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/cu31924022835601 ^mm mi QJorndl IGaui iurtjonl library v/A%m:M tkmmBRaHM ADJUDGED V. WORDS and PHRASES, BEING A COLLECTION OP ADJUDICATED DEFINITIONS OF TEEMS USED IN THE LAW, "WITH REFERENCES TO AUTHORITIES. «&^ By CHAELES H. WmFEELD, OF THE NEW JEESEY BAE. You had better lay aside your dictionary, * * for, after all the dictionary is not authority. Ttndal, C. J., in Houghton vs. Gilbart, 7 G. dt P. 7C1. Jeeset City, N. J. : J. J. Gehtiths, Pbintee. —1882— Entered according to Act of Congress, in the year 1882, by CHABLES H. WINEIELD, In the Office of the Librarian of Congress, at Washington. PREFACE. This volume is designed to supply a want long felt in the legal profession. Accurate and authoritative definitions of the technical Words and Phrases of legal language are often needed, but, considering the great number of books the lawyer is obliged to search, they " are as two grains of wheat hid in two bushels of chaff; you shall seek all day ere you find them." Their utility in opening to view the subject of investigation, no one will deny, "for, in the law as in all other sci- ences, they are the very keys of accurate knowledge.* But, to ensure the confidence of the profession, they must be something more than the constructions of lexicographers. They should, in fact, he adjudications. This is their title to respect. For if certain "Words and Phrases have received a settled construction, that construction will, ordinarily, be adhered to.f And "it is an ancient rule for the construction of statutes, that when they make use of "Words and Phrases of a definite and well known sense in the law, they are to be received and expounded in the same sense in the statute.''^ "Words and Phrases, the meaning of which in a statute have been ascertained, are, when used in a subsequent statute, to be understood in the same sense. "|| So, whether used in the common law or in statutes, if Words and Phrases have been judicially defined, such definitions possess both utility and authority. For "the meaning of a word can never be opposed to an authorized definition of it."§ * Michener vs. Dale, 23 Perm. St. 63. t Hall vs. Chaffee, 14 N. H. 218. X Adams vs. Turrentine, 8 Ired. (N. C.) 150. f| People ex rel. Tweed vs. Liscomb, 3 Him (N. X.) 770. § Morrison vs. Wilson, 30 Cal. 347. PREFACE. The definitions here collected have been taken from judicial decisions, and not from dictionaries or elemen- tary works. They are given in the exact language of the Court, so that full reliance may be placed on their accuracy. To this extent the book may be regarded as an authority. Whoever wishes to study the sur- roundings of the definition, will, of course, consult the case, to which reference is made. The design has been to give all definitions of the same word or phrase where those definitions differ in such manner as to throw various lights upon the subject. Where the definitions of the same word or phrase are without variety of suggestions, but one case has been named, and only reference made to other reports where the definition may be found. The page on which the definition is to be found has been given, instead of the page where the case begins. Effort has been made to admit only technical Words and Phrases, and but few others will be found. The word "adjudged," in the title, has been used in the .sense given to it by Bramwell, B., " It seems to me * * that the word ' adjudged ' means ' adjudicated upon.' "1" It is not claimed that all the Words and Phrases which have been adjudged are herein contained. There can be no doubt that many have escaped discovery. But the book as it is — the result of years of labor, — is sub- mitted to the considerate judgment of the profession. If the labor of its preparation shall in any degree lessen the toil of others, if the accurate and authori- tative definitions here to be found, shall be to the learned lawyer " the very keys to accurate knowledge," I shall be satisfied. Jersey City, November 29, 1882. C. H. W. U Eicardo vs. Board of Health, 2 Hurlst. & N. 265. COLLECTION ADJUDGED WORDS AND PHRASES. „ ABANDONED ABANDONMENT " Abandoned (property.) Property is said to be abandoned when it is thrown il away, or its possession is voluntarily forsaken by in the owner, in which case it will become the property ' ,. of the first occupant ; or when it is involuntarily lost i or left without the hope and expectation of again ac- quiring it, and then it becomes the property of the finder, subject to the superior claim of the owner; es except that in salvage cases, by the admiralty law, re the finder may hold possession until he is paid his i compensation, or till the property is submitted to legal jurisdiction for the ascertainment of the com- pensation. * Eads vs. Brazelton, 22 Ark. 509. n Abandonment ri- is a simple non-user of an easement ; and in order to y make out an effectual answer to the claim upon that ,« ground, it is perfectly well settled that the enjoy- I ment, nay all acts of enjoyment, must have totally I ceased for the same length of time that was neces- sary to create the original presumption. Corning vs. Gould, 16 Wend. (N. Y.J 535. Abandonment (in divorce.) The act of a husband, or wife, who leaves his or her consort, willfully and with an intention of causing perpetual separation. State vs. Davis, 10 Mo. 468. (Quoting JSouuier L. Diet) ADJUDGED WORDS AlfD PHBASES. ABANDONMENT ABDICATE Abandonment (in insurance.) An abandonment as that term is understood when applied to contracts of insurance, means the yielding up or surrendering to the insurer by the insured of the interest in the property covered by the insurance. The March. & Manuf. Ins. Co. et al. vs. Duffield et al., 2 Handy (Ohio) 121. Abandonment (maritime.) An abandonment is an act on the part of the assured, by which he relinquishes and transfers to the under- writers his insurable interest, as far as it is a subject' of the policy, or the proceeds of it or the claims aris- ing from it. Cincinnati Ins. Co. vs Duffield, 6 Ohio St. 203. (Quoting Phil, on Ins. 382. ) Abandonment (of land.) To constitute an abandonment there must be a con- currence of the act of leaving the premises vacant, so that they may be appropriated by the next comer, and the intention of not returning. Judson vs. Malloy, 40 Col. 309. Abatement is a generic term, derived from the French abattre, and signifies to quash, beat down, or destroy. Case vs. Humphrey, 6 Conn. 140. Abatement, in the sense of the common law, is an entire overthrow or destruction of the suit, so that it is quashed and ended. But in the sense of the Courts of equity, an abatement signifies only a suspension of all proceedings in the suit, from the want of par- ties capable of proceeding therein. At common law, a suit, when abated, is absolutely dead ; but in equity, a suit, when abated, is merely in a state of suspended animation, and may be revived. Witts vs. Ellis et al. 2 Coldw. (Tenn.) 40. ABDICATE. (Quoting Story's Eq. PI. 354.) The word abdicate doth naturally and properly signify entirely to renounce, throw off, disown, relinquish any thing or person, so as to have no further to do with it ; and that whether it be done by express words or in writing, or by doing such acts as are in- consistent with the holding and retaining of the thing. The People vs, Board of Police, 26 Barb. (N. Y.) 501. ADJUDGED WORDS AND PHRASES. abduction about Abduction. In the legal sense that -word signifies the act of taking and carrying away of a child, ward, wife, &c, either by fraud, persuasion, or open violence. Carpenter vs. The People, 8 Barb. (N. Y.J 603. Abide (the order of the Court.) To "abide" * * is to perform, to " execute," to "conform to" such order. Hodge vs. Hodgson et al., 8 Cush. (Mass.) 297. Abide by (an award.) To abide by an award is the same as to abide an award, to stand to the determination of the arbitrators and to take the consequences of the award. It means simply to await the award without revoking the sub- mission. SIwlw vs. Hatch, 6 N. Hamp. 163. Able-bodied (military) imports an absence of those palpable and visible de- fects, which evidently incapacitate the person for performing the ordinary duties of a soldier. Darling vs. Bo wen, 10 Vermont 152. Abode permanent. It would be safe to say a permanent abode, * * means nothing more than a domicil, a home, which the party is at liberty to leave, as interest or whim may dictate, but without any present intention to change it. Dale vs. Irwin, 78 III. 181. Abortion. By abortion, we understand the act of miscarrying, or producing young before the natural time, before the foetus is perfectly formed. And to cause or pro- duce an abortion, is to cause or produce this prema- ture bringing forth of this foetus. Abram? vs. Foshae, 3 Iowa 278. Abortive child. The abortive child is that, which from an untimely birth, is born incapable of living. Cotton vs. Cotton, 5 Martin (La.) 95. About. The word about means nearness of time, quality or de- ADJUDGED WORDS AND PHBASES. ABRIDGMENT ABSOLUTE gree, or making preparations to do a thing, or being actually engaged in doing something. Hockspringer vs. Ballenburg, 16 Ohio 312. Abridgment. To constitute a true and proper abridgment of a work, the whole must be preserved in its sense : And then the act of abridgment is an act of understanding, employed in carrying a larger work into a smaller compass, and rendering it less expensive, and more convenient both to the time and use of the reader. Strahan vs. Newberry, Loft's M. 775. i McLean 319. Abridgment and compilation (distinguished.) vide Compilation, dec. Absent and absconding debtor. He who lives without the state, or he who has inten- tionally concealed himself from his creditors, or with- drawn himself from the reach of their suits, with in- tent to frustrate their just demands. Fitch vs. Waite, 5 Conn. 121. Absent debtor. Who is an absent debtor ; what is the debtor absent from ? Is it not absent from his dwelling, residence and place of abode, out of the county, so that the or- dinary process of the court cannot be served on him. Den vs. Wharton, 1 Yerg (Tenn.) 135. Abscond. To abscond, in a legal sense, means to hide, conceal, or absent one-self clandestinely, with the intent to avoid legal process. Bennett vs. Avant, 2 Sneed (Tenn.) 153. Absolute. It signifies without any condition or incumbrance. Converse vs. Kellogg, 7 Barb. (N. Y.) 597. 32 Ala. 640. (Quoting Bouvier's L. Diet.) Absolute nullities are of two kinds, those resulting from stipulations derogating from the force of laws made for the pre- servation of public order or good morals and those established for the interest of individuals. 35 Tex. 530. MeaM **" BoUnson > ? Texas 516. ADJUDGED WORDS AM) PHRASES. absolute abuse Absolute eights op persons mean those ■which are so in their primary and strict- est sense, such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy whether out of society or in it. People vs. Berberrich, 20 Barb. (N. Y.) 229. (Quoting 1 Bl. Com. 123. ) Absolute title. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. Johnson, &c, vs. Mcintosh, 8 Wheaton (U. S.J 588. Absolute total loss takes place when the subject insured wholly perishes, or its recovery is rendered irretrievably hopeless. Burt vs. Insurance Co. 9 Hun. (N. Y.) 384. (Quoting Burrill's L. Bid. ) vide Actual total loss : Total loss. Abstract of title is a brief account of all the deeds upon whieh the title rests. A synopsis of the distinctive portions of the various instruments which constitute the muni- ments of title. Dickinson vs. Railroad Co., 1 W. Va. 413. An abstract or summary of the most important part 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, cause and incidents of the title, without the necessity of referring to the deeds themselves. It also contains a statement of all charges, incumbran- ces, liens and liabilities to which the property may be subjected, and of which it is in any way material for purchasers to be apprized. Banker vs. Caldwell, 3 Minn. 100. Abuse. To abuse is compounded of ab and utor ; and in strictness it signifies to injure, diminish in value, or wear away, by usinq improperly. * * Abuse in- cludes misuse. We take them both together and define them thus : Any positive act in violation of the charter, and in derogation of public right, wil- ADJUDGED WOKDS AMD PHEASES. ABUSE ACCEPTANCE fully done or caused to be done by those appointed to manage the general concerns of the corporation. Railroad Co. vs. Casey, 26 Perm. St. 318. Abuse op discretion, and especially gross and palpable abuse of discretion, which are the terms ordinarily employed to justify tin interference with the exercise of discretionary power, implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. Tlie People vs. The N. Y. C. B. B. Co., 29 K Y. 431. vide Discretion. Abuse op legal peocess is where the party employs it for some unlawful ob- ject, not the purpose which it is intended by law to effect ; in other words, a perversion of it. Mayer vs. Walter, 64 Perm. St. 285. Accept (in Stat, of Frauds.) The word accepted imports not merely that there should be a delivery by the seller, but that each party should do something by which the bargain should be bound. Tempest vs. Fitzgerald, 3 B. & A. 683. Accept and kecetve (in Stat, of Frauds.) The meaning to be attached to the terms " accept and receive," is that the purchaser must finally ap- propriate to himself the whole, or a part of the goods. Bodgers vs. Phillips, 40 N. Y. 530. Acceptance is an act done by two parties, one of whom is content i to deliver, and the other to receive, the subject matter of the contract. Acraman vs. Morrice, 8 Man. Gr. & Scott 459. An engagement of the one party acceding to the prop- osition of the other. Jeune vs. Ward, 1 B. & A. 659. 12 Barb. 669. Acceptance (of a draft.) The act by which the drawee evinces his consent to comply with and be bound by the request contained in the bill of exchange directed to him. Bay vs. Faulkner, 73 III. 472. ADJUDGED WORDS AND PHRASES. ACCEPTANCE ACCEPTANCE Aii acceptance is an assent or agreement to comply with the request or order contained in the bill, or, in other words, an assent or agreement to pay the bill according to the tenor of the acceptance when due. Gallagher vs. Nichols, 60 N. Y. 445. An acceptance is evidence of money had and received by the acceptor to the use of the holder ; it is an ap- propriation of so much money to be paid to the per- son who should become holder of the bill. Banking Co. vs. Myers, 7 Halst. (N. J.) 147. What is an acceptance but an engagement to pay the bill when due ? Clarke vs. Cock, 4 East 72. In truth what is the end and effect of acceptance but a liability to pay. Gibson et al. vs. Minet et al., 1 H. Bl. 586. The acceptance of a draft is a promise to pay it ac- cording to its terms. Bonnell vs. Mawha, 8 Vroom (N. J.) 200. An acceptance is a material part of a bill of exchange ; and may be either general or special. By a general acceptance, the acceptor undertakes to pay the bill at any place where he may be called upon. By a special acceptance, he undertakes to pay at the place named in the bill. Coivie vs. Ealsall, 4 B. & A. 198. According to the law-merchant, an acceptance may be (1) expressed in words ; or, (2) implied from the con- duct of the drawee. (3) It may be verbal or written. (4) It may be in writing on the bill itself, or on a sepa- rate paper; and a telegram has been held to be a suf- ficient acceptance. (5) It may be before the bill is drawn, or afterwards. Whildenetal. vs. Merch. & Plant. Nat. Bank, 64 Ala. 28. (Quoting 1 Dan. Neg. Ins. 371.) Acceptance supra protest. An undertaking to pay, if the original drawee, upon a presentment to him for payment, should persist in dishonoring the bill, and such dishonor by him should be notified, by protest, to the person who has ac- cepted, for the honor of the endorser. Hoare vs. Cazenove, 16 East. 394. Such an acceptance is a conditional engagement ; and to render such acceptor absolutely liable, the bill ADJUDGED WORDS AlfD PHRASES. ACCESSABT ACCIDENT must be duly presented for payment to the drawee, and protested in case of refusal. Schofield vs. Bayard, 3 Wend. (N. Y.J 491. ACCESSARY. An accessary is he who is not the chief actor in the offence nor present at the time, but is in some way concerned therein, either before or after the fact com- mitted. United States vs. Hartwell, 3 Clifford (U. S. C. C.) 227. (Quoting 4 Bl. Com. 34.) Accessary after the fact. One who, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. United States vs. HartweU, 3 Clifford (U. S. C. C.J 227. (Quoting 4 Bl. Com. 37. An accessary after the fact is usually defined to be one who, knowing a felony has been committed, shields or assists the felon to enable him to elude punishment. ao n ooc Harris vs. The State, 7 Lea. (Tenn.) 126. Accessary before the fact is he that being absent at the time of the felony com- mitted, doth yet procure, counsel, or command an- other to commit a felony. Burr's Case, 4 Craneh (U. S.) 492. 3 Cliff. 227. (Quoting 1 Sale's P. C. 615.) Accessory. When one thing is united with another, upon which it depends, either by its origin, its nature or its use, the first is called the principal, the second the acces- sory, without any regard to their relative value. A thing is said to depend upon another by its origin when that thing has produced it, by its nature, when it cannot exist when separated from it — and by its use, when it is destined to ornament or be of service to it. Morgan vs. Livingston, 6 Martin (La.) 90. Accident. The word accident when used to express a result pro- duced by human action, is generally, if not univer- sally, understood to mean a thing done, or a disaster caused or produced without design or unintentionally. Blue Wing vs. Buckner, 12 B. Monroe. (Ky.) 250. ADJUDGED WORDS AND PHRASES. ACCIDENT ACCOMPLICE An event or occurrence which happens unexpectedly, from the uncontrollable operations of nature alone, and without human agency. morris vs. Piatt, 32 Conn. 85. This term, in our jurisprudence, means not merely inevitable casualty, or the act of God, or what is called v is major or irresistable force, but rather, such unforseen events, misfortunes, losses, or omissions, as are not the result of any negligence or misconduct in the party who seeks relief. Alexander vs. Bailey et al., 2 Lea (Tenn.) 639. The equitable definition of the term accident includes not only inevitable casualties, and such as are caused by the act of God, but also those that arise from un- forseen occurrences, misfortunes, losses, and acts or omissions of other persons, without the fault, negli- gence, or misconduct of the party. Bostwick vs. Stiles, 35 Conn. 198. 24 Wis. 30 ; 7G N. C. 322. Accident and chance (distinguished.) The one is the intervention of some unlooked for cir- cumstance to prevent an expected result, the other is the uncalculated effect of mere luck. Harkss vs. United States, Morris (Iowa) 173. Accident unavoidable. vide Unavoidable accident. Accommodation bill. A bill on which the drawer has no right to sue the acceptor. King vs. Phillips, 12 M. & W. 706. Accommodation paper is a loan of the credit of the maker to the extent of the value of the note for the benefit of the payee without restriction. Appleton vs. Donaldson, 3 Penn. St. 386. A loan of the maker's credit, without restriction as to the manner of its use. Lord vs. Ocean Bank, 20 Penn. St. 386. 20 Penn. St. 386 ; 30 Penn. St. 139 ; 55 Penn. St. 75 ; 38 N. H. 166 ; 71 Me. 273. Accomplice. An " accomplice," in the full and generally accepted legal signification of the word, is one who, in any 10 ADJUDGED WOBDS AND PHBASES. ACCOMPLICE ACCOBD manner, participates in the criminality of an act, whether he is considered, in strict legal propriety, as a principal in the first or second degree, or merely as an accessory before or after the fact. Polk vs. The State, 36 Ark 126. An accomplice is one of several equally concerned in the commission of a felony. Miller et al. vs. Commonwealth, 78 Ky. 22. (Quoting Tomlin's X. Diet.) An accomplice is one who is associated with others in the commission of a crime, all being principals, although the term is sometimes used to include all the participants in a crime, whether as principals or accessaries. Harris vs. The State, 7 Lea (Term.) 126. (1) One who is in some way concerned in the com- mission of a crime, though not as a principal. * * (2) One of many equally concerned in a felony, the term being generally applied to those who are ad- mitted to give evidence against their fellow criminals for the furtherance of justice which might otherwise be eluded. Cross vs. People, 47 III. 158. ACCOBD AND SATISFACTION is the substitution of another agreement between the parties in satisfaction of the former one, and an exe- cution of the latter agreement. Pullian vs. Taylor, 50 Miss. 257. The settlement of a dispute or the satisfaction of a claim, by an executed agreement between the party i injuring and the party injured, or, to give a defini- tion indicating more definitely its peculiar nature, it is something of legal value to which the creditor be- fore had no right, received in full satisfaction of the debt, without regard to the magnitude of the satis- faction. Bull vs. Bull, 43 Conn. 462. An accord and satisfaction must be a satisfaction of the entire debt, so as completely to extinguish it. Line vs. Nelson, 9 Vroom (N. I.) 362. To constitute an accord and satisfaction it is neces- sary that the money should be offered in satisfaction of the claim, and the offer accompanied with such ADJUDGED WORDS AND PHRASES. 11 ACCOED ACCOUNT acts and declarations as amount to a condition that if the money is accepted, it is accepted in satisfac- tion, and such that the party to whom it is offered, is bound to understand therefrom, that if he takes it, he takes it subject to such condition. Preston vs. Grant, 34 Vermont 203. To constitute a good accord and satisfaction, the fol- lowing particulars seem to be necessary. 1. The matter agreed to be received in satisfaction of the debt, must be something of legal value, to which the creditor before was not entitled. 2. Every part of the matter agreed to be received as satisfaction, must be effectual, so that if a part fail, or do not take effect, the whole agreement is bad. It seems from this, that the legal notion of accord is, a new agreement on a new consideration, to discharge the debtor ; and this agreement comes within the general principles of law as to contracts ; the consid- eration must have legal value, and every part of the alleged consideration must take effect. 3. The accord must be executed ; and a mere execu- tory agreement by the debtor can never be pleaded as an accord and satisfaction. Cumber vs. Wane, 1 Smith's L. Cases 445. Account. An account is a detailed statement of mutual demands in the matter of debt and credit between parties, arising out of contract, or some fiduciary relation. Mc Williams vs. Allan, 45 Mo. 574. A computation or statement of debts and credits arising out of personal property bought or sold, ser- vices rendered, materials furnished, and the use of property hired and returned. McMaster vs. Booth, 4 How. Pr. R. (N. Y.) 428. The primary idea of account, computatio, whether we look to the proceedings of courts of law or equity, is some matter of debt or credit, or demands in the nature of debt and credit, between parties. It im- plies, that one is responsible to another for money or other things, either on the score of contract or of some fiduciary relation, of a public or private nature, created by law, or otherwise. Whitwell vs. Willard, 1 Met. (Mass.) 217 45 Mo. 574 ; 24 Wis. 599 ; 1 Sweeney 347. 12 ADJUDGED WORDS AND PHRASES. ACCOUNT ACCOOTT Account continuous, open, current is an account which is not interrupted or broken, not closed by settlement or otherwise, and is a run- ning, connected series of transactions. Tucker vs. Quimby, 37 Iowa 19. Account current. A running or proper account. James vs. FeUowes, 20 La. Ann. 118. (Quoting Bouvier L. Diet. ) What then is current account ? clearly every one in which there has not been a balance agreed upon and struck between the parties. Franklin, vs. Executors of Camp, Coxe (N. J.) 196. Accounts mutual are made up of matters of set-off. There must be a mutual credit, founded on a subsisting debt, on the one side, or an express or implied agreement for a set-off of mutual debts. There must be a mutual, or as it has been expressed, an alternate course of deal- ing. Prenatt vs. Runyon, 12 Ind. 177. Accounts are mutual where each party makes charges against the other in his books, for property sold, ser- vices rendered, or money advanced, &c. Edmondstone vs. Thomson, 15 Wend. (N. Y.J 556. Account stated. An account stated is an account balanced and ren- dered, with an assent to the balance expressed or im- plied ; so that the demand is essentially the same as if a promissory note had been given for the balance. Volkening vs. De Graaf et al., 81 N. Y. 270. The settlement of an account between the parties, by which a balance is struck in favor of one of them, is called an account stated. James vs. FeUowes, 20 La. Ann. 118. (Quoting Bouvier L. Diet.) An acknowledgment of the existing condition of liability between the parties. Chase vs. Tafford, 116 Mass. 532. It is an agreement by both parties, that all the arti- cles are true. Trueman vs. Hurst., 1 T. R. 42. Supposes a rendering of the account by the party ADJUDGED WORDS AJfD PHRASES. 18 ACCOUNT ACCRETION who is the creditor, with a balance struck, and an as- sent to that balance, expressed or implied. Bass vs. Bass, 8 Pick. (Mass.) 193. Where an account is made up and rendered, he who receives it, is bound to examine the same, or to pro- cure some one to examine it for him ; if he admits it to be correct, it becomes a stated account, and is binding upon both parties — the balance being the debt, which may be sued for and recovered at law upon the basis of an insimul computassent. Langdon vs. Boane's Adms., 6 Ala. 527. The mere rendering an account does not make it a stated one ; but if the other party receives the ac- count, admits the correctness of the items, claims the balance, or offers to pay it, as it may be in his favor or against him, then it becomes a stated account. Toland vs. Sprague, 12 Peters (U. S.J 335. In stating an account, two things are necessary : 1st, That there be a mutual examination of the claims of each other by the parties ; 2d, That there be a mu- tual agreement between them, as to the correctness of the allowance and disallowance of the respective claims, and of the balance, as it is struck upon the final adjustment of the whole account and demands on both sides. The minds of the parties must meet upon the allowance of each item or claim allowed, and upon the disallowance of each item or claim re- jected. They must mutually concur upon the final adjustment, and nothing short of this in substance will fix and adjust their respective demands as an account stated. Lockivood vs. Thome, 18 N. Y. 288. 11 N. T. 174 ; 2 How. (Miss.) 804 ; 25 Miss. 348 ; 3 Pick. 113; 19 Texas 426; 57 Miss. 62. Accretion. An accretion to land is the imperceptible increase thereto on the bank of a river by alluvial formations, occasioned by the washing up of the sand or earth, or by dereliction as when the river shrinks back below the usual water mark ; and when it is by addition, it should be so gradual that no one can judge how much is added each moment of time. Lammers vs. Nissen, 4 Nebraska 250. vide Alluvion. 14 ADJUDGED WORDS AND PHRASES. ACCRUE ACT Accetje and occur (distinguished) vide Occur, &c. Accrued signifies due and payable. Fay vs. HaUoran, 35 Barb. (N. Y.) 297. Accumulated surplus (of a corporation.) It is the fund the corporation has in excess of its capital stock after payment of its debts. People's Ins. Co. vs. Parker, 6 Vroom (N. J.) 578. 5 Vroom 493. Accuse. The expression "to accuse" is used to denote the bringing a charge against one before some court or officer ; and the person thus charged is often referred to as the " accused." People vs. Braman, 30 Mich. 468. Acknowledgment. It is an admission before a competent tribunal or offi- cer, by a party executing the instrument, that he does execute it. Barney vs. Gordon, 6 Humph. (Term.) 355. The act of the grantor going before a competent offi- cer, and declaring the instrument to be his act and deed. Short vs. Conlee, 28 III. 225. 12 Abb. P. K. 37. (Quoting Bouvier L. Did.) Acquets and conquets mean the property jointly acquired, (by husband and wife.) Picotte vs. Cooky, 10 Mo. 318. Acquitted is a word of technical import, and must be under- stood in its technical sense, to wit, an acquittal on trial by a jury. Thomas vs. DeGraffenreid, 2 Nott & McC. (S. C.) 144. 2 T. E. 231 ; 3 MdCord (S. C.) 464. Act. In the legal sense this word may be used to signify the result of a public deliberation, the decision of a prince, of a legislative body, of a council, court of justice, or magistrate. Also a decree, edict, law judgment, resolve, award, determination. Chumaseri vs. Potts, 2 Montana 284. (Quoting Bouvier X. Diet. ) ADJUDGED WORDS AND PHRASES. 15 ACT ACT Act (in legislation) is a statute or law made by a legislative body. People vs. TipJiaine, 3 Parker's Cr. B. (N. Y.J 244. When a bill is duly passed by a legislative body it becomes an act of that body ; that is a thing done. Chwnasers vs. Potts, 2 Montana 285. Act judicial. An act performed by a court, touching the rights of parties, or property, brought before it by volun- tary appearance, or by the prior action of ministerial officers, in short, by ministerial acts. Flournoy vs. Jeffersonville 11 Ind. 173. 54 Ind. 377. Act ministebial. One which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act being done. Flournoy vs. Jeffersonville, 17 Ind. 174. 54 Ind. 377. Act op God means a natural necessity which could not have been occasioned by the act of man, but proceeds from phy- sical causes alone, such as the violence of the winds or seas, lightnings or other natural accidents. Hays vs. Kennedy, 3 Grant's Gases (Pa.) 358. A cause which operates without any aid or interfer- ence from man. Clay Co. vs. Simonsen, 1 Dakota 433. (Quoting. 2 Pars, on Gont. 159. ) I consider it to mean something in opposition to the act of man : for every thing is the act of God that happens by his permission ; every thing, by his know- ledge. But to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shews it was done by the King's enemies, or by such act as could not happen by the interven- tion of man, as storms, lightning and tempests. Forward vs. Pittard, 1 T. B. 33. It must be such a direct, and violent, and sudden, 16 ADJUDGED WORDS AKD PHRASES. ACT ACTION and irresistible act of Nature as could not by any amount of ability have been forseen, or if forseen, could not by any amount of human care and skill have been resisted. Nugent vs. Smith, 1 C. P. JDiv. 434. 8 S. & K. (Pa.) 536 ; 4 Zab. 700 ; 29 N. Y. 117 ; 4 Harr. (Del.) 449 • 76 HI. 544 ; 35 Cal. 423 ; 11 Exoh. 623. Act of God and inevitable accident (distinguished) vide Inevitable accident, &c. Action. The rightful method of obtaining in court, what is due to any one. Badger vs. GUmore, 37 N. Hamp. 458. The lawful demand of one's right in a court of justice. Taylor vs. Kelly, 80 Penn. St. 98. Action is the lawful demand of one's rights in the form given by law. Hall vs. Becker, 48 Maine 255. Action is the form of a suit given by law for the re- covery of that which is one's due, the lawful demand of one's right. The People vs. Colborne, 20 How. Pr. R. (N. Y.J 380. (Quoting Co. Iiitt. 285 a.) A remedial instrument of justice, whereby redress is obtained for any wrong committed or right withheld. Durant vs. Supervisors, dc, 26 Wend. (N. Y.J 86. (Quoting 3 Bl. Com. 3. ) Any judicial proceeding which, conducted to a ter- mination, will result in a judgment, is an action. People vs. Co. Judge, dc, 13 How. Pr. B. (N. Y.J 400. 23 Me. 425 ; 28 Me. 438 ; 7 Ark. 483. Action and suit (distinguished) vide Suit, dc. Action in rem is to ascertain the right of every possible claimant ; and it is instituted on an allegation, that the title of the former owner, whoever he may be, has become divested, and notice of the proceeding is given to the whole world to appear and make claim to it. Peters vs. Dunnells, 5 Nebraska 465. «U Vt. 05, ADJUDGED WORDS AND PHBASES. 17 actionable actual Actionable fraud, consisting in a false representation, imports ex vi ter- mini an intent to deceive. It may be committed by stating what is known to be false. It may be com- mitted by professing knowledge of the truth of a statement which is untrue. But, in either case, false- hood uttered with intent to deceive, are the essential ingredients. Chester vs. Comstoch, 40 N. Y. 575 n. 2 Jones & Spencer 554. Actual is something real, in opposition to constructive or speculative, something "existing in fact." Stcmington vs. State, 31 Conn. 213. Actual and constructive fraud (distinguished.) vide Frauds, &c. Actual and constructive possession (distinguished.) Actual possession exists where the thing is in the immediate occupancy of the party ; constructive is that which exists in contemplation of law, without actual personal occupation. Brown vs. Volkening, 64 N. Y. 80. Actual and continued change of possession (in chattel mortgage act) means an open, public change of possession, which is to continue and be manifested continually by out- ward and visible signs, such as render it evident that the possession of the judgment debtor has ceased. Topping vs. Lynch, 2 Robertson (N. Y.) 484. 84 N. Y. 638. Actual delivery consists in the giving real possession of the thing sold to the vendee or his servants, or special agents, who are identified with him in law, and represent him. Bolin vs. Huffnagle, 1 Rawle (Pa.) 19. Actual fraud consists in any kind of artifice by which another is deceived. JacJcson vs. Jackson, 41 Georgia 109. Actual notice. Notice must be held to be actual when the subse- 18 ADJUDGED WOKDS AND PHBASES. ACTUAL ACTUAL quent pur chaser 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." Brinkman vs. Jones, 44 Wis. 519. vide Notice (in equity). 15 Geo. 156. Actual possession is the same as pedis possessio, or pedis positio, and these mean a foothold on the land, an actual entry, a possession in fact, a standing upon it, an occupa- tion of it, as a real demonstrative act done. It is the contrary of a possession in law, which follows in the wake of title, and is called constructive possession. Churchill vs. Onderdonk, 59 JV1 Y. 136. Actual possession is that which is accompanied with the real and effectual enjoyment of an estate with the reception of its fruits, and is contradistinguished from imaginary or fictitious possession. Sunol vs. Hepburn, 1 Cal. 263. Actual possession exists where the thing is in the immediate occupancy of the party. Brown vs. Volkening, 64 N. Y. 80. Actual possession as much consists of a present power and right of dominion as an actual corporal presence. Mintum vs. Burr, 16 Cal. 109. By actual possession is meant a subjection to the will and dominion of the claimant, and is usually evidenced by occupation, by a substantial inclosure, by cultivation, or by appropriate use, according to the particular locality and quality of the property. Coryell vs. Cain, 16 Vol. 573. Actual possession of land is the purpose to enjoy, united with or manifested by such visible acts, im- provements or inclosures as will give to the locator the absolute and exclusive enjoyment of it. Straininger vs. Andrews, 4 Nevada 68. 4 Clarke (Iowa) 27. Actual total loss takes place when the subject insured wholly perishes, 1 or its recovery is rendered irretrievably hopeless. Burt vs. Brewers', &c. Ins. Co. 9 Hun. (N. Y.) 384. (Quoting BurriXVs L. Diet.) ' ADJUDGED WORDS AND PHKASES. 19 ademption admtnisteb Ademption. It is used to describe the act by which the testator pays to his legatee, in his life time, a general legacy Avhich by his will he had proposed to give him at his death. It is also used to denote the act by which a specific legacy has become inoperate on account of the testator having parted with the subject. Langdon vs. Astor's Exrs., 16 N. Y 40. It takes place, as the term imports, when the thing which is the subject of the legacy, is taken away, so that when the testator dies, though the will purports to bestow the legacy, the thing given is not to be found to answer the bequest. It has been extin- guished, if a specific debt, by having been paid to the testator himself ; if an article of property, by its sale or conversion. Beck vs. McGillis, 9 Barb. (N. Y.) 56. The word " ademption " is synonymous with satis- faction, when applied to specific legacies. Clark vs. Jetton, 5 Sneed (Tenn.) 234. 23 N. H. 215; 3 Duer. (N. Y.) 541; 23 N. H. 215. Adjouened SESSION. An " adjourned session " is considered as the same session with that at which the adjournment was made. Mechanics' Bank vs. Withers, 6 Wheaton (U. S.J 109. Adjouenment. An adjournment is a putting off until another time or place. People vs. Martin, 5 JSf. Y. 26. (Quoting Wharton's Law Lex. p. 21.) " An adjournment," says Mr. Blackstone, " is no more than the continuance of the session from one day to another, as the word itself signifies. Trammell vs. Bradley, 37 Ark. 379. 5 Fla. 303. Administer. The word " minister " is said to be derived from the same root as the Latin word mantis, the hand. Ety- mologically, therefore, the word " administer " would seem applicable to anything that could be done by the hand, to ox for another. Blackburn vs. State, 23 Ohio St. 162. 20 ADJUDGED WOBDS AND PHRASES. ADMINISTERING ADMINISTRATOR Administering (poison) embraces every mode of giving it or causing it to be taken. LaBeau vs. People, 34 JSf. Y. 233. 23 Ohio St. 162 ; 8 Ohio St. 164. Administrator is a person lawfully appointed to manage and settle the estate of a deceased person, who has left no ex- ecutor. Smith Admr. vs. Gentry, 16 Georgia 32. Administrators are general or special : general are of two kinds ; first, when the grant of administration is unlimited, and the administrator is required to ad- minister the whole estate under the intestate laws ; secondly, when the grant is made with the annexation of the will, which is a guide to the administrator to administer and distribute the estate. Special admin- istrators are of two kinds : first, when the adminis- tration is limited to part of the estate ; as, for exam- ple, when the former administrator had died, leaving a part of the estate unadministered, an administrator is appointed to administer the remainder and he is called the administrator de bonis non. * * Secondly, when the authority of the administrator is limited as to time ; as administrators durante minore cetate, dur- ante absentia, and pendente lite. Clemens vs. Walker et al., 40 Ala. 198. Administrator de bonis non is one who administers upon the unadministered ef- fects of the deceased. Barkman et al. vs. Duncan et al., 10 Ark. 466. It is essential to the validity of a grant of adminis- tration de bonis non, that the preceding administration should have become vacant, by the resignation, re- moval, or death of the administrator. , Sims vs. Waters, 65 Ala. 443. Administrator pendente lite. The very title, " administrator pendente lite," carries with it its own explanation. It continues, pending the suit, only. Cole vs. Wooden, 3 Harr. (N. J. ) 20. 16 S. &R. (Pa.) 420. An officer of the court, whose duty is limited to filing ADJUDGED WORDS AND PHKASES. 21 ADMIRALTY ADVANCEMENT an inventory, taking care of the assets, and collecting and paying debts. EUmakers Estate, 4 Watts (Pa.) 36. vide Administrator. Admiralty and maritime jurisdiction. The terms " admiralty and maritime jurisdiction," according to etymology and received use, extend to all things done upon and relating to the sea, to transac- tions relating to commerce and navigation, and to damages and injuries upon the sea, and all maritime contracts, torts and injuries. In re Steamboat Josephine, 39 N. Y. 22. Admitted to bail. The allegation that the defendant was " admitted to bail" must be understood to mean that he was dis- charged upon his own recognizance. Shelby Co. vs. Simmonds, 33 Iowa 347. Adult male. The term adult male, * * signifies a person who , has attained the full age of twenty-one years. '' ( Ji ¥' J > George vs. The State, 11 Texas App. 96. Adultery is sexual connection between a married woman and an unmarried man, or a married man other than her husband. Hood vs. State, 56 Ind. 271. It is the sin of incontinence between married persons, or if one only be married it is called single adultery. Commonwealth vs. KiUwell, 1 Pittsb. B. (Pa.) 260. (Quoting Jacob's L. Diet.) 58 m. 60 ; 27 Ala. 25 ; 1 Harr. (N". J.) 384 ; 2 Strobh. Eq. (S. C.) 179. Tappan (Ohio) 59. Advancement is a pure and irrevocable gift, by a parent, in his life time, to his child, on account oi such child's share of the estate, after the parent's decease. Miller's Appeal, 31 Penn. St. 338. Advancement is an irrevocable gift by a parent, who afterwards dies intestate, of the whole or a part of what it is supposed the child will be entitled to, on the death of the party making the advadcement. Christy's Appeal, 1 Grant's Cases (Pa.) 370. Advancement is that which is given by a father to 22 ADJUDGED WOBDS AND PHBASES. ADVANCEMENT ADVANCES his child, or presumptive heir, by anticipation of what he might inherit. Executors of Nolan vs. Bolton, 25 Georgia 356. "Advancement" and "advancements," are the terms used in the law dictionaries and in our statutes, to designate 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" is not the appropriate term for money or property thus furnished. Chase vs. Ewing, 51 Barb. (N. Y.J 612. The true notion of an advancement is a giving, by anticipation, the whole or a part of what it is sup- posed a child will be entitled on the death of the parent, or party making the advancement. Osgood vs. Breed's Heirs, 17 Mass. 358. The true idea of an advancement, is a delivery by the parent during his life, to one or more of his children, the whole or a portion of that, to which the child would be entitled, on a distribution of the estate after the parent's decease. It is distinguishable from a gift, which parents may make to their children, whether to a greater or less amount ; for in such case, there is no intention to have it chargeable on the child's share of the estate. It is also distin- guished from a debt ; for in the case of an advance- ment, the common relation of debtor and creditor does not exist. WeatherJiead vs. Field, 26 Vermont 668. An advancement is a payment or appropriation of money or property, or a settlement of real estate, made by a parent to or for a child, in advance or anticipation of the distributive share to which such child would be entitled after the death of the parent, and with a view to a portion or settlement in life. HoUiday vs. White, 33 Texas 460. 21 Penn. St. 287 ; 5 Coldw. 200 ; 18 111. 170 ; 1 Swan. 488 ; 74 Penn. St. 47 ; 45 Conn. 87 ; 7 Hun. 645 ; 57 Md. 342 ; 9 Heisk. 817. Advances. The word " advances," when taken in its strict legal sense, does not mean gifts — advancements, and does mean a sort of loan ; and when taken in its ordinary and usual sense, both loans and gifts — loans more readily, perhaps, than gifts. Advances are said to ADJUDGED WORDS AND PHRASES. 28 ADVERSE ADVERSE take place when a factor or agent pays to his princi- pal, a sum of money, on the credit of goods belonging to the principal, which are placed, or are to be placed, in the possession of the factor or agent, in order to reimburse himself out of the proceeds of the sale. Executors of Nolan vs. Bolton, 25 Georgia, 355. Adverse party (in appeals.) Every party whose interest in the subject-matter of the appeal is adverse to, or will be affected by the reversal or modification of the judgment or order from which the appeal has been taken. Senter vs. DeBernal, 38 Gal. 640. 1 Barb. Ch. (N. Y.) 627. Adverse possession is the actual, visible, and exclusive appropriation of land, commenced and continued under a claim of right ; either under an openly avowed claim, or under a constructive claim, arising from the acts and cir- cumstances attending the the appropriation, to hold the land against him who was seized. Magee vs. Magee, 37 Miss. 152. (Quoting Angdl on Lim. 410 § 11. ) The term " adverse possession " designates a posses- sion in opposition to the true title and real owner, and it implies that it commenced in wrong — by ouster or disseisin — and is maintained against right. Alexander vs. Polk, 39 Miss. 755. It is a possession not under the legal proprietor, but entered into without his consent, either, directly or indirectly given. It is a possession by which he is disseized and ousted of the land so possessed. French vs. Pearce, 8 Conn. 441. A possession, in order to be adverse, must be accom- panied with a claim of the entire title. Jackson vs. Johnson, 5 Gowen (N. Y.J 92. There must be a real and substantial enclosure, an actual occupancy, a possessio pedis, which is definite, positive ana notorious, to constitute an adverse pos- session, when that is the only defence, and it is to countervail a legal title. Jackson vs. Schoonmaker, 2 John (N. Y.) 234. To constitute adverse possession two facts must con- 24 ADJUDGED WOKDS AND PHRASES. ADVERSE AFFIDAVIT cur. First, there must be an entry, under color of right, claiming title, hostile to the true owner and the world. Second, that entry must be followed by pos- session, and appropriation of the premises, to use, publicly or notoriously, so that the other claimants may take notice, and others may be cognizant of the fact. Dixon vs. Cool, 41 Miss. 226. A possession that in its commencement is not adverse, becomes adverse only when the holder, changing his mind, intends it to become adverse, and knowledge of such his change of mind comes to the true owner. Gay vs. Mitchell, 35 Georgia 141. 2 Penn. St. 185 ; 13 HI. 193 ; 4 Rich. (S. C.) 529 ; 6 Rich. (S. C.) 67; 58 HI. 589 ; 5 Day 188 ; 32 Md. 359 ; 1 Sneed 592 ; 5 Md. 250. Adverse usee is nothing more than such an use of the property as the owner himself would exercise ; and when a party, in this manner and for the purposes of a way, has re- ceived no permission from the owner of the soil, and uses the way as the owner would use it, disregarding his claims entirely, using it as though he owned the property himself, that is an adverse user. Blanchard vs. Moulton, 63 Maine 436. Advowson. An advowson, in modern times and in ordinary lan- guage, has, no doubt, been used to mean the perpet- ual right of presentation to a church, or ecclesiastical benefice. Lord Coke, however, defines it thus, " Ad- vowson" — advocatio, signifying an advowing or taking into protection, is as much as jus patronatus. Atty. Gen. vs. Chaplains, &c, 21 Eng. L. & Eq. 417. Affidavit. An oath in writing, sworn before some judge or offi- cer of the court or other person legally authorized to administer it ; a sworn statement in writing. Watts vs. Womack, 44 Ala. 607. An oath or affirmation reduced to writing, sworn or affirmed to before some officer who has authority to administer it. It is not necessary that the affiant should sign the affidavit. Gill vs. Ward, 23 Ark. 17. ADJUDGED WORDS AND PHRASES. 25 AFFIDAVIT AFFIRMATIVE An affidavit is a voluntary oath, before some judge or officer of the court, to evince the truth of certain facts. Morris vs. The State, 2 Texas App. 503. An affidavit is an oath in writing, signed by the party deposing, sworn before, and attested by him who hath authority to administer the same. Hargardine vs. Van Horn, 72 Mo. 371. (Quoting 1 Bacon Abr. 145. 77 N. C. 334 ; 4 Heisk. 534 ; 9 Yerg 10 ; 19 Texas 155, 235 ; 1 Harr. (N. J.) 125. Affidavit and deposition (distinguished) vide Deposition, dec. Affinity properly means the tie which arises from marriage betwixt the husband and the blood relatives of the wife, and between the wife and the blood relatives of the husband. Paddock vs. Wells, 2 Barb. Ch. B. (N. Y) 333. The relation contracted by marriage between a hus- band and his wife's kindred, and between a wife and her husband's kindred, in contradistinction from consanguinity, or relation by blood. Carman vs. Newell, 1 Denio (N. Y.) 26. Affinity always arises by the marriage of one of the parties so related. A husband is related by affinity to all the consanguinei of his wife, and vice versa, the wife to the husband's consanguinei ; for the husband and wife being considered one flesh, those who are related to the one by blood are related to the other by affinity. Higbe vs. Leonard, 1 Denio (N. Y.) 187. 29 Me. 545 ; Peck (Tenn.) 389 ; 13 Jones & Spencer (N. Y.) 84. Affirmative wakbanties (in policy) usually consist of positive representations in the policy of the existence of some fact or state of things at the time, or previous to the time, of the making of the policy ; and they are, in general, conditions precedent, which, if untrue, whether material to the risk or not, the policy does not attach, as it is not the contract of the insurer. James vs. Lycoming Ins. Co., 4 Cliff. (U. S. C. C.J 281. vide Representation (in Insurance.) 26 ADJUDGED WORDS AND PHRASES. affirmative agent Affirmative words are often, in their operation, negative of other objects than those affirmed. Marbury vs. Madison, 1 Cranch (U. 8.) 174. l Col. 48. Affray is the fighting of two or more persons in some public place to the terror of the King's subjects. State vs. Brewer, 33 Ark. 178. First. There must be fighting. Second. This fighting must be by or between two or more persons. And Third. It must be in some public place to cause terror to the people. Hence it must follow, that if either of these requisites are wanting, an affray does not exist. Simpson vs. Tlve State, 5 Yerg. (Tenn.) 358. 6 Dana (K'y) 395; 16 Ala. 67; 2 Hen. & Munf. (Va.) 360; 8 Humph. 85; 4 Humph. 429. After payment of my debts (in will) means that until his debts are paid he gives nothing ; that everything he has shall be subject to his debts. Shalicross vs. Finden, 3 Ves. 739. Agent. A substitute, or a person employed to manage the affairs of another. Adams vs. Whittlesey, 3 Conn. 567. Agent and attorney in fact (distinguished), vide Attorney, dec. Agent general and special (distinguished.) , The acts of the former bind the principal, whether in accordance to his instructions or not ; those of the latter do not, unless strictly within his authority. Bossiter vs. Bossiter, 8 Wend. (N. Y.J 497. As to the former, the principal is responsible for the acts of the agent, when acting within the general scope of his authority, and the public cannot be sup- posed connusant of any private instructions from the principal to the agent; but where the agency is a special and temporary one, there the principal is not bound, if the agent exceeds his employment. Munn vs. Commission Co., 15 John. (N. Y.) 54. The general agent has authority to bind his principal ADJUDGED WORDS AJfD PHRASES. 27 AGGRAVATION AGREEMENT by all acts within the scope of his employment, and that power cannot be limited by any private order or direction not known to the party dealing with the agent. An agent constituted for a particular pur- pose, and under a limited power, cannot bind his principal if he exceeds his power. The special power must be strictly pursued. Scott vs. McGrath, 7 Barb. (N. Y.J 55. vide Special agency. Aggravation, matter of. Matter of aggravation, correctly understood, does not consist in acts of the same kind and description as those constituting the gist of the action, but in some- thing done by the defendant, on the occasion of com- mitting the trespass, which is, to some extent, of a different legal character from the principal act com- plained of. As where the plaintiff declares in tres- pass for breaking and entering his dwellinghou£e, and alleges, in addition, that the defendant also de- stroyed his goods in the house, assaulted and beat his domestics, or debauched his daughter, or servant. Hathaway vs. Bice, 19 Vermont 101. Agister. An agister is one who takes the cattle of another into his own ground to be fed for a consideration to be paid by the owner. Bass vs. Pierce, 16 Barb. (N. Y.J 596. Agistment. The word " agistment" means, where cattle are in the land of another by his consent, or by some con- tract with the owner of the land. The King vs. Inhabitants of Croft, 3 B. & A. 177. Agreed, ex vi termini, means that it is the agreement of both parties, (whether both sign it or not,) each and both consenting to it. Aikin vs. Alb., Ft. & G. R. R. Co., 26 Barb. (N. Y.J 298. The term " agreed" is a technical term, and synony- mous with contracted. M'Kisich vs. M'Kisick, Meigs (Tenn.J 433. 30 Barb. 299. Agreement. Agreamentum is a word compounded of two words, 28 ADJUDGED WORDS AND PHRASES. AID AT/TAS viz. of aggregatio and mentium. And so by the con- traction of the two words, and by the short pronun- ciation of them they are made one word, viz. aggrea- mentum, which is no other than an union, collection, copulation, and conjunction of two or more minds in anything done or to be done. Reniger vs. Fogossa, Plowden 11. A mutual contract or consideration between two or more parties. Wain vs. Warlters, 5 East 17. It is synonymous with the concord of two or more minds, or mutual assent. Sage vs. Wilcox, 6 Conn. 86. -ride Contract. 24 Wend. 289 ; 5 East. 16. AlD AND ABET. The words aid and abet, in legal phrase, are pretty much the synonyms of each other. They compre- hend all assistance rendered by acts, words of en- couragement or support, or presence, actual or con- structive, to render assistance, should it become necessary. No particular acts are necessary. Timberlake vs. Brewer, 59 Ala. 108. Aid and belief imply want, need, or necessity, on the part of the applicant. Russell vs. Providence, 7 R. I. 574. Aid or assistance is the doing of some act whereby the party is enabled, or it is made easier for him, to do the principal act, or effect some primary purpose. Wiley vs. MeRee, 2 Jones Law (N. C.J 351. Alderman. The term alderman does not import legislative more than judicial power. We learn from ancient author- ities that comes, oddorman and earl are equivalent words in the Latin, Saxon, and Danish-Saxon lan- guages. In England this officer sat with the Bishop at the trial of causes, and, while the latter expounded the ecclesiastical, it was the duty of the former to declare the common law. Purdy vs. People, 4 Hill (N. Y.) 409. Alias. The term has become familiar as equivalent to ADJUDGED WORDS AND PHRASES. 2!) ALIEN ALIENATE " otherwise called," or " otherwise known as," and may properly be treated as having in use in plead- ings in English acquired that import, as a techni- cal term constantly employed in that sense without its former Latin companion (dictus). Kennedy vs. People, 39 N. Y. 251. At.tt-. tj. An alien is a subject that is born out of the ligeance of the king, and under the ligeance of another. Calvin s Case, 7 Coke 16. One born out of the jurisdiction of the United, States, who has not since been naturalized under the constitution and laws. McGregor vs. McGregor, 1 Keyes (N. Y.) 134. (Quoting Bouvier's L. Did.) Alien, alienigena, is derived from the Latin word alienus, and according to the etymology of the word, it signifieth one born in a strange country, under the obedience of a strange prince or country (and there- fore Bracton saith that this exception propter de- fectum nationis, should rather be propter defectum sub- jectionis), or as Littleton saith, (which is the surest), out of the liegeance of the king. Exparte Daioson, 3 Bradf. Surr. R. (N. Y.) 13S. Aliens in the United States are at present of two kinds — aliens by birth and by election. First. Aliens by birth are all persons born out of the dominions of the United States, since the 4th day of July, 1776, with some few exceptions, as children of citizens born abroad, and persons naturalized by act of Con- gress. Second, Those made by voluntary expatria- tion. Lynch vs. Clarice, 1 Sandf. Ch. (N. Y.) 669. (Quoting 1 Tucker's Bl. bom. Part. 2, App. 101. ) 33 How. Pr. (N. Y.) 458; 3 McLean 219; 37 Miss. 27. Alienate is the act by which the title to an estate is voluntarily resigned by one person and accepted by another, in the forms prescribed by law. Masters vs. Madison Ins. Co., 11 Barb. (N. Y.) 629. (Quoting Bouvier Inst. § 1992.) As understood at common law, to alienate real estate is voluntarily to part with the ownership of it, either 30 ADJUDGED WORDS AXD PHRASES. ALIENATION ALIMONY by bargain and sale, or by some conveyance, or by gift or will. Burbank vs. Rockingham M. F. I. Co., 24 N. Hamp. 558. Alienation an act whereby one man transfers the property and possession of lands, tenements or other things to an- other person. Boyd vs. Cudderback, 31 III. 119. Alienation is a mode of obtaining an estate by pur- chase, by which it is yielded up by one person and accepted by another. Masters vs. Mad. Co. Mut. Ins. Co., 11 Barb. (N. Y.) 629. 12 Me. 48 ; 18 Ga. 468. Alienation and descent (distinguished.) Alienation is effected by the voluntary act of the owner of the property, while descent is the legal con- sequence of the decease of the owner, and is not changed by any previous act or volition of the owner. Burbank vs. Roekingham Co. M. F. I. Co., 24 N. H. 558. Alienation in moetmain is an alienation of lands or tenements to any corpora- tion sole or aggregate, ecclesiastical or temporal. Downing vs. Marshall, 23 How. Pr. R. ( N. Y.J 34. Alienation in mortmain is an alienation of lands or tenements to any corporation, aggregate, ecclesiasti- cal, or temporal, the consequence of which in former times was, that by allowing lands to become vested in objects endued with perpetuity of duration, the lords were deprived of escheats and other feudal profits, and the general policy cf the common law, which favored the free circulation of property, was frustrated. Perin vs. Carey, 24 How. (U. S.) 495. Alimony, as applied to the marital relation, is that maintenance or support which the husband, on separation, is bound to provide for the wife, and is measured by the wants of the person entitled to it, and the circumstances or ability of him who is bound to furnish it. Wheeler vs. Wheeler, 18 III. 40. Alimony is a maintenance afforded to the wife, where ADJUDGED YFOBDS USD PHRASES. 31 ALIMONY allegiance the husband refuses to give it, or where from his im- proper conduct compels her to separate from him. Wallingford vs. WaLlingford, 6 Harr. & J. (Md.) 488. Alimony is that allowance which is made to a woman for her support out of the husband's estate. Odom vs. Odom, 36 Georgia 319. Alimony is a certain part on (or ?) proportion of the husband's estate, which is allowed and assigned to the wife, upon their divorce. Lyon vs. Lyon, 21 Conn. 196, Alimony means a portion, or sum allotted to the wife for her maintenance, from year to year, either during a matrimonial suit, or upon a divorce. Parsons vs. Parsons, 9 N. Hamp. 317. It is not, under the unwritten law, a gross sum, or a specific part of the husband's estate, transferred to the wife in specie ; but it is a continuous allotment of sums payable at regular periods for her support from year to year. Crews vs. Mooney, 74 Mo. 29. (Quoting 2 Bishop Mar. & Div. § 427. ) 75 N. C. 70 ; 44 "Wis. 355 ; 1 Blaokf. 482 ; 7 B. Mon. 51 ; 49 Mo. 387 ; 55 Me. 23; 7 Hill (N. Y.)213. All the best and residue (in will) means what remains for distribution, according to law, that is, what is left after payment of debts. Carroll vs. Connet, 2 J. J. Marsh. (Ky.) 201. Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is ; and the allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Inglis vs. Sailor's Snug Harbor, 3 Peters (.U. S.) 155. By allegiance is meant the obligation of fidelity and obedience which the individual owes to the govern- ment under which he lives, or to his sovereign in re- turn for the protection he receives. It may be an absolute and permanent obligation, or it may be a qualified and temporary one. Carlisle vs. United States, 16 Wallace (U. S.) 154. 20 John 191 ; 1 Sandf. Ch. 670. ADJUDGED WORDS AND PHRASES. allodial allowed. Allodial land that whereof the owner had the complete and abso- lute property, free from all services to any particular lord. Wallace vs. Harmstad, 44 Perm. St. 499. Allodium is the land possessed by a man in his own right, with- out any rent or service to any superior. McCartee vs. Orphan Asylum, 9 Cowen (N. T.J 513. (Quoting 4 Bl. Com. 119.) Allonge. An endorsement may be made on another paper at- tached to and made part of a note. Such paper is called an allonge. Crosby vs. Boub., 16 Wis. 656. Allopathic practice (in medicine) means the ordinary method commonly adopted by the great body of learned and eminent physicians, which is taught in their institutions, established by their highest authorities, and accepted by the larger and more respectable portion of the community. Bradbury vs. Bardin, 34 Conn. 453. Allot. To " allot " is usually understood a meaning to set apart a portion of a particular thing or things to some person. Glenn vs. Glenn, 41 Ala. 586. Allowance. The term "allowance" is ordinarily only another name for a gift or gratuity to a child or other de- pendent. Taylor vs. Staples, 8 B. I. 179. Allowance (of executor's acc't). The term "allowance," can mean nothing more than the sanction or approbation which the court gives to acts of the executor or administrasor as manifested by his account. Gildert's Heirs vs. Starke, 1 How. (Miss.) 457. Allowed. The word " allowed," in its usual acceptation, * * means something substituted by way of compensa- tion for another thing. Glenn vs. Glenn, 41 Ala. 586. ADJUDGED WORDS AND PHRASES. alluvion alter Alluvion. By the common law, alluvion, is the addition made to land by the washing of . the sea, a navigable river or other stream, whenever the increase is so gradual that it cannot be perceived in any one moment of time. Lovingston vs. St. Glair Co. 64 III. 58. In the light of the authorities alluvion may be de- fined as an addition to riparian land, gradually and imperceptibly made by the water to which the land is contiguous. It is different from reliction, and is the opposite of avulsion. St. Clair vs. Lovingston, 23 Wallace (U. S.) 68. vide Accretion. 25 Ark. 121; 6 Mart. (La.) 62; 7 Lea (Tenn.) 100. Along its route (in E. E. act) means in proximity to the rails upon which the loco- motive-engines run. G. Trunk R. R. Co. vs. Richardson, 1 Otto ( U. S.J 472. 42 Me. 585. Altek. The very word alter, retaining its original Latin form, and almost its precise original meaning, implies an- other ; and nothing which ceases to exist, can in any proper sense be said to be altered. If it is altered, it has merely changed its form or nature, but still has an existence. JEtaynes vs. State, 15 Ohio St. 458, To alter is to make a thing different from what it was. Smith vs. Brown, 1 Wend. (N. Y.) 236. 29 Cal. 484. Alteb, amend or destroy (a contract.) The power to alter or amend a contract, * * is to change it as between the original parties, and such others only, as have been permitted, by their mutual consent, to come into the enjoyment of its benefits and privileges ; not to compel one of the parties to operate in conjunction with others, and share with them the privileges and benefits of the contract. Sage vs. DiUard, 15 B. Mm. (Ky.) 359. U ADJUDGED WOKDS AHD PHKASES. alteration ambiguity Alteration. An " alteration," ex vi termini, means a change or substitution of one thing for another. Johnson vs. Wyman, 9 Gray (Mass.) 189. Tide Material alteration; spoliation. 5 Lea 442. Alteration and spoliation of an 'instrument (distinguished.) The term alteration is, at this day, usually applied to the act of the party entitled under the deed, or in- strument, and usually imports some fraud or im- proper design on his part to change the 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 original ■writing remains legible, and, if it be a deed, any trace of the seal remains. Medlin vs. Platte Co., 8 Mo. 239. (Quoting 1 GreerJ. Ev., § 566.) Alteration of a road. The " alteration" of a road is technical, and means the substitution of one line of way for another, the establishment of one, and the discontinuance of that for which it is substituted. Spragvz vs. Waite, 17 Pick. (Mass.) 315. Altered bill. It must be an authentic and genuine bill, legitimately printed from a genuine plate, and truly signed by the officers of the bank, but altered in its denomina- tion, or in some other material part. Kirby vs. State, 1 Ohio St. 181. Altering (a road) means altering it where the public has placed it ; they can not take it up, and put it in a new place. Warren B. E. Co. vs. State, 5 Dutch. (]$. J.) 356. Ambiguity is the effect of words that hare either no definite sense, or else a double one. Ellmaker vs. UUmaker, 4 Watts (Pa.) 90. There be two sorts of ambiguities of words, the one is ambiguitas patens, and the other latens. Patens is that which appears to be ambiguous upon the deed or instrument ; latens is that which seemeth certain and without ambiguity for anything that appeareth ADJUDGED WORDS AND PHRASES. 85 AMBIGUITY ANCESTOR upon the deed or instrument, but there is some col- later, " uity. lateral matter out of the deed that breedeth ainbig Lathrop vs. Blake, 23 N. Hamp. 60. (Quoting Lord Baeon.) Ambiguity upon the factum (of a will, &o.) By ambiguity upon the factum is meant, not an am- biguity upon the construction, as whether a particu- lar clause shall have a particular effect, but an ambiguity as to the foundation itself of the instru- ment, or a particular part of it, as whether the testator meant a particular clause to be part of the instrument, or whether it was introduced with his knowledge ; whether a codicil was meant to repub- lish a former or subsequent will ; or whether the residuary clause, or any other passage, was accident- ally omitted. jSatherly et al. vs. Eatherly et al. 1 Coldw. (Tenn.) 465. Amend. The word " to amend " * * came into our lang- uage from the French "amender," the root or parent word being menda, a fault, and means in its most comprehensive sense "to better." Diamond vs. Williamsburgh Ins. Co., 4 Daly Com. PI. (N. Y.J 500. Amendment is the espying out of some error in the proceedings and the correcting of it before judgment and after, if the error be not in the giving of the judgment, the remedy in that case being by writ of error. Diamond vs. Williamsburgh Ins. Co., 4 Dab/ Com. PI. (N. Y.J 500. Amnesty and paedon (distinguished) vide Pardon, &c. Ancestor. The term " ancestor " means merely the person from whom the estate passes, and not a progenitor, as in popular acceptation. Bailey vs. Bailey, 25 Mich. 188. One who has gone before or preceded in the seisin or possession of real estate : a deceased person from whom an estate has passed to another by operation 36 ADJUDGED WORDS AND PHRASES. ANCESTORS AMTEXED of law in consequence of his decease. The person last seized of an estate of inheritance, and from whom such estate is transmitted to the heir. McCarthy vs. Marsh, 5 N. Y. 276. (Quoting Burrttl L. Did. ) Him from whom, in contemplation of law, the estate has descended to the person last seized, taking the nearest first, and so proceeding in the ascending line. Pierson vs. De Hart, Perm. (N. J.) 487. 19 Ind. 62 ; 35 Ind. 450 ; 3 Ohio St. 396. Ancestors, derived from antecessores, designates the ascendants of the intestate in the right line, as father and mother, &c, but does not include collateral rela- tives as brothers and sisters. Valentine vs. WetheriU, 31 Barb. (N. Y) 659. The word ancestors, in its ordinary import and mean- ing, only includes those from whom the person spoken of is lineally descended, either on the father's or the mother's side. Panics vs. Walker, 3 Barb. Ch. (N. Y.) 447. Anchor watch. A watch of three or four men kept constantly on deck, and stationed at one of the anchors, while rid- ing at single anchor, to see that the stoppers, painters, cables, and buoy ropes are ready for immediate use. The Lady Franklin, 2 Lowell (U. 8. C. C.J 224. Anchorage. A prestation or toll for every anchor cast there ; and sometimes though there be no anchor. And this doth in truth properly and prima facie arise from or in respect of the propriety in the soil, and is an evi- dence of it : but yet is not so always, but grows due in respect of the franchise. Free Fisliers vs. Gann, 106 Eng. C. L. 859. (Quoting Hale, De Portitms Maris 74. ) And of this he puts himself upon the country (in pi.) means that the truth of the fact so stated he desires to have tried by a jury. Bell vs. Yates, 33 Barb. (N. Y) 629. (Quoting 2 Chet. PI. 450.) Annexed to the freehold .. By the expression " annexed to the freehold," is ADJUDGED WORDS AND PHRASES. 37 ANNUITY APPAKENT meant fastened to or connected with, it ; mere jux- taposition, or the laying of an object, however heavy, on the freehold, does not amount to annexation. Merritt vs. Judd, 14 Col. 64. Annuity. An annuity is a yearly sum of money granted by one party to another in fee for life or years, charging the person of the grantor only. Wagstaffvs. Lowerre, 23 Barb. (N. Y.J 216. (Quoting Bouvier L. Diet.) Annuity is a stated sum payable annually. Pearson vs. Chase, 10 B. I. 456. Annuity and rent charge (distinguished.) vide Bent charge, dec Any. The word "any" means every. McGomas vs. Amos, 29 Md. 141. 4 Greene (Iowa) 4 ; 8 CaL 239. Any one ceeditoe (Ind. Attach'mt Act.) The phrase "any one creditor" may be fairly inter- preted to mean any one claiming under the same bond and affidavit. State vs. King, 5 Ind. 440. Apothecary regarded in the strictest sense of that word, is one who prepares and sells drugs for medicinal purposes. Anderson vs. Com., 9 Bush. (Ky.) 571. Apparent danger. When we use the term " apparent " — " apparent dan- ger " — we mean such overt, actual demonstration, by conduct and acts of a design to take life, or do some great personal injury, as would make the killing ap- parently necessary to self-preservation. Evans vs. State, 44 Miss. 773. Apparent easements. Apparent or continuous easements are those depend- ing upon some artificial structure upon, or natural formation of, the servient tenement, obvious and per- manent, which constitutes the easement or is the means of enjoying it ; as the bed of a running stream, an overhanging roof, a pipe for conveying water, a drain, or a sewer. Fetters vs. Humphreys, 3 C. E. Green Eq. (N. J.) 262. 38 ADJUDGED WORDS A5D PHRASES. apparent appear Apparent signs. By " apparent signs " must be understood not only those which must necessarily be seen, but those which may be seen. or known on a careful inspection by a person ordinarily conversant withthe subject. Pyer vs. Garter, 1 Hurst. & N. 922. Appeal is the removal of a matter or cause from an inferior to a superior court for the purpose of reviewing, cor- recting, or reversing the judgment or sentence of the inferior tribunal. Leach vs. Blakely, 34 Vermont 136. An appeal is a process of civil law origin, and removes a cause entirely, subjecting the fact as well as the law to a review and retrial. Wiscart vs. Dauchy, 3 Dallas (U. 8.) 327. It is in fact, granting a new trial, upon the same issue, in a higher court. Rawson vs. Adams, 17 John. (N. Y.J 131. Appeal (appeEatio in the civil law), is the removal of a cause from the sentence of an inferior to a superior judge, or as Blackstone has expressed it, a complaint to a superior court of an injustice done by an inferior one. United States vs. Wamson, 1 Gallison ( U. 8. 0. C.) 13. 3 Kan. 55 ; 7 Cranch (U. S.) 110 ; 1 N. M. 384 ; 2 Ela. 401 ; 6 Fla. 289. Appeal and writ of error (distinguished.) An appeal is a process of civil law origin, and re- moves a cause entirely, subjecting the fact as well as the law, to a review and re-trial ; but a writ of error is a process of common law origin, and it removes nothing for re-examination but the law. Wiscart vs. Dauchy, 3 Dallas (U. 8.) 327. 7 Cranch (TJ. S.) 110. Appear. When used to designate the act of any person with reference to an action pending, the word " appear " means to come into court as a party to the suit. Schroeder vs. Lalirman, 26 Minn. 88. Appear by affidavit means that such legal evidence going to establish the fact must be given as would be received in the ordin- ADJUDGED WORDS AND PHBASES. 89 APPEARANCE APPENDANT ary course of judicial proceedings, and not conclu- sions, opinions or hearsay. Mackubin vs. Smith, 5 Minn. 370. Appearance (in court) is a submission to the jurisdiction of the court, in obedience, or in answer to proofs. Origg vs. Oilman, 54 Ala. 430. Appearance by attorney and counsel (distinguished.) The former being the substitution of a legal agent for the personal attendance of the suitor ; the latter, the attendance of an advocate, without whose aid, neither the party attending in proper person, nor his attorney in his stead, could safely proceed. Mercer vs. Watson, 1 Watts (Pa.) 351. Appearance term is that term when it first becomes apparent there is for trial and determination any issue of fact. Vinsant vs. Vansant, 47 Iowa 596. Appelate jurisdiction is, not only, a continuation of the exercise of the same judicious power which has been executed in the court of original jurisdiction, but it necessarily implies that the original and appellate courts are capable of participating in the exercise of the same judicial power. Piqua Bank vs. Treasurer, &c., 6 Ohio St. 391. Appellate jurisdiction necessarily implies that the subject-matter has been already instituted, and acted upon by some other court, whose judgment or pro- ceedings are to be revised. Auditor vs. R. B. Co., 6 Kansas, 505. Appendage. An appendage is something added as an accessory to or the subordinate part of another thing. Treasurer vs. S. & E. B. B. Co., 4 Butch. (N. J.) 26. Appendant. An appendant is that which, beyond memory, has be- longed to another thing more worthy, and which agrees with that to which it is related, in its nature and quality. Leonard vs. White, 7 Mass. 8. 40 ADJUDGED WORDS AMD PHKASES. APPENDANT APPROVEMENT Appendant is any inheritance belonging to another that is superior or more worthy. Meek vs. Breckenridge, 29 Ohio St. 648. 3 N. H. 192. Appraisal (of property.) An appraisal of property signifies a valuation of it, or an estimation of its value, unless some other sense is plainly indicated. Oocheco Co. vs. Stafford, 51 IF. Hamp. 482. Apprentice. It is derived from the word apprendre, to learn, and is defined in the following words — A young person, bound by indentures, to a tradesman or artificer, who, upon certain covenants, is to teach him his mystery or trade. Hopewell vs. Amwell, Penn. (N. J.) 425. Apprentice ex vi terrnini implies service in some spe- cific profession, trade or employment. In re Goodenouqh, 19 Wis. 277. 8 T. R. 383. Appropriated (lands in pre-emption act.) It means nothing more, in the sense in which it is used, than an application of the lands to some speci- fic use or purpose, by virtue of law, and not by any other power. McDonnell vs. Wilcox, 2 IU. 360. Appropriation (of public money.) An authority from the Legislature given at the proper time, and in legal form, to the proper officers to ap- ply sums of money out of that which may be in the treasury, in a given year, to specified objects or de- mands against the state. Bistine vs. State, 20 Ind. 338. Appropriations (in will.) The word means a designation to a particular exclu- sive use. Whitehead vs. Gibbons, 2 Stockt. Gh. (K J.J 235. Approvement. By the common law approvement is said to be a species of confession, and incident to the arraign- ment of a prisoner indicted for treason or felony, who confesses the fact before plea pleaded, and ap- ADJUDGED WORDS AM) PHRASES. 41 APPROVER APPURTENANCES peals or accuses others, his accomplices, in the same crime, in order to obtain his own pardon. In this case he is called an approver, or prover, probator, and the party appealed or accused is called the appellee. Gray vs. People, 26 III. 347. Appeovee. A person desiring to be an approver, must be one in- dicted of the offence, and in custody on that indict- ment : he must confess himself guilty of the offence, and desire to accuse his accomplices : he must likewise upon oath discover, not only the particular offence for which he is indicted ; but all treasons and felo- nies which he knows of; and after all this, it is in the discretion of the court, whether they will assign him a coroner, and admit him to be an approver or not. Bex. vs. Budd, 1 Gowp. 335. vide Approvement. Appurtenance. By appurtenances is meant, not what is on, but that which is off the land, the adjunctum of the civil law ; and we say appurtenant to, but never appurtenant on. United States vs. Harris, 1 Sumner ( U. S. G. G.J 25. The term is commonly confined in law to the purely incorporeal hereditaments that are commonly an- nexed to lands or to houses, and may as well include common as any other right. Frey vs. Drakos, 6 Nebraska 10. (Quoting Bouvier L. Diet.) A thing used with and related to or dependent upon another thing more worthy, and agreeing in its nature and quality with the thing whereunto it is appendant or appurtenant. Biddle vs. Littlejield, 53 N. Hampshire 508. An appurtenance is a thing belonging to another thing as principal, and which passes as incident to the principal thing. Meek vs. Breckenridge, 29 Ohio St. 648. (Quoting Bouvier L. Diet. ) G; N. Y. 390; 16 HI. 483. Appuetenances are things belonging to another thing as principal, 42 ADJUDGED WORDS AND PHRASES. APPURTENANT ARM and which pass as incident to the principal thing. Ottumwa Mill Go. vs. Hawley, 44 Iowa 60. 11 "Wis. 210 ; 116 HI. 483. Appurtenant is that, which belongs to another thing, but which has not belonged to it immemorially. M. Grs. Fac. vs. Batchelder, 3 N. Hamp. 192. Appurtenant denotes annexed to or belonging to; but in law it denotes an annexation which is of con- venience merely, and not of necessity, and which may have had its origin at any time, in both of which re- spects it is distinguished from appendant. Farmer vs. Ukiah Water Co., 56 Gal. 14. 7 Mass. 8 ; 56 Cal. 14. Arbitration. The hearing and determination of a cause between parties in controversy by a tribunal selected by the parties. Duren vs. Getchell, 55 Maine, 241. The investigation and determination of a matter or matters of difference between contending parties by one or more unofficial persons chosen by the parties, and called arbitrators or referees. Henderson vs. Beaton, 52 Texas 43. Arbitrator. An arbitrator is a private extraordinary judge chosen by the parties who have a matter in dispute, invested with power to decide the same. Arbitrators are so called because they have generally an arbitrary power, there being, in common, no appeal from their senten- ces, which are called awards. Miller vs. Pres., &c, June. C. Go., 53 Barb. (N. T.) 595. (Quoting Bouvier L. Diet.) Arbitrators are judges chosen by the parties to de- cide the matters submitted to them, final, and with- out appeal. BurcMl vs. Marsh, 11 Howard (U. 8.) 349: 1 McArthur (D. C.) 260 ; 7 Wall. (U. S.) 194. Arm op the sea. That is called an arm of the sea where the sea flows and reflows, and so far only as the sea flows and re- flows. Trustees vs. Booth, &c, L. B. 2 Q. B. 1. ADJUDGED WORDS AND PHRASES. ARMED ARREST Armed prowlers (in Term. Stat.) The words " armed prowlers," * * , means armed persons, (though called by some other name,) who are wandering or roving about over the country, for the purpose of plundering or robbing the people, or for the purpose of plunder. Vaugn vs. State, 3 ColdweU, (Tenn.) 101. Arraign. To arraign is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment. Com. vs. Hardy, 2 Mass. 310. 19 Grattan (Va.) 643 ; 98 HI. 260. Arraignment (of the prisoner) is to take order that he appear, and, for the certainty of the person, to hold up his hand, and to plead a sufficient plea to the indictment. Com. vs. Hardy, 2 Mass. 306. (Quoting Co. Lilt. 263 o.) An arraignment, as technically denned, consists of three parts ; the calling the prisoner to hold up his hand, the reading over the indictment to him in English, and the asking him whether he is guilty or not guilty. Goodin vs. State, 16 Ohio St. 346. Areas is that which the husband gives the woman on ac- count of marriage. Cutter vs. Waddingham, 22 Mo. 254. Array is the whole body of jurors summoned to attend court, as they are arrayed or arranged on the panel. Hurrah vs. The State, 44 Miss. 796. Array, challenge to vide Challenge to tlie array. Arrest. An arrest is the taking, seizing, or detaining the per- son of another, touching or putting hands upon him in the execution of process, or any act indicating an intention to arrest. United States vs. Bermer, Baldwin (U. S. C. C.) 239. 44 - -. ADJUDGED WORDS AND PHRASES. ARREST ARTIFICIAL Arrest signifies a restraint of the person — a restric- tion of the right of locomotion. 'Hart vs. Flynn, 8 Dana (Ky.) 191. The apprehension or detaining of the person in order to be forthcoming to answer an alleged or sus- pected crime. The word arrest is more properly used in civil cases, and apprehension in criminal. County of Montgomery vs. Robinson, 85 IU. 176. (Quoting Bomner L. Diet.) The apprehension of a person by virtue of lawful authority, to answer the demands against him in a civil action. Gentry vs. Griffith, 27 Texas, 462. Abson at common law is usually defined the wilful and ma- licious burning of the house or out-house of another man. Graham vs. State, 40 Ala. 664. 3 Dutch (K J.) 324 ; Morris St. Cas. (Miss.) 741 ; 20 Conn. 246. Article. It is a word of separation to individualize and distin- guish some particular thing from the general thing or whole of which it forms a part, as an article in an agreement, an article of faith, an article of a news- paper, or an article of merchandise. It is derived from the Greek, the original or radical word meaning to join or fit to as a part, and it is only very recently that it has been applied to denote such material or corporeal things as 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. Wetzell vs. Dinsmore, 4 Daly (N. Y.) 195. Artificer. Those who buy goods to reduce them by their own art or industry into other forms, and then to sell them, are artificers and not merchants. Lonsdale vs. Brashear, 3 T. B Man. (Ky.) 335. Artificial and natural persons (distinguished) vide Natural, &c. Artifcial presumption. vide Legal presumption. ADJUDGED WORDS AND PHRASES. 45 AS ASSAULT AS SOON AS POSSIBLE. To do a tiling " as soon as possible " means to do it within a reasonable time, with an undertaking to do it in the shortest practicable time. Hydraulic vs. McHqffie, 4 Q. B. Div. 673. U Wis. 208. AS THE CEOW FLIES. The phrase " as the crow flies," is a popular and pic- turesque expression, to denote a straight line, which I think is clearly the proper mode of measuring the distance from one given point to another. Stokes vs. Grissell, 78 Eng. C. L. 689. Assault is an attempt or offer with force and violence to do injury to a person from malice or wantonness ; and a battery is where an injury is actually inflicted un- der such circumstances. Com. vs. Buggies, 6 Allen (Mass.) 590. An assault is an intentional attempt, by violence, to do an injury to the person of another. State vs. Davis, 1 Ired. Law. (N. G.) 127. An attempt with force or violence to do a corporal injury to another ; and may consist of an act tending to such corporal injury, accompanied with such cir- cumstances as denote at the time an intention, coup- led with the present ability, of using actual violence against the purchaser. Hays vs. People, 1 Hill (N. Y.) 352. An assault is any attempt or offer, with force or vio- lence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into Tarver vs. State, 43 Ala. 356. An assault is a trespass upon the person of a man, and is the unlawful setting upon him, by the offer or attempt to beat him. Lying in wait, or besetting the house of another, is an assault in law. Horton vs. Monk, 1 Browne (Pa.) 65. It is an inchoate violence, with the present means of carrying the intent into effect. Bichels vs. The State, 1 Sneed (Tenn.) 608. 46 ADJUDGED WOKDS AND PHRASES. - ASSAULT , ASSESSMENT An attempt or offer to beat another without beating him. State vs. Blackwdl, 9 Ala. 82. (Quoting 3 SI. Com. 120.) It is an attempt to commit a violent injury. Johnson vs. The State, 14 Georgia 60. If the defendant rode after the. plaintiff so as to com- pel him to run into his garden for shelter, to avoid being beaten, that is in law an assault. Morton vs. Shoppee, 3 C. & P. 373. 27 Cal. 633 ; 8 Iowa 415 ; 65 N. C. 533 ; 34 Ala. 365 ; 3 Sneed 68 ; 39 Miss. 525 ; 14 Eich. (S. C.) 212 ; 1 Wheeler O. Cas. 365 ; 2 Wash. (U. S. C. C.) 437 ; 19 Ark. 313 ; 6 Baxt. (Term.) 588. Assault with actual violence is an assault with physical force " put in action," ex- erted upon the person assailed. State vs. Wells, 31 Conn. 213. Assault with intent to mueder and to kill (distinguished.) In the former the proof must be such as shows that, if death had been caused by the assault, the assailant would have been guilty of murder ; and in the latter case the proof need only be such as that, had death ensued, the crime would have been manslaughter. State vs. Reed, 40 Vermont 601. Assent is an act of the mind — that intelligent power in man by which he conceives, reasons and judges, and of which it is a primary, invariable and most familiar law that it cannot act with reference to external ob- jects, until, through the medium of the senses, it is impressed with or knows their existence. Hence, without such impression or knowledge, there can be no assent, no actus contra actum. Welch vs. Sackett, 12 Wis. 257. Assess. Its definition embraces valuation and charge or tax 1 . To charge a sum certain upon one, as a tax. To fix the value of property for the purpose of being taxed. Richardson vs. Sheldon, 1 Wis. 628. vide Assessment. Assessment is the _ making out a list of property, and fixing its valuation or appraisement ; it is also applied to mak- ADJUDGED WORDS AND PHRASES. 47 ASSESSMENT ASSESSMENT ing out a list of persons and appraising their several occupations, chiefly with a view of taxing the said persons and their property. Valle vs. Fargo, 1 Mo. App. 351. An assessment, strictly speaking, is an official esti- mate of the sums which are to constitute the basis of an apportionment of a tax between the individual subjects of taxation within the district. People vs. Weaver, 10 Otto (U. S.) 545. (Quoting Gooley on Taxation 258-9. ) Determining the value of a man's property or occu- pation for the purpose of levying a tax. Adjusting the shares of a contribution by several to- wards a common beneficial object, according to the benefit received. Palmer vs. Stumph, 29 Ind. 332-3. (Quoting Bouv, L. Diet. ) Those local burdens imposed by municipal corpor- ations upon property bordering upon an improved street or situated so near to it as to be benefitted by the improvement, for the purpose of paying the cost of the improvement, and laid with reference to the benefit which such property is supposed to receive from the expenditure of the money. Taylor vs. Palmer, 31 Gal. 254. The popular as well as legal signification of this term, has always indicated those special and local imposi- tions upon property in the immediate vicinity of an improved street, which were necessary to pay for the improvement, and laid with reference to the special benefit which such property derived from the expen- diture of the money. Hill vs. Eigdon, 5 Ohio St. 247. -ride Assess. 21 Minn. 528 : 51 Cal. 20 : 21 Wis. 515 : 7 Md. 535 : 32 Ohio St. 156. Assessment and tax (distinguished.) Taxes are burdens or charges imposed upon persons or property to raise money for public purposes, and assessments * * are not regarded as burdens, but as an equivalent or compensation for the enhanced value which the property of the person assessed has derived from the improvement. Sharp vs. Spier, 4 Hill (N. Y.J 82. 29 Wis. 606. 48 ADJUDGED WORDS AND PHRASES. ASSESSOR ASSETS. AsSESSOB. An assessor may be said to be a person charged by law with the duty of ascertaining and determining the value of property as the foundation of a public tax. Savings and Loan Society, vs. Austin, 46 Gal. 509 Assessors are those who make assessments or im- pose taxes. Valle vs. Fargo, 1 Mo. App. 351. (Quoting Jacob's L. Diet. ) Assets. AH those goods and chattels, actions and commodi- ties which were of the deceased in right of action or possession as his own, and so continued to the time of his death, and which after his death the executor doth get into his hands, as duly belonging to him in the right of his executorship, and all such things as do come to the executor in lieu or by reason of that, and nothing else, shall be said to be assets in his hands, to make him chargeable to a creditor or leg- atee. Smedley vs. Philpot, 3 M. & W. 519. (Quoting Skep. Touch. 496.) Though more generally used to denote everything which comes to the representatives of a deceased per- son, yet it is by no means confined to that use, but has come to signify everything which can be made avail- able for the payment of debts, whether belonging to the estate of a deceased person or not. Stanton vs. Lewis, 26 Conn. 449. The property in the hands of an heir, executor, ad- ministrator or trustee, which is legally or equitably chargeable with the obligations which such heir, ex- ecutor, administrator or trustee is, as such, required to discharge. Favorite vs. Boolier's Admr., 17 Ohio St. 557. (Quoting Bouvier L. Diet.) The term " assets " does not denote any particular species of property, but it is said to come from the French word assez, which means sufficient or enough ; that is, enough means in the hands of the heir to pay the debt. Hall vs. Martin, 46 N. Hamp. 342. vide Equitable assets. 1 Bradf. Surr. B. 108. ADJUDGED WORDS AM) PHRASES. 49 assets assignment Assets in hand is such, property as at once come to the executor, or other trustee, ior the purpose of satisfying claims against him as such. Favorite vs. Booker's Admr., 17 Ohio St. 557. (Quoting Bouvier L. Diet. ) Assign. The word " assign " does not mean " heir " ; it means a person substituted for another by act of some kind or other. Lewis vs. Lewis, 9 M. & W. 664. The word assign has various significations, and it must be taken according to the subject matter. Its meaning is to set over or transfer ; and when appled to movables, a delivery will satisfy it. Watkinson vs. Inglesby, 5 John. (N. Y.J 391. Assignee. One to whom rights have been transmitted, by par- ticular title, such* as sale, gift, legacy, transfer or session. Ball vs. Chadwick, 46 III. 31. (Quoting Bouvier Z. Diet.) Assignee (of a patent) is one who has had transferred to him in writing the whole interest of the original patent, or any undi- vided part of such whole interest, in every portion of the United States ; and no one, unless he has had such an interest transferred to him, is an as- signee. Potter vs. Holland, 4 Blatchf. (U ■ 8. G. C.J 211. Assignment is the transferring and setting over to another of some right, title, or interest in things in which a third person, not a party to the assignment, has a concern and interest. Cowles vs. Rickets, 1 Ioioa 585. (Quoting 1 Bac. Abr. 329. ) Assignment is the setting over or transferring the interest a man hath in anything to another. Perrine vs. Little, 1 Green (N. J.) 248. (Quoting Jacob L. Diet. ) An assignment, as understood by the common law, is a parting with the whole property. Potter vs. Holland, 4 Blotch. (U. 8. 0. G.J 210. (Quoting Bouvier L. Diet.) 50 ADJUDGED WORDS AND PHKASES. ASSIGNMENT ASSIGNMENT The idea of an assignment is essentially that of a transfer, by one existing party to another existing party, of some species of property or valuable interest. Sight vs. Sackett, 34 N. Y. 451. In common parlance this word signifies the transfer of all kinds of property, real, personal and mixed, and whether the same be in possession, or in action, as a general assignment. In a more technical sense it is usually applied to the transfer of a term of years ; but it is more particularly used to signify a transfer of some particular estate or interest in land. Ball vs. Ghadwiclc, 46 III. 31. , 28 Iowa 464 : U Barb. (N. Y.) 639 : 1 Penn. (N. J.) 30. Assignment (of a lease.) The assignment of a lease is properly the transfer of the interest of the tenant. Potts vs. Del. W. P. Co., 1 Stock. Ch. (N. J.) 618.' Assignment (of an estate.) An assignment of an estate for life or years is a transfer of the whole interest of the assignor to some one other than the immediate reversioner or remain- der-man holding an estate which is larger than that of the assignor. Scott's Ex'rs. vs. Scott, 18 Gratt. (Va.) 159. Assignment and lease (distinguished.) An assignment is properly a transfer or making over to another of the right one has in any estate ; and it differs from a lease only in this : that by a lease one grants an interest less than his own, re- serving to himself a reversion ; in assignments he parts with the whole property. Bridge Proprietors ads. The State, 1 Zab. (N. J.) 389. (Quoting 2 Bl. Com. . 