence which, from its nature or from some circumstance attend- ing it, may well put a man of ordinary, cau- tion upon his guard against deception. Mere suspicion that there may be something wrong with a" piece of negotiable paper will not defeat recov- ery by a purchaser. He loses protection against an in- firmity only when he is guilty of bad faith, or buys- with actual notice of the defect.^ See Bearer; Inno- cent. A man may have grounds of suspicion that his debtor is in failing circumstances and yet have iio cause for a well-founded "belief" of the fact. To make mere suspicion a, ground of nullity would ren- der business transactions too insecure. " A reasonable cause to believe " a debtol: insolventis a different mat- ter." 3. "Suspicions" is also applied to cases in which a party fails or omits to produce evidence within his exclusive possession, and which, being introduced, would have changed the result, presumably against his interest. 3. The words are likewise applied to the case of a person who is believed to have com- mitted a crime, or vsfhose actions fairly indi- cate an intention to commit crime. Suspicious character. A person sus- pected of intending to commit, in the present or near future, some act of criminal mis- behavior. The grounds for the suspicion appearing reasonable to a committing magistrate, such person may be re- quired to find security for keeping the peace, and for good^3ehavior.3 A justice of the peace may issue a warant to appre- hend a person suspected of felony, though the sus- picion originates with the person who prays the warrant; because the justice is competent to judge of the probability of the suspicion.* Where a high crime has been committed, very stringent proof is not required that there was ground for a reasonable belief that a suspected party -was guilty. Peace officers may arrest upon suspicion of felony. A high oflScer, as, the sheriff, may arrest a. person merely suspected of a capital offense. Yet suspicion is not belief; probable cause for suspicion by a prudent and l>easonable man that a person com- mitted a high crime may not be sufficient to induce' him to believe the person guilty." ' Fox V. Bank of Kansas City, 30 Kan. 446 (1883), cases. Brewer, J. ; Swift v. Smith, 102 U. S. 444 (1880), cases, Strong, J. » Grant v. First Nat. Bank of Monmouth, 97 tT. S. 81 (1877). 3 4 Bl. Cbtn. 252. * 4 Bl. Com. 290. 'McCarthy v. DeAi-mit, 99 Pa. 70 (1881), cases. McCarthy, as mayor of Pittsburgh, Pa., at the time of 8UUM 1001 SWINDLE In an action for malicious prosecution it is enough it the circumstances produced an honest and strong suspicion of guilt; a "conviction" would imply a higher degree of proof than the law requires.' Circumstances which merely cast upon one sus- picion of guilt will not support a conviction by being coupled with the confession of an alleged accom- plice.' See Arrest, 2; Cause, 2, Probable; Night-walker. SUTJM; SITUS. See Sui. SWAMP. Within the meaning of the act of Congress of September 38, 1850, grant- ing swamp and overflowed lands to the States, such lands as, by periodical overflow at seasons of sowing and harvesting, are ren- dered unfit for cultivation of the staple crops, s See Meadow. SWEAR. 1. To take an oath before an oflScer employed to administer oaths. Com- pare JURARE. See Oath ; Affidavit. The certiflcate of a magistrate that a complaint was "taken and sworn" before hina is sufficient in form; so are the words " sworn before me." * Ac allegation that the defendant did " depose and swear " to the truth of an answer, does not show that he was " swoi-n " to the truth. One may " swear " who is not " sworn; " and in that case the oath is self- imposed.* False swearing. Swearing to a state- ment with knowledge of its falsity, as, by an assured. 6 A verified false assertion which deceives, or is fitted and likely to deceive, the one to whom it is made.' The words " she has sworn falsely " do not of them- selves import perjury. To render them actionable it must be averred that they were spoken with reference to a judicial oath, and were meant to charge perjury.^ It is sufficient to charge that the accused willfully and knowingly swore, deposed, or gave in evidence that which was false, in a matter judicially pending, or on a subject in which he could be legally sworn, or the railroad riots there July 21-22, 1877, caused De- Armit's arrest, without a warrant, on suspicion that he was the person who had "avenged" the death of a brother by shooting two militiamen. 'Keep V. Griggs, 12 Bradw. 516-17 (1882); Harpham V. Whitney, 77 HI. 38 (1875). 2 McCalla v. State, 66 Ga. 346 0881). 3 Thompson v. Thornton, 60 Cal. 144 (1876). See the decisions under the act of 1850 reviewed and explained at length. United States v. Louisiana, 127 U. S. 182-91 (1888); Merrill v. Tobin, 30 F, E. 738 (1887). < Commonwealth v. Bennett, 7 Allen, 633 (1863). i United States v. McConaughy, 33 F. R. 1C8 (1887), Deady, J. • Franklin Ins. Co. v. Culver, 6 Ind. 139 (1865). 'Maher v. Hibernian Ins. Co., 67 N. Y. 292 (1876), Folger, J. " Barger v. Barger, 18 Pa. 492 (1862), Black, C. J. in which he was required to be sworn. Propel* allega- tions of the falsity of the matter are as necessary as in an indictment for perjury. The indictment should be direct and certain as to the falsity of the oath, which, in both cases, must be knowingly and willfully made.' See Forswear; Perjdry; True. 2. To use such profane language as the law forbids. Profane swearing is generally punished by statutes. See Blasphemy; Profanity. SWEDEN TABLES. See Table, 4. SWEEPING. Comprehending many particulars in one act or action : as, a sweep- ing objection, exception, or denial. Sweeping clause. The last (eighteenth) para- graph of section 8, Art. I, of the Corstitution, confer- ring power upon Congress " To make all Laws which shall be necessary and proper for carrying into Ex- ecution" the powers vested in the general govern- ment. See further Necessary. SWELL. To augment, increase the amount of : as, that a circumstance in a case of wrong-doing will, or will not, swell the damages recoverable. SWIFT. Said of a witness who is over- ready to answer, betraying, possibly, par- tiality for the side by which he is called ; a zealous or over -zealous witness. See Exam- ination, 9. SWINDLE. Does not, with any degree of certainty, import the commission of an indictable offense. The word was imported into England from Germany, and implies no more than to " cheat," ^ q. v. In Minnesota, whoever by any device, sleight of hand, or other means, by use of cards or instruments of like character, obtains from another any money or other property, shall be guilty of the crime of " swindling." ' The Penal Code of Texas defines it as the acquisi- tion of movable property, money, or a writing secur- ing a valuable Tight by means of some false or deceit- ful pretense or device, or fraudulent representation, with intent to appropriate the same to the use of the party so acquiring, or of destroying or impairing the right of the party justly entitled to the same. * In a State where the term does not necessarily im- port a crime, not actionable per se." 1 Commonwealth v. Still, &3 Ky. 277 (1885). 2 Stevenson v. Hayden, 2 Mass. *408 (1807),.Sedgwick, Judge. s State V. Gray, 29 Minn. 142 (1882): Gen. St. 1878, c. 99, § 16. 4 Blum V. State, 20 Tex. Ap. 691 (1886): Code, art. 700. 5 Chase v. Vi'hitloek, 3 Hill, 140-41 (1842), cases; Pol- lock V. Hastings, 88 Ind. 218 (1882). See also Herr v. Bamberg, 10 How. Pr. 130 (1854); Odiorne v. Bacon, 6 Cush. 185 (1850). SWINE 1003 TABLE SWINE. See Cattle; Hoa. SWITCH. SeeEAiuiOAD. SWORN. See SwEAfe. SYLLABUS.i An abstract ; a head-note. The brief statement of the point or points de- cided, prefixed to the printed report of a case. Being prepared by the reporter, it is not an authori- tative part of the report. See Eepokt, 1 (2). English plural, syllabuses; Latin plural, syllabi. SYMBOL. In the law of trade-marks, see Trade-mark. Symbolic delivery. Delivering one thing ia evidence of the transfer of some other more important thing : as, of a bill of lading in place of the merchandise. See De- limEET, 1; Lading, Bill of; Sale, Bill of. SYNDIC.2 F. The assignee of an in- solvent; also, a director, or the managing director, of a community — company or cor- poration. In Louisiana, all the property rights of an insolvent who makes a cession, pass to the syndic. ^ SYNDICATE. Persons united for the purposes of an enterprise too large for suc- ' cessful management by a single individual ; also a number of persons who buy all of an issue of stock or bonds, in order, by advanc- ing the market value, to make a profit to themselves as members of the company.^* See "Syndic. SYNGRAPH.5 An instrument under the hand and seal of all the parties ; an indenture, in the original meaning of that term.* SYNOD. See Church. T. T. 1. As an abbreviation, usually stands for tempore, term, terminer, Tei-ritory, title, trial. Trinity. 2. As a brand or mark of infamy, com- monly meant ' ' thief. " Anciently, a person convicted of a felony, not mur- der, and admitted to clergy, was branded with a T on the brawn of the thumb. ^ 'Gk. syl'labos, taken together — asawhole; athing made concise ; a brief. 2 Gk. syn'dicos, an assistant to a judge or court. s Arnold v. Danziger, 30 F. E. 899 (1887), oases; 33 id. 1 ; La. Civ. Code, art. 429. 4 See Appeal of Whelen, 108 Pa. 162, 195 (1884). ^ Gk. syn-grdpliein, to write together. Compare Holograph. « See 2 Bl. Com. 296. ^ Wharton, Law Diet. In Colonial times, was branded or imprinted with indelible ink upon the cheek of a person convicted of theft. A law enacted in Pennsylvania in 1698 provided, as part of the punishment for stealing goods worth five shillings, that the culprit be ordered, upon penalty of banishment, to wear, when away from his own prem- ises, for six months, upon the outside of the left sleeve between the shoulder and the elbow, a badge of his " thieving " in the shape of a Roman " T." four inches long by one broad, of a color unlike that of the garment,— red, blue, or yellow, as the court di- rected. ^ TABLE. 1. Inthe sense of billiard-table, gaming-table, etc., see Game, 2. 2. In the sen.-se of a condensed statement or a view of items or details, for ready ref- erence, is used of genealogical tables, inter- est tables, tables of descent, of weights, measures, etc. See Time-table. Table of cases. A statement of the de- cided cases reported or cited in a law-book, arranged in alphabetical order by their re- spective titles, with reference to the page Or pages where found in the book, and, perhaps also, in the original volume ; the whole being printed at the beginning or at the close of the book. , 3. In the sense of a law or chapter of a statute, see Twelve Tables. 4. Statistics concerning the longevity of large numbers of individuals have been ar- ranged in "tables;" from which the prob- able duration of the life of a particular - person may be estimated, from any year in life. These tables are chiefly used for determin- ing the present worth of annuities, dower interests, reversions, and policies of insur- ance. Life and annuity tables are framed upon the basis of the average duration of the lives of a great number of persons. They have never been held to be absolute guides. 2 The Northampton Tables were prepared, by a Dr. Price, fi'om bills of mortality kept in the parish of All Saints, a town in the north of England, between 1735 and 1780. The Carlisle Tables were framed for the town of Carlisle, also in the north of England, from observa- tions made upon a population of 8000 persons, during 1779 and 1780. ' Laws of Prov. of Penn., Linn, S75; 1 Bioren's Laws, 3 (1700). 2 Vioksburg & Meridian E. Co. «. Putnam, 118 U. S. 5S6, 564 (1886), cases, Gray, J.,— an action for damages for personal injuries; 67 Wis. 37. TABULA 1003 TAKE The Equitable Tables were made by the Equitable Insurance Company of London, from data collected by the company in the transaction of its business. The Sweden Tablesa,T& based upon returns collected between 1755 and 1776, corrected by returns made be- twsen 1775 and 1805, from the population of the whole of Sweden and Finland. Finlaison's Tables were constructed, about 1825, by John Finlaison, actuary of the National Debt Office of England, from observations upon 86,000 life annuities of the English government, from about 1795 to 1825. McKean's Tables, first issued in 1837, were prepared by Alexander McKean, actuary, of London. Wigglesworth's Tables were framed by a Dr. Wig- glesworth, from observations made in New England, Bland's Tables were arranged by Chancellor Bland, of Maryland, from Various other tables.' TABULA. L. A plank or board. Tabula in naufragio. A plank in a ship- wreck : a thing saved out of a general loss. In English law, the right in a third mortgagee, who did not linow of the existence of a second mortgage, to acquh-e the first mortgage, and, by tacking his own to that, to secure satisfaction of both incumbrances before the second received anything.'' See Tacking. TACIT. Silent ; not expressed, but un- derstood; implied from acts: as, tacit con- sent, or acknowledgment. See Silence. TACKING. In English law, the equi- table doctrine of uniting securities given at different times, to prevent an intermediate purchaser from redeeming or discharging a prior lien without discharging the liens sub- sequent to his title.' Suppose, for example, that there are three mort- gages of different dates. The mortgagee first in time holds the legal title; the others are simply equitable incumbrancers. It, now, the third mortgagee buys the first mortgage, so as to become the owner of the legal title, he has a right to tack his two mortgages together, and receive the whole amount due upon both, prior to the second mortgagee. But this is allowed, when at all, only where the third mortgagee had no notice of the second mortgage at the time he took his mortgage. The right has existed in favor of those who have ad- vanced money on the credit of land. The doctrine does not exist in the United States. A rule apparently analogous is found in cases where a mortgage is given to seciu-e future advances and the mortgagee is al- lowed to recover sums subsequently advanced, as against a mesne mortgagee.* 'See Williams' Case, 3 Bland, Ch. R. 227-35 (1828); Scribner, Dower, 663-76, App. A. p. 811. As to Bland's Table, see 3 Bland, Ch. R. 237-38; as to VTigglesworth's, see Memoirs Am. 'Acad. Arts. & Sc, Vol. 2, p.. 131 ; 10 Mass. 315. "Seel Story, Eq. §§ 414-15, cases; Boone v. Chiles, 10 Pet. •211 (1836); 18 Wall. 475. ' [1 Story, Eq. § 412. * See Bispham, Eq. §§ 158-59. The reasoning in support of the docrine has been that where the equity is equal the law shall prevail. But this assumes the whole case. He who is prior in time is prior in right, and has the better equity. ' The doctrine is opposed to the policy and express provisions of the recording acts of our States, which direct that the rights of incumbrancers shall be deter- mined by the records of their incumbrances." TAIL. 3 Fee-tail, as descriptive of an es- tate in lands, was borrowed from the feu- dists, among whom it signified any mutilated or truncated inheritance from which the heirs general were "cut off."^ Sntail. 1, V. To restrict an inheritance to a class of issue or descendants. Opposed, disentail: to bar an estate in tail. 3, n. An estate iu tail ; an estatertail. The words formerly employed in creating the estate were " heirs (male or female) of the body " of a par- ticular person ; but other expressions, such as "issue forever," and "posterity," have been held to be of not less extensive import. Where the estate is not recognized, language which, formerly, would have created it will be construed to create a fee-simple.* Entailments are generally abolished in the United States; where retained, they may be barred, as, by a deed from the tenant. Our law favors free alienation, q. V. In England the law has been so modified as to remove the more serious inconveniences that attended' such estates." See further Fee, 1. TAINT. See Attainder. TAKE. With its inflections, has its pop- ular, a quasi or a wholly technical sense. 1. In the sense of being entitled to, pro- curing, acquiring, obtaining,' receiving, ac- cepting, reserving, is of frequent use. As in the expressions: take a note; take by de- scent, by purchase, by devise, by will; take up a lease, or claim; take out a copyright, a patent, a caveat; take possession; take an oath; take words in their popular sense ; take effect; take a rule, a nonsuit, an exception, a bill pro confesso, a verdict, a judgment, an appeal, a writ of error. That it will "take" all one's property to pay his debts means it will require all.' In a statute providing than an estate by curtesy should not " be liable to be taken " for the debts of the husband, " taken " was held to mean taken in in- vitum.^ ' 1 Story, Eq. § 413. ' See at length Marsh v. Lee, 1 Lead. Cas. Eq. *611- 29, cases; 1 W. & T. ib. 86S-«), cases; 3 Pom. Eq. § 768; 10 Conn. 261; 29 id. 324; 1 Johns. Ch. 399; 1 Dall. 153; 11 S. & R. 223; 30 Pa. 378; 13 Vt. 309. ' F. taille, a cutting. * 2 Bl. Com. 112. 6 Brann v. Elzey, 83 Ky. 442-43 (1885). • 1 Washb. R. P. 9^-111; 4 Kent, 13-23. ' King V. Kent, 29 Ala, 555 (1857). e Briggs v. Titus, 13 R. I. 138 (1880). TAKE 1004 TAKE Power in a bank to "take," realty -in payment of debts includes power to sell the same again.' Reserving interest as discount is the same as taking interest. But where there is a penalty, actual receipt is necessary. 2 Taker. The " first taker " under a will is presumed to have been a favorite of the de- ceased. ^ See Devise, Executory. 3. To take up a bill or note is to pay the amount thereof, and receive the paper back ; to retire the bill or note by paying it or sub- stituting other, paper for it. See Renewal; Retikb. 3. To avail one's self of the provisions of a law ; to take such action in court as will se- cure one's self the benefits of a particular law: as, to take the bankrupt or insolvent law. 4. To apply for and secure ; to procure : as, to "take out " a license, letters of adminis- tration or letters testamentary, a policy of insurance, a \vrit of any kind. See Gkant, 4. An appeal from a decree of a circuit court is not " taken " until it is some way presented to the court which made the decree, so as to put an end to its ju- risdiction over the cause.* 5. The technical word in a precept order- ing an arrest. See Arrest, 3 ; Capere. 6. The technical word charging felonious appropriation in embezzlement: in larceny the words are " take and carry away." "Take" and " steal " are not necessarily synony- mous.^ The taking is actual when the seizing and carrying away is without pretense of an existing contract; and constructive, when, under such pretense, possession, with intent to convert, is obtained. See Carry, 1; Em- bezzlement; Larceny; Bobbery. 7. A mere attempt to seduce is not a tak- ing within a statute against abduction: there must be some positive act to get the person away.* But a taking for purposes of prostitution need not be by force; it may be by improper solicitations or in- ducements.^ 8. To appropriate to a public use, against the will of the owner: as, to take private property. ' Jackson v. Brown, B Wend. 594 (1830). " Bank of United States v. Owens, 2 Pet. *538 (1839). = Srim's Appeal, 89 Pa. 334 (1879). ■> Credit Co. v. Ai-kansas Central E. Co., 1S8 U. S. 261 (1888); R. S. § 1008. s Stone V. Stevens, 12 CoBn. *229 (1837). • People V. Parshall, 6 Park. Or. 132 (1864). ' People V. Marshall, B9 Cal. 388 (1881). The constitutions of all of the States pro- vide, in substance, as follows: "Nor shall any person . . be deprived of . . prop- erty, without due process of law; nor shall private property be taken for public use, without just compensation." ' In this connection "taken" means, broadly, — oc- cupied, used, diminished in value, injured, damaged, destroyed. The courts of some States hold, or have held, that the inhibition extends only to cases of actual appropriation — direct, phys- ical seizure or dispossession ; the courts of other States, that cases of indirect, conse- quential injury are also included. The later constitutions generally include the latter class of cases under such phrases as "prop- erty taken or damaged," damaged meaning injuriously affected.- ' . When a public use causes to property, no part of which is taken, an injury of such a character that, if it accrued when a portion of the property was taken, it would form an element of the damages as to the part not taken, there is such damage as entitles the owner to compensation. ^ Applied to the condemnation of land for railway use, " taken " means the exclusion of the owner from use and possession and the actual assumption of ex- clusive possession by the corporation at the termina- tion and as the result of judicial proceedings.* Where the tracks of a street railway, which owned an exclusive franchise for that mode of carriage,, were paralleled by the tracks of a cable tram-way, the latter having obtained from owners of the soil the right to occupy the streets, the property of the former was held to be "damaged," and not " taken," within the meaning of the constitution of Nebraska.^ Under the Constitution of Illinois of 1870, in which the words used are "taken or damaged," a recovery may be had wherever private property has sustained a substantial injuiy from the making and use of any public improvement, whether the damage be direct^ as when caused by trespass or physical invasion, or consequential, as in diminution of market value.* ' U. S. Constitution, Amd. V. See i Bl. Com. 139. ,2 Eigney v. Chicago, 102 lU. 71, 75 (1882), cases; Mol- landin u Union Pacific R. Co., 14 F. E. 394 (1888); Gottscholk V. Chicago, &c. E. Co., 14 Neb. 559 (1883); Hollingsworth v. Parish of Tensas, 4 Woods, 280(1883); Eocljette v. Chicago, &c. E. Co., 33 Minn. 203^ (1884), cases; Pittsburgh Junction R. Co. v. McCutcheon, 18- ■ W. N. C. (Pa., 1886^ Sharpless v. Philadelphia, 21 -Pa. 166 (1863); Be Dorrance Street, 4 R. I. 245 (1856). = Omaha Horse Ey. Co. v. Cable Tram- Way Co., 33 F. R. 733 (1887) ; McElroy v, Kansas City, 21 id. 2,57 (1884). « Woodruff V. Catlin, 54 Conn. 397 (ISSai, Pardee, J.- ' Omaha Horse Ey. Co. v. Cable Ti-am-Way Co., 32 F. E. 727 (1887). « Chicago V. Taylor, 125 U. S. 161, 168 (1888), Harlan, J., TAKE 1005 TALES The word "injured," in the constitution (art. XVI, § 8) of Pennsylvania of 1874, in the phrase " property taken, injured or destroyed" by corporations, etc., refers to such legal wrong done as would be the sub- ject of an action for damages at common law; to in- juries which, though consequential, are yet actual, positive, and visible, the natural and necessary result of original construction or of enlargement, and of such certain chaiucter that compensation may be ascer- tained immediately, and be paid tor or secured in ad- vance. Hence, in that State, a railroad company is not liable for indirect injuries, the result of the opera- tion of its road in a lawful way, without negligence, unskillfulness, or malice, upon its own property.^ Acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be "■ taking." Thus, the State may take a portion of a man's property by way of taxation for support of the government.' Destroying a building to prevent a conflagration is not viewed as a taking.* But statutes make it this, in some States. See Fire. A lot abutting on a street may be " damaged " by citing many Illinois cases, and reiving chiefly upon the unanimous opinion in Chicago & Western Indiana R. Co. V. Ayres, 106 111. 518 (1883), and Eigney v. Chicago, 102 id. 64 (1882). Under the constitution of 184S, which provided for compensation for property "taken or ap- plied " to public use, it was held that recovery could not be had for merely consequential damages, pro- vided the improvement had the sanction of the legisla- ture,— 185 U. S. 164-65, cases. In the same State, dam- ages for an actual appropriation are payable in advance; an Injury sustained in common with the public at large is not a subject of claim; and any spe- cial injury must be remedied by an action at law, as it cannot be by an injunction,— Lorie v. North Chicago City It. Co., 33 F. E. STO (1887). ' Pennsylvania R. Co. v. Marchant, 119 Pa. 541 , .563 (1888), one justice dissenting. (Counsel for plaintiff cite many English and American cases.) The rail- road company had invested a large sum on the south side of Filbert street, Philadelphia, in purchasing prop- erty and in constructing a depot and elevated tracks. The defendant owned a dwelling-house upon the north side of the street, flfty-one feet from the railroad; and claimed damages for loss of light, for the noise, jarring, smoke, etc. The decision of the lower court, which was in his favor, was reversed. Occupation of the street itself, in front of his house, would have con- stituted the subject of a claim in the nature of special damages. The words used in the constitution of 1838 were "taken or applied " to a public use, and it was held that some portion of one's private property had actually to be taken — an immunity npt enjoyed by in- dividuals, and occasioning great hardships. See Mar- chant's case annotated, 87 Am. Law Eeg. 391^00 (1888). = Northern Transp. Co. v. Chicago, 99 U. S. 643 (1878), cases: Hlmois constitution of 1848, as to which sfte supra. 3 Munn V. Illinois, 94 U. S. 145 (1876). * Surroco v. Geary, 3 Cal. 73 (1863). laying tracks and running railroad cars through the street. ^ Where realty is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair, its usefulness, it is a tak- ing. That is, a serious interruption to the common and necessary use of property may be equivalent to taking it, as, by ovei-flowing land with back-water.'' An entry upon land for a survey, preliminary to locating a railroad, is not such a taking as entitles the owner to compensation for the fee; but he may claim for the temporary occupation.' The right to enter upon and use is complete as soon as the property is actually appropriated under au- thority of law, but the title does not pass from the owner until compensation is made.* 'Taking differs from a sale, in that the transfer of title may be compelled, and the amount of compen- sation be determined by a jury or officers appointed for that purpose. A taking is an exchange of prop- erty for an equivalent.* Only such estate is taken as is necessary to carry out the purposes tor which the land is used. This estate is an easement; the fee remains in the original owner.* The object must be a public one.' The particular use for which the land is first taken cannot be departed from.* See further Beidge; Compensation, 8; Domain, Eminent; Levee; Pboperty; Eipakian. TALE. See Declaration, 2. TALES. L. Plural of talis, such, of such a kind : additional jurors. If, from any cause, a sufficient number of unexceptionable jurors do not appear at the trial, or if a panel is exhausted by challenges before a jury is obtained, either party, at common law, may pray a tales, that is, more of such men as were summoned upon the first panel, to make up the deficiency. Talesman. One of such additional ju- rors.' 1 Frankle v. Jackson, 30 F. E. 398 (1887), cases. 2 Pumpelly v. Green Bay Co., 13 Wall. 181, 179-80 (1871), cases, Miller, J.: lUinoisconstitutionof 1848; 28 Minn. 540. ' Bonaparte I). Camden, &c. E. Co., Baldw. 835 (1830); Polly V. Saratoga, Ac. E. Co., 9 Barb. 457 (1850). 4 Kennedy v. Indianapolis, 103 U. S. 602 (1880). - County of Mobile v. Kimball, 102 U. S. 703 (1880). ' Attorney-General v. Jamaica Pond Aqueduct Cor- poration, 133 Mass. 365 (1882), cases. ' Cole V. La Grange, 113 U. S. 6 (1885), cases; Vnrner V. Martin, 21 W. Va. 651-53 (1883), cases. As to one railroad condemning land for another, see 27 Cent. Law J. 207-12(1888), cases. 8 Oregon P.y. & Nav. Co. v. Oregon Eeal Estate Co., 10 Oreg. 445 (1882), cases. [3 Bl. Com. 364-65; 4 id. 354; O'Connor v. State, 9 Fla. 225 (1860). TALTARUM'S CASE 1006 TAX At nisi prius, by virtue of 35 Hen. VHE (1544), o. 6, the judge is empowered to award a tales de circuvi- stantibus, of by-standers — persons present in court, to be .ioined to the other jurors to try the cause. They are subject to the same challenges as the principal jurors.^ By-standers may still he chosen, except in Cali- fornia. A jury so impaneled is regarded as a " jury of the county " where the offense was committed.^ Since a tales signifies a returning of as many men as will malie up the full complement of jurors, it is not granted where there is a total default; only where the number is deficient.^ " When, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jui'ors happens, return jury- men from the by-standers sufficient to complete the panel." * The act of June 30, 1879, .;. 52, § 3, prescribing the mode for drawing jurors, does not repeal the foregoing provision, nor affect the power, when a panel has be- come exhausted, to call in talesmen.^ Octo tales, eight such jurors, and decern tales, ten such jurors, were the names, at common law, of bodies of additional jm-ors, and Of the writs by which they were summoned.* TALTARUM'S CASE. See Donum, De donls. TAME. See Animal. TANNERY. See Condition ; Nuisance ; Police, 2. TANNING. See Art, 1 ; Process, 3. TANTAN. See Game, 2. TARDE. See Venire, Tarda TARIFF.'' Originally, a list or schedule showing the price or chai-ge affixed to each of a number of items. Latterly, a statute, or a commercial convention, as well as a list or schedule, exhibiting the kinds or the names of articles of merchandise designed for importation or exportation, upon which duties or customs are to be paid for the use of the general government. See Customs; Duty, 2. I [8 Bl. Com. 364-65. ' State V. Kemp. 34 Minn. 66 (1885). 'Williams v. Commonwealth, 91 Pa. 600 (1879); 1 Chitt. Cr. Law, 518. (1880); Wilson v. Gaines, 103 id. 417 (1880); Mem- phis E. Co. V. Commissioners, 118 id. 617 (1884), cases. < Npcth Missouri E. Co. v. Maguire, 20 Wall. 61 (1873). ■= Bank of Commerces. Tennessee, 104 U. S. 496-97 (1881), cases. « Given v. Wright, 117 U. S. 648, 6S6 (1886). "' Van Brocklin v. Tennessee, 117 U. S. 163-80 (1886), cases. i Kelly «. Pittsburgh, 104 U. S. 78 (1881), Miller, J. -• Hagar v. Eeclamation District, 111 U. S. 708 (1884); 18 F. E. 449-60 (1883), cases. ■"Dillon, Munic. Corp. § 940; Lambom v. Commis- sioners, 97 U. S. 181 (1877); Union Pacific R. Co. v. Com- missioners, 98 id. 541 (1878). which a statute provides is exclusive." See Pro- test, 1. Compounds of tax are: tax-assessor, tax-cerW^caie, tax-deed, tax-/iind, tax-ievj/, tax-Zien, tax-paj/er, tax- receipt^ t£oc-receive7-, tax-saZe, qq. v. Other common words are, taxable, non-taxable, taxables, qq. v. See Assess, 1; Charter, S; Circulation; Com- merce; Corporation; District, 2; Dutt, 2; Escape, 2; Franchise, 1; Impair; Import; Impost; Income; Lew, 8 (1); List, 3; Mandamus; Privilege, 1; Pro- cess, 1, Due; Rate, 2; Sale; School; Scrip; Seota- rlan; Stock, 3 (3); Suffer; Tonnaqe; Worship. TEACHER. He is not an " officer" in the ordinary sense : he is not usually elected or appointed, but is employed — contracted with.2 See Parens, In loco; Punishment, Corporal: SCHOOL. TEAM. Within the meaning of an ex- emption law, one or more horses, with their harness and ^the vehicle to which they are customarily attached for use.' The animals which a hduseholder or the head of a family uses in the business of pro- viding for his family.* In a statute allowing damages for injury from the condition of a highway, was held to include a horse driven with other horses unharnessed." Eeferring to turning out on meeting in a highway, may mean a vehicle, with animals drawing it, and used for loads instead of persons." A statute making a railroad company liable in dam- ages for injuring ".live-stock running at large " at a place where it should have fenced its track, was held to include a runaway "team," that is, two or more horses, oxen or other beasts, harnessed together to the same vehicle for driving.'^ Team work. In a statute exempting from execution two horses kept and used for team work, means work done by a team as a substantial part of a man's business. ^ Teamster. One who drives a team ; also, one who habitually drives a team, or is en- gaged in the business of teaming as a means of earning a livelihood.' See Caeeier, Com- mon ; EOAD, 1, Law of. " Snyder v. Marks, 109 U. S. 189, 193 (1883), cases. See generally 18 F. E. 445-65 (1883), cases. 2 Seymour u. Over-Elver School District, 53 Conn. 609 (1885). On rights as between teacher and pupil, see 25 Cent. Law J. 339 (1887), cases. " Dains v. Prosser, 32 Barb. 291 (1860), cases; Brown V. Davis, 9 Hun, 44 (1876). ■> Wilcox 11. Hawley, 81 N. T. 653 (1864); 47 Barb. 497. " Elliott V. Lisbon, 57 N. H. 29-30 (1876), cases. " Hotchkiss V. Hoy, 41 Conn. 577 (1874). ' Inman v. Chicago, &c. R. Co., 60 Iowa, 463 (1883). 'Hickock V. Thayer, 49 Vt. 375 (1877). •See Brusie v. Urifflth, 34 Cal. 306 (1867); Elder v Williams, 16 Nev. 419 (1882): Story, Bailm. S 496. TECHNICAL 1011 TELEGRAPH TECHiaCAL.i 1. Pertaining to an art, trade, science, profession, or vocation ; arti- ficial. Technical language is construed in the sense gen- erally received in the business or calling to which the subject-matter relates, unless it is apparent that the words were understood in another sense. 3. As employed in law or jurisprudence; legal; opposed, in some relations, to actual and moral; as, technical or a technical — es- toppel, fraud, malice, trust, qq. v. See fur- ther Aet, 3; CoNSTETJCTiON ; Contract; In- dictment; Statute; Will, 2; French; Latin. Technical culpability exists where a person trans- gresses a law without intending to do an unlawful act. Thus, the merest touching of another's person or clothing may amount to a battery, and be punishable as a crime. See also Fraud, Constructive. Teclinicalities are unintended applications of rules designed to give effect to principles imperfectly understood, and rigidly adhered to from fear that departure from them should relax legal rules in gen- eral. . . Once established, they are adhered to partly because they are looked upon as the outworks of the principles which they distort; partly from a perception of the truth that an inflexible adherence to established rules, even at the expense of particular hardships, is essential to the impartial odministi'ation of justice; and partly because to a certain kind of mind arbitrary rules are pleasant in themselves. . As long as the doctrines of any department of knowl- edge are supposed to be absolutely true, technicalities are devised and maintained by those who believe in the doctrines, and are treated as a reductio ad ab- surdum by those who deny their truth. Wider experi- ence demonstrates that a technicality or absurd in- ference from an alleged truth shows not that the proposition from which it follows is wholly untrue, but only that it is imperfectly expressed. Technical- ities thus mark the progress of knowledge. ' See Cer- tainty. TELEGRAPH.' v. To write afar off or at a distance. A wire or wires used for the purpose of telegraphic communication, with any casing, coating, tube, or pipe inclosing the same, and any apparatus connected therewith for the purpose of such communication.* Includes any apparatus for transmitting messages or other communications by means of electric signals.'' See Cable. > Gk. technicos', belonging to an art. 2 3 Stephen's History Grim. LawEng. 347-48. = Gk. tele, afar; graph'ein, to write. < 26 & 27 Vict. c. 112 — Telegraph Act of 1863. 5 32 & 33 Vict. c. 73 — Telegraph Aet of 1869. See Telephone. Telegram. Any message or other com- munication transmitted or intended for transmission by telegraph. Morse was the first and original inventor of the electro-magnetic telegraph, for which a patent was is- sued to him in 1840, and re-issued in 1848. His inven- tion was prior, as well as superior, to those of Steinhiel of Munich, and Wheatstone and Davy of England." Though in some respects a telegraph company is like a common carrier, it is not strictly a common carrier, nor is it held to the same degree of responsi- bility. A common carrier is an insurer; a telegraph company is held only to a reasonable degree of care and diligence, in proportion to the degree of responsi- bility. Since telegraph companies undertake to exercise a public employment, in many respects analogous to that of a common carrier, they must bring to the em- ployment that degree of skill and care which a pru- dent man, under the circumstances, would exercise in his own affairs; and any stipulation intended to re- lieve them from this duty, or to restrict their liability for its non-use, is forbidden by the demands of sound public policy.^ A telegraph company, by express contract or by reasonable rules contained in a printed notice so brought to the knowledge of a patron as to create an implied contract, may limit its liability for delay or error in transmitting and delivering a message, except as to such delay or error as is caused by its own mis- conduct or gross want of care. • Most of the rules and regulations embodied in the printed blanks for messages have been upheld by the courts as reasonable requirements. While the contract for a message is made only with the sender, companies have been held liable to re- ceivers who have been misled to their damage by neg- ligence in the companies' servants. When a message is sent over a connecting line, the same principles are applied as in the case of common carriers of merchandise. A company cannot protect itself against gross neg- ligence or incompetency in its employees, or as against a remediable imperfection in its instruments. It must receive all messages offered, except such as are illegal or immoral in character, unreasonably lengthy, or in disregard of reasonable rules; and must send them in the order in which they are received, preference being given to government messages. Every message is to be sent as written; if illegible, it may be refused. Liability for negligence extends to the natiu'al and immediate consequences only.^ 1 O'Kemy V. Morse, 15 How. 134, 63 (18S3). » Smith t;. Western Union Tel. Co., 83 Ky. 114 (188B), cases. ' See generally Western Union Tel. Co. v. Reynolds, 77 Va. 180-83 (1883), cases; Pinckney v. Western Union Co., 19 S. C. 82-85 (1882), cases; Western Union Co. v. Blanchard, 68 Ga. 299, 308-10 (1882), cases; White v. Western Union Co., 14 F. R. 710, 718-28 (1882), cases; Jones V. Western Union Co.. 18 id. 717, 718-19 (1883), cases; Southe^'n Express Company v. Caldwell, 21 Wall. 270 (1874), cases; 24 Am. Law Reg. 331-39 (1885), TELEGRAPH 1012 TELEGRAPH In Dryburg's case, the message, as sent from New York city, read " Send two hand bouquets, very hand- same, one of five, one of ten dollars." As received in Philadelphia it read: "Send two hundred bouquets," etc. Before the error was discovered, Dryburg, a florist, had cut flowers to the amount of one himdred dollars, as a jury found.', A telegram, like a letter, may constitute au admis- sion, and complete a contract." To charge the sender the original draft must be produced. The sending operator m ay be called to prove the sender's presence. ^ The company or operator may be compelled to dis- close' the contents of a dispatch, unless a statute pro- vides otherwise.* An accepted telegram is a sufficient memorandum within Statute of Frauds " Congress may regulate communication by tele- graph between the States. And where a State has given exclusive privileges to one company, which would preclude free intercourse, Congress, under the powers "to regulate commerce " and "to establish post-offices and post-roads," may provide for the con- struction of competing lines.^ See Commerce. A telegraph company holds the same relation to commerce as a carrier of messages that' a railroad company holds as a carrier of goods. Both companies are instruments of commerce, and their business is commerce itself. Fnom their essentially different char- acteristics, the regulations suitable for one of these kinds of commerce would be inapplicable to the other. Within the reservation that it does not encroach upon the exercise of the powers vested in Congress, a, State may make such provisions in respect to the buildings, poles and wires of the companies within its jurisdiction as the comfort and convenience of the community may require. '^ cases; 2 Kent, 12 ed. [829], cases; 2 Pars. Contr. 6 ed. 257/; Shearm. & Redf. Neg. §§ 549-71; 11 F. R. 1,10; 27 Iowa, 451; 113 Mass. 301; 15 Mich. 532; 37 Mo. 472; 48 N. Y. 132; 62 Pa. 88; 5 S. C. 358; 19 id. 71; Allen's ^el. Cases; Scott & Jam. Tel. ■1 New York & Wash. Tel. Co. v. Diyburg, 35 Fa. 298 (1860). See further, as to negligence by operator, Wabash R, Co, v. McDaniels, Carrier, Common. 2 Trevor v. Wood, 36 N. Y. 307 (1867): 93 Am. Dec. 514-17 (1887), cases; Utley v. Donaldson, 94 U. S. 29 (1876); 4 Biss. 357; 1 Woods, 286; 4 Dill. 431; 39 Iowa, 39; 103 Mass. 327; 20 Mo. 254; 35 Barb. 463; 36N. Y. 307; 37 id. 457; 41 id. 544; 30 Wis. 605. 3 See 14 Cent. Law J. 262-65 (1882), cases; 3 Dill. 571; 40 Conn. 363; 25 111. 591; 82 id. 73; 49 Ind. 2£3; 15 La. An. 668; 7 Allen, 548; 37 Miss. 682; 48 N. H. 488; 40 Pa. 9; 29 Vt. 127; 40 Wis. 431 ; 18 U; C, Q. B. 60. 4 27 Am. Law Beg. 65-79 (1879), cases; 5 South. Law Rev. 473-520 (1879), cases; 3 Dill. 567; 15 F. R. 733; 58 Me. 367; 7 W. Va. 544; 2 Pars. S. Cas. 274; 13 West. Jut. 123; 20 Law Times, 431. 6 Godwin v. Francis, L. B., C. P. 293 (1870); Reuss u Pictsley, L. R., t Ex. 343 (1866); 39 L. J., C. P. 121; 4 H. & C. 588; 6 U. C, C. P. 321. fl Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 9 (1877), Waite, C. J. ; 125 id. 185. ' Western Union Tel. Co. v. Pendleton, 133 U. S. 356- 59 (1887). Any telegraph company organized under the laws of any State, shall have the right to construct, main- tain, and operate lines through and over any portion of the public domain, over and along any military or post-road, and over, under, or across the navigable streams or waters of the United States; the lines not to obstruct navigation, or interfere with ordinary travel. ^ Acceptance of that provision, as far as government business is concerned, makes the company agent of the United States. ^ But the privilege conferred does not involve ex- emption from the ordinary burdens of taxation in a State within which a company may own or operate lines. ^ A railroad being a post-road that act of 1866 is par- amount over any agreement for the exclusive use of a road by one company.'* A State may not tax inter-State messages: they are commerce, as well as in the nature of postal serv- ice, and exempt from State regulations, except as to regulations of a strictly police character. Any reg- ulation by way of a tax upon the occupation or business of transmitting messages between different States, or as a license to transact business, is uncon- stitutional; f* Nor may a State tax a company's receipts from inter-State messages.^ Whether the poles, wires, and instruments are part of the realty to which they are annexed, depends upon the intent with which they were erected.' A city may determine the conditions upon which a company shall pass through its limits. After expira- tion of the time for erecting poles, etc., in pursuance of an ordinance, express direction from the city coun- cil, and notice to the company, should be given, he- fore the mayor proceeds to remove the poles. "^ It is no part of the corporate duty of a company to collect and send out market reports.^ > R. S. § 5263: Act 24 July, 1866. * Western Union Tel. Co. v. Texas, 105 U. S. 464 (1881). 3 Western Union Tel. Co. v. Massachusetts, 125 U. S. 530 (1888). * Western Union Tel. Co. u Baltimore & Ohio Tel. Co., 19 F. R. 660 (1884), Wallace, X; Western Union Tel. Co. V. Burlington, &c. R. Co., 3 McCrary, 135 (1882), cases; Same v. Baltimore, &c. Tel. Co., 23 F. R. 12 (1885), cases. ° Leloup V. Port of Mobile, 137 U: S. 640 (1883). The plaintiff, as agent for the Western Union Co., had been fined for refusing to pay S225 imposed by ordi- nance as an annual license tax. Western Union Tel. Co. V. Texas, 105 U. S. 460 (18S1), followed. 8 Ratfcerman v. Western Union Tel. Co., 127 U. S. 411, 423(1888): Ohio R. S. §3778; Western Union Tel. Co. v. Pennsylvania, 128 id. 39 (1888). 7 Western Union Tel. Co. v. Burlington, &c. E. Co., 3 McCrary, 139 (1883). 8 Mutual Union Tel. Co. v. Chicago, 16 F. E. 309 (1883). See also American Union Tel. Co. v. Town of Harrison, 31 N. J. B. 627 (1879); 21 Alb. Law J. 44-46 (1880), cases; 37 Cent. Law J. 447-51 (1888), cases. 8 Metropolitan Grain, &c. Stock Exchange v. Mutual Union Tel. Co., 11 Biss. 531 ( TELEPHONE 1013 TELEPHONE As to the use of the public domain and materials, the priority of Government messages, and the pur- chase of lines by the Government, see at length R. S. tit. LXV, §§ 5263-09. TELEPHONE.! A conversation held through a telephone is a message, or a com- munication transmitted by a telegraph, — a telegram. - A telephone is a telegraph. The idea con- veyed by each term is the sending of intelli- gence to a distance.' In a general sense, " telephone" applies to any instrument or apparatus which trans- niits sound beyond the limits of ordinary audibility. But the word is technically and primarily restricted to an instrument or de- vice which transmits sound by means of electricity and wires similar to telegraphic wires. In a secondary sense, the term refers generally to the art of telephony ; and, more particularly, to the apparatus, as an entirety, used in the transmission, as well as in the reception, of telephonic messages.'' The discoverer of a new art is entitled to the broadest claim for it which can be permitted in any case ; not to the abstract right to the art without re- gard to the means, but to all the means and processes which he has both invented and claimed.? Edison's patent, granted July 80, 1877, infringed on Bell's patent of December 9, 1876." In the five cases (bills for the infringement of letters patent No. 174,465, of March 7, 1876, and No. 186,787, of January 30, 1877, to Alexander Graham Bell, for "improvements in telegraphy " and " electric teleph- ony," respectively) between the American Bell Tele- phone Company and Dolbear et al., the Molecular, the Clay Commercial, the People's, and the Overland Telephone Companies, decided March 19, 1888, by the Supreme Court, and known as the Telephone Cases or Dolbear v. American Bell Telephone Company,'' > Gk. tele, far: phone, sound, voice. Whence te-16ph'- ony, tel-e-ph5n'-ic. ' Attorney-General v. Edison Telephone CO., 43 L. T. 703 (1881), Stephen, J. ; Telegraph Acts of 1863 — 36 & 27 Vict. c. 112, and of 1869 — 32 & 33 Vict. o. 73. » Commonwealth v. Pennsylvania Telephone Co., 42 Leg. Int. 180 (Pa., 1885) — Revenue Act 7 June, 1879. « Haughey's Case (Hockett v. State), 105 III. 260, 261 (1885), Niblaok, 0. J. ; ib. .599; Central Union Telephone Co. V. Bradbury, 106 id. 9 (188S). ■» American Bell Telephone Co. v. Spencer, 8 F. R. 509 (1831), Lowell, Cir. J.; Same v. Dolbear, 15 id. 448 (1883), Gray, J., 17 id. 604 (1883). • United Telephone Co. v. Harrison, L. R., 21 C. D. 720 (1882). ' 126 U. S. 1, 631-73, Waite, C. J., Miller, Matthews, and Blatchford, JJ., concurring in afBrming the de- crees of the lower (circuit) courts which supported the patent granted to Bell ; Bradley, Field, and Harlan, JJ., dissenting, pp. 573-77. Gray, J., not being present, and Chief Justice Waite, delivering the opinion of the ma- jority (four) of the court, said, in substance, as fol- lows: The important question in each of these cases is as to the scope of the fifth claim of the patent of March 7, 1876, which is as follows: "The method of and appa- ratus for transmitting vocal or other sounds telegraph- ically, as herein described, by causing electrical undu- lations, similar in form to the vibrations of the air accompanying the said vocal or other sounds, sub- stantially as set forth." It is contended that this em- braces the art of transferring to or impressing upon a current of electricity the vibrations of air produced by the human voice in articulate speech, in a way that the speech will be carried to and received by a listener at a distance on the line of the current. Articulate speech is not mentioned by name in the patent. The invention, as described, "consists in the employment of a vibratory or undulatory current of electricity, in contradistinction to a merely intermittent or pulsatory current, and of a method of and apparatus for pro- ducing electrical undulations upon the line wire." The question is not whether " vocal sounds " and " ar- ticulate speech " are used synonymously as scientific terms, but whether the sound of articulate speech is one of the " vocal or other sounds *' referred to in the claim for the patent. We have no hesitation in saying that it is. In this art — or, what is the same thing under the patent law, this process, this waj', of transmitting speech — electricity, one of the forces of natui-e, is employed; but electricity, left to itself, will not do what is wanted. The art consists in so controlling the force as to make it accomphsh the purpose. It had long been believed that, if the vibrations of air caused by the voice in speaking could be reproduced at a dis- tance by means of electricity, the speech itself would be reproduced and understood. Hdw to do it was the question. Bell discovered that it could be done by gradually changing the intensity of a continuous elec- tric current, so as to make it correspond exactly to the changes in the density of the air caused by the sound of the voice. This was his art. He then devised a way in which these changes of intensity could be made, and speech actually transmitted. Thus his art was put in a condition tor practical use. In doing this, both discovery and invention, in the popular sense of those terms, were involved; discovery in find- ing the art, and invention in devising the means of making it useful. For such discoveries and inventions the law has given the discoverer and inventor the right to a patent, as discoverer, for the useful art, process, method of doing a thing, he has found; and, as in- ventor, for the means he has devised to make his dis- covery one of actual value. Other inventors may compete with him for the ways of giving effect to the Lamar, J., not being a member of the court, at the time of argument (Jan. 24 — Feb. 8, 1887), took no part in the decision. The history of the cases, including pleadings, exhibits, etc., covers pp. 1-149; and the ar- guments of counsel, 149-531. A petition for a rehear- ing was filed May 7, 1888, but no Justice who united in the opinion having requested the rehearing, the appli- cation was denied, 684. TELEPHONE 1014 TELEPHONE discovery, but the new art he has found will belong to him, and to those claiming under him, diaring the life of his patent. If another discovers a different art or method of doing the same thing, reduces it to practical use, and gets a patent for his discovery, the new dis- covery will be the property of that discoverer ; and thereafter the two will be permitted to operate each in his own way, without interference by the other. The only question between them will be whether the second discovery is in fact different from the first. The patent for the art does not necessarily involve a patent for the particular means employed for using it. Indeed, the mention of any means, in the specification or descriptive portion of the patent, is only necessary to show that the art can be used. The effect of the decision la the case of O^Reilly v. Morse, 15 How. 63, 106 (.1853), was that the use of mag- netism as a motive power, without regard to the par- ticular process with which it was connected in the patent, could not be claimed, but that its use in that connection could. In the present cage the claim is not for the use of a current of electricity in its natui-al state as it comes from the battery, but for putting a continuous current, in a closed circuit, into a certain specified condition, suited to the transmission of vocal and other sounds, and using it in that condition for that purpose. So far as at present known, without this peculiar change in its condition it will not serve as a medium for the transmission of speech, but with the change it will. Bell was the first to discover this fact, and how to put such a current in such a condition ; and what he claims is its use in that condition for that pur- pose, just as Morse claimed his current in his condition for his purpose. Bell's claim is in all respects sustained by the authority of Morse's case. It may be that elec- tiicity cannot be used at all for the transmission of speech except in the way Bell has discovered, and that therefore, practically, his patent gives him its exclu- sive use for that purpose, but that does not make his claim for the use of electricity distinct from the par- ticular process with which it is connected in his pat- ent. It will, if true, show more clearly the importance of,his discovery; it will not invalidate his patent. When Bell applied for his patent, it is true that he had never actually transmitted telegraphically spoken words so that they could be distinctly heard and under- stood at the receiving end of his line, but in his specifi- cation he did describe accurately, and with clearness, his process, that is to say, the exact electrical condition that must be created to accomplish his purpose, and he also described, with sufficient precision to enable, one of ordinary skill in such matters to make it, a form of apparatus which, if used in the way pointed out, would produce the required effect. The particu- lar instrument which he had, and which he used in his experiments, did not, under the circumstances in which it was tried, reproduce the words spoken so that they could be clearly understood, but the proof is abundant, and of the most convincing character, that other instruments, carefully constructed, and made exactly in accordance with the specification, without any additions whatever, have operated, and will op- erate, successfully. The law does not require that a discoverer or inventor, in order to get a patent for a process, must have succeeded in bringing his ait to the highest degree of perfection; it is enough if he describes his method with sufficient clearness and pre- cision to enable those skilled in the matter to under- stand what the process is, and if he points out some practicable way of putting it into operation. This Bell did. The patent is for both the magneto and the variable resistance methods, and for th6 particular magneto apparatus which is described, or its equivalent. There is no patent for any variable resistance apparatus. When Bell got his patent he tiiought the magneto method was the best. Indeed, he said, in express terms, he preferred it, but that does not exclude the use of the other, if it turns out to be the most desir- able way of using the process. Precisely how the subtle force operates under Bell's ti'eatment, or what form it takes, no one can tell. All we know is that he found out that, by changing the intensity of a continuous current so as to make it cor- respond exactly with the changes in the density of air caused by sonorous vibrations, vocal and other sounds could be transmitted and heard at a distance. This was the thing to be done, and Bell discovered the way of doing it. He uses electricity as a medium for that purpose, just as air is used within speaking dis- tance. In effect he prolongs the air vibrations by the use of electricity. Reis discovered how to reproduce musical tones. He could sing through his apparatus, but he could not talk. In his first paper on the sjabjectjie said " I have succeeded in constructing an apparatus with which I am enabled to reproduce the the tones of various in- struments, and even to a certain extent the human voice." Although this paper was published in 1861, and Bell did not appear as a worker in the field until fifteen years afterward, no advance had been made, by the use of what he had contrived or of his method, toward the great end to be accomplished. He caused his instruments to be put on the market for sale, and both he and those whom he employed for that purpose called attention to them by prospectus, catalogue, and otherwise, and to describe what they were and what they would do. . . It is not contended that Reis had ever succeeded in actually transmittinj; speech, but only that his instrument was capable of it if he had known how. With the help of Bell's discoveries in 1875 we now know why he failed. As early as 1854, Bourseul had said, substantially, that, if the vibrations of air' produced by the human, voice in articulate speech could be reproduced by means of electricity at a distance, the speech itself woujd be heard there. As a means of stimulating inquiry to that end he called attention to the principle on which the electric tele- graph was based and suggested an application of that principle to such a purpose. That R^s was working all the time upon the principle of the telegraph as thus suggested by Bourseul, is abundantly proven. . . It was left to Bell to discover that the failure of Reis was due not to workmanship but to the principle which was adopted as a basis of what had to be done. He found that what he called the "intermittent cur- rent " — one caused by alternately opening and closing the circuit — could not be made under any circum- stances to reproduce the delicate forms of the air vibrations caused by the human voice in articulate TELEPHONE 1015 TELEPHONE speech, but that the true way was to operate on an unbroken current by increasing and diminisbiUK its intensity. This he called a "vibratory or undulatory current," not because the current was supposed to actually take that form, but because it expressed with sufficient accuracy bis idea of a current which was subjected to gradual ehacges of intensity exactly ' analogous to the changes of density in the air occa^ sioned by its vibrations. Such was his discoverj-, and it was new. Eeis never thought of it, and he failed to transmit speech telegraphically. Bell did, and he succeeded. Dr. Van der Weyde copied Eeis, and it was not until after Bell's success that he found out how to use a Eeis instrument so as to make it transmit speech. The patent office was right In holding that James W. McDonough had been anticipated by Eeis. The patents of Cromwell F. Varley, of London, were tor " improve- ments in electric teleeraphs." His purpose was to superpose upon the ordinary signal current another, which, by the action of the make-and-break principle of the telegraph, would do the work he wanted. As to the alleged anticipation of Daniel Drawbaugh between three and four hundred witnesses were pro- duced whose testimony was taken to establish the priority of his invention. No one of these ^^ itnesses could tell how Drawbaugh's instruments were orig- inally constructed, or what the process was by which sound was transmitted when the instruments were in use. All that any of the witnesses could say was that they had used one or more of the instru- ments at Drawbaugh's shop, had heard sounds and sometimes spoken words through them, and that Drawbaugh told them the sound was carried on the wire by electricity. There was nothing whatever pro- duced in print or in writing on the subject; not even a memorandum or a drawing of any kind. And there is nothing in the testimony to show that Drawbaugh ever told any one how his earlier Instruments were made, or what his process was, until he was called as a witness in December, 1881, and explained it in his testimony. This was nearly twenty years after he had begun his experiments, nearly seven after he had made and used alleged "perfectly adjusted and finished magneto instruments," and more than five after microphones as good, or nearly as good, as those of Blake, which were not invented until 1878, had been constructed in his shop. It was also nearly six years after the date of Bell's patent, more than five after the success of Bell's discovery had been proclaimed at the Centennial Exposition in Philadelphia, four after his process had got into public use, three after it had be- come an established success, and t^vo after he had brought his first suit for infringement. In the mean- time. Bell's discovery had been heralded to the world, and Drawbaugh had had abundant means and ample opportunities to make his claim known. During part of this time he had treated his discovery as of second- ary importance, and had devoted himself to the ad- vancement of other inventions of his of comparatively small merit. In addition, the instruments of Draw- baugh were fairly tested in March, 1883, at the instance of the Bell Company, and failed to produce satisfac- tory results; when offered in evidence, they were in mere "remains." Two years afterward other repro- ductions were presented, differently constructed, and used in a different way. These would "talk," but they were neither made nor used in the same way as the original. These second experiments conclusively showed that the original instruments could not have done what the witnesses supposed they did, and that what they heard was produced by some other means than an electric speaking telephone. We do not doubt that Drawbaugh may have conceived the idea that speech could be transmitted by means of electric- it.Y and that he was experimenting upon that subject, but to hold that he discovered the art of doing it be- fore Bell did would be to construe testimony without regard to the ordinary laws that govern human con- duct. We therefore decide that the Drawbaugh de- fense has not been made out. The charge that after Bell swore to his application on January SO, 1876, and after the application had been formally filed in the patent-office on February 14, 1876, an examiner, who got knowledge of the Gray caveat put in afterward on the same day, disclosed its contents to Bell's attorneys, and that they were al- lowed to withdraw the application, change it so as to include Gray's variable resistance method over Bell's signature, and over the jurat, and then restore the application to the files, thus materially altered, as if it were the original, and all this between February 14 and 19, is not sustained by the testimony. Nor was Bell's claim as a whole, being' for an elec- tric telephone, in the construction of which the plate or diaphragm, the permanent magnet, the sounding box, the speaking tube, etc., or any of them, are used, ' and not for the several things in and of themselves, anticipated by the magnet in Hughes' printing tele- graph, as described in Schellen's work. The conclusion of the court then is that Bell's patent gives to him, and those who claim under him, the ex- clusive use of his art for the conveyance of articulate speech until the expiration of the statutory term of his patented rights. Mr. Justice Bradley, delivering the opinion of the minority (three) of the court, said, in substance : With- out expressing an opinion on other issues, the point on which we dissent relates to the defense made on the alleged invention of Daniel Drawbaugh. We think that Drawbaugh anticipated the invention of Bell, who, at most, is not claimed to have invented the speaking tolephone prior to June 10, 187.^; ^nd that the evidence on this point is so overwhelming tbat it cannot be overcome. The question is one of /oc^ de- pending upon the weight of the evidence, and involves no question of law. . . We are satisfied that Draw- baugh produced, as early as 1869, an electrical instru- ment by which he transmitted speech, so as to be heard and underatood, by means of a wire and the employment of variable resistance to the electrical current. This resistance was produced by causing the current to pass through pulverized charcoal, carbon, and other substances, acted upon by the vibrations of the voice in speaking. This was the wliole invention as far as the principle of variable resistance is con- cerned. And we are also satisfied that as early as 1871 he reproduced articulate speech, at a distance, by means of a current of electricity, subjected by elec- trical induction to undulations corresponding to the TELEPHONE 1016 TEMPORARY vibrations of the voice in speaking,— a process siib- stantially the same as that which is claimed in Bell's patent. Drawbaug-h certainly had the principle, and accom- plished the result. Perhaps without the aid of Bell the speaking telephone might not have been brought into public use to this day ; but that Drawbaugh pro- duced it there can hardly be a reasonable doubt. We do not question Bell's merits. He appreciated the im- portance of the invention, and brought it before the public in such a manner as to attract to it the atten- tion of the scientific world. His professional experi- ence and attainments enabled him to see, at a glance, that it was one of the great discoveries of the century. Drawbaugh was a different sort of a man. He did/ not see it in this halo of hght. Had he done so, he would have taken measures to interest other persons with him' in it, and to have brought it out to public admiration and use. He was only a plain mechanic; somewhat better instructed than most ordinary nie- chanics, — a man of more reading, of better intelli- gence. But he looked upon what he had made more as a curiosity than as a matter of financial, scientific, or public importance. This explains why he did not take more pains to bring it to public notice. Another cause of his delay was that he was ever indulging the hope of producing speech at the receiving end of the line loud enough to be heard across a room, like the . voice of a person speaking in an ordinary tone. . . The proof amounts to demonstration, from the testi- mony of Bell himself, and his assistant, that he never transmitted an intelligible word through an electrical instrument, nor produced any instrument that would transmit an intelligible word, until after his patent had been issued ; while, for years before, Drawbaugh had talked through his, sb that words and sentences had again and again been distinctly heani. Bell was original, if not first. He preconceived the principle on which the result must be obtained by that forecast which is acquired from scientific knowledge; but in this, as in the actual production of the thing, he was, according to the preponderance of the evidence, an- ticipated by a man of far humbler pretensions. Draw- baugh invented the t-elephone without appreciating the importance and completeness of his invention. Bell subsequently projected it on the basis of scientific inference, and took out a patent for it. As the laws do not award a patent to one ■nho was not the first to make an invention, we think that Bell's patent is void by the anticipation of Drawbaugh. In 1887, the solicitor-general of the United States filed a bill in equity to have canceled the letters pat- ent granted to Bell on the ground that they had been procured by fraud. The lower court held, on demur- rer, that, as there was no express authority for it, the bill would not lie. The Supreme Court decided that such authority was not essential, that the duty of the government' to protect the people against deception when valuable privileges were confeiTed upon indi- viduals, whether by means of patents for land or for inventions, afforded a sufficient basis for entertaining the bill; and that Congress in providing (R. S. § 4920) a limited form of relief for private persons, in such cases, did not intend to take away the affirmative re- lief which has always existed in behalf of thp United States. » The employment of telephone companies is a public one — they are common carriers of messages, and they must therefore serve the community without dis- crimination. ^ The use of patented property, devoted to a public use, is subject to control by State legislation, where the pubUc welfare requires it. Discrimination by a telephone company against a telegraph company with'' respect to receiving messages is void as against public policy, and may be void as against a statute. ^ A State may prescribe the maximum price a tele- phone company may charge for the use of an instru- ment. The property of the company being devoted to a public use is a subject of legislative regulation, al- though some of its appliances are patented under the Constitution and laws of the United States.* A subscriber, by'using profane or vulgar langtfage, may forfeit his right to be supplied with an instru- ment.s TELLER. One who tells or counts the moneys of a bank, received or paid out,^ Where the business of the bank is large, there may be a receiving teller and a. paying teller.^ See Cash- ier. TEMPEKANCE; TEMPERATE. >See Drunkard ; Intemperate ; Intoxicate ; Pol- icy, 3 ; Prohibition, 2 ; Sumptuary. TEMPEST. Strictly speaking, a storm of extreme violencej a current of wind rush- ing with great velocity. Damage done by ice, at the time of high water, but in ordinary wind and weather, is not then the result of a tempest.' TEMPORARY, That which is to last for a period of time, usually not long con- tinued. Compare Permanent. Power in the authorities of a city to close liquor shops " temporarily," is not well executed by an order closing them until further notice. The order, in such case, should prescribe a limited time.^ 1 United States u American Bell Telephone Co., 128 U. S. 315, 350 (1888), reversing Same v. Same, 32 F. R. 591 USST). 2 State V. Bell Telephone Co., 22 Alb. Law J. 363 (1880), Thayer, J. ; Louisville Transfer Co. v. American Dist. Telephone Co., 24 id. 283 (1881); American Rapid Telegraph Co. v. Connecticut Telephone Co., 49 Conn. 352 (1881). ^ State V. Bell Telephone Co., and Western Union Telegraph Co., 36 Ohio St. 296 (18S0); Bell Telephone Co. V. Commonwealth exrel. Baltimore, & Ohio Tele- graph Co., IT W. N. C. 505 (Pa., 1886). 4 Haughey"s Case, 105 111. 250 (I8S5). *Pugh V. Telephone Association of Cincinnati, 27 Alb. Law J. 163, 161 (1883). « Mussey v. Eagle Bank, 9 Mete. 311 (1845). ' [Thistle V. Union Forwarding, &c. Co., 29 U. C. C. P. 84 (1878). 6 State V. Strauss, 49 Md. 299 (1878). TEMPU8 1017 TENANT TEMPUS. L. Time ; limited time. Nullum tempus occurrit regi. No time runs against the king. Nullum tem- pus occurrit reiputalicBB. No time runs against the commonwealth. Lapse of time, at common law, will not prevent the sov- ereign from asserting a right ; laches cannot be alleged against the state. The sovereign is not included in statutes of limita- tions unless expressly named. But possession for sixty years is a bar even against the prerogative.' It is a settled principle that the king is not barred unless named in the statute. The ground upon which the maxim rests is the principle of public policy (which belongs alike to all governments) that the pub- lic interests should not be prejudiced by the negli- gence of pubUo officers to whose care they are con- fided. But statutes which regulate proceedings may include the government, without express reference to it.' No presumption of payment against the govern- ment arises from mere lapse of time.^ The doctrine, as respects civil rights of action and prosecutions for offenses, has been generally quali- fied by legislation.* Prior tempore, prior jure. Earlier in time, stronger in right. First in time, first in right. Priority gives precedence. The principle applies where the equities are equal ; when unequal, the superior equity prevails. = A patentee's title rests entirely on priority of in- vention, g. V. Priority in the drawing of a check gives the holder no preference of payment over checks subsequently drawn. The principle is afso illustrated in the prioiity al- lowed by attachment and lien laws.' Tempore. In the time of. TEN PINS. See Game, 3. TENANT.^ In its largest sense, any one who holds lands, whatever the nature or ex- ■ tent of his interest. ^ One who holds lands by any kind of title, whether for years, for life, or in fee. 9 Ahnost all realty is supposed to be holden of some superior lord, in consideration of services to be ren- dered by the possessor. The thing held is styled the 1 1 Bl. Com. 847; 3 id. 307. 2 United States!;. Knight, 14 Pet. 315 (1840); Fink v. O'Neil, 106 U. S. 280-82 (1882), cases. "United States v. Thompson, 98 U. S. 489-90 (1878), C£IS6S •i Broom, Max. 65. See 70 Ala. 519; 38 Ohio St. 86; 66 Pa. 238. „ „ „, , 5 Neslin-u. Wells, 104 U. S. 441 (1881) ; 1 Story, Eq. § 64 d. • 8 Kent, 123; Broom, Max. 303-64; 2 Bl. Com. 10, 18; 29 Minn. 287; 33 Ohio St. 98. ' F. tenant, holding: L. tenere, to hold. 6 [Coles V. Marquand, 2 Hill, 449 (1842) 8 Hosford V. Ballard, 39 N. Y. 151 ""'" tenement, the possessor thereof the tenant, and the manner of possession a tenure, or tenancy. ' In popular language, "tenant" stands opposed to " landlord," and implies that the land, house, or other real property is not the tenant's own but another per- son's of whom he holds immediately; and this sense is recognized in jurisprudence, as when the law relat- ing to "landlord and tenant" is spoken of. But, speaking broadly, within the understanding of the law, every possessor of landed property is a tenant, whether the property is absolutely his own or is leased of another person. A mere lodger may not be re- garded as a tenant.'^ Tenants are, or have been, distinguished, by terms referring to the nature of the estate held by them. At common law, the first three descriptive designa- tions following were generic: Tenants in common. Such as hold by several and distinct titles, but by unity of possession; because none knows his own severalty, and therefore all occupy promiscu- ously '■' , This tenancy, says Blackstone, is found where there is a unity of possession merely, with, perhaps, an en- tire disunion of interest, title, and time. One tenant may hold in fee-simple, the other in fee-tail or for life; or, one may hold by descent, the other by purchase, or each by purchase from a different grantor; or, again, the estate of one may have been vested for fifty years, and that of the other for a single day. The only unity is that of possession: because no man can certainly tell which part is his own. The estate may be created by destroying the unity of title or interest in an estate in joint- tenancy or coparcenary, or by special limitation in a deed. The tenants may be com- pelled to make partition; blit not so by early common law. They take by distinct moieties; no one has any entirety of interest: hence there is no sm-vivorship be- tween them. As they differ from estates in severalty only in having the possession blended, the estate is dissolved by uniting all interests in one tenant, or by partition of the interests.* Tenants in common, says Kent, are persons who hold by unity of possession: they may hold by several and distmct titles, or by title derived at the same time, by the same deed or descent. They are seized per my and not per tout. In this country, the estate may be created by descent or by deed. The tenants are viewed as having distinct freeholds; and each conveys as if seized of the entirety. They sue separately as to realty, but joio to actions relating to an indivisible thing, as, for trespass on the land, or for rent. Ac- tions of waste and account lie between them.' Joint-tenants. An estate in joint-tenancy is where lands and tenements are granted to 1 [2 Bl. Com. 59. " White V. Maynard, 111 Mass. 258 (1872). a 2 Bl. Com. 191. See also B Conn. 365; 12 Allen, 36; 8 Minn. 431 ; 4 Hun, 300; 8 Utah, 897. « 8 Bl. Com. 191-94. See also Tilton v. Vail, 43 Hun, 640 (1880). « 4 Kent, 307-71. TENANT 1018 TENDER two or more persons to hold in fee-simple, fee-tail, for life, for years, or at will.i This .tenancy 6r estate, says Blackstone, arises f rom_ the act of the parties, never from the act of the law. The tenants have unity of interest, title, time, and possession, that is, they have one and the same inter- est accruing by one and the same conveyance, com- mencing- at one and the same time, and held by one and the same undivided possession. One tenant can- not sue or be sued without joining: the other; nor do any act to defeat or injure the other's estate; nor, at common law, have an action of waste or of account against his co-tenant. Upon the death of one tenant, tiie estate remains to the siu'vivor. The estate is de- stroyed by severing any one of the unities.^ Joint-tenants, says Kent, are persons who own land by a joint title, created expressly by one and the same deed or will. They imiformly hold by "purchase." The estates need not be of the same duration, nature, or Interest. The beneficial act of one enures to all tenants. By statute, one tenant may maintain an ac- tion of waste or of account against his co-tenant. They join and are to be joined in suits. They are seized per my et per tout: each has entire possession of every parcel and of the whole. Survivorship is the distinguishing incident; whence the early law, which was averse to the division of tenures, favored this spe- cies of tenancy. In this coimtry, the estate is reduced in extent, and the incident of survivorship is generally abolished; except as to titles held by trustees and con- veyances to husband and wife, which conveyances are rather conveyances to one person than strict joint- tenancias.^ Tenants in coparcenary. These always take and hold by descent as one heir.* They have distinct estates, with right to possession in common; and each may alien his share. They re- semble joint-tenants in having the same unities of title, interest, and possession. The seisin of one is generally the seisin of all,> As estates, in this country, descend to all children equally, there is no substantial difference left between co-parceners and tenants in common.* Personalty also may belong to its owners in joint- tenancy, and in common, but not in coparcenary. Thus, if a house is pven to two persons absolutely, they ai'e joint-owners. If the jointure be severed, as by either owner selling, the vendee and the remaining part-owner are tenants in common. For the encour- agement of trade, partnership stock is considered as common and not as joint property, with no survivor- ship. ^ ' Tenant at sufferance. See Sufferance. Tenant at will. One who holds lands as tenant at the will of the lessor. A tenancy at will is one which may be » 2 Bl, Com. 180. » 2 Bl. Com. 180-87. M Keut,' 357-66. * 2 Bl. Com. 187-91. 4 Keut, 367, 366-67. 8 3 Kent, 25. determined at the will or pleasure of either party. ^ ' Such tenant has no certain, indefeasible estate; nothing that he can assign. The estate is at the will of both parties, landlord and tenant; so that either one naay determine his will, and quit connection with the other at pleasure. But if the tenant sows his land, and the landlord, before the grain is ripe, or before it is reaped, puts him out, the tenant shall have the im- plements, and free ingi-ess and egress to cut and carry them away. But where the tenant voluntarily deter- mines the will, the landlord has the profits of the land. The law is careful that no sudden determination by one party shall prejudice the other; and the couits lean against construing demises, where no certain term is mentioned, to be, tenancies at will, but rather hold them to be tenancies from year to year.^ Tenant by curtesy. See Curtesy. Tenant for life. See Life, Estate. Tenant for years, or Irom year to year. See Years, Estate for. Tenant from month to month. See Month. Tenant in capita. See Feud. Tenant in dower. See Dower. Tenant in fee-simple. See Fee, 1 (2). Tenant in fee-tail. See Fee. 1 (3) ; Tatt.. Tenant in severalty. See Severalty. Tenant paravail. See Feud. Terre-tenant. See Terre. Under tenant. See Lease, Sublease. See further Crop; Disclaimek, 1; Emblements; Emtirett; Jointure; Lease; Moiety; Partition; Survivorship. ,' TEND. If the answer to a question may tend to prove the matter alleged in the dec- laration, the question may be asked. It is not necessary that the testimony be sufficient to prove the matter. 3 Evidence which tends to prove the issue on the part of either side must be submitted to the jury.'* Gross negligence tends to show fraud, q. v. There is no difference in meaning between "tend- ing" and "duectly tending" to prove afact.^ See Evidence, Relevant. TENDER. 1, V. When either side trav- erses or denies the facts pleaded by his an- tagonist he is said to "tender an issue." ^ 2, n. Aformal offer; a proffer which binds him who refuses it. 1 Davis V. Miu-phy, 126 Mass, 145 (1879), Morton, J. s 2 Bl. Com. 145-47. See also 4 Kent, 111-16; Johnson V. Johnson, 13 R. I. 468-70 (1881), cases, Durfee, C. J. s Schuchardt v. Aliens, 1 Wall. 368 (1863). •* Thompson u Bowie, 4 Wall. 471 (1866); Hickman v. Jones, 9 id. 201 (1869). s State V. Anderson, 10 Oreg. 461 (1883). 8 3 Bl. Com. 313. TENDER 1019 TENDER The plea that the defendant has always been ready to pay the debt demanded, and, before action was begun, had tendered the amount to the plaintiff, Which amount, with interest and accrued costs, the defendant brings into court for the plaintiff, l May be by proflEered delivery of a thing, ot services, of an obligation; most commonly, is of moitej/ — act- ually produced, unless the creditor has dispensed witii such production.' Imports not merely readiness and ability to pay money, or to deliver a deed or other property or thing in question, but also actual production and offer of the thing itself, unconditionally, or as agreed to.^ In the case of a breach of an express warranty, the warrantee may sue without a return or tender of the goods. He is not obliged to rescind the sale.* Misapprehension or confusion appears to have arisen fx-om the mode of expression used in treating of the necessity of a tender or offer in cases of mutual and concurrent promises. "Tender " does not then mean the same as when the reference is to paying or offer- ing to pay a debt due in money, where the money is offered to a creditor who is entitled to receive it and nothing further remains to be done; but, merely a readiness and willingness, accompanied with an ability to do the act which the agreement requires of the party making the tender, provided the other party will concurrently do the thing required of him, and a no- tice by the former lo the latter of this readiness. Suet readiness, ability, and notice, are sufScieilt evi- dence of, indeed constitute and imply, a, "tender," that is, not an absolute, unconditional offer to do or to transfer anything at all events, but a conditional offer, dependent on, and to be performed only in case of, the readiness of the other party to perform his part of the agreement.' See Amends; Covenant; Deposit, 2; Rescission; Warranty, 2. Legal tender. (1) An offer to do a thing, conformably to the requirements of the law in the case. (2) Money that may be offered in payment of a debt. No foreign coins shall be a legal tender in payment of debts. The gold coins of the United States shall be a legal tender in all payments at their nominal value when not below the standard weight and limit of toler- ance provided by law for the single piece, and, when reduced below such standard, shall be a legal tender 1 See 1 Steph. Plead. 347; 3 Bl. Com. 304. n See Thomas v. Evans, 10 East, 101 (1808); Bakeman V. Pooler, 16 Wend. 638 (1836); Hunter v. Warner, 1 Wis. 147 (1858); Irvin v. Gregory, 13 Gray, 218 (1859). ' Holmes v. Holmes, 18 Barb, 144 (1851). •Smeltzer v. White, 93 U. S. 395-96 (1875), cases; 4 Kent, 480. 6 Smith V. Lewis, 26 Conn. 119-20 (l^ST), cases, Storrs, 0. J.; Cook V. Doggett, 2 Allen, 441 (1861); Bruce v. Smith, 44 Ind. 9 (1873). See generally 36 Am. Law Eeg. 745-58 (1878), cases; 80 Cent. Law J. 244-51 (1885), cases. at valuation in proportion to their actual weight; the silver coins, for any amount not exceeding five dollars in any one payment; the minor coiws, for an amount not exceeding twenty -five cents in anyone payment; United States notes, in payment of all debts, except for duties on imports and interest on the public debt; the same as to demand Treasury notes authorized by acts of July 17, 1861, c. 5, and February 12, 1862, u. 20; and the same as to Treasury notes authorized by acts ot March 8, 1863, c. 73, and June 30, 1864, c. 172, for their face value excluding interest: Provided, that notes issued under the act last named shall not be a legal tender in payment or redemption of any notes issued by any bank intended to circulate as money.' The act of June 9, 1879, provides, sec. 3, " that the present silver coins . of smaller denominations than one dollar shall hereafter be a legal tender in all sums not exceeding ten dollars in full payment of all dues pubhc and private." Legal Tender Ads. By acts of February 25, 1862, July 11, 1862, and March 3, 1863, Congress authorized the issue of notes of the United States, declaring them a legal tender for all debts, except duties on' im- ports and interest on the public debt.'' Legal Tender Decisions. There is no express grant of power, in the Constitution, to Congress to make any description of currency a legal tender in payment of debts. The making of notes or bills of credits a legal tender inpayment o£ pre-existing debts is not a means appropriate, plainly adapted, or usually calculated to carry into effect any express power vested in Con- gress, and is inconsistent with the spirit of the Consti- tution — is prohibited by the Constitution. Prior to February 85, 1862, all contracts for the payment of money, not expressly stipulating otherwise, were con- tracts for the payment of coin, and must still be paid in coin, notwithstanding tl^e legislation which makes United States notes a legal tender in payment of ^such debts.^ Contra. The Legal Tender Acts — chosen as » means to a proper end: to suppress rebellion and pre- serve the government — were constitutional, as appro- priate and within the power of Congress " to declare war." The clause " to coin money " contains no im- plication that nothing but the precious metals can ever have the uses of money. The acts apply equally to pre-existing debts and to debts contracted subse- quently to their passage.* ' E. S., Title TYXTX, §§ 3584-90, cases. 2 See at length, 12 St. L. 345, 532, 709. » Hepburn v. G riswold, 8 Wall. 603. Decided Novem- ber 37. 1869; read January 29, 1870: 12 Wall. 528-29. Opinion by Chase, C. J., Nelson, Clifford, Field, and Grier, JJ., concurring; Miller, Swayne, and Davis, JJ., dissenting. * Legal Tender Cases (Knox v. Lee ; Parker v. Da- vis), 12 Wall. 457, 540-44, Decided May 1, 1871. Opinion by Strong, J., Miller, Swayne, Davis, and Bradley, JJ., concurring; Chase, C. J., Nelson, Clifford, and Field, JJ,. dissenting. December 15, 1869, the resignation ot Mr, Justice Grier had been accepted, the same to take effect February 1, 1870, December 20, 1869, the ap- pointment ot Edwin M, Stanton as a member of the TENDER 1020 TENEMENT Congress has also the constitutional power to make the 'Treasury notes a legal tender in payment of private debts tJi time of peace, and such notes may be re-issued after having been received into the Treasury, The povcer " to borrow money on the credit of the United States " is the power to raise money for the public use on a pledge of the public credit, and may be exercised to meet present or anticipated expenses and liabilities. It includes the power to issue, in return for the money Iporrowed, the obligations of the United States in any appropriate form of stock, bonds, bills or notes. Con- gress has authority to issue these obligations in a form adapted to circulation from hand to band in the ordinary transactions of commerce and business. To promote and facilitate the circulation of these obliga- tions, to adapt them to use as currency, and make them more current in the -market, it ii^ay provide for their reception in coin or bonds, and may make them receivable in payment of debts to the government. This was admitted by the judges who dissented from the decision in the Legal Tender Cases. The constitu- tional authority in Congress to provide a currency for the whole country is now firmly established. The Constitution prohibits the States from coining money, emitting bills of credit, or making anything but gold and silver coin a tender in payment for debts; but no intention can be inferred from this to deny to Con- gress either of these powere. . . The exercise of the power to issue bills of credit, making them a tender in payment of private debts, not being prohibited to Congress is included in the power expressly granted to borrow money on the credit of the United States. Congress, as the legislature of a sovereign nation, being expressly empowered by the Constitution "to lay and collect taxes, to pay the debts and provide for the common defense and general welfare" and "to borrow money on the credit of the United States," and "to coin money and regulate the vajue thereof and of foreign coin;" and bVing clearly authorized, as inci- dental to the exercise of those great powers, to emit bills of ci'edit, to charter national banks, and to pro- vide a national currency for th^ whole people in the form of coin, Treasury notes, and national bank bills; and the power to make the notes of the government a legal tender in payment of private debts beuig one of the powers belonging to sovereignty in other civilized nations, and not expressly withheld from Congress by the Constitution; "we are irresistibly impelled to the conclusion that the impressing upon the Treasury notes of the United States the quality of being a legal tender in payment of private debts is an appropriate means, conducive and plainly adapted to the execu- tion of the undoubted powers of Congress, consistent court had been confirmed, but he died four days later. In pursuance of the act of April 10, 1869 (16 St. L. 44), which went into effect the first Monday of December following, the number of justices had been restored to nine and Justice Strong was commissioned Febru- ary 18, and Justice Bradley, Harch 31, 1870. The court being thus reconstructed, a motion was made for a reconsideration of Hepburn's Case, and a re-argument was ordered (four judges dissenting). This was heard April 18, 1871, and the decision of May 1, 1871, ren- dered. with the letter and spirit of the Constitution, and therefore, within the meaning of that instrument, ' necessary and proper for carrying into execution the powers vested by this Constitution in the government of the United States.' Such being our conclusion in matter of law, whether at any particular time, in war or in peace, it is, as matter of fact, wise and expedi- ent to resort to this means, is a political question, to be determined by Congress when the question of exi- gency arises, and not a judicial question, to be after- ward passed upon by the court," ^ TEWEMEIVT, A word of greater extent than land, and though in popular accepta- tion it applies only to houses and other build- ings, yet in its original, proper, and legal sense it signifies everything that may be holden_. provided it be of a permanent nature : whether it be ofa substantial and sensible, or of an unsubstantial, ideal kind. 2 Whence tenemental, tenementary. Whatever may be holden in tenure. 3 While frequently used in the sense of house or building, the enlarged meaning is land, or any corporeal inheritance, or any- thing of a permanent nature which may be hoi den. 4 In modern use, a room let in a house, or such part of a house as is separately occupied by a single family or person, in contradis- tinction to the whole house; also, a part of a room occupied by one person, even though no partition separates his holding from that of another tenant. 5 The modern meaning is doubtless traceable to as- sociations with "tenant" and "tenancy," In statutes against lewdness, liquor-selling, and other nuisances,' may include a room connected with a shop, and forming no part of a dwelling-house.^ I While a " building " is a tenement, a tenement may be something different from a building. The words have been used synonymously.''' Dominant tenement; servient tene- ment. The tenement to which is- attached ^ Legal Tender Case ( Julliard v. Greenman), 110 U. S. 421, 444, 449-50. Decided March 3, 1884. Opmion by Gray, J., Waite, C, J., Miller, Bradley, Harlan, Woods, Matthews, and Blatchford, JJ., concurring; Field, J., dissenting. See 1 Harv. Law Rev. 73-97 (1887); 3 Ban- croft, Const. 132-37. ' 3 3 Bl. Com. 16-lT, 59. See 3 Kent, 401; 5 Conn. 518; 73 111. 409; 13 N. Y. 159. 8 Pond L'. Bergh, 10 Paige, 157 (1843): Shep. Touch. 91. * Sacket v. Wheaton, 17 Pick. 105 (1P35), Wilde, J.^ 6 LCommonwealth v. Hersey, 144 Mass. 298 (1887), Devens, J. ; Young v. Boston, 104 id. 104 (1870); 44 L. T. 303; L. E., 10 Exch. 305. Commonwealth v. Cogan, 107 Mass. 212, 210-11 (1871'j. ' Commonwealth I). Bossidy, 112 Mass. 278 (1873). TENERE 1031 TERM an easement in an adjoining tenement is called the " dominant " tenement, and the tenement which is subjected to this service is called the "servient" tenement. See Easement; Hereditament. TENERE. L. To hold. Tenendum. For holding; to hold. A word once in use to express the tenure by which an estate was to be enjoyed. i See Deed. 2. Teneri. To be held; to be bound. The part of a bond in which the obligor declares himself "to be held and firmly bound " to the obligee. Tenet. He holds. Tenuit. He held. Words once used to state the tenure in ac- tions of waste ; the latter, where the estate had ended and damages only were sought.^ TENOE. Holding: course; general meaning. See Teneee. In pleading, imports an exact copy — that the instrument is set forth in the very words and figures.' In popular use, the substance and effect of an instrument.* Compare Purport. TENTEEDEN'S ACT. See Frauds, Statute of. TENURE. Holding; possession. See Tenere. Tenure of land. The manner of possess- ing land held of a superior, in consideration of services to be rendered.^ Simply, the mode of holding an estate in land. May import any kind of holding, from mere possession to owning the inheritance." Tenure is inseparable from the idea of property in land, according to the theory of the English law. All land in England is held mediately or immediately of the king. There_ are there no lands to which " ten- ure " does not strictly apply. So thoroughly does this notion pervade the common-law doctrine of real prop- erty that the king cannot grant land to which the res- ei-vation of tenure is not annexed. The idea also pervades, to a considerable extent, the law of realt/ln this country. The title to land is essentially allodial (a. v.), and every tenant in fee-simple has an absolute ' 2 Bl. Com. 298.. ' 2 Greenl. Ev. § 653. s Commonwealth t'. Wright, 1 Gush. 65 (1848); People V. Warner, 5 Wend. 273 (IfSO); 5 Blaekf. 458; 1 Mass. 203; 14 Ohio St. 61; 9 Yerg. 394; 1 East, 180; 7 Exch. 537, 661. ' Beeson u Beeson, 1 Harr. 472 (Del., 1830). » [2 Bl. Com. 59. • [Bichman v. Lippincott, 29 N. J. L. 69 (1860). and perfect title, yet, in technical language, his estate is called an estate in fee-simple, and the tenure free and common socage, q. v. This technical language is vei-y generally interwoven into the jurisprudence of the States, though no vestige ol! feudal tenure may re- main.' See Feud. Tenure of oflace. The manner of hold- ing or of exercising the duties of an ofiice ; also, the duration or term of ofifice.2 The Constitution is silent^ with respect to the power of removal from office, where the tenure is not fixed. Offices not so fixed are held during good behavior, or during the life of the incumbent; or at the will of some department of the government, and subject to removal at pleasure. In the absence of express regu- lation the power of removal is incident to the power of appointment. The tenure of ancient common-law offices depended on ancient usage; but with us there is no ancient usage. 3 See Behavior; Office, 2. ' Tenure of Office Acts. The act of Congress of March 2, 1867 (14 St. L. 4.30), wiis repealed as to sections one and two, and amended, T)y act of April 5, 1869 (16 St. L. 6), and finally repealed entire by act of March 3, 1887 (24 St. L. 500) — the repeal not affecting '* any offlcer heretofore suspended " under R. S. §§ 1767-72, " or any designation, nomination, or appointment heretofore made by virtue of the provisions thereof." * TERM. 1. A word; an expression; a phrase ; language : as, a term of art, a term of law or law term, technical terms. See Terminus, 3. Sometimes used for expression or phrase: as, " the term ' entry for withdrawal ;'" ^ "the term 'reason- able doubt ; " ' 6 " the term ' any former deceased hus- band.' " ' Terms of art, in the absence of parol testimony, are understood in the primary sense, unless the con- text shows a use in a particular sense, in which case the testimony of persons skilled in the art or science may be admitted to aid the court in ascertaining the true intent and meaning of the instrument.^ See Art, 3. 3. A condition, stipulation, covenant, or obligation: as, the terms of a contract; granting a request on terms ; imposing terms. In its general signification, denotes a word, phrase or expression by which the definite meaning of lan- ' 3 Kent, 487-88. Tenure in Scotland and England, 1 Law Quar. Rev. 176-«8, 400-11 (1886); 2 id. 160-76 (1886). 2 See Peoples. Waite, 9 Wend. 58 (1832); People v. Brundage, 78 N. Y. 407 0879). ' Exp. Hennen, 13 Pet. 258-61 (1839), cases, Thomp- son, J. City of Panama, 101 U. S. 460 (1879). "New Orleans v. Winter, 1 Wheat. 91 (1816); Barney V. Baltimore, 6 Wall. 287 (1867); Cissel v. McDonald, 16 Blatch. 153 (1879), cases; Darst v. Peoria, 13 F. R. 561 ' Murphy v. 3Elamsey, 114 IT. S. 44-45 (1885), cases. See, as to Alaska, R. S. §§ 1954-76; as to Arizona, Dakota, Idaho, Montana, New Mexico, Utah, Washing- ton, and Wyoming, R. S. §§ 1896-1963, and these titles in the index thereto, and in the indexes to the Statutes at Large since 1878. Aa to Utah especially, see Po- LYOAMY. (65) ual the right to lay down railroad tracks, or amending existing charters for such purpose. Granting to any corporation, association, or individ- ual any special or exclusive privilege, immunity, or franchise whatever. In all other cases where a general law can be made applicable, no special law can be enacted in any of the Territories by the legislatures thereof. Sec. 2. That no Territory now or hereafter to be or- ganized, or any political or municipal corporation or subdivision thereof, shall hereafter make any sub- scription to the capital stock of dny incorporated company, or company or association having corporate powers, or in any manner loan its credit to or use it' for the benefit of any such company or association, or borrow any money for the use of any such company or association. Sec. 3. That no law of any Territorial legislature shall authorize any debt to be contracted by or on be- half of such Territory except in the following cases: To meet a casual deficit in the revenues, to pay the interest upon the Territorial debt, to suppress insur- rections, or to provide for the public defense, except that in addition to any indebtedness created for such purposes, the legislature may authorize a loan for the erection of penal, charitable or educational institu- tions, if the total indebtedness of the Territory is not thereby made to exceed one per centum upon the as- sessed value of the taxable property as shown by the last general assessment. And nothing in this act shall be construed to prohibit the refunding of any existing indebtedness of such Territory or of any political or municipal corporation, county, or other subdivision therein. Sec. 4. That no political or municipal coi-poration, county, or other subdivision in any of the Territories shall ever become indebted in any manner or for any purpose to any amount in the aggregate, including existing indebtedness, exceeding four per centum on the value of the taxable property within such corpora- tion, county, or subdivision, to be ascertained by the last assessment for Territorial and county taxes pre- vious to the incurring of such indebtedness; and all bonds or obligations in excess of such amount given by such corporation shall be void: That nothing in this act shall be so construed as to affect the validity of any act of any Territorial legislature heretofore enacted, or of any obligations existing or contracted thereunder, nor to preclude the issuing of bonds al- ready contracted for in pursuance of express provis- ions of law: nor to prevent any such legislature from legalizing the acts of any county, municipal corpora- tion, or subdivision of any territory as to any bonds heretofore issued or contracted to be issued. Sec. 5. That section 1889, title 23, of the Revised Statutes be amended to read as follows: *' The legisla- tive assemblies of the several Territories shall not grant private charters or special privileges, but they may, by general incorporation acts,_permit persons to associate themselves together as bodies corporate for mining, manufacturing, and other industrial pursuits, and for conducting the business of insurance, banks of discount and deposit (but not of issue), loan, trust, and guarantee associations, and for the construction or operation of rail-roads, wagon-roads, irrigating TERROR 1026 TESTATE ditches, and the colonization and improvement of lands in connection therewith, or for colleges, semi- naries, churches, libraries, or any other benevolent, charitable, or scientific association/* See. 6. That nothing in this act shall be construed to abridge the power of Congress to annul any law passed by a Territorial legislature, or to modify any existing law of Congress requiring that the laws of any Territory shall be submitted to Congress. Sec. 7. That all acts and parts of acts hereafter passed by any Territorial legislature in conflict with the provisions of this act shall be null and void. See further Courts, United States; School; Treatt. TERROR. See Riot; Robbery. TEST. When the identity of anything is once established, other things, as to which there is doubt, may be compared with it as the test or standard, to ascertain whether they belong to the same class or n€«t. Thus, to permit a signature to be shown to the jury as a test-paper its genuineness must first be directly proved.^ See Hamdwritikg. Test Act. Statute of 25 Geo. II (1752), c. 2, enacting that all persons holding office, receiving pay from or holding a place of trust under the crown, should take the oath ■of allegiance and supremacy, subscribe a declaration against transubstantiation, and •receive the sacrament, according to the ■nsage of the Chmxh of England, within six months after appointment. * Repealed by 9 Geo. IT (1829), c. 17, as to receiving I the .sacrament, and a new declaration substituted.'' The English Test Acts related to matters of opinion, most of them to religious opinions. The meaning at- itached to the word "test " in our constitutions was de- rived from these acts.' See Ballot; Belioion. Test joath. An oath of loyalty toward tthe existing government. In England and France, test oaths have been lim- '■ited to an afftrmation of present belief or disinter- estedness toward the government, with no reference to past conduct. . . The clauses in the constitution ■of Missouri which require clergymen, before they may exercise their profession, to take an oath that 'they Jiave not committed designated acts, some of which at the time were innocent in themselves, con- ■etitute a bill of attainder, and an ex post facto law, forbidden by the Federal Constitution.-' TEST". See Testis, Test'. TESTABLE. Having capacity to make -a will; also, capable of being given by will. 'Opposed, intestable. See Testis. I Depue* Place, 71a. 430 (1848). ' See 4 Bl.Gom. 59. •s Attorney-General v. Detroit Common Council, 68 Mich. 217-18 (1885). ■4 Cummings v. Missouri, 4 Wall. 318 (1866), Field, J. Testacy. The condition, in law, of hav- ing made a valid will for the disposition of the maker's estate after death. Opposed, intestacy: dying without leaving a valid will. Testament. Written or oral instructions, properly "witnessed" and authenticated, according to the pleasure of the deceased, for the disposition of his effects. Styled his will by way of emphasis, i Originally, a "testament" concerned personalty only, and a " devise " or " will " realty. Later, the general expression for an instrument embracing either or both species of property was " last will and testa- ment," or simply a " will." The terms are now inter- changed.' A testament, according to both Justinian and Coke, was so called because it isa tesfafio mentis, a witness- ing to one's intent. This derivation " savors too much of the conceit." It is, rather, a substantive from testari, to be a testis, a witness, to bear witness. The definition of the old Roman lawyers was : testamentum voluntatis nostroe justa sententia de eo quod quis post Tnortem suam fieri velit, a testament is the legal expression of one's will ag to what he after his death wishes done.' See Testamentcm, p. 1027. Testatnental. Pertaining to a testament or will. Testamentary. (1) Connected with, relat- ing or belonging to, the making of a wUl or of a will as made: as, testamentary capacity or power; a testamentary cause, gift, mat- ter, purpose, use ; a testamentary paper ; let- ters testamentary. <3) Named, appointed, or created in or by one's will: as, a testamentary heir, guardian, trustee. Post-testamentary. Referring (1) to a child : born after its parent has made his last will; (2) to property : acquired after a will, or the last^will, was made. Testate. (1) Having made a valid will ; leaving a will : as, he died testate. (2) Disposed of by will: as, testate prop- erty, or estates. Opposed, intestate: without leaving a will ; not disposed of by will. Said of the fact, and descriptive of the person himself as distinguished from a " testator." Testator. Any person who makes a will ; specifically a man, as distinguished from testatrix, a woman, who has made a will. 1 [2 Bl. Com. 12, 489, 499. ' [2 Bl. Com. 490; 4 Kent, 501; 21 Wend. 436. > 2 Bl. Com. 499 ; 12 Barb, 153 ; 4 Kent, 501, 6. TESTAMtoTUM 102T TESTIS One may die testate as to a part, and intestate as to the rest, of his property. See generally Inplhence; Inbanitv, 2 (5); Letter, 4; Representative (1); Will, S. TESTAMENTUM. See under Testis. TESTATUM; TESTE; TESTIS. See under Testis. TESTIFY. To bear witness to; to give testimony in a judicial inquiry. See Testis. Testimony. A witnessing: the declara- tion of a witness as to a fact ; a statement in evidence made by a witness ; whatever is ad- mitted as evidentiary of the truth in a cause, whether competent or incompetent as proof, and inclusive of writings and records of all kinds. " Testimony " is the statement or declaration of a witness; it is merely a species or class of "evidence."' Evidence Includes all testimony, while testimony does not include all evidence. Testimony may not be evi- dence.' Testimony consists in what is not proved as well as in what is proved. When the act of withholding testi- mony raises a violent presumption that *•■ fact not clearly proved or disproved exists, the court may allude to the act as a circumstance strengthening the proof.' A bill to " perpetuate testimony " is a bill filed in a court of equity to preserve testimony in danger of being lost, before the matter to which it relates can be made the subject of judicial investigation; as, the tes- timony of an aged or sick person about to move out of the jurisdiction. The testimony may respect a title or claim to realty or personalty, and be used to support an action or a defense. Analogous are bills to " take testimony de bene esse" and bills to take the testimony of persons resident abroad, to be used in suits actually pending.' See further Deposition; Discovert, 3, 6; Evidence; Perpetuate; Stenoorapheb; Witness. TESTIS. L. A witness. Testari: to be a witness, bear witness to ; to be witnessed, shown, certified. Derivatives: attest, contest, protest, testify, testi- mony, testacy, testator, testament, intestate. Nemo testis esse debet in propria sua causa. No one should be a witness in his own cause. One cannot testify in his own behalf. This common-law rule has been very generally abrogated.* See further Witness. 1 See McDonald u. Elfes, 61 Ind. 384 (1878); 13 id. 389; 17 id. 272, 95; 18 id. 443; 63 Iowa, 235. 2 Frick V. Barbour, 64 Pa. 121 (1870). • 2 Story, Eq. §§ 1505, 1513; 3 Bl. Com. 450. As to contracts for the production of testimony, see Cobb v. Cowdery, 40 Vt. 25 (1867), cases: 94 Am. Dec. 375-78, cases. •1 Greenl. Ev. §§ 128, Sll, 331,333,339,340,343,349, 362, 379, 386, 390, 411, 637. Test'. An abbreviation of testis, a wit- ness, or of teste, being a witness. The attestation of the foreman of a grand jury that a bill has been found or ignored may be certified in Pennsylvania in the words " test, pro reipublicce, A B ." Testamentum. A will of personalty ; a will of any species of property. Cum testamento annexo. With the will annexed — to letters of administration, q. v. Ex testamento. From a will; under a will; by force or virtue of a will. Opposed, ab intestato: from an intestate. Expressions used to indicate the origin of property. Omne testamentum consiimmatum morte est. Every will is perfected by the death : a will is of no efifect till after the death of the mt^ker — up to the last moment of life is ambulatory, q. v. Testamentum inofficiosum. An undutiful will; a will made in disregard of the obliga- tions of nature or parentage. The Romans set aside testaments as inofflciosa. that is, deficient in natural duty, if they disinherited " chil- dren" without assigning sufficient reason. But if a child received any legacy, though ever so small, it was proof that the testator had not lost his memory or reason, which, otherwise, the law presumed, and no contest of the will was allowed. From this has arisen the groundless notion that to disinherit an heir he must be left a shilling or some other express legacy.' " Children " meant natural and domestic heirs. They were non-disinheritable because considered as having a property in the father's effects, and as en- titled to the management of his estate. An action, called querela inofficiosi testamenti, was introduced to rescind any such will, made without just cause. But the parent, by charging his estate with debts, could render succession unprofitable." Testandi. See Animus. Testatum. It is witnessed, or testified. At common law, when a defendant who was to be arrested on a capias could not be found within the sheriff's bailiwick the writ was returned, and another writ, called the testatum capias, was directed to the sheriff of the county where the defendant was sup- posed to be, reciting the former writ, and that " ' it is testified ' that the defendant lurks in your bailiwick," and then commanded that he be taken, as in the case of the former capias. At present, when the action is brought in one county and the defendant lives in an- other, to save trouble, time, and expense it is usual to make' out a testatum at first, supposing a former writ to have been granted.' A iestat^m execution is a writ of execution (either a fieri facias or a capias ad respondendum) issued 1 2 Bl. Com. 502; Hadley, Rom. Law, 317. 2 2 Kent, W; 2 Addams, 449; 3 id. 207. ' 3 Bl. Com. 382-83. THANKSGIVING 1038 THEFT into another county than that in which the record re- mains, to secure satisfaction out of the property there. The writ formerly concluded with the words " Where- fore, on behalf of the plaintiff, ' it is testified ' in our said court that the defendant has goods, etc., within your bailiwick." In England, since 1852, the testatum clause in the second writ (now the only writ issued) is omitted. 1 Teste. Being witness ; witnessed by. The date of the issue of a writ.- Originally, the initial word of the last clause of writs, when expressed in Latin, set- ting forth that each particular writ was is- sued by authority of the official whose signa- ture was affixed — the sovereign or the chief justice of the court. The corresponding clause in a writ is now called the teste, and the writ itself is said to be "tested." Writs and processes issuing from the Supreme or a circuit court shall bear teste of the Chief Justice, or, if that oiBce be vacant, of the associate justice next in precedence. Writs and processes issuing from a dis- trict court shall bear teste of the judge, or, if the oflce be vacant, of the clerk thereof.' Testes. Witnesses. Trial per testes, by witnesses, described (1) the action of an executor in producing the witnesses to a con- tested will in court, and there proving the execution of the instrument; » (2) a trial without the intervention of a jury, by testimony presented to a judge, as op- posed to a trial by combat, ordeal, or the oath of par- ties alone.'* Testimonium. Witnessing; attestation. The testimoniuTn clause of an instrument is the clause at the end beginning *' In witness whereof." • THANKSGIVING. See Holiday. THAT. See This. That is to say. See Wit. THE. Particularizes the subject spoken of. The bill of scandal may be very different from a bill of scandal.' See A, 4. THEATER. A house in which dramatic compositions are spoken or recited by " act- ors." 8 Not neces.=iarily more than a stage on which actors play and a room in which acting is done and seen; not, then, necessarily, a place where valuable goods are stored.^ ■ 1 Arch. Pract. 576. = 3 Bl. Com. 275, 282; 1 id. 179; 4 Yerg. 27. » Act 8 May, 1793: E. S. §§ 911-12. « 2 Bl. Com. 508; 2 Story, Eq. § 1516. » 3 Bl. Com. 338. •Ladd 1;. Ladd, 8 How. 36 (1850). ' ShartE v. Com,monwealth, 2 Binn. *519, 516 (1810). s Rowland v. Kleber, 1 Pittsb. 71 (1853). ' Lee V. State, 56 Ga. 478 (1876). Any edifice used for the purpose of dramatic or operatic or. other representations, plaj's, or perform- ances, for admission to which entrance-money is re- ceived, not including halls rented or used occasionally for concerts or theatrical representations. ^ A negro minstrel performance is a " theatrical en- tertainment; " 2 ballet dancing is an " entertainment of the stage," ^ but tumbling may not be; * and an equestrian pageant or circus is a "theatrical perform- ance." ^ Where the question was whether or not the per- formance of an opera ra^y properly be regarded as a theatrical exhibition, within the meaning of a statute providing that no " theatrical exhibition shall be al- lowed without a license first had and obtained," the court said that a theatrical exhibition must be either such as pertains to the theater or to the drama for the representation of which the theater is designed. A drama is a story represented by action, and while it is ordinarily designed to be, spoken, it may be repre- sented by pantomime. An opera is a musical drama. In the former the actor observes the rules of rhetoric and of oratory, in the latter he employs his powers of music, vocal and instrumental. The ordinary theater is adapted to the performance of the opera, and this form of exhibition, especially the light opera and opera comique, in these days is a prominent feature of thea- ter work."* Contracts for the exclusive services of distinguished artists in theatrical representations are personal and peculiar. Damages for violation of such a contract is not capable of definite determination, and a violation may be restrained by injunction — except where the damages have been liquidated by agreement.^ See Drama; Right, 2, Civil Rights Acts; Ticket, Theater, THEFT. The fraudulent taking of cor- poreal personal property belonging to an- other, from his possession, or from the pos- session of some one holding the same for him, without his consent, with intent to de- prive the owner of the value of tlie same and to appropriate it to the use or benefit of the person taking. ^ The popular name for larceny,' q. v. ' Revenue Act 13 July 1866, § 9: 14 St. L. 126. » Taxing District v. Emerson, 4 Lea, 312 (1880). As to minstrelsy, see generally. Mayor, etc. ti. Eden Musee Co., 34 Alb. Law J. 164 (N. Y., 1886). sGallini v. Laborie, 5 T. E. 248 (1793); Wigan v. Strange, L. R., 1 C. P. 175 (1865). * The King v. Handy, 6 T. R 287 (1795). ' Cheney v. Stetson, Mass. Super. Ct. (1878). 'Bell, Treasurer of Philadelphia, u. Mahn, Sup. Ct. Pa. (1888): Act 16 April, 1845. ' McCaull V. Braham, 16 F. R. 37, 40 (1883), cases; ib. 42-49, cases. "Quitzow u. State, 1 Tex. Ap. 68(1876): Pasc. Dig. Art. 2381; 8 id. 138; 14 id. 234, 575; 37 id. 338; 20 id. 171 (1886); 4B1. Com. 229. • See People v. Donohue, 84 N. Y. 442-43 (1881). THELLUSSON ACT 1029 THING Thief. In a policy upon the cargo of a vessel, the word ■ thieves " is broad enough to cover acts of com- pound and simple larceny.' See Compound, 1 (4); Hue and Cry; Maikoe; Slan- der, 1. THELLUSSON ACT. See Accumula- tion. ^ THEN". Aa an adverb of time, means "at that time," referring to a time specified, past or future. It has no power of itself to fix a time ; it refers to time already fixed. 2 As an adverb of contingency, means "in that event." ^ Although, strictly, an adverb of time, it often in- tends an event or contingency; and is equivalent to " in that event," or " in that case." In this sense it desig- nates a limitation of an estate, or a future contingency on which it is made to depend. Thus employed, it is a word of reference, not indicating any particular point of time. < See Eemainder ; When. Then and there. In an indictment, refer to some foregone averipent by which their effect is de- termined. If that is a single act, and the indictment avers that ' then and there " another act occurred, the necessary import is that the two acts were pre- cisely co-existent, and the word "then" refers to a precise time. When the antecedent averment fixes no precise time, " then," used afterward, of course fixes no definite time.* When time and place have once been named with certainty it is sufdcient to refer to them afterward by the words " then and there: " the effect being the same as if the time and the place were repeated.* THENCE. In a deed, preceding each course given, imports that the following course is continuous with the one before it.' THEORY. See Expert ; Hypothesis. THERE. See Then and Theeb. THEREFORE. Compare So. See Suit, 1. 1 American Ins. Co. v. Bryan, 1 Hill, 32 (N. Y., 1841). See also Spinetti v. Atlas Steamship Co., 80 N. Y. 71, 77-78(1880), cases. "Mangmn v. Piester, 16 S. C. 329 (1881), Simpson, C. J. ; Dove v. Tarr, 188 Mass. 40 (1879). ' Piiitard v. Irwin, 20 N. J. L. 505 (1845). * Hall V. Priest, 6 Gray, 24 (1856), Bigelow, J. ; Ash v. Coleman, 34 Barb. 647 (1857); Buzby's Appeal, 61 Pa. 116(1869); Cresson's Appeal, 76 id. 24 (1874); Thomson V. Ludington, 104 Mass. 193 (18r0); Newberry v. Hin- man, 49 Conn. 133 (1881); Gibson v. Hardaway, 68 Ga. 378 (1882); Stock's Appeal, 20 Pa. 353 (1863); McArthur V. Scott, 113 id. 380 (1885), cases; Farnam v. Farnam, 53 Conn, 279, 286 (1885). s Edwards v. Commonwealth, 19 Pick. 136 (1837), Shaw, C. J.; State v. Willis, 78 Me. 74(1886); 12 Allen, 152, cases; 100 Mass. 16; 1 Mo. Ap. 3; 74 Me. 281; 1 Bish. Stat. Proc. § 413, cases. » State V. Cotton, 34 N. H. 146 (1861); State v. Willis, 78 Me. 74(1886). ' Flagg V. Mason, 141 Mass. 66 (1886). THEREIN. In the expression "vacate the judgment in said action, and all pro- ceedings therein," held to refer to the action.' A woman, in an ante-nuptial contract, agreed to ac- cept money in satisfaction " of her rights of dower and inheritance " in the " estate " of the husband, and relinquish " all claim therein " as widow. Held, that "therein" referred to "dower" and "inheritance," and not to " estate." ' THEREOF. In a deed of trust, "to se- cure the payment of said notes at the matu- rity thereof," held to refer to the notes.' THEREON. The description of a voyage to a port on the north side of Cuba, "with the liberty of a second port thereon," was held to mean that the second port was to be on the side already specified, and that •'thereon " meant "on the same side." ^ THEREUPON. Without delay or lapse of time ; as, in a minute that a committee, having made its announcement, a motion was " thereupon made " and carried. 5 In a declaration, was taken to mean " in considera- tion thereof," where the context seemed to require it." THIEF. See Theft. THING. Subject-matter ; substance ; ef- fects ; any object that may be possessed. The objects of dominion or property are things — real and personal. Things real are such as are permanent, fixed, immovable, which cannot be carried out of their place ; as, lands and tenements. Things personal are goods, money, and all other movables, which may attend the owner's person wher- ever he thinks proper to goj "Immovable Ijhings, as land and houses, and the profits- issuing out of the same, were the principal favorites of our first legislators; such property was imagined to be lasting, and would answer to posterity the pains their ancestors employed. Those legislators entertained a low and contemptuous opinion of all personal estate, it being a transient commodity. The amount of it was indeed comparatively trifling, during the scarcity of money and the ignorance of luxurious refinements which prevailed in the feudal ages. Hence it was that a tax of the fifteenth, tenth, or larger pro- portion of all the movables of the subject was fre- quently laid without scruple; and hence may be derived the frequent forfeitures infiicted by the com- ' Cummings v. Tabor, 61 Wis. 191 (1884). 2 MahafCy v. MahalTy, 61 Iowa, 679 (1883); 63 id. 64 (1884). ' Bridges v. Ballard, 63 Miss. 841 (1884). ' Nicholson v. Mercantile Ins. Co., 106 Mass. 400 (1871). » Putnam v. Langley, 183 Mass. 205 (1883). » Bean v. Ayers, 67 Me, 487 (1878), ' 3 Bl, Com. 16, 334. THINK 1030 TICKET mon law of all of a man's goods and chattels." ' See Pboperty; Res; Slavery. THINK. To believe, con.sider, esteem. A finding by a jury tliat tliey " ttainlc " that certain horses were not struck by a particular train was held to suffleiently express the finding of the fact.'' See Discretion, 2; Intention; Malice; Premedi- tate. THIRD or THIEDS. See Dower. Third person. See Stranger. THIS. Used of things before stated, re- fers to the thing last mentioned, while " that "' refers to the thing first mentioned; but "these- others" refers to others than those just mentioned.3 Compare Hic. THOROUGHFARE. See Eoad, 1; Street; Wat. THOUGHT. See Think. THREAD. The middle line of a stream or highway. See Filum ; Riparian ; Street. THREAT. A threat or menace of bodily hurt, through fear of which a man's business is interrupted, is inchoate violence.' A menace of destruction or injury to one's life, reputation, or property. A person (a tramp) who has entered a, house against the will of the occupant, may "threaten" to injure another by acts a3 well as by words. The test in such ,case is as to what the occupant had reasonable ground to believe were the intruder's intentions from his con- duct." On a trial for homicide when the question whether the prisoner or the deceased commenced the encounter is in doubt, the accused may prove threats of violence made against him by the deceased, though not brought to the knowledge of the prisoner.* A person whose life (or whose family) has been threatened by another, whom he knows or has reason to believe has armed himself with a deadly weapon for the avowed purpose of taking his life or inflicting great personal injury upon him, may reasonably infer, when a hostile meeting occurs, that his adversary in- tends to carry the threat into execution. A previous threat alone, however, unless coupled at the time with an apparent design then and there to carry it into ef- fect, will not justify a deadly assault; there must be such a demonstration of an immediate intention to ex- ecute the threat as to induce a reasonable belief that the party threatened will lose his life or suffer serious bodily injury unless he immediately defends himself against the attack. But a previous threat alone is not enough; the party may have relented or abandoned 1 2 Bl. Com. 38t. ' Martin v. Central Iowa E. Co., 59 Iowa, 414 (1882). ' Russell V. Kennedy, 66 Pa. 2.51 (1870). > 3 Bl. Com. 120. 'People V. Deacons, 109 N. Y. 381 (1888): N. Y. Laws 1885, ch. 490, § 2. » Wiggins V. People, 93 U. S. 465, 485 (1876), cases. his purpose, or his courage may have failed, or the threat may have been idle gasconade, made without any purpose to execute it. Generally speaking, the threat must have been communicated to the accused — to influence his action. ^ The remoteness of the threat from the time of the homicide is a circumstance for the jury to consider, even where the threat was made thirty y«ars prior .to the killing.' a' threat to commit a crime, by another than the person on trial, is not admissible on the part of the ac- cused, unless part of the res gesfce, or a link in a chain of evidence connecting with the crime itself.^ See Defense, 1; CpNFESsioN, 2; Consent; Duress. Threatened injury. See Injunction. Threatening letter. A letter sent to a person threatening to accuse him of a crime, with a view to extort money, chattels, or other property.'' Such letter may also threaten to libel or to kill the person addressed. When the -threat is to accuse of a crime the indict- ment need not specify the particular crime: for the prisoner may intentionally leave that in doubt. No/ need the threat be to accuse before a judicial tri- ' bunal.* See Blackmail. THROUGH. In an act providing that no road shall be laid out "through" the grounds of a cemetery cornpany, held to mean " over."* A general warranty, in a deed of conveyance, to defend the possession of the premises against claims made " through or by "the grantor estops his heirs and subsequent grantees from claiming an interest in the premises.' THRUST. "Thrusting'' a person with a dangei'ous weapon will include thrusting with an iron bolt, rod, or pin, whether the point be sharp or not.* TICHBORNE CASE. See Perjury; Personate ; . SENTENCE,'Cumulative. TICKET. The meaning, in a statute, is a matter of construction : the word itself has no determinate signification ; — for there are 1 People V. Scoggins, 37 Cal. 683-84 (1869), Crockett; J. ; People V. lams, 57 id. 126-27 (1880); People i>. Campbell, 59 id. 247-51 (1881), cases; United States v. Leighton, 4 Dak. T. 31 (1882). " Goodwin v. State, 96 Ind. 552 (1884): 4 Cr. Law Mag. 583, cases. ' State V. Beaudet, 53 Conn. 542-51 (1885), cases. < [4 Bl. Com. 137, 126.' » See 2 Bish. Cr. L. § 1200; 8 Whart. Cr. L. § 1664; 3 Cr. L. Mag. 720; 26 Iowa, 122; 24 Me. 71; 68 id. 473; 138 Mass. 65; 12 Allen, 447; 68 Mo. 66; 2 Barb. 427; 36 Ohio St. 818. 'Hyde Park u. Cemetery Association, 119 111. 147 (1886). ' Traver v. Baker, 15 F. E. 191 (1883). 8 State V. Lowry, 33 La. An. 1824 (1881). TICKET 1031 TIMBER lottery tickets, play-house tickets, admission tickets at public exhibitions and private par- ties, tickets to seats on a stage, tickets for passage on boats, etc.' Lottery ticket. See Lottery. Bailroad ticket. A token or voucher, adopted for convenience, showing that the passenger has paid his fare from one place to another: generally it does not contain, and ordinarily it is not intended to contain, a contract, but is a receipt for money only.2 Issued to a passenger, is a receipt for the passage money, and may be assigned by delivery so as to give a right of action for the value of unused coupons." That a discount will be made, when purchased be- fore entering the car, is a reasonable regulation. A company is not bound to keep its office open after the time advertised for the departure of the train.* The sale of a ticket is an undertaking that due cate for safety vritl be used in managing trains and main- taining the road.* See further Carrier, Of passengers; Coupon- ticket; Time-table. Ticket of leave. Under English laws, a convict, particularly one sent to a penal set- tlement, for continued good conduct may have a license, called "a ticket of leave," to- be at large ; amounting, practically, in cases, to a remission of the sentence, within the conditions prescribed. Whence ticket-of- leave man. The conditions are that the holder shall preserve his license, and produce it when called tor by any ofS- cer of the peace; shall abstain from violating the laws; shall not associate with bad characters; and shall not lead an idle or dissolute life. Ticket to a theater. The lawful holder of a ticket to a seat in a theater has more than a mere license ; his right is rather in the nature of a lease, entitling him to peaceable ingress and egress, and exclusive possession ' [Allaire v. Howell Works Co., 14 N. J. L. 23 (18.33), Homblower, C. J. See generally 1 Harv. Law Rev. 17- 33 (1887), cases. ' [Rawson v. Pennsylvania E. Co., 42 N. Y. 217 (1873); Earl, C. ; Gordon v. Manchester, &c. B. Co., 52 N. H. 599 (1S73); Logan i: Hannibal, &c. K. Co., 77 Mo. 66 (1883). ' Hudson V. Kansas Pacific E. Co., 13 Rep. 295 (1883): 9 F. E. 879. H. was a " ticket broker," and the rail- road company refused to redeem tickets held by him. * Swan V. Manchester, &c. E Co., 133 Mass. 116 (1883), CQSQS, ' Little V. Dusenberry, 46 N. J. L. 643 (1884), cases; Richmond, &c. E. Co. i). Ashby, 79 Va. 133 (1884). See generally Eedf., Wood, Railw., Index " Ticket; " 9 Am. & Eng. R. Cases, 314-15, cases. of the designated seat during the perform- ance. ^ The proprietor of a theater is not bound to sell any chosen seat, for a period of opera, to the person who first presents himself at the advertised hour for the sale of seats." See Drama; Theater. TIDE. To be tidal water it is not neces- sary that water should be salt, but the spot must be one where the tide, in the ordinary course of things, flows and reflows.3 In England there is no navigable stream beyond the ebb and flow of the tide. There, therefore, tide-water and navigable water are synonymous terms, and mean nothing more than public rivers. Hence the estab- lished doctrine in that country that admiralty juris- diction is confined to the ebb and flow of the tide. In other words, it is confined to public navigable waters. And so, in early days in this country, a public river was defined as a tide-water river, "without examination whether that definition was as applicable here as in England, the navigable waters then thought of being tide-waters on the Atlantic coasts, rather than the great lakes with their tributaries.* See Aduiraltv; Lakes; I^avioable. TIE. See Vote. TIES. See Timber. TIGHT. Has no strictly technical signi- fication. 1 . In a claim for a patent to fit a vessel for sweating tobacco, means sufficiently tight to subserve the pur- pose of the invention; and an imitation less tight than the original is not thereby saved from the charge of infringement.* 3. Referring to an instrument of writing, see Sharp. TILES. See Copyright. TILL. See Until. TILLAGE. Husbandry; the cultivation of the land, particularly by the plow. See Agriculture. That is the meaning in the act of June 3. 1878 (20 St. L. 89), which permits a settler on the public lands to cut timber on his claim in order to prepare the land for tillage. He may not cut timber merely for the pur- pose of selling it.' TIMBER. Generically, only such trees as are used in building ships or dwellings. When the trunk of a tree is severed from the root and felled to the earth it becomes " tim- ' Drew V Peer, 93 Pa. 242 (1880); McCrea v. Marsh, 12 Gray, 213 (1858) — "a license, legally revocable." " Pearce v. Spalding, 12 Mo. Ap. 141 (1882). ■ Reeoe v. Miller. S Q. B. D. 630 (1883), Grove, J. * The Genesee Chief, 12 How. 454-55, 457 (1851), Taney, C. J. ; The Hine, 4 Wall. 566 (1866). » Robinson v. Sutter, 8 F. R. 830 (1881). " United States v. Willims, 18 F. R. 475, 478 i See Vigar v. Dudman, L. R., 6 C. P. 473 (1871). TIMBER 1033 TIME ber" or "lumber" according to the use to which it can be applied. i The body, stem or trunk of a tree, or the larger pieces or sticks of wood which enter the frame-work of a building or other struct- ure, excluding the plank, boards, shingles or lath used to complete the structure.^ In a contract for cutting and removing certain kinds of trees, held to refer to trees standing or felled and lying in their natural condition upon the ground, andr not to include "railroad ties" made out of the trees. 3 The particular meaning depends upon the connec- tion in which the word is used or the calling of the person by whom it is tised.** In the act of Congress of March 2, 1831 (R. S, § 2461), making it a crime to cut timber on lands of the United States for purposes of sale rather than of cultivation, " timber " refers to trees prepared for transportation, such as saw logs or lumber in bulk; * includes trees of any size that may be used in any kind of manufacture or the construction of any article. It matters not to what purposes the trees are api)lied after being cut, if converted to the use of the accused.* The homesteader may use or dispose of timber as an incident to his settlement, cultivation and improve- ment. He has only those rights in or over the prop- erty which are necessary to perfecting his title. * , Boxing pine trees for turpentine is not forbidden, where they are not upon lands reserved for the uses of the navy, and there is no intent to export, dispose of, use, or employ the trees or timber.^ An act approved June 4, 1888 (25 St. L. 166), amend- ing R. S. § 5388, provides that every person who un- lawfully cuts or wantonly destroys any timber stand- ing upon land which, in pursuance of law, may be reserved or purchased for military or other purposes, or upon dny Indian reservation, or lands belonging to or occupied by any tribe of Indians under, authority of the United States, shall pay a fine of not more than five hundred dollars or be imprisoned not more than twelve months, or both, in the discretion of the court. In a contract for the purchase of "timber" the ■ purchaser acquires no title to trees suitable only for fire-wood or cord-wood.^ An indictment for carrying away fence rails will not lie under a statute punishing cutting and carrying away timber.^ When the title to land remains in a State timber cut upon the ^and belongs to the State. While the timber is standing it constitutes a part of the realty; severed » United States v. Schuler, 6 McL. 37 (ISfiS), Wilkins, J. afiabka v. Eldred, 47 Wis. 193 (1879), Lyon, J.: Lien Act, 1862; 22 Wis. 669 — "shingles." ^ Hubbard v. Burton, 75 Mo. 67 (1881). < United States v. Stores, 14 F. R. 825 (1882), Locke, D. J. ; The Timber Oases, 11 id. 81 (1881). * United States v. Murphy, 32 F. R. 379 (1887), cases; United States v. Ball, 31 id. 667 (1887). 6 Leatherbury v. United States, 32 F. R. 780 (1887). T Nash V. Drisco, 51 Me. 418 (1864). e McCauley v. State, 43 Tex. 374 (1875). from the soil, its character is changed — it becomes personalty, but its title is not affected: it continues to be the property of the owner of the land, and can be pursued wherever it is carried. All the remedies are open to the owner which the law affords in other cases of wrongful removal of personalty.* Timber unlawfully cut by one of two owners of land may not become personalty as to the other owner unless he elects to treat it as personalty. '^ That which was real estate continues real until the owner of the freehold elects to give it a different character. 3 Where the plaintiff, in an action for timber cut and carried away from his land, recovers damages, the rule for assessing them against the defendant is: (1) Where he is a willful trespasser, the full value of the property at the time and place of demand, or of suit brought, with no deduction for his labor and expense, (2) Where he is an unintentional or mistaken tres- passer, or an innocent vendee from such trespasser, the value at the time of conversion, less the amount which he and his vendor have added to its value. (3) Where he is a purchaser without notice of wrong from a willful trespasser, the value at the time of such purchase.* See Adjacent ; Logs ; Mortgage ; Operate ; Stump ; Use, 2; Waste, 2; Woods. TIME. Has no distinctly technical signi- fication. '* Present time" usually means a period of some considerable duration — a period within which certain transactions are to take place. ** Future time " means a period to come after such present time, and after the period when such transactions have actually taken place.s Time-toargain. A contract for the sale and delivery of stock at a future day, the vendor intending to purchase the stock be- fore the day of delivery. See Futures. Time, cooling. See Cooling. Time imm.em.orial, or out of mind- Time beyond legal memory, q. v. In California, seems to be five years.* Time policy. A. policy of marine insur- ance in which the risk is limitt^d, not to a 1 Schulenberg v. Harriraan, 21 Wall. 64 (1874), Field, Judge; See also Nelson u. Graff, 12 F. R. 389, 391 (1882), cases; Putnam v. Lewis, 133 Mass. 264 (1S82). 2 Duff V. Bindley, 16 F. R. 1T8 (1883). a Rogers v. Gilinger, 30 Pa. 187-89 (1858), cases, Strong, J. ; Leidy v. Proctor, 97 id. 492 (1881). * Bolles Wooden-ware Co. v. United States, 106 U. S. 433 (1882), cases, Miller, J. See also United States v. Mills, 9 F. R. 684 (1881); United States v. Williams, 18 id. 475 (1883): Act 3 June, 1878 (20 St. L. 89), for tbP Pacific States; United States v. Leatherberry, 27 F. R. 606 (1886). » State V. Rose, 30 Kan. 506 (1883), Valentine, J. • Krippu Curtis, 71 Cal. 66 (1886); ib. 458; 70 id. 347. TIME 1033 TIME voyage, but to a period of time. See Insur- ance, Policy of. Time the essence of a contract. The general doctrine in equity is that " time is not of the essence of a contract." It often is ot the essence as to contracts for the purchase and sale of realty, so that equity will not interfere in behalf of either party. It may be made of the essence by express stipulation, or ariseby im- plication from the nature of the property, or from the avowed object of the seller or purchaser. ^ But in the contracts of merchants time is of the essence.'' Time is not, in equity, of the essence of a contract unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract. It is regarded so far as it respects good faith and diligence; but if circumstances of a reasonable nature have disabled a party from a strict compliance; or if he comes, recenti facto, to ask for a specific performance, the suit is treated with indul- gence, and generally with favor; but, in such cases, it should be clear that the remedies are mutual ; that there has been no change of circumstances affecting the character or justice of the contract; that compen- sation for the delay can be fully made ; that he who asks a specific performance is in a condition to per- form his part of a contract; and that he has shown himself ready, desirous, prompt and eager to peEform the contract.^ The doctrine was formerly carried to an unreason- able extent; in modern times it has been more guard- edly applied. Time may be made of the essence by clear manifestation of the intent of the parties, by subsequent notice from one party, by laches in the party seeking to enforce the contract, by change in the value of land, or other circumstance which would make a decree for specific performance inequitable.* See Performance, Specific. Time, reasonable. What constitutes reasonable time in a particular case must be arrived at by a consideration of all the ele- ments which affect that question ; as, when a beneficiary seeks to avoid a sale by his trustee. = What is reasonable time is nowhere so determined as to furnish a rule applicable to all oases. The ques- 1 Taylor v. Longworth, 14 Pet. 174 (1840), cases, Story, J.; Secombe v. Steele, 20 How. 101 (1857); Ahl v. John- son, ib. 620-81 (1857); Holgate v. Eaton, 116 U. S. 40 (18S5); Brown v. Guarantee Trust Co., 128»d. 414 (1888); 30 Minn. 339; IS Pa. 95; 76 Ya.. 517. "Norringtoa v. Wright, 115 U. S. 203 (1885), cases, Gray, J.; Cleveland Rolling Mill Co. v. Rhodes, 121 td. 261 (1887), cases. S2 Story, Eq. § 776; Smith v. Cansler, 83 Ky. 367, 3,4 • Carter v. Phillips, 144 Mass. 102 (1887), followm^ Barnard v. Lee, 97 id. 93 (1867); Lumber Co. v. Horri- gan, 36 Kan. 389-90(1887), cases. ■» Twin-Lick Oil Co-, v. Marbury, 91 U. S. 591 (1875). tion is to be answered in view of the particular cir- cumstances of each case; as, where an adult would disaffirm a contract made during his infancy. ' Where a demand or a notice is necessary before an action can be brought, and the time is not definitely fixed, reasonable time is allowed. What this is nec- essarily depends upon circumstances.' In computing time, "until," "from," "between," and like words generally exclude the day to which the word relates; but this rule yields to apparent in- tention.^ In the interpretation of contracts, where time is to be computed from a particular day or event, as when an act is to be performed within a specified period " from "or " aftpr " a day named, the mle is to ex- clude the day thus designated and to include the last day of the specified period.* Cases may be found in which it is held, where an act is required by statute to be done a certain number of days at least before a given event, that the time must be reckoned excluding the day of the act and that of the event. But there is no case in which it has been held that both the day of the act and the day of the event shall be included. There are cases which hold that, where the computation is to be made from an act done, the day on which the act is done is to be included. Exceptions exist to that rule, and there are many cases which hold that the last day is included and the first excluded. Different rules prevail in Mif- f erent jurisdictions. ^ See further Day, page 312. See After; At; At Least; Between; By; Forever; For; Forthwith; Immediately; Period; Shortly; Soon; Then; Thereupon; Until; When; With; — Day; Month; Week; Year; — Commence; Date; De- lay; Description, 4; Fraud; Indictment; Laches; Limitation, 3; Premeditate; Relation, 1; Stale; Temporary; Tenant; Term, 3, 4. Compare Nunc; Tempus. Time-table. A railroad company is liable for damage resulting to a passenger for a negligent fail- ure to run its trains according to its time-tables; but there must be proof of negligence. Neither a time- table nor an advertisement is a warrant of punctual- ity.' Reasonable notice must be given of a change of time.' ■Sims V. Everhardt, 102 U. S. 309 (1880), cases. Strong, J. See also Be Estate of Weston, 91 N. Y. 508 (1883); Gilflllan v. Union Canal Co., 109 U. S. 4M (1883); 18 Cent. Law J. 225-39(1884), cases; 27 id. 376-80 (1888), cases; 10 Wall.; 129; Baldw. 331; 6 McLean, 296; 1 Newb. 171; 71 Ala. 167; 3 Col. 640; 59 Iowa, 452; 101 Mass. 409; 20 Mich. 195; 30 Minn. 415; 77 Pa. 228; 65 Vt. 376; 11 Wis. 417. 5 Atchison, &c. R. Co. v. Burlingame Township, 36 Kan. 631-35 (1887), oases. 3 Kendall v. Kingsley. 120 Mass. 93 (1876), cases. 4 Sheets v. Selden, 2 Wall. 190 (1864), cases. » Dutcher v. Wright, 94 U. S. 559-61 (1876), cases. eSee Whart. Neg. § 662, cases; Angell, Carriers, 527 a; Gordon v. Manchester, &c. E. Co., 53 N. H. 696, 600 (1873), cases; 2 Wood's Ry. Law, 1174; 9 Am. & Eng. K. Cases, 315. ' Sears v. Eastem.R. Co., 14 Allen, 437 (1867), cases. TIMET 1034 TITLE Timely. See Dub, 2 ; Notice. TIMET. See Quia Timet. TINCTURES. See Liquor. TIPPLING-HOUSE. A place of pub- lic resort where spirituous, fermented, or other intoxicating liquors are'sold and drank in small quantities, without a license there- for, i A public drinking house — where intoxi- cating liquor is either sold by drams to the public or else is given away, and imbibed.^ TIPSTAPE. (Plural, tipstaves.) 1. An oificer appointed to attend upon the judges of the king's courts with a staff or rod tipped with silver as a sign of authority, and to take into charge persons committed by the court.' 3. An ofEcer who waits upon a court in session, preserving order, caring 'for jurors and juries, serving processes, etc. Compare Bailiff, 3 ; Crifji. TITHE. The tenth part. Almost all the tithes of England have been com- muted into rent charges, under statute of 6 and 7 Wm. IV (1836), c. 71, and amendments thereto.* TITLE.5 1. The means whereby the owner of land has the just possession of his property, s Titula est justa causa possidendi id quod nostruvfi est: a title is the just right of possessing that which is our own;' the lawful cause or ground of possessing that which is ours.^ In ordinary acceptation, the right to or ownership in land. Having title to a farm means owning it; which corresponds with the legal meaning. He who has possession, the right of possession, and the right of prop- " erty has a perfect title.' A person may have a title to propt^rty although he is not the absolute owner. If he has the actual or ' Emporia v. Volmer, 12 Kan. 633 (1874), Brewer, J. 2 Minor d. State, 63 Ga. 318 (1879); Koop w. People, 47 111. 329 (1868); Morrison v. Commonwealth, 7 Dana, *219 (1838). ' [Jacob's Law Diet. « See 2 Bl. Com. 24-,33. »F. title: L, titulus, superscription; bill, placard, notice. «3B1. Com. 195. ' 1 Coke, Inst. 345 b; 3 Bl. Com. 195; 34 Cal. 385; 4 Conn. 55; 11 N. J. L. 62; 81 Va. 3S3. 8 Merrill v. Agricultural Ins. Co., 73 N. Y. 456 (1878); 6 Hill, 537; 83 111. 458; 3 Tex. 468; 81 Va. 383; 3 Washb. E. P. 399. > [Shelton v. AIcox, 11 Conn. »249 (1836), Williams, C. J.; 2 Bl. Com. 195; 1 Kent, 177-78; 4 id. 373-74. constructive possession, or t^ie right of possession, he has a title. ^ Within the meaning of the rule that a tenant is es- topped from alleging that his landlord has no *' title," means paramount right of possession.^ In modern use includes personalty as well as realty, and may' be defined to be such claim to the exclusive control and enjoyment of a'thing as the law will en- force. The word points to the right rather than to the actuality of ownership. In the definition in old books " means " seems to refer to remedies or acts for ob- taining possession.' Titles are, or have been, acquired by abandonment, accession, accretion, confusion, contract, creation, de- scent, devise or bequest, eminent domain, escheat, execution, forfeiture, gift, grant, judicial decree, mar- riage, occupancy, possession, prerogative, prescrip- tion, purchase, succession, will, qq. v. Absolute title. This cannot exist at the same time in different persons or in different governments. To be " absolute " it must be exclusive, or, at least, exclude all others not compatible with it.* Abstract or brief of title. See Ab- stract, 3. Adverse title. See Possession, Adverse ; Warranty, 1 ; Water. Apparent title. See Apparent, 3. Doubtful title. See Marketable Title. Good title; perfect title; ■uniricum- bered title. A "perfect title" is a title good in law and in equity.^ A "good unincumbered title" imports an estate without any prior claim, to continue forever, and hav- ing no qualification or condition in regard to its con- tinuance.* When an agreement to convey a title is silent as to the character of the title, and there is no evidence in- dicating the cliaracter intended, an, implication arises -that the title is to be' a good one, and therefore free from incumbrance.' See Marketable Title; Deed, 2. Legal title. A right in the nature of ownership cognizable by, and enforceable in, a court of law. Equitable title. A title available or enforcible in a court of equity. Thus, the legal title to land conveyed remains in the vendor until all the purchase-money has been paid; while the vendee acquires an equitable title only. As the payments by the vendee increase his ' Roberts v. Wentworth, 5 Cush. 193 (1849). ' Kodgers v. Palmer, 33 Conn. 156 (1865). ' [Abbott's Law Diet.] * Johnson v. M'Intosh, 8 Wheat. 588 (1823), Marshall, Chief Justice. ' [Warner v. Middlesex Mut. Assur. Co., 81 Conn. 448 (1852). • Gillespie v. Broas, 23 Barb. 375 (1856). ' Newark Sav. Institution v. Jones, 37 N. J. E. 451 (1883). TITLE 1035 TITLE equitable interest increases; and when the price has been fully paid the entire title is vested in him and he can compel a conveyance of the legal title. The vendor is a trustee of the legal title to the extent of the pay- ments.' A legal title to real estate acquired subsequent to the lease by a lessor owning the equitable title inures to the benefit of the lessee.' In the Federal courts, a party who claims a legal title must proceed at law; and a party whose title or ■ claim is equitable must follow the forms and rules of equity as prescribed by the Supreme Court under the act of 1848.S " The mistake in this case does not appear to have been discovered by Smith [who purchased from the United States a certain S. E. H section of land, erro- neously described by the register as the S. W. )4 sec- tion, which had been previously entered by another] or by those claiming under him, untU after Widdi- combe had got his patent, and after they had been in the undisputed enjoyment for thirty-five years of what they supposed was their own property under a com- pleted purchase with the price fully paid. Widdi- combe, being a purchaser with full knowledge of their rights, was in law a purchaser in bad faith; and as their equities were superior to his they were enforce- able against him, even though he had secured a patent vesting the legal title in himself. Under such circum- stances, a court of chancery can charge him as a trustee, and compel a conveyance which shall convert the superior equity into a paramount legal title. The cases to this effect are many and uniform. The holder of a legal title in bad faith must always yield to a superior equity. As against the United States his title may be good, but not as against one who had ac- quired a prior right from the United States in force when his purchase was made and under which his patent issued. The patent vested him with , the legal title, but it did not determine the equitable relations between him and third persons." * See Lien, Equi- table, Vendor's ; Tacking. Marketable title. Such title as a court of equity would require a purchaser to ac- cept. A purchaser cannot be compelled to accept a doubtful title, or one which the court cannot warrant to him; the question being, not whether the title is good, but whether it is clearly s6. A title is " doubt- ful" when its condition invites litigation. A pur- chaser cannot be compelled to take such a title, if he thereby exposes himself to a law-suit. When doubts are raised by extrinsic circumstances, which neither the purchaser nor the court can satisfactorily investi- gate for want of means, the court will refuse its aid; ' Jennisons v. Leonard, 21 Wall. 309 (1874); Cordova 0. Hood, 17 id. 5-6 (1872), cases; Lewis v. Hawkins, 23 id. 125-37 (1874), cases. ' Skidmore v. Pittsburgh, &0. E. Co., 112 U. S. 33 (1884); Gregory v. Peoples, 80 Va. -357 (1885). >R. S. § 913; Hunt v. Hollingsworth, 100 U. S. 103 (1879). ♦ Widdicombe v. Childers, 124 U. S. 404 (1888), cases, Waite, C. J. when the means of inquiry are offered, and the result is satisfactory, performance will be enforced.' A possibility of a contest is not sufficient; it must be considerable and rational; such doubt as would m- duoe a prudent man to pause and hesitate, and as would produce a 6o7ia fide hesitation in the mind of a chancellor.