317, 326. ) A lease creates an estate, and an assignment trans- fers the estate from one person to another, after it has been created ; a lease is a continuing contract, and its obligations secure the right of possession to the tenant^ until the contract itself ceases to exist ; but an assignment when it has wrought the transfer, has fulfilled its office. Constantine vs. Wake, 1 Sweeney (N. Y.) 246. The sub-lessee is only responsible to his immediate lessor for the breach of such covenants as were en- ADJUDGED WORDS AND PHRASES. 51 ASSIGNMENT ■ ASSUMPSIT tered into between them ; * * an assignee, though not named, is liable at common law to an action upon a covenant which runs with the land. Cox vs. Fenwick, 4 Bibb. (Ky.) 530. 30 N. Y. 455. Assignment foe the benefit of creditors is nothing more nor less than a contract — a transfer in trust for a nominal consideration, and the further consideration of a distribution of the proceeds of the assigned property among all the creditors. Blackburne's Appeal, 39 Penn. St. 165. Assignment of errors. The assignment of errors is a pleading filed by the party complaining of the errors of the judge, and each assignment should be single, and not multifari- ous, for that reason. Ass. of Jersey Co. vs. Davidson, 5 Dutcher (N. J.) 418. Assigns. The word " assigns" is a term of well-known signifi- cation, comprehending all those who take either im- mediately or remotely from or under the assignor, whether by conveyance, devise, descent, or act of law. Baily vs. DeCrespigny, L. R. 4 Q. B. 186. It means those to whom rights have been transmit- ted by particular title, such as sale, gift, legacy,' transfer or cession. Watson vs. Donnelly, 28 Barb. (N. Y.) 658. The term, assigns, comprehends not merely a single person, but a line or succession of persons. Ogden vs. Price, 4 Hoist. (N. J.) 169. Associates. By the natural import of the word " associates," is understoodpersons united, acting together by mutual consent, by compact, to the promotion of some com- mon object. Lechmere Bank vs. Boynton, 11 Cush. (Mass. J 382. Assumpsit (action of) The action of assumpsit is an action for the recovery of damages for the non-performance of a parol or simple contract, or, in other words, a contract not un- der seal nor of record. The State ex rel. vs. Harmon et dL, 15 W. Va. 124. 52 ADJUDGED WORDS AND PHRASES. at attachment At The preposition at, when it precedes the name of a place and denotes situation, frequently means the same as in or within. Mohawk Br. Co. vs. U. & S. R. R. Co. 6 Paige Ch. (N. Y.) 562. It may mean " in" or " within," or it may mean "near." State, W. J. R. R. Co. vs. Receiver of Taxes of Cam- den, 9 Vroom (N. J.) 302. At once. The words " at once" evidently mean " at one and the same time." Platter vs. Green, 26 Kan. 268. Which means, within a reasonable time. The Queen vs. Rogers, 3 Q. B. Div. 33. At their death (in will) cannot mean the contemporaneous death of all, but the deaths of each respectively. Wills vs. Wills, L. R. 20 Eg. Cases 345. Atheist. One who disbelieves in the existence of a God, who is the rewarder of truth, and the avenger of falsehood. Com. vs. Hills, 10 Cush. (Mass.) 532. 37 N. T. 584. Attachment. It is an actual seizure of goods, in order that they may be held to satisfy the judgment, which the plain- tiff may recover. Dunkles vs. Fales, 5 N. Hamp. 528. An " attachment " imports a taking of property into the custody of an officer of the law by virtue of " a mandatory precept issued by the authority and in • the name of the state." Bryant vs. Warren, 51* N. Hamp. 215. An attachment of property is an arrest, or seizure, or taking of it ; and consequently would seem to be defective, unless the property be touched. Huntington vs. Blaisdell et al., 2 N. Hamp. 318. Taking into the custody of the law the person or property of one already before the court, or of one whom it is sought to bring before it.— A writ issued at the institution or during the progress of an action, ADJUDGED WORDS AND PHRASES. 53 ATTACHMENT ATTEMPT commanding the sheriff or other proper officer to at- tach the property, rights, credits or effects of the de- fendant to satisfy the demands of the plaintiff. Beardsley vs. Beecher, 47 Conn. 414. 51 Perm. St. 253. (Quoting Bouvmx L. Did.') Attachment (for contempt.) A process issued from a court of record, to punish any person concerned in, or attendant on, the admin- istration of justice, for misconduct, mal-practice, or neglect of duty ; and to compel a performance of its orders, judgments or decrees, interlocutory, or final. Ex parte Thurmond, 1 Bailey, (S. C.) 606. Attainder the stain or corruption of the blood of a criminal' capitally condemned ; the immediate inseparable con- sequence of the common law, on the pronouncing the sentence of death. Ex parte Garland, 4 Wallace (U. S.) 387. (Quoting Tomlins L. Diet.) Attainder at the common law, is the consequence of a judgment in treason or felony, and that whether the judgment be of death on conviction, or of outlawry on a quinto exactus returned. Cozzens vs. Long, Perm. (N. J.) 766. That extinction of civil rights and capacities which takes place wherever a person who has committed treason or felony receives sentence of death for his crime. * * Attindura, the stain or corruption of blood which arises from being condemned for any crime. Green vs. Shumway, 39 N. Y. 430. (Quoting Toml. L. Diet "Attainder.") Attainted and convicted (distinguished.) A man is convicted when he is found guilty or con- fesses the crime before judgment had, but not attainted till judgment is passed upon him. Shepherd vs. People, 25 N. Y 419. 24 How. Pr. B. (N. Y.) 40. (Quoting Jacob's L. Diet.) Attempt Attempt is a direct commencement of execution, by external acts, the realization of which is hindered by causes independent of the will of the author. Lewis vs. State, 35 Ala. 388. 54 ADJUDGED WORDS AND PHKASES. ATTEMPT ATTEST To attempt is to make an effort to effect some object, to make a trial or experiment, to endeavor, to use exertion for some purpose. Com. vs. McDonald, 5 Cush. (Mass.)' 367. Is expressive rather of a moving towards doing any- thing than of the purpose itself. An attempt is an overt act itself. State vs. Martin, 3 Dev. Law (N. C.) 330. An attempt implies more than- an intention formed. Some step towards consummation must be taken before the intention becomes an attempt. Gray vs. State, 63 Ala. 73. 2 Jones (N. C.) 416. Attempt and intent (distinguished.) The only distinction between an intent and an attempt to do a thing is, that the former implies the purpose only, while the latter implies both the purpose and an actual effort to carry that purpose into execution. Prince vs. State, 35 Ala. 369. The former conveys the idea of a physical effort to do, or accomplish an act — the latter, the quality of the mind with which an act is done. State vs. Marshall, 14 Ala. 414. Attempt and peepaeation (distinguished.) vide Preparation, dec. Attempt at feaud means an injury or attempted injury, by immoral means, such as false swearing. Shato vs. Scottish Ins. Co. 1 Fed. Eep. 764. Attempt to commit a ceime, is an endeavor to accomplish it, but falling short of execution of the ultimate design. Griffin vs. The State, 26 Georgia 506. Attest. The word "attest," in its strict and proper sense, * '* means only witnessing, or bearing witness to; and the principal object in requiring that an instru- ment should be executed in the - presence of witnesses is, that they may see that the instrument is properly and fairly executed : but in the ordinary use of the word "attest," as applied to "Hie execution of deeds, it is understood to require that the witnesses should ADJUDGED WORDS AND PHRASES. 55 ATTESTATION ATTOKNEY attest in writing ; the principal end of which seems to be, to preserve evidence of the instruments being executed m the presence of the witnesses required. Wright vs. Wakeford, 4 Taunt. 223. 9 M. & W. 405. Attestation. The word implies the presence of some person, who stands by but is not a party to the transaction. Seal vs. Claridge, 7 Q. B. Div. 519. Attestation and subscription (distinguished.) Attestation is the act of the senses, subscription is the act of the hand ; the one is mental, the other mechan- ical, and to attest a will is to know that it was pub- lished as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will, is only to write on the same paper the names of the witnesses, for the sole purpose of identification. There may be a perfect attestation in fact, without subscription. Swift vs. Wiley, 1 B. Hon. (Ky.) 117. 42 Wis. 76. Attested. The word " attested," when used with reference to judicial writings, or copies thereof, as copies of reo- ords or judicial process, seems to have a legal mean- ing, which is an authentication by the clerk of the court so as to make them receivable in evidence. Gross & Phillips Mfg. Co. vs. The People, 4 Bradwell (III.) 515. Attested account. An account made out against the contractor, and verified by the claimant's own oath, that the balance of such account is justly due to him from such con- tractor * * under his contract for the erection or furnishing the building, is an attested account. Donaldson vs. Wood, 22 Wend. (N. Y.) 400. Attorney at law. An attorney at law is an officer in a court of justice, who is employed by a party in a cause to manage the same for him as his advocate. Lawyers' Tax Cases, 8 Heisk. (Tenn.) 651. An attorney is a man set apart by the law, to ex- pound, to all persons who seek him, the laws of the 56 ' ADJUDGED WORDS AND PHRASES. ATTORNEY ATTORNEY'S land, relating to high interests of property, liberty and life. Bank of Tenn. vs. Homberger, 4 Coldw. (Tenn.) 571. A person who takes upon himself the business of other men, by whom he is retained. Vail vs. Jackson, 15 Vermont 320. (Quoting Jacob's L. Bid.) Attorney at law is a peculiar kind of agent ; in the court he is put in the place and stead of the client, and is authorized to take proceedings in his behalf ; but the client, who rarely knows what proceedings the attorney takes, is responsible. Oollett vs. Foster, 2 Hurlst & N. 362. 1 W. Va. 297. Attorney in fact and agent (distinguished.) Agent, is the. general term which includes brokers, factors, consignees, shipmasters, and all other classes of agents. By attorneys in fact, are meant persons who are acting under a special power, created by deed. Porter vs. Hermann, 8 Cal. 624. Attorney's fees vide Remuneration (of attorneys J. Attorney's lien. An attorney's lien, as now generally recognized, is of two kinds : First, a general lien resting wholly upon possession, which is a mere right to retain, until his whole bill is paid, all papers, deeds, vouch- ers, etc., in his possession upon which, or in connec- tion with which, he has expended money or given his professional services. This " retaining lien " is a general one for whatever may be due to him ; and, though a client may change his attorney at will, if the latter be without fault and willing to proceed in pending causes, none of the papers or vouchers can ordinarily be withdrawn from him except upon pay- ment of his entire bill for professional services. * * * The second kind of a lien which an attorney has is. that existing upon a judgment recovered by him, or moneys payable thereon, or upon some fund in court. This lien as far as it extends, is not merely a passive lien, but entitles the attorney to take active steps to secure payment. In re Wilson, 12 Fed. Hep. 238. 40 Barb. 448. ADJUDGED WORDS AND PHRASES. 57 attornment auctioneer Attoenment. An acknowledgment or agreement by the tenant of one that the freehold is in another, or that he is his landlord, is in law denominated an attornment. Foster vs. Morris, 3 A. K. Marsh. (Ky.) 611. Attornment is the acknowledgment by a tenant of a new landlord, on the alienation of land, and an agreement to become tenant of the purchaser. Lindley vs. Dakin, 13 Ind. 389. Attornment is the censent of a tenant to the grant of his landlord ; he must be a tenant, and the grant assented to must be that of his landlord ; the assent of any stranger is no attornment for the want of pri- vity. Lord Coke says it is a maxim that no man can attorn to a grant but he that is privy to the grantor. Souders vs. Van Sickle et al. 3 Hoist. (N. J.) 317. Auction. It is a sale by consecutive bidding, intended to reach the highest price of the article by competition for it. Hibler vs. Hoag, 1 Watts, & S. (Pa.) 553. This practice is said to have originated with the Romans, who gave it the descriptive name of auctio, an increase, because the offered property was sold to him who would offer the most for it. * * " Sale by the candle," or " by the inch of candle." The origin of this expression arose from the use of candles as a means of measuring time. It was de- clared the goods could be continued to be offered to bidders for so long a time only as would suffice for the burning of one inch of candle. When the measure was wasted to that extent, the highest bid- der was then declared to be the purchaser. " Dutch auction '.' consists in the public offer of pro- perty beyond its value, and then gradually lowering the price until some one becomes the purchaser. Crandall vs. State, 28 Ohio St. 481. 11 III. 266. Auctioneer. A person who is authorized to sell goods and mer- chandize at public auction or sale, for a recompense, or (as it is commonly called) a commission. * * Licensed agents appointed to sell property and to conduct sales or auctions. City of Goshen vs. Kern, 63 Ind. 473. 58 ADJUDGED WORDS AND PHRASES. AUCTIONEER AUTHOB Auctioneer and jobber (distinguished.) vide Jobber, &c. Audita querela. An audita querela is where a defendant, against whom judgment is recovered, and who is therefore in dan- ger of execution, or perhaps actually in execution, may be relieved upon good matter of discharge, which has happened since the judgment. In all such cases an audita querela lies, in the nature of a bill in equity, to be relieved against the oppression of the plaintiff. Mallory vs. Norton, 21 Barb. (N. Y.) 435. 3 Md. 132. (Quoting 3 Bl. Com. 105.) Auditor. j The term " auditor," designates an officer, either at law' or in equity, assigned to state the items of debt and credit between parties, and exhibit the balance. Whitwell vs. Willard 1 Met. (Mass.) 218. Originally it meant an officer of the King, whose duty it was, at stated periods of the year, to examine the accounts of inferior officers and certify to their correctness, and was afterwards used to designate those officers of the court of exchequer whose duty, according to Coke, was to take the accounts of the receivers of the King's revenue and audit and perfect them, without however putting in any changes, their office being only to audit the accounts — that is, as- certain their correctness. The People vs. Green, 5 Daly Com. PL (N. Y.) 200. 48 N. H. 152. I Authentication. The act or mode of giving legal authority to a stat- ute, record or other written instrument, or a certified copy thereof, so as to render it legally admissible in evidence. In re Fowler, 4 Fed. Pep. 310. Author To constitute one an author, he must, by his own in- tellectual labor applied to the materials of his com- position, produce an arrangement or compilation new in itself. Atwill vs. Ferrett, 2 Blatchf. (U. S C. C.) 46. ADJUDGED WORDS AND PHRASES. 59 available avekment Available means, among mercantile men, is a term well understood to be anything which can readily be converted into money. But it is not necessarily nor primarily money itself. Brigham vs. Tillinghast, 13 N. Y. 219. 32 N. Y. 224. Avails (of property.) By avails I understand cash, or securities, the repre- sentatives of money. Allen vs. De Witt, 3 N. Y. 278. Aval is the act of subscribing one's signature at the bottom of a promissory note, or a bill of exchange ; there- fore, an aval is properly an act of suretyship, by the party signing, in favor of the party to whom the note or bill is given. Paterson vs. Pain, 1 Lower Canada, 221. Avebage signifies, in substance, a partial loss accruing to or on account of the insured goods, by reason of some of the perils insured against. Insurance Co. vs. Bland, 9 Dana (Ky.) 147. Average in its generic sense, and used simpliciter, is a loss, injury or deduction, not amounting to a total loss, and then when the parties to a policy agree that goods insured shall be free from average, they agree that the liability of the insurers shall only arise when a total loss shall occur. Bargett vs. Orient Ins. Co., 3 Bosworth, (N. Y.) 395. vide Free from average. Averment (in pi.) It means a direct and positive allegation of a fact, made in a manner capable of being traversed. It ex- cludes the idea of an affirmation to be made out by inference and induction only. Loughlin vs. Flood, 3 Munf. ( Va.) 262. A positive statement of facts in opposition to argu- ment or inference. Prigmore vs. Tlwmpson, Minor (Ala.) 420. Its use is to ascertain that to the court, which is gen- erally or doubtfully expressed ; so that the court 60 ADJUDGED WORDS AND PHRASES. AVOIDANCE AWARD 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. Van Vechten vs. Hopkins, 5 John. (N. Y.J 220. Avoidance (in pi.) The introduction of new or special matter, which, admitting the premises of the opposite party, avoids or repels his conclusions. Mahaiwe Bank vs. Douglass, 31 Conn. 177. Avowry. An avowry is the setting forth in a declaration the nature and merits of the defendant's case, and showing that the distress taken by him was lawful, which must be done with such sufficient certainty as will entitle him to a retorno habendo. Brown et al. vs. Bissett, 1 Zab. (N. J.) 274. (Quoting Bac. Abr. Replevin K. ) The setting forth, as in a declaration, the nature and merits of the defendant's case, showing that the dis- tress taken by him was lawful, which must be done with such sufficient authority as will entitle him to a retorno habendo. Hill vs. Stocking, 6 Hill (N. Y.J 284. (Quoting Woodf. L. & Ten. 592.) Avowry and cognizance (distinguished.) An avowry as distinguished from a cognizance, im- ports a taking in one's own right : a cognizance imports a justification under the authority of another. Brown et al. vs. Bissett, 1 Zab. (N. J.) 49. Award is an act of the parties performed through their agents and assented to in advance. Babb. vs. Stromberg, 14 Penn. St. 399. An award is a judgment formed and pronounced; to make an award, is to form and publish a judgment, upon the facts. Hoffvs. Taylor, 2 South. (N. J.) 833. The judgment or decision of arbitrators or referees on a matter submitted to them. Henderson vs. Beaton, 52 Texas 43. (Quoting Bouvier L. Did. ADJUDGED WORDS AND PHRASES. 61 BAD BAIL Bad character. The term "bad character," applied to man or wo- man, is used, by very common acceptation, to desig- nate loose,, immoral or lascivious deportment. Garter vs. Cavenagh, 1 Greene (Iowa J 1 75. Bad on the face op it (conviction.) Any conviction which shows a want of jurisdiction, or directs an imprisonment of a party, which the magistrate is not entitled to award. Griffith vs. Harris, 2 M. & W. 344. Baggage. Whatever the passenger takes with him for his per- sonal use or convenience according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities, or to the ultimate purpose, of the journey, must be considered as personal baggage. Macrow vs. G. W. Railway Co., L. R. 6 Q. B. 622. Such things as a traveller usually carries with him for his personal convenience in the journey. Hawkins vs. Hoffman, 6 Hill (N. Y.) 589. By baggage we are to understand such articles of necessity or personal convenience as are usually car- ried by passengers for their personal use, and not merchandise or other valuables, although carried in the trunks of passengers, which are not designed for any such use, but for other purposes, such as sale or the like. Boman vs. Maxwell, 9 Humph. (Tenn.) 624. (Quoting Story ore Bailm. § 499. ) vide Personal luggage. 5 Cush. 72 ; 13 HI. 749 ; 32 Wis. 98 ; 15 Mich. 119 ; 35 Vt. 605 ; 9 Humph. 623 ; 12 Ga. 225 ; 1 Dakota 354. Bail is a delivery or bailment of a person to his sureties, upon their giving, together with himself, sufficient security for his appearance ; he being supposed^ to continue in their friendly custody, instead of going to gaol. State vs. McNab, 20 N. Hamp. 161. (Quoting 1 Bl. Com. 297.) Bail, released on, implies that a person so released is not imprisoned after such release. Exparte Jones et at, 41 Col. 210. 62 ADJUDGED WORDS ASD PHBASES. bailiff bailment Bahjef. Baylife is a French word, and signifies an officer concerned in the administration of justice of a cer- tain province. Go. Litt. 168 h. Is one who has charge of lands, goods and chattels of another to make the best profit for the owner, and to have his reasonable charges and expenses de- ducted ; and is accountable for the profits he reason- ably might have made. Bredin vs. Kingsland, 4 Watts (Pa.) 422. 25 Conn. 149 ; 22 Geo. 161 ; 44 Barb. 453. Bail-piece. The bail-piece is not process, nor 'anything in the nature of it ; but is merely a record or memorial of the delivery of the principal to his bail, on security given. Nicholls vs. IngersoU, 7 John. (N. Y.) 154. Bailment from the French baffler, to deliver, is 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. Todd vs. Figiey, 7 Watts (Pa. J 543. (Quoting 2 SI. Com. 451. ) A delivery of goods in trust, upon a contract express or implied, that the trust shall be truly executed and the goods restored to the bailor, as soon as the purpose of the bailment shall be answered. Commonwealth vs. Maker, 11 PhUa. B. 425. (Quoting 2 Kent. Com. 559.) 1 Stewart (Ala.) 208 ; 2 Pittsb. (Pa.) 496 ; 3 Yerg. 140 ; 87 HI. 303. Bailment (for hire) is a contract in which the bailor agrees to pay an adequate recompense for the safe keeping of the thing entrusted to the bailee, and the bailee agrees to keep it and restore it upon the request of the latter in the same condition substantially as he received it, unless it should be impossible to do so by reason of its in- jury, loss or destruction from causes for which he is not responsible. Arent vs. Squire, 1 Daly (K Y.) 356. ADJUDGED WORDS AND PHRASES. BAILMENT BANK Bailment and sale (distinguished.) When the identical thing delivered, though in an altered form, is to be restored, the contract is one of bailment, and the title to the property is not changed. But when there is no obligation to restore the speci- fic article, and the receiver is at liberty to return an- other thing of equal value, he becomes a debtor to make the return, and the title to the property is changed : it is a sale. Mallory vs. Willis, 4 (N. Y.) 85. 7 N. T. 435 ; 21 Barb. 103. Batting (animals.) The term is usually applied when an animal is tied to a stake or confined so that it cannot escape. Pitts vs. Millar, L. R. 9 Q. B. 382. Balance. A balance is but the conclusion or result of the debit and credit sides of an account. It implies mutual dealings, and the existence of debt and credit, with- out which there could be no balance. Mc Williams vs. Allan, 45 Mo. 574. Ballot. A diminutive ball, i. e., a little ball used in giving votes ; the act itself of giving votes ; a little ball or ticket used in voting privately, and, for that purpose, put into a box (commonly called a ballot-box) or some other contrivance. Williams vs Stein, 38 Ind. 92. Bank is an institution authorized to receive deposits of money, to lend money, and to issue promissory notes. Bank vs. Baldwin. 23 Minn. 203. (Quoting Bouv. L. Diet. ) Banks are establishments intended to serve for the safe custody of money ; to facilitate its payment by one individual to another; and sometimes for the accommodation of the public with loans. Niagara* County Bank vs. Baker, 15 Ohio St. 87. (Quoting 1 ilc&dloch's Com. Bid. 63.) An establishment for the custody of money ; or for the loaning and investing of money ; or for the issue, exchange, and circulation of money; or for more than one or all of these purposes. The term is applied to the incorporation or association authorized to 64 ADJUDGED WOEDS AND PHBASES. BANK BANKER perform such functions ; to the body of directors, or other officers authorized to manage its operations ; and to the office or place where its business is con- ducted. Bominger vs. Keyes, 73 Ind. 377. Penn. (N. J.) 1057. (Quoting Abbotts L. Diet.) Bank (of a river.) That space of rising ground above low water, which is usually covered by high water. Howard vs. IngersoU, 17 Ala. 789. Banks of a river are those elevations of land which confine the waters when they rise out of the bed. Howard vs. IngersoU, 13 Howard (U. S.J 427. 6 Mart. (La.) 19 ; 25 Kansas 220. Bank-money means that species of money called bank-notes. Hopson vs. Fountain, 5 Humph. (Tenn.) 141. Bank of a stream is the continuous margin where vegetation ceases, and the shore is the pebbly, sandy or rocky space between that and low-water mark. McCullough vs. Wainwright, 14 Penn. St. 174. Bank Of discount. A bank of discount alone is denned to be " one that furnishes loans upon drafts, promissory notes, bonds, or other securities. Farmers & Mechanics' Bank vs. Baldwin, 23 Minn. 205. (Quoting Am. Gyc. Vol. 2, Tit. Banks.) Bank stock. By bank stock is meant individual interest in the dividends as they are declared, and a right to a, pro rata distribution of the effects of the bank on hand at the expiration *f the charter. Union Bank vs. The State, 9 Yerger (Tenn.) 498. 6 Baxt. 557. Banker. A banker is a dealer in capital, an intermediate party between the borrower and lender. He bor- rows of one party and lends to another, and the difference between the terms at which he borrows and lends is the source and measure of his profits. Curtis vs. Leavitt, 15 N. Y. 167. 43 m. 184, ADJUDGED WORDS AND PHRASES. 65 banking bankrupt Banking. The business or employment of a banker, the busi- ness of establishing a common fund for lending money, discounting notes, issuing bills, receiving de- posits, collecting the money on notes deposited, negotiating bills of exchange, &c. City of N. 0. vs. N. 0. Savings Inst, 32 La. Ann. 531. (Quoting Morse on Banks and Banking 38. ) Banking powers is an authority to deduct the interest at the com- mencement of loans, or to make loans upon discounts, instead of the ordinary forms of security for an ac- cruing interest. Insurance Co. vs. Ely, 2 Cotoen, (N. Y.J 710. Bankrupt from the word bancus, which signifies the table or counter of a tradesman, and ruptus, broken ; denoting thereby one whose shop or place of trade is broken and gone. A trader who secretes himself, or does certain other acts tending to defraud his creditors. Sackett vs. Andross, 5 Hill (N. Y.J 342. (Quoting 2 Bl. Com. 285.) The term "bankrupt" is derived from the Italian expression " Banco rotto," and formerly when a trader left his place of business, the benches were broken, and he was declared a bankrupt. Judine vs. DaCossen, 4 B. & P. 236. A "bankrupt" signifies, generally, either man or woman, that living by buying and selling, has gotten other men's goods into his or her possession, and hideth himself in places unknown, or in his own house, in order to deceive his creditors. Alexander vs. Gibson, 1 Nott & McCord, (S. C.J 498. (Quoting 4 Inst. 177. ) Bankrupt and insolvent laws (distinguished.) Insolvent laws operate at the instance of an impris- oned debtor ; bankrupt laws at the instance of a creditor. Sturges vs. Crowninshield, 4 Wheaton ( U. 8. 194. Bankrupt law. A bankrupt law may be defined to be any law for the relief of insolvent debtors. Alexander vs, Gilson, 1 Nott & McCord (8. C.J 496. 66 ADJUDGED WOKDS AND PHRASES. bankruptcy bargain Bankruptcy is a proceeding or suit in its nature equitable — a se- questration of a debtor's property that the creditors may resort to, instead of an ordinary suit at law or equity. In re Weitzel, 7 BisseU (U. 8. C. 0.) 290. Banks for savings are banks established for the receipt of small sums deposited by the poorer class of persons for accumu- lation at interest. Bank vs. Collector, 3 Wallace ( U. 8.) 513. (Quoting McCuUoch's Com. Diet 146.) vide Savings Bank. Bar. A "bar," in a legal sense, is a plea or peremptory exception of a defendant, sufficient to destroy the plaintiff's action. Norton vs Winter, 1 Oregon 48. Bare naked lie. That I define to be, saying a thing which is false, knowing or not knowing it to be so, and without any design to injure, cheat, or deceive, another person. Paisley vs. Freeman, 3 T. B. 56. Bargain. A bargain is a contract or agreement between two parties, the one to sell — to sell goods or lands and the other to buy them. Packard vs. Richardson, 17 Mass. 132. Bargain and sale. A bargain and sale is the transfer and delivery of per- sonal or real property, or chose in action, by one per- son to another, in consideration of a price agreed upon between them, as the value of the property sold. Freeman ads. Brittin, 2 Harr. (N. J.) 231. A bargain and sale is, when a recompence is given hy both parties ; as if a man bargains his land to another for money, here the land is a recompence to the one for the money ; and the money is a recompence to the other for the land; and this is properly a bargain and sale. Sharington vs. Shotton, Plowd. 303. ADJUDGED WORDS AND PHRASES. 67 BABGAIN BAEEATEY Bakgain and sale (of lands) may be defined a real contract on a valuable consid- eration, for passing or transferring lands from one to another. Claiborne vs. Henderson, 3 Hen. & Munf. ( Va.J 349. It is a real contract, whereby a person bargains and sells his lands to another for a pecuniary considera- tion, in consequence of which, a use arises to the bargainee, and the statute of uses immediately trans- fers the legal estate and actual possession to cestui que use, without any entry or other act on his part. Sifter vs. Beates 9 S. & B. (Pa.) 177. 11 Exch. 191 ; 29 Ga. 23. Babgained AND SOLD imports * * everything requisite to a regular sale, including the intention of the parties. Barrow vs. Windsor 71 III. 218. Bab-keepee imports a person hired, who, from the nature of his station, is forced to perform servile offices within the the wails of a public house. Boniface vs. Scott. 3 S. & B. (Pa.) 354. Babbatob. A common Barretor is a common Mover or Stirrer up, or Maintainer of Suits, Quarrels, or Parties, either in Courts or in the Country : In Courts of Record, and in the County, Hundred, and other inferior Courts : In the Country in three Manners : 1. In Disturbance of the Peace. 2. In taking or detaining of the Pos- session of Houses, Lands, or Goods, &c, which are in Question or Controversy, not only by Force, but also by Subtiltyand Deceit, and for the mostPart in Suppres- sion of Truth and Bight. 3. By false Invention, and sowing of Calumny, Rumours and Reports, whereby Discord and Disgust arise between Neighbours. The Case of Barretry, 8 Coke 36. 2 Saund. 308 n. Barratry. Any act of the master to the injury of his owners or freighters, without their assent, which is criminal in itself, or which is illegal and fradulent as to the owners or freighters ; or any wilful neglect of his duty to them as an honest and. faithful agent. American Ins. Co. vs. Dunham, 18 Wend. (N. T.) 11. 68 ADJUDGED WORDS AND PHKASES. BABRATRY BARTER Barratry is any act of the master of a criminal or fraudulent nature, or which is grossly negligent, tending to his own benefit, to the prejudice of the owners, without their consent. Bederer vs. Bel. Ins. Co., 2 Wash. (U. 8 C. C.) 66. Barratry of the master and mariners is any unlawful practice committed by them, without the knowledge and consent of the owner or insured, in consequence of which the vessel and cargo are rendered liable to loss. American Ins. Co. vs. Bunham, 18 Wend. (N. Y.J 16. Any act committed by the master or mariners, for an unlawful and fraudulent purpose, contrary to their duty to the owners, and whereby the owners sustain an injury. Messonier vs. Union Ins. Co., 1 Nott & McC. (8. C.)163. It is committed when the master or the mariners cheat the owners or insurers, whether by running away with the ship, sinking her, or deserting her, or embezzling the cargo. Stone vs. National Ins. Co., 19 Pick. (Mass.) 36. Barratry consists in wilful acts or conduct of the master, or mariners, done for some unlawful or fraudulent purpose, contrary to their duty to the owners of the vessel. Lawton vs. Sun M. Ins. Co., 2 Cush. (Mass.) 511. Barratry is every species of fraud or knavery in the master of the ship by which the freighters or owners are injured. Lockyer vs. Offley, 1 T. R. 259. Cheves (S. C.) 126 ; 2 Woodb. & Minot (U. S. C. C.) 320 ; 4T. E. 37. 14 Mass. 8. Barrel. It may and often is used to designate a certain quan- tity, and not the vessel or cask in which an article is contained. Gardner vs. Lane, 9 Alien (Mass.) 501. Barter is a contract by which parties exchange goods. Speigle vs. Meredith, 4 Bissell ( U. S. C. C.) 123. Barter aot> sale (distinguished) vide Sale, &c. ADJUDGED WORDS AND PHEASES. 69 base battuke Base fee A base or qualified fee is such a one as hath a quali- fication subjoined thereto, and which must be deter- mined whenever the qualification annexed to it is at an end. Ferry Co. vs. Railway Co. 94 III. 93. As where, in England, a tenant in tail, by indenture enrolled, bargains and sells the land to another and his heirs, and afterwards levies a fine to the bar- gainee, the bargainee has a fee in the land, but it is only to endure as long as the tenant in tail has heirs of his body. Richardson vs. Noyes, 2 Mass. 63. vide Determinable fee. Qualified fee. 1 Whart. (Pa.) 427 ; 5 Dill. (V. S. C. C.) 411. Bastard. A child born out of matrimony, or born of a single woman. King vs. Lufe, S East. 211. Battery. A battery is an unlawful touching the person of an- other by the aggressor himself, or any other sub- stance put in motion by him. Kirkland vs. State, 43 Ind. 150. Any unlawful beating, or other wrongful physical violence or constraint, inflicted on a human being without his consent. Cahill vs. Ferris, 55 M. Hamp. 512. (Quoting Souvier L. Diet.) 1 Hill (S. C.) 363 ; 1 Wheel. Cr. Cas. n. 3G5 ; 19 Ark. 213. Batture is a marine term, and is used to denote a bottom of sand, stone or rock mixed together, and rising to- wards the surface of the water ; its etymology is from the verb battre, to beat : because a batture is beaten by the water. In its grammatical sense, as a technical word, and, we believe, in common parlance, it is then an eleva- tion of the bed of a river under the surface of the water, since it is rising towards it. It is, however, sometimes used to denote the elevation of the bank, 70 ADJUDGED WORDS AND PHRASES. BAWD BEACH when it has risen above the surface of the water, or is as high as the land on the outside of the bank. Morgan vs. Livingston, 6 Martin (La.) 216. 3 Wood (U. S. C. C.) 117 ; 33 La. An. 551. Bawd. A bawd is one who procures opportunities for per- sons of opposite sexes to cohabit in an illicit manner, and may be, while exercising the trade of a bawd, perfectly innocent of committing in his or her own proper person, the crime either of adultery or of for- nication. Dyer vs. Morris 4 Mo. 216. Bawdy house is a house of ill-fame, kept for the resort and unlaw- ful commerce of lewd people of both sexes. State vs. Boardman 64 Maine 529. (Quoting Bouvier L.Dict.) 5 Ired. (N. C.) 607 r 26 N. Y. 190 ; 29 Wis. 438 ; 16 Abb. Pr. (N. Y) 430 ; Idaho 618. Bay. A bay is a bending or curving of the shore of the sea or of a lake, and is derived from an Anglo Saxon word signifying to' bow or bend. State vs. Gilmanton, 14 N. Hamp. 477. Beach. By a beach, is to be understood the shore or strand ; and it has been decided, that the seashore is the space between high and low water mark. Cutis vs. Hussey, 15 Maine 241. On the whole, the word beach must be deemed to be land washed by tlie sea and its waves ; and to be synonymous with shore. Littlefield vs. Litflefield, 28 Maine 184. The territory lying between the lines of high and low water over which the tide ebb and flow. It is in this respect like "shore," "strand," or, as much used in this country, "flats." Doane vs. Willcut, 5 Gray (Mass.) 335. Beach in its ordinary signification, when applied to a place on tide waters, means the space between ordin- ary high and low water mark, or the space over which the tide usually ebbs and flows. Mies vs. Patch, 13 Gray (Mass.) 257. e Gray 335 ; 6 Hun. (N. Y.) 259. ' ADJUDGED WORDS AND PHRASES. 71 beadsmen belongs Beadsmen seem to have been in ancient times persons who de- voted themselves to prayer,— not merely on their own account, but for the benefit also of pthers. Faulkner vs. Upper Boddington, 91 Eng. C. L. 419. Become void and deteemined (distinguished) vide Determined, &c. Bed of a biter is that portion of its soil which is alternately covered and left bare, as there may be an increase or diminu- tion in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn. Luco et al. vs. United States, 23 Howard (U. S.) 515. The bed is that soil so usually covered by water as to be distinguishable from the banks, by the charac- ter of the soil, or vegetation, or both, produced by the common presence and action of flowing water. Howard vs. IngersoU, 13 Howard ( U. S.J 427. 25 Kan. 221. Betng in feeble health (in will) The words " being in feeble health," import that the person, in such health, is weak, sickly, debilitated by disease, or by age or decline of life. Lund vs. Dawes, 41 Vermont 372. Belief. Belief is the conviction of the mind, founded on evi- dence that a fact exists — that an act was done — that a statement is true. Giddens vs. Mirk, 4 Georgia 369. Belief * * means the actual conclusion of a per- son, drawn from information. Humphreys vs. McCaU, 9 Col. 62. L. K. 1 Exch. 108. Belongs when used in public or private statutes, and espe- cially when used in reference to inliabitancy, the poor, &c, has been uniformly understood and con- 72 ADJUDGED WORDS AND PHRASES. BENEFICIAL BEX strued to designate the place of a person's legal set- tlement, and not merely his place of residence. Beading vs. Westport, 19 Conn. 564. 8 vt. 45. Beneficial. The word beneficial is derived from two Latin words, " bene " and "facio," to make well or to make profit, and evidently takes its legal meaning from the old feudal benefice, * * Beneficial means benefit or advantage, producing or attended with profit or ad- vantage, having or enjoying a benefit or profit. — A term applied both to estates and persons as beneficial interest, beneficial owner. Todd's Heirs vs. Wickliffe, 18 B. Mm. (Ey.) 871. Bequeath and devise (distinguished.) vide Devise, &c. Best evidence. The term "best evidence " is confined to cases where the law has divided testimony into primary and sec- ondary. And there are no degrees of evidence except where some document or other instrument exists, the contents of which should be proved by an origi- nal rather than by other testimony, which is open to danger of inaccuracy. Elliott vs. Van Buren, 33 Mich. 53. Bestiality is a connection between a human being and a bruta of the opposite sex. Amman vs. Veal, 10 Ind. 356. Bet. A bet or wager is ordinarily an agreement between two or more, that a sum of money or some valuable thing, in contributing which all agreeing take part, shall become the property of one or some of them, on the happening in the future of an event at present uncertain ; and the stake is the money or thing thus put upon the chance. Harris vs. White, 81 K T. 539. A bet is a wager, though a wager is not necessarily a bet. Cassard vs. Hinman, 1 Bosworth (N. Y.J 212. vide Wager. ADJUDGED WORDS AND PHRASES. 73 - between bigamy Between ■when properly predicable of time, is intermediate, and strictly does not include, either Dec. 7th or March 1st. " Between two days " was exclusive of both. Bunce vs. Reed, 16 Barb. (N. Y.J 352. Beyond the seas ought to be construed as equivalent to the words, " without the jurisdiction of the state." Bank of Alexandria vs. Dyer, 14 Peters (U. S.J 145. 11 Me. 106 ; 24 111. 161 ; 6 Ohio 125 ; 22 Mich. 190 ; 8 Blackf. 508. Bias. A particular influential power, which sways the judg- ment ; the inclination of the mind towards a particu- lar object. Willis vs. The State, 12 Geo. 449. (Quoting Bouvier L. Did.) 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 succession to his bid, and as a conse- quence of it. Eppes vs. Bailroad Co., 35 Ala. 56. Bidding in its most comprehensive sense, is making an offer, but, in its more ordinary acceptation, it signifies the making of an offer at an auction. Eppes vs. Bailroad Co., 35 Ala. 56. Biennial. The word "biennial" is derived from the Latin word bis, twice, and annus, year, meaning the hap- pening or taking place of anything once in two years. Shields vs. Smith, 42 Mo. 507. Biennially does not, in its ordinary and proper use, signify duration of time, but defines a period for the hap- pening of some event. People vs. Tremain, 9 Hun. (N. Y.J 576. 68 N. Y. 482. Bigamy. The state of a man who has two wives, or of a H ADJTJDGED WORDS AND PHRASES. BIJOU BELL woman who has two husbands living at the same time. Commonwealth vs. Grise, 11 Phila. B. 655 Bijou. A little work of ornament, valuable for its workman- ship or by its material. Com. vs. StepJiens, 14 Pick. (Mass.) 373. Bill is a common engagement for money, given by one man to another ; being sometimes with a penalty, called a penal bill, and sometimes without a penalty, then called a single bill, though the latter is most frequently used. By a bill, we ordinarily under- stand a single bond, without a condition. Tracy vs. Talmage, 18 Barb. (N. Y.) 462. 9 How. Pr. (N. Y.) 536. (Quoting Jacob's L. Diet.) Bill (criminal.) A bill is a written accusation of one or more persons of a crime or misdemeanor lawfully presented to a grand jury. Board of Co. Comrs. vs. Graham, 4 Colorado, 202. (Quoting Bouvier L. Diet.) Bill fob specific performance is an application to the discretion, or rather to the extraordinary jurisdiction of equity, which cannot be exercised in favor of persons who have long slept upon their rights, and acquiesced in a title and pos- session adverse to their claim. Van Doren vs. Robinson, 1 C. E. G. Eq. (N. J.) 263. Bill obligatory. It is a bond, without a condition ; sometimes called a single bill, and differing from a promissory note, in nothing but a seal which is affixed to it. Bank vs. Greiner, 2 8. & B. (Pa.) 115. Bill of attainder is a legislative act, passed for the special purpose of attainting particular individuals of treason, or felony, or inflicting pains and penalties beyond or contrary to the common law. Gains vs. Buford, 1 Dana (Ky.) 509. A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punish- ADJUDGED WORDS AND PHRASES. 75 BILL BILL ment be less than death, the act is termed a bill of pains and penalties. Within the constitution, bills of attainder include bills of pains and penalties. Cummings vs. Missouri, 4 Wallace (U. S.) 323. Bills of attainder are such special legislation as in- flict capital punishment upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judi- cial proceedings. Gotcheus vs. Matheson, 40 Hoio. Pr. R. (N. Y) 102. Bills of attainder are statutes enacted by the supreme legislative power, pro re nata, inflicting capital penal- ties, ex post facto, without conviction in the regular course of administration through courts of justice. Ex parte William Law, 35 Georgia 298. When the constitution was adopted, bills of attainder and bills of pains and penalties were well known in the English law. Bills of attainder were acts of Parlia- ment whereby sentence of death was pronounced against the accused. Courts of justice were em- ployed only to register the edict and carry the sen- tence into execution. Bills of pains and penalties were acts denouncing milder punishments. The term "bill of attainder," in the national constitution, is generical, and embraces bills both classes. Brehman vs. Stifle, 8 Wallace ( U. S.) 601. 36 How. Pr. (N. ¥.) 10 ; 39 N. Y. 423 ; 58 Barb. 157 ; 6 Coldw. 278 : 12 BlatcM. 401. Bill op costs. The phrase " bill of costs," though equivocal, we think, is by the ordinary use of the expression to be understood taxable costs. Doe vs. Thompson, 22 N. Hamp. 219. Bill of discovery and fishing bill (distinguished) vide Fishing bill, dec. Bill of exceptions. A bill of exceptions is a statement of the point on which the court below gave an opinion. Ooxe vs. Field, 1 Green (N. J.) 218. A bill of exceptions is a statement of the questions made and exceptions taken to the ruling of the court or judge on the trial of the cause before a jury. Berly vs. Taylor, 5 Hill (N. Y.J 579. 76 ADJUDGED WOBDS AND PHRASES. BILL BILL A bill of exceptions is a written statement of objec- tions to the decisions of the court upon points of law, made by a party to the cause, and properly certified by the judge or court making the decision. Huddleston vs. The State, 7 Baxter (Term.) 56. A bill of exceptions is the means used for placing matters on the record, of proceedings, in a case where they do not properly belong to it ; and the bill of ex- ceptions should contain the matter so intended to be placed on the record. Berry vs. Hale, 1 How. (Miss.) 318. The sole office of a bill of exceptions is to make mat- ters which are extrinsic, or out of the record, a part of the record. Kitchell vs. Burgwin, 21 IU. 45. l N. M. 115. Bill of exchange is an open letter of request, and addressed by one person to a second, requesting him to pay a sum of money to a third, or to any other to whom that third person shall order it to be paid, or it may be pay- able to bearer. Fountaine vs. Urquhart, Supp. to 33 Georgia 188. A bill of exchange, in its own nature, amounts to nothing more than an authority on one hand, to pay to the order of the person to whom it is made pay- able, and on the other, to an undertaking on the part of the acceptor that he will pay it. Gibson et al. vs. Minet et al., 1 H. Bl. 586. A written order or request by one person to another for the payment of a sum of money, absolutely and at all events. Garr vs. Louisville Banking Co., 11 Bush. (Ky). 186. A written order for the payment of a certain sum of money unconditionally. Adams vs. Boyd, 33 Ark. 47. It is nothing but an order on the drawee to pay so much out of the effects of the drawer in his hands, and the acceptance is evidence in law that the ac- ceptor has such effects. Stock vs. Mawson, 1 B. & P. 291. 39 N. Y. 100 ; 1 Barb. 662 ; 2 Burr 674. ADJUDGED WORDS' AND PHRASES. 77 bill bill Bill op interpleader A bill of interpleader strictly so called is where the complainant claims no relief against either of the de- fendants, but only asks that he maybe at liberty to pay the money or deliver the property to the one to whom it of right belongs, and may thereafter be protected against the claims of both. Bedell vs. Hoffman, 2 Paige Ch. (N. Y.J 200. A bill exhibited, when two or more persons claim the same debt or duty from the complainant by different or separate interests ; and he, not knowing to which of the complainants he ought, of right, to pay or render it, fears that he may be damaged by the de- fendants, (as by paying his money to the wrong hand,) and, therefore, exhibits his bill of inter- pleader against them, praying that the court may judge between them, to whom the thing belongs, and that he may be indemnified. Atkinsen vs. Manks, 1 Cowen (N. Y.J 703. To entitle the plaintiff to maintain an action of inter- pleader, several things must concur : 1st. He must have no interest in the thing claimed. 2d. He must have no adequate remedy at law. 3d. He must be ignorant of the righ t of the claim- ants. The Howe M. Co. vs. Gifford, 66 Barh.(N. Y.J 599. Bill op lading. An acknowledgment that the goods are put on board the ship, at one port, to be delivered to A B. at another port, or to his assigns. Davis vs. Bradley, 28 Vermont 124. , The bill of lading is the written evidence of the con- tract between the owner of the goods and the master or owner of the vessel for the carriage and delivery of the goods at a certain freight, when sent by sea or other public waters. Creery vs. HoUy, 14 Wend. (N. Y.J 28. It is a written acknowledgment, signed by the mas- ter, that he has received the goods therein described from the shipper, to be transported on the terms therein expressed, to the described place of destina- tion, and there to be delivered to the consignee or parties therein designated. The Delaware, 14 Wallace (U. S.J 600. 78 ADJUDGED WOBDS AND PHRASES. BILL BILL It is a contract, admitting the reception of certain goods, with an agreement to carry them to the port of discharge. Bdbcoch vs. May, 4 Ohio 346. Its character is two-fold, viz.: a receipt, and a con- tract, to carry and deliver. Wayland vs. Mosely, 5 Ala. 432. It is signed by the captain or master of the ship or vessel, and states among other things, by whom the goods are shipped, and where, and to whom they are to be delivered. There are generally three or more parts of the instrument ; one of which is usually sent to the consignee by the ship which carries the goods ; another is sent to him by some other conveyance ; and a third is kept by the merchant or shipper. , Covill vs. Mil, 4 Denio (N. Y.) 330. While the goods are afloat, * * the bill of lading represents them, and the endorsement and delivery of the bill of lading while the ship is at sea operate exactly the same as the delivery of the goods them- selves to the assignee after the ship's arrival would do. Mayerstein vs. Barber, L. B. 2 C. P. 45. The bill of lading is functus officio as soon as the foods are landed and warehoused in the name of the older. Hatfidd vs. Phillips, 9 M. & W. 649. 1 Kawle (Pa.) 209 ; 9 Mo. 194 ; 2 T. E. 75 ; 1 Cm. Sup. Ct (Ohio) 49; 1 H. Bl. 359 ; 3 Iowa 103 ; 16 Mich. 113 ; 34 Me. 559 ; 33 Iowa 32 ; lBiss. (U.S. C. C.)379. Bill of pains and penalties. vide BUI of attainder. Bill op particulars. A bill of particulars is an amplification or more par- ticular specification of the matter set forth in the pleading. Starkweather vs. Kittle, 17 Wend. (N. Y.) 21. Por most purposes the particulars are regarded as amplification of the pleading to which they relate, and are construed as though they formed part of it. Chrysler vs. James, 1 Hill (N. Y.) 215. It is not a declaration, nor is it a novel assignments Its office is to apprise the opposite party of the ADJUDGED WORDS AND PHRASES. 79 BILL BILLA claim made against him, so that he may not be sur- prised at the trial ; and an omission or mistake not calculated to mislead, will be deemed immaterial. Seaman vs. Low, 4 Bosworth (N. Y.J 345. Bill of review. A bill of review corresponds with and is in the nature of a writ of error, in an action at law, and can only be entertained for the purpose of impeaching and reversing or modifying, m whole or part, an original decree on account of errors in law apparent on its face. Maxwell L. G. & E. Co. vs. Thompson, 1 N. Mex. 605 Bill of revivor. WLenever a suit abates by death, and the interest of the person whose death has caused the abatement is transmitted to that representative which the law gives or ascertains, as an heir at law, executor or administrator, so that the title cannot be disputed, at least in the court of chancery, but the person in whom the title is vested is alone to be ascertained, the suit may be revived by a bill of revivor merely. Douglass, vs. 8 Iter man, 2 Paige Oh. (N. Y.J 360. Bill of revivor and supplement not only continues the suit, upon abatement, but it supplies defects arising from some event subsequent to the institution of the suit. It is a compound of a supplemental bill and a bill of revivor, and in that character, it states the original bill, and proceedings thereon, and the subsequent event ; and it states also the consequent alteration or acquisition of interest, with respect to the parties. Wescott vs. Cady, 5 Johns. Ch. 342. 2 Ala. 412. Bill of rights. An American bill of rights is a declaration of private rights reserved in a grant of public powers, — a reser- vation of limited individual sovereignty, annexed to and made a part of a limited form of government established by the independent, individual action of the voting class of the people. Orr vs. Quimby, 54 N. Hamp. 613. BlLLA VERA is an indorsement which the grand jury used to make 80 ADJUDGED WORDS AND PHRASES. BILLS BLACKMAIL upon the indictment, sent up to them, and now in English, a true bill. Sharf vs. Com. 2 Binney, (Pa.) 519. Bills of credit. A paper issued by the sovereign power, containing a pledge of its faith, and designed to circulate as money. Bristioe vs. Bank, &c. of Ky., 11 Peters (IT. S.J 314. "Bills of credit" signify a paper medium, intended to circulate between individuals, and between gov- ernment and individuals, for the ordinary purposes of society. Craig vs. Missouri. 4 Peters (U. S.J 432. 35 Geo. 333 ; 23 La. An. 6 ; 27 N. Y. 492. Bills of pains and penalties vide Bill of attainder. Bills receivable. Promissory notes, bills of exchange, bonds and other evidences or securities, which a merchant or trader holds, and which are payable to him. State, use of Dittman vs. Robinson et al., 57 Md. 501. (Quoting Bouvier L. Diet.) Black-leg. A person who gets his living by frequenting race courses and places where games of chance are played ; getting the best odds and giving the least he can; but not necessarily cheating. Barnett vs. Allen, 3 Hurlst & N. 379. Blackmail (from maille, French, signifying a small coin), is a certain rent of money, coin, or other thing paid to persons upon or near the borders, being men of in- fluence, and allied with certain robbers and brigands, to be protected from their devastation. Edsall vs. Brooks, 17 Abbott's Pr. R. (N. Y) 226. The term mail dees not seem to be derived from any French word "maille," if there be such an one, but rather from the Gaelic " mal," a rent, or the Ger- man " mahl," a tribute. * * Dean Swift used it to signify "hush money," or "money extorted from persons under the threat of exposure in print for an alleged offence." Edsall vs. Brooks, 3 Robertson (N. Y.J 293. 26 How. Pr. (N. Y.) 431 ; 2 Robertson (N. Y.) 133. ADJUDGED WORDS AND PHRASES. 81 blanc boakding-house Blanc seign is a paper signed at the bottom by him who intends to bind himself, give acquittance, or compromise at the discretion, of the person whom he entrusts with such blanc seign, giving him power to fill it with what he may think proper, according to agreement. Musson vs. Bank U. S., 6 Martin (La.) 718. Blasphemy consists in maliciously reviling God, or religion. People vs. Buggies. 8 John. (N. Y.J 293. In general, blasphemy may be described, as consist- ing in speaking evil of the Deity with an impious pur- pose to derogate from the divine majesty, and to alienate the minds of others from the love and rever- ence of God. Com. vs. Kneeland, 20 Pick. (Mass.) 213. It consists in the denial of the being, attributes, or nature of, or uttering impious or profane things against God, or the authority of the holy scriptures. Com. vs. Kneeland, Thatclier's Or. Cos. 375. Boaedee. A person who comes upon a special contract to board or sojourn at an inn, is not in law a guest, but a boarder. Chamberson vs. Masterson, 26 Ala. 377. One who has food and lodging in another's house or family for a stipulated price. Ullman vs. The State, 1 Texas App. 222. (Quoting BurriU's L. Diet. ) Boaedee and guest (distinguished.) vide Guest. BOARDING-HOUSE ! is a quasi public house, where boarders are generally and habitually kept, and which is held out and known, as a place of entertainment of that kind. Cady vs. McDowell, 1 Lansing (N. Y.) 486. Boaeding-house and inn (distinguished.) In a boarding house, the guest is under an express contract, at a certain rate, for a certain period of time ; but in an inn there is no express engage- ment, the guest being on his way, is entertained from day to day, according to his business, upon an implied contract. WiUard vs. Bernhardt, 2 K D. Smith (N. Y.) 149. 82 ADJUDGED WOBDS AND PHRASES. boat bona Boat. A small open vessel, commonly wrought by oars. United States vs. Open Boat, 5 Mason ( U. 8. C. C.J 137, (Quoting Mortimer's Com. Diet.) Bodily heirs. That class of persons, who, by law, take property by inheritance or succession from another. Donnell vs. Matear, 5 Ired. Eq. E. (N. C.J 9. Body politic. A body politic is a body to take in succession, framed as to its capacity by policy, and therefore is called by Littleton a body politic ; and it is called a corporation or body corporate, because the persons are made into a body, and are of capacity to take* grant, &c, by a particular name. Feople vs. Morris, 13 Wend. (N. Y.J 334. vide Corporation. Bona fide possessor is one who not only supposes himself to be the true owner of the land, but who is ignorant that his title is contested by any person claiming a better right to it. Sartain vs. Hamilton, 12 Texas 222. 12 Tex. 310 ; 24 Tex. 379 ; 8 "Wheat. 79 ; 31 Md. 454. Bona fide purchaser is one who actually purchases in good faith. Kyger vs. Depue, 6 W. Va. 293. A bona fide purchaser is one who buys property of another without notice that some third person has a right to, or interest in, such property, and pays a full and fair price for the same, at the time of such pur- chase, or before he has notice of the claim or interest of such other in the property. Spicer vs. Waters, 65 Barb. (N. Y.J 231. To entitle a party to the character of a bona fide purchaser without notice of a prior right or equity, such party must not only have obtained the legal title to the property, or the negotiable security, but he must have paid the purchase money, or some part thereof at least, or have parted with something of value upon the faith of such purchase, before he had notice of such prior right or equity. Be Mott vs. Starkey, 3 Barb. Ch. (N. Y.J 406. ADJUDGED WORDS AND PHRASES. 83 BONA BOOK A bona fide purchaser is defined to be one who at the time of his purchase advances a new consideration, surrenders some security, or does some other act which leaves him in a worse position if his purchase should be set aside. Alden vs. Trubee, 44 Conn. 459. (Quoting Perry on Trusts 218. ) The term bona fide purchaser is borrowed from equity jurisprudence, and must be interpreted accordingly, and it is well settled that a grantee or incumbrancer, who does not advance anything at the time, takes the interest conveyed subject to any prior equity at- taching to the subject. Wells, Fargo & Co. vs. Smith et al., 2 Utah 52. 1 Cowen 522 ; 7 John. Ch. 65 ; 29 Barb. 507 ; 46 Barb. 214. Bond. A bond is a deed or obligatory instrument, in writing, whereby one doth bind himself to another, to pay a sum of money, or do some other act. It contains an obligation, with a penalty, and a condition, which ex- pressly mentions what money is to be paid, or other thing to be performed, and the limited time for the performance thereof; for which the obligation is per- emptorily binding. The ceremonies necessary to a bond or obligation, consist of ivriting on paper or parchment, sealing and delivery. Signing hath been held not to be necessary. Boyd vs. Boyd, 2 Nott & McC. (S. C.)12C>. If the bond be without condition, it is called a single one. Shattuch vs. The People, 5 III. 483. Bonus is not a gift or gratuity, but a sum paid for services, or upon consideration in addition to or in excess of that which would ordinarily be given. Kennicott vs. Supervisors, 16 Wallace (U. S.) 471. 24 Conn. 154. Book is evidently the Saxon boc, and the latter term is from the beech tree, the rind of which supplied the place of paper to our German ancestors. The Latin word liber is of a similar etymology, meaning originally only the bark of a tree. Book may therefore be ap- plied to any writing. Clementini vs. Colding, 2 Campbell 28, n. 84 ADJUDGED "WORDS AND PHRASES. BORtf BOTTOMRY BORN. The being born must mean that the whole body is brought into the world, and it is not sufficient that the child respires in the progress of the birth. Bex vs. Poulton, 5 C. & P. 329. Borough. The ancient towns called boroughs be the most an- cient towns that be within England, and are called boroughs because of them come the burgess to Par- liament. Blair vs. Bidgely, 41 Mo. 175. Borrow. To borrow is the reciprocal action with to lend ; and to lend or to loan is 'the parting with a thing of value to another for a time fixed, or indefinite yet to have some time an ending, to be used or enjoyed by that other, the thing itself, or the equivalent of it, to bo given back at the time fixed, or when lawfully asked for, with or without compensation for the use as may ' be agreed upon. Kent vs. Quicksilver Mining Co., 78 N. Y. 177. Borrower. Any person who is bound by the original contract to pay the sum borrowed. Livingston vs. Harris, 11 Wend. (N. Y.J 342. It is used in contradistinction to lender, and is in- tended to designate one of the parties to a contract for a loan, and may be extended to those standing in his place in a representative capacity, as heirs at law, executors or administrators. Post vs. Bank of Utica, 7 Hill (N. Y.J 397. 7 J. J. Marsh. 324. Bottomry • • is a contract in the nature of a mortgage, on which the owner borrows money to enable him to fit out a ship, or to purchase a cargo for a voyage proposed, and he pledges the keel or bottom of the ship (pars pro totoj as a security for the repayment. The Brig Draco, 2 Sumner (U. 8. C. C.J 175. Bottomry bond. A bottomry bond is a bond given for a loan of money, upon the security of a vessel and its accru- ADJUDGED WORDS AND PHRASES. 85 BOTTOMRY BBEAGH ing freight ; its payment being dependent upon mar- . itime risks, to be borne by the lender. The condi- tion of the bond is the safety of the hypothecated vessel. The loan is on condition, that if the vessel : hypothecated be lost by 'the perils of the sea, the lender shall not be repaid. Cole vs. White, 26 Wend. (N. Y.J 515. A contract for the loan of money on the bottom of the ship, at an extraordinary interest upon maritime risks, to be borne by the lender for the voyage, or for a definite period. Brainard vs. Hoppock, 32 (N. Y.J 576. A contract by which the ship, or, as it used to be said, the keel or bottom of the ship is pledged to se- cure the payment of money borrowed by the owner to fit her for sea, repair her, etc., and the agreement is, that if the ship is lost by any of the perils enumerated in the contract, the lender loses his money. Bray vs. Bates, 9 Met. (Mass. J 250. 2 Sumn. (TJ. S. C. C.) 169. Bounds By bounds is meant the legal, imaginary line by which the different parcels of land are divided. Walton vs. Tift, 14 Barb. (N. Y.J 221. Bounty signifies money paid or a premium offered to encour- age or promote an object, or procure a particular act or thing to be done. Fowler vs. Danvers, 8 Allen (Mass.) 84. A sum of money or other thing, given, generally by the government, to certain persons, for some service they have done, or are about to do to the public. Abbe vs. AUen, 39 How. Pr. R. (N. Y.J 484. Breach of the peace. A breach of the peace is a violation of public order, the offence of disturbing the public peace. An act of public indecorum is also a breach of the peace. Oalvin vs. State, 6 Coldw. (Tenn.) 294. (Quoting Bouvier L. Did.) Breach of warranty. A breach of warranty consists either in the falsehood of an affirmative, or the nonperformance of an execu- ADJUDGED WORDS AND PHEASES. BREAKING BRIDGE tbry stipulation ; in either case the contract is void ab initio, the warranty being a condition precedent. Hendrick's vs. Com. Ins. Co., 8 John (N. Y.J 13. Breaking (in burglary) The lifting the latch of a door ; the picking of a lock, or opening with a key ; the removal of a pane of glass, and, indeed, the displacement or unloosing' of any fastening, which the owner has provided as a security to the house, is a breaking — an actual breaking — within the meaning of the term as employed in the definition of burglary at common law. Walker vs. State, 63 Ala. 50. Bribery, at tile common law, is denned to be the receiving or offering any undue reward by or to any person what- ever whose ordinary profession or business relates to the administration of public justice, in order to influence his behavior in office, and incline him to act contrary to the known rules of honesty and in- tegrity. Walsh vs. The People, 65 III. 65. Bribery signifies the taking or giving of a reward for offices of a public nature. State vs. Ellis, 4 Vroom (N. J.J 103. (Quoting 1 Hawkin's PI. of the Or. 312.) 3G Wis. 219 ; 10 Iowa 221 ; 29 Ark. 302. Bridge. The term a bridge, conveys * the idea of a passage way, by which travellers and others, are enabled to pass safely over streams and other obstructions. Freeholders vs. Strader, 3 Harr. (N. J.) 112. Approaches are a necessary part of the bridge. Hayes vs. K Y. C. & H. R. R. R. Co., 9 Hun. (N. Y.) 67. Bridge means a viaduct in a road dedicated to com- mon use. L. & P. R. R. Co. vs. L. City Ry. Co. 2 Duvall (Ky.) 178. The term bridge has always stood for a structure that had a pathway, a horseway, a wagonway, and a roadway ; that in no law paper or document was a structure which had not a footway, as its elemental idea, ever denominated purely and simply a bridge. Props. Bridges vs. Hob'n L. Co.2Beas. Ch. (N. J.) 516. A bridge is considered to be a pathway for travelling ADJUDGED WORDS AND PHRASES. 87 BRIDGE BROKER over a stream of water. * * A structure for con- necting the opposite banks of a river by means of certain materials forming a roadway from one side to the other. Tolland vs. Willington, 26 Conn. 582. A building constructed over a river, creek, or other stream, or over a ditch or other place, in order to fa- cilitate the passage over the same. Whitcdl vs. Freeholders of Gloucester, 11 Vr. (N. J.) 305. (Quoting Shear. & Red. on Neg. § 248. ) 17 Conn. 56 ; 15 Vt. 442. Bbeef. An abridgment of the plaintiff's or defendant's case, prepared by his attorney, for the instruction of coun- sel on a trial at law. Cromwell vs. Baty, 43 Ind. 351. Bbokep is one who makes a bargain for another, and receives a commission for the same. Pott vs. Turner, 6 Bing. 702. A broker for sale is a person making it a trade to find purchasers for those who wish to sell, and vendors for those who wish to buy, and to negotiate and super- intend the making of the bargain between them. MoUett vs. Robinson, L. R. 7 C. P 97. Those that contrive, make, and conclude bargains and contracts between merchants and tradesmen, for which they have a fee or reward. Milford vs. Hughes, 16 M. & W. 177. An agent employed to make bargains and contracts between other persons in matters of trade, commerce or navigation for a compensation commonly called brokerage. Sibbald vs. Bethlehem Iron Co., 83 N. Y. 381. A broker is a mere intermediate agent, negotiating between buyer and seller. Morgan vs. Jaudon, 40 How. Pr. R. (N. Y) 378. A broker is a person, who for a reward makes a trans- fer of property, whether the transfer be by private contract or public sale. Wilkes vs. Ellis, 2 H. El. 556. A broker is defined to be an agent who is employed 88 ADJUDGED WORDS USD PHBASES. BEOKEE BUBDEN to negotiate sales for a compensation in the form of a commission, which is commonly called brokerage. Sliepherd ads. Hedden, 5 Butch. (N. J.) 340. . (Quoting Story on Sales, § 85.) 93 E. C. L. 405 ; 50 Ind. 239 ; 6 Coldw. 422 ; 66 Penn. St. 43 ; 45 Bl. 83 ; 33 Ark. 446. Broker and factor (distinguished) Tide Factor, &c. Brought (suit or action.) The word, " brought," means obtained or gotten ; and signifies the same as sued out ; because the plaintiffs made suit or secta to the king, to the chancellor, or to the clerk, as in different ages the practice altered. Soc. Prop. Gospel vs. Whitcomb, 2 N. Hamp. 229. Building is usually understood to be a structure of considera- ble size, and intended to be permanent, or at least to endure for a considerable time. Stevens vs. Gourley, 97 Eng. G. L. 112. Taken in its broadest sense, it can mean only an erection intended for use and occupation as a habita- tion or for some purpose of trade, manufacture, ornament or use, constituting a fabric or edifice, such as a house, store, church, a shed. Truesdall vs. Gay, 13 Gray (Mass. J 312. Bullion, in a financial sense, imports uncoined gold and silver, either smelted, refined, or in the condition in which it is used for coining, and has, from the earli- est period, been associated with or employed as a term for money. Counsel vs. The Vulture M. Co., 5 Daly C. P. (N. Y) 77. Burden of proof. By the onus probandi * is meant the obligation im- posed upon a party who alleges the existence of a tact or thing, necessary in the prosecution or de- fence of an action, to establish it by proof. People vs. McCann, 16 N. Y. 66. Burden of proof and weight of evidence (distinguished). The former remains on the party affirming a fact in support of his case, and does not change in any aspect of the cause ; the latter shifts from side ADJUDGED WORDS AND PHRASES. BUBGLAE, BURN to side in the progress of a trial, according to the nature and strength of the proofs offered in sup- port or denial of the main fact to be established. Central Bridge Go. vs. Butler, 2 Qray (Mass.) 132 Bueglab He that in the night time breaketh and entereth into a mansion house of another, of intent to kill some reasonable creature, or to commit, some other felony ■within the same, whether his felonious intent be ex- ecuted or not. Robinson vs. The State, 53 Md. 153. (Quoting 3 Inst. 63.) 5 Parker Cr. K. (N. Y.) 760. BUEGLABY. The word burglary is a compound of the Saxon term burgh, a house, and laron, theft ; and originally signi- fied no more than the robbery of a dwelling ; but it is now defined to be the breaking and entering the house of another in the night-time with intent to commit a felony, whether the felony be actually com- mitted or not. Anderson vs. The State, 48 Alabama 666. (Quoting 3 Chit. Pr. L. 1101.) The breaking and entering into the mansion house of another with the intent to commit some felony there- in, and that in the night time. State vs. Wilson, Coxe (N. J.) 440. The breaking and entering the dwelling house of an- other in the night with intent to commit some felony within the same, whether the felonious intent be ex- ecuted or not. Peoplevs. Van Oaasbeck, 9 Ab. Pr. B. N. S. (N. Y.J 345. Burglary is composed, 1st, of entry ; 2d, the means resorted to to effect the entry ; 3d, the purpose or intent of the entry. Hamilton vs. The State, 11 Texas, App. 121. 8 Pick. 355 ; 9 Ind. 471 ; 9 Ired. 471. Bubn (in arson.) It means to consume by fire. If the wood is black- ened, but no fibres are wasted, there is no burning ; yet the wood need not be in a blaze. People vs. Kelly, 46 Gal. 356. 16 Mass. 105 ; 40 Ala. 669. (Quoting Bish. Ct. L, § 325. ) 90 ADJUDGED WORDS AND PHRASES. BUSHEL BY-LAWS Bushel. A bushel is a measure containing 77.6274 pounds avoirdupois of distilled water at the temperature of the maximum density of water and barometer at 30 inches at 62 deg. Fahrenheit. This * * is the same as the Winchester bushel and contains 2150.42 cubic inches. CaldweU vs. Dawson, 4 Met. (Ky.) 123. Business. The word "business" embraces everything about which a person can be employed. Tlie Parker Mills vs. Gomrs. of Taxes, 23 N. Y. 244. Business and employment. The terms business and employment * * are syn- onymous, signifying that which occupies the time, at- tention, and labor of men for the purpose of a liveli- hood or profit. Moon vs. The State, 16 Ala. 413. 52 Ala. 21. The word " by," when descriptively used in a grant, * * does not mean " in immediate contact with," but " near " to the object to which it relates. Wilson vs. Moes, 6 Grill. (Md.) 153. By-law is a rule or law of a corporation for its government. It is an act of legislation, and the solemnities and sanction required by the charter for its passage must be observed. Drake vs. Hudson River R. R. Co., 7 Barb. (N. Y.)539. A by-law, though made by and applicable to a par- ticular body, is still a law, and differs in its nature from a provision made on or limited to particular oc- casions; it is a rule made respectively, and to be applied when ever the circumstances arise for which it was intended to provide. Gosling vs. Veley, 7 Q. B. 451. By-laws. The orders and regulations, which a corporation, 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 mem- bers amongst themselves. Avery vs. Stewart 1 Cush. (Mass.) 496. ADJUDGED WORDS AM) PHRASES. 91 bt t koad camp By-eoad. A by-road is a road used by the inhabitants, and rec- ognized in our statute, but not laid out. Van Blarcom vs. Frike, 5 Dutch. (N. J.) 517. A by-road, as its name imports, is an obscure or neighborhood road in its earlier existence, not used to any great extent by the public, yet so far a public road that the public have, of right, free access to it at all times. Wood vs. Surd, 5 Yroom (N. J.) 89. C. O. D. The letters are the initials, and so understood, of the words " collect on delivery." Am. Express Co. vs. Lesem, 39 III. 333. Where the goods are marked " C. 0. D.," the con- tract of the common carrier, in connection therewith, is not only for the safe carriage and delivery of the goods to the consignee, but he further contracts with the consignors, that he will " collect on delivery," and return to the consignors the charges on said goods. U. S. Express Co. vs. Keefer, 59 lnd. 268. Undoubtedly, the initials C 0. D. mean, collect on delivery, or more fully stated, deliver upon payment of the charges due the seller for the price, and the carrier for the carriage of the goods. State vs. Intoxicating Liquors, 73 Me. 279 3 Col. 184 ; 1 Hun 389. Calendar. From the verb " calare," originates the word " cal- endar," which means the division of time into years, months, weeks, and days, and a register of them. Hives vs. Guthrie, 1 Jones Law (N. C.) 86. Its ordinary signification is, a list or enumeration of causes arranged for trial in court. Titley vs. Kaehler, 9 Bradwell (III.) 539. Calumny (in the civil law), signified an unjust prosecution or defence of a suit. Lanning vs. Christy, 30 Ohio St. 117. Camp meeting. A camp meeting is ex vi termini a religious meeting. State vs. Heed, 12 B. I. 137. 92 ADJUDGED WORDS AND PHRASES. CANCEL CAPITAL Cancel. The Latin verb, from which the term cancel is de- rived, means to make lattice work, and the corre- sponding noun in Latin, in the plural, cancetti, signi- fies lattice work ; and when applied to marks, means marks made in the form of lattice work. Warner vs. Warner, 37 Vermont 362. 58 Penn. St. 243. Candidates. Persons offering themselves to the suffrages of the electors. Morris vs. Burdett, 2 H. & S. 217. Capacity (to make an agreement or conveyance.) The test of capacity to make an agreement or con- veyance is, that a man shall have the ability to understand the nature and effect of the act in which he is engaged, and the business he is transacting. Eaton vs. Eaton, 8 Vroom, (N. J.) 113. Capital signifies the actual estate, whether in money or property, which is owned by an individual or a corpo- ration. People vs. Commissioners, dec., 23 N. Y. 219. Capital offence. As long as it may be punished capitally, it must be considered a capital offence. Ex parte McCrary, 22 Ala. 72. Capital stock means all the property and rights of the corporation of every kind and nature wheresoever located. Railway Go. vs. Weber, 96 III 448. The phrase " capital stock," as employed in acts of corporation, is never, * * used to indicate the value of the property of the company. It is very generally, if not universally, used to designate the amount of capital to be contributed by the stock- holders for purposes of the corporation. The amount thus contributed constitutes the "capital stock" of the company. The value of the stock may be greatly increased by surplus profits or be dimin- ished by losses, but the amount of the capital stock remains the same. Tlie State vs. Morristown Fire Ass., 3 Zab. (N. J.) 196. ADJUDGED WORDS AND PHRASES. 93 CAPITAL CAPTUKE It is the aggregate of the sum subscribed and paid in, or secured to be paid in, by the shareholders, with the addition of all gains or profits realized in the use and investment of those sums, or, if losses have been incurred, then it is the residue after deducting such losses. People vs. Commissioners, &c, 23 iV. Y. 219. The capital stock * is the whole undivided fund paid in by the stockholders, the legal right to which is vested in the corporation, to be used and managed in trust for the benefit of the members. Union Bank vs. The State, 9 Yerg. ( Tenn.J 498. 3 Bieh. (S. C.) 346 ; 5 Blatchf. 316 ; 1 Sandf. Ch. 307. Capitation tax is one upon the person simply, without any reference to his property, real or personal, or to any business in which he may be engaged, or to any employment he may follow. Gardner vs. HaU, 61 IT. C. 22. Caption (of an indictment.) All that part of the record, which precedes the re- cital of the indictment, is called the caption, and may as well as the indictment itself, furnish matter of plea or ground for motion to quash, &c. State vs. Gibbons, 1 South. (N. J.) 46. The caption of the indictment is no part of the in- dictment itself (2 Hale, 166), but is the style or pre- amble or return that is made from an inferior court to a superior, from whence a certiorari issues to re- move ; or when the whole record is made up in form. The People vs. Bennett, 37 N. Y, 123. (Quoting 3 Burn's Just. 372.) Captuee is a taking by the. enemy of vessel or cargo as prize in time of open war, or, by way of reprisal, with in- tent to deprive the owner of it. Mawranvs. Insurance Co. 6 Wallace (U.S.) 10. It is a term specially applicable to a taking by men- of-war or by privateers ; and it matters not whether the vessel be carried into port and condemned as a prize. Fifield vs. Insurance Co. 41 Penn. St. 187. A " capture " is the taking of property by one beli- 94 ADJUDGED WORDS AND PHRASES. CAPTURE CARGO gerent from another. * * Capture is a beligerent right, attached to a state of hostilities, and cannot therefore exist when hostilities have terminated Whitfield vs. United States, 11 Court of Claims R. 456. A capture means the hostile seizure of goods with in- tent to deprive the owner of them. Bodocanachi vs. Elliott L. R. 8 C. P. 670. A capture is a seizure as prize, with the intent or ex- pectation of obtaining a condemnation. Richardson vs. Insurance Co., 6 Mass. 109. Capture is when a ship is subdued and taken by an enemy in open war, or by way of reprisals, or by a pirate, and with intent to deprive the owner of it. Bole vs. N. E. Insurance Co. 6 Allen (Mass.) 387. Capture is a taking by the enemy as a prize, in time of open war, or by way of reprisals, with intent to deprive the owner of all dominion or right of prop- erty over the thing taken. Dole vs. Merchants' Ins. Co., 51 Maine 476. 2 Cliff. (U. S. C. C.)430. Capture and seizure (distinguished.) A capture, in technical language, is a taking by mili- tary power ; a seizure, a taking by civil authority. U. States vs. Athens Armory, 2 Abb. ( U. S. C. C.) 137. Captured property (in U. S.) Property which has been seized or taken from hos- tile possession by the military and naval forces of the United States. United States vs. Padelford, 9 Wallace ( U. S.J 540. 11 ct. of CI. 456. Cargo. > Cargo is the lading of a ship or other vessel, the bulk or dimensions of which is to be ascertained from the capacity of the ship or vessei ; and where the name of the ship or vessel is in the contract, her capacity for carrying, or the bulk of her cargo, need not be stated, for the word " cargo " embraces all that a vessel ia capable of carrying. Flanagan, vs. Demarest, 3 Robertson (K T.) 182. All the merchandises and effects which are laden on board a ship, exclusive of the soldiers, crew, rigging, ADJUDGED WORDS AND PHRASES. 95 CARGO CASTING ammunition, provisions, guns, &c, though all these things load it sometimes more than the merchandise. Wolcott vs. Eagle Ins. Co., 4 Pick. (Mass.) 433. Generally speaking, the term " cargo," unless there is something in the context to give it a different sig- nification, means the entire load of the ship which carries it, and it may fairly be assumed that when one man undertakes to sell and another to buy a cargo, the subject matter of the contract is to be the entire load of the ship. Borrowrnan vs. Drayton, 2 Ex. Div. 19. L. B. 5 Exch. 183 ; 1 Mason (U. S. Oil.) 142 ; 3 Robertson (N. Y.) 182; 1 Abb. (U. S. C. C.) 17. Case means a contested question in a court of justice. Gebhard vs. Sattler, 40 Iowa 150. The primary meaning of the word case, according to lexicographers is cause. When applied to legal pro- ceedings it imports a state of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice. Kundolfvs. Tkalheimer, 12 N. Y 596. 11 Wis. 516 ; 48 Tex. 433. Case stated is a substitute for a special verdict, adopted for con- venience to save the labor and expense of finding the same facts by the jury in the form of a special ver- dict. Whitesides vs. BusseU, 8 W. & 8. (Pa.) 41. Cast away (a vessel.) Castingaway is, like burning, a species of destruc- tion. Both of them mean such an act as causes the vessel to perish ; to be lost ; to be irrecoverable by ordinary means. United 'States vs. Johns, 1 Wash. (U. S. C. C.J 372. Casting vote. By the common law a casting vote sometimes signi- fies the single vote of a person who never votes ; but in the case of an equality, and sometimes the double vote of a person who first votes with the rest, and then, upon an equality, creates a majority by giving a second vote. . People vs. Hector, &c. of Atonement, 48 Barb. (N. Y.) 606. 96 ADJUDGED WOKDS AND PHKASES. casual cebtainty Casual poor are such, poor persons as are suddenly taken sick, or meet with some accident, when from home : and are thus providentially thrown upon the charities of those among whom they happen to be. Force vs. Haines, 2 Harr. (N. J.) 405. Cause. The origin or foundation of a thing, as of a suit or action ; a ground of action. United States vs. Phodez, 1 Abbott ( U. 8. C. C.J 33. (Quoting BurriU's L. Did.) Cause oe action. A right to bring an action, which implies that there is some person in existence who can assert, and also a person who can lawfully be sued. Douglass vs. Beasley, 40 Ala. 148. (Quoting Bouvier Z. Diet.) It may be said to be composed of the right of the plaintiff and the obligation, duty or wrong of the de- fendant ; and these combined, it is sufficiently accu- rate to say, constitute the cause of action. Feeder vs. Baker, 83 K Y. 160. The act on the part of the defendant, which gives the plaintiff his cause of complaint. Jackson vs. Spittal, L. P. 5 C. P. 552. The right which a party has to institute and carry through such a proceeding. Meyer vs. Van Collem, 28 Barb. (N: Y.J 231. L. E. 7 Q. B. 578 ; 1 Welsh. H. & Gordon 491 ; 102 El. 276. Cause probable vide Probable cause. Caveat emptor signifies that it is the business of the buyer to be upon his guard, and that he must abide the loss of any imprudent purchase, unless the goodness and soundness of the thing sold are warranted by the seller. Lynch vs. Postelthwaite, 7 Martin (La.) 186. Certainty There are 3 Manner of Certainties ; 1. To a common Intent ; 2. To a certain Intent in general ; 3. To a cer- tain Intent in Particular. Long's Case, 5 Coke, 121 a. ADJUDGED WORDS AND PHRASES. 97 CERTIFICATE CHAMPERTY ex vi termini imports that the party certifying know3 the facts that he certifies. Certificate mini imports th s that he certifi Farmer vs. Legg, 7 T. B. 19 '7. Cebtioraki, at common law, was an original writ, issuing out of Chancery, or the king's bench, directed in the king's name to the judges or officers of the inferior courts, commanding them to return the record of a cause de- pending before them, to the end the party may have the more sure and speedy justice, before him, or such other justice as he shall assign to determine the cause. Bean vs. State, 63 Ala. 154. A common law certiorari is a judicial process directed to an inferior court or tribunal, and brings up simply the record of the proceedings of such inferior tribunal. The People vs. Sup. of Living. Co., 43 Barb. (N. Y.J-234. 25 Wend. 167 ; 57 How. Pr. E. 433. Challenge to the array is an irregular form of pleading by which exception is made to all the jurors upon the venire for some original defect in making the return thereto. Durrah vs. The State, 44 Miss. 796. Chambers. The office or private rooms of a judge, where parties are heard, and orders made, in matters not requiring to be brought before the full court, and where costs are taxed, judgments signed, and similar business P. F. W. <& C. By. Co. vs. Hurd, 17 Ohio St. 146. (Quoting Bouvier L Diet.) Champerty. It is a bargaine with the demandant or tenant, plain- tiffe or defendant, to have part of the thing in suit, if he prevail therein, for maintenance of him in that suit. Bayard vs. McLane, 3 Harring. (Del.) 208. Champerty is the unlawful maintenance of a suit in consideration of some bargain to have part of the thing in dispute, or some profit out of it. Duke vs. Harper, 66 Mo. 55. Champerty, or campi partitio, strictly speaking, is a 98 ADJUDGED WORDS AND PHRASES. CHAMPERTY CHARACTER stipulation beforehand, by a person who has no c ran mon interest and merely supplies the means of carry ing on litigation, to receive a share of the very prop erty which is in dispute, if it shall be recovered. Stevens vs. Bagwell, 2 Hov. Supp. 395. (campi partitio,) a species of maintenance, and pun ishable in the same manner, being a bargain with a plaintiff or defendant to divide the land or other matter sued for between them, if they prevail at law, whereupon the champertor is to carry on the suit at his own expense. Scobey vs. Boss, 13 Ind. 118 (Quoting 4 Bl. Com. 135 j It is unquestion ably derived from an old French law term, c hampart, which was used to denote a custom- ary fiel d rent, consisting of a certain part of the crops in kind ; which answers to the ordinary case in this country of renting a farm for a part or share of the produce. Small vs. Matt, 22 Wend. (N. Y) 405. Champerty is an agreement to prosecute at one's own risk and expense, and to take part of the thing re- ceived, in c ompensation. Weakly et al. vs. Hall et at., 13 Ohio 175 29 Wis. 506 ; 73 111. 13 ; 4 Mich. 538 ; 15 Ves. 139 ; 7 Bing. 369 ; 23 Barb. 421 ; 14 N. Y. 294 ; 20 John 402 ; 7 Port. (Ala.) 490 ; 1 Jones' Eq. (N. C.) 104 ; 17 Ark. 624 ; 57 Geo. 264 ; 40 Conn. 570 ; 2 Baxt. 457. Chance and accident (distinguished) vide Accident, &c. Change (meeting place of merchants.) A fixed place where merchants meet, at certain hours, for the transaction of business with each other ; subject to such general rules or understand- ing as they think proper to be governed by. White vs. Brownell, 4 Abbott's Pr. R. N. S. ('N. Y.J 190. Character and reputation (distinguished.) Character signifies the peculiar qualities impressed by nature or habit on a person, which distinguish him from others ; these constitute real character, and the qualities which he is supposed to possess, constitute his estimated character, or reputation. Andre vs. The State, 5 Iowa 394. ADJUDGED WORDS AND PHRASES. 99 CHARACTER CHARITABLE Character and reputation are the same. Kimmel vs. Kimmel, 3 8. & R., (Pa.) 338. 8 Barb. 608 ; 5 Iowa 431. Charge (in act for creditor redeeming lands.) The word charge, is of very large signification ; * * its proper signification is, every lien, or incumbrance, or claim the purchaser may have upon the premises, and for which at law or in equity, he would be en- titled to hold the lands as security, or to the satis- faction of which a court of equity would condemn them. Grigg vs. Ranks, 59 Ala. 317. Charged (jury.) By the word " charged," we think is meant, after the prisoner has been placed in the hands of the jury for trial : that, by the practice in England, was always formally done immediately after the jury was sworn, and before the bill of indictment was read and any of the testimony heard. It means, therefore, charged with the fate of the prisoner, and not the testimony or law of the case. The State vs. Connor, 5 Goldw. (Tenn.) 313. 1 Humph. 260. Charges (criminal) signify an accusation, made in a legal manner, of il- legal conduct, either of omission or commission, by the person charged. Tompert vs. Lithgon, 1 Bush (Ky.) 180. The word "charges" implies an original complaint made in the first instance preliminary to a formal trial for a crime. Ryan vs. People, 79 N. Y. 598. Charges (in settling an estate.) The * word has, from familiar use, the precision of a technical term, and merely comprises the ex- penses incurred in the settlement of an estate. Goodwin vs. Chaffee, 4 Conn. 166. Charitable gift. Whatever is given for the love of God, or for the love of your neighbor, in the catholic and universal sense — given from these motives and to these ends — 100 ADJUDGED WORDS AJJD PHRASES. CHARITABLE CHARTER free from the stain or taint of every consideration that is personal, private or selfish. Price vs. Maxwell, 28 Perm. St. 35. A gift to a general public use, which extends to the poor as well as to the rich. Jones vs. Williams, Ambler 652. 24 How. (U. S.) 506; 11 Otto (U. S.) 365; 30 Penn. St. 450; 14 Allen 556. Charitable trust is simply an indefinite or uncertain trust — a trust without a beneficiary. Knox vs. Knox Exrs., 9 W. Va. 148. 33 N. Y. 107. Charity. A charity is a trust, and nothing more — an active, express trust — known to the English law, it is true, distinctively as a public trust. Levy et al. vs. Levy et al., 33 N. Y. 134. A gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, Dy as- sisting them to establish themselves in life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. Jackson vs. Phillips, 14 Allen (Mass) 556 Charity is a gift to a general public use. Paschal vs. Acklin, 21 Texas 199. 2 Stew. Eq. (N. J.) 44 ; 25 Ohio St. 243 ; 72 Me. 159 ; 7 Stew. Eq. (N.J.) 324. Charity (in Sunday Act) must include everything which proceeds from a sense of moral duty, or a feeling of kindness and humanity, and is intended wholly for the purpose of the relief or comfort of another, and not for one's own benefit or pleasure. Boyle vs. L. & B. R.R., 118 Mass. 197. Charter is a contract, to the validity of which the consent of both parties is essential, and therefore, it cannot be altered or added to without such consent. Dartmouth College vs. Wood, 4 Wlteaton (U. S.J 663. ADJUDGED WORDS AND PHRASES. 101 CHARTER CHATTEL A grant made by the sovereign, either to the whole people, or to a portion of them, securing to them the enjoyment of certain rights. State vs. Com. of R. R. 8 Vmnm (N. J.) 238. (Quoting Bouuier L. Diet.) Charter-party is the hiring of the whole or a part of a vessel, for the transportation of merchandise or passengers ; and if it does not, ex vi termini, convey a proprietary in- terest, it certainly does pass a claim or interest in the vessel, recognized by the maritime law, the privilege to look upon her as answerable for the goods placed on board. Vandewater vs. Yankee Blade, Me All. (U. S. C. C.) 13. A contract by which the owner lets his vessel to another for freight. Spring vs. Gray, 6 Peters (U. S.) 164. A contract for the entire or some principal part of a ship for the conveyance of goods on a determined voyage, or for employment in other trade, and con- tains covenants by each party. Wilson vs. Morgan, 4 Robertson (N. Y..J 67. A charter party is an agreement by indenture where- by the owners, &c. of a ship, and the freighters cov- enant with each other that such a ship shall take in such a lading, and carry the same to such a place, &c, in consideration of which the freighter is to pay so much. Ashley vs. Gomwell, 2 Hunf. ( Va.) 270. Chaste character (in seduction acts.) The meaning of the term " previous chaste charac- ter " is, that she shall possess actual personal virtue, in distinction from a good reputation. The State vs. Carron, 18 Iowa 375. Chattel mortgage. A chattel mortgage is a present transfer of the title to the property mortgaged, subject to be defeated on payment of the sum or instrument it is given to secure. Parshall vs. Eggert, 54 N. Y. 23. A mortgage of goods is a pledge and more ; for it is an absolute pledge to become an absolute interest, if not redeemed at the specified time. Brown vs. Bement, 8 John. (N. Y.J 98. 