* Equity will not decree specific performance where that would compel the defendant to accept a doubtful title. The purchaser has a right to a marketable title. He may not refuse to perform the contract because a fanciful or speculative doubt as to its validity may be suggested. But a title open to a reasonable doubt is not marketable, and, unless the defect is such that substantial justice can be done by allowing compen- sation, the purchaser will not be subjected to the con- tingency of being disturbed, or of having his title successfully challenged when he comes to part with it. In such actions, unless the party is present in whom the outstanding right is vested, the court will not undertake to cure infirmities by deciding a dis- puted question, of fact or law, but will refuse to de- cide for or against the validity of the title.^ The doctrine of constructive notice has been most generally applied to the examination of titles to real estate. It is the duty of a purchaser to investigate the title of the vendor, and to take notice of any adverse rights or equities of third persons which he has the means of discovering and as to which he is put on in- quiry. If he makes all the inquiry which due dili- gence requires, and still fails to discover the outstand- ing right, he is excused; but if he fails to use due diligence, he is chargeable, as a matter of law, with notice of the facts which the inquiry would have dis- closed.* See Inquiry, 1. Paper title. ' ' Color of title " is not syn- onymous with "claim of title:" for to the former a paper title is requisite, while the latter may exist wholly in parol.' Title-deed. Deeds evidencing one's right to land are his " title-deeds," otherwise called his muniments (g. v.) of title. An equitable mortgage is effected by a deposit of title-deeds. A mortgagee who allows his mortgagor to retain the title-deeds, and to raise money on a sec- ond mortgage by concealing the first mortgage, will be postponed to the second incumbrancer. See Mort- gage, Equitable. See generally Acquike; Chain; Cloud; Color, 2; Conveyance, 2; Covenant; Descend; Devolution, 2; Ejectment; Failure; Pass, 1, 5; Patent, 2; Posses- sion; Prescription, 3; Quiet, 2; Eelatioh, 1; Seisin; Slander, 2; Tenant; Transfer. 'Kostenbader u. Spotts, 80 Pa. 434-35, 437 (1876), cases, Gordon, J. ' Stapylton v. Scott, 16 Ves. 272 (1809), Eldon, Ld. Ch.; 21 Cent. Law J. 164 (1886). s Adams v. Valentine, 33 F. E. 2-3 (1887), cases, Wal- lace, J.; Jeffries v. Jeffries, 117 Mass. 187 (1875); Ches- man v. Cummmgs, 142 id. 67-68 (1886), cases. « Parker v. Conner, 93 N. T. 124 (1883), Eapallo, J. ' Hamilton v. Wright, 80 Iowa, 486 (1870). TITLE 1036 TITLE 2. As applied to a literary production : a heading, caption, name or designation given to the document or work as a whole or to one of its larger divisions. Title of a book. In copyright law, the name by which a book or other literary com- position is known. The theory of the copyright statutes is that every boolc must have a.title, a name or designation — some- thing short and convenient by which it may be iden- tified; that that name must appear on it, or in it, when published, on a title-page or its equivalent; and that such title or page must have been deposited, be- fore the publication of the book, in the designated office. The copyright to be protected is the copyright in the book. A printed copy of the title of the book is required to be deposited, before publication, only as a designation of the book to be copynghted. The title is " a mere appendage, which only identifies, and fre- quently does not in any way describe, the literary composition itself, or represent its character." The title alone is never protected separate from the book which it designates.' See Copyright ; Printed. Title of a cause. The distinctive desig- nation of a, cause, giving the style of the court, the venue, names of plaintiff or peti- tioner and defendant, and, pei'haps, also the calendar or docket number of the case. Title of a paper or pleading. The title of an afifidavit, of a declaration, pleading or other paper filed, or to be filed, in a suit, means the title of the proceeding as written at the head of such paper. Whence " to en- title " a case, cause, pleading. See Caption, 3; Venue; Versus. Title of an act, bill, or statute. The language, at the beginning, in which its gen- eral nature or purpose is declared or indi- cated, and by which it is distinguished from other statutes, or from other chapters of the same statute-book, or even from other parts or chapters of the same enactment or bill. The title of an act furnishes little aid in the con- strudtion of its provisions. Formerly, in the English courts, it was regarded as no part of the act: it was framed by a clerk of the House in which the act orig- inated, as a convenient means of reference. At the present day it constitutes a formal part of the act: it cannot be used to extend or to restrain positive provis- ions contained in the body of the act. Where the meaning of these is doubtful, resort may be had to it, but even then it has little weight: it is seldom the sub- ject of special consideration by the legislature.' Com- pare Preamble. "Donnelley v. Ivers, 18 F. E. ,594-95 (1S3.!), cases, Blatchford, J. ' Hadden v. The Collector, 5 Wall. 110 (1866); United The constitutions of the States provide that no bill or act, except general appropriation bills, shall con- tain more than one subject, and that that subject shall be clearly expressed in the title of the bill or act. The title of a statute need not index all the contents of the enactment, but it should fairly suggest the re- lated subjects — give such notice of the general sub- ject as will lead to inquiry into the contents. ^ Provis- ions not covered by the title will be declared void. If a supplement is germane to the original act it may suffice to style it a " supplement " to such original.' The purpose is to secure a separate consideration of every subject presented for legislative action, and a conspicuous declaration of that action. Substantial unity in the statutable object is all that is required.' If the several sections are germane to t"he subject- matter, which is described in the title, the statute em- braces a single subject. The title need not give an abstract of the contents nor specify the means by which the general purpose is to be accomplished. Particular sections may be rejected, if the integrity of the act remains.^ The provision is directed against the practice of embodying numerous objects in one act, thus passing measures which would not be discovered by reading the title only. The requirement that all bills shall be read at length before final passage gives an additional safeguard against fraudulent legislation, and makes it unnecessary, except in special cases, to construe the provision with strictness.* The objections should be grave, the conflictbetween the statute and the constitution palpable, before the judiciary disregard anenactmeut upon the sole ground that it embraces more than one object, or, if but one object, that it is not sufficiently expressed by the title. * The purpose is met when a law has but one general object, fairly indicated by the title. To require every end and means necessary or convenient for the accom- plishment of the general object to be provided for by a separate act relating to that alone wotild be un- reasonable and render legislation impossible.' See Grant, 3. 3., Such right of action as a plaintiff relies upon, alleges or proves. See DECtARATiON, 2. 4. In the law of trade-marks, a title may become the subject of property ; as, by long States D. Union Pacific E. Co., 91 U S. 82 (1875); People V. Davenport, 91 N. Y. 585 (1883), cases; Wilson v. Spaulding, 19 F. E. 306,(1884). ' State Line & Juniata E. Co.'s Appeal, 77 Pa. 431 (1875), cases. 2 Eader v. Union Township, 39 N. J. L. 512 (1877), Beasley, C. J. Approved, 107 U. S. 155, infra. 3 Baltimore v. Eeitz, 50 Md. 679 (1878). • Henderson v. Jackson County, 2 McCrary, 619 (18S1). 5 Montclau- v. Eamsdell, 107 U. S. 155 (1883). * Gooley, Const. Lim. *144, cases; Klein v. Kinkead, 16 Nev. 202 (1881), cases; Mahomet v. Quackenbush (111.). 117 U. S. 513 (1886). oases; Otoe County v. Bald- win (Neb.), Ill id. 16 (1833), cases; Acldey School Dis- trict V. Hall (Iowa), 113 id. 142 (1885), cases; Carter County V. Sinton (Ky.), 120 id. 522-23 (1887), cases. TITULUS 1037 TOLL and prior use or by registration and notice under statutes. See Trade-maek. 5. As used with reference to the naval and military service, "title" is the name by which an office, or the holder of an office, is designated and distinguished, and by which the officer has a right to be addressed, i " Grade " is one of the divisions or degrees in the particular branch of the service, according to which officers therein are arranged; "rank "is the position of officers of different grades or of the same grade, in point of authority, precedence, or the hke, of one over another. Sometimes " rank " is used as synonymous with "grade," and the title of an officer (e. g., admi- ral, or vice-admiral) may denote both his grade and rank,^ g. v. 6. An addition to one's name ; as, a title of office, of honor, or nobility. See Addition, 2. In England, titles of nobility are hereditary. " No Title of Nobility shall be granted by the United States: And no Person Holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept any present. Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." - " No State shall . grantany Title of Nobility." ' Titles of nobility were thought inconsistent with the theory of republican institutions, which is perfect equality of rights. The first provision quoted antici- pates and prevents foreign influence in the affairs of government.* See Ministek, 3; Natdralization, "Fourth;" Bank. TITULtrS. See Title, 1. TO. A term of exclusion, unless by nec- essary implication it is used in a different sense.5 Has no precise legal meaning; may signify "within" or "into:" as, where a road is chartered to run " to a city." * As commonly used, conveys the idea of moving to- ward and reaching a specified point; and the meaning is not satisfied unless the point or object is actually at- tained But the word sometimes embraces a part of this idea only, or it is simply a word of direction, as we say " to the north " when we mean in that direc- tion merely, or as in the array an officer might com- mand a wo'unded man, or impedimenta, to be taken to the rear. In many cases the meaning is nearly syn- onymous with "toward." ' Compare At, 2; Feom. To let. See Lease, Let. To wit. See Wit. TOBACCONIST. Any person, firm, or corporation whose business it i^ to manufact- ure cigars, snuff, or tobacco in any form.2 TOIL. See Labor, 1. TOKEIir.3 In a statute punishing false pretenses: a sign, mark, symbol. "Written token " will include matter printed or litho- graphed.* Tokens are public or general, or privy; and, either false or true. Cheating by a false token is by any material de- vice that may be used to perpetrate the offense of obtaining property by false pretenses," q. v. A bank check is a false token when the drawer knows that he has no funds with which to meet it, nor credit upon which he can draw." TOLL.' 1, V. To bar, defeat, take away: as, to toll an entry into lands; entry toUs the statute of limitations. Tolled: removed, barred. 2, n. A Saxon word, originally signifying a payment in towns, markets, or fairs for goods and cattle bought and sold there. Now, popularly appUed to the charges which canal and railroad companies make for transport- ing goods.* The legal meaning is, a tribute or custom paid for passage, not for carriage — always something taken for a liberty or privilege, not for a service ; and such is the common understanding.^ Thus, the tolls taken by a turnpike or canal com- pany do not include charges for transportation; such tolls are merely an excise to be paid for using the way.» In common-law usage, "toll" applies to a large class of dues and exactions in the nature of fixed rights, and which cannot lawfully be exceeded. It is almost universally connected with some franchise, which involves duties as well as privileges of a public or private nature. The right to receive fixed tolls is found in fairs, markets, mills, turnpikes, ferries. .Commission of Pay-Inspector in the Navy, 16 Op. Att.-Gen. 416 (1880), Devens, A.-G.; n.S. §1480; Ee a. tive Bank of Assistant Surgeons, 16 Op. Att.-Gen. 651 (1880). 5 Constitution, Art. I, see. 9, cl. 8. ' Ibid. sec. 10, cl. 1. « 9 a plow, harrow, and drag," and like articles; " a printing press, cases, and type; '» a shovel, ax, fork, and hoe; '* watches." Not included: a threshing-machine; ■' the blocks of an oil-cloth printer; " a lawyer's library; '» the ma- chinery and implements constituting an extensive factory." See BAaoAGE; Exemption; Implement; Mechanic; Trade. TOOTH. See Mayhem. TORNADO. See Lightning. TORPEDO. See Fireworks. A train of ears passed over, leaving unexploded, a signal torpedo, which was picked up by a boy at a point where the public were accustomed to cross the track as the railroad authorities knew. While at- tempting to open the torp Co It -xploded and injured a companion, the plaintitl. Beld, that the plaintiff could recover damages; and that the fact that the tor- pedo had been used contrary to rules did not exempt the company from liability.-"' TORT.21 1. Fr. Improper, unlawful con- duct; wrong. De son tort. Of his own wrong; by ac- tion not authorized by law. Applied to a person who, without proper authority, takes upon himself to act as executor by intermed- ' Fish V. Street, 27 Kan. 271 ( ' Baker v. Willis, 183 Mass. 195 (1877). > Goddard v. Chaffee, 8 Allen, 39S (1861). * Amend v. Murphy, 69 111. 388 (1878). ' Maxon v. Perrott, 17 Mich. 334 (1868). •Whiteomb v. Eeid, 31 Miss. 569 (1856); Robinson's Case, 3 Abb. Pr. 467 (1856). ' Sammis v. Smith, 1 N. Y. Sup. Ct. 446 (1873). s Choate v. Redding, 18 Tex. 680 (1857). » Howard v. Williams, 2 Pick. 83 (1824). >» HaiTison v. Mitchell, 13 La. An. 260 (1858). '1 Wilkinspn v. Alley, 45 N. H. 651 (1864). " DaUey v. May, 5 Mass. "SIS (1809) ; Garrett v. Patchin, 89 Vt. 248 (1857); Pierce v. Gray, 7 Gray, 68 (1856). '"Patten v. Shepard, 4 Conn. 453 (1823); Smith v. Os- bum, 63 Iowa, 475 (1880); Jenkins v. MoNall, 27 Kan. 532 (1882). Contra, Buckingham v. Billings, 13 Mass. *86(1816); Danforthu Woodward, 10 Pick. 487 (1830); Oliver v. White, 18 S. C. 341 (1882). ■» Pierce ti. Gray, 7 Gray, 68 (1666). "Rothschild t). Boelter, 18 Minn. 362 (1872); Bitting V. Vandenburgh, 17 How. Pr. 83 (1859). ■•Johnson v. Barrett, 34 Barb. 364 (1861); Seeley v. Gwillim. 40 Conn. 109 (1873). >' Richie v. McCauley, 4 Pa. 471 (1846). 1 8 Lenoir v. Weeks, 20 Ga. 596 (1856). " Boston Belting Co. v. Ivens, 38 La. An. 596 (1876). " Harriman v. Pittsburgh, &c. E. Co., 45 Ohio St. 11, 19 (1887), citing many cases on negligence. " L. tortus, twisted, bent, wrung. TOET 1040 TORT dliiig with the goods of the deceased;' also, to a trustee who, of his own authority, enters into the pos- session, or assumes the management of property which belongs beueflcially to another." See further Executor. ^ Nul tort. No wrong done : the general issue in a real action. 3 3. Eng. An injury done, to one's person or property, by another. A private wrong, or civil injury.* ' Actual legal damage to the plaintlflf, and a wrongful act committed by the defendant.^ An unlawful act done in violation of the legal rights' of some one.^ An invasion of the legal rights of another accompanied by damages.' Ordinarily, the essence of a tort consists in the vio- lation of some duty due to an individual, which duty is a thing different from the mere contract obligation. An omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty. That legal duty may arise from circum- stances not constituting elements of the contract as such, although connected with and dependent upon it, and born of that wider range of legal duty which is due from every man to his fellow, to respect his rights of property and person, and to refrain from invading them by force or fraud.' ActuaJl loss is not now invariably necessary. If a legal right has been violated, the law will presume damage, so far as to allow an action, and refer the question of the amount to the judgment of a jury. But if no legal right is infringed, no action is main- tainable, however great the loss." See further In- jury. Used with reference to admiralty jurisdiction, " tort " is not confined to injuries committed by direct, force. It includes, also, wrongs suffered in conse- quence of the neglect or malfeasance of another, where the remedy at common law is by an action on the case. 1° - * ' Tort-feasor. One who commits a tort ; a wrong-doer. Tortious.ii Of the nature of a tort ; hav- 1 Brown v. Leavitt, 26 N. H. 495 (1853): 2 Leigh, N. P. 957; Emery v. Beriy, 28 id. 481 (1854). ' Morris v. Joseph, 1 W. Va. 259 (1866): Hill, Trustees, «46. 3 3 Bl. Com. 305. * [3 Bl. Com. 117, 2. 9 [Rex V. Pagham Commissioners, 15 E. C. L. 361 (1828), Bayley, J. 'Langford v. United States, 101 U. S. 345 (1879), Miller, J. '' Chesley v. King, 74 Me. 173 (1882), Barrows, J. » Rich V. N. Y. Central & Hudson Biver R. Co., 87 N. Y. 390, 393 (1882), Finch, J. ' Addison, Torts, 2. 1" Philadelphia, &o. B. Co. v. Towboat Co., 23 How. 315 (1859), Grier, J. " Tor'-shus. TortMous is obsolete. ing the elements of a civil or private injury ; wrongful in law. The acts which constitute torts are injuries to one's person, property, or reputation; more particularly: assault and battery; conspiracy; conversion; deceit; enticement and seduction; false imprisonment; in- fringement of a copyright, patent, or trade-mark; malicious prosecution; negligence; nuisance; slander, and, libel; trespass on land; violation of the right of support, and of water-rights; damage by animals; damages from unlawful sales of liquor, — any violation of a right or breach of a duty causing damage to a person who is himself without fault. The right or duty may exist at common law or be created by statute.' The common-law forms of action founded upon tort are: detinue, replevin, trespass, trespass on the case, trover. The most common remedy has been action on the case. The employer is liable for a wrong done, whether through negligence or malice, by his employee when engaged in the performance of a duty which the . em- plo.yer owes to the person injured. For example, if a railroad company does not protect f emsQe passengers on its trains from assault by its own trainmen, it may be made to pay damages." The result of the cases is that f oi!" an act done by the agent of a private corporation, in the course of its business and of his employment, the corporation is responsible, as an individual under similar circum- stances." A corporation is liable for every wrong it com- mits — the doctrine of itZfra vires having no applica- tion — whether for assault and battery, fraud and deceit, false imprisonment, malicious prosecution, or libel. It may even be indicted for misfeasance or, non-feasance touching duties imposed upon it in which the public are interested.* As to municipal corpoi-ations, some cases hold that the adoption of a plan for an authorizbd work is -a judicial act, and that if injury arises from the execu- tion of that plan no liability exists; other cases, that for negligent exercise of a public good in itself, or for ■ See Addison, Torts, §§ 53-77; Cooley, Torts, 650; Underbill, Torts, 20. = Craker v. Chicago & Northw. B. Co., 36 Wis. 667, 6G8-79 (1875), cases, Ryan, C. J. The plaintiff, a school teacher, recovered $1,0()0 damages from the defendant, for the insult, and assault of a conductor who kissed her some five or more times. See New Jersey Steam- boat Co. V. Brockett, 121 U. S. 645 (1887), cases; as to malicious tolrts by agents, 26 Am. Law Reg. 609-20 (1887), cases; 1 Law (Juar. Rev. 207-24 (1885), cases. = Philadelphia, &c. R. Co. v. Quigley, 21 How. 210 (1858), cases; Baltimore & Potomac B. Co. v. First Baptist Church, 108 U. S. 330 (1883); Salt Lake City v. Hollister, 118 id, 261-63 (1886), cases; Denver, &c. B. Co. V. Harris, 123 id. 597, 608 (1887), cases; Woodward V. Webb, 65 Pa. 269 (1870), cases. The Cummings, 18 F. E. J 78 (18&3), cases; The Mar- garet, 94 U. S. 497 (1876), eases. , '2 M'Connochie v. Kerr, 9 F. E. 63 (1881), cases. Brown, D. J. ' ' Baker v. Hemenway (The City of Valparaiso), 2 Low. 603 (187,6), cases. * Hudson V. State, 6 Tex. Ap. 675 (1879). ' Chicago & Northwestern E. Co. v. Town of Oconto, 50 Wis. 193-94 (1880), Orton, J. » 1 Bl. Com. 114; Odegaard v. City of Albert Lea, 83 Mmn. 361 (1885), cases; 24 Ind. 287; 54 N. H. 63; 40 N. J. L. 4; 6 Daly, 356; 3 E. I. 266; 40 Wis. 44. made out of the towns. In the Western States, when an organic law is first made for the government of the whole territory, or a constitution is formed for the whole State, counties are formed first, and towns within them afterward ; but the original meaning of a, town as " a subdivision of a county" remains the same.i In some parts of the United States, " town " signi- fies a civil division of a county, irrespective of incorpo- ration or powers of government: such as is elsewhere called a " township; " in other parts, a species of mu- nicipality more highly organized than a "village,"' and less so than a "cit.v." In instances, the word means a territorial division only, to avert which con- structipn " incorporated town " is used." According to the dictionaries the word " town " signifies any walled collection of houses. (Johnson.) But that is its antique meaning. By modem use it is said to be applied to an undefined collection of houses, or habitations; also to the inhabitants; emphatically to the metropolis. (Eichardson.) Again, a town is any collection of houses larger than a village; or any niun- ber of houses to which belongs a'regular market, and which is not a city. (Johnson, Webster, Ogilvie.) The same authorities define a " village " as a small collec- tion of houses in the country, less than a town. . In New England and New York, towns are the polit- ical units of territory, into which the country is sub- divided, and answer, politically, to parishes and hun- dreds in England, but are vested with greater powers of local government. In Delaware, the counties are divided into hundreds, "town" and "village" being indiscriminately applied to collections of houses. In Maryland and most of the Southern States, the polit- ical unit of territory is the county, though this is some- times divided into parishes and election districts for limited purposes; and "town" is used in a broad sense to include all collections of houses from a city down to a village. In New Jersey, Pennsylvania, Ohio, Indiana, Michigan, and Illinois, the subdivisions of a county, answering to the towns of New England and New York, are called townships, though " town " is also applied to them in Illinois. In these States "town" and "village "are indiscriminately applied to large collections of houses less than a city.^ The system of survey of government lands, estab- lished in 1796, divided territory into townships six miles square, and these again into sections each a mile square.* See Boeotjgh; By-law, 1; Citt; School; Pueblo; Village. TRACING. A mechanical copy or fao simile of an original, produced by following ' Chicago & Northwestern E. Co. u Town of Oconto, ante. 2 [Abbott, Law Diet.; 82111. 110; 60 id. 468; 55 id. 346; 46 111. 256; 30 Minn. 189; 40 N. H. 173; 12 N. J. E. 299; 17 Ohio St. 271 ; 13 E. I. 85; 40 Wis. 124; 15 F. E. 846. s Town of Enfield (Illinois) v. Jordan, 119 U. S. 684-86 (1887), Bradley, J. » Act of Congress 18 May, 1796, § 2: 1 St. L. 464. TRACK 1043 TRADE its lines, with a pen or pencil, through a transparent medium called tracing paper.' TRACK. See Extend ; Railroad. TRACT. Does not imply anything as to the size of the parcel of land.2 See Par- cel, 2. TRADE. Generally, equivalent to occu- pation, employment, or business, whether manual or mercantile ; any occupation, em- ployment, or business carried on for profit, gain, or livelihood, not in the liberal arts or in the learned professions.' The business or occupation which a person has learned and carries on for procuring sub- sistence, or for profit; particularly, a me- chanical employment, distinguished from the liberal arts and learned professions, and from agriculture.* In its broadest signification, includes not only the business of exchanging commodi- ties by barter, but the business of buying and selling for money, or commerce and traffic generally.* In the expression " implements of a debtor's trade " the reference is to the business of a mechanic, — car- penter, blaclismith, silvei-smith, printer, or the lilce,'* Trader; tradesman. Primarily, one who trades. But "tradesman" usually means a shopkeeper.'' Trader. One who buys and sells goods; " one who makes it his business to buy mer- chandise, or goods and chattels, and sell the same for a profit." 8 One who sells goods substantially in the form in which they are bought. Any gen- eral definition would fail to suit all cases ; each case has its peculiarities.' In England, applied to small shopkeepers ; in the United States, rarely to persons en- gaged in buying and selling, generally to mechanics and artificers of every kind, 1 Chapman v. Ferry, 18 P. R. 640 (1883), Deady, J. ' Edwards v. Derrickson. 28 N. J. L. 45 (1859). 8 [The Nymph, 1 Sumn. 518 (1834), Story, J. » [Whitcomb v. Reid, 31 Miss. 669 (1856): Webster. » May u Sloan, 101 U. S. 237 (1879), Bradley, J. " Atwood V. De Forest, 19 Conn, *517 (1849), Hinman, J.: 40 id. 109; 44 id. 99 (1870); 11 Mete. 79; 6 Gray, 898; 23 Iowa, 359. 'Be Eagsdale, 7 Biss. 155 (1876), Gresham, i. " [Be Smith, 2 Low. 70 (1871); 80 N. C. 479; 4 B. & A. 514. •Sylvester v. Edgeoomb, 76 Me. 500 (18S4), Peters, Chief Justice. whose livelihood depends upon the labors of their hands.' Tradesman. Cannot be restricted to mean traders, in the large sense of our bankrupt laws. Most often synonymous with shop- keeper. 2 Was imported from the English bank- rupt act, and refers to a smaller merchant or shopkeeper. 3 See Merchant ; Peddler. An agreement in general restraint of trade is ille- gal and void. An agreement which operates merely in partial restraint is good, provided it be not unrea- sonable and there be a consideration to support it. In order that it may not be unreasonable, the restraint must not be larger than is required for the necessary protection of the party with whom the contract is made. The application of the rule is somewhat diffi- cult. A contract not to exercise a trade in a particu- lar State is generally held to be invalid, on the ground that it would compel ^ man to transfer his residence and allegiance to another State in order to pursue his vocation. The cases are to be judged according to their circumstances. The grounds of the rule are, further: the injury to the public by being deprived of the restricted party's industry; and the injury to the party himself by being prevented from supporting himself and his family. Both these evils occur when the contract is general — not to pursue the trade at all, or in the entire country. But if neither evil en- sues, and the contract is founded on a valuable con- sideration and a reasonable ground of benefit to the other party, it is free from objection. A stipulation by a vendee of any trade, business, or establishment, that the vendor shall not exercise the same trade or business, or erect a similar establishment within a rea- sonable distance, so as not to interfere with the value of the trade, business, or thing purchased, is reason- able and valid. So also is a stipulation by a vendor of an article to be used in a business in which he is him- self engaged, that it shall not be used within a reason- able region or distance, so as not to interfere wfth his business. The point of difficulty is to determine what is a reasonable distance. This must depend upon the circumstances of the particular case. If the distance be such that the business cannot possibly be affected, the stipulation is unreasonable.* It was one of the most ancient rules of the common law that all contracts in restraint of trade were void. This was settled law in England as earl.y as 1415, and its courts would not then tolerate the least infraction of the rule. It was enforced with severity, and doubt- less grew out of the law of apprenticeship, under which no one could earn a livelihood at any trade until after long service, and then he must continue in the > Richie V. McCauley, 4 Pa. 472 (1840), Bell, J. 'Be Cots, 2 Low. 376-77 (1874), Lowell, J.; Be Smith, ib. 70 (1871); 9 Boned. 66, 309, 811. nBe Stickney, 5 Dill. 91 (1878), Dillon, Cir. J.; R, S. § 5110. * Oregon Steam Navigation Co. v. Winsor, 20 Wall. 66-69 (1873), eases, Bradley, J. TRADE 1044 TRADErMARK one adopted or have none. For two hundred years the rule existed, without exception, that all contracts in restraint of trade were void. It was qualified, how- ever, as the law of apprenticeship broadened; and a distinction was then drawn by the cases of Broad v. Jollyfe, 3 Cro. Jac. 696 (1623), and Mitchel v. Rey- nolds, 1 P. Wms. 181 (1711), between a general and a limited restraint of trade. Other decisions followed, until it became the settled English rule that while a contract not to do business anywhere is void, one stipulating not to do so in a particular place, or within certain limits, is valid. This has ahyays been the rule in this countiy, and the wisdom, of it cannot be doubted. It is eminently suited to the genius of our institutions. It prevents building up monopolies and the creation of exclusive privileges. Contracts in general restraint of trade produce them ; they tend to destroy industry and competition, thus enhe.ncing prices and diminishing the products of skill and energy; they impair the means of livelihood and injure the public, by depriving it of the services of men in useful employments. This reasoning, how- ever, does not apply to such contracts as impose a special restraint; as, not to cari'y on trade at a partic- ular place, or with certain persons, or for a limited reasonable time. Indeed, a particular trade may be promoted by being limited for a short period to few persons, and the public benefited by preventing too many from engaging in the same calling at the same place. If, therefox'e, the limitation be a reasonable one, it will be upheld.' A contract not to engage in a business, directly or indirectly, for five years, may not extend to isolated acts, or to occasional services voluntarily rendered in good faith for the accommodation of another; nor will it include a subordinate employment not affecting the management of the business nor directly influencing custom.'' A covenant to retire from business " so far as the law allows " was held to be too vague to be enforced.^ See Aht, 3; Business : Combination, 2; Condition; Distress; Manufacture; Monopoly; Tools. See especially Trust, 2. Trade-dollar. See Coin. ■ Sutton 11. Head, 85 Ky. — (1838), cases. The grantee under a deed containing a condition that in- toxicating liquors should not be retailed on the prem- ises claimedi th^t the contract was in restraint of trade, and void. 2 Nelson v. Johnson, 38 Minn. — (1888), cases. 3 Davies v. Davies, S8 Law T. R. 209 (1887). See generally Oregon Steam Nav. Co, v. Hale, 1 Wash. T. 284 (1870), cases; Morris Run Coal Co. v. Bar- clay Coal Co., 68 Pa. 184-86 (1871), cases; Smith's Ap- peal, 113 id. 690 (1886); Albright v. Teas, 37 N. J. E. 171 (1883); Mandeville v. Harman, 42 id. 186 (1886), cases; Diamond Match Co. v. Roeber, 106 N. Y. 473 (1887), cases; Sharp v. Whiteside, 19 F. R. 166, 164 (1888); Rousillon V. Rousillon, 37 Eng. R. 39, 49-63 (1880), cases ; 26 Alb. Law J. 284 (1882), cases; 36 id. 166, 282 (1887), cases; 19 Cent. Law J. 202-8 (1884), cases; 26 id. 695-99 (1888), cases; 34 Am. Law Reg. 217-30, 281-98 (1886), cases; 36 id. 389-91 (1887), cases; 18 Cent. Law J. .387- 89 (1884),— Irish Law Times; 92 Am. Deo. 751-66, cases. Trade-flxture. See Fixture. Trade-talk. See Commendatio, Simplex. TRADE-MARK. A mark by which one's wares are known in trade.l A word, mark, or device adopted by a man- ufacturer or vendor to distinguish his pro- duction from other productions of the same article. 2 Every one is at liberty to affix to a product of his own manufacture any Symbol or de- vice, not previously appropriated, which will distinguish it from articles of the same gen- eral nature manufactured or sold by others, and thus secure to himself the benefits of in- creased sale by reason of any excellence he may have given the product. The symbol or device thus becomes a sign to the public of the origin of the goods, and an assurance that they are the genuine article of the orig- inal producer. 3 But letters or figures, which indicate quality merely, and which cannot indicate, by their own mean- ing or by association, origin or ownership, cannot be appropriated: as, for example, " A. 0. A. ticking." 3 May consist of a name, a device, or a peculiar ar- rangement of words, lines, or figures, in the form of a label, which has been adopted and used by a person in his business to designate goods of a particular kind manufactured by him, and which no other person has an equal right to use.^ Nuihbers arbitrarily chosen will be protected as trade-marks, unless they are already in use by another person and known to the trade. ^ Words or devices may be adopted as trade-marks which are not the original inventions of him who adopts them. Property in them has little analogy to that in copyrights or in patents for inventions. Words in common use, with some exceptions, may be adopted, if, at the time, they are not employed to designate the same, or like articles. The office of a trade-mark is to point out distinctively the origin, or ownership of the article. Unless the mark so points to the origin or ownership, neither can he who first adopted it be injured by any appropriation of it by others nor can the public be deceived. No one can use exclusively a trade-mark or trade-name which would practically give him a. monopoly in the sale of any goods other than those produced or made by himself; otherwise I [Shaw Stocking Co. v. Mack, 12 F. R. 710 (1882); 14 id. 263; 31 id. 280. ' Hostetter v. Fries, 17 F. R. 632 (1883), Wallace, J. » Amoskeag Manuf . Co. v. Trainer, 101 U. S. 63, 66 (1879), Field, J. Compare Menendez v. Holt, post. < Gilman v. Hnnnewell, 122 Mass. 147 (1877), Gray, C. J. See also Smith v. Walker, 67 Mich. 474 (1885); 45 Cal. 478; 54 111. 456; 97 Mass. 397; 1 Mo. Ap. 310; 51 N. T. 193; 61 id. 228; 2 Saw. 86. ' American Button Co. v. Anthony, Sup. Ct. R. I. (1887): 26 Am. Law Reg. 173 (1888); ib. 176-79, cases. TRADE-MARK 1045 TRADE- MARK the public would be injured, for competition would be destroyed. Neither can a generic name, nor a name merely descriptive o£ an article of trade, its qualities, ingredients, or characteristics, be employed as a trade- mark and the exclusive use be protected. Not can geographical names, designating districts of the coun- try, be so appropriated: they cannot point to a per- sonal origin or ownership; besides, their appropria- tion would result in mischievous monopolies. Hence, no one can exclusively use the expressions " Pennsyl- vania wheat," "Kentuckj-hemp," "Virginia tobacco," "Lackawanna coal," "Brooklyn white lead," or "Akron cement." It is only when the adoption or imitation of any such geographical name amounts to a false representation that there is any title to relief,* A combination of words from a foreign language, in order to designate merchandise as of a certain standard and uniformity of quality, may be protected as a trade-mark.2 A party is not, in general, entitled to the exclusive use of a name, merely as such, without more. Instead of that he cannot have such a right, even in his own name, as against another person of the same name, unless the latter uses a form of stamp or label so like that used by the complaining part.y as to represent that the goods of the former are of the latter's manu- facture." There is » general consensus of opinion that the use of a personal name in a fair, honest, and oi-dinary business manner cannot be prevented, even if damage results therefrom. The cases in which uses have been regulated exhibit a conscious, intentional, fraudulent misrepresentation, or such a combined use of the name with other marks, characters, figures, or form and arrangement of circulars, advertisements, etc., its amounts to a false representation, in which latter case only the combination has been enjoined. • No person can appropriate to himself exclusively any word or expression properly descriptive of an ar- ticle, its qualities or ingredients. Whether a name is descriptive or arbitrary depends upon the circum- stances of each case.* ' Delaware & Hudson Canal Co. v. Clark, 13 Wall. 332-37 (1871). cases. Strong, J., deciding tBat " Lacka- wanna Coal" could not be made a trade-mark. See Evans v. Vou Laer, 33 F. E. 163 (1887) — " Motserrat Lime-fruit Juice; " Goodyear Case, 123 U. S. 598 (1888). 2 Menendez v. Holt, 128 U. S. 520 (1888), holding that " La Favorita Flour ' could be used as a trade-mark, and not come within the rule in Amoskeag Manufact- uring Co. V. Trainer, ante. 3 McLean u. Fleming, 96 U. S. 2.32 (1877), cases, Clif- ford, J. See also Faber u. Faber, 49 Barb. 358 (1867); Meneely v. Meneely, 63 N. Y. 430 (1873), cases; Gilman V. Hunnewell, 1x2 Mass. 148 (1877), cases; Rogers Manuf. Co. v. Rogers & Spurr Manuf. Co., II F. E. 495 (18K), cases. * Rogers v. Rogers, 63 Conn. 166 (1885), cases; Rogers Manuf. Co. v. Simpson, 54 id. 527, 565-69 (1886), cases; Brown Chemical Co. v. Meyer, 31 F. R. 454 (1887), cases; Massam v. Thorley's Cattle Food Co., 37 Eng. R. 71-99 (1880), cases. » Selchow V. Baker, 93 N. Y. 63-64 (1883), holding that The exclusive right to any authorized trade-mark has long been recognized by common law, the chan- cery com'ts, and State statutes. It is a property right, for the violation of which damages may be recovered, and the continuance of the violation enjoined. The whole system of trade-mark property, and the reme- dies for its protection, existed before any act of Con- gress providing for the registration of trade-marks in the patent-office. . A trade-mark is neither an in- vention, a discovery, nor a writing. At common law the exclusive right to it grew out of its use, not from its mere adoption. It is sipiply founded on priority of appropriation. Like the great body of the rights of person and of property, property in trade-marks rests on the laws of the States. If an act of Congress can be extended, as a regulation of commerce, to trade- marks, it must be limited to their use in " commerce with foreign nations, and among the several States, and with the Indian tribes. " The legislation of August 14, 1876 (19 St. L. Ul), is not a regulation thus limited, but embraces all commerce, including that between citizens of the same State, and, since it cannot be con- fined to such commerce as is subject to the control of Congress, it is void fo^ want of constitutional au- thority.' The act of Congress of March 3, 1881, provides, sec. 1, that: "Owners of trade-marks used in com- merce with foreign nations, or with the Indian tribes, provided such owners shall be domiciled in the United States, or located in any foreign country, or tribes which by treaty, convention or law, affords similar privileges to citizens of the United States, may obtain registration of such trade-marks (1) by causing to be recorded in the patent-office a statement specifying the name, domicil, location, and citizenship of the party applying; the class of merchandise and the particular description of goods comprised in such class to which the particular trade-mark has been ap- propriated; a description of the trade-mark itself, with fao similes thereof, a statement of the mode in which the same is applied and affixed to goods, and the length of time during which the trade-mark has been used; (2) by paymg into the treasury of the United States the sum of twenty -five dollars, and com- plying with such regulations as may be prescribed by the commissioner of patents." Sec. 2. " That the application prescribed in the foregoing section must, in order to create any right in favor of the party filing it, be accompanied by a writ- ten declaration verified by the person, or by a member of a firm, or by an officer of a corporation applying, to the effect that such party has at the time a right to " Sliced Animals," applied to games for children, could be appropriated. 1 Trade-Mark Cases, 100 U. S. 82, 92-09 (1879), Mil- ler, J. One StefEens was indicted for counterfeiting the trade-mark of Mumm & Co., of Rheims, France, con- trary to the fourth and fifth sections of the act of August 14, 1816; one Wittemann, for imitating the trade-mark of the makers of a "Peiper Heidsiek' champagne wine, of the same place; and one Johnson, for imitating the trade-mark "OK" of a brand of whiskey. TRADE-MARK 1046 TRADE-MARK the use of the trade-mafkto be registered, and that no other person, firm, or corporation has the right to such use, either in the identical forniv or in any, such near resemblance thereto as might be calculated to deceive; that such trade-mark 'is used, in commerce with foreign nations or Indian -tribes, as above, indi- cated; and that the description and fac similes pre- sented for registry truly represent the trade-mark sought to be registered." See. -3. "That the time of the receipt of any such application shall be noted and recorded. But no al- leged trade-mark shall be registered unless the same appears to be lawfully used as such by the applicant in foreign commerce or commerce with Indian tribes as above mentioned or is within the provision of a treaty, convention, or declaration with a foreign power ; nor which is merely the name of the appli- cant; nor which is identical with a registered or known trade-ipark owned by another and appropriate to the same plass of merchandise, or which so .nearly re- sembles some other person's lawful trade-mark as to ' be likely to cause confusion or mistake in the mind of the public, or to deceive purchasers. In an applica- tion for registration the commissioner of patents shall decide the presumptive lawfulness of claim to the alleged trade-mark: and in any dispute between an applicant and a previous registrant, or between applicants, he shall follow, so far as the same may be applicable, the practice of cburts of equity of the United States in analogous cases." Sec; 4. Certificates of registry are issued in the name of the United States, under the seal of the de- partment of the interior, and signed by the commis- sioner of patents. Copies of trade-marks, statements, and certificates^of registry are evidence in suits. Bee. 5. A certificate of registry shall remain in force for thirty years from its date; except as to trade-marks protected under the laws of a foreign country for a shorter period, in wiiich case the cer- tificate shall cease to have force here at the time the mark ceases to be exclusive property elsewhere. Within six months prior to the end of the first thirty years, registration may be renewed on the same tenns, and for a like period. Sec. 6. Applicants are entitled to credit for fees paid under former acts. Sec. 7. " Registration of a. trade-mark shall be prima/acie evidence of ownershig.N Any person who shall reproduce, counterfeit,' copy or colorably imi- tate any trade-mark registered under this act a,nd afifix the same to merchandise of substantially the same descriptive properties as those described in the registration, shall be liable to an action on the case for damages for the wrongful use of said trade-: mark, at the suit of the owner thereof; and the party aggrieved shall also have his remedy according to the course of equity to enjoin the wrongful use of such trade-mark used in foreign commerce or commerce with Indian tribes, as aforesaid, and to recover com- pensation therefor in any court having jurisdiction over the person guilty of .such wrongful act; and courts of the United States shall have original and appellate jurisdiction in such cases without regard to the amount in controversy." Sec. 8. " No action shall be maintained under the provisions of this act in any case when the trade-mark is used in any unlawful business, or upon any article injurious in itself, or which mark has been used with the design of deceiving the public in the purchase of merchandise, or under any certificate ot registry fraudulently obtained." Sec. 9. Any person who procures the registry of a trade-mark by any false or fraudulent representation or ,^eans shall be liable to pay any damages sus- tained in consequence, to the injured party, by an ac- tion on the case. Sec. 10. The act does not give cognizance to any court of the United States in a suit between citizens of the same State "unless the trade-mark is Used on goods intended to be transported to a foreign country, or in lawful commercial intercourse .with an Indian tribe." Sec. 13. The commissioner of patents is authorized to make rules and regulations for the transfer of rights to trade- marks. Sec. 13. *' Citiztos and residents of this country wishing the protection of trade-marks in any foreign country; the laws of which require registration here as a condition precedent to getting such protection there, may register their trade-marks for that purpose as is above allowed to foreigners, and have certificate thereof from the patent-office." ' The act of August 5, 1882, provides that nothing contained in the foregoing act " shall prevent the reg- istry of any lawful trade-mark rightfully Used by the applicant in foreign commerce or with Indian tribes at the time of the passage of said act." ^ Search-warrants for counterfeit dies, plates, trade- marks, colorable imitations, labels, wrappers, empty cases, bottles, etc., upon oath of knowledge or belief that the same are in the possession of any person for deception and fraud, or that originally genuine trade- marks are not so defaced or destroyed as to prevent fraudulent use, are issuable by a judge of the district or circuit court, or a commissioner of a circuit court. Further proceedings are as under the law relating to search-wari'ants, g. v. After proof made, the articles seized are to be destroyed. ^ A trade-mark is an entirety, and incapable of ex- clusive use at different places by more .than one inde- pendenj; pr6prietor. Eight thereto is forfeited, if deceptively used to designate a spurious article. Re- lief is given for infringement upon the ground that one man is not allowed to offer his goods for sale, repre- senting them as the manufacture of another. Two marks are substantially the same when the resem- blance is such as to deceive ordinary purchasers, giv- ing such attention as people usually give, and to cause them to purchase one manufacture supposing it to be the other.* 1 21 St. L. ch. 128, pp. 502^. E^e act 14 Aug, 1876: 1 Sup. R. S. 241 ; R. S. Title IS, ch. 2, §§ 4937-47. 2 ^-2 St. L. ch. 393, p. 298. 3 Act 14 Aug. 1876: 1 Sup. R. S. 241-42. Prior to that was the act of 8 July, 1870. 4 Gorham Manuf. Co. v. White, 14 Wall. 528, 511 (1871), Strong, J.; McLean v. Fleming, 06 U. S. 245 (1877j; Manhattan Medicine Co. v. Wood, 4 ClilT. 478, 488 (1^73), cases; Singer Manuf. Co. v. Loog, 48L. T. { TRADES-UNIONS 1047 TRANSFER To constitute an infringement, exact similitude is not required. If the form, marlcs, contents, words, or tlie special arrangement of the same, or the general appearance of the alleged infringer's device, is such as would be likely to mislead one in the ordinary coui-se of purchasing the goods, and induce him to suppose that he was purchasing the genuine article, the simil- itude is such as entitles the injured party to equitable protection, if he takes reasonable measures to assert his rights, and to prevent their continued invasion.' " Cellonite " is enough lilte " celluloid" to mislead the ordinary purcheiser. The fact that a registered word becomes a common appellative cannot impair rights acquired in it. Others may use the word to designate the product, but not as a trade-mark.'' The owner of a trade-mark which is afflxed to ar- ticles manufactured at his establishment may, in sell- ing the latter, transfer to the purchaser the right to use the trade- mark.' A partnership trade-mark is part of the good-will and an asset of the firm, salable, on dissolution, like any other asset. After dissolution, either partner may continue to use the mark, unless he has divested him- self of such right. But neither, except by agreement, can use the name of the other.* As an abstract right, apart from the article manu- factured, it cannot be sold, for the transfer would be productive of fraud upon the public; but in connec- tion with the article produced, it may be bought and sold like other property, individual or partnership.'* Where consent by the owner (a former partner) to the use of his trade-mark by another (a new partner; is to be inferred from his knowledge and silence merely, "it lasts no longer than the silence from which it springs; it is, in reality, no more than a rev- ocable license."' ^ TRADES-UNIONS. A combination by employers or employees to regulate the price of labor is, within limits, valid at common law ; but, carried to violence in any phase, is illegal.' Statute 6 Geo. IV (1826), c. 129, placed such combi- nations, on the part of the employers chiefly, under a rigorous restraint, making criminal threats to force a workman to leave his employment." Under statutes 22 Vict. (1859), c. 34, 32 and 33 Vict. c. 61, and 34 and 35 Vict. c. 31, trades-unions are recog- nized as legal associations, with objects they may en- 1 McLean v. Fleming, 96 U. S. 263 (1877), cases, Clif- ford, J. See also Manhattan Medicine Co. v. Wood, 4 Cliff. 478 (18T8), oases; Alexander Brothers v. Morse, 14 R. I. 153 (188*); Goodyear Case, 128 U. S. 604 (1688). = Celluloid Manuf. Co. v. Cellonite Manuf . Co. 32 F. B. 94 (18S7). 3 Kidd V. Johnson, 100 U. S. 620 (18T9), cases. * Hazard v. Caswell, 93 N. Y. 204-65 (1883), cases. 5 Morgan v. Rogers, 19 F. E. 597(1884), eases. See generally 12 F. B. 764-6, 717-19 (1882), cases; 18 Cent. Law J. 107-« (1884), cases; on assigning, Hoxie v. Che- ney, 143 Mass. 692 (1887), cases. • Menendez v. Holt, 128 U. S. 524 (1888), cases. ' Bex V. Batt, 25 E. C. L. *426 (1834). e Walsby v. Anley, 107 E. C. L. *521 (1861). deavor to secure by pecuniary and other means pt supporting strikes, and the like, so long as they do not resort to open or secret violence, or to threats, intimi- dation, rattening, or the like.' See Boycotting; Com BINATION, 8; Conspiracy; Strike, 2. TRADITION. See Delivery, 1, 4. TRAFFIC. The passing of goods or commodities from one person to another for an equivalent in goods or money; and a " trafHoker" is one who traffics — a trader, a merchant.2 It is as much traffic to deal in a commodity by wholesale as at retail. * See Carrier; Commerce. TRAIN. See Negligence ; Obstruct, 1 ; Passenger; Railroad. TRAITOR. See Treason. TRAMP. A wandering, homeless vaga- bond. Tramps are "persons who rove about from place to place begging, and all vagrants living without visible means of support who stroll over the country without lawful occasion." ' See Vagrant. TRAMWAY. See Drayage. TRANSACTION. Whatever may be done by one person which affects another's rights, and out of which a cause of action may arise.* Is broader than " contract." A contract is a trans- action, but a transaction is not necessarily a contract.^ In a statute limiting counter-claims to demands arising out of the same transaction : some commercial or business negotiation; not, a wrong of violence or fraud." See Relation, 1 : Res, Gestae. TRANSCRIPT.' 1, n. A copy of an original record.* A transcript of a record on appeal or writ of error is only a copy of the record." 3, V. To copy or to copy officially. Whence transcripted. See Copy. TRANSFER. 1, v. To take from one court to another ; to remove, q. v. To convey or pass over the right of one person to another.'" ' Eegina v. Druitt H al., 10 Cox, Cr. C. 600 (1867); Be- gina V. Shepherd, 11 id. 325 (1869). 2 Senior v. Batterman, 44 Ohio St. 673 (1887), Spear, J. ; Ohio Const., Sch. 18; Dow Law — Act 14 May, 1886. » N. Y. Act 1885, ch. 490, § 2. ' Scarborough v. Smith, 18 Kan. 406 (1877), Valentine, Judge. » Boberts v. Donovan, 70 Cal. 113 (1886): Xenia Branch Bank v. Lee, 7 Abb. Pr. 380 (1858). » Barhyte v. Hughes, 33 Barb. 321 (1861), Oerke, J. See also 17 F. E. 631 ; 49 E. C. L. •537. ' L. trans-scriptum, copied from one to another. » Dearborn v. Fatten, 4 Oreg. CO (1870), Prim, C. J. » Cavender v. Cavender, 3 McCrary, 884 (1882). '"Innerarity i.. Mims, 1 Ala. 669 (1840). See 2 Bl. Com. 10. TRANSFEREE 1048 TRANSPORT 3,'n. There is no meaning of the word which carries the idea of an act of extinc- tion, or any other idea than that of the bear- ing over pf a right or title to property in a thing from one to another, l In a declaration on a note, implies a passing of the beneficial interest, but not necessarily of the legal title. 2 Foreclosure of a mortgage and the becoming abso- lute of the title in the mortgagee by the failure to re- deem constitute a " transfer " of the property, in the sense of a statute providing that the real estate of any tax-payer shall be liable until a transfer thereof is made.* ' Transferable. Includes every means by whicli property may be passfed from one per- son to another.* Also spelled transferrible. Non-transferable. Not admitting of trans- fer to another person. Transferrer or transferror. He to whom a transfer, an assignment, or a conveyance is made. Transferee. The recipient in any such case. See further Abandon, 1; Assign, 2; Bearer; Con- veyance, 2; Delivery, 1; Indorse, 2; Security: Stock, 3; Transferre. TEAWSFEERE. L. To convey over; to make over, assign, convey, transfer. Nemo plus juris ad alium transferre potest quam ipse hatoet. No one more right to another can transfer than he him- self possesses. One cannot sell, grant, or give away a right or interest superior to that vested in him.s Compare Daee, Nemo dat, etc. But the holder of negotiable paper who cannot him- self recover upon it as against the rightful owner, by transferring it in good faith, for value, and before it is due, may make it available in the hands of his as- signee. And a consignor, by indorsing and delivering the bill of lading to the consignee, puts it in the power of the latter to transfer property to a bona fide pur- chaser for value, and thus defeat his own original right of stoppage in transitu. See Lading, Bill of; Negotiate, 2. TaAWSGRESSIOIf . See Crime ; Tres- pass. TRANSIEN'T. Going or- passing over ; moving about. ■ Sands v. Hill, 55 N. Y. 22 (1873), Folger, J.; Robert- son V. Wilcox, 36 Conn. 429 (1870). ^ Montague v. King, 37 Miss. 4J3 (1859), Handy. J. 5 Waterbury Savings Bank v. Lawler, 46 Conn. 244 (1878), Loomis, J. See generally, on the transfer of land, 2 Am, Law Rev. 12-32 (1886). « Gathercole u Smith, 17 Ch. Div. 9 (1881), Lush, L. J. » 10 Pet. 161, 175; 64 Pa. 371. Transient foreigner. One who visits a country without intention of remaining.i Transient person. Not exactly a person on a journey from one known place to an- other, but rather a wanderer ever on the tramp. 2 Transitive. Passing over to another. A transitive, as opposed to an intransitive, covenant, is an obligation which devolves also upon the covenantor's representatives. Transitory. Following the person. A transitory, as distinguished from a local, action, rests upon a transaction which might have taken place anywhere. See Action, 2 ; Transire. TRANSIRE. L. Togo across; to pass over, pass to another pei'son, place, thing, or state. A transire is a custom-house permit to let goods pass or be removed. Transit in rem judicatam. It passes into a matter adjudicated, q. v. Transit terra cum onere. Land passes with the burden — is conveyed subject to its incurribrance. See Onus, Cum onere. Transitu. See Stoppage, In transitu. TRANSLATIOIir. The act of rendering or the fact of being rendered into another language ; also, that which is so rendered. 1. The testimony of a witness who cannot make himself understood in English is delivered aloud in open court to a sworn interpreter, who translates the oath, the questions and answers. ^ 2. When language which is alleged to be defama- tory is expressed in a foreign tongue, the plaintiff should file a translation, except as to words which have become anglicized^ and the court may define these to the jury." The words should be set out in the foreign language, and followed by a translation averred to be correct.^ 3. A translator may copyright his translation. It is no infringement of the copyright to translate a work which the author has already had translated and copy- righted.'' , TRANSMISSION. See Descent. TRANSPORT. To carry, convey,' from one place to another. ' Yates V. lams, 10 Tex. 170 (1853), Hemphill, C. J. 2 Middlebury v. Waltham, 6 Vt, 2C3 (1834), Mattocks, J. = See Amory v. Fellowes, 5 Mass. 225 (1809). * See Gibson v. Cincinnati Inquirer, 2 Flip. 125 (1S77); Odgers, SI. & Lib. 109-10, cases. = Pelzer v. Benish, 67 Wis. 291 (1886) ; 61 id. 626. = Stowe V. Thomas, 2 Wall. Jr. 647, 566, 568(1853); Emerson v. Davies, 3 Story, 760 (1845); Shook v. Ean- kin, 6 Biss. 477 (1875). ' United States v. Sheldon, 8 Wheat. 120 (1817). TRAVEL 1049 TREASON Transportation. Carrying or sending to another place or country. 1. May include other modes of moving or removing property than by "carrying," as that word is ordinarily understood. Thus, it will include taking petroleum from one place to another by means of pipes laid under ground. ' In the In'ter-State Commerce Act of February 4, 1887, "includes all instrumentalities of shipment or carriage." See Commerce; Tax, 2. 3. Sending a con'vict to another country as punishment.2 See Servitude, 1, Penal. TRAVEL. Has no precise or technical meaning when used without limitation. Its primary and general import is to pass from place to place, whether for pleasure, instruc- tion, business, or healtli.s The length of the journey or its continuance does not destroy the character of the occupation. s 1. The purpose for which towns are compelled to construct highways and bridges and keep them in re- pair is to promote the comfort and convenience and insure the safety of "travelers" — persons who have lawful occasion to pass over them upon business or for pleasure. ** Travelers," in this connection, is to be interpreted in the light of knowledge common to all, gained from observation and experience, as to the manner in which people are accustomed to use high- ways; that is, is to be so interpreted as to permit a con- venient and beneficial use.^ In a statut.e giving a right of action for an injury caused by defects in a highway, "'traveler" means every one, whatever his age or condition, who has oc- casion to pass over the highway for any purpose of business, convenience, or pleasure, irrespective of the motive or object with which a way is thus used, if it be not unlawful. Not, then, a gymnast performing feats, nor a boy sliding down a hill.^ Walking for exercise is not traveling.* 2. Within the meaning of a law allowing a person traveling to carry concealed weapons, the traveling must be on a journey — beyond the ordinary habit, business, or duties of the person and beyond the cir- cle of his friends or acquaintances.' 3. One who has been carried by steamboat, and ' Columbia Conduit Co. v. Commonwealth, 90 Pa. 307 (1879): 93 U. S. 185; 94 id. 1, 6. 2 [4 Bl. Com. 371, 377. s Lockett V. State, 47 Ala. 45 (1878), Peters, J. * Ward V. North Haven, 43 Conn. 154 (1875), Pardee, Judge. 'Blodgett V. Boston, 8 Allen, 240 (1864), Bigelow, C.J. See also 52 Me. 317; 62 id. 468; 67 id. 167; 107Mass. 347; 110 id. 31; 58 N. H. 14, 431, cases. "Hamilton v. Boston, 14 Allen, 475 (1867), cases. Gray, J. ; Baker v. Worcester, 139 Mass. 74 (1885). 'Gholson V. State, 53 Ala. 520 (1875); Coker v. State, 63 id. 95 (1879); Carr i). State. 34 Ark. 448 (1879); Rice V. State, 10 Tex. Ap. 288 (1881); Smith v. State, 43 Tex. 464(1875); Burst v. State, 89 Ind. 133 (1883); 35 Am. E. 654-56, cases. walks eight miles from the landing to his home, is not, while walking, within the meaning of a policy of insurance, " traveling by public or private convey- ance." 1 4. As to what is traveling within the meaning of Sunday laws, see Sunday. See also Accident; Guest; Inn; Journey; Ob- struct, 1; Open, 1 (7); Road, 1; Way, Public. TRAVERSE.-' Denial ; denial of a fact alleged by one's opponent, or of an allegation in an indictment.3 A traverse is a denial on one side of some matter of fact before alleged on the other side; and regularly tenders an issue of fact. It applies to the declaration, plea, replication, or other pleading. The general issue is but a compendious traverse of the whole complaint. A technical traverse is preceded by introductory affirmative matter — matter of inducement ; as that is general or special so is the traverse. An example of a "general technical traverse" is a replication de injuria; an example of a " special technical traverse " is a traverse beginning with the words absque hoc, without this, or et non. and not. A common traverse is simply a dii'ect denial, in common nega- tive language. This is the more eligible mode, since it is simple, direct, and produces an issue sooner. It always concludes to the country, q. v.; whereas, the absque hoc traverse concludes, in most cases, with an averment. Illustration of a traverse absque hoc; Plea — A devised to me, B. Replication — A died intestate, and his title is in me, C, his heir: absque hoc, A devised to B. Here the averment of intestacy and heirship in- troduces the special traverse, and the " absque hoc " denies the devise in the words in which it is alleged. A traverse absque tali causa, without such cause, is, at common law, a traverse of a plea in tort. It de- nies the matter pleaded and avers that the defendant of his own wrong (de injuria sua propria) and " with- out such excuse " {absque tali causa) as is set forth in his plea, committed the trespass. This formula was devised as an abridgment of the replication.* See further Replication, De injuria. Traverse jury. A common jury, which finds the fact in dispute, as opposed to the grand jury, g. v. Traverse of ofla.ce. Proving that an inquisition made by an escheator is defective or not true. See Inquest, Of ofiBce. TREASOM".5 Betrayal, treachery, breach of faith or allegiance.^ Traitor. One who breaks faith, or betrays a trust; one guilty of treason. ' Ripley v. Insurance Co., 16 Wall. 336 (1872). '^ Trdv'-erse. F. traverser, to thwart: L. tran^-versus, turned across. a [3 Bl. Com. 313; 4 id. 351.] •See Gould, Plead. 849-53; Stephen, PI. 163, 364; 18 N. J. L. 353; SO id. 513; 55 Vt. 261. " F. traismi: L. traditio, giving over, surrendering. • [4 Bl. Com. 75. TREASON 1050 TREASON Treason may exist only as between allies: it is a general appellation to denote not only offenses against the king and government, but' also that accumulation of guilt which arises whenever a superior reposes a confi- dence in a subject or inferior, between whom and himself there subsists a natural, a civil, or even a spiritual relation, and the inferior so abuses that confidence, so forgets the obliga;tions of duty, subjection, and alle- giance, as to destroy the life of the superior. Therefore, for a wife to kill her husband, a servant his master, an ecclesiastic his ordi- nary, these being breaches of the lower alle- giance of private and domestic faith, are denominated petit treasons. But when disloyalty attacks majesty itself it is called, by way of distinction, liigh treason, equiv- alent to the crimen Icesce majestatis of the Romans. ^ High treason is the most heinous civil crime a man, can commit. If indeterm,iuate, this alone is sufiEicient to make any governnaent degenerate into arbitrary power. By the ancient common law great latitude was left to the judges to determine what was treason: whereby the creatures of tyrannical princes had op- portunity to create constructive treasons ; that is, to raise, by forced and arbitrary constructions, offenses into the crime of treason which were not suspected to be such. To prevent this, the Statute of Treasons, 25 Edw. in (1352), u. 2, defined what offenses should be held to be treason. All kinds are now comprehended under seven branches.^ . . The third species is " levying war against our lord the king, in his realm." This may be done by taking arms, not only to de- throne the king, but under pretense to reform religion or the laws, or to remove evil counsellors, or other grievances, real or pretended. To resist the king's forces by defending a castle against them is levying war; so is an insun-ection with a design to pull down all enclosures, all brothels, etc., the universality of the design making it a rebellion against the state, an usur- pation of the powers of government, an insolent inva- sion of the king's authority. But a tumult with a view to pull down a particular house amounts at most to a riot, this being no general defiance of public govern- ment. ^ The fourth species is " adhering to the king's enemies in his realm, giving to them aid and comfort in the realm or elsewhere." This must like- wise be proved by some overt act, as by giving them intelligence, sending them provisions, selling them arms, treacherously surrendering a, fortress, or the like. By '* enemies " are here understood the subjects of foreign powers with whom we are at opten war. As to foreign pirates or robbers, invading our coasts without open hostilities between their nation and ours, and without commission from any prince or state at i 4 Bl. Com. 75-76. 2 4 Bl. Com. 76-76, 203. a 4 Bl. Com. 81-83. enmity with the crown, giving them any assistance is also clearly treason. But to relieve a " rebel " fled out of the kingdom is no treason ; for the statute is taken strictly, and a rebel is not an "enemy;" an enemy being always the subject of some foreign prince, and owing no allegiance to tJtie crown of England. And if a person be under actual force and constraint, through a well-grounded apprehension of injury to his life or person, this fear or compulsion will exemse his even joining with rebels or enemies in the kingdom, pro- vided he leaves them whenever he has a safe oppor- tunity.^ Another species of high treason, under the statute, was counterfeiting the king's seal or his coin, — an of- fense reduced to felony by 2 Will. IV (1832), c. 34.* The consequences of conviction of high treason were: death by hanging (anciently, decapitation and quartering) : attainder, and forfeiture of estate, with corruption of the blood of descendants.^ "Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." " No Person shall be convicted of Treason unless on the Testimony of two Witnesses to tiie same overt Act, or on Confession in open Court." "The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted^" * By the last clause, the cruel feature of the old law, which punished the traitor in the persons of his de- scendants, was forever removed. Act of April 30, 1790, c. 9, § 1, provides that every person owing allegiance to the United States, who levies war against them, or adheres to their enemies, giving them aid and comfort, is guilty of treason; and shall suffer death, or, at the discretion of the court, shall be imprisoned at hard labor for not less than five years, and fined not less than ten thousand dol- lars, to be collected of such property as is owned at the time of committing such treason ; with incapacity to hold office under tbe United States.^ The principal treasonable offenses are: misprision of treason; incitihg or engaging in rebellion or insurrection ; criminal corre- spondence with foreign governments: sedi- tious conspiracy ; recruiting men to serve, and enlisting to serve, against the United States.^ Treason, being a breach of allegiance, can be com- mitted only by him who owes allegiance, perpetual or temporary.' Having' been defined by the Constitution, Congress can neither extend nor restrict the crime; its pow-er 1 4 Bl. Com. 82-83. 2 4 Bl. Com. 83-84, 89. 3 4 Bl. Com. 92-93. See Trial of Sidney, 9 St. Tr. 817 ' (1683). 4 Constitution, Art. Ill, sec. S. 6 E. S. §§ 5331-32. 8 R. S. §§ 533a-38. 7 United States v. Wiltberger, 5 Wheat. 97 (1820). TREASURE-TROVE 1051 TREATY Is limited to prescribing the punishment. In it all are principals.' , A mere conspiracy by force to subvert the estab- lished government is not treason : there must be an actual levying of war — men assembled -with intent to effect by force a treasonable purpose. Then, all who perform any act, however minute or remote from the scene of action, and who are actually leagued in the general conspiracy, are traitors. In every case proof of some overt act is absolutely necessary ; an inten- tion to oommit the crime is distinct from actual com- mission.* ' A person may commit treason toward the State in which he resides, since he also owes allegiance to it. The definitions and laws of the various States follow, in substance, the foregoing definition, enactments, and constructions. A notable case was the trial, convic- tion, and execution of John Brown, in Virginia, in 13o0.> See further Aid and Comfort; Attainder; Enemy; Felony; Levy, 1; Rebel; Sedition; War. TREASURE-TBOVE.i Where any money, coin, gold, silver, plate, or bullion is found hidden in the earth, or other private place, the owner thereof being unknown. * At common law, treasure-trove belonged to the king; treasure found upon the earth to the finder."* Though commonly defined as gold or silver hidden in the ground, includes their paper representatives. And it is not now necessary that the hiding be in the ground. The civil law gave the treasui-e to the finder, according to the law of nature." See Coroner; Find, 1. TBEASURY. See Comptroller. TEEATT.8 By the general law of na- tions, is in the nature of a contract between two nations, not a legislative act.^ A contract between two or more independ- ent nations. '" Contracts between states may be called • United States v. Greathouse, 4 Saw. 467 (18(i3), Field, J. 2 See Exp. BoUman, 4 Cranch, 75, 126 (1807), Marshall, C. J.; United States v. Burr, 1 Bur. Tr. 14, 2 id. 405: 4 Cranch, 4T0, 125 (1807), Marshall, C. J. Early cases in the court of oyer and terminer of Philadelphia county (Sapt. session, 1778), see 1 Dall. 33-34. Charges to Juries, 1 Story, 614, 2 Wall. Jr. 1.34, 4 Blatch. 518, 5 Pa. L. J. 55. See Fries' Case, 1 Whart. St. Tr. 610 id. 102, 458; 2 Wall. Jr. 139; 3 Wash. 234; 20 Wall, 92 16 id. 147; 98 U. S. 202: 93 id. 274; 3 Story, Const.g 667 2 Bancroft, Const. 149-50. 3 See also People v. Lynch, 11 Johns. *552 (1814). . Van Akin, Sup. Ct. Mich. (1888): 87 Cent. Law J. 359, cases. « See 8 Story, Eq. §§ 1807, 1196 6; Adam's Eq. 107; 13 B. I. 407, 500. TRUST 1058 TRUST to be done by the trustee beyond transfer- ring property to the beneficiary ; in this re- spect corresponding to the ancient " use.'' Also called a barren, dry, naked, or simple trust A Where an active duty is imposed upon the trustee, the trust is not executed under the Statute of Uses until the duty is performed. If, however, the trust be purely passive, it vf ill be executed at once under th^t statute." Passive trusts have been abolished in some of the States. CoHStruetive trust. (1) Such trust as is imposed by construction of law, from rea- sons of equity and justice, and independently of the intentions of the parties: as, a vendor's or vendee's lien (g. v.) for purchase- money unpaid or prematurely paid ; the re- newal of a lease by a trustee in his own name; and, perhaps, a permanent improve- ment unavoidably made to an estate by the legal possessor. (3) A trust which arises from actual or legal fraud ; as, where a person occupying a fidu- ciary relation gains an advantage to himself personally.' Also called a trust ex malefleio. Sometimes interchanged with "implied trust," g. V. Directory trust. When the trust fund is directed to be invested in a particular man- ner till the period arrives at which it is to be appropriated.* Executory trust. Requires something to be done toward complete creation. . . Ji. trust which is to be perfected at a future time — as, by a conveyance " to B in trust to -convey to C." Executed trust. Requires nothing to be done toward complete creation. . . It is when the legal estate passes, as, in a •conveyance to B in trust, or for the use of C ; 'Or when only the equitable estate passes, as, in a conveyance to B to the use of C in trust Jor D : in which the trust is executed in D, Ahough he has not the legal estate. * 'See Kay v. Scates, 37 Pa. 31 (1860), Strong, J.; Bacon's Appeal, 57 id. 504 (l868); Barnett's Appeal, 4C la. 392, 398 (1864); Rife v. Geyer, mid. 393 (1868); Good- rich V. City of Milwaukee, ai Wis. 429 (1869). "Sprague v. Sprague, 13 E. I. 703 (1882), cases, Dur- fee, e. J. ; Stanley u Colt, 6 Wall. 168 (1866); 1 Pomeroy, Eq.'§163; 2 id. §§ 988, 992. 2 Burks V. Burks, 7 Baxt. 356 (1874): Perry, Trusts, 527; .39 Ark. 313; 1 Lead. Cas. Eq. (Hare), 62; Bisph. Eq. § 91; 1 Pom. Eq. § 155; 2 id. § 1044. « Deaderick v. Cantrell, 10 Yerg. 272 (1837). ' [4 Kent, 304:-5; 33 Miss. 729.] All trusts are in a sense executory, because a trust cannot be executed except by con- veyance, and, therefore, there is always something to be done. But in equity an " executory" trust occurs where the author of the trust has left it to be made out from general expressions what his intention is ; and an " executed" trust is where there is noth- ing to be done but to take the limitations given and convert them into a legal estate.i A trust is "executed" when the limita- tions of the eqtiitable interest are complete and final ; in an " executory " trust, the lim- itations of the equitable estate are not in- tended to be complete and final, but merely to serve as instructions for perfecting the settlement at some future time.^ Executory trusts are modifiable in equity. ^ Express trust. A trust created in express terms in the deed, will, or other writing.* Implied trust. A trust raised or created by presumption or construction of law, — and either rests upon the presumed intention of the parties, or is independent of any express intention, and enforced upon the conscience by operation of law.s "Express" trusts are raised and created by the act of the parties ; " implied " trusts by act or construction of the law.* Resulting trust. Arises by operation of law whenever a beneficial interest is not to go along with the legal title, as where a con- veyance is taken in the name of one person and the consideration is advanced by an- other. Is raised by law from the presumed intention of the parties and from the natural equity that he who fur- nishes the means for the acquisition of property shall enjoy its benefits. It does not obtain where an obligation, legal or moral, exists to provide for the grantee, as husband for wife, or parent for child; for in such cases arises the contrary presumption of an .advancement for the grantee's benefit.' ' Bgerton v. Brownlow, 4 H. L. 210 (1868), Ld. St. Leonards. > Lewin, Trusts, 4; Dennison v. Goehring, 7 Pa. 177 (1847), Gibson, C. J. ' 1 Story, Eq. § 64. See 2 Pom. Eq. § 1000. « [1 St»ry, Eq. § 64. ^ [2 Story, Eq. § 1195; Walden u Skinner, 101 U. S. 677 (1879); 41 N. Y. 58; 6 Col. 439. • Cook. V. Fountain, 3 Swanst. *591 (1676), Worth, C. J.; 1 Pom. Eq. § 155; 2 id. % 1030. ' Jackson v. Jacksoli, 91 U. S. 125 (1876), cases, Field, J. ; Chapman v. County of Douglass, 107 id. 857 (1882); 71 Ala. 40; 25 Iowa, 45: 46 Md, 569; 19 S. C. 126, 135; 76 TRUST 1059 TRUST- There must be an actual payment of the purchase- money or a liability incurred for it, on the part of the cestui que trust; made or incurred as part of the ori{^- inal traosactioQ of purchase, and not pursuant to a subsequent arrangement. Parol evidence, which may be offered to overcome the presumption in favor of the legal owner, must be clear, full, and satisfactory' If au agent purchases land with his principal's money and takes a deed in his own name, a resulting trust exists in favor of the principal.* No such trust is raised by a subsequent payment of purchase monej-.* To establish this trust in favor of a wife as against her husband's creditors, the proof that she advanced the purchase-money must be clear.* Parol evidence adduced to raise a resulting trust may be rebutted by parol."* Secret trust. The retention of possession of personalty as if still his own by the vendor affords an example of a secret trust. May render the sale fraudulent and void as to cred- itors, whether the trust be express or implied.' Voluntary trust. A trust in favor of a volunteer: one as to whom the trust is a pure gift. Trust for value. A trust in favor of a vendee or other claimant who has parted with an equivalent in value. The founder of a trust may secure the benefit of it to the object of his bounty by providing that the in- come shall not be alienable by anticipation nor sub- ject to be taken for his debts; but otherwise, in Eng- land.' A " voluntary " trust is an obligation arising out of a personal confidence reposed in and voluntarily ac- cepted by one for the benefit of another; an '■invol- untary " trust is created by operation of law.s Va.627; Perry, Trusts, §1+3; 2 Story, Eq. § 1201 ; IPom. Eq. §155; Sid. §1031. > Harvey v. Pennypacker, i Del. Ch. 459-60 (1872), cases. Bates, Ch. sBratton v. MitcheU, 3 Pa. 44 (1846); Eshleman v. Lewis, 49 id. 410 (1865). sBarnet v. Dougherty, 32 Pa. 371 (18S9); Nixon's ippeal, 63 id. 279 (1869). See generally 1 Harv. Law Rev. 1S6-90 (1887). cases. ' Klin's Appeal, 39 Pa. 463 (1861); O'Hara v. Dilworth, 72 tU 379(1872); 82 id. 67. s Hays u Quay, 68 Pa. 272 (1871); Donaghe v. Tarns, 81 Va. 141-43 (1885), cases. •Plaisted v. Holmes, 58 N. H. 294 (1878). 'Nichols u. Eaton, 91 V. S. 716, 721-29 (1875), cases ; Hyde v. Woods, 94 id. 526 (1876i; Spindle v. Shreve, 111 id 547 (1884), cases; Pope v. Elliott, 8 B. Mon. 66 (1847); Sparhawk v. Cloon, 126 Mass. 266-67 (1878), cases; Broadway Nat. Bank v. Adams, 133 id. 170-74 (1882), cases; ib. 177; Holdship v. Patterson. 7 Watts, 547 (1838); Bell v. Watkins, 82 Ala. 517 (1886), cases; 47 Pa. 113; 69 id. 393; 100 id. 151, 254; White v. White, 30 Vt. 338(1867). Contra. 18 Ves. 429; 9 Hare. 475: 2 Beav. 63; 37 Ala. 327; 42 Mo. 45; 4 Ired. Eq. 131; 5 R. I. 206; Perry, Trusts, § 386 a, cases. ' California Code, 7215-17; Dakota Civ. Code, 1288-90. Trust deed. An instrument creating an active trust. In a few States, the equivalent of a mortgage. Deed of trust. An assignment of property to a trustee for the purpose therein declared. Usually made by a debtor in failing ch'cumstances to secure all his creditoi*s equally or to give some a preference over otheta/when it is not prudent to make immediate sale -of his property/ The debtor nearly ^ always remains in possession until the trustee is bound to make sale for the purposes of administering the trusts. Registration of the deed is equivalent to the delivery of possession to the trustee. The deed is in the nature of a mortgage,' g. v. Prior to the Statute of Uses, uses existed as confi- dences which a court of chancery would enforce, and were thus the earliest form of trusts. That statute transferred the use into possession, and made the cestui que use owner of the legal and equitable estate. Thereupon, equitable jurisdiction over these early uses (.now legal estates) ceased, or became unneces- sary. But the decision rendered in TyrrelVs Case, in 1567, by which a use upon a use was refused recogni- tion, revived and even increased the former jurisdic- tion over trusts.^ See further UsB, 3, Statute of. The Statute of Frauds require declarations or crea- tion of trusts in lands to be proven by some writing signed by the creator; and so as to grants or assign- ments. It is sufficient if the terms can be ascertained from the writing; a letter in acknowledgment is am- ple. See Frauds, Statute of. The trusts intended by courts of equity as not being affected by the Statute of Limitations are those tech- nical trusts which are not cognizable at law, but fall within the exclusive jurisdiction of equity courts.' A voluntary or express trust cannot be imposed on any one unless he agrees to accept, or by clear impli- cation assumes the duties and liabilities; but accept- ance in the case of an implied, resulting, or construct- ive trust is not necessary.* The nature and duration of a trust estate are 'gov- erned by the requirements of the trust itself. If that requires a fee-simple in the trustee, it will be created, though the language be not apt. If the language con- veys to the trustee and his heirs forever, while the trust requires a more limited estate, in quantity or duration, the latter only will vest.' A trust will not be allowed to fail for want of a trustee; a court of equity will supply a trustee.' Where a conveyance is made to a trustee, and the object of the conveyance fails, the trust cannot be 1 Means v. Montgomery, 23 F. E. 421, 424 (1885), Dick, Dist. J. "3B1. Com. 836. 2 Kane v. Bloodgood, 7 Johns. Ch. *111 (1823), Kent, Ch.; 4 Kent, 305; 2 Story, Eq. § 972; Speidell v. Hen- rici, 16 F. E. 753 (1883), cases; ib. 758-63, cases. * Taylor I'. Holmes, 14 F. R. 509 (1882). « Young V. Bradley, 101 U. S. 787-88 (1879), cases. » Kain f. Gibboney, 101 U. S. 365 (1879); Irvine v. Dun- ham, 111 id. 334 (1884), cases; Tucker v. Grundy, 83 Ky. 543 (1886). TRUST 1060 TRUST executed, afid tlie trustee muat re-cohvey. Where a conveyance would not involve a breacli of duty or a wrong, a presumption arises that the trustee con- veyed, this being hig duty. ' Co-trustees are responsible only for their individual acts, unless they have agreed to be bound for each other, or, by co-operation or connivance, have enabled one or more to do an act in violation of the trust. This, too, although they have equal power, and cannot act separately, as executors may, but must join, both in conveyance and receipt. But the rule has been varied where one trustee has assisted another to do a thing, as, to receive money. The rule seems to regard the ability of one to interpose and hinder the other from pursuing the course which resulted in loss. But ti-ust- ees of a public trust may act by the majority.'* See Joint. Where trustees are in existence and capable of act- ing, the court will not interfere to control them in tlie exercise of a discretion vested in them, by the institut- ing instrument.* A trustee may be invested with such powers that his beneficiaries are bound by what is done against or by him. Then, he is in court in their behalf, and they are not necessary parties. But fraud between him and the adverse party may impeach the decree; as, in the case of the trustee of a railway mortgage hold- ing for the benefit of bondholders.* In a suit' brought against a trustee by a stranger, for the purpose of defeating the trust altogether, the beneficiaries are not necessary parties, if the trustee has such powers, or is under such obligations, with respect to the execution of the trust, that "those for whom he holds will be bound by what is done against him, as well as by what is done by him." In such cases the beneficiaries will be bound by the judgment, *' unless it is impeached for fraud or collusion between him and the adverse party." ^ The property of a corporation is held in trust for fhes payment of the debts of the corporation, until it has passed into the hands of a bona fide purchaser. Disfi'ibuted among the stockholders, they hold subject to the trust in favor of creditors. Hence, application to an illegal purpose will be restrained, and restitu- tion compelled." It is for the beneficiary alone to complain of the non-execution of a trust. "^ ^ French v. Edwards, 21 Wall. 149-51 (1874), cases. 2 2 Story, Eq. §§ 1380-84 c; 14 Am. Law Kev. 36-56 {1880), cases; 15 id. 159-85 (1881), cases; 3 Lead. Cas. Eq. 858, 865; Bisph. Eq. § 146. 3 Nit*ols V. Eaton, 91 U. S. 734^-25 (1875), cases. ■» Kerrison v. Stewart, 93 U. S. 160 (1876), cases; Shaw V. Little Rock, &c. R. Co., 100 id. Gil (1879); Richter v. Jerome, 133 id. 233 (1887), cases. »Vetterlein v, Barnes, 134 U. S. 173 (1888), cases, quoting Kerrison v. Stewart, 93 id. 160 (1876). » CHiioago, &c. Co. v. Howard, 7 Wall. 409-10 (1868), cases; 3 Story, Eq. § 1352, cases; Bfoughton v. Pensa- cola, 93 U. S. 269 (1876). 7 Cowell V. Colorado Springs Co., 100 U. S. 58 (1879); Perry. § 334. Ordinary prudence is required of one dealing with trust property.' A trustee must prevent the property under his <»re from being wasted or injured. His first duty is to place the property in a state of security.^ * Since the characters of vendor and purchaser im- pose different obligations, they cannot be held by the same person. Their union in the Same person would raise a confiict between interest and duty^ and, consti- tuted as humanity is, in the majority of cases, duty would be overborne.^ While there may be cases where an unratified sale, or other contract by a per- son occupying a fiduciary relation, would be void ab initio^ the general doctrine is, not that such contracts are absolutely void, but that they are voidable at the election of the party whose interest has been so rep- resented, he exercising his option to avoid within a reasonable time. What is such time is to be decided upon the circumstances of each case.* The acts of trustees when personally interested should be open and fair. Slight circumstances will sometimes be considered sufficient proof of wrong to justify setting aside what has been done; but when everything is honestly done, and the courts are satis- fied that the rights of others have not been prejudiced to the advantage of the trustee, the simple fact of In- terest is not sufficient to justify withholding confii'ma- tion of his acts.* The rule is everywhere recognized that a trustee, when investing property in his hands, is bound to act , honestly and faithfully, and to exercise sound discre- tion, such as men of ordinary prudence- and intelli- gence use in their own affairs. In some jurisdictions, no attempt has been made to establish a more definite rule; in others, the discretion ^as been confined, by the legislature or the courts, within strict limits." Property once charged with a valid trust will be fol- lowed in equity into whosesoever hands it comes, and the holder charged with the execution of the trust, unless he is a purchaser for value without notice.' The law exacts the utmost good faith from all pai-ties dealing with a trustee respecting the trust property. ' Lawrence v. Dana, 4 ClifC. 68-69 (1869), cases; ib. 548; Eyster's Appeal, 16 Pa. 373 (1851). 2 Tyler v. Campbell, 106 U. S. 335-36 (1883), cases. 3 Marsh v. Whitmore, Si Wall. 183 (1874); Wardell v. Union Pacific R. Co., 103 U. S. 658 (1880), cases. ■» ,Twin Lick Oil Co. v. Marbury. 91 U. S. 588-89, 593 (1875), cases. fi Shaw V. Little Rock, &c. R. Co., 100 U. S. 613 (1879), Waite, C. J. Shaw was trustee of a railroad mort- gage. See also Allen u. Gillette, 137 id. 596 (1888), cases. « Lamar (guardian) v. Micou, 113 U. S. 465-70(1884), cases. Gray, J. See also as to attorneys, Stockton v. Ford, 11 How. 247(1850); as to bank directors. First Nat. Bank of Ft. Scott v. Drake, 29 Kan. 319-21 (1883), cases; as to executors, Bowen v. Richardson, 133 Mass. 296 (1883), cases; Carson v. Marshall, 37 N. J. E. 313 (1883), cases; Baugh v. Walker, 77 Va. 104-5 (1883), cases; as to guardians, Downs v. Rickards, 4 Del. Ch. 430 (1873), cases; Dodge v. Stevens, &4 N. Y. 315 (1883). T Stone V. Bishop, 4 Cliff. 596 (1878). TRUST 1061 TRUST Property acquired from him with knowledge of his trust and of his disregard of its obligations, can be followed and recovered.* As long as trust property can^be traced, the property into which it has been converted remains subject to the trust; and if a man mixes trust funds with his' own, the whole will be treated as trust property, except so far as he may be able to distinguish what is his." See Identity, 2. The estate of a trustee is commensurate with the purposes of the trust, and ceases when there are no further duties to be pex'formed.^ Where the acts or omissions of a trustee show a want of reasonable fidelity, a court will remove him. Thus, where he neglects to invest money, he may be removed as for a breach of trust,* See Breach; Charity, 2; Credit; Declaration, 1; Delegatus, Potestas; Desciuptio, Persona; Devise, Executory; Director; Discrei'ion, 2; Equity; Fides; Fiduciary; Government; Lien, Equitable; Minis- terial; Power, 2; Rescission; Settle, 3; Shelley's Case; Stock, 3; Title, 1, Equitable. 3. In its modern, non-technical sense: a combination of interests in property, usually of a personal nature, with the power of di- recting the use. oi" of controlling tlie disposal, intrusted to a few men for the benefit of all persons concerned. Or, more at length, the word describes an arrangement between the holders of the ma- joritv of the stock of associations incorpo- rated for similar business purposes, by which those holders transfer the power to vote their stock to a selected committee whose policy will be not only to elect but to so animate each board of directors that the action of all the boards will be identical without a con- tract therefor. The boards may even be chosen from the members of the committee, each member for this purpose being made the owner of one or more shares of stock in all of the corporations. Among the objects sought are: lessening competition; regulating supply or produc- tion ; lowering the cost of material ; reducing expenses; advancing prices or rendering them steady ; increasing dividends ; and en- hancing the value of the shares of stock. The eflf«cts may be: monopolization, by cen- 1 Smith V. Ayer, 101 U. S. .327-38 (1879), cases. 2 Central Nat. Bank of Baltimore v. Connecticut Mut. Lite Ins. Co., 104 U. S. 67-70 (188)), cases; Moore v. Stinson, 144 Mass. .^96 (1887); Fletcher v. Sharpe, 108 Ind. 279 (1886), cases; 26 Am. Law Reg. 74-82 (1887), cases. 'Koenig's Appeal, 67 Pa. 358 (1868); Williams's Ap- peal, 83 id. sn (1877); 75 id. 354; 80 id. 3.37. ' Cavender v. Cavender, 114 U. S. 478, 473 (1885), cases. tralizing power in a few persons ; evasion of laws regulating corporations; and, perhaps, even criminal interference with the law of supply and demand. While, in their organization, "trusts" may vary with the nature of the property involved, the objects in view, and the readi- ness to confide the use or control of capital, products, or good-will, or their repi'esenta- tives, to agents, the general kinds, as already intimated, are: (1) That in which the use of the stock of similar corporations is given to a few men or to one dominant corporation. (2) That in which the possession of tangible property of any species is committed to others for management or disposal. The first species has been called a " cor- porate trust ; "'. the second, which is the sim- plest in form, as well as the most common, may be called a "commercial trust;" and either may be termed a " proxy trust." In order to participate in these schemes, private concerns have been re-organized as associations whose capital was represented by issues of stock; some es- tablishments (manufacturing) have been closed, and others consolidated ; or all have been leased or con- veyed to the committee for the purposes of a common control; or, perhaps, one establishment, centrally located, has been delegated to receive and to sell the products of the confederated establishments. In other cases the plan has been for the owners of the estab- lishments to convey them to the committee, and each receive, for protection, a mortgage upon his property, and certificates for the value of the good-will. The right to use (by voting or otherwise) another's shares of stock represents the "legal" interest in them. This right may be parted with by an absolute transfer, a " declaration of trust " bemg executed at the same time, or by means of a simple power of attor- ney or proxy. The "beneficial" or " equitable " in- terest in the shares is retained by their original owner, who receives, in place thereof, one or more " trust certificates " for his share in the combined interests,— the trustees having received from the respective cor- porations new stock-certificates in their own names, and appearing upon the corporate books as the abso- lute owners of the stock. The committee are not sup- posed to represent any one corporate body; in eitect, all they need do is to determine the personnel of the boards of directors and to infuse into the minds of the members a common purpose. By securing control of the voting power of one share more than one-half of all of the shares of stock in each corporation, these ends may be accomplished, it is claimed, without any corporation, as such, knowing anything about the ob- ject in view, much less withoutits participating in any scheme on foot to shape or to control its action. The stockholders of a corporation do not constitute the legal entity known as the corporation. The principle upon which modern " trusts " are TRUST 1063 TRUST organized would seem to have been applied in England nearly lialf a century ago in "cost-book companies," formed for carrying on mining operations.' More recently, a plan, very similar, has been employed in that country for receiving and investing subscribed funds in the securities of different incorporated com- panies, upon the principle of "average gain and loss " — a loss of funds upon oi^e investment being made up by profits derived from other investments. '^ What is called a *' car trust," which is of American extension, if not of American origin, consists in an agreement between the owners of freight cars, chiefly, but perhaps of other rolling stock for railroads, by which such property is placed in the hands of a trustee, possibly a corporation, for the purpose of effecting leases or sales upon the installment plan, the trustee, in cases, issuing certificates for interests in the deferred payments or rentals.^ The word " trust," in the sense under consideration, is said to be applicable to the plan upon which the Standard Oil Company was originally organized, and is at present conducted; that, in point of fact, all modem "trust" combinations find in it their proto- type. The following general propositions are deducible, it is believed, from the decisions hereto cited: 1. Mutuality of agreement to become a party to a " trust " arrangement may not of itself serve as a suffi- cient consideration to make the agreement binding. 2. One who has executed a power of attorney for voting his stock may revoke it at any time, and he may have an injunction to prevent voting it. 3. The combination to transfer the voting power, that is to execute proxies, is not necessarily illegal. 4. A dissenting party can have relief against the combination when its object is illegal. 5. Wiiere the engagement has been to do an illegal act,; a withdrawing party cannot be made to pay dam- ages as for breach of a contract. 6. Any agreement in general restraint of alienation is not enforcible.* 1 See Kittow v. Liskwood Union, L. R., 10 Q. B. 9 (1874). ' 3 See Sykes v. Beadon, L. R., 11 C. D. 170 (1879) — a "Government Securities Trust," investing in Colonial and other obligations; Smith v. Anderson, 15 id. 247 (1880) — a "Submarine Cables' Trust;" Wigfield v. Potter, 45 L. T. 613 (1882) — a real estate trust or pool ; Crowther v. Thorley, 32 W. R. 330 (1884); Re Siddall, L. R., 29 C. I>. 1 (1885). -The question in each of these cases did not involve the legality of the "trust," as such, but whether the company was included within the meaning of the Companies Act of 1863, providing that an association consisting of more than twenty persons, carrying on business for gain, should be reg- istered. 3 See Ricker t;. American Loan & Trust Co.. 140 Mass. 347(1885). ' * Hafer v. New York, Lake Erie & Western R. Co., Cincinnati Sup. Ct., 14 Cin. Law Bui. 68 (1886); Grif- fith V. Jewett (Cin., Ham. & Dayt. R. Co.), 15 id. 419 (1886); Woodruffs. Dubuque & Sioux City R. Co., 30 F. R. 91 (Feb. 1887) ; Louisiana v. American Cotton Oil Trust, 1 Ry. & Corp. Law J. 509 (May, 1887); Vander- In the absence of decisions determining more di- rectly the nature and powers of these organizations, the following more general observations are sub- mitted: A "trust" seems to be like an ordinary partner- ship—persons endeavoring, through managers, to acconpplish a common purpose. Any species of property which can be assigned at law, may be transferred to another person to be held in trust.^ A share of stock, which is a chose in action, is per- sonalty. The New York law defining express trusts is limited to realty; this is also probably true of the statutes of California, Connecticut, Dakota, Georgia, Kentucky, Michigan, Minnesota, North Carolina, Penn- sylvania, Vermont, Wisconsin, and other States, speci- fying the objects for which legal trusts may be created. The creation of monopolies is not only not encour- aged in any State, but expressly forbidden in Arkan- sas, Maryland, New Mexico, North Carolina, Tennes- see, and Texas. Perpetuities also are fo^-bidden in all the States; and restraints upon the alienation of property are held to be against public policy, as are also agreenients tend- ing toward restraint upon trade, especiallyin the nec- essaries of life. 2 The minority stockholders in a corporation are bound by the action of the majority as to all matters of legitimate business.^ If its charter, or general law, does not permit a cor- poration to enter into a " trust " combination, becom- ing a party to one would doubtless result in the for- feiture of its franchises, and perhaps incur othei* penalties. The power to manage a corporation by its stock- holders cannot be transferred to a body otheV than its own board of directors; nor can it be bound by an executory contract providing for an exetcise of any of its powers against the interests of its stockholders. Any secret arrangement by which it is practically merged into bther corporations would be illegal.* bilt V. Bennett, C. P. 1, Allegheny Co., Pa., a id. 409 (Oct. 1888): affirmed. Sup. Ct. Pa.,; Moses v. Scott efaZ., 84 Ala. 608, 611 (Dec. 1887); Moses v. Tompkins, ib. 613 (1887); Pennsylvania R. Co. u Commonwealth, 7 Atl, R. 368 (Oct. 1886) — upon an agreement to control par- allel and competing lines of railroad, indirectly, through the agency of a third road; Fisher v. Bush, 35 Hun, 641 (1885) — upon an agreement neither to sell nor to vote stock without the consent of all parties; Noel V. Drake, 28 Kan. 265 (1882) — upon an agreement (against public policy) to make one cashier of a bank. * See Perry, Trusts, 3 ed. § 67; Lewin, Trusts, &c. *45; Hill, Trustees, *44. - See India Bagging Association v. Kock, 14 La. An. 168 (1859): Morris Run Coal Co. u Barclay Coal Co., 68 Pa. 173 (1871); Croft u McConoughy, 79 111. 346 (1875) — concerning a grain pool; Arnot v. Pittston & Etmira Coal Co., 68 N. Y. 558 (1877); Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666 (1880). 3 See Ei-vin v. Oregon Railway & Navigation Co., 27 F. R. 625, 630 (1886), cases, 4 See generally 19 Abb. New Cases, 450 (1888), note by Austin Abbott; Monograph on "Trusts," by W. W. TRUST 1063 TUG-BOAT An eminent authority, in discussing the " legality of trusts," writes substantially as follows: The word " trust " is not descriptive of the subject, but it is dif- ficult to find a substitute. Strictly, the trust itself is a mere instrument — the means to an end. The deter- minative inquiry is whether the end sought is law- ful at common law, whether the agreement be by individuals acting, or not acting, as stockholders. The object of each stockholder in making the com- mittee the apparent stockholders and in conferring upon them the power of control, is his own ultimate benefit — which is not unlawful. No law prevents each stockholder from selecting the same trustee or trustees. The " trust deed " declares the trust— a legal contrivance in daily use between individuals. It is the purpose, if anything, that gives the combina- tion the stamp of illegality. The stockholders of a corporation do not own its property ; they have but an " equitable " title to it; on the other hand, the rights of the corporation are " legal " rights. Owning stock confers a right to vote for managers or directors, to receive dividends, and to hold the directors, that is the corporation, to an account for their management. The unincorporated association through the instru- mentality of which the objects of a "trust " are sought to be attained constitutes a partnership — something is undertaken by several persons for gain; the consid- eration is the mutual promises. Its validity depends whoUy upon the lawfulness of the ends in view.' Parties may agree to prevent competition between themselves, unless the agreement is unlawful in its own nature. At common law it is not wrong to raise prices so as to pay the costs of production and a rea- sonable profit, nor to regulate them in order to keep them steady; nor is such an agreement a conspiracy "to commit an act injurious to trade or commerce " (N. Y. Penal Code, sec. 168), since it is not " injurious " to keep production on an even line with consumption.' The same writer's conclusions are: (1) At common law forestalling, regrating, and engrossing were not criminal unless they concerned the necessaries of life. The sounder opinion seems to be that they were made crimes by statute 5 and 6 Edw. VI (1558), c. 14, which was repealed by 12 Geo. HI (1772), c. 71, and by 7 and 8 Vict. (1844), c. 24. (-3) If forestalling was criminal it was only where there was proven a criminal intent to injure trade. Where the purpose was laudable, as, when to keep prices steady, no such intent could be Cook(N. T. City, 1888); 1 Harv. Law Eev. 132-43 (Oct. 25, 1887), by F. J. Stimson ; 27 Cent. Law J. 205 (Aug. 3l! 1888)'; New York Times, Feb. 20, 1888; New York World, Feb. 21, 1888. ' See Bostwick v. Champion, 11 Wend. 571 (18.34): s. c. on appeal, 18 id. 17S (1837); Merrick v. Gordon, 20 N. Y. 93 (1859); Burnett v. Snyder, 81 id. 555 (1880); Stroher V. Elting, 97 id. lOi (1884). Analogous to, and not at variance with, Merrick v. Gordon are, Wright v. David- son, 13 Minn. 449 (1868); Snell v. De Land, 43 111. 323 (186'7)- Irvin v. Nashville, &c. E. Co., 92 id. 103 (1879). •■■Compare Marsh v. Eussell, 66 N. Y. 288, 291-92 0876) _ a contract between four partners to furnish recruits tor certain towns at five hundred dollars per man, under an anticipated call for troops. inferred. (3) It is not a nuisance by that law for per- sons to form an association, issue transferable certifl- ■ cates, and appoint a committee to make rules for governing the association. (4) The old rule that a contract in general restraint of trade is void as be- tween the parties was originally based upon erroneous views of political economy. It has practically disap- peared iUi England and New York, and is likely to be modified elsewhere.' (5) If a "trust" is lawful as a reasonable element in production it cannot be made unlawful by legislation of a stigmatizing character. To produce freely as individuals, to act in concert with others, to stimulate production when there is a scar- city of commodities, to regulate and restrain it when there is a " glut " — are all prime elements in lib- erty * of trade ; and they are also constitutional rights. ^ See Alibnatio; Combination, 2; Happiness; Legal, Illegal; Liberty, 1; Monopoly; Peepetoity; Stock, p. 977, c. 2; Trade, p. 1043. TRUTH. See True. THY. See Attempt; Trial. TUG-BOAT. In the towing of vessels without motive power, is regarded as the dominant mind or will of the adventure. The details of immediate navigation, with refer- ence to approaching vessels, must be left to a great extent to those on board of her. And they must use at least reasonable and ordinary care toward the tows in their charge.* 1 See Eousillon v. Rousillon, L. K., 14 C. D. 351 (1880); Printing, &c. Co.u Sampson, L. R., 19 Eq. C. 462(1875); Diamond Match Co. v. Eoeber, 106 N. Y. 473 (18S7). In Wickens v. Evans, 3 Y. & J. 318 (Exch. E., 1829), an agreement between manufacturers of trunks for a di- vision of territory, and for non-interference, was up- held. In Collins v. I^ocke, L. E., 4 Ap. C. 074 (1879), an agreement to parcel out the stevedoring business of a port, and to prevent competition, at least among the contracting parties, was also held to be valid. In Mogul Steamship Co. v. McGregor, L. R, 21 Q. B. D. 544 (1888), it was held that a number of associated owners of vessels could lawfully offer rebates to deal- ers in China who would ship teas to Europe by vessels controlled by the association, the object being, not to ruin the trade of rival ship-owners, but to confine the^ transportation of teas to vessels belonging to the asso- ciation. In Central Shade-Roller Co. The meaning is that no one shall be heard in a court of justice to allege his own turpitude as a foimdation of a right or claim ; not, that a man shall not be heard who testifies to his own turpitude or criminality, how- ever much his testimony may be discredited by his character. In Walton v. Slielley (1 T. R. 300), where an indorser was held not to be competent to prove that a note was void for usury in its inception, the maxim was plainly misapplied by Lord Mansfield. That was in 1786. In 1798, Lord Kenyon being chief justice, that case was overruled by Joxdaine v. Lash- brooke (7 T. R. 601, 609), as to all instruments. The States are divided between the two cases. But the tendency is to disreg'ard all objections to the compe- tency of witnesses, and to allow their position and character to affect only their credibility. Where Walton V. Shelley is adopted, the rule is limited to negotiable instruments. A holder cannot invoke pro- tection against an infirmity he has aided to create. But the rule is not applicable to a case between the original parties, where the paper had not been put into circulation and each party was cognizant of all the facts.' There are many cases in which witnesses are ad- mitted, though not compelled, to prove facts which show their turpitude; £is, in the case of a particeps criminis, when credibility is for the j my. The maxim is more applicable to parties. See Lkgal, Illegal.* , > Commonwealth v. Wilkinson, 16 Pick. IW (1634), Shaw, C. J. See also Heyward v. New York, 8 Barb. 402 (1850). 2 Trist V. Child, 21 Wall. 4.52 (18741. 'Davis U.Brown, 94' U. S. 425-27(1875), Field, J.; 2 Best, Ev, §§ 545-46. * Winton v. Saidler, 3 Johns. Cas. *]89, 192 (1802), Kent, J.; Powell v. Waters, 17 Johns. *180(1819); Fox V. Whitney, IB Mass. *121 a819); Gould v. Gould, 3 Story, 541 (1844); 35 Pa. 527; 40 id. 156; 51 id. 376; 1 Greenl. Ev. S 383. TUTOR 1065 ULTRA TUTOE; TUTRIX. In civil law, a person to whom is committed the care and custody of the person and estate of a minor. Tutrix is the feminine form of the word. Lest the interests of ward and tutor become opposed, the court in Louisiana appoints an " under-tutor " to act for the ward. I See Committee;; Guardian. TWELVE TABLES. The Romau plebs, in their struggle with the patricians for equality of rights, demanded that the laws of the state be reduced to written form, the patricians, it was claimed, administering the law to suit themselves. A commission of ten persons {decemviri) was appointed, 451 B. C, to draw up a code. In 452 the com- mission reported ten tables or chapters of laws, and added two more in 453. The ob- ject was to obtain an open and exact state- ment of tlie system already existing. This code continued for many centuries as the fundamental law. The legislation of Justinian sup- planted it iu form. The original Tables were in- scribed on plates of brass. Quotations are preserved in the extant worljs of ancient writers. Form and ceremony in actions were rigorously insisted upon.* TWICE. See Jeopardy. TWYNE'S CASE. See Possession, Fraudulent. TYPE. See Plaik. Typewriter. See Stenographer ; Writ- ing. TYRRELL'S CASE. See Trust, p. 1059. u. U. The initial letter of a few words some- times abbreviated : XJ. B. Upper bench. 17. C. Upper Canada — courts, reports. U. S. Under sheriff; United States — courts, statutes, reports, etc. UBERRIMA. See P^des, Uberrima. UBI. L. Where; when, Ubi eadem ratio. See Ratio. Ubi jus, ibi remedium. See Remedium. UBIQUITY.3 1. Presence throughout a dominion or jurisdiction. The king, politically, is the fountain of justice, the steward who dispenses justice to wh»m it is due. A consequence of this prerogative is his "legal ubiq- ' See Vance v. Vahce, 108 U. S. 514 (1883); Sense- man's Appeal, 21 Pa. 3&3 (18B3J. 2 Hadley, Som. Law, 74-79; Maine, Anc. Law, 1, 14, 33; Gibbon, Rome, ch. 44. ' L. ubi-qne, wherever, everywhere. uity: " he is always present in his court by his judges, whose power is an emanation of his prerogative. On account of this ubiquity in his royal office he can never be nonsuit, and he is not said to appear by at- torney.^ The United States, in their sovereign capacity, pos- sess, in contemplation of law, an ubiquity throughout the Union. ^ 2. Universal validity or efHcaCy. A valid judgment in rem is ubiquitous — binds all the world. . Decrees as to personal status are not necessarily ubiquitous.' See Res. ULLAGE. See Leakage. ULTIMA. L. The last, extremest; lit- erally, the furthest off, remotest. Ultima ratio. The final argument ; the last resort. Ultimus haeres. The remote heir: in feudal law, the lord. Ultimatum. The last proposition a party will make — toward negotiating a contract or a treaty ; also, the result of the negotia- tion as expressed in the final determination. ULTIMATE. See Ultima. In the expression "ultimate facts," is op- posed to probative, evidential. And as the probative or evidential facts are such as serve to establish or disprove the issues, the issues are, therefore, the ultimate facts.* ULTRA. L. Beyond, over, outside of. Ultra reprises. Beyond drawbacks. See Reprises. Ultra vires. Beyond the power or pow- ers. Sometimes termed extra vires. Intra vires. Within the power or powers. These phrases donate that an act, of contract or of tort, done on behalf of a corporation is, or is not, within the scope of the powers con- ferred upon it. The phrase ultra vires, as used in the discussion of legal subjects, seems to be first found in Karnes's Principles of Equity, published in 1776, where he in- quires whether a court of equity can afford relief in a case where a deed is " void at common law, as ultra vires." * The expression, which is a concise and convenient form by which to describe the unauthorized act of arti- ficial persons with limited powers, is applicable to in- dividual action.^ ' 1 Bl. Com. aOS, 270; 3 id. 24. 2 Vaughn v. Northup, 15 Pet. 6 (1841), Story, J. ; 18 How. 105; 109 U. S. 657. 8 1 Whart. Ev. §§ 814-18; 2 Sm. L. C. 662. «Kahn v. Central Smelting Co., 8 Utah, 379, 381 (1878); 16.375-76; Pio Pico u. Cuyas, 47 Cal. 174(1873). 'See 16 Am. Law Reg. 514 (1877); Green's Brice's Ultra Vires, Pref . v-vi. 6 Nat. Pemberton Bank v. Porter, 125 Mass. 335(1878). ULTRA VIRES 1066 UN ASSESSED An act is ultra vires when (1) it is not in the power of the corporation to perform it under any ch-cumstances; when (2) the cor- poration cannot perform the act without the consent of certain persons; and when (3) the corporation cannot perform the act for some specific purpose.^ The act, in the first sense, is void in toio, and the corporation Eaay avail itself of that plea. But whether the plea may be set up in other cases depends upon circumstances. ' When a contract is not on its face necessarily beyond the scope of the power of the corporation, in the absence of proof to the contrary, it will be pre- sumed to be valid. A corporation is presumed to con- tract within its powers. The doctrine of ultra vires should not be allowed to prevail where it would de- feat the ends of justice or work a legal wrong.^ The House of Lords has decided that a contract not within the scope of the powers conferred on a cor- poration cannot be made valid by the assent of the shareholders, nor by a partial performance. This de- cision, which is based upon sound principle, represents the preponderance of authority in this country." , Whatever, under the charter of a corporation and the general laws applicable to it, may fairly be re- garded as incidental to the objects for which the cor- poration is created, is not to be taken as prohibited.^ The doctrine, as applying to the' powers of railroad corporations, has not been construed, of late years, with the strictness that obtained in former times. . . Where a corporation has received the benefits of a contract, it may not now deny its validity.^ A corporation possesses only such lawful powers as are expressly conferred by its charter, and such as are clearly incidental or impliedly requisite for carrying out the declared objects of its creation. While some authorities hold that an act in excess of the powers so limited are illegal (any contract in excess thereof being uon-enforceable), and that neither party is es- topped from pleading the ultra vires of the transac- tion, in some States the corporation is estopped from alleging or taking advantage of its want of power. The-latter doctrine seems to be gaining ground.^ A corporation is liable for every wrong it commits, 1 Miners' Ditch Co. v. Zellerbach, 37 Cal. 578 (1869), Sawyer, C. J. Approved, McPherson l/. Foster, 43 Iowa, 65 (1876). » Ohio & Mississippi R. Co. v. McCarthy, 96 U. S. 367 (18T7), cases. Swayne, J.; Bissell v. Michigan Southern, &c. R. Cos., 32 N. Y. 363-80 (1860), cases; Bradley v. Ballard, 55 111. 419 (1870), cases; Holmes v. City of Shreveport, 31 F. R. 119-31 (1887), cases. 'Thomas v. West Jersey R. Co., 101 U. S. 83 (1879), cases. * Green Bay, &c. R. Co, v. Union Steamboat Co., 107 V. S. 100 (1883), cases. Gray, J. ^Dimpfel v. Ohio & Mississippi R. Co., 9 Biss. 130 (1879). fl Denver Fire Ins. Co. v. McClelland, 9 Col. 18-31 (188S), cases. and in such cases the doctrine ot ultra vires has no ap- plication. It is also liable for the acts of a servant while engaged in the business of his principal, i See Tort, 3. UMPIKE.2 Vyhen arbitrators do not agree, it is usual to add that another person be called in as umpire (imperator or impar) to whose sole judgment the' controversy is then referred. 3 A person whom two arbitrators, appointed and duly authorized by the parties to a suit, select to decide the matter in controversy, concerning which the arbitrators are unable to ag;*ee. His province is to determine the issue submitted to the arbitrators, and to make an award thereon. This award is his alone. He is in the situation of a sole arbitrator, and, unless it is otherwise agreed, is bound to hear and determine the case as if it had been orig- inally submitted to his determination.* See Arbitra- tion. A testator may designate his executor as umpire to settle questions of doubt as to his intentions. And if such umpire exercises the power in good faith, his decisions will not be revised by a court, although they might be thought erroneous. But if he refuses to act, transcends his authority, makes an incomplete award, or commits any gross mistake or error of judgment evincing partiality, corruption, or prejudice, or vio- lates a statute on which a dissatisfied party has a right to rely, a court of equity may interfere, correct the error, and restrain f luliher abuse of the powers com- mitted to the umpire.* UN. A prefix, of Anglo-Saxon origin, equivalent to the Latin in and won, not. Compare Dis ; In, 3 (1) ; NON. Negatives the meaning of the simple word. UNA. See^UNUS. UNADEEMED. See Ademption. UNADJUSTED. See Adjust. UNADMINISTERED. See Adminis- ter, 4. UNADMITTED. See Admission, 3. UNALIENABLE. See Alien, 3. UNALTERED. See Alteration. UNASSESSED, See Assess, 1. 1 First Nat. Bank of Carlisle u. Graham, 300 U. S. 702 (1879), cases. See also Cooley, Toi-ts, llft-23, cases. See generally 16 Am. Law Reg. 513-26 (1877), cases; 13 Am. Law Rev. 632-63 (1879), cases. ^FornumpiremF. nom-pair, a non-peer: L. impar^ un-equal. " [3 Bl. Com. 16. 4 Haven v. Winnisimmet Company, U Allen, 384 (1865), cases, Bigelow, C. J. Approved, Ingraham v, Whitmore, 75 111. 30 (1874). * Board of Foreign Missions v. Ferry, 15 F. R. 700 (1883), cases. UNAVOIDABLE 1067 UNDERTAKEE TJlf A VOIDABLE. See Accident ; Cas- .UALTY. UNBORN. See Child. UNCERTAIN. See Certain. UNCERTIFIED. See Certificate. UNCLAIMED. See Claim. UNCLE. See Consanguinity. UNCOLLECTIBLE. See Collect. UNCONDITIONAL, or UNCONDI- TIONED. See Condition. UNCONSCIONABLE. See Conscience. UNCONSTITUTIONAL. See Consti- tution. UNCONTESTED. See Contest. UNDE. See Dower, Writ of. UNDECIDED. See Decision. UNDENIED. See Admission, 3; Db- •fense, 3. UNDER. Lower than, beneath, below; subject to; subordinate: as, under a law or jurisdiction ; under the law ; under a judg- ment, mortgage, or other incumbrance; under sentence; under the hammer. Com- pare Over, 1. No right can be acquired " under a law " which is not in pursuance of, that is, subject to, the law.i Under and subject. Used in relation to the mutual and dependent rights and du- ties of mortgagees, mortgagors, the grantees of mortgagors and the alienees of such grant- ees ; also, of rights affected by ground-rents, and other incumbrances. An agreement merely to take land subject to a speci- fied incumbrance is not an agreement to assume and pay the incumbrance. The grantee of an equity of redemption, without words in the grant importing in some form that he assumes the payment of a mort- gage, does not bind himself personally to pay the debt. To make him personally liable, there must be words importing that he will pay the debt.' In Pennsylvania, a conveyance of land " under and subject " to a mortgage executed by the grantor cre- ates a covenant of indemnity to the grantor on the part of the grantee. If the grantee aliens by a deed containing the same " under and subject " clause, without more, the alienee does not assume a liabil- ity to the mortgagee, or undertake to discharge the grantee's covenant of indemnity. The mortgagee may show, however, that the alienee has taken upon him- self not only the grantor's duty to indemnify the mort- gagor, but a personal obligation to pay the mortgage ' Mills V. Stoddard, 8 How. 366 (1830). !> Elliott V. Sackett, 108 U. S. 140 (188.3), Blatchford, J. See also Shepherd ti. May, 115 id. SIO (188.5); Fiske v. Tolman, V2A Mass. 256 (1878); Belmont v. Coman, S3 N. T. 43S (1860); Hoy v. Bramhall, 19 N. J. E. 74 (1868); Fowler v. Fay, 62 111. 375 (1872). debt. The evidence may consist of stipulations in the deed, of written articles outside of its terms, or of a verbal contemporaneous agreement; and the under- taking may be implied from circumstances. . . It may be provided by statute that a grantee shall not be personally liable for an ihciunbrance unless, in some writing, he shall expressly have assumed personal liability; that the words "under and subject" alone shall not be construed to create it; and that such lia- bility shall not be enforced by any person other than he with whom it was incurred, nor continue after the grantee has bojui fide parted with the property, unless there is an express agreement for continuing the lia- bUity.' UNDER AGE. See Age. UNDER- AGENT. See Agent; Dele- gate. UNDERBILLING. See Commerce, p. 201. UNDER IMPROVEMENT. See Im- provement. I UNDERLET. See Lease. UNDER PROTEST. See Protest, 1. UNDER-SHERIFF. See Sheriff. UNDERSTANDING. An ambiguous word, unless accompanied by an expression showing that it constitutes a meeting of minds as to something respecting which the parties intend to be bound. It may be used to express the expectation of confidence upon which parties frequently are willing to rely without their exacting a binding stipula- tion. 2 "Understanding" and "agreement" are synonymous. An understanding is "any- thing mutually understood or agreed Upon." « "It is imderstood," in ordinary use, when adopted in a, written contract, has the same force as " it is agreed." ^ It falls short of alleging a distinct, express con- tract.' Expresses a valid contract engagement of a some- what informal character." See Assent; Prouisb. UNDERTAKE. To assume, engage; to agree, promise, obligate one's self. The tech- nical word used in declaring upon an engage- ment or promise of any nature. See ASSUMP- SIT; Care; Covenant. UNDERTAKER. One who has charge of a funeral. ' Merriman v. Moore, 90 Pa. 80 (1879), cases, Paxson, J.; Act 12 June, 1878, P. L. 235; 121 Pa. 139. » LCamp u Weed, 33 Conn. .'529 (1857), Storra, C. J.] s Barkow v. Sanger, 47 Wis. 607-8 (1879), Taylor, J. * Higginson v. Weld. 14 Gray, 170 (1859). » Black V. City of Columbia, 19 S. C. 419 (1883). • Winslow V. Dakota Lumber Co., 32 Minn. 238 (1884). UNDER-TENANT 1068 UNITED STATES An undertaker's establishmtsnt, in which he keeps coMns, ice-boxes and cases for preserving bodies, and at the rear of which he cleanses and dries such boxes, is not necessarily a nuisance. ^ ■ UNDER-TENANT. See. Lease, Lessee, page 607. UNDER-TUTOR. See Tutoe. UNDERWRITER. When marine insur- ance was the only insurance known, a person soliciting a contract exhibited in writing, in a resort for meixhants or insurers, the par- ticulars of his application, or sent the appli- cation to an insurance- broker. A person who was willing to take the risk wrote underneath the appJication the sum, his name, residence, etc. Hence " underwrite " (and ," underwrit- ing ") came to mean to accept proposed con- tracts for insurance, to carry on the business of insuring against loss by storm, shipwreck, fire, etc. See Insurancb. UNDISCLOSED. See Admission, 2; Agent; Discovery. UNDIVIDED. See Division, 1. UNDUE. See Conceal, 5; Influence. UNEXECUTED. See Execute. UNEXEMPTED. See Exemption. UNFAIR. See Conscience ; Fraud; In- fluence. UNIFORM. Conforming to one rule, niode, or unvarying standard; affecting, per- sons and property alike ; agreeing with each other ; substantially one and the same. See Presumption. ' The National and State constitutions provide that legislation on designated subjects shall be " uniform " in its operation. Thus, "The Congress shall have Power . To establish an uniform Rule of Naturalization, and uni- foi-m Laws on the subject of Bankruptcies." " Bankrupt laws are uniform when they allow bank- rupts in each of the States the exemption which the Jaws of any particular State allow to debtors upon the levy of an execution, although this may leave bank-, rupts in some States more property than they can re- tain in others.' . That " all laws of a general nature shall be uniform in their operation " means that such laws shall bear equally, in their burdens and benefits, upon persons standing in the same category.* Every law of a general nature must operate equally ' Westcott V. Middleton, 43 N. J. E. 478 (18S7). = Constitution, Art. I, sec. 8, cl. 4. 3 Be Smith, 2 Woods, 460 (1876); Be Deckert, 10 Baukr. Reg. 4 (I8T8); Be Shipman, 14 id. 670 (1876); Ap- pold's Estate, 16 Am. Law Reg. 627 (1868). * People V. Judge, 17 Cal. *654 (1861). upon all persops brought within the relations and cir- cumstances provided for. ' A law is uniform when all persons brought within the relation and circumstances provided for are af- fected alike, when it has a uniform operation upon all within the class upon which it purports to operate.^ Uniformity consists in , the fact that no person or thing, of the description affected, is exempt from the operation of the law.' I All legislation, to a gi-eater or less extent, consists in the creation of categories to which the, provisions of a statute apply.* Uniformity in taxing implies equality in the burden of taxation — uniformity in the itiode of assessment, as well as in the rate of taxation. This uniformity must be co-extensive with the territory to which the law applies, and be extended to all property subject to taxation, so that all may be taxed alike and equally.* , Absolute uniformity may not be attainable in prac- tice, but an approxiulation to it is. possible, and any plain departure from the rule will defeat the tax. . . Taxes must be levied according to some.fixed rate or rule of apportionment,, so that all persons shall pay the like amount upon similar kinds of property of the same value. " " All Duties, Imposts and Excises shall be uniform throughout the United States." A tax is uniform when it operates with the same force and effect in every place where the subject of it is found.' See Tax, 8. UNILATERAL. See Bilateral. UNIMPAIRED. See Impair. * . UNIMPEACHED. See Impeach. UNINCORPORATED. See Associa- tion, 3. UNINCUMBERED. See Incumbrance. UNION. See Merger, 1 ; Trades-union ; United States; Unity. UNITED STATES. In America, the political entity or entirety formed by the adoption of the Federal or National Consti- tution ; also, the whole territory or country subject thereto. Used adjectively, that which emanates from, pertains or belongs to, the General or National government. See further Constitution; Courts; Government; Revised Statutes; State, 3 (2); Territory, 2; — Citizen; Comity; Commerce; Corporation, Public; Pederal; Nation; Tort, 2; War. ' McAunich v. Mississippi, &c. R. Co., 30 Iowa, 343 (1866); Kelley v. State, 6 Ohio St. 271 (1856). = [Senior v. Ratterman. 44 Ohio St. 678 (1887). ' [Heck V. State, 44 Ohio St. 639 (1880). ' Adler v. Whitbeck, 44 Ohio St. 67S (1886). » Exchange Baik v. Bines, 3 Ohio St. 15 (1863), Bart- ley, C. J. « Railroad Tax Case, 8 Saw. 252 (1882), Field, J. ' Constitution, Art. I, sec. 8, cl. 1 ; Head-Money Cases, 112 U. S. 594 (1884), Miller, J. UNITY 1089 USE UNITY. 1. The peculiar characteristic of an estate in joint tenancy is a four-fold unity — of interest, title, time, and posses- sion. See Tenant. 2. At common law, a husband and wife were one person, and he that person. Upon this principle of " unity of person " depended all the legal rights, duties, and disabilities that either party acquired by the marriage. Hence, the wife could neither sue nor be sued without joining the hus- band ; and neither could convey directly to the other — a principle which does not now operate, at least in the case of a voluntary transfer as a settlement upon the wife.i See Husband. 3. Assent to the same thing in the same sense. See Agreement ; Assent. UNIVEBSAL. See' Agent; All; Gen- eral; Partnership. UNIVEESITY. See Abode ; College, 3 ; Lectures; School; Tax, 3. UNJUSTrPIABLE. See Defense, 3; Homicide. UlfKNOWN. See Knowledge, 1 ; Con- tents, 1; Indictment; Owner. UNIiAWPUIi. See Lawi-ul. UNLESS. See Condition : Nisi. UNLIQUXDATED. See Liquidate; Damages. UNMARKETABLE. See Market. UNMAERIED. See Man, 2 ; Marriage. UNMORTGAGED. See Mortgage. UNO. See Unus. UNOCCUPIED. See Occupy. UNOFFICIAL. See Ofotcial; Report, 1(3). UNPAID. See Assumpsit; Payment. UNREASONABLE. See Cause, Prob- able; Reason; Search-warrant. UNRECORDED. See Record, 1. UNREDEEMED. See Redeem. UNREGISTERED. See Register. UNREPORTED. See Report, 1 (3). UNSATISFIED. See Satisfy. UNSEATED. See Seated. UNSOUND. See Sound, 3. UNSUITABLE. See Suitable. UNTAXED. See Tax. UNTENANTABLE. See Landlord. UNTIL. Generally excludes the day to which it relates, but this construction will yield to the manifest contrary intention of the parties.2 ' 1 Bl. Com. 448; 101 U. S. 228, 243. a Kendall v. Kingsley, 120 Mass. 95 (1876), cases, Gray, C. J.; Webster v. French, 12 111. 304 (1850). A charter continuing " until the first day of Janu- ary " expires the thirty-flrst day of December.' " Until " or " till " the next term of court does not include any part of that term. And when time is given for filing exceptions until a particular day in a term, a filing on that day is too late.^ Otherwise held where a party had until a certain day for filing a motion for a new trial," " Until summer " ordinarily means to the first of June; " until fall." to the first of September.* UNTRUE. See True. UNUS. L. One; the same. Una voce. With one voice ; with one sis- sent. Uno acto. In one act ; by the same act. Uno flatu. In one breath ; in the same breath ; in one utterance. UNUSUAL. See Punishment; Usual. Two is not an " unusual " number, when applied to persons who violently enter premises in dispute." UNVERIFIED. See Verify. UNWAIVED. See Waive. UNWRITTEN. See Law, Common; Parol; Writing. UPLIFTED HAND. See Oath. UPON. 1. Resting on, united with ; con- tained in, q. V. Breaking and turning over the soil of land does not constitute an improvement "lipon" land, within the meaning of a mechanic's lien law." 3. When ; in case of. Where a deed is to be delivered " upon " or " on " the payment of the purchase-money, a tender of de- livery is precedent to the payment, the covenants being dependent. "Upon" in such case means "when." ' " Upon the death " of a devisee was held equivalent to " in case of " his death.^ See Case, 1; Then. Compare After; On. UPPER. See Bench. UPSET. See Bid. USAGE; USANCE. See Use, 2, page 1076, c. 3. USE.9 1, V. To employ, hold, occupy, enjoy, take the benefit of." I People V. Walker, 17 N. Y. B03 (1868). See also People V. Crissey, 91 id. 631 (1883). = Corbin v. Ketcham, 87 Ind. 139 (1888), cases. ' Rogers u. Cherokee Iron & Ey . Co. , 70 Ga. 717 (1883) ; 67 id. 765. < Abel V. Alexander, 45 Ind. 528 (1874). 5 Pike V. Witt, 104 Mass. 597 (1870). "Brown v. Wyman. 56 Iowa, 454 (1881); 55 Vt. 149. 1 Adams V. Williams. 2 W. & S. 228 (1841); Courtright „. Deeds, 37 Iowa, 508 (1873); 10 Ala. 414. •> Conrow v. Conrow, 14 W. N. C. 483 (1884); Roberts's Appeal, 59 Pa. 72 (1868). » L. us%is, q. V. 1 Snow V. Columbian Ins. Co., 48 N. Y. 627 (1872). USE 1070 USE In insurance law, " to use a port " means to go into a harbor or haven for shelter, commerce, or pleasure, and to derive advantage from Its protection.' 3, n. Appropriation, application, employ- ment ; enjoyment, benefit, profit. See Abuse. " For the use of," in conveyancing, expresses the right of appropriation or enjoyment, rather than the purpose or mode of use.* A grant of "the use of the timber" on a tract of land was held to convey an incorporeal right, not the timber itself nor the soil.^ - Hiding a stray horse about, trying to find the owner, is not such using as is intended by the rule that' one who "uses anestray" becomes liable in trover.* A " change in use " in insurance includes a change from occupancy to ' " disuse." ^ Actual use. Wearing apparel may be "in actual use " witht^ut having been actually worn. " In use " means in employment ; and " actual " means real as opposed to nominal and present.^ For use. Describes a suit or proceeding, a decree or judgment, had for the benefit of another person than the, nominal plaintiff ; as, " A, for use, etc. v. B." Misuse; Misuser. Wrongful use; abuse. Non-use; non-user. Failure to use; neglect. An office may be forfeited by misuser or abuse, as when a judge takes a bribe; or by non-user or neglect.' Public use. A use which is for the ben- efit of the public,' or which concerns the whole community in which it exists, as dis- tinguished from a particular individual or number of individuals. ^ The power of taxation cannot be used in aid of en- terprises for the benefit of individuals, though in a remote or collateral way the local public may be bene- fited thereby." A public use of an invention, permitted by the in- ventor, for more than two years prior to the date of a patent avoids the pat«nt. To constitute such use it is not necessary that more than one of the patented articles be publicly used." See .Dedication, 1; Domain, Eminent; Take, 8. J Snow V. Columbian Ins. Co., ante. " Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 324 (1871). ' Clark V. Way, 11 Rich. 624 (S. C, 18S8). « Henry v. Richardson, 7 Watts, 559 (1838). ' Cannell v. Phoenix Ins. Co., 59 Me. 590 (1871). • Astor V. Merritt, 111 U. S. 213 (1884). '2B1. Com. 153; 26 Pa. 318. 8 Ee Townsend, 39 N. T. 182 (1868); ib. 170. » Kellar v. Corpus Chriati, 50 Tex. 629 (1879): Gilmer V. Lime Point, 18 Cal. 251 (1861); Concord E. Co. v. Greeley, 17 N. H. 61 (1845) ; Varner u Martin, 21 W. Va. 552-66 (1883), cases. 1° Loan Association v. Topeka, 20 Wall. 665 (1874). 11 Egbert v. Lippman, 104 U. S. 3.36 (1881), cases; Man- ning!). Cape Ann Isinglass, &o. Co., 108 id. 465 (1883). Usage. General and uniform practice. See Umal, p. 1071. In English law, "usage" is local practice, and must be proved; "custom "is general practice, judi- cially noticed without proof. Usage is the fact; custom the law. There may be usage without custom: there can be no custom with- out usage to accompany or precede it. Usage consists in a repetition of acts; custom arises out of this repeti- tion. The usage leading to a custom may be proved by public writings, by the testimony of aged per- sons, or by two concurring judgments upon the mat- ter.' Usage of trade. A. course of dealing ; a mode of conducting transactions of a par- ticular kind.- The custom or usage of a trade is the law of that trade, and obligatory if ancient (sufiiciently old to be generally known), certain, uniform, and reason- able.' Usage of trade and custom are part of the common law. They help interpret the otherwise indeterminate intention of parties, where their acts and expressions are doubtful; but they are never admissible to con- tradict what is plain.* A general usage may be proved in proper cases to remove ambiguities and uncertainties in a contract or to annex incidents, but it cannot destroy, contradict, or modify what is otherwise manifest. Where the in- tent and meaning of the parties are clear, evidence of a usage to the contrary is irrelevant. Usage cannot make a contract where there is none, nor prevent the effect of the settled rules of the law.^ See Cu&tom; Usus, Malus, etc. Usance. The period which, in early times, it was usual to appoint between dif- ferent countries for the payment of bills.^ When usance is a month, half usance is always fif- teen days, notwithstanding the unequal length of the months.* Use and occupation. A species of as- sumpsit, when one has used another's realty under a contract, express or implied, to pay therefor, and for the value of which an ac- tion of rent cannot be maintained, as for 1 Cutter V. Waddingham, 22 Mo. 284 (1855): Escriche, Diet. ' Haskins v. Warren, 115 Mass. £35 (1874), Wells, J. sCoUings V. Hope, 3 Wash. 150 (1812); Carter v. Philadelphia Coal Co., 77 Pa. 290 (1875), cases. * TheReeside, 3 Sumn. 569 (1837), Story, J.; Barnard V. Kellogg, 10 Wall. 390-91 (1870), cases; Merchants' Bank v. State Bank, ib. 667 (1870), cases; Hearne v. Marine Ins. Co., 20 id. 492-93 (1874), cases; Savings Bank v. Ward, 100 U. S. 306 (1879); 1 Wall. 95; 2 Greenl. Ev. §§ 261, 293. » First Nat. Bank of Cincinnati ' v. Burkhardt, 100 U. S. 693 (1879), cases, Swayne, J. ; Grace v. American Central Ins. Co., 109 id. 283 (1883), oases; Janney v. Boyd, 30 Minn. 320 (1863), cases. • Byles, Bills, 208. USE 1071 USE want of a lesise, or of an agreement to pay a speciHed sum.i The law implies a promise to pay what the benefits accruing from the possession are worth. This is the fomidation of the cause of action. In certain cases the value of lasting and valuable Improvements may- be deducted.' Not maintainable where the occupation has been tortious, as that forbids the implication of a promise ; ^ nor where the relation of landlord and tenant does not exist.' Useful. Is employed in patent statutes incidentally, distinguishing that which is beneficial from that which is mischievous or immoral; does not intend that which is superior to other modes in use for the same purpose.* A "useful invention" is such as may be applied to some beneficial use in society, in contradistinction to an invention which is injurious to the morals, the health, or the good order of society. The law does not re- gard the degree of utility. * Useful is here opposed to "frivolous" or "nox- ious." " Unless the invention is shown to be absolutely friv- olous and worthless, the patent is valid. The fact that a patent has been issued raises a presumption of utility. The burden of proving inutility is upon the contestant.' See Novelty; Patent, 8; Process, 2; Utility. Compare Usns, Utile, etc. User. The exercise or enjoyment of a right, especially of a. franchise right. Op- posed, non-user, disuser. An uninterrupted possession and use of an incorpo- real hereditament or easement, such as a way or a water-privilege, for twenty years, is prima facie, and, if unexplained, conclusive evidence of a right; under some circumstances the courts will entertain the pre- sumption of a grant, even for a shorter period. A right thus acquired by "user" may, in like manner, be lost by " disuser; " in other words, discontinuance of the use for a long period affords a presumption of the extinguishment of the right. » Adverse user. A user without license of permission. 1 Hurley v. Lamoreaux, 29 Minn. 133 (1882), cases. » Seibert v. Baxter, 36 Kan. 190 (188T), cases. 3 Clark V. Clark, 58 Vt. 539 (188fi), cases; 25 Am. iaw Reg. T/S-W (1886), cases. As to action against tres- passer, see 23 Cent. Law J. 887 (1886), cases. <-[Lowell «. Lewis, 1 Mas. 186 (1817), Story, J.; Sey- mour V. Osborne, 11 Wall. 549 (1870), cases. « Bedford v. Hunt, 1 Mas.' 303 (ISII ), Story, J. • Winans v. Schenectady, &c. B. Co., 2 Blatch. 290 (1851); Kneass v. SchuylkUl Bank, 4 Wash. 12 (1880); Roberts v. Ward, 4 McLean, 666 (1849). ' Parker v. Stiles, 6 McLean, 62 (1349). B Hazard v. Eobinson, 3 Mas. 275 (1823), Story, J. An adverse right of easement cannot grow out of a mere permissive enjoyment. The distinction is be- tween a permissive or tolerated user, and a user claimed as a matter of right. Where, however, one has used a right of way for twenty years unexplained it is but fair to presume that the user is under a claim of right, unless it appears to have been by permission. In other words, the use of a way over the lands of another whenever one sees fit, and without asking leave, is an " adverse " use, and the burden is upon the owner of the land to show that the use was by license or contract inconsistent with a claim of right. ' An adverse use is such a use of property as the owner himself would make, asking no permission, and, disregarding all other claims so^far as they conflict with this use. Continued for twenty years, such use is equivalent to a grant.'' When an easenient has once been acquired, mere . non-user will not defeat the right: there must be an adverse use by the servient estate for a period suffl- cient to create a prescriptive right.' See Dedication, 1 ; Easement. Usual. According to general practice; conforming to common usage. "Usual and customary," referring to a usage, im- port something more than casual or exceptional. — a fixed and established usage which has become general in the particular trade.^ " Usual stopping place," in a statute respecting the expulsion of a passenger from a railway train, means a regular station. A water-tank is not such place, although passengers get off there while trains are stopping.* See Business; Dispatch; Negotiation. 3. " Where a man has anything to the use of another upon confidence that the other shall take the profits : he who has the profits has an use." " Cestui, or cestuy, que use. He for ■ whose benefit a use is created. Under the Statute of Uses, the legal owner of the es- tate, as opposed to the nominal grantee or holder. The forms of the plural, found in standard law works, are; cestuis que use, cestuis que uses, and ces- tui que uses. The first, like cestuis que trust, seems to be the preferred spelling. See further Cestui. Usee. Chancery gave the beneficial enjoyment to the person intended to be benefited, calling the first "usee "the legal-estate man, or trustee merely; the proper beneficiary being the second or last "usee," the cestui que trust, and true owner in equity.' 1 Cox V. Forrest, 60 Pa. 79-80 (1882). 2 Blanchard v. Moulton, 63 Me. 436 (1873), Appleton, Chief Justice. ' Curran v. Louisville, 83 Ky. 632 (1886), cases. 4 [Carter v. Philadelphia Coal Co., 77 Pa. 290 (1875). ' Chicago, &c. E. Co.,d. Flagg, 43 111. 367 (1867). « Burgess v. Wheate, 1 W. Bl. 180 (1759), Henley, L. K., quoting Finch. ' [Brown's Law Diet., tit. Uses. USE 1072 USE A use is where the legal estate of lands is in A, in trust that B shall take the profits and that A will make and execute estates according to the direction of,B. . . Before the Statute of Uses, a use was a mere confi- dence in a friend, to whom the estate was conveyed by the owner without considera- tion, to dispose of it upon trusts designated at the time, or to be afterward appointed by the real owner. The feoflfee or trustee, to all intents and purposes, was the real owner of the estate at law, and the cestui que use had only a confidence or trust, for which he had no remedy at common law.l A " use " regards principally the beneficial interest; a "trust," the nominal ownership. A use is an estate vested since the Statute of Uses, and by virtue thereof. A trust is the relation between the holder of the legal es- tate, and the owner of the equitable estate — the beneficiary. Trusts are now what uses were before the Statute.^ Uses and trusts, in their original, are of a nature very similar, or exactly the same. They answer to the fidei-commissa of the Homan law, which were tnjsts ii^troduced by testators to evade the law which dis- abled certain persons, as, exiles and strangers, from being legatees or heirs. The property was given to a person in confidence that he would convey it or dispose of the profits according to the pleasure of anothter, the real object of the bounty. But every such gift was also a jus precarium^ tt right with a remedy in en- treaty or request, not enf orcible in law, but depending solely upon the honor of the trustee. Augustus, hav- ing been frequently solicited in favor of persons toward whom trustees had broken faith, directed the praetor to afford a remedy in such cases. These fidu- ciary interests then increased so fast that special equity jurisdiction was created for them through the prsetor fidei commissarius, the " chancellor for uses." ^ In English law, a use may be' classed as a jus fidu- ciarum of the Koman law, that is, as a right in trust, with a remedy in conscience; a confidence reposed in another, tenant of land, tbat' he would dispose of the laud according to the intentions of him to whose use it was granted, and suffer him to take the profits.'* About 1375 these uses were transplanted into Eng- land by foreign ecclesiastics, to evade the statutes of mortmain (g. v.) by obtaining grants of lands to third persons to the use of religious houses. The clerical chancellors of that day held that these grants were ' i Kent, 289: Gilbert, Uses, 1. ■> Williams, E. P. 165; 4 Kent, 303; Sand. Uses, 266. '2 Bl. Com. 327-28; 4 Kent, 200-91; 2 Story, Eq. §§ 966-66; 1 Pomeroy, Eq. § 151; 8 id. § 977; Hadley, Eom. Law, 323. »2B1. Com. 338. fidei cofnmiasa, and binding in conscience. The eva- sion was prevented by 15 Rich. 11 '1892), o. 5.' The idea continued to be applied to a number of civil purposes; it removed restraints upon alienations by will, and permitted the owner of lands in his life- time to make such designations of their profits as pru- dence, justice, or family convenience might require. . . At length, through the desire to provide for children by will, and to secure estates from forfeiture in times of civil commotion When parties alternately attainted each other, uses gi'ew almost universal, and the courts of equity reduced them to a system.* About 1635 the greater part of the land of England was conveyed to uses: the property or the possession of the soil being vested in each case in one man, and the use, or the profits, in another, whose directions regarding the disposition thereof the former was in conscience bound to follow, and he could be compelled so to do by a court of equity.^ In 1536 the Statute of Uses (27 Hen. VIII, c. 10), the statute for transferring uses into possession, was passed, enacting that " when any person shall be seized of lands, tenements, or other hereditaments to the use, confidence, or trust of any other person or body politic, the person or corporation entitled to the use in fee-simple, fee-tail, for life, for years, or other- wise^ shall thenceforth stand and be seized or possessed of the lands, etc., of and in the like estates as they have in the use, trust, or confidence ; and the estate of the person so seized to uses shall be deemed to be in him or them that have the use, in such quality, manner, form and condition as they had be- fore in the use." The statute "executes the use," that is, it conveys the possession to the use, and transfers the use into possession; thereby making the cestui que use complete owner of the lands' and tenements, as well at law as in equity. The statute did not abolish conveyance to uses: it only annihilated the intervening estate of the feoffee, and turned the interest of the cestui que use into a legal, instead of an equitable, ownership. Thereupon the courts of common law began to take cognizance of uses. As the use and the land were now convertible terms, they became liable to dower, curtesy, and es- cheat; but they were no longer devisable. It was adjudged that if the use cannot take effect the instant the conveyance is made, the operation of the statute may wait till the use shall arise upon a contingency, to happen within a i-easonable period. Which doctrine, when devises were again introduced, as > a Bl. Com. 328; 4 Kent, 290; 2 Story, Eq. § 969. 2 3 Bl. Com. 329; 3 Story, Eq. § 969. S3B1. Com. 137. USE 1073 USE equivalent to declarations to uses, was also adopted in favor of "executory devises," which are contingent or springing uses, except that for such uses there must be a person seized to the uses when the contin- gency happens, else they can never be exe- cuted by the statute; and, therefore, if the estate of the feoffee be destroyed, before the contingency arises, the use is destroyed: whereas by an executory devise the freehold itself is transferred to the future devisee, i " Springing uses " are limited to arise on a future event, where no preeediug estate is limited, and they do not take effect in derogation of any preceding in- terest. By means of powers, a use, with its estate, may spring up at the will of any given person. But future or contingent uses are limited to take effect as remainders,'' g. v. See Scintilla, Juris. Shifting or secondary use. A use which, though executed, may change from one person to another by circumstances ex post facto; as, if a man makes a grant to his intended wife and her eldest son for their lives, at marriage the wife takes the whole use in severalty, and upon the birth of a son the use is executed in them jointly.^ "Shifting" or "secondary" uses take effect in derogation of sqme other estate, and are limited by the deed creating them or are authorized to be created by a person named in it. They ai-e common in all settlements. In marriage settlements the first use is always to the owner In fee till the marriage, and then to other uses. The fee thus remains with the owner untU the marriage, when it "shifts" as uses arise. But it will be so confined as not to lead to a perpe- tuity,* g. V. Eesulting use. Whenever the use lim- ited by the deed expires, or cannot vest, but returns back to him who raised it, after such expiration, or during such impossibility. Thus, if a man makes a grant to the use of his intended wife for life, with remainder to the use of her first-bom son : till he marries, the use " results back " to the grantor him- self ; after marriage, it is executed in the wife for life; and if she dies without issue, the whole goes back to him in fee.5 H the use limited by deed expired, or could i)Ot vest, or was not to vest except upon a contingency, the use " resulted back " to the grantor. The rule is the same where no uses are declared by the con- veyance. So much of the use as the owner does not dispose of remains in him. If he conveys without any declaration of uses, or to such uses as he shall there- after appoint, or to the use of a third person on the occurrence of a specified event, in all such cases there is a use resulting back.' By the equitable decisions in the courts of law, the power of the court of chancery over landed prop- erty was greatly curtailed; but one or two technical scruples restored it with tenfold increase. It was held (1) that " no use could be limited on a use; " that when a man bargains and sells his land for money, which raises a use, by implication, in the bargainee, the limitation of a further use to another person is repug- nant, and therefore void; as, a grfint to A and his heirs, to the use of B and his heirs, in trust for C and his heirs.^ A use limited upon a use is not affected by the stat- ute, which executes the first use only. The second use may be valid as a trust. In the case of a deed of bargain and sale the whole force of the statute is ex- hausted in transferring the legal title in fee-simple to the bargainee.^ It was held (2) that " seized to the use," in the stat- ute, did not extend to a term of years or other chattel interest, whereof the termor is possessed. As to the distinctions above noted it may be observed that, in the first case, it was evident that the parties did not intend that B should have a beneficial Interest ; and, in the second case, that the cestui que use of the term was expressly driven into chancery for a remedy. That court determined that though these interests were not " uses " which the statute could execute, they still were "trusts "in equity, which in conscience ought to be performed. Thus the doctrine of uses was revived under the name of "trusts; " and thus, by the strict construction of the courts of law, the Statute of Uses has had little other effect than to make a slight altera- tion in the formal words of a conveyance.' The statute imported into the rules of law some of the then existing doctrines of the courts of equity, and added " to the use " to e-ery conveyance. The intent of the statute was to abolish chancery jurisdiction over landed estates, by giving actual possession at law to every person beneficially entitled in equity. The court of chancery, by the foregoing rulings, defeated this intent' The Statute of I^auds (.q. v.) having required that every declaration, assignment, or grant of any trust in lands or hereditaments, except such as arise from im- plication, shall be in writing signed by the party, or by his written will, the courts now consider a trust estate, expressed or implied, as equivalent to the legal ownership, governed by the same rules of property, and liable in equity as the other is in law. In flue, the courts, assisted by statutes, now make trusts to an- 1 [3 Bl. Com. 338-34; 4 id. 430; 4 Kent, 394-95; 2 Pom- eroy, Eq. §§ 983-86. 2 4 Kent, 297-98. ' [2 Bl. Com. S34^SS. * [4 Kent. 297. « [3 Bl. Com. 3-35. (68) > 4 Kent, 299; 2 Pomeroy, Eq. § 981. 2 2 Bl. Com. 335-36. I Croxall V. Shererd, B Wall. 382 (1866), cases. » 2 Bl. Com. 335-36. 