102 ADJUDGED WORDS AND PHRASES. CHATTEL CHATTEL It is a conveyance of the owner's title upon condi- tion, and the conveyance becomes an absolute inter- est at law if not redeemed by a given time. Smith vs. Acker, 23 Wend. (N. Y) 668. A chattel mortgage is an instrument of sale, convey- ing the title of the property to the mortgagee, with terms of defeasance, and if the terms of redemption are not complied with, then at law, the title becomes absolute in the mortgagee. The nature of the agree- ment must be such that by the mere non-performance of the condition by the mortgagor, the title will be transferred to the mortgagee by the force of the agreement. Parshall vs. Eggart. 52 Barb. (N. Y) 311. A mortgage of personal property is in the nature of a pledge and conditional sale, to become absolute, and vest the thing mortgaged without redemption, upon condition broken, in the mortgagee. Until a forfeiture has thus accrued, the mortgageehas only a lien upon the pledge for the security of his claim against the mortgagor, and would be liable in dam- ages if he were to sell the same or otherwise convert it to his own use. Bhines vs. Phelps, 8 III. 483. It is an executed conveyance, and has all the ele- ments of a sale. Like a sale, it requires a subject in esse and in the power of the mortgagor. Edgell vs. Hart, 9 K Y. 217. A chattel mortgage is a conditional transfer or con- veyance of the property itself, and if the condition be not duly performed the whole title vests abso- lutely at law in the mortgagee. Wright vs. Boss, 36 Gal. 428. A mortgage of personal chattels is a sale on condition. Stoddard vs. Dennison, 38 How. Pr. (N. Y.) 301. A mortgage is a sale of goods, with a condition that if the mortgagor performs some act it shall be void. If the condition is not performed the goods becom9 the absolute property of the mortgagee. Brownell vs. Hawkins, 4 Barb. (N. Y.) 493. 6 Ired. (N. C.) 319 ; 1 Sawyer 12 ; 7 Mick. 47 ; 44 Barb. 262. Chattel mortgage and pledge (distinguished.) The former is a condition transfer or conveyance of ADJUDGED WORDS AND PHRASES. 103 CHATTELS CHATTELS the property itself ; and if the condition is not duly performed, the whole title vests absolutely at law in the mortgagee, exactly as it does in a mortgage of lands ; the latter, a pledge, only passes the posses- sion, or at most is a special property in the pledge, with the right of retainer, until the debt is paid. Doak vs. Bank of the State, 6 Ired. Law (N. CJ. 319. Chattels. Chattels is a French word, signifying goods. In the grand coustumier of Normandy, a chattel is described as a mere movable, but, at the same time, is set in opposition is a, fief or feud, so that not only goods, but whatever was not a feud, were accounted chattels ; and it is in this latter, more extended negative sense, that our law adopts it, ; the idea of goods, or move- ables only, being not sufficiently comprehensive to take in everything that the law considers as a chattel interest. People vs. Holbrook, 13 Johns. (N. Y. ) 94. (Quoting 2 Bl. Com. 285. ) Its ordinary legal application is undoubtedly to things moveable and tangible, but it is a very com- prehensive word, including any species of property not real estate or freehold. State vs. Haight, Collector, 6 Vroom (N. J.) 2S2. Every moveable thing which can be weighed, mea- sured or counted, is included under the general term " chattels," which Lord Coke says, is a French word, signifying goods. Railroad Co. vs Thompson, 19 III. 584. 14 El. 258. Chattels personal and real (distinguished.) The former division includes moveable things only, as belonging immediately to the person ; chattels real are, such as concern and savor only of the realty, as terms for years, &c, and are immovable. Such interests are chattels real, because of their immobil- ity, and because they have not sufficient legal and de- terminate duration. Putnam vs. Westcott, 19 Johns. (N. Y.J 76. Chattels real are such as concern or savor of the realty, including terms for years, and are called real chattels, as being interests arising out of or being annexed to real 104 ADJUDGED WORDS AND PHRASES. CHEAT CHECK estate, of which they have one quality, to wit, immo- bility, but want the quality of indeterminate dura- ration, the want of which constitutes them chattels. Insurance Go. vs. Haven, 5 Otto (U. S.J 251. Cheat. The fraudulent obtaining of property of another by any deceitful and illegal practice or token (short of felony) which effects or may affect the public. MiddMon vs. State, Dudley (S. C.J 283. Cheat and defraud includes every kind of trick and deception, every false representation and intimation, every suppres- sion and concealment of any fact or opinion by which a party may be induced to part with his property for less than its value, or to give more than its worth for the property of another. State vs. Parker, 43 N. Samp. 85. Check. A written order or request, addressed to a bank, or to persons carrying on the business of bankers, by a party having money in their hands, requesting them to pay on presentment, to a person named therein, or to him or bearer, or order, a named sum of money. Bowen vs. Newell, 5 Sand/. (N. Y.J 328. (Quoting BurriWs L. Diet. ) An appropriation of so much money of the drawer's in the hands of the banker upon whom it is drawn, for the purpose of discharging a debt or liability of the drawer to a third person. Keene vs. Beard, 98 Eng. C. L. 381. A check is a bill of exchange payable on demand. Marker vs. Anderson, 21 Wend. (N. Y.J 373. A check is but an order to pay the holder so much money out of a fund in the drawee's hands, deposited for the express purpose of being recalled by draft, at the option of the customer. McGregor vs. Loomis, 1 Disney (Ohio) 256. A check is an order to pay the holder a sum of money at the bank, on presentment of the check and demand of the money ; no previous notice is neces- sary, no acceptance is required or expected, it has no days of grace. It is payable on presentment and not before. Bullard vs. Randall, 1 Gray (Mass.) 606.< ADJUDGED WORDS AND PHRASES. 105 CHECK CHOSE A check or draft is a request to pay money to the drawer, or his order, as a right, if he have funds, but in some measure a matter of favor, if he have not. If there be funds belonging to the drawer, it is a de- mand of them; if not, it is a request of credit to that amount. The State vs. Rickey, 4 Hoist. (N. J.J 312. It is an unconditional order to pay. It, in fact, rep- resents money, and to all practical intents is money. Burke vs. Bishop et al„ 27 La. Ann. 467. 22 Gratt. (Va.) 742 ; 4 E. J. 36 ; 6 Wend. (N. Y.) 643; 2 Story (U. S. C. C.) 513 ; 11 Fla. 271 ; 28 La. An. 867 ; 39 Barb. 181 ; 62 Barb. 105; L. E. 10 Excb. 169 ; 7 Heisk. 191. Cheyisance. Dealing by chevisance was really and truly the same thing as the business of a scrivener, so far as a deal- ing in money was the object of the trade of the scriv- ener ; that is, a person who dealt in money, and was called a money broker. In re Warren, bankrupt, 2 Sho. & Lsf. 423' Chtldken. The term " children " expresses the immediate off- spring of the parent ; neither in its vulgar or its legal sense is it expressive of remote descendants ; to make it so mean it must be coupled with other expressions which will give to it such a significa- tion. Booker vs. Booker, 5 Humph. (Tenn.J 505. 5 Heisk. 230. Chose. A chose has been defined to mean the legal interest possessed by a party in a contract or right, which, in case of opposition cannot be reduced into benefi- cial enjoyment without an action or suit. Hall vs. Bartlett, 9 Barb. (N. Y.J 299 Chose est action is a thing which a man has not the actual possession of, but which he has a right to demand by action, as a debt or demand due from another. Ramsey vs. Gould, 57 Barb. (N. Y.) 408. (Quoting Burr ill's L. DM.) Chose in action, taken in its broadest latitude, com- 106 ADJUDGED WORDS AND PHRASES. CHOSE CHUECH prehends not only a demand arising on contract, but also on wrong or injury to the property or person, The People vs. Tioga G. P., 19 Wend. (N. Y.J 75. The term, cJioses in action, has two recognized signifi- cations. It is sometimes used in the broad sense of all rights of action, whether ex contractu or ex delicto. Its narrower and more general use is confined to assignable rights of action ex contractu, and perhaps ex delicto, for injuries to property. Gibson vs. Gibson, 43 Wis. 32. A chose in action embraces two ideas ; first, a visible, tangible thing, and, second, the right to sue for and recover that thing. Dial vs. Gary, 14 S. C. 538. The term chose in action is used in contradistinction to chose in possession. It includes all rights to per- sonal property not in possession which may be en- forced by action ; and it makes no differenee whether the owner has been deprived of his property by the tortious act of another, or by his breach of a con- tract, express or implied. Gillett vs. Fairchild, 4 Denio (N. Y.J 82. 39 How. Pr. 71 ; 8 Abb. Pr. N. S. 186 ; 5 Mason 540. Church. A society of Christians meeting together in one place, under their proper pastors, for the performance of religious worship and the exercising of Christian discipline, united together by covenant. Baker vs. Fales, 16 Mass. 498. A " church " (ecclesia) may be — 1st. A temple or budding consecrated to the honor of God and reli- gion ; or 2d. An assembly of persons united by the profession of the same Christian faith, met together for religious worship. Robertson vs. Bullions, 9 Barb. (N. Y.) 95. The church consists of an indefinite number of per- , sons, of one or both sexes, who have made a public profession of religion ; and who are associated to- gether by a covenant of church fellowship, for the purpose of celebrating the sacrament, and watching over the spiritual welfare of each other. Baptist Church vs. Witherell, 3 Paige Ck (N. Y.) 301. It anciently signified any public meeting convened ADJUDGED WORDS AND PHRASES. 107 CIRCUMSTANTIAL CITIZEN to consult upon the common welfare of a State, was afterwards used to designate the place of sacred or religious meetings, and again it was applied to reli- gious congregations, assemblies or associations, but at the present time and under our institutions and laws, it must be understood to express a spiritual or religious corporation. Trustees of Bap. Soc. vs. Fisher et al. 3 Harr. (N.J.) 251 vide Parish church. 1G Gray (Mass.) 1330. Circumstantial evidence is composed of circumstances or relative facts bear- ing indirectly on the fact at issue, or which is sought to be proved, and requiring in its application to such facts a process of special inference leading to the conclusion denied. Howard vs. The State, 34 Ark. 440 (Quoting Burrill's Cir. Eo.s Circumstantial evidence is where the proof applies immediately to collateral facts, supposed to have a connection, near or remote, with the fact in contro- versy. Eberhardt vs. Sanger, 51 Wis. 78. Circumstantial evidence is of two kinds, namely : certain, or that from which the conclusion in question necessarily follows ; and uncertain, or that from which the conclusion does not necessarily follow, but is pr obable only, and is obtained by a process of reason- ing. Boss vs. Mayor, &c, New York, 4 Bolertson (N. Y.J 54 51 Wis. 78. Citizen is a subject of the government within whose territo- rial limits he resides. Constitutional Law, 44 Maine, 578 A citizen is of the genus homo, inhabiting, and having certain rights in some state or district. Ducat vs. Chicago, 48 III. 179 If we go back to Rome, whence the term, citizen, has its origin, we shall find, in the illustrious period of her republic, that citizens were the highest class of subjects to whom jus civitafis belonged, and that the jus civitatis conferred upon those who were in posses- 108 ADJUDGED WORDS USD PHRASES. CITIZEN CITY sion of it, all rights and privileges, civil, political and religious. Amy vs. Smith, 1 Littell (Ky.) 332. It appears to have been used in the Roman govern- ment to designate a person who had the freedom of the city, and the right to exercise all political and civil privileges of the government. There was also, at Rome, a partial citizenship, including civil but not political rights. Thomzsson vs. State, 15 Ind. 451. That this word does not always mean one and the same thing is clear. Thus we speak of a person as a citizen of a particular place, when we mean nothing more by it than that he is a resident of that place. "When we speak of a citizen of the United States, we mean one who was born within the limits of, or who has been naturalized by, the laws of the United States. State vs. Trustees, &c., 11 Ohio 27. A citizen is a freeman who has kept a family in a city. Boy vs. Sanger, 1 Roll 149. The term " citizen," as understood in our law, is pre- cisely analogous to the term subject, in the common law ; and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before was a " sub- ject of the king " is now " a citizen of the State." _ State vs. Manuel 4 Dev. & Batt (N. C.J 26. A citizen is one who owes the government allegiance, service, and money by way of taxation, and to whom the government, in turn, grants and guarantees lib- erty of person and of conscience, the right of acquir- ing _ and possessing property, of marriage and the social relations, of suit and defense, and security in person, estate and reputation. Van Valkenburg vs. Broion, 43 Col. 51. 1 Abb. (U. S. C. C.) 39 ; 3 Zab. 445. Citizen of each state (in the U. S. Const.) and " citizen of the United States," are convertable terms ; they mean the same thing. 44 Maine 518, Appendix. City is a town incorporated by that name. Van Biper vs. Parsons, 11 Vroom (N. J.) 4. (Quoting Bouvier L. Diet.) ADJUDGED WORDS AND PHRASES. 109 civil civil Civil action. An action which has for its object the recovery of private or civil rights, or compensation for their in- fraction. In re Farnum's Petition, 51 Samp. 383. (Quoting Bouvier L. Bid. ) Civil action is an action wherein an issue is pre- sented for trial formed by the averments of the com- plaint, and the denials of the answer, or the replica- tion to new matter, and the trial takes place by the introduction of legal evidence to support the allega- tions of the pleadings, and a judgment in such an action is conclusive upon the rights of the parties, and could be plead in bar. beer Lodge Co. vs. Kohns, 2 Montana *i0. A civil action is brought to recover some civil right, or to obtain redress for some wrong not being a crime or misdemeanor, and is thus distinguished from a criminal action or prosecution. Landers vs. S. I. R.R. Co.,14 Abb. Pr. B. N. S.fN. T.J353. 28 Conn. 580 ; 43 Vt. 297 ; 1 Barb. 15. Civil case. A civil case is a suit at law to redress the violation of some contract, or to repair some injury to proper- ty, or to the person or personal rights of individuals. Shultz, Lessee, vs. Moore, Wright ( Ohio ) 281. Civil injueies vide Private wrongs. ClVIL LIBEKTY. Political or civil liberty which is that of a member of society, is no other than natural liberty, so far re- strained by human laws (and no further) as is neces- sary and expedient for the general advantage of the public. People vs. Berberrich, 20 Barb. (N. Y.) 231. (Quoting 1 Bl. Com. 125.) CrVTL WAR is when a party arises in a state which no longer obeys the sovereign, and is sufficiently strong to make head against him, or when, in a republic, the nation is divided into two opposite factions, and both sides take up arms. Brown vs. Hiatt, 1 DiUon (U. 8. C. C) 379. HO ADJUDGED WORDS AM) PHRASES. CIVIL CLAIM The term civil war is sometimes and perhaps an- ciently more commonly used to denote a contest in arms between two great parties in the state, but without any design of separation. * * Custom appropriates the term " civil war " to every war be- tween the members of one and the same political society. Hubbard vs. Harnden Ex. Co., 10 B. I. 246. 2 Black (U. S.) 633 ; 37 Ga. 526 ; 31 Tex. 538 ; 41 Ala. 434. Civilization implies an improved and progressive condition of the people, living under an organized government, with systematized labor, individual ownership of the soil, individual accumulations of property, humane and somewhat cultivated manners and customs, the in- stitution of the family, with well-defined and re- spected domestic and social relations, institutions of learning, intellectual activity, &c. Roche vs. Washington, 19 Ind. 56. Claim is a challenge by a man of the propriety or ownership of a thing which he has not in possession, but which is wrongfully detained from him. Stowel vs. Lord Zouch, Plowden, 359. It is, in a just juridical sense, a demand of some mat- ter 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. Prigg vs. Pennsylvania, 16 Peters (U. 8.) 615. A challenge or demand by any man of the property or ownership of a thing, or some interest in it, which he has not in possession, but which is withholden from him wrongfully. Douglass vs. Beashy, 40 Ala. 147. (Quoting BurrilVs L. Diet.) 43 Wis. 644 ; 20 Ohio St. 14 ; 46 Cal. 160 ; 3 Sandf. Ch. (N. Y.) 383 ; 6 Daly C. PI. 446 ; 32 How. Pr. 286 ; 6 Daly C. PI. 446 ; 10 How. Pr. 72; 43 N. T. 4:3. Claim (in connection with " public " lands.) It refers and relates to a settler's right or improve- ment, on a tract of land, the fee of which is in the government. Bowman vs. Torr, 3 Iowa 574. ADJUDGED WORDS AND PHRASES. Ill CLAIM CLOSE Claim of title and color of title (distinguished,) vide Color of title, dec. Claim upon the united states is something in the nature of a demand for damages arising out of some alleged act or omission of the government, not yet provided for or acknowledged by law. Dowell vs. Cardwell, 4 Sawyer ( U. S. C. C.J 228. Claimant, bona fide is one who supposes that- he has a good title and knows of no adverse claim. Morrison vs. Eobinson, 31 Penn. St. 459. Clerk (in offices.) A person employed in an office, public or private, for keeping records or accounts, whose business is to write or register, in proper form, the transactions of the tribunal or body to which he belongs. People vs. Fire Com'rs, 73 N. Y 442. (Quoting Bouvier's Z. Diet. ) Clerk (of a court.) An officer of a court who keeps its minutes, or records its proceedings, and has the custody of its records and seal. Peters vs. State, 45 Wis. 540. (Quoting BurrilVs L. Did. ) Client. A client is one who applies to an advocate for counsel and defence ; one who retains an attorney ; is respon- sible to him for his fees, and to whom the attorney is responsible for the management of his suit. McFarland vs. Crary, 6 Wend. (N. Y.J 312. Close (in quare clasum fregit.) The word "close," in an action of this kind, has a technical meaning, signifying the interest in the soil. Blakeney vs. Blalceney, 6 Porter (Ala. J 115. Close signifies a portion of lands ; as, a field inclosed ; as by a hedge, fence, or other sensible inclosure. Locklin vs. Cosier, 50 How. Pr. R. (N. Y.J 45. Close corporation. That is, where the major part of the persons to whom the corporate powers have been granted, on the happening of vacancies among them, have the 112 ADJUDGED WORDS AKD PHRASES. CLOSE COASTING right of themselves to appoint others to fill such va- canies, without allowing to the inhabitants or corpo- rators, in general, any vote or choice in the selection of such new officers. McKim vs. Odom, 3 Bland Ch. (Md.) 416 n. Close-hauled. The arrangement or trim of a ship's sails when she endeavors to make a progress in the nearest direc- tion possible towards that point of the compass from which the wind blows. Chadwickvs. Steam Packet Co., 6EUis & B.(Q. B.J 776 Closed (saloons, in Sunday act.) It is clearly meant that the sales at least shall be entirely stopped, and the traffic shut off effectually, so that drinking and the conveniences for drinking, shall be no longer accessible, and those who frequent them for that purpose shall be dispersed. Kurtz vs. People, 33 Mich. 282. Cloud upon title. A cloud upon title is a title, or incumbrance, appa- rently valid, but in fact invalid. Bissell vs. Kellogg, 60 Barb. (K Y.J 629. If the title is obscured, so as to render the right of the real owner less clear, there is a cloud. Ward vs. Dewy, 16 (N. Y.J 531. Coach. It is a kind of carriage, and is distinguished from other vehicles chiefly, as being a covered box, hung on leathers, with four wheels. Turnpike Co. vs. Neil, 9 Ohio 12. Coal peivilege is the right of mining and taking out all the coal lying under a certain piece of ground, or a given number of acres, either at a specified rate per bushel, or so much by the acre. Paterson vs. Kier, 2 Pittsb. B. (Pa.) 199. Coasting teade. It means commercial intercourse carried on between, different districts in different states, between different districts in the same state, and between different places in the same district, on the sea coast or on a navigable river. Steamboat Co. vs. Livingston, 3 Cowen (N. Y.J 747. ADJUDGED WORDS AND PHRASES. 118 COASTING COHABIT The term is intended to indicate vessels engaged in the domestic trade, or plying between port and port in the United States, as contradistinguished from those vessels engaged in the foreign trade or plying between a port of the United States and a port in a foreign country. San Francisco vs. Navigation Co., 10 Cal. 507. Newb. (U. S. Adm.) 259. Coasting vessel means a vessel trading from port to port along the coast of the Kingdom of Great Britain. Shepherd vs. Hills, 11 Excli. 67. Code. A general collection or compilation of laws by public authority. Railiuay Co. vs. Weiner, 49 Miss. 739. Codicil is a clause added to the will after its execution ; the purpose of which usually is, to alter, enlarge or re- strain the provisions of the will, or to explain, con- firm and republish it. Lamb vs. Lamb, 11 Pick. (Mass.) 376. Some addition to or qualification of a last will and tsstament. Proctor vs. Clarke, 3 Red/. Surr. Rep. (N. Y.) 448. 45 Conn. 79. Cognizance and avowry (distinguished.) vide Avowry, dec. Cognizance and control are appropriate words to confer administrative, exec- utive or judicial authority. Matter of Zborowski. 68 N. Y. 101. Cognovit. A cognovit is a mere acknowledgment of an account. Ames vs. Hill, 2 B. & P. 151. A mere acknowledgement of the amount of the dam- Wyborne vs. Ross, 2 Taunt. 68. Cohabit. The preliminary meaning of the word cohabit is to dwell with some one — not merely to visit or see them. It includes more than that. Such, too, is the mean- H4 ADJUDGED WORDS AND PHKASES. COHABIT COI3* ing as determined by its derivation, being com- pounded of con, with, and habito, to dwell. Living to- gether. Cede/ vs. Cede/, 54 Maine 366. To live together in the same house, claiming to be married. SuUivan vs. The State, 32 Ark 190. 2 Cush. 554. (Quoting Bouvier L. Did.) Cohabitation does not mean merely living together ; it means liv- ing together as husband and wife. Brinlcle vs. Brinlcle, 12 Phila. R. 234. Cohabiting. By cohabiting must be understood a dwelling or living together, not a transient or single unlawful in- terview. Com. vs. Calef., 10 Mass. 153. Cohabiting, means a living together in one house ; a boarding or tabling together ; it carries with it the idea of a fixed residence. Ohio vs. Connoway, Tappan (Ohio) 59. Coin is a word collective which contains in it all manner of the several stamps and portraitures of money. Com. vs. Cradley, 16 Gray (Mass,) 241. (Quoting Term.es de la Ley. ) Coin signifieth a corner, because in ancient times money was square with corners. Co. LiU. 201 a. A coin is a piece of metal stamped and made legally current as money. United States vs. Bogart, 9 Benedict ( U. S. D. C.) 315. Coin and money (distinguished.) vide Money, &c. Coin money. " To coin money," means to make money out of coin, and nothing else. Thayer vs. Hedges, 22 Jnd. 306. " To coin money " clearly means to mould into form a metalic substance of intrinsic value, and stamp on it its legal value, so as to encourage and facilitate its free circulation and assure stability in the currency. Griswold vs. Hepburn, 2 Duvall (Ky.) 29. ADJUDGED WORDS AND PHRASES. US coinage collision Coinage Coin and coinage are understood to be the stamping of metal in some way so as to give them currency, but it is not applied to any other material. Meyer vs. Roosevelt, 25 How. Pr. B. (N. Y.J 105. Collateral security is merely a concurrent security for another debt, whether antecedent or newly created, and is designed to increase the means of the creditor to realize the principal debt which it is given to secure. Munn vs. McDonald, 10 Watts (Pa.) 273. Collateral security (in contracts,) is a separate obligation, which is attached to another contract, and is to guarantee its performance. By this term is also meant a transfer of property, or of other contracts, to insure the performance of a prin- cipal engagement. Lochrane vs. Solomon, 38 Georgia 292. Collateral warranty. A warranty is collateral where he on whom the war- ranty descends does not claim the land as heir of him by whom the warranty was made. Dm vs. Crauford, 3 Halst. (N. J.) 10S. College. The word college is more naturally applied to the place where a collection of students is contemplated, than to the hall or other buildings intended for their accommodation. Stanwoodvs. Pierce, 7 Mass. 460. Colloquium (in pi.) A colloquium serves to show that the words were spoken in reference to the matter of the averment. Van Veckten vs. Hopkins, 5 John. (N. Y.J 220. Collusion. An agreement between two or more persons to de- fraud a person of his rights by the forms of law or to obtain an object forbidden by law, as for exam- ple, where the husband and wife collude to obtain a divorce for a cause not authorized by law. It is nearly allied to covin. Baldwin vs. Mayor of N. Y., 45 Barb. (N. Y.) 369. t Quoting Bouvier L. Ditc.) 116 ADJUDGED WORDS AND PHRASES. COLLUSION COLOR Collusion is the secret concert of action, between- two or more for promotion of some fraudulent ob- ject. Belt vs. Blackburn, 28 Md. 235. 30 How. Pr. R. 300. COLOE in law means not the thing itself, but only an ap- pearanee thereof ; as color of title means only the appearance of title. Broughton vs. Haywood, 61 N. C. 383. 23 HI. 511. Coloe (as applied to sugar) is the hue or degree of lightness which the sugar has attained in the ordinary course of its manufacture, and which indicates the degree of perfection to which the process of clarification has been carried. V. S. vs. Cargo of Sugar, 3 Saw. (U. S. C. C.J 54. Coloe (in pi.) Giving colour in pleading, is giving to your adversary a title which is defective, but not so obviously so, that it would be apparent to one not skilled- in the law, it must be such as would perplex a layman. Tate vs. Southard, 3 Hawks (N. C.J 120. Coloe op office is when an act is evilly done by the countenance of an officer and is always taken in the worst sense, be- ing grounded upon corruption, to which the office is a mere shadow or color. Winter vs. Kinney, 1 N. Y. 368. (Quoting Tomlin's L. Did.) Color of office is defined as charact erizingan act wrongfully done by an officer under the pretended authority of his office, and "grounded upon corrup- tion, to which the office is as a mere shadow of color." Decker vs. Judson, 16 N. Y, 442. (Quoting Bouvkr L. Diet.) The phrase " colore officii," is always taken in the worst sense, and signifies an act evilly done by the countenance of an office. Morton vs. Campbell, 37 Barb. (K Y.J 182. (Quoting Termes de la Ley, 156.) 23 Wend. 608. ; 12 Bush. (Ky.) 228 ; 28 N. T. 321 ; 41 N. Y. 470. ADJUDGED WORDS AND PHRASES. 11? COLOR COMBINATION Color of office and vietue of office (distinguished.) vide Virtue of office, &c. Color of title means a deed or survey of the land, placed upon the public record of land titles, whereby notice is given to the true owner, and all the world, that the occu- pant claims the title. Hodges vs. Eddy, 38 Vermont 345. That which in appearance is title but which in reality is no title. Wright vs. Mattison, 18 Howard (U. S.J 56. Color of title may be defined to be a writing, upon its face professing to pass title, but which does not do it, either from a want of title in the person making it, or the defective mode of conveyance that is used. Tate vs. Southard, 3 Hawks (N. C.J 121. Color of title is anything in writing connected with the title which serves to define the extent of the claim. Field vs. Boynton, 33 Georgia 242. It is that which the law will consider prima facie a good title, but which, by reason of some defect, not appearing on its face, does not in faet amount to title Bernal vs. Gleim, 33 Gal. 676. 6 Wis. 536 ; 23 111. 510 ; 33 Cal. 676 ; 6 Wis. 523 ; 32 Mi 358. Color of title and claim of title (distinguished.) To constitute the former there must be a paper title but the latter may exist wholly by parol. Hamilton, vs. Wright, 30 Iowa 486. Colorable title, in appearance is title, but in fact is not, or may not be any title at alL Dickens vs. Barnes, 79 N. G. 491. Colored race. The term " colored race " is but another designation, and in this country but a synonym for African. Clark vs. Board of Directors, 24 Iowa 275. Combination (criminal.) A combination is a conspiracy in law, whenever the act to be done has a necessary tendency to prejudice the public or oppress individuals, by unjustly sub- 118 ADJUDGED WORDS AND PHRASES. COME COMMENCEMENT: jecting them to the power of the confederators, and; giving effect to the purposes of the latter, whether of extortion or mischief. Com. vs. Gallagher, 2 Perm. Law Jour. 303. Come to reside. In a strict S9nse a man may be said to come to reside at a place, where he comes intending to stay but for a short time, although he has no intention thereby to change his domicil. Gom. vs Swan, 1 Pick. (Mass.) 195. Comfort. The word embraces whatever is requisite to give se- curity from want, and furnish reasonable physical, mental and spiritual enjoyment. Forman vs. Whitney, 2 Kzyes (N. Y.) 168. Commencement of a building (in lien law) is the first labor done on the ground which is made the foundation of the building, and to form part of the work suitable and necessary for its construction. Pennoch vs. Rover, 5 Bawle (Pa.) 308. Some work and labor on the ground, the effects of which are apparent, easily seen by everybody, such as beginning to dig the foundation, or work of like description, which every one can readily see and recognize as the commencement of a building. Brooks vs. Lester, 36 MA. 70. Where work is done with the design to go on and: construct a building, there can be no question that it must be regarded as the commencement of the building. Jean vs. Wilson, 38 MA. 296. 11 C. E. G. Eq. 392 ; 45 Md. 392. Commencement of a suit. • The words "commence a suit," * * mean the suing out of process, or originating proceedings, whereby an action in a court of law or equity is in- stituted to establish some right or redress some . .wrong. Wilson vs. Baptist Society, 10 Barb. (N. Y.) 318. The suing out of the writ has been held to be the' commencement of the suit, and, although there may be some uncertainty in the term " suing out the writ," yet there can be no doubt, that the delivery of ADJUDGED WORDS AND PHEASES. 119 COMMENCEMENT COMMEEOE the writ to the proper officer, or leaving it at his house, for the purpose of being executed, is to be deemed the actual commencement of the suit. Bronson vs. Earl, 17 John (N. Y.) 65. When a writ is issued out of the office of the clerk, or of the attorney * * in good faith, for the pur- pose of being served or proceeded on, and that pur- pose is not afterwards abandoned, it is, for all mate- rial purposes, the actual commencement of the suit. Wliittaker vs. Turnbull, 3 Harr. (N. J.) 174. 4 Cow. 160. Commerce, in its simplest signification, means an exchange of goods ; but in the advancement of society, labor, transportation, intelligence, and various mediums of exchange, become commodities, and enter into com- merce ; the subject, the vehicle, the agent, and their various operations, become the objects of commercial regulation. Gibbons vs. Ogden, 9 Wheaton (U.S.) 229. Commerce is the interchange or mutual change of goods, productions, or property of any kind, between nations or individuals. Transportation is the means by which commerce is carried on ; * * Any regula- tion of the transportation of inter-state commerce, whether it be upon the high seas, the lakes, the rivers, or upon railroads or other artificial channels of communication, affecting commerce, operates as a regulation of commerce itself. Council Bluffs vs. K. C. St. J. & C. P. B. B. 45 Iowa 349. Commerce is a term of the largest import. It com- prehends intercourse for the purposes of trade in any and all its forms, including transportation, purchase, sale and exchange of commodities, between the citi- zens of our country and the citizens or subjects of other countries, and between the citizens of different States. Trade-Mark Cases, 10 Otto (U. S.) 86 34 Cal. 397 ; 31 Iowa 207. Commerce and trade (distinguished.) Commerce relates to dealings with foreign nations ; trade, on the contrary, means mutual traffic among 120 ADJUDGED WORDS AND PHRASES. COMMERCIAL COMMISSION ourselves, or the buying, selling or exchange of arti- cles among members of the same community. The People vs. Fisher, 14 Wend. (N. Y.) 15. (Quoting Jacob's L. Diet.) Commercial law is a phrase employed to denote the branch of law which relates to the rights of property and the rela- tions of persons engaged in commerce. R. R. Co. vs. National Bank, 12 Otto ( U. 8.) 55. Commercial paper (in bankrupt act) means negotiable paper (that is, promissory notes or bills of exchange), made by a banker, merchant, or trader in tlie due course of his business as such banker, mercliant or trader, whether the element of negotiabil- ity be given the instrument by the law merchant (or common law of merchants) or by statute. It seems to me sufficient that the paper be negotiable — that is transferable by indorsement or delivery. In re Sykes, 5 BisseU (U. 8. C. C.) 114. Commission (on sale) legally imports a sum allowed as compensation to a servant, factor, or agent, who manages the affairs of others, in recompense for his services. The right to such allowance may either be the subject of a special contract, or it may rest upon an implied contract to pay quantum meruit. Ralston vs. KoM, 30 Ohio St. 98. Commission (to take testimony). A commission is a writ or process issued by the special order of the court, and a seal is essential to its validity. Tracy vs. Suydam, 30 Barb. (N. Y.) 115. Commission del credere. It is an absolute engagement to the principal from the broker, and makes him liable in the first instance. Grove vs. Dubois, 1 T. R. 115. 4 M. S. S. 574. Commission merchant: One who receives goods, chattels, or merchandise, for sale or exchange. Possession of the thing to be sold or exchanged, and authority to sell or exchange, or otherwise dispose of it, for a compensation to be ADJUDGED WORDS AND PHRASES. 121 COMMISSIONERS COMMON paid by the owner, or derived from the disposition, are essential to his character. Perkins vs. State, 50 Ala. 156. Commissioners. The term "commissioners" is a legal and appropri- ate designation of such persons as have a commis- sion, letters patent, or otlier lawful warrant, to ex- amine any matters, or to execute any public office, &c. Marris Canal vs. State, 2 Green f N.J.J 428. (Quoting 1 Jacob's X. Did. 507.) Commissions are an allowance for services, trouble, labor and re- sponsibility in. discharging the duties of the trust. Eckert vs. Lewis, 4 Phila. R. 225. In the business, as well as the legal acceptation of the term, it means a percentage on price or value. Brennan vs. Perry, 7 Phila. P. 243. Committee. The term " committee " means an individual or a body to which others have committed or delegated a particular duty, or who have taken on themselves to perform it in the expectation of their act being con- firmed by the body they profess to, represent or act for. Reynell vs. Lewis, 15 M. & W. 529. Committee (of a lunatic) is a bailiff whose power is limited to the mere care of the estate under the direction of the court. Lloyd vs. Hart, 2 Penn. St. 478. Commodity is a general term, and includes the privilege and con- venience of transacting a particular business. Com. vs. Lancaster Sav. B'k, 123 Mass. 495. The term commodity is properly used to signify al- most any description of article called movable or per- sonal estate. Barnett vs. Poioell, LitteU's Sel. Cos. (Ky.) 410. Common or right of common, is a right or privilege which sev- eral persons have to the produce of the lands or waters of another. Van Rensselaer vs. Radcliffe, 10 Wend. (N. Y.) 647. 122 ADJUDGED WORDS AND PHRASES. COMMON COMMON Common (as applied to schools.) The word " common," as applied to our schools, bears the broadest and most comprehensive signification. It is equivalent to public, universal, open to all ; for such is their character, subject only to such general statutory regulations as are prescribed by the legis- lature. People vs. Board of Education, 13 Barb. (N. Y.J 410. 11 Bush. 82. Common and special carrier (distinguished.) The distinction between a common carrier and a pri- vate or special carrier is, that the former holds him- self out in common, that is, to all persons who choose to employ him, as ready to carry for hire ; while the latter agrees, in some special case, with some private individual, to carry for hire. Alien vs. Sackrider, 37 N. Y. 342. vide Private carrier. f Common appendant is a right annexed to the possession of arable land, by which the owner is entitled to feed his beasts on the lands of another, usually of the owner of the manor of which the land entitled to common are a part. Van Rensselaer vs. Raddiff, 10 Wend. (N. Y.) 648. 18 Barb. 527. Common assurances. The legal evidences of the translation of property, are called the common assurances of the kingdom, whereby every man's estate is assured to him, and all controversies, doubts and difficulties are either prevented or removed. The State vs. Farrand, 3 Hoist. (N. J.) 335. (Quoting 1 Bl. Com. 294.) Common carrier. Any man undertaking for hire to carry the goods of all persons indifferently. Gisburn vs. Hurst, 1 Salh. 250. One who undertakes, for hire or reward, to transport the goods of such as choose to employ him, from place to place. Sheldon vs. Robinson, 7 N. Hamp. 163, One who undertakes and exercises, as a public em- ADJUDGED WORDS AND PHRASES. 128 COMMON COMMON , ployment, the transportation or carriage of goods for persons generally, from place to place, whether by land or by water, and to deliver them at the place appointed, for hire or reward, and with or without a special agreement as to price. McEenryvs.P. W. & B. R. R.Co.,4Harring.(Del.)448. To constitute one a common carrier he must make that a regular and constant business, or, at all events, he must for a time hold himself ready to carry for all persons indifferently who choose to employ him. U. S. Express Co. vs. Backman, 28 Ohio til. ' 150. Every person who undertakes to carry, for a com- pensation, the goods of all persons indifferently, is, as to the liability imposed, to be considered a com- mon carrier. Oraixge Bank vs. Brown, 3 Wend. (N. Y.) 161. 6 M. G. & S. 787 ; 3 Ala. 396 ; 74 HI. 117 ; 54 111. 95 ; 2 Mich. 548 ; 25 Mich. 333 ; 2 Zab. 377 ; 29 Barb. 612 ; 23 N. H. 284. 1 Watts & S. 286 ; 25 Penn. St. 120 ; 2 Tex. 117 ; 24 Conn. 479 ; 94 HI. 551 ; L. E. 9 Exch. 343. Common diligence vide Ordinary diligence. Common inn is a house for the entertainment of travellers and passengers, in which lodging and necessaries are provided for them and for their horses and attend- ants. Cromwell vs. Stephens, 2 Body Com. PI. (N. Y.) 21. Common law, is a rule prescribed by the common consent and agreement of the community as one applicable to its different relations and capable of preserving the peace, good order, and harmony of society, and ren- dering unto every one that which of right belongs to him. Its sources are to be found in the usages, hab- its, manners, and custom of a people. Its seat in the breast of the judges who are its expositors and ex- pounders. Jacob vs. State, 3 Humph. ( Term.) 514. The common law consists of those principles and maxims, usages and rules of action which observa- tion and experience of the nature of man, the consti- tion of society and the affairs of life have commended 124 ADJUDGED WORDS AND PHRASES. COMMON COMMON to enlightened reason, as best calculated for the gov- ernment and security of persons and property. Its principles are developed by judicial decisions as necessities arise from time to time demanding the application of those principles to particular cases in the administration of justice. The People vs. Randolph, 2 Parher Cr. B. (N. Y.J 176. Common law is a system of elementary principles and of general judicial truths, which are continually expanding with the progress of society, and adapting themselves to the gradual changes of trade and com- merce, and the mechanic arts, and the exigencies and usages of the country. Pierce vs. Proprietors, dec, 10 R. I. 241. It has been fined and refined by an infinite number of grave and learned men, and is the perfection of human reason. Drury vs. Drury, 8 Wend. (N. Y.J 324. 30 Barb. 13. (Quoting Lord Coke.) Common law and statute (distinguished.) vide Statute, &c. Common nuisance is an offence against the public, either by doing a thing, which tends to the annoyance of all persons, or by neglecting to do a thing which the common good requires. State vs, Mayor, &c. of Mobile, 5 Porter (Ala.) 311. Common nuisances are such inconvenient or trouble- some offenses as annoy the whole community in gen- eral, and not some particular person. The People vs. Toynbee, 20 Barb. (N. Y.) 200. 1 McLean 381; 4 "Wend. 30 ; 27 Barb. 210 ; 47 Barb. 67; 1 Swan 215. Common op estovers is the right a tenant has of taking necessary wood and timber from the woods of the lord for fuel, fenc- ing, &c. Van Rensselaer vs. Radcliff, 10 Wend. (N. Y.) 647. Common of pasture is the right of feeding the beasts of one person on the lands of another. Van Rensselaer vs. Badcliff, 10 Wend. (N. Y.J 647. ADJUDGED WORDS AND PHRASES. 125 common company Common op piscary is the right which a tenant has to take fish in the waters of the lord. Van Rensselaer vs. Radcliff, 10 Wend. (N. Y.J 647. Common op shack is a right of persons occupying arable land lying together, and uninclosed, to turn out their cattle to feed promiscue in the open field. Glveesman vs. Hardham, 1 B. & A. 111. Common op turbary is the right which a tenant has to cut turf in the grounds of the lord. Van Rensselaer vs. Radcliffe, 10 Wend. (N. Y.J 647. Common pleas. By " common pleas " is generally understood such pleas or actions as are brought by private persons against private persons, or by the government where the cause of action is of a civil nature. Dallett vs. Feltus et al., 7 Phila. R. 628. Common proceeding (in Court) is that kind of proceeding which is instituted and conducted in a manner common to other civil actions. Brown vs. Crego, 29 Iowa 322. Common recovery is a reconveyance on record, invented to give a ten- ant in tail an absolute power to dispose of his estate as if he were tenant in fee. Lyle vs. Richards, 9 S. & R. (Pa.) 364. Commutation is simply the substitution of a less for a greater pen- alty or punishment. Lee vs. Murphy, 22 Oratt. ( Va.J 799' A commutation is the change of one punishment known to the law for another and different punish- ment also known to the law. Ex parte James, 1 Nevada 321. Company. The word company when applied to persons en- gaged in trade, denotes those united for the same purpose or in a joint concern. Palmer vs. Pirikham, 33 Maine 36. 126 ADJUDGED WORDS AND PHRASES. COMPARISON COMPETENT Comparison (of handwriting.) By comparison is meant a comparison by the juxta- position of two writings, in order, by such compari- son, to ascertain whether both were written by the same person. Travis vs. Brown, 43 Penn. St. 12. By comparison is now meant the juoctaposition of two or more writings before the jury, that it may, from its own inspection and comparison of the paper in con- test, with others admitted or proved to be genuine, decide the question. Roiot vs. Kile, 1 Leigh ( Fa.) 222. Compelled to pay (whatever he shall be due, in cov.) means whatever by legal process he shall be obliged to pay, without reference to the laws of any particu- lar state. Parlcer vs. Thompson 3 Pick. (Mass.) 432. Compensation consists in remuneration for loss of time, necessary expenditures, and for permanent disability. Parker vs. Jenkins, 3 Bush. (Ky.) 591. Compensation is a mode of extinguishing a debt, and takes place, by mere operation of law, where debts equally liquidated and demandable are reciprocally due. Dorvin vs. Wiltz, 11 La. Ann. 520. Compensation is that return which is given for something else. Searcy vs. Grow, 15 Gal. 123. vide Just compensation. 14 HI. 192 ; 46 Ala. 579. Competent evidence. By " competent evidence " is meant that which the very nature of the thing to be proven requires, as, the production of a writing where its contents are the subject of inqiiiry. Chapman vs. Mc Adams, 1 Lea (Tenn.) 504. Competent jurisdiction. The terms "competent jurisdiction," intheir usual signification, embrace the person as well as the cause. Babbitt vs. Doe, 4 Ind. 359. 7 Iowa 330. ADJUDGED WORDS AND PHRASES. 127 competent composition Competent tribunal. A tribunal having jurisdiction of the subject-matter, and of the person. People vs. Tweed et al., 3 Hun (N. Y.) 778. COMPILATION AND ABRIDGMENT (distinguished.) A compilation consists of selected extracts from dif- ferent authors : an abridgement is a condensation of the views of the author. The former cannot be ex- tended so as to convey the same knowledge as the original work : the latter contains an epitome of the work abridged and consequently conveys sub- stantially the same knowledge. The former cannot adopt the arrangement of the work cited ; the latter must adopt the arrangement of the work abridged. The former infringes the copyright, if matter tran- scribed, when published, shall impair the value of the original book : a fair abridgment, though it may injure the original, is lawful. Story's Exrs. vs. Holcombe, 4 McLean (U. 8. G. G.) 314. Complaint. The term " complaints " is a technical one, descrip- tive of proceedings before magistrates. Com. vs. Davis, 11 Pick. (Mass.) 436. Completed (in contract for construction) means a completion in accordance with specifica- tions. Tower vs. D. L. & L. M. R. R. Co., 34 Mich. 338. Composition agreement. A composition agreement is one between a debtor and creditor, whereby the debtor agrees to give, and the creditor to take, a less sum at a time fixed, instead of the original debt, according to its terms. Bailey vs. Boyd, 75 Ind. 127. Composition real. By composition real is meant, where the present in- cumbent of any church, together with his patron and ordinary, do agree by deed under their hands and seals, or by fine in King's Court, that such lands shall be freed and discharged of the payment of all manner of tithes for ever, paying some annual payment, or doing some other thing, to the ease, 128 ADJUDGED WORDS. AND PHRASES. COMPOUND CONCUBINAGE profit, or advantage of the parson or vicar, to whom the titles did belong. Bury St. Edmund, &c. vs. Evans, 2 Comyn 551 n. (Quoting 3 Burn's Eccl. L. 415.) Compound a debt. To compound a debt is to abate a part, on receiving the residue. Hashins vs. Newcomb, 2 John. (N. Y.J 408. Compound interest. It signifies the adding of, the growing interest of any sum, to the sum itself, and then the taking of inter- est upon this accumulation. Camp vs. Bates, 11 Conn. 501. 3 Coldw. 585 ; 9 Ves. 223. Compounding a crime is an agreement with the criminal not to prosecute him. Condeman vs. Trenehard, 40 How. Pr. R. (N. Y.J 79. Compounding a felony vide Theft bote. Compounding interest is the charging interest against a debtor upon a sum which has accrued as interest upon the principal debt. Woods vs. Rankin, 2 Heislc. (Tenn.) 48. Compromise is an agreement made between two or more parties as a settlement of matters in dispute between them. Freitsclike vs. Western Grain Co., 10 Nebraska 360. Compromise implies either a mutual submission of matter in dispute to arbitrators or judges chosen by the parties, or an adjustment of such matters in dis- pute by the parties, by mutual concessions. Chilton vs. Wilford, 2 Wis. 6. Concealment (in insurance) is the designed and intentional withholding of any fact material to the risk, which the assured in honesty and good faith ought to communicate. Clark vs. Insurance Co., 40 N. Hamp. 338. 12 Cush. 425. Concubinage. The act or practice of cohabiting in sexual inter- ADJUDGED WORDS AND PHRASES. 139 CONDEMNATION CONDITION course, without authority of law or a legal marriage. The State vs. FeaseL 14 Mo. 526. (Quoting Bouvier L. Diet. ) Condemnation. A sentence, or judgment, which condemns some one to do, to give, or to pay something ; or which declares that his claim or pretensions are unfounded. Lock wood vs. Saffold, 1 Georgia 74. Condemnation as prize and confiscation (distinguished.) vide Confiscation, &c. Condemnation money is that which the law sentences the party to pay ; ex- pressed by the judgment of the court, the legitimate organ of the law. Lochwood vs. Saffold, 1 Georgia 74. Condemnation money (in appeal bond) means the damages that should be awarded against the appellant, by the judgment of the court. Doe vs. Daniels, 6 Black/. (Ind.) 9. Condemnation op lands, is but a purchase of them in invitum, and the title ac- quired is but a quit claim. Lake Merced Water Co. vs. Coioles, 31 Cal. 217. Condition is a restriction, or a qualification, annexed to a con- veyance of lands, whereby it is provided that in case a particular event does or does not happen, or in case the grantee does or omits to do a particular act, an estate shall commence, be enlarged, or defeated. State Bank vs. Hastings, 1 Doug. (Mich.) 252. Condition is a quality annexed to land whereby an estate may be defeated. Littlejohn vs. Egerton, 77 N. C. 384. By the word condition, is usually understood some quality annexed to real estate, by virtue of which it may be defeated, enlarged or created, upon an uncer- tain event ; also qualities annexed to personal con- tracts and agreements, are frequently called condi- tions, and these must be interpreted according to the real intention of the parties. Selden vs. Pringle, 17 Barb. (N. Y.) 465. (Quoting Bacon's Abr. Conditions.) ■vide Estates. 1 Mich. 413 ; 5 Neb. 407 ; 52 Tex. 226. 180 ADJUDGED WORDS AND PHRASES. CONDITION CONDITION. Condition and limitation (distinguished.) The principal difference between a condition and a limitation is, that the condition doe9 not defeat the, estate when broken, until it is avoided by an act of the grantor or his heirs ; but a limitation marks the period which is to determine the estate, without en- try or claim. Smith vs. White, 5 Nebraska 407. Condition precedent is a condition which must be performed before the agreement of the parties becomes a valid and bind- ing contract. Redman vs. ^Jina Ins. Co., 49 Wis. 438. A precedent condition is one which it must clearly be seen is to take place before the estate can vest ; and it must be literally performed. Moore vs. Moore, 47 Barb. (N. Y) 282. Conditions precedent are such as must be punctually performed before the estate can vest. Selden vs. Prlngle, 17 Barb. (N. Y) 466. 70 N.T. 309 ; 4 Vroom (N. J.) 503. Condition precedent and subsequent (distinguished.) "Where a condition must be performed before the estate can commence, it is called a condition prece- dent. But when the effect of the condition is, either to enlarge or to defeat an estate already created, it is then called a condition subsequent. Ludlow vs. N. Y.&H. B. B. Co., 12 Barb. (K Y.) 442. Condition subsequent. A subsequent condition is one which operates upon an estate already created and vested, and renders it liable to be defeated. * * * The usual words of a condition subsequent are, " so that," " provided," " if it shall happen," or " upon condition." Chopin vs. School District, 35 N. Samp. 450. A condition subsequent, is one which follows the performance of the contract, and operates to defeat and annul it upon the subsequent failure of either Sarty to comply with the conditions. I & N. W. B. B. Go. vs. Jones, 2 Ooldw. (Tenn.) 584. (Quoting Story on, Comiraats, § 20.) ADJUDGED WORDS AND PHRASES. 131 CONDITIONS CONFESSION Conditions and restbiotions (of a grant) import simply a qualification or limitation of the gift to which they are annexed. N. H.. Co. Railway vs. Hoboken, 12 Vroom (N. J.) 76. Conditional contract. A conditional contract is an executory contract, the performance of which depends upon a condition. It is not simply an executory contract, since the latter may be an absolute agreement to do, or not to do, something ; but it is a contract whose very existences and performance depends upon a contingency anl condition. N. & N. W. R. R. Go. vs. Jones, 2 Ooldw. (Term.) 584. (Quoting Story on Contracts, (} 20. ) Conditional fee, at the common law, was a fee restrained to some par- ticular heirs, exclusive of others : " as, to the heirs of a man's body," by which only his lineal descend- ants are admitted, in exclusion of collateral heirs. Simmons vs. Augustin, 3 Porter (Ala.) 96. Conditional sale and mortgage (distinguished) vide Mortgage, &c. Condonation is but a forgiveness on condition of subsequent fidelity. Armstrong vs. Armstrong, 32 Miss. 289. Condonation is forgiveness, upon condition the in- jury shall not be repeated, and is dependent upon future good usage and conjugal kindness. Farnham vs. Farnham, 73 HI. 500. It is always accompanied with an implied condition, which is, that the injury shall not be repeated. A repetition of it revives the former injury. Johnson vs. Johnson, 14 Wend. (N. T.) 643. i Barb. 221 ; 4 Paige 436 ; 341nd. 369 ; 1 Hagg. Ecol. 761 ; 22 Barb. 103. Confederacy ( confederate ) is when two or more combine together to do any damage or injury to another, or to do any unlawful act. State vs. Crowley, 41 Wis. 284. 52 How. Pr. K. 353. (Quoting Jacob's L. Diet.) Confession (in criminal law) is the voluntary declaration made by a person who 182 ADJUDGED WORDS AND PHRASES. CONFESSION CONFISCATION has committed a crime or misdemeanor, to another, of the agency or participation he had in the same. People vs. Strong, 30 Gal. 157. Confession (in pi.) is an admission of a cause of action, as alleged in the declaration, to the extent of its terms, and no further. Hackett vs. B. 0. & M. B. R, 35 N. Hamp. 397. Confession of judgment. It is a voluntary submission to the jurisdiction of ■ the court, giving by consent and without the service of process, wliat could otherwise be obtained by summons and complaint, and other formal proceed- ings. First Nat. B'k vs. Oarlinglwuse, 53 Barb. (N. T.) 618. n Confessions are either judicial or extra- judicial. Judicial confessions are those made in conformity to law before the committing magistrate, or in court in the due course of legal proceedings. * * Extra-judicial confessions are those which are made by a party elsewhere than before a magistrate or in court. State vs. Lamb, 28 Mo. 230. 1 Cliff. (U. S. C. C.) 23 ; 4 Tex. App. 479. Confirmation is the approbation or consent to an estate already created, which, as far as it is in the confirming power, makes it good and valid. The People vs. Law, 34 Barb. (N. Y.) 511. (Quoting Gilbert cm Tenures 69.) Confiscate. The verb confiscate is derived from the Latin, con, with, and fiscus, a basket, or hamper, in which the emperor's treasure was formerly kept. The meaning of the word to confiscate is to transfer property from private to public use ; or to forfeit property to the prince, or state. Ware vs. Eylton, 3 Dallas U. S.) 234. 5 Call. (Va.) 208. Confiscation and condemnation as prize (distinguished.) Confiscation is the act of the sovereign against a re- bellious subject. Condemnation as prize is the act of ADJUDGED WORDS AND PHRASES. 138 CONFUSION CONSANGUINITY a beligerent against another beligerent. Confisca- tion may be effected by such means, either summary or arbitrary, as the sovereign, expressing its will through lawful channels, may please to adopt. Con- demnation as prize can only be made in accordance with principles of law recognized in the common jurisprudence of the world. Both are proceedings in rem., but confiscation recognizes the title of the original owner to the property which is to be for- feited, while in prize the tenure of the property seized is qualified, provisional, and destitute of abso- lute ownership. Winchester vs. United States, 14 Court of Claims R. 48, Confusion of debts is the concurrence of two adverse rights to the same thing in one and the same person. Woods vs. Ridley, 11 Humph. (Tenn.J 198. (Quoting Story on Prom. A'otes, § 439. ) Congregation means an assemblage or union of persons in society for some religious purpose, to unite in the public worship of their God, in such manner as they seem most acceptable to him. Runlde vs. WinemiUer, 4 Harr. & McHen. (Md.) 452. It consists of a voluntary 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 administer the ordinances of baptism, &c. Baptist Church vs. Witherell, 3 Paige CL (N. Y) 301. vide Religious society. 9 Barb. 120. Consanguinity is the connection or relation of persons descended from the same stock or common ancestor. Sweezey vs. Willis, 1 Brad/. Surr. R. (N. Y.J 498. Consanguinity is the having the blood of some com- , mon ancestor. Blodget vs. Brinsweaid, 9 Vermont 30. Consanguinity is the basis of the laws which regulate the degrees between which marriage is forbidden ; the rules of succession and tutorship, the recusation of judges, and the admission or rejection of persons who are offered as witnesses. Bernard et al. vs. Vignaud, 10 Martin (La.) 561. 12 Ark. 660. 134 ADJUDGED WOKDS AMD PHRASES. consanguinity consideration Consanguinity collateral is that which subsists between persons who lineally descend from the sams ancestor, who is the stirpes, or root, but who do not descend the one from the other. McDowell vs. Addams, 45 Perm. St. 432. Consanguinity lineal is that which subsists between persons of whom one is descended in a right line from, the other, McDowell vs. Addams, 45 Perm. St. 432. Conscience and peinciple (distinguished.) The one is the result of judgment, is tested by rea- son, defended by argument, and yields to the decision of an intelligent mind. The other springs from some internal source of self-knowledge, which acknowl- edges no superior, bows to no authority, yields to no demonstration, and is governed by no law ; it ignores reason, defies argument, and is unaccountable and ir- responsible to all human tests and standards ; it is a law unto itself, and its scruples, and its teachings are not amenable to human tribunals, but rests alone with its possessor and his God. People vs. Stewart, 7 Gal. 143. Conscious op what he was doing is understood to mean the real nature and true char- acter of the act as a crime, and not in the mere act itself. ' Brown vs. Com., 78 Perm. St. 128. Consent is an agreement of the mind to what is proposed or stated by another. Plummer vs. Com. 1 Bush. (Ky.) 78. 33 Ind. 431. Consent (of parties in contract of sale) consists in the concurrence of the will of the vendor to sell a particular thing to the purchaser for a spec- ified price, with the will of the purchaser to buy tha same thing for that price. Mactier vs. Frith, 6 Wend. (N. Y.) 114. Consideration > means something which is of some value in the eyes of the law moving from the plaintiff : it may be some ADJUDGED WORDS AND PHRASES. 135 CONSIDERATION CONSIGNMENT benefit to the plaintiff, or some detriment to the de- fendant ; but at all events it must be moving from the plaintiff. Thomas vs. Thomas, 2 Q. B. 559- A cause, or occasion meritorious, that requires a mutual recompense. Stirling vs. Simmiclcson, 2 South. (N. J.) 760. 13 Minn. 421 ; 11 Neb. 450 ; 45 N. H. 532. Consideration (of the court) in legal phraseology, means the judgment of the court, and " it is considered by the court," is equivalent to " it is adjudged by the court." Terrill vs. Achauer, 14 Ohio St. 85. Consideration good is such as that of blood, or of natural affection. Clark vs. Troy, 20 Gal. 224. Consideration valuable is such as money or the like. Clark vs. Troy, 20 Col. 225. Consign To consign, in the mercantile law, is ordinarily to send or transmit goods to a merchant or factor for sale, and a consignee is consequently the person to whom they are consigned, snipped or otherwise transmitted. The radical meaning of the word " to consign," which is of French origin, is to deliver or transfer as a charge or trust. Gillespie vs. Winberg, 4 Daly, Com. PI. (N. Y.) 320. Consignation is a deposit which a debtor makes by authority of the court of the thing which he owes in the hands of a third persons. Weld vs. Hadley, 1 N. Hamp. 304. (Quoting Pothier on Obligations 536. ) Consignee. A consignee is a person residing at the port of de- livery to whom the goods are to be delivered when they arrive there. Wolff vs. Horncastle, 1 B. & P. 322. Consignment. A consignment is a species of mercantile conveyance operating upon the particular effects consigned, which though it may be defeasible, may operate in 136 ADJUDGED WORDS AND PHRASES. CONSPIRACY CONSPIRACY the meantime, and enable the consignee by his acts to bind the consignor. Lucena vs. Craufurd, 5 B. & P. 299. Conspiracy is a combination of two or more persons, by some concerted action, to accomplish some criminal or un- lawful purpose, or to accomplish some purpose not in itsell criminal or unlawful, by criminal or unlaw- ful means. Com. vs. Hunt, 4 Met. (Mass.) 123. Conspiracy, at the common law, is a confederacy of two or more persons wrongfully to prejudice another in his property, person, or character, or to injure public trade, or to affect public health, or to violate public policy, to obstruct public justice, or to do any act in itself illegal. Johnson vs. State, 2 Dutch. (N. J.) 321 r Conspiracy is the unlawful confederacy to do an un- lawful act, or even a lawful act for unlawful pur- poses. Com. vs. Judd, 2 (Mass.) 329. A confederacy to do an unlawful act, or a lawful act by unlawful means, whether to the prejudice of an individual or the public. Lambert vs. People, 9 Cowen (N. Y.) 606. An agreement to accomplish an end forbidden by law, though by means whieh would be harmless if used to accomplish an unforbidden end, is a criminal conspiracy. An agreement to accomplish, by means which are if done by themselves forbidden by law, an end which is harmless if accomplished by unforbidden means, is a criminal conspiracy. An agreement made with a fraudulent or wicked mind to do that which, if done, would give to the prosecutor a right of suit founded on fraud, or on violence exercised on or towards him, is a criminal conspiracy. Regina vs. AspinwaU, 2 Q. B. Bvo. 59. It is the combination of two or more to do something unlawful, either as a means or as an ultimate end, which constitutes the crime. Com. vs. Waterman, 122 Mass. 57. Conspiracy consists in an unlawful agreement, ADJUDGED WORDS AND PHRASES. 137 CONSTITUTION CONSTITUTION though nothing be done in pursuance of it : the con- spiracy is the gist of the offence. Hinchman vs. Richie, Brightly's Nisi Pr. (Pa.) 159. 41 Wis. 278 ; 1 Mich. 220 ; 30 Conn. 507 ; 5 Dill. (U. S. C. C.) 60 ; 15 N. H. 402 ; 1 Heisk. 190. Constitution is the organization of the government, distributing its powers among bodies of magistracy, and declar- ing their rights, and the liberties reserved and re- tained by the people. French vs. State, 52 Miss. 762. It is an instrument of government, made and adopt- ed by the people for practical purposes, connected with the common business and wants of human life. People vs. N. Y. Central R. R., 24 N. Y. 486. Constitution. A fundamental law or basis of government. It is established by the people in their original sovereign capacity, to promote their own happiness, and per- manently to secure their rights, property, independ- ence and common welfare. McKoan vs. Devries, 3 Barb. (N. Y.J 198. (Quoting Storey on Court, § 338) It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. Van Home vs. Dor ranee, 2 Dallas (U. S.J 308. In our American Constitutional law, the word " con- stitution " is used in a restricted sense, as implying the written instrument agreed upon by the people of the Union, or of any one of the States, as the abso- lute rule of action and decision for all departments and officers of the Government, in respect to all points covered by it, which must control until it shall be changed by the authority which established it, and in opposition to which any Act or regulation of any such department or officer, or even the people themselves, will be altogether void. State vs. McCann, 4 Lea (Tenn.J 9. (Quoting Cooky Const. 1km., pp. 2, 3.) According to the common acceptation of the word in these United States, it may be said to be an agreement of the people, in their individual capaci- 138 ADJUDGED WORDS AND PHRASES. CONSTITUTION CONSTBUCTIVE ties, reduced to writing, establishing and fixing cer- tain principles for the government of themselves. The State vs. Parkhurst, 4 Halst. (N. J.) 443. The constitution of an American State is the su- preme, organized, and written will of the people acting in Convention, and assigning to the different departments of the government their respective powers. Taylor vs. The Governor, 1 Ark. 27. Constitutions are only intended to secure the rights of the minority. Bank of the State vs. Cooper, 2 Yerg. (Term.) 606. 3 Brev. (S. C.) 501 ; 27 Iowa 74 ; 3 Wis. 96. Construction. The drawing of conclusions respecting subjects that lie beyond the direct expression of the text— conclu- sions which are in the spirit, though not within the letter of the text. Morris Aqueduct ads. Jones, 7 Vroom (N. J.) 209 (Quoting Lieber on Politicai Hermeneutics Ch. 1.) vide Practical construction. Constbuction (of a railroad) implies its preparation and readiness for use ; and not only so, but its use in a convenient and safe manner. Preston vs. Dubuque & Pacific R. R., 11 Iowa 17. Constbuction and actual fbaud (distinguished) vide Fraud actual, &c. Constbuctive and actual possession (distinguished) vide Actual, &c. Constbuctive deliveby is a general term, comprehending all those acts, which although not truly conferring a real posses- sion of the thing sold on the vendee, have been held constructione juris, equivalent to acts of real delivery. Bolin vs. Huffragle, 1 Rawle (Pa.) 20. Constbuctive eeaud consists in any act of omission, contrary to legal or equitable duty, trust or confidence justly reposed, which is contrary to good conscience, and operates to the injury of another. Jackson vs. Jackson, 47 Georgia 109. ADJUDGED WORDS AND PHRASES. 139 CONSTRUCTIVE CONSUL CONSTRUCTIVE MALICE vide Malice implied. Constructive notice is in its nature no more than evidence of notice, the presumption of which is so violent that the court will not allow, even of its being constradicted. Nelson vs. Allen, 1 Yerger (Tenn.) 367. Constructive notice is a legal inference from estab- lished facts ; and when the facts are not controverted, or the alleged defect or uniformity appears on the face of the instrument, and is a matter of ocular in- spection, the questionis one for the court. Birdsall vs. Russell, 29 N. Y, 249. 5 Leigh. 658 ; 14 Geo. 156 ; 2 Lead. Cas. in Eq. 152 ; 12 Barb. 56. Constructive possession is that which exists in contemplation of law, without actual personal occupation. Brown vs. Volkening, 64 N. Y. 80. Constructive possession is where one claims to hold by virtue of some title, without having the actual occupancy, as when the owner of a tract of land, regularly laid out, is in possession of a part, he is constructively in possession of the whole. Fleming vs. Maddox, 30 Iowa 241. Constructive total loss takes place when the subject insured is not wholly destroyed, but its destruction is rendered highly probable, and its recovery, though not hopeless, yet exceedingly doubtful. Burt vs. Brewer's Ins. Co., 9 Hun (N. Y.) 384. (Quoting BurrUVs L. Diet. ) Constructive trust. A constructive trust is one that arises when a person, clothed with a fiduciary character, by fraud or other- wise gains some advantage to himself. Courts con- strue this to be an advantage for the cestui que trust, or a constructive trust. Burks vs. Burks, 7 Baxter (Tenn.) 356. (Quoting Perry on Trusts 527. ) Consul. A consul is a commercial agent, with public functions, accredited to the national government by a foreign 140 ADJUDGED WORDS AND PHRASES. CONSUL CONTEMPT power and is admitted to be under the particular protection of the law of nations. Sartori vs. Hamilton, 1 Green (N. J.) 109. A consul is a mercantile agent of the sovereignty by which he is appointed to protect the commercial in- terests of its citizens or subjects in a foreign state. By virtue of his office he is clothed only with author- ity for commercial purposes. He is not to be con- sidered as a minister or diplomatic agent of his gov- ernment, intrusted with authority to represent it in negotiations with foreign states or to vindicate its prerogatives. Seidel vs. Peschkaw, 3 Dutch. (N. J.) 429. The word " consul " has two meanings. In its more limited sense it denotes an officer of a particular grade in the consular service ; * * in a broader generic sense it denotes all consular officers of what- ever grade. Dainese vs. United States, 15 Court of Claims B. 74. Contemplation op bankruptcy is not limited or confined to those cases only, where the bankrupts contemplate, and intend to be volun- teers in bankruptcy, nor even where they contem- plate future proceedings by their creditors against themselves in invitum ; but it extends also to cases ■where the bankrupts contemplate a complete and total stoppage of their business and trade. * * In short it means a contemplation of becoming a broken up and ruined trader, according to the original signi- fication of the term ; a person whose table or counter of business is broken up, bancus ruptus. Everett vs. Stone, 3 Story ( U. S. C. C.) 453. Contemplation of insolvency must mean something more than mere expectation of its occurrence ; it must include provision against its results, so far as the transferee is concerned, and that can only be applicable where he is already a creditor, and the object is to take his debt out of the equal rateable distribution of the assets of the company when insolvent. Heroy vs. Kerr, 21 Hoiu. Pr. R. (N. T.) 420. Contempt of couet is a disobedience to the court, by acting in opposi- ADJUDGED WORDS AND PHRASES. 141 CONTEMPT CONTINGENT tion to the authority, justice and dignity thereof ; it commonly consists in a party's doing otherwise than he is enjoined to do, or not doing what he is com- manded or required by the process, or decree of the court. Lyon vs. Lyon 21 Conn. 199. Contempt of court is a disobedience to the court, or an opposing order despising the authority, justice and dignity thereof. Sometimes it arises from one or more opposing and disturbing the execution or service of the process of the court, or using force to the party that serves it. Conover vs. Wood, 5 Abbott's Pr. B. (N. T.J 89. Contempt of court is either direct or constructive ; or, as the latter was anciently called, consequential. A direct contempt is an open insult, in the face of the court, to the person of the judges while presiding, or a resistance to its powers in their presence. A con- structive contempt is an act done, not in the presence of the court, but at a distance, which resists their authority, as disobedience to process, or an order of the court, such as tends in its operation to obstruct, interrupt, prevent or embarrass the administration of justice. Ex parte Wright, 65 Ind. 508. 3 Scam. (HI.) 404 ; L. K. 9 Q. B. 224. Contingency. A contingency is a fortuitous event which comes without design, foresight or expectation. People vs. Tankers, 39 Barb. (N. T.J 272. Contingent. The word contingent when applied to a use, remain- der, desire, bequest, or other legal right or interest, implies that no present interest exists, and that whether such interest or right ever will exist de- pends upon a future uncertain event. Jemison vs. Blowers, 5 Barb. (N. T.J 692. Contingent estates. They are contingent whilst the person to whom, or the event upon which, they are limited to take effect, remains uncertain. Tayloe vs. Gould, 10 Barb. (N. T.J 396. 10 Coke 85. 142 ADJUDGED WORDS AND PHRASES. CONTINGENT CONTINUING Contingent liability (in bankrupt act.) A contingent liability contracted by a bankrupt, in its legal signification, means an obligation of the bankrupt arising from bis contract, the duty topper- form which is dependent as to when or whether the obligation shall become absolute, upon the occur- rence of an event the happening of which is a matter of some uncertainty. Haywood vs. Shreve, 15 Vroom (N. J.J 104. Contingent eemaindek is a remainder limited so as to depend on an event or condition which may never happen or be per- formed, or which may not happen or be performed till after the determination of the preceding estate. Leslie vs. Marshall, 31 Barb. (N. Y.J 566. A contingent remainder is where the estate in re,- mainder is limited either to a dubious and uncertain person, or upon the happening of a dubious and un- certain event. Doe, Les. of Poor vs. Considine, 6 Wallace ( JJ. S.J 474. A remainder is contingent, when it is limited to take effect on an event, which may never happen till after the preceding particular estate ends, or is limited to a person not in being or not ascertained. Williamson vs. Field, 2 Sandf. Ch. (N. Y.J 552. A remainder is contingent, although the remainder- man is in being and ascertained, so long as it re- mains uncertain whether he will be absolutely en- titled to the estate limited to him in remainder, if lie lives and such estate continues until all the prece- dent estates have ceased. Hawley vs. James, 5 Paige Ch. (N. Y.J 467. A remainder is not to be considered as contingent in any case where it may be construed to be vested con- sistently witl/ the intention of the testator. . Moore vs. Lyons, 25 Wend. (N. Y.) 144. 5 Barb. 692 ; 2 Beasl. Ch. 176 ; 5 Conn. 99 ; 8 Conn. 359 ; 1 Hun 356. Contingent use. A contingent use is such as may by possibility happen in possession, reversion or remainder. Jemison vs. Blowers, 5 Barb. (N. Y.J 692. Continuing guaranty. An undertaking to be responsible for moneys to he ADJUDGED WORDS AND PHRASES. 148 CONTINUOUS CONTRACT advanced or goods to be sold to another from time to time. Buck vs. Burl, 18 N. Y. 343. Continuous means something the use of which is constant and uninterrupted. Suffield vs. Broivn, 4 Be G. J. & S. 199. Continuous (injury.) By "continuous " I do not mean never ceasing, but of recurring at repeated intervals, so as to be of re- peated occurrence, and so as to be of the same sort of damnification to the plaintiffs as an actual contin- uous mischief would be. Wood vs. Sutclife, 8 Eng. L. & Eq. 220. Continuous easements vide Apparent easements. Contraband op wae. Articles of commerce which neutrals are prohibited from furnishing to either one of the belligerents, for the reason that, by so doing, injury is done to the other belligerent. Elrod vs. Alexander, 4 Heisk. (Tenn.) 345. Contract. A contract fcon-traho) is a drawing together of minds until they meet. This agreement to do, or not to do, a particular thing, is the contract. McNulty vs. Prentice. 25 Barb. (N. Y) 207 Contract is a mutual consent of the minds of the parties concerned, respecting some property or right, that is the object of the stipulation, or something that is to be done or forborne ; a transaction between two or more persons, in which each party comes un- der an obligation to the other, and each reciprocally acquires a right to whatever is promised or stipu- lated by the other, and any words manifesting that congregatio mentium, are sufficient to constitute a con- tract. Canal Co. vs. Railroad Co., 4 Gill & John. (Md.) 129. A deliberate engagement between competent parties, upon a legal consideration, to do or to abstain from doing, some act. LanguiUe vs. TJie State, 4 Texas App. 321 U4 ADJUDGED WORDS AND PHRASES. CONTBACT CONTEACT A contract or agreement is where a promise is made on one side and assented to on the other. The State vs. Miller, 1 Mo. App. 76. An agreement upon sufficient consideration to do, or not to do, a particular thing, between parties able to contract, willing to contract, and actually con- tracting. Gatlin vs. Walton, 90 N. C. 344. A contract includes a concurrence of intention in two parties, one of whom promises something to the other, who on his part accepts such promise. Gallagher vs. White, 31 Barb. (N. Y.) 99. A bargain or agreement voluntarily made upon good consideration, between two or more persons capable of contracting, to do, or forbear to do, some lawful act. * * Six things are necessary to concur : 1st. A person able to contract. 2d. A person able to be contracted with. 3d. A thing to be contracted for. 4th. A good and sufficient consideration, or quid pro quo. 5th. Clear and explicit words to express the contract or agreement. 6th. The assent of both the contracting parties. Justice vs. Lang, 42 JV. T. 497. (Quoting Oomyn on Cont. 2.) The term contract comprises, in its full and more liberal signification, every description of agreements, obligations or legal ties, whereby one party binds himself, or becomes bound, expressly or impliedly, to pay a sum of money, or perform or omit to do a certain act. Woodruff vs. The State, 3 Ark. 301. vide Agreement. 3 Stew. (Ala.) 422 ; 30 Texas 426 ; 6 Heisk 98 ; 76 111. 357 ; 78 111. 610 ; 9 Cal. 83 ; 19 Ark. 364 ; 3 Nev. 323 ; 31 Conn. 265 ; 1 Harr. (Del.) 102 ; 5 Q. B. Div. 530. Conteact and judgment (distinguished.) vide Judgment, dec. Contract executed. A contract is executed where everything that was to be done is done, and nothing remains to be done. Farrington vs. Tennessee, 5 Otto ( U. S.) 683. A contract executed is one in which the object of the contract is performed ; and this * * ' differs in nothing from a grant. Fletcher vs. Peck, 6 Crunch ( U. S.) 137. vide Executed contract. 2 Vroom, 581 ; 4 Coldw. 285. ADJUDGED WOEDS AND PHKASES. 145 CONTRACT CONTBACTOE Contract executed and executory (distinguished.) A contract is said to be executed when nothing re- mains to be done by either party. Whilst any act remains to be done, the contract is understood to be executory, and the rules of law governing these two descriptions of contract are, necessarily, different. Fox vs. Kitton, 19 IU. 533. Contract executory. An executory contract is one where it is stipulated by the agreement of minds, upon a sufficient consid- eration, that something is to be done or not to be done by one or both parties. Farringlon vs. Tennessee, 5 Otto ( U. S.J 683. An executory contract is one in which a party binds himself to do, or not to do, a particular thing. Fletcher vs. Feck, 6 Cranch. (V. S.J 136. ■vide Ececidory contract. 4 Coldw. 285. Contract express. Express contracts are where the terms of the agree- ment are openly uttered and avowed at the time of the making. Thompson vs. Woodruff, 7 Coldw. (Term.) 409. Contract implied. An implied contract is that which reason and justice dictate, and which, therefore, the law presumes a person has contracted to perform ; and upon this presumption makes him answerable to such per- sons, as suffer by his non-performance. Brackett vs. Norton, 4 Conn. 524. vide Implied contracts. Contract op insurance vide Insurance. Contractor. One who contracts to do a specific piece of work, furnishing his own assistants, and executing the work either entirely according to his own ideas, or in accordance with a plan previously given him by a person for whom the work is done, without being subject to the latter with respect to the details of the work. McCarthy vs. Second Farish of Portland, 71 Me. 322. A person who, in the pursuit of an independent 146 ADJUDGED WORDS AJTD PHRASES. CONTRARY CONVERSION 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 Iron Company vs. Dodson, 7 Lea(Tenn.) 373. (Quoting Shear. & Bedf. on Negligence, § 76. ) Contrary to law (as a reason for a new trial) means contrary to the general principles of the law ( as applicable to the facts. Candy, Admr. vs. Hanmore, 76 Ind. 128. Contributory negligence. ; Any want of ordinary care, even in a slight degree which directly contributes to the injury. Neanow vs. Uttech, 46 Wis. 590. Controversy A controversy is a dispute arising between two or more persons. Barber vs. Kennedy, 18 Minn. 226. (Quoting Jiouvier L. Did.) Conveniently (when applied to official duty.) Whatever it is the duty of an officer to do while en- gaged in the performance of services enjoined upon him by law, and may be accomplished by the exer- cise of reasonable diligence, that, it may be said, can conveniently be done by him. Guerin vs. Eeese, 33 Cal. 297. Conversion (in trover) means the wrongfully turning to one's use the per- sonal goods of another, or doing some wrongful act inconsistent with or in opposition to the right of the owner. Nichols vs. Newsom, 2 Murphy (N. C.) 303. Conversion consists in the exercise of dominion and control over property inconsistent with and in defi- ance of the rights of the true owner or party having' the right of possession. Badger vs. Hatch, 71 Maine 565. A conversion seems to consist in any tortious act, by which the defendant deprives the plaintiff of his goods. Spencer vs. Blackman, 9 Wend. (N. T.) 168. A conversion consists either in the appropriation of the thing to the parties own use and beneficial en- joyment, or in its destruction, or in exercising domhi- ADJUDGED WORDS AjVD PHRASES. 147 CONVERSION CONVEYANCE ion over it in exclusion or defiance of the plaintiff's right, or in withholding the possession from the plaintiff under a claim of title inconsistent with his own. Ferguson vs. Clifford, 37 N. Hamp. 101. (Quoting 2 Greenleafon Ev. § 642.) Every unauthorized taking of personal property, and all intermeddling with it, beyond the extent of the authority conferred, in case a limited authority has been given, with intent so to apply and dispose of it as to alter its condition or interfere with the owners dominion is a conversion. Laverty vs. Snethen, 68 N. T. 524. (Quoting Bouvier L. Did. ) If one man, who is intrusted with the goods of another, put them into the hands of a third person contrary to orders, it is a conversion. Syeds vs. Hay, 4 T. R. 284. The action being founded on a conjunct right of pro- perty, and possession, any act of the defendant which negatives, or is inconsistent with such right, amounts in law to a conversion. It is not necessary to a con- version that there should be a manual taking of the thing in question, by the defendant ; it is not neces- sary that it should be shown that he has applied it to his own use. Dogs he exercise a dominion over it in exclusion, or in defiance of the plaintiff's right? If he does, that is in law, a conversion, be it for his own or another person's use. Bristol vs. Burt, 7 Johns. (N. Y.) 258. (Quoting 6 Bae. 'Abr. 677. ) 35 N. H. 324 ; 1 Head. 638 ; 1 Kich. (S. C.) 322 ; 13 S. & M. (Miss.) 588; 39 Verm. 480; L. E, 7 Q B. 629: L. R. 9 Exch. 89; 11 C. B. 985; 2 Allen 184; 36 Me. 439; 4 M. & S. 259; 9 Ark. 55; 20 How. Pr. 46G; 85 N. C. 340; 48 N. H. 406; 9 Heisk. 715. Convey to (real estate.) To convey real estate is, by an appropriate instru- ment, to transfer the legal title to it from the present owner to another. Abendroth vs. Greenwich, 29 Conn. 365. Conveyance is the transfer of the title to land, from one person or class of persons, to another. Klein vs. McNamara, 54 Miss. 105. (Quoting Bouvier L. Did.) 148 ADJUDGED WORDS AND PHRASES. COSWEYANCE COPYRIGHT A " conveyance " is a deed which passes or conveys land from one man to another. Brown vs. Fitz, 13 N. Hamp. 285. 45 Miss. 248; L. R. 10 Ch. App. 12. Cohvicted. A man is convicted when he is found guilty or con- fesses the crimes before judgment had. Shepherd vs. People, 24 How. Pr. B. (N. Y.J 401. Convicted and attainted (distinguished) vide Attainted, &c. Conviction means the finding by the jury of a verdict that the accused is guilty. But in legal parlance, it often de- notes the final judgment of the court. Blaufus vs. People, 69 N. Y 109. Conviction is an adjudication that the accused is guilty. It involves not only the corpus delicti, and the probable guilt of the accused, but his actual guilt. Nason vs. Staples, 48 Maine 121. Conviction, when used to designate a particular state of criminal prosecution triable by a jury, is the con- fession by the accused in open court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt. Com. vs. Lockwood, 109 Mass. 325. A conviction implies not simply a verdict, but also a judgment. Smith vs. The State, 6 Lea '(Term.) 639. 5 Bush 204 ; 17 Pick. 296 ; 25 Gratt. 853. Copy. A copy is a true transcript of an original writing. Dickinson vs. Bailroad Co., 7 W. Va. 412. Copyright signifies the sole right of printing, publishing and selling his literary composition or book. Stowevs. Thomas, 2 Wallace, jr. (U. S. C. C.) 567. A copyright is the exclusive right of multiplying copies of an original work or composition, and con- sequently preventing others from so doing. Chappell vs. Purday, 14 M. & W. 316. - Copyright is an exclusive right to the multiplication ADJUDGED WORDS AND PHRASES. 149 CORONER CORPORATE of the copies, for the benefit of the author or hia assigns, disconnected from the plate or any other physical existence. Stephens vs. Cady, 14 Howard ( U. S.J 530. 4 Burr. 2396. CORONER. The coroner is a conservator of the king's peace, and becomes a magistrate by virtue of his appoint- ment, having power to cause felons to be appre- hended, whether an inquisition had been found against him or not. The ministerial office of the coroner is only as the sheriff's substitute in executing process. Davis vs. Justices of Pembrokeshire, 7 Q. B. Div. 514. (Quoting Stephen's Com. 641.) Corporal oath. A solemn oath, so called from the ancient usage of touching the corporate, or cloth that covered the con- secrated elements. Jackson vs. The State, 1 Ind. 185. Corporal oath so called because the person who takes it lays his hand on some part of the scriptures, or other book esteemed sacred by the witness, or kisses the book. * * * * The term corporal oath must be considered as applying to any bodily assent to the oath of the witness. State vs. Norris, 9 N. Hamp. 102. Corporal punishment seems to mean any kind of corporal privation or suf- fering which is inflicted by the sentence, directly by way of penalty for the offence ; and in this sense, in- cludes imprisonment as well as of the pillory. People vs. WincheU, 7 Gowen (N. Y.J 525 n. Corporate purpose. Such purposes, and such only, as are germane to the objects of the creation of the municipality, at least such as have a legitimate connection with those ob- jects, and a manifest relation thereto. Livingston County vs. Weider, 64 III. 432. Corporate rights. Franchises or peculiar privileged grants, of the na- ture of incorporeal property. Warner vs. Beers, 23 Wend. (N. Y.J 154. 150 ADJUDGED WORDS AND PHKASES. CORPORATE CORPORATION A franchise possessed by one or more individuals, who subsist as a body politic, with the capacity of acting in many respects as a single individual. Farmers' Loan & Trust Co. vs. Mayor, &c, N. Y, 7 Hill (N. Y.J 283. Corporation. A corporation is an artificial being, invisible, intan- gible, and existing only in contemplation of law. Be- ing the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best cal- culated to effect the object for which it was created. Among the most important are immortality and, if the expression may be allowed, individuality. Dartmouth College vs. Woodward, 4 Wheat, (U. S.J 636. A corporation is a collection of many individuals united in one body, under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with a capacity of acting, in several respects, as an individual, par- ticularly of taking and granting property, contracting obligations and of suing and being sued ; of enjoying privileges and immunities in common, and of exer- cising a variety of political rights, more or less ex- tensive, according to the design of its institution, or the powers conferred upon it, either at the time of its creation, or at any subsequent period of its existence. Toledo Bank vs. Bond, 1 Ohio St. 642. (Quoting Kyd on Corp. 13.) A corporation is an artificial entity and a fictitious person, and is only endowed with life and capacity to organize, to act and be acted upon, to contract and be contracted with, to sue and be sued, to manage its business, perform its functions, exercise its fran- chises, and accomplish its objects, through natural persons, and its personal members and officers, in the corporate name. State vs. Milwaukee L. S. & W. By. Co., 45 Wis. 592. A corporation, in the definition of it, is a creature of the crown, created by letters patent. Kirk vs. NoweU, 1 T. R. 124. They are artificial persons constituted by the law, consisting of one or many persons, who are vested ADJUDGED WORDS AND PHRASES. 151 COKPOKATION COEPORATION with the power of holding property, transacting bus- iness, maintaining suits in a corporate name, without mention of the names of the individuals of which it is composed, and without their rights or their remedies being affected by changes of the persons who are from time to time members of the corporation. Marsh vs. Eastern R. R. Co., 40 N. Hamp. 578. An artificial body composed of divers constituent members ad instar corporis humani, and that the liga,- ments of this body politic, or artificial body, are the franchises and liberties thereof, which bind and unite all its members together, and the whole frame and essence of the corporation consist therein. Sir James Smith's case, Carthew's R. 217. A collection of individuals united in one body, under such a grant of privileges as secures a succession of members without changing the identity of the body, and constitutes the members for the time being one artificial person, or legal being, capable of transact- ing some kind of business like a natural person. People vs. Assessors, dc, 1 Hill (N. Y.J 620. Corporations aggregate consist of many persons united together, into one society, and are kept by a Sterpetual succession of members, so as to continue orever. Overseers Poor, &c. vs. Sears, 22 Pick. (Mass.) 125. vide Body politic. 23 Wend. 129 ; 6 Kan. 253 ; 1 Blatehf. 436 ; 1 Ark. 543 ; 4 Ark. 351 ; 40 Geo. 637 ; 12 Mass. 554 ; 8 Fed. Kep. 544 ; 18 HI. 58 ; Y6 Dl. 573 ; 1 Houst. (Del.) 166 ; 10 Coke 32 ; 23 "Wend. 173 ; 4 Wheat. 667 ; 7 Hill (N. Y.) 512 ; 15 How. Pr. B. 175 ; 22 Wend. 170 ; 7 Hill (N. Y.) 512 ; 1 N. H. 115. CORPORATION ELEEMOSYNARY vide Eleemosynary, &c. Corporation express. An express corporation is where an individual or body is expressly constituted and declared to be a body politic or corporate, by a given name, and for a special object. Warner vs. Beers, 23 Wend. (N. Y.J 176. Corporation implied. An implied corporation is where there is a grant of such corporate powers as necessarily imply either 162 ADJUDGED WORDS AND PHRASES. CORPORATION CORPORATOR the existence of, or the intention to create, a corpo- ration. Warner vs. Beers, 23 Wend. (N. Y.J 176. Corporation open. An open corporation is where all the citizens or cor- porators have a vote in the election of the offices of the corporation. McKim vs. Odom, 3 Bland. Ch. (Md.) 416 n. Corporation public and private (distinguished.) The former are created to aid in the government of the people, the latter to promote trade, manufactures, and a variety of other interests. Marshall Co. vs. Cook, 38 III. 49. vide Public corporations. Corporation sole consists of one person only, and his successors, in some particular station, who is incorporated by law in order to give him some legal capacities, particu- larly that of perpetuity. Over, of the Poor, &c, vs. Sears, 22 Pick. (Mass.) 125. A corporation sole consists of a single person who is made a body corporate and politic in order to give him some legal capacities and advantages, especially that of perpetuity, which, as a natural person, he cannot have. Codd vs. Rathbone, 19 K Y. 39. (Quoting 2 Kertfs Com. 273.) A sole corporation, as its name implies, consists only of one person, to whom and his successors belongs that legal perpetuity, the enjoyment of which is de- nied to all natural persons. Thomas vs. Dakin, 22 Wend. (N. Y.J 101. (Quoting A. & A. on Conp. 18.) 