'Hopkins u. Hopkms, 1 Atk. »591 (1V38); 1 Sand. Uses, 265; Beckwith u Rector of St. Phillip's Parish, 69 Ga. 5T4, 572 (1882). USEFUL 1074 USURY Bwer in general all the beneficial ends of uses, with- out their inconvenience or frauds. The trust will descend, may be aliened, is liable to debts, executions, forfeitures, leases, incumbrances, curtesy, but not to dower, nor to escheat.^ Covenant to stand seized to uses. A species of conveyance by which a man, seized of lands, in consideration of blood or marriage, covenants that he wiU stand seized of the land to the use of his wife, child, or kinstnan, for life, in tail, or in fee. Here the statute executes at once the estate; for the party intended to be benefited, having thus ac- quired the use, is thereby put at once into corporal possession. 2 The statute also introduced the species of convey- ance known as bargain and safe; a liind of real con- tract, whereby the bargainor, for a pecuniary consid- eration, contracts to convey land to the bargainee; and becomes, by such bargain, a trustee for, or seized to the use of, the bargainee: and then the statute completes the purchase. The bargain vests the use, and the statute the possession.^ The English doctrines of uses and trusts, under 27 Hen. VIII, and the conveyances founded thereon, have been generally introduced into the Jurisprudence of thiscountry.3 Charitable use. Such gift, conducive to the welfare of the public, as a, court of equity will take cognizance of; a charity, q. V. Executed use. The first use upon which the Statute of Uses operates, by joining the possession and the use, as seen above. Ex- ecutory use. A springing use which con- fers a legal title analogous to an executory devise. Future use. A general name for any shifting or secondary, springing, contingent, or resulting use.'' Pious use. A gift to a religious house; a devise, bequest, or other donation to a relig- ious organization. Superstitious use. Refers to old Eng- lish legislation which restricted gifts in aid of religious doctrines deemed erroneous and pernicious, as, the tenets of dissenters, Roman Catholics, and Jews. See generally Charity, 3; Raise; Tkust, 1. USEFUL; USER; USUAL. See Use, 3, p. 1071. USUFRUCT. See Usus, Fructus. USURIOUS. See Usukt. 1 2 Bl. Com. 337. 2 2 Bl. Com. 338. = 4 Kent, 229. See generally 2 Washb. K. P. 81-166. * [4 Kent, 296. USURPER.i One who intrudes himself into an ofiice which is vacant, and ousts the incumbent without any title of color what- ever. 2 His acts are void in every respect. ^ Won usurpavit. L. He has not usurped: he is not exercising a franchise without authority. A plea to a quo warranto^ that the defendant has a right to exercise the franchise, accompanied by a negation of the allegations of the writ, is not a plea of non usurpavit nor a disclaimer, but is a valid plea in such case. 3 See Officer, De facto. USURY.4 Originally, a premium or re- ward for the use of money, a commodity or other thing.s Taking more than the lawful rate of inter- est for the loan or forbearance of money. 6 The taking of more than legal interest for the forbearance of a debt or sum of money due.7 Lending money on a contract to receive again the principal sum and an increase by way of compensa- tion for the use is called lending on " interest " by those who think it lawful, and '* usury " by those who do not think so. . . The Mosaical precept was polit- ical, not moral: while it prohibited the Jews from taking usury from their brethren, it expressly per- mitted them to take it from strangers. This proves that taking a moderate reward for the use is not ma- lum in se. To demand an exorbitant price for the loan of a horse, or a loan of a sum of money, is equally contrary to conscience; but a reasonable equivalent for the inconvenience the owner may feel by the want of the thing, and for the hazard of losing it entirely, is ijot more immoral in one case than in the other. . . To a moderate profit we give the name of " in- terest," and to an exorbitant profit the odious name of " usury." ^ XTsurious. Pertaining to, or of the nat- ure of, usury : as, usurious interest, a usuri- ous contract. Whence usuriousness. Tliere must be an intention knowingly to contract for or to take usurious interest. . Where a con- tract imports usury upon its face, as, b.y an express reservation of more than legal interest, inquiry is at ^ L. usu-rapere, to seize to one's own use. 2 McCraw v. WUliams, 33 Gratt. 613-14 (1880), cases. Christian, J. See also Hooper v. Goodwin, 48 Me. 80 (1861); 14 La. An. 607; 21 Wend. 370. s Commonwealth v. Cross Cut E. Co., 63 Pa. 62, 70 (1866). * F. usxtre: L. usura, use, interest. » [Henry v. Bank; of Salina, 5 Hill, 528 (1843). « Turner v. Turner, 80 Va. 381 (1885). ' Hogg V. EufEner, 1 Black, 118 (1861), Grier, J. See also 11 Conn. 487; 11 Bush, 180; 3 Johns. Cas. 206; 41 Barb. 359; 32 id. 657; 6 Ohio St. 536; 17 Wis. 386. B2B1. Com. 456-66. USURY 1075 usus an end. But where the contract on its face is for legal interest only, proof is necessary that there was some corrupt agreement to cover up usury.* "Where the promise to pay a sum above legal in- terest depends upon a contingency, the loan is not usurious.^ Sale at a discount greater than legal interest, of a note made and indorsed in blank for the purpose of raising money by a broker, to a purchaser ignorant of the pui'pose, is not usury. ^ Where the promisor in a usurious contract makes it the consideration of a new contract with a person not a party to the original contract, or to the usury paid or received upon it, and the new contract is not a contrivance to evade the statutes against usury, the latter contract is not usurious.* But payment of illegal interest, after the maturity of a note, for forbearance, is usury.* In a usurious transaction, the borrower acts some- what under duress ; he is not wholly a free agent. The maxim in pari delicto does not apply.* When an agent who is authorized to lend nloney for lawful interest exacts for his own benefit more than the lawful rate, without the knowledge of his princi- pal, the loan is not thereby rendered usurious.* But authority to make a usurious loan may be in- ferred from a general agency, pertaining to an exten- sive business.' A national bank may take interest at the rate al- lowed by the laws of the State, territory, or district where the bank is located ; and if no rate is fixed, then seven per centum, and it may take it in advance. ^ Taking a greater rate of interest than that allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the evidence of debt carries with it, or which has been agreed to be paid thereon. The person by whom the greater rate has been paid, or his legal representative, may recover back, in an action of debt, twice the amount of interest paid, provided action is commenced within two years from the time the usurious transac- tion occurred." The suit may be had in any circuit, district, or Ter- 1 United States Bank V. Waggener, 9 Pet. 309 (1835), cases. Story, J.; Call v. Palmer, 116 U. S. 101 (1886), cases. ' Spain V. Hamilton, 1 WaU. 625-26 (1863). 'Mosley v. Brown, 76 Va. 419 (1883); Siewert v. Hamel, 91 N. Y. 201 (1883). < Call V. Palmer, 116 U. S. 103 (1885), cases; Palmer v. Call, 2 4l<;Crary, 528 (1881), cases. * Philanthropic Building Association v. McKnight, 35 Pa. 472 (1860X cases; Mosley v. Brown, 76 Va. 425-26 (1888). « Call V. Palmer, 116 U. S. 102 (1835), cases; Palmeri). Call, 2 McCrary, 525 (1881), cases; Philips v. Maokellar, 93 N. T. 34 (1883), cases; Anonymous, 40 N. J. E. 507-10 (1885), cases. ' Sherwood v. Eoundtree, 33 F. E. 113 (1887). « K. S. S 5197: Act 3 June, 1864, c. 106, s. 30. "R. S. § 5198: Act 3 June, 1864, c. 106, s. 30. See Farmers', &c. Nat. Bank v. Bearing, 91 U. S. 29, 32 (1875); Stephens v. Monongahela Bank, 111 id. 197 (1884), cases. ritorial court of the United States held within the dis- trict in which such association is located, having juris- diction in similar cases,^ or in a State court.^ A national bank may take the rate of interest al- lowed to natural persons generally, and a higher rate, if State banks of issue are authorized to take it.^ Usurious interest paid a national bank on renewing a series of notes cannot, in an action by the bank on the last of the renewals, be applied in satisfaction of the principal of the debt.* In most of the States it is provided that, as a pen- alty, the person who receives more than the legal rate of interest shall forfeit a sum equal to all interest so taken, and that this sum may be withheld from the principal at the time of payment, when that is due as a loan, or be recoverable by an action within a specified period afterpayment.* In England, all restrictions upon rates of interest were abolished by 17 and 18 Vict. (1854), c. 90, See Bonus; Inteeest, 2(3); Uses, Utile, etc. ; Void. USUS. L. A using; use, application, employment; service, benefit, utility; prac- tice, usage, custom. From utere, uti, to use, apply. Aneipitis usus. Of a doublt use; ]iav- ing two or more uses. As it is impossible to determine the final use of an article aneipitis usus, hi considering what articles in course of transportation to an enemy's country are contraband of war, it is not an injurious rule to deduce the final use from the immediate destination.* In copyright law, refers to the final end or object, as of a design or illustration addressed to the taste, of which the form is the essence, and the production of pleasure the object. But the teachings of science and the rules and methods of useful arts have theu- final end in application and use — what the public derive from the publication of a book which teaches them. As taught in any Uterary composition, their essence consists only in their statement, which alone is secured by a copyright.' Malus usus abolendus est. A bad practice is to be abandoned. A usage which is unreasonable, vicious or pernicious, must be abolished. An unsafe way of doing a thing should be discontinued. If a custom is not a good custom, it ought no longer to he used. Malus usus, etc., is an established maxim of the law.' > E. S. § 6198: Act 18 Feb. 1875, c. 80. ' Lebanon N'at. Bank v. Karmany, 98 Pa. 65 (1881). »E. S. § 5197: Act 3 June, 1864, c. 106, s. 30. See Tif- fany V. Mat. Bank of Missouri, 18 Wall. 409 (1873). ' Driesback v. Second Nat. Bank of Wilkes Barre, 104 U. S. 52 (1881); Bamet v. Second Nat. Bank of Cin- cinnati, 98 id. 655 (1878); Lebanon Nat. Bank v. Kar- many, 98 Pa. 66 (1881); Peterborough Nat. Bank v. Childs, 133 Mass. 250-51 (1882), cases. * See Harris V. Bressler, 119 111. 467 (1887). * 1 Kent, 140. ' Baker v. Selden, 101 U. S. 103-4 (1879). * 1 Bl. Com. 76. usus 1076 USUS The commercial usage, that the name of the trans- feree need not be inserted in a power of attorney to transfer stock, is vicious.^ A custom among stockbrolcers to appropriate money belonging to the principal to the payment of the bro- ker's indebtedness is too iniquitous ever to obtain the sanction of law. 2 " The practice of delivei'ing a note or bond upon which judgment is entered back to the plaintiff is bad, and malus usus, etc. It should be left on file.s The maxim applies to the unauthorized act of a governoifaxit officer in accepting bills of exchange.* Optimus interpres rerum usus. The best interpreter of things is usage. The practice which follows upon the making of a statute or a compact shows the meaning attached among those by whom or for whom the thing was done. See Constitution, p. S40; Custom; Expositio, Con- temporanea; Statute, pp. 970-71. Sic utere tuo ut alienum non leedas. So use your own that another you may not injure. You may use what belongs to your- self as you see fit, except to harm another person. Enjoy your own private rights as you please, but take care not to molest others, in the lawful exercise of their rights, by your affirmative action. The maxim is not applicable to a mere omission to act, but rather to an affirmative act or course of conduct in invasion of an- other's rights. Hence, in the absence of a covenant to repair the upper stories of a building, a lessor will not be liable for damage from rain, let in by a roof which has gradually become defective, to merchandise owned by the lessee of a lower story. ^ Grants of privileges to corporate bodies confer no license to use them in disregard of the private rights of other persons. The great principle of the common law, which is equally the teaching of Christian moral- ity, so to use one's property as not to injure others, forbids other application or use of the rights and powers conferred.' The maxim expresses the only restriction which the law places upon ownership in property, or the exer- cise of any other private or publfc right. Because of the principle it was formerly a question whether prop- erty could be taken from an inebriate or spendthrift and given in trust to a committee.'^ The principle prohibits the creation or continuance > Denny v. Lyon, 38 Pa. 101 (1860). a Evans v. Wain, 71 Pa. 75 C1872). "Fraley's Appeal, 76 Pa. 43 (1874); 77 id. 378. * The Floyd Acceptances, 7 Wall. 677 (1868). » Krueger v. Ferrant, 29 Minn, 388 (1888), cases. 'Baltimore & Potomac E. Co. v. Fifth Baptist Church, 108 U. S. 331 (1883), Field, J. ' 1 Bl'. Com. 306. of a nuisance. A lawful trade may be so offensive that it should be carried on only in an oUt-of-the-way place.' A State may require each of its citizens to so con- duct himself, and to so use his own property, as not unnecessarily to injure another. This is the very es- sence of government, and the source of pohce powers. The maxim, sic utere, etc., furnishes the rule by which every member of society ppssesses and enjoys his property; and all legislation essential to secure this common and equal enjoyment is a legitimate exer- cise of State authority.' See Police, 3. One riparian owner may not injure the concomitant right of another owner.'' A surface-owner has a right of action against the mineral-owner for removing supports necessary for holding up the surface.* Every lessee impliedly agrees to so use the prop- erty as not unnecessarily to injure it; to so use it as to avoid the necessity for repairs, as tar as possible. The tenant, though the United States government, must exercise reasonable care to prevent damage to the in- heritance.' See Damnum, Absque injuria. Usucaptio. A taking by using. Acquisi- tion from having the possession and use of an object for a legal period ; ownership from adverse possession ; prescription. ^ Usus fructus. Use of the fruit : enjoy- ment of the income or profit of property; usufruct. The usus fructus of the civil law was the temporary right of using a thing, without having the ultimate property, or full domin- ion of the substance.^ Whence "usufruct:" the right to receive and use the profits of property belonging to another; and " usufriiotuary : " he who has a usufruct right, or right of enjoying a thing in which he has no property. ** 1 3 Bl. Com. ai7. 2 Munn 0. Illinois, 91 U. S. 124-25, 145 (1876), cases, Waite, C. J. See also Bichland County v. Eichland Center, 59 Wis. 596 (1884). » Holyoke Water-Power Co. v. Lyman, 15 Wall. 506 (1878). ^ « Jones V. Wagner, 66 Pa. 435 (1870). 'United States v. Bostwick, 94 U. S. 65-66 (1876), See generally McCutchen v. Blanton, 59 Miss. 119-22 (1881), cases; Falloon v. Schilling, 29 Kan. 295 (1883); Fletcher v. By lands, L. E., 1 Exoh. •265, 379-80 (1866); 31 Cent. Law. J. 205-10 (1885), cases; 30 F. E. 792; 8 Gray, 66, 434; 14 Allen, 294; 101 Mass. 352; 106 id. 199; 107 id. 676; 112 id. 58; 97 N. C. 479; 44 Ohio St. 883; 113 Pa. 143. ' See Mains, Anc. Law, 875; Hadley, Eom. Law, 173. ' 3 Bl. Com. 337. scartwright v. Cartwright, 18 Tex. 628 (1857); iO id. 700. usus 1077 UTTER Only a usufructuary property may be had in light, air, and water. These belong to the first occupant while he retains possession of them.^ In the Boman law, besides praedial servitudes, there were also personal servitudes, in another's prop- erty. Of the latter the most important was the usu- fructus, the right to use and enjoy some property belonging to another, without suffering deterioration. Using another's money on a loan was gtiasi-usuf ruct. The right might be for a term of years in land ; was transferable for the life of the original usufructuary; , might cease by non-user, and always ceased upon transfer back to the owner of the property. This servitude was commonly established by will.*-' Usus norma loquendi. Usage is the rule for speaking. Usage regulates speech. Usage interprets language, spoken or written. ■\\'ords are generally to be understood in their usual, most known signification; not so much regarding the propriety of grammar as general and popular iLse.^ Usus . . est jus et norma loquendi.^ "Utile per inutile non vitiatur. The useful by the useless is not destroyed. What is valid is not impaired by what is invalid ; the good is not marred by the bad ; the law- ful is not vitiated by the unlawful — provided they are capable of separation. If parts of a work, unlawfully copied from another, are inseparable, the entire work will be suppressed.^ Where lawful services are blended with such as are forbidden, the whole being a unit and indivisible, the bad destroys the good.' When an indictment contains both good and bad counts, a verdict of guilty upon the whole indictment will be sustained.' A jury may separate articles proper as personal baggage from those which are improper.* The invalid parts of a contract may be disc'arded, and the valid parts enforced, when the parts arb sev- erable and there is no imputation of malum in se." When a bond contains separable legal and illegal conditions, the legal conditions may be enforced.'" A contract is good for lawful interest, and voidable as to an excess, unless otherwise provided by law." '1 Bl. Com. 14, 18, 4; 2 id. 18, 105. 'Hadley, Eom. Law, 191-92, ISo. ' 1 Bl. Com. 59; 93 U. S. 455; 110 id. 634; 6 Conn. 91, 303; 6 Allen, 386; 23 Pa. 84. < Horace, Ars Poetica, 71-72. 6 Lawrence v. Dana, 4 Cliff. 85-86 0869), cases; Cal- laghan ti. Myers, 128 U. S. 617 (1888). •Trist V. Child, 21 Wall. 452 (1874). ' United States v. P^eese, 92 U. S. 256 (1875). SN. Y. Central, &c. E. Co. v. Fralofl, 100 U. S. 31 (1879). •Gelpckef. City of Dubuque, 1 Wall. 228 (1863); 10 Pet. 360. ■"United States v. Hodson, 10 Wall. 408 (1870); 10 Ohio, 51. Ji Farmers', &o. Bank u Dearing, 91 U. S. 35 (1875), cases; Ewell v. Daggs, 108 id. 148-51 (1883), cases. A will may be void as to a part of its dispositions and valid as to the rest.' So as to provisions in a trust. ^ A deed void as a lease may be good as an agreement to execute a lease. ^ The valid in a statute, if so separable from the in- valid that each can stand alone, may be enforced.'' But if unconstitutional (g. v.) provisions are so con- nected with the general scope of the statute that, being stricken out, effect cannot be given to the legis- lative intent, the other provisions fall with them.'' UT. L. That ; in order that ; as. Ut res magis. See Res, Ut res, etc. Ut supra. As above ; as see foregoing, UTAH. See Bigamy; Polygamy; Re- ligion; Territory, 2. UTILE. See this page, ante. UTILITY. Usefulness; applicabUity to a beneficial use. a valid patent is characterized by both utility and invention. "While less evidence, where the utility is great, may establish invention, yet great utility may result f I'om changes in devices which embrace no in- vention." In an action for infringement the defense of lack of utiliry will not be sustained unless there is the clearest evidence that the invention is utterly frivolous and worthless. The tact that the defendant used the in- vention is an argument against such defense.^ See further Invention; Novelty; Patent, 3; Use, 1, Useful. UTLAGATUM. See Outlawry. UTTEIl.8 1^ adj. Outer: as, utter bar, and barrister, q. v. Outside ; extreme, complete : as, utter loss, q. V. 3, V. To put out, put forth ; to tender to another ; to offer to put into circulation ; to publish : as, to utter a libel, forged paper, counterfeit money. To " utter " a libel is to publish it.» To " utter " a thing is to offer it, whether the thing is taken or not.'" > Rudy V. Ulrich, 09 Pa. 183 (1871); Cuthbertson's Appeal, 97 id. 173 (1881). ' Bristol V. Bristol, 53 Conn. 257 (1885). = Williams, Real Prop. 374. < United States v. Reese, 92 U. S. 221 (1875); Trade- mark Cases, 100 id. 98 (1879); Packet Company v. Keor-i kuk, 95 id. 89(1877); Penniman's Case, 103 id. 716 (1880). .{. 'Allen u. Louisiana, 103 U. S. 83-84 (1880); Warren ti. Mayor of Charleston, 2 Gray, S9 (1864.) See also Jaehne v. New York, WS U. S. 189 (1888). •■ • « Sax V. Taylor Iron-Works, 30 F. E. 838 (18S7); Hol- lister V. Benedict Manuf. Co., 113 U. S. 59 (1885). ' Kearney v. Lehigh Valley E. Co., 32 F. R. 323 (1887). » A. S. uttor, ut, out, without. • Benedict v. Westover, 44 Wis. 404 (1878). '"People V. Caton, 85 Mich. 398 (1878), cases; 27 id. UXOR 1078 VACANCY ( " Uttering " a paper is declaring that it is good, with an intention or an offer to pass it. " Passing " a paper is putting it off in payment or exchange.^ ' To " utter and publish " forged paper means to de- clare or assert directly or indirectly, by words or ac- tions, that a note is good, as, in offering it in payment. But such paper is not " passed " until received by the person to whom it is offered.^ "Uttering and publishing " import a disposal or ne- gotiation of a forged instrument to another person.^ The party accused of uttering or passing counter- feit paper must be present when the act is done, privy to it, or aiding, consenting, or procuring it to be done. * An intent to defraud is a material element in the crime of uttering forged paper.' TJXOB.. L. A wife. Plural, uxores. Et uxor, usually abbreviated et ux., and ■wife ; as, in the case of a conveyance from A ■et ux. to B, or to B et ux. Jure uxoris. In right of the w^ife : said of a claim made or of an act done by a hus- tand in behalf of his wife. Opposed, jure mariti, in right of the husband. See Hus- band. Uxoreide. See Homicide. V. V. An abbreviation of vacation, verb, Victoria, volume; also, of the Latin words, versus, vice, vide and voce, qq. v. V. A. Vice-admiral. V. C. Vice-chancellor. V. C. C. Vice-chancellor's court. See Chancellor. V. E. Venditioni exponas. See Ven- DITIO; VACAKCY; VACANT; VACATE.s "To vacate" has acquired an active sense, through a long period of transition, by popu- lar usage and in consequence of its early adoption as a technical, legal term. " To leave empty; to cease from occupying; to annul ; to make void," express its meaning. 'United States v. Mitchell, Baldw. 367-68 (1831), cases, Baldwin, J. » Commonwealth •,. Searle, 2 Binn. *339 (1810), Tilg- ham, C. J. ; People v. Brigham, 2 Mich- 663 (1853); State V. Horner, 48 Mo. 522 (1871). = People V. Eathbum, 21 Wend. 527 fl839); Lindsey «. State, 38 Ohio St. 611 (1882). « United States v. Nelson, 1 Abb. U. S. 135-38 (1867); United States v. Carter, 2 Oranch, C. C. 244 (1821); Hex V. Jones, 38 E. C. L. 826 (1841); State v. Eedstrake,,39 N. J. L. 367-71 (1877), cases; 2 Bish. Cr. L. § 605. 'L. vacare, to be empty: to be void of, free from; to lack, want. But it does not follow that its derivatives have acquired exclusively equivalent mean- ings in popular, legislative, or legal usage. In Latin, the word defined the state and condition of some existing thing at a partic- ular point of time: it had no intransitive power; it meant "to be empty, void or va- cant ; to be void of, free from or without, to lack or want a thing." Vacant lands were lands that were "uninhabited or unculti- vated." Vacant possessions were such as were "free, unoccupied, ownerless." Many derivatives from the English verb retain the exact meaning of the original Latin word. "To be vacant," in its primary sense, is " to be deprived of contents ; to be empty, or not filled." . , Usage has warranted the em- ployment of these words in an enlarged and broader sense ; but the primary and strictly grammatical meaning which they still retain is identical with their exclusive original signification. The result is that "vacancy" aptly describes the condition of an ofiioe when it is first created and has been filed by no incumbent. 1 Vacancy is the state of being empty or un- filled. Vacant lands are unoccupied lands. A vacant house is an untenanted house. An old oflSoe is vacated by death, resignation, or removal. An office newly created is ipso facto vacant at creation.^ Vacancy is properly applicable to the ofilce, rather than to the term of office or service;' but the word may apply to the term to which the event causing the vacancy relates.* > A vacancy de facto exists where there is an ab- sence from sickness or other cause. A vacancy de j«re imports an entire legal emptiness.* An existing office without an incumbent is vacant, whether the office is new or old.* An office may not be regarded as vacant when an' incumbent lawfully holds over until a successor is duly qualified.'^ The reference may be to a case where there has been a failure to elect. ^ 1 Walsh V. Commonwealth, 89 Pa. 425 (1879), Wood- ward, J. ' State V. Askew, 48 Ark. 89 (1886), cases. = People V. Green, 2 Wend. 273 (1829). * (bounty of Scott v. Ring, 29 Minn. 404 (1888). » Woodworth v. Hall, 1 Woodb. & M.'a91-94 (1846). » Stocking V. State, 7 Ind. 329 (1855); Clarke v. Irwin, 6 Nev. 129-30 (1869), cases; State v. Jones, 3 Oreg. 637 (1869); State v. Boecker, 56 Mo. 21 (1874); ll3 Ind. 439. ' State ex rel Attorney-General v. Brewster, 44 Ohio St. 593 (1886); State v. Howe, 26 id. 696 (1874). 9 People V. Crissey, 91 N. Y. 634 (1883). VACATION 1079 VAGRANT In Virginia, the failure of any county, corporation, or district officer to qualify before the commencement of his term of ofQce creates a vacancy in the office. ^ As to a person suspended from office, the office be- comes as if it did not exist, and he may not be entitled to salary during the period of suspension, although the cause of suspension be afterward declared insuf- ficient.' ' ' The President shall have Power to fill up all Vacan- cies which may happen dm'ing the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session." This authorizes him to fill a vacancy happening during a session and which continues after adjournment.^ A vacant administration or trusteesliip is any such office unfilled or without an occupant or incumbent from any cause whatever. ■• A dwelling-house does not become vacant or unoc- cupied when the tenant leaves it for a few hours 5 only when there is a cessation to use it as a dwelling." Vacant lands are such as have not been appropri- ated by individuals.* Vacate, (l) To leave empty or unoccu- pied.'' (2) To declare void, deprive of force, annul : as, to vacate a judgment or proceeding for irregularity, surprise, or fraud. A writ of error does not vacate the judgment below ; that continues in force until reversed.^ See Set Aside. VACATION. The interval between two successive terms of a court. Dming this period orders signed by a judge are said to be issued " at chambers," g. u. In this country all courts have terms and vacations. The time of the commencement of every term is fixed by statute, and the end of it by the final adjournment of the court for that term." The English year was divided into four terms of different lengths, separated by the vacations — the seasons of the great festivals or feasts, or deemed necessary on account of the avocations of rural busi- ness. The legal definition of " vacation " is, the period of time between the end of one term- and the begin- ning of another; and this meaning will be given to the word in a statute, unless it appears that a more pop- ular sense was intended. The intervals between the actual sessions of court when conducting the business of a term cannot be called vacations.'" Under the earlier organization of courts in Eng- ' Vaughan v. Johnson, 77 Va. 300 (1883); Johnson v. Mann, ib. 271 (1883). ' SteubenvUle v. Gulp, 38 Ohio St. 18, 23 (1882). ' Be Farrow and Bigby, 4 Woods, 492-94 (1880), cases. Woods, Cir. J. Constitution, Art. II, sec. 2, cl. 3. * [Cline V. Greenwood, 10 Oreg. 238-39 (1882), cases. 'Laselle v. Hoboken Ins. Co., 43 N. J. L. 470 (1881); Sleeper v. N. H. Ins. Co., 66 N. H. 404 (1876). « Marshall v. Bompart, 18 Mo. 87 (1863). T See Walsh v. Commonwealth, ante. 8 Kansas Pacific E. Co. v. Twombly, 100 U. S. 81 (1879). e Bronson v. Schulten, 104 U. S. 415 (1881). i»Brayman v. Whitcomb, 134 Mass, 526 C1883), C. Allen, J. land, the terms, which began and ended on fixed days, aggregated ninety-one days. The vacations embraced all days not included in the terms. . . The word may embrace the period, after adjournment, in which a court does not sit and transact business, as, in a statute authorizing judgments by confession in vaca- tion; and not embrace all the time the court is not actually in session, or the time of adjournment from day to day. ' VACATUE. L. Let it be set aside. VADIUM. Law Lat. A pledge. Vadium mortuum. A dead pledge; mortgage. A security with the condition that if the money be not promptly repaid the debtor's estate will be forfeited.^ Vadium vivum. A living pledge. A security to be held by the creditor till he has received the amount of his debt out of the income of the property pledged.- See Pledge. VAGRANT.s One who wanders about, and has no certain calling ; an idle fellow ; * a vagabond ; a tramp, q. v. A person who roams about from place to place, begging, or living without labor or visible means of support.'' Any person going about from place to place begging, asking or subsisting upon charity, and for the purpose of acquiring money or a living, and who shall have no fixed place of residence or lawful occupation in the county or city in which he shall be arrested, shall be taken and deemed to be a tramp and guilty of a mis- demeanor.* Any act of begging or vagrancy is prima facie evi- dence.* Vagrancy is distinct from disorderly conduct and breach of the peace, and includes only such cases of vagabondage as are known to the common law.^ Such statutes, designed to suppress vagrancy, as are in derogation of the right of trial by jury, are to be strictly construed." See Conviction, Summary. A statute authorizing two overseers of the poor, by writing, under their hands, to commit vagrants and paupers to the work-house, is in violation of the Four- teenth Amendment." See Process, 1, Of law. ■ Conkling v. Eidgely, 112 111. 36, 40, 43 (1884), Shel- don, J. 2 2 Bl. Com. 157; 21 N. T. 344. * L. vagari, to wander. » [Jacob's Law Diet. » Penn. Act, 1879, No. 81. * See Del. Laws, 1879, No. 223; North Car. Laws, 1879, No. 355; Ohio Act, 1879, No. 191; Mary. Laws, 1880, No. 43; Mass. Laws, 1880, No. 231, o. 257, §§ 8-3; 1 N. T. Laws, 1880, No. 296. ' Re Way, 41 Mich. 301 (1879), Campbell, C. J. * Bullock V. Geomble, 46 111. 222 (1867); People v. Turner, 55 id. 287 (1870); Wynehamer v. People, 13 JI. Y. 426 (1856); 41 Mich. 303, supra. 'Portland v. Bangor, 65 Me. 120 (1876). See also Prescott V. State, 19 Ohio St. 184 (1869); Johnson v, Waukesha County, 64 Wis. 288 (1886). VAIN THING 1080 VALUE Idleness in any person whatsoever is a higli offense against public economy. . . Idle persons or vaga- bonds, whom ancient statutes describe to be " such as wake on the night and sleep on the day, haunt cus- tomable taverns and ale-houses, and routs about, and no man wot whence they come nor whither they go," or such as are more particulai-Iy described by 17 Geo. II (1T44), c. 5, as idle and disorderly persons, rogues and vagabonds, and Incorrigible rogues, are all offend- ers against good order. • Statute 5 Geo. IV (1825), c. 83, revised and codified previous laws, and has been known as the EngUsh Va- grant's Act. Amendments were made by 1 and 2 Vict. (1837), c. 38. These acts form the basis of similar leg- islation in some of our States. By force of various statutes, rogues and vagabonds are: persons convicted a second time as idle and dis- orderly; fortune-tellers, and such as use subtle arts to deceive; persons wandering abroad, lodging in barns or out-houses, in the open air, or in any tent, cart, or wagon, not having any visible means of subsistence, and not giving good account of tliemselves; persons guilty of indecent exposures — by pictures, or of the person; persons exposing wounds, or making fraudu- lent pretenses, to obtain alms; persons deserting their families or children, leaving them chargeable to the parish; persons playing or betting in a place to which the public have access, with any instrument of gam- ing; persons armed or prepared to commit a felony: persons found on premises for an unlawful purpose ; reputed thieves, in a public place, intending to com- mit felony." VAIN THING. See LeX, Neminem. VALID. 3 Having force, of binding force ; legally sufficient or efficacious; authorized by law. Opposed, invalid: as, a valid or invalid — condition, consideration, defense, instrument, marriage, sale. Whence valid- ity, invalidity, invalidate. A sale of land may be regular in form and in the mode of its conduct, but it cannot be "valid," unless authorized by law.* "Validity " is legal sufficiency, in contradistinction to mere regularity. . . A valid judgment, decree, or sale is not void for any reason. A valid sale means one having the quality of legal sufficiency and com- plete obligation.' That what is invalid in an instrument will not de- stroy what is valid, see Utile, etc., p. 1077. See also Lawful; Void. VALUE.s 1. Applied without qualifica- tion to property of any description, means the price it will command in the market.'' Consists in the estimate, or the opinion of MBl. Com. 169. ' Wharton's Law Diet. ' Xj. validus, strong. » De TrevUle v. Smalls, 98 U. S. 632 (1878), Strong, J. ' Sharplpigh v. Surdam, 1 Flip. 487-89 (1876), Em- mons, Cir. J. • L. valere, to be worth. ' Fox 1!. Phelps, 17 Wend..399 (1837), Bronson, J. those influencing the market, attachable to certain intrinsic qualities belonging to an article. 1 In custom laws, " the true market value of mer- chandise in the principal markets of the country from whence exported at the date of exportation." " See Market Value; Valuation. Actilal value; cash value. Within the meaning of a policy of insurance upon a stock of clothing, " actua;I Cash value " is the sum of money the goods would have brought for cash, at the market price, at the time when and the place where they were de- stroyed.'' " Actual value," "cash value," "salable value," and like expressions, in enactments containing direc- tions to tax-assessing officers, mean the same thing, are designed to effect the same purpose — to assess all species of taxable property at the actual value.* Current value. The common market- able price of a thing without reference to the price the owner gave for it.5 True value. In duty laws the actual cost. This is the iDasis of appraisement.* Equitable value. Referring to a life in- surance policy, the difference between the cost of a new policy and the present value of the premiums yet to be paid on a forfeited policy when the forfeiture occurred. Where failure to pay pi-emiums is caused by a pub- lic war, the assured may recover the equitable value of . his policy, with interest from the close of the war.* Sefe Net Value. For value. For a valuable consideration, q. V. : as, a holder of paper for value, a trust for value. See Negotiable. Intrinsic value. The true, inherent, and essential value of a thing, not depending upon accid«n't, place, or person, but the same everywhere and to every one. A bank note has no such value.' Market or marketable value. The price established by public sales, or sales in the way of ordinary business-^ •Washington Ice Co. i;. Webster, 68 Me. 463 (1878), Appleton, C. J. 'B. S. § 2952: Act 8 March, 1861; United States v. Nash, 4 raifE. 112 (1669). " Mack V. Lancashire Ins. Co., 2 McCrary, 211 (1880), McCrary, Cir. J. ' Cummings v. Merchants' Nat. Bank of Toledo, 101 U. S. 162 (1879),, Miller, J. ; Burr. Tax. p. 227, s. 99, cases. 5 [Tappan v. United States, 2 Mas. 399-401 (1822), Story, J. » N. Y. Lite Ins. Co. v. Statham, 93 U. S. 84, 33-35 (1876). ' State Bank v. Ford, 5 Ired. L. 698 (1845), Ruffin, C. J. 8 [Murray v. Stanton, 99 Mass. 348 (1868), Wells, J. VALUE 1081 VALUE The market price ot an article furnishes the meas- ure of damages, at the time at which the article was deliverable under a contract. Then the "price" is the "value," the rate at which the thing is sold. To make a market there must be buying and selling, pur- chase and sale. The asking price is not necessarily the market price. If the price was not fixed by agree- ment, and ranged betweeif different rates, the jury may take the highest, lowest, or medium rate, accord- ing to the conduct of the defendant. ' As to what is the market price is sometimes a mat- ter of opiuion which may require, tor its formation, the consideration of a great variety of facts, as, prices- ciu-rent, sales, shipments, letters from dealers and manufacturers. ^ Appraisers of imports are to appraise according to the market value in the principal markets ' of the country from which the same was imported. = See Market, Price. Net value. The net value of a policy of life insurance represents, approximately, the amounts of the payments which have been made by the holder in excess of the yearly cost of insurance.* Compare Equitable Value. Par value. See Par, 2. Value received. An equivalent or a suflScient consideration has passed or exists. The rule is that in an action upon a non-negotiable instrument a consideration must be proved. But when the insti*ument on its face states the considera- tion, or purports to be given for "value received," a prima facie case of consideration is made out, as be- tween tfce original parties, and as against third per- sons. Indeed, those words, though usual, are not necessary in a negotiable instrument; the instrument of itself is evidence of a legal consideration for the ob- ligation it creates. If no such consideration existed it is incumbent on the defendant to establish that fact. Hence, the plaintiff need not aver, nor prove — until the presumption has been overcome by testimony — that the obligation was originally based upon a suffi- cient consideration of some kind.^ See Negotiable; Consideration, 2. In Missouri a statute provides that a promissory note shall not be a negotiable instrument unless it contains the words " value received," but the recital ' Blydenburgh v. Welsh, Baldw. 341^3 (1831), Hop- kinson, J. 2 Cbaffee v. United States, 18 Wall. 542 (18V3), cases. » United States v. Nash, 4 Cliff. 113 (1869;, cases; E. S. § 2953: Act 2 March, 1861. * Connecticut Ins. Co. v. Commoiiwealth, 133 Mass. 165 (1882), Morton, C. J. 'See Mandeville v. Welch, 5 Wheat. 282 (1820), Story, J.; Benjamin v. Tillman, 2 McLean, 213 (1840), cases; Gam well v. Mosley, 11 Gray, 173 (1858) ; Coursin v. Led- lie, 31 Pa. 508 (1868), cases; Averett v. Booker, 15 Gratt. 164 (1859), cases; Miller v. Cook, 23 N. Y. 496 (1861), cases; Osgood v. Bringolf , 32 Iowa, 370 (I87J) ; Frank v. Irgens, 27 Minn. 43 (1880); Kearney u Whitehead, 34 -La. An. .530 (1883); 1 Daniel, Neg. Inst. § 161, cases. is not essential to impart negotiability to a bill of ex- change. ' Valuable. (1) Of some value ; worthy of preservation: as, valuable papers. ^ (3) Bearing a value ; of equivalent worth : as, a valuable consideration, q. v. (3) That on which money is payable "irre- spective of contingency: as, a valuable se- curity. ^ Valuation. The act of estimating the worth, or of appraising the value, as, of an article of property ; also, the value placed upon the article. Over-valuation. An estimate higher than the real value ; excessive valuation. Of insured property, unless so excessive as to amount to proof of fraud, does not vitiate the con- tract, because an estimate is a matter of mere opin- ion.* The ordinary test of the value of property is the price it will command in the market if offered for sale. Individual men may honestly differ about the value of property, or as to what it will bring in the market, and such differences are often marked among those whose special business it is to buy and sell prop- ei'ty of all kinds. The duty of a person seeking in- surance, who is to give the " estimated value " of the property, is to deal fairly in estimating the market, value. "^ G. , wishing to borrow money of B., offered as secu- rity a mortgage upon land containing sandstone quar- ries, which had not been worked sufficiently to show their extent. He furnished, however, the certificat& of two ether persons, each setting forth that he had for many years resided near the quarries and was ac- quainted with them, and giving, in his best judgment, their value, which was one hundred and fifty per cent, more than the amount of the loan. B. took the mort- gage and lent the money, which was not paid. Upoa a foreclosure sale, the land brought less than one-sixth of the loan. B. thereupon sued G. and the other par- ties to recover damages for the loss sustained, and he charged that they had conspired to defraud him by a. false and fraudulent certificate. Held, that the action would not lie, defendants not being liable for an ex- pression of opinion, however fallacious, in regard to property the value of which depended upon contin- gencies that might never occur, or developments that might never be made. The court, arguendo, said: To justify any imputation of fraud in giving the certifi- cate, it was necessary to show that the parties signing ' Taylor v. Newman, 77 Mo. 263 (1883), cases. = [Hooper v. McQuary, 5 Coldw. 135 (1867). ' The Queen, v. Tatlock, 2 Q. B. D. 163 (1876), Cock- burn, C. J. 'Lynchburg Fii'e Ins. Co. v. West, 76 Va. 582 (1882) ^ Stm-m V. Atlantic Mut. Ins. Co., 63 N. Y, 83 (1875), cases; May, Ins. § 373; Wood, Ins. 427. ' First Nat. Bank ot Kansas City v. Hartford Fire Ins. Co., 95 U. S. 677-78 (1877), Harlan, J.; Franklin. Fire Ins. Co. v. Vaughan, 92 id. 518-19 (1875). VALUE 1082' VEHICLE it had knowledge, at the time, that the value of the property was materially less than their estimate. And from, the nature of the property, and its imperfectly developed condition, such knowledge was impossible. No one could know its actual value until further de- velopment was made. Until then, any estimate must have been entirely speculative and conjectural. It would depend as much, perhaps, upon the tempera- ment and expectations of the party making it as upon any knowledge of facte. The law does not hold one responsible for the extravagant notions he may en- tertain of the value of property, dependent upon its future successful exploitation, or the result of future enterprises ; nor for expressing them to one acquainted with its general character and condition. How could an over-estimate in such a case be shown? Other esti- mates would be equally conjectural. The law does not fasten responsibility upon one for expressions of opinion as to matters in their nature contingent and uncertain. Such opinions would probably be as vari- ant as the individuals who give them utterance. A statement of an opinion assigning a certain value to property like a mine or a quarry not yet opened is not to be pronounced fraudulent because the property upon subsequent development may prove to be worth- less; nor is it to be pronounced honest because the property may turn out of much higher value. . . Whenever property of any kind depends for its value upon contingencies which may never occur, or devel- opments which may never be made, opinion as to its value mustnecessarily be more or less of a speculative character: and no action will lie for its expression, however fallacious it may prove, or whatever the in- jury a reliance upon it may produce. The determina- tion of its truth or falsity, until the contingency occurs •or becomes impossible, would lead the courts into in- vestigations for which they have no fixed rules to guide their own judgments or to instruct juries. For opinions upon matters capable of accurate estimation by application of mathematical rules or scientific principles, such, for example, as the capacity of boil- «rs, or the strength of materials, the case may be dif- ferent. So, also, for opinions of parties possessing special learning or knowledge upon the subjects in re- spect to which their opinions are given, as of a me- ■chanic upon the working of a machine he has seen in use, or of a lawyer upon the title of property which he has examined. Opinions upon such matters are ■capable of approximating to the truth, and for a false statement of them, where depeption is designed, and injury has followed from reliance on them, an action may lie.' 1 Gordon v. Butler, 105 U. S. 553, 556-58 (1881), Field, J., citing Holbrook v. Connor, 60 Me. 578 (1872),— in which, to induce a sale, representations were made that un- tested land contained oil, a fact unknown except as inferred from the production of weUs on neighboring lands, and from a well upon the land itself; and in which it was held, also, that an action would not lie for a false statement as to the price the vendor had paid for the land. ib. 583, cases,— two judges, out of the seven, dissenting, ib. 585-91, cases. In Southern Development Co. u Silva, 125 U. S. 247, 252 (1888), the principle stated in the text was applied in a suit to re- Valued. With value agreed upon: as, a valued policy of insurance, g. v. See Appraise; Description, 4; Impair; Just, 2; Price. 2. Effect, import ; as, in a law respecting setting forth, in an indictment, the value of an instrument alleged to have been forged, uttered, etc.^ ■VARIANCE.2 Failure of proof to corre- spond with the allegation.3 A disagreement between the allegations and the proof in some matter which, in point of law, is essential to the charge or claim.'* To be objected to at the trial; cannot avail the de- fendant, as an error, in the higher court, nor on a motion for a new trial. It is material only when it misleads." Sometimes confounded with " departure " in plead- ing, as in Bouvier's Law Dictionary, all editions, and even in Gould's Pleading, 4 ed., at pp. 251-52, sees. 97- 100. See Departure, 3. See also At.t.kgation; Description, 4; Tidere, Videlicet. VARIETUR. See Ne, Varietur. ' VASTUS. See Devastavit; Waste. VAULT. See Burial, par. 4. VEG-ETABLES. See Perishable ; Sound, 1 (1). VEHICLE.e In the Revised Statutes, acts and resolutions of Congress, includes every description of carriage or other artifi- cial contrivance used, or capable of being used, as a means of transportation on land.^ A ferry-hoat is not a vehicle, within a statute pro- viding for a specific tax on "carriages and other vehicles used for passengers for hire." ^ But a street-sprinkler is a "public vehicle," within an ordinance imposing a license upon public vehicles using streets for trade or traffic* The phrase " or other wheeled vehicle of whatever description," used in a statute, following such speci- fied vehicles as " carriages, wagons, buggies, sleighs and sleds," was held to refer to vehicles of the same scind a contract for the purchase of a silver mine on the ground of fraud in representations as to the prob- able amount of mineral it would yield, and to recover the consideration paid. 1 Chidester v. State, 25 Ohio St. 438 (1874), Rex, J. 3 L. vaHiis, diverse, changing. Whence variant. a See Nash v. Towne, 5 Wall. 698 (1866). * House V. Metcalf, 27 Conn. ,638 (1858), Sanford, J.; 30 id. 57; 72111.239. 6 Roberts v. Graham,' 6 Wall. 581 (1867), cases; 13 Bradw. 43, 491. See Gould, PI., pp. 28, 62, 421. * L. vehere, to cariy, convey. ' R. S. § 4: Act 16 July, 1866, § 1. 6 Duckwall V. New Albany, 25 Ind. 286 (1865). * St. Louis V. Woodruff, 71 Mo. 9^ (1879). VEIN 1083 VENIEE general class as those particularly specified, and not to include street-cars.' See Bicycle; Conveyance, 1; BoAD, Law of; Team; Vessel; Wagon. VEIN. The terms "vein" and "lode," as used by miners, and in the Mining Acts of Congress of 1866 and 1873, apply to any zone or belt of mineralized rock lying within the boundaries clearly separating it from the neighboring rock. Included are all deposits of mineral matter found through a mineral- ized zone or belt coming from the same source, impressed with the same forms, and appearing to have been created by the same processes 2 A vein or lode is a body of mineral or mineral-producing rock within defined boundaries in the general mass of the mountain.' Those acts of Congress, not being framed in the interests of science, may not present scientific accu- racy in the use of terms. They were intended to pro- tect miners in the claims they locate and develop, and are to be so construed as to carry out this purpose. ^ The law assumes that all veins are more or less ver- tical, and requires that the location of a claim shall be .upon the top or apex of the particular vein. Having discovered a vein, and located the claim so that the top or apex is within his surface lines extended down vertically, the locator may follow the vein to any depth, as far as he can show that it is the same lode or vein. The " top " or " apex " is the end or edge or terminal point of the lode nearest the surface of the earth. If found at any depth, and the locator can de- fine on the surface the area which will inclose it, the lode may be held by his location. No location can bemade on the middle part of a lode, or otherwise than at the top or apex, which will entitle the locator to go beyond his lines. * When a mining claim crosses the course of the lode or vein instead of being " along the vein or lode," the end lines are those which measure the width of the claim as it crosses the lode; and the side lines those • Monongahela Bridge Co. v. Birmingham Ey. Co., 114 Pa. 481 (1886); Act 18 May, 1871. ' The Eurelja Case (Eureka Mining Co. v. Richmond Mining Co.), 4 Saw. 3)8, 311 (1877), Field, J. Approved, Iron Silver Mining Co. v. Cheesman, 116 U. S. 534 (1886), Miller, J. ; Stevens v. Williams, 1 McCrary, 487 (1879). See also Juniper Mining Co. v. Bodie Mining Co., 7 Saw. 107 (1881): s. o. 11 F. E. 666; 128 U. S. 679. " Iron Silver Mining Co. v. Cheesman, 2 McCrary, 195 (1881), Hallett, D. J. 4 Iron Mine •<.. Loella Mine, 2 McCrary, 121 (1880), Hallett, D. J.: s. o. 16 F. E. 829. See also Flagstaff SUver Mining Co. «. Tarbet, 98 U. S. 463 (1878); Iron Silver Mining Co. v. Cheesman, 116 id. 529, 534 (1886), Miller, J.; Same v. Elgin Mining Co., 118 id. 196 (1886); Patterson v. Hitchcoclt, 3 Col. 545 (1877); B. S. §§ 2322, 2318, et sea. which measure the extent of the claim on each side of the middle of the vein at the surface. . . When there are surface outcroppings from the same vein within the boundaries of two claims, the one first located carries the right to work the claim.' See further Mine. VELLE. See Volo. VEND.2 To transfer for an equivalent in money ; to dispose of by sale ; to sell. Applicable to merchandise or chattels. Vendible. Capable of being sold, salable; merchantable, marketable, qq. v. Vendor. The party by whom a sale is made. Vendee. He to whom a sale is made. Often confined to sales of realty. "Seller" and '* buyer " are more comprehensive, applying also to personalty. He is the vendor, rather than the grantor, who negotiates a sale of realty, and becomes the recipient of the consideration, though the title comes to the vendee from another source.'' A sale of personalty procured by fraud does not bind the vendor unless he afterward ratify the sale; and he may recover possession of the property or have damages for the conversion.* What acts upon the part of the vendee of a chattel amount to a fraud upon the vendor has not been imi- formly settled.* See Lien, Vendor's.^ Vendue. A public sale by outcry; an auction, q. v. See Conveyance, 2; Deolaeation, 1; Deed, 2; Pur- chase, 2, 3; Eevendioation; Sale; VianjiTio. VENDITIO. L. A sale. Venditioni exponas. That you expose for sale. A writ by which the sheriff sells property already taken in execution under a fieri facias. Abbreviated vend, ex., and v. e. In old practice, issued after a return that the goods so taken remained unsold from want of buyers. See Execution, 3, Writs of. VENIRE. L, To come; to appear in court. Tarde venit. It came late. A return that a writ came into the officer's hands too late to be executed before the return day named in the writ. The single word tarde is sometimes used. 1 Argentine Mining Co. v. Ten-ible Mining Co., 123 U. S. 478, 485 (1887); Acts of 1866, 1872. 2 L. vendere, to sell. ' Eutland v. Brister, 53 Miss. 685 (1876), Simrall, C. J. * Amer v. Hightower, 70 Cal. 442^3 (1886), cases. s See 26 Am. Law Eeg. 247-SO (1886), cases, note to Farwell v. Meyers, 59 Mich. 179 (1886). Damages tor non-fulfillment of contract, 22 Cent. Law J. 152 ( cases. " Also 10 Va. Law J. 515 ( VENTER "1084 VERBUM Venire facias. That you cause to come. A writ commanding that jurors be sum- moned. The emphatic words in the old Latin writ, the full expression being venire facias juratores. Often termed simply the venireA Venireman. A person who appears, as a juror, in obedience to the command of a ve- nire facias. This word would seem, in Virginia, to be contrasted with " talesman," a by-stander who is taken as a juror. 2 The common-law venire commanded the sheriff to , "cause to come" a certain number of jurors; and the command included: the selection of the names of qualified men, summoning the persons drawn, a re- turn of the writ, with the sheriff's action under it, whereby he "returned and delivered in " the jury to the court — showing the identity of the persons ap- pearing with the persons drawn, ^ Venire facias de novo. That you cause to come anew. An order, by a court of re- view, that^a new trial be had; also, the writ which summons jurors for such a trial. Shortened to venire de novo. The award of a venire de novo is in no instance more than an order for a new trial in a cause in which tfa6 verdict or judgment is erroneous in matters of law. It is never equivalent to a new suit.* A trial de novo does not mean a trial on appeal with nothing but the record to correct errors, but a trial of the entire case anew, including hearing evidence, whether additional or not^ When the court of review reverses a judgment en- tered upon a verdict for the plaintiff, but awards no venire de novo, the reversal constitutes no bar to an- other suit for the same cause of action.^ VENTER. L. 1. The womb. Fr. ventre. See Partus. Ad ventrem inspieiendum, and de ventre inspiciendo. Fdr examining the womb. At common law, a reprieve was had where a, woman, capitally convicted, pleaded pregnancy. The judge directed that a jury of twelve matrons or dis- creet women inquire into the fact; if they brought in a verdict of quick with child, execution was stayed.' '3B1. Com. 352; 4 »(i. -351. ' See Cluverius v. Commojiwealth, 81 Va. 787, 791, 794 (1886). ' United States v. Antz, 4 Woods, 183 (1883), Billings, D. J.: s. o. 16 F. E. 135; 18 Johhs. *316; 13 How. St. Tr. 327. 'United States v. Hawkins, 10 Pet. *131 (1836), Wayne, J. 'Schultz V. Lempert, 55 Tex. 277(1881); 10 Tex. 471, ' Fries v. Pennsylvania E. Co,, 98 Pa, 144 (1881); Au- rora City V. West, 7 Wall, 83 (1868), See E. S. § 803; 3 Arch, Prac, 1549; Steph, Plead. 120. ' 4 Bl. Com. 394; 1 id. 456. In or en ventre sa mere. Fr. In its mother's womb. An infant en ventre is regarded as born for some purposes. It may have a legacy, and a guardian, as- signed to it, and an estate may be limited to its use.^ 3. A wife, or paother', maternal parentage: as, a child by the first venter ; children by the same venter: uterine brothers and sis- ters. 2 VENTTE.' Locality, neighborhood ; place of .trial; county. The county where a cause is to be tried.* The clause in a declaration or indictment which states the place where the transaction was had, the injury inflicted, or the crime committed. Some certain place must be alleged as the place of occurrence for each traversable fact. In local actions the true venue must be laid, and it cannot be changed;, in transitory actions, may be laid in any county where the plaintiff can find the defendant.^ Originally, a venue was emploj'ed to indicate th& county from which the jury was to come. The neces- sity of stating a .yenue is reluctantly confessed by the authorities. It is enough, in a civil action, to name a place in the county without naming the county.*" In a criminal jjroceeding the venue must be laid in iihe county where the act was committed. See Place, Of indictment. Change of venue is allowed by statute in cases in which there is reasonable ground to believe that such local prejudice exists toward a party, or that such feeling exists on the subject-matter in litigation, as to preclude the probability of an impartial trial. The affidavit required must state the facts from which the conclusion is deduced that an impartial trial cannot be had.' See Knowledge, 1; Pbkjudick. VERACITY. See Reputation. VERBA. See Verbum. VERBAL. See Fact; Merger, 2; Parol. VERBUM. L. What is spoken ; a word. Verba. Words, language, discourse. Ex visceribus verborum. From the bowels of the words : from the vital part of the language. 5 In hsec verba, and in Mis verbis. In these words. In totidem verbis, or toti- dem verbis. In the very same words. ■ — Ni ■ 1 1 Bl. Com. 130; 33 Me. 48; 9 Mete. 863; 22 N. J. L. 57; 91 U. S. 638. 2 See Doe v. Keen, 7 T. E. 386 (1797). 8 F. venue, a coming, place of arrival. ' 3 Bl, Com, 383. ' McKenna v. Fisk. 1 How. 248 (1843), cases. " Bean v. Ayers, 67 Me. 486-87 (1878), cases. 'Territory v. Egan, 3 Dak. 125 (1882); People «. Yoakum, S3 Cal. 667 (1879); 16 Minn. 883. « 10 Johns. 494; 47 Pa. 398. ' VEEBUM 1085 VERDICT Ipsissimis verbis. In the very words them- selves. Nudis verbis. In the naked words. In the iilentical language ; word for word ; Verbatim. Where an offense consists of words spoken or writ- ten, "the very words" used must be set forth in charging the offense, the substance of the language not then being sufficient. An exception to this rule obtains when the matter is too indecent to be spread upon the records. * Verba de futTiro, and de praesenti. See Marriage, 1. Verba debeut intelligi cum effect. Words are to be understood effectively.^ See Ees, Ut res, etc. Verba fortius aeeipiuntur contra prof- erentem. Words the more strongly are taken against him offering them. Frequently, vei'ba chartarum fortius accipiuntur contra proferentem: the language of instruments is to be construed against the person who pro- poses it, rather than against the person who is invited to accept it. Does not apply to wills, nor to legislative docu- ments, nor as against the state, nor where a third per- son would be made to suffer, but is applied to plead- ings. = Applies to a contract limiting the liability of a com- mon .carrier;* and perhaps, also, to questions, with their answers, propounded by a life insm-ance com- pany.' Self-preservation makes men careful not to preju- dice their owti interests by a too extensive meaning of words. The maxim tends to prevent deception: some would affect ambiguous and intricate expressions, if at liberty afterward to put their own construction upon them. But the rule, being one of strictness and' rigor, is the last to be resorted to.' Verba illata (or relata) inesse viden- tur. Words referred to are viewed as in- corporated. A writing to which reference is made becomes thereby a part of the later instrument — contract, deeS, will, statute, pleading. Reference in a policy of insurance to the applica- tion incorporates the application as part of the policy.' An answer to a letter cannot be put in evidence •without also admitting the first letter, unless the an- 1 United States v. Noelke, 17 Blatch. 560-61 (1880), cases; United States v. Bennett, 16 id. 343-50 (1879), » 3 Bl. Com. 380; 8 Johns. Cas. 97, 101. " Broom, Max. 694; Wharf Max. 4 2 Pars. Contr. 241. • 2 Pars. Contr. 357, 465; 30 F. B. 911. » 2 Bl. Com. 880, 121, 347; 2 Pars. Contr. 506, cases. ' First Nat. Bank of Kansas City v. Hartford Fire Ins. Co., 95 a. S. 675 (1877). swer contains statements which cannot be misunder- stood when read alone." A mortgage and the note it secures, by identifying Avords, become virtually one instrument.* If an agreement, required by the Statute of Frauds, is not signed, but a letter, acknowledging the agree- ment, is signed, this will satisfy the statute. ^ Matter stated in one. count may, by reference, with- out re-statement at length, be made part of another count. A deed or plan directly referred to in another deed becomes thereby part of the latter. Where a map or plan of a tract of land is referred to in a deed containing a description of one of the lots, such map or plan is regarded as giving the true de- scription, as if it were recited in the deed.* Verba intentione debent inservire. Words ought to subserve the intention. Expresses the better rule of construction for a stat- ute, when it can be acted upon -without doing violence to language or wresting it from a fair application to the subject-matter.^ VERDICT.6 The saying of the truth. The finding of a jury. The answer of the jury to the questions of fact contained in the issue formed by the pleadings. 7 General verdict. This directly finds or negatives all facts in issue, in a general form. Special verdict. When the jury finds the facts particularly, and submits to the court the questions of law arising upon them.7 A " general verdict " is that by which the jury pronounces generally upon all the is- sues for the plaintiff or for the defendant. A " separate-general verdict" is the finding, upon any of the issues. A " special verdict " is the finding of facts by a jury, as shown in their answers to questions submitted to them in writing. 8 'Brayley v. Ross, 33 Iowa, 508 (1871), Beck, C. J.; Stone V. Sanborn, 104 Mass. 324 (1870), cases; Newton V. Price, 41 Ga. 195 (1870); Lester v. Sutton, 7 Mich. 331 (1859); Bryant v. Lord, 19 Minn. 404 (1872); 1 Greenl. Ev. § 201, note; 2 Whart. Ev. § 1127. 2 Winchell v. Coney, 64 Conn. 31 (1886). See also Wilson V. Roots, 119 111. .388 (1887). ' 2 Whart. Ev. § 872, cases; 3 Pars. Contr. 4, cases. < Chapman v. Polack, 70 Cal. 495 (1686), cases; Cragin u Powell, 128 U. S. 696 (1888). See generally Smith, Contr. 606; 2 Pars. Contr. 421; 2 Black, 604; 62 Cal. 638; 74 Me. 806; 121 Mass. 50; 183 id. 614; 144 id. 369; 64 Pa. 400. » Milton V. Babson, 6 Allen, 324 (1803), Bigelow, C. J. ; 2 Bl. Com. 379. • L. vere dictum, said by the truth. ' Day V. Webb, 28 Conn. 144 (1869), Waldo, J. ; 45 Me. 586; 3 Tex. Ap. 513. s Kentucky Civil Code, § 326, subs. 1, 2, 3. VERDICT 1086 VERDICT By a separate-general verdict the jury pass upon an issue that may be constituted of many facts; hy a special verdict, upon the existence of facts vrithout reference to any issue. A separate-general verdict is separate as to , the particular issuCj as distinguished from any other issue, and general as to the particular issue; that is, it applies in cases where there is more than ope issue. ^ A special verdict is based upon 13 Edw. I (1286), c. 30. The jury state the naked facts, as they find them to be proved, and pray the advice of the court thereon ; concluding, conditionally, that if upon the wkole matter the court should be of opinion that the plaint- iff had cause of action, they find for the plaintiff ; if otherwise, for the defendant. This is entered at length on the record, af ter- v^ard argued, and determined by the court. ^ If error exists in a general verdict, it can be cor- rected only by a new trial. The usual course is to sustain a special verdict if it contains the facts neces- sary to a proper judgment upon the matter in contro- versy; the court of original jurisdiction may render such judgment as the case requires. Error apparent in the record is re-examinable on a writ of error.^ It is of the very essence of a special verdict that the jury find the facts on which the court is to pronounce the judgment according to law, and the court is con- fined to the facts so found. Stating the evidence of the facts is insufficient. . . The verdict is formally prepared by counsel, subject to correction by the court; after being found, it is entered on the record, and the questions of law are tlien decided by the court, as in a case of demurrer. In a court of error nothing is open for revision except the questions of law inf erentially arising upon the facts stated. The proceeding, lilce a bill of exceptions, enlarges the rec- ord by incorporating the facts of the case. Error apparent in any part of the record is within the revisory power.* By leave of court, the verdict may be prepared by the parties, subject to correction by the court, and may include agreed facts in addition to those found by the jury. The purpose is, that the cfiurt may have time to hear the parties and give the questions of law deliberate consideration.' Rulings on evidence are not properly included, any more than in an agreed statement of facts; because the verdict is entered on the record, and the judgment is based on the findings of the jury.' See Case, 2, Stated; Finding, 4, Special. > [Witty V. Chesapealse, Ohio, &e. E. Co., 83 Ky. 29 (1884), Hines, C. J. ' 3 Bl. Com. 377; CpUins V. Biley, 104 U. S. 324 (1881). ' New Orleans Ins. Co. v. Piaggio, 16 Wall. 387-88 (1872), cases. 4 Suydam v. Williamson, 20 How. 432-33 (1857), cases, Clifford, J.; Sun Mutual Ins. Co. v. Ocean Ir)S. Co., 107 U. S. 600-1 (1882), cases, Matthews, J. » Mumford v. Wardwell, 6 Wall. 432-33 (1867). See also Wallington v. Dunlap, 14 Pa. 32-33 (1850), cases. " Pomeroy v. Banlc of Indiana, 1 Wall. 603 (1868). Upon , Privy verdict. Where the judge has left or adjourned court, and the jury, being agreed, in order to be delivered from con- finement, obtain leave to give their verdict privily to the judge out of court: which verdict they afterward afiirm by a public verdict given openly in court; wherein, if they please, they may vary from the first verdict.' A privy verdict is not known in criminal practice; but that practice allows the judge to adjourn while the jury withdraw to confer, and to return in order to receive the verdict in open court.^ Finding such ver- dicts is seldom indulged; the practice would allow time for tampering with a jury.' Sealed verdict. A verdict which a jury seal up, return to court, and at the next sit- ting make known as their finding. Sealed verdicts are common. In each case, when the court is again session, the jurors assemble and an- nounce their'flnding in all respects as if it had not been sealed.* See Poll, 1. Public verdict. In this the jury openly declare that they have found the issue for the plaintiff or the defendant." When the evidence is insufficient to support a ver- dict for the plaintiff, the court may direct a verdict for the defendant.' See further Nonsuit. But the court cannot direct a verdict of guilty as to a criminal offense, even where the facts are admitted, and the question of guilt depends upon a matter of law left for the court to determine.' On the trial of a felony, at common law, a verdict cannot be rendered in the absence of the accused; and the record should show that he was present.' After a verdict for a plaintiff it is presumed he proved every fact indispensable to a recovery, though no evidence appears in the record to show it.' Where it is so palpable that the jury have erred as to suggest the probability that their verdict was the result of misapprehension or partiality, the court will set aside the verdict.^' special interrogatoi*ies to juries, see 20 Am. Law Rev 356-88 (1886), cases. 1 [3 Bl. Com. 377; 5 Phila. 124; 6 id. 520. 2 4 Bl. Com. 860. ' 3 Bl. Com. 377. • United States v. Bennett, 16 Blatch. 372-75 (1879), cases; Doyle ti. United States, 11 Biss. 100 (1881). ' [3 Bl. Com. 377. « Schofield V. Chicago, &c. R. Co., 114 U. S. 619 (1886). ' United States v. Taylor, 11 F. E. 470 (1882); ib. 475. 'United States v. Whittier, 13 F. E. 636 (1882); State V. Cartwright, 10 Oreg. 196 (1881), cases. ' Grignon v. Astor, 2 How. 340 (1844); Garland v. Davis, 4 id. 144 (1846); 3 Bl. Com. 394; 4 id. 376. "Mengis V. Lebanon Manuf. Co., 10 F. E. 665 (1882); Poole V. Chicago, &c. R. Co., 2 McCrary, 251 (1881); New York Central, &o. R. Co. v. Fraloff, 100 U. S. 31 (1879). VERIFY 1087 VEST The courts will not set aside a verdict for excessive damages unless so excessive' as to evince prejudice, partiality, or corruption in the jury.' See also Behavior; Contrary; Instedot, 2; Jeop- ardy; Jdry; Lot, 1; Trial. VERIFY.2 To show to be true; to con- firm by oath: as, to verify an account, a petition, a plea, by making oath to the truth of the statement of the facts set forth. Whence verification. Sometimes, to confirm or substantiate by oath, sometimes by argument; in legal proceedings gener- ally the former." A notary may " verify " a mortgagee's written state- ment of the amount of his claim, but need not " au- thenticate " the act by his seal. " Verify " here means to swear to.* Compare Aver,. VERILY. See Belief. VERITY. See Eecord, Judicial. VERSUS. L. Turned toward: against. Separates the name of a plaintiff from the name of the defendant. Abbreviated vs. and v.^ In New York, prior to 1848, when an action was brought by A against B, the declaration was entitled A, plaintiff, v. E, defendant. But the plea was entitled B, defendant, ads. (ad sectam) A. Generally, when a party was an actor in a proceeding, he placed his own name first. This explains why, in the earlier reports of that State, v. or ads. appears between the names of parties, and why, in the progress of a case from one court to another, the names themselves appeared re- versed.* See under A, 8; Suit, 1. VERTU. "Objects of vertii and taste" do not necessarily include valuable paint- ings.'' VERUS. L. True; real, actual; genu- ine. Verum. The truth. See Aver; Ver- dict; Verify. VESSEL.8 In the Revised Statutes and acts and resolutions of Congress, includes every description of water-craft or other artificial contrivance used, or capable of be- ing used, as a means of transportation on water. 9 Vessel has been used in contradistinction to an -"open boat," which is an open vessel without decks, 'Missouri Pacific E. Co. v. Peregoy, 36 Kan. 431 (1887); Potter v. Chicago, &c. R. Co., 82 Wis. 589 (1868). On amending verdicts, see 20 Cent. Law J. 145-50 (1885), cases; as to form and substance, 82 id. Iffl (1886), cases. ^ L. verus, true ; facere^ to make. > De Witt V. Hosmer, 3 How. Pr. 284 (1848). < Ashley ti. Wright, 19 Ohio St. 295-96 (1869). 3 Smith V. Butler, 26 N. H. 523 (1852). ' See Bowen v. Sewing Machine Co., 86 111. 12 (1887). ' Bridgman v. Fitzgerald, 43 L. T. 409 (1880). 8F. vaissel, ii ship: L. vascellum, a small receptacle. » E. S. § 3: Act 18 July, 1866. See The Devonshire, 8 Saw. 211 (1882). I and it rarely designates any water-craft without a deck; but "boat" is constantly used for such small vehicles of this nature as are used without a deck.' Includes a steam canal-boat, = and a steam-dredge.' May include any structure made to float upon the - water, for purposes of commerce or war, whether im- pelled by wind, steam, or oars.' Yet a raft is not a vessel.* Poreign vessel. Hay sometimes be ap- plied to any vessel not registered or licensed, in reference to the privileges derived from the revenue system, but, in a variety of in- stances, designates a vessel navigating under the flag and with the papers of a foreign sovereign. 6 A vessel is to be registered at the home-port, which is the port nearest the owner's residence.'' Merchant vessel. Rev. St. § 4270, which provides that the penalties imposed by foregoing provisions regulating the carriage of passengers in merchant vessels shall be liens upon the vessels, applies to those sections which declare a "fine " for the violation of its provisions, as well as to those which declare a pen- alty eo nomine; and a fine incurred by a violation of § 4253, which prohibits carrying more passengers than are allowed by % 4252, is therefore a lien upon the ves- sel. Under § 4270, the lien for carrying passengers in excess of the limit prescribed, cannot exceed the amount of the fine imposed upon the master, under criminal prosecution. ^ Public vessel. A vessel belonging to a nation or government, as such, and a part of her sovereignty. The liability o^ such a vessel for damages from a collision is merged into the liability of the sovereign. Redress is to come from the sovereign public faith, not through a court of admiralty.* See generally Ship, 2. VEST.io 1. To clothe, robe ; to cover, sur- round ; to put something upon a person, con- fer upon, endow, put into the possession of, intrust to: as, to vest a person or a court with discretion, authority, power, jurisdic- tion. 3. To give an immediate, fixed right, of present or future enjoyment.'^ ' United States v. Open Boat, 5 Mas. 187, 134 I Story, J. » King V. Greenway, 71 N. Y. 416 (1877), cases. 8 The Pioneer, 30 F. R. 208 (1886). < Chaffe II. Ludeling, 27 La. An. 611 (1875). 'Moores v. Louisville Underwriters, 14 F. R. 238 (1882); Raft of Cypress Logs, 1 Flip. 543 (1876). « [The Sally, 1 Gall. 59 (1812), Story, J. ' Hays V. Pacific Mail Steamship Co., 17 How. 598 (1864), Nelson, J. » The Strathairly, 124 U. S. 558 (1888). • The Fidelity, 16 Blatoh. 573 (1879), cases. '" L. vesiire, to clothe: vestis, a garment, dress. 1 ■ Stewart v. Harriman, 56 N. H. 29 (1875), Cushing, C. J. VEST 1088 VEXAEI A statute, deed, or will is said to vest an estate or property in a person, or to vest him with the estate, meaning to confer upon him ownership in the subject thereof; and an estate is said to vest, and to become yested, in a person when it becomes his property. A contract for the sale Qf ascertainecl goods " vests " the property immediately in the buyer, and the right to the price in the seller, unless that is not the inten- tion.' Devest. To remove, take away, with- draw: as, to devest a person of authority, power, right, title to property. Opposed, invest. Divest is common, but' not approved. Adjudication in bankruptcy ipso facto devests the debtor of all rights of property. The repeal of a statute does not devest vested rights. See Repeal; Retrospective. Invest. To clothe. (1) To put a thing upon one ; to confer, put into one's possession, convey the exercise of : as, to invest with discretion or authority. (2) To surround with, place in ; to lay out money, or its equivalent, so as to produce an income ; to put out money at interest. See further Invest. Vested. Not subject to a condition pre- cedent or unperformed : as, a vested estate, interest, right ; which may be either present or immediate, or even future but uncotitin- gent, and, therefore, transmissible, and may be qualified by a condition which does not delay the actual vesting. Other examples are " vested " legacies and remainders, qq. v. Opposed, contingent. An estate is vested when there is a person in being who will have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate; 2 — when there is an immediate right of present enjoyment, or a present fixed right of future enjoyment.' In the widest sense, vested rights are rights which are complete and consummated, so that nothing remains to be done to fix the right of the citizen to enjoy them.* See fur- ther Eight, 3 (2); Vested. I Hatch V. Standard Oil Co., 100 U. S. 134 (1879), cases. = Tayloe v. Gould, 10 Barb. 396 (1851), Parker, J.; 38 id. 367. 3 4 Kent, 203; 3 Sm. & M. 347. « Moore v. State, 43 N. J. L. 343 (1881), Van Sycel, J.; 7 t«igh, 496; 6 Yerg. 164; 4 Q. B. D. 116-36. ' The law favors the vesting of estates, rather than their resting upon contingencies.* VETO. L. I oppose, protest, forbid. Originally, the word in which the Roman tribunes, and the praetor expressed dissent from a measure proposed by the senate or the magistrates. The power in the President of the United States, and in the governors of the States, to refuse (executive) assent to a bill proposed for enactment into a law. Whence veto power, message, clause. " Every Bill vphich shall have passed the House of Representatives and the Senate, shall, before it be- comes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsidera- tion two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be recon- sidered, and if approved by two thirds of that House, it shall become a Law. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Mannner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law." 2 Failure to sign a bill constitutes what is sometimes called a " pocket " or "silent " veto. This makes the President in effect a third branch of the legislature. Whether the proposed law is neces- sary or expedient, whether it is constitutional, or whether it is so framed as to accomplish its intent, are questions transferred from the two Houses to the Pres- ident. . . Said.'Vyebster: This is an extraordinary power, to be exercised only in peculiar and marked cases . . vested in the President as a guard against hasty and inconsiderate legislation, and against any act, inadvertently passed, which might seem to encroach upon the just authority of other branches of government, or on the rights of States or of individuals. 2 VEX. To hara^, trouble, annoy. Said of a second suit or prosecution after another has been fairly tried on the merits and a ver- dict of acquittal or conviction rendered. " Vexatious litigation " is a common expres- sion. See Vexaei. VEXABI. L. To shake: to molest, an- nQ,y, trouble, prosecute, vex, q. v. ' Fairfax v. Brown, 60 Md. 60 (1883), cases; 50 Mich. 399; 38 Ohio St, 365. !> Constitution, Art. I, sec. 7, cl. 2. » Cooley, Princ. Const. Law, 50, 160-63: 1 Webster's Works. 267; Federalist, No. 73; 4 Madison's Works, 369; 1 Story, Const. § 878; 1 Kent, 239. VI 1089 VIDEEE Nemo debet bis vexari pro uno at eadem causa. No person should twice be prosecuted for one and the same cause. No second suit can be maintained over a matter once faii'ly adjudicated. ^ No person shall be twice put in jeopardy. See Adjudica- tion, Former; Estoppel, By record; Jeop- AEDT. Vexata. See Qu-estio, Vexata. VI. See Vis. VIA. L. "Way, road, path. See FlLtnvt. Via trita via tuta. The beaten path is the safe path; the worn way is the safest way. Follow the rule: deviations are dangerous; adhere to precedent: innovations are perilous. Via antiqua via tuta, the old way is the safe way, and via tufa est tuiissima, the beaten way is the safest, are other forms. '^ VICARIOUS. See Liability, Vicarious. VICE. L. 1. In the place of ; instead of. " Vice the officer dismissed." ' See Pro, Hac vice. Vice-eomes. A deputy earl or sheriff, q. V. ■ Vice versa. The place, position, or order being reversed or exchanged; on the con- trary. 3. Prefixed to a title, signifies that the person may serve for another in case of ab- sence, incapacity, or death: as, vice-chan- cellor, vice-consul, vice-president, vice-prin- cipal, gq. V. ; vice-officer. VICINITY; VICINAGE.* Neighbor- hood; county. Etymologically and by common under- standing, "in the vicinity" means in the neighborhood, and "neighborhood," as ap- plied to place, signifies nearness as opposed to remoteness. Whether a place is in the vicin- ity of another depends upon no arbitrary rule of distance or topography. "Vicinity" ad- mits of a more indefinite and wider latitude in place than proximity or contiguity, and, as applied to territory, may embrace a more extended space than that lying contiguous to the place in question; as applied to towns and other territorial divisions, may embrace those not adjacent.* See County, 3 ; Venue. ■ 6 Mass. 176; 7 id. 42.S; 9 id. 423; 99 id. 203; 76 Pa. !39; 13R. L477; 76 Va. 925. a 5Pet. 223: 1 Johns. Ch. 527, 530; 4 M. & S. 168. » 16 Op. Att.-Gen. 298, 616. » F voisinage: L. vicinus, near. ■» [Langley v. Barnstead, 63 N. H. 247 (1884), Allen, J. (69) VICIOUS. 1 A vicious propensity in an animal is a propensity to do any act which might endanger the safety of the persons or property of others in a given, situation ; not merely such propensity as impairs the utility of the animal for the purpose for which it is kept. 2 See Animal, VIDEEE. L. To see; to perceive, un- derstand, know. Vide. See. Quod vide: which see. Words of reference. The last expression is abbrevi- ated q. v., in referring to one word or subject only, as, that immediately preceding it; and qq. v., when the reference is to each of the several terms or topics just mentioned. Videlicet. From videre licet, it is per- mitted to see : as you may see ; to wit ; namely. Abbreviated viz. Scilicet, that is, scire licet, as you may know ; to wit. See Wit. The office of a videlicet, or a scilicet, is to particularize what is general in the words preceding, or in some other manner t6 ex- plain what goes before. While a viz. may restrain the generality of preced- ing words, it cannot enlarge or diminish the preceding subject-matter. If the averment Immediately pre- ceding is direct and positive, that which immediately follows is so. Any fact, in its nature traversable, may be traversed though placed under a viz. A material fact cannot be made immaterial by being placed there. Therefore, if an averment under a viz. contains matter in itself material, but which is repugnant to what goes before, the pleading is ill. If that which comes under a viz. is immaterial, or of mere form, its repugnancy to what goes before does not affect the pleading, bvit it will be rejected as surplusage.' .The terms generally used are " to wit," or " that is to say." A viz. serves to give additional particulars of time or place, or circumstances explanatory of previous statements made in general terms; it cannot render nugatory previous specific averments.* Will not avoid a variance, nor dispense with exact proof in an allegation of material matter.' If repugnant to what has gone before, it will be re- jected, but not if it can be reconciled and made restrictive." ' L. vitium, fault, vice. ! Dickson v. McCoy, 39 N. Y. 403 (1868). s Gould, Plead. 58, sees. 35-41 ; United States v. Bum- ham, 1 Mas. 67(1816), cases; Steph. Pl. 309; 1 Greenl. Ev. § 00. ' Lewis V. Hitchcock, 10 F. E. 7 (1882), Brown, J. 'Bruguier v. United States, 1 Dak. 9 (1867); State v. Murphy, 55 Vt. 549 (1883); 26 Conn. 431; 47 111. 175; 132 Mass. 3, 491; 9 Minn. 317; 7 Cow. 45; 4 Johns. 450; 2 Flip. 445. » Wilson V. Mount, 3 Ves. Jr. '194 (17'.)6). VIE 1090 VILLEIN VIE. F. Life. Cestui que vie. He who lives; he whose life measures the duration of an es- tate. See further Cestui. ' Per autre vie. For the life of another. The last term is applied to a tenant or to a tenancy limited on the life of another person than the grantee; the first term, to such other person. 1 VIEW'.^ Seeing, sight, examination by the eye; ocular inspection or survey: as, that a sheriff may arrest upon view, without process. See Akeest, 3 (3, 3). "Whence view of, and to view, a body. See Coroner. Whence also view, re-view, viewer, board of viewers, etc., as applied to an ocular ex- amination, with report, upon the proposed route of a highway. See Review, 1 ; EoAB, 1. Whence, again, the views had by juries, of the spot where a crime is alleged to have been committed, of the location of a rail- road upon property alleged to be damaged thereby, and the like. See Compensa- tion, 3. In many States statutes provide for a view in civil and criminal cases. The first English statute was 4 Anne (1T06), c. 16. The general practice is to have the view after the jury has been impaneled. The ruling of Lord, Mansfield has been followed, that a view; T^ill be allowed only when, in the sound discretion of the court, it appears to be necessary or proper. From the enactments of the greater number of States it would appear that the court has power of its own motion to order the view. In a few States, however, the rule is otherwise. In Massachusetts, New Hampshire, South Carolina, Virginia, West Virginia, and Wisconsin, the authority to order the view seems to be confined to cases where it is asked by either party, and in Indiana, in criminal cases, it can only be allowed " with consent of all parties."; " The purpose is to enable the jury, by view of the premises, the better to understand the testimony and thereby the more intelligently to apply it to the issues ; not to mal^e them silent witnesses, burdened with tes- timony unknown to the parties, and in respect to which no opportunity for cross-examination or correc- tion of error, if any, could be afforded.'* In some States, the statutes provide for a special jury in cases involving the condemnation of land. At common law a view could not be allowed except by consent of parties. Under the constitutional right of the accused to be confronted with the witnesses against him, a view can only be had in his presence. The particular stage of the proceedings at which 1 See 3 Bl. Com. 123. ' F. veue: L. vid-, to see, look at. the view may be ordered seems to be left to the discre- tion of the court. 1 " With a view to a rehearing " means for the pur- pose of a rehearing. 2 VIGrlLANS. L. Awake: watchful, cir- cumspect ; attentive to one's own interests ; vigilant; active. Vigilantibus, non dormientibus, leges subveniunt — or jura subveniunt or suc- currunt. Those awake, not those asleep, the laws assist. Relief is not given to such as sleep on their lights. Legal remedies are for the active and vigilant. Another form is less vigilantibus favet : the law favors the vigilant. Applies to a surety who fails to know what ought to be known before he enters into a contract. Along with the maxim interest reipublicce, etc., ex- presses the principle of statutes for the limitation of actions. 3 See Laches; Stale. VIGOR. L. Strength, efficacy, force. Ex proprio vigore. By its own inherent force. Ex vigore termini. By the strength of the word. Ex vigore terminorum. From, the very meaning of the language. VILLAGE. Any small assemblage of houses, for dwelling or business, or both, in the country, whether situated upon regularly laid out streets and alleys or not. * See Town. VILLEIlSr or VILLAIN.s Under the Saxon government, villeins were a class of people employed at the most servile work, and belonging, with their children and ef- fects, to the lord of the soil, like the cattle upon it. They held the folk-land, from which they were re- movable at the lord's pleasure. It is probable that the Romans admitted them to the oath of fealty, which raised them to an estate superior to downright slavery but inferior 4o every other condition. This they called villeinage, and the tenants villeins. Vil- leins " regardant " were annexed to the manor or land; villeins " in gross," to the person of the laud, and transferable by deed. They could be enfranchised by manumission; which was express when by deed. 1 38 Cent. Law J. 43r, 439, 436-40 (1888), cases; Close V. Samm, 27 Iowa, 607 (1869); 93 Am. Dec. 342-46, cases. '' Richards v. Burden, S9 Iowa. 756 (1882). s See 3 Bl. Com. 188; 93 U. S. 98; 3 Cranoh, C: C. 463; 17F. R. 185; 19 id. 63; 30 id. 911; 66 Ga. 517; 34 La. An. 58; 8 Allen, 138; 12 id. 28; 77 Mo. 336; 55 Pa. 69; 68 id. 177; 60 id. 133. ■1 [Illinois Central E. Co. v. Williams, 57 ni. 49 0861), Caton, C. J; ; Toledo, &c. R. Co. v. Spangler, 71 id. 669 (1874); 25 Minn. 404, 413. »F. villein, semle; a bondman: L. villanus, a farm-servant. VINDICATORY 1091 VISIT and implied when the lord dealt with a villein as a freeman. See Feud.* VINDICATORY. See Law. VINDICTIVE. See Damages, Exem- plaiy. VINOUS. See Liquor. VIOLATION. See Debatjch; Sepul- CHER. VIOIiENCE.2 Force, physical force; force unlawfully exercised. " Violence " and " physical force " are used interchangeably, in relation to assaults, by elementaiy writers on criminal law.^ In the commission of robbery, implies overcoming or attempting to overcome actual resistance, or pre- venting such resistance through fear. May include restraint of the person. Grenerally implies that the acts tend to produce terror and alarm.* Domestic violence. " The United States . . shall protect each of them [the States] against Inva- sion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." * When, by act of February 38, 1795, Congress dele- gated to the President the power of protecting a State against violence, the power of judging what authority represented the State was also necessarily delegated, and its exercise cannot be reviewed by the courts." Violent. (1) Produced by force ; unnatu- ral : as, a violent death, q. v. (2) By the exertion of force ; forcible : as, violent means. (3) Strong; almost conclusive: as, a vio- lent presumption, q. v. Violently. With force, forcibly; against consent : ap, in charges of rape ' and robbery, qq. V. See Force; Vis; Battery; Obstruct; 3 Riot. VIBES. L. Powers; corporate powers. See Ultra, Vires. VIRTUE. 1. Any rightful act done in office is " by virtue" of that office; a wrong- ful act may be " under color " of the offioe.s ^ee Office. 2. Moral quality; chastity; purity. See Chabacter; Chaste. 1 2 Bl. Com. 92-9.5. 2 L. violare, to use force to: vis,, force. s State D. Wells, 31 Conn. 212 (l862), Butler, J. * People V. McGinty, 24 Hun, 61 (1881), cases. » Constitution, Art. IV, sec. 4. « Luther v. Borden, 17 How. 43-44 (1849), Taney, 0.:J. ; E. Sr§ 687. ' State V. Williams, 32 La. An. 336 1880); State v. Blake, 39 Me. 322, 324 (1855); Commonwealth u Fog- erty, 8 Gray, 490 (1857). 8 Broughton v. Haywo(jd, 1 PhUl. L. 383 (1867); State V. Costin, 89 N. C. 513 """"' VIBTUTE. See Officium, Virtute, etc. VIS. L. Force. Vi et armis. With force and arms, qq. V. Vis divina. An act of God. Vis impressa. Force imparted : the orig- inal force applied to a body to put it in motion. See Cause, 1, Proximate. Vis major. Superior force; irresistible force. See Accident ; Act, Of God. VISE.i To examine and indorse offi- cially ; as, to vise a passport, that the bearer may proceed on his journey. Under the treaties and legislation respecting the immigration of Chinese to this country, it has been provided that such persons as are entitled to admi^ sion shall produce certificates as to occupation, etc., from their government, vis4d by our diplomatic or consular representative at the port of departure. VISIBLE. See Possession, Adverse. VISIT.'^ 1. In international law, the right of visit or visitation is the right to ascertain by inspection of a ship's papers that she has the nationality which she claims ; the right of approach. 3 The inter-visitation of ships at sea is a branch of the law of self-defense, and is, in point of fact, practiced by the public vessels of all nations when piratical character is suspected.* 2. The right officially to inspect a chari- table institution, or a place receiving pecun- iary assistance from an individual or the public. Whence also visitor, and board of visitors, for the person or persons authorized to perform such service. Corporations, like the individuals who compose them, are liable to deviate from the end of their insti- tution. For this reason the law provides proper per- sons to visit, inquire into, and correct all irregularities that arise in them. With respect to a lay corporation, the founder, his heirs or assigns are the visitors. In the original and strictest sense, the founder of all cor- porations is the king alone. The law has appointed the court of king's bench as the place where he exer- cises this jurisdiction; there all misbehaviors of civil corporations are inquired into and redressed." 3. A visitor to a place is one who goes there for pleasure or health, engages in no busi- 1 Ve-zd'. F*. viser. to put a visa to: to indorse, after examination: L. visus, seen. » L. visitare, to go to see: videre, to see. > [The Marianna Flora, 11 Wheat. 42 (1826), Story,' J. * 1 Kent, 153, note; Woolsey, Int. Law, § 213. «1 Bl. Com. 480-82; 2 Kent, 300-5; Dartmouth Col- lege V. Woodward, 4 Wheat. 674-75 (1819), Stoiy, J. ; Allen V. McKean (Bowdom College Case), 1 Sunm. 300-1 (1833), Story, J. VITIATE 1093 VOID ness, and, remains only for a reasonable time.i See Resident. 4. The expressions, "visit" an act of neg- ligence with damages, and " visit " liability, or the consequences of an act, upon one, are not uncommon. VITIATE. See Fraud ; Usus, Utile, etc. , VIVA VOCE. L. With living voice; by word of mouth; by spoken word; ver- bally ; orally : as, testimony given viva voce in court ; to vote viva voce. VIZ. See ViDERE, Videlicet. VOCATIOW. See Business ; Happiness ; Tax, 2; Trade. VOID; VOIDABLE.2 As employed in contracts, laws, decisions, and text-books these words are often ambiguous. They have been more or less interchanged in speaking of agreements, assignments, conveyances, sales, leases, orders, judgments, and other acts, transactions, and proceedings where in- capacity, irregularity, or actual or imputed fraud is present. Void. Properly, of no legal force, null, incapable of confirmation or ratification; often, voidable or capable of being avoided.^ Said of an act of no effect at all — a nullity ah initio.^ Whenever entire technical accuracy is required, only applied to contracts that are of no effect what- ever — mere nullities, incapable of confirmation or ratification ^ But also used in the sense of Voidable. Whatever may be avoided; not absolutely null and invalid : ^ as, in say- ing that fraud renders a contract voidable at the option of a party defrauded ; ' that an unauthorized contract by a trustee is void- able, and not necessarily void.' A transaction void for unlawfulness cannot be bet- tered by ratification.* A judgment may be erroneous and not void, and it may be erroneous because void. The distinctions be- tween void and merely voidable judgments are nice, and they may fall under the one class or the other as they are differently regarded. ' ° 1 [Exp- Arohy, 9 Cal. 168 (1858). ^ F. ooide; L. viduus, bereft, empty. » [Van Schaack v. Eobbins, 36 Iowa, 303-5 (1873), cases. * [Inskeep v. Lecony, 1 N. J. L. 113 (1791). » Allis V. Billings, 6 Mete. 417 (1843). "Brown v. Brown, 50 N. H. 652 (1871); Kearney d. Vaughan, 50 Mo. 287 (1872). ' Foreman v. Bigplow, 4 Cliff. 541 (1878), cases. e United States v. Schnrz, 102 U. S. 400 (1880). » United States v. Grossmayer, 9 Wall. 75 ^••Hxp. Lange, 18 Wall. 175 (1873), Miller, J. A thing is "void" which is done against law, at the time of doing it, and where no person is bound by the act. A thing is ' ' void- able '' which is done by a person who ought not to have done it, but who, nevertheless, cannot avoid it himself, after it is done. Whenever the act takes effect as to some purposes, and is void as to persons who have an interest in impeaching it, it is not a nul- lity, and, therefore, is not utterly void, but merely voidable. Another test of a void act or deed is, every stranger may take advan- tage of it ; not so as to a voidable one.i ' In some cases it is said that fraud in procuring a contract makes it "void," in others, only "voidable." While a conveyance which is made in fraud of credit- ors is usually called "void," in many cases "void- able "is designedly substituted. Provisions in leases are common that for non-performance of a covenant the lease shall bp "void," yet the word is perhaps generally held to mean " voidable." And "voidable " is now the usual predicate of contracts by infants. These instances reveal the general principle that the persons intended to be wronged by the particular transaction are not bound by it, also that they are not bound to reject it: they may adopt it, after they learn of it. Contracts absolutely void are contracts to do an illegal act, or to omit a legal public duty. They have no legal sanction; they establish no legitimate bond or relation between the parties. ^ That is absolutely void which the law or the nature of things forbids to be enforced at all ; that is relatively void which the law condemns as wrong to individuals, and re- fuses to enforce as against them. It is void because absolutely or relatively invalid or not binding. 2 In all contracts, when stipulations are inserted for the sole benefit of one of the parties, the word " void " will be construed "voidable." Thus, an insurer may waive a breach of the contract and continue the policy in force. 3 The fact that one promise is illegal will not render a disconnected promise void. But the doctrine does not embrace cases where the objectionable stipulation is for the performance of an immoral or criminal act, for such an ingredient taints the entire contract; nor in general, will it apply where a part of the considera tion is illegal. Many decisions hold that where there are several considerations, and one is illegal, the ' Anderson v. Roberts, 18 Johns. *528 (1820), Spencer C. J. See also Somes v. Brewer, 2 Pick. 191 (1824) Crocker v. Bellangee, 6 Wis. 'ees (1858). 2 PearsoU v. Chapin, 44 Pa. 13-16 (1862), cases, Low- rie, C. J. See also Ewell v. Daggs, 108 U. S. 148-49 (1833), Matthews,, J. 2 Turner v Meridan Fire Ins. Co., 16 F. E. 454 (1883), cases; Hinckley v. Germania Ins. Co., 140 Mass. 47 VOIR 1093 VOLUNTARY ■whole agreement is void; because it is impossible to say how much or how little weight the void portion had in inducing the contract.* See Avoid, 1; Confirmation, 1; Legal, Illegal; Ratification; Trcst; Usns, Utile, etc.; Valid. VOIR. F. The truth. Voir dire. To speak the truth. Refers to an oath administered to a proposed wit- ness or juror, and also to the examination itself, to ascertain whether he possesses the required qualifications, lie being sworn to make true answers to the questions about to be asked him concerning the matter. Thus, at common law, the interest of a witness in the result of a suit may be made to appear on the voir dire. And a supposed wife may be examined on the voir dire to facts showing the invalidity of the marriage.'^ If the court has doubts as to the age (infancy) of a party, it may examine him upon an oath otvoir dire, that is, to make true answers to such questions as the court shall demand of him.^ The use of this test is now questioned, for if a wit- ness be sworn on the voir dire, he can be sworn on the examination in chief. The English practice is to put questions as to competency on the examination in chief. With us, the old practice continues in many courts, though this is rather as to the discretion of the judge, who may remand the question to the examina- tion in chief. The appeal to the voir dire does not preclude recourse to other means of proving incom- petency.*' In homicide cases, the practice of examining on the voir dire persons drawn as jurors, as to whether they have conscientious scruples against capital punish- ment, and as to relationship, prejudice, belief as to guilt, etc., is continued. VOLO. L. I will, or am wiUing; I con- sent. Volenti non fit injuria. To him consent- ing no injury is done. One who wills a thing to be or to be done cannot complain of that thing as an injury. That to which a man consents, or which he causes by his own ac- tion, cannot be considered an injury for which he can recover damages.' Thus, a man cannot complain of an injury which he has received through his own want of foresight; nor as to a right of action or defense which he has knowingly relinquished." Applies where both plaintiff and defendant are in ' ErieE. Co. v. Union Locomotive & Express Co., 35 N. J. L. 246 (1871) cases; Burlington, &c. R. Co. v. Northwestern Fuel Co., 31 F. R. 657, 659 (1887), Brewer, Judge. ! 1 Greenl. Ev. §§ 423-85; 8 id. § 339. s 3 Bl. Com. 332, 364, 370. < 1 Whart. Ev. § 492, cases. » Richards v. City of Waupun, 59 Wis. 47 (1883). • Wharton, Maxims. equal fault; where one pays a debt he might have avoided paying;* where one gives answers to im- proper questions; ' where a tenant plants away-going crops;' where one voluntarily throws up a contract. ^ When one prevents a thing being done he cannot avail himself of the fact of the non-performance.* One who waives the effect of an alteration in an instrument and consents to be bound, when he might have objected, cannot complain." Equity will not relieve from the consequences of one's own inattention and carelessness, — the means of knowledge being at hand and equally available to both parties." One who becomes a member of a church or other society consents to be governed by the laws of the organization.' Money paid or value parted with, under the alter- native of submitting to an illegal exaction or discon- tinuing one's business, is not regarded as a voluntary act within the meaning of the maxim.* See Laches; Waiver. Voluit, sed non dixit. He willed but did not say it. He may have intended the result, but he did not provide for it. Quoted in answer to ' an argument based upon the supposed intention of a testator ^ or law-maker. Compare Voluntas; Kolle. VOLUME. See Copymght. VOLUNTARY. 1. In accordance with one's own free will ; without constraint or compulsion; spontaneous; free; chosen, in- tended; allowed, suffered. Opposed, in- voluntary: as, a Toluntary, and, in some senses, involuntary — answer, assignment, association, confession, conveyance, curtesy, escape, ignorance, manslaughter, negligence, nonsuit, oath, payment, sale, servitude, waste, qq. i'. " Voluntary " means spontaneously, of one's own will, without being moved, influenced, or impelled by others. ■" Voluntarily. Used alone in a certificate of ac- knowledgment, is not the equivalent of " her own free will and accord, and without fear," etc." 1 1 Greenl. Ev. § 193. 2 2 Bl. Com. 145. ' United States v. Wormer, 13 Wall. 29 (1871). ^ • United States v. Peck, 102 U. S. BS (1880), cases. ' Smith V. United States, 2 Wall. 230 (1864). • Slaughter r. Gerson, 13 Wall. 383 (1871); Fitzpatrick V. Flannagan, 106 U. S. 600 (1882). ' Stack V. O'Hara, 98 Pa. 234 (1881). 8 Swift Co. V. United States, 111 U. S. 29 (1884); Chi- cago, &c. R. Co. V. United States, 104 id. 687 (1881); 108 id. 487. See also 69 Ga. 517; 34 La. An. 182; 11 Cush. 386, 550. • See 4 Kent, 628. i» Kearney v. Fitzgerald, 43 Iowa, 586 (1870), Day, J. " Scott V. Simons, 70 Ala. 356(1881). VOLUNTAS 1094 VOTE S. Without consideration — a valuable or adequate consideration; gratuitous: as, a ■voluntary — conveyance, deposit, settlement, trust, qq. v. Volunteer. One who receives a volun- tary conveyance,! that is, a conveyance made without a good or valuable consideration. In contests between different volunteers equity will generally not interfere, but leaves the parties where it finds them as to title — their equities being equal. Equity favors a transterree for value, as against a mere voluntary contract of any nature, except, per- haps, n settlement upon wife and children. Excep- tions are made, in the cases of bona pie grantees for value, without notice, from volunteers — such inno- cent persons always being favorites in equity.^ See especially Convktanoe, S; Settle, 3. VOLUNTAS. L. Will; intention; vo- lition. Stat pro ratione voluntas. The will stands for the reason. The fact that a testamentary disposition is made, is sufficient reason for its being made.' Voluntas reputatixr pro facto. The will is to be taken for the deed. In cases of treason, the rule at common law was, that the intention to commit treason was sufficient to constitute the crime without an overt act.* Voluntas testatoris ambulatoria est usque ad mortem. The will of a testator is ambulatory up to death. = See further Ambulatory. VOTE.6 The will of a member of a body, formally manifested toward the decision of a question by the body as whole ; also, the ag- gregate of the expressions of the will of the members.' The word, with its inflections, is most commonly used in speaking of the election of officers of corpo- rations and of government. A " vote " is but the expression of the will of the voter — whether the formula of expression be by bal- lot or viva voce.^ A 'Woter" is an elector who votes — an elector in the exercise of his franchise or privilege of voting." *' Voting " and "giving in a vote " are synonymous.^** The qualifications of voters are similar in all the States, but not uniform. Among those generally re- quired are: citizenship, by birth or naturalization; res- > [Mitchell V. Mitchell, 40 Ga. 16 (1869), Brown, C. J. = 1 Story, Eq. §§ 433-34, 176. ' See Dietz's Case, 41 N. J. E. 298 (1886). 'See 4 Bl. Com. 80; 4 Mass. 439. »2B1. Com. 603. ' h. votum, a wish; originally, a vow. ' [Abbott's Law Diet, s People V. Pease, S7 N. T. 57 (1863). » Sanford v. Prentice, 28 Wis. 362 (1871), Dixon, C. J. " State V. Moore, 27 N. J. L. 107 (1858). idence tor a given period; age — twenty-one years; payment of taxes; and registration; freedom from in- famy, q. v.; sanity." See Insanity, 2 (2). Casting vote. At common law, signi- fies, sometimes, the single vote of a person who ordinarily does not vote ; and, in case of an equality of votes, sometimes, the double vote of a person who first votes with the others and, upon an equality, creates a major- ity by giving a second vote — as, in the New York statute relating to religious corpora- tions. 2 The President of the Senate " shall have no Vote, unless they be equally divided." ^ See Abode; Ballot; Bkibery; Citizen; Election,!; Franchise, 2, Elective; Majority, 2; Precinct; Quali- fied, 1; Registry; Residence; Suffrage. Cumulative voting. " In all elections for directors or managers of a corporation, each member or shareholder may cast the whole number of his votes for one candidate or distribute them upon two or more candi- dates as he may prefer."* By " whole number " is meant, as many votes for each share as there are directors to be elected.^ / The section confers upon the individual stockholder the right to cast all the votes which his stock repre- sents, multiplied by the number of directors or man- agers to be elected, for a single candidate. The intent was to work a radical change in the method of con- ducting corporate elections. The innovation, being made part of the supreme law, is thus placed beyond the power of legislative interference. ^ The provision is unambiguous. If there are six di- rectors to be elected, the single shareholder has six votes, and, contrary to the old rule, he may cast them for one candidate or distribute them to two or more candidates. The ordinary manner of conducting cor- porate elections is in nowise interfered with. Legisla- tion directing the manner of exercising the right is not required: the provision is self-operative; and it applies to all private corporations, including railway and canal companies.' The purpose of the provision is to enable the stock- holders who are in the minority, on any question of administration or policy, to secure representation in the directory or management; but the right to cumu- late does not exist unless expressly conferred: each shareholder being entitled, at common law, to but one I See McCrary, Elections, § 4. s [People ex rel. Remington v. Rector of Church of Atonement, 48 Barb. 606 (1866). • Constitution, Art. I, sec. 3, cl. 4. * Penn. Const. Art. XVI, sec. 4. 'Commonwealth ex rel. Donnelly v. Tintsman, 23 Pitts. Leg. J. 123 (1876). " Hays V. Commonwealth ex rel, McCutcheon, 82 Pa. 521 (1876). ' Pierce v. Commonwealth ex rel. Pierce, 104 Pa. 154 (1833). VOUCH 1095 WAGER vote on each shar^ for each member of the proposed new board. * SeeCoEPORATioN; Election, 1; Majority, 1; Pkoxy. VOUCH.2 To call upon — in attestation ; to attest; to affirm, confirm, support, prove; to aver that a thing is true. " Vouched by witnesses " imports the same as testi- fied by witnesses, called into court. A note subscribed by two persons cannot be said to be vouched by wit- nesses, until the persons are called and testify before a court respecting the note.^ Vouchee. A person called to attest or vparrant. Vouclier. 1. Calling in a person, to an- swer in a real action, who warranted the title to the defendant ; also, such warrantor him- self. Thus, in a common recovery, the tenant vouched another to warrant his title. If the vouchee appeared, he was made defendant in place of the voucher.* 3. An instrument which attests, warrants, maintains, bears witness.^ A document which serves to vouch the truth of an account, or to confirm and estab- lish facts of any kind. 6 Evidence, written or otherwise, of the truth of a fact — as, that services have been performed, or expenses paid or incurred.' An account-book in which charges and ac- quittances are entered ; also, any acquittance or receipt, discharging a person or being evi- dence of payment.8 In connection with the disbursement of moneys, implies some written or printed instrument in the nature of a receipt, note, account, bill of particulars, or something of that character which shows on what account or by what authority a particular payment has been made, and which may be kept or filed away hy the party receiving it, for his own convenience or protection, or that of the public." While it is true that receipts are not indispensable, it is still "the imperative duty " of registers of wills, of auditors of the accounts of executors, admiaistra- 1 1 Morawetz, Friv. Corp. § 476 o. As to the meaning of " majority of votes cast," in popular elections, see Walker v. Oswald, 68 Md. 146 (1887) - High License Act of 1888: 27 Am. Law Beg. 516-19 (1888), cases, contra. s F. voucher, to cite, pray in aid of a suit: L. vocare, to call to or upon. s Baker v. Coit, 1 Eoot, 235 (1790). « [3 Bl. Com. 300; Coke, Litt. 101 b. • State V. Hickman, 8 N. J. L. 301 (1826). • [People V. Green, 5 Daly, 199 (1874), Daly, 0. J.; 66 N. T. 476. ' Brown v. Green, 46 How. Fr. 301 (1873): People v. Haws, 12 Abb. Pr. 202 (1861). B Whitwell V. Willard, 1 Mete. 218 (Mass., 1840), Shaw, C!hief Justice. » People V. Swigert, 107 HI. 504(1883), Mulkey, J. tors, etc., and of the .ludges of orphans' courts, " to require some distinct and definite form of. proof to es- tablish the validity of demands against dead mens' estates." ' i That municipal vouchers are non-negotiable, see Negotiable. VOYAGE.2 A passage by water from one place to another. As applied to vessels engaged in foreign and inter- State commerce, is not used of a tug making short trips from one body of water to another.' In a policy of marine insurance, the enterprise be- gun; not, the route taken.* Not limited to the passage of a vessel from one port to another, but may include several ports. ^ Foreign voyage. A voyage to some port or place within the territory of a foreign na- tion. Not, then, a whaling voyage into the northern seas.* But may include, as within the meaning of the Coasting Act of 1793, a voyage to a place within the waters of the United States, for trade.' See CoDRSE, 1 ; Deviation ; Insdkahce, Marine. VS. See Versus. VTJLGtAE. See Indecent ; Obscene. w. W. 1. As an abbreviation may denote west, western, Westminster, WiUiam (king), wills, Washington, Wyoming. W. D. Western District. See D, 3. 2. In law-French, interchanged with g: as in wages and gage, ward and guardian, warn and garnish, war- ranty and guaranty. WAFER. See Seal. WAGE.' To pledge, give assurance of security; also, a pledge. Whence wager, and wages, qq. v. WAGER. 1. A pledge or gage. Wager of battel or battle. Trial by combat. When the tenant in a writ of right pleaded the general issue and offered to prove it by his champion, and the tender was accepted, the tenant produced his cham- pion, who, by throvring down his glove as a gage or pledge, waged or stipulated battel with the champion of the demandant. The latter, by taking up the gage, stipulated to accept the challenge. ' Eomig's Appeal, 84 Pa. 237 (1877), Woodward, J. 2 F. veiage, voyage; L. viaticum, provision for a journey: via, a way. » The John Martin, 2 Abb. U. S. 181 (1870). •• [Friend v. Gloucester Ins. Co., 113 Mass. 333 (1873). 6 Be George Moncan, 8 Saw. 853 (1882). » Taber v. United States, 1 Story, 7 (1839), Story, J. ' The Lart£, 1 Gall. 57 (1812); The Three Brothers, ib. 143 (1812). * F. ivage, gage, pledge. L. fas, vod-^ L. L. vadium, wadium; old Scotch, wad-. See Gagb; Vadium. WAGER 1096 WAGER . This mode of trial, wliich originated in the military spirit of early days, was introduced into England by the Conqueror. It was also resorted to in appeals of felony and upon approvements.' See Approve, S; Battel. Wager of law. As in wager of battel the defend- ant gave a pledge, gage, or vadiwni, to try the cause by battel, so in wager of law he was to put in sureties or vadios that at such a day he would make his law, that is, take the benefit which the law allowed him. In the view that in cases an innocent man of credit might be over-borne by false witnesses, this species of trial, by the oath of the defendant himself, was established : for if he swore himself not chargeable, and appeared to be a person of repute, he went free and acquitted of the cause of action. He had, however, to produce eleven neighbors as " compurgators," his secta or suit, who upon oath avowed their belief that he spoke the truth. Abolished by 3 and 4 Will. IV (1833), c. 42.= If -wager of law ever existed in the United States, it is now abolished, 3 3. Placing something valuable, belonging in part to each of two individuals, in such a position, that it is to become the sole prop- erty of one, upon the result of an unsettled question.* A contract by which two or more parties agree that a certain sum of money or other thing shall be paid or delivered to one of them on the happening of an uncertain event.* The contract by which a " bet " is made ; also, the thing or amount bet, but not the subject on which the bet is laid.^ A wager is the bet or stake laid upon the result of a game. " Bet " and " wager " are synonymous, and applied to the contract of betting and wagering, and to the thing or sum bet or wagered. They may be laid upon acts to be done, events to happen, or facts exist- ing or to exist, — upon things legal and illegal. ^ Offering a premium is not a bet or wager. A " pre- mium " is an award or recompense for some act to be done. A '' wager " is a stake upon an uncertain event,^ At common law, all wagers were not illegal. Thus, it was not illegal to make a bet or wager on a horse- race; and an action to recover a wager could be main- tained. . To trot a horse in another State for a wager'or stakes is not prtma/acie illegal in that State.^ I 3 Bl. 337-41; 4 id. 346-48, 414. = 3 Bl. Com. 341 ; Coke, Litt. 295. » GhUdress v. Emory, 8 Wheat. 674 (1823). • Edson V. Pawlet, 22 Vt. 293 (1860), Hall, J. ^Exp. Young, 6 Biss. 67 (1874), Blodgett, J.; Mer- chants' Savings, &c. Co. v. Goodrich, 75 III. 560 (1874). « [Smooth. State, 18Ind. 19 (1862), Perkins, J. ' Woodcock V. McQueen, 11 Ind. 16 (1858), Perkins, J. ' Alvord V. Smith, 63 Ind. 63 (1878), Biddle, J.; Delier J. Agricultural Society, 57 Iowa, 481 (1881). « Harris v. White, 81 N. T. 539, 544 (1880), cases; Comly V. Hillegas, 94 Pa. 133, 136 (1880), cases; Irwin v. Williar, 110 TJ. S. 510 (1884), cases. Wagering contract. A wager, as de- fined above ; that is, a contract in which the parties stipulate that' they shall gain or lose upon the happening of an uncertain event in which they have no interest except that arising from the possibility of such gain or loss.i Whether a particular contract is wagering is for a jury to decide. All such contracts are void. The generally accepted doctrine in this country is that a contract for the sale of goods [merchandise, commodities, stocks, etc.] to be delivered at a future day is valid, even though the seller has not the goods, nor any other means of getting them than by going into the market and buying them; butsucha contract is only valid when the parties really intend and agree that the goods are to be delivered by the seller and the price is to be paid by the buyer; and if, under guise of such a contract, the real intent be merely to speculate upon the rise or fall of prices, and the goods are not to be delivered, but one party is to pay the other the difference between the contract price and the market price of the goods at the date fixed for ex- ecuting the contract, then the whole transaction con- stitutes a mere wager, and is null and void. This is now the law in England also,. by force of the statute of 8 and 9 Vict, (1845), c. 109, s. 18, altering the 6ommon law.2 Dealing in futures without intent to pay for or to receive or deliver the property is declared to be a wagering contract by recent enactments in Illinois, Missouri, Ohio, Texas, and other States; and "bucket shops " and other places maintained for enabling.pei^ sons to make such contracts are declared to be nui- sances. See further Eutdbes; Option, Contract; Speocla- TION. Wager policy. That in which the party assured has no interest in the thing assured, and could sustain no possible los.s by the event insured against, if he had not made such wager.s Wager or gambling policies are those in which the persons for whose use they issue have no pecuniary interest in the life insured.* > Fareira v. Gabell, 89 Pa. 99 (1879), cases, Hare, P. J. 2 Irwin V. WiUIar, 110 U. S. 508 ,(1884), cases, Mat- thews, J.; BenJ., Sales, §§ 541-42. See further Eound- tree v. Smith, 108 U. S. 269 (1883); Higgins v. McCrea, 116 id. 686(1886), cases; White v. Barber. 123 id. 419 (1887); Ward v. Vosburgh, 31 E. E. 12 (1887); 6 Biss. 63-67; 7 id. 552-58; 8 id. 217-19; 11 id. 60, 223; 10 E. R. 249; 11 id. 193, 201; 13 id. 263; 15 id. 438, 774; 68 Ga. 124, 296; 78 111. 43; 81 id. 415; 83 id. 33, 324; 58 Iowa, 711; 39 Mich. 337; 6 Mo. Ap. 269; 70 N, Y. 202; 71 id. 420; 83 id. 93; 55 Pa. 297-99; 70 id. 325; 89 id. 250; 10 W. N. C. 112; 11 C. B. 538. ' Amory v. Gilman, 2 Mass. *7 (1806), Parker, J. * Gambs v. Covenant Mut. Life Ins. Co., 50 Mo. 47 (1872), Bliss, J. WAGES 1097 WAIVE A pretended insurance founded on an ideal risk, where the assured has no interest in the thing assured. 1 Originally, applied to the practice of Insuring large sums without having any property on board a vessel: insurance, interest or no interest; and also, of insur- ing the same goods ae-veral times over,— species of gaming without any advantage to commerce.'-' Now extended to all species of insurance. » See further In- SOBANCB, Policy of. See also Bkttikg; Game, 8; Stake-holdek. WAGES.'' Compensation paid or to be paid for services by the day, week, or month : as, for the services of laborers.' Compensation paid a hired person for his services : a specified sura for a given time of service or for- particular work.6 The term suggests inconsiderable pay, without necessarily excluding " salary," which is suggestive of larger compensation for personal services. As ap- plied to compensation made or to be made a laborer or employee, conveys the idea of a subordinate occu- pation which is not very remunerative; one of not much independent responsibility, but rather subject to immediate supervision.^ See Earnings; Labor, 1; Salary; Admiralty; Ap- prentice; Business; Exemption; Husband; Parent; Service, 1. WAG-ON. In a statute exempting prop- erty from execution, a common vehicle for the transportation of goods, wares, and mer- chandise of all descriptions.* What is usually called tt "buggy" is within the meaning of the term " wagon " in the Minnesota stat- ute.' The term is general. Vehicles known as wagons differ in style, form, and dimensions, depending upon the character of the use, the nature of the business, and the pleasure or notions of the manufacturer or owner. A " hearse " is a wagon.'" See Carrier; Tool; Vehicle. ' [Sawyer v. Dodge County Mut. Ins. Co., 37 Wis. 539 (1875), Eyan, C. J. : Arnould, Ins. 17. 2 [2 Bl. Com. 460. ' 3 Kent, 275-78, .169, n, cases. ' * Wage: stipulated pay. [Cowdin v. Huff, 10 Ind. 85 (1857), Perkins, J. • [Ford V. St. Louis, &c. E. Co., 54 Iowa, 728 (1880), Beck, J.; Lang v. Simmons, 64 Wis. 529 (1885). ' South & North Ala. E. Co. v. Falkner, 49 Ga. 118 (1873), upon an act providing that the "wages of la- borers and employees " should not be subject to gar- nishment or attachment. See also McLellan v. Young, 54 Ga. 400 (1875); People v. Eemington, 46 Hun, 338 (1887); 1 Bl. Com. 428. "Quigley v. Gorham, 5 Cal. 418 (1855); Snyder -u. North Lawrence, 8 Kan. 84 (1871). •Allen V. Coatfes, 29 Minn. 49 {1883): Gen. St. 1878, 0. 66, § 310. Contra, 27 id. 507. ' » Spikes V. Burgess, 65 Wis.431 (1886), Cassoday, J. See WAIF. Waifs, bona waviata, were goods stolen and thrown away by the thief in his flight, from fear of being apprehended. If the party robbed did not recover the goods first, they were forfeited to the king, to punish the owner for not pursuing tlie felon.' WAIVE. ^ To abandon, relinquish, sur- render : said of property, claims, privileges, rights. Waiver. A voluntary relinquishment of some right. 5 The intentional relinquishment of a known right.^ » A voluntary surrender and relinquishment of a right.'' Implies an election of the party to dispense with something of value, or to forego some advantage which he might at his option have demanded or insisted upon. 6 A renunciation of some rule which inval- idates a contract, but which, having been introduced for the benefit of the contract- ing party, may be dispensed with at his pleasure. ' There must be both knowledge of the existence of the right and -an intention to relinquish it.* The waiver must be supported by an agreement founded upon a valuable consideration, or the act must be such as to estop the party from insisting on the perform- ance of the contract or forfeiture of the condition. ^ Waiver is a voluntary relinquishment of some right which, but for such relinquishment, the party would continue to have enjoyed. Voluntary choice, and not mere negligence, is of the essence, though from negli- gence, unexplained, such election may be inferred. Waiver is a question of fact, to be determined from declarations and acts, or from forbearance to act.* See Knowledge, 1. also 04 Ga. 625; 7 Kan. 320; 71 Me. 164; 18 Johns. 128; 19 id. UZ; 32 Tex. 533; 39 id. 363; 46 N. H. 531; 47 N. T. 124. 1 1 Bl. Com. 296; 2 Kent, 358. ^ O. E. waiven, to set aside, remove, refuse, give- over; F. loaiver. = Stewart v. Crosby, 50 Me. 134 (1863), Davis, J. " Hoxie V. Home Ins. Co., 32 Conn. 40 (1864), Butler, J.; Shaw v. Spencer, 100 Mass. 395 (1868), Foster, J.; 143 id. 374; State v. Churchill, 48 Ark. 445 (1886), cases. » Dawson v. Shillock, 39 Minn. 391 (1882), Dickinson, J. ; 33 id. 117. "Warren v. Crane, 60 Mich. 801 (1883), Cooley, J.^ State Ins. Co. v. Todd, 83 Pa. 275 (1877); 12 Tex. *103. ' Hare, Contracts, 272. 8Eipley v. JStna Ins. Co., 30 N. T. 104 (1864); Mon- tague V. Massey, 76 Va. 314 (1882). » [Fishback v. Van Dusen & Co., 33 Minn. 117 (1885), Mitchell, J. The question was whether a vendor had waived a condition for payment in cash on deliveiy of 5,000 bushels of wheat, or had made a conditional de- WALKING 1098 WALL Waiver of a tort. Said of the act of a person who, by treating a matter as a con- tract, waives his right to pursue it as a tort with the peculiar remedies, penalties and consequences belonging to it in that char- acter, i Thus, the owner of personalty may waive a tortious conversion of it.* If property be tortiously taken or converted, the tort-feasor may be sued in trespass or trover, or the injured party may waive the tort and sue in assujnp- sit — as if there had been an implied contract. The defendant cannot set up his own wrbng-doing to de- feat the action, and a judgment will bar an action ex delicto.^ A parly may waive any provision of a contract, statute, or constitution intended for his benefit.^ The doctrine of waiver is especially important in connection with covenants in lessees; as to these a waiver may be actual or express, and implied, as, in the last case, from taking rent after notice to quit for covenant broken. Where no principle of public policy is concerned, a party is at liberty to waive a statutable provision in- tended for his benefit.* A man may not barter away his life, freedom, or substantial rights. Thus, in a criminal case, it has been. held, he cannot consent to be tried without a jury, or by a jury of eleven men.' The public has an interest in his life and liberty. Neither can be lawfully taken except as prescribed by law. That which the law makes essential in proceed- ings involving the deprivation of either life or liberty cannot be dispensed with or affected by the consent of the accused.^ In a civil case he may consent to an arbitration, or decision by a single judge. He may waive removal into a Federal court, in each recurring case, but, not by an agreement in advance thus to forfeit a right on every occasion. And a party cannot waive jurisdic- tion. ^ See ABAKDbu; Acqciescehoe; Pbivilese, 1, Per- sonal; Protest, 2; Void. WALKING. See Street; Travel; Night-walkers. livery with right to reclaim reserved. See also Okey „. State Ins. Co., 29 Mo. Ap. Ill (1888). 1 Harway v. New York City, 1 Hun, 630 (1874), Davis, Presiding Judge. ' Tome V. Dubois, 6 Wall. 654 (1867), cases. 9 May V. Le Claire, 11 Wall. 235-36 (1870), cases. * Shutte V. Thompson, 15 Wall. 159 (1872); Be Cooper, 93 N. Y. 512 (1883), cases. ' White V. Connecticut Mut. Life Ins. Co., 4 Dill. 183 (1877). • Cancemi v. People, 18 N. Y. 135-38 (1858); State v. Stewart, 89 N. C. 563 (1883); Swart v. Kimball, 43 Mich. 448-49 (1880). ' Hopt V. Utah, 110 U. S. 579 (1884), Harlan, J. » Home Ins. Co. v. Morse, 20 Wall. 451 (1874); 1 Story, Eq. § 670; 25 Am. Law Eeg. 402^ (1886), cases. WALL. Occurs in the expressions ancient wall; common wall, division-wall, party- wall ; and private wall. See Flee. Ancient wall. A wall built to be used, and in fact used, as a party-wall, for more than twenty years, by the express permission or continuous acquiescence of the owners of the land on which it stands.' Common or division-wall. See Party- wall. Party-wall. A wall built partly on the land of one person and partly on the land of another, for the common benefit of both, in supporting timbers used in the construction of contiguous buildings.2 A wall of which the two adjoining owners are tenants in common — the most common and primary meaning ; also, a wall divided longitudinally into two strips, one belonging to each of the neighboring owners; also, a wall which belongs entirely to one of the adjoining owners, but subject to an easement or right in the other to have it maintained as a dividing wall between the two tene- ments; and, also, a wall divided longitudi- nally into two moieties, each moiety being subject to a cross-easement in favor of the owner of the other moiety. ^ The principle upon which the law as to party- walls is based is the same as that applied to partition fences. This principle has been recognizedin the law of France for ages. The absolute right of property is not in- vaded, for that absolute involves a relative, in that it implies the right of each ad joiner, as against the other, to insist upon a separation by a substantial bomidary line.* A right to a party-wall is a right which an owner of land has to build a division-wall partly over his line on the land of another. It is therefore a right appur- tenant to land, and may properly be called an ease- ment or servitude. In the city of Philadelphia, for example, this relation between adjoiners is regulated by statute. He that first builds on his line must erect the wall at his own expense, and it is then, as one whole wall, an essential part of his house, and real es- tate. Yet half of it rests on his neighbor's land, which is charged with a servitude for this purpose. The neighbor cannot use the wall without paying for so much of it as he intends to use; and, on paying, he may use it, and then the wall becomes a common wall, and each lot appurtenant to the other, as far as needed for its support. The price to be paid by the adjoining ■ Eno u Del Vecchio, 4 Duer, 63 (1854), Bosworth, J. " Brown v. Werner, 40 Md. 19 (1873), Robinson, J. s Watson v. Gray, L. E., 14 Ch. D. 194-95 (1880), Fry, J. ; s. c. 37 Eng. E. 22. « Evans v. Jayne, 23 Pa. 36 (1854). WANT 1099 WAR lot-owner, before he can use the wall, is a fixed lien upon the lot, enforced by restraining the full use of the wall until the amount is paid. The mason who builds the wall may agree to look to the adjoiber for half the value, and retain a lien for that halt, which will remain incident to the wall, that is, to the house and wall, and pass on a sale of the house. In such case the owner of the house is a trustee of the lien for the builder of the wall, and a purchaser from such original owner, with notice of the agreement, becomes himself a trustee; but a purchaser without notice will take title to the wall discharged of the builder's claim. If the trustee sells the house without reserving the lien, he must account to the builder for the amount ofit.i The rights and liabilities of the co-owners differ somewhat in different jurisdictions. But the weight of authority is that an agreement, under seal between the adjoining owners, for the construction of a party- wall, creates cross-easements which run with the laud and bind all persons, even an assignee, succeeding to the estates to which the easements are appurtenant. - If the necessity for the repair of an old wall be estab- lished, the cost will be divided. But some cases hold that the easement is terminated by decay or destruc- tion of the wall, as, by fire.^ See Easement; Support, 2; Eip-eap. WANT. Being commonly used to mean " wish " or " desire," and as frequently " need " or "require," is in itself ambiguous. Where a testator created a life-estate with power, If the tenant " should want for his support," to sell part or all of the land, it was held that the provision implied a limitation or restriction of the power to a case of necessity.* ■Wanted. In a statute for condemning land " wanted for the construction or repair " of a railroad, means necessary, and is not synonymous with "de- sired." * "WANTON. Unrestrained; reckless; re- gardless of another's right. Adds no force to a charge that an act was done in a •* reckless " manner." To make the killing of animals (sheep) a wanton act, under a charge of malicious mis- chief, the killing must have been committed > Roberts v. Bye, 30 Pa. 377 (1858), Lowrie, C. J. See also Appeal of Western Nat. Bank, 103 id. 171, 182 (1883), cases. "Eoche V. Ullman, 104 m. 19 (1883), cases; Spencer's Case, 1 Sm. L. C. 211, cases; 93 111. 359; 111 Mass. Ill; 57 N. Y. 209. > Campbell v. Mesier, 4 Johns. Ch. *334 (1820) ; Dowing V. Hennings, 20 Md. 179 (1863); Partridge u Gilbert, 15 N. Y. 601 (1867); Orman v. Day, 5 Fla. 385(1863); Voll- mer's Appeal, 61 Pa. 118 (1868). See generally 18 Cent. Law J. 122-26 (1884), cases; 92 Am. Deo. 289-306 (1887), • Hull V. Culver, 34 Conn. 405(1867). 'Tracy v. Elizabethtown, &c. E. Co., 80 Ky. 267 (1883). * Lafayette, &c. E. Co. v. Huffman, 28 Ind. 290 (1867). regardless of the rights of the owner, in reckless sport or under such circumstances as evinced a wicked or mischievous intent, and without excuse.' The act of killing an animal belonging to another is wanton when it is needless for any rightful purpose, is without adequate legal provocation, and manifests a reckless indif- ference to the interests and rights of others.^ Wantonly. In an indictment, implies turpitude — that the act is of willful, wicked purpose. 3 Wantonness. Reckless sport; wUlfully unrestrained action, running immoderately into excess.* Action without regard to the rights of others.'' Eminent judges have used the term with reference to cases of mere " omission," but such use is of doubt- ftil propriety. Smart money may be allowed as damages in actions of tort founded on wanton misconduct; as, where a ball, fired at a mark, glanced and hurt a person living near the place where the mark was set up.* Doing that which will annoy another and which the first party knows will produce no results to himself, as, by violently ringing a door bell late at night, the person having reasonable cause to believe that he will not be admitted, is wanton conduct." See Cruelty. WA-R. An interruption of a state of peace for the purpose of attempting to procure good or prevent evil by force. A just war is an attempt to obtain justice or prevent injus- tice by force, in other words to bring back an injuring party to a right state of mind and conduct by the -infliction of deserved evU. A justifiable war, again, is only one that is waged in the last resort, when peaceful means have failed to procure redress, or when self-defense calls for it.' An armed contest between different states upon a question of public right.s Every contention by force, between two nations, in external matters, under the au- thority of their respective governments, is a public war. If it be declared in form, it is I Thomas u State, 14 Tex. Ap. 205 (1883), WUlson, J. » State V. Brigman, 94 N. C. 890 (1886), Smith, C. J. ' State V. Massey, 97 N. C. 468 (1887). ' Cobb V. Bennett, 75 Pa. 830 (1874), Agnew, C. J. 'Welch V. Durand, 36 Conn. 184-86 (1869), Butler, J. Clarke v. Hoggins, 103 E. C. L. ♦552 (1862), WUles, J. ' Woolsey, Int. Law, § 115. 'Brown v. Hiatt, 1 Dill. 380 (1870): Bluntschli, Code Int. Law, 370. WAR 1100 WAR called solemn^ and is of the ** perfect*' kind: because one whole nation is at war with an- other whole nation. 1 That state in which a nation prosecutes its right by force.2 One belligerent may claim sovereign rights as against the other — but both need not be independent sovereignties. Insurrection may or may not culminate in an organized rebellion, but a civil "war al- ways begins by insurrection against the law- ful authority of the government. A civil war is never solemnly declared ; it becomes such by its accidents — the number, power, and organization of the persons who origi- nate and carry it on. When the parties in rebellion occupy and hold in a hostile man- ner a certain portion of territory, have de- clared their independence, cast off alle- giance, organized armies, committed hostili- ties against their former sovereign, the world acknowledges them as belligerents, and the contest a " war." When the regtilar course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts of justice cannot be kept open, then "civil war" ex- ists. 3 " The Congress shall have Power . . to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies; . . To provide and main- tain a Navy; To make Rules for the Government and Regulation of the land and naval Forces ; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."* "No State shall, without the Consent of Con- gress, , . . keep Troops, or Ships of Wai,; in time of Peace, . or engage in War, unless actually in- vaded, or in such imminent Danger as will not admit of delay."" "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Serv- ice of the United States." ^ Previous to any declaration of war by Congress, the President, by acts of February 38, 1795, and March 3, iThe Eliza (BastJ. Tingy), 4 Dall. *40 (1800), Wash- ington, J. 2 [Vattel, Law of Nations, *S91: 3 Black, 666. 8 Prize Cases, 2 Black, 666-67 (1863), Grier, J. * Constitution, Art. I, sec, 8, cl. 11-15. Vesting the sole power to declare war in Congress is "a regulation where the spirit of republicanism ex- erted its humanest influence. The world has been retarded in civilization, impoverished and laid waste by wars of the personal ambition of its kings." 3 Bancroft, Const. 146. * Constitution, Art. I, see. 10, cl. 3. « Constitution, Art. 11, sec. 3. 1807, is authorized to meet invasion or insurrection by military force. ^ The late war in the United States was accompanied by the general incidents of an international war.* Whatever auxiliary causes may have contributed to bring it about, the overshadowing, efficient cause was African slavery. ^ In that war the United States acted both as bellig- erent and as sovereign. As belligerent she enforced her authority by capture ; as sovereign she recalled her revolted subjects to allegiance by pardon and restoration of rights.* The rules of war, as recognized by the public law of civilized nations, became applicable to the con- tending forces. The usual incidents of a war betweWn independent nations ensued.^ At no time were the rebellious States out of the pale of the Union. Their rights under the Constitu- tion were suspended, not destroyed. Their constitu- tional duties and obligations were unaffected: as a citizen is still a citizen though guilty of a crime and visited with punishment.^ A political society which attempted to separate itself from the Union did not destroy its identity as a State, nor free itself from the binding force of the Constitution. Hence, all its acts, during the period of the rebellion, are obligatory on the State now, except those in aid of that rebellion, or in conflict with the Constitution and laws of the United States, or intended to impeach its authority.' When the war closed there was no government in an insurgent State. Such as had been organized for waging war against the United States had disappeared. The chief functionaries, and many subordinate offi- cials, left the State. Legal responsibilities were an- nulled or greatly impaired. . Th6 new freemen became part of the people, and the people still con- stituted the State. Having suppressed the rebellion, the next duty imposed upon the United States govern- ment was to re-establish the broken relations of the States with the Union. . . Restoration of the old government, without a new election of officers, was impossible; and before an election could be held, it was necessary that the old constitutions should re- ceive such amendments as would conform their pro- visions to the new conditions created by emancipa- tion, and afford security to the people. . Author- ity to suppress rebellion is found in the power to suppress insurrection and cany on war. Authority to provide for the restoration of State governments, when subverted, is derived from the obligation " to guarantee to every State a republican form of gov- ernment." While war continues, the President, as commander-in-chief, may institute temporary govern- ments within the insurgent districts, the means being 1 Prize Cases, 2 Black, 668 (1862). 2 Dow V. Johnson, 100 U. S. 164 (1879), Field, J. a Slaughter-House Cases, 16 Wall. 68 (1872), Miller, J. * Lamar v. Browne, 93 U. S. 195, 193-200 (1875), Waite, Chief Justice. f United States v. Pacific Railroad, 120 U. S. 233 (1887). e White v. Hart, 13 Wall. 651 (1871), Swayne, J. 7 Keith V. Clark, 97 U. S. 459-61 (1878), Miller, J. WAR 1101 WARD necessary and proper, although the power to cany into effect the clause of the guaranty is primarily a legislative power and resides in Congress.' Acts of hostility occurred at periods so various, and of such different degrees of importance, and in parts of the country so remote from each other, both at the commencement and at the close of the war, that it would be difSculti if not impossible, to say on what precise day it began or terminated. To fix the dates it is necessary, therefore, to refer to some public act of the political or executive department of the govern- ment. The proclamations of the President may be assumed as the dates. The proclamations of intended blockade were: that of April 19. 1861, embracing South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas; and that of April 27, 1861, em- bracing Virginia, and North Carolina. The proclama- tions declaring the war closed were: that of April 2, 1866, applying to Virginia, North Carolina, South Carolina, Georgia, Florida, Mississippi, Tennessee, Alabama, Louisiana, and Ai^kansas; and that of Au- gust 20, 1866, applying to Texas." One of the immediate consequences of a declaration ■of war and the effect of a state of war, even when not declared, is that all commercial intercoui-se between the adherents of the contending powers is unlawful and interdicted. All the members of each belligerent are respectively enemies of all the members of the other belligerent. Were commercial intercourse allowed, it would tend to strengthen the enemy, and afford facilities for conveying intelligence, and even for traitorous correspondence. Trading may be author- ized by the sovereign, and, to a limited extent, by a military commander.' As war is necessarily a trial of strength between the belligerents, the ultimate object of each is to lessen the strength of his adversary, or add to his own. Whatever is necessary to accomplish this end is law- ful; and each belligerent determines for himself what is necessary. If. in so doing, he offends against the accepted laws of nations he must answer in his political capacity to other nations for the wrong he does. If he oversteps the bounds which limit the power of belligerents in legitimate warfare, as under- stood by civilized nations, other nations may join his enemy, and enter the conflict against him. If, in the course of his operations, he improperly interferes with the person or property of a non-combatant sub- ject of a neutral power, that power may redress the wrong.* When a foreign war first breaks out it is the duty of the citizen to return home without delay; when the war is civil, it is his duty to leave the rebellious sec- 1 Texas v. White, 7 Wall. ^7-30 (1868), Chase, C. J. On "Theories of Reconstruction," see 1 Am. Law Eev. 238-64 (1867). !The Proctor, 12 Wall. 701-2 (1871), Chase, 0. J.; Walker v. United States, 106 U. S. 419 (1882); Carver v. United States, 16 Ct. CI. 383 (1883). • ^ 3 Matthews v. McStea, 91 U. S. 9-10 (1875), Strong, J. • Young V. United States, 97 U. S. 60 (1877), Waite, •Chief Justice. tion, and adhere to the regular, established govern- ment. ' The President alone has power to license commer- cial intercourse.'^ War dissolves a partnership subsisting between citizens of the nations at war." The doctrine of the revival of contracts suspended during war is based upon considerations of equit.7 and justice, and cannot be invoked to revive a contract which it would be unjust and inequitable to revive ; as, a contract of life insurance.* A statute of limitations did not run against the right of action upon a contract made previous to, and ma- turing after, the commencement of the war; because the courts were closed to public enemies.^ See Arms, 1; Blockade; Capture; Confiscate; Con- traband; Debt, Public; Enemy; Feud; Field, 2; In- famy ; Insurance ; Lex, Silent leges ; Levy, 1 ; Marque ; Martial; Military; Militia; Necessary; Oath, Of office; Peace, 2; Prize, 3; Eansom; Tender, 3 (2), Legal; Treason; Troops. WARD.'* Care, charge; protectiop, de- fense. 1. One of the principal duties of constables is to keep " watch and ward." "Ward" or guard was chiefly applied to the day time, for apprehending rioters, and robbers on the highways. "Watch" properly referred to the night only.' In walled towns the gates were closed from sumise to sunset, and watch was to be kept in every borough and town to apprehend rogues, vagabonds, and night- walkers, and make them give an account of them- selves.' 2. A territorial division of a city. " A division in the city of London committed to the special ward, that is, guardianship, of an alderman." Also, a prison, or a division thereof. Warden. A keeper or guardian : as, the warden of a prison or penitentiary ; a flsh- warden ; a port-warden. 3. One who is guarded. Ward of chancery or of court. A minor or lunatic under the protection of a, court of equity. More particularly, a minor under the personal care of a guardian. " While the infant is in ward." ' ' The William Bagaley, 5 Wall. 408 (1866); Gates v. Goodloe, 101 U. S. 617-18 (1879). a Coppell V. Hall, 7 Wall. 564-55 (1868). ' The William Bagaley, 5 Wall. 405-12 (1866), cases; Matthews v. McStea, 91 U. S. 9-11 (1875). * N. Y. Life Ins. Co. v. Statham, 93 U. S. 32 (1876), Bradley, J. » Brown v. Hiatts, 15 Wall. 183-86 (1872), cases, Field, Justice. ' A. S. weard; to guard, keep. ' 1 Bl. Com. 356-57. « 2 Bl. Com. 70. WARD 1102 WAEEHOUSE A person under the age of twenty-one years, and subject to the guardianship of an- other.! An inseparable incident to tenure in chivalry was "wardship." When a tenant died seized of a knight's fee, leaving an heir of full age, the king received of the heir a year's profits of the land, if in immediate possession, and, if in reversion expectant on a life es- tate, a half year's profits. This right was called "primer seisin." If the heir was a male under twenty-one, or a female under fourteen, the lord was entitled to the wardship of the heir, as " guardian in chivalry " —^ with custody of body and lands, without accounting, till the male was twenty-one and the female sixteen. "Wardship of the land," or custody of the feud, was retained by the lord that he might, out of the profits, provide a person to supply the infant's services. A consequence was, *' wardship of the body : " the lord was the most proper person to educate and maintain the infant, and qualify him for the services he was to render in maturity. At maturity he could sue delivery of the lands out of the guardian's hands; the action being called ouster le - mOfin. Before maturity the guardian had power to dispose of hisward in matrimony — to tender a suit- able match; because of the ward's tender years, and the danger of a female inter-mari^'ing with the lord's enemy. Magna Charta provided that notice of the proposed contract should be giVen to the next of kin.^ "Wardship in socage " differed from wardship in chivalry. The inheritance, descending to an infant under fourteen, did not belong to the lord of the fee, because no personal services were required, and no part of the profits of the land were spent in procur- ing a substitute. The ward's nearest relation had cus- tody of his land and body. At fourteen, the heir could oust the guardian, require him to account for the profits, and choose another guardian. But as heirs so young made improvident choices, 12 Car. 11 (1651), c. 34, enacted that the father might by will appoint a guardian to serve till the ward attained twenty-one. The father failing in that, the court of chancery would name such guardian. ^ That statute is the original of similar legislation in this country.^ See further Guardian, 9;. Necessaries, 1. Wards of admiralty. Seamen are some- times so called, from the fact that, by reason of their improvidence and their inability to make or enforce advantageous contracts, the courts extend them more consideration than is accorded to persons generally who are em- ployed in serving others. ■ Courts of admiralty watch with scrupulous jealousy every deviation in shipping articles from the principles of the maritime law as to seamen's wages, as injurious to the rights of seamen, and as founded in an uncon- scionable inequality of benefits. Seamen as a class are 1 Darland v. The Justices, 4 Bibb, 534 (1817), Boyle, Chief Justice. ^ 2 Bl. (^om. 67-71. 3 2 Bl. Com. 87-89. *2 Kent, 223-26; 5 Johns. 378. rash, thoughtless, and improvident. They are gen- erally necessitous, ignorant of the nature and extent of their rights and privileges, and incapable of appreci- ating their value. Their credulity is easily excited, and their confidence readily sui-prised. Hence it is that bargains between them and ship-owners, the latter persons of intelligence and shrewdness, are open to scrutiny; for they involve great inequality of knowledge, of forecast, of power, and of condition. On this account courts, of admiralty are accustomed to consider seamen as peculiarly entitled to then* pro- tection; by a somewhat bold figure they are said to be "favorites" with such courts.' Those courts, acting upon the enlarged and liberal jurisprudence of courts of equity, may hold void any stipulation in the ship- ping articles which derogates from the privileges of seamen, as founded upon imposition, unless the nature of the clause was fully and fairly explained, and an additional compensation is allowed, adequate to any new risk or restriction imposed upon the seamen. i WAREHOUSE. A building for the safe-beeping of merchandise. - Warehouseinan. One who receives and stores goods as a business for a compensation or profit. 2 A person whose business is the receiving and storing of merchandise for a compensa- tion. Under duties^laws, an importer who does not choose to pay duties may have the goods stored in a *' public warehouse " designated by law, there to remain, sub- ject to the duties and storage fees, till withdrawn for consumption, exportation, etc.^ This "warehousing system," begun under the act of August 6, 1846 (St. L. 53\ was extended by the es- tablishment of private bonded warehouses, under act of March 28, 1854 (St. L. 270).'> The object of the Warehousing Act of 1846 was to facilitate and encourage commerce by exempting the importer from the payment of duties until ready to bring his goods into market,^ All elevators or storehouses where grain or other property is stored for a compensation^ whether the property stored be kept separate or not, are declared to be "public warehouses." * The act of April 35, 1871, intended to give effect to that article, is not repugnant to the Constitution of the United States. Where warehouses are situated and their business is carried on exclusively within a State, she may, as a matter of domestic concern, prescribe regulations for them, notwithstanding they are used as » Brown v. Lull, 2 Sumn. 449 (1836), Story, J. ; Harden V. Gordon, 2 Mas. 556-57 (l823); The Georgeanna, 31 F. R406(188r;; 3 Kent, 193. 8 Bucher, v. Commonwealth, 103 Pa, 534 (1883), Goi> don, J. ; Pa. Act 34 Sept. 1866. 3 See R. S. §§ 2954-3008, cases. 4 See R. S. §§ 2964-65. ^Tremlett v. Adams, 13 How. 303(1851). See Hart- ranft v. Oliver; 125 U. S. 537-39 (1888): Act 3 March 1883, '§10. « Const, of III., Art. XIII, sec. 1. WAREHOUSE 1103 WARRANT instruments by those engaged in inter-State as well as in State commerce; and, until Congress acts with ref- erence to their inter-State relations, such regulations can be enforced, even though they directly operate upon commerce beyond her immediate jurisdiction.' The undertaking of a warehouseman is a contract for mutual benefit. Ordinary care toward preserving the merchandise is required of him. When a common carrier has transported goods, ready to be forwarded by another, he continues liable as a warehouseman only. ' Nor is it necessary that the goods be housed, in order to affect a bailee with the liabilities of a warehouseman; it is enough if they are actually in his custody for housing. A warehouseman has a lien for all reasonable charges.' A public warehouseman assumes an obligation to serve the entire public. He cannot escape this obli- gation by calling himself a " commission merchant." " In the ordinary railway transportation by cominon carriers of goods there is no obligation after the goods reach their destination but to place them safely in a warehouse."* State statutes largely regulate the rights and duties of warehousemen. Although their receipts for the property are made negotiable, they as bailees are not guarantors of the title to the property.^ A receipt in Pennsylvania, under the act of Septem- ber 24, 1866, must be issued by the person in possession of the goods in his own right, and not by his agent." If a receipt is that of a warehouseman it is negoti- able without regard to its form, and to destroy that negotiabilitj' notice to that effect must appear upon its face. But unless it is in fact a warehouse receipt no form will make it such.' In the absence cf statutory regulations, the delivery of a receipt payable to bearer, as collateral security, without indorsement, passes the legal title to the pledgee as if there had been an actual manual deliv- ery. Although, to enable the transferee to sue on the receipt in his own name at law, a statute may require an indorsement to pass the legal title, and the holder of an indorsed r5ceipt is protected against latent equities, yet a transfer by delivery passes a special property and constructive possession sufficient to create a valid pledge as between the parties and as against a third person who has not acquired a prior or intervening right.' See Bailment; Carriee, Common; Lading, Bill of; Police, 2; Wharfinoer. 