7 Abb. Pr. 138 ; 8 Humph. 180. Corporator. The word corporator is often properly, and perhaps usually, used to mean " a member of a corporation," and in that sense stockholders are " corporators." The word corporators is, however, often used, and not improperly, in a more limited sense, meaning only those persons who are the original organizers or the promoters of a new corporation. QvRiver vs. MoeUe, 100 III. 164. ADJUDGED WORDS A1VD PHRASES. 153 COEPOEEAL COSTS COEPOEEAL HEREDITAMENT. Such hereditaments as are of a material and tangible nature, such as may be perceived by the senses, con- sisting wholly of substantial and permanent objects, and may be comprehended under the general denomi- nation of lands only. Caufield vs. Ford, 28 Barb. (N. Y.J 340. COEPUS DELICTI is always made up of two elements. * * In felonious homicide they consist, first, of the fact of death ; and, secondly, of other facts or circumstances show- ing the criminal agency of another. United States vs. Williams, 1 Clifford ( U. S. C. C.J 25. COEEECT AND SATISEACTOBY (account) means that the items are properly set out and the sums charged in respect to those items satisfactory. Howe vs. Hopwood, L. B. 4 Q. B. 3. COEEOBOEATTNG CIRCUMSTANCES, used in reference to a confession, are such as serve to strengthen it, to render it more probable, such in short as may serve to impress a jury with a belief of its truth. State vs. Guild, 5 Halst. (N. J.) 187. Cost (of an article for exportation) is the price given, and every charge which attended the purchase and the exportation, paid or supposed to be paid, at the place whence the article is ex- ported. Goodwin vs. United States, 2 Wash. (U. S. C. C.J 499. 2 Mason (U. S. C. C.) 398. Costs are expenses which are incurred either in the prose- cution or defence of an action, or any process at law or in equity, consisting of the fees of attorneys, solicitors or other officers of court, and such dis- bursements as are allowed by law. Janes 's Appeal, 87 Penn. St. 431. Costs are the expenses of a suit or action which may be recovered by law from the losing party. Tlie State vs. Dyches, 28 Texas 542. (Quoting Bouvier L. Diet.) The word costs is a word of known legal significa- tion. It signifies, when used in relation to the ex- 154 ADJUDGED WORDS AND PHRASES. COSTS COTTAGE penses of legal proceedings, the sums prescribed by law as charges for the services enumerated in the fee bill. Apperson vs. Mutual Life, &c, 9 Vroom (N. J.) 390. vide Damages. 10 Neb. 308 ; 2 Harr. (N. J.) 188 ; 2 Vroom 140 ; 13 How. (U. S.) 372. Costs and fees (distinguished.) Costs are an allowance to a party, for expenses in- curred in conducting his suit ; fees are a compensation to an officer, for services rendered in the progress of the cause. Musser, &c. vs. Oood'el al., 11 S. & B. (Pa.) 248. Costs op suit does not mean all the expenses incurred ; but it means the expenses pending the suit, as allowed or taxed by the court. Norwich vs. Hyde, 7 Conn. 534. 10 Co. 117. Costs op the teem includes only the travel and attendance of the party, the clerk's fees, and the witnesses' fees. Thurston et al. vs. Roger Williams M. Co., 1 B. I. 288. Costs to abide the event. The phrase "costs to abide the event," * * means if the event is the same to the party who had the verdict at the former trial the party gets his costs, and if the event is not the same the costs of the first trial are thrown away. Jones vs. Williams, L. R. 8 Q. B. 283. The event which the costs follow is the conclusion of the whole matter or proceeding which commenced with the writ of summons and ended with the final judgment, and that the party who succeeds in his ac- tion is, in the absence of any special direction or orders, entitled to the whoie costs of the entire action. Field vs. Great Northern By., 3 Ex. Div. 262. 2 Ex. Div. 287, 354. Cottage, cotagium, is a little house without land to it. Hubbard vs. Hubbard, 15 Ad. & El. (N. 8.) 244. ADJUDGED WORDS AND PHRASES. 155 COTTAGE COUNTER Any little house that hath not four acres of land be- longing to it. Young vs. Sotheron, 2 B. & Ad. 628, n, b. Count i. e. narratio, cometh from the French word conte, which in Latyne- is narratio, and is vulgarly called a declaration. Co. Litt. 11, a. A count is sometimes considered as synonymous with declaration, and this was its original signification in the law — French ; but it is now most generally con- sidered as a part of a declaration, wherein the plain- tiff sets forth a distinct causa of action. Cheetham vs. Tillotson, 5 John. (N. Y.J 435. Counter claim is substantially a cross action by the defendant against the piaintiff, growing out of, or connected with, the subject matter of the action. Stone vs. Slone, 2 Met. (Ky.) 340. A counter claim is a cause of action in favor of the defendant upon which he might have sued the plain- tiff and obtained affirmative relief in a separate action. Belleau vs. Thompson, 33 Gal. 497. Counter claim imports a claim opposed to, or which qualifies, or at least in some degree affects, the plain- tiff's cause of action. Dietrich vs. Koch, 35 Wis. 62S. It must consist in a set off or claim by way of re- coupment, or be in some way connected with the subject of the action stated in the complaint. Maltoon vs. Baker, 24 How. Pr. (N. Y.J 331. When the defendant has, against the plaintiff, a cause of action upon which he might have maintained a suit such cause of action is a counter claim. Daudson vs. Remington, 12 How. Pr. B. (N. Y.J 311. It embraces all sorts of claims which a defendant may have against a plaintiff, in the nature of a cross action or demand, or for which a cross or separate action would lie. Wolf. vs. E. H. 13 How. Pr. B. (N. Y.J 85. A counter-claim is a cross action, and it must contain all the elements of a cause of action, and must be 156 ADJUDGED WORDS USD PHRASES. COTJNTEB, COUNTBY governed and judged by the same rules which apply to the complaint. And to entitle the defendant to set it up, one of the first necessities is that a right of ac- tion must have accrued ; in other words, the claim must be due. Union Bank vs. Heyward, 15 S. 0. 303. A counter-claim is sometimes a mere set-off; some- times it is in the nature of a cross action ; sometimes it is in respect of a wholly independent transaction. Winterfield vs. Bradmun, 3 Q. B. Div. 326. A counter-claim is where the demand is against the plaintiff, and for which a judgment might be recov- ered against him. Tyler vs. Willis, 33 Barb. (N. Y.J 333. 5 Q. B. Div. 577 ; 17 Ch. D. 182. Counter-claim and set-off (distinguished) vide Set-off, dec. Counterfeit. A counterfeit is a spurious imitation intended to re- semble something which is not. The Queen vs. Hermann, 4 Q. B. Div. %87, Counterfeit-bill is one printed from a false plate, and not a bill printed legitimately or illegitimately, from a genuine plate. Kirby vs. State, 1 Ohio St. 187. Counterfeiter is one who unlawfully makes base coin in imitation of the true metal, or forges false currency, or any in- strument of writing, bearing a likeness and simili- tude to that which is lawful and genuine, with an in- tention of deceiving and imposing upon mankind. Thirman vs. Matthews, 1 Stewart (Ala.) 386. Countlng- upon a statute, consists in making express reference to it — as by the words, against the form of the statute (or by force of the statute) in such case made and provided. Hart vs. Baltimore & Ohio R. R. Co., 6 W. Va. 348. Country in its primary meaning, signifies place, and, in a larger sense, the territory or dominions occupied by a com- munity, or even waste and unpeopled sections or ADJUDGED WORDS AND PHRASES. 157 COUNTY COUPONS regions of the earth ; but its metaphorical meaning is no less definite and well understood, and in com- mon parlance, in historical and geographical writing3, in diplomacy, legislation, treaties, and international codes, not to refer to sacred writ, the word country is employed to denote the population, the nation, the state, the government, having possession and domin- ion over the country. U. 8. vs. Ship Becorder, I Blatohf. (U. S. C. C.)225. County. A county is a body politic, having a corporate capa- city only for particular, specified ends and purposes, and is termed by legal writers a quasi corporation, that is, having corporate attributes, sub modo. Williams vs. Lash. 8 Minn. 501. The county is a political subdivision of the state acting as a corporation with certain specified powers, and acting through its officers in a certain prescribed way pointed out by law. Commissioners, &c, vs. Garter, 2 Kansas 128. U Fla. 321. County officer An officer of the county is one by whom the county performs its usual political functions ; its functions of government. Sheboygan Go. vs. Parker, 3 Wallace (TJ. S.) 96. "County officers," within the meaning of the consti- tution, would comprehend all those who are ap- pointed, or elected, lor a county, and must reside and perform the duties of their offices within their coun- ties, such as sheriffs, coroners, county clerks, &c. In the matter of Whiting, 2 Barb. (N. Y.) 517. Coupons are written contracts for the payment of a definite sum of money on a given day, and, being drawn and executed in a given mode, for the very purpose that they may be separated from the bonds, it is held that they are negotiable, and that a suit may be main- tained on them without the necessity of producing the bonds to which they were attached. Gromwell vs. County of Sac., 4 Otto ( TJ. S.) 362. Coupons, from the French, is a term employed in England and elsewhere to denote the warrants for 158 ADJUDGED WOKDS AND PHRASES. COTJESE COTJET the payment of the periodical dividends on the pub- lic stocks, a number of which being appended to the bonds are severally cut off for presentation as the dividends fall due. Myers vs. Y. & C. Railroad, 43 Maine 240. Couese (of an action) signifies progressive action in a suit or proceeding not yet determined. Williams vs. Ely, 14 Wis., 238. Couese of a eivee is a line parallel with its banks. Att'y Gen. vs. H. R. R. R. Co., 1 StocM. Cli. (N. J.) 550. COUET is an incorporeal, political being, which requires for its existence, the presence of the judges, or a com- petent number of them, and a clerk or prothonotary, at the time during which and at the place where it is by law authorized to be held, and the performance of some public act indicative of a design to perform the functions of a court. Lawyers' Tax Cases, 8 Heislc. (Tenn.) 650. (Quoting Bouvier L. Diet.) Court is a tribunal for the administration of justice. And in every court there must be at least three con- stituent parts — the actor or plaintiff, who complains of the injury done ; the reus, or defendant, who is called upon to make satisfaction for it, and the judex, or judicial power, which is to examine the truth of the fact, to determine the law arising upon that fact, and if any injury appears to have been done, to as- certain, and by its officers, to apply the remedy. Hall vs. Maries, 34 III. 360. A tribunal established for the public administration of justice, and composed of one or more judges, who sit for that purpose at fixed times and places at- tended by proper officers. Mason vs. Woerner, 18 Mo. 570. A place where justice is judicially administered. Hobart vs. Hobart, 45 Iowa 503. (Quoting 3 Bl. Com'. 24.) A body in the government to which the public ad- ministration of justice is delegated. Henderson vs. Beaton, 52 Team 42. (Quoting Bouvier' s L. Diet.) ADJUDGED WORDS AM) PHRASES. 159 COURT COVENANT A court signifies a member of the department of the judiciary, which is one of the co-ordinate branches of the government. Bothschild vs. United States, 6 Court of Claims B. 212. 29 Ark. 134 ; 13 Vroom 379. COURT-MARTIAL is a lawful tribunal, existing by the same authority that any other exists by, and the law, military, is a branch of law as valid as any other, and it differs from the general law of the land in authority only in this, that it applies to officers and soldiers of the army, but not to other members of the body politic, and that it is limited to breaches of military duty. In re Bogart, 2 Sawyer (U. S. C. C.J 410. A court-martial is one of the ordinary judicial insti- tutions of the country, employed in time of peace as well as in time of war to administer justice accord- ing to the articles of war upon persons actually or constructively in the military or naval service. Carver vs. United States, 16 Court of Claims 382. COUET OP RECORD is that where the acts and judicial proceedings are enrolled for a perpetual memorial and testimony, which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be called in question. Bellas vs. M'Carty, 10 Watts (Pa.) 24. 34 Gal. 422 ; 23 "Wend. 377. Court-yard vide Curtilage. Covenant is the agreement or consent of two or more by deed, in writing, sealed and delivered, whereby either or one of the parties doth promise to the other, that something is done already, or shall be done after- wards. Com. vs. Robinson, 1 Watts (Pa.) 160. A covenant is an agreement duly made between par- ties to do or not to do a particular act. Johnson vs. Curley, 52 Texas 226. 4 Wharf. 71 ; 12 East 182. Covenant against incumbrances is one which has for its object security against those 160 ADJUDGED WORDS AM) PHRASES. >-. COVENANT COVENANT rights to, or interests in, the land granted, which may subsist in third persons to the diminution in the value of the estate, though consistent with the pass- ing of the fee of the estate. Scott vs. Twiss, 4 Nebraska 137. Covenant eor quiet enjoyment is an assurance against the consequences of a defec- tive title, and of any disturbances thereupon. Howell vs. Richards, 11 Hast. 642. Covenant in law. A covenant in law, properly speaking, is an agree- ment which the law infers or implies from the use of certain words having a known legal operation in the creation of an estate ; so that, after they have had their primary operation in creating the estate, the law gives them a secondary force, by implying an agreement on the part of the grantor to protect and preserve the estate so by those words already created. Williams vs. Burrell, 1 Man. G. & Scott 429. Covenant of seizin is an assurance to the purchaser, that the grantor has the very estate in quantity and quality, which he pur- ports to convey. Howell vs. Richards, 11 East. 642. 5 Iowa 294 ; & CoMw. 27. Covenant oe seizin and quiet enjoyment (distinguished.) The covenant of seizin if broken at all, must be so at the very instant it is made ; whereas in the latter covenant, the breach depends upon the subsequent disturbance and eviction, which must be affirmatively alleged by the party complaining of the breach. MecMem vs. Blake, 16 Wis. 104. Covenant eeal has for its object, something annexed to, or inherent in, or connected with, land or other real property; and runs with the land, so that the grantee of the land is invested with it, and may sue upon it, for any breach happening upon it in his time. Such covenants have the distinguishing characteristic of containing sti- pulations against future acts, and are alone capable of violation, subsequent to the delivery of the deed con- taining them. Davis vs. Lyman, 6 Conn. 255. ADJUDGED WORDS AND PHEASES. 161 covin creditor Covin is a secret agreement determined in the hearts of two or more men to the prejudice of another. Wimbish vs. Tailhois, Plowden 54. A contrivance between two to defraud or cheat a third. Mix vs. Muzzy, 28 Conn. 191. 3 Ex. Div. 142. Create (a charter.) To create a charter is to make one which never ex- isted before. Moers vs. City of Beading, 21 Penn. St. 201. Cbedible witness -t; is one who at the time of attestation would be en- titled to be heard and examined as a witness, in the court of justice, on the question of such execution, i Haven vs. Milliard, 23 Pick. (Mass.) 18. The term credible as applied to a witness has a legal and well defined meaning : it means deserving of confidence. Noland vs. McOracken 1 Dev. & Bat. (N. 0.) 596. Cbedible witness (in sta,t. of wills.) It is used in the sense of competent; and those witnesses are credible, whom the law will trust to testify to a jury, who may afterwards ascertain the degree of credit they have. Amory vs. FeUowes, 5 Mass. 229. 9 Pick. 360 ; 28 Md. 140 ; 1 Burr. 417 ; 1 H. & MoH. (Md.) 531 ; 38 Md. 424 ; 47 Me. 476. Credit is the capacity of being trusted. Dry Bock Bank vs. Am. L. I. & T. Co., 3N.Y. 356. Creditor. In a strict literal sense it is he who voluntarily trusts or gives credit to another, for a sum of money or other property, upon bond, bill, note, book, or simple con- tract. In a more liberal sense he is a creditor who has a legal demand upon another, for money or other property which has got into the hands of another, without his consent, by mistake or accident, which he is entitled to have, or to a compensation in dam- ages for, upon the ground of an implied promise. 162 ADJUDGED WORDS AND PHRASES. CREDITOR CRIMEN In the more general and extensive sense of the term, he is a creditor, who has a right by law to demand and recover of another a sum of money on any ac- count whatever. Stanly vs. Ogden, 2 Boot (Conn.) 261. The term creditor does not mean singly a person to whom a debt is due — that is but its usual meaning; but it further denotes a person to whom any obliga- tion is due — and this is its unusual meaning. A creditor, according to the definition of Bouvier, "is he who has a right to require the fulfilment of an obligation or contract." N. J. Ins. Co. vs. Meeker, 8 Vroom (N. J.) 300. Crime is an act committed or omitted in violation of a pub- lic law either forbidding or commanding it. State vs. Peterson, 41 Vermont 511. It is nomen generalissamum, and has always been con- sidered as embracing every species of indictable of- ence. In the matter of VoorJiees, 3 Vroom (N. J.) 147. A crime is an offence against the sovereignty, and can only be taken notice of and punished by the sovereignty offended ; others have no concern in it, and must treat it as a matter of indifference. People vs. Williams, 24 Mich. 163. An act committed in violation of a public law either forbidding or commanding it. By this is meant, of course, those wrongs of which the law takes cogniz- ance as injurious to the public, and punishes 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. In re Ferdinanl Bergin, 31 Wis. 386. 2 Sneed 477 : 2 MoMuL (S. C.) 390 ; 10 Exch. 96 ; 7 Conn. 185 ; 9 Tex. 340 ; 26 Vt. 208. Ceimen FALSI is any offence which may injuriously affect the ad- ministration of justice, by the introduction of false- hood and fraud. Little vs. GHhson, 39 N. Eamp. 510. The technical signification of the term "crimen falsi" is understood to he forgery of any kind — perjury, deal- ADJUDGED WORDS AND PHRASES. 163 CRIMEN CROSS ing with false weights and measures, altering the cur- ' rent coin, making false keys, and the like. Johnson vs. Riley, 13 Georgia 131. Crimen falsi not only involves the charge of false- hood, but also is one, which may injuriously affect the administration of justice, by the introduction of falsehood and fraud. State vs. Randolph, 24 Conn. 365. 20 Barb. 190. Criminal ACTION vide Criminal prosecution. Criminal case. A criminal case, is a public prosecution for a crime or misdemeanor. Shvltz, Lessee, vs. Moore, Wright (Ohio) 281. Criminal offence in its most comprehensive sense, includes both felon- ies and misdemeanors. Slaughter vs. People, 2 Doug. (Mich.) 337. Criminal prosecution is a prosecution in a court of justice, in the name of the government, against one or more individuals ac- cused of crime. Harger vs. Thomas, 44 Penn. St. 130. Criminal prosecutions mean, any prosecution carried on in the name of the commonwealth, for any offence or crime against society. Ely vs. Thompson, 3 A. K. Marsh. (Ky.) 74. 14 Abb. Pr. K. N. S. 353. Crop-time. The phrase evidently means, that portion of the year which is occupied in making and gathering the crop. Martin vs. Chapman, 6 Porter(Ala.) 351. Cropper is one hired to work land and to be compensated by a share of the produce. Steele vs. Frick, 56 Penn. St. 175. He is a laborer receiving pay in a share of the crop. Harrison vs. Riclcs, 71 N. C. 21. 2 Eawle 12. Cross-bill (in chancery) is a bill brought by a defendant against a plaintiff, or 164 ADJUDGED WORDS AND PHBASES. CROSS CULPABLE other parties in a former bill depending, touching the matter in question in that bill. Kidder vs. Barr, 35 N. Hamp. 251. It is a mere auxiliary suit, and a dependency of the original. Cross vs. De VaUe, 1 Wallace (U. 8.) 14. A cross-bill is nothing more than addition to the answer. Canant vs. Mappin, 20 Georgia 731. Cross-bill implies a bill 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. Kemp vs. Mitchel, 38 Ind. 256. A cross-bill is a species of pleading, used for the pur- pose of obtaining a discovery necessary to the de- fence, or to obtain relief founded on the collateral claims of the party defendant to the original suit. Tison et 'al. vs. Tison Admr., 14 Georgia 111. 17 How. (U. S.) 145 ; 11 Otto 187 ; 48 Miss. 368 ; 5 Otto 225 ; 1 Coop. Ch. (Term.) 406 ; 55 Ala. 622 ; 29 N. H. 393 ; 5 Baxt. 145. Cbuelty (in divorce) means actual personal violence or the reasonal ap- prehension of it, or such a course of treatment a3 endangers life or health and renders cohabitation unsafe. Gordon vs. Gordon, 48 Venn. St. 23S. ■vide Extreme cruelty. 66 Perm. St. 496. Ceuise is nothing but a voyage for a given purpose, and may, therefore, be properly defined to be a cruising voyage, or voyage to make captures jure belli. The Brutus, 2 Gallison ( U. S. C. G.) 539. CUCKING STOOL is an engine, invented for the punishment of scolding and unquiet women. James vs. Com., 12 S. & R. (Pa.) 230. Culpable negligence is the omission to do something, which a reasonable and prudent man would do, or the doing of some- thing, which such a man would not do under the cir- cumstances surrounding each particular case, or it is ADJUDGED WORDS AND PHRASES. 165 CULTIVATION CUMULATIVE, the want of such care, as men of ordinary prudence would use under similar circumstances. Woodman, vs. Nottinglvam, 49 N. Hamp. 392. 2 Neb. 332. Cultivation, state op vide State of cultivation. Cumulative evidence means additional evidence of the same general char- acter, to the same fact or point which was the sub- ject of proof before. * * But that evidence which brings to light some new and independent truth of a l different character, although it tend to prove the same proposition or ground of claim before insisted on, is not cumulative within the true meaning of the rule on this subject. Waller vs. Graves, 20 Conn. 310, 311. Cumulative evidence is that which speaks to facts, in relation to which there was evidence on the trial. M' Gavock vs. Broion, 4 Humph. ( Term.) 252. Cumulative evidence means additional evidence, to support the same point, and which is of the same character with evidence already produced. People vs. Superior Court, 10 Wend. (N. Y.) 294. Cumulative evidence is such as tends to support the same fact which was before attempted to be proved. Chat field vs Lathrop, 6 Pick. (If ass. J 417. Cumulative evidence is additional evidence of the same kind. Fleming vs. HoUenback, 7 Barb. (N. Y.) 278. Cumulative evidence is additional evidence of the same kind to the same point. Glidden vs. Dunlap, 28 Maine 383. Evidence newly discovered is said to be cumulative, in its relation to the evidence on the trial, when it is of the same kind and character. If it is dissimilar in kind, it is not cumulative, in a legal sense, though it tends to prove the same proposition. Wynne vs. Newman's Admr., 1 Matthews (Va.) 817. 24 Pick. 248 ; 2 Ark, 353 ; 27 Geo. 464 ; 4 Vroom 156 ; 42 Conn. 519 ; 7 Barb. 278 ; 43 Barb. 212. Cumulative offence. An offence which can be committed only by a repiti- tion of acts of the same kind: Wells vs. Com., 12 Gray (Mass.) 329. 166 ADJUDGED WOKDS AND PHRASES. curator current Curator. We have adopted the term " curator " from the civil law, and it is applied to the guardian of the estate of the ward as distinguished from the guardian of his person. Duncan vs. Crook, 49 Mo. 117. Cured by verdict means, that the court will, after verdict, presume or intend that the particular thing required to sustain it, was proved at the trial. Merrick vs. Trustees of Bank, 8 Gill (Md.) 75. 63 Ind. 283. Currency. Bank notes, or other paper money, issued by au- thority, and which are continually passing, as and for coin. Chicago F. & M. Ins. Co. vs. Keiron, 27 III. 506. Currency is bank bills or other paper money, which passes as a circulating medium in the business com- munity, as and for the constitutional coin of the country. Galena Ins. Co. Kupfer, 28 IU. 335. The money which passes, at a fixed value, from hand to hand. Butler vs. Paine, 8 Minn. 329. (Quoting Bouvier L. Diet. ) 2 DuvaJl (Ky.) 33 ; 32 HI. 77 ; 35 IU. 163 ; 1 Ham. (Ohio) 119 ; 61 N. C. 28 ; 14 Mich. 379 ; 27 Mich. 197. Current bank notes. The words " current bank notes " mean that which circulates currently as money, and which, in the ab- sence of proof to the contrary, is presumed to be of equal value to money. Moore vs. GoocJi, 6 Heisk. (Tenn.) 105. vide Currency. 5 Humph. 485 ; 1 Heisk. 388. Current funds means, current money ; par funds, or money circulat- ing without any discount. Galena Ins. Co. vs. Kupfer, 28 III. 335. Current funds mean gold or silver, or something equivalent to it, and convertible at pleasure into the precious metals. Lacy vs. Holbrook, 4 Ala. 90. 34 IU. 292 ; 47 Iowa 672. ADJUDGED WORDS AND PHRASES. 167 CURRENT CUSPIDOR CURRENT AONEY. Money is current, -which is received as money in the common business transactions, and is the common , medium in barter and trade. Stahoorth vs. Blum, 41 Ala. 321. : Current money means whatever is intended to, and does actually circulate as currency. Miller vs. MsKinney, 5 Lea (Term.) 96. Curtesy. The term curtesy is derived from courtesie, Latin curialitas ; to signify suavity or urbanity, to denote that the custom sprung from favor to the husband, rather than from any right. By thus becoming the vassal or tenant of his superior lord, he was per- mitted "by the curtesy of England" to attend his lord's court, or curtis, (as it was called,) and to do him homage, by reason of having become the hus- band of a wife who had died possessed of an estate in lands, after issue born. Billings vs. Baker, 28 Barb. (N. Y.) 345. vide Tenancy by the curtesy. Estate by the curtesy. Curtilage. The court-yard or piece of ground within the com- mon enclosure belonging to a dwelling house. It is annexed to, and enjoyed with the house for its more convenient occupation. It is parcel of the house, and passes by the grant of the house. Edwards vs. Derrickson, 4 Dutch. (N. J.) 72. The curtilage is the court-yard in the front or rear of a house, or at its side, or any piece of ground lying near inclosed and used with the house and necessary for the convenient occupation of the house. People vs. Murphy et al., 10 Hun (N. T.) 154. The word curtilage originally signified the land with the castle and out-houses, enclosed often with high stone walls, and where the old barons sometimes held their court in the open air, and which word we have corrupted into court-yard. Coddington vs. Dry Dock Co., 2 Vroom (N. J.) 485. 10 Gush. 481 ; 5 Dutch. 474. Cuspidor is derived from the Portuguese verb cuspo, to spit ; cuspidor, a spitter. Ingersoll vs. Turner, 7 Fed. Bep. 859. 17 Blatchf. 61. 168 ADJUDGED WORDS AND PHRASES. CUSTODY CUSTOM Custody (of property.) By the term custody of property as contradistin- guished from legal possession, I understand to be meant, that, charge to keep and care for the owner, subject to his order and direction without any inter- est or right therein adverse to him, which every ser- vant possesses with regard to the goods of his mas- ter confided to his mere care. The People vs. Burr, 41 How. Pr. B. (N. Y.) 296. Custody of the law. "When property is lawfully taken, by virtue of legal process, it is in the custody of the law, and not oth- erwise. Gilman vs. Williams, 7 Wis. 334. Custom is the law or rule which is not written, and which men have used for a long time, supporting them- selves by it in the things and reasons with respect to which they have exercised it. Strothervs. Lucas, 12 Peters (U. S.) 446. Custom is a law established by long usage. A uni- versal custom becomes common law. Wilcox vs. Wood, 9 Wend. (N. Y.) 349, Custom is unwritten law, established, by common con- sent and uniform practice, from time immemorial. Lindsay vs. Cusimano, 12 Fed. Rep. 506, A custom is the result of usage, and can only be pro- perly shown, by proof of the usage from which it may- be claimed to be derived. Gallup vs. Lederer, 1 Hun (N. Y) 287. Oonsuetudo is one of the main triangles of the laws of England ; those laws being divided into common law, statute law and particular customs, for if it be a gen- eral custom of the realm, it is a part of the common law. Adams vs. Pittsburgh Ins. Co., 95 Penn. St. 355. (Quoting Co. Litt. 113-15.) Custom and usage (distinguished.) Usage is no more than a fact, custom is a law ; there may be usage without custom, but there can be no custom without usage to accompany or precede it ; usage consists in a repetition of acts, and custom arises out of this repetition. The usage leading to ADJUDGED WORDS AND PHRASES. 169 CY DAM a custom may be proved by public writings, by the testimony of distinguished and ancient persons of the country, or by two concurring judgments upon the matter to which it relates. Cutter vs. Waddingham, 22 Mo. 284. Custom op trade vide Usage of trade. Customary despatch means " despatch " in accordance with, or consist- ently with, all known and well established usages or customs of the port. Smith vs. Yellow Pine lumber, 2 Fed. Bep. 399. 12 Fed. Rep. 507. CWT. designates not the twentieth of a ton, but one hun- dred and twelve pounds. Helm vs. Bryant, 11 B. Mon. (Ky.) 65. Cy pkes (means to) carry into effect the intention of the party as far as you can, to wit : as far as is consistent with the rules of law. Coster vs. Lorillard, 14 Wend. (N. Y.J 308. The doctrine of cy pres, is a doctrine of prerogative ; and it seems to be this, that if it can be seen that a charity was intended, by a testator, but the object specified cannot be accomplished, the funds may be applied to other charitable purposes, or that the chan- cellor may seize them as a sort of waif, and apply them as his, or the king's good conscience, shall direct. White vs. Fish, 22 Conn. 54. The right of making an approximate or discretionary will for a testator, where he has only declared some indefinite, illegal, or ineffectual charitable purpose. Beekman vs. Bonsor, 23 N. Y. 308. Where a literal compliance with the condition be- comes impossible from unavoidable circumstances and without any default of the party, it is sufficient that it is complied with as nearly as it practically can be, or as it is technically called ry-pres. In re Browns Will, 18 Ch. Div. 65. (Quoting Story's Eq. Juris. § 291.) Dam. The word dam is used in two different senses. It 170 ADJUDGED WORDS ASD PHRASES. DAMAGE DAMAGES properly means the work or structure, raised to ob- struct the flow of the water in a river ; but by a well settled usage, it is often applied to designate the pond of water created by this obstruction. ColweU vs. May's L. W. P. Co., 4 C. E. G. Eq. (N.J.J 248. Damage — in French, dommage ; Latin, damnum, from demo, to take away — signifies the thing taken away, — the lost thing, which a party is entitled to have restored to him so that he may be made whole, again. Fay vs. Parker, 53 N. Hamp. 342. Damages. The word damages is considered in the law, in two several significations, the one properly and generally, the other relatively ; properly, when damages are founded upon the statutes where costs are included within the word damages, and taken as damages; relatively, when the injury declared upon existed be- fore the writ brought, and is the foundation of the suit ; in such case damages do not mean costs. Hailford vs. Palmer, 16 John. (N. Y.J 143. The legal meaning of damages is, a recompense given for a wrong. Thompson vs. Morris Canal, &c. Co., 2 Harr. (N.J.) 482. (Quoting Co. IM. 257 o.) A compensation given by a jury for an injury or a wrong done the party before the action brought. The legal measure of which is the amount of the loss necessarily or naturally resulting from the act. The Mayor of N. Y. vs. Lord, 17 Wend. (N. Y.J 293. Damna in the common law hath a special significa- tion for the recompense that is given by the jury to the plaintiff for the wrong the defendant hath done unto him. Rosenfield vs. Express Co., 1 Wood (U. 8. C. C.) 13. (Co. Zitt.ZSJa.) The word " damages " in legal parlance, means the indemnity recoverable by a person who has sustained an injury either in his person, property, or relative rights, through the act or default of another. Collins vs. E. T. Va. & Ga. R. R. Co., 9 Heislc. ( Tern. J 850. 26 Ga. 271. Damages, costs and expenses, when given as the penalty against a party for the ADJUDGED WORDS AND PHRASES. 171 DANGEROUS DATE non-performance of a contract, mean the necessary, natural and proximate damages resulting from such non-performance, and not some remote, accidental or special injury to the party to whom the right of action accrues. Low vs. Archer, 12 N. T. 282. Dangerous weapon is one likely to produce death or great bodily harm, State vs. Dineen, 10 Minn. 411. 2 Fed. Rep. 61 Dangers of lake navigation. The terms " dangers of lake navigation " include all the ordinary perils which attend navigation on the lakes, and among others, that which arises from the shallowness of the waters at the entrance of har- bors formed from them. Transportation Co. vs. Downer, 11 Wallace (U. S.J 133. Dangers of the river mean only the natural accidents incident to river navigation, and do not embrace such as may be avoided by the exercise of that skill, judgment or foresight, which are demanded from persons in that particular occupation. Hill vs. Sturgeon, 35 Mo. 213. Dangers of the sea. /u^ By "the dangers of the seas " is meant those acci-W' dents peculiar to navigation, that are of an extraor- dinary nature, or arise from irresistible force, or overwhelming power, which cannot be guarded against by the ordinary exertions of human skill and prudence. Tuckerman vs. Trans. Go., 3 Vroom (N. J.) 323. By dangers of the sea are meant all unavoidable ac- cidents from which common carriers by the general law ate not excused unless they arise from the act of God. , Dibble et al. vs. Morgan, 1 Wood(U. S. C. C.J 411. vide Perils of the sea. 4 Vroom 565 ; 1 Murph. (N. C. ) 417. Date. The primary signification of the word date, is not time in the abstract, nor time taken absolutely, but, as its derivation plainly indicates, time given or spe- b> 172 ADJUDGED WORDS AND PHRASES. DAY DEAD cified, time in some way ascertained and fixed ; this is the sense in which the word is commonly used. Bement et al. vs. Trenton L. & M. Co., 3 Vr. (N. J.) 515. Day means a period of time consisting of twenty-four hours, and including the solar day and the night. Helphenstine vs. Vincennes Nat. Bank, 65 md. 589. Generally, the word " day " includes the time elaps- ing from one midnight to the succeeding one. Haines vs. The State, 7 Texas App. 33. A division of time. It is natural, and then it consists of twenty-four hours, or the space of time which elapses while the earth makes a complete revolution on its axis; an artificial, which contains the time from the rising until the setting of the sun, and a short time before rising and after setting. People vs. Hatch, 33 III. 137. At the commgn law the day is divided into the natural and the artificial day ; the natural, consisting of twen- ty-four hours, and the artificial of the space interven- ing between the rising and setting of the sun. * * The Jews, Chaldeans and Babylonians begin the day at the rising of the sun ; the Athenians at the fall ; the Umbri of Italy at midday; the Egyptians and Romans at midnight. Pulling vs. People, 8 Barb. (N. T.) 385, (Quoting Go. IM. 135 a, b.) Daytime means that portion of the twenty-four, hours in which a man's person and countenance are distinguishable. Trull vs. Wilson, 9 Mass. 154. Dead-head. The term "dead-head" is applied to persons other than the president, directors, officers, agents or em- ployees of a railroad company, who are permitted by the company to travel on the road without paying any fare therefor. Gardner vs. Hall, 61 N. 0. 22. Dead freight. The freight which would have been payable for that part of the vessel which has not been occupied by merchandise, but ought to have been. Gray vs. Carr, L. B. 6 Q. B. 528. It is not freight, but an unliquidated compensation ADJUDGED WORDS AND PHKASES. 178 DEADLY DEBT for the loss of freight, recoverable in the absence and place of freight. Phillips vs. Bodie, 15 East. 555. Deadly weapon is one likely to produce death or great bodily injury. Kouns vs. Tlie State, 3 Texas App. 15. Dealeb is one who makes successive sales as a business. Overall vs. Bezeau, 37 Mich. 507. Dealer is one who trades, buys or sells. Berks Co. vs. Bertolet, 13 Perm. St. 524. Not one who buys to keep, or makes to sell, but one who buys to sell again. Norris vs. Com., 27 Penn. St. 495. 65 Me. 284 ; 33 Penn. St. 381 ; 2 Welsh. H. & Gord. 357. Death by his own hand means suicide, not accidental or coerced, but pre- meditated by a sound mind and perpetrated by a free will ; and a voluntary act of the will necessarily implies liberty and self control. St. Louis Life Ins. Co. vs. Graves, 6 Bush. (Ky.) 271, vide Suicide. Death by opium means not the accidental or involuntary, but the ra- tional and voluntary use of opium. St. Louis Life Ins. Co. vs. Graves, 6 Bush (Ky.) 271 ■ Death by the hands op justice is a well known phrase, denoting an execution, either public or private, of a person convicted of crime, in any form allowed by law. Breasted vs. The Farmers' L. & T. Co., 8 N. Y. 303. vide Die by tlw hands of justice. Debauch. " To debauch " is a word of French origin, com- pounded of the preposition " de," from, and "bauche," an old Armorican word in use in Brittany, meaning shop, and signifying in its compound sense, to entice, or draw one away from his work, employment, or duty. Kcenig vs. Nott, 8 Abbott's Pr. B. (N. Y.J 389. Debt means a fixed and certain obligation to pay money or 174 ADJUDGED WORDS MB PHRASES. DEBT DEBT some other valuable thing or things, either in the present or in the future. Appeal of City of Erie, 91 Penn./St. 402. Debt is a sum of money due by certain and express agreement. McElfresh vs. Kirhendall, 36 Iowa 226 . The word " debt " is of large import, including not only debts of record or judgment, and debts by spe- cialty, but also obligations arising under simple con- tract, to a very wide extent, and in its popular sense includes all that is due to a man under any form of obligation or promise. N. J. Ins. Co. vs. Meeker, 8 Vroom (N. J.) 301. (Quoting Burr ill's L. Diet.) A debt in its most general sense is * * that which is due from one person to another, whether money, goods or services. Newell vs. The People, 7 N. Y 124. A debt signifies whatever any one owes. Rodman vs. Munson, 13 Barb. (N. Y.J 197. A contract whereby a certain sum of money is mu- tually acquired and lost — any contract, in short, whereby a determinate sum of money becomes due to a person, and is not paid, but remains in action merely, as a contract of debt. Hodman vs. Munson, 13 Barb. (N. Y.) 77. (Quoting 2 Bl. Com. 464.) 28 Conn. 108 ; 2 Hill 223 ; 24 N. Y. 290 ; 2 Wash. 385 ; 1 Nev. 589 ; 2 Sweeny 667 ; 2 Dutch. 393 ; 6 Lea 408. Debt and duty (distinguished.) A debt is a legal liability to pay a specific sum of money ; a duty is a legal obligation to perform some act. Allen vs. Dickson, 1 Minor (Ala.) 12Q. Debt by specialty is such whereby a sum of money becomes, or is acknowledged to be, due by deed or instrument under seal. Probate Court vs. Child, 51 Vermont 86. 15 Did. 282. (Quoting 2 Bl. Com. 465.) Debt created by fraud implies confidence and deception. It implies that it arose out of a contract, express or implied, and that ADJUDGED WORDS AND PHRASES. 175 DEBT DECEIT fraudulent practices were employed by the debtor, by which the creditor was defrauded. Howland vs. Carson, 28 Ohio St. 628. Debt due. A debt is properly said to be due, in the sense of owing, when it has been contracted, and the liability of the debtor fixed. Leggett vs. Bank of Sing Sing, 24 N. Y 290. Indeed, it may be affirmed that every debt, whether payable now, or at a future time, may be termed a debt due; this is implied by the word debt itself. Both are derived from the same Latin verb, fdebeo ;) the one directly from it ; the other through the French du. But in the commercial and popular ac- ceptation of the word " due," when employed parti- cipially, or adjectively after "debt," without adding some verb or participle denoting future time, it is equivalent with payable at the present time. Leggett vs. Bank of Sing Sing, 25 Barb. (N. Y) 322. Debts now due must be understood to mean, debts then payable not debts payable at a future day. Collins vs. Janey, 3 Leigh. ( Va.) 391. Debt of kecokd is a sum of money which appears to be due by the evidence of a Court of record. Kimball vs. Whitney, 15 Ind. 282. 2 Story 450 ; 11 Aik. 355. Debtor. A debtor is one who owes another anything, or one who is under obligations, arising from express agreement, implications of law, or from the principles of natural justice, to render and pay a sum of money to another. Stanly vs. Ogden, 2 Boot (Conn.) 262 Deceit. Every deceit comprehends a lie ; but a deceit is more than a lie on account of the view with which it is practised, and its being coupled with some dealing, and the injury which it is calculated to occasion, and does occasion, to another person. Paisley vs. Freeman, 3 T. B. 56. 176 ADJUDGED WORDS AND PHRASES. DECEIT DECLARE Deceit and ebaud (distinguished.) A false assertion, whether the falsehood was known or unknown to the asserter, made in some dealings and calculated to occasion, and occasioning injury to another, is a deceit, in law. When the falsehood of the asserter is known to the asserter, it is a fraud. Gibbs vs. Odell, 2 Coldw. (Term.) 133. Decide. Ex vi termini, to " decide " is to determine something which is undecided. It involves the exercise of both will and judgment. It requires a judicial act to be done, an adjudication to be made. Groom vs. Gurin, 43 Md. 581. " To decide " includes the power and right to delib- erte, to weigh the reasons for and against, to see, which preponderate, and to be governed by that pre- ponderance. Com. vs. Authes, 5 Gray (Mass.) 253. Decision and opinion of a couet (distinguished.) A decision of the Court is its judgment, the opinion is the reasons given for that judgment. The former is entered of record immediately upon its rendition, and can only be changed through a regular applica- tion to the court, upon a petition for a hearing, or a modification. The latter is the property of the judges, subject to their revision, correction, and modification, in any particular deemed advisable, until, with the approbation of the writer, it is tran- scribed in the records. Houston vs. Williams, 13 Cal. 27 Declaeation. An exposition of the plaintiff's original writ, wherein he expresses at large his cause of action or complaint, with the additional circumstances of time and place, when and where the injury was committed. Cheetham vs. Tillotson, 5 John. (N. Y.) 435. The declaration is a statement in legal form of the plaintiff's cause of action. Smith vs. Fowle, 12 Wend. (N. 7.) 10. Declake. To say "I declare that I will," do so and so, means exactly the same thing, and imposes precisely the ADJUDGED WORDS AND PHRASES. 177 DECLARE DEED same obligation as the words, " I promise that I will " do so and so. Bassett vs. Denn, 2 Harr. (N. J.) 433. Declare the law (duty of judge to) To " declare the law," means that he is to charge the law arising upon the evidence. Crabtree vs. State, 1 Lea (Tenn.) 270. Decree (in chancery) is the final sentence or order of the court, determin- ing the rights of the parties in the matters in litiga- tion, and dispensing justice between them, agreeable to equity and good conscience. Wing vs. Warner, 2 Doug. (Mich.) 290. Like a judgment at law, it is the sentence pronounced by the court upon the matter of right between the parties ; and this sentence is founded on the plead- ings and proofs in the cause. Rowley vs. Van Bentliuysen, 16 Wend. (N. Y.J 383. Dedication is an act by which the owner of the fee gives to the fiublic, for some proper object, an easement in his ands. Curtis vs. Keesler, 14 Barb. (N. Y.J 521. A dedication is a devotion to public uses of the land, or an easement in it, by any unequivocal act of the owner of the fee manifesting such clear intention. Mayor vs. Morris C. & B. Co., 1 Beas. Ch. (N. J.) 562. Dedication is the act of giving or devoting property to some public use. Bees vs. City of Chicago, 38 III. 335. Dedication is the act of giving or devoting property to some proper object, in such a way as to conclude the owner. Connehan vs. Ford, 9 Wis. 244. To constitute dedication, there should be a clear in- tention to devote the ground claimed to have been dedicated, to the use of the public. Bidinger et al. vs. Bishop et al:, 76 Ind. 254. 6 Hill (N. T.) 411 ; 22 Wend. 444 ; 19 Barb. 193 ; 23 Wis. 420 ; 12 Ga. 244 ; 22 Tex. 100. Deed. Lord Coke says : This word, deed, in the understand- 178 ADJUDGED WORDS USD PHRASES. DEED DEFAULT ing of the Common Law, is an instrument written on . parchment, or paper, whereunto ten things are ne- cessarily incident ; viz : 1. writing, 2. on parchment, or paper, 3. a person able to contract, 4. by a suffi- cient name, 5. a person able to be contracted with, 6. by a sufficient name, 7. a thing to be contracted for, 8. apt words required by law, 9. sealing, 10. delivery. Allston vs. Thompson, Cheves Eq. (8. C.) 282. A deed is nothing more than an instrument or agree- ment under seaL Master vs. Miller, 4 T. B. 345. A deed does not, ex vi termini, mean a deed with cove- nants of warranty, but only an instrument with apt terms conveying the property sold. Ketchum vs. Evert'son, 13 John. (N. Y.J 364. A deed is a writing sealed and delivered. Osborne vs. Tunis, 1 Butch. (N. J.) 660. A writing or instrument written on paper or parch- ment, sealed and delivered. Jeffrey vs. Underwood, 1 Ark. 112. Of old the definition of a deed was " an instrument consisting of three things, viz. : Writing, sealing and delivery, comprehending a bargain or contract be- tween party and party, man or woman. Best vs. Brown, 25 Hun (N. Y.J 224. (Quoting Co. IM. 171. A written instrument under seal, containing a con- tract or agreement which has been delivered by the party to be bound, and accepted by the obligee or covenantee. McMurty vs. Brown, 6 Nebraska 376. 25 Htm. 224 ; 1 Green Ch. 525 ; 5 Sawyer 603. Deed of release. In law a release or deed of release is a conveyance of a man's right in lands or tenements to another who has some estate in possession. Ely vs. Stannard, 44 Conn. 533. vide Belease. Defalcation is setting off another account or another contract. Honk vs. Foley, 2 Pen. & Watts (Pa.) 250. Default ■ in practice, omission, neglect or failure. When a ADJUDGED WORDS AND PHRASES. 179 Default defense defendant in an action at law omits to plead within the time allowed him for that purpose, or fails to appear on the trial, he is said to make default ; and the judgment entered in the former case is technic- ally called a judgment by default. Paige vs. Sutton et at, 29 Arte. 306. A default is an admission of the truth of the facts stated in the petition. Hardy vs. Miller, 11 Nebraska 398. " Default " simply means non-payment of a sum of money which is due. Williams vs. Stern, 5 Q. B. Div. 413. Defeasance. • A defeasance is an instrument which avoids or de- feats the force or operation of some other deed ; and that which in the same deed would be called a condition, if in another deed, is a defeasance ; but it must contain proper words to defeat or put an end to the deed, of which it is intended to be a defea- sance ; as that it shall be void, or of no force or effect. Lippincott vs. Tilton, 2 Green (N. J.) 364. Defeat or obstruct (Kentucky stat. of limitations, &c.) signify the performance of some act on the part of the sureties which will amount to prevention or hin- drance of a suit in opposition to the will and rights of the creditor, such as he cannot, with reasonable diligence, overcome. Walker vs. Say res, 5 Bush (Ky.) 581. Defendant vide Plaintiff. Defendants (in equity.) They only are defendants against whom process is prayed. F&wkes vs. Pratt, 1 P. Wms. 593. Defense in its legal sense, — signifies not a justification, pro- tection or guard, which is now its popular significa- tion, but merely an opposing or denial (from the French verb def endre,) of the truth or validity of the complaint. Houghton vs. Townsend, 8 How. Pr. B. (N. Y.J 442. Defense is the denial of the truth or validity of the 180 ADJUDGED WORDS AND PHRASES. DEFICIENCY DEFORCEMENT complaint, and does not merely signify a justifica- tion. It is a general assertion that the plaintiff has no ground of action, and which assertion is after- wards extended and maintained in the body of the plea. Wilson vs. Poole, 33 Ind. 449. 3 Met. (Ky.) 68 ; 24 Barb. 631. Deficiency (in mortgage debts.) This word deficiency * * has a technical mean- ing, and signifies that part of the debt or sum of money which the mortgage was made to secure, and which is not realized and collected from the subject mortgaged, and which is chargeable under the prac- tice of our courts in the form of a personal judgment against the debtor. Goldsmith vs. Brown, 35 Barb. (N. Y.J 492. Definite failuee of issue is when a precise time is fixed by the will for the failure of issue. Hall vs. Chaffee, 14 N. Hamp. 220. vide Indefinite failure, &c. 20 Perm. St. 513 ; 16 John. 399 ; 50 Ind. 546 ; 1 Har. &G. (Md.) 126 ; 19 N. H. 85. Definition. A definition is ex vi termini an exclusion of every- thing not expressed. Coitin vs. Cottin, 5 Martin (La.) 99. A definition is an enumeration of the particular acts included by or under the name. Marvin vs. State, 19 Ind. 184. vide Legal definitions. Deforce This word signifieth, says Lord Coke, to withold lands or tenements from the rightful owner. Phelps vs. Baldwin, 17 Conn. 212. Deforcement is any species of wrong whatsoever whereby he that has the right to the freehold is kept out of possession, and applies mainly to a case where a party has the right of property, but never had the actual possession under that right. Wildy vs. Bonney, 26 Miss. 39. By a deforcement is understood, a wrongful withold- ADJUDGED WORDS AND PHRASES. 181 DEFRAUD DELIBERATION ing of lands from the right owner, or in case of dower, a denial of the widow's right. Woodruff vs. Brown, 2 Harr. (N. J.) 269. Defraud (in stat. of frauds.) To defraud, is to withold from another that which is justly due to him, or to deprive him of a right, by deception or artifice. In their legal signification, the words hinder, delay and defraud, as used in the statute, are substantially synonymous. Burdick vs. Post, 12 Barb. (N. Y.J 186. Del credere agent like any other agent, is to sell according to the in- structions of his principal, and to make such con- tracts as he is authorized to make for his principal ; and he is distinguished from other agents simply in this, that he guarantees that those persons to whom he sells shall perform the contracts which he makes with them. Ex parte White, L. R. 6 Ch. App. Cases 403. vide Factor. Delegation is 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 acquitted and his obligation extinguished, and the creditor contents himself with the obligation of the second debtor. Adams vs. Power, 48 Miss. 454. Deliberate (in crime.) By the use of the word "deliberate," in describing a crime, the idea is conveyed 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 a decision there- on ; that he carefully considers all these, and that the act is not suddenly committed. State vs. Boyle, 28 Iowa 524. 71 Mo. 220. Deliberation is the act of considering, of weighing the reasons for and against a measure or act. Commonwealth vs. Perrier, 3 Phila. B. 232, Deliberation is a mental process which requires 182 ADJUDGED WOBDS AND PHRASES. DELINQUENCY DELIVEEY more or less time in its performance, according to the complication of the subject deliberated on, and the activity of the mind engaged in deliberating. Anthony vs. The State, Meigs (Tenn.) 270. Delinquency cannot mean, when applied to a merchant, anything less than that he has proved to be dishonest, and attempted to evade the payment of his debts. Boyce et al. vs. Ewart, 1 Bice (S. C.J 140. Delirium is that state of the mind in which it acts without being directed by the power of volition, which is wholly or partially suspended. wing's Case, 1 Bland Ch. (Md.) 386. Delivery (in stat. of frauds.) To constitute that, the possession must have been parted with by the owner, so as to deprive him of the right of lien. Bill vs. Bament, 9 M. & W. 41. Delivery (of a deed,) is, in fact, its tradition from the maker to the person to whom it is made, or to some person for his use, and if the person receiving it for another, is author- ized to do so, it is not only immediately the maker's deed, but it cannot be rejected by the grantee. Kirk vs. Turner, 1 Dev. Eq. (N. C.) 15. Delivery implies that the party who has sealed, has given up his control of the writing, to and for the use and benefit of the other party. State Bank vs. Evans, 3 Green (N. J.) 163. Delivery implies a parting with the possession and surrender of authority over the deed by the grantor at that time, either absolutely or conditionally ; ab- solutely if the effect of the deed is to be immediate and the title to pass or estate of the grantee to com- mence at once; but conditionally, if the operation of the deed is to be postponed or made dependent on the performance of some condition or the happen- ing of some subsequent event. Prutsman vs. Baker, 30 Wis. 646. It is that which gives effect to a deed, and transmits the title of the property to be conveyed. Shaw vs. Hayward, 7 Cush. (Mass.) 174. ADJUDGED WORDS AND PHRASES. 18JJ DELIVERY DELUSION The double meaning of the term delivery, signifying, as a popular word, mere tradition, and in legal phraseology meaning the final absolute transfer to j the grantee of a complete legal instrument sealed by j the grantor, covenantor, or obligor. 1 Black vs. Shreve, 2 Beasley Oh. (N. J.) 461. A delivery of a deed, to be valid, is such an act of the grantor touching its execution as deprives him of the power of controlling its operation, and confers on the grantee the right to enforce it, even against the will and pleasure of the grantor. Roosevelt vs. Garow, 6 Barb. (N. Y.) 195. Delivery includes a surrender and acceptance, and both are necessary to its completion. Best vs. Brown, 25 Hun (N. T.J 224. To constitute a delivery there must be intention to part with control over the deed as its owner. Berry vs. Anderson, 22 Ind. 39. Anything which clearly manifests the intention of the grantor and the person to whom it is delivered, that the deed shall presently become operative and effectual, that the grantor loses all control over it, and that by it the grantee is to become possessed of the estate, constitutes a sufficient delivery. Benneson et al. vs. Aiken, 102 III. 287. Deliveky to maeket. The words " delivery to market " mean, arrival at the place of destination. Farrington vs. Meek, 30 Mo. 584. Delusion is a diseased state of the mind in which persons be- lieve things to exist, which exist only, or to the de- gree they are conceived of only, in their own imagi- nations, with the persuasion so fixed and firm that neither evidence nor argument can convince them to the contrary. Robinson vs. Adams, 62 Maine 401. (Quoting Bouvier L. Diet ) A pertinacious adherence to some delusive idea in opposition to plain evidence of its falsity. State vs. Pike, 49 N. Hamp. 432. If a person persistently believes supposed facts, which have no real existence except in his perverted 184 ADJUDGED WORDS AM) PHRASES. DEMENTIA DEMURRAGE imagination, and against all evidence and probability, and conducts himself, however logically, upon the assumption of their existence, he is, so far as they are concerned, under a morbid delusion ; and de- lusion in that sense is insanity. In the matter of Forrnan's Will, 54 Barb, (N. Y.J 219. vide Insane delusion. 50 N. H. 395 ; 3 Humph. 283. Dementia is a state of enfeeblement of the mind or impairment of the mind. Dementia is usually the result of the other forms of insanity. It is an unsoundness of mind as much as mania, and when it is profound, it is more likely to effect the entire mind. Shaw's Will, 2 Bed/. Surr. B. (N. Y.J 132. Dementia is that form of insanity where the mental derangement is accompanied with a general derange- ment of the faculties. It is characterized by forget- fulness, inability to follow any train of thought, and indifference to passing events. Sail vs. Unger, 4 Sawyer (U. S. C. C.J 677. 2 Abb. (U. S. C. C.) 511. Demonstrative legacy is a bequest of a sum of money payable out of a particular fund or thing. It is a pecuniary legacy, given generally, but with a demonstration of a par- ticular fund as the source of its payment. Glass vs. Dunn,. 17 Ohio St. 424. 47 Ala. 554 ; 42 Ala. 20 ; 63 Perm. St. 316 ; 2 Lead. Cases in Eq. 479. 56 Md. 122. Demurrage is an allowance made to the master of a ship by his freighters, for staying longer in a place than the time first appointed for his departure, or his staying at the delivering ports. Brown vs. Balston, 4 Band. ( Va.J 510. The word " demurrage " no doubt properly signifies the agreed additional payment (generally per day) for an allowed detention beyond a period either spe- cified in or to be collected from the instrument ; but it has also a popular or more general meaning of compensation for undue detention. Lockhart vs. Folk, L. B. 10 Exch. 135. Demurrage is only an extended freight or reward to ADJUDGED WOKDS AND PHRASES. 185 DEMUEEEE DEMUEEEE the vessel, in compensation for the earnings she is improperly caused to lose. Every improper detention of a vessel may be considered a demurrage, and compensation under that name be obtained for it. Donaldson vs. McDowell, 1 Holmes (U. 8.. 0. G.) 292. 5 Phila. E. 112. Pemukrek is the tender of an issue in law upon the facts estab- lished by the pleading. Goodman vs. Ford, 23 Miss. 595. A demurrer, in its most liberal sense, is an answer in law to the complaint. Howell vs. Hoiuell, 15 Wis. 60. A demurrer is a declaration that the party demurring will go no further, because the other has not shown sufficient matter against him. Davies vs. Gibson, 2 Ark. 117. A demurrer is an admission of the fact, submitting the law arising on that fact to the court. Ex parte Vermilyea, 6 Gowen (N. Y.) 559. A demurrer is an answer in law to the bill, though not in a technical sense an answer according to the common language of practice. New Jersey vs. New Yorlc, 6 Peters ( U. S.J 327. 7 Jones & Spencer (N. V.) 10. Demureee TO EVIDENCE is a proceeding by which the judges, whose province it is to determine questions of law, are called upon to declare what the law is upon the facts in evidence, and it is analogous to the demurrer upon the facts alleged in pleading. M. & 0. It R. Co. vs. McArtliur, 43 Miss. 185. A demurrer to evidence admits the truth of the facts proved, together with the conclusions fairly inferrible therefrom, and asks the judgment of the court as to their legal effect. Pharr et al. vs. Baclielor, 3 Ala. 242. An allegation of the demurrant; which, admitting the matters of fact alleged by the opposite party, shews that, as set forth, they are insufficient in law for the adversary to proceed upon, or to oblige the demurrant to give any, or further answer thereto ; either because they are, in point of law, defective in 186 ADJUDGED WORDS AND PHRASES. DENOUNCEMENT DEPOSIT themselves, or are, in law, destroyed by countervail- ing testimony. Hyers vs. Green, 2 Call ( Va.) 569. 2 Gratt. 28 ; 23 Miss. 595. Denouncement (in Mexican law.) A denouncement was a judicial proceeding, and though real property might be acquired by an al- ien in fraud of the law — that is without observing its requirements — he nevertheless retained his right and title to it, liable to be deprived of it by the pro- per proceeding of denouncement, which in its sub- stantive characteristics was equivalent to the inquest of office found, at common law. Merle vs. Mathews, 26 Cal. 477. Depasture (in pi.) A departure in pleading is, where one defence is abandoned or departed from, which was first made, and recourse is had to another ; and when the second plea contradicts the first plea, and does not contain matter pursuant to it, going to support and fortify it. Allen vs. Watson, 16 John. (N. Y.) 206. 2 Wend. 581 ; 13 N. Y. 89 ; 5 Ala. 314 ; ii Mo. 64 ; 14 Nev. 239 ; 5 Conn. 379 ; 2 N. H. 308. Departure (of a vessel.) It imports an effectually leaving of the place behind If the vessel be detained or driven back, though she may have sailed, there is no departure. Union Ins. Co. vs. Tyson, 3 Hill (N. Y.) 126. Dependent covenant. A dependent covenant is an agreement to do or omit to do something which respects the thing on which it depends. Norman vs. Wells, 17 Wend. (N. Y.J 149. Deponent. One who gives information on oath or affirmation re- specting some fact known to him, before a magistrate. * * So called because the witness depones, (deponit,) places his hand upon the book of the Holy Evangel- ists, while he is bound by the obligation of an oath. Bliss vs. S human, 47 Maine 252. Deposit is a naked bailment of goods to be kept without re- ADJUDGED WOBDS AJVD PHRASES. 187 DEPOSIT DEPOSITION compense, and to be returned when the bailor shall require it. Bank vs. Bank, 40 Vermont 380. (Quoting Story on Bailments 3, § 4. ) A bailment of goods, to be kept by the bailee with- out reward, and delivered according to the object or purpose of the original trust. Montgomery vs. Evans, 8 Georgia 180. 42 Miss. 544 ; 8 Hun 607 ; 29 N. Y. 167 ; 5 Hun 607. Deposit (in bank.) Originally a deposit of money was made by placing a sum of money in gold or silver with a bank or other depositary, to be returned, when called for, in the same identical coin, and without interest, the de- positor paying the depositary a compensation for his care. But for more than a century * * the term " deposit " has come to mean quite a different transac- tion, as to the rights and liabilities of the parties to it. It became customary to deposit money for a par- ticular period, and on interest, or payable at certain prescribed periods after notice. In short, the term 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 of its forms, as specie or bank bills, was placed in the hands of banks or bankers, to be returned in other money, on call or at a specified period, and with or without interest. Curtis vs. Leavitt, 15 N. Y. 166. An ordinary bank deposite is where a voluntary credit is taken with a bank ; and for which no bank note, bill, or similar evidence of debt is given ; and for which there exists a right to draw uncondition- ally. Catlin vs. Savings Bank, 1 Conn. 495. Deposit geneeal. vide General deposit. Deposit special vide Special deposit. Deposition is a generic expression, embracing all written evi- dence verified by oath. Stimpson vs. Brooks, 3 Blotch/. ( U. S. C. C.J 456. In its more technical and appropriate sense it is lim- 188 ADJUDGED WORDS A\D PHRASES. DEPOSITION DEPUTY ited to the written, testimony of a witness given in the course of a judicial proceeding, either at law or in equity. The State vs. Dayton, 3 Zab. (N. J.) 54. 1 Gall. (TJ. S. C. 0.) 501. Deposition and affidavit (distinguished.) A deposition is evidence given by a witness under interrogatories oral or written, and usually written down by an official person ; while an affidavit is the mere voluntary act of the party making the oath, and may be, and generally is, taken without the cog- nizance of the one against whom it is to be used Stimpson vs. Brooks, 3 Blatchf. (TJ. S.J 456. Depositum is a bare naked bailment of goods, delivered by one man to another to keep for the use of the bailor ; and it is an essential characteristic of the contract, that the keeping shall be gratuitous. Morris vs. Lewis Exr., 33 Ala. 55. Depot is a place where passengers get on and off the cars, and where goods are loaded and unloaded, and all grounds necessary or convenient and actually used for these purposes are included in depot grounds. Fowler vs. Farmers' L. & T. Co., 21 Wis. Id. Depot grounds vide Depot. Deprivation is an ecclesiastical sentence, whereby an incumbent being legally discharged from officiating in his bene- fice with cure, the church pro tempore becomes void. Martin vs. Mackonochie, 3 Q. B. Div. 751. Deputy is one who exercises an office, &c, in another's right, having no interest therein, but doing all things in his principal's name, and for whose misconduct the prin- cipal is answerable. WiUis vs. Melvin, 8 Jones Law (N. C.J 63. A deputy must be one whose acts are of equal force with that of the officer himself, must act in pursu- ance of law, perform official functions, and is required to take the oath of office before acting. In re Executive Communication, 12 Florida 652. ADJUDGED WORDS AM) PHRASES. 189 derelict desert Derelict. Property deserted or abandoned upon the seas, -whether it arose from accident or necessity, or vol- untary dereliction. Bowe vs. The Brig , 1 Mason (U. 8. 0. C.) 378. Dereliction, by the civil law, is the voluntary abandonment of goods by the owner, without the hope or the purpose of returning to the possession. Administrators of Jones vs. Nunn, 12 Ga. 473. Descend denotes the vesting of the estate by operation of law in the heirs immediately upon the death of the an- cestor. Dove vs. Torr, 128 Mass. 40. Descendants. Those who have issued from an individual, and includes his children, grandchildren and their chil- dren to the remotest degree. The descendants form what is called the direct descending line. The term is opposed to that of ascendants. Jewell vs. Jewell, 28 Cal. 236. (Quoting B PHRASES. 191 DESPOIL DETEKMINED of a visible form to the conceptions of the mind, or, in other words to the invention. Binns vs. Woodruff, 4 Wash. (U. 8. G. G.) 52. Despoil. The word despoil involves, in its signification, vio- lence and clandestine means, by which one is de- prived of that which he possesses. Sunol vs. Hepburn, 1 Gal. 238. Destkoy (a vessel.) To " destroy a vessel " is to unfit her for service, be- yond the hopes of recovery by ordinary means. United States vs. Johns, 1 ' Wash. ( tl. S. G. C. 372. Detail (in military) is one who belongs to the army, but is only detached, or set apart for the time, to some particular duty or service, and who is liable, at any time, to be recalled to his place in the ranks. In re Straivbridge, 39 Ala. 379. Determinable fee is a fee which is liable to be determined by some act or event expressed on its limitation to circumscribe its continuance, or inferred by law as bounding its extent. JSfcLane vs. Bovee. 35 Wis. 36. (Quoting 1 Washb. on E. P. 62.) A qualified, base, or determinable fee, is an interest which may continue for ever, but is liable to be de- termined by some act of event circumscribing its continuance or extent. The People vs. White, 11 Barb. (N. Y.J 28. vide Base fee ; qualified fee. Detebmmed and become void (distinguished.) The latter differs from the former only as a species differs from its genus, and must therefore be included in it : for to say that a thing " has become void," necessarily implies that it has in effect been termin- ated or brought to an end ; but the expression ap- plies only to its end or termination in one specific mode : whereas to say that a thing " has been deter- mined," though it clearly imports simply that the thing has been terminated or brought to an end, yet the expression is generic in its nature, and com- 192 ADJUDGED WORDS AND PHRASES. DETINUE DEVISE pretends every mode of terminating or bringing a thing to an end. Sharp vs. Curds, 4 Bibb (Ky.) 548. Detinue is denned in the old books, as a remedy founded upon the delivery of goods by the owner to another to keep, who afterwards refuses to re-deliver them to the bailor. Peirce vs. Rill, 9 Porter (Ala.) 154. Devastavit (by executor, &c.) A devastavit by an executor or administrator is de- fined to be a wasting of the assets and may consist of any act or omission, every mismanagement, by which the estate suffers loss. Ayres vs. Lawrence, 59 N. Y. 197. Devastavit is a mismanagement of the estate of the deceased, in squandering and misapplying the assets contrary to the duty imposed upon the executor or administrator. Clift vs. White, 12 N. T. 531. Deviation is a voluntary departure, without necessity or reason- able cause, from the regular and usual course of the voyage insured. Coffin vs. Newburyport Marine Ins. Co., 9 Mass. 447. Deviation originally meant only a departure from the course of the voyage, but now it is always under- . stood in the sense of a material departure from or change in the risk insured against, without just cause. Wilhins vs. Insurance Co., 30 Ohio St. 341. Deviation is not merely the unnecessary going out of the track, or course usually taken, but it is also a departure from either the express or implied terms of the contract. Warder et al. vs. Goods, dec, 1 Peter's Adm. Dec. 40. 2 Wash. (U. S. C. C.) 84 ; 11 Johns. 266 ; 11 Fed. Eep. 181. Devise is the direction of a testator of sound mind as to the disposition of his property after his death. Jenkins et al. vs. Tobin et al., 31 Ark. 309. ADJUDGED WORDS AND PHRASES. 193 DEVISE DIE A devise is a conveyance of land, and not under the same jurisdiction as a testament. Conklin vs. LJgertoris Adrnr., 21 Wend. (N. Y.J 436 Devise means a testamentary disposition of land. Fetrow's Estate, 58 Penn. St. 427. A devise in England, is an appointment of particu- lar lands to a particular devisee ; and is considered in the nature of a conveyance by way of appoint- ment. Harwood vs. Goodright, 1 Cowp, 90. 17 Eng. L. & Eq. 198. Devise and bequeath (distinguished.) Devise is the appropriate term in a will, to pass real estate, and bequeath, the term applicable to gifts of personal property. Lasher vs. Lasher, 13 Barb. (N. Y.J 109. Dicta are opinions of a judge which do not embody the resolution or determination of the court, and made without argument, or full consideration of the point, are not the professed deliberate determinations of the judge himself; obiter dicta are such opinions uttered by the way, not upon the point or question pending, as if turning aside for the time from the main topic of the case to collateral subjects. Rohrbach vs. Ger mania Fire Ins. Co., 62 N. Y. 58. A dictum is an opinion expressed by a judge on a point not necessarily arising in a case. The State vs. Clarke, 3 Nevada 572. Dictation, in a technical sense, means to pronounce orally what is destined to be written at the same time by another. Prendergast vs. Prendergast, 16 La. Ann. 220. Die by the hands oe justice - is to die by some judicial sentence for the commis- sion of a felony. Spruitt vs. N. C. Mut. Ins. Co., 1 Jones Law (N. C.J 128. vide Death by the hands of justice. DdjI LEAVING; NO LAWFUL ISSUE. These words import a definite failure of issue, to occur at the death of the first devisee, not an extinc- 194 ADJUDGED WORDS AND PHRASES. DIE DILIGENTLY tion of the line of heirs at a remote period — an in- definite failure of issue. Kennedy vs. Kennedy, 5 Dutch. (N. J.) 188. vide Dying without issue. Die without children means dying without children living at the death of the first devisee. Bullock vs. Seymour, 33 Conn. 293. Die without issue. The words " die without issue," by a long train of decisions, of themselves import an indefinite failure of issue, whether used in reference to personal or real estate. Williams vs. Turner, 10 Yerg. ( Tenn.) 289. vide Dying without issue. Dies non jubidicus means only that process cannot ordinarily issue or be executed or returned, and that courts do not usually sit on that day. It does not mean that no judicial action can be had on that day. State vs. Rickeits, 74 N. C. 193. Diligence, when the law imposes it as a duty, implies that " we shall do those things we ought to do, and leave undone those things we ought not to do." Grant vs. Moseley, 29 Ala. 305. There are infinite shades, from the slightest momen- tary thought or glance of attention to the most vigi- lant anxiety and solicitude. McGrathvs. H. R. R. R. Go.,19 Row. Pr. R. (N. T.J 219. In the civil law, there are three degrees of diligence ; ordinary diligence, (diligentia ;) extraordinary dili- gence, (exactissima diligentia ;) and slight diligence, (levissima diligentia.) * * * And the definitions of these degrees are precisely the same with those in our law. Brand vs. Troy & S. R. R. Co., 8 Barb. (N. T.J.378. Diligently lnquiee (in grand juror's oath) means, diligently to inquire into the circumstances of the charge, the credibility of the witnesses who support it, and, from the whole, to judge whether the - person accused ought to be put upon his trial. ResjmHica vs. Shaffer, 1 Dallas (Pa.) 257. ADJUDGED WORDS AND PHRASES. 195 DIRECT DISBURSEMENTS . DIRECT INTEREST. A direct interest is one which is certain and not con- tingent or doubtful. Lewis vs. Post & Main. 1 Ala. 72. Directly feom some foreign port or place (in N. T. stat.) means coming from some port or place out of the United States, without passing through either of the sister states, into this state. Chatham vs. Middlefield, 19 John. (N. Y.J 57. 4 Halst 63. Directory trust. A directory trust is when, by the terms of the trust, the fund is directed to be' vested in a particular man- ( ner till the period arrives at which it is to be appro- priated. Deaderick vs. CantreU, 10 Yerg. (Tenn.) 272. Disability is the want of legal capacity to do a thing. The dis- ability may relate to the power to contract, or to bring suits ; and may arise out of want of sufficient ' understanding, as idiocy, lunacy, infancy ; or, want of freedom of will, as in the case of married women, and persons under duress ; or out of the policy of the law, as alienage when the alien is an enemy, outlawry, attainder, praemuire, and the like. The disability is something pertaining to the person of the party- — a personal incapacity — and not to the cause of action or his relation to it. Meeks vs. Vassault, 3 Sawxjer (U. S. C. G.J 213. Disability implies want of power, not want of inclina- tion. It refers to incapacity, and not to disinclina- tion. It is founded upon a want of authority arising out of some circumstance or other, notwithstanding the presence of any amount or degree of willingness or disposition to act. Castle vs. Duryea, 32 Barb. (N. Y.J 4S0. An incapacity of action under the law ; an incapacity to do a legal act. Wiesner vs. Zaun, 39 Wis. 206. Disbursements (of administrators) means money or currency paid out in extinguishment 106 ADJUDGED WORDS AM) PHRASES. DISCLAIMER DISCONTINUANCE of the liabilities of the decedent, or the expenses of administration. Wright's Adm. vs. Wilkerson, 41 Ala. 272. Disclaimer. A disclaimer, as the word imports, must be a re- nunciation by the party of his character of tenant, either by setting up a title in another, or by claiming title in himself. Williams vs. Cooper, 39 Eng. C. L. 384. The object of a disclaimer is, to prevent an estate passing from the grantor to the grantee. It is a formal mode of expressing the grantee's dissent to the con- veyance before the title has become vested in him. Watson vs. Watson, 13 Conn. 85. Disclosing (a defence upon the merits.) " Disclosing " must be construed to mean what the obvious and natural sense would seemto indicate, — opening out and letting the judge see whether there really is a defence upon the merits. Whiley vs. WHley, 93 Eng. C. L. 663. Discontinuance at common law was a failure to continue the cause re- gularly from day to day, or term to term, between the commencement of the suit and final judgment, and if there was any lapse or want of continuance the parties were out of court, and the plaintiff had to be- gin anew. Germania Ins. Co. vs. Francis, 52 Miss. 461. A discontinuance is the result of some act done or omitted by the plaintiff, which legally withdraws his cause from the power and jurisdiction of the court. McGuire vs. Say, 6 Humph. (Tenn.) 421. A discontinuance is a gap or chasm in the proceeding after the suit is pending. Ex parte Hall, 47 Ala. 680. Discontinuance is either 1st voluntary, where the plaintiff withdraws his suit, or 2d involuntary, where in consequence of some technical omission, mis- pleading or the like, the suit is regarded as out of court. Hunt vs. Griffin, 49 Miss. 748. A discontinuance is a break or chasm in a suit arising ADJUDGED WORDS AHD PHRASES. 137 DISCONTINUANCE DISCOUNT from the failure of the plaintiff to carry the proceed- ings forward in due course of law. Kennedy vs. McNiclde, 7 Plxila. R. 217. Discontinuance of a suit is similar to a nonsuit When a plaintiff leaves a chasm in the proceedings of his cause, or fails to do that from time to time, and from term to term, which in the regular prosecu- tion of his suit he is by law bound to do, the suit is discontinued. Kahn vs. Herman, 3 Georgia 272. Discontinuance (of indictment.) means putting an end to the prosecution. Ramsey vs. Tuffnell, 2 Bing. 553. Discount. To discount signifies the act of buying a bill of exchange, or promissory note, for a less sum than that which upon its face is payable. Rake vs. Capitol, 20 Kansas 450. (Quoting Bouvier's L. Diet. \ A discount by a bank means, ex vi termini, a deduc- tion or drawback made upon its advances or loans of money, upon negotiable paper, or other evidences of debt, payable at a future day, which are trans- ferred to the bank. Fleckner vs. Bank of the U. S., 8 Wlieaton (U. S.J 350. The term "discount," as a substantive, means the in- terest reserved from the amount lent at the time of making the loan ; as a verb, it is used to denote the act of giving money for a note or bill of exchange, deducting the interest. State vs. Boatmen's Savings Institution, 48 Mo. 191. The term discount, as a substantive, signifies the interest allowed in advancing upon bills of exchange or negotiable securities ; and to discount a bill is to buy it for a less sum than that, which upon its face is pay- able. Saltmarsh vs. Tlve P- & M. Bank, 14 Ala. 677. To discount is to take interest in advance, and in banking is a. mode of loaning money. It is the advance of money not due till some future period, less the interest which would be due thereon when payable. Weclder vs. First National Bank, 42 Md. 592. 6 Ohio St. 234 ; 15 OHo St. 87 ; 13 Conn. 259 ; 2 Cow. 699 ; 7 N. Y. 343 ; 14 Otto 276. 198 ADJUDGED WOBDS AND PHRASES. DISCOUNT DISCRETION Discount and set off (distinguished) vide Set off, &c. Discretion. It means, when applied to public functionaries, a power of right conferred upon them by law, of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, un- controlled by the judgment or conscience of Others. Judges of Oneida, C. P. vs. People, 18 Wend. (N. Y.J 99, When applied to a Court of Justice, means sound discretion guided by Law. It must be governed by Rule, not by Humour ; It must not be arbitrary, vague and fanciful ; but legal and regular. Bex vs Wilkes, 4 Purr. 2539. "When it is said that something is left to the discre- tion of a judge, it signifies that he ought to decide ac- cording to the rules of equity and the nature of circumstances, and so as to advance the ends of jus- tice. Piatt vs. Munroe, 34 Barb. (N. Y.J 293. Where the discretion of a court is spoken of, a sound legal discretion is meant, not an arbitrary sic volo. The People vs. Sup. Gt. of N. Y, 5 Wend. (N. Y.J 126. Discretion does mean, (and can mean Nothing else but) Exercising the best of their Judgment upon the Occa- sion that calls for it. Bex vs. Young & Pitts, 1 Burr. 560. Lord Coke says, that in judicature discretion is a crooked cord. Burke improved the saying by add- ing, that in legislation it is a golden rule. Dorrnan vs. State, 34 Ala. 235. Discretion is a Science or Understanding to discern between Falsity and Truth, between Wrong and Bight, between Shadows and Substance, between Equity and Colourable Glosses and Pretences, and not to do according to their Wills and private Affec- tions. Boohe's Case, 5 Coke 100. Discretion is, as Lord Coke says, discernere per Legem, quid sit justum. Cavil vs. Burnaford, 1 Burr. 571. vide Judicial discretion ; Abuse of discretion. 4 Iowa 283. ADJUDGED WORDS AND PHRASES. 199 DISCEETIONARY DISPOSING DISCRETIONARY TRUST. A discretionary trust is -when by the terms of the trust no discretion is given as to the manner in ; which the trust fund shall be vested till the time arrives at which it is to be appropriated in satisfac- i tion of the trust. ' Deaderick vs. Cantrell, 10 Yerg. (Tenn.) 269. Disfranchisement. The word " disfranchisement " signifies taking a franchise from a man for some reasonable cause. Symmers vs. Begem, 2 Cowp. 502. 24 Barb. 578. Dishonored. The term " dishonoured " is a technical word, * * which imports that the bill has been presented for payment, and has not been paid by the acceptor. Todd vs. Emly, 7 M.&W. 438. Dismiss and quash (distinguished) vide Quash, &c. Disorderly conduct. Any conduct which is contrary to law. State vs. Jersey City, 1 Dutch. (N. J.) 541. Disorderly house. A house the inmates of which behave so badly as to become a nuisance to the neighborhood. State vs. Maxwell, 33 Conn. 259. Dispensation and exemption (^distinguished.) A dispensation and exemption differ in sound only ; for a Dispensation is properly to license a person to do a thing which he can do, but is by law penally prohibited from doing it. I An exemption is properly to license a man or men, not to do a thing which they are penally by a Law j precepted to do. Thomas vs. Sorrell, Vaughan's R. 349. Disposed of (in will) vide Heretofore disposed of (in will.) Disposing mtnd and memory is one in which the testator is shown to have had, at the making and execution of a last will, a full and in- 200 ADJUDGED WORDS AND PHRASES. BISPOSING DISSEISIN telligent consciousness of the nature and effect of the act he was engaged in ; a full knowledge of the pro- perty he possessed ; an understanding of the dis- position he wished to make of it by the will, and of the persons and objects he desired to participate in his bounty. Leech vs. Leech, 21 Penn. St. 69 '. A disposing mind and memory, is a mind and mem- ory, which have the capacity of recollecting, dis- cerning and feeling the relations, connections and obligations of family and blood. Den vs. Johnson, 2 South (N. J.) 458. A disposing mind and memory may be said to be one which is capable of presenting to the testator all his property, and all the persons who come reasonably within the range of his bounty. Benvist vs. Murrin, 58 Mo. 322. The meaning of the words, disposing mind and mem- ory, is a mind and memory capable of disposing by will, capable of making a will. Puryear et al. vs. Reese et al., 6 Coldio. (Tenn.) 30. vide Sound, &c. 2 Keyes 238 ; 1 Phila. K. 154. Dispossession and disseizin (distinguished.) vide Disseizin, &c. Disseisin is an ouster of the rightful owner of the seizin. It is the commencement of a new title, producing that change by which the estate is taken from the right- ful owner and placed in the wrongdoer. Worcester vs. Lord, 56 Maine 268. A disseisin is the putting a man out of seisin, and ever implieth a wrong. Doe vs. Horde, 2 Cowper 101. ("Quoting Co. Litt. 153.) A disseisin is, when one enters, intending to usurp the possession, and to oust another of the freehold, and either takes the profits, or claims the inheritance. Heirs of Mar r. vs. Gilliam et al., 1 Coldiv. ( Tenn.) 507. Disseisin * must mean some Way or other turning the Tenant out of his Tenure and usurping his Place and Feudal Relation. KilnicJc vs. Maidman, 1 Burrow 10T 58 HI. 589 ; 5 Conn. 257, 518 ; 5 Peters 439. ADJUDGED WORDS AJSD PHEASES. 201 DISSEISIN DIVIDEND Disseisin and dispossession (distinguished.) The former means an estate gained by wrong and in- jury, whereas the latter may be by right or by wrong ; the former denoting an ouster of the disseizee, or some act equivalent to it, whereas by the latter no such act is implied. Slater et al. vs. Bawson, 6 Met. (Mass.) 444. Disseisin is putting a Man out of Seisin, and ever im- plies a Wrong. But Dispossession or Ejectment, is putting out of Possession, and may be by Eight or Wrong. Kilnich vs. Maidman, 1 Burr. 111. Distillery is a place or building where alcoholic liquors are dis- tilled or manufactured, and not every building where the process of distillation is used. Atlantic Dock Co. vs. Libby, 45 JSf. Y. 502. Distress. A distress is defined to be the taking of a personal chattel out of the possession of a wrongdoer, into the custody of the party injured, to procure satisfaction for the wrong committed. Hard vs. Nearing, 44 Barb. (N. Y.) 488. (Quoting 3 Bl. Com. 6.) Distributees The word " distributees," is new in pleading * * but is admissible to denote the persons, who are entitled, under the statute of distributions, to the personal estate of one, who is dead intestate. Henry vs. Henry, 9 Ired. (N. C.J 279. Distribution. The division of an intestate's estate according to law. Rogers vs. Gillett, 56 Iowa 2G8. (Quoting Bouvier L. Diet.) Diversion (of a stream) denotes the turning of the stream, or a part of it, as such, from its accustomed direction, — its natural course. Parker vs. Griswold, 17 Conn. 299. Dividend. A sum of money distributed pro rata among the stock- holders, without reference to the source from which it is taken or paid. Osgood vs. Laytin, 3 Keyes (N. Y.) 523. 202 ADJUDGED WOKDS AND PHKASES. DIVIDEND DIVOECED It includes, in its technical sense, as well as in its ordinary and common acceptation, all distributions to corporators, of the profits of the corporation, whether such distributions are large or small; or whether made at long or short intervals ; and with- out any regard to the manner or place of their dec- laration, or mode of payment. Clarlcson vs. Clarkson, 18 Barb. (N. Y.) 657. A dividend is money paid out of profits by a cor- poration to its shareholders. Taft, Trus. vs. Hartford P. & F. B. B. Co., 8 B. 1. 333. A dividend to the stockholders of a corporation, when spoken of in reference to an existing organiza- tion engaged in the transaction of business, and not one being closed up and dissolved, is always, so far as we are aware, understood as a fund which the cor- poration sets apart from its profits to be divided among its members. Lockhart vs. Van Alstyne, 31 Mich. 79. A dividend, both in common and legal parlance, is a portion of the principal or profits divided among several owners of a thing. Penn. vs. Erie & Pittsb. B. B. Co., 10 Phila. B. 466. 1 De G. & J. 636 ; 3 Abb. Ap. Deo. (N. Y.) 423. DrVTDEND PKEEEBENTIAL means no more than a preference to a limited extent in the division of the sum which has to be divided. Henry vs. Great Northern B'way Co., 1 De G. & J. 626. vide Preferred dividend. Dividends. The word " dividends," ex vi termini imports a dis- tribution of the funds of a corporation among its members, pursuant to a vote of the directors or managers. Willistonvs. S. & N. Ind. B. B. Co., 13 Allen (Mass.) 404. DlVOKCE from diverto a breach or dissolution of the bond of marriage, is the separation of two de facto married together made by law. State vs Fry. 4 Mo. 142. Divorced imports a dissolution, in the largest sense, of the marriage relation between the parties. Miller vs. Miller, 33 Cal. 355. ADJUDGED WORDS AND PHRASES. 203 docket domicil Docket. A docket is a brief writing or statement of a judg- ment made from the record or roll, generally kept in books alphabetically arranged. Stevenson vs. Weisser, 1 Bradf. Surr. B. (N. Y.J 344. DoUiAB is the legal money unit of the United States. Sunt vs. Smith, 9 Kansas 152. A dollar is a silver coin weighing 412^ grains, or a gold coin weighing twenty-five and four-fifths grains, of nine-tenths pure to one-tenth alloy of each metal. Borie vs. Trot, 5 Phila. B. 404. Domestic is only appropriately used in an act of the state legis- lature to describe a product exclusively belonging to, and within the sovereign jurisdiction of the state. Com. vs. Giltinan, 64 Penn. St. 103. Domestics are those who reside in the house with the master they serve. The term does not extend to workmen and laborers employed out of doors. Wakefield vs. The State, 41 Texas 558. 1 Tex. App. 221. (Quoting Bouvicr X. Diet. ) DOMICIL. A residence at a particular place, accompanied with positive or presumptive proof of continuing in it an unlimited time. In re Wrigley, 8 Wend. (N. Y.J 142. Domicil is the habitation fixed in any place, with an intention of always staying there, or at least without any intention of removing therefrom. Crawford vs. Wilson, 4 Barb. (N. Y.J 520. There must be both the fact of abode and the inten- tion of remaining indefinitely, to constitute a domi- cil. Eageman vs. Fox, 31 Barb. (N. Y.J 476. Domicil is that place in which his habitation is fixed, without any present intention of removing therefrom. State vs. Moore, 14 N. Samp. 454. Domicil, in a legal sense, is where the person has his true, fixed and permanent home and principal 204 ADJUDGED WORDS AND PHRASES. DOMICIL DONATE establishment, and to which, whenever he is absent he has the intention of returning. Cadwalader vs. Howell, 3 Harr. (N. J.) 144. (Quoting Story Conf. L. 39.) In whatever place an individual has set up his household gods and made the chief seat of his af- fairs and interests ; from which, without some spe- cial avocation, he has no intention of departing; from which, when he has departed, he is considered to be from home ; and to which, when he has re- turned, he is considered to have returned home. In this place there is no doubt whatever he has his domicil. White vs. Brown, 1 WaEace, Jr. (U. 8. G. C.J 262. A man's domicil is his house, where he establishes his household, and surrounds himself with the appa- ratus and comfort of life. Sanderson vs. Ralston, 20 La. Ann. 314. I think it cannot be doubted that the actual resi- dence of an individual at a particular place, with the animus manendi, or a fixed and settled determination to make that his permanent residence for the re- mainder of his life, constitutes that place his domi- cil. In re Catherine Boberts' vM, 8 Paige Ch. (N. T.J 524. vide Residence ; Borne; Place of abode. 3 Vroom 194 ; 10 Mass. 501: 8 Vroom 495 ; 21 Wall. (U. S.) 352 ; 42 Vt. 352 ; 27 Miss. 718; 51 Iowa 79 ; 71 Perm. St. 309 ; 10 Ho. of Lords Cases 285 ; 1 Wend 43 ; 10 Pick. 77 ; 2 Paine 625 ; 74 HI. 314 ; 54 Miss. 310 ; 7 Ha. 152 : 1 Binn. (Pa.) 352 ; 2 Sneed. 421. Domicil and residence (distinguished) vide Besidence, &c. Dominion is the right in a corporal thing, from which arises the power of disposition, and of claiming it from others. Coles vs. Perry, 7 Texas 136. vide Bemote dominion ; Proximate dominion. Donate generally means giving gratuitously, or without any consideration. Goodhue vs. Beloit, 21 Wis. 642. ADJUDGED WORDS AND PHRASES. 205 donatio donatio Donatio causa mortis. A donatio causa mortis is where a man lies in extrem- ity, or being surprised by sickness, and not having an opportunity ofmaldng a will, but lest he should die be- fore he could make it, gives away personal property with his own hands. If he dies it operates as a legacy. If he recovers, the property reverts to him. Prince vs. Hizleton, 20 John. (N. Y.) 514. It is a conditional gift to take effect only on the death of the donor, who in the meantime has the power of revocation, and may at any time resume possession and annul the gift. Bedell vs. Carl et al, 33 N. Y. 584. A donatio causa mortis is a gift of a personal chattel, made by a person in his last illness, subject to an im- plied condition, that if the donor recovers, the gift shall be void. So also it shall be void, if the donee dies before the donor. Wells vs. Tucker, 3 Binn. (Pa.) 370. 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 case the donor dies, but not otherwise. French vs. Raymond, 39 Vermont 624. A delivery is indispensable to the validity of a dona- tio mortis causa * * delivery stands in the place of nuncupation, and must accompany and form a part of the gift : an after-acquired possession of the donee is nothing; and a previous and continuing possession, though by the authority of the donor, is no better. Miller vs. Jeffress et al., 4 Gratt. (Va.) 479. It is essential to such gifts that the donor make them in his last sickness, or in -contemplation and expecta- tion of death, and that the apprehension of death may arise from infirmity or old age, or from external and anticipated danger. Dexheimer vs. Gautier, 34 How. Pr. R. (N. Y.) 476. (Quoting 2 Kent Com. 244.) To constitute a donatio mortis causa there must be three attributes : (1) the gift must be with a view of the donor's death ; (2) it must be subject to the con- dition that it shall take effect only on the donor's 206 ADJUDGED WORDS AND PHRASES. DONATION DORMANT death by his existing illness ; and (3) there must be a delivery of the subject of the donation. Keniston vs. Sceva, 54 JSf. Hamp. 31. 32 Barb. 260 ; 47 Barb. 385 ; 2 Stew. (Ala. ) 369 ; 38 Ind. 454 ; 31 Me. 429 ; 2 "Whart. (Pa.) 32 ; 23 Perm. St. 64 ; 51 Penn. St. 350 ; 64 Penn. 23 ; 2 Del. Ch. 69. Donation. The act by which the owner of a thing voluntarily transfers the title and possession of the same from himself to another person, without any consideration. Ind. N. & 8. R. R. Co. vs. City of Attica, 56 Ind. 486. A donation, as defined by the civil law, is a contract whereby a person, gratuitously dispossesses himself of something by transferring it to another to be his property, who accepts it. It is a contract or agree- ment, and must be accepted by the donee, otherwise it would be a mere offer. It must also be gratuitous, because otherwise, it would be a sale or exchange. Fish vs. Flares, 43 Texas 343. 65 Ga. 504. Donation inter vivos is an act by which one gives to another irrevocably and gratuitously some property of which he becomes the immediate owner. Fislc vs. Flores, 43 Texas 343. Dormant and ostensible partners (distinguished) vide Partners ostensible, &c. Dormant partner. A dormant partner is one who takes no part in the business, and whose connection with the business is unknown. Both secrecy and inactivity are implied by the word. National Bank of Salem vs. TJiomas, 47 N. Y. 19. A dormant partner, in the legal acceptation of the term, is one who participates in the profits of the trade, but conceals his name. Speake vs. Prewitt, 6 Texas 258. Every partner is considered dormant, unless his name is mentioned in the firm, or embraced under general terms, as the name of one of the firm or company. MitcMl vs. Ball, 2 Harr. & Gill (Md.) Ill vide Partners ostensible, &c. ; Secret partnership. adjudged words and phrases. 207 dotage dkaft Dotage is that feebleness of the mental faculties which pro- ceeds from old age. It is a diminution or decay of that intellectual power which was once possessed. It is the slow approach of death ; of that irrevocable cessation, without hurt or disease, of all the functions which once belonged to the living animal. Oiving's Case, 1 Bland's Ch. (Md.) 389. Double insurance is, where one insures the same thing twice over against the same perils. Perkins vs. N. E. Marine Ins. Co., 12 Mass. 218. 49 Perm. St. 18. Dower. Dos, dower, in the common law is taken for that por- tion of lands or tenements which the wife hath for terme of her life of the lands or tenements of her husband after his decease, for the sustenance of her- self and the nurture and education of her children. Sutherland vs. Sutherland, 69 III. 485. (Quoting Co. Liit. 30 b, 31 a.) Dower is a title inchoate, and not consummate, until the death of the husband, but it is an interest which attaches on the land as soon as there is a concurrence of marriage and seizin. Youngs vs. Carter, 50 Howard's Pr. R. (N. Y.) 411. Dower, by the law of the land, is a portion which a widow hath of lands of her husband, which by the common law is the third part of all the lands in fee simple or fee tail whereof the husband was sole seised at any time during coverture. Wait vs. Wait, 4 Barb. (N. Y.J 201. 11 Ohio St. 9 ; 5 Ark. 610 ; 46 N. H. 264 ; 3 Hun 460. Dowry is that which the wife gives the husband on account of marriage, and is a sort of donation made with a view to his maintenance and to the support of the marriage. Cutler vs. Waddingham, 22 Mo. 254. Draft A draft at the present day is the common term for a bill of exchange. Hinnemann vs. Bosenback, 39 N. Y. 100. vide Bill of exchange. 208 ADJUDGED WOKDS AND PHKASES. DEAPT DUE Draft and take (distinguished.) The former is an allowance to the merchant when the duty is ascertained by weight, to insure good weight to him. * * The latter is allowed for the outside or covering of the article imported. Napier vs. Barmy, 5 Blatchf. ( U. S. C. C.J 192. Dkamshop-keepek is a person permitted by law, to sell intoxicating liquors in any quantity less than a quart. State vs. Owen, 15 Mo. 507. Deayage. The removal of coal by any of the ordinary vehicles drawn by horses or steam. Soule vs. Gas Light Co., 54 Col. 241. Dkummer. The term "drummer" has acquired a common accep- tation, and is applied to commercial agents who are travelling for wholesale merchants and supplying the retail trade with goods, or rather taking orders for goods to be shipped to the retail merchant. Singleton vs. Fritsch, 4 Lea (Tenn.) 96. Drunkard. He is a drunkard whose habit is to get drunk, "whose ebriety has become habitual." Com. vs. Whitney, 5 Gray (Mass.) 86. As for a drunkard, he is voluntarius daemon; he hath no privilege thereby ; but what hurt or ill soever he doth, his drunkenness doth aggravate it. Pirile vs. The State, 9 Humph. (Tenn.) 665. 1 Morris St. Cas. (Miss.) 243. (Quoting Co. Inst. 247.) Due. The word " due " has more than one signification, or is used on different occasions to express distinct ideas. At times it signifies a simple indebtedness without reference to the day of payment. * * At other times it shows that the day of payment or render has passed. Scudder vs. Coryell, 5 Halst. (N. J.) 345. 1 Harr. (N. J.) 143. Due caee. By due care is meant reasonable care, adapted to the circumstances of the case. Butterfield vs. Western R. B. Co., 10 Alien (Mass.) 532. 64 Md. 656. ADJUDGED TTOKDS AND PHRASES. 209 DUE DUE Due coukse of law means such rules of action in relation to the rights and duties of the citizen, and such forms and modes of legal proceedings, of a general character, to ascer- tain and enforce duties, rights and remedies, as the legislature may deem fit, and which are not forbid- den by the language or the spirit of other parts of the constitution. Griffin vs. Mixon, 38 Miss. 458. Due course of law, when applied to the prosecution of a demand in a court of record, confessedly means no more than a timely and regular proceeding to judgment and execution. Backus vs. Shipherd, 11 Wend. (N. Y.J 635. 34 Ala. 220 ; 30 Wis. 147 ; 5 Mich. 254 ; 4 McLean 586. Due diligence means some effort or attempt to find the party which the court or judge shall be satisfied is reasonable under the circumstances. JBixby vs. Smith, 49 Sow. Pr. B. (N. Y.J 53. Due diligence (in sending notice of protest) consists in making inquiry from such accessible per- sons as, from their connection with the transaction, or place, or parties, are most likely to be informed, and in sending notice to the place where, according to the best information to be obtained, the party is most likely to be reached. Bank of Columbia vs. Lawrence, 1 Am. Lead. Gases 405. Due peocess of law. All ordinary legal measures, prosecuted with good faith. Thomas vs. Woods, 4 Cowen (N. Y.J 182. A course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. Pennoyer vs. Neff, 5 Otto (U. S.J 133. Due process of law in each particular case means such an exertion of the powers of government, as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual 210 ADJUDGED WORDS AND PHRASES. DTJB DUNCE rights as these maxims prescribe for the class of cases to which the one in question belongs. Stuart vs. Palmer, 14 N. Y. 191. (Quoting Cooley on Const. Limit. 355.) The words " due process of law," * * cannot mean less than a prosecution or suit instituted and con- ducted according to the prescribed forms and solem- nities for ascertaining guilt, or determining the title to property. Taylor vs. Porter, 4 HiU (N. Y.J 147, It means law in its regular course of administration through courts of justice. Wynehamer vs. People, 13 N. Y. 395. 6 Coldw. 244 ; 44 Conn. 297 ; 49 Cal. 406 ; 5 Barb. 483 ; 9 Barb. 552 ; 12 N. Y. 209 ; 30 Mich. 210 ; 30 Wis. 146 ; 5 Mich. 254 ; 37 Barb. 456. Due return (of process) means a proper return, made in proper time. Waugh vs. Brittain, 4 Jones Law (N. C.J 470. Due return means the bringing the process into court, with such endorsements on it as the law requires. Whether the endorsement be true or false, if it be such an one as the law requires, it is a true return. Harman vs. Childress, 3 Yerg. (Tenn.) 329. Duly. The word duly means, in a proper way, or regularly, or according to law. Gibson vs. People, 5 Sun (N. Y.) 543. Duly presented, is presented according to the custom of merchants, which necessarily implies an exception in favor of those unavoidable accidents which must prevent the party from doing it within the regular time. Schqfield vs. Bayard, 3 Wend. (N. Y.J 491. Duly recorded means recorded in compliance with the requirement of law. Dunning vs. Coleman, 27 La. Ann. 48. Dunce, in common intendment and speech, is taken for one of dull capacity and apprehension, and not fit for a lawyer. Peard vs. Jones, Cro. Car. 382. 36 How. Pr. B. 101. ADJUDGED WOBDS AND PHRASES. 211 duplicate dtjkess Duplicate. The term " duplicate " means a document which is essentially the same as some other instrument. Toms vs. Cuming, 7 Man. & Gr. (49 Eng. C. L.J'94. Duplicate is a document which is the same in all re- spects as some other document, from which it is in- distinguishable in its essence and in its operation. Lewis vs. Roberts, 103 Eng. C. L. 29. Duplicity (in indictment) is the joinder of two or more offences in one count. State vs. Gorhan, 55 N. Samp. 163. It is the joinder of two or more distinct offences ia one count. Tucker vs. The State, 6 Texas App. 253. Duplicity (in pi.) consists in relying on two or more distinct grounds, either of which, independent of the others, would constitute a good defence to the action. Marker vs. Brink et al.,4 Zab. (N. J.) 452. Duplicity consists in traversing distinct matters, not necessary to one point. Tucker vs. Ladd, 7 Cowen (N. Y.J 452. Dubess, in its more extended sense, means that degree of con- straint or danger either actually inflicted, or threat- ened and impending, which is sufficient in severity or in apprehension, to overcome the mind and will of a person of ordinary firmness. Brown vs. Fierce, 7 Wallace (U. S.) 214. Duress is personal restraint, or a fear of personal in- jury, or imprisonment. Hazelrigg vs. Donaldson, 2 Met. (Ky.) 447. By duress is meant an actual or threatened violence or restraint of a man's person, contrary to law, to compel him to enter into a contract or to discharge one. Plant vs. Gun, 2 Wood (U. S. C. C.J 376. Vague and undefined fears of violence, without some contemporaneous demonstration of such violence^ is not duress in contemplation of law. To constitute duress there must be overt acts of violence or threats at the time of making the contract. Olivari vs. Menger, 39 Texas 77. 212 ADJUDGED WOKDS AMD PHKASES. DURESS DUTCH Duress exists when one by the unlawful act of an- other is induced to make a contract or perform some act under circumstances which deprive him of the exercise of free will. It is commonly said to be of either the person or the goods of the party. Duress of the person is either by imprisonment, or by threats, or by an exhibition of force which apparently cannot be resisted. * * Duress of goods may exist when one is compelled to submit to an illegal exaction in order to obtain them from one who has them in possession but refuses to surrender them unless the exaction is submitted to. Hackley vs. Seadley, 45 Mich. 574. 46 Miss. 567 ; 39 Me. 561 ; 10 Minn. 458 ; 4 Bait. 535 ; 5 Coldw. 474. DUEESS OF IMPRISONMENT. Where there is an arrest for an improper purpose, without just cause, or where there is an arrest for a just cause, but without lawful authority, or for a just cause, but for an unlawful purpose, even though under proper process, it may be construed as duress of imprisonment. Brown vs. Pierce, 7 Wallace ( U. S.) 215. Duress per minas, as denned at common law, is where a party enters into a contract (1) For fear of loss of Hfe ; (2) For fear of loss of limb ; (3) For fear of mayhem ; (4) For fear of imprisonment. Brown vs. Pierce, 7 Wallace (U. 8.) 215. During such trial (presence of accused required) includes all proceedings had in empanneling the jury, the introduction of evidence, the summing up of counsel, the charge of the court to the jury, receiving and recording the verdict. Maurer vs. The People, 43 N. Y. 3. During coverture means while the marriage lasts. State vs. Fry, 4 Mo. 159. During the term (of office) is during the time or period for which the officer is elected. People vs. Burbank, 12 Cal. 392. Dutch auction vide Auction. ADJUDGED WORDS AND PHRASES. 213 duties dying Duties. Things due and recoverable by law. The term, in its widest signification, is hardly less comprehensive than " taxes." It is applied, in its most restricted meaning, to customs ; and in that sense is nearly the synonym of " imposts." Pacific Ins. Co. vs. Soule, 7 Wallace ( U. 8.) 445. (Quoting Tomlin's L. Diet. ) Duty and debt (distinguished) vide Debt, &c. Duty and toll (distinguished.) A duty is a tax or impost raised by a state for the use of its government. A toll, on the contrary, sig- nifies a payment in towns, markets and fairs, for goods and cattle bought and sold. It is a reasona- ble sum of money due to the owner of the fair or mar- ket, upon a sale of things tollable within the same. The State vs. Orleans Nav. Co., 11 Martin "(La.) 153. Duty on tonnage is a tax graduated according to the capacity of the ship or vessel. Hackley vs. GeragMy et al., 5 Vroom (N. J.) 336. Dwelling house. A dwelling house is a building inhabited by man, otherwise a mansion, which is synonymous with the French word maison, the abode or residence of a family. N. Y. Fire Department vs. Buliler, 35 N. Y. 182. It includes the building and such attachments as are usually occupied and used by a family for the ordin- ary purposes of a house. Chase vs. Hamilton Ins. Co., 20 N. Y. 55. Dying declarations are such as are made by the party, relating to the facts of the injury of which he afterwards dies, under the fixed belief and moral conviction that his death is impending and certain to follow almost imme- diately, without opportunity for repentance, and in the absence of all hope of avoidance ; when he has despaired of life and looks to death as inevitable and at hand. StarJcey vs. People, 1 7 III. 21. 214 ADJUDGED WORDS AND PHRASES. DYING DYING Dying declarations, as is well settled, are neither more nor less than statements of material facts con- cerning the cause and circumstances of homicide, made by the victim under the solemn belief of im- pending death, the effect of which on the mind is re- garded as equivalent to the sanctity of an oath. They are substitutes for sworn testimony, and must be such narrative statements as a witness might prop- erly give on the stand if living. People vs. Olmstead, 30 Mich. 435. Dying without issue. The words dying without issue do, in the case of a chattel as well as of a freehold estate devised by will, mean an indefinite failure of issue, and are not to he confined to issue living at the time of the death. Exrs. of Moffat vs. Strong, 10 John. (N. Y.) 15, Dying without issue has a two fold meaning ; the one signifies a dying without issue -at one's death, and the other a dying without issue whenever such issue fails. Gray vs. Bridgsforth, 33 Miss. 344. The words "dying without issue," have acquired a technical meaning when applied to real estate, di- rectly contrary to the plain grammatical sense of the ■words, which is simply, a failure of issue at the death of the person, whose issue if living, would take. But when applied to real estate they import an indefinite failure of issue ; that is, not a failure at the death of the person, but the total extinction of his family ; the deaths of all his descendants to the remotest genera- tion. Den vs. Ailaire, Spencer (N. J.) 9. The words have several senses ; &s, first, a legal sense, when there is a failure of issue in tenant in tail, so as to intitle the remainder-man, or reversioner to a for- inedon in remainder or reverter, which is, wheneyer there is a failure of issue of the body of tenant in tail. Secondly. Another sense of dying without issue is, if the party die without ever having had issue. Thirdly. But by the third sense of a person's dying without issue, is intended, without leaving issue at the time of his death. Pinbury vs. Elhin, 1 P. Wms. 564. The truth is, these words, "dying without issue," are ADJUDGED WORDS AND PHRASES. 215 EARNINGS EASEMENT condemned by the law to be surly, rigid, inflexible and immovable, when they are alone ; but, if they can once be got into sensible company, they lose their gloomy, dogmatical, arbitrary disposition, and both speak and act as the rest of the company do. Keiley vs. Fowler, Wilmot's Notes 321. vide Die leaving no lawful issue. 3 Humph. 649 ; 32 Barb. 332 ; 2 N. , Y. 28 ; 6 S. &E. (Pa.) 31 ; 95 Penn. St. 177 ; 1 Hov. Supp. 124. Earnings (in stat. of exemption.) The gains of the debtor derived from his services or labor -without the aid of capital. Brown vs. ffebard, 20 Wis. 330. Easement is a charge or burden upon one estate (the servient) for the benefit of another (the dominant.) Morrison vs. Marquardt, 24 Iowa 61. An easement is a right which one proprietor has to some profit, benefit or lawful use, out of, or over, the estate of another proprietor. Morrill vs. Mackman, 24 Mich, 284. A service or convenience which one neighbor has of another by charter or prescription, voitliout profit, as a way through his land. Post vs. PearsaU, 22 Wend. (N. Y) 438. (Quoting Jacob's L. Diet. ) It is a privilege without profit, which the owner of one neighboring tenement hath of another, existing in respect of their several tenements, by which the servient owner is obliged to suffer or not to do something on his own land, for the advantage of the dominant owner. Wolfe vs. Frost, 4 Sand/. Ch. (N. Y.J 89. (Quoting Gale & Wheatley's Law of Easements 5. ) A liberty, privilege or advantage in land, existing distinct from the ownership in the soil, and is founded on a grant by deed, or writing, or upon pre- scription, which supposes one, being a permanent interest in another's land, without profit, with a right at all times to enter and enjoy it. Can/kid vs. Ford, 28 Barb. (N. Y.) 340. The right which one man has to use the land of another for a specific purpose. Tabor vs. Bradley, 18 N. Y. 111. An easement is a liberty, privilege or advantage in 216 ADJUDGED WORDS AND PHRASES. EASEMENT EASEMENT land without profit, existing distinct from the owner- ship of the soil. The essential qualities of easements are. First. They are incorporeal. Second. They are imposed upon corporeal property. Third. They con- fer no right to a participation in the profits arising from such property, and, Fourth. There must be two distinct tenements, the dominant to which the right belongs, and the servient upon which the obligation rests. Pierce vs. Keator, 70 N. 7. 421. To constitute an easement there must be two distinct tenements, the dominant, to which the right belongs, and the servient, upon which the obligation is im- posed. Seymour vs. Lewis, 2 Beasley Gh. (N. J.) 450. Easements answer to the predial servitudes of the civil law, and consist of a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not incon- sistent with the general property of the owner. Stevens vs. Bennett, 51 N. Hamp. 330. (Quoting Washb. on Easements 5.) 1 Stoot. Ch. 13 ; 2 Barb. 435 ; 4 Zab. 597 ; 27 Gratt. 87 ; 8 Cush. 147 ; 54 Penn. St. 369 ; 19 Ark. 33 ; 44 Tex. 267 ; 3 Vt. 279 ; 23 Me. 82 ; 6 Heisk. 436. Easement and license (distinguished.) An easement is a liberty, privilege, or advantage in land without profit, existing distinct from the own- ership of the soil, and because it is a permanent in- terest in another's land, with a right to enter at all times and enjoy it, it must be founded upon a grant by writing or upon prescription. But a license is an authority to do a particular act or series of acts upon another's land, without possessing any estate therein. It is founded in personal confidence, and ia not as- signable nor within the statute of frauds. Cook vs. 0. B. & Q. B. Co., 40 Iowa 456. A license, unlike an easement, is not an interest in the land, but only a privilege to go upon the land for a specified purpose, but is revocable at the will of the owner, whilst an easement is irrevocable. Forbes vs. Balenseifer, 74 IU. 185. 15 "Wend. 392. Easement and servitude (distinguished.) A privilege or right attached to one tenement or par- ADJUDGED WORDS AND PHRASES. 217 EAVES-DKOPPERS EJECTMENT eel of land, to enjoy some benefit in or over another tenement or parcel, is called an easement of the dom- inent tenement, to which it belongs, and a servitude upon the servient tenement, or that in which it exists. ' Fetters vs. Humphreys, 3 G. E. G. Eq. (N. J.) 262. Eaves-droppebs. Such as listen under walls, or windows, or the eaves of houses, to hearken after discourse, and thereupon to frame slanderous and mischievous tales. State vs. Pennington, 3 Head (Tenn.) 300. (Quoting 4 Bl. Com; 168. ) Eaves-dropping. It consists in the nuisance of hanging about a dwell- ing house of another, hearing tattle, and repeating it to the disturbance of the neighborhood. State vs. Pennington, 3 Head. (Tenn.) 300. (Qouting 2 Bish. Cr. L. 174. ) Education. In its broadest sense, the word " education " com- prehends not merely the instruction received at school or college, but the whole course of training, moral, intellectual and physical, and with a view to the highest and best interests of minors. Buohs vs. Backer's next friend, 6 Heisk. (Tenn.) 400. , Effects. 1 take effects to be synonimous to loorldly substance, which means whatever can be turned to value ; and, therefore, that real and personal effects mean all a man's property. Hogan vs. Jackson, 1 Gowp. 304. Generally speaking, the word " effects, " in a will, is equivalent to "property," or "worldly substance." Hockley vs. Mawley, 1 Ho v. Supp. 57. 2 M. & S. 456. Either. The word " either " is sometimes used in the sense of one or the other of several things, and sometimes in the sense of one and the other. Ghidester vs. S. & I. S. E. B. W. Go., 59 111. 89. Ejectment is a possessory action to the extent that the right of possession to the premises, on the part of the plain- 218 ADJUDGED WORDS AND PHRASES. EJECTMENT ELECTIVE tiff, at the commencement of the suit, is essential to a recovery. McFarland vs. Goodman, 6 Bissell ( U. S. C. C.J 112. An ejectment is a fictitious remedy to try the title to the possession of lands. Doe. dem. Bristow. vs. Pegge, 1 T. B. 759 n. In Form it is a Trick between two, to dispossess a third by a Sham Suit and Judgment. Fairclaim ex dem^ Fowler vs. Sham Title, 3 Burr. 1294. Election is the internal, free and spontaneous separation of one thing from another, without compulsion, con- sisting in the mind and will. Dash vs. Van Kleeck, 7 John. (M Y.J 501. Election is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims, in cases where there is clear intention of the person from whom he derives one, that he should not enjoy both. Gilman vs. Gilman, 54 Maine, 458. An election is the voting and taking of the votes of the citizens for members to represent them in the gen- eral assembly or other public stations. Com. vs. Brandon, 4 B. Mon. (Ky.) 2. The term " election," in its constitutional sense and meaning, is used to designate a selection by the popu- lar voice of a district, county, town, or city, or by some organized body, in contradistinction to the ap- pointment by some single person or officer. Police Comrs. vs. City (/ Louisville, 3 Bush (Ky.) 602. 13 Cal. 144 ; Dyer 281 a. Election law. An "election law" is one which relates to or regu- lates elections. Falconer vs. Robinson, 46 Ala. 344. Elective franchise. The elective franchise is at once, a right and a trust, conferred by the people of a state, acting in their su- preme and sovereign capacity, upon such members of the body politic as they, in their sovereign discretion, deem should hold and exercise it, having regard to ADJUDGED WORDS AND PHRASES. 219 ELECTOE EMBABGO the protection, both of private rights and of public The State vs. Staten, 6 Coldw. (Term.) 255. Elector is one who has the right to make choice of public officers ; one who has the right to vote. Beardstown vs. Virginia, 76 III. 39. (Quoting Bouvier Z. Diet. ) Elector and yotee (distinguished) vide Voter and elector, &c. Eleemosynary corporations are such as are constituted for the perpetual distribu- tion of the free alms or bounty of the founder of them, to such persons as he may have described. Trustees of Academy vs. King, 12 Mass. 557. A private charity, constituted for the perpetual dis- tribution of the alms and bounty of the founder. Allen vs. McEeen, 1 Sumner (U. S. C. C.J 299. And are of two general descriptions ; hospitals for the maintenance and relief of poor and impotent per- sons, and colleges for the promotion of learning, and the support of persons engaged in literary pursuits. Bobertson vs. Bullions, 9 Barb. (N. Y.J 90. 8 N. Y. 533 ; 1 Ohio St. 643 ; 4 Wheat. 668 ; 27 Barb. 306. Eligible (in constitution of Indiana.) The term eligible * * relates to capacity of hold- ing, as well as capacity of being elected to an office. Carson vs. McPhetridge, 15 Ind. 331. Elopement. To constitute an elopement, the wife must not only leave the husband, but go beyond his actual control. Cogswell vs. Tibbetts, 3 JST. Hamp. 42. Emancipation is an act by which a person who was once in the power of another is' rendered free. Chesley vs. Sherburne, 56 N. Hamp. 303. (Quoting Bouvier L. Diet. ) Embargo is an order of government (generally, but not always, issued in contemplation of hostilities,) prohibiting the departure of ships or goods from some or all of the ports within its dominions. Bodocanachi vs. Elliott, L. B. 8 C. P. 659. 220 ADJUDGED WORDS AND PHRASES. EMBARGO EMBLEMENTS An embargo, ex vi termini, means only a temporary suspension of trade. McBride vs. Marine Ins. Co., 5 John. (N. Y.) 308. 2 Binn. 265. Embezzle. It means the appropriation to one's self, by a breach of trust, of the property or money of another. The term necessarily imports fraud and breach of trust. Allegany Co. vs. Van Campen, 3 Wend. (N. Y.) 53. is the fraudulent appropriation of such property as the statutes make the subject of embezzlement, un- der the circumstances in the statute pointed out, by the persons embezzling, to the injury of the owner thereof. Griffin vs. The State, 4 Texas App. 408. Embezzlement is the fraudulent appropriating to one's own use, the money or goods entrusted to one's care and control by another. Fagnan vs. Knox, 8 Jones & Spencer (N. Y.) 49. Embezzlement is a species of larceny, and the term is applicable in cases of furtive and fraudulent ap- propriation by clerks, servants or carriers of property coming into their possession by virtue of their employment, it is distinguished from larceny, properly so called, as being committed in respect of property which is not at the time in the actual pos- session of the owner. The People vs. Burr, 41 How. Pr. R. (N. Y.J 294. 11 Fed. Hep. 293. Embezzlement and larceny (distinguished) vide Larceny, &c. Emblements. The vegetable chattels called emblements are the corn and other growth of the earth which are pro- duced annually, not spontaneously, but by labor and industry, and thence are called fructus industriales. Reiff vs. Relff, 64 Penn. St. 137. He who has an estate or interest in lands, the dura- tion of which is uncertain in point of time, and he who has such an estate as may perhaps continue until the grain be ripe, shall, if he sows the land, be ADJUDGED WORDS ASfD PHRASES. 221 EMBLEMENTS EMINENT permitted, or his executors or administrators, in case of his decease, to enter upon it at harvest and reap the crop, although in the meantime his estate may have ended, either by the act of God or of the Law. Debow vs. Titus, 5 Hoist. (N. J.) 129. The doctrine of emblements is founded entirely on the uncertainty of the termination of the tenant's estate. Where that is certain there exists no title to emblements. Whitmarsh vs. Cutting, 10 John. ( N. Y.) 361. Embkaceky. Aii attempt by either party, or a stranger, to corrupt, or influence a jury, or to incline them to favor one side by gifts or promises, threats or persuasions, or by instructing them in the cause, or any other way, except by opening and enforcing the evidence by counsel at the trial, whether the jurors give a verdict or not, and whether the verdict be true or false. Gibbs. vs. Dewey, 5 Cowen (N. Y.J 504. 2 Nev. 269 ; 5 Day 274. Eminent domain. The right of the sovereignty to use the property of its members for the public good or public neces- sity. Gilmer vs. Lime Point, 18 Cal. 251. Eminent domain is the public power of making a compulsory purchase of private property for public use ; and payment (either made, or, by agreement of the parties, to be made) is an essential part of the legal idea of a purchase, voluntary or compulsory. Orr vs. Quimby. 54 N. Hamp. 611. Eminent domain is the right which belongs to the society, or to the sovereign, of disposing, in cases of necessity, and for public safety, of all the wealth contained in the state. Caldwell vs. State, 1 Stew. & Port. (Ala.) 379. The fight to resume the possession of private pro- perty for the public use, upon paying a just com- pensation therefor. Bloodgood vs. M. & H. B. B. Co., 18 Wend. (N. Y.) 13. The right of eminent domain is usually understood to be the ultimate right of the sovereign power to ADJUDGED WORDS AIJD PHBASES. EMINENT EMPLOYEE appropriate, not only the public property, but the private property of all citizens within the territorial sovereignty, to public purposes. Charles B. B. vs. Warren B. 11 Peters (U. 8.) 641. Eminent domain and taxation (distinguished.) vide Taxation, &c. Emission of bills of credit is the issuing of paper intended to circulate through the community for its ordinary purposes as money, which paper is redeemable at a future day. Ramsey vs. Cox, 28 Ark. 369. 4 Peters (IT. S.) 432. Emit bills of credit vide Emission, &c. Empanel. To empanel, is the writing the names of a jury on a schedule, by the sheriff or other officer lawfully au- thorized. Lyman vs. The People, 7 Bradivell (III.) 348. 7 How. Pr. K. 443. (Quoting Souvier X. Diet.) Employed. The word "employed," although answered by any present occupation, is more commonly used as signi- fying continuous occupation. Wilson vs. Gray, 127 Mass. 99. To be " employed " in any thing means not only the act of doing it, but also to be engaged to do it ; to be under contract or orders to do it. United States vs. Morris, 14 Peters (U. 8.) 475. 2 Paine 745. Employe^. The word " employee " is from the French, but has become somewhat naturalized in our language. Strictly and etymologically it means " a person em- ployed;" but in practice in the French language, it ordinarily is used to signify a person in some official employment, and as generally used with us, though, perhaps, not confined to any official employment, it is understood to mean some permanent employment or position. Gurney vs. A. & G. W. By. Co.,2N. Y.8.C.(T.& C.)453. The term "employe" is the correlative of "employ- ADJUDGED WORDS AND PHRASES. 228 EMPLOYEE ENDOKSEMENT er," and neither term has either technically or in general use a restricted meaning by which any par- ticular employment or service is indicated. Gurney vs. A. & G. W. By. Co., 58 K Y. 311. Employe^ in the office. A person who is engaged in the performance of the proper duties of an office is an " employe in the office," whether his particular duties are carried on within or without the walls of the building in which the chief officer usually transacts his business. Stone vs. United States, 3 Gourt of Claims B. 262. Enclosed lands. Lands enclosed in a fence, so as to be completely enjoyed in severalty. Tapsell vs. Crosskey, 7 M. & TV. 446. Enclosure imports land enclosed with something more than the imaginary boundary line, that there should be some visible or tangible obstruction, such as a fence, hedge, or ditch, or something equivalent, for the protection of the premises against enoroachment by cattle. Porter vs. Aldrich, 39 Vermont 331. Endeavor to make a eevolt (on a vessel at sea) consists in the endeavor of the crew of a vessel, or any one or more of them, to overthrow the legitimate authority of her commander, with intent to remove him from his command, or against his will to take possession of the vessel by assuming the government and navigation of her, or by transferring their obedi- ence from the lawful commander to some other per- son. United States vs. Kelly, 11 Wheaton (U. S.J 418. Endorse vide Indorse. Endorsed means, that the bill was effectually endorsed so as to transfer the whole property in it. Austin vs. Kotle, 1 Welsh. H. & Gord. 588. Endorsement is an authority to the holder to write over the signa- 224 ADJUDGED WORDS AND PHRASES. '-- ENDOKSEMENT ENEMY ture an order upon the maker, in the nature of a hill of exchange. Lyons vs. Divdhis, 22 Penn. St. 189. The writing of one's name upon or across the back of a bill of exchange, promissory note or check, by ■which the property is assigned or transferred. Richards vs. Waring, 39 Barb. (N. Y.) 45. Endorsement is a term known in law, which, by the custom of merchants, transfers the property of the bill or note to the endorsee, and is usually made on the back of the bill, and must be in writing. Douglass vs. Wilkeson. 6 Wend. (N. Y.) 639. It is in the nature of a warranty that the maker will pay the note upon presentation at maturity, and if not so paid, he, the endorser, will, upon due and reasonable notice of the dishonor of the note, pay the same to the holder. Welsh vs. Ebersole, 1 Matthews (Va.) 657. An endorsement is strictly and literally an order to pay money. Hall vs. Newcomb, 7 Hill (N. Y.) 424. vide Indorsement. 5 Ark. 540 ; 75 Ind. 283. Endow. The word " endow " means giving a benefit to some existing thing ; it supposes something to exist either at the time when the gift is made, or when the en- dowment is to take place ; it has no reference at all to building or purchasing. Edwards vs. Had, 6, Be G. M. & G. 83. Endowment policy. An endowment policy is an insurance into which en- ters the element of life. In one aspect, it is a con- tract payable in the event of a continuance of life ; in the other, in the event of death before the period specified. Brummer vs. Gohn, 86 N. Y. 17. Enemy. An enemy is always the subject of a foreign power who owes no allegiance to ourgovernment or country. United States vs. Grealhouse, 4 Sawyer ( U. S. G. G.J 466. Enemy (in policy) means public enemy, where the whole body of the ADJUDGED WORDS AND PHRASES. 225 ENGLISH ENTIRELY nation is at war with one another : an enemy is he with whom a nation is at war. Monongehela Ins. Co. vs. Chester, 43 Penn. St. 493. 7i Mo. 418. English maeeiage. The phrase, " an English marriage," may refer to the place where a marriage was solemnized, or it may re- fer to the nationality and domicil of the parties be- tween whom it is solemnized, the place where the union so created was to have been enjoyed. Harvey vs. Famie, 6 P. Div. 51. Enjoyment as oe eight means an enjoyment had, not secretly or by stealth, or by tacit sufferance, or by permission asked from time to time, on each occasion, or on many occasions of using it ; but an enjoyment had openly, notori- ously, without any 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 excusing a trespass, shall have been merely lawful so far as to excuse a trespass. Tickle vs. Brown, 4 Ad. & El. 382. Enlistment may signify either the complete fact of entering into the^military service, or the first step taken by the re- cruit towards that end. Tyler vs. Pomeroy, 8 Allen (Mass.) 485. The act of making a contract to serve the government in a subordinate capacity, either in the army or navy. Enchson vs. Peach, 40 Conn. 286. (Quoting Bouwer L. Diet.) A voluntary engagement to serve as a private soldier for a certain number of years. Babbitt vs. United States, 16 Court of Claims 213. Entering shoet vide Short entry. Entieelt satisfied. The term "entirely satisfied" implies a firm and thorough assent of the mind and judgment to the 926 ADJUDGED WORDS AST) PHRASES. ENTRY EQUITABLE truth of a proposition ; and this may exist, notwith- standing a possibility that the fact may be otherwise. People vs. Phipps, 39 Cal. 335. Entry. An entry at common law, is nothing more than an assertion of title by going on the land ; or if that was hazardous by making continual claim. Innerarity vs. Heirs of Mims, 1 Ala. 674. Entry, in regard to estates and rights, is taking possession of lands by the legal owners. Guion vs. Anderson, 8 Humph. (Tenn.) 306. (Quoting BurrUl's L. Did. ) Entry (as applied to the appropriations of land.) It means, that act by which an individual acquires inceptive right to a portion of the unappropriated soil of the country, by filing his claim in the office of an officer known in the legislation of several states by the epithet of an entry-taker, and corresponding very much in his functions with the registers of land- offices, under the acts of the United States. GJwtard vs. Pope, 12 Wheaton ( U. S.J 588. Equitable assets are such as the debtor has made subject to his debts generally, that would not thus be subjected without his act ; and which can be reached only by the aid of a court of equity. Gatlin vs. Eagle Bank, 6 Conn. 243. Equitable assets seem to be those which, from their nature, or the character which has been impressed upon them, cannot be reached or administered by the law, and which consequently, fall within the ex- clusive jurisdiction of equity. Silk vs. Prime, 2 Leading Cases in Eq. 305. Equitable assets and legal assets (distinguished) vide Legal, &c. Equitable construction. A true equitable construction consists in showing by principles of natural good sense, that a particular case is not comprehended in the meaning of the law, because if it were so comprehended, some absurdity would necessarily follow. Smiley vs. Sampson, 1 Neb. 91- ADJUDGED WORDS AND PHRASES. 227 equitable equity Equitable estoppel is where one knowingly, though he does it passively, by looking on, suffers another to purchase land, un- der an erroneous opinion of title, without making known his claim, he shall not afterwards be per- mitted to exercise his legal right against such person. Cochran vs. Harrow, 22 III. 349. Equitable set-oef is where, by reason of the nature of the cross de- mand, there can be no set-off at law. Whyte vs. O'Brien, 1 Sim. & Stu. 551. Equitable waste is that which a prudent man would not do in the management of his own property. Turner vs. Wright, 2 DeGex F. & J. 243. 57 N. T. 611. Equity may be defined natural right or justice, as addressed to the conscience, independent of express or positive law ; a system of jurisprudence the object of which is to render the administration of justice more com- plete, either by the application of rules to cases not provided for by positive law, * * * or by adopt- ing remedies more exactly to the exigencies of par- ticular cases. B'd of Sup., &c. vs. De Toe, 51 How. Pr. R. (N. Y.J 141. Equity has been well defined to be " the correction of that wherein the law (by reason of its universality) is deficient. Lynch vs. Postelthwaite, 1 Martin (La.) 304. Equity jurisprudence may properly be said to be that portion of reme- dial justice which is exclusively administered by a court of equity, as contradistinguished from that portion of remedial justice which is exclusively administered by a court of common law. Jackson vs. Nimmo, 3 Lea (Tenn.J 609. Equity op redemption is considered to be the real and beneficial estate, tantamount to the fee at law. Walker vs. King, 44 Vermont 612. (Quoting 4 Kent Com. 159.) An equity of redemption, it is true, is an equitable 228 ADJUDGED WORDS AJNT) PHRASES. EQUITY EEEOK right or estate ; but it is a right, in equity to relieve the land from the incumbrance, and to be restored to the possession and enjoyment of it, in fee. Yeo vs. Mercereau, 3 Harr. (N. J.) 390. An equity of redemption is -merely an equitable right to redeem the stock upon the payment of the debt for which it is pledged. Stoker vs. Cogswell, 25 Eow.Pr. R. (N. Y.J 272. An equity of redemption has always been considered as an estate in the land, for it was devised, granted or entailed with remainders, and such entail and re- mainders may be barred by a fine and recovery, and therefore cannot be considered as a mere right only, but such an estate whereof there may be seisin ; the person therefore entitled to the equity of redemp- tion i3 considered as the owner of the land, and the mortgage in fee is considered as personal assets. Casborne vs. Scarpe, 1 AtJc. 605. Equity of redemption is descriptive of the mort- gagor's right to go into equity, on the condition of paying his debt, to redeem a forfeited estate and de- mand a conveyance. Kortright vs. Cody, 21 N. Y. 365. 3 Stew. & Port. 407 ; 40 Cal. 226 ; 42 How. Pr. R. 38 ; 8 Barb. 621 ; 24 Me. 193 ; 6 Q. B. Div. 360. Erroneous judgment. An erroneous judgment is one rendered according to the course and practice of the courts, but contrary to law. * * An irregular judgment is one contrary to the course and practice of the courts. Wolfe vs. Davis, 74 N. C. 599. 84 K C. 223. Eeeoe appaeent. By " error apparent " is not meant that the decree is merely erroneous and improper, because based upon erroneous conclusions of fact, drawn from the evi- dence, but a decree that is erroneous in point of law upon the facts assumed. Bur son vs. Dosser et al., 1 Heisk. (Tenn.) 759. Error op fact. An error of fact takes place, either when some fact which really exists is unknown, or some fact is sup- posed to exist, which really does not exist. Mowatt vs. Wright, 1 Wend. (N. Y.) 360. ■ride Mistake of fact. 20 Wend. 176. adjudged words and phrases. 229 error escrow Error of law. When a person is truly acquainted with the existence or non-existence of the facts, but is ignorant of the legal consequences, he is under an error of law. Mowatt vs. Wright, 1 Wend. (N. Y.J 360. Escape. An escape is where one who is arrested gains his liberty before he is delivered by the course of law. Lewis vs. State, 3 Head. (Tenn.) 137. "Whenever a person, once under arrest, is at large, unless by the consent of the creditor, or the author- ity of the law, it is an escape. Adams vs. Turrenthie, 8 Ired. Law (N. C.) 151. An escape is either negligent or voluntary ; negligent, where the party escapes without the consent of the officer ; voluntary, where the officer permits him to go at large. Butler vs. Washburn, 25 N. Hamp. 258. vide Voluntary escape. Escheat. In the Beginning of the Feodal Tenure, this Eight was a strict reversion. The Grant determined by Failure of Heirs ; the Land returned as it did upon the Expiration of any less temporary Interest. 'Twas no Fruit, but the Extinction of Tenure, * * 'twas the Fee returned. Burgess vs. Wheate, 1 W. EL 163. Title to land by escheat originated from and was a consequence of the feudal law, whereby, upon the failure of heirs of the person last seized, who may lawfully take the estate by succession, it fell back or reverted to the original grantor, his descendants, or successors. Hughes vs. The State, 41 Texas 11. Escrow. The delivery of a deed as an escrow, is said to be when one doth make and seal a deed and deliver it unto a stranger, until certain conditions be performed, and then to be delivered to him to whom the deed is made to take effect as his deed. Schoenberger vs. Hackman, 37 Perm. St. 94. An escrow is a deed delivered to a third person, upon a future condition to be performed by either party. 830 ADJUDGED WORDS AND PHKASES. ESCROW ESTATE It must be delivered to a stranger, and the condition mentioned. Baymond vs. Smith, 5 Conn. 559. It is essential to an escrow that it be delivered to a third person, to be by him delivered to the obligee or grantee, upon the happening of some event or the performance of some condition, from which time it becomes an absolute deed. James vs. Vanderheyden, 1 Paige Ch. (N. Y.J 387. 2 John. 253 ; 34 111. 29 ; 77 HI. 480 ; 26 N. Y. 492. JESPLEES. The esplees embrace the " products which the land yields, as the hay of the meadows, the herbage of the pasture land, corn of the arable land, rents, ser- A'ices, PHRASES. 267 FIXTURE FIXTURE by being physically annexed or affixed to the realty, became accessory to it and part and parcel of it. Teaffvs. Hewitt, 1 Ohio St. 527. Fixtures are personal chattels annexed to the free- hold, and which may be severed and removed by the party "who has annexed them, against the will of the owner of the freehold. Picker ett vs. Carson, 8 Iowa 551. Fixtures are such articles of property as are deemed personal, in contradistinction to real, but for their attachment to or connection with the land, or the right of inheritance, or such parts of the land, or re- alty, which, being partly separated or severed, have not changed their character for want of a complete severance in fact, or by contract, and so as, in either case, to change their character. Cook vs. Whiting, 16 III. 482. They are those personal chattels which have been annexed to the freehold, but which are removable at the- will of the person who has annexed them, or his personal representatives, though the property in the freehold may have passed to other parties. Sogers vs. Gillinger, 30 Penn. St. 789. Chattels are articles of a personal nature which have been affixed to the land. To make an article a fix- ture, it must not only be essential to the business of the erection, but it must be attached to it in some way ; at least it must be mechanically fitted, so as in ordinary understanding, to make a part of the bnild- ing itself. Vanderpoel vs. Van Allen, 10 Barb. (N. Y.) 162. Fixtures are a species of property which are the di- viding line between real and personal property, and to decide on which side of the line certain property belongs is often a vexatious question. Ottumwa Mill. vs. Hawley, 44 Iowa 60. A fixture is something in its nature a chattel, but which has been so planted in, or attached to, the soil as to be, in contemplation of law, a part of it, so that it cannot be removed without the consent of the owner, and partakes of all the legal incidents of the freehold. Goodin vs. Elleardsville Hall Assn. 5 Mo. App. Pep. 293. It is a very modern word, and is generally understood ADJUDGED WORDS AND PHRASES. FLOATING FOKCED to comprehend any article which a tenant has a power of removing. Sheen vs. Bichie, 5 M. & W. 182. 8 Iowa 548 ; 20 Wend. 656 ; 6 Nev. 248. Floating debt. By the term, " floating debt," is meant that mass of , lawful and valid claims against the corporation, for the payment of which there is no money in the cor- porate treasury specifically designed, nor any taxation or other means of providing money to pay, particu- larly provided. People vs. Wood, 71 N. T. 374. Flying-switch. A flying-switch is made by uncoupling the cars from the engine while in motion, and throwing the cars on to the side-track, by turning the switch, after the engine has passed it, upon the main track. Greenleaf vs. IE. Cent. B. R. Co., 29 Iowa 39. vide Running switch. Foe cause (removal from office) means that a reason must exist which is personal to the individual sought to be removed, which the law and a sound public opinion will recognize as a good cause for his no longer occupying the place. People vs. Nichols, 19 Hun (N. Y.) 448. 6 Abb. New Cases (N. Y.) 483. FoEBEAEANCE. The giving a further day, when the time originally limited for the return of the loan, has passed. Dry Dock Bank vs. Am. Life Ins. & T. Co., 3 N. T. 355. Minor (Ala.) 232. FOECE AND ASMS. The words force and arms, in an indictment at the common law for a forcible entry, do always mean ac- tual force. Rex vs. Bathurst, Sayer's B. 227' FOECED ALIENATION results from a sale made at the time, and in the man- ner prescribed by law, in virtue of an execution issuing on a judgment already rendered by a court of competent jurisdiction. Dufour vs. Cam/ranc, 11 Martin (La.) 610. 5 Tex. 304 ; 6 Tex. 110. ADJUDGED WORDS AND PHRASES. 269 foeced forcible Forced sale vide Forced alienation. FORCIBLE DETAINER is, where one who enters peaceably, afterwards re- tains his possession by force. Ladd vs. Dubroca, 45 Ala. 421. Forcible entry. A forcible entry is only such an entry as is made with a strong hand, with unusual weapons, an un- usual number of servants or attendants, or with menace of life or limb ; for an entry which only amounts in law to a trespass, is not within the sta- tutes. But an entry may be forcible, not only in respect of a violence usually done to the person of a man, but also in respect to any other kind of vio- lence in the manner of the entry, as by breaking open the doors of a house, whether any person be in it at the time or not ; especially if it be a dwelling house, and though a man enter peaceably, yet if he turn the party out of possession by force or frighten him out of possession by personal threats, or vio- lence, this also amounts to a forcible entry ; but not if he merely threaten to spoil the party's goods, or destroy his cattle, or do any injury which is not of a personal nature. Willard vs. Warren, 17 Wend. (N. Y.J 261. (Quoting Tomlin's L. Diet, tit. Forcible Entry I.) A forcible entry is if one or more persons come wea- poned to a house or land, and violently enter ; or they offer violence to any possessed ; or if they forcibly and furiously expel another out of his possession. Commonwealth vs. Keeper of Prison, 1 Ashm. (Pa.) 145. (Quoting 13 VinerAbr. 180.) If a man enters peaceably into a house, but turns the party out of possession by force, or by threats frighten him out of possession, this is a forcible entry. Edwick vs. Hawlces, 18 Ch. Div. 211. (Quoting Bacon's Abridgment.) Forcible entry and detainer is committed by violently taking or keeping posses- sion of lands and tenements with menaces, force and arms, and without authority of law. Meeder vs. Purdy, 41 III, 285. (Quoting 4 Bl. Com. 148.) 270 ADJUDGED WORDS AND PHRASES. FOEEIGN FOREIGN FOEEIGN AND INLAND BILLS (distinguished.) A foreign bill is one which is drawn by a creditor in one kingdom, upon his debtor in another, and an in- land bill, is one where the drawer and the drawee reside in this kingdom. Lonsdale vs. Brown, 4 Wash. ( TJ. S. C. C.J 153. 3 Cold. 49. Foreign attachment' is a peculiar process to compel the appearance of the non-resident debtor, by distress and sale of the property attached, giving him full time to appear, even after judgment and execution, and contest the demand and even disprove the debt, within a year and a day after security given, without entering spe- cial bail. Fitch vs. Ross, 4 S. & R. (Pa.) 564. 1 Penn. Law Jcyura. 56. FOEEIGN MINISTER. In the diplomatic use of the term, we call every min- ister a foreign minister who comes from another jur- isdiction or government. Cherokee Nation vs. Georgia, 5 Peters (TJ. S.J 56. Foreign plea is where the question is made between the same parties in another case, or between the creditor and a third party bound to pay the same debt ; and, gen- erally, where, by the pleadings, the question of sat- isfaction by the arrest under the ca. sa. comes in col- laterally. Mazyck vs. Coil, 3 Rich (S. C.J 237. FOEEIGN PORT must ex vi termini, mean a port without the United States. King vs. Parks, 19 John. (N. Y.J 377. FOEEIGN VESSEL. The appellation of foreign vessel may sometimes be applied to all vessels not registered or licensed, in reference to the privileges derived from the revenue system ; but it is as certain, that in a variety of in- stances our laws also contemplate ' the use of the words in their appropriate sense, to wit, vessels navi- gating under the flag and with the papers of a foreign sovereign. Schooner Sally and Cargo, 1 Gallison ( TJ. S. C. C.J 59. ADJUDGED WORDS USD PHKASES. 271 FOREIGN rOKGEEY FOREIGN YOYAGE means, in the language of trade and commerce, a voy- age to some port or place within the territory of a foreign nation. Taker et al. vs. United States, 1 Story (U. S. C. C.J 7. Forestalling. By the common law, the buying or contracting for any merchandise or victual coming on the way to market, or dissuading persons from bringing their goods or provisions there, as making the market dearer to the fair trader, was called forestalling. Berton vs. Morris, 10 Phila. B. 361. Forfeit. The word generally means, the taking all right from one person, and transferring all right to another. Walter vs. Smith, 5 B. & A. 439. Forfeiture is a penalty by which one loses his rights and interest in his property. Gosselinh vs. Campbell, 4 Iowa 300. Forfeiture is a loss of goods as a compensation for an offence and injury to the person to whom they are for- feited, as well as a punishment for a misdemeanor. Merchants' Bank vs. Bliss, 21 How. Pr. B. (N. Y.J 370. 1 Robt. (N. X.) 403. (Quoting 2 Bl. Com. 420,) FOEGE is an establishment, or mechanical contrivance, by which iron is made, or manufactured from the ore. Bogers vs. Danforth, 1 Stock. Ch. (N. J.J 296. FOBGED BILL is one to which the signatures of the officers of the bank whence it purports to have been issued, are forged, or otherwise falsely affixed. Eirby vs. State, 1 Ohio St. 187. FOKGEEY is the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, on the foundation of a legal liability. State vs. Young, 46 N. Hamp. 267. Forgery is the fraudulent making or altering of a writing, to the prejudice of another's right. People vs. Fitch, 1 Wend. (N. Y.J 200. 272 ADJUDGED WORDS AND PHRASES. FOKGEET FORTHWITH A false making, a making rnalo animo, of any written instrument for the purpose of fraud and deceit. Com. vs. Ayer, 3 Cush. (Mass.) 152. Forgery is the fraudulent making or alteration of a writing to the prejudice of a man's rights. It may be committed by any writing which, if genuine, would operate as the foundation of another man's liability or the evidence of his guilt. Commonwealth vs. Biles, 3 Phila. R. 351. Forgery, at common law, denotes a false making, which includes every alteration or addition to a true instrument, — a making malo animo, of any written in- strument for the purpose of fraud and deceit. Garner vs. The State, 5 Lea (Tenn.) 215. 37 Tex. 592 ; 114 Mass. 318 ; 16 Minn. 473 ; 17 Wend. 229 j 5 Ala. 15 Ohio 721 ; 29 Iowa 496. Fornication is the carnal and illicit intercourse of an unmarried person with the opposite sex. Montana vs. Whitcomb, 1 Montana 362. Fornication is sexual intercourse between a man, married or single, and an unmarried woman. Hood vs. State, 56 Ind. 271. The commonly accepted legal meaning of fornication is " illicit sexual connection between a man and wo- man, as husband and wife, not being such." The State vs. Shear, 51 Wis. 461. The unlawful carnal knowledge of an unmarried per- son with another, whether the latter be married or unmarried. Territory vs. Corbet, 3 Montana 54. 51 Wis. 461. Forthwith means, with convenient speed and with due diligence. Blackister vs. Potts, 2 Miles (Pa.) 389. The words " forthwith " and " immediately " have the same meaning. They are stronger than the ex- pression "within a reasonable time," and imply prompt, vigorous action, without any delay, and whether there has been such action is a question of fact, having regard to the circumstances of the par- ticular case. The Queen vs. Justices of Berkshire, 4 Q. B. JDiv. 411. vide Immediately. ADJUDGED WOKDS AND PHKASES. 273 iPOETHWITH FRANCHISE Forthwith (in policy of insurance) means immediately, without delay, directly. Inman vs. Western Ins. Co., 12 Wend. (ISf. Y.J 460. It means within a reasonable time, or with reason- able diligence after the fire. Bennett vs. Lycoming Co. Mut. Ins. Co., 67 N. Y. 277. FORWARDING MERCHANTS are a class of persons well known in this country, and usually combine in their business the double character of warehousemen and agents, for a com- pensation to ship and forward goods to their destina- tion. Bush vs. Miller, 13 Barb. (N. Y.J 488. Franchise is a royal privilege or branch of the King's preroga- tive subsisting in the hands of the subject, .and being derived from the crown must arise from the King's grant. Board of Trade vs. People, 91 III. 82. Franchises are special privileges conferred by gov- ernment upon individuals, and which do not belong to the citizens of the country generally, of common right. Bank vs. Earl, 13 Peters (U. S.J 595. In this country it is defined as a privilege of a pub- lic nature, which cannot be exercised without a leg- islative grant. State vs. Weatherly, 45 Mo. 20. A franchise is said to be a right reserved to the peo- ple by the constitution. People vs. Ridgely, 21 III. 69. It consists of the entire privileges embraced in and constituting the grant. Bridgeport vs. N. Y. & N. H. R. R. Co. 36 Conn. 266. Franchises are privileges conferred by grant from government and vested in private individuals. They contain an implied covenant on the part of the gov- ernment not to invade the rights vested, and on the part of the grantees to execute the conditions and duties prescribed in the grant. Thompson vs. People, 23 Wend. (N. Y.J 579. 95 HI. 575 ; 47 Penn. St. 468 ; 5 Wend. 217 ; 45 Md. 379 ; 15 N. Y. 170 ; 1 Oregon 37 ; 39 Tex. 478 ; 28 La. An. 493 ; 25 Conn. 36 ; 36 Conn. 266 ; 47 Conn. 602 : 37 HI. 547 ; 15 John. (N. Y.) 387 ; 27 N. Y. 619. 274 ADJUDGED WOKDS AND PHRASES. fraternity fraud Frateenity. A fraternity is some people of a place united together, in respect of a mystery and business into a company. Cudden vs. Eastwick, 1 Salic. 193. Fbaud is any artifice or deception used to cheat, or deceive. Kennedy's Heirs vs. Kennedy's Heirs, 2 Ala. 593. Fraud, in legal understanding, is the suppressio veri, or the suggestio falsi ; hence there can be no fraud where a party possesses full information in regard to the subject about which he contracts. Sadler vs. Robinson's Heirs, 2 Stew. (Ala.) 523 Any trick or artifice by one, to induce another to fall into, or remain in an error, to his harm. Maker vs. Hibernia Insurance Co., 67 J71 Y. 292. An undue advantage taken of a party under cir- cumstances which mislead, confuse, or disturb the {"ust results of his judgment, and thus expose him to )e the victim of the artful, the importunate, and the cunning. Turley vs. Taylor, 6 Baocter (Tenn.) 390. (Quoting 1 Story Eq. Jur. § 251.) Any deception or artifice used tocircumvent, cheat or defraud another. Savage vs. Gould, 60 How. Pr. R. (N. Y.J 247. An intention to deceive ; whether it be from any ex- pectation of advantage to the party himself, or from ill-will towards the other is immaterial. Haycraft vs. Creasy, 2 East. 108. When the party intentionally, or by design, misrep- resents a material fact, or produces a false impression in order to mislead another, or to entrap or cheat him, or to obtain an undue advantage of him ; in every such case there is a positive fraud, in the truest sense of the terms. Willinh vs. Vanderveer, 1 Barb. (N. Y.J 607. Fraud is a deceitful practice or wilful device, re- sorted to with intent to deprive another of his right, or in some manner to do him an injury. It is al- ways positive ; the mind concurs with the act ; what is done, is done designedly and knowingly. Gardner vs. Heartt, 3 Denio (N. Y.) 236. ADJUDGED WORDS AND PHRASES. 275 FRAUD FRAUD A device, by means of which one party haa taken an unconscientious advantage of the other. People vs. Taylor, 4 Parker Cr. R. (N. Y.J 161. (Quoting Jeremy Eq. Juris. B. 3 pt. 2 358. ) Fraud is falsehood applied to the purpose of injury, and will not in the legal sense of the term exist, un- less there is first an effort to deceive and next a false impression produced. Vulcan Oil Co. vs. Simons et al., 6 Phila. B. 564. By fraud is meant all surprise, trick, cunning, dis- sembling, and other unfair way that is used to cheat any one. Merch. Bank vs. Ohio L. Ins. Co., 1 Disney (Ohio) 472. (Quoting 1 Domat Civ. Law § 1259. ) Fraud is of various kinds, but it generally consists either in the misrepresentation or the concealment of a material fact. Sanson vs. Edgerly, 29 N. Hamp. 354. (Quoting Chit, on Cord. 681.) To constitute fraud, there must be a misrepresenta- tion, or concealment of a fact, peculiarly within the knowledge of the party, who does either — or some device must be used, naturally calculated to lull the suspicions of a careful man, and induce him to forego enquiry into a matter upon which the other party has information, although such information be not exclusively within his reach. Van Arsdale vs. Howard, 5 Ala. 601. Fraud, indeed, in the sense of a court of equity, pro- perly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another. Jones vs. Seioard County, 10 Neb. 158. (Quoting Story Eq. Jur. § 187.) Fraud which will vitiate an instrument, may consist of any artifice practiced upon a person to induce him to execute it when he did not intend to execute such an act. Hendrix vs. The People, 9 Bradwell (III.) 45, 7 Wend. 20 ; 7 Ark. 171 ; 8 Taunt. 642 ; 18 Barb. 433 ; 6 Ga. 614 ; 65 Barb. 461 ; 2 Heisk. 243 ; 6 Baxt. (Tenn.) 386. Fraud, actual and constructive (distinguished.) Actual fraud implies deceit, artifice, trick, design, 276 ^r ADJUDGED WORDS AND PHRASES. FBATJD FREE some direct, active operation of the mind. Constpuctive fraud is indirect, and may be implied from some other act, or omission to act, which may be, in moral con- templation, entirely innocent ; but which, without the explanation, or actual proof of its innocence, is evi- dence of fraud. People vs. Kelly, 35 Barb. (N. Y.J 457. Fraud actionable vide Actionable fraud. Fraud and deceit (distinguished) vide Deceit, &c. Fraud and negligence (distinguished) vide Negligence, &c. Fraudulent concealment (in sale of property) is the intentionally omitting to disclose some bad quality, or some fact in relation to the property, known to the vendor and unknown to the purchaser, which it is material that the latter should know, to prevent being defrauded. Page vs. Parker, 43 N. Hamp. 367. -Fraudulent purposes. By the term, fraudulent purposes, I understand not only actual fraud and dishonesty, but what is denom- inated legal fraud, forbidden by the law without in- volving moral turpitude. Williamson vs. Johnston, 7 Halst. (N. J.) 80. Fraudulent repeesentation (in sale of property) is some recommendation of the article or statement in regard to its good qualities, which is known to be untrue. Page vs. Parker, 43 N. Hamp. 367. Fraudulently. A deliberately planned purpose and intent to deceive and thereby gain an unlawful advantage. Cank, &c. vs. Thayer, 2 McCrary (U. 8. C. G.) 5. Free fishery is an exclusive right to fish in a public river ; a royal franchise derived by royal grant. Yard vs. Carman, Penn. (N. J.J 942. 1 Halst. 87. (Quoting 2 Bl. Com. 39, 40, 417. ADJUDGED WORDS AND PHBASES. -—.-•■ 277 F&EE FKEIGHT Free FROM AVERAGE is equivalent to a declaration of the parties, embod- ied in and made part of their contract, to this effect : We agree, with respect to the corn in question, that no claim shall be made upon the insurance company for any loss or damage which is partial only, whether it be in the nature of a general average loss, or a partial injury of the corn itself. Bargett vs. Orient Ins. Co., 3 Bosworth (N. Y.) 397. Freehold. A freehold is an estate in real property, of inherit- ance, or for life, or the term by which it is held. Gage vs. Scales et al., 100 III 221. Freeholder is one who holds land in fee, or for life, or for some indeterminate period. State vs. Badland, 75 N. C. 13. 15 Ind. 353 ; 3 N. H. 86. Freely (in acknowledgment of deed,) means, without constraint, coercion, or fear of injury from the husband, under whose power and control she is legally supposed to be. Meriam vs. Rarsen, 2 Barb. Ch. (N. Y) 269. Freeman. (1) One in the possession of the civil rights enjoyed by the people generally ; (2) An allodial proprietor ; one born or made free of certain municipal immuni- ties or privileges. McCafferty vs. Guyer, 59 Penn. St. 116. Freight, in the common acceptation of the term, means the J)rice for the actual transportation of goods by sea rom one place to another ; but, in its more extensive sense, it is applied to all rewards or compensation paid for the use of ships, including the transporta- tion of passengers. Denoon vs. Assurance Co. L. R. 7. C. P. 348. Freight is that with which anything is fraught or laden for transportation. Penn. R. R. Co. vs. Sly, 65 Penn. St. 211. Freight is the hire which is earned by the transpor- tion of goods. Poland vs. Brig Spartan, 1 Ware ( V. S. D. C.J 138. 278 ADJUDGED WORDS AND PHRASES. FEEIGHT FUND The term " freight " has several different meanings f- as the price to be paid for the carriage of goods ; or for the hire of a vessel under a charter party or otherwise ; and sometimes to designate goods car- ried. Lord vs. Neptune Ins. Co., 10 Gray (Mass.) 112. Freight is the profit earned by the ship-owner in the carriage of goods on board his ship ; and an insur- ance upon freight is an insurance made in order to secure that profit to the ship-owner, in case he is prevented by any of the perils insured against from actually earning such profit. Forbes vs. Aspinall, 13 East 325 4 Wash. (TJ. S. C. C.) 123 ; 1 Mason (U. S. C. C.) 12 ; 8 Bos-w. (N. Y.) 563. Feivolous ANSWER is one that shows no defence, conceding all that it al- leges to be true. Brown vs. Jenison, 3 Sandf. (N. Y.) 732. Fkivolous plea is a pleading interposed for delay, and its frivolous character indicates bad faith in the pleading. f tl Blade vs. Cartmell, 10 B. Mon. (Ey.) 193. Held. As a technical term, "held" embraces two ideas — that of actual possession of some subject of dominion or property, and that of being invested with legal title or right to hold or claim such possession. Witsell vs. Charleston, 7 S. C. 99. Herbage is the green pasture and fruit of the earth provided by nature for the food or bite of cattle. Simpson vs Coe, 4 N. Samp. 303. ( Quoting Jacob's L. Diet.) Hereditament is a very comprehensive word whereby everything passes which may be inherited, corporeal or incor- poreal, real, personal and mixed. Canal Commissioners vs. People, 5 Wend. (N. Y.) 453. Hereditament includes whatever may be inherited, and extends to a movable, such as an heir-loom mean such of the issue or offspring as may by law in- herit. ADJUDGED WOKDS AND PHRASES. 290 HEREDITAMENT HIGHWAY and even to the condition of a bond, which may des- cend to a man from his ancestor. Mitchell vs. Warner, 5 Conn. 518. The settled sense of that word is to denote such things as may be the subject matter of inheritance, but not the inheritance itself, and cannot therefore, by its own intrinsic force enlarge an estate, prima facie, a life estate into a fee. Moore vs. Ben, 2 B. & P. 251. 28 Barb. 338 ; 13 N. Y. 159. Hereditaby SUCCESSION vide Descent. Heretofore disposed op (in will.) Heretofore, has relation to the several preceding par- agraphs in the will — disposed of, means an effectual transfer, or disposition by the will, which could not be, until the death of the testator. B. Crane &c. Heirs of J. Crane, 2 Boot (Conn.) 488. High crimes and misdemeanors are such immoral and unlawful acts as are nearly al- lied and equal in guilt to felony, yet owing to some technical circumstance, do not fall within the defini- tion of felony. State vs. Knapp, 6 Conn. 417. (Quoting 1 Bass, on Or. 61. ) High sea Any waters on the sea coast without the boundaries of low-water mark. United States vs. Kessler, Baldwin (U. S. C. C.J 35. vide Main sea. High water. The term high water, when applied to the sea, or to a river where the tide ebbs and flows, has a definite meaning. The line is marked by the periodical flow of the tide, excluding the advance of waters above this line in the one case by winds and storms, and in the other by freshets or floods. Howard vs. Ingersoll, 13 Howard (U. S.) 423. Highway. A highway is a passage open to all the citizens of the state, to go and return, pass and re-pass, at their 800 , ADJUDGED WORDS AND PHRASES. HIGHWAY HOME pleasure. It is an easement which the public have in the land. Starr vs. C. & A. R. B. Co., 4 Zab. (N. J.) 597. The word " highway " is a term applicable to all great roads leading from town to town, to market and to public places, and denotes a way that is com- mon to all passengers. Harding vs. Medway, 10 Met. (Mass.) 469. A highway is nothing but an easement, comprehend- ing merely the right of all the individuals in the com- munity to pass and re-pass, with the incidental right in the public to do all the acts necessary to keep it in repair. Peek vs. Smith, 1 Conn. 132. 50 Ala. 88 ; 34 Mich. 216 ; 11 Barb. 396 ; 33 How. Pr. B, 4A. Highways are public roads, which every citizen has a right to use. Wild vs. Deig et al., 43 Ind. 458. Hitherto (increased their annuities.) This term "hitherto," qualifies and limits what otherwise might appear either general or uncertain, and restrains the increase to that period of time then elapsed, and prevents its reaching the future. Mason vs. Jones, 13 Barb. (N. Y.J 479. HOLDEN TO ACCOUNT FOE means not merely to " render an account of," but "to be responsible for ; " it stands in opposition to the right of appropriation to one's own use and benefit. Thomas vs. Mohan, 4 Greenl. (Me.) 520. Hoider IN GOOD faith (of a note.) A holder in good faith ordinarily means one who holds the note before due, for value advanced at the time of the transfer and without notice of any de- fense. Williams vs. Brown, 4 Abb. Ct. of App. Dec. (N. Y.) 610. Home. When a person takes up his abode in a given place, without any present intention to remove there- from, such place of abode becomes his residence or home, and will continue to be his residence or ADJUDGED WORDS AM) PHRASES. 801 HOMESTALL HOMOLOGATE home, notwithstanding temporary personal absences, until he shall depart with intention to abandon such home. Warren vs. Thomaston, 43 Blaine 418. vide Residence ; Domicil ; Place of abode. HOMESTALL. The word " homestall " is used in the ancient law to designate the mansion house. Dickinson vs. Mayer, 11 Heisk. (Tenn) 521. Homestead means nothing more than home place. Woodman vs. Lane, 7 N. Hamp. 245, It represents the dwelling house, at which the family- resides, with the usual and customary appurtenances, including outbuildings of every kind necessary and convenient for family use and lands used for the purposes thereof. Gregg vs. Bostwick, 33 Cal. 227 ' It is the land where is situated the dwelling of the owner and family. Bunker vs. Locke, 15 Wis. 638. 36 N. H. 166 ; 51 N. H. 266 ; 63 Ala. 238 ; 46 N. H. 52 ; 31 Ark. 468; 48 Tex. 37 ; 37 Cal. 179. Homestead eight is a quality annexed to land whereby an estate is ex- empted from sale under execution for debt. Littlejohn vs. Egerton, 77 N. C. 384. Homicide. The term, in its largest sense, is generic, embracing every mode by which the life of one man is taken by the act of another. Com. vs. Webster, 5 Gush. (Mass.) 303. The destruction of the life of one human being, either by himself or by the act, procurement, or culpable omission of another. The People vs. Vanderpool, 1 Mich. Nisi Pr. 269. 4 Phila. E. 196: Homologate. To homologate is to say the like, homos logos similiter dicere. Viales vs. Gardenier, 9 Martin (La. J 325. 302 ADJUDGED WORDS AND PHRASES. honorarium householder Honorarium is a voluntary donation, in consideration of services which admit of no compensation in money. Advo- cates are deemed (God save the mark!) to practice for honor or influence. McDonald vs. Napier, 14 Georgia 105. Hotel. The word is of French origin, being derived from hostel, and more remotely from the Latin word hospes, a word having a double signification, as it was used by the Romans both to denote a stranger who lodges at the house of another, as well as the master of a house who entertains travellers or guests. * * A hotel, in this country, is what in France was known as a hotelerie, and in England as a common inn of that superior class usually found in cities and large towns. Cromwell vs. StepJiens, 2 Daly (N. Y.J 11,21. House is a place of dwelling or habitation. • Schenck vs. Campbell, 11 Abbott's Pr. B. (N. Y.J 295. A permanent building in which the tenant, or the owner and his family, dwells or lies (lives ?) Chapman vs. Royal B'k of Scotland, 7 Q. B. Div. 140. House (one branch of a legislature) means the legislative body or quorum to do business, comprising a majority of the members elected to and qualified to act as members of such body. Southworth vs. P. & J. B. B. Co. 2 Mich. 288. Householder means the head, master, or person who has the charge of and provides for a family, and does not ap- ply to the subordinate members or inmates of the household. Bowne vs. Witt, 19 Wend. (N. Y.J 475. A person having and providing for a household, is a householder. Griffin vs. Suthertand, 14 Barb. (N. Y.J 458. The head of a family occupying a house. Sullivan vs. Canan, 1 Wilson (Indianapolis) 534. 37 Ala. 113 ; 2 Texas App. 448 . 19 Wend. 475 ; 57 Miss. 288 ; 18 John. 400. ADJUDGED WOKDS AND PHRASES. 803 hypothecation illegality Hypothecation. The right which a creditor has in a thing of an- other, which right consists in the power to cause that thing to be sold, in order to have the debt paid out of the price. The Young Mechanic, 2 Curtis. (U. 8. C. C.J 410. 42 Texas 247. I. 0. u. is merely an acknowledgement of the debt, and neither a promissory note or a receipt. Fisher vs. Leslie, 1 Esp. 427. Idiocy is that condition in which the human creature has never had, from birth, any the least glimmering of reason ; and is utterly destitute of all those intel- lectual faculties by which man, in general, is so emi- nently and peculiarly distinguished. It is not the condition of a deranged mind, but that of a total absence of all mind. Owing' s Case, 1 Bland. Clt. (Md.) 386 Idiocy, sometimes called fatuitas. is usually a c*on-. genital disorder, consisting in a defect or sterility of the intellectual powers, not like lunacy or mad- ness, which is a perversion of intellect. Steiuart's Exrs. vs. Lispenard, 26 Wend. (N. Y.J 314. 13 Mich. 436. Idiot. A person who has been defective in intellectual powers from the instant of his birth, or at least before the mind had received the impression of any idea. Crosswell vs. People, 13 Mich, 435. An idiot, according to judicial definition, is one who, from his nativity, by a perpetual infirmity, is non compos mentis. Ex parte Brornfield, 1 Hov. Supp. 184. Illegal gaming implies gain and loss between the parties by betting, such as would excite a spirit of cupidity. People vs. Sergeant, 8 Coiuen (N. Y.J 141. Illegality can be affirmed only of radical defects, and signifies that which is contrary to the principles of law, as 804 ADJUDGED WORDS ATNT) PHRASES. ILLEGITIMATE IMMATEBIAL distinguished from rules of proceedure. It denotes a complete defect in the proceedings. Ex parte Gibson. 31 Cal. 625. 67 Mo. 642. Illegitimate. Children born out of lawful wedlock are " illegiti- mate." Brown vs. Belmarde, 3 Kansas 52. Imbecility is that feebleness of mind which, without depriving entirely the person of the use of his reason, leaves only the faculty of conceiving ideas the most common, and which relate almost always to physical wants and habits, Delafield vs. Parish, 1 Bed/. Surr. Rep. (N. Y.J 115. Immateeial aveement (in pi.) is one, alleging with needless particularity or unne- cessary circumstances, what is material and necessary, and which might properly have been stated more gen- erally, and without such circumstances or particulars; or in other words, it is a statement of unnecessary particulars in connection with, and as descriptive of what is material. Pliarr et al. vs. Bachelor, 3 Ala. 245. Immateeial issue (in pi.) is, where a material allegation in the pleadings is not traversed, but an issue is taken on some point that will not determine the merits of the cause, and the court is often at a loss for which of the parties to give judgment. Bennett vs. Holbech, 2 Saund. 319 n 6. One which, passing by what is material in the pre- vious adverse pleading, is joined on an immaterial point ; that is a point not decisive of the right of the cause. Wooden vs. Waffle, 6 How. Pr. R. (N. Y.J 151. Immateeial mattee (in pi.) is anything stated therein, which, if established on the trial, would not entitle a party to, or aid him in obtaining, the relief demanded, or in sustaining the defence pleaded. Johns vs. Pattee, 55 Iowa 661. ADJUDGED WORDS AND PHRASES. 805 immediate impairing Immediate, is that which is produced directly by the act to which it is ascribed, without the intervention or agency of any distinct, intermediate cause. Fitch vs. Bates, 11 Barb. (N. Y.J 473. Immediate danger By immediate danger the law means such as is then and there about to be inflicted. Bailey vs. Com., 11 Bush. (Ky.) 690. Immediately The word immediately, although in strictness it ex- cludes all mean Times, yet to make good the Deeds and Intents of Parties, it shall be construed such convenient Time as is reasonably requisite for doing the Thing. Pybus vs. Milford, 2 Levinz 77. vide forthwith. 8 M. & W. 288 ; 43 "Wis. 318. Immemorial use is a use time out of mind, or from a time whereof the memory of man is not to the contrary. Millee vs. Garlock, 8 Barb. (N. Y.J 154. Immunities are rights of exemption only — freedom from what otherwise would be a duty or burden. Lonas vs. The State, 3 Heisk. (Term.) 306. Impairing the obligation op a contract. Any law, which enlarges, abridges, or in any manner changes the intention (of the parties to the contract) when it is discovered, necessarily impairs the con- tract itself, which is but the evidence of that inten- tion. Ogden vs. Saunders, 11 Wheaton (JJ. S.) 256. Any law impairs this obligation which renders the contract in itself less valuable or less enforcible, whe- ther by changing its terms and stipulations, its legal qualities and conditions, or by regulating the remedy for its enforcement. Rutland vs. Copes, 15 Rich. (S. C.) 105. Whether the statute operates to debt or the remedy, the result is the same. Cocke vs. Hoffman, 5 Lea (Tenn.) 112. vide Obligation of contracts. 306 ADJUDGED WORDS AND PHRASES. IMPARTIAL IMPERTINENT Impartial JUEY. One that is as free from impressions unfavorable to the parties' rights, as from malice or ill will towards his person. Smith vs. Eames, 4 III. 82. Impanel vide Empanel. Impeach. The word " impeach is capable of two significations ; one is the charge or accusation of want of veracity, the other is the establishment of the charge. Wliite vs. McLean, 47 How. Fr. B. (N. Y.) 199. Impeachment op waste signifies a restraint of committing waste upon lands or tenements, or a demand or compensation for waste done by a tenant, who has but a particular estate in the lands granted and therefore^no right to commit waste. Sanderson vs. Jones, 6 Florida 480. Imperceptible (accretion.) The word " imperceptible " as connected with the words " slow and gradual " must be understood as expressive only of the manner of the accretion, as the other words undoubtedly are, and as meaning imper- ceptible in its progress, not imperceptible after a long lapse of time. Atty. Gen. vs. CJiambers. 4 De G. & J. 71. 3 B. and C. 23. Impertinence (in pi.) consists in setting forth what is not necessary to be set forth, as where the pleadings are stuffed with long recitals, or with long digressions of matters of fact which are totally immaterial. Hood vs. Inman, 4 John. Ch. (N. Y.) 438. Impertinent and scandalous matter (in pi. distinguished) Facts not material to the decision are impertinent, and, if reproachful, they are scandalous ; and perhaps the best test by which to ascertain whether the mat- ter be impertinent, is to try whether the subject of the allegation could be put in issue, and would be matter proper to be given in evidence between the parties. Woods vs. Morrett, 1 John. Oh. (K Y.J 106. ADJUDGED WORDS AND PHRASES. 307 implead implied Implead. To sue or prosecute by due course of law. People vs. Clarice, 9 N. Y. 368. (Quoting Bouvier L. Diet. ) i Implements. Things necessary in any trade or mystery, without which the work cannot be performed ; also the fur- niture of a house, as all household goods, imple- ments, &c. Coolidge vs. Choate, 11 Met. (Mass.) 82. (Quoting Jacob's L. Diet. ) TufP TTRn and express tbusts (distinguished) vide Express and implied, <&c. Implied contracts are such as reason and justice dictate, and which, therefore, the law presumes that every man under- takes to perform. Thompson vs. Woodruff", 1 Coldw. (Tenn.) 410. They are such as reason and justice dictate, and which the law presumes that every man has con- tracted to perform ; and, upon this presumption, makes him answerable to such persons as suffer by his non-performance. The People vs. Bennett, 6 Abbott's Pr. R. (N. Y) 348. (Quoting 3 Bl. Com. 359.) An implied contract is co-ordinate and commensurate with duty, and whenever it is certain that a man ought to do a particular thing, the law supposes him to have promised to do that thing. Illinois C. R. R. Co. vs. U. S., 1G Ct. of Claims 333. vide Contract implied. 28 N. Y. 387. Implied malice. When death ensues from some unusual act of aggres- sion, or enormous act of cruelty, though there ba no previous grudge or enmity, as the killing an office? - in the discharge of his duty, or the administration of poison, or killing without any or considerable provo- cation: because, no person, unless possessed of an abandoned heart, would deprive a fellow being of life, upon slight, or without apparent cause. The State vs. Town, Wright (Ohio) 77. vide Malice implied. 808 ADJUDGED WORDS AND PHRASES. IMPLIED IMPORTATION TfflTTlFD TEUSTS are those which without being expressed are deduci- ble from the nature of the transaction, as matters of intent ; or which are superinduced upon the trans- action, by operation of law, as matters of equity, in- dependently of the particular intention of the parties. y Brown vs. Cherry, 56 Barb. (N. x.) 640. (Quoting Bouvier L. Diet. tit. Trust.) Implied trusts are of two classes ; first, those which stand upon the presumed intention of the parties; and second, those which stand independent of any such intention, and are forced upon the conscience of the party by the operation of law. Penman vs. S locum, 41 iV. T. 58. (Quoting Story Ea. Jur. § 1195.) Trusts that the courts imply from the words of an instrument, where no express trust is declared, but such words are used that the court infers or implies that it was the purpose or intention of the parties to create a trust. Burks vs. Burks, 7 Baxter (Tenn.) 355. (Quoting Perry on Trusts § 25. ) Import (commercially) is to "bring" from a foreign jurisdiction into this jurisdiction, merchandise not the product of this country. The Steamboat Forrester, 1 Newberry Adm. 94 The word import, in a commercial sense, means the goods or other articles brought into this country from abroad — from another country. License Cases, 5 Hoiuard (U. S.) 945. The term imports means not only the " act of impor- tation," but the "articles imported." Wynne vs. Wright, 1 Dev. & Bat. (N. C.) 23. 10 Rich. (S. 0.) 486 ; 8 "Wall. (U. S.) 131. Impoktation. To constitute an importation so as to attach the right to duties, it is necessary not only that there should be an arrival within the limits of the United States, and of a collection district, but also within the limits of some port of entry. Arnold vs. United States, 9 Cranch ( t B.) 120. ADJUDGED WORDS AND PHRASES. 809 impost impunity Impost. An impost, or duty on imposts, is a custom or a tax levied on articles brought into a country. Brown vs. Maryland, 12 Wheaton (If. S.J 437. Impost is a duty on imported goods and merchan- dise. In a larger sense it is any tax or imposition. Pacific Ins. Co. vs. Souk, 7 Wallace (U. S.J 445. U Mo. 335 ; 8 Wall. (U. S.) 131. Impkisonment is the detention of another against his will, depriving- him of the power of locomotion. United States vs. Bermer, Baldwin ( U. S. C. C.J 239. An imprisonment is any forcible detention of a man'a person, or control over his movements. Laiosan vs. Buzines, 3 Harr. (Del.) 418. Words are sufficient to constitute an imprisonment, if they impose a restraint upon the person, and the plaintiff is accordingly restrained ; for he is npt obliged to incur the risk of personal violence and insult by resisting, until actual violence is used. Pike vs. Hanson, 9 N. Hamp. 493. Impkovements (in N. J. road act.) The word improvements is a legal and technical word, and means inclosures, or inclosed fields : lands fenced in, and thus withdrawn and separated from the wastes or common lands. The State vs. Hopping et al, 3 Harr. (N. J.) 424. Impkovidence (in act for removal of execution.) The improvidence which renders a man incompetent, signifies want of care and foresight in the manage- ment of whatever may be put under his control. Emerson vs. Bowers, 14 Barb. ( N. Y.J 660. The term evidently refers to habits of mind and con- duct which become part of the man, and render him generally, and under all ordinary circumstances, unfit for the trust or employment in question. Emerson vs. Bowers, 14 N. Y. 454. Impunity, which applies to something which may be done without penalty or punishment, comes from the Latin word impunis, which is a derivative from the S10 ADJUDGED WORDS AND PHRASES. IS FORM INCOME ■word poena, with the prefix in, and means without punishment or penalty. Dillon vs. Rogers, 36 Texas 153. In form following, to-wit means a copy. Gardner vs. State, 25 Md. 151.' In the presence of the testator. The words " in the presence of the testator " are usu- ally and in reference to ordinary men who can see, defined to mean within his sight, at reasonable prox- imity. Bay vs. HiU, 3 Strobh. (S. G.J 300. In the same manner means by similar proceedings, so far as such pro- ceedings are applicable to the subject matter. Phillips vs. County Commissioners, 122 Mass. 260. Incest means, in all cases, illicit intercourse between per- sons within the degrees of consanguinity within which marriages are forbidden by law. Daniels vs. People, 6 Mich. 386. 3 Montana 55. Incident. An incident is that which follows the more worthy or principal Meal vs. East Tenn. College, 6 Terg. (Tenn.) 206. Income means the gain which proceeds from property, labor and business. Sims's Appeal, 44 Penn. St. 241. The income of an estate means nothing more than the profit it will yield, after deducting the charges of management. The rents and profits of an estate, the income or net income of it, are all equivalent ex- pressions. Andrews vs. Boyd, 5 Greenl. (Me.) 203. 7 Hill (N. T.) 289 ; 4, Abb. New Cases (N. Y.) 400 ; 1 Wilson (Ind.) 210. Income and profits (distinguished.) " Profits " and " income " are sometimes used as syn- onymous terms ; but, strictly speaking, " income " means that which comes in, or is received from any ADJUDGED WORDS AND PHRASES. 811 INCOMPATIBLE INCUMBENT business or investment of capital, without reference to the outgoing expenditures ; while " profits " gen- erally mean the gain which is made upon any busi- ness or investment when both receipts and payments are taken into account. People vs. Supervisors of Niagara, 4 HUl (N. Y.J 23. Incompatible offices. Offices are said to be incompatible and inconsistent so as to be executed by the same person, first, when from the multiplicity in them, they cannot be exe- cuted with care and ability ; or, second, when, their being subordinate and interfering with each other, it induces a presumption that they cannot be executed with impartiality and honesty. People vs. Green, 46 How. Pr. B. (N. Y.J 170. Incompetency (as applied to a guardian.) The word " incompetency," as applied to guardian- ship, is one, in my judgment, of broad signification and comprehensiveness, like the wordmnsuitableness, as applied to a trustee. In my opinion, it has rela- tion, not merely to the mental condition and moral status of a testamentary guardian, but imports that, in the interests of the child in respect of nurture, care, education, and safety, the court may take into consideration the relative, social and pecuniary posi- tion of the guardian and the infant. Damarell vs. Walker, 2 Bedf. Surr. Bep. (N. Y.J 205. Inconsistent offices vide Incompatible offices. Incorporation and corporation (distinguished.) The one is a political institution ; the other only the act by which that institution is created. Toledo Bank vs. Bond, 1 Ohio St. 642. as applied to land, or to the soil, means that which grows out of it, or that which is produced by the cultivation of it. He Blane vs. Lynch, 23 Texas 27. Incumbent (of an office) is one who is legally authorized to discharge the duties of that office. State vs. McCollister, 11 Ohio 50. 312 ADJUDGED WORDS AND PHRASES. incumbkance indefinite Incumbrance is a permanent right which may wholly defeat the plaintiff's title. It is a weight on his land, which must lessen its value. Prescott vs. Trueman, 4 Mass. 630. It is an estate or interest in, or right to, the land granted, to the diminution of its value. Newcomb vs. Fiedler, 24 Ohio St. 466. Every right to or interest in land which may subsist in third persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance, is an incumbrance. Kelsey vs. Remer, 43 Conn. 138. (Quoting Bawle on Cov'ts of Title 94.) An embarassment of an estate or property so that it cannot be disposed of without being subject to it. Kelly vs. Stephens, 39 Georgia 468. (Quoting Bouvier L. Vict.) An incumbrance is a lien upon an estate. DePeyster vs. Murphy, 7 Jones and Spen. (N. Y.) 264. As applied to an estate in land, it may fairly include whatever charges, burdens, obstructs, or impairs its use, or prevents or impedes its transfer. Anonymous. 2 Abbott's New Cases (N. Y.J 63. 46 Conn. 510 ; 51 Me. 72. Incurable infirmity. An infirmity, incurable in its nature, is one which, in consequence of what constitutes it what it is (which we have agreed to call its nature) admits of no cure. St. Homes vs. Pore, 10 Martin (La.) 208. Indebtedness is a word of large meaning. It is used to denote almost every kind of pecuniary obligation originating in contract. Merriman vs. Social Manuf. Co., 12 R. I. 179. Indecency. An act against good behavior and a just delicacy. McJunkins vs. State, 10 Ind. 144. (Quoting Bouvier L. Diet.) Indefinite failure of issue means a failure of issue whenever it shall happen sooner or later, without any fixed, certain or definite period within which it must happen. It means the ADJUDGED WORDS AND PHRASES. 313 INDEFINITE INDICTMENT period when the issue or descendants of the first taker shall become extinct, and where there is no longer any issue of the issue of the grantee, without reference to any particular time or any particular event ; or, in the words of the statute, de donis, re- ferring to the first taker, if his issue shall/ail. Hall vs. Chaffee, 14 N. Hamp. 220., 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 any partic- ular time or any particular event. Huxford Admr. vs. Milligan, 50 Ind. 546. vide Definite failure, &c. 16 John. 400 ; 33 Miss. 344 ; 20 Penn. St 513 ; 1 Harr. & GiU. (Md.) 126 ; 19 N. H. 84. Indemnify (in bastardy act) does not mean that the parish shall make a profit, but shall be saved from loss. Egerton vs. Brownloio, 4 Ho. Lord's Cases 107. Indentuke. An indenture, in the language of the law, is a deed, that is, a writing sealed and delivered. It takes its name from being indented, or cut, on the top, or on the side, either by a waving line or a line of inden- ture, instar dentrium, so as to fit or aptly join its coun- terpart, from which it is supposed to have been sep- arated. Hopewell vs. Amiuell, 1 Halst. (N. J.) 175. Indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to and presented on oath by a grand jury, and by assent of twelve at least. Goddard vs. State, 12 Conn. 452. (Quoting 4 Bl. Com. 302. ) An indictment is a plain, brief, and certain narrative of an offence. Alderman vs. People, 4 Mich. 424. An indictment is a brief narrative of the offence charged ; it must contain a certain description of the crime, and the facts necessary to constitute it. The People vs. Gates, 13 Wend. (N. Y.J 317. Indictment is an an accusation made in a prescribed logal form, upon evidence, by a number of author- 314 ADJUDGED WORDS A1VD PHRASES. INDICTMENT INDOESEMENT ized persons, of some criminal offence against the peace of the people, and when preferred in court, becomes a record for purposes of criminal prosecu- tion. The People vs. Bestenblatt, 1 Abbott Pr. R. (N. Y.) 269. An indictment is an accusation at the suit of the king, (or state,) by the oaths of twelve men, (at the least, and not more than twenty-three,) of the same county wherein the offence was committed, returned to in- quire of all offences in general in the county, deter- minable by the court in which they are returned, and finding a bill brought before them to be true. Ex parte Slater, 72 Mo. 106. (Quoting 5 Bacon Abr. 48. ) 4 Col. 202 ; 11 Ohio 71 ; 19 Ohio St. 255 ; 24 Wend. 570 ; 9 Yerg. 335 ; 3 Heisk. 478 ; 9 Barb. 675. Indictment and information (distinguished) vide Information, &c. Indifferent (a juror standing.) "What is meant by a person standing indifferent? Manifestly, 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, in the mind of the juror, calculated to operate upon him ; that he comes to the trial with a mind uncom- mitted, and prepared to weigh the evidence in im- partial scales. People vs. Vermilyea, 7 Cowen (N. Y.J 122. Indorse ex vi termini, means putting a name on the back of any instrument or paper. Hartwell vs. Hemmenway, 7 Pick. (Mass.) 119. Indorsement. This is a technical, mercantile term, denoting the act by which the legal title to that particular class of bills of exchange and promissory notes which are drawn payable to order, is transferred. Clark vs. Sigourney, 17 Conn. 519. Indorsement is the assignment of a debt due to the payee, and which by the custom of trade, passes the whole interest in the debt so completely, that the holder of the bill for a valuable consideration, with- ADJUDGED WORDS AND PHRASES. 315 INDORSEMENT INEVITABLE out notice, is not affected even by the crime of the person from whom he received the bill. Mason vs. Lickbarrow, 1 H. Bl. 360. The primitive and popular sense of something writ- ten on the outside or back of a paper on the opposite side of which something else had been previously written, should be given to the word whenever the context shows it to be proper, or it is necessary to give effect to the pleading or other instrument in which it may occur. Powell vs. Com., 11 Gratt. (Va.) 830. vide Endorsement. 39 Barb. 45. Ineligible means as well disqualification to hold an office, as dis- qualification to be elected to an office. State vs. Murray, 28 Wis. 99. Inevitable accident That which a party charged with an offence could not possibly prevent, by the exercise of ordinary care, caution and maritime skill. Lucas vs. Steamboat Sivann, 6 McL. (U. S. C. G.J 288. Inevitable accident is now used as a phrase synony- mous with "the act of God." Neal vs. Saunderson, 2 Smedes & Marsh. (Miss.) 576. Inevitable accidents are restricted to such as come from a force superior to all human agency, either in their production or resistance. L. 0. & Lex. B. B. Co. vs. Hedger, 9 Bush. (Ky.) 647. (Quoting 2 Bedf. on Railways, ch. 26, p. i, ) Inevitable accident (maritime) is where a vessel is pursuing a lawful avocation in a lawful manner, using the proper precautions against danger, and an accident occurs. The Grace Girdler, 7 Wallace (U. S.) 203. A collision which occurs when both parties have en- deavored by every means in their power, with due care and caution, and ,a proper display of nautical skill, to prevent the accident. , Amoskeag M. Go. vs. St. Fy. BL, 1 Cliff. ( U. S. C. C.J 412. Inevitable accident and act op God (distinguished.) That may be an inevitable accident which no fore- sight or precaution of the carrier could prevent ; but 31G ADJUDGED WORDS AND PHRASES. INFAMIA INFEB the phrase ' act of God ' denotes natural accidents that could not happen by the intervention of man, as storms, lightnings and tempests. Bedpath vs. Vaughan, 52 Barb. (N. Y.) 499. 29 N. Y. 117. I Infamia juris By infamia juris is meant infamy established by law as the consequence of crime ; infamia facti is where the party is supposed to be guilty of such crime, but it has not been judicially proved. Com. vs. Green, 17 Mass. 541. Infamous crime. A crime which works infamy and dishonor in one who has committed it, and which renders the infa- mous person incompetent as a witness, considering him too corrupt, morally to testify. The Beople vs. Sponsler, 1 Dakota 291. Offenses which rendered the perpetrator infamous at the common law, were treason, felony, and the crimen falsi. The People vs. Toynbee, 20 Barb. (N. Y.J 189. vide Infamous persons. 3 Dill. (TJ. S. C. C.) 276. Infamous pebsons are such as may be challenged as jurors propter de- lictum, and therefore shall never be admitted to give evidence to inform that jury with whom they were too scandalous to associate. McCafferty vs. Ouyer, 59 Perm. St. 116. (Quoting 3 SI. Com. 370.) vide Infamous crime. 17 Fla. 185. Infamy. It means that loss of character, or public disgrace which a convict incurs, and by which he is rendered incapable of being a witness or juror. Com. vs. Shaver, 3 Watts & S. (Pa.) 342. Infer and presume (distinguished.) To infer is derived from the Latin in/erre, compound- ed of " in " from, and "ferre " to carry or bring, and its strict meaning is to bring a result or conclusion from something back of it, that is, from some evi- dence or data from which it may be logically de- duced. But to presume is from the Latin prae- sumere, consisting of "prae," before, and "sumere," to ADJUDGED WORDS AND PHRASES. 317 INFEEENCE INFORMALITY take, and signifies to take or assume a matter be- forehand, without proof — to take for granted. Morford vs. Peck, 46 Conn. 385. INFERENCE. An inference is something inferred from precedent matter; separated from which, it is a mere absurdi- ty in language. There may be precedent matter and no inference ; but there can be no inference without precedent matter ; they must stand together and cannot be separated. Chambers vs. Hunt, 3 Harr. (N. J.) 354. Inference is a deduction or conclusion from facts or propositions known to be true. Gates vs. Hughes, 44 Wis. 336. INFERIOR COUETS. All courts from which an appeal lies are inferior courts in relation to the appellate court before which their judgment may be carried ; but, they are not, therefore, inferior courts in the technical sense of those words. They apply to courts of a special and limited jurisdiction, which are erected on such principles that their judgments, taken alone, are en- tirely disregarded, and the proceedings must show their jurisdiction, Kempe's Lessee vs. Kennedy, 5 Cranch (U. 8.) 185. Infidel. One who does not believe the Bible, or that Jesus Christ was the true Messiah, "the Christ of God." Hale vs. Everett, 53 N. Hamp. 55. The "infidel " is one who does not recognize the in- spiration or obligation of the Holy Scriptures, or the generally recognized features of the Christian reli- , gion. Gibson vs. American Mut. Life Ins. Co., 37 N. Y. 584. Informality (in indictment.) By informality is understood a deviation, in charg- ing the necessary facts and circumstances constitut- ing the offence, from the well approved forms of ex- pression, and a substitution in lieu thereof of other terms, _ which nevertheless make the charge in as plain, intelligible and explicit language. State vs. GaUimore, 2 Ired. Lata (N. C.J 377. , 2 Jones L. (N. 0.) 431. 318 ADJUDGED WORDS AND PHRASES. infokmation infokmation Information means the communication of material facts for the first time. Hall vs. Bouse, 4 M. & W. 24. 34 Iowa 527. Information (criminal) is an accusation or a complaint exhibited against a person for some criminal offense (below the grade of felony), which, from its enormity or dangerous tend- ency, the public good requires should be restrained or punished, and differs principally from an indict- ment in this, that an indictment is found upon the oath of twelve men and an information is only the alle- gation of the officer who exhibits it. It is a prosecu- tion originating with an officer, but may originate with a private citizen, but its object is, not compen- sation to the informer, (except in qui tarn actions,) but solely the public advantage. State vs. Clinton, 67 Mo. 379. (Quoting Bac. Abr.) Informations " are of two sorts ; first, those which are partly at the suit of the king and partly at that of a subject ; and secondly, such as are only in the name of the king." And the last " are of two kinds ; first those which are truly and properly his own suits, and filed ex officio by his own officer, the Attorney- General ; and secondly, those in which, though the King is the nominal prosecutor, yet it is at the rela- tion of some private person or common informer. Goddard vs. the State, 12 Conn. 452. (Quoting 4: El. Com. 302, 308.) Criminal informations are analogous to declarations for the redress of a personal injury, except that the latter are at the suit of a subject for the satisfaction of a private wrong, and the former are in the name of the King, for the punishment of offences affecting the interests of the public. State vs. Concord & Boscotven, 20 N. Ramp. 296. (Quoting 1 Chit. Or. Law. 841.) Information (in stat. to prevent physicians disclosing, &c.) The word "information " as used in the statute, com- prehends the knowledge which the physicians ac- quired in any way while attending the patient, whether by their own insight, or by the verbal state- ments from him, or from members of his household, ADJUDGED WORDS AND PHRASES. 819 INFORMATION INHABITANT or from nurses or strangers, given in aid of the physi- cian in the performance of his duty. * * Knowl- edge, however communicated, is information. Edingtonvs. Mut. Life Ins. Co. of N. Y.,5Hun(N. Y.)8. Ikfobmation (in the nature of a quo warranto) is a substitute for that ancient writ, which has fallen into disuse ; and the information which has super- seded the old writ, is defined to be a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, and seize it for the crown. People vs. Utica Ins. Co., 15 John. (N. Y.J 387. Information and indictment (distinguished.) The former differs from the latter principally in this, that an indictment is an accusation found by the oath of twelve men ; whereas, an information is only the allegation of the officer who exhibits it. Clepper vs. The State, 4 Texas 246. Inhabitancy. Inhabitancy and residence do not mean precisely the same thing as domicil, when the latter term is applied to successions to personal estate, but they mean a fixed and permanent abode or dwelling place for the time being, as contradistinguished from a mere tem- porary locality of existence. In re Wrigley, 8 Wend. (N. Y.J 140. ■vide Domicil ; Home ; Residence. 40 How. Pr. E. 263. Inhabitant. By the term, inhabitant of a place, or country, we un- derstand one who has his domicil, or fixed residence there, in opposition to one who is a mere sojourner or temporarily resident in the place, or country. State vs. Primrose, 3 Ala. 547. An inhabitant or resident, is a person coming into a place with intention to establish his domicil or per- manent residence, and in. consequence actually re- side's. Isham vs. Gibbons, 1 Bradf. Surr. Rep. (N. Y.J 83. Inhabitant is defined to be one who has his domicil in a place ; or one who has an actual fixed residence in a place. Crawford vs. Wilson, 4 Barb. (N. Y.J 521. (Quoting Bouvicr L. Dicf* ■vide Resident 4 Ala. 630 ; 3 111. 403 ; 8 "Wend. 141. 820 ADJUDGED WORDS AND PHRASES. INHABITANT INJUNCTION Inhabitant (of a township or ward) is one who has his domicil there, his fixed habitation and home, from which he has no present intention of removing. State, Sharp, Pros. vs. Casper, 7 Vroom (N. J.) 368. Inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state, while they reside there, and they are bound to defend it while it grants them pro- tection, though they do not participate in all the rights of citizens. Spragins vs. Hougton, 2 Scam. (IU.) 403. (Quoting Vattd, Book 1, ch. 19, § 213.) Inheeitance. Among the civilians, by inheritance is understood the succession to all the rights of the deceased. Swanson vs. Swanson, 2 Swan (Tenn.) 457. Inhibition (in ecclesiastical law.) The inhibition is in the nature of an injunction in so far as it restrains the clerk from performing divine service until he undertakes to obey the monition. Enraght's Case, 6 Q. B. Div. 420. Iniquity (in equity.) This means iniquity, not merely moral, nor necessarily what is against sound morals, but anything illegal. Tufts vs. Tufts, 3 Woodb. & Hinot ( U. S. C. C.J 490. Injunction is a judicial process, by which a party is required to do a particular thing, or to refrain from doing a par- ticular thing, according to the exigency of the writ, the most common sort of which operates as a re- straint upon the party in the exercise of his real or supposed rights, and is called the remedial writ of injunction. Wangelin vs. Goe, 50 IU. 463. Injunction preliminaey is a restriction or prohibitory process, designed to compel the party against whom it is granted to main- tain his status merely until the matters in dispute shall by due process of the courts be determined ; ADJUDGED WORDS AND PHRASES. 821 INJURIA INN the sole foundation for such an order being, in addi- tion to cases of the invasion of unquestioned rights, the prevention of irreparable mischief and injury. Coal Co's Appeal, 54 Penn. St. 188. Injuria. By injuria is meant a tortious act ; it need not be wilful and malicious, for, though it be accidental, if it be tortious, an action will lie. Wright vs. C. & N. W. R. R. Co., 7 Brad. (III.) 446. Injury. An injury, legally speaking,, consists of a wrong done to a person, or, in other words, a violation of his right. Parker vs. Griswold, 17 Conn. 302. Inland and foreign bill (distinguished) vide Foreign, &c. Inland navigation means that which is carried on within a country, on its rivers or other bodies of water, without refer- ence to their magnitude, whether called lakes or seas, if such bodies of water are not so connected with the ocean, in the commerce of the world, as to be considered a part and parcel of the ocean, or highway of nations. Am. Transportation Co. vs. Moore, 5 Mich. 400. Inn. An inn is a place instituted for passengers and way- faring men. The Queen vs. Rymer, 2 Q. B. Div. 140. The Latin word for inn is diversorium, because he who lodges there is quasi divertens se a via. Hall vs. State, 4 Harring. (Del.) 146. An inn is a house, the owner of which holds out that he will receive all travellers and sojourners who are willing to pay a price adequate to the sort of accommodation provided, and who come in a situa- tion in which they are fit to be received. Thompson vs. Lacy, 3 B. & A. 287. A house kept open publicly for the lodging and en- tertainment of travellers generally, for a reasonable compensation. Ingalsbee vs. Wood, 36 Barb. (N. Y.) 462. 822 ADJUDGED WORDS AND PHRASES. INN INSANE A public house of entertainment for all who choose to visit it. Wintermute vs. Clarke, 5 Sand/. (N. Y.) 247. vide Common inn. & Hump. 183 ; 33 Cal. 596 ; 4 Humph. 182 ; 35 Conn. 185. Inn and boarding-house (distinguished) vide Boarding-house, &c. Innkeeper is a person who makes it his business to entertain travellers and passengers, and provide lodging and necessaries for them, their horses and attendants. Carter vs. Hobbs, 12 Mich. 56. (Quoting Bae. Abr. Inns B.) An innkeeper is one who holds himself out to the pub- lic as engaged in the business of keeping a house for the lodging and entertainment of travellers and pas- sengers, their horses and attendants for reasonable compensation. Howih vs. Franklin, 20 Texas 801. 3 Bush. 683 ; 7 Geo. 306. Innuendo (in pi.) is explanatory of the subject matter sufficiently ex- pressed before. Van Vechten vs. Hopkins, 5 John. (N. Y.J 220. An explanation of the meaning of words published or words spoken by a reference to facts, previously ascertained by averment or otherwise. Fry vs. Bennett, 1 Code Bep. N. S. (N. Y.) 246. Inquest op office (in escheat) vide Office found. Insane delusion consists in a belief of facts which no rational person would believe. In the matter o/Forman's will, 54 Barb. (N. Y.) 289. "Whenever the patient once conceives something ex- travagant to exist, which has still no existence what- ever but in his own heated imagination ; and when- ever at the same time, having once so conceived, he is incapable of being, or at least of being permanently reasoned out of that conception, such a patient is said to be under a delusion. Den vs. Clarke, 2 Eng. Eccl. B. 441. vide Delusion. 2 Del. 380. ADJUDGED WORDS AND PHRASES. 823 insanity insolvency Insanity is where a person believes something to exist, which not only does not exist, but of which he has no evi- dence sufficient to satisfy any healthy mind, and lie acts upon it, reasons upon it, and holds it as a reality. Robinson vs. Adams, 62 Maine 402. Insanity, in the general legal sense is an inability to distinguish between right and wrong. The State vs. Ferrer, 9 West. Laio Journ. 519. Insanity (as a defense to crime) means such a perverted and deranged condition of the mental and moral faculties as renders a person incapable of distinguishing between right and wrong, and makes him unconscious at times of the nature of the act he is about to commit. State vs. Redemeir, 71 Mo. 174. Insolvency is the inadequacy of a man's funds to the payment of his debts. Herriclc vs. Borst, 4 Hill (N. Y.J 652. (Quoting 2 BeU's Com. 162.) Insolvency means that the party whose business af- fairs are in question is unable to pay his debts as they become due in the ordinary course of his daily transactions. Buchanan vs. Smith, 16 Wallace (U. S.J 308. Insolvency means when applied to traders, an ina- bility to pay debts, as they mature and become due and payable, in the ordinary course of business, as persons carrying on trade usually do, in that which is made, by the laws of the United States, lawful money and a legal tender, to be used in the payment of debts, without reference to the amount of the debt- ors property, and without reference to the possibility or probability, or even certainty, that, at a future time, on the settlement and winding up of all his af- fairs, his debts will be paid in full out of his prop- erty. In re Bininger 7 Blafchf. (U. S. G. C.J 264. Insolvency means a general inability to answer in the course of business the liabilities existing and capable of being enforced. Brouwer vs. Harbeck, 9 N. Y. 594. vide Solvency. 1 Wood (U. S. C. C.) 434 ; 33 Cal. 625 ; 1 Dil. (U. 9. C C.) 195 ; 2 Low. (U. S. D. C.) 401 ; 6 C. E. G. (N. J.) 538 ; 16 Wall. (U. S. ) 599 ; 4 Otto (IX S. ) 557 ; 12 Ohio 336 ; 123 Mass. 13 ; 2 Ind. 57. S24 ADJUDGED WORDS AND PHRASES. evolvent insolvent Insolvent means nothing more than a general inability to pay, and not the taking the benefit of any act for the re- lief of insolvent debtors. Sogers vs. Thomas, 20 Conn. 69. A trader may be said to be insolvent when he is not in a condition to pay his debts in the ordinary course, as persons carrying on trade usually do. Lee vs. Kilburn, 3 Gray (Mass.) 600. The term insolvent usually means one whose estate is not sufficient to pay his debts, or one who is un- able to pay all his debts from his own means. Austin .vs. The N. J. Steamboat Company, 43 N. Y. 75. vide Solvent. 116 Eng. C. L. 1C80 ; 25 Hun 169 ; 4 Cush. 134. Insolvent (in right of stoppage in transitu) means a general inability to satisfy obligations, evi- denced by stopping payment. Inslce vs. Lane, 57 N. Samp. 458. Insolvent and bankrupt laws (distinguished) vide Bankrupt, &c. Insolvent circumstances. By insolvent circumstances it is meant that a person is not in a condition to pay his debts in the ordinary course, as persons carrying on trade usually do. Bayly vs. Schqfield, 1 M. & S. 350. vide Insolvency. 4 Cash. 234. Insolvent debtors. Those who either from absolute deficiency of funds or temporary embarrassments, are unable to meet their engagements, and shall in consequence be brought within the operation of insolvent or bank- rupt laws. Alexander vs. Gibson, 1 N. & McC. (S. C.) 496. vide Solvent debtor. Insolvent trader. A trader is insolvent when he is not in a condition to meet his engagements or pay his debts in the usual and ordinary course of business. Bell vs. Ellis, 33 Col. 625. I take insolvency as it respects a trader to mean that he is not in a situation to make his payments as usual ; and that it does not follow that he is not in- ADJUDGED WOKDS AND PHRASES. 82ft inspection insurable; solvent, because lie may ultimately have a surplus' upon the winding up> of his affairs. Bayly vs. Schofield, 1 31. & S. 353. Inspection. The examination of certain articles made by law subject to such examination, so that they may be de- clared fit for commerce. Neilson vs. Garza, 2 Wood (U. 8. C. C.) 290. (Quoting Bouvier L. Diet. ) Instance couet and pkize couet (distinguished.) It is well known to those conversant with admiralty proceedings, that the court is two-fold : An instance court, which takes cognizance of contracts made, and injuries committed on the high seas ; and the prize court, which has jurisdiction over prizes taken in time of war. * * The instance court is governed by the civil law, the laws of Oleron, and the customs of the admiralty modified by statute. The prke court is to hear and determine according to the course of the admiralty, and the law of nations. Percival vs. Hickey, 18 John. ( N. Y.J 292. Instant is an indivisible point in time, which is not time, nor a part of time, to (or by) which, however, the parts of time are connected. Fulmerston vs. Steward, Ploivd. 110. Institution. The term " institution " is sometimes used as descrip- tive of an establishment or place where the business or operations of a society or association is carried on ; at other times it is used to designate the organized body. Gerke vs. Purcell, 25 Ohio St. 244. 50 Md. 345. Insteument. Something reduced to writing as a means of evidence. State vs. Kelsey, 15 Vroom (N. J.) 34. (Quoting Abbott's L. Diet. ) Insukable intebest. An interest, to be insurable, does not depend upon title or ownership of the property ; it may be a spe- cial or limited interest, disconnected from title, hen or possession. Merrett vs. Farmers' Ins. Co., 42 Ioiva 13. 326 ADJUDGED WORDS AND PHEASES. insurance intent Insurance is a contract upon speculation. Carter vs. Boehm, 3 Burr. 1909. It is a contract by which one of the contracting par- ties charges himself with the risk of the fortuitous accidents to which something is exposed, and obliges himself to indemnify the other from the loss which those accidents may occasion in case of their happen- ing, in consideration of a sum of money which the other contracting party gives as the price of the risk with which he is charged. Lucena vs. Chanford, 5 B. & P. 300. A contract of insurance is an agreement by which one party for a consideration, (which is usually paid in money, either in one sum, or at different times during the continuance of the risk,) promises to make a cer- tain payment of money upon the destruction or in- jury of something in which the other party has an interest. Commonwealth vs. Weiherbee, 105 Mass. 160. vide Life insurance ; Policy of insurance. 55 N. Ii. i58. Insurance (maritime) is a contract for indemnity, by which one party en- gages for a consideration, that the goods insured shall arrive safe at the port of destination, or in case they should not, he will place the other party in as good a condition in reference to the thing insured as he was before he began the adventure, but not in a better situation. Insurance Co. vs. Buckner, 4 Hoiv. (Miss.) 79. Insurance upon freight vide Freight. Intent referred to an act denotes a state of the mind with which an act is done. State vs. Tom, 2 Jones Law (N. C.J 416. The presence of will in the act which consummates a crime. It is the exercise of intelligent will, the mind being fully aware of the nature and consequences of the act which is about to be done, and with such knowledge and with full liberty of action willing and electing to do it. Smith vs. The State, 2 Lea ( Tenn.) 619. (Quoting Burrill's L. Diet) ADJUDGED WORDS AND PHRASES. 827 .INTENT INTEREST Intent and attempt (distinguished) vide Attempt, &c. Intebdiction oe commercial intercourse ex vi termini, means an entire cessation, for the time being, of all trade whatever. The Edward, 1 Wheaton (U. S.J 272. Intebesse teemini, is the right to the possession of a term at a future time ; and, upon an ordinary lease to commence in- stanter, the lessee, at common law, has an interesse ter- mini only until entry. Austin vs. Huntsvilh Coal, &c. Co., 12 Mo. 542. (Quoting 4 Kent 106.) Interest is an accessary or incident to the principal. Doe vs. Warren et al., 7 Greenl. (Me.) 49. A compensation allowed to the creditor for delay of payment by the debtor. Kelsey vs. Murphy, 30 Penn. St. 341. A certain profit for the use of the loan. Dry Dock Bk. vs. Am. L. Ins. & T. Co., 3 N. Y. 355. Interest is the compensation which is paid by the borrower of money to the lender for its use, and gen- erally, by a debtor to his creditor in recompense for his detention of the debt. Hubbard vs. Callahan, 42 Conn. 528. (Quoting Boumer L. Diet.) Interest is the sum paid by the borrower of a sum of money, or of some sort of valuable produce, to the lender for its use. Rodman vs. Munson, 13 Barb. (N. Y.J 76. (Quoting 2 McOullough's Com. Die. 96.) Interest is the compensation which the borrower pays to the lender for the profit which he has an oppor- tunity of making by the use of the money ; part of that profit naturally belonging to the borrower who runs the risk, and takes the trouble of employing it ; and part to the lender who affords him the oppor- tunity of making the profit. Hammond vs. Hammond, 2 Bland's Ch. (Md.J 367. Interest is the creation of positive law. West T. & C. Co. vs. Kilderhouse, 87 N. Y. 437. 34 Penn. St. 211 ; 9 Por. (Ala. ) 16. 328 ADJUDGED WORDS A1VD PHKASES. INTEREST INTEBLOCUTOBY Interest POLICY is one which shows by its form that the assured has a real, substantial interest ; in other words, that the contract of insurance, embodied by the policy, is a contract of indemnity, and not a wager. Sawyer vs. Dodge Co. Ins. Co., 37 Wis. 539. Interlocutory decree is one which leaves the equity of the case, or some material question connected with it, for future deter- mination. Teaffvs. Hewitt, 1 Ohio St. 520, A decree is interlocutory, when it happens that some material circumstance or fact, necessary to be made known to the court, is either not stated in the plead- ings, or so imperfectly ascertained by them, that the court, by reason of that defect, is unable to determine finally between the parties ; and therefore, a reference to, or an inquiry before, a master, or a trial of the facts before a jury, becomes necessary to have the doubts occasioned by that defect removed. Traits vs. Waters, 12 John. ( N. Y.J 508. A decree is interlocatory which finds the general equities, and the cause is retained for reference, feigned issue, or consideration, to ascertain some matter of fact or law, when, again, it comes under the consideration of the Court for final disposition. Kelley et al. vs. Stanbery et al., 13 Ohio 421. An interlocutory decree is one made in the progress of a cause, for the purpose of ascertaining some mat- ter of fact or law, preparatory to a final decree. Delap vs. Hunter, 1 Sneed (Tenn.) 104. An interlocutory decree is where the consideration of • the particular question to be determined, or of fur- ther directions generally, is reserved to a further hearing ; and the further hearing is termed a hearing upon further directions or upon the equity reserved. Ex parte Crittenden, 10 Ark. 367. 9 Fla. 47. Interlocutory judgment. An interlocutory judgment is one given in the course of a cause before final judgment. Nacoochee Hydraulic M. Co. vs. Davis, 40 Georgia 320. Interlocutory judgments are such as is given in the ADJUDGED WOKDS AND PHKASES. INTERNAL INTEKEUPTION Srogress of a cause upon some plea, proceeding, or efault, which is only intermediate, and does not finally determine or complete the suit ; but contem- plates further proceedings for that purpose. Elliott vs. Mayjidd, 3 Ala. 226. 37 Tex. 390 ; 24 Pick. 300. Internal improvements. Where internal improvements under state authority is spoken of, it is universally understood that works within the state, by which the public are supposed to be benefitted, are intended. W. P. B. It. vs. Gomrs. of Colfax Co., 4 Nebraska 456. International law, as understood among civilized nations, may be de- fined as consisting of those rules of conduct which reason deduces as consonant to justice, from the na- ture of society, existing among independent nations; with such definitions and modifications as may be established by general consent. Heirn vs. Bridault, 37 Miss. 230. Interpretation is the act of finding out the true sense of any form of words — that is, the sense which their author intended to convey — and of enabling others to derive from them the same idea which the author intended to convey. Village of Borne vs. Knox, 14 How. Pr. B. ( N. Y.J 272. 7 Vroom 209. (Quoting Lieb. Pol. and Leg. Herm. 23.) Interrogatories. The usual technical meaning of the word, in the court of chancery, is a question in writing ; its ordinary meaning, in common discourse,- is, a question. I do not know of any fixed, certain, and invarible, mean- ing in common law courts. The State vs. Ludlow, 2 South. (N. J.) 772. Interruption (of prescriptive right.) Interruptions are of two kinds, natural and civil. The first consisted in entering into, and upon immov- able things ; in taking away such as were movable — civil interruption, was the interposition of a legal claim, in a court of justice. Innerarity vs. Heirs of M'.ms, 1 Ala. 674. (Quoting i Brown's C<.vtt Law 248.) SSO ADJUDGED WORDS AND PHEASES. INTO COURT INVENTION Into court (bail surrendering principal.) The words "into court," signify a delivery to the officers of the court who are under the control of the court and can take custody of the principal under the direction of the court. Converse vs. Washburn, 43 Vermont, 132. Intrinsic value. The " intrinsic value " of a thing is its true, inherent and essential value, not depending upon accident, place, or person, but the same every where and to every one. Bank of the State vs. Ford, 5 Ired. Lew (N. C.J 698. Intromission is a term signifying dealings in stock, goods or cash of a principal coming into the hands of his agent, to be accounted for by the agent to his principal. Stewart vs. McKean, 29 Eng. L. & Eq. 391 Intkusion is, at the common law, one of the modes of ouster of the freehold, and is defined to be an entry by a stranger after a particular estate of freehold in de- termination before him in reversion or remainder, as when a tenant for life dieth seized of certain lands and tenements, and a stranger cometh thereon, after such death of the tenant, and before any entry of him in reversion or remainder. Hulick vs. Scovil, 9 III. 110. Intrusion is when the ancestor died seized of any es- tate of inheritance expectant upon an estate for life, and then the tenant for life dieth, and between the death and the entry of the heir a stranger doth inter- pose himself and intrude. Co. Litt. 277 a. 3Mtmf. (Va.)540. Invention. The word invention, when applied to mechanical sub- jects, properly signifies something which has been already formed, from manufacture or machine, and is not applicable to mere unorganized principles. Boulton vs. Bull, 2 H. Bl. 470. Invention useful By useful invention is meant such a one as may be applied to some beneficial use in society, in contra- ADJUDGED WORDS AND PHRASES. 831 INVESTED IKREGULAB distinction to an invention, which is injurious to the morals, the health or the good order of society. Bedford vs. Hunt, 1 Mason ( U. S. C. C.J 302. 18 Wis. 442. Invested. A sum is " invested " whenever its amount is repre- sented by anything but money. The Parker Mills vs. Commrs. of Taxes, 23 iV. Y 244. INVESTITURE (from whence the Saxon Term Test ;) a Metaphor, the Feudists took from Clothing : By which, they meant to intimate, that the naked Possession was clothed with solemnities of the Feudal Tenure. Kilnick vs. Maidman, 1 Burr. 109. Investment means the putting out of money on interest. People vs. TJtica Ins. Co., 15 John. (N. Y.J 392. Invoice signifies only a written account of the particulars of merchandise shipped to a purchaser, factor or con- signee, with the value or prices and charges annexed. Pipes vs. Norton, 47 Miss. 76 # Invoice is a document transmitted from the shipper to his factor or consignee, containing the particulars and prices of the goods shipped. Leroy vs. United Ins. Co., 7 John. (N. Y.J 354. An invoice of goods sometimes means the goods themselves, and invoice price or cost sometimes means the prime price or cost of goods, although there is no invoice in fact. Sturm vs. Williams, 6 Jones & Spencer (N. Y.J 342. Involuntary manslaughter. . It is involuntary manslaughter, when a man doing an unlawful act, not amounting to felony, by accident tills another. Tumble vs. The Commonwealth, 78 Kentucky 177. (Quoting Whart. on Homicide 35. ) Ikregulae JUDGMENT vide Erroneous judgment. Irregular process. Sometimes the term " irregular process " has been defined to mean process absolutely void, and not 832 ADJUDGED WORDS AND PHRASES. IRREGULARITY IRREPARABLE merely erroneous and voidable — Woodcock vs. Ben- nett, 1 Cowen (N. Y.) 735 — but, usually, this term has been applied to all process not issued in strict confor- mity with, the law, whether the defects appear upon the face of the process, or by reference to extrinsic facts, and whether such defects render the process abso- lutely void or only voidable. Doe vs. Harter, 2 Ind, 253. Irregularity (in practice) is the want of adherence to some prescribed rule or proceeding. And it consists in omitting to do some- thing that is necessary for the due and orderly con- ducting of a suit or ordering it in an unseasonable time, or improper manner. Bowman vs. Tollman, 2 Robertson (N. Y.) 634. 19 Abb. Pr. R. 86 ; 3 McC. (S. C.) 144 ; 31 Cal. 625 ; 40 "Wis. 365 ; 43 Mo. 317. Irrelevancy (in an answer) may consist in statements which are not material to the decision of the case ; such as do not form or tender any material issue. People vs. McCumber, 18 N. Y. 321. Irrelevant matter (in pi.) Matter is irrelevant in a pleading which has no bear- ing on the subject matter of the controversy, and can- . not affect the decision of the court. Fabricotti vs. Lawnitz, 3 Sand/. (N. Y.J 74^ 9 Neb. 321; 2 Hun 253. Irrelevant plea is one which has no substantial relation to the con- troversy between the parties to the suit. Morton vs. Jackson, 2 Minn, 222. 6 How. Pr. R. 313. Irreparable. The word means that which cannot be repaired, re- trieved, put back again, atoned for. Gause vs. Perkins, 3 Jones Eq. (N. C.) 179. IltrEV M,.'.TJ1,E INJURY. Wrongs of a repeated and continuing character, or which occasion damages, which are estimated only by conjecture, and not by any accurate standard. Commonwealth vs. Pitts. & C. R. R. Co., 24 Penn. St. 160. An injury is irreparable when it is of such a nature ADJUDGED WORDS AND PHRASES. 333 IEEEPAEABLE ISSUE that the injured party cannot be adequately compen- sated therefor in damages, or when the damages which may result therefrom cannot be measured by any certain pecuniary standard. Wilson vs. City of Mineral Point, 39 Wis. 164. By irreparable injury is not meant such injury as. is beyond the possibility of repair, or beyond possible compensation in damages, nor necessarily great in- jury or great damage, but that species of injury, whether great or small, that ought not to be submit- ted to on the one hand or inflicted on the other ; and because it is so large on the one hand or so small on the other, is of such constant and frequent recurrence, that no fair or reasonable redress can be had there- for in a court of law. Wahle vs. Beinbach, 76 III. 326. 3Pittsb. (Pa.) 210. Issuable plea is a plea which goes to the merits of the action. Watkins vs. Bensusan, 9 M. & W. 424. Issue. The word issue is one of the most vexed words in the books ; sometimes it is nomen singulare, sometimes plu- ral, sometimes a word of limitation, sometimes of pur- chase, but it must always be construed according to the intent of the will or deed wherein it is used. Roe ex dem. Dodson vs. Grew et al., 2 Wils. 324. The word issue, in a devise, as a word of limitation, is synonymous to heir ; it is nomen collecthmm, and takes in the whole generation. Emans vs. Emans, Fenn. (N. J.) 971. Issue or exitus being the end of all pleadings, is the fourth part or stage of an action, and is either upon matter of law or matter of fact. Story et al. vs. Flournoy etal., 55 Georgia 61. An issue is when both the parties join upon some- what that they refer to a trial, to make an end of the plea. Eberhardt vs. Sawyer, 51 Wis. 77. But it is not necessary that this single Point should consist only of a single Fact. Bohinson vs. Baley, 1 Burr. 320. Issue (in pi.) An issue is a single, certain and material point, aris- 334 ADJUDGED WORDS AM) PHRASES. ISSUE J. P. ing out of the pleadings of the parties and generally should be made up of an affirmative and negative. Marshall vs. Haney, 9 Gill (Md. ) 258. 2 Ark. 104 ; 1 Green Ch. 157 ; 30 Conn. 488. Issue (in will) means prima facie the same thing as " heirs of the body." Kleppner vs. Laverty, 70 Perm. St. 72. It is well settled, that the word " issue " in a will, means " heirs of the body," unless there are words therein which are inconsistent with or control that construction. Doe vs. Rencastle, 8 Man. Gr. & Scott 886. Issue joined. By "issue joined" is meant an issue of fact reached by the parties, as distinguished from cases where the defendant does not plead or appear, and thus no issue is raised. Soloomons vs. Chesley, 57 M Hamp. 164. Issue oe fact. A mere issue of fact, is where both parties rest the fate of the cause upon the truth of the fact in ques- tion. Bassett et al. vs. Johnson et al., 1 Green Ch. (N. J.) 157. (Jacob's Zaw Diet. tit. " issue.") An issue of fact is where the fact only, and not the law, is disputed, and when he that denies or trav- erses the fact pleaded by his antagonist, has tendered the issue. Eberhardt vs. Sanger, 51 Wis. 76. (Quoting 3 Bl. Com. 215.) 55 Ga. 61. It is undeestood, in the ordinary use of that phrase, when it is adopt- ed in a written contract, has the same force with " it is agreed." Higginson vs. Weld, 14 Gray (Mass.) 170. J. sr. These characters are understood to be an abbrevia- tion of the term justice of the peace ; one in common use, and clearly indicating that that office is in- tended. Shattuch vs. People, 5 III. 481. ADJUDGED WORDS AND PHRASES. JEOPARDY JOINT Jeopaedy OF LIFE is when one is put upon his trial upon a valid indict- ment for a capital offence ; it may result in his con- demnation, hence he is in jeopardy. State vs. Bay, 1 Bice (8. G.) 5. Whenever the jury is charged with the deliverance" of the prisoner in a capital case, on a valid indictment, he is in jeopardy — in danger of life and limb. The State vs. Gonnor, 5 Coldw. (Tenn.) 317. A person is in legal jeopardy when he is put upon trial before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus charged when they have been empan- eled and sworn. Williams vs. The Gommomvealth, 78 Ky. 96. 1 Bailey 651. (Quoting Cooley on Const. IAm. 327. 1 Jettison in its largest sense, signifies any throwing overboard ; but, in its ordinary sense, it means a throwing over- board for the preservation of the ship and cargo, and most of the jurists treat of it in this sense, under the head of general average. Builer vs. Wildman, 3 B. & A. 402. Jobber is he who sells to any one who comes to him at a fraction above the market price, and buys of any one at a fraction below the market price. Mollett vs. Robinson, L. B. 7 P. C. 104. Jobbee and auctioneer (distinguished.) A jobber is a merchant who purchases goods from importers and sells to retailers. An auctioneer does not purchase at all. He sells the goods of others for a commission. Stewart vs. Winters, 4 Sand/. Ch. (N. Y.) 590. Joint covenant. When the legal interest in a covenant and in the cause of action thereon is joint, the covenant is joint, although it may, in its terms, be several or joint and several. Capen vs. Barrows, 1 Gray (Mass.) 379. ADJUDGED WORDS AND PHRASES. joint judge Joint stock companies may be said to be partnerships, or individuals asso- ciated for some specified purpose, under a designated name or description, to which by some general or special statute, when they have been formed or com- posed in a specified manner, some of the powers or proper attributes of a corporation have been given Dayton & C. B. B. Go. vs. Hatch, 1 Disney (Ohio) 90' Joint tenancy is where lands or tenements are granted to two or more persons to hold in fee simple, fee tail, for life, for years or at will. It signifies an union, or conjunc- tion of interest. Coster vs. Lorillard, 14 Wend. (N. Y.J 336. Jointure. A competent livelihood of freehold for the wife, of lands and tenements, to take effect, in profit or pos- session, presently after the death of the husband, for the life of the wife at least. Grider vs. Eubanks, 12 Bush (Ky.) 513 (Quoting Bouvier L. Bid. ) 1. It is to take effect for her life, in possession or profit, presently after the death of her husband. 2. It must be for her own life, or for a greater estate. 3. It must be made to herself, and to no other for her. 4. It must be made in satisfaction of her whole dower, and not of part of her dower. 5. It must be expressed or averred to be in satisfaction of her dower. 6. It may be made either before or after marriage. Grogan vs. Garrison, 27 Ohio St. 60. 12 Ohio St. 410 ; 4 Bro. Ch. Gas. 512. Journeyman. A journeyman is a servant by the day ; and it makes no difference whether the work is done by the day or by the piece. Hart vs. Aldridge, 1 Coiop. 55. Judge. A person whose office is to administer justice in courts held for that purpose, a public officer author- ized by law to hear and determine causes and who holds courts statedly for that purpose. Foot vs. Stiles, 57 K Y. 405. (Quoting BurriU L. Did.) ADJUDGED WORDS AND PHKASES. 837 JUDGE JUDGMENT A judge is a public officer, lawfully appointed to de- cide litigated questions according to law. Lawyees Tax Cases, 8 Heisk. (Tenn.) 650. Judgment. It is the conclusion that naturally and regularly follows from the premises of law and fact, and depends not therefore on the arbitrary caprice of the judges, but " on the settled and invariable principles of justice. In re Sedgeley avenue, 88 Perm. St. 513. A judgment in its legal acceptation is the determina- tion of some judicial tribunal created by law for the administration of public justice according to law, and is in strictness the determination of the law. Blood vs. Bates, 31 Vermont 150. A judgment is the sentence of the law, pronounced by a court, upon the matter contained in the record. Davidson vs. Smith, 1 Bissell ( U. S. C. C.J 351. A judgment is the decision of a controversy, given by a court of justice, between parties who do not agree. Union Bank vs. Marin, 3 La. Ann. 35. Every final or definitive sentence or decision of the supreme court by which the merits of a cause are settled or determined, although such sentence is not technically a judgment, or the proceedings are not capable of being enrolled so as to constitute what is technically called a record, is a judgment. In re Negus, 10 Wend. (N. Y.J 44. A judgment is an adjudication of the rights of the rights in respect to the claim involved. McNvlty vs. Hurd, 12 N. Y. 521. A judgment is the decision or sentence of the law, given by a court of justice, as the result of proceed- ings instituted for the redress of injury. Blaikie vs. Griswold, 10 Wis. 241. A judgment is the sentence of the law pronounced by a court of competent jurisdiction, as the result of pro- ceedings instituted. Cooper vs. Am. Central Ins. Co., 3 Colorado 321. The conclusion of the law upon facts found or ad- mitted by the parties. Thompson vs. People, 23 Wend. (N. Y.) 587. The remedy prescribed by the law, for the redress of 338 ADJUDGED WORDS AND PHRASES. JUDGMENT JUDGMENT injuries, the suit or action being the vehicle or means of administering such remedy. Zeigler vs. Vance, 3 Iowa, 530. A judgment is a final decision, entered of record, in a book of judgments, under the signature of a judge. Evans vs. Adams, 3 Green (N. J.) 383. It is a settled adjudication of an existing debt. It is also a power by means of which a creditor may en- force his claims by the sale of the debtor's property. Nichols vs. Dissler, 2 Vroom (N. J.) 473. A court when it constructs a judgment forms it of certain materials which are law, these materials the court does not makeiand so far the judgment is not creative of law. These materials consist of the divers laws within the realm, of maxims, principles, rules, intendment and reason of the common law, report books, records and other authorities of law. Fraser vs. Willey, 2 Florida 123. 32 Penn. St. 160 ; 32 Md. 344 ; 68 N. C. 355 ; 3 Ark. 299 ; 50 Ga. 285 ; 3 Neb. 254 ; 12 Heisk. 238 ; 7 Ark. 398 ; 5 Fla. 450 ; 3 La. An. 634 ; 12 Phila. R. 3 ; 74 Did. 550. Judgment (in criminal law) is the appropriate word to denote the action of the court before which the trial is had, declaring the con- sequences to the convict of the fact ascertained by his conviction. Com. vs. Lockioood, 109 Mass. 325. Judgment and contract (distinguished.) A judgment is the decision of the court in a civil or criminal proceeding ; it is the determination or sen- tence of the law ; but a contract is a compact between two or more persons, and hence a judgment is not i> contract at law. Sprott vs. Reid 3 Greene (Iowa) 494. Contracts are made between the willing ; judgments and decrees are rendered against the unwilling, and they extinguish the contract. Williams vs. Waldo, 4 III. 269. Judgment and jurisdiction (distinguished.) The one is, the decision of the law, given by the court as the result of proceedings therein instituted ; the other, has reference to the power conferred to ADJUDGED WORDS AND PHRASES. 339 JUDGMENT JUDICIAL take cognizance of, and determine causes according to law, and to carry the same into execution. Lampson vs. Piatt, 1 Ioioa 558. JUDGMENT BY DEFAULT is when a party fails to answer, and stands uot against the process of the court. Rhodes vs. De Bow, 5 Ioioa 265. It is a judgment for the want of an appearance. It is distinguished from other judgments by the recital, " the defendant being called, came not but made de- fault.". Grigg vs. Gilmer, 54 Ala. 430. Judgment in rem is an adjudication upon the status of some particular subject matter, by a tribunal having competent authority for that purpose. Lora vs. Chadbourne, 42 Maine 443. Judgment nisi. What is called a judgment nisi is nothing more than a rule to show cause why judgment should not be rendered. Young vs. McPherson, Perm. (N. J.) 897. Judgment of his peebs means a trial by a jury of twelve men, according to the cause of the common law. Knight vs. Campbell, 62 Barb. (M. Y.J 34. Judgment of his peers means in general the great unalienable common law mode of trial by twelve good and lawful men of the vicinage, in the presence of the accused, and by the oath of a witness. State vs. Simons, 2 Speers (S. C.J 768. Judgment of his peers means a trial by jury. Wright vs. Wright's Lessie, 2 Md. 453. Judicial. Whatever emanates from a judge as such, or proceeds from a court of justice, is, according to the authori- ties, judicial. In re Cooper, 22 N. Y. 82. 11 Abb. Pr. K. (N. Y.) 31S. Judicial act. A judicial act must be an act performed by a court, touching the rights of parties, or property, brought before it by voluntary appearance, or by the prior 340 ADJUDGED WORDS AND PHRASES. JUDICIAL JUDICIAL action of ministerial officers, in short, by ministerial acts. Flournoy vs. City of JeffersonviUe, 17 Ind. 173. S4 Ind. 377. Judicial action is an adjudication upon the rights of parties who in general appear or are brought before the tribunal by notice or process, and upon whose claims some deci- sion or judgment is rendered. It implies imparti- ality, disinterestedness, and a weighing of adverse claims, and is inconsistent with descretion on the one hand — for the tribunal must decide according to law and the rights of the parties — or with dictation on the other, for in the first instance it must exercise its own judgment under the law, and not under a man- date from another power. The tribunal is not always surrounded with the machinery of a court, nor will such machinery necessarily make its action judicial. In matter of Saline Go. Subscriptions, 45 Mo. 53. vide Jurisdiction. Judicial and legislative act (distinguished. 1 ) The one determines what the law is, and what the rights of parties are, with reference to transactions already had ; the other prescribes what the law shall be in future cases arising under it. Sinking-Fund Cases, 9 Otto (U. S.) 761. The one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a pre-determination of what the law shall be for the regulation of all future cases falling under its provisions. Mabry vs. Baxter, 11 Heislc. ( Tenn.) 690. Judicial confessions vide Confessions. Judicial disceetion, when applied to a Court of Justice, means sound Dis- cretion guided by Laiv. It must be governed by Rule, not by Humour : It must not be arbitrary, vague, and fanciful ; but legal and regular. Rex vs. Wilkes, 4 Burr. 2539. It is always a legal discretion to be exercised in dis- cerning the course prescribed by law ; when that is discerned it is the duty of courts to follow it. It is to ADJUDGED WORDS AND PHRASES. 341 JUDICIAL JUDICIAL be exercised, not to give effect to the will of the judge, but to that of the law. Tripp vs. Cook, 26 Wend. (N. Y.J 152. It does not mean a wild self-wilfulness, which may- prompt to any and every act, but this judicial' dis- cretion is guided by the law — see what the law de- clares upon a certain statement of facts, and then decide in accordance with law — so as to do substan- tial equity and justice. * * Judicial discretion is to see what would be just according to the law in the premises. Faber vs. Bruner, 13 Mo. 543. The discretion of a judge is the law of tyrants ; it is always unknown ; it is different in different men ; it is casual, and depends upon constitution, temper and passion. In the best it is oftentimes caprice ; in the worst, it is every vice, folly and passion to which human nature can be liable. State vs Cummings, 36 Mo. 219. vide Discretion. 46 Ala. 310 ; 1 Heisk. 774. Judicial office. Judicial offices are those which relate to the adminis- tation of justice, and which must be exercised by the person appointed for that purpose and not by depu- ties. Fitzpatrick vs. U. S., 7 Court of Claims B. 293. Judicial powee (in U. S. constitution.) Judicial power within the meaning of the constitution may be defined to be that power by which judicial tribunals construe the constitution, the laws enacted by the congress, and the treaties made with foreign powers or with the Indian tribes, and determines the rights of parties in conformity with such construc- tion. Gilbert vs. Priest, 65 Barb. (N. Y.J 448. Judicial peoceeding. The term " judicial proceeding " is not to be restric- ted to trials of civil actions or indictments, but in- cludes every proceeding before a competent court or magistrate in the due course of law or the admin- istration of justice, which is to result in any deter- mination of action of such court or officer, Newfield vs. Copperman, 47 Mow. Fr. R. (N. Y.J 89. 848 ADJUDGED WORDS AND PHRASES. judicial jukisdictigjt Judicial recobd is where the acts and judicial proceedings are en- rolled on parchment or paper, for a perpetual mem- orial and testimony, which rolls are called the records of the court, and are of such high and super- eminent authority, that their truth is not to be ques- tioned. Smith vs. Dudley, 2 Ark. 62. Judicial sale By the term " judicial sale," strictly speaking, is meant a sale by authority of some competent judicial tribunal, by an officer authorized by law for that purpose. Sturdevant vs. Norris, 30 Iowa 71. By judicial sale is meant, one made under the pro- cess of a court having competent authority to order it, by an officer legally appointed and commissioned to sell. Williamson, vs. Berry, 8 Howard (U. S.) 547. 78 Ind. 564. JUNIOB. The term " junior " is no part of the name of a per- son. It is a term used to designate and describe the person, as the name of his residence is sometimes used for the same purpose. Simpson vs. Dix, 131 Mass. 184. Jurisdiction is the power to hear and determine the subject mat- ter in controversy between parties to a suit, to ad- judicate or exercise any judicial power over them; the question is, whether on the case before a court, their action is judicial or extrajudicial ; with or with- out the authority of law, to render a judgment or de- cree upon the rights of the litigant parties. If the law confers the power to render a judgment or decree, then the court has jurisdiction ; what shall be ad- judged or decreed between the parties, and with which is the right of the case, is judicial action, by hearing and determining it. State ofE. I. vs. State of Mass., 12 Peters ( U. S.J 718. Jurisdiction may be defined to be the right to .adju- dicate concerning the subject matter in the given c^se. To constitute this there are three essentials : JTirst. The court must have cognizance of the class ADJUDGED WORDS AND PHRASES. JURISDICTION JURISDICTION of cases to which the one to be adjudged belongs. Second. The proper parties must be present. And, Third. The point decided must be, in substance and . effect, within the issue. j Munday vs. Vail, 5 Vroom (N. J.) 422. ' The right to act — the lawful power to hear and de- termine. Bumstead vs. Read, 31 Barb. (N. Y) 665. Jurisdiction means the power to act judicially to de- termine any question presented in a controversy be- tween the parties. King vs: Poole, 36 Barb. (N. Y.) 244. Jurisdiction is the authority of law to act officially in the matter then in hand. Jones vs. Brown, 54 Iowa 79. (Quoting Cooley on Torts 417. ) Jurisdiction is authority or power which a man hath to do justice in causes of complaint brought before him. Borden vs. State, 11 Ark. 544. (Quoting Burn's L. Diet. ) Jurisdiction is the power or authority to 'pronounce the law on the case presented, and to pass upon and settle by its judgment the rights of the parties touching the subject-matter in controversy, and to enforce such sentence. The derivation of the word — jus dicere — and the practice of the courts, prove this to be substantially correct. Ex parte Walker, 25 Ala. 91. The essentials of jurisdiction are power over the parties and the subject-matter of difference between them. Merrill vs. Curtis, 57 Maine 154. Jurisdiction is the authority to judge or to declare the law between parties brought into court. In re Ida Louisa Pierce, 44 Wis. 454. Jurisdiction has often been said to be " the power to hear and determine." It is in truth the power to do both or either — to hear without determining, or to determine with hearing. Ex parte Bennett, 44 Cal. 88. A power constitutionally conferred upon a judge or magistrate, to take cognizance of and decide causes 344 ADJUDGED WORDS AND PHRASES. JURISDICTION JUET according to law, and to carry his sentence into exe- cution. Succession of Weigel, 17 La. Ann. 70. (Quoting Bcuvier L. Diet. ) Jurisdiction is the power of hearing and determining causes and of doing justice in matters of complaint. The State ex rel vs. Whit/ord, 54 Wis. 157. (Quoting BurrilTs L. Diet. ) The power and authority to declare the law. The very word in its origin imports as much. It is de- rived from, juris and dico. I speak by the law. It is the right of administering justice through the laws by the means which the law has provided for that purpose. Mills vs. Com., 13 Perm. St. 630 The word "jurisdiction" (jus dicere) is a term of large and comprehensive import, and embraces every kind of judicial action upon the subject matter, from find- ing the indictment to pronouncing the sentence. Hopkins vs. Com., 3 Met. (Mass.) 462. 3 How. (U. S.) 338,- 2 Dong. (Mich.) 486 ; 43 Cal. 368; 2 Sawyer 499 ; 26 Ark. 436 ; 16 Fla. 332 ; 74 Mo. 423 ; 6 Peters 709 ; 10 Vroom 262. Jurisdiction and judgment (distinguished) vide Judgment, &c. Jueisdiction op the subject-mattee (in divorce) is power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case, arising, or which is claimed to have arisen, under that general question. Hunt vs. Hunt, 72 K T. 231. Jueoes. The term " jurors " means nothing more than twelve men qualified and sworn to try a cause according to the evidence. Fife et al. vs. Com., 29 Penn. St. 439. JUEY. The word "jury," without addition or prefix, imports a body of twelve men in a court of justice. Knight vs. Campbell, 62 Barb. (N. Y.) 33. (Quoting Bouvier L. Did.) A. body of twelve citizens, duly qualified to serve on juries, empanneled and sworn to try one or more is- ADJUDGED WORDS AND PHRASES. 345 JURY JUST sues of fact submitted to them, and to give a judg- ment respecting the same, called a verdict. Norval vs. Rice, 2 Wis. 28. That the term "jury," -without addition or prefix, im- ports a body of twelve men in a court of justice, is as well settled as any legal proposition can be. Lamb it al. vs. Lane, 4 Ohio St. 177. 62 Barb. 33. JUST COMPENSATION. It is a fair equivalent in money, a quid pro quo ; it is a recompense in value for the property taken. Bloodjool vs. M. & H. R. R. Co., 18 Wend. (N. Y.J 35. Just compensation consists in making the owner good, by an equivalent in money, for the loss he sus- tains in tlia value of his property by being deprived of a portion of it. Bigelow vs. Western Wis. Ry. Co., 21 Wis. 487. It imports something different from a mere payment of a sum of money for the injury done to the land It look^ tD a compensation on both sides. That is, a just balancing of the advantages against the disad- vaatagas. Ala. and Florida R. R. Co. vs. Burkett, 43 Ala. 579. It means that, where private property is taken by virtue of the authority of the sovereign power, com- pensation shall be made in money ; that a fair valu- tion shall be made of the property taken, and the amount of such valuation in money shall be paid to the individual before his property can be taken from him. Carson vs. Coleman, 3 Stockt. Ch. (N. J.) 108. A just compensation for property applied to public use clearly implies, as we think, the value of the property in money. If the owner derive any inci- dental advantage or benefit from the manner in which it is applied to public use, others partici- pate in some degree, and perhaps equally, in the same or similar advantages resulting to them also ; and it would be unjust to exact from the one an equivalent for his incidental benefits, while the others enjoy theirs without the like exactions. Jacob vs. The City of Louisville, 9 Dana(Ky.) 114. We consider the proper rule to be this, that the fair cash value of the land taken for public use, if the 846 ADJUDGED WOKDS AND PHRASES. JUSTICE JUSTIFIABLE owner were willing to sell, and the company desired to buy that particular quantity, at that place and in that form, would be the measure of compen- sation. Woodfolk vs. N. & C. B. B. Co., 2 Swan (Tenn.) 43T 9 Vroom 155 ; 19 Barb. 171. Justice is the rendering to every man his due. Moore vs. Coats, 45 Miss. 225. Justice is the basis of society, the sure bond of all commerce. Charge to Grand Jury, 5 McLean (U. 8. C. C.J 308. Justice is the dictate of right, according to the com- mon consent of mankind generally, or of that portion of mankind who may be associated in one govern- ment, or who may be governed by the same princi- ples and morals. Duncan vs. Magette. 25 Texas 252. Justice and law (distinguished) vide Law, dtc. Justice of the peace. " A public officer, invested with judicial powers, for the purpose of preventing breaches of the peace, and bringing to punishment those who have violated the law." Wenzler vs. People, 58 N. Y. 530. (Quoting Bouvier L. Diet.) Justices of the peace are judges, in the legal sense of the word, having power to decide upon the rights of others by author- ity of law ; and the place in which a justice exercises his power, by adjudicating and deciding as a justice, is a court. People vs. Wilson, 15 IU. 391. Justifiable homicide. Such homicide as is committed for the prevention of any forcible or atrocious crime, is justifiable by the law of nature ; and also by the law of England as it stood so early as the time of Br acton. Marks vs. Borum, 1 Baxter (Term.) 93. When one who is without fault himself, is attacked by another in such a manner or under such circumstan- ces as to furnish reasonable ground for apprehending ADJUDGED WORDS AND PHRASES. 34J JUSTIFIABLE KEPT a design to take away his life, or do hid some freat bodily harm, and there is reasonable ground for elieving the danger imminent that such design will be accomplished, he may safely act upon appearances and kill the assailant, if that be necessary to avoid the apprehended danger ; and the killing will be justifi- able, although it may afterwards turn out that the appearances were false, and there was in fact neither • a design to do him serious injury, nor danger that it would be done. Shorter vs. The People, 2 N. Y. 197. Justifiable homicide is the killing of a human being in self-defense or in defense of habitation, or in de- fense of property, or in defense of person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either. Thompson vs. The State, 55 Georgia 50. 2 Tex. App. 286 ; 3 Wash. 521 ; 38 Penn. St. 268. Keeping (a disorderly house) is the governing and managing a house in such a dis- orderly manner as to be a nuisance. Regina vs. Williams, 1 Salk. 384. 105 Mass. 467. Keeping a tippling house, imports an unlawful selling of spirituous liquors by retail, without any license. Com. vs. Campbell, 5 Bush (Ky.) 312. Keeping an inn. It is keeping a house, publicly, openly and notori- ously, for the entertainment and accommodation of travellers and others, for a reward. State vs. Stone, 6 Vermont 298. Keeping down intebest means the payment of interest periodically as it be- comes due, and not the payment of all arrears of in- terest which may have become due on any security from the time when it was executed. Regina vs. Hutchinson, 82 Eng. C. L. 211. Kept and used (for team work) signifies that the animal must be kept for team work and must be in actual use, or it must be kept with the honest intention and purpose of the owner, within a reasonable time thereafter, to use him for team work 348 ADJUDGED WORDS AND PHRASES. KIDNAPPING L. S. as occasion may require, to enable him with the aid of the animal to procure a livelihood. JSowett vs. Powell, 53 Vermont 304. Kidnapping. The forcible abduction and conveying away of a man, woman or child, from their own country, and sending them to another. Click vs. The State, 3 Texas 285. Kill is a Dutch word signifying a channel or bed of the river, and hence the river or stream itself. French vs. Carhart, 1 N. T. 107. KrN. The word " kin " in its strictest sense, includes only relations by blood ; but in a general sense it is used to include both relations by blood and marriage. Hibbard vs. OdeU, 16 Wis. 635. Kdstdred in the proper signification of the word, means such persons as are related by blood : and, accordingly, relations by marriage are generally incapable of bringing themselves within the description of " next of kin " in a will ; and neither husband nor wife can be entitled under a bequest to the "next of kin" of either of them. Wetter, Trustee, vs. Walker, 62 Georgia 145. Sameness of blood is necessary to constitute " kin- dred." Bailey vs. Wright, 2 Hov. Supp. 505. Knocked down (at auction) vide Struck off. Knowingly and wilfully. Doing or omitting to do a thing knowingly and wil- fully, implies not only a knowledge of the thing, but a determination with a bad intent to do it or to omit doing it. Felton vs. United States, 6 Otto (U. S.) 702. L. S. By long usage and the general understanding of legal writers, " L. S." is regarded as the true representa- tion of a seal, in a copy of all legal precepts. * * The letters "L. S." are the proper designation and copy of the seal. Smith vs. Butler, 25 K Ramp. 524. ADJUDGED WORDS AND PHRASES. 34» labor land Labor is understood to be physical toil. Weymouth vs. Sanborn, 43 N. Hamp. 173. Laboeek. One who subsists by physical toil. Weymouth vs. Sanborn, 43 N. Hamp. 173. The term laborer is not applicable to any one who does earn not his living by the work of his hands. Oaraker vs. Matthews, 25 Georgia 576. 4 Best & Smith (Q. B.) 933. Laches is a neglect to do something which by law a man is obliged to do. Sebag vs. Abitbol, 4 M. & S. 463. Land. The term land at common law, has a twofold mean- ing. In its more general sense, it is held to com- prehend any ground, soil, or earth whatsoever, as meadows, pastures, woods, marshes, furze, &c. In its more limited sense, the term land, denotes the quan- tity and character of the interest or estate, which the tenant may own in lands. Johnson vs. Richardson, 33 Miss. 464. Lands comprehendeth in its legal signification any f round, or soil, or earth whatsoever, also houses and uildings. The Comrs. Attchmt., 2 Abbott's Pr. B. N. S. (N. Y.J 86. (Quoting 2 Bl. Com. 17.) The word land includes not only the soil, but every- thing attached to it, whether attached in the course of nature, as trees, herbage, and water, or by the hand of man, as buildings and fences. Mott vs. Palmer, 1 N. Y. 564. Lands is a word of general import, and means the same thing as land ; and however you may subdivide any portion of it, still it is capable of being denomi- nated lands; for by this term in common parlance is not meant a plurality of pieces ; one piece will sat- isfy the term ; and herein it differs from the word houses. Birch vs. Gibbs, 6 M. & S. 116. 33 Ind. 403 ; 5 Conn. 517 ; 9 Conn. 377. 350 ADJUDGED WORDS AlfD PHRASES. land lapsed Land warrant Vide Warrant (for land.) Landed estate. The ordinary meaning of the words " landed estate " seems to be an interest in and pertaining to lands. St. Mary vs. Harris, 10 La. Ann. 677. Landing (for boats.) A landing is a place on a river or other navigable water for lading and unlading goods, or for the re- ception and delivery of passengers. State vs. Randall, 1 Strobh. (S. C.) 111. A landing is either the bank or wharf, to or from which persons or things may go from or to some vessel in the contiguous water ; or it is the yard or open place which is used for deposit and convenient communi- cation between the land and water. State vs. Graham, 15 Rich. (S. G.) 310. Landlord does not mean lord of the soil, but the person be- tween whom and the tenant the relation of landlord and tenant exists. Churchward vs. Ford, 2 Hurlst. & N. 450. He of whom land is held subject to the rendering or payment of rent or service is a landlord. Hosford vs. Ballard, 39 K Y. 151. vide Lease. Landlord's fixtures means such things as the landlord chooses to annex to the freehold and to demise with it, and which of course, the tenant has no right to remove, and must restore at the end of the term. Elliott vs. Bishop, 10 Exch. 519. Lapse (of legacy) indicates the falling back of the legacy or demise, or its subject, into the testator's estate. Yeates vs. Gill, 9 B. Mon. (Ky.) 206. Lapsed legacy. A devise is said to be lapsed where the devisee dies in the intermediate period between the making of the will and the death of the testator. Doe, Lessee of Stewart, vs. Sheffield, 13 East. 534. ADJUDGED WORDS AND PHRASES. 351 larceny latent Larceny is the wrongful or fraudulent taking and carrying away, by any person, the mere personal goods of an- other, 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. Ransom vs. State, 22 Conn. 156. L. E. 2 Or. Cas. 46 ; 2C. & K. 946 ; 4 Dutch. 29 ; 5 Harr. (Del.) 493 ; 8 Port. (Ala.) 463 ; 6 Coldw. 526 ; 49 H ow.Pr. 457. Larceny and embezzlement (distinguished.) Larceny implies a wrongful taking of another's goods, but embezzlement denotes the wrongful appropria- tion and use of what came into possession rightfully. Taylor vs. Kneeland, 1 Doug. (Mich.) 72. The essential difference between larceny and embez- zlement is, that the possession of the thing stolen was wrongful ab initio while embezzlement can only be committed by one whose possession was, origin- ally, lawful. Desobry vs. Tete, 31 La. Ann. 820. Latent ambiguity, is where you show that words apply equally to two different things or subject-matters. Smith vs. Jeffreys, 15 M. & W. 561. Latent ambiguity is where the words of a written in- strument are plain and intelligible, but by reason of extraneous facts, the certain and definite application of those words is found impracticable. Hand vs. Hoffman, 3 Hoist. (N. J.) 72. A latent ambiguity 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. Trustees vs. Pearslee, 15 N. Hamp. 327. An ambiguity is properly latent, in the sense of the law, when the equivocality of expression, or obscuri- ty of intention, does not arise from the words them- selves, but from ambiguous or delitescent state of ex- trinsic circumstances to which the words of the in- strument refer, and which is susceptible of explana- tion by a mere developement of extraneous facts, without altering or adding to the written language, or requiring more to be understood thereby than 352 ADJUDGED WORDS AND PHRASES. LATENT LAW will fairly comport with the ordinary or legal sense of the words made use of. Jackson vs. Sill, 11 John. (N. Y.J215. (Quoting Roberts on Frauds 15. ) 56 N. H. 23 ; 46 Miss. 301 ; 67 Penn. St. 112 ; 4 Harr. & J. 458 ; 48 Md. 505 ; 10 Ohio St. 534 ; Busbee Eq. (N. C.) 69 ; 25 Ga. 142 ; 7 Bradwell (111.) 38 ; 73 Ma. 308 ; 32 N. H. 274. Latent deed is a deed kept lor twenty years or more in a man's scrutoire or strong box, acompanied with no actual distinctive and .adverse possession. Den vs. Wright, 2 Hoist. (N. J.) 177. Latitat. A latitat is mere process to bring the parties into court. Roe vs. Cock, 2 T. R. 258. It is no original Writ, but is in the Nature of an Exe- cution grounded on a Eecord precedent ; for every Latitat is founded on a Bill of Middlesex precedent, and supposes that the Party cannot be taken by the Sheriff of Middlesex, quia latitat et discurrit in another County. Everard vs. Blach, Yelv. 52. Law is a rule of conduct prescribed by the supreme power of the state, commanding what is right and prohibit- ing what is wrong. Loclee's Appeal, 72 Penn. St. 508. Law is a mode of human action respecting society, and must be governed by the same rules of equity which governs every private action. State vs. Luddington, 33 Wis. 116. (Quoting Burke's Works, vol. 6, p. 22. ) A rule of conduct prescribed to the state or people thereof, in accord with the Constitution of the United States, and of the state, when enacted by a State Legislature. State vs. McCann, 4 Lea (Tenn.) 7. Law, to use the definition of Mr. Justice Blackstone a little modified, to suit the genius of our institu- tions, " is a rule of civil conduct prescribed by the law-making power of the state, commanding what ia right or prohibiting what is wrong." Budd vs. The State, 3 Humph. (Tenn.) 490. 3 Humph. 490 ;4 Harr. (Del.) 502 ; 7 Iowa 281. ADJUDGED WORDS AND PHRASES. 353 LAW LAW Law and justice (distinguished.) Law is a system of rules, conformable, as must be supposed, to this standard, (of Justice), and devised upon an enlarged view of the relations of persons and things, as they practically exist. Justice is a chaotic mass of principles. Law is the same mass of principles, classified, reduced to order, and put in the shape of rules, agreed upon by ascertained com- mon consent. Justice is the virgin gold of the mines, that passes for its intrinsic worth ,m every case, but is subject to a varying value, according to the scales through which it passes. Law is the coin from the mint, with its value ascertained and fixed, with the stamp of government upon it which insures and de- notes its current value. Duncan vs. Magette, 25 Texas 253. Law day. The words "law day" once, and very expressively, marked the time when all legal rights were lost and gone, by the mortgagor's default. Kortright vs. Cady, 11 K Y. 365. The appointed day for the payment of the money, to secure which the mortgage was given, became known in legal parlance as the law day. Kortright vs. Cady, 21 N. Y. 345. Law iMPAmiNG contracts. A law which impairs a contract may be defined to be one which effects any deviation from its terms, by postponing, or accelerating the period of perform- ance which it prescribes, imposing conditions not expressed in the contract, or dispensing with the performance of those which are expressed, however minute or apparently immaterial in their effect upon the contract, or upon any part or parcel of it. State vs. Johnson, 25 Miss. 682. Law merchant is a particular system of customs, used only among one set of the king's subjects, which, however differ- ent from the rules of the common law, is yet ingraft- ed into it and made part of it ; being allowed for the benefit of trade, to be of the utmost importance in all commercial transactions. Bank of Utica vs. Wager, 2 Cowen (N. Y.) 747. (Quoting 1 Bl. Com. 75.) 354 ADJUDGED WORDS AUTO PHRASES. law lawful Law of the land. Lord Coke says, that the words " by the law of the land," mean by the course and process of law by in- dictment or presentment of good and lawful men, where such deeds be done in due manner or by orig- inal writ of the common law. People vs. Toynbee, 20 Barb. (N. Y) 199. By the law of the land is more clearly intended the general law which hears before it condemns ; which proceeds , upon inquiry, and renders judgment only after trial. The meaning is, that any citizen shall hold his life, liberty, property and immunities under the protection of general rules which govern society. Rowan vs. State, 30 Wis. 146. By " law of the .land," we understand laws that are general in their operation and that affect the rights of all alike. Sears vs. Cottrell, 5 Mich. 254. The " law of the land," in the sense of the constitu- tion, means any law which embraces all persons who are, or may come into like situation and circum- stances. Maney vs. The State, 6 Lea (Term.) 221. 3 Robertson (N. Y.) 96 ; 6 Penn. St. 91 ; 3 Lea 379, 423 ; 6 R. I. 146; 61 LI. 118 ; 1 Bay (S. C.) 391 ; 1 Rich. (S. C.) 115 ; 3 Wis. 66 ; 28 Wis. 470 ; 50 Miss. 479 ; 2 Yerg. 270 ; 10 Yerg. 71 ; 6 Heisk. 189 ; 3 Dess. (S. C.) 478 ; 48 N. H. 61. Lawful (juror.) The word " lawful " includes everything that the law requires in order to constitute the party a compe- tent juror. The State vs. Alderson, 10 Yerg. (Term.) 524. Lawful deed of conveyance. A lawful deed of conveyance may be fairly under- stood a deed conveying a lawful or a good title. Dearth vs. Williamson, 2 S. & B. (Ba.) 500. Lawful discharge. A lawful discharge, in its general signification, will extend to and be satisfied by any discharge obtained under the legislative authority of the State. Mason vs. Haile, 12 Wlveaton ( U. S.) 377. ADJUDGED WORDS AND PHRASES. 855 LAWFUL LEADING Lawful tbade (in maritime policy) meana the trade in which the ship is sent by the owner. Haveloclc vs. Hancill, 3 T. R. 782. 12 Wend. 467 ; 15 Wend. 18. Laws of a state. Those rules and principles of conduct which the governing power in a community recognize as the rules and principles which it will enforce or sanction, and according to which it will regulate, limit or protect the conduct of its members. Phelps vs. S. S. City of Panama, 1 W. T. (N. S.J 523. (Quoting Bouvier L. Bid. ) The rules and enactments promulgated by the legis- lative authority thereof, or long-established local cus- toms having the force of laws. Swift vs. Tyson, 16 Peters (U. S.J 18.- Lay (contract to sail a vessel on a.) When the owners agree with a mariner that he shall sail a vessel on "a lay," both parties understand that the mariner is to take the command of her as master, to victual and man her, pay one half the port charges ; the owner to keep the vessel in repair, and the freight and earnings to be equally divided between them. Thomas vs. Osborn, 19 Howard ( U. S.J 33. Lay out a eoad. The terms " lay out the road " and " lay off the road," import that the jury should not only fix the course of the road, as passing particular points, but also desig- nate it, after the manner of a survey, by its lines ; in other words, lay down the whole ground covered by the road, or specify its width. Small vs. Eason, 11 Ired. (N. G.J 97. Leading question. A leading question is one which suggests to the wit- ness the answer which the party desires ; or, which is so put as to embody a material fact, and to admit of an answer by a single negative, or affirmative ; though neither the one, nor the other, is directly suggested. Quitter vs. Watson, 4 Jones Law (N. G.J 456. A leading question is one, that, by its terms, suggests 356 ADJUDGED WORDS AND PHKASES. LEADING LEASE to the witness the answer he is expected to make, and leads him to make such answer. Harvey vs. shorn, 55 Ind. 544. A question is leading which puts into a witness' mouth the words that are to be echoed back, or plainly suggest the answer which the party wishes to get from him. People vs. Mather, 4 Wend (N. Y.) 247. Questions are objectionable as leading not only when they directly suggest the answer which is de- sirable, but also when they embody a material fact, and admit of an answer by a simple negative or affirmative, though neither the one nor the other is directly suggested. Willis vs. Quimby, 31 N. Hamp. 488. 26 Miss. 159 ; 40 N. H. 63. Lease. A lease is a contract for the possession and profits of lands and tenements, on the one side, and a recom- pense of rent, or other income on the other ; or it is a conveyance to a person for life, or years, or at will, in consideration of a return of rent or other recom- {>ense. The person letting the land is called the andlord ; and the party to whom the lease is made, the tenant. Jackson vs. liar sen, 7 Coioen (N. Y.) 326. (Quoting Woodfall, ch. 1, § 1.) A lease doth properly signify a demise or letting of lands, rent, common, or any hereditament unto another, for a lesser time than he that doth let it, hath in it. Bridge Proprietors vs. The State. 1 Zab. (N. J.) 388. (Quoting Shep. Touch. 266.) 7 Barb. 78 ; 24 Me. 545 ; 5 How. Pr. E. 71 ; 10 Phila. E. 53 ; 17 Conn. 411. Lease and assignment (distinguished) vide Assignment, &c. Lease fob years is a contract between lessor and lessee, for posses- sion of lands, &c, on one side, and a recompense by rent or other consideration on the other. Thomas vs. R. R. Co., 11 Otto (U. S.) 78. (Quoting 4 Bac. Abr. 632.) ADJUDGED WORDS AND PHRASES. 357 LEASE LEGACY A contract for the possession and profits of land for a determinate period, with the recompense of rent. Burr vs. Stenton, 52 Barb. (N. Y.J 389. (Quoting 4 Kent's Com. 85. ) Lease in reversion. In the most ample sense, that is said to be a lease in reversion which hath its commencement at a future day, and then, it is opposed to a lease in possession ; for every lease, that is not a lease in possession, in this sense is said to be a lease in reversion. Winter vs. Loveday, 1 Comyn 39. Leave (property.) The word leave as applied to the subject matter prima facie means a disposition by will. Doe ex dem Thorley vs. Tlwrley, 10 East 445. Leaving no issue. The phrase, " leaving no issue," applied to real es- tate means an indefinite failure of issue, and applied to personal estate means a definite failure of issue ; and this when both are devised in the same sentence and by the same words. Hall. vs. Chaffee, 14 N. Hamp. 231. Legacy. A bequest or gift of goods and chattels by will or testament. Orton vs. Orton, 3 Keyes (N. Y.J 488. 6 Ired. Ch. (N. C.) 177. (Quoting Jacob's L. Diet.) Legacy demonstrative vide Demonstrative legacy. Legacy general and specific (distinguished) vide General, &c. Legacy, satisfaction of. It takes place when the testator, in his life time, be- comes his own executor, and gives to his legatee what he had intended to give by his will. Beck vs. McGillis, 9 Barb. (N. Y.J 57. 3 Duer 541. Legacy vested. Where there is a substantive bequest or gift of a sum of money to be paid at a future time, there the bequest or legacy is vested. Bowman's Appeal, 34 Penn. St. 23. 358 ADJUDGED WORDS AND PHRASES. legal legal Legal assets are such parts of the property of a deceased person as may be reached or made available by an executor, simply virtute officii. Silk vs. Prime, 2 Leading Gases in Eq. 292. Legal assets and equitable assets (distinguished.) The property of a deceased person, which is available at common law for the purpose of satisfying his creditors, is commonly called legal assets, and will be applied both at law and in equity, in the ordinary course of administration, which gives debts of a cer- tain nature a priority over others ; where, however, the assets are such as are available only in a court of equity, they are termed equitable assets, and according to the well known maxim that equality is equity, will, after satisfying those who have liens on any specific property, be distributed amongst the creditors of all grades pari passu, without regard to legal priority. Silk vs. Prime, 2 Leading Cases in Eq. 291. Legal claim. A legal claim is one which the party asserting it may enforce by action, or by some proceeding at law, or equity. Cowan vs. Mayor, &c., N. Y. City, 3 Hun (N. Y.J 633. Legal commitment. The words legal commitment, mean any act of commit- ting, justifiable by the law of the land. People vs. Nevins, 1 Hill (N. Y.) 171. Legal consideration. Some act, which is a benefit to the person contract- ing, or an injury, or the foregoing of some advantage, by the other party to the contract. Sampson vs. Swift, 11 Vermont 316. Legal damages are such losses or detriments as the law compensates in consequence of a wrong committed. Shthr vs. Curran, 15 Vroom (N. J.J 201. Legal debt. The phrase "legal debt" must certainly mean a debt which can be enforced in a court of law. Rogers vs. Daniell, 8 Allen (Mass.) 348. Legal definitions are, for the most part, inductive generalizations de- ADJUDGED WORDS AND PHRASES. 859 LEGAL LEGAL rived from our juridical experience ; and, in order to be complete and adequate, they must sum up the re- sults of all that experience, as they are to be found in the special cases that belong to the class to be denned. MicMe vs. Miles, 1 Grant's Cases (Pa.) 328. vide Definitions. 31 Penn. St. 21. Legal demand. A " legal demand " means a demand properly made as to form, time and place, by a person lawfully au- ' thorized. Foss vs. Norris, 70 Maine 119. Legal fraud consists in wilfully inducing a belief, to the detriment of another, in the existence of a state of facts which the fraud-doer is aware does not exist. Kalil vs. Love, 8 Vroom (N. J.) 6. Legal process. The term "legal process" contemplates a process issued in virtue of and pursuant to law. Cooley vs. Davis, 34 Iowa 130. The words, " legal process," mean all the proceed- ings in an action or proceeding ; they would neces- sarily embrace the decree which ordinarily includes the proceedings. Perry vs. LoriUard Ins. Co., 6 Lansing (N. Y.) 204. Legal presumption. The legal or artificial presumption is, where the ex- istence of the one fact is not direct evidence of the other, but the one fact existing and being proved, the law raises an artificial presumption of the exist- ence of the other. Gulick vs. Loder, 1 Green (N. J.) 72. vide Presumption. Legal presumptions are artificial rules, established by the law, upon con- siderations of public policy or public convenience, against which no evidence is received. Bow. vs. Allenstown, 34 N. Hamp. 365. Legal presumptions are founded upon the experience and observation of distinguished jurists, as to what is usually found to be the fact resulting from any given 360 ADJUDGED WOKDS AND PHRASES. LEGAL LEGAL circumstances, and the result being thus ascertained, •whenever such circumstances occur, they are prima facie evidence of the fact presumed. Beits vs. Jackson, 6 Wend. (N. Y.) 181. Legal presumptions are of two kinds, viz : 1st. Such as are made by the law itself, or presumptions of mere law, which are conclusive. And 2d. Presump- tions of law and fact, which are not absolute, and may be rebutted. Estate of Brown, 8 FJiila. B. 198. vide Presumptions of law. Legal representatives. The ordinary meaning of the words "legal represen- tatives" is executors and administrators. Cox vs. Cur wen, 118 Mass. 200. It may mean heirs, next of kin or descendants. Warnecke vs. Lernbca, 11 IU. 92. When found in instruments other than those relat- ing to the administration of estates or the affairs of the deceased persons, it has been construed some- times to mean assignees, or a certain class of pur- chasers, accordingly as it was supposed the parties must have understood it. Warnecke vs. Lernbca, 11 IU. 93. A " legal representative " in the most extensive ac- ceptation of those words, is one who legally or law fully represents another in any matter or thing, of whatever nature or character it may be. Wear et al. vs. Bryant, 5 Mo. 164. In legal parlance, the executor or administrator is most commonly called the legal representative. Still in regard to things real, the heir is also the legal representative, and so is the devisee, who takes by purchase. * * An assignee or grantee is the legal representative of the assignor or grantor, in regard te the thing assigned or granted. Grand Gulf B. B. Co. vs. Bryan, 8 S. & M. (Miss.) 275. 9 HI. 458 ; 78 IU. 149 ; 39 HI. 21 ; 26 Cad. 37. Legal tender. To constitute a legal tender, it is essential to prove an actual offer of the sum due, unless the actual pro- duction and offer of the money be dispensed with, ADJUDGED WORDS AND PHRASES. 361 LEGAL LETTER by the express declaration of the creditor that he will not accept it, or by some equivalent act. Steele vs. Briggs, 22 III. 657. Legal yotees. Persons qualified by law to vote and who do vote. Sanford vs. Prentice, 28 Wis. 362. Legatees. The word legatees means in legal acceptation a donee of personal or moveable estate ; but it may mean donee of real estate whenever a testator plainly uses the word in that sense. Ben vs. Crawford, 3 Halst. (N. J.) 111. 5 Ired. Eq. (N. C.) 84. Legislative and judicial act (distinguished) vide Judicial, &c. Legitimacy is a legal capacity whereby property may be acquired by descent, &c; or, indeed, it may itself be regarded as a valuable kind of property, or a privilege of which the general assembly cannot constitutionally deprive any one, since the legislature cannot so judicially act upon the case as to deprive him of any legal capa- city, privilege, or property with which he has been legally invested. Campbell's Case, 2 Bland Ch. (Md.)236. Legitimate child. One whose parents were intermarried before it was born. Page vs. Dennison, 1 Grant's Cases (Pa.) 381. Legitimation is a fiction of the law, whereby one born out of lawful wedlock is considered the offspring of the marriage between the parents. Site, of CabaUers vs. Exr. et al., 24 La. Ann. 580. Letteb op credit. An open or sealed letter from one merchant in one place, directed to another in another place, requiring him, that if the person therein named or the bearer of the letter shall have occasion to buy commodities or to want moneys, he will procure the same, or pass his promise, bill or other engagement for it, on the writer of the letter undertaking that he will provide 862 ADJUDGED WORDS AND PHRASES. LETTER LETTERS him the money for the goods, or repay him by ex- change, or give him such satisfaction as he shall re- quire. Mec. Bank vs. N. Y. & N. H. B. B. Co., 13 N. Y. 630. (Quoting Bouvier L. Diet.) Letters of credit are of two kinds, general and spe- cial. A special letter of credit is addressed to a par- ticular individual by name, and is confined to him, and gives no other person a right to act upon it. A general letter on the contrary, is addressed to any and every person, and therefore gives any person to whom it may be shown authority to advance upon its credit. Union Bank vs. Coster's Exrs. 3 N. Y. 214. A letter written by one merchant or correspondent, to another, requesting him to credit the bearer with a sum of money. M. B. vs. N. Y. & N. H. B. B. Co., 4 Duer (N. Y.) 586. (Quoting McOulloch's Com. Diet.) A general letter of credit is, on the part of the writer, a proposal to come under certain obligations with any person who will deal with the party for whose use it is given. It is intended to be shown and offered to one and another ; and, whenever it is accepted and advances are made on its faith, there springs up at once a direct privity between the writer and him who advances, so that the former is bound to the latter to comply with its terms or answer in damages. Pollock vs. Helm, 54 Miss. 5. The special letter of credit is when a merchant, at the request of any other man, doth write his open letter of credit, directed to his factor, agent or correspon- dent, giving him order to furnish such or such a man, by name, with such or such a sum of money, at one or more times, and charge it to the account of the mer- chant that gives the letter of credit, and takes bills of exchange or receipt for the same. llegis vs. Herbert, 16 La. Ann. 225. 5 Hill (N. Y. ) 642. (Quoting Story on Bills of Exch. § 640.) Lettees OF MARQUE AND REPRISAL are a commission to attack the subjects of a foreign state on the high seas beyond the limits of the state, seize their property, and put it in sequestration. It is a hostile act of aggression. Gibbons vs. Livingston, 1 Halst. (N. J.) 255. ADJUDGED WORDS AND PHRASES. LEVANCY LEVY Levancy AND COUCHANCY. It means the possession of such land as will keep the cattle claimed to be commoned during the winter, and as many as the land will maintain in the winter, so many shall be said to be levant and couchant. Scholes vs. Hargreaves, 5 T. E. 48. Levant and couchant. What is meant by cattle levant and couchant, is the number of cattle which the land in respect of which the common is claimed will maintain. Cheesman vs. Hardham, 1 B. & A. 711. Levy means the act of appropriating — singling out certain property of the debtor, for the satisfaction of an ex- ecution, and it is done by making an endorsement to that effect upon the execution. Bland vs. Whitfield, 1 Jones Lata (N. C) 125. A levy is a statute conveyance to which the same rules of construction are to be applied as to a deed of conveyance. Jewett vs. Whitney, 43 Maine 251. Levy, in law, has a technical meaning, which is to col- lect the money. Collins vs. TerraU, 2 8. & M. (Miss.) 386. The phrase to levy bears different significations ac- cording to its object. To levy war is to make war. To levy money is to exact it. And although its ap- plication to the first part of the execution of a writ of fieri facias, may be comparatively modern, yet the expression " to levy on goods and chattels," is one that has long been used in the English law books, and in those of our neighboring states ; and where- ever found, it means to do the act, or acts, by which a sheriff sets apart and appropriates, for the purpose of satisfying the command of his writ, a part or the whole of the defendant's goods and chattels. Lloyd vs. Wyckoff, 6 Haht. (N. J.) 227. 1 Mo. App. E. 352. Levy and sale, means the subjecting of property to the satisfaction of a judgment. Comrs. Miami Co. vs. Wan-zop-pe-che, 3 Kansas 370. 364 ADJUDGED WORDS AM) PHRASES. levy libel Levy upon personal property is the act of taking possession of, attaching or seiz- ing it, by the sheriff or other officer, under and by- virtue of any execution he may hold against such property, whereby the lien of such execution upon such property becomes perfect, and the property is thereupon deemed to be in the custody of the law. Bond vs. WiUett, 1 Keyes (N. Y.J 386. Levying war (in U. S. Const.) To constitute a levying of war there must be an assemblage of persons in force, to overthrow the fovernment, or to coerce its conduct. Tnited States vs. Greathouse, 4 Sawyer ( U. S. C. G.J 466. Lewd house. A "lewd house" may properly be said to be a house in which fornication or adultery is practiced. Clifton vs. The State, 53 Georgia 244. Lewdness. The regular indulgence of lust, whether public or private. Gom. vs. Wardell. 128 Mass. 54. Liability is defined to be a state of being bound or obliged in law or justice. Joslin vs. N. J. Car Spring Co., 7 Vroom (N. J.) 145. Liability is responsibility ; the state of one who is bound in law and justice, to do something which may be enforced by action. This liability may arise from contracts either express or implied, or in consequence of torts committed. McElfresh vs. Kirdendall, 36 Iowa 226. (Quoting Bouvier L. Did. ) As a legal term, liability signifies that condition of affairs which gives rise to an obligation to do a par- ticular thing to be enforced by action. Haywood vs. Shreve, 15 Vroom (N. J.) 104. Amenability or responsibility to law ; the condition of one who is subject to a charge or duty which may be judicially enforced. Wood vs. Currey, 51 Cal. 209. 12 Heisk. 432. (Quoting Abbott's L. Diet.) Libel. A libel is a malicious defamation, expressed in print ADJUDGED WORDS AND PHRASES. 365 LIBEL LIBEL or writing, or by signs or pictures, tending to blacken the memory of the dead, with an intent to provoke the living, or to injure the reputation of one who is alive, and thereby expose him to public hatred, con- tempt or ridicule. HiUhouse vs. Dunning, 6 Conn. 407. Any malicious publication, written, printed or painted, which by words or signs tends to expose a person to contempt, ridicule, hatred or degradation of charac- ter< Barr vs. Moore, 87 Penn. St. 390. A publication, without justification or lawful excuse, which is calculated to injure the reputation of an- other, by exposing him to hatred, contempt or ridi- cule. Par miter vs. Goupland, 6 M. & W. 108. Any publication injurious to the social character of another, and not shown to be true, or to have been justifiably made, is actionable, as a false and mali- cious libel. Steele vs. SouthwicJc, 1 Am. Lead. Cases 116. If comment is beyond the limits of fair criticism it becomes libel. Campbell vs. Slottiswode, 3 Pest & Smith (Q. B.) 782. A libel is a malicious publication in printing, writ- ing, signs, arid pictures, imputing to another some- thing which has a tendency to injure his reputation, to disgrace or degrade him in society, lower him in the esteem and opinion of the world, or bring him into public hatred, contempt, and ridicule. Lay ton vs. Harris, 3 Harring. (Del.) 407. The injurious detraction of any one by writing or v equivalent symbols. Williams vs. Karnes, 4 Humph. (Tenn.) 11. A censorious or ridiculing writing, picture or sign, made with a mischievous and malicious intent towards government, magistrates or individuals. Steele vs. SouthwicJc, 9 John. (N. Y.) 215. Any publication, the tendency of which is to degrade or injure another person, to bring him into con- tempt, ridicule, or hatred, or which accuses him or her of a crime punishable by law, or of an act odious and disgraceful in society, is a libel. Dexter vs. Spear, 4 Mason (U. S. C. C.) 116. 866 ADJUDGED WORDS AND PHRASES. LIBEL LIBERTY Every publication in writing or in print which charges upon or imputes to a merchant or business man insolvency or bankruptcy, 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, is a libel. Erber vs. Dun., 12 Fed. Rep. 531. Everything written of another, which holds him up to scorn and ridicule, that might reasonably be con- sidered as provoking him to a breach of the peace, is a libel. Stone vs. Cooper, 2 Denio (N. Y.J 303. It means a contumelious or reproachful publication against a person ; any malicious publication, tend- ing to blacken his reputation, or expose him to pub- lic hatred, contempt or ridicule. Cooper vs. Stone, 24 Wend. (N. Y.J 440. Any written communication which bears on the face of it any charge, or which tends to vilify another, is &■ libel. Shipley vs. Todhunter, 1 C. & P. 689. vide Liberty of the press ; Privileged communications. 4 Wis. 238 : 8 Blackf. 426 ; 28 Mich. 375 ; 2 Del. 424 ; 3 Del. 407 ; '4 McC. (S. C.) 321 ; 5 Bissell 331 ; 4 Mass. 168 ; 25 Wend. 198 ; 2 Wils. 403 ; 11 Neb. 281 ; 1 Denio 354 ; 3 Humph. 395 ; 7 Conn. 268 ; 27 Conn. 61. LlBEEAL INTERPRETATION. By a liberal interpretation, we do not mean that the words should be forced out of their natural meaning ; but simply that the words should receive a fair and reasonable interpretation, so as to attain the objects for which the instrument is designed and the pur- poses to which it is applied. Lawrence vs. McCalmont, 2 Howard (U. S.J 449. 62 Barb. 355. Liberty (over an estate) imports, ex vi termini, a privilege to be exercised over another man's estate. A man's right of domin- ion over his own estate is never called a liberty. Bourne vs. Taylor, 10 East. 205. LlBEKTY OP THE PRESS. The liberty of the press consists in the right to pub- lish, with impunity, truth, with good motives, and for justifiable ends, whether it respects government, magistracy or individuals. People vs. Crosswell, 3 Johns. Cas. (N. Y.J 393. ADJUDGED WORDS AND PHRASES. 367 IIBERTY LICENSE The liberty of the press consists in printing without any previous license, subject to the consequence of law. Root vs. King, 1 Coioen (N. Y.) 628. The liberty of the press consists in a right, in the conductor of a newspaper, to print whatever he chooses without any previous license, but subject to be held responsible therefor to exactly the same extent, that any one else would be responsible for the publication. Sweeney vs. Baker et al., 13 W. Va. 182. The liberty of the press consists in the being free to publish anything, true or false, without previous restraint, subject only to the control of the law for the abuses of that liberty. Commonwealth vs. Buckingham, Thatcher's Gr. Cas. 39. Library. The term "library" may mean, either the room or place where books are kept, or the books in the ag- gregate. Carter vs. Andrews, 16 Pick. (Mass.) 9. License. A license is an authority given to do some act, or series of acts, on the land of another, without passing any estate in the land ; such as a license to hunt in another's land, or to cut down a certain number of trees. These are held to be revocable when execu- tory, unless a definite term is fixed, but irrevocable when executed. Cook vs. Stearns, 11 Mass. 536. A license, pure and simple, is a mere personal privi- lege ; it doth extend but to him to whom it was given, and cannot be granted over. Fast Jersey Iron Co. vs. Wright, 5 Stew. Eq. (N. J.) 253. A right given by some competent authority to do an act which, without such authority, would be illegal. North Hudson Co. R'y vs. Hoboken, 12 Vroom (N. J.) 75. (Quoting Bouvier L. Diet.) The object of a license is to confer a right that does not exist without a license. Chilvers vs. People, 11 Mich. 49. A power or authority given to a man to do some lawful act, and is a personal liberty to the party to 868 ADJUDGED WORDS AUD PHRASES. LICENSE LICENSE whom given, which cannot be transferred over, but it may be made to a man or his assigns. Caldwell vs. Fulton, 31 Penn. St. 477. (Quoting Tomlin's L. Did.) An authority to do a particular act or series of acts upon another's land, without possessing any estate therein. It is founded on personal confidence, and is not assignable, nor within the statute of frauds. Sampson vs. Burnside, 13 N. Hamp. 265. (Quoting 2 Kent Com. 452.) Is a power or authority given to a man to do a lawful act. Bridges vs. Furcell, 1 Dev. & Bat. (N. C.J 496. In both the legal and popular sense, the term license implies no right or estate conveyed or ceded, no binding contract between parties, but mere leave and liberty, to be enjoyed as matter of indulgence, at the will of the party who gives the license. State vs. Holmes, 38 N. Hamp. 227. 15 Wend. 390 ; 7 Barb. 78 ; 4 Sandf. Ch. 91 ; 14 Ct. of CI. 327 ; 74 m. 185 ; 16 Pick. 273 ; 17 HI. 365 ; 48 Ala. 293 ; 10 Barb. 343, 507 ; 19 Ark. 32; 21 N.H. 309. License and easement (distinguished) vide Easement, &c. Licensee (of a patent) is one who has had transferred to him, in writing or orally,_a less or different interest than either the in- terest in the whole patent, or an undivided part of such whole interest, or an exclusive sectional interest. Potter vs. Holland, 4 Blatchf. (U. S. C. C.J 211. License fee. A license fee proper, exacted merely for the purposes of revenue, is a burden imposed as payment, for the right of exercising a franchise or privilege which the legislature would have the right to withhold or in- hibit altogether. Wiggins Ferry Co. vs. Fast St. Louis, 102 IK 576. It is a price paid for a franchise * * vested in the individual. Chilvers vs. The People, 11 Mich. 43. License, powee to The power to license, strictly and properly speaking, is simply a power to sell a privilege, and hence is con- fined to the granting of a privilege to do a thing in a ADJUDGED WORDS A1ND PHRASES. 809 LICITATTON LIEN case where the privilege might be withheld, or the doing of the thing might lawfully be prohibited en- tirely. Wiggins Ferry Co. vs. East St. Louis, 102 III. 577. Licitation. An act by which the co-heirs or other co-proprietors of a thing by undivided interests, put it up at auction among themselves, in order that it shall be adjudged to belong wholly to him offering the most and bid- ding last, under a charge upon such last bidder to pay to each of his co-proprietors a part in the price equal to the undivided interest which each of the said co-proprietors had in the property offered pre- vious to the adjudication. Haclie vs. Ayrand, 14 La. Ann. 179. Lie. vide' Bare, naked lie. Lien. It is a French word, and originally signifies a string, tie, or band, and in the metaphorical sense in which the law uses it, it signifies such hold or claim upon a thing, for the satisfaction of a debt, duty or demand, as that it cannot be taken away until the same be satisfied and paid. Stansbury vs. Pat. Cloth Man. Co., 2 South. (N. J.) 441. A lien is not a property in the thing itself, nor does it constitute a mere right of action for the thing. It more properly constitutes a charge upon the thing. Ocean National Bank vs. Olcott, 46 A 7 . Y. 1 7. Lien is, strictly speaking, said to be, neither a jus in re, nor a jus ad rem, but simply the right to possess and retain property until some charge, justly attach- ing to it, is paid or discharged. Neil vs. Kinney et al., 11 Ohio St. 68. The right which one person, in certain cases, posses- ses of detaining property placed in his possession, belonging to another, until some demand which the former has is satisfied. Crommelin vs. N. Y. & H. R. R. Co., 10 Bos. (N. Y.) 80. At the common law the lien of a mechanic, manufac- turer, or other laborer " is neither a jus ad rem nor a jus in re: that is to say, it is not a right of property in the thing itself, or a right of action to the thing itself ;" but it is a security, derived from a " general 870 ADJUDGED WORDS AND PHRASES. LIEN LIEN principle of the common law, which gives to a man who has the lawful possession of a thing and has ex- pended his money or his labor upon it, at the request of the owner, a right to retain it until his demand is satisfied." Jacobs vs. Knapp, 50 N. Hamp. 75. A lien is a right in one man to retain that which is in his possession belonging to another, till certain de- mands of him the person in possession are satisfied. Hammonds vs. Barclay, 2 East. 235. A lien is an obligation, tie or claim, annexed to, at- taching upon, any property, without satisfying which it cannot be demanded by its owner. Mil vs. Staten, 7 Heisk. (Tenn.) 290. A lien means a right to hold. Wilson vs. Balfour, 2 Camp. 582. A lien is a proprietary interest, a qualified ' owner- ship, and in general, can only be created by the owner, or by some person by him authorized. Small vs. Bobinson, 69 Maine 427. A lien is a charge on property for the payment of a debt or duty, and for which it may be sold in dis- charge of the lien. Bliss vs. Clark, 39 HI. 594. A lien is a special right which one has in that of which another has the general property ; and, to the extent of the lien, it is an abridgement of the domin- ion which the latter has in the thing. Hay den vs. Delay, LittelVs Sel. Gases (Ky.) 279. Lien is a right by the possessor of property to hold it for the satisfaction of some demand. Baldwin vs. Wheaton, 12 Wend. (N. Y.) 262. A lien is a personal right, and cannot be transferred to another. Daubigny vs. Duval, 5 T. B. 606. In its most extensive signification, this term includes eyery case in which real or personal property is charged with the payment of any debt or duty ; every such charge being denominated a lien on the property. In a more limited sense, it is defined to be a right of detaining the property of another until some claim be satisfied. Storm vs. Waddell, 2 Sandf. Oh. (N. Y.) 507. (Quoting Bouvier X. Did.) ADJUDGED WOKDS AND PHRASES. 871 LIEN LIFE A lien appears, by all the cases, to be a personal right, and can endure no longer than the possession • of the party holding it continues. Urquhart vs. Mclver, 4 John. (N. Y.) 112. A lien, as known in courts of equity, is used to de- note merely a charge or incumbrance of one person upon the property of another, but not in possession. Davis vs. Flagstaff Silver Mining Co., 2 Utah 91. Liens only exist in three ways; either by express- contract, by usage of trade, or where there is some legal relation between the parties. Smith vs. Plummer, 1 B. & A. 582. vide Eight of lien. 1 Doug. (Mich.) 16 ; 1 Mich. 472 ; 2 McMullan (S. C.) 189 ; 11 Ohio St. G8 ; 13 Ala. 434 ; Gilpin (U. S. D. C.) 104 ; 49 N. H. 352 ; 6 How. (Miss.) 562 ; 4 John. (N. Y.) 112 ; 44 Misa. 518 ; 48 Wis. 253 ; 30 Penn. St. 277 ; 32 Penn. St. 360 ; 12 Fla. 85 ; 7 Ore- gon 434 ; 21 Vt. 602 ; 26 Wend. 472 ; 3 Bland Ch. (Md.) 542 ; 85 N. C. 432 ; 7 Heisk. 290. Lien fob freight. A right to detain the goods on board until the freight which has been actually earned upon them, which is always capable of being calculated and ascertained, has been paid, and where the owner of the goods knows what he is to tender. Phillips vs. Rodie, 15 East 554. Life consists in the definite combination of heterogeneous changes, both simultaneous and successive, in corres- pondence with external co-existences and sequences, or in other words, in the continuous adjustment of internal relations to external relations. Coffee vs. H. L. Ins. Co., 3 Jones & Spencer (N. Y.J 327. 44 How. Pr. It. 488. (Quoting Herbert Spencer.) Life insurance. The contract commonly called life-assurance, when properly considered, is a mere contract to pay a cer- tain sum of money on the death of a person, in the consideration of the due payment of a certain annu- ity for his life. Dalby vs. Life Assurance Co., 80 Eng. C. L. 387. Life insurance (is a contract,) in which one party agrees to pay a given sum upon the happening of a E articular event -consequent upon the duration of uman life in consideration of the immediate pay- ADJUDGED WORDS AND PHRASES. LIMITED LIQUIDATED ment of a smaller sum or certain equivalent periodi- cal payments by another. The State vs. Mer. Ex. Mut. B. Soc. 12 Mo. 159. vide Insurance. Limited fee vide Qualified fee. .Limitation is a certain time prescribed by statute, within which the demandant in an action must prove himself, or some of his ancestors, seized. Eakin vs. Banb, 12 8. & B. (Pa.) 369. Limitation (of an estate.) When an estate is so expressly confined and limited by the words of its creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation. Fifty Associates vs. Eowland, 11 Met. (Mass.) 102. Limitation and condition (distinguished) vide Condition, &c. Limited paetnebship is one in which one or more of the partners are so in the usual way, iii respect to power, property and ob- ligation, and one or more of them have placed a cer- tain sum in the business and may lose that, but are not liable further. Taylor vs. Webster, 10 Vroom (N. J.) 104. (Quoting Parson on Part. ch. 17.) Liquidated account. An amount certain and fixed, either by the act and agreement of the parties or by operation of law ; a sum which cannot be changed by the proof ; it is so much or nothing ; and the term does not necessarily refer to a writing. Nisbet vs. Laivson, 1 Georgia 287. Liquidated debt. A debt is liquidated when it is certain what is due and how much is due. Boberts vs. Prior, 20 Georgia 562. (Quoting Bouvier L. Diet.) Liquidated demand. A demand is a liquidated one, if the amount of it ADJUDGED WORDS AND PHRASES. 378 LIQUIDATION LIVERY has been ascertained — settled — by the agreement of the parties to it, or otherwise. Mitchell vs. Addison, 20 Georgia 53. Liquidation. It appears to be a word of French origin and it is said to be a word of jurisprudence, of finance, and of commerce ; the action by which one determines, or fixes, that which has been indeterminate in every species of accounts ; liquidation of expenses, of in- terest, of accounts ; liquidation of profits ; liquida- tion and partition of a succession. Martin vs. Kirk, 2 Humph. ( Tenn.J 531. Liquob SHOP. A house where spiritous liquors are kept and sold. Wooster vs. State, 6 Baxter (Tenn.J 5341 Lis pendens. A lis pendens is constructive notice to a purchaser from the defendant, and he and his interest will be bound by the decree entered in the suit. Harrington vs. Slade, 22 Barb. (N. Y.J 166. List ordinarily signifies a roll or catalogue. Homer vs. Cilley, 14 N. Hamp. 100. LlTERARY PROPERTY is the right which entitles an author, or his assig- nees, to all the use and profit of his composition. Palmer vs. DeWitt, 2 Sweeny (N. Y.J 552. Literary property may be described as the right which entitles an author and his assigns to all the use and profit of his composition, to which no inde- pendent right is, through any act or omission on his or their part, vested in another person Keene vs. Wheatley, 5 Penn. Law Journ. 530. Livery op seizin is the investiture or delivery of corporeal possession of the land or tenement. Den. vs. Craivford, 3 Hoist, (N. J.) 108. (Quoting 3 Bl. Com. 310.) Livery stable. A place where horses are groomed, fed and hire*., where vehicles are let. Williams vs. Garignes, 30 La. Ann. 1095. 874 ADJUDGED WOKDS AND PHRASES. ijving loan Living in adulteby. It is not necessary, to constitute " a living in adul- . tery or fornication," that the guilty parties should live together in the same house continually, as man and wife. Any habitual illicit intercourse between them, though living apart, will constitute the offence. Smith vs. State, 39 Ala. 555. Living in adultery means living in the practice of adultery. Goodwin vs. Owen, 55 Ind. 249. The sleeping under the same roof, and in the same bed at stated nights, must be regarded as a living together. Collins vs. State, 14 Ala. 610. Loan. By a loan of money is meant the delivery by one party, who is called the lender, to, and the receipt by the other party, who is called the borrower, of a given sum of money, upon an agreement, express or implied, to repay the sum loaned with or without in- terest. Payne vs. Gardiner, 29 N. Y. 167.. It is a grant of something, made in a gratuitous manner, for some certain use and for some certain time, express or implied, to the end that the same species should be again returned or restored again to us i and not another species of the same kind or nature, and this in as good plight as it was delivered. Booth vs. Terrell, 16 Georgia 25. Every advancement of money, for the accommodation of another, to be repaid to the person making the ad- vance, by the person receiving it, or by any person for him, or by or out of his funds, is literally and le- gally a loan of money. Freeman vs. Brittin, 2 Harr. (N. J.) 206. A loan is said to be that which is furnished for tem- porary use, with a condition that it shall be returned, or its equivalent, with a compensation for the use. Rodman vs. Munson, 13 Barb. (N. Y.J 75. Loan foe use. A bailment of goods to be used by the bailee tempo- rarily, or for a certain time, without rewar d . Elton vs. MarMam, 20 Barb. (N. Y.) 348. (Quoting Story on BaUm. § 6, 219, 220. ) ADJUDGED WORDS AND PHRASES. 875 local lodger Local. Relating to place, belonging or confined to a partic- ular place, distinguished from general, personal or transitory. People vs. Hills, 35 K Y 451. 43 N. Y. 19 ; 51 How. Pr. K. 111. (Quoting Murrill's L. Diet.) Local and transitory actions (distinguished) vide Transitory, &c Local freight (on E. E.) means freight shipped from either terminus to a way station, or vice versa, or from one way station to an- other, that is over a part of the road only. Mobile & Mont. By. Co. vs. Steiner, 61 Ala. 579. Local law. The word local, as applied to a bill, to an act, to a law, means such bill, act, or law as touches but a portion of the territory of the state, a part of its people, a fraction of the property of its citizens. People vs. Supervisors of Chautauqua, 43 N. Y. 16. 68 N. Y. 383 ; 49 N. Y. 135. Location. It is often applied to denote the act of selecting and making out the line upon which a railroad, canal, or highway is to be constructed. Mickey vs. C. & W. Ind. R. R. Co., 6 Brad. (III.) 179. (Quoting Bouvier L. Diet.) Loco parentis. The proper definition of a person in loco parentis to a child is, a person who means to put himself in the situation of the lawful father of the child, with refer- ence to the father's office and duty of making provi- . sion for the child. Brinkerhoff vs. Merselis' Exrs., 4 Zab. (N. J.) 683. A person assuming the parental character, or dis- charging the parental duties. Wetherby vs. Dixon, 19 Vesey 412. Lodger. One who occupies hired apartments in another's house ; a tenant of a part of another's house. Ullman vs. The State, 1 Tex. App. 222. If one come to an inn, and make a previous contract for lodging for a set time, and do not eat or drink there, he is no guest, but a lodger, and as such is not ADJUDGED WORDS AND PHRASES. LOG-ROLLING LOSS under the innkeeper's protection ; but if he eat and drink there it is otherwise ; or if he pay for his diet there, though he do not take it there. Parker vs. Flint, 12 Mod. 255. 36 Barb. 460. Log-rolling (in legislature) is embracing in one bill several distinct matters, none of which, perhaps, could singly obtain the assent of the legislature, and their procuring its passage by a combination of the minorities in favor of each of the measures, into a majority that will adopt them all. Walker vs. Griffith, 60 Ala. 369. Logs (in statute) means the stems or trunks of trees cut into conven- ient lengths for the purpose of being afterwards man- ufactured into lumber of various kinds, to supply the manifold wants of a civilized community, and does not include manufactured lumber of any kind, nor timber which is squared or otherwise shaped for use, without further change in form. Kollock vs. ParcJier, 52 Wis. 398. Lookout (on a vessel.) By a proper look-out, we do not mean merely per- sons on deck, who look at the light ; but some onein a favorable position to see, stationed near enough to the helmsman to communicate with him, and to re- ceive communications from him, and exclusively em- ployed in watching the movements of vessels which they are meeting or about to pass. Genesee Chief vs. Fitzhugh, 12 How. (U. 8.) 462. 18 How. Pr. E. 485. Loss op freight (in insurance.) The expression " the loss of freight " has two mean- ings, and the distinction between them and its effects it is material to bear in mind. Freight may be lost in the sense, that, by reason of the perils insured against, the ship has been prevented earning freight ; or you may use the expression " loss of freight " in the sense that it may be lost to the owner, after it has been earned, by some circumstance unconnected with the contract between the assured and the under- writers on the freight. Scott. Mar. Ins. Co. vs. Turner, 20 Eng. L. & Eq. 42 6Duer292. .-__.. ADJUDGED WOKDS AND PHRASES. 877 lottery lunacy Lottery is a game of hazard, in which merchandise is depos- ited in prizes for the advantage of those who gain the tickets which entitle them to such prizes. Gov'ts, &c. vs. Am. Art U'n, 32 How. Pr. 11. (N. Y.J 347. A sort of gaming contract, by which, for a valuable consideration, one may by favor of the lot, obtain a prize of a value superior to the amount or value which he risks. United States vs. Olney, Deady ( U. S. C. C.J 464. A lottery is a scheme for the distributiou of prizes by chance — a game of hazard, in which small sums are ventured for the chance of obtaining a larger value, either in money or other valuables. State 'vs. Lovell, 10 Vroom (N. J.) 461. Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is a lottery. Hill vs. Buggies, 56 N. Y. 427. 3 Oregon 291 ; 33 N. H. 335 ; 5 Sneed 509 ; 40 111. 467 ; 41 Tex. 297 ; 73 Mo. 650 ; 8 Phila. E. 459. LOW WATER is the furthest receding point of ebb tide. Howard vs. Ingersoll, 13 Howard (U. S.J 417. Lucid interval. By a lucid interval is not meant a perfect restoration to reason, but a restoration so far as to be able, be- yond doubt, to comprehend and to do the act, with such reason, memory and judgment as to make it a legal act. Frazer vs. Frazer, 2 Del. Ch. 263. vide Perfect interval. Lucrative office. An office to which there is attached a compensation' for services rendered is a lucrative office. State vs. Kirk, 44 Ind. 405. Lunacy is that condition or habit in which the mind is directed by the will, but is wholly or partially misguided, or erroneously governed by it ; or it is the impairment of any one or more faculties of the mind, accompa- 378 ADJUDGED WORDS AND PHRASES. LUNATIC MAGISTKATE nied with, or inducing a defect in the comparing faculty. Owing' s Case, 1 Bland Ch. (Md.) 386. Lunatic. A lunatic or non compos mentis is one that hath had understanding but by disease, grief, or other acci- dent, hath lost the use of his reason Case of John Beaumont, 1 Wliart. (Pa.) 53. Lunatick is a technical word, coined in more ignor- ant times, as imagining these persons were affected by the moon ; but discovered by philosophy and in- genious men, that it is entirely owing to a defect of the organs of the body. Ex parte Barnsley, 3 Ath. 174. A person who sometimes has understanding and sometimes not. Matter of Barker, 2 John. Gh. (N. Y) 233. One who has lost the use of that reason or under- standing which he once had. Odell vs. Buck, 21 Wend. (N. Y.J 143. 3 MoC. (S. C.) 252 ; 2 Brewster (Pa.) 493. Lying in wait is being in ambush for the purpose of murdering an- other. State vs. Abbott, 8 W. Va. 769. (Quoting Bouvier L. Diet.) Now, we take the expression "lying in wait" not merely to mean his concealing himself in the path of his intended victim, for the purpose of killing him, but the deliberately andpremeditatedly seeking an oc- casion to effect the deadly purpose. Burgess vs. Commonwealth, 2 Va. Cases 488. To constitute lying in wait, three things must concur, to wit, waiting, watching, and secrecy ; and these ■ facts must be established beyond a reasonable doubt, to authorize the conclusion that there was such lying in wait. Riley vs. The State, 9 Humph. (Tenn.) 651. Magisteate (from the Latin Magistrates): A public civil officer, invested with some part of the legislative, executive or judicial power, given by the Constitution. * * In a narrower sense, the term only includes inferior judicial officers, such as justices of the peace, &c. Martin vs. State, 32 Ark. 127. ADJUDGED WORDS AND PHRASES. 379 MAGISTRATE MAINTENANCE A generic term importing a public officer, exercising a public authority. Scanlan vs. Wright, 13 Pick. (Mass.) 528. Main sea. That part of the sea which is not within the body of a county is considered as the main sea or ocean. Baker vs. Hoag, 3 Barb. (N. Y.J 206. That part of the sea lying outside of the terrae fauces or points on the opposite shore sufficiently near to enable persons standing on one shore to distinctly see and discern with the naked eye what is doing on the opposite shore. People vs. Supervisors, 73 iV. T. 396. vide High sea. Matneb. When a libel is produced written by a man s own hand, and the author of it is not known ; he is taken in the mainer, and that throws the proof upon him ; and if he cannot produce the composer, the verdict will be against him. Rex vs. Beare, 1 Ld. Raym. 417. From the French manier, i. e. manu tractare in a legal sense denotes the thing that a thief taketh or stealeth ; as to be taken with the mainour is to be taken with the thing stolen about him. King vs. Johnson, 2 Heard Lead. Cr. Cas. 440 n. 1. (Quoting Cornell's L. Did. ) Maintain (in pi.) signifies to support what has already been brought into existence. Moon vs. Burden, 2 Welsh. II. & Gord. 30. Maintenance is a malicious or officious intermeddling with a suit that does not belong to him, by maintaining or as- sisting either party with money, or otherwise, to prosecute or defend it. Christie vs. Sawyer, 44 N. Hamp. 303. (Quoting 4 Bl. Com. 134.) Maintenance is the assisting another person in a law suit, without having any privity or concern in the subject. Wickham vs. Gonklin, 8 John. (N. T.) 228. Maintenance signifies an unlawful taking in hand, or upholding of quarrels, or sides, to the disturbance or 380 ADJUDGED WORDS AND PHRASES. MAINTENANCE MALICE hindrance of common right ; as where one maintains another by advice, assistance or money, without any contract to have part of the thing in suit. Hovey vs. Hobson, 51 Maine 63. Maintenance in a court of justice, is where one offi- ciously intermeddles in a suit, depending in any such court, which no way belongs to him, by assisting either party with money, or otherwise, in the prose- cution or defence of any such suit. Barnes vs. Stroiig, 1 Jones Eg. (N. C.) 104. Maintenance is, when a man maintains a suit or quarrel to the disturbance or hindrance of right. Sherhy vs. Biggs, 11 Humph. (Tenn.) 56. (Quoting 5 Comyn Dig. 22. ) 11 Humph. 54; 30 Wis. 233; 2 Mo. App. R. 4 ; 3 Harr. (Del.) 208 ; 1 Taunt. 613 ; 54 Ala. 66 ; 40 Conn. 570 ; 2 Baxt. 457 ; 10 Heist. 341. Make an awaed. To make an award, is to form and publish a judgment, upon the facts. Hoff vs. Taylor, 2 South. (N. J.) 833. Maladministration of an estate. We understand "maladministration of the estate" to mean acts affecting the property or assets of the es- tate, of which wasting and embezzlement are speci- mens. Forrester vs. Forrester's Admrs., 37 Ala. 399. Malfeasance is the doing of an act wholly wrongful and unlawful. Coite vs. Lynes, 33 Conn. 115. Malice, in common acceptation means ill will against a per- son, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. Bromage vs. Prosser, 4 B. & G. 255. Malice in the sense of the law does not necessarily presuppose in a party a personal hatred or revenge- ful spirit against the party injured. It is sufficient to constitute it a malicious act, that it is wrongfully and wilfully done, with a consciousness that it is not according to law or duty. Wiggin vs. Coffin, 3 Story (U. S. C. C.J 7. Malice is but a wicked and evil state, a frame of ADJUDGED WORDS AND PHRASES. 381 MALICE - MALICE mind, towards another ; a mental emotion, aroused and awakened by some motive of real or imagined wrong ; or of some personal benefit, or advantage to be gained, fostered and cherished in moments of coolness, sedateness and deliberation, and which prompts to action, and seeks its gratification in the destruction of its intended victim, whenever a favor- able conjuncture of circumstances may present it- self. Cotton vs. The State, 32 Texas 641. Malice is a deliberate, wicked, vindictive temper, re- gardless of social duty, and bent on mischief. Perm,, vs. Bell, Addison (Pa.) 161. Malice is a disposition to injure another without cause, from a spirit of revenge merely, or for per- sonal gratification. King vs. Boot, 4 Wend. (N. Y.) 155. A spirit desiring harm or misfortune to another without just cause. The People vs. Vanderpoel, 1 Mich. Nisi Pr. 267. Malice is a wicked intention to do an injury. Tuttle vs. Bishop, 30 Conn. 85. Malice, although in its popular sense it means hatred, ill-will or hostility to another, yet, in its legal sense, has a very different meaning, and characterizes all acts done with an evil disposition, a wrong and un- lawful motive or purpose ; the wilful doing of an in- jurious act without lawful excuse. Com. vs. York, 9 Met. (Mass.) 104. Malice is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken. Harris vs. Tlie State, 8 Texas App. 109. 48 Mo. 161 ; 25 Mo. 151 ; 1 Ind. 353 ; 13 111. 274 ; "Wright (Ohio) Y6 ; 30 Miss. 684 ; 2 La. An. 969 ; 12 Fla. 125 ; 34 Cal. 53 ; 10 N. Y. 139. Malice and passion (distinguished) vide Passion, &c. Malice implied means malice which has no existence in fact, but which the law imputes to the guilty party. Barry vs. People, 10 N. Y. 138. It is an inference or conclusion founded upon the ADJUDGED WORDS AND PHRASES. MALICE MALICIOUS particular facts and circumstances of the case as they are ascertained to exist. Tooney vs. The Stale, 5 Texas App. 189. Malice implied is malice in a legal sense, and means that the fact hath been attended with such circum- stances as carry with them the plain indication of a malevolent and diabolical spirit. Commonwealth vs. Green, 1 Ashm. (Pa.) 296. vide Implied malice. Malice particular vide Particular. Malice prepense. It does not signify ill-will or malevolence against an individual ; it means, as some authors express it, a disposition to do evii : as others, the symptom of a wicked, depraved and corrupted heart : as others, the sign of a heart regardless of social duty, and fa- tally bent on mischief : by others, it is termed a cir- cumstance attending the fact, that cuts off the slayer from all manner of excuse. State vs. Morris, Haywood (N. C.J 445. Malice prepensed is when one compasseth to kill, wound or beat another, and doth it sedato animo. This is said in law to be malice forethought, preprensed, malita praecogita. 3 Inst. 51. Malicious imports nothing more than the wicked and perverse disposition with which the party commits the act. Com. vs. York, 9 Met. (Mass.) 106. The intentional doing of a wrongful act with knowl- edge of its character, and without cause or excuse, is malicious. Pounds vs. D. L. & W. P. P. Co., 3 Hun (N. Y.J 335. In a legal sense, any unlawful act done wilfully and purposely to the injury of another is, as against that person, malicious. Cubbertson vs. Cabeen, 29 Texas 256. Malicious injury. A " malicious injury " is defined to be an injury com- mitted wantonly, willfully, or without cause. Pounds vs. D. L. & W. P. P. Co., 3 Hun (N. Y.J 335. (Quoting BurriU's L. Diet) ADJUDGED WOKDS AND PHRASES. 383 malicious maliciously Malicious intention. An intention to kill unlawfully, without sufficient provocation, is a malicious intention, and if the in- tent is executed, the killing is, in law, from malice aforethought, and is murder. United States vs. McOlue, 1 Curtis (U. S. C. C.J 4. Malicious mischief. In its general application it may be defined to be any malicious or mischievous injury, either to the right of another, or to those of the public in general. Duncan vs. State, 49 Miss. 337. (Quoting 2 Whart. Am. G. L. § 2062.) Malicious mischief is an injury done either out of a spirit of wanton cruelty, or black and diabolical re- venge. Com. vs. Williams, 110 Mass. 402. (Quoting 4 El. Com. 244.) Malicious mischief is the wanton or reckless destruc- tion of or injury to property. First Nat. Bank of Flora vs. Burhett, 101 III. 394. This is such as is done, not animo furandi or with in- tent of gaining by another's loss, which is some, though a weak excuse, but either out of a spirit of wanton cruelty or black and diabolical revenge, in which it bears a near relation to the crime of arson ; for as that affects the habitation, so this does the other property of individuals. State vs. Beekman, 3 Dutch (N. J.) 126. (Quoting 4 Bl. Com. 244. ) Malicious mischief to be indictable consists in the wilful destruction of some article of personal prop- erty, from actual ill-will or resentment towards its owner or possessor. State vs. BoUnson, 3 Dev. & Bat. (N. C.J 131. 3 Cush. 561. Malicious peosecution and false impbisonment (disting- uished) vide False imprisonment, &c. Maliciously (in Tenn. Code, § 3531, suing out attachment.) The word " maliciously " here means not only that malevolent intention to do injury, commonly called malice, but also that careless disregard of the rights of others which, without real ill-will, the law implies 384 ADJUDGED WORDS AND PHRASES. V MALTBEATMENT MANDAMUS as malice, and which in cases like this, is an implica- tion from want of probable cause. Jerman vs. Stewart, 12 Fed. Rep. 268. Maltkeatment. It is synonymous with bad treatment, and does not imply, necessarily, that the conduct of the surgeons, in their treatment * * * was either wilfully or grossly careless. Com. vs. Haclcett, 2 Alien (Mass.) 143. Managing agent (of a corporation) is employed to distinguish a person who is invested with general power, involving the exercise of judg- ment and discretion, from an ordinary agent or em- ployee, who acts in an inferior capacity, and under the direction and control of superior authority, both in regard to the extent of the work and the manner of executing the same. Reddingtonvs. Mariposa L. & M. Co., 19 Sun (N. Y.J408. Mandamus. A mandamus is a prerogative writ to an inferior judi- cature, commanding it to do some particular thing appertaining to its office and duty, and which the higher court has previously determined or supposes to be consonant to justice. Cortelyou vs. Ten EycJc, 2 Zab. (N. J.) 41. Mandamus is a prerogative writ designed to afford a summary and specific remedy in those cases where without it the party will be subjected to a serious injustice. Tawas R. R. vs. Josco Circ. Judge, 44 Mich. 483. A command issuing in the King's name, from the Court of King's bench, and 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 of King's bench has previously determined, or at least supposes to be consonant to right and justice. Ex parte Crane, S Peters (U. S.) 192. A high prerogative and remedial writ, the appropri- ate functions of which are the enforcement of duties to the public, by officers and others, who either neg- lect or refuse to perform them. Com. vs. Allegheny Co., 31 Penn. St. 219. 1 Cranch 168 ; 12 Peters 614 ; 28 N. Y. 114 ; 3 Del. 306 ; 5 Cranch 271 ; 36 Tex. 399 ; 29 La. An. 267 ; 3 Coldw. 260. ' ADJUDGED WORDS AND PHRASES. 885 mandate manslaughter Mandate. A contract by which a lawful business is committed to the management of another, and by him under- taken to be performed without reward. Bichardson vs. Futrell, 42 Miss. 543. (Quoting Story on Bailm. ch. 3 § 137.) Mandate is where one undertakes without recom- pense to do some act for another in respect to the thing bailed. McCauky vs. Davidson, 10 Minn. 421. A bailment of goods, without reward, to be carried from place to place, or to have some act performed about them. Eddy vs. Livingstone, 35 Mo. 492. 8 Ga. 180. Mania is that form of insanity where the mental derange- ment is accompanied with more or less of excite- ment. Hall vs. Unger, 2 Abbott (U. S. C. C.J 510. Manifest (error in assessment or return) means something which is apparent by an examina- tion of the assessment-roll or return, needing no, evi- dence to make it more clear. * * It is synonymous with evident, visible, plain, obvious to the under- standing from an examination of the roll or docu- ment. Matter of Hermance et al., 71 N. Y. 486. Manslaughter is the unlawful killing of another, without malice either express or implied ; which may be, either vol- untarily, upon a sudden heat, or involuntarily in the commission of some unlawful act. M'Whirt's Case, 3 Gratt. (Fa.) 605. Manslaughter is where a person kills another upon a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice. State vs. Zellers, 2 Hcdst. (N. J.) 243. Manslaughter is the unlawful and felonious killing of another, without malice, either express or im- plied. Kilpatrich vs. Com., 31 Penn. St. 201. Manslaughter is voluntary when committed with a ADJUDGED WORDS AND PHRASES. MANTIFACTUEE MAP design to kill, under the influence of a sudden and violent passion caused by great provocation, which the law, in its tenderness to the infirmity of human nature, considers such a palliative of the offense as to rebut the presumption which would otherwise arise from malice. It is involuntary when com- mitted by accident, or without any intention to take life. Z7. S. vs. Outerbridge, 5 Sawyer ( JJ. S. C. C.J 622. 5 Cowen 51 ; 23 111. 21. Manxtfactuke. The process of making any thing by art, or of reduc- ing materials into a form fit for use by the hand, or by machinery, and it seems to imply a proceeding wherein the object or intention of the process is to produce the article in question. Eolden vs. Clancy, 58 Barb. (N. Y.J 597. Making an article by hand, which was once the lit- eral meaning of the word manufacture, or manu fac- tum, and in the more modern idea attached to the word, it is making an article, either by hand or ma- chinery, into a new form, capable of being used, in ordinary life. Lawrence vs. Allen, 7 Howard ( JJ. S.J 794. Whatever is made by human labor, either directly or through the instrumentality of machinery. Carlin vs. West Assur. Co. of Toronto', 57 Md. 526. (Quoting Abbott's L. Diet.) The word manufacture is descriptive, either of the practice of making a thing by art, or of the thing when made. Boulton vs. Bull, 2 H. Bl. 471. 2 B. & A. 349. Martjmission. It is the giving of liberty to one who has been in just servitude, with the power of acting, except as re- strained by law. Fenwick vs. Chapman, 9 Peters (JJ. S.J 472. Map. A map is but a transcript of the region which it por- trays, narrowed in compass so as to facilitate an understanding of the original. Banker vs. CaldweU, 3 Minn. 103. ADJUDGED WORDS AND PHRASES. 387 MARAUDER MARKET Marauder. A marauder is defined in the law to be one who, while employed in the army as a soldier, commits larceny or robbery in the neighborhood of the camp, or while wandering away from the army. Curry vs. Collins, 37 Mo. 328. (Quoting Bouvier L. Did.) Margin (on stocks) means, in the broker's lexicon, additional collateral security against loss to the broker, while he is carry- ing stock tor his employer. McNeil vs. Tenth Nat. Bit., 55 Barb. (N. Y.) 64. Maritime lien. A privilege or claim upon a thing, to be carried into effect by legal process. Harmer vs. Bell, 22 Eng. L. & Eq. 72. Maritime lien is an appropriation made by the law of a particular thing, as security for a debt or claim, the law creating an incumbrance thereon, and vesting in the creditor what we term a special property in the thing, which subsists from the moment when the debt or claim arises, and accompanies the thing even into the hands of a purchaser. The Young Mechanic, 2 Curtis (U. S. C. C.J 404. 7 Allen 296 ; L. R. 2 Adm. 21 ; 4 Mich. 58. Maritime loan is 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 inevi- table casualty, is authorized to stipulate for an inter- est or extraordinary profit, in case the thing arrives at the proper port. The Brig Draco, 2 Sumner (U. S. C. C.) 184. Market. A market is a public place for the sale of commodi- ties. Ketchum vs. City of Buffalo, 14 N. Y. 331. It is a franchise or liberty derived from the crown and arising from the King's grant or prescription, (which supposes an ancient grant,) to have a market. A market is a privilege within a town to have a mar- ket. Ketchum vs. City of Buffalo, 21 Barb. (N. Y.J 296. 888 ADJUDGED WORDS AND PHRASES. MARKET MARRIAGE A public place appointed by public authority, where all sorts of things necessary for the subsis"tanee or for the convenience of life are sold. State vs. City of Newbern, 70 N. C. 18. (Quoting JBouvier X. Diet. ) It is a designated place in a town or city to which all persons can repair who wish to buy or sell articles there exposed for sale, and in some cities they are known by the articles there exposed to sale. Caldwell vs. City of Alton, 33 IU. 419. Market overt is defined to be a fair or market held at stated inter- vals in particular places, by virtue of a charter or .permission, to which our ordinary markets or stores for the sale of merchandise, bear no resemblance. Fawcett et al. vs. Osborn et al., 32 IU. 426. Marketable title. A marketable title in equity is one in which there is •no doubt involved either as to matter of law or fact. Dalzell vs. Crawford, 1 Parson's Sel. Cos. in Fq. 45. Marriage is a contract between a man and a woman, in which, by their mutual consent, each acquires a right in the person of the other for the purpose of their mutual happiness, and for the production and education of children. State vs. Fry, 4 Mo. 126. Marriage is more than a contract. It is a great pub- lic institution, giving character to our whole civil polity. Noel vs. Ewing, 9 Ind. 50. In strictness though formed by contract, it signifies ■'• the relation of husband and wife, deriving both its rights and duties from a source higher than any con- tract of which the parties are capable, and as- to -these uncontrolable by any contract which they can 'make. . When formed, this relation is no more a contract than "fatherhood" or "sonship" is a contract. Ditson vs. Dilson, 4 B. I. 101, 'It is the union of one man and one woman, "so long as they both shall live," to the exclusion of aUothers, by an obligation which, during that time, the parties cannot, of their own volition and act, dissolve, but ADJUDGED WORDS AND PHRASES. 889, MARRIAGE MARTIAI., which can be dissolved only by authority of' the state Boche vs. Washington, 19 hid. 57. A compact between a man and woman for the procrea- tion and education of children. White vs. White, 5 Barb. (N. Y.J 480. The word " marriage " is used in two senses. It may mean the solemnity by which two persons are joined together in wedlock, or it may mean their status when they have been so joined. Harvey vs. Farnie, 6 P- Div. 47. The word marriage is used to signify either the act of entering into the marital condition, or the condi- tion itselt In the latter and more frequent legal sense, it is a civil status, existing in one man and one woman, legally united for life for those civil and social purposes, which are based in the distinction of sex. Its source is the law of nature whence it has flowed into the municipal laws of every civilized country, and into the general law of nations. And since it can exist only in pairs, and since no persons are compelled, but all who are capable are permitted to assume it, marriage may be said to proceed from a civil contract between one man and one woman of the needful physical and civil capacity. Askew vs. Dupree, 30 Georgia 170. 44 Ala. 674 ; 2 Swan 323. Mabeiage SETTLEMENT. It is always understoood to mean the actual convey- ance or executed contract, by which not only the prop- erty is changed and the title vested, but by which the property, to some extent, is tied up and rendered inalienable. Baslins vs. Giles, Bice Eq. (S. C.J 317. Martial law is the law of war, that depends on the just but arbi- trary power and pleasure of the king, for, though he doth not make any laws but by the common consent of parliament, yet in time of war, by reason of the necessity of it, to guard against dangers that often arise, he uses absolute power ; so that his word is law. Griffin vs. Wilcox, 21 hid. 377. 890 ADJUDGED WORDS AND PHRASES. MARTIAL MATTEE It is in truth and reality no law, but something in- dulged rather than allowed by law. Johnson vs. Jones, 44 III. 153. It is neither more nor less than the will of the Gen- eral who commands the army. In re Egan, 5 Blatchf. (U. S. C. C.) 321. Martial law is the law of military necessity in the actual presence of war. It is administered by the feneral of the army, and is in fact his will. )iekelman vs. United States, 11 Court of Claims R. 439. 39 Ala. 658 ; 92 V. S. 520. Master OF A SHIP is one who for his knowledge in navigation and for his fidelity and discretion hath the government of the ship committed to his care and management. Martin vs. Farnsworth, 1 Jones & Spencer (N. Y.J 261. He is the person entrusted with the ship and voyage. Hubbell vs. Denison, 20 Wend. (N. Y. ) 182. 41 How. Pr. (N. Y.) 73. Material alteration. Any alteration which causes the instrument to speak a language different in legal effect, from that which it originally spake, is a material alteration. Organ vs. Allison, 9 Baxter (Tenn.) 462. (Quoting 1 Greenl. on Ev. § 565.) Material defendant. The material defendant is one who is really inter- ested in the suit, and against whom a decree is sought. Ragsdale vs. Norwood, 38 Ala. 21. Material fact (in insurance.) One which if communicated to the underwriter would induce him either to decline an insurance altogether, or not to accept it unless at a higher premium. Boggs vs. American Ins. Co., 30 Mo. 68. Any fact is material, the knowledge or ignorance of which would naturally influence an insurer in mak- ing the contract at all, or in estimating the degree and character of the risk, or in fixing the rate of in- surance. Clark vs. Insurance Co., 40 M Hamn. 338. Matter as the word is used in law, means a fact or facts con- ADJUDGED WORDS AND PHRASES. 891 MATTER MATTEB stituting the whole or a part of a ground of action or defence. Nelson vs. Johnson, 18 Ind. 332. Some substantial or essential thing opposed to form. Douglass et al. vs. Beasley, 40 Ala. 148. (Quoting Bouvkr L. Diet.) Matter 'and evidence (distinguished.) Matter as the word is used in law, means a fact or facts constituting the whole or part of a ground of action or defence. Evidence is that which tends to prove or disprove the existence of such fact or facts. Nelson vs. Johnson, 18 Ind. 332. Matter in controversy (on appeal.) That which is the essence and substance of the judg- ment, and by which the party may discharge himself. Lewis vs. Long, 3 Hunt'. ( Fa.) 154. 25 Gratt. 177. Matter in dispute. By matter in dispute is meant the subject of litiga- tion — the matter for which the suit is brought — and upon which issue is joined, and in relation to which jurors are called and witnesses examined. Lee vs. Watson, 1 Wallace (U. S.) 339. 13 Cal. 30. Matter in issue That matter upon which the plaintiff proceeds by his action and which the defendant controverts by his pleadings, which is in issue. Vaughn vs. Morrison, 55 N. Samp. 592. i Fed. Eep. 390 ; 15 N. H. 9. Matter op aggravation vide Aggravation, <&c. Matter op avoidance (in pi.) is new matter which admits tlie declaration to be true, but shows nevertheless, either that the defendant was never liable to the recovery claimed against him or that he has been discharged from his orig- inal iability, by something supervenient. Mahaiwe Bk. vs. Douglass, 31 Conn. 177. Matter of course means as a matter of right. Stoddard vs. TreadweU, 29 Gal. 282. 392 1DJTJDGED WORDS AMD PHBASES. Wa y MATOB Mat. The word may means must or shall, only in cases where public interests and rights are concerned, and the public or third persons have a claim de jure that the power shall be exercised. Fowler vs. Perkins, 77 III. 273. The ordinary meaning of the term may, in a statute, when it concerns the public interest, or the rights of individuals, is must, or shall ; and is obligatory, or mandatory, on the judge, or officer, to whom it is addressed. Hill vs. Barge, 12 Ala. 693. Where a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall. Bex vs. Barlow, 2 Salic. 609. "Where the public interest or private right requires that the thing should be done, then the word " may " is generally construed to mean the same as " shall." People vs. Supervisors, 68 M Y. 119. Where persons or the public have an interest in hav- ing the act done by a public body, " may," in such a statute, means " must." Phelps vs. Hawley, 52 N. Y. 27. Where a statute directs a thing to be done for jus- tice's sake, "may" means "shall." Silvey vs. United States, 7 Court af Claims B. 334. May means must or shall, only in cases where the public interests or the rights of third persons require it to be so construed. Lovell vs. Wheaton, 11 Minn. 101. 70 HI. 590 ; 9 111. 24 ; 13 111. 3 ; 4 Q. B. D. 258 ; 4 Wall. 435 ; 45 Cal. 696 ; 3 Neb. 224 ; 7 Ind. 122 ; 18 Ind. 27 ; 39 N. H. 435 ; 61 Me. 566 ; 5 John. Ch. 113 ; 5 Cowen 193. Mayor. The word, mayor, anciently meyr, comes from the the British verb Mieet, custodire, to guard or protect, or from the old English word Maiee, potestas, power or authority. People vs. Mayor & Aldermen, 25 Wend. (N. Y.J 50. (Quoting Jacob's L. Did.) The chief or executive magistrate of a city. Waldo vs. Wallace, 12 Ind. 577. (Quoting Bouvier L. Diet.) ADJUDGED WORDS AND PHRASES. 893 MEANDER MEDICAL Meander lines (in survey) are not boundary lines, and are only made for the purpose of denning the sinuosities of the bank of a stream, as a means of ascertaining the quantity of land. Bristol vs. Carroll County, 95 III. 85. Indeed, the word " meander " is derived from a -winding river in Asia Minor, known by that name in classic history. Seneca Nation vs. Knight, 23 N. Y. 500. Means necessary to an end. To employ means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be en- tirely unattainable. McCullough vs. Maryland, 4 Whmton (U. S.J 414. 6 Vroom 546. Means of satisfaction in his hands (creditor having) signifies, property or money of the principal debtor in his lawful possession, which he may rightfully re- tain and appropriate to the satisfaction of his debt, without violating any duty or subjecting himself to an action ; or in other words, there must be a lien in his favor on the property in his hands, conferred either by law or the owner, which is defined to be a right of retainer. Perrine vs. Fireman's Ins. Co. 22 Ala. 577. 62 Ala. 408. Means of support. In its general sense it embraces all those resources from which the necessaries and comforts of living are or may be supplied, such as lands, goods, sal- aries, wages or other sources of income. In its lim- ited sense, it signifies any resource from which the wants of life may be supplied. Schneider vs. Hosier, 21 Ohio St. 112. 71 m. 246. Mechanic is an artizan or artist. Berks Co. vs. Bertokt, 13 Penn. St. 525. Medical attendance. While the words medical attendance are often used to 894 ADJUDGED WORDS AND PHRASES. MEDICAL MERCHANDISE denote the rendering of professional medical ser- vices, we do not think that its use in that respect is such as necessarily to exclude all other meanings. The efforts of the physician, however skillful or as- siduous he may be, must usually be supplemented by an attendance which he can not give. It matters not that the persons who give such attendance are usually denominated nurses. Their office is to assist the physician to obtain certain medical results. Scott vs. Winneshiek County, 52 Iowa 580. Medical attendant. A medical attendant is one to whom the care of a sick person has been entrusted. Edington vs. Mut. L. I. Co. of N. Y, 5 Hun (N. Y.J 6. Memorandum-check is in the ordinary form of a bank check, with the word "memorandum" written across its face, and is not intended for immdiate presentation, but simply as evidence of an indebtedness by the drawer to the holder. United States vs. Isham, 17 Wall. (U. S.J 502. A memorandum check is a contract by which the maker engages to pay the bona fide holder absolutely, and not upon a condition to pay if the bank upon which it be drawn should not pay upon presentation at maturity, and if due notice of presentation and non-payment should be given. The word " memor- andum," written or printed upon the check, describes the nature of the contract with precision. Franklin Bank vs. Freeman, 1H Pick. (Mass. J 539. 12 Abb. Pr. N. S. (N. Y.) 205. Menial seevants are the domestics living intra moenia, within the walls of the house. Ex parte Meason, 5 Binn. (Pa.) 169 n. All the hirelings employed in service in and about the house, and household affairs, or whose business it is to assist in the economy of the family ; the stable- boy ; the coachman ; and all that class of hirelings. Boniface vs. Scott, 3 S. & B. (Pa.) 354. Meechandise. By this term is understood all those things which ADJUDGED WORDS AND PHRASES. 395 MERCHANDISE MERGER merchants sell, either wholesale or retail, as dry goods, hardware, groceries, drugs, &c. Kent vs. Liverpool & London Ins. Co., 26 Ind. 297. (Quoting Bouvier L. Diet. ) The term " merchandise " is usually, if not univer- sally, limited to things, that are ordinarily bought and sold, or are ordinarily the subjects of commerce and traffic. Citizens' Bh. vs. N. S. Co., 2 Story (U. S. C. C.J 53. Merchant. Generally every one shall be a merchant who trafficks by way of buying and selling, or bartering of goods or any merchandise within the realm, or in foreign parts. Mayor, &c, of London vs. Wilks, 2 Salic. 445 n. One who buys and trades in anything ; and as mer- chandise includes all goods and wares exposed to sale in fairs or markerts, so the word merchant, /or- merly extended to all sorts of traders, buyers, and sellers. But every one who buys and sells is not, at this day under the denomination of a merchant. Only those who traffic in the way of commerce, by importation, or exportation, or carry on business by way of emption, vendition, barter, permutation, or ex- change, and who make it their living to buy and sell, by a continued assiduity or frequent negotiation, in the mystery of merchandise, are esteemed merchants. Lonsdale vs. Brashear, 3 T. B. Man. (Ky.) 334. 9 Bush. 571 ; 5 Humph. 396. (Quoting Jacob's X. Diet.) Merger is, strictly speaking, the sinking of one estate in an- other, by the act or operation of the law, and may take place not only independently of, but against inten- tion. Cook vs. Brightly, 46 Penn. St. 442. A merger at law, is defined to be where a greater es- tate and a less, coincide and meet in one and the same person, in one and the sameright, without any inter- mediate estate. James vs. Morey, 2 Cowen (N. Y.J 300. (Quoting 2 SI. Corn. 177.) Merger exists where there is a union of the legal es- tate in one person, in the same right and at the same time. Where such legal ownership of the term and 89G ADJUDGED WOEDS AND PHRASES. MERGER MESSUAGE inheritance meets, the term which was before perso- nal property, falls into the inheritance and ceases to exist. Pennington vs. Coats, 6 Wharton (Pa.) 382. Merger is the extinguishment, by act of law, of one estate in another by the union of the two estates. State vs. Koch, 47 Mo. 584. Eights are said to be merged when the same person who is bound to pay, is also entitled to receive. Glift vs. White, 15 Barb. (N. Y.J 75. The true idea of merger consists in a thorough coal- escence, an indissoluble union of the merging estates ; each still retaining its rights and advantages, or per- haps more properly speaking, each imparting to the whole its peculiar attributes. Den vs. Vanness, 5 Ealst. (N. J.) 106. 63 Barb. 203 ; 2 Vroom (N. J. ) 327. Merits. Matter of substance in law, as distinguished from matter of form. Rahn, Admr., vs. Gunnison, 12 Wis. 531. (Quoting Burrill's L. Diet. ) The strict legal rights of the parties, as contradistin- guished from those mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court. St John vs. West, 4 How. Pr. R. (N. Y.) 332. 15 Wis. 25. Mesne peocess. By the term mesne process, is generally understood to be any writ issued between the original writ and the execution. Ferguson vs. State, 2 Vroom (N. J.) 291. Mesne peoftts are those which are received intermediate the orig- inal entry and the restoration of possession. They are such whereto the right is created by an action of ejectment brought and actually carried into judgment; not damages which accrued anterior to or at the in- stant of the ouster. Leland vs. Tousey, 6 Hill (N. Y.) 333. Messuage. It is difficult to define vith precision, the significa- ADJUDGED WOKDS AND PHRASES. 397 METHOD MIND tion of the legal term messuage. The best writers, however, represent it as synonymous with house, and as embracing within its meaning an orchard, garden, curtilage, adjoining buildings, and other appendages of a dwelling-house ; but they limit the ground which may be appropriated to these purposes to a small quantity, not exceeding an " acre or more." Grimes vs. Wilson, 4 Black/, find.) 333. Method, properly speaking, is only placing several things and performing several operations in the most conveni- ent order ; but it may signify a contrivance or device. Hornblower vs. Boulton, 8 T. B. 106. MILITARY LAW. A code of rules and ordinances prescribed by compe- tent authority, for the government of the military State, considered as a distinct community, and in the United States is chiefly statutory. The State vs. Bankin, 4 Coldw. (Tenn.) 156. Military station is merely synonomous with the term " military post," and means a place where troops are assembled, where military stores, animate and inanimate, are kept or distributed, where military duty is performed or military protection afforded, — where something in short, more or less closely connected with, arms or war is kept or is to be done. United States vs. Phisterer, 4 Otto (U. S.) 222. ■ride Military station. 12 Ct. of CI. 107. Militia. Its true and exact import is, that portion of the peo- ple who are capable of bearing, arms — the arms-bear- ing population. Ex parte McCants, 39 Ala. 113. Mill-site. A mill-site comprehends not only the site of the mill building, but also the water power connected there- with for milling purposes. Curtiss vs. Smith, 35 Conn. 158. Mind. It may.be said to be, the intellectual power in man, which conceives, reflects, reasons, and judges. It is 898 ADJUDGED WORDS AKD PHRASES. MINE MINISTERIAL the thinking principle, — and it would seem to be, the great and essential element of man's spiritual nature. Jamison vs. Jamison's Will, 8 Del. 119. Mine is derived from a Latin word of the lower ages, "minare," signifying " ducere, to lead ;" and the inter- pretation of the word is to draw or lead, sc, a way, or passage underground, a subterraneous duct, course or passage, whether in search of metals or to destroy fortifications. Bell vs. Wilson, L. B. 1 Ch. App. Cases 308. Minerals though more frequently applied to substances con- taining metals, in its proper sense includes all fossil bodies or matters dug out of mines. Hosse vs. Wainman, 14 M. & W. 872. Ministerial act, may, perhaps, be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal author- ity, without regard to, or the exercise of, his own judgment upon the propriety of the act being done. Flournoy vs. City of Jeffersonville, 17 Ind. 174. A ministerial act is that which is done under the or- ders of a superior — as the sheriff who obeys the mandate of the court. Friedman vs. Maihes, 8 HeisJc. (Tenn.) 502. 54 Ind. 377. Ministerial duty, the performance of which may, in proper cases, be required of the head of a department, by judicial process, is one in respect 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. Mississippi vs. Johnson, 4 Wall. ( U. 8. J 498. 1 Woolw. (U. S. C. C.)309. Ministerial office. Ministerial offices are those which give the officer no power to judge of the matter to be done, and which require him to obey some superior, many of which are merely employments requiring neither a commis- ADJUDGED WORDS AND PHRASES. 899 MIS MISFEASANCE sion nor a warrant of appointment, as temporary clerks or messengers. Fitzpatrick vs. United States, 7 Court of Claims B. 293. 12 Ohio St. 132. Mis. This syllable, added to another word, signifies some fault or defect. Lovett vs. Pell, 22 Wend. (N. Y.) 375. ( Quoting Cowett's Interpreter. ) MlSCAEEIAGE both in law and philology, means the bringing forth the foetus before it is perfectly formed and capable of living. Mills vs. Com., 13 Penn. St. 633. The expulsion of the ovum or embryo, within the first six weeks after conception, is technically miscarriage. Smith vs. State, 33 Maine 59. Miscaekiage (in stat. of frauds) has not the same meaning as the word "debt" or "default;" it seems to me to comprehend that spe- cies of wrongful act, for the consequences of which the law would make the party civilly responsible. Kirkham vs. Marten, 2 B. & A. 616. MlSDEMEANOE is an indictable offense not amounting to felony. In re Bergin, 31 Wis. 386. An act committed, or omitted, in violation of a public law, either forbidding or commanding it. Hector vs. The State, 6 Ark. 190. (Quoting 4 Bl. Com. 5. ) A misdemeanor is any crime less than a felony, and the terms felony and misdemeanor are generally used in contradistinction to each other. People ex rel. laughlin vs. Finn, 26 Sun (N. Y.) 60. In the English law misdemeanor is generally used in contradistinction to felony ; and misdemeanors com- prehend all indictable offences which do not amount to felony. M'Ginnis vs. The State, 9 Humph. (Tenn.) 50. vide Crime; Public wrongs. Misfeasance is a default in not doing a lawful act in a proper manner — omitting to do it as it should be done. Coite vs. lynes, 33 Conn. 114. 400 ADJUDGED WOKDS AND PHRASES. mispleading mistrial Mispleading in its immediate and I suppose more usual sense, signifies essential errors or omissions in the defend- ant's defence, but it is also expressly defined to com- prehend any mistakes or omissions, essential either to the action or defence, occurring either in the de- claration or the subsequent pleadings. Lovett vs. Pell, 22 Wend. (N. Y.J 375. Misrepresentation is asserting what is not true in whole or in part. Blydenburgh vs. Welsh, Baldwin (U. 8. C. C.J 337. Misrepresentation (in insurance) is the statement of something, as fact, which is un- true, and which the assured states knowing it to be untrue, and with the intent to deceive ; or which he states positively as true, not knowing it to be true, and which has a tendency to mislead ; such fact be- ing in either case material to the risk. Clark vs. Insurance Co., 40 N. Hamp. 338. 12 Cush. 425. Mistake. Any unintentional act, or any omission or error aris- ing from ignorance, surprise, imposition or misplaced confidence. Webber vs. Quaw, 46 Wis. 122. (Quoting BurriU's L. Diet.) 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. Br use vs. Nelson, 35 Iowa 160. Mistake of fact is ordinarily said to take place, either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist. Hurd vs. Hall, 12 Wis. 125. vide Error of fact. Mistake of law happens when a party, having full knowledge of the facts, comes to an erroneous conclusion as to their legal effect. Hurd vs. Hall, 12 Wis. 125. Mistrial is an erroneous trial on account of some defect in the ADJUDGED WORDS AND PHRASES. 401 MIXED MONEY persons trying, as if the jury come from the wrong county ; or because there was no issue formed, as if no plea be entered ; &c. Wilbridge vs. Case, 2 Ind. 37. Mixed actions are those which are brought for the specific recovery of lands, as in real actions, but have joined with this claim one for damages in respect to such property ; as action of waste, where, in addition to the recovery of the place wasted, the demandant claims damages. Hall vs. Decker, 48 Maine 256. Model. A model is a copy or imitation of the thing intended to be represented. State vs. Fox, 1 Dutch. (N. J.) 602. Money _ n^L is a sign which represents the value of all commodi- ties, bearing the impress of the authority bywh ich it was issued, and made a standard of value. Currier vs. Pennock, 14 8. & R. (Pa.) 61. Money is the universal medium or common stand- ard, by comparison with which the value of all merchandise may be ascertained ; or it is a sign which represents the value of all commodities. Wills vs. Allison, 4 Heisk. (Tenn.) 392. (Quoting 1 Bl. Com. 276.) It includes whatever is lawfully and actually current in buying and selling, of the value and as the equiva- lent of coin. Klauber vs. Biggerstaff, 47 Wis. 557. Money is the medium of exchange and measure of value. It is a circulating credit called currency. Whether its credit arises from the intrinsic value of the thing on which the measure is stamped, or its convertibility into that of intrinsic value to the same amount, it is money. Henry vs. The Bank of Salina, 5 Hill (N. Y.) 536. Money is a representative of value, established by law, and made a legal tender in the payment of debts. Blackburn vs. Brooks, 65 N. C. 415. Money is a generic term, and covers everything which by consent is made to represent property, and passes as such currently from hand to hand, whether 402 ADJUDGED WORDS AND PHKASES. MONEY MONEY i it be the iron of the Spartans, the cowry of the Afri- can, the gold and silver of the world, or the paper of modern Europe and America. Crutchfield vs. Robins, 5 Humph. (Term.) 17. Money is the measure of value, as well as the medium of payment. Symonds vs. City of Cincinnati, 14 Ohio 183. Money is a standard measure by which the value of all things are regulated and ascertained, and is itself, at the same time, the value or equivalent for which goods are delivered. Griswold vs. Hepburn, 2 Duvall (Ky.) 62. 10 Heisk. 358 ; 2 Pittsb. (Pa.) 476 ; 39 Barb. 465 ; 5 Lea 96. Money (in will.) A devise of " money " is held to include the personal- estate only when it appears pn the face of the will, construed in the light of the surrounding facts that such was the intention of the testator. In re Miller, 48 Cal. 170. Money and coin (distinguished.) Strictly speaking, coin differs from money as the species differ from the genus. Money is any matter, whether metal, paper, beads, shell, &c, which has currency as a medium in commerce. Coin is a par- ticular species; always made of metal, and struck ac- cording to a certain process called coining. Borie vs. Trot, 5 Phila. R. 403. (Quoting Wharton's Law Lex.) Money made on execution. The phrase " money made on execution " can only relate to such sums as are actually paid into the sheriff's hands, upon the execution. The money is not made by the officer, when paid directly by the debtor to the plaintiff. Vance vs. Bank of Columbus, 2 Ham. (Ohio) 215. 14 Ind. 207. Money out at interest is a loan of money, with forbearance for a certain time. It implies that the principal is to be repaid at some time or other, when the lender will be entitled to receive it as money, and not a substitute for the prin- cipal in a mere annuity. The King vs. Church Wardens, dc, 6 East 186. ADJUDGED WORDS AJJfD PHRASES. 408 monopoly moral Monopoly. It is an exclusive right granted to a few, of some- thing which, was before of common right. Bridge vs. Bridge, 11 Peters (U. S.J 607. An institution or allowance from the sovereign power of the state by grant, commission or otherwise, to any person or corporation, for the sole buying, welling, making, working, or using of anything, whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade. Slaughter-House Cases, 16 Wall. (U. S.J 102. Monopoly is a restraint of anything public in a city or commonwealth to a private use. McKeever vs. U. S., 14 Court of Claims R. 419. 5 Heisk. 529 ; 25 Conn. 38. Month. A month is the twelfth part of a year, so called from the moon, by whose motion it was regulated, being properly the time in which the moon runs through the Zodiac. Rives vs. Guthrie, 1 Jones Law (N. C.J 87. Monument is something designed and constructed to perpetuate the memory of some particular person or event. Mead vs. Case, 33 Barb. (N. Y.J 204. MOOEAGE is a sum due by law or usage for mooring or fasten- ing of ships to trees or posts at the shore, or to a wharf. The Wharf Case, 3 Bland Ch. (Md.) 373. MOEAL CERTAINTY. It is 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. Montana vs. Mc Andrews, 3 Montana 165. A certainty that convinces and directs the under- standing and satisfies the reason and judgment of those who are bound to act conscientiously upon it. Com. vs. Webster, Bemis' Report 470. The phrase " moral certainty " has been introduced into our jurisprudence from the publicists and meta- 404 ADJUDGED WOEDS AND PHKASES. MOEAL MOKE physicians, and signifies only a very high degree of probability. Com. vs. Costley, 118 Mass. 23. MOKAL INSANITY. consists in a morbid perversion of the feelings, affec- tions or active powers, without any illusion or erron- eous conviction impressed upon the understanding. Matter of Forman's Will, 54 Barb. (N. Y.J 291. MOEAL OBLIGATION. It means no more than a legal liability suspended or barred in some technical way short of a substantial satisfaction. Tebbetts vs. Doivd, 23 Wend. (N. Y.J 382. A natural or moral obligation is one which cannot be enforced by action, but which is binding on the party who incurs it, in conscience and according to natural justice. Goulding vs. Davidson, 25 Hoiv. Pr. JR. (N. Y.J 484. That imperative duty which would be enforceable by law, were it not for some positive rule, which, with a view to general benefit, exempts the party in that particular instance from legal liability. Wennall vs. Adney, 3 B. & P. 251 n. Morality is defined by Paley to be " that science which teaches men their duty, and the reason of it." Paley Mor. Ph. b. la 1. "Morality is the rule which teaches us to live so- , berly and honestly. It hath four chief virtues, jus- tice, prudence, temperance and fortitude." Bp. Homes Works, vol. 6, Charge to Clergy of Norwich Lyon vs. Mitchell, 36 M Y. 238. Moke ok less (in conveyance of land.) The most plain and obvious meaning of the term more or less, * * is that the parties are to run the risque of gain or loss, as there may be an excess or a deficiency in the estimated quantity. W Covin, vs. Delany, 3 Bibb (Ky.) 47. The words "more or less" are words of relation; the one of addition to what was before ; the other of diminution; for "more or less" must relate to some- thing positive in the kind before, and can never be a relation to nothing. Tristam vs. Baltinglass, Vaugh. 35. ADJUDGED WORDS AND PHRASES. 405 mortgage mortgage Mortgage is a transfer of all the mortgagor's interest in the thing mortgaged ; but such transfer is not absolute ; it is made only by way of security ; or, in other ■words, it is subject to redemption. Keith vs. Burrows, 1 C. P. Dlv. 731, The true character of a mortgage is the pledge of real estate to secure the payment of money, or the performance of some other obligation. Young vs. Miller, 6 Gray (Mass.) 153. A mortgage is a conveyance of lands, by a debtor to his creditor, as a pledge or security for the repayment of money due ; with a proviso that such conveyance shall be void on payment of the money and interest, on a certain day : and in the event the money be not paid at the time appointed, the conveyance becomes absolute at law, and the mortgagor has only an equity of redemption ; that is, a right in equity, on payment of principal, interest, and costs, within a reasonable time, to call for a reconveyance of the lands. Hall et ail. vs. Byrne et ah, 2 III. 142. A mortgage is an executed contract ; a present trans- fer of title, although conditional and defeasible. Barnard vs. Eaton, 2 Cush. (Mass.) 303. A mortgage is a contract by which one person con- veys property to another as a security for a debt. Loyd vs. Cur r in, 3 Humph. ( Tenn.) 464. In all cases the true test, whether a mortgage or not, is, to ascertain whether the conveyance is a security for the performance or non-performance of any act or thing. Flagg vs. Mann, 2 Sumner (U. S. C. C.) 533. A deed conveying lands, with a condition that it should be void upon payment of money, or the doing of some other act. Hebron vs. Centre Harbor, UN. Hamp. 574. A mortgage, in popular language, means an instru- ment in a given form, by which the land is charged with a sum of money payable at a stated time or times. Copland vs. Bartlett, 6 Man. Or. & Scott 26. A mortgage is a conveyance of the estate by way of pledge. Jordan vs. Peak, 38 Texas 442. 406 ADJUDGED WORDS AMD PHBASES. MORTGAGE MOBTGAGE A mortgage is a conditional conveyance of land, de- signed as a security for the payment of money, the fulfillment of some contract or the performance of some act, and to be void upon such payment, fulfill- ment or performance. Mitchell vs. Burnham, 44 Maine 299. A mortgage is but an incident to the debt, an hy- pothecation of the property as security for the debt, with the right in the mortgagor to redeem by paying the debt, and in the mortgagee to resort to the secu- rity to obtain satisfaction of the debt, in case of de- fault of payment. Weiner vs. Heintz, 11 IU. 261. A mortgage at common law, is a conveyance absolute in its form, granting an estate defeasible by the per- formance of a condition subsequent. Shields vs. Lozear, 5 Vroom (N. J.) 502. To constitute a mortgage, the conveyance must be originally intended between the parties as a security for money or as an incumbrance merely. Loclcerson vs. Stillwell, 2 Bead. Eq. (N. J.) 358. A mortgage at common law* may be defined to be an estate created by a conveyance absolute in its form, but intended to secure the performance of some act, such as the payment of money and the like, by the grantor, to some other person, and to become void if the act is performed agreeably to the terms pre- scribed at the time of making such conveyance. Kyger vs. Ryley, 2 Nebraska 23. It is a deed whereby one grants to another lands, upon condition that if the mortgagor shall pay a cer- tain sum of money or do some other act therein spe- cified, at a certain day, the grant shall be void. Montgomery vs. Bruere, 1 South. (N. J.) 268. vide Welsh mortgage. 6 Del. 326 ; 2 Del. Ch. 311 ; 9 Wis. 508 ; 10 Wis. 326 ; 12 Wis. 429 ; 7 Mich. 527 ; 4 Ma. 347 ; 6 Neb. 389. Mortgage and conditional sale (distinguished.) The former is a security for a debt, while the latter is a purchase accompanied by an agreement to resell on particular terms. Turner vs. Kerr, 44 Mo. 431. Where the debt forming the consideration of the conveyance still subsists, or the money is advanced ADJUDGED WORDS AND PHRASES. 407 MORTGAGE MORTGAGE by way of loan, with a personal liability on the part of the borrower to repay it, and by the terms of the agreement the land is to be reconveyed on payment of the money, it will be regarded as a mortgage ; but where the relation of debtor and creditor is exting- uished, or never existed, there a similar agreement will be considered as merely a conditional sale. Honor e vs. Hutchings, 8 Bush (Ky.) 695. Mortgage and pledge (distinguished.) The essential difference as to matter of right is, that in one the title passes, and in the other it does not. But the difference in substance and fact is, that in ' the case of a pawn or pledge, the possession must pass out of the pawner, but in the case of a mortgage it need not. Huntington vs. Mather, 2 Barb. (N. Y.J 543. The material distinction between a pledge and a mortgage of chattels is, that a mortgage is a convey- ance of the legal title upon condition, and it becomes absolute at law if not redeemed by a given time ; — a pledge is a deposit of goods, redeemable on certain terms, either with or without a fixed period for re- demption. Evans vs. Darlington, 5 Black/. (Ind.) 322. After the condition forfeited the mortgagee has an absolute interest in the thing mortgaged ; whereas a pawnee has but a special property in the goods to detain them for his security. Brown vs. Beinent, 8 John. (N. Y.J 98. A mortgage is a pledge and more ; for it is an abso- lute pledge to become an absolute interest, if not re- deemed at a certain time : a pledge is a deposit of personal effects, not to be taken back but on pay- ment of a certain sum, by express stipulation or the course of trade to be a lien upon them. Jones vs. Smith, 2 Vesey 378. 43 Barb. 610 ; 2 Leigh. 500 ; 38 Md. 251 ; 3 Blackf. 310. MORTGAGE BONDS. The term first mortgage bonds, certainly in its ordin- ary acceptation, means an instrument by which the holder shall enjoy a first lien upon the property cov- ered by the mortgage, which secures the bond. M. & P. R. R. vs. Sibley. 2 Minn. 24. 408 ADJUDGED WORDS AND PHRASES. mortgage multifariousness Mortgage in fee is an estate upon condition, defeasible by the per- formance of the condition according to its legal effect. JErskine vs. Townsend, 2 Mass. 495. Mortmain, so called by resemblance to a man in his last mo- ments, who holds whatever he takes in his hand mortuo manu, that is, so fast that he never quits it until he is dead. Wrotesley vs. Adams, Plowden 193. The term mortmain, as its derivation signifies, is not necessarily confined to the landed possessions of cor- porations; it equally applies to all property, that, from the nature of the purposes to which it is de- voted, or the character of the ownership to which it is subjected, is for every practical purpose in a dead or unserviceable hand. Yates vs. Yates, 9 Barb. (N. Y.J 333. Motion. A motion is properly an application for a rule or or- der, made viva voce to a Court or Judge. People vs. Ah Sam, 41 Cal. 650. 5 Iowa 441. Motive (in crime) is an inducement, or that which leads or tempts the mind to indulge the criminal act. People vs. Bennett, 49 N. Y. 148. Moveable property vide Polling stock. Mulatto is a person begotten between a white and a black. Medway vs. Natick, 7 Mass. 89. 4 Ham. (Ohio) 353 ; 18 Ala. 278. Multifariousness (in pi.) is the improperly joining in one bill distinct and in- dependent matters and thereby confounding them. Wells vs. Hydraulic Co., 30 Conn. 323. The blending in one bill matters which are in their nature separate and distinct. Thomas vs. Doub, 8 Gill (Md.) 7. (Quoting Story's Eq. PI. 224.) A bill is multifarious when it improperly unites in one bill, against one defendant, several matters per- ADJUDGED WORDS AKD PHEASES. 409 MULTIFARIOUSNESS MUNICIPAL fectly distinct and unconnected, or when it demands several matters, of a distinct and independent nature, against several defendants, in the same bill. Hayes vs. Dayton, 8 Fed. Rep. 703. To render a bill multifarious it must contain two or more good grounds of suit, which cannot properly be joined in the same bill, against the same defendant or different defendants. Many vs. Beekman Iron Co., 9 Paige Ch. (N. Y.J194. A bill when multifarious is so for one of two reasons ; either because of a misjoinder of parties, complain- ants or defendants, or a misjoinder of distinct and separate matters of equitable cognizance, between the same parties, of so dissimilar a character as to render it unfit they should be litigated in the same suit. Wales vs. Newbould, 9 Mich. 71. 8 Fed. Rep. 378 ; 14 HI. 25 ; 32 N. H. 25 ; 1 Mich. Nisi Prius. 191 ; 66 Barb. 12 ; 14 Otto 251. Municipal has been defined to be that which belongs to a cor- poration or a city, and to include the rules or laws by which a particular district, community or nation is governed. Morton vs. Mobile School Comrs., 43 Ala. 607. 1 Wilson (Ind.) 106. Municipal corporation. A public corporation created by the government for political purposes, and having subordinate and local powers of legislation : an incorporation of per- sons, inhabitants of a particular place, or connected with a particular district, enabling them to conduct its local civil government. It is merely an agency instituted by the sovereign for the purpose of carry- ing out in detail the objects of the government. Philadelphia vs. Fox, 64 Penn. St. 180. Municipal corporation is a subordinate branch of the domestic government of a state. The Mayor vs. Bay, 19 Wallace (U. S.J 475. A corporation is properly an investing the people of the place with the local government thereof. Cudden vs. Eastwich, 1 Salk. 193. A municipal corporation is a body corporate and 410 ADJUDGED WORDS AND PHEASES. MUNICIPAL MUKDEK politic, established by law, to share in the civil gov- ernment of the country, but chiefly to regulate and administer the local or internal affairs of the city, town, or district incorporated. E. Tenn. University vs. Knoxville, 6 Baxter (Term.) 111. Municipal corporations are the creatures of statute, instituted for governmental purposes, vested only with such powers as the Legislature deem necessary in this behalf, and conducted by the officers thereof, over whom the citizens at large have no direct con- trol. Pixley vs. W. P. R. R. Co., 33 Col. 186. 37 Iowa 544 ; 52 Mo. 311 ; 1 Wilson (Ind.) 106 ; 26 La. An. 481 ; 2 Utah 403. Municipal law is a rule of civil conduct, prescribed by the Supreme power of a state. Thome vs. Cramer, 15 Barb. (N. Y.) 114. That which pertains solely to the citizens, and in- habitants of a State, and is thus distinguished from folitical law, commercial law, and the law of nations, t is now, however, more usually applied to the cus- tomary laws that obtain in any particular city, or province, and which have no authority in neighbor- ing j)laces. Boot vs. Erdelmyer. 1 Wilson (Indianapolis) 106. (Quoting Wharton's L. Diet. ) Municipal market. A municipal market consists : I. In a place for the sale of provisions and articles of daily consumption. II. Convenient fixtures. III. A system of police regulations, fixing market hours, making provisions for lighting, watching, cleaning, detecting false weights, and unwholesome food, and other arrangements calculated to facilitate the intercourse, and insure the honesty, of buyer and seller. IV. Proper officers to preserve order and enforce obedience to rulers. Cincinnati vs. Buckingham, 10 Ohio 261. MuEDEE is deliberate killing, without passion, whatever may have been the provocation. Penn. vs. Bell, Addison (Pa.) 162. ADJUDGED WOBDS AND PHRASES. , 411 MUBDEB, MUTUAL Murder is when a man of sound memory and of the age of discretion, unlawfully killeth, within any county of the realm, any reasonable creature in rerum natura, under the king's peace, with malice aforethought, either express or implied. Fields vs. The State, 1 Yerg. (Term.) 162. (Quoting 3 Co. Inst. 47.) Murder is where a person of sound memory and dis- cretion, unlawfully kills any reasonable creature in being, and in the peace of the commonwealth, with malice prepense or aforethought, either express or implied. Kilpatrick vs. Com., 31 Penn. St. 200. Murder is the unlawful killing of any person with malice aforethought. McWhirt's Case, 3 Gratt. (Va.) 604. ■vide Sound memory, &c. 1 Dakota 458 ; 2 Halst. 243 ; 5 Cow. 51 ; 16 N. Y. 68 ; 5 Halst.' 174 ; Plowd. 261 ; 6 Neb. 138 ; 1 Ashm. 296. Museum. By tracing the Greek word, from which " museum " is derived, to its root, it is found to signify amuse- ment, or to amuse ; and thus, the term museum, would appear to embrace not only collections, of curiosi- ties, for the entertainment of the sight, but also such as would interest, amuse and instruct the mind. Bostick vs. Purdy, 5 Stew. & Port. (Ala.) 109. Musteeing IN (military service) clearly implies that the persons mustered are not already in the service. Tyler vs. Pomeroy, 8 Allen (Mass.) 498. Musttzo is the issue of a negro and an Indian. Miller vs. Dawson, Dudley (S. C.) 176. MUTUAL ACCOUNTS. Accounts are mutual where each party makes charges against the other in his books, for property sold, services rendered, or money advanced, &c. Edmondstone vs. Thomson, 15 Wend. (N. T.) 556. Mutual credit. It seems, that a mutual credit is a knowledge on both sides of an existing debt due to one party, and a 412 - ADJUDGED WOKDS AND PHRASES. --. MUTUALITY - NATIOK credit by the other party founded on and trusting to that debt, as a means of discharging it. Munger vs. Albany City National Bank, 85 N. Y. 590. Mutuality op contract J means an obligation on each to do or permit to be done, some thing in consideration of the act or pro- mise of the other. Spear vs. Orendorf, 26 Md. 43. Mutual mistake (in a contract.) According to the real signification of the word mutual in such connection, and the ordinary acceptation and understanding of the term, mutual mistake would mean a mistake reciprocal and common to both par- ties, when each alike labored under some misconcep- tion in respect to the terms of the written instru- ment Botsford vs. McLean, 45 Barb. (N. Y.J 482. N. P. The characters are an abbreviation for the term No- tary Public. They are in common use and well un- derstood. They as clearly indicate the office of notary public, as do the characters J. P. that of justice of the peace. Rowley vs. Berrian, 12 Til. 200. Naked power is a right or authority disconnected from any interest of the donee in the subject-matter. Clark vs. Hornthal, 41 Miss. 534. Naked power is, when to a mere stranger, authority is given of disposing of an interest, in which he had not before, nor hath, by the instrument creating the power, any estate whatsoever. Bergen vs. Bennett, 1 Caines Cas. in Err. (N. Y.) 15. Nation implies a body of men united together to procure their mutual safety and advantage by means of their union. Cherokee Nation vs. Georgia, 5 Peters (U. S.J 52. The very term " nation " * * means a people dis- tinct from others. Monarch Q. & S. M. Co. vs. McLaughlin, 1 Idaho 617. ADJUDGED WORDS AND PHRASES. 413 NATIONAL NATUEAL National government and federal government (distin- guished) Tide Federal government, dec. Natural and artificial person (distinguished.) The plain and broad distinction between a natural and an artificial person is, that whilst the former may do any act which he is not prohibited by law from doing, the latter can do none which the charter giving it ex- istence does not expressly or by fair inference, to en- able it to perform its functions authorize it to do ; and when it transcends the limits within which it is confined by its charter, its acts are wholly void. Smith vs. Ala. Life Ins. & Trust Co., 4 Ala. 568. Natural and technical import of words (distinguished.) The natural import of words is that which their ut- terance promptly and uniformly suggests to the mind, that which common use has affixed to them ; the technical is that which is suggested by their use in reference to a science or profession, that which particular use has affixed to them, and when the nat- ural and technical import unite upon a word, both their rules combine to control its construction. People vs. Hallett, 1 Colorado 359. Natural, heirs. The words "natural heirs " and "heirs of the body," in a will, and by way of executory devise, are considered as of the same legal import. Smith vs. Pendell, 19 Conn. 112. Natural law. A rule which so necessarily agrees with the nature and state of man, that, without observing its maxims, the peace and happiness of society can never be pre- served. Borden vs. State, 11 Ark. 527- Natural liberty. Moral or natural liberty, is the right which nature gives to all mankind of disposing of their persons and property after the manner they judge most con- sonant to their happiness, on condition of their act- ing within the limits of the law of nature, and that they do not in any way abiise it to the prejudice of any other man. Snyder vs. Warford et al., 11 Mo. 515. 414 ADJUDGED WOKDS AND PHEASES. natukal navigable Natural obligation vide Moral obligation. Natural presumption is, when a fact is proved, wherefrom by reason of the connection founded on experience, the existence of another fact is directly inferred. Gulick vs. Loder, 1 Green (N. J.) 72. A natural presumption arises only from a violent pro- bability, because it is a conclusion drawn by exper- ience from the usual current of things. Burr vs. Sim, 4 Whart. (Pa.) 172. vide Presumption. Natural rights of property must be rights which attach to property in its prim- itive state, and cannot, without a contradiction in terms, be applied to an artificial subject-matter like a house. Angus vs. Dalton, 4 Q. B. Div. 169. Natural stream properly signifies a river flowing from its source to the ocean, or an outlet between one interior sea or lake and another. Const, vs. Young Am., Newberry Adm. (U. S.) 106. Navigable. The word navigable has, in the English common law, a technical meaning, and is used to describe public rivers where the tide ebbs and flows. Rhodes vs. Otis, 33 Ala. 593. The term " navigable " has in law a technical sense ; and as applied to rivers, in England, does not mean such as, in their ordinary state, are navigable in fact, but only to those in which the tide ebbs and flows, and so far only as the influence of the tide extends. Stuart vs. Clark's Lessee, 2 Swan (Tenn.) 13. Navigable river. The term has in law a technical meaning ; and ap- plies to all streams, rivers or arms of the sea, where the tide ebbs and flows. Ex parte Jennings, 6 Cowen (N. Y.) 528. The more appropriate criterion of a navigable river is, not the flow or reflow of the tide, but simply the fact whether the river, in its ordinary state of the ADJUDGED WORDS AND PHKASES. 415 NAVIGABLE NE EXEAT water, is capable of and suited to the usual purposes of navigation by such vessels as are employed in the ordinary purposes of commerce, whether foreign or inland, and whether steam or sail. Sigler vs. The State, 1 Baxter (Term.) 496. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are sus- ceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. The Daniel Ball, 10 Wallace (U. S.J 563. 30 Barb. 16 ; 20 Wall. 439. Navigable stream. Every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forest or mines, or of the tillage of the soil upon its banks. Morgan vs. King, 35 N. Y. 459. 37 Wis. 424. Navigable waters. The term " navigable waters," as commonly used in the law, has three distinct meanings : 1st, as syn- onymous with " tide waters," being waters, whether salt or fresh, wherever the ebb and flow of the tide from the sea is felt ; or, 2d, as limited to tide waters which are capable of being navigated for some useful purpose ; or, 3d, as including all waters, whether within or beyond the ebb and flow of the tide, which can be used for navigation. Com. vs. Vincent, 108 Mass. 447. Navigation. The term navigation as applied to waters used as highways, * * denotes the transportation of ships or materials, from place to place, under intelligent direction or guidance. Gerrish vs. Brown, 51 Maine 262. Ne exeat. The writ of ne exeat as at present used in this country, is a mesne process, issuing from the court of chan- cery, to hold a party to equitable bail, that he may not depart from the realm, or the jurisdiction of the 416 ADJUDGED WORDS AND PHRASES. NEAP NECESSARY court, but be present with his body, to answer any decree which the court of chancery may make in the case against him, and commanding the arrest and imprisonment of the defendant, if he or she fails to furnish bail. Adams vs. Whilcomb, 46 Vermont 712. Neap tides. Those tides which happen between the full and the change of the moon, twice in every twenty-four hours. Teschemach.ee vs. Thompson, 18 Cal. 21. Necessaries (for which an infant may contract) consist of diet, apparel, washing, lodging, schooling and medicine. Grace vs. Hale, 2 Humph. (Tenn.) 29. 18 Conn. 423. Necessary. The word necessary is an adjective possessing degrees. A thing or purpose may be necessary, more neces- sary, indispensably necessary. Colton et al. vs. Commissioners, 6 Fla. 629. The word " necessary " has properly, and frequently, in common parlance, a limited and qualified significa- tion, and indicates means for the accomplishment of a purpose, which are reasonably requisite and proper for that purpose under the circumstances of the case, rather than those without which it would be absol- utely impossible for it to be accomplished. Montague vs. Richardson, 24 Conn. 347. The word "necessary" has great flexibility of meaning. It is used to express mere convenience, or that which is indispensible to the accomplishment of a purpose. St. Louis, etc., Ii. R. Co. vs. Trustees, etc., 43 III. 307. 12 E. I. 232 ; 10 Humph. 508. Necessaey implication means, not natural necessity, but so strong a proba- bility of intention that an intention contrary to that which is imputed to the testator, cannot be supposed. Wilkinson vs. Adam, 1 Ves. & B. 466. 6 M. & "W. 402 ; 15 N. Y. 558 ; 4 De G. M. &G. 85 ; 9 Yerg. 164. Necessaey ineerence, (as those words are used in legal phrase,) must not ADJUDGED WOKDS AND PHRASES. 417 NECESSARY NEGLIGENCE be understood as importing inevitable, natural neces- sity ; but merely an implication which, upon a con- sideration of the whole context of a will leaves no doubt in the mind of the judge who has to decide the question. Parsons vs. Parsons, 1 Hov. Supp. 536. Necessary purpose (in Cal. code administrators.) By necessary purposes is meant purposes having in view the enforcement of the substantial rights of par- ties entitled to the benefits of the estate, or to have its assets applied to the satisfaction of their estab- lished claims. Forde. vs. Exempt Fire Co., 50 Cal. 302. Necessity (in Sunday act.) By the word " necessity " we are not to understand a physical and absolute necessity ; but a moral fitness or propriety of the work and labor done, under the circumstances of any particular case. Flagg vs. Inhabitants of Millbury, 4 Gush. (Mass.) 244. 31 Dl. 473 ; 31 Ind. 190. Negative pregnant. It is a form of negative expression, which rather sup- poses an affirmative than the contrary. Jones vs. Jones, 16 M. & W. 708. Neglect and fault (distinguished) vide Fault, &c. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordi- narily regulate the conduct of human affairs, would do, or doing something which a prudent and reason- able man would not do. Blytlie vs. Birmingham Co., 11 Exch. 784. Negligence is the want of proper care, caution and diligence — such care, caution and diligence as, under the circumstances, a man of reasonable and ordinary prudence would exercise. It consists in nonfeasance, that is, omitting to do, or not doing, something which ought to be done, which a reasonable and prudent would do ; and a misfeasance, that is, the doing of something which ought not to be done, something which a reasonable man would not do, or doing it in such a manner as a man of reasonable and ordinary 418 ADJUDGED WORDS AND PHRASES. NEGLIGENCE NEGLIGENCE prudence would not do it, in either case leading to mischief or injury. McCully vs. Clarke, 40 Perm. St. 402. Negligence is the want of that care with which men of common sense and common prudence ordinarily exercise in like employments. O'Brien vs. P. W. & B. B. R. Co., 3 PMla. R. 78. Such an inadvertent imperfection, by a responsible human agent, in the discharge of a legal duty, as imme- diately produces, in an ordinary and natural sequence, a damage to another. Salmon vs. D. L. & W. B. B. Co., 9 Vroom (N. J.) 11. (Quoting Whart. Law of Nea. §2.) Negligence is a violation of the obligation which en- joins care and caution in what we do. Put this duty is relative, and where it has no existence between f>articular parties, there can be no such thing as neg- igence in the legal sense of the term. A man is un- der no obligation to be cautious and circumspect to- wards a wrong-doer. Tonawanda B. B. Co. vs. Munger, 5 Denio (N. Y.J 266. Negligence consists in the commission of some law- ful act in a careless manner, or in the omission to perform some legal duty, to the injury of another. Niclwlson vs. Erie B. W. Co., 41 N. Y. 529. The omission to observe that care which a man of common prudence takes of his own concerns. Gonzales vs. N. Y.&H. B. B. Co., 1 Sioeeney (N. Y.) 512. Negligence is a relative term, depending upon the circumstances under which the injury was received, and the obligation which rests on the party injured to care for his personal safety. N. J. Express Co. vs. Niclwls, 4 Vroom (N. J.J 440. Negligence consists in doing that which duty or common prudence and caution forbid to be done, or the omission to do that which, under the circumstan- ces, prudence and caution require to be done, to pre- vent loss or injury. Mowrey vs. Cent. City By. Co., 66 Barb. (N. Y.) 46. Legally speaking, negligence is the want of that care which the law requires us to exercise, which it exacts as a duty. This care may be due to one individual, and not to another, and therefore negligence in fact is not always negligence in law, for unless the party can ADJUDGED WORDS AND PHRASES. 419 NEGLIGENCE NEGLIGENCE show that some duty to him is violated, he shows no legal negligence. Tower vs. Prov. & W. B. B. Co., 2 B. I. 409. Negligence, in one sense, is a quality attaching to acts dependent upon and arising out of the duties and relations of the parties concerned, and is as much a fact to be found by the jury as the alleged acts to which it attaches by virtue of such duties and rela- tions. Townley vs. The Chi., 31 & St. P. By. Go. 53 Wis. 633. In the civil law are three degrees * * * of fault or neglect; lata culpa, gross fault or neglect; levis culpa, ordinary fault or neglect ; levissima culpa, slight fault or neglect ; and the definitions of these degrees are precisely the same with those in our law. Brand vs. The Troy & Sch. B.B. Co. 8 Barb. (N. Y.J 378. The civil and common law make three degrees of negligence. 1. Gross — which consists, according to Sir W. Jones, in the omission of that care which even inattentive and thoughtless men never fail to take of their own property. This is regarded as equal to fraud or bad faith. 2. Ordinary neglect. The want of that diligence which the generality of mankind use in their own concerns, that is of ordinary care. 3. Slight neglect. The omission of that care which very attentive and vigilant persons take of their own goods, or of very exact diligence. McGrath vs. Hud. Biv. B. B. Co. 32 Barb. (N. Y.J 151. Negligence is the want of care and diligence, and the degree of one is in inverse proportion to the degree of the other. Rodger vs. Dexter, 1 CranchfU. 8. C. C.J 111. L. R. 5 C. P. 102 ; 25 N. H. 549 ; 3SN. Y. 457 ; 94 HI. 352 ; 89Penn. St. 312 ; 55 Cal. 596 ; 5 Kansas 178 ; 36 Eng. L. & Eq. 508 ; 8 Fed. Rep. 544 ; 34 Cal. 75 ; 2 Mich. N. P. 148 ; 4 Vroom 444 ; 13 Fed. Rep. 71 ; 1 Duer 583 ; 43 How. Pr. R. 337 ; 62 Barb. 156 ; 5 Otto 441 ; 17 W. Ya. 196 ; 39 Conn. 210 ; 15 S. C. 450 ; 67 Penn. St. 361. Negligence and fraud (distinguished.) In the first, there is no positive intention to do any wrongful act ; but in the latter, a wrongful act is ever designed and intended. Negligence in its various degrees, ranges between pure accident and actual fraud, the latter commencing where negligence ends. Negligence is evidence of fraud, but still is not fraud. Gardner vs. Heartt, 3 Denio (N. Y.J 237. 420 adjudged words and phrases. :negligent net Negligent escape vide Escape; Voluntary escape. Negotiability vide Negotiable. Negotiable signifies that an instrument is capable of being trans- ferred so as to be free from any questions between original parties, the quality of being vendible by commercial indorsement. Shaw vs. Railroad Co. 11 Otto, (JJ. S.) 560. (Quoting Abbott's L. Diet.) " Negotiable " means that which is capable of being transferred by assignment; a thing which may be transferred by a sale and endorsement or delivery. Walker vs. Ocean Bank, 19 Ind. 250. The term "negotiable" in its enlarged signification, applies to any written security which may be trans- ferred by endorsement or delivery, so as to vest in the endorsee the legal title, so as to enable him to maintain a suit thereon, in his own name. Odell et al. vs. Gray & Co., 15 Mo. 342. Negotiable paper, bona fide holder of. One who, for full value, obtains from the apparent owner a transfer of negotiable paper before it ma- tures, and who has no notice of any equities between the original parties, of any defect in the title of the presumptive owner, is to be deemed a bona fide holder. Isem vs. Bank, 52 Miss. 919. Negotiation. The word "negotiation," as used by writers upon mercantile law, means, the act by which a bill of ex- change or promissory note is put into circulation, by being passed by one of the original parties to another person. Walker vs. Ocean Bank, 19 Ind. 250. The term " negotiation " when applied to a bill or note, includes every mode of transfer, whither of sale or discount, by endorsement or delivery. Whitworth vs. Adams, 5 Band. ( Va.) 415. Net balance (on sale of stock) means the balance of the proceeds after deducting the expenses incident to the sale. Evans vs. Wain, 11 Penn. St. 14. ADJUDGED WORDS A1VD PHRASES. 421 NET NEW Net earnings (of a K E.) As a general proposition, net earnings are the excesa 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 themselves. U. P. R. R. Co. vs. U. S., 9 Otto (U. S.J 420. Net proceeds means the actual net sum that comes to the party. Gorst vs. Timothy, 2 G. & R. (N. P.) 350. Net profits. Net profits of an adventure do not mean what is made over the losses, expenses and interest on the amount invested. The term includes simply the gain that accrues on the investment, after deducting the losses and expenses of the business. Tutt vs. Land, 50 Georgia 350. The neat profits must mean after all charges and ex- penses deducted. Owston vs. Ogle, 13 East 543. Neutrality, according to the strict definition of it given by the writers upon public law, rather imports the duty which a neutral owes to a belligerent, than the rela- tive situation in which that belligerent chooses to place her. But as it rests with every belligerent to determine, according to its views of expediency, in what way it will deal with neutrals who have acted in violation of their duty ; neutrality, therefore, in a more enlarged sense, may signify that permitted re- lation between any two states, after the right to its continuance has been forfeited by one of them. Hagedom vs. Bell, 1 M. &, S. 459. New assignment (in pi.) does not amount to an admission of the facts alleged in the plea, but is merely an assertion that the plain- tiff will not investigate the subject-matter set forth in the plea. Norman vs. Wescombe, 2 M. & W. 300. New matter constituting a defense (N. T. code) means some fact, which the plaintiff is not bound to prove, in order to make out his cause of action, and 422 ADJUDGED WORDS AND PHRASES. NEW NEXT which, goes in avoidance or discharge of the cause of action alleged in the complaint. Stoddard vs. Onondaga An. Con/., 12 Barb. (N. Y.) 576. 33 Barb. 629. New trial. . A new trial is a re-examination of an issue of fact in the same court, after a trial and decision by a jury, court or referees. Jenkins vs. FrinJc, 30 Gal. 596. New trial, is a re-examination, before a court and jury, of an issue in fact which has been tried at least- once before. Silvey vs. United States, 7 Court of Claims B. 334. (Quoting 1 Hilliard 1.) It is no more than having the Cause more deliberately considered by another Jury ; when there is a reason- able Doubt, or perhaps a Certainty, that Justice has not been done. Bright vs. Eynon, 1 Burr. 393. 45 Conn. 401. Newspaper is a publication containing a narrative of recent events and occurrences, published regularly at short inter- , vals from time to time. Att'y-Gen. vs. Bradbury, 7 Exch. 103. ■' 47 Mo. 158 ; 50 Me. 181. Nest, of kin. The words "next of kin" do not legally include the , ., widow. They mean relatives in blood. Murdoch vs. Ward, 67 N. Y. 389. Next of kin in common parlance means nearest of kin, and such has been decided to be its meaning in legal parlance, and where used in wills. Redmond vs. Burroughs, 63 N. C. 245. . This term is used to signify the relations of a party who has died intestate. In general, no one comes ,,. within this term who is not included in the provi- sions of the statutes of distribution. Steele vs. Kurtz, 28 Ohio St. 196. 72 N. Y. 315 ; 23 Md. 412 ; 4 R. I. 4 ; 113 Mass. 431 ; 32 Barb. 28 ; 43 Barb. 162. ADJUDGED WORDS AND PHRASES. 423 night-walker non-assessable Night-walker. A woman walking np and down the streets to pick up men. Laivrence vs. Hedger, 3 Taunt. 15. Night-walkers are 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 ill-behav- ior or of evil fame or report generally, or that shall keep company with any such, or with other suspi- cious persons in the night. * * Those who are abroad during the night and sleep by day, and of suspicious appearance and demeanor. State vs. Dowers, 45 JV. Hamp. 544. 55 Ala. 261. (Quoting 1 Burn's Just. 765 and Bouvier L. Diet. ) No. It signifies the word number and nothing else. Burr vs. Broadway Ins. Co., 16 N. T. 271. Nolle prosequi is the voluntary withdrawal by the prosecuting at- torney of present proceeding on a particular bill. At common law it may at any time be retracted, and is not only no bar to a subsequent prosecution on an- other indictment, but may be so far cancelled as to permit a revival cf proceedings on the original bill. State vs. Primm, 61 Mo. 171. NON-APPARENT EASEMENTS. Non-apparent or non-continuous easements are such that have no means specially constructed or appro- priated to their enjoyment, and that are enjoyed at intervals, leaving between these intervals no visible sign of their existence ; such as a right of way, or right of drawing a seine upon the shore. Fetters vs. Humphreys, 3 C. K G. Ea. (N. J.) 282. NON-ASSESSABLE (stock.) At the most the legal effect of the word is a stipula- tion against liability to further taxation or assessment after the holder shall have fulfilled his contract to pay the one hundred per cent, in the manner and at the times indicated. Upton vs. Tribilcoch, 1 Otto (U. S.J 49. 424 ADJUDGED WORDS AND PHRASES. NON NONSUIT NON COMPOS MENTIS is one who has no discretion nor the use of reason. Farr vs. Thompson, 1 Speers (8. C.) 105. Lord Coke defines non compos mentis to be a person who was of good and sound memory, and by the visi- tation of God hath lost it," or " he that by sickness, grief, or other accident, wholly loseth his under- standing." Jackson vs. King, 4 Cowen (N. Y.J 217. ' Being non compos, are certain terms in law, and im- port a total deprivation of sense. MvMoy vs. IngaUs, 4 Nebraska 117. Being non compos, of ■unsound mind, are certain terms in law, and import a total deprivation of sense. Ex parte Barndey, 3 Atk. 173. Clarke's Ch. (N. Y.) 93 ; 8 Stew. Eq. S9. Non-continuous easements vide Non-apparent easements. Non-feasance is any omission to perform a required duty at all, or a total neglect of duty. Coite vs. Lynes, 33 Conn. 115. Non-eesident. The word non-resident implies that one so described holds a residence in another place Savage vs. Scott, 45 Iowa 134. Nonsuit. A renunciation of a suit by the plaintiff, or demandant, most commonly upon the discovery of some error or defect, when the matter is so far proceeded in, that the jury is ready to deliver their verdict. Dana vs. Gill, 5 J. J. Marsh. (Ky.) 243. (Quoting Jacob's L. Diet.) Nonsuit is a neglect of the plaintiff to appear and prosecute his suit, or a voluntary withdrawal from the suit, after appearance. Smith vs. Crane, 12 Vermont 490. A nonsuit is a mere neglect and default of the plain- tiff to prosecute his suit, and he is not thereby barred from commencing a new action for the same cause. Loomis vs. Green, 7 Greeril. (Me.) 391. The name of a judgment given against a plaintiff ADJUDGED WORDS AND PHRASES. 425 NONSUIT NOTICE when lie is unable to prove his case, or when he re- fuses or neglects to proceed to the trial of a cause after it has been put at issue, without determining such issue. Herring vs. Porilz, 6 BradiveU (III.) 211. (Quoting 2 Bouvier L. Diet. 233. ) A nonsuit at common law was nothing more than a declaration by the Court that the plaintiff had made default in appearing at the trial to prosecute his suit. Poyser vs. Minor, 7 Q. B. Div. 332. Nonsuit and retraxit (distinguished.) A retraxit differs from a nonsuit, in that the one is negative, and the other positive : the nonsuit is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his suit again upon payment of costs ; but a retraxit is an open and voluntary re- nunciation of his suit in Court ; and by this he for- ever loses his action. Evans vs. McMahan, 1 Ala. 41. (Quoting 3 Bl. Com. 296.) 31 Ala. 113 ; 7 Greeul. 391. Not depaet the court without leave (recognizance) means, not depart from the term of the court at which he was recognized to appear. State vs. Baker, 50 Maine 56. Notary public is an officer long known to the civil law, and desig- nated as registrarius, actuarius, or scrivarius. Anciently he was a scribe, who only took notes or minutes, and made short drafts of writings and instruments, both public and private. At this day, in most countries, a notary public is one who publicly attests deeds or writings, to make them authentic in another country ; but principally in business relating to merchants. Kirksey vs. Bates, 7 Porter, (Ala.) 531. Note or memorandum (in stat. of frauds) imports an informal writing done on the spot, in the moment and hurry and tumult of commercial busi- ness. Clason vs. Bailey, 14 John. (N. Y.) 492. Notice embraces a knowledge of circumstances that ought 426 ADJUDGED WORDS AND PHRASES. NOTICE NOVATION to induce suspicion of belief, as well as direct in- formation of the fact. Pringle vs. Phillips, 5 Sandf. (N. Y.J 165. A notice in legal proceedings, means a written notice. Gilbert vs. Columbia Turnpike Co. 3 John. Cos. 109. Notice (in equity.) Whatever is sufficient to put a party on inquiry, (that is, whatever has reasonable certainty as to time, place, circumstances and persons,) is in equity held to be good notice to bind him. Boswell vs. Goodwin, 31 Conn. 84. vide Actual notice. Notice (to purchaser.) What is sufficient to put a purchaser upon an inquiry, is good notice ; that is, where a man has sufficient in- formation to lead him to a fact, he shall be deemed conusant of it. Parker vs. Kane, 4 Wis. 16. (Quoting 2 Sugden ore Vend. & Pur. 290.) Whatever is sufficient to make it his duty to inquire as to the rights of others, is considered legal notice to him of those rights. Tuttle vs. Jackson, 6 Wend. (N. Y.J 227. 5 Wis. 447 ; 4 Paige Ch. 205. Notice and knowledge means not merely express notice, but knowledge, or the means of knowledge to which the party wilfully shuts his eyes. May vs. Chapman, 16 M. & W. 361. Notice constbucttve vide Constructive notice. Novation. The substitution of a new debt for an old one. Bronson vs. Fitzhugh, 1 Hill (N. Y.J 186. The doctrine of novation in the civil law is but the doctrine of merger in the common law — the substitu- tion of a new obligation for an old one which is there- by extinguished. Sharp vs. Fly, 9 Baxter (Tenn.) 10. The substituting a new contract, between some or all of the parties, in the place of the old one ; which operates as an extinguishment of the old contract, ADJUDGED WORDS AND PHRASES. 427 NOVATION NUNCUPATIVE and leaves the creditor to his remedy upon the new contract only. Eosach vs. Rogers, 8 Paige Oh. (N. Y.) 238. In every novation there are four essential requisites : First, a previous valid obligation ; second, the agree- ment of all the parties to the new contract ; third, the extinguishment of the old contract ; and, fourth, the validity of the new one. Clark vs. Billings, 59 Ind. 509. 64 Ind. 413. Noxious not only means " hurtful and offensive to the Smell," but it is also the Translation of the very Technical Term " nocivus." Hex vs. White, 1 Burr. 337. Nuisance. A nuisance is anything that worketh hurt, inconve- nience or damage. State vs. Haines, 30 Maine 74. (Quoting 3 Bl. Com. 21G.) A nuisance in a highway must be some encroachment or erection therein, which " hinders, impedes or ob- structs the use of the road by the public." Strickland vs. Woolw., 3 N. Y. Sup. Ct. (T.& C.) 287. ■ride Common nuisance. 5 Porter 311 ; 39 Geo. 218 ; 32 Tex. 210 ; 14 Conn. 317 ; 27 Barb. 210. Nullity. Such a defect as renders the proceedings in which it occurs totally null and void, of no avail or effcet whatever, and incapable of being made so. Salter vs. Hilger, 40 Wis. 365. vide Absolute nullities. Nunc peo tunc. The phrase nunc pro tunc signifies now for then, or, in other words, a thing is done now, which shall have the same legal force and effect as if done at the time when it ought to have been done. Secou vs. Leroux, 1 New Mex. 390. Nuncupative. In its origin, it meant to pronounce or declare pub- licly in solemn words. In the civil law it means to pronounce orally or in words without writing. Succession of Morales, 16 La. Ann. 269. *28 ADJUDGED WOKDS AHD PHRASES. _ nuncupative oath Nuncupative •well. A nuncupative testament is when the testator, with- out any "writing, doth declare his will before a suffi- cient number of witnesses, It is called nuncupative, because, when a man makes such a testament, he must name his executor, and declare his whole mind before witnesses. Prince vs. Hazhton, 20 John. (N. Y.J 519. (Quoting Swinburne, pt. 1. § 12, p. 58.) When a man lieth languishing, for fear of sudden death, dareth not to stay the writing of his testa- ment, and therefore he prayeth his curate and others to bear witness of his last will, and declareth by word what his last will is. In re Will of Hebden, 5 C. E. G. Eq. (N. J.) 476. (Quoting Perkins, § 470.) A nuncupative testament is when the testator, with- out any writing, doth declare his will before a suffi- cient number of witnesses. Stamper vs. Hooks, 22 Georgia 606. A nuncupative will, so termed, a nuncupando, that is, from naming an executor by word of mouth, is a ver- bal testamentary declaration or disposition. Ex parte Thompson, 4 Bradf. Surr. Rep. (N. Y.J 155. A nuncupative will, under the statute, may be de- fined to be a verbal declaration, made by one in his last sickness; as to the disposition of his property after his death, made with the intention and purpose to dispose of such property, and made, also, in the hearing and presence of at least two credible per- sons, who shall attest the same, and who, or at least some of them, were then by the testator himself spe- cially called on to hear and bear witness to such declaration. Tally vs. Butte.rworth, 10 Yerg. (Tenn.) 502. Nursing means aid rendered in sickness. Peterborough vs. Lancaster, 14 JV. Hamp. 391. Oath is an affirmance or denial by a Christian man, of any- thing lawful or honest before one or more that have authority to give the same, for the advancement of truth and right, calling Almighty God to witness that his testimony is true. Ahvood vs. Welton, 7 Conn. 79. (Quoting 3 Co. Inst. 165.) ADJUDGED WORDS AND PHRASES. 429 OATH OBLIGATION An oath is a solemn invocation of the vengeance of the Deity, if the person sworn do not regard the re- quisitions of the oath. Arnold vs. Estate of Arnold, 13 Vermont, 366. An oath is a solemn adjuration to God, to punish the affiant if he swears falsely. Blocker, Admr. vs. Burness, 2 Ala. 355. The calling upon God to witness, that what is said by the person is true, and invoking the Divine ven- geance upon his head, if what he says is false. Brock vs. Milligan, 10 Ohio 123. The nature and definition of an oath is, calling God to witness the truth of what is said. Parkes vs. Parkes, 25 Eng. L. & Eq. 619. An oath is an outward pledge given by the person taking it, that his attestation or promise is made un- der an immediate sense of his responsibility to God. Priest vs. Tlw State, 10 Nebraska 399. (Quoting Bouvier L. Diet.) An oath is a religious asseveration, by which a per- son renounces the mercy, and imprecates the ven- geance of heaven, if he do not speak the truth. King vs. White, 2 Leach. Cr. Cos. 482. Obiter dicta vide Dicta. Obligation. It is a tie which binds us to pay or do something agree- ably to the laws and customs of the country in which the obligation is made. It also signifies the instru- ment or writing by which the contract is witnessed. It imports a sealed instrument. Morrison vs. Lovejoy, 6 Minn. 353. The word is derived from the Latin word obligatio, tying close up, and that from the word obligo, to bind or tie up, to engage or oblige by the ties of promise, oath or form of law ; and obligo is compounded of the verb ligo, to bind or tie fast, and the preposition ob, which is affixed to increase its meaning. Blair vs. Williams, 4 Littell (Ky.) 65. A deed, whereby a man binds himself, under a pen- alty, to do a thing. Har groves vs. Cooke, 15 Georgia 330. A bond containing a penalty with a condition annexed 430 ADJUDGED WORDS AND PHRASES. OBLIGATION OBLIGATION for the payment of money, performance of covenants or the like. Strong vs. Wheaton, 38 Barb. (N. Y.J 624. 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. Jeffrey vs. Underwood, 1 Ark. 112. Obligation, in its general and most extensive sense, is synonymous with duty. In a more technical sense, it is a tie which binds us to pay or do something agreeably to the laws and customs of the country in which the obligation is made. Crandall vs. Bryan, 15 How. Pr. R. (N. Y.J 55. (Quoting Bouvier L. Diet.) A valid, subsisting obligation may be said to consist of a legal debt or duty, and the remedy to enforce it. Cocke vs. Hoffman, 5 Lea (Tenn.) 112. 6 Otto (U. S.) 600. Obligation of a contract is that duty of performing it, which is recognized and enforced by the laws. Curran vs. Arkansas, 15 How. ( U. S.J 319. Obligation of a contract consists in the power and efficacy of the law which applies to and enforces performance of a contract, or the payment of an equivalent for its non performance. The obligation does not inhere and subsist inthe contract itself, pro- prio vigore, but in the law applicable to the contract. Ogden vs. Saunders, 12 Wheaton ( U. S.J 318. The law is the source of the obligation, and the ex- tent of the obligation is denned by the law in use at the time the contract is made. Toivnsend vs. Toimisend, 1 Peck (Tenn.) 13. The obligation of a contract may be defined as con- sisting in those duties and liabilities which are im- posed on the contracting parties, by the law which is in force at the time of the making of the contract, as the legal result of the terms of their contract. Kirtland vs. Moulton, 41 Ala. 554. The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced, — by which the parties can be obliged to perform it. Louisiana vs. New Orleans, 12 Otto ( U. S.J 206. ADJUDGED WORDS AND PHRASES. 431 OBLIGATION OBTAIN The obligation of a contract is the law which binds the parties to perform their agreement. The Insti- tutes and Pothier both call the obligation of a con- tract "the chain of the law." Pugh vs. BusseU, 2 Black/. (Ind.) 397. The word " obligation " in its origin imports compul- sion — the tying or binding one against or irrespective of his consent. * * * The contract is the occa- sion, but it is not the efficient cause of obligation. When the promise has been made, if the law com- mands its performance and makes the command effectual by methods of actual compulsion, it is the combination of these — the command and the con- straining force — which constitute the obligation of the contract — the compulsory efficiency which the law annexes to it. Wood vs. Wood, 14 Rich. (8. C.) 154. A contract is an agreement between two or more per- sons to do or not to do a particular thing ; and the obligation of a contract is found in the terms in which that contract is expressed, and it is the duty thus assumed by the contracting parties respectively to perform the stipulations of such contract. Barlow vs. Gregory, 31 Conn. 265. A contract is an agreement in which a party under- takes to do, or not to do, a particular thing. The law binds him to perform his undertaking, and this is, of course, the obligation of his contract. Sturgis vs. Crowninshield, 4 Wheaton (U. 8.) 197 vide Impairing, &c, 18 Gratt. (Va.) 270 ; 3 Conn. 256 ; 11 K. I. 354; 3 Baxter, 400 ; 37 Ga. 128 ; 38 Ga. 369 ; 3 McLean 546 ; 37 Vt. 602 ; 15 Iowa 130 ; 15 Rich (S. C.) 105 ; 16 Wall. (U. S.) 317. Obstruct (a road.) The word " obstruct," in its ordinary sense, means to stop up, and wholly prevent travel, upon a road, or render it unfit for travel. Turnpike Co. vs. Railroad Co., 23 Pick. (Mass.) 328. Obtain (in stat. of false pretences.) The word " obtain " seems to mean, not so much a defrauding, or depriving another of his property, as the obtaining of some benefit to the party. People vs. General Sessions, 13 Hun (N. Y.) 400. 432 ADJUDGED WOBDS AND PHRASES. occupant offer Occupant. An occupant is one who has the actual use or pos- session of a thing. Eedfield vs. Utica & Syracuse R. R., 25 Barb. (N. Y.) 58. 11 Abb. Pr. B. 101 ; 57 Me. 439. Occupation. By the term " occupation " is meant, use or tenure. Fleming vs. Maddox, 30 Iowa 242. Occupation signifieth a putting out of a man's free- hold in time of warre ; and it is all one with dissei- sin in time of peace. Co. Litt 249 I. Occupation includes possession as its primary ele- ment, but it also includes something more. Legal possession does not of itself constitute occupation. The owner of a vacant house is in possession. * * * If, however, he furnishes it, and keeps it ready for habitation whenever he pleases to go to it, he is an occupier, though he may not reside in it one day in the year. The Queen vs. St. Pancrass Ass'mt Com., 2 Q. B. Div. 588. vide Unoccupied house. Occupies is one who is in the use and enjoyment of a thing. Fleming vs. Maddox, 30 Iowa 242. Occur and accbue (distinguished.) The word "occur" means "to happen," in its gen- eral and most popular sense, whilst the word " ac- crue " is to be added or attached to something else, in its generally received sense. Johnson vs. Humboldt, 91 III. 95. Offence. An offence in its legal signification, means the trans- gression of a law. State vs. Whittemore, 50 N. Samp. 247. An act committed against a law, or omitted where the law requires it, and punishable by it. lilies vs. Knight, 3 Texas 314. 94 m. 18 ; 18 Gratt. 955 ; 1 Oregon 192. Offeb to vote (by ballot) is to present one's self, with proper qualifications, at ADJUDGED WORDS AND PHRASES. 433 OFFICE OFFICE the time and place appointed, and to make manual delivery of the ballot to the officers appointed by law to receive it. Morrison vs. Springer, 15 Iowa 327. Office. An employment on behalf of the government, in any station or public trust, not merely transient, occa- sional or incidental. Jackson vs. Healy, 20 John. (N. Y.J 493. That function by virtue whereof a person has some employment in the affairs of another ; and it may be public, or private, or quasi public, as exercised under public authority, but yet affecting only the affairs of particular individuals. Matter of Hathaway, 71 N. Y. 243. An office is a public charge or employment, and the term seems to comprehend every charge or employ- ment in which the public are interested. Piatt vs. Beach, 2 Benedict (U. S. D. C.J 306. An office is a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging. Bowers vs. Bowers, 26 Penn. St. 77. An office is a duty, a charge, a trust exercised for a public purpose. The People vs. Pinckney et al, 32 N. Y. 726. A position or station in which a person is employed to perform certain duties, or by virtue of which he becomes charged with the performance of certain duties, public or private. People vs. Tweed, 13 Abbott Pr. B. N. S. (N. Y.J 422. (Quoting SurrUl L. Did. ) We apprehend that the term " office" implies a dele- gation of a portion of the sovereign power to, and possession, of it by the person filling the office;— and the exercise of such power within legal limits, constitutes the correct discharge of the duties of such office. Appendix, 3 Greenl. (Me. J 482. The word office has two meanings — the one popular, the other legal and technical. Thus we speak of the office of an executor, guardian, &c. The legal mean- ing of the term always implies a charge, or trust, 434 ADJUDGED WORDS AND PHRASES. OFFICE OFFICE conferred by public authority and for a public pur- pose. In the matter of Dorsey, 7 Porter (Ala.) 371. The word officium principally implies a duty, and in the next place the discharge of such duty ; and 'tis a rule that where one man hath to do with another man's affairs against his will, and without his leave, that is an office, and he who is in it is an officer. King vs. Burnett, Carthew 478. If the duty be a continuing one, which is defined by rules prescribed by government, and not by contract, which an individual is appointed by government to perform, who enters upon the duties appertaining to his station, without any contract defining them, if those duties continue, though their person be changed; it seems very difficult to distinguish such a charge or employment from an office, or the person who dis- charges them from an officer. United States vs. Maurice, 2 Brockeriborough 103. An office is simply an appointment or authority on behalf of the government to perform certain duties, usually at and for a certain compensation. Smith vs. Mayor, &c., of New York, 37 N. Y. 520. An office is a public station, or employment, confer- red by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties. United States vs. HartweU, 6 Watt. ( U. S.) 393. Offices consist in the right, and correspondent duty to execute a public or private trust, and to take the emoluments belonging to it. State vs. Wilson, 29 Ohio St. 348. (Quoting 3 Kent's Com. 454.) 36 Miss. 289 ; 40 Miss. 629 ; 2 Sandf . 367 ; 13 Otto 8 ; 46 K. T. 381 ; 28 Cal. 389 ; 43 Ala. 245 ; 21 111. 68 ; 45 HI. 414 ; 12 Ind. 572 ; 12 Ohio St. 132 ; 32 Wis. 127 ; 39 Ga. 274 ; 10 Jones & Spencer 487 ; 8 Daly 361 ; 4 Baxt. 119 ; 33 Ga. 336 ; 34 N. X. 398 ; 52 N. Y. 484 ; 28 Ohio St. 348. Office found (in escheat.) This "office found," or more properly "inquest of office," was a summary inquisition by the king's escheater, either by virtue of his office or by special royal writ, to ascertain whether in the particular case the sovereign has a right to the possession of the lands. It was done under the king's officer by a jury ADJUDGED WORDS AUD PHRASES. 435 OFFICER OFFICER of no " determined number," either twelve or more or less. I Baker et al. vs. Shy et al., 9 Heisk. (Tenn.) 89. ! Offices is one who is lawfully invested with an office. Qlmstead vs. Mayor, <&c, of K Y. 10 J. & S. (N. Y) 487. i Every man is a public officer who hath any duty con- cerning the public, and he is not the less a public officer when his authority is confined to narrow lim- its, because 'tis the duty of his office, and the nature of that duty, which makes him a public officer, and not the extent of his authority. The State vs. Wilson, 29 Ohio St. 348. Officer de facto is one who enters under color of an election or ap- pointment, although irregular, and is not a mere usurper. Commissioners vs. McDaniel, 7 Jones Law (N. C.J 113. An officer de facto is one, who executes the duties of an office under some color of right, some pretence of title, either by election or appointment. The acts of an officer de facto are valid when they concern the public or the rights of third persons, and cannot be indirectly called in question in a suit to which such officer is not a party. Hooper vs. Goodwin, 48 Maine 80. A de facto officer is one who goes in under color of authority or who exercises the duties of the office so long or under such circumstances as to raise a pre- sumption of his right ; in which cases his necessary official acts are valid as to the public and third per- sons, but he may be ousted by a direct proceeding. People vs. Norfleet, 73 N. C. 550. An officer de facto is one who comes into a legal and constitution office by color of a legal appointment, or election to that office ; and as the duties of the office must be discharged by some one, for the benefit of the public, the law does not require third persons, at their peril, to ascertain whether such officer has been • properly elected or appointed, before they submit themselves to this authority, or call upon him to per- form official acts which it is necessary he should perform. The People vs. White, 24 Wend. (N. Y.J 539. 436 ADJUDGED WORDS AND PHRASES. OFFICES, OFFICES An officer de facto is one who comes in by the power of an election or appointment, but in consequence of some informality, or want of qualification, or by rea- son of the expiration of his term of service (or it may be said also by entering upon the duties of his office before his term of service fixed by law begins), can- not maintain his position when called upon hy the government to show by what title he holds his office. He is one who exercises the duties of an office un- der claim and color of title, being distinguished on the one hand from a mere usurper, and on the other from an officer dejure. McCraw vs. Williams, 33 Gratt. (Va.) 513. An officer de facto is one who exercises the duties of an office under a color of right, by virtue of an ap- pointment or election to that office, as distinguished on the one hand from a mere usurper of an office, and on the other from an officer dejure, the acts of an offi- cer de facto are valid so far as the rights of the public or third persons are concerned ; and neither the title of such officer, nor the validity of his acts, as such, can be indirectly called in question in a proceeding to which he is not a party. State ex rel. Mitchell vs. Tolan, 4 Vroom (N. J.) 201. An officer de facto is a person who is such by color of election, though ineligible, or though the office was not vacant. Ex parte Call, 2 Texas App. 50\ One who has the color of right or title to the office he exercises ; one who has the apparent title of an officer dejure. Brown vs. 0' Council, 36 Conn. 451. An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. King vs. Corporation of Bedford, 6 East 368. One who actually performs the duties of an office, with apparent right, and under claim and color of an appointment, or election. Brown vs. Lunt, 37 Maine 428. An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the ADJUDGED TTOBDS AND PHRASES. 437 OFFICER OPERA interests of the public and third persons, where the duties of the office were exercised. State vs. Carroll, 38 Conn. 411. 3 Bush 17 ; 55 Penn. St. 472 ; 3 Mo. App. E. 402 ; 60 Barb. 248 ; 9 Nevada 338 ; 1 Nevada 197 ; 3 Montana 431 ; 17 Conn. 588 ; 20Gratt (Va.) 66 ; 19 "Wend. 144 ; 1 Ld. Eayni. 660 ; 69 111. 529 ; 7 Ala. 538. Officer dejure. A dejure officer is one who is regularly and lawfully elected or appointed and inducted into office and ex- ercises the duties as his right. All his necessary offi- cial acts are valid and he cannot be ousted People vs. Norfleet, 73 N. C. 550. Officer of a county vide County officer. Onus probandi. The strict meaning of this term " onus probandi," is this, that if no evidence is given by the party on whom the burden is cast the issue must be found against him. Davis vs. Rogers, 6 Del. 95. vide Burden of proof. 52 Ga. 180. Open accounts. By the term " open accounts," are meant, thof;e debts which are subject to future adjustment, and which may be reduced or modified by proof. Nisbet vs. Lawson, 1 Georgia 288. Open and notorious insolvency. It implies, not the want of sufficient property to pay all one's debts, but the absence of all property, within reach of the law, applicable to the payment of any debt. Hardesty vs. Kinworthy, 8 Black/, find.) 305. Open corporation (of a city) is where all the citizens or corporators have a vote in the election of the officers of the corporation. McKim vs. Odom, 3 Bland Ch. (Md.) 416 n. Opera is a composition of a dramatic kind, but set to music and sung, accompanied with musical instruments, and enriched with appropriate costumes, scenery, &c. Rowland vs. Kleber, 1 Pittsburgh B. (Pa.) 71. 438 ADJUDGED WORDS AND PHBASES. operation ordeb Operation of a law. We understand by the " operation " of a law, is meant its practical working and effect. Geebrick vs. State, 5 Iowa 496. The operation of a law is nothing more than the ob- ligation of a law. United States vs. Hammond, 1 Cranch ( U. S. G. G.J 19. Opinion (which disqualifies a juror.) It is an opinion which is absolute, unconditional, definite and settled ; in distinction from one which is hypothetical, conditional, indefinite and uncertain. The mind must be, for the time being, settled and at rest upon the question of the prisoner's guilt, or upon the question to be tried. The People vs. Stout, 4 Parker Cr. B. (N. Y.J 109. 3 Lansing 232. Opinion and decision of a court (distinguished) vide Decision, &c. Okdained. When the word is applied to a clergyman, it means, that he has been invested with ministeral functions, or sacerdotal power. Kibbe vs. Antram, 4 Conn. 139. Okdee (for money, &c.) An informal bill of exchange on paper which re- quires one person to pay or deliver to another goods on account of the maker, to a third party, is called an order. Hinnemann vs. Bosenback, 39 N. Y. 100. (Quoting Bouvier L. Diet. ) Okdee (of court.) It may be defined to be the judgment or conclusion of the Court upon any motion or proceeding. Gilman vs. Contra Costa County, 8 Cal. 51. Oeder (of a court) and final judgment (distinguished.) The former is a decision made during the progress of the cause, either prior or subsequent to final judgment, settling some point of practice or some question collateral to the main issue presented by the pleadings, and necessary to be disposed of before such issue can be passed upon by the Court, or necessary to be determined in carrying into execu- tion the final judgment. The latter is the determina- ADJUDGED WORDS AND PHKASES. 439 ORDINARY ORDINARY tion of the Court upon the issue presented by the pleadings, which ascertains and fixes absolutely and finally the rights of the parties in the particular suit in relation to the subject-matter in litigation, and puts an end to the suit. Loring vs. Illshy, 1 Gal. 27. Ordinary is a Civil Law Term for any Judge who hath author- ity to take cognizance of causes in his own right, and not by deputation. By the Common Law, it is taken for him who hath ordinary or exempt and immediate jurisdiction in causes ecclesiastical. Hays vs. Harley, 1 Mills (8. C.J 269. Ordinary care is that degree of it, which in the same circumstances a person of ordinary prudence would take of the particular thing, were it his own. Heathcoch vs. Pennington, 11 Ired. (N. C.J 643. Ordinary care is that degree of care, which, under the same circumstances, a person of ordinary pru- dence would take care of the particular thing, were it his own ; and the case will be varied according to the nature of the thing bailed, the purpose for which it was bailed, and the particular circumstances under which it was bailed. Swann vs. Brown, 6 Jones Law. (N. C.J 151. That degree of care which persons of ordinary care and prudence are accustomed to use and employ, under the same or similar circumstances, in order to conduct the enterprise in which they are engaged to a safe and successful termination, having due regard to the rights of others and the objects to be accom- plished. G. C. & 0. B. B. Go. vs. Terry, 8 Ohio St. 581. Ordinary care is that degree of care which a person of ordinary prudence is presumed to use, under the particular circumstances, to avoid injury. It must be in proportion to the danger to be avoided, and the fatal consequences involved in its neglect. Toledo & Wabash B. W. Co. vs. Goddard, 25 Ind. 197. Ordinary care must mean that degree of care which may reasonably be expected from a person in the plaintiff's situation. Lynch vs. Nurdin, 1 Q. B. 36. 440 ADJUDGED WORDS AND PHKASES. OBDENAKY OKDINABY Ordinary care, skill and diligence is such a degree of care, skill, and diligence, as men of ordinary pru- dence, under similar circumstances, usually employ. Brown vs. Lynn, 31 Penn. St. 572. vide Ordinary diligence. 6 Cush. (Mass.) 296; 23 Conn. 443; 31 Penn. St. 512 ; 4 Zab. 832 ; 52 111. 108 ; 12 Cush. 181 ; 41 Wis. 655; 17 B. Mon. 721 ; 3 Abb. Pr. K. N. S. 94 ; 53 Wis. 636 ; 24 Barb. 276; 35 N. H. 62. Oedinaey DILIGENCE. That degree of care, which men of common pru- dence generally exercise in their affairs, in the country and the age in which they live. Bank vs. Smith et al., 3 Brewster (Pa.) 14. Ordinary diligence is the exercise of that care which every man of common prudence bestows upon his own affairs or concerns. L. S. & M. S. R. R. Co. vs. Miller, 25 Mich. 297. Common or ordinary diligence is that degree of dili- gence which men in general exert in respect to their own concern, and not any one man in particular. City of Rockford vs. Hildebrand, 61 III. 160. Ordinary diligence means that degree of care, or attention, or exertion, which under the actual cir- cumstances, a man of ordinary prudence and discre- tion would use in reference to the particular thing were it his own property, or in doing the particular thing were it his own concern. Sivigert vs. Graham, 7 B. Mon. (Ky.) 663. 6 Met. (Mass.) 26 ; 71 Me. 41 ; 5 Kan. 180 ; 40 N. Y. 29. Oedinaey expenses (of a corporation) are the expenditures which are necessary to carry into effect the ordinary powers of the corporation. Town Council of Livingston vs. Pippin, 31 Ala. 550. Oedinaey low watee maek. This term is only predicable of those parts of rivers within the ebb and flow of the tides, to distinguish the water line at spring or neap tides. Howard vs. Ingersoll, 13 Howard (U. S.J 417. Oedinaey luggage vide Baggage. Oedinaey neglect ' is the omission of that care which every man of com- ADJUDGED WORDS AND PHRASES. 441 ORDINARY ORIGINAL mon prudence and capable of governing a family, takes of his own concerns. French vs. B. K Y. & Erie B. B. Co., 4 Keyes (N. Y.J 113. Ordinary neglect is understood to be the omission of that care which every man of common prudence takes of his own concerns. Scott vs. DePeyster, 1 Edwards Ch. (K Y.) 543. 32 Barb. 151. Ordinary NEGLIGENCE. The want of such care as persons of ordinary care and prudence observe in and about their affairs. * * It is the want of such care as the great mass of man- kind, or majority of the mankind, observe in the transactions of human life. DreJier vs. Town of Fitchburgh, 22 Wis. 678. 5 Kan. 180. Ordinary skill means that degree which men engaged in that par- ticular art usually employ ; not that which belongs to a few men only of extraordinary endowments and capacities. Waugh vs. 8 hunk, 20 Penn. St. 133. vide Ordinary care; Reasonable skill. 3 Oregon 145 ; 35 N. Y. 27. Ordination (of a clergyman) is nothing but setting apart, installing or inaugurat- ing, one who has been chosen to the office, and tend- ering to him the fellowship of the churches who assist in the ceremony. Baker vs. Fales, 16 Mass. 512. Oke-leave. The right to dig and take ore. Ege vs. Kille, 84 Penn. St. 340. Organize (a corporation) signifies the choice and qualification of all necessary officers for the transaction of the business of the cor- pbration. N. H. & D. B. B. Go. vs. Chapman, 38 Conn. 66. Original bill. An original bill is defined to be one which relates to some matter not before litigated in the court, by the same persons, and standing in the same interests. Butler vs. Cunningham, 1 Barb. (N. Y.J 87. 442 ADJUDGED WORDS AND PHRASES. OEIGINAIi OUT-HOTJSE ORIGINAL jurisdiction. Jurisdiction is original when it is conferred on the court in the .first instance, which is called original jurisdiction. Kundolfvs. ThalMmer, 17 Barb. (N. Y.) 511. (Quoting Bouvier L. Diet.) Orphan. An orphan is a fatherless child. Soohan vs. Philadelphia, 1 Grant's Cases (Pa.) 510. Is one bereft of parents. Downing vs. Schoenberger, 9 Watts (Pa.) 299. 33 Penn. St 14. Obphan's couet (in N. J.) The orphan's court is not a court of common iaw, but a court partaking of the powers of a chancery and prerogative jurisdiction, instituted by law to remedy and supply the defects in the powers of the preroga- tive court, with regard to the accountability of exec- utors, administrators and guardians. Wood vs. Tollman's Exrs., Coxe (N. J.) 155. Ostensible and dormant partners (distinguished) vide Partners ostensible, &c. Ouster. The actual turning out or keeping excluded a party entitled to possession of any real property corporeal. Jefcoat vs. Knotts, 13 Pick (S. C.J 60. (Quoting Bouvier L. Bid.) An entry by one man upon the land of another, is an ouster of the legal possession, or not, according to the intention with which it is done, and if made under claim or color of title, is an ouster. Copeland vs. Murphy, 2 Coldw. (Tenn.) 70. Outfits. The word " outfits," in its original use as applying to ships, embraced those objects connected with a ship, which were necessary for the sailing of her, and without which she would not in fact be navigable. Macy vs. Whaling Ins. Co., 9 Met. (Mass.) 364. Out-house is a building without the mansion-house, intended for the accommodation of the owner or occupant. It is the subserviency of it to the mansion-house, that gives it the denomination of an out-house, and not ADJUDGED WORDS ASD PHRASES. 443 OUT-HOUSE OVERSEER the fact, that it is included within the same fence, or ■within what is denominated the curtilage or homestead. State vs. Broolcs, 4 Conn. 448. An out-house is any house necessary for the purposes of life, in which the owner doth not make his constant or principal residence. State vs. O'Brien, 2 Boot (Conn.) 516. 10 Conn. 145. Outlaw. An outlaw is one who is put out of the law ; that is, deprived of its benefits and protection. In earlier times he was called a, friendless man; one who could not, by law, have a friend. An outlaw was said caput genere lupinum, by which it was meant, that any one might knock him on the head as a wolf, in case he should not surrender himself peaceably when taken. Drew vs. Drew, 37 Maine 391. By the common law, an outlaw is one who has been so declared by a court of justice, in some regular pro- ceeding for that purpose ; and this could take place in either a civil or criminal proceeding. Dale County vs. Gunter, 46 Ala. 138. Outlawry is a punishment inflicted on a person for a contempt and contumacy, in refusing to be amenable to, and abide by, the justice of that court which hath lawful authority to call him before them ; and is a crime of the highest nature, being an act of rebellion against that state or community of which he is a member. Dale County vs. Gunter, 46 Ala. 138. Outstanding cbop. " An outstanding crop " we all understand to mean, a crop in the field — not gathered thence and housed, without regard to its state. It is an outstanding crop from the day it commences to grow until it is finally gathered from the ground on which it is planted and taken away. SuMns vs. State, S3 Ala. 416. Oveeseee (of a slave) means a person who, as agent or employee of an- other, has a right to command the obedience, and, of course, is entitled to the services of the slave placed under his charge. Scott vs. State, 31 Miss. 479. 444 ADJUDGED WORDS AND PHRASES. owner panel Owner is lie who has dominion of a thing real or personal, corporeal or incorporeal, which he has a right to en- joy and do with as he pleases, even to spoil or de- stroy it, as far as the law permits, unless he be pre- vented by some agreement or covenant which restrains his right. Dow vs. Gould & Gurry 8. M. Co., 31 Gal. 649. Owner (in act for condemning lands for R. R. purposes.) By owner is meant the person having some legal estate which the company proposes by the condem- nation to acquire. Nat. By. vs. E. & Am. B. B. Co. 7 Vroom (N. J.) 184. 11 C. E. G. Eq. (N. J.) 428. Owner (in mechanic's lien law.) The word owner, as used in the statute, is the correl- ative of contractor. It means the person who employs the contractor, and for whom the work is done under the contract. McDermott vs. Palmer, 11 Barb. (N. Y.J 13. Ownership is the right by which a thing belongs to an individ- ual, to the exclusion of all other persons. Converse vs. Kellogg, 7 Barb. (N. Y.J 597. 59 Perm. St. 477. Palmistry is a kind of divination practised by looking upon the lines and marks of the fingers and hands. Monck vs. Hilton, 2 Ex. Div. 272. (Quoting GowePs L. Diet. ) Panel signifieth a little part. A jury is said to be impan- elled when the sherii'e hath entered their names into the pannell, or little piece of parchment. Co. Litt. 158 6. A schedule containing the^ names of persons whom the sheriff returns to serve on trials. Beasley vs. People, 89 IU. 575. A schedule, or roll, containing the names of jurors summoned. Porter vs. Cass, 7 How. Pr. R. (N. Y.J 443. ADJUDGED WORDS AND PHRASES. 445 PANNAGE PAKDON Pannage (right of) The right of pannage is simply a right granted to an owner of pigs, to go into the wood of the grantor of the right and to allow the pigs to eat the acorns or beech-mast which fell upon the ground. Chilton vs. Corp. of London, 7 Ch. Div. 565. Pas means the amount really due including interest. Hoggs Appeal, 22 Perm. St. 488. Par bank notes. The words par bank notes have a distinct technical meaning. They are, in commercial and financial parlance, used to denote a state of equality or equal value ; an equality of actual with nominal value. Bach-man vs. Roller, 9 Baxter, (Tenn.) 410. Par of exchange. A current phrase which has no other meaning than the value of the pound sterling formerly fixed by law for purposes of revenue. Com. vs. Haupt, 10 Allen (Mass.) 44. Par value. " Par value," in its customary and commercial sense, with reference to exchange between different states or countries, has been well denned to be " the equiv- alency of a certain amount of the currency of one country in the currency of the other." Delafield vs. State of Illinois, 26 Wend. (M T.) 224. Paraphernal. The property which is declared to be given to the wife in consideration of the marriage by the hus- band. Cambre vs. Grabert et al., 33 La. An. 247. Parceners. By parceners, according to the English law, are meant the daughters of a man or woman seized of lands and tenements in fee simple or fee tail, on whom, after the death of such ancestor, such lands and tenements descend. Logan vs. Logan Adm., 13 Ala. 658. Pardon. A pardon is an act of grace by which an offender is released from the consequences of his offence, so far as such release is practicable and within control of 446 ADJUDGED WORDS AND PHEASES. PAKDON PAKDON the pardoning power, or of officers under its direction. It releases the offender from all disabilities imposed by the offence, and restores him to all his civil rights. In contemplation of law, it so far blots out the offence, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. It gives him a new credit and capacity, and rehabilitates him to that extent in his former position. But it does not make amends for the past. Knote vs. United States, 5 Otto (U. S.) 153. A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. * * A pardon is a deed, to the valid- ity of which delivery is essential, and delivery is not complete without acceptance. United States vs. Wilson, 7 Peters (U. S.) 160. A pardon is an act of grace flowing from the foun- tain, of bounty and grace ; its effect, when it is a full pardon, is to obliterate every stain which the law attached to the offender, to place him where he stood before he committed the pardoned offence, and to free him from the penalties and forfeitures to which the law had subjected his person and property. United States vs. Athens Armory, 35 Georgia 362. Pardon, in law, is the remitting or forgiving of an offence committed against the King. Cook vs. Freeholders of Middlesex, 2 Butch. (N. J.) 328. (Quoting Jacob's L. Diet.) 18 How. (TJ. S.) 311 ; 14 Vroom 241 : 44 Ga. 361 ; 1 Disney (Ohio) 107 ; 2 Abbott (TJ. S. C. C.) 149. Paedon and amnesty (distinguished.) A pardon is granted to one who iscertainly guilty, sometimes before, but usually after conviction. And the court takes no notice of it, unless pleaded, or in some way claimed by the person pardoned ; and it is usually granted by the crown or by the executive. But amnesty is to those who may be guilty, and is usually granted by Parliament, or the Legislature ; and to whole classes before trial. Amnesty is the abolition or oblivion of the offense; pardon is its forgiveness. State vs. BlahcJc, Phillips Law (N. G.) 247. ADJUDGED WORDS AID PHRASES. 447 PABDON PARK A pardon is a remission of guilt ; an amnesty is an act of oblivion or forgetfulness. Ex parte William Law, 35 Georgia 296. Parish. A precinct or parish is a corporation established solely for the purpose of maintaining public wor- ship, and its powers are limited to that object. Milford vs. Godfrey, 1 Pick. (Mass.) 97. Parochia, or parish, signifies, in a church sense, a competent number of Christians dwelling near to- gether, and having one bishop, pastor, &c, or more set over them. Baker vs. Fales, 16 Mass. 499. Parish chuech. The expression, parish church, has various significa- tions. It is applied sometimes to a select body of Christians, forming a local spiritual association; and sometimes to the building in which the public worship of the inhabitants of a parish is celebrated ; but the true legal notion of a parochial church, is a consecrated place, having attached to it the right of burial, and the administration of the sacraments. Town of Pawlet vs. Clark, 9 Cranch ( U. S.J 326. vide Church. Parishionee is a very large word, takes in, not only inhabitants of the parish, but persons who are occupiers of lands, that pay the several rates and duties, though they are not resiant, nor do contribute to the orna- ments of the church. Attorney Gen. vs. Parker, 3 Atk. 577. 1 Ch. Div. 167. Park. A " park " is an enclosed space in a city or village, set apart for ornament or to afford the benefit of air, exercise or amusement. Perrin vs. K Y. Central R. R. Co., 36 N. Y. 126. In the English law * * the term " park " meant an enclosure upon a man's own land, in which beasts of park were kept, such as the buck and the roe. Price vs. Inhabitants of Plainfield, 11 Vr. (N. J.) 612. A park is a piece of ground adapted and set apart for purposes of ornament, exercise and amusement. People vs. Green, 52 How. Pr. R. (N. Y.J 445. 448 ADJUDGED WORDS AND PHRASES. PAELIAMENTAEY PAETLES Parliamentary TAX is one that is imposed directly by act of Parliament. Palmer vs. Earith, 14 M. & W. 431. Pakochial church. The true legal notion of a parochial church, is a con- secrated place, having attached to it the rights of burial, and the administration of the sacraments. Town of Pawlet vs. Black, 9 Cranch ( U. S.J 326. Part owner. A term of common use in the law to denote a class of persons distinct from partners, who own property jointly, but in a different manner and by a different tenure. Break vs. Blair, 129 Mass. 128. Partial loss. It is a loss borne wholly by the party upon whose property it takes place ; and is then a particular average in distinction from a general average. A partial loss, properly so called, is a total loss of a part of the enterest ; ex. gr. in an insurance on twenty hogsheads of sugar, if one be washed out, that is called a partial loss. American Ins. Co. vs. Griswold, 14 Wend. (N. Y.J 472. Particular average is the damage or loss, short of total, falling directly upon a particular property. Bargett vs. Oriental Mut. Ins. Co., 3 Bosw. (N. Y.J 395. Particular malice, is ill will, grudge, a desire to be revenged on a par- ticular person. Brooks vs. Jones, 11 Ired. Law (N. C.J 261. Parties. Under the term parties, are comprehended all per- sons standing in relation of privies in blood, privies in estate or privies in law. Jackson vs. Crissey, 3 Wend. (N. Y.J 252. All who are directly interested in the subject-matter, and have a right to make defense, or to control the proceedings, and to appeal from the judgment. Wheeler vs. Towns, 43 N. Hamp. 51. 64 Penn. St. 245 ; 1 Abb. Ct. of App. Decisions 459 ; 74 Mo. 238 ; 16 Abb. Pr. E. (N. Y.)183. ADJUDGED WORDS AtfD PHKASES. 449 PARTNERS PARTNERSHIP Partners ostensible and dokmant (distinguished.) An actual ostensible partner, is a party who not only participates in the profits, and contributes to the losses, but who appears and exhibits himself to the world as a person connected with a partnership, and as forming a component member of the firm. A dormant partner is likewise a participant in the profits of the trade, but his name being suppressed and concealed from the firm, his interest is conse- quently not apparent. Mitchell vs. Doll, 2 Harr. & Gill. (Md.) 172. Where the names of the partners do or do not appear in their accounts, their advertisements, or their paper ; where the business is carried on in the name of all, it is open ; but if any are kept back, it is dormant. * * The partnership remains dor- mant as to all, whose names do not appear on its transactions. WinsMp vs. Bank of the U. S., 5 Peters (U. S.J 573. vide Dormant partner. Partnership is a community of interest between two or more, and a sharing of profit and loss. The voluntary associa- tion of two or more persons, in sharing the profits and bearing the losses of a general trade, or a specific adventure. Post vs. Kimberly, 9 John. (N. Y.J 495. The communion of profit and loss, is the true test of partnership. Banchor vs. Oilly, 38 Maine 555. Partnership is a voluntary agreement between two or more persons, for joining together their money, goods, labor and skill, all or either of them, upon an arrangement that the gain or loss shall be divided proportionately between them. Buckman vs. Barnum, 15 Conn. 72. A partnership is the combination of two or more par- sons, of capital or labor, or skill for their common benefit. Stone vs. Boone, 24 Kansas 340. A partnership is a voluntary contract between two or more persons, for joining together their money, goods, labor and skill, or any or all of them, under an understanding that there shall be a communion 450 ADJUDGED WORDS AND PHRASES. PARTNERSHIP PARTY of profit between them, and for the purpose of carry- ing on a legal trade, business or adventure. Supervisors of Niagara vs. People, 7 HiU (N. Y.) 513. (Quoting Colly er on Part. 2.) A community of property, and an agreement to share in the losses and profits of a business, or community of losses and profits, alone, will make the parties partners. Buckner vs. Lee, 8 Georgia 288. A partnership is two or more persons who occupy towards each other the relation of partners. Chambers et al. vs. Shan et al., 19 Georgia 85. Partnership is formed by a contract, by which one person or partnership agrees to furnish another per- son or partnership, to whom it is furnished, in his or their own name or firm, on condition of receiving a share in the profits, in proportion determined by the contract, and of being liable to losses and expen- ses, to the amount furnished, and no more. Tibbatts vs. Tibbatts, 6 McLean ( U. 8. C. C.J 82. A partnership is considered in the. law as an artifi- cial person or being, distinct from the individuals composing it. It is treated as such in laM', and in equity. Curtis vs. Hdlingshead, 2 Green (N. J.) 410' 9 Cal. 639 ; 3 Harr. (Del. ) 485 ; 12 Iowa 177 ; 5 Heisk. 269 ; 1 Cliff. 32- 2 Ark. 353 ; 5 Ark. 278 ; 13 Ark. 31 ; 46 Miss. 434 ; 2 Col. 648 ; 2 Leigh 551 ; 19 Ind. 115 ; 11 "Wend. 580 ; 97Penn. St. 499 : 10 W. Va. 460 ; 12 W. Va. 744. Paett. By the term party, in general, is meant one having a right to control the proceedings, to make a defence, to adduce and cross examine witnesses, and to appeal from the judgment. Boles vs. Smith, 5 Sneed (Tenn.) 107. By it is understood he or they by or against whom a suit is brought, whether at law or in equity ; the party plaintiff or defendant, whether composed of one or more individuals, and whether natural or legal persons. Merchants' Bank vs. Cook, 4 Pick. (Mass.) 411. The word ''party " comprehends all the persons, who are plaintiffs or defendants in a cause. Van Campen vs. Bibble et al., 2 Harr. (N. J.) 434. 21 Me. 482 ; 43 N. H. 57. ADJUDGED WORDS AND PHBASES. 451 PAETY PARTY-WALL Party aggrieved (by decree.) A party aggrieved is one whose pecuniary interest is directly affected by the decree ; one whose right of property may be established or divested by the de- cree. Swackhamer vs. Kline's Ad., 10 C. K 0. Eq. (N. J.) 505. The expression " party grievetl " is not a technical expression ; the words are ordinary English words, which are to have the ordinary meaning put upon them. Robinson vs. Currey, 7 Q. B. Div. 470. 6 Met. (Mass.) 197 ; 53 Me. 560. Party to an action is one who is named as plaintiff or defendant, and appears on the record as such, and no other is meant. Woods vs. Figaniere, 16 Abbott's Pr. R. (N. Y.J 4. Party-wall. Ordinarily it means a wall built partly on the land of one and partly on the land of another, for the common benefit of both, in supporting timbers, used in the construction of contiguous buildings. Brown et al. vs. Werner, 40 Md. 19. The term " party wall," in its general ordinary signi- fication, means a dividing wall between two houses, to be used equally, for all the purposes of an exterior wall, by both parties ; that is by the respective own- ers of both houses. Fettretch vs. Learny, 9 Bosw. (N. Y.J 530, A party wall is a wall constructed upon the line of lands of two adjoining proprietors, and partly upon each, or it may be that the wall and the land upon which it stands are held in common. Hunt vs. Amhruster, 2 C. E. G. Eq. (N. J.) 213. The term is commonly applied to a wall of which, if divided longitudinally, the two parts rest on land be- longing to different owners, built solidly of materials not easily divided, or whose parts cannot be taken down without danger to the whole structure. Nash vs. Kemp, 49 How. Pr. R. (N. Y.) 527. Party-wall, right to. A right to a party-wall, is a right which an owner of 452 ADJUDGED WORDS AND PHRASES. PASS PATENT land has to build a division-wall partly over his line on the land of another. Boberts vs. Bye, 30 Penn. St. 377. Pass (counterfeit money) means to deliver as money, or as a known and con- ventional substitute for money. Hopkins vs. Com., 3 Met. (Mass.) 464. Passengee is a person who undertakes with consent of the car- rier to travel in the conveyance provided by the lat- ter, otherwise than in the service of the carrier as such. Higley vs. Gilmer, 3 Montana 99. Passing and uttering (distinguished) vide Uttering and passing, &c. Passion and maiice (distinguished.) Passion is blind — it is hasty, rash, following the first, impulse of the moment ; malice is cool, circumspect, slow, brooding, meditating, planning. Malice does not mean mere passion ; for the very existence of passion is often eyidence that there was no malice. People vs. Dolan, 9 Cal. 581. Passive tbusts (in Wisconsin stat.) mean those which are express, or created by the words of some deed or other instrument in writing, and not those trusts arising or resulting by implica- tion of law. Goodrich vs. Milwaukee, 24 Wis. 429. Passport and sea-letter (distinguished.) The former is a permission from a neutral state, to a master of a ship, to proceed on the voyage proposed, and usually contains his name, and residence, the name, description and destination of the ship, with such other matters as the practice of the place re- quires. The sea-letter specifies the nature and quan- tity of the cargo, the place from whence it comes, and its destination. Sleight vs. Eartshorne, 2 John. (N. Y.) 543. (Quoting Marshall on Lis. 317.) Patent. A patent or grant of any exclusive right, after it has been duly obtained, is a franchise, a privilege of roy- ADJUDGED WORDS AND PHRASES. 453 PATENT PAWN • alty, or of the supreme power, in the hands of a sub- ject or citizen. Wilson vs. Rousseau, 1 Blatchf. ( U. S. C. C.J 79. Patent ambiguity. By patent ambiguity must be understood an inher- ent ambiguity, which cannot be removed, either by the ordinary rules of legal construction, or by the application of extrinsic and explanatory evidence, showing that expressions prima facie unintelligible are yet capable of conveying a certain and definite meaning. Brown vs. Guice, 46 Miss. 3Q2. Patent ambiguities are those which appear upon the face of the writing itself : as, for example, a will with the name of the devisee left in blank. Stolcely vs. Groom, 8 Md. 505. 67 Ponn. St. 112 ; Busbee Eq. (N. C.) 69 ; 25 Ga. 142 ; 7 BradweU (HI.) 38. Patent-right. The right to make, use or vend a patented invention, or inventions claimed to be patented. State vs. Peck, 25 Ohio St. 28. Pauper is a poor person, particularly one so indigent as to depend upon the parish or town for support. Lee County vs. Lackie, 30 Ark. 768. A pauper is one so poor as to be unable to provide for him or herself, and having no one of sufficient pe- cuniary ability to care for them, is a charge upon the bounty and generosity of the public. In a word, an eater of the public bread, having no relative or friend able, or by law liable, to pay for it. Whiting's Case, 3 Pittsburgh (Pa.) 133. A poor person who is a burden and charge upon a parish or town. Walbridge vs. Walbridge, 46 Vermont 621. Every person unable to provide for and maintain himself is, prima facie, a pauper entitled to relief. S. Brunswick vs. E. Windsor, 3 Halst. (N. J.) 67. Pawn. A bailment or delivery of goods by a debtor to his creditor, to be kept till the debt is discharged. It is the pignori acceptum of the civil law, according to ite ADJUDGED WOEDS AND PHRASES. PAWN FAYMENT which, the possession of the pledge (pignus) passed to the creditor, therein differing from the hypotJieca ■where it did not. Barrett vs. Cole, 4 Jones Law (N. C.) 41. Goods or chattels delivered to another to be security to him for money borrowed of him by the bailor ; and this is called in Latin vadium, and in English a pawn or pledge. Coggs vs. Barnard, 2 Ld. Raym. 913. A pawn is a mere collateral security for the payment of the debt, and therefore the pawnee may proceed personally against the pawner for the recovery of his debt, without selling the property pledged. Johnson vs. Smith, 11 Humph, (lenn.) 398. A pawn, or pledge is a contract by which the debtor gives to his ereditor, a thing to be detained as secu- curity for his debt, which the creditor is bound to return when the debt is paid. Surber vs. McClintic, 10 W. Va. 242. 2 Q. B. 594. Pay. To pay is to discharge an obligation by a. perform- ance according to its terms or requirements. Tolman vs. Manufs. Ins. Co., 1 Cush. (Mass.) 76. Pay is a fixed and direct amount given by law to per- sons in the military service, in consideration of and as compensation for their personal service. Sherburne vs. United States, 16 Ct. of Claims 496. Payment in its largest sense, is the actual accomplishment of the thing that the party obligates himself to give, or to do, whatever that may be, although, in our accep- tation, it is ordinarily confined to money engage- ments, and it is therefore the natural manner in which obligations are extinguished. Thompson vs. Kellogg, 23 Mo. 285. Payment, in its legal import, means the full satisfac- tion of a debt by money, not by an exchange or com- promise, or an accord and satisfaction, and it is only "where the words used in connection with it plainly manifest a different intention that the legal import of the term can be rejected. .Maince vs. H. B. B. B. Co., 3 Duer (N. Y.J 441. ADJUDGED WORDS USD PHRASES. 455 PAYMENT PECUNIARY Payment, in a legal sense, is the discharge of a con- tract or obligation in money, or its equivalent, and it is usually made with the assent of both parties to the contract. Brady vs. Wasson, 8 Heish. (Tenn.) 135. ! That which is given to execute what has been prom- ised ; or it is the fulfillment of a promise. Solvere dicimus cum quis fecit, quod facere promisit. But though this is the general acceptation of the Word, yet by payment is understood every way by which the creditor is satisfied, or ought to be, and the debtor liberated. Bants & Co. vs. Basnett, 12 W. Va. 780. (Quoting Bouvier L. Diet.) Payment is a mode of extinguishing obligations. Bloodworth vs. Jacobs, 2 La. Ann. 20. Payment means payment in due course, and not by anticipation. Burbridge vs. Manners, 3 Campb. 194. Payment is not a technical word ; it has been import- ed into law proceedings from the exchange, and not from law treatises. When you speak of paying in cash, that means in satisfaction, but when by bill, that does not import satisfaction, unless the bill is ultimately taken up. Maillard vs. Duke of Argyle, 6 Man. & Gr. 45. Payment is delivery by the debtor to the creditor of the amount due. Bronson vs. Bodes, 7 Wallace ( U. 8.) 250. Payment of a debt is not necessarily a payment of money ; but that is payment which the parties con- tract shall be accepted as payment. Huffmans vs. Walker, 26 Oratt. (Va.) 316. 19 Barb. 15. Peace, time op. When the courts of justice be open, and the judges and ministers of the same may by law protect men from wrong and violence, and distribute justice to all, it is said to be time of peace. Skeen vs. Monkheimer, 21 Ind. 3. Pecuniary loss. A pecuniary loss is a loss of money, or of something 456 ADJUDGED WORDS AND PHRASES. PEDDLER -=". PENALTY by which money or something of money value may be acquired. Green vs. H. B. B. B. Co., 32 Barb. (N. Y.)33. 29 N. Y. 274. Peddler. One who travels about the country on foot, or in some kind of vehicle, or in any other way, and sella goods or small commodities by retail. Wooltnan vs. The State, 2 Swan. (Tenn.) 354. 2 Lea (Tenn.) 28. Penal law is a law which imposes a fine for its breach. Drew vs. Bussell, 47 Vermont 253. Penal law means a law for the breach of which a pen- alty is imposed, and if this penalty is imposed merely as a punishment, the penalty is a fine. A. T. & S. F. B. B. vs. State, 22 Kansas 15. Penal statute. A statute that inflicts a penalty for the violation of some of its provisions. Mitcliell vs. Hotclikiss, 48 Conn. 19. 12 Heisk. (Tenn.) 594. (Quoting Bouvier L. Diet.) Penal and remedial statutes (distinguished.) vide Bemedial, &c. Penalty is a forfeiture annexed to a contract, or agreement ; either for the better enforcing a prohibition, or by way of security for the doing of some collateral act agreed upon between the contracting parties. Bobeson vs. Whitesides, 16 S. & B. 322. Where a sum is payable as a punishment for a de- fault, or by way of security, and the realization of that sum is not within the original intention of the parties, the sum is a penalty; but when it forms part of the original intention, that upon default a sum otherwise payable at a future period, shall be- come forthwith payable, it is no longer a penalty. Protector Loan Co. vs. Grice, 5 Q. B. Div. 596. A penalty is the imposition upon a man of the pay- ment of a sum of money, or some personal suffering. Sills vs. Hunt, 28 Eng. L. & JSq. 396. ADJUDGED WORDS AND PHRASES. 457 PENALTY PEREMPTORY Penalty is a pecuniary punishment or sum of money imposed by statute, to be paid as a punishment for the commission of a certain offence. Merchants Bank vs. Bliss, 21 How. Pr. B. (N. Y.J 370. 3 Blackf. 443 ; Minor (Ala.) 927. (Quoting Burrill's L. Diet.) Penitentiary. The term penitentiary is an English word in common use, to signify a prison or place of punishment. Millar vs. The State, 2 Kansas 183. Pent road. A road could not be a pent road if it was not shut up or closed at its terminal points. Wolcott vs. Whitcomb, 40 Vermont 41. Perambulation. A perambulation, or, as it might more correctly be called, a circumambulation, is the custom of going round the boundaries of a manor or parish, with witnesses, to determine and preserve recollection of its extent, and to see that no encroachments have been made upon it, and that the landmarks have not been taken away. Greenville vs. Mason, 57 N. Hamp. 392. (Quoting Hone's Year Book, p. 589. ) Peremptory. The adjective peremptorius, (from perimere, to cut off,) joined with a substantive, as action or exception, signifies a final or determinate act, without hope of renewing or altering. Furman vs. Applegate, 3 Zab. (N. J.) 29. (Quoting Jacob's L. Diet. ) Peremptory challenges are those which are made to the juror, without assigning any reason, and which the courts are bound to respect. Turpin vs. The State, 55 Mi. 434. (1 Chitty Cr. Law 534.) Peremptory mandamus is not a judicial writ founded on a record, but a mandatory writ which the court of B. E. issues when it is satisfied of the prosecutor's right. Kuechhr vs. Wright, 40 Texas 682. A peremptory writ of mandamus is an extraordinary remedy to coerce the performance of a preexisting duty, or clear and specific legal right. The State vs. Mayor &c, Manitowoc, 52 Wis. 426. 458 ADJUDGED WORDS AND PHBASES. EEBFECT PERILS Perfect interval (in insanity.) By a perfect interval, I do not mean a cooler mo- ment, an abatement of pain or violence, or of a higher state of torture, a mind relieved from an ex- cessive pressure ; but an interval in which the mind, having thrown off the disease, had recovered its gen- eral habit. Attorney Gen. vs. Parntker, 3 Brown Ch. Cos. 444. vide Lucid interval. Perfect obligation. A perfect obligation is that which gives to the oppo- site party the right of compulsion. Aycoch et al. vs. Martin et al., 31 Georgia 128. Perfect right. A perfect right is that which is accompanied by the right of compelling those who refuse to fulfil the cor- respondent obligation. Aycock et al. vs. Martin et al., 37 Georgia 128. Perfect right of self-defense vide Self-defense. Perfect title can mean nothing less than a title which is good, both at law and in equity. Warner vs. Middlesex Mut. Ass. Co., 21 Conn. 448. Performance and satisfaction (distinguished.) The distinction between performance and satisfaction is, that the former is the performance in specie of the agreement ; the latter is, where the contracting party has done something in lieu of the thing contracted for. The distinction is of great importance, because the onus probanda, as to the intention, lies on different parties in the two cases. Johnson vs. Collins, 20 Ala. 441. Performed (in stat. of frauds) ex vi termini must mean the complete performance or consummation of the work. Boydell vs. JJrummond, 11 East 156. Perils of the sea ,. %^'- denote natural accidents, peculiar to that element, }-~ which clo not happen by the intervention of man, nor are to be prevented by human prudence. Jones vs. Pitcher, 3 Stew. <& Por. (Ala.) 177. ADJUDGED WORDS AND PHRASES. 459 PERILS PERJURY In a strict sense, the words " perils of the sea " de- note the natural accidents peculiar to that element ; but in more than one instance these words have been held to extend to events not attributable to natural causes. Hayes vs. Kennedy, 2 Pittsburgh (Pa.) 265. Perils of the sea are all those natural perils and op- erations of the elements which occur without the intervention of human agency, and which the pru- dence of man could not foresee nor his strength resist. Redpath vs. Vaughan, 52 Barb. (N. Y.J 497. (Quoting 3 Kent's Com. 300.) ■vide Dangers of the sea. 1 S. A pledge is a deposit of personal effects to be retained until redeemed. Chamberlain vs. Martin, 43 Barb. (N. Y.J 610. 468 ADJUDGED WOKDS AND PHRASES. PLEDGE POLICE A pledge is a lien created by the owner of personal property by the mere delivery of it to another, upon an express or implied understanding that it shall be retained as security for an existing or future debt. Corbett vs. Underwood, 83 III. 326. A pledge is a bailment of personal property as a se- curity for some debt or engagement. Brewster vs. Hartley, 37 Cal. 25. A bailment of personal property as security for some debt or engagement. Markham vs. Jaudon, 41 N. Y. 241. A pledge consists of a delivery of goods by a debtor to his creditor, to be held until the debt or obliga- tion is discharged and then to be redelivered to the pledgor ; the title not being changed during the con- tinuance of the pledge. Par shall vs. Eggart, 52 Barb. (N. Y.J 374. 41 N. T. 241; 6 Ired. 319; 4 Denio 229; 11 Humph. v 398; 78 HI. 452; 3Blackf. 310. Pledge and mortgage (distinguished.) vide Mortgage, &c Pledgery is suretyship, an undertaking, or answering for. Gloucester Bank vs. Worcester, 10 Pick. (Mass.) 531. Plunder. To plunder is to take property from persons or places by open force. Carter vs. Andrews, 16 Pick. (Mass. J 9. Plying coastwise (vessels) indicate vessels engaged in the domestic trade, or plying between port and port in the United States, as contradistinguished from those vessels engaged in the_ foreign trade, or plying between a port of the United States and a port of a foreign country. San Francisco vs. Steam Navigation Co., 10 Cal. 507- Plying for hire (coach) vide Standing, &c. Police is in general a system of precaution, either for the prevention of crime or other calamities. Its business may be distributed into eight distinct branches: ADJUDGED WORDS AND PHRASES. 40t> POLICE POLICY 1. Police for the prevention of offences ; 2. Police for the prevention of calamities ; 3. Police for the the prevention of epidemic diseases ; 4. Police of charity ; 5. Police of interior communication ; 6. Po- lice of public amusements ; 7. Police for recent in- telligence ; 8. Police for registration. Ed of Com. vs. Williamette T. & L. Co., 6 Oregon 222. Police justice. A police justice is a magistrate charged exclusively with the duties incident to the common-law office of a conservitor or justice of the peace, and the prefix " police " serves merely to distinguish them from justices having also civil jurisdiction. Wenzler vs. People, 58 N. Y. 530. Police power. It may be said to be that inherent and plenary power in the State, which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. Lake View vs. Rose Hill Cem. Co., 10 III. 194. Police power of a state is a convenient and comprehensive expression used to signify those powers by means of which it not. only preserves public order and prevents crime, but also promotes and secures good manners in the intercourse between its citizens, and thereby pre- vents a conflict of right. Bancroft vs. Thayer, 5 Sawyer ( TJ. S. C. C.) 505. Policy. It is derived from a French word, which means a promise. Good vs. Elliott, 3 T. R. 702. Policy of insurance is a contract by which the one party in consideration of a price paid to him adequate to the risk becomes security to the other that he shall not suffer loss, damage, or prejudice by the happening of the perils specified to certain things which may be exposed to them. Lucena vs. Craufurd, 5 B. (('■ P. 301. A policy of insurance is a contract in writing, by which the insurer, for a reasonable compensation, en- gages that certain property of the insured, specified 470 ADJUDGED WORDS AM) PHRASES. POLICY POLITICAL in the policy, shall sustain no loss or damage from any of the perils enumerated in the contract between the parties. Ins. Co. of N. A. vs. Jones, 2 Binn. (Pa.) 561. It is merely a guaranty against loss of property by lire or marine disaster. Insurance Go. vs. Com., 87 Penn. St. 183. A contract of indemnity against certain risks ex- pressed in the policy. Craig vs. Murgatroyd, 4 Yeates (Pa.) 166. The contract of insurance is a contract of indemnity, and the policy of insurance is, in substance, a bond of indemnity. American Ins. Co. vs. Ogden, 15 Wend. (N. Y.) 537. A policy of insurance is a commercial contract, based on the usages and customs of trade, expressed in a brief and inartificial form, and in some of its parts in pecu- liar and technical language, containing numerous stipulations, some of which are comprehended in a few short phrases, and others which arise solely by implication, and are not obvious on the face of the instrument. Greene vs. Pacific Mut. Ins. Co., 9 Allen (Mass.) 219. A policy of insurance necessarily inports a written contract, as the name of the instrument, derived from the Italian, necessarily implies. Sandf. vs. The T. F. Ins. Co., 11 Paige Cli. (N. Y) 556. vide Insurance. 10 East 347 ; 2 Q. P.. P>. 163. 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. Lloyd vs. Fleming, L. E. 7 Q. B. 302. Political. Pertaining to policy or the administration of govern- ment. People vs. Morgan, 90 III. 563. Political corporation. A political corporation is one which has principally for its object the administration of the government, or to which the powers of government or a part of such powers have been delegated. Winspear vs. Township of Holman, 37 Iowa. 544. (Quoting Bouvier L. Diet.) ADJUDGED WORDS AND PHRASES. 471 political port Political liberty vide Civil liberty. Political office. Political offices are such as are not immediately con- nected with the administration of justice, or with i the execution of the mandates of a superior, as the President or head of a Department. Fitzpatrick vs. United States, 7 Court of Claims R. 293. Pool. Stagnum, in English a pool, doth consist of water and land ; and therefore by the name of stagnum or a pool the water and land shall pass also. Johnson vs. Rayner, 6 Gray (Mass.) 110. Co. Litt. 5 b. Pool measure means no more than a person buying according to that measure shall have the ingrain, as it is called, or customary allowance of the port of London, of one chaldron for every twenty chaldrons which he shall contract for. Parish vs. Thompson, 3 East 530. Popular sense (words of stat. understood in a.) That sense which people conversant with the subject matter with which the statute is dealing would attribute to it. Grenfel vs. Com'rs of Inland Revenue, 1 Ex. Div. 248. Popular use means the occasional and precarious enjoyment of the property by the members of society in their individual capacities — without the power to enforce such enjoyment according to law. Gilmer vs. Lime Point, 18 Col. 238^ Port. A place to which ships are authorized to resort for loading and discharging. Nicholson vs. Williams, L. R. 6 Q. B. 642. It may generally mean a harbor, or shelter to vessels from storms. Be Longuemere vs. N. Y. F. I. Co., 10 John. (N. Y.J 125. It is said by Xavy, and by Varro, that the Eomans, when they laid out a town, as a religious ceremony observed on such occasions, delineated its bound- 472 ADJUDGED WORDS AMD PHKASES. POET POET aries with a plough; and that wherever they de- signed there should be a gate, they took up the plough and left a space. Hence the word porta, a gate, a portando aratrum. Passenger Cases, 7 Howard (U. S.J 505. A port in common sea phrase, may be said to be any safe station for ships ; but, in law, it is described to be a place for arriving and lading and unlading of ships in a manner prescribed by law ; and near to which is a city or town for the accommodation of mariners and the securing and vending of merchan- dise. So that in this sense a public port is a com- plex subject, consisting of somewhat that is natural, as a convenient access from the sea, a safe situation against winds, and a shore upon which vessels may well unlade ; something that is artificial, as keys, wharves and warehouses ; and something that is civil, as privileges and regulations given to it by the gov- ernment. The Wharf Case, 3 Bland Ch. (Md.) 369' A port is a haven and something more. Cole vs. Union Mut. Ins. Co., 12 Gray (Mass.) 503. A port is a place either on the sea coast or on a river, where ships stop for the purpose of loading and un- loading, from whence they depart, and where they finish their voyages. By the Roman law, a port is defined to be locus conclusus, quo importantur merces, et unde exportantur. Packioood vs. Walden, 7 Martin JV. S. (La. J 88. ■vide Haven. 15 East 304. Port of dischaege includes the whole port within which any portion of the cargo is usually, according to the custom of such port, taken out of the vessel. Whitivett vs. Harrison, 2 Welsh. H. & Gord. 135. A vessel arrives at a port of discharge when she ar- rives at any place which it is usual to discharge cargo, and to which she is destined for the purpose of discharging cargo. BramhaU vs. Sun Ins. Co., 104 3Iass. 513. Pout-risk (in policy.) A risk upon a vessel while lying in port, and before she has taken her departure on another voyage. Nelson vs. Sun Mutual Ins. Co., 71 2f. Y. 459. ADJUDGED WOKDS AND PHRASES. 473 POSSESSED POSSESSION Possessed (of lands.) " Possessed " is a variable term in the law, and has different meanings as it is used in different circum- stances. It sometimes implies a temporary interest in lands ; as we say a man is possessed, in contradis- tinction to being seized. It sometimes implies a cor- poral having ; as we say a man is seized and pos- sessed. But it sometimes implies no more than that one has a property in a thing ; that he has it as owner ; that it is his. Mayor vs. Park Commissioners, 44 Mich. 603. Possession is the detention or enjoyment of a thing which a man holds or exercises by himself, or by another who keeps or exercises it in his name. Redfteld vs. U. & 8. R. R. Co., 25 Barb. (N. Y.J 58 Possession means simply the owning or having a thing in one's own power ; it may be actual or it may be constructive. Brown vs. Volkening, 64 N. Y. 80. It implies a present right to deal with the property at pleasure and to exclude other persons from med- dling with it. Sullivan vs. Sullivan, 66 M Y. 41. Possession is one degree of title, although the lowest. It is such an interest in land that one who has only the bare possession may maintain ejectment against a mere wrong-doer who has intruded into the posses- sion. Swift et al. vs. Augnes et al., 33 Wis. 240. Possession of land is denoted by the exercise of acts of dominion over it, in making the ordinary use and taking the ordinary profits, of which it is susceptible in its present state — such acts to be so repeated, as to show that they were clone in the character of owner, and not of an occasional trespasser. Williams vs. Buchanan, 1 Ired. Law. (N. C.J 540. Possession of land is the holding of and exclusive ex- ercise of dominion over it. Booth et al. vs. Small et al, 25 