1 Munn V. Illinois, 94 U. S. 114, 123 (1876), Waite, C. J. » 2 Pars. Contr. 139^3 ; 2 Kent, 565 ; Stoi-y , Bailm. § 444 ; Seals V. Edmondson, 71 Ala. 511 (1883); Bank of Oswego ■V. Doyle, 91 N. Y. 32 (18&3); 2 Kan. Law J. 99 (1885). = Nash V. Page, 80 Ky. 5.39 (1882); 103 Pa. 535. • * American Union Express Co. v. Bobinson, 72 Pa. 278 (1872); Redf. Car., 33, cases; White v. Colorado Central E. Co., 3 McCrary, 559, 564 (1878), cases. 6 Mechanics', Sec. Ins. Co. v. Kiger, 103 U. S. 355 (1880); Adams v. Merchants' Nat. Bank, 9 Biss. 396, 400-2 (1880), cases. « People's Bank u Gayley, 92 Pa. 527, 529 (1880). See also 6 Col. 366; 40 111. 320; 63 Miss. 86. ' Buoher v. Commonwealth, 103 Pa. 635 (1883). 8 Alabama State Bank v. Barnes, 82 Ala. 615 (1886), WARES.' Up to the middle of the last century, had the same meaning as " mer- chandise." 2 In the Revised Statutes of 1873, merchandise was substituted as an equivalent tor " goods, wares, and merchandise," which expression had formerly been in use as including all movable chattels, in particular chattels capable of being imported.' See further Goons; Merchandise. WARN. See Garnish. "W ARRANT.* l,v. To give assurance ' of the existence of a fact ; as, of the quality of goods sold, the validity of a title, the de- scription and uses of insured property. Whence , warrantor. Compare Warranty. 2, n. (1) A veriting from a competent au- thority, in pursuance of law, directing the doing of an act, and offering him protection from damage if he does it.^ "Warrant" and "commission," outside of naval technicality, are synonymous words. There is no difference, in form, between them as used in the Navy, except that one recites that the appointment is made " by and with the advice and consent of the Senate," and the other does not. Both are signed by the President." Beneh-warrant. See Bench. Death-warrant. See Death, Penalty. Landlord's warrant. See Landlord. Search-Twarrant. See Search. Warrant in bankruptcy. See Bank- ruptcy. Warrant of arrest. See Arrest, 3. Warrant of attorney. See Attorney. Warrant of commitment. See Com- mit, 3. (2) Several evidences of debt and of title are known as warrants. Thus a city, county, or tovm warrant calls for the payment of money out of the public treasury ; a dividend or interest warrant is a check drawn by a joint-stock company upon its banker, direct- ing payment to a shareholder or to his order ; and a land warrant authorizes the holder (the warrantee) to take up public lands. See Land, 1, Warrant. cases. See generally 10 Cent. Law J. 421-23 (1880), cases; "Grain Elevators," 6 Am. Law Rev. 450-71 (1873), cases. ' A. S. ware, to be guarded. 2 Passaic Manuf . Co. u. Hoffman, 3 Daly, 512 (1871), Daly, C. J. >SeeR. S. §2766. * F. warant, garant, prdtection, heed, care. » People V. Wood, 71 N. Y. 376 (1877), Folger, J. •Brown v. United States, 18 Ct. CI. 543 (1883). WARRANTIA 1104 WARRANTY County warrants, payable to hearer, are not nego- tiable as are bills of exchange and promissory notes. Holders take tbem subject to any defense that may be made against the original payee. ^ That is also the law as to city or municipal war- rants. ^ See further Negotiable. Where a county may be sued on its ordinary war- i-ants and compelled to levy a tax to pay them, the statute of limitations' begins to run from the date of their issue. ^ WARRAWTIA. LateLat. A warranty. Warrantum. A warrant ; legal authority ; a warranty. Quo warranto. By what warrant, or authoi'ity. A writ in the nature of a writ of right for the kin'g, against him who claims or usurps any office, franchise, or liberty, to inquire ** by what authority" he supports his claim, in order to determine the right. It also lies in case of non-user or mis-user of a franchise : being a writ commanding the defendant to show by what warrant he exercises such franchise, having never had any grant of it, or having forfeited it by neglect or abuse.^ Superseded by "an information in the nature of a quo warranto,'''' 'which affords a similar remedy. This is properly a criminal pi-oceeding, to oust the usurper and punish him by a fine, but has long been applied to the mere purpose of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only. . . Applied to the decision of corporation disputes, without intervention of the prerogative, by 9 Anne (1711), c. 20, which permits such an information to be brought with leave of the court, at the relation of any person (called the relator) de- siring to prosecute the same, against any person usurping, intruding- into, or unlawfully holding any franchise, or office in any city, borough or town' cor- porate; provides for its speedy determination; and directs that if the defendant be convicted, jtidgment of ouster (as well as fine) may be given against him, and that the relator shall pay or receive costs accord- ing to the event of the suit." The original common-law writ was a civil writ, at the suit of the crown; and the first process was a sum- mons. This writ fell into disuse, and its place was supplied by an " information in the nature of a quo warranto,^'' a criminal method of prosecution. Long before our Eevolution^'however, it lost its character as a criminal proceeding in every thing except form, and was " applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrong- ful possessor." Such, without legislation, has been its » Jerome v. Kio Grande County, 18 F. R. 873 (1883). ^ See generally 31 Am. Law Rev. 578-92 (1887), cases. 3 Goldman v. Conway County, 2 McCrary, 337 (1880), 4 3 Bl. Com. 363; 3 id. 485; 4 id. 312. 63B1. Com. 363-64; 13Fla.319; 33 Miss. 523; 23Wend. 537, 591-94; 34 Wis. 197; 25 Mo. 555; 69 GaJ 524. character in many of the States ; in others it has been treated as criminal in form.* Where it is regarded as a civil action all the evi- dence required to prove any particular fact is a bare preponderance. ^ The judgment may be that the franchise usurped be seized into the sovereign's hands, if it be one which the sovereign can repossess and enjoy, or it may be a judgment of ouster. Strictly, a judgment of seizure or ouster suspends the right to exercise the franchise." The writ raa^ not lie to try the right to an elective office, where remedy by contest of the election is con- templated;* nor for an abuse of office that does not amount to a cause of forfeitiu-e.^ It is the proper remedy for trying the right to a charter, municipal, county, or State office, or an office in a society incorporated for any piurpose whatever. Questions as to when the writ will be granted, and in whose name, whether to a private relator, the at- torney-general or the district-attorney, the regularity of process, and the pleadings and practice generally, are determined by the law of the particular jurisdic- tion.* Warrantia ehartse. A vi^arranty of deed, or of title. A writ vrhich lay against the warrantor of a title to compel him to assist the tenant with a good plea or defense, or else to render damages and the value of the land, if recovered against the tenant.^ The remedy is now by an action of covenant against the grantor, or his real or personal representatives, to recover compensation in damages for the land lost upon eviction, on the ground of failure of title. ^ WARRANTY. See Warrant; Wak- EANTIA. 1. In conveyancing, a covenant whereby the grantor, for himself, and his heirs, war- rants and secures to the grantee the estate granted.' Warrantee. He to whom a warranty is made. Warrantor. He who makes a warranty. " Warranty " and "guaranty" are identical in sig- nification and effect; the one usually denoting a cove- nant in a conveyance, the other a parol promise.^" Speaking generally, " warranty " is applied to a 1 Ames u Kansas, 111 U. S. 460-61 (1884), cases, Waite, Chief Justice. = State V. Wilson, 30 Kan. 669 (1883). s Campbell v. Talbot, 133 Mass. 177 (1882), oases. 4 Commonwealth v. Leech, 44 Pa. 332 (1863); ib. 341 ; 28 id. 9. ' Cleaver v. Commonwealth, 34 Pa. -283 (1869). " See generally People v, Rensselaer & Saratoga E. Co., IS Wend. 125 (1886), cases: 30 Am. Deo. 44-52; case's; R. S. § 663, cl. 14; § 629, p. 112; § 1786. ' [3 Bl. Com. 300. » 4 Kent, 469-72. » [2 Bl. Com. 300. i» [Ayres v. Findley, 1 Pa. 601 (1845), Gibson, C. J. WARRANTY 1105 WARRANTY contract as to title, quality or quantity of a thing sold; " guaranty " to the contract by which one per- son is bound to another for the fulfillment of the promise or engagement of a third party. > Iiineal ■warranty. Where- the heir de- rived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor who made the war- ranty. Collateral warranty. Where the heir's title neither was, nor could have been, derived from the warranting ancestor.^ In both species, the obligation of the heir, in case the warrantee was evicted, to yield him other lands in their stead, was on the condition that he had other sufHoieut lands by descent. And in case of lineal war- ranty, whether assets descended or not, the heir him- self was barred from claiming the land.^ The remedy by the ancient warranty never had any practical existence in any part of the United States. It has been superseded by personal, covenants, which do not run with the land, but affect the covenantor and assets in the hands of his representative after death.* See Assets, Real; Vouch, 1; Warraktia, Chartse. General warranty. A covenant on the part of a grantor that he, his heirs, executor, and administrator, shall warrant and defend the title conveyed, to the gi-antee, his heirs and assigns, forever, against the lawful claims of all persons. Special warranty. That the title is free from incumbrances made or suffered by the grantor, and that he, his heirs, etc., shall warrant and defend the same to the grantee, his heirs, etc., against the lawful demands of all persons claiming through him, the grantor. A covenant of general warranty, binding the grantor, his heirs and assigns, runs with the land, and enures to the successive purchasers." A general warranty is in effect a covenant for quiet enjoyment, g. ■». Special warranties are usually given by fiduciary grantors — trustees, executors, mortga- gees with power of sale, assignees, committees, and like persons. Both species are in the nature of real covenants, descending to heirs, and vesting in as- signees and purchasers." See Covenant, Real. I 2. An assurance by the seller of personalty, and as a part of the contract, in recommenda- 1 Sturges V. Bank of Circleville, 11 Ohio St. 169(1860), Sutliff, J. 2 2 Bl. Com. 301. 5 3 Bl. Com. 303; 4 Kent, 468-69. 4 Kent, 470; Sisson v. Seabury, 1 Sumn. 263 (1832j. = Flaniken u Neal, 67 Tex. 633 (1887), cases. « 4 Kent, 471-72. See :Rawle, Gov. Title, 29; Mitchell V. Warner, 5 Conn. 'SIT, 621 (1835). That an after- acquired (g. V.) title enures to the grantee, see Huzzey n. Heffernan, 143 Mass. 233 (1887). (70) tion of the thing sold — its title, quality,! or quantity. Express warranty. No special form of expression is necessary to create this. It is sufficient if there be a representation or any positive affirmation of the state, quality, condition, or fitness of the thing, which enters into the consideration of the sale, evincing an intention to warrant, and so understood and relied upon by the purchaser.^ Whether what was said and done by the seller was a mere expression of opinion or fancy is a question of fact." When the vendee relies upon an express warranty he may recover damages sustained by its breach without tendering the property; though, generally, in order to rescind, he must make a tender.^ Implied warranty. Such as is imputed in law upon the whole transaction : as, that the seller has title, that the goods are fairly merchantable, or will fairly answer the pur- pose for which they are known to be bought ; that the bulk of the goods, sold by sample, corresponds with the sample ; that there are no defects, where the buyer defers to the seller's judgment, except as to obvious de- fects,'' In a mercantile contract, a statement descriptive of the subject-matter, or of some material incident, such as the time or place of shipment, is oMinarily to be regarded as a warranty, or condition precedent, upon the failure or non-performance of which the party ag- grieved may repudiate the whole transaction. ^ Either case or assumpsit wiU lie for a false war- ranty. The declaration need not aver a scienter; and if the averment be made it need not be proved.' See Caveat, Emptor; Sale; Sample; Tender, 2. ' As to the law not presuming a warranty as to quality, see Curtis Manuf. Co. v. Williams, 48 Ark. 330 (1886), cases. a Murray v. Smith, 4 Daly, 379 (1872), cases; Polhemus V. Heiman, 45 Cal. 578 (1873), cases; Beed v. Hastings, 61 111. 266 (1871). As to " warranties " and "conditions," see 20 Am. Law Rev. 649-60 (1886), cases. ssraeltzer v. White, 92 U.S. 39B-96 (1875), cases; 2 Kent, 480. » Story, Oontr. 339; 2 Kent, 478-81; 2 Bl. Com. 151; 17 Am. Law Rev. 423-31 (1881), cases; Barnard v. Kel- logg, 10 Wall, 388 (1870); Shordan v. Kyler, 87 Ind. 41 (1882); Burgess v. WUkinson, 13 R. I. 649 (1882); Hersey V. Long, 30 Minn. 114 (1883); O'Brien v. Jones, 91 N. T. 193 (1883); Drummond v. Van Ingen, 12 H. L. Gas. 884 (1887), cases; 1 Columb. Law T. 111-17 (1888), cases. 'Norrington v. Wright, 115 U. S. 203 (1885), cases. Gray, J.; Mley i>. Pope, ib. 319 (1885); Pope v. Allis, ib. 373 (1885); Dushane v. Benedict, 180 id. 636-41 (1887), cases; Hare, Contr. 538. « Shippen v. Bowen, 123 U. S. 563 (1S87), cases. As to WARRANTY 1106 WASTE 3. A stipulation, on the part of an assured person, that a fact is as stated by him. Answers in applications for life insurance are made warranties by express condition. Tlie effect is that if any answer is not true, however immaterial to the risk, there can be no recovery. In some policies, all statements are put on this footing. But statutes have been passed to restrict the nullifyiug effect of war- ranties on immaterial matters, ^ Aflarmative warranty. The representa- tion of the existence of some fact or state of things, at the time of, or previous to, the making of the policy. Promissory war- ranty. Relates to the happening of some future event, or the performance of some future act. An affirmative warranty is a condition precedent: if not true in fact, the policy does not attach. A prom- issory warranty may be a condition precedent or sub- sequent — is an executory stipulation, has the effect of a representation rather than a warranty. The precise nature is to be ascertained from the language em- ployed, the subject-matter, and surrounding circum- stances. The words of a warranty receive a liberal or a strict construction, to meet the justice of the case. A condition precedent includes what is necessarily im- plied in its terms. But some courts say that there is no difference between warranties, that both species are conditions precedent. ^ In ordfer to constitute a statement a warranty, it must be made a part of the policy, either by appear- ing in the body of the instrument, or by reference therein to some other paper in which it is found. Being a condition precedent, the statement must form part of the contract.' The distinction has been made that a " representa- tion " is a part of the preliminary proceedings which propose the contract, while a "warranty"' is a part of the completed contract; and the former, unless coupled with fraudulent intent, need be only substan- tially true, whereas the latter must be literally ful- filled. Where a policy becomes void by a failure of the warranty, the insured is entitled to a return of the premium, if there be no actual fraud.< See further Representation, 1 (3). warranties in sales by agents, see 18 Cent. Law J. 223- 23 (1884), cases. 1 White u. Connecticut Mut. Life Ins. Co., 4 Dill. 181 (1877), Dillon, Cir. J. See also Jeffries v. Economical Life Ins. Co., 22 Wall. 52-53 (1874); Anderson'!). Fitz- gerald, 4 H. L. C. 484, 495 (1853); Connecticut Mut. Life Ins. Co. V. Pyle, 44 Ohio St. 29-32 (1886), cases. s Cady V. Imperial Life Ins. Co., 4 Cliff. 209-10 (1873), cases, Clifford, J.; James v. Lycoming Life Ins. Co., ib. 280-82 (1874), cases; Phoenix Ins. Co. v. Benton, 87 Ind. 136-87 (1882), cases; Lynchburg Fire Ins. Co. v. West, 76 Va. 682 (1882). s Goddard v. Bast Texas Fire Ins. Co., 67 Tex. 71-75 (1886), cases. 'Tyrie v. Fletcher, Cowp. 668 (1777); Delavigne v. United Ins. Co., 1 Johns. Cas. 310 (1800); Connecticut WAREEN".! A " free warren " is a fran- chise erected for the preservation or custody of beasts and fowls of warren, which, being ferce natura, every one had a right to kill as he could. A franchise invented by the Normans to protect royal game, by giving the grantee sole power of kill- ing, on condition of his preventing other persons from so doing. The name in time designated ground set apart for the breeding of hares and rabbits.^ See Game.I. WASHINGTON CITY. See District, 3, Of Columbia. WASHIIirGTON TERRITOBY. See Territory, 2. WASHINGTON'S BIRTHDAY. See Holiday. WASTE.3 Deterioration; destruction. 1. Any squandering or misapplication of property or of a fund by trustees or others charged with a duty, or any aliuse of trust or of duty by which property is lost or an estate or trust fund is diminished in value.* If an executor or administrator be extravagant, it is a species of "devastation or waste" of the sub- stance of the deceased.' 3. A spoil or destruction in houses, gar- dens, trees, or other corporeal hereditament, to the disherison of him that has the remain- der or reversion in fee-simple or fee-tail. Whatever does a lasting damage to the free- hold or inheritance. 8 A spoil and destruction of the estate, in houses, woods, or lands, by demolishing not" the temporary profits only but the very sub- stance of the thing, thereby rendering it wild and desolate, which the common law ex- presses by the word vastumj Spoliation or destruction to lands or other corporeal hei'editaments by a tenant to the prejudice of the reversioner or remainder- man." Any unlawful act or omission of duty on Mut. Life Ins. Co. v. Pyle, 44 Ohio St. 31-32 (1886), cases; 3 Kent, *341; May, Ins. § 4. ' F. war-enne, a preserve for animals. = 2 Bl. Com. 38-39; 4 Law J. 648. ' L. vastiis, empty, desolate, devastated. * Ayers v. Lawrence, 66 N. T. 197 (1874), AUen, J. » 2 Bl. Com. 508; 3 id. 292. •2 Bl. Com. 281: Coke, Litt. 53. ' 3 Bl. Com. 233. 8 Ayers v. Lawrence, supra. See also 1 Saw. 437; 59 Miss. 804; 29 Mo. 327; 3 N." H. 107; 13 Pa. 440; 63 Wis. 60; 107 U.S. 393. WASTE 1107 WATER the part of the tenant which reaults in per- manent injury to the inheritance. 1 An improper destruction or material alter- ation or deterioration of the freehold, or of things forming an essential part of it, done or suffered by a person rightfully in posses- sion as tenant, or having but a partial estate, like that of a mortgagor, 2 Double waste. Committing a new act of waste in providing against another act ; as, felling timber for repairing a house suf- fered to be out of repair. 3 Legal "waste. Such waste as a court of law may restrain. Equitable waste. Sucli as a court of equity alone can restrain ; as, injury to a reversion or remainder. Nul waste. No waste : a plea forming the general issue in an action of waste. Permissive waste. A matter of omis- sion only ; as, by suffering a house to fall for want of necessary repairs.* Also called pas- sive waste. " Arises from mere negligence, and want of suffi- cient care in reparations, fences, and the like." ^ Voluntary waste. An actual and de- signed demolition of lands, woods, and houses.5 Also called active waste. Writ of waste. An action, brought by the immediate reversioner or remainderman, to recover the land and damages for its ill- use.* Removing a tiling once iixed to the freehold is waste; and, up to 1708, negligence in a lessee by which the house was bmrned; cutting down timber or caus- ing it to decay, but not so as to underwood; convert- ing land from one species to another; opening the ground in search of mines. The general heads of waste are then; houses, timber, land; though, what- ever else tends to destroy or depreciate the value of the inheritance is waste. At one time waste was punishable only in a guardian in chivalry, in a tenant in dower, and in a tenant by curtesy; because, the law, which created those relations, afforded a remedy for abuses. In other cases, as in tenancy for life or years, up to 1268, it there was no remedy, the owner of the fee was at fault. The punishment consisted in being required to pay damages, possibly treble dam- ages, and forfeiture of the thing or place.' It is not waste for a mortgagor to remove or change fixtures, to sell timber, to remove coal, stone, or other 1 Whitney v. Huntington, 31 Minn. 462 (1886), Berry, J. " Hamilton v. Austin, 36 Hun, 143 (1885), FoUett, J. 8 Coke, Litt. 53. •• 2 Bl. Com. 281. '3 Bl. Com. 223. See also Peirce v. Burroughs, 58 N. H. 304 (1878), cases. • 3 Bl. Com. 227-28. ' 2 Bl. Com. 281-84. minerals from opened mines, nor growing nursery stock,— if done in good faith in the regular course o£ businessibefore foreclosure proceedings are begun and not in apprehension thereof. ' Modern remedies are by injunction to stay waste where the injury would be irreparable ; and by special action on the case in the nature of waste, to recover It is now a common practice, in cases where irre- mediable mischief is being done or threatened, going to the destruction of the substance of the estate, as, by extracting ores from a mine, cutting timber, or re- moving coal, to issue an injunction, though the title to the premises is in litigation.^ In the absence of an express covenant, there re- sults, from the relation of landlord and tenant, an im- plied obligation on the part of the tenant not to com- mit waste, nor to permit it.* The English doctrine is not fully applicable to a new and unsettled country. Here, regard is had to the condition of the land, and, where the inheritance will not suffer, what good husbandry w^ould direct.^ A tenant for life cannot open new mines, because that wo^ld be a lasting injury to the inheritance; but his right to operate previously opened mines, and work them to exhaustion," cannot be questioned.* See Devastavit; Estrepement; Fixture; Impeach, 1; Manure; Mortgage; Tenant. WATCH. 1. See Bagqaqe ; Jewelet. 3. See Death-watch ; Ward, 1. "Watchman. A condition in a policy requiring that a watchman be kept on certain premises as long as an insured mill, standing thereon, remained idle, was held to be complieij with by the watchman con- tinuing in close proximity to the property, in a location from which he could speedily discover the inception of a ]3re.' WATER. Being a movable, wandering thing, of necessity continues common by the law of nature ; so that one can only have a temporary, transient, usufructuary property in it.^ The grantee of land has a usufruct in the water. The limitation is, the use must not interfere with pub- lic navigation, nor, in a substantial degree, diminish and impair private rights of use in other proprietors.' ' Hamilton 11. Austin, 36 Hun, 143 (1886). ' 4 Kent, T7-86. s Ehrardt v. Boaro, 113 V. S. 639 (1885), cases. 4 United States v. Bostwick, 94 U. S. 65-66 (1876), cases; Calif oi'nia Dry-Dock Co. v. Armstrong, 17 F. K. 216 (1883), cases. " Drown v. Smith, 55 Me. 143-44 (1862), cases; Keeler V. Eastman, 11 Yt. 294 (1839); Lynn's Appeal, 31 Pa. 46 (1857;; 66 id. 119. ' Eley's Appeal, 103 Pa. 307 (1883), eases. ' Sierra Company v. Hartford Fire Ins. Co., Sup. Ct. Col. (1888): 27 Cent. Law J, 452-54 (1888), cases. S2B1. Com. 14, 18; 5 Conn. *518-19. ' Washington Ice Co. v. Shortall, 101 111. 54 (1881), cases ; Eed River Roller MUls v. "Wright, 30 Minn. 252-54 (1883), cases. WATER 1108 WAY A grant of land carries title to the center of an un- navigable boundary stream, and includes bed, islands, water, and ice.' Water companies. See Monopoly. Water-course. A stream of water, usu- ally flowing in a definite channel, having a bed and sides or banks, and discharging itself into some other stream or body of water. 2 A living stream with defined banlfs and channel, not necessarily running all the time, but fed from other and more permanent sources than mere surface water.^ Consists ot bed, banks, and water. The water need not flow continually; many water-courses are some- times dry.* The term does not include occasional bodies of sur- face water at certain seasons descending from the hills down ravines without any definite channel.' - The size of the stream is not material. There must he a stream in fact, as distinguished from surface drainage occasioned by freshets. Where water has a definite source, as, a spring, and takes a definite chan- nel, it is a water-course, and no person through whose land it flows has a right to divert it from its natural channel so as to injure another land-owner.* See Spring. • ' ^ A natural water-course may be created by the flow of surface water.' Mere surface drainage over one tract of land to an- other, through a ditch, does not constitute a water- course.8 Water-mark. High and low watei-- marks, referred to as boundaries, mean the place to which the water ordinarily ascends or descends.' Where the tide ebbs and flows, the line of high water is marked by the periodical flow of the tide, excluding the advance of waters above this mark by winds and storms, and by freshets or floods; and the line of low water-mark is the furthest receding point of ebb and flow.w 1 3 Kent, 427-^2; Angell, Water-Cour. § 5; 13 R. I. 614. ' Luther v. Winnisunmet Co., 9 Cush. 174 (1851), Big- elow, J. » Jeflers v. JefEers, 107 N. Y. 651 (1887). » Angell, Water-Cour. § 4; 26 Cent. Law J. 26-^1 1 ' Weis V. City of MadiSon, 75 Ind. 253 (1881), cases; 27 id. 556; 37 id. 228; 41 id. 320; 30 Conn. 180; 75 Ind. 263; 25 Kan. SlO; 07 Me. 356; 12 N. J. B. 280; 16 Nev. 317; 10 Oreg. 76; 37 Wis. 226. • Pyle V. Richards, 17 Neb. 182 (1885), cases. 'Kelly V. Dunning, 39 N. J. B. 483 (1886), cases. 6 Stanchfleld v. Newton, 142 Mass. 110, 116 (1886)., • Gerrish v. Proprietors, 86 Me. 39.')-96 (1847), cases, Shepley, J.j 1,13 Mass. 238; 60 Pa. 339, '"Howard v. IngersoU, 13 How. 423, 417 (1851), Nelson, J. ; Houghton v. Chicago, &c. E. Co., 47 Iowa, 372 (1877). Where streets had been dedicated as terminating at the Hudson River, and, afterward, the bed in front below high water-mark was flUed in by legislative au- thority and the land so made conveyed by the State to the defendants, who had also succeeded to the title of the original owner and dedicator, it was held that the title to the fiUed-in land was not affected by the dedi- cation, that the streets terminated at the former high water-mark.' See Beach. Water-power. The fall in a stream when in its natural state, as it passes through one's land, or along the boundary of it ; the difference of level between the surface where the stream first touches his land, and the surface where it leaves it.^ See further Aqua; Boundary; Commerce; Drain; Mill; Navigable; Property, Qualified; Riparian; ErvER; Surface; Take, 8; Vessel; Well, 1. WATERING STOCK. See Dividend, 3 ; Stock, 3 (3). WAX. See Seal, 1, 5. WAY. The right of going over another man's ground. ' By right of Kay is generally meant a pri- vate way, v^hich is an incorporeal heredita- ment of tliat class of easements in which a particular person, or description of persons, has an interest and a right, though another person is the owner of the fee of the land in which it is claimed.* A right to pass over another's land more or less frequently according to the nature of the use to be made of the easement." The privilege which one person, or descrip- tion of persons, may have of passing over the land of another in some particular line.^ Referring to a railway, a right of way is a mere easement in the lands of others, ob- tained by lawful condemnation to the public use or by purchase.' It is a way over which the company has to pass in the operation of its trains. The term includes land acquired for necessary side tracks and turnouts, and the improvements thereon, s ' City of Hoboken v. Pennsylvania E. Co., IM U. S. 636 (1888). "McCalmont v. Whitaker, 3 Eawle, 90 (1831), Gibson, C. J. ; 62 Me. 91 ; 10 Barb. 521. 8 2 Bl. Com. 35. « Wild V. Deig, 43 Ind. 468 (1873): Angell, Highw. 1-2. "Bodflsh V. Bodflsh, 105 Mass. 819 (1870), Ames, J. « Kripp V. Curtis, 71 Cal. 63 (1886), Searls, C. ' Williams v. Western Union E. Co., 50 Wis. 76 (1880), Orton, J. 8 Pfaff V. Terre Haute, &c. E. Co., 108 Ind. 144 ( cases. WAY 1109 WAT . It sometimes refers to the mere intangible right of crossing; often, to the strip -which the company appropriates for its use, and upon which it builds its road-bed. i This incorporeal hereditament is a right of passage over another man's grovmd, and arises by grant from the owner of the soil, by presoriptiqn, which supposes a grant, or from necessity. To be a freehold right it must be created by deed. It imports a right of pass- ing in a particular line. If it be a right of way in gross, or a mere personal right, it dies with the per- son. As appendant or annexed to an estate, it may pass by assignment of the land. A right of way from necessity arises, as an incident, where one sells an- other land which is surrounded by other land of the vendor: the grant of land, or the use of a house, etc., carries the right of ingress and egress. The tempo- rary right of going upon adjoining land, where the highway is Impassable, applies solely to public ways." A " way appurtenant " is incident to the estate, in- heres in it, and goes with it on a transfer as essential to its enjoyment. " A right of way in gross " is per- sonal to the grantee, and not assignable or inherit- able.^ What is a reasonable use of a way, where the pur- poses are not defined in the grant, is a question of fact, to be determined upon evidence. A grant without re- striction is understood to be general for all purposes.' A grant of way across one's land does not imply that It is to be open and free from gates, unless the nature of the use indicates that it should be unob-, strueted. Nothing passes as an incident to the grant of an easement but what is requisite to the fair enjoy- ment of the privilege. ° Private ■way. A way established by law for the particular benefit or accommodation of individuals, such as lead from a county or town road to the farms or dwelling-houses of private individuals, and which are to be maintained and kept in repair by those for whose accomijiodation they were estab- lished.6 Public way; highway; public high- way. A lawful public road.'' > [Keener v. Union Pacific E. Co., 31 F. E. 188 (1887), Brewer, J. "3 Kent, 419-21, 424; 2 Bl. Com. 36. As to ways of necessity, see further City of London v. Eiggs, 37 Eng. E. 1 (1880)1 Linkenhokerr. Graybill, 80 Va. 838-39 (1885), cases; Kripp v. Curtis, 71 Cal. 65 (1886); as to ways of coiivenience, 17 Cent. Law J. 127 (18S7) — Can. Law J. 'Hall V. Armstrong, 53 Conn. 566 (1885), cases, Loomis, J. «EoweIl V. Doggett, 143 Mass. 487 (1887); Washb. Sase. 254 282. » Whaley v. Jarrett, 69 Wis. 615 (1887), cases; Washb. Ease., 3 ed., 230-31, 264. 'Jones V. Andover, 6 Pick. 60 (1827), Parker, C. J.; 66 Ga. 468; 16 Gray, 179; 24 N. H. 118. » Vantilburgh ti. Shann, 24 N. J. L. 744 (1853). "Highway" applies to all great roads leading from town to town, to markets, and to public places, and denotes a way that is common to all passengers.' A " highway " is a road open to the public for use , in their own vehicles. In a special connection may include a railroad, Plank and macadamized roads are highways in a strict sense. ^ " Highway " is a generic name, embracing every kind of way common to all citizens, whether a foot- way, a horse-way, a cart-way, or way by water, how- ever laid out originally and under whosesoever's charge. Eoads are divided into "highways" and "private ways." Highways are subdivided into " public highways " and " neighborhood roads." " A highway is nothing but an easement, compre- hending merely the right of all individuals in the com- munity to pass and repass, with the incidental right in the public to do all acts necessary to keep it in repair.' Every thoroughfare which is used by the public is a highway, whether it be a carriage way, a horse way, a foot way, or a navigable river. It is the genus of all public ways. The presumption is that the owners of the land on each side go to the center of the road, and they have the exclusive right to the soil, subject to the right of passage in the public' A railroad is a public highway — a road for public use. And a State may impose a tax in furtherance of that use. The same is true as respects turnpikes, bridges, ferries, canals, etc. The public have in " common roads " a mere right of passage, no right of possession or occupation." In most cities, the lee of the land belongs to the ad- jacent owner, and, upon discontinuance of the street, the possession reverts to him.' The State has an easement to adapt the sti'eets of a city to easy and safe passage." The duty of a municipality being to keep ways free from defects — in good repair, it will be held liable for an injury from an obstruction placed on a street by a third person, where the obstruction remains long enough to charge the authorities with notice.' Every parish is bound of common right to keep the highroads that go through it in good repair, unless the care is consigned to a particular person. From this burden no man was exempt by early law. About > Harding v. Medway, 10 Met. 469 (1845), Hubbard, J. 2 Flint, &c. E. Co. v. Gordon, 41 Mich. 428-29 (1879), Cooley, J. s State V. Harden, 11 S. C. 338 (1878), Haskell, A. J. ' Peck V. Smith, 1 Conn. 132 (1814), Swift, J. See also State V. Davis, 80 N. C. 332 (1879). » 3 Kent, 432. Boston & Albany E. Co. v. Boston, 140 Mass. 87-^ (1885), cases — as to a "public foot-way." » Olcott V. Supervisors, 16 Wall. 694-97 (1872), cases. 'Banks v. Ogden, 2 Wall. 69 (1864); Barnes v. Dis- trict of Columbia, 9l U. S. 556 (1875). s Transportation Co. v. Chicago, 99 U. S. 641 (1878). « Merrill v. City of Portland, 4 Cliff. 145-46 (1870), cases. WAYS AND MEANS 1110 WEAR AND TEAR 1530, the care of roads was first left to the parishes, and the care of bridges to the county at large; for neglect a parish could be indicted. About 1555, and later, in 1773, by statute 13 Geo. in, surveyors of the highways were chosen in eveiy parish, empowered to call the parish together, and set the people at the work pf repair, the owners of teams and of lands being each required to send a team, and other persons between eighteen and sixty-five required to work in person or by substitute, or else to compound with the surveyors at certain rates. When the personal labor of a parish was inadequate for the work of repair, the surveyors, with the approval of the court of quarter sessions, were authorized to levy a tax on the parish in aid of the personal duty.* See further Alley; Along; Boundary; Dedica- tion, 1; Easement; Filum, Vise; Necessitas, Trinoda; Ntjisancb; Boad, 1; Street; Travel. WAYS AND MEANS. The committee of or on ways and means, in a legislative as- sembly, is charged with the duty of inquir- ing into and recommending the ways and means for raising funds for the uses of gov- ernment. The " committee of supply " considers what specific grants of money shall be voted as supplies demanded by the crown for the service of the current year, as explained by the estimates and accounts prepared by the executive government, and referred by the house to the committee. The " committee of ways and means " determines in what manner the necessary funds shall be raised to meet the grants which are voted by the committee of supply, and which are re- quired for the public service. The former committee controls the public expenditure; the latter provides the public income : the one authorizes the payment of money, the other sanctions the imposition of taxes, and the applicatioji of revenues not otherwise applica- ble to the service of the year." WEAPON. While the right of the peo- ple to bear arms, that is, to own and preserve weapons for warfare, is secured by the con- stitutions, statutes may prohibit, as a police regulation, the carrying of "concealed," "deadly" or "dangerous" weapons. Concealed weapon. A weapon willfully and knowingly covered or kept from sight.' The purpose of statutes forbidding the carrying of concealed weapons is to protect individuals against sudden, imexpected, dangerous and perhaps deadly violence inflicted with weapons which the assailant has concealed in some way about or conveniently near his person, and which he may use under sudden im- pulse, or deliberately and unfairly against one taken unawares; and to conserve the public peace and safety.* > 1 Bl. Com. 857-59. 2 May, Parliamentary Law, 41. ' Owen V. State, 31 Ala. 889 (1868), Eioe, C. J. < State V. McManus, 89 N. C. 559 (1883), Merrimon, J. Until a pistol has lost so many of Its parts as to cease to be a fire-arm, carrying it concealed, without sufficient excuse, is indictable.^ The weapon (a pistol) need not be complete in all its parts or capable of direct and immediate use.' The implement must be carried about the person, accessible for use ip fight, and so hidden from general view as to put others off their guard. If a pistol is worn concealed, the jury may presume it was loaded and worn as a weapon; but the presumption is rebut- table.s Dangerous weapon. A weapon danger- ous to life, as actually used. A weapon likely to produce death or great bodily injury.* In many cases the court may declare that a partic- ular weapon was, or was not, a dangerous weapon; and, when practicable, it is the court's duty to do so. But where the weapon might be dangerous or not, ac- cording to the manner in which it was used or the part of the body struck, the question must be left to the jury.* That a loaded pistol is both a dangerous and a deadly weapon, the courts will notice without proof.* Deadly weapon. Includes any weapon with which a person may be wounded by cutting or stabbing. ^ A weapon likely to produce death or great bodily harm.' A hoe is per se a deadly weapon. ^ I£ a deadly weapon be used in a case of homicide in the manner in which it would be likely to produce death, the presumption of an intention to kill arises. Otherwise, if used so as not naturally to produce death.' See Arms; Carry, 3; Contract; Defense, 1; Jour- ney; Loaded; Shooting; Travel; Thrust. WEAR AND TEAR. "Natural and reasonable wear and tear " means deteriora- tion by use, aild does not include damage by operation of nature, as, by a freshet.w ' Atwodd V. State, 63 Ala. 609 (1875); Hutchinson v. State, 68 id. 3 (1878); Evins v. State, 46 id. 88 (1871); Williams v. State, 61 Ga. 417 (1878); Cook v. State, 11 Tex. Ap. 19 (1881). = Eedus V. State, 82 Ala. 63-54 (1886). ' Carr v. State, 34 Ark. 448 (1879). ' United States v. Williams, 2 F. E. 64 (1880), Deady, Dist. J. 5 United States v. Small, 2 Curtis, 343 (1855), cases, Curtis. J.; State v. Dineen, 10 Minn. 411 (1865); Doering V. State, 49 Ind. 58 (1874). •Commonwealth v. Branham, 8 Bush, 888 (1871), Hardin, J.; Zid. 105. ' Kouns V. State, 3 Tex. Ap. 15 (1877), White, J. ; 4 id. 328; 43 Tex. 98. 8 Hamilton v. People, 113 HI. 38 (1885). » Hanvey v. State, 68 Ga. 615 (1882); Moon v. St?,te, ib. " Green v. Kelly, 30 N. J. L. 547 (1845). WEARING APPAREL 1111 WEREGILD A tenant from year to year is not liable for per- missive waste, and is to make good mere wear and tear.' He is only bound to keep the leased house " wind and water" tight." See Lease. ^ WEABING APPAREL. See Apparel ; Baggaqb. WEBSTER'S CASE. See Homicide; Mauce, Aforethought. WEEK. A period of time commencing on Sunday morning and ending at midnight Saturday ; also, a period of seven days' dura- tion, without reference to the time when it commences.' "Once a week" means once between each Sunday and Saturday night, the particular time of the week not being important. 3 The first publication of a notice of a sale under a power contained in a mortgage, which requires the notice to be published " once a week for three succes- sive weeks," need not be made three weeks before the time appointed for the sale.* See Day; Month; Newspapek; Time; Yeak, WEIGHT. 1. Heaviness, gravity. " The Congi-ess shall have Power . . To fix the Standard of Weights and Measures." ' This power has not as yet been fully exercised. The States, in the'exercise of the police power, may com- pel conformity with a fixed standard. The weights in use are the avoirdupois and troy systems." See Ih- SPECTioN, 1; Metric System; Net; Ton. 3. In the figurative sense of ponderance or preponderance, is used of evidence, cases, authorities. See Peeponderance. WELFARE. Well-going, well-being ; prosperity in its most comprehensive sense. " We the People of the United States, in Order to . promote the general Welfare . . do ordain and establish this CoNSTiTnTioN. . ." ' " The Congress shall have Power To Lay and col- lectTaxes, Duties," etc., to "provideforthe . . gen- eral Welfare of the United States. . ." » Promote the general welfare. This phrase was adopted from the Articles of Confederation, and, though seemingly vague, » Torriano v. Toung, 6 Car. & P. 8 (1838). » Anworth v. Johnson, 6 Car. & P. 239 (1832). See; generaUy Taylor, Land. & T. § 343; 1 Wood, Land. &' T. S 365. » [State V. Yellow-Jacket, &c. Mining Co., 5 Nev. 430 (1868), Beatty, 0. J.; EontendorflE v. Taylor, 4 Pet. 861 (1880); Steinle v. Bell, 12 Abb. Pr. 176 (1872). * Dexter v. Shepard, 117 Mass. 484 (1875); 1 id. '254 » Constitution, Art. I, sec. 8, cl. 6. « See 1 Bl. Com. 274; Social Science Assoc, 1871, B78. On the "weight of authorities," see 10 Va. Law J. 582 ■(1886). ' Constitution, Preamble. • » Constitution, Art. I, sec. 8, ol. 1. was employed in a rigidly restrictive sense to signify ' ' the concerns of the Union at large, not the particular policy of any State." ' Experience had proved to the people that they re- quired a national government for national purposes. The separate governments of the separate States, bound together by the Ai-tioles of Confederation alone, were not sufficient for the promotion of the general welfare of the people in respect to foreign nations, or for their complete protection as citizens of the con- federated States. For this reason they established the government of the United States, and defined its pow- ers by a constitution, which they adopted as its funda- mental law, and made its rule of action." See Police, 2; Pkeamblb; Peohibition, 2; Tax, 2. WELL. 1, n. An artificial excavation and erection in and upon land, which neces- sarily includes and comprehends the sub- stantial occupation and beneficial enjoyment of the whole premises on which it is situ- ated.' A person has a right to dig a well on his land for water for his own use, although the effect may be to dry up the spring of a neighbor. But if he acts in bad faith, he may be liable in damages.* Making dry a well by taking lands for a public use constitutes an element of damages for which compen- sation must be made.* See Appendage; Grant; Land; Water. S, adv. Agreeably, suitable, adequately, fully; properly, legally. ' Thus, a demurrer admits such facts as are well pleaded, that is, properly pleaded.' A bill may well be brought as an original bill.'' A power is sometimes said to be well executed.' A jur.y is sworn to well and truly tiy the issue. Well knowing charges knowledge in a defendant to an action on the case. See Bad, 2; III, 2. i WEREGILD.s in old English law, a • pecuniary satisfaction paid to a party injured, or to his relatives, to expiate an enormous of- fense, most commonly homicide.'" The custom originated with the ancient Germans. For homicide, Athelstan (and other rulers) graded the "2 Bancroft, Const. 208 (1882), abr. ed. 368 (1884), quoting Washington. "United States v. Cruikshank, 92 U. S. 649 (1876), Waite, C. J.; 1 Story, Const. §§ 497-506. 3 Johnson v. Eayner, 6 Gray, 110 (1856), Bigelow, J. See Mixer v. Reed, 25 Vt. 257 (1863). • Chesley v. King, 74 Me. 170-71 (1882), cases; Buck- ingham V. Elliott, 62 Ga. 296 (1884). » Trowbridge v. Brookline, 144 Mass. 141 (1887), cases; Ballard v. Tomlinson (Eng.), 24 Am. Law Rev. 634, 638- 40 (1885), cases. « 91 U. S. 536; 2 Black, 523. ' 14 Wall. 83. » 7 Pa. 530. » Were'-glld. A. S. were, a man; geld, money: the value of a life. '» [4 Bl. Com. 313. WESTMINSTER ins WHEN amount according to the rank of the deceased, from peasant to kingi In the time of Henry I, other offenses were made redeemable. A private process seems to have been allowed for recovering the amount. See Appeal, 3; Caput, ^stimatlo. WESTMINSTEE. Up to 1180, the court of common pleas followed the king's house- hold from one end of the kingdom to the other. For the convenience of suitors, Magna Charta provided that the court should "be held in some certain place." This place has ever since been Westminster, or Westminster Hall, where the aula regis originally sat, when the king resided there, i WHABF. A structure erected on a shore ' below high-water mark, and sometimes ex- tending into the channel, for laying vessels alongside to load or unload, and on which stores are often erected for the reception of cargoes. 2 A sort of quay (q. v.) constructed of wood or stone, on the margin of a road-stead or harbor, alongside of which ships or lighters are brought for convenient loading or un- loading.3 A structure, on the margin of navigable waters, alongside of which vessels can be brought for the sake of being conveniently loaded or unloaded. ^ A paved street extending to the water's edge and used by vessels as a place for receiving and discharg- ing freight and passengers may be designatt^d as a *' wharf." ^ Wharfage. The fee paid for tying vessels to a wharf, or for loading goods on a wharf or shipping them therefrom.* " A toll or duty for the pitching or loading of goods upon a wharf." "Money paid for landing goods at a wharf or quay, or taking goods into a boat and from thence." ^ A municipal corporation, owning wharves for the benefit of persons engaged in commerce upon the pub- lic navigable waters of the United States, may collect from those persons such reasonable fees as will fairly remimerate it for the use of the property.' > 1 Bl. Com. 23; 3 id. 38. See JeafEresou, "Lawyers: " 3 Leg. Qaz. 408. ' Doane v. Broad Street Association, 6 Mass. 334 (1810), Parsons, C. J. , » Giger v. Pilor, 8 Fla. 333 (1859), Blatzell, C. J. < Langdon v. Mayor of New York, 93 N. Y. 151 (1883), Earl, J. ' City of Keokuk v. Keokuk Northern Packet Co., 45 Iowa, 206 (1876). 'Kusenberg v. Browne, 42 Pa. 179 (1862); Town of Pelham v. The Woolsey, 16 F. E. 423 (1883). 7 Packet Co. v. St. Louis, 100 U. S. 423 (1879); Vicks- The power of the State includes the power to dis- criminate as to the rates between different classes and vessels employed in different occupations.^ But care must betaken that the exaction is not a " duty of tonnage." * Wharfage is a charge for the use of a wharf. This must be reasonable. But a "private wharf," that is, a wharf which the owner has constructed and reserves for his private use, is not subject to this rule. That a private wharf may be had, even on a navigable river, is not open to controversy; but whether it may be maintained as such, where it is the only facility of the kind, may be questioned. . The regulation of wharves belongs prima facie and in' the first instance to the States, and would only be assumed by Congress when its exercise by them became incompatible with the interests of commerce.^. To create a lien for wharfage, the contract must be made by a person who has authority to pledge the vessel. A sheriff who attaches a vessel is not such person.* A city which is in possession of a wharf, exercising exclusive control over it, and receiving tolls for its use, is bound to keep it in condition for use.* See Admiralty; Commerce; Dockage; Riparian; Tonnage, 2. Wharfinger.^ One who keeps a wharf for receiving goods for hire. His responsibility begins when the goods are de- livered on the wharf, and he has received them, ex- pressly or by implication.' He is a bailee for hire, held to ordinary care only. He must use reasonable care to keep the dock in re- ■ pair for the vessels he invites to enter. i^ See Dock, 2. WHEEL. See Jury; Lottery. WHEN. Standing unqualified, in a will, is a word of condition, perhaps equivalent to "if." The context niiy show that the pos- session, not the vesting, of the gift, is meant.' burg u. Tobin, ib. 430 (1879); Ouachita Packet Co. i;. Aiken, 121 id. 444 a887), cases. ' The Barge Welch, 9 Bened. 614 (1878). 2 Cannon v. New Orleans, 20 Wall. 577, 580 (1874); Sxp. Easton, 95 U. S. 68 (1877); Packet Co. v. Keokuk, i6. 88 (1877) : 45 Iowa, 196 ;,Ouachita Packet Co. ■«. Aiken, 4 Woods, 211 (1883); s. o. 16 P. R. 892. s Transportation Co. v. Parkersburg, 107 U. S. 698, 699, 703 ,(1882), cases, Bradley, J. See generally 22 Am. Law Reg. 588-605 (1883), cases; 16 P. R. 894-96 (1883), cases. < The Mary K. Campbell, 81 P. R. 840 (1887), Wallace, Cir. J. » Pittsburgh v. Grier, 22 Pa. 64 (1863); City of Alle- gheny V. Campbell, 107 id. 535 (1885); Joyce v. Martin, 15 R. 1. 658 (1887); 1 Thomp. Neg. 316. 8 Wharf '-in-jer, for wharfoffer. ' Rodgers v. Stophel, 32 Pa. 113 (1858). 8 See Roberts v. Turner, 12 Johns, *232 (1815), cases; Blm V. Mayo, 10 Vt. 60 (1838), cases; New Orleans, &o. R.Co. V. Hanning, 15 Wall. 659 (1872); Nickerson u Tir-' rell, 127 Mass. 239 (1879), cases. »2 Jarman, Wills, 417-21, cases; 3 Ired. Eq. 323; S WHEREAS 1113 WIDOW Though the word may import a contingency, as, tor instance, in the case of a legacy to A "when he attains twenty-one," without more, yet it is settled that it may marii the period at which the estate is to take effect in enjoyment, and not as postponing the period of vesting. 1 " "When," like " if," is ordinarily a word of condi- tion, or of conditional limitation; but tliis meaning may be controlled by language showing that the estate is to be vested. 2 Whenever. Though often equivalent to " as soon as," is frequently used where the time intended is, and will be, until arrival, or of some uncertain period at least, indetermi- nate. 3 " Whenever " and its synonyms, referring to the time when property is to be enjoyed, ai'e among the most ordinary words used in creating a vested re- mainder, and cannot be relied upon as creating a con- tingent remainder.* Compare Then. WHEREAS. Involving recital, cannot be used where direct, positive averment is required; as, in pleadings, q. v. See also Becital. WHEREUPON. Denotes sequence, suc- cession, order of action, relation, a thing done with reference to something previously done ; is interchangeable with the words "upon which," "after which." 5 WHILE. Compare Dum. WHIP HAND. See Eoad, 1, Law of. WHIPPING. Punishment by the in- fliction of stripes. Whipping-post. A stake to which an ofifender is tied to receive stripes; punish- ment by whipping. At common law, whipping was inflicted on inferior persons for petty larceny and vagrancy, and it ac- companied sentences of imprisonment in a few other cases.* Abolished, as to female delinquents, by 1 Geo. IV (1820), c. 57. Later statutes, notably 24 and ^ Vict. (1861J, and 26 and 27 Vict. (1863), prescribe the offenses, ageg, number of strokes, and the instrument. The punishment of whipping shall not be inflicted.' The Great Law of the Provmce of Pennsylvania, by enactment of 1684, provided that twenty-one stripes Jones, Eq. 347; 6 Ves. Jr. 243; 16 C. B. B9; 7 Ves. 432; 11 id. 489. iMinnig v. Batdorfl, 5 Pa. 606 (1847), cases; Letch- worth's Appeal, SO id. 175 (1858); 1 Call. 175; 5 Watts, 436. ! Sutton V. West, 77 N. C. 431 (1877); Fisher v. John- son, 38 N. J. E. 47 (1884). » Eobinson v. Greene, 14 K. 1. 188 (1883), Durfee, 0. J. * Manderson v. Lukens, 23 Pa. 31 (1854). 5 [Lee V. Cook, 1 Wyom. 419 (1878), Peck, J. • 4 Bl. Com. 169. ' E. S. § 6337: Act 28 Feb. 1839. should be inflicted where no other number was pre- sdribed.i The Maryland act of 1882, c. 120, which provides that any person who shall brutally assault and beat his wife, shall, upon conviction, be sentenced to be whipped, not exceeding forty lashes, or be imprisoned for a term not exceeding one year, or both, in the dis- cretion of the court, is not in contravention of the Vlllth Amendment to the Constitution of the United States, which forbids inflicting "cruel and unusual punishments," since that is a restraint upon Congress only : nor is it in contravention of the like prohibition in the constitution of Maryland. The provision ap- pears in 1 W. and M. (1689), stat. 2, c. 2, and in the declarations of the rights of the State promulgated in 1776, i860, 1864, and 1867. From 1776 to 1819, the pun- ishment of whippmg for certain offenses was imposed upon whites and negroes alike, and upon negroes- alone until the adoption of the constitution of 1864. The word " brutal," in the act of 1882, has its ordinary, popular meaning." WHISKEY. See Alcohol; Liquok; Prohibition, 3. WHITE. " White person," as used in the naturalization laws, means a person of the Caucasian' race, and does not therefore in- clude a Mongolian.3 Does not include a person half white and half In- dian.-* But does include one nearer white than black or red.' In the legislation of the slave period, referred to a persoh without admixture of colored blood, whatever the actual complexion might be.' See Citizen; Colob, 1; Mulatto. White acre. See Acee. WHOLE. See Blood. Wholesale. See Retail. WHORE. See Prostitute ; Slander, 1. WIDOW. A woman who has lost her husband by death.' A wife that outlives her husband.^ May refer to the person, not to her state, whether she remain a widow or marry again; as, in a statute giving a widow the right to sue for the homicide of her husband." Whenever a right by law has been attached by rea- ' Linn, 168, 275. 2 Foote V. State, 59 Md. 264, 287 (1882), Stone, J. ; s. o. 4 Cr. L. M. 401. Compare 6 Alb. Law J. 70 (1873); Cooley, Const. Lim. *339-30; 1 Law J. 687; 61 id. 308. ' Be Ah Yup, 5 Saw. 155 (1878), Sawyer, Cir. J. 1 Be Camille, 6 F. E. 266 (1680). » Jeffries D. Ankeny,ll Ohio, 375 (1842); United States V. Barryman, 21 Alb. Law J. 194 (1879): E. S. §§ 21.54- 55; 2 Kent, 72. « Du Val V. Johnson, 39 Ark. 192 (1883), Eakin, J. See also Beardsley v. Bridgeport, 63 Conn. 492 (1885). 'Whitsell V. Mills, 6 Ind. 231 (1866): Webster's Diet. « Claim of Eliza Burr, 11 Op. Att.-Gen. 2 (1863). » Georgia E., &c. Co. v. Garr, 67 Ga. 380 (1876). WIFE 1114 WILL son of widowhood, there must be some law by which it is divested, or it will remain. ^ Widow's appraisement, law, portion, share or third, and renunciation are frequently spoken of. See those words, also Dower; Heir, 1 ; Husband; Qdasah- TiNE, 1; Bepkesentative, 1, Personal; Wife. WIFE. A woman who has a husband living. 2 As used in a will ma.v refer to the wife of the testa- tor at the time he made his will, and not to any wife who might survive him.^ In laws providing f6r alimony and dower after a divorce has been granted, the term " wife " may be re- garded as designating the person, and not the actual existing relation.* See Family; Husband; Settle, 4; Uxor; Widow. WIGaiiESWORTH'S TABLES. See Table, 4. WIGS. Compare Gown. The custom of wearing wigs seems to date back to the remotest antiquity. They were worn in Egypt; reference^ in the classics attest their use in Greece and Rome. The fashion died out; it was revived in France in the time of Henry IH, and became prev- alent in that of Louis XHI, and almost universal in that of Louis 2IV. From France it spread to other countries, attaining its height in England in the reign of Anne. After the Revolution it disappeared in France, and, gradually, elsewhere. From the time of Oeorge III, the fashion began to wane in England, ex- cept among professional men. It prevailed, to some extent, in this country during the latter half of the last century. "The wig of the seventeenth century now holds its place only on the judicial bench " of Great Britain, " and with the speaker of the House of Commons, barristers, and advocates; but even on the bench its use is being threatened.* WILD. See Animal; Land. WILL. 1. The faculty of the mind which makes choice between objects or ends ; the power which directs action; inclination toward action ; desire, purpose, consent, in- tention, volition. As employed in defining the crime of rape, is not construed as implying the faculty by which intelligent choice is made between objects, but as the synonym of "inclination" or "desire;" and in this sense is used with propriety in reference to the actions of per- sons of unsound mind.^ The technical phrase " against the will " charges violence, especially in the commission of such crimes as rape, and robbery from the person. " Against con- ' Commonwealth v. Powell, 51 Pa. 441 (1866). ' People V. Hovey, 5 Barb. 118(1849), Selden, J. s Anshutz V. Miller, 81 Pa. 213 (1876). , 4 Woods 1). Waddle, 44 Ohio St. 467 (1886); McGill u. Deming, ib. 654 (1887). 5 See Encj'. Brit.; 45 Law Times, 273,378 (1868); 37 Litt. Liv. Age, 543 (1853): 12 Penn. Monthly, 834 (1881); Jeaffreson, "Lawyers." < Crosswell v. People, 13 Mich. 437 (1865), Cooley, J. sent " expresses the idea with equal accuracy. In the case of robbery, the greatest degree of terror is not contemplated.' See Violence. On the subject of ill-will, see Malice; as to estates at will, see Tenant, At will. Willful; willfully. In common par- lance "willful" means intentional, as dis- tinguished from accidental or involuntary ; in penal statutes it means with evil "intent, with legal malice, without ground for be- lieving the act to be lawful. 2 The ordinary meaning of "willful," in statutes, is not merely " voluntary," but with a bad purpose. ^ Sometimes it means little more than " in- tentional" or "designed." But that is not its ordinary signification in criminal and penal statutes; in them it most frequently conveys the idea of legal malice in greater or less degree — implies an evil intent with- out justifiable excuse. "Voluntary^' is, therefore, a weaker word: it means simply "willing."* Doing or omitting to do a thing " knowingly and willfully " implies not only a knowledge of the thing, but a determination with a bad purpose to do it or to omit doing it.** " Willful," frequently means more than merely " in- tentional;" it sometimes implies perverseness, delib- erate design, malice.^ " Willfully," in an indictment, implies that the act is done knowingly and of stubborn purpose, but not necessarily of malice.' Referring to an act forbidden by law, means that the act must be done knowingly and intentionally — that with knowledge the will consented to, designed and directed the act.* Only want or defect of will will pi'otect the doer of a forbidden act from the punishment annexed thereto. An involuntary act induces no guilt: the concurrence o£ the will, when it has its choice to do or to avoid an act, being the only thing that renders human action either praiseworthy or culpable. To make a ' 4 Bl. Com. 212, 224. 'State V. Clark, 29 N. J. L. 98 (1860), Whelpley, J.; Thomas v. State, 14 Tex. Ap. 204 (1863); Minkler v. State, 14 Neb. 183 (1S83); United States v. Three Bail- road Cars, 1 Abb. U. S. 201 (1868). = Commonwealth v. Kneeland, 30 Pick. 220 (1838), Shaw, C. J. ' [State V. Preston, 34 Wis. 683-84 (1874), Dixon, C. J.; 10 Ala. 928; 36 id. 285; 37 id. 1S4; 9 Mete. 268. ' Felton V. United States, 96 U. S. 702 (1877), Field, J. 'Wales V. Miner, 89 Ind. 128 (1883), Fi-anklin, C; State V. Smith, 52 Wis. 136 (1881). ' State V. Massey, 97 N. C. 468 (1887). « Woodhouse v. Eio Grande R. Co., 67 Tex. 419 (1887), Stayton, A. J. See also Highway Commissioners v. Ely, 54 Mich. 180-81 (1884), cases. WILL 1115 WILL crime complete there must be both a will and an act. As no temporal tribunal can search the heart or fathom the intentions of the mind, otherwise than as demonstrated by outward actions, it cannot punish what it cannot know. Hence, an overt act, some open evidence of an intended crime, is necessary to demon- strate depravity of will, before a man can be pun- ished. . To constitute a crime against human laws, there must be a vicious will and an unlawful act consequent thereon. The will does not join with the act in three cases; (1) When there is a defect of understanding. Where there is no discernment there is no choice, and where no choice there is no act of the will, which is merely a determination of one's choice to do or to abstain from doing a particular action. (2) Where there is understanding and will sufScient, but it is not called forth or exerted at the time the action is done; as, in cases of chance and ignorance. (3) When the action is constrained by outward force. Here the will disagrees as to the act which the person is obliged to perform. To the first class of cases are referred infancy, lunacy, and intoxication: to the second class, misfortune and ignorance; to the third class, compulsion or necessity,^ QQ-v. See Consent; Crime; Duress; Insanity; Intention; Knovtledge, 1; Malice; Mind; Volo; Voluntary, 1. See also Good- will. 2. The legal declaration of a man's inten- tion which he " wills " to be performed after his death.2 A disposition of real and personal property to take effect after the death of the testa- tor.' It expresses " the will " of the maker as to the direction his property shall take.* A declaration of the mind, either by word or writing, in disposing of an estate; to take place after the death of the testator.' An instrument in any form, if the obvious purpose is not to take place till after the death of the maker, operates as a will. The essence of the definition is, it is a disposition to take effect after death. The form is im- material, if the substance is testamentary. ^ An instrument by which a person makes a disposition of his property to take effect after his decease." A will is to be considered as the " testament," and the instrument. The testament is the result and effect ' 4 BI. Com. 20-22. '2 Bl. Com. 499; Smith v. Bell, 6 Pet. '76 (1872); 127 U. S. 309; 80 Pa. 170; 11 Lea, 323. ' 4 Kent, 501. * McKee v. Means, 34 Ala. 361 (1859), Walker, C. J. » Hubbard v. Hubbard, 12 Barb. 153 (1851), Brown, J., citing 7 Bao. Ab. 299. • Frew V. Clarke, 80 Pa. 178 (1875), cases, Mereur, J. ' Younger v. Duffle, 94 N. Y. 639 (1884), Earl, J. See also Wilis V. Bums, 60 Md. 68 (1882); Cover v. Stem, 67 Md. 449 (1887), Alvey, C. J. in law of what is the will; that consists of all the parts, including a codicil.' See further Testament. Whatever the form of the instrument, it it vests no present interest but only appoints what is to be done after the death of the maker, it is "testamentary." ' If the intention is to convey a present estate, though the possession be postponed until after the death of the maker, the instrument is a " deed; " if an interest accruing after his death, it is a " will." ^ If the disposition necessarily takes effect after the death of the maker, and that intention is clear, the instrument is a will, though the maker supposed it to be some other kind of a paper.* If the Instrument is such that, upon delivery, inter- ests vest, though to be enjoyed in possession in the future, or obligations are created which are enforce- able by the parties respectively, it is a contract inter vivos.'' An instrument in the form of a deed, signed, sealed, and delivered as such, but intended as a posthumous disposition of a maker's property, is testamentary.^ Last will. The last will made. If two or more wills are in contemplation, this ex- pression appropriately designates the one made after the other or others; otherwise, "last" is redundant, the word " will " alone fully expressing the idea. Niineupative will.' Such will as de- pends upon merely oral evidence, being declared by the testator in extremis, before a suflScient number of witnesses, and after- ward reduced to writing.^ In early times, a will of chattels was good without writing — that being then little known. By the time of Henry Vm (1509), reading and writing had become so widely diffused that verbal or unwritten wills were confined to extreme cases. A case of perjury in con- nection with one will, as well as the opportunities for imposition they have ever afforded, caused nuncupa- tive testaments to be placed under restrictions by the Statute of Frauds and Perjuries of 29 Chas. II (1678), c. 3. By 1 Vict. (1837), o. 26, §§ 9, 11,— preceded by 1 Will, rv (1830), c. 20 — the privilege was confined to soldiers " in Actual military service " and to mariners and seamen "at sea," and extended to personalty 1 Fuller V. Hooper, 2 Ves. Sr. S42 (1750), Hardwioke, Ld. C; Alsop's Appeal, 9 Pa. 382 (1848). ' Turner v. Scott, 51 Pa. 134 (X866), Woodward, C. J. s Williams v. Tolbert, 66 Ga. 128 USSO), Crawford, J. : Ga. Code, § 2395; Sperber v. Balster, ib. 317, 321 (1881), Jackson, C. J. * Kelleher v. Kernan, 60 Md. 442-43 (1883), cases, Irv- ing, J. ; Cunningham v. Davis, 62 Miss. 366 (1884). » Book V. Book, 104 Pa. 243 (1883). • Cover V. Stem, 67 Md. 449 (1887), Alvey, C. J.; Ha- bergham v. Vincent, 2 Ves. Jr. 230 (1793). See gener- ally 19 Cent. Law J. 46-50 (1884), cases; 92 Am. Dec. 383-89, cases. On contracts to dispose of property by will, see 37 Cent. Law J. 503 (1888), cases. ' Nun-cu'-pative. L. nomine capere, to call by name; i. e., to declare publicly in solemn words the disposition to be made, or who shall be executor. See Prince v. Hazleton, 20 Johns. 519 ( » 2 Bl. Com. 500. WILL 1116 WILL only. These statutes, which, in substance, have been re-enacted here, receive a strict construction. The deceased must, furthermore, possess testamentary capacity, be in contemplation of death, without time to make a written will, and clearly evince, bywords or signs, an intention to dispose of his property.' In England, while property continued in a man only for his life, wills were unknown. In more modern times, a person could dispose , of but one-third of his movables from his wife and children. No will of lands was permitted till 1541, and then of a portidh only. Indeed, wills and successions are creations of munici- pal law exclusively.* ^ Statute of wills. Statute of 33 Henry "V"III (1541), c, 1, which enabled a person seised in fee-simple, socage tenure, to devise lands according to his own pleasure, except to a body corporate, and enabled a person holding lands in chivalry to devise two-thirds thereof. 3 Later statutes, notably that of 7 Will. IV and 1 Vict. (1837), v;. 26, removed all restrictions. Our ancestors imported the English law on the sub- ject of wills. Statutory regulafions, which are sub- stantially alike in all the States, follow the English statutes, especially the Statute of Wills, so called.'* In New York, for example, every person must de- vise within the limitation of the Statute of Henry VIIE, which became part of her law upon the adoption of the constitution of 1777, and, with modifications, re- mains so to this day.* Power to dispose of property by will rests almost wholly upon statutes, the directions of which must be substantially complied with. No right is now more solemnly assured than the power to dispose of property by will as the owner pleases. This privilege creates an incentive to practice industry and frugality. The law secures equality of distribution when the owner dies intestate. The ob- ject of a will is to produce inequality either in the dis- position or use. to make preferments; and, in this matter, a sane man, not unlawfully influenced, has a right to be governed by his prejudices.^ If a testator does not violate any principle of public policy, religion, or morahty, nor infringe upon any statute, he may make such disposition of his property as he sees proper.' 1 See a Bl. Com. 500-1 ; 4 Kent, 517; 1 Jarman, Wills, 97-98; IWilliams, Exec. 59; Sedfield, Wills, 185; Sykes V. Sykes, 3 Stew. 364 (Ala., 1R30): 20 Am. Dec. 44^8, cases; Moffett v. Moffett, 67 Tex. 643 (1887). a 2 Bl. Com. 12, 211, 491-92. See 20 Am. Law Rev. 502 (1886); Hadley, Rom. Law, 294-335; Maine, Anc.Law, 171-217. 3 3BI. Com. 375. < 4 Kent, 504; Williams, R. P., Ch. X, notes to 4 Am. ed. ; 3 Jarman, Wills, 731, ed. by R. & T. ; 1 Whart, Ev. §884. 6 United States u Fox, 94 U. S. 331 (1876). « McMasters v. Blair, 29 Pa, 304 (1857); Stevenson v. Stevenson, 33 id. 471 (1859); Cauffman v. Long, 82 id. 77-78 (1876). ' Bainbridge's Appeal. 97 Pa. 485 (1881). A will " speaks from the death " of the maker; that is, takes effect, as _respects its dispositions, from the moment of his decease. The testator must be of years of discretion, now generally twenty-one, and of testamentary capacity. The draughting, signing, attesting, publishing, revok- ing, probating, etc., are matters also largely regulated by statutes, and explanatory decisions. An important general principle is that personalty is to be disposed of according to the law of the domicil of the testator, while realty must be disposed of ac- cording to the law in vogue at the place where the property is situated.^ A court of equity has power to correct mistakes in a will apparent upon the face of the instrument or made out by a due construction of its terms: the in- tention is the will. 2 The intent of the testator is the cardinal rule by which to construe a will. If that intent can be clearly perceived, and is not contrary to a positive rale of law, it must prevail, although, in giving effect to it, some words should be rejected, or so restrained, as materially to change the literal meaning of the partic- ular sentence.^ Wills being the least artificial of all instruments, often the productions of persons ignorant of the law and of the correct use o'f the language in which they, are written, are the least to be governed by the settled use of technical legal terms. It may well be doubted if any other source of enlightenment is of much assist- ance than the application of natural reason to the language of the instrument under the light thrown upon the intent of the testator by the extrinsic cir- cumstances surrounding the execution, and connect- ing the parties and the bequests and devises with the testator and with the instrument itself.^ , When interpreting a will, the attending circura- stances of the testator, such as the conditions of his family, the amount and character of his property, are to be considered. The interpreter is to place himself in the position occupied by the testator when he made his will, and from that standpoint discover what was intended. ^ tiittle aid is to be derived from a resort to formal rules, or from a consideration of judicial determina- tions in cases apparently similar. It is a question in each case of the reasonable interpretation of the words of the particular will, with a view to ascertain- ing the testator's intention.^ See further Administer, 4; After; Ambiguity; At- test; Bequest; Cancel; Codicil; Contest; Conver- sion, 1; Cy Pres; Demonstratio ; Descent; De- scription, 2; Desire; Devise; Donatio; Effects; 1 See 25 Am. Law Reg. 153-62 (1886), cases. M Story, Eq. §§ 179-80; 2 Jarman. Wills. 189; 1 Red- field, Wills, 501 ; Effinger v. Hall, 81 Va. 98 (1885), cases. a Finlay v. King, 3 Pet. *377 (1830), Marshall, G. J. * Clarke v. Boorman's Executors, 18 Wall. 502 (1873), Miller, J. Approved, Giles v. Little, 104 U. S. 293 (1881), Woods, J. ' 6 Drake v. Hawkins, 98 U. S. 334 (1878), cases, Strong, Justice. " Robison v. Female Orphan Asylum, 123 U. S. 707 (1887), cases, Matthews, 3.\ Colton v. Colton, 137 id. WIND 1117 WITHDRAW , Election, 2; Equally; Executor; First, 2; Heie, 1; Holograph; Ignorance; Influence; Inherit; Inof- ficious; Insanity, 2 (5); Issue, 5; Item; Legacy; Lost, 2; Money; Mortmain; Mutilate, 2; Part, 1, Reasonable; Perpetuity, 2; Power, 3; Precatory; Presence; Probate; Property; Provided; Publica- tion; Punctuation; Reading; Representative (11; Res, 2; Residue; Said; Script; Scrivener; Separate, 2; Sign; So; Sole: Subscriber, S; Then; Trust, 1; Umpire; When; Writing. WIND. See Dangers ; Tempest. "Wind and water. See Wear and Tear. WINDOW. See Bay-window; Light. WIND UP. To liquidate the assets of an association, as, a partnership or corpora- tion, for purposes of distribution. Whence " winding-up '' statutes, and proceedings. See Liquidator. WINE. See Liquor. WISDOM. See Discretion, 3. WISH. See Precatory; Volo; Want. WIT.i To know, have knowledge of. To "wit explains what precedjes, being equiva- lent to " that is to say," "more particularly," "namely," ''videlicet." - See Videre, Vi- delicet. Wittingly. Relating to the wit or under- standing; knowingly, designedly.^ Knowingly, with knowledge, by design.* WITCHCRAFT. The practices of a witch: a woman (formerly, a man or a woman) supposed to be able to affect the happiness and destiny of other persons by the exercise of supernatural power acquired from intercourse with evil spirits ; conjura- tion ; sorcery ; enchantment. "A species of offense,"' says Blackstone, "against God and religion, of which one knows not well what account to give, is witchcraft, conjuration, enchqjit- 309-10 (1888); Hatcher v. Hatcher, 80 Va. 171 (1885), cases; BO Mich. «0; 74Me.413; 100 Pa. 481; 102 id. 247; 16 S. C. 227; 17 id. 348. As to testamentary capacity, in addition to the references to "influence" and "insanity" (ad fin.), see 34 Alb. Law J. 4-7 (1886), cases; 4 Law Quar. Rev. 412-48 (1888), Eng. cases; formalities as to execution, 34 Alb. Law J. 486-88(1886), cases; execution, authen- tication, and construction, 28 Cent. Law J. 161-56 (1880), cases; implied revocation of, ib. 387-91 (1888), oases; costs in contested cases, 18 id. 83-86 (1884), cases; lost wills, 39 Alb. Law J. 44-47, 64-67 (1888), cases; distri- bution of assets in cases of erroneous construction, 23 id. 588 (1886) — Irish Law Times. ' A. S. witan, to know: L. vid-, to see. Whence *' witness." 2 See Commonwealth v. Grey, 2 Gray, 502 (1854). 3 Harrington v. State, 54 Miss. 493 (1877). * Osborne v. Warren, 44 Conn. 359 (1877): Webster. ment or sorcery. The thing is a truth to which every nation hath borne testimony, by examples seemingly well attested or by prohibitory laws." The civil law punished with death sorcerers and those who consulted with them, imitating the Mosaic law " Thou Shalt not suffer a witch to live " [by her craft?] Our own [English] laws have been equally penal, condemning culprits to the flames. Statute '6Z Henry VIII (1548), u. 8, made witchcraft and sorcery felony without benefit of clergy; and 1 James I (1603), c. 12, enacted that persons invoking any evil spirit, or consulting, covenanting with, entertaining, employ- ing, feeding, or rewarding any evil spirit, or hurting any person by such internal arts, should be guilty of felony without benefit of clergy, and suffer death; and that if any person attempted by sorcery to discover hidden treasure, to restore hidden goods, to provoke unlawful love, or to hurt any man or beast, he or she should suffer imprisonment and pillory for the first offense, and death for the second. Not a few of those executed under these laws confessed guilt at the gallows. Louis XIV of France forbade the courts to receive informations of witchcraft. Statute 9 Geo. HI (1769), c. 5, disallowed prosecutions for conjuration, witchcraft, sorcery, or enchantment. But pretending to use witchcraft, tell fortunes, or discover stolen goods, by skill in the occult sciences, is still a punish- able misdemeanor in England,' and in the States. WITH. Along with, in place or time. That an affidavit is to be filed "with a pleading" does not necessarily imply a filing at the same time." It is a sufficient compliance with the rule that " the plaintifl: shall file with his declaration an affidavit of claim," that they be both filed at the same time, and this is not affected by their being detached, or by the place of deposit in the office. ^ With all faults. See Fault. With interest. See Interest, 3. With strong hand. See Hand, 3. WITHDRAW. To take away, as, to withdraw a record ; to mark off, as, to with- draw an appearance once entered of record in a cause ; to substitute one for another, as one plea for another plea ; to cause to leave, to remove, to retire, as, to withdraw a juror from the box; to quit or sever connection '4 Bl. Com. 60-68; 3 Coke, Inst. 44; Spectator, 117; 1 Steph. Hist. Cr. Law Eng. 54; 8 id. 430-36. See Trial of Sufi'olk Witches, 6 St. Tr. 687-702 (1665),— Rose Cullen- der and Amy Duny, who were convicted after half an hour's deliberation by the jury. Sir Matthew Hale pre- siding, and were executed fom- days later, neither one confessing the charge, although "much urged to," "the judge and all the court" being "fully satisfied with the verdict;" Trial of Three Devon Witches, 8 id. 1018-39 (1682),— with "the substance of their last woi-ds and confessions at the time and place of exe- cution." See also 8 West. Law J. 318; 106 North Aiu. Rev. 176; 45 New Engl. 788. 2 Humraert v. Schwab, 54 111. 146 (1870). « Hossler v. Hartman, 82 Pa. 55 (1876), WITHIN 1118 WITNESS with, to end responsibility in, as, to with- draw from a cause. " Withdrawing a juror " describes a fiction to which a court may resort when it appears that, owing to some accident or surprise, defect of proof, unexpected and difficult question of law, or like reason, a trial cannot proceed without injustice to a party. ^ The clerk, under direction from the court, calls a juror out of the box, whereupon the plaintiff objects, or is supposed to object, to proceeding with eleven ju- rors, and the trial goes over to the next term, the rights of the litigants remaining unimpaired. The court may resort to this practice rather than nonsuit the plaintift. The costs may be imposed upon one party, be divided between both, or abide the event of the continued suit.' See Guilty; Noksifit; Retraxit. WITHIIT. May refer to a place or a period of time. Compare Contained. Referring to place, may mean on the line or outside of. Thus, a horse in the street, breaking down a fence, is doing damage " within the inclosure." ^ " Within thirty days " from May thirteenth includes June twelfth as the last day; that is, the first day is excluded and the last included.'' See further Day. WITHOUT. 1. Outside, beyond: as, "without the State; "5 "without the alle- giance;" <> " without the jurisdiction.'' 3. With the omission of ; with the exclu- sion of, excluding; independently of; with- out any: as, without appeal, or exception; without children, heirs, or issue; without day, defalcation, notice, recourse, reserve, qq. V. "Without being licensed" is of the same import , and effect as "not licensed " or " not being licensed." ' Without this, etc. See Teatersb. WITNESS.8 1, n. One who gives evi- dence in a cause before a court.' A most general term, including every per- son from whose lips testimony is extracted to be used in any judicial proceeding. i" An "affiant" or "deponent" is always a witness, but a witness is not necessarily an affiant or depo- nent.'" ' [Abbott's Law Diet. ' See People v. Judges of New York, 8 Cow. 130(1888), cases; Winsor v. The Queen, L. R., 1 Q. B. *a98-99 (1866J, cases; 3 Chitty, Pr. 917. a Pettit V. May, 34 Wis. 672 (1874). * McDonald v. Vinette, 58 Wis. 630 (1883). '91U. 3.377; 97 id. 637. ' 9 Mass. 456. 'Commonwealth u. Thompson, 3 Allen, 508 (1861), cases. * A. S., witnes, knowledge, testimony. See Wit; Suit, 1. 1 Barker v. Coit, 1 Root, 325 (Coun,, 1790). '» [Bliss V. Shuman, 47 Me. 252 (1859), Appleton, J. 2, V. To bear testimony to; to have per- sonal knowledge of the execution of an in- strument. Adverse witness. A witness who is hostile toward, or who testifies strongly against, a party. Attesting witness. One who signs an instrument, certifying that it was execlited in his presence. At the time of attestation he must be " competent " to testify in court on the subject-matter.' See further Attest. Competent witness. A person who is legally qualified to give testimony. Opposed, incompetent witness. In some States wUls devising land must be attested by competent witnesses, unless wholly written by the devisor, as, in Kentucky. In Pennsylvania the " com- petent witnesses " who are to prove a will need not be subscribing witnesses.'" In Virginia, by the code of 1873, c. 118, sec. 4, unless the will, about to be attested, be olograph, the wit- nesses must subscribe as witnesses, though that word need not be used." See further Competent. Credible witness. A witness who is de- serving of confidence ; a person who, being competent to testify, is worthy of belief. In some States a will is to be attested by *' credible witnesses. " It has been held that " credible " in this connection means " competent." * In a statute empowering an examined copy to be made and sworn to. by " credible witnesses," in the absence or inability of the clerk of a probate court, held to mean witnesses giving testimony under the sanction of an oath, and who could be cross-examined as to the existence of the record" and the accuracy of the copy.^ See further Credible, 3. Interested witness. A witness who is directly interested in the result of the suit, or in the record as evidence. The common-law rules disqualifying for interest have been generally abrogated, except as to personal communications with a dead paj-ty. See post. Subscribing witness. A person who, being present at the execution of an instru- ment, at that time and at the request of the 'Jenkins v. Dawes, 115 Mass. 601 (1874), Gray, C. J.; Haven v. Hilliard, 23 Pick. 17-18 (1839), cases. ' Frew V. Clarke, 80 Pa. 178-79 (187B). » Peake v. Jenkins, 80 Va. 396 (1885). • See Amory v. Fellowes, B Mass. *298 (1809); Sears v. Dillingham, 12 id. *361 (1815); Hawes v. Humphrey, 9 Pick. *356 (1830); Bacon v. Bacon, 17 id. 135 (1835); Haven v. Hilliard, 23 id. 17-18(1889); Hall u. HaU, 18 Ga. 44-45 (1855); Jones v. Larrabee, 47 Me. 476 (1860); Estep u Morris, 38 Me. 424 (1873). Contra, Windham V. Chetwynd, 1 Burr. 417 (1758), Ld. Mansfield, consid-, ering 99 Charles II, c. 3. * Dibble v. Morris, 26 Conn. 425 (1857). WITNESS 1119 WOMAN party, attaches his signature to it ; or, a per- son who, though not so present, yet subse- quently in the presence of the party, who acknowledges the signature and requests him to sign, afl&xes his signature.! At common law it subscribing witness was to be called to prove the execution of the instrument, but never as to a collateral matter; a party was not suffi- cient, except when the subscribing witness was inca- pacitated. He is not called when an opponent pro- duces a writing on notice and claims an interest under the writing, nor when he refuses to produce the writ- ing, nor where an acknowledgment makes a writing evidence. An attesting witness proves his own signa- ture only. 2 Swift witness. A witness who is very eager to testify. Zealous witness. A witness who evinces partiality for the party who calls him. The tendency is to admit all persons to testify who _ can furnish relevant, material evidence, leaving the jury to judge of the credibility of each witness. ■' In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried." ' That enactment was intended to admit the testi- mony of witnesses previously incompetent on account of interest or of being parties. It introduced a prin- ciple extensively adopted in the States.' " Provided, that in actions by or against executors, administrators, or guardiaps, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any trans- action with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects the laws of the State in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity, and ad- miralty." ' The purpose in preventing a party from testifying, where the adverse party is an executor or administra- tor, is to guard the estates of decedents against fraud- ulent defenses and claims, or unfounded causes of action." 1 Huston V. Ticknor, 99 Fa. 238 (1881), Paxson, J. ; 1 Greenl. Ev. § S69 a, cases; Cussons v. Skinner, H M. & W. 168 (1843); Hollenback v. Fleming, 6 Hill, 304 (1844), cases. 2 1 Whart. Ev. §§.705-40, cases; 1 Greenl. Ev. §§ 273- 78, cases. 2 Act 2 July, 1864, § 3 : E. S. § 8.58. 4 United States v. Ten Thousand Cigars, Woolw. 125 (1867); Eison v. Cribbs, 1 Dill. 184 (1870). » Act3 March, 1865: R. S. § 858, cases. See also Eice V. Martin, 7 Saw. 338-40 (1881), cases. • Roberts v. Briscoe, 44 Ohio St. 601 (1887); Dudley v. Steele, 71 Ala. 426 (1882). As to testifying to communi- cations with deceased persons, see 33 Alb. Law J. 84- 90 (1886), eases. In trials at common law a party to the record could not be a witness for or against himself or his adver- sary. The purpose of the statutes is to put the par- ties on a footing of equality with other witnesses, that is, to make all admissible to testify for themselves, and compellable to testify for others. The statutes are remedial, and to be construed accordingly.* See Interest, 1. The exception of executors, administrators, and guardians leaves other suitors, including the United States, under the operation of the common law.'* A wife is not given capacity to testify for (or against) her husband." In a criminal case the defendant, at his own request, shall be a competent witness. But failure to make himself a witness shall create no presumption against him.* Like remedial statutes have been enacted in all the States, Delaware and New Mexico excepted. In a few States persons charged with homicide may not testify in their own behalf.^ In civil suits a witness may demand prepayment of expenses." N on-attendance, after a subpoena has been duly served, is an offense against public justice, and a contempt of court, for which an attachment may issue and a fine, or a fine and imprisonment, be imposed. A writ of habeas corpxis will secure the attendance of an imprisoned witness. By common law in criminal cases, and by statutes in civil cases, a witness likely to disappear before trial may te required to give bail for his appearance.' On calling witnesses before either house of Con- gress or a committee thereof, see R. S. § 859, and Con- tempt, 3. See further Aged; Ancient, 3; Akbest, 3 (2, 3); Call, 1 ; Communication, Privileged, 1 ; Confront; Con- tempt, 1 ; Crime ; Decision, Rules of ; Deposition ; Dumb ; Examination, 9; Expert; Evidence; Falsus, In uno; Going; Husband; Impeach, 3; Infamy; Infant; In- SANiTT, 2 (1); Letters, 4, Rogatory; Oath; Opinion, 1; Party, 2; Question, 1; Refresh; Reputation; Slan- der, 1 ;' Suepcena, 3; Testify; Testimony; Testis; Turpitude: Vouch; When. WITTINGLY. See Wit. "WOLF'S HEAD. See Caput, Lupinum. WOMAN". May mean any human being of the female sex, or an adult female. In the United States unmarried women have all the civil rights of men; they may make contracts, sue and ' Texas v. Chiles, 21 Wall. 490-91 (1874), Swayne, J. 2 Green u United States, 9 Wall. USS (1869); 1 Whart. Ev. §§ 457-90, cases. ' Lucas V. Brooks, 8 Wall. 4B2 (1813). • Act 16 March, 1876: 1 Sup. R. S. 312. » 1 Whart. Ev. |§ 464-72, cases; 37 Cent. Law J. 328-32 (1888), cases; 4 Cr, Law M. 333, 807. « O'Neil -0. Kansas City, &c. R. Co., 31 F. R. C06 (1887); 1 Whart. Ev. § 464. ' 1 Whart. Ev. §§ 381-85, 414, cases. As to privileges of witnesses, see 31 Alb. Law J. 144, 183, 244, 323, 344, 383, 403 (1885), cases; as to "utterances," 27 Am. Law Reg. 714-19 (1888), cases, and 36 Cent. Law J. 2-8 ( cases. WOMAN 1120 WOOLSACK be sued, be trustees and guardians, be witnesses, and a.ttest all kinds of papers. But exercise of political powers has not been generally conferred upon them: while she is a citizen (q. v.), she is not eligible to office, nor entitled to vote, nor has she a constitutional right to practice law.^ It is not one of the privileges and immunities of women as citizens to engage in any and every profes- sion, occupation, or employment in civil life. The civil law, as well as nature herself , has always recog- nized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupa- tions of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the do- mestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which be- long or should belong to the family institution is re- pugnant to the idea of the wife adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of common law that it became a maxim that a wife had no legal existence separate from her husband, who was re- garded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal prin- ciple still exist in full force in most of the States; as, that she, without his consent, is incapable of making a contract binding on either of them. This incapacity renders her incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor at law. That unmarHed women are not affected by the incapacities which arise out of the married state are exceptions to the general rule. But the rules of civil society must be adapted to the gen- eral constitution of things, and cannot be based upon exceptional cases. It is within the province of legisla- tion to ordain what offices, positions, and callings shall be filled and discharged by men, and what by men or women. 2 Act of 15 February, 1879, admits to practice before the Supreme Court any woman of good character who shall have been a member of the bar of any State or Territory, or of the supreme court of the District of Columbia, for three years. ^ The tendency of legislation, and of the decisions of the higher courts, is toward the admission of women to the legal profession, upon equal terms with men.* 1 United Steites v. Anthony, 11 Blatch. 200 (1873); Minorv.Happersett, 21 Wall. 102 (1874); United States V. Reese, 92 U. S. 214 (1875); 16 How. 287; 1 MacArthur, 169; 43Cal. 43; 39 Ga. 283. 3 Bradwell v. Illinois, 16 Wall. 140-42 (1872), Bradley, J.: s. c. 55 El. 535(1869). a 20 St. L. 292:' 1 Sup. R. S. 410. 4 Be Hall, 50 Conn. 131 (1882), Park, C. J. : R. S. 1875; Re Goodell, 48 Wis. 693 (1879), Cole, J.: R. S. 1878; Be Kilgore, 17 W. N. C. 475 (Pa., 1886): Act May, 1885; s. o. 14 id. 30, 255, 466; 17 id. 563-68, cases. Contra, Robin- In a few States a woman may serve as a recorder of deeds, >be appointed a notary public, be eligible to a school or a city office and vote for nominees for such offices, and hold the office of overseer of the poor. In Illinois by statute ' no person is precluded fi'om any occupation, profession, or employment (ex- cept military) on account of sex, the statute not af- fecting the eligibility of women to an elective office, nor enabling them to serve as jurors, nor permitting them to labor on the streets; but, by construction, it allows them to be appointed masters in chancery. ■■' In the discretion of the head of any department of the general government she may be appointed to any clerkship authorized by law^ upon the same conditions and with the same compensation as are prescribed for men.^ She may be employed as customs inspector to search the baggage and persons of females.* When women are excluded from the right to vote for particular officers, they are excluded from the right to hold the offices.* Compare Feme. See Burn ; Citizen ; Feudal, Sys- tem; Husband; Man; Person; Privilege, 1; Pro- nouns; Scold; Widow; Wife; Witchcraft. WOOD. See Sound, 3 (1); Timber. Wood-cut. See Copyright; Print. "Wooden buildings. See Police, 3. Woods. Forest; woodland. A field grown up in broom-sedge and wire-grass, surrounded by an old fence and used as a pasture, is not " woods" within the meaning of a, law against setting fire to a woods. ^ But an old field, "turned out," without fencing around it, grown up in broom-sedge and pine bushes, some of which are head high, is a "woods," within such statute.'' The reference, in such cases, is to forest lands in their natural state, in contradistinction to lands cleared and enclosed forxulfcivation.* A sale of " standing wood " includes trees suitable for timber aswell as those for fuel.® See Fire, Set on. WOOLSACK. If the lord chancellor "be a peer, he ought regularly to be placed at the top of the dukes' bench, on the left of the throne; and if a commoner, upon the uppermost sack in the Parliament chamber, called the lord chancellor's woolsack." " For convenience, here he generally sits, though a peer, and here he puts the question, and acts as pro- lucutor; but this place is not considered within the son's Case, 131 Mass. 376-84 (1881), cases, Gray, 0. J.: Stat. 1876. 1 R. S. 1874, p. 478. 2 S6huchardt v. People, 99111. 505 (1881). 8R. S. § 165: Act 12 July, 1870. 4 R. S. § 3064: Act 18 July, 1866. * Atchison (County Judge) v. Lucas, 63 Ky. 464 (1885). 8 Achenbach v. Johnston, 84 N. C. 264 (1881). ' Hall V. Cranford, 5 Jones, L. 4 (N". C, 1857). 6 Averifct v. Mm-rell, 4 Jones, L. 323 (1857). » Strout v. Harper, 73 Me. 273 (1881). WORDS 1121 WORRY House, and when he is to join in debate as a peer he stands in front of his proper seat, at the top of the dukes' bench." " There are woolsacks tor the judges and others as- sessors, as well as for the lord chancellor. They are said to have been introduced into the Honse of Lords as a compliment to the staple manufacture of the realm; but I believe that in the rude simplicity of early times a sack of wool was frequently used as a sofa." » WORDS. Words for the most part do not represent distinct thoughts; only the parts into which a thouglit or conception has been, or may be, divided by an analytic pro- cess. 2 Words get their point and meaning almost entirely from the time, place, circumstances, and intent with which they are used.' The same word may have different meanings even in the same sentence.* In ordinary writings any words may be used which express the intention of the parties: the words ought to subserve the intention. Words are to be taken ef- fectively, according to the subject-matter, and so that the purpose may not fail ; are to be taken the more strongly against the party who proposes the phrase- ology; such as are of general import are to be con- strued with reference to the subject-matter, and will be controlled by specific or technical terms; words of an art are to be understood as in the art or trade. In cases of doubt, written control printed words. It is often necessary to ascertain whether a word has acquired a special meaning, as applied to the sub- ject-matter of a contract, or whether it is used with a restricted signification by authors or jurists or those conversant with the business to which the contract relates. It is not always safe to adopt the m^re ety- mological meaning, or such as lexicographers give." Words are to be taken in their most usual and known signification; technical terms, according to the interpretation of the learned in each art, trade, or science. • The courts take notice of the meaning and force of common words, and also of technical words where the meaning is well settled by usage, and, when necessary, they define them to the jury.' It has been a source of perplexity to those who at- tempt to reduce discoveries to scientific classification, that old terms, with well-defined meanings, are applied to things wholly new, as " road " in railroad, g. v. To 1 Campbell, Lives of the Lord Chancellors, vol. I, pp. 15-16, note. ' [Lieber, Hermen, 3 ed., 14, n. 1 Dillard v. State, 41 Ga. 280 (1870). « Minot V. Harris, 132 Mass. 533 (1882). • Dole V. New England Mut. Mar. Ins. Co., 6 Allen, 386-87 (1863), Bigelow, C. J. »Pea Patch Island Case, 1 Wall. Jr., cxlv (1848); People V. May, 3 Mich. 605 (1855); 1 Col. 369. 'State V. Baldwin, 36 Kan. 38 (1886), cases. The lower court explained " auEesthetic," " chloroform," 'poison," and " asphyxia." n (71) avoid this result, modern science is enriched with com- pounds of Greek and Latin words.' In addition to particular words or terms, see gener- ally Art, 3; Coksteuctiok; Defamation; Etymology; ExpRESsio; Foiiio; Gender; General, 6; Grammar; Inferior; Noscitur; Number; Provocation; Res, Ut res; Term, 1; tJsns, Utile; Writikg. Compare Ybr- BUM, WOEK. The " work " and the " duty " of a person, as of abrakeman, mean the same thing. 2 See Business ; Labor, 1 ; Service, 1. Work and labor. See Counts, 4, Com- mon. Work-beast. See Horse. Working-days. Days that succeed each other, exclusive of Sundays and holidays.' Lay-days. Time to load and unload a cargo.* Running days. Successive or consecutive days, whether working-days or not.^ In a charter-party, days as they run, day by day, from a given time.* WORKS. The structures and grounds which compose a factory or manufacturing establishment. In a statute exempting from taxation " all ma- chines, vehicles and carriages, belonging to the com- pany, with all their works," the word " works " was held to include real estate.' " Works of all kinds," as used in a provision for licensing in a city charter, does not include the busi- ness of insurance agents." Works of charity, or of necessity. See Charity, 3; Necessity; Sunday; Wor- ship. Works of fine arts. See Art, 3 ; Copy- right. WORLD. "The whole world," in the law of notice, means all persons who are in- terested or who may become interested in a transaction or proceeding. See Notice, 1. Worldly emplojnnents. See Sunday. WORRY. 1. Compare Trouble. 3. To pursue, run after, harass ; as, for a dog to won-y sheep or fowls. ■ Bridge Proprietors v. Hoboken Co., 1 Wall. 147 (1863), Miller, J. ' Chicago, &c. R. Co. v. Bragonier, 119 HI. 63 (1886). ■Pedersen v. Eugster, 14 F. R. 432 (1883): 1 Cal. 483. • See 3 Kent, 202; 2 Steph. Com. 141 ; 10 M. & W. 331. » Crowell V. Barreda, 16 Gray, 478 (1860), Hoar, J. • Davis V. Pendergast, 16 Blatch. 567 (1879), Waite, Chief Justice. ' City of Richmond v. Richmond, &c. R. Co., 21 Gratt. 607-8 (1872). « State V. Smith, 31 Iowa, 496 (1871). See also 21 How. Pr. 1; 5Abb. Pr. 232. WORSHIP 1132 WOUND Worrying sheep does not imply tearing them with the teeth: for a dog to pursue and bark at them is worrying them.' In a statute giving the owner of domestic animals, such as fowls, worried by a dog, the right to kill the dog, "worry " means to run after, chase, bark at.'* WORSHIP. No definition of' this word, as used in " divine worship," "religious wor- ship," "place of worship," and similar ex- pressions, applicable to all cases, has, seem- ingly, been framed by any court. The word has no technical, legal signification; each case, in which its meaning has been the sub- ject of contention, has been decided upon its own merits. A Sunday-school is a worshiping assembly.'' But a Sunday-school was held not to be contem- plated by the expression "divine worship," in an agreement between two congregations for the erection of a common meeting-house, at a time when Sunday- schools were not in vogue in the neighborhood.^ One room iised as a chapel does not reserve the whole building " for religious worship." ^ A Christmas-tree festival for Sunday scholars at a school-house is not an assembly for "religious wor- ship." " Camp-meeting grounds belonging to an association deriving profit therefrom are not to be exempt from taxation as a " place of worship." ' " Religious worship " has no technical meaning, in a legal sense. Whether a temperance camp-meeting is "a public assembly convened for the purpose of religious worship " is a question of fact.^ Receiving compulsory prices for admission to a camp-meeting on Sunday is worldly employment or business, and not within the exception of " works of necessity and charity." " A prosecution for disturbing an assemblage for re- ligious worship will not" be sustained by proof that the meeting was for business purposes, though opened with religious exercises. '" A buildingf or "religious purposes " is exempt from 'taxation although used for educational purposes, so long as the use is merely incidental or occasional, or, ■if habitual, is purely permissive and voluntary and ■does not interfere with the use for religious purposes, there being no alienation (as, e. gr., by lease) of the building in whole or in part for educational uses. ' Campbell v. Brown, 1 Grant, 83 (1854). 2 Marshall v. Blackshire, 44 Iowa, 473 (1876), Seevers, Chief Justice. = Martin v. State, 6 Baxt. 234 (Tenn., 1873). ■• Gass' Appeal, 78 Pa. 46 (1873). »St. Joseph's Church v. Assessors, 13 R. I. 19 (1878). "Layne v. State, 4 Lea, 200 (1879).- ' Summit Grove Meeting Association v. School Dis- trict of New Freedom, 12 W. N. C. 108 ^Pa., 1882). 8 State V. Norris, 69 N. H. 536 (1880). 'Commonwealth v. Weidner, 4 Pa. Co. Ct. R. 437 (1888): -4.ct 23 April, 1794. 1" Wood V. State, 11 Tex. Ap. 818 (1882). Contra; Hol- lingsworth v. State, 5 Sneed, 518 (Tenn., 1858). Much Sunday-school teaching, though auxiliary to re- ligion, is not purely religious. Buildings for religious worship, or parts of them, are frequently permitted to be used on week days for literary or scientific lectures, or for industrial instruction. Some of these uses, while not wholly religious, are prompted by religion.' See Assembly, Civil; Chcrch; Parsonage; Relig- ion: StrNDAT. WOUND. Within the meaning of 9 Geo. IV (1839), c. 31, s. 12, an injury to the person by which the skin is broken — the whole skin, not the cuticle merely.^ Breaking a limb was not, then, a wounding; nor was biting off a finger, or the nose: nor was throwing acid in the face — because, in such cases, no instru ■ ment inflicting at least a. skin wound was used." Statute of 24 and 36 Vict. (1861), c. 97, o. 47, makes it an offense to kill, maim, or wound any cattle. "Wound" is distinguishable from "maim," which implies a permanent injury, whereas a wound is any mutilation or laceration which breaks the continuity of the outer skin. The injury may be as great when produced by manual power as by an instrument, though in the former case it is not evidence of so much malice.* In many cases there is great diflficiilty in determin- ing what constitutes a wound. . A scratch on the face, by rupturing the cuticle only, without separat- ing the whole skin, is not a wound.'' The words " mortal wound," in an indictment for murder by felonious wounding, are superfluous when the indictment alleges a wounding which produces death.'' Wounding. As an injury to the limbs or body, consists in giving another some dangerous hurt; an aggravated species of battery." If death ensues from a wound given in malice, not in its nature fatal, but which, being neglected or im- properly treated, causes death, the assailant may be held guilty of murder, unless it clearly appears that the neglect or treatment was the sole cause of the death.8 See Mayhem; Stab. ' Saint Mary's Church v. Tripp, 14 R. I. 31 Durfee, C. J. "Moriarty v. Brooks, 25 E. C. L. 598 (1834); Rex v. Wood, 19 id. 564(1830); Regina v. M'Loughlin, 34 id. 661 (1838). sRexu. Stevens, 1 Moody, C. C. 409 (1834); Rex v. Murrow, ib. 466 (1836); Rex v. Harris, 32 E. C. L. 700 (1836). See these cases explained, 11 Cox, Cr. C. 127, infra. ' ' Regina v. Bullock, 11 Cox, Cr. C, 127 (1868), Cock- burn, C. J. : s. u., L. R., 1 C. C. 116. 'Commonwealth v. Gallagher, 6 Meto. 568 (1842), Shaw, C. J. ; State v. Leonard, 23 Mo. 460 (18.66). • Brown V. State, 18 Fla. 476 (1881), cases, Randall, 0. J.;--Peopl6 V. Steventon, 9 Cal. 275 (1868); Common- wealth V. Macloon, 101 Mass. 23 (1889). ' 3 Bl. Com. 131; 4 id. 216; 2 East, P. C. 1076. « Orum V. State, 64 Miss. 4 (1886), cases, Cooper, C. J.: 26 Am. Law Reg. 368 (1887); ib. 370-71, cases. WRECK 1123 WRIT WRECK.i By the ancient common law, was where any ship was lost at sea, and the cargo or goods were thrown upon the land. 2 Such goods as, after a shipwreck, are cast upon land by the sea, and left there, within some county.3 A ship beconles a wreck when, in conse- quence of injury received, she is rendered absolutely unnavigable, or unable to pursue her voyage, without repairs exceeding the half of her value.* That " admiralty has no jurisdiction of the wrecli of the sea " does not refer to property deemed wreek or stupwrecked, in the sense of the maritime or com- mercial law, but to " wreck of the sea " in the purely technical common-law sense, ^ The act of December 23, 1852 (K. S. § 4136), author- izes the issue of a certificate of register or enrollment for any vessel built in a foreign country, but wrecked in the United States, and purchased or repaired by a citizen thereof. " Wrecked ". here applies to a vessel disabled and rendered unfit for navigation, whether this condition has been caused by the winds or the waves, by stranding. Are, e:splosion of boilers, or other casualty." At common law, to constitute a legal wreck, the goods must come to land. If they continue at sea they are jetsam, flotsam, or ligan.' qq. v. Wreck, by the common law of England, belonged to the king or his grantee; but within a year and a daj- the true owner could claim it or the proceeds.^ Here, sea-shore rights were vested in the Colonies; and wreck belongs to the owner of the shore where it is cast, as against a stranger claimant.®. The States may by legislation regulate property ii) wrecks.'** Stealing or destroying money or goods from or be- longing to any vessel, boat, or raft, in distress, lost, or stranded, or willfully obstructing the escape of any person endeavoring to save his life from such vessel, etc., or holding out any false light or extinguishing any true light, with intent to bring any vessel, etc., on the sea into danger, distress, or shipwreck, are felo- nies, punishable by fine up to five thousand dollars and with as much as ten years imprisonment." See Admiralty; Bilged; Loss, 2; Mabitime; Sal- vage; Stkandino. ' Wrack, what is cast ashore, drift: A. S. wreccan, to drive, force. 2 [1 Bl. Com. 890; Sid. 106. 8 Baker v. Hoag, 7 N. Y. 658 (1853), Jewett, J. • Wood V. Lincoln, &c. Ins. Co., 6 Mass. 483 (1810), Parsons, C. J. ; 3 Kent, 333-»4. s United States v. Coombs, 12 Pet. *r7 (1838), Story, J. « Wrecked Vessel, 15 Op. Att.-Gen. 402 (1877), Devens, A.-G. See also The Mohawk, 3 Wall. 570 (1865). » 1 Bl. Com. 292. e 1 Bl. Com. 290-92; 12 Pet. 72. 8 Baker v. Bates, 13 Pick. 257 (1832); 113 Mass. 337. 10 The Schooner Tilton, 5 Mas. 479 (1830). Ji Act 3 March, 1825: R. S. § 5358. See also 12 Pet. 72; 1 Bl. Com. 293; 4 id. 836; 2 Kent, S21, 357. WRIT. That which is written: a writ- ing ; a mandate or precept. The king's precept in writing under seal issuing out of some court and commanding something to be done touching a suit or ac- tion, or giving commission to have it done.' As used in the statutes of some States, generally means process in a civil suit, while process in a criminal case is denominated a "warrant." 2 1 At common law writs in civil actions were either original or judicial writs: Original writ. When a person had to apply to the sovereign for redress of an in- jury he sued out an " original writ," or simply an "original," from the court of chancery (wherein all the king's writs were framed). This was a mandatory letter from the king, in parchment, sealed with his great seal, and directed to the sheriff of the county wherein the injury was committed, or sup- posed to be, requiring him to command the wrong-doer to do justice to the complainant or else to appear in court and answer the ac- cusation. whatever the sheriff did in pursuance of this writ he "returned" or certified to the court of common pleas, together with the writ itself. This was the foundation of the jurisdiction of that court, being the king's warrant for the judges to proceed to the de- termination of the cause. An original writ was either optional or peremptory. It was " optional," or a proecipe, when in the alterna- tive, commanding the defendant to do the thing re- quired, or show the reason why he had not done it. It was " peremptory," or a si fecerit te securum, when it directed the sheriff to cause the defendant to appear in court, without option, provided the plaintiff gave security to effectually prosecute his claim. The for- mer writ issued when something certain was de- manded; the latter, when only a satisfaction in general was wanted. 8 Judicial writ. A mandate, precept, or process issuing, or issued, from a court (of liw or equity), or from a judge acting as a judge. It a defendant, being summoned, neglected to aj)- pear, or if the sheriff returned a nihil (i. e., nothing whereby the defendant may be summoned, attached, or distrained), a capias issued, to take the body of the defendant and have him in court on the day of the re- turn, to answer the complaint. That writ of capias, and all other writs subsequent to the original writ, not issuing out of chancery, but from the court into which ' Termes de la Ley ; Brown's Law Diet. 2 Stoddard v. Couch, 23 Conn. *840 (1854), Waite, J. ' 3 Bl. Com. 273-74. WRITING 1124' WRITING the original was returnable, and being grounded on what passed in that court in consequence of the sher- iff's return, were called judicial writs. They issued under the private seal of that court, and were teste'd in the name of the chief or senior justice only.^ In England, since 1873, all suits begin with a writ of summons. In this country, the courts derive jurisdic- tion from constitutions, and not from any writ in the. nature of the old common-law original writ.'-^ See Straw Bail. In some jurisdictions, " original " refers to the writ by which a suit is instituted, as, a writ of summons, and is contradistinguished from the "final" writ or writ of execution. See Final, 3. The forms of writs, by which actions are com- menced, were perfected ih the reign of Edward the First (1273-130T).s One inherent power ih an appellate court is the right to make use of all writs known to the common law, and, if necessary, to invent new writs or proceed- ings in order to suitably esercise jurisdiction already conferred.* The various species of writs in use take their names from their office or purpose; as, a writ of —assist- ance, attachment, capias, dower, ejectment, entry, error, execution, extent, inquiry, right, summons; prerogative writs, etc. See those substantives, also Abatement, 4; Exigency; Judge, p. 675, c. 3; Qttash; Process, 1; Return, 3; Service, 6; especially Execu- tion, 3, Writs of. WKITIK'G. Words traced with a pen, or stamped, printed, engraved, or made legi- ble by any other device.^ The expression of ideas by visible letters — on paper, wood, stone, or other material. When a, statute or usage requires a "writing," it must been paper or parchment ; but it is not essential that it be in ink; it may be in pencil. This rule ap- plies to promissory notes, book accounts, a will or a signature thereto, applications for insurance, and the like.' The notes of an official stenographer, taken when a witness testifies in court, is a taking "in writing." ' A judicial order by telegraph is an order " in writ- ing," ' Compare Subscribe. Under a statute which provides that an officer may assign tax certificates " by writing " his name in blank, with his character added, the officer may ' 3 Bl. Com. 282. '^ Walker, American Law, 514. ' 4 Bl. Com. 427. 4 Wheeler v. North. Col. Irrigation Co., 9 Col. 251 (1886), cases. 5 Henshaw v. Foster, 9 Pick. 313 (1830), Parker, C. J., quoting La. Penal Code. "Myers v. Vanderbelt, 84 Pa. 513-14 (1877), cases; Chitty, Contr. 91; Story, Prom. Notes, § 11; Byles, Bills, 134; 1 Eedf. Wills, § 17, pi. 3; City Ins. Co. v. Bricker, 91 Pa. 490 (1879).; 2 Bl. Com. 297. ' Nichols V. Harris, 32 La. An. 646 (1880). e State v. Holmes, 56 Iowa, 590 (1881); 48 N. H. 480; 36 N. Y. 307. " stamp " his name and character, with intent to as- sign a certificate. ' A printed theater ticket is a "writing " which may be made the subject of forgery at common law.= A contract, required to be "in writing," may not need the signatures of both parties.' Words written prevail over words printed: the former are the immediate language of the parties; the latter, a general formula adapted to all cases, as, in the case of a policy of insurance, or a lease.* Ancient writings. Deeds, wills, and other instruments more than- thirty years old. May be read in evidence without other proof of exe- cution than that they have been in the possession of those claiming rights under them. The evidence of such ancient documents is admitted upon the ground that, although between strangers, they are of such character as usually accompanies transfers of title or acts of possession, and purport to form a part of actual transactions referring to co- existing subjects by which their truth can be tested, and there is deemed to be a presumption that they are not fabricated. But plottings for plans and field- notes are memoranda only, which may never have been acted upon.* The rule is that an ancient deed may be admitted in evidence, without direct proof of its execution, if it appears to be of the age of at least thirty years, when it is found in proper custody, and either possession under it is shown, or some other corroborative evi- dence of its authenticity, freeing it from all just grounds of suspicion.* After the lapse of thirty years, the witnesses are presumed to be dead. . . The rule applies to all kinds of deeds, where the instrument comes from the custody of the proper party claiming under it, or en- titled to its custody.' More or less credit has always been attached to ancient documents without other proof of authenticity than that of their production from proper deposi- tories. Where any document purporting or proved to be thirty years old is produced from its proper cus- tody, every part which purports to be in the hand- writing of a particular person is presumed to be authentic. This exception to the general rule of evi- dence rests upon a conceded necessity, and applies not only to formal instrumentB, such as wills, bonds, and 1 Dreutzer v. Smith, 56 Wis. 297 (1882), cases. = Be Benson, 34 F. R. 649 (1888); Benson v. McMahon, 127 IT. S, 467 (1888). 'Hightower v. State, 73 Ga. 482 (1884); Wofford v. Wyly, ib. 863 (1884). * James v. Lycoming Ins. Co., 4 Cliit. 289-91 (1874), cases; 3 Kent, 260; 1 Whart. Ev. § 926, cases. » Boston Water Power Co. v. Hanlon, 133 Mass. 484 (1882), Devens,.J. «Applegate v. Lexington, &o. Mining Co., 117 U. S. 263 (1886), cases, Wodds, J. ; Fulkerson v. Holmes, ib. 389 (1886); Williams v. Conger, 126 id. 417, 397 (1888). ' Winn V. Patterson, 9 Pet. *675 (1835), Story, J. See generally 1 Greenl. Ev. §§ 141-46, cases; 1 Whart. Ev. §§ 703-32, cases. WRONG 1125 YACHT other deeds, but to receipts, letters, entries,— all an- cient writings. ' Compare Possession, Adverse. Public writings. The recorded acts of public functionaries, in the executive, legis- lative, and judicial departments of govern- ment ; the transactions which official persons are required to enter in books in the dis- charge of their public duties, and which occur within the circle of their personal knowledge.2 Also spoken of as judicial or non- judicial, and, as to their proof, as those which are of record or not of record. See generally Alteration, 3; Blank, 2; Cancel; Certainty, S; Construction; Deed, 2; DocokENT; False; Frauds, Statute of ; Grammar; Handwriting; Illiterate; Instrument, 2, 3; Mail, 2; Obligatory: Obscene; Parol; Photograph-; Reading; Record; Reform; Subp A. S. wrang, wrung, wrested, perverted. Compare Tort. ■• Union Pacific R. Co. v. Henry, 36 Kan. 570 (1887). s [3 Bl. Com. 2; 4 id. 5; 1 id. 122. « Tax on Distilled Spirits, 16 Op. Att.-Gen. 668 (1880). Y. Y, B. Year-book, q. v. YACHT. A light sea-going vessel used only for purposes of pleasure, racing, and the like. The secretary of the treasury may cause yachts employed exclusively as pleaure vessels, and designed as models of naval architecture, if entitled to be en- rolled as American vessels, and built and owned in compliance with Rev. St, §§ 4133-35, to be licensed on terms which will authorize them to proceed from port to port without entering or clearing at the custom- house; the license to be in such form as the secretary may prescribe; the owner to first give a bond in such form and amount as the secretary shall prescribe, conditioned that the vessel shall not engage in trade, nor violate the revenue la\i s, and shall comply with the laws in all other respects. Such vessel shall not transport merchandise or carry passengers for pay; and shall have the name and port placed on some con- spicuous portion of the hull. For any violation of the laws on the subject of commerce and navifcation the vessel may be seized and forfeited. Provided., that all charges for license and inspection fees shall not ex- ceed five dollars, and for admeasurement ten cents per ton.' All such licensed yachts shall uie a signal of the form, size, and colors prescribed by the secretary of the navy; and naval architects in the employ of the United States may at all times examine and copy the models.^ Yachts, belonging to a regularly organized yacht club of any foreign nation which shall extend like privileges to the yachts of the United States, may enter or leave any of our ports without entering or clearing at the custom-house or paying tonnage tax.* For the identification of yachts and their owners a commission to sail for pleasure in any designated yacht belonging to any regularly organized and incor- porated yacht club, stating the exemptions and priv- ileges enjoyed under it, may be issued by th^ secretary of the treasury, and shall be a token of credit to any United States official, and to the authorities of any foreign power, for privileges enjoyed under it.* Every yacht visiting a foreign country under the foregoing provisions shall, on her I'eturn, make due entry at the custom-house of the port at which she arrives." Yachts which are propelled by steam must have their hulls and boilers inspected." A licensed yacht of four hundred and eighty-one tons burden, propelled by steam, and having two high masts, is an "ocean-going steamer" and a "steamer carrying sail," within Rule 3 of the rules of navigation prescribed by Rev. St. § 4233, and should cany the lAct 3 March, 1883: 93 St. L. 566, repealing R, S. § 4314 — parts of Acts of 18^8, 1870. 2 Act? Aug., lSi8: R. S. § 4215. 8 Act 29 June, 1870: R. S. § 4216. ' Act 20 Jime, 1870: R. S. § 4217. 6 Act 29 June, 1870: R. fi. § 4218. « Act 28 Feb., 1871: R. S. § 4436. YARD 1136 YEAE lights therein provided for, and not the lights specified in Rule 7.» YARD. See CnETiLAGE ; Square. YEAE. The civil year consists of three hundred and sixty- five days, with one more day for a "leap" year. Compare Annus ; Day; Month. In legislative and judicial proceedings, in the absence of another system of reckoning, the Christian calendar is intended. 2 The period is determined by the siibiect-matter and the context, — by the intention of the parties. ^ In New York, a year consists of three hundred and sixty -five days; a half year, of one hundred and eighty-two days; a quarter yearofninety-twodays.^i ^ Means "year of our Lord," in Delaware, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Massachu- setts, Michigan, Missouri, New Hampshire, North Caro- lina, Vermont, West Virginia, and Wisconsin. In most of the States, also, a " calendar year " is meant.* Bissextile or leap year. Consists of three hundred and sixty-six days. By 21 Henry III (1337), the increasing day and the preceding day are counted as one day . ^ •' The day of a leap year and the day immediately preceding, shall be reckoned as one day." ' In Indiana the twenty-eighth and twenty-ninth of February are counted as two days, when a specified number of days are to be computed. Out of the stat- ute of Henry has grown the notion tfiat for all pur- poses the two days are as one. The correct rule is that in speaking of a " year," a " quarter's " rent, and the like, the twenty-ninth day is not counted; but in marking oif a fixed number of days, it is to be counted. ^ The statute of Henry is in force in some of the States, as common law or by re-enactment.^ That statute was passed to produce uniformity in the length of years. It has no relation to the compu- tation of time when a rule or a statute fixes a certain number of days.^" Ninety-nine or nine Imndred and ninety-nine years. See Years, Estate for. Sixty years. See Tempus, Nullum, etc. Thirty years. See Writings, Ancient. Twenty and twenty -one years. See Limitation, 3. Year and a day. At common law, a fixed period of time for many purposes. 1 Chase v. Belden, 34 Hun, 571 2 Engleman v. State, S Ind. 98-94 (1850). s Thornton v. Boyd, 26 Miss. 506 (1853); United States V. Dickson, 16 Pet. 162 (1841). ♦ 3 N. Y. Rev. St. c. 19, 1. 1, § 3. sSeeSBl. Com. 141. » 1 Stimson, Am. St. Law, p. 139. ' 2 N. Y. St. ante; N. Car. ' Helphenstine v. Vincennes Nat. Bank, 65 Ind. 687- 90(1879), eases, Howk, J. » See 10 Cent. Law J. 168 (1880). '0 Barker v. Addis, 4 Pa. 617 (184G). The day seems to have been included to se- cure the full complement of one whole year.i , Thus, to make a felonious killing murder, the party assailed must die within a year and a day from the day on which the attempt was made on his life.'' Execution on a judgment must, at common law, issue within a year and a day from rendition; other- wise the judgment will be presumed satisfied. = If the owner of an estray did not claim it within this period it became the property of the lord of the manor where found.* And that was the law as to claims by owners of wreck.fi In some States, no scire facias has been allowed on a common mortgage till the end of a year and a day; and so as to suits on common bonds — which do not stipulate for a shorter period within which the obligee may sue for a default. See Day; Ltmitation, 3. Year-books. Reports of decisions, made by the " prothonotaries " at the expense of the sovereign, and published annually from about 1300 to 1550.6 Spoken of as mere "lumber garrets of obsolete feudal law."' "They are not worth the labor and expense either of a new edition or of a translation." . . " Valuable to the antiquarian and historian " as records of ancient customs and manners." * Year of our Iiord. Statutes in some States provide that " year " shall be taken to mean " the year of our Lord," as see ante. In England, the time of an offense may be alleged as that of the sovereign's reign, or as that of the year of our Lord. The former is the usual mode. Hence, there, "year" alone might npt certainly indicate the time intended. But we have no other era; therefore, any particular year, as " 1857," must mean that year in our era.*" Hence, the abbreviation " A. D." may be omitted; and the omission of the word "year " is not fatal. ^° See Abbreviations. An indictment charging that the defendant made an unlawful sale of liquor " Aug. 16, 18184," waS held bad, on a motion to quash. '* Yearly. See Annually. Years, estate, lease, or tenant for, and term of. A contract for the possession of ' 1 Pars. Couti-., 6 ed., *294, h. ' 4 Bl. Com. 197, 300; 1 Greenl. Ev. § 18, n. = 3 Bl. Com. 421. * 1 Bl. Com. 298. 6 1 Bl. Cora. 292; 8 Pet. 4. See also 8 Bl. Com. 284, 364; 3 id. 175; 4 id. 315, 335. «1B]. Com. 71-72. '2Wan. Jr. 309; 69 Pa. 281. 8 1 Kent, 480-81 ; 2 Taunt. 201 ; 2 Columb. Jur. 133. 'Commonwealth v. Doran, 14 Gray,, 38-39 (1859), cases, Dewey, J.; ib. 97; 5 id. 91. " State V. Bartlett, 47 Me. 898 (1880); State v. Munch, 22 Minn. 71 (1875). Contra, Commonwealth v. McLoon, 5 Gray, 92 (1855). See also 3 Vt. 481. " Murphy v. State, 106 Ind. 96 (1885). YEARLING 1137 YIELDING AND PAYING lands or tenements for a determinate pe- riod,— where a man lets them to another for the term of a certain number of years, agreed upon between the lessor and the lessee, and the lessee enters thereon, i If the lease be but for half a year, or a quarter, or less time, the lessee is a tenant for years; a year being the shortest term of which the law in this case takes notice.^ Every estate which must expire at a period certain and fixed, by whatever words created, is an estate for years. If no other day is mentioned, it begins from the delivery of the lease. A lease for as many years as A shall live is void for uncertainty; but not so a lease for twenty or more years, it he shall so long live, though the term may end sooner by his death, " An estate for one thousand years is only a chattel, part of one's personalty. An estate for lite is a free- hold.' But in several States, permanent leaseholds are re- garded as freeholds or realty for purposes of judg- ments, executions, descent, distributions, and the lilte.-" Estates from year to year. Estates at will are turned into estates from one 5"ear to an- other, or estates for years, by the operation of statutes or by force of decisions of the courts. The privilege of determining a tenancy at will upon the mere caprice of the lessor being foimd to greatly inconvenience the lessee, the courts held that such re- lation was a tenancy from year to year. Again, a tenant at will was not entitled to notice to quit, but the rule obtained that he held from year to year, so far at least as to entitle him to notice six calendar months prior to the day when the lessor desired to re- sume possession, except where the tenant w^s already apprised ot the end of the term. A general tenancy at will is construed as a tenancy from year to year. Beginning a new year, by sufferance on the part of the lessor, is a tacit renovation of the contract for an- other year, subject to the right of distress and half a year's notice to quit." See Emblement; Lease; Merger; Eent; Teem, 3. YEARLING. See Heifer. YEAS AlfD NAYS. Affirmative and negative votes. The power ot calling for the yeas and nays in legis- lative bodies is given by the various constitutions, and by municipal charters. " The Yeas and Kays of the Members of either ' 3 Bl. Com. 140. 2 3 Bl. Com. 143. ' 3 Bl. Com. 143, 380, 270; 4 Kent, 86; 5 Mass. 419; 1 N. H. 350, infra. > See Mass. Eev. St. 183'i; Be Gay, 5 Mass. 419(1809); S Chase. Ohio Sts,, 1185; North. Bank of Kentucky v. Roosa, 13 Ohio, 361 (1844); Brewster v. Hill, 1 N. H. 360 (1818); Flannery v. Rohrmayer, 49 Conn. 28 (1881). '2 Bl. Com. 147; 4 Kent, 112-14; 1 Johns. 323; 3 id. 76; 6 id. 372; 7 id. 1, 4; 8 East, 167; 8 T, R. 3. House on any question shall, at the Desire ot one fifth of those Present, be entered on the Journal," ' q. u. The restriction of a call to one fifth is founded upon the necessity of preventing too frequent a recurrence to this mode of ascertaining the votes at the mere caprice of an individual,' In eight States the yeas and nays are always to be entered on the journal; in three at the request of any member; in three others at the request of three members, and in ten by request ot two members, in either house ; in nine at the request of one-fifth of the members present, and in three, one-tenth; in Georgia, when the constitution requii'es a two-thirds vote ; in Michigan, at the request of one-fifth of the members elected, and in Wisconsin, one-sixth of those present.' See Entry, II, 6. YELLOW FEVER. See Quarantine, 2. YEOMAN.'' He that has free land of forty shillings by the year.' Anciently, such person could serve on juries, vote for knights ot the shire, — do any act permitted ot one probus et legalis.^ With us, the word has no exact meaning ; it is found as an addition to the names of parties in declarations, indictments, and common-law forms of writs." YES; YEZ. See Oyez. YIELDING AND PAYING. In a lease, constitute a covenant by the lessee to pay the rent. It the covenant is express, the lessee is bound tor the rent notwithstanding an assignment ot the term and acceptance of the rent by him from the assignee; while, it the covenant is merely implied, the liability ^ Constitution, Art. I, sec. 5, cl. 3. See Cooley, Const. Lim. 140. " 1 Stoiy. Const. § 843. « 1 Stimson, Am. St. Law, p. 69; 1 Sup. p. 7, § 375; Cooley, Const. Lim. 140, cases. / * Etymologists are not agreed as to the origin of the yeo-. It may be — 1. G'e, a servant. 2. Yeo, young. 3. O. Eng. yemeri, to take care of: A. S. geinen, to keep, — Webster's Diet. " A yeman [young man] hadde he, and servauntz no moo," — Chaucer, Prol. Cant. T., 1. 101 (1300). In records of London for 1396 " serving man " is said to be " called yoman." " Youngman " is used for "yeoman " in 33 Hen. VTTT (1?42). 4. Greek, gg, earth, land; Gothic, gau, country: cul- tivator, husbandman, proprietor. 5. O. Fries,, gaman, a villager. 6. 0. Dutch, goyman^ arbitrator. 7. Oeman, common; i. e., u commoner — next to a gentleman. 8. Yew-bow man — a respectable freeholder next to an esquire. See Skeat'a Etym. Diet.; Notes & Queries, Ser. I, vol. X, p. 468; III, viii, 2K0, 419; ix, 4.33; Yl, i, 416; Long Ago, I, 249, 280; Gent, Mag. 1, 189, 5 1 Bl, Com, 406: 3 Coke, Inst. 6, 68. 'See Eespublica v. Steele, 2 Dall. 93 (1786); Cobean V. Thompson, 1 P. & W. i YOUNG 1138 & for rent is but eo-extfensive with the occupation, and the lessee is not liable for such as accrues after as- signment and acceptance of the rent by his lessor from the assignee.' YOUIirG. See Animal; Paktus. YOUTH. Includes young pei'sons of both sexes. 2 1 See Auriol v. Mills, i 1. R. 98 (1790); Klmpton v. Walker, 9 Yt. 198-202 (1837), cases; Walker v. Physick, 5 Pa. 202 (1847); Ghegan v. Young, 23 id. 20 (1884); Fan- ning V. Stimson, 13 Iowa, 49 (1862); Eawle, Cov. Tit. = Nelson v. Gushing, 2 Cush. 683-34 (1848). z. ZEAL. See Witness, Zealous. ZINC. See Coin; Manufactukb ; Oeb. ZONE. See League; Vein. ZOOLOGICAL PARKS. See Animal. &. &, &c. See Et, Etc. ADDENDA. CESTUI, pages 162, 1057. Neither the origin nor the pronunciation of this term is given in the law dictionai'ies or glossaries, and in but two of the popular dictionaries (both of them English) is anything said on either subject; while the original plural form is not stated or conjectured in any book upon words or etymologies that has come to the notice of the writer. While the pronunciation c€st'-we is authorized by the Imperial and Encyclopstidic Dictionaries, learned lawyers everywhere say cBt'-wI, a pronunciation which, it is probable, has always generally obtained. In Coke upon Littleton, the term is spelled cesty {que use). The spellings of the plural of cestui que trust (the expression which, from the nature of the subject, is most common), collected on page 1057, are found in standard law works and in the opinions of tJie courts, both English and American. The statement that cestuis receives the preference (the rest of the expres- sion remaining unchanged) is based upon the writer's observations, and his examination of many text-books and reports. At the same time, it needs be said that the other forms, some more, others less, are in gen- eral use, even those in which the English word *' trust " is pluralized "trusteni" and "trustewis," and cestui is made cestuis. ' As ,to what the earliest plural was teachers of Norman French are not in accord; one, a philologist, suggests that it was cesteanx; another, a lecturer in a law school, writes that the simple words received no plural endings. More certain information can be of little importance at this date: the coiu-ts and law- writers will continue to "follow precedent," varying as that has been seen to be. A late authority (Encyclopedic Dictionary, 1888) makes cestui the objective case of the Norman French cist, cest, equivalent to the modern French ce. In modern French, also, as the lexicons show, ce means this, that; gm (subjective) and gwe (objective), the one which, and que, also, of whom; celui, he that, the one, that one: plural, ceux; celui qui, he who: plural ceux qui, c'est eux: cesteaux. Cestui que trust may be rendered, he for whom, or as to whom, there is a trust, or the trust is — exists, is created, is founded; cestui que use, he as to whom, or for whom, there is a use. or the use exists; cestui qui vie, he who lives, he as to whose life, or on whose life — an estate depends, or is to continue. CHII^ESE, pages 177-78. The treaty of March 12, 1888, was not finally rati- fied by China. The articles as agreed upon by secre- tary Bayard and minister Chang Ten Hoon are those printed on page 178, excepting the words, at the close of the first Article, " and this prohibition shall extend to the return of Chinese laborers who are not now in the United States, whether holding return certificates under existing laws or not," and the sentence, at the close of the second Article, "And no ^uch Chinese laborer shall be permitted to enter the United States by land or sea without producing to the proper officer of the customs the return certificate herein required." These amendments were engrafted upon the pro- posed treaty by the Senate, May 7, 1888, the President having submitted the same for its advice and consent. They were designed to obviate difficulties presented by the decision in Yung Ah Lung's Case (124 U. S. 621, Feb. 13, 1888, ante, p. 179). The first amendment was intended to cancel " permits " granted to laborers not actually residing here March 12, 1888; the " extension " was viewed, by the Senate, as necessary to render the treaty completely effective, — it having been found im- possible, in many cases, under the acts of 1882 and 1884 {ante, p. 175), to disprove alleged "prior resi- dence," identity, etc., when genuine certificates were presented by persons who claimed to be the original and rightful holders of them. But for the amendments the Chinese minister was prepared, it would seem, to exchange ratifications. As it was, on May 12th he wrote to Mr. Bayard that he did not disapprove of the changes proposed " as they did not alter the terms of the treaty." Without delay he also telegraphed the language of the amendments to China, whither an original draft of the treaty had been sent by mail. He was, moreover, of the opinion that about three months would elapse before the sub- ject could be acted upon by the Grand Council of his government, and the result* be reported to him at Washington. He intended, meanwhile, to go to Peru on official business, and return in September, when the expected exchange of ratifications could take place. During the ensuing summer. Congress proceeded to embody in one comprehensive act legislation deemed necessary to give effect to the new ti'eaty. The bill for this purpose, which became a law by the Presi- dent's approval September 13th, 1S88, passed the Sen- ate on August 8th, and the House on the 20th. The first of its fifteen sections recites " that from and after the date of the exchange of ratifications of the pend- ing treaty, . signed the twelfth of March, A. D. 1888, it shall be unlawful for any Chinese person " to enter the United States, "except as hereinafter pro- vided." COMMERCE 1130 - OBSCENE About September 1st it was *■ reported, by way of Loudon," that the treaty in its new shape had been rejected. The representative of China, atWashington, made no such report. On September 3d the subjoined "Exclusion Act" was presented, read, and passed in the House of Rep- resentatives, and by the Senate, four days later, un- amended. A motion to reconsider the vote postponed' final action by the latter body some ten days ; and on October 1st the President signed the bill,— the Chinese government, on September SOth, having declined to negotiate further upon the subject-m.atter. The act reads as follows: " Be it enacted^ etc., That from and after the passage of this act, it shall be unlawful for any Chinese laborer who shall at any time heretofore have been, or may now or hereafter be, a resident within the United States, and who shall have departed, or shall depart, therefrom, and shall have not returned before the passage of this act, to return to, or remain in, the United States. \'* Sec. 2 -That no certificates of identity provided for in the fourth or fifth section of the act to which this is a supplement, shall hereafter be issued; and ' every certificate heretofore issued in pursuance thereof is hereby declared void and of no effect, and the Chinese laborer, claiming admission by virtue thereof, shall not be permitted to enter the United States. "Sec. 3. That all the duties prescribed, liabilities, penalties and forfeitures imposed, and the powers conferred by the second, tenth, eleventh, and twelfth, sections of the act to which this is a supplement are hereby extended and made applicable to the provisions of this act. " Sec. 4. That all such part or parts of the act to which this is a supplement as are inconsistent here- with are hereby repealed." (See 35 St. L. 504.) An act approved October 19th appropriates fifty thousand dollars for carrying into effect the provisions of the Exclusion A6t. (jSb St. L. ei5.) COMMEKCE, page 20(). An act approved October 1, 1888 (35 St. L. 501), au- tnorizes the creation of boards of arbitration or com- mission tor settling controversies and differences between railroad corporations and other common car- riers engaged in inter-State and Territorial transporta- tion of property and passengers, and their employees. COURT, United States Circuit, p. S81. An act approved August 13, 1888 (25 St. L. 433), cor- rects the enrollment of the act of March 3, 1887 (24 id. 552). as follows: Page 281, column 2, line 15, "of" is made "or;" line 25, "of" is made "if ; "lines 42 and 49, "any other suit " and " and when " begin new sentences. Page 282, column 1, line ]4, "At any other time," and line 27, "Whenever," begin paragraphs ; column 2, line 31, "the owner" is made to read "that the owner." A few changes are also made in the punctuation. JUDGMENT, page 578. An act approved August 1, 1888 (25 St. L. 357), in- tended " to regulate the liens of judgments and decrees of the courts of the United States," provides as follows: " That judgments and decrees rendered in a circuit or district court of the United States within any State, shall be liens on property throughout such State in the same manner and to the same extent and under the same conditions only as if such judgments and decrees had been rendered by a court of general jurisdiction of such State: Provided, That whenever the laws of any State require a judgment or decree of a State court to be registered, recorded, docketed, indexed, or any other thing to be done, in a particular manner, or in a certain office or county, or parish in the State of Louisiana before a lien shall attach, this act shall be applicable therein whenever and only whenever the laws of such State shall authorize the judgments and decrees of the United States courts to be registered, recorded, docketed, indexed, or otherwise conformed to the rides and requirements relating to the judg- ments and decrees of the courts of the State.. " Sec, 3. That the clerks of the several courts of the United States shall prepare and keep in their re- spective offices complete and convenient indices and cross-indices of the judgment records of said courts, and such indices and records shall at all times be open to the inspection and examination of the pub- lic. " Sec. 3. Nothing herein shall be construed to re- quire the docketing of a judgment or decree of a United States court, or the filing of a transcript thereof, in any State office within the same county or parish in the State of Louisiana in which the judgment or decree is rendered, in order thaf such judgment or decree may be a lien on any property within such county." OBSCENE, page 724. An act approved September 26, 1£88 (25 St. L. 496), amends former legislation as follows: Section 1. The last clause of section two of the act of June 18, 1888 (ib. 188), shall constitute section three of that act, and read thus: "Sec. 3. That all matter otherwise mailable by law, upon the envelope or outside cover or wrapper of which, or any postal card upon which, any delinea- tions, epithets, terms, or language of an indecent, lewd* lascivious, obscene, libelous, scurrilous, defama- tory, or threatening character, or calculated by the terms or manner or style of display and obviouslj- in- tended to reflect injuriously upon the character or conduct of another may be written or printed, or otherwise impressed or apparent, are hereby ^declared non-mailable matter, and shall not be conveyed in the mails, nor delivered from any postoffice nor by any letter-carrier, and shall be withdrawn from the maUs under such regulations as the postmaster-general shall prescribe; and any person who shall knowingly de- posit, or cause to be deposited, for mailing or delivery, anything declared by this section to be non-mailable matter, and any person who shall knowingly take the same or cause the same to be taken from the mails, for the purpose of circulating or disposing of, or of aiding in the circulation or dispo.sltion of the same,- shall, for each and every offense, upon conviction thereof, be fined not more than five thousand dollars, PROHIBITION 1131 PROHIBITION or imprisoned at hard labor not more than five years, or both, at the discretion of the court." Sec. 2. Revised Statutes, § 8893, as amended by act of July 13, 18T6, shall read: " Sec. 8893. Every obscene, lewd, or lascivious book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, and every arti- cle or thing designed or intended for the prevention of conception or procuring of abortion, and every ar- ticle or thing intended or adapted for any indecent or immoral use. and every written or printed card, letter, circular, book, pamphlet, advertisement or notice of any kind giving information, directly or indirectly, where or how, or of whom, or by what means any of the hereinbefore mentioned matters, articles, or things may be obtained or made, whether sealed as first-class mattei' or not, are hereby declared to be non-mailable matter, and sliall not be conveyed in the mails nor delivered from any post-office nor by any letter-carrier ; and any person who shall knowingly de- posit, or cause to be deposited, for mailing or deliv- ery, anything declared by this section to be non-mail- abJe matter, and any person who shall knowingly take the same, or cause the same to be taken, from the mails for the purpose of circulating or disposing of, or of aiding in the circulation or disposition of tlie same, shall, for each and every offense, be fined upon conviction thereof not more than five thousand dol- lars, or imprisoned at hard labor not more than five years, or both, at the discretion of the court. And all offenses committed under the section of which this is amendatory, prior to the approval of this act, may be prosecuted and punished under the same in the same manner and with the same effect as if this act had not been passed: Provided^ That nothing in this act shall authorize any person to open any letter or sealed mat- ter of the first-class not addressed to himself." PROHIBITION, page 832. Case of Kidd v. Pearson, argued before the Su- preme Court April 4, and decided October 22, 1888. The code of Iowa (ch. 0, tit. 11), as amended in 1884 (Laws, ch. 143), provides: That no person shall manu- facture or sell intoxicating liquors, except for me- chanical, medicinal, culinary, and sacramental pur- poses; keeping liquors with intent to sell them within the State contrary to law is prohibited, and liquor so kept *'is a nuisance," and shall be forfeited (sees. 1523, 1526), " Nothing in this chapter shall be construed to forbid the sale by the importer thereof of foreign in- toxicating liquor imported under the authority of the laws of the United States regarding the importation of such liquors and in accordance with such laws: Pro- vided, That said liquor at the time of said sale by said importer remains in the original casks or packages in which it was by him imported, and in quantities not less than the quantities in which the laws of the United States require such liquors to be imported, and is sold by him in said original casks or packages and in said quantities only. ." (Sec. 15-24.) Permission to manufacture or buy and sell for "mechanical, me- dicinal, culinary, or sacramental purposes " is to be ob- tained from the board of supervisors of the county in which the business is to be conducted, under condi- tions prescribed as to moral character, the wants of the Ipcalitj', etc. December 24, 1885, 1. E. Pearson and S. J. Loughran filed a petition in equity against J. S. Kidd, praying that a certain distillery used by him for the unlawful manufacture and sale of intoxicating liquors be abated as a nuisance, and that he be perpetually enjoined from manufacturing such liquors therein. The con- cluding averment was that Kidd manufactures and keeps for sale, and sells within the State, intoxicating liquors to be taken out of the State for use as a bever- age, and for other than mechanical, medical, culi- nary, or sacramental purposes, contrary to the statute. Kidd, in his answer, pleaded that he had at all times complied with the requirements of the law. Upon the trial it was proven that all the liquors he manufact- ured were for exportation and wore sold outside of Iowa. 4. decree was rendered against him, ordering that his distillery be abated as a nuisance, etc., as prayed for. This decree being affirmed by the supreme court of the State, the case was carried to the Supreme Court of the United States, by which the constitution- ality of the law and proceedings was upheld. Mr. Justice Lamar, delivering the unanimous opin- ion of the court, said in substance: That the State of Iowa could abate the distillery without depriving the owner of his property " without due process of law," within the meaning of the Fourteenth Amendment to the Constitution, was settled by the opinion in the case of Mugler v. Kansas, The only question to be decided is then as to whether the legislation of Iowa under- takes to " regulate commerce." That iDower, conferred upon Congress, is absolute and complete in itself, with no limitation other than prescribed in the Constitution; is to a certain extent exclusively vested in Congress, so far free from State action; is co-extensivfl with the subject on which it acts, and cannot stop at the external boundary of a State, but must enter into the interior of every State whenever required by the interests of commerce with foreign nations, or among the States. This power, however, does not comprehend the purely internal do- mestic commerce of a State which is carried on be- tween man and man within a State or between differ- ent parts of the same State. Whenever power reserved ■ to one of the States is so exercised as to conflict with the free course of a power vested in Congress, the law of the State must yield to the supremacy of the Fed- eral authority, though the law may have been enacted In tiie exercise of a power indisputably reserved to the States. It is a mistake to say, as in this case, that the act of transporting alcohol from the State in the course of lawful commerce with other States not being a crime, to perform that act was not a criminal intent, whether formed before or after the manufacture. It is not the ciiminality of tlie intent to export that is in question, but the innocence or criminality, under the statute, of the manufacture, in the absence of the specific excep- tions to the prohibition, the actual and controlling and bona. fide presence of at least one of which excep- tions was indispensable to the legality of the manu- facture. PROHIBITION 1133 PROHIBITION The construction contended for by Kidd would ex- tend the words of the grant to Congress beyond their obvious import. . . ' " Manufacture " is transforma- tion— fashioning raw materials into a change of form for use. The functions of " commerce " are different. The buying and selling and the transportation inci- dental thereto constitute commerce; and the regula- tion of commerce in the constitutional sense embraces the regulation at least of such transportation. If it be held that the term " commerce " includes the regula- tion of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to reg- ulate, not only manufactures, but also agriculture, hor- ticulture, stock-raising, domestic fisheries, mining, — every branch of industry; for there is not one of these that does not contemplate, more or less clearly, an iuter-State or foreign market. The power being vested in Congress and denied to .the States, it would follow that the duty would devolve on Congress to regulate all those delicate, multiform, and vital interests, — in- terests which are and must be local in all the details of their successful management. We find in the statute no provision the piu'pose of which is to exert the jurisdiction of the State over persons or property or transactions within the limits of other States ; or to act iipon intoxicating liquors as exports, or while in process of exportation or impor- tation. Its avowed object is to prevent, not the carry- ing of liquors out of the State, but their manufacture, except for specified purposes, within the State. Be- cause the products of a domestic manufacture may ultimately become the subjects of inter-State com- merce, it does not follow that State legislation re- specting such manufacture is an attempted exercise of the power to regulate commerce exclusively con- ferred upon Congress. The right of a State wholly to prohibit the manu- facture of intoxicating liquors is not to be overthrown by the fact that a manufacturer intends to export the product of his distillery. And a statute, by merely omitting to except from its operation liquors manu factured for export, does not interfere with the power vested in Congress. In License Tax Cases, 5 Wall. 471 (1866), it was said: " No interference by Congress with the business of citizens transacted within a State is warranted by the Constitution, except such as ifi strictly incidental to the exercise of powers clearly granted to the legislature [Congress]. The power to authorize a business within a State is plainly repug- nant to the exclusive power uf the State over the same subject." The manufacture of intoxicating liquors in a State is none the less a business within that State because the manufacturer intends, at his convenience, to export the liquors to other States. It has already been decided that the fact that an article was manufactured for export to another State does not of itself make it an article of inter-State com- merce, and that the intent'of the manufacturer does not determine the time when the article or product passes from the control of the State and belongs to commerce. In the case of Coe v. Errdl, 316 U. S. 517, ~ 5S4 (1886), logs, which had been cut in New Hampshire and hauled to Errol on the Androscoggin river, in -the same State, to be floated down that river to Lewiston, Maine, while being held at Errol for a convenient op- portunity for the transportation were assessed for local and State taxes. This court held that the logs were liable for taxes like other property in New Hampshire; that "goods do not cease to be part of the general mass of property in a State, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped or entered with a common carrier for transportation to another State, or have been started upon such transportation in a continuous route or journey." The police power of a State is as broad and p^enaiy as its taxing power; and property within a State is subject to the operations of the, former as long as it is within the regulating restrictions of the latter. (The ease is reported 'in 128 U. S. 1, 15-36. Fuller, C. J., not being a member of the Court when it was argued, took no part in the decision. With Coe v. Errol compare Low v. Austin, 13 Wall. 29 (1871), determining when goods lose tJieir character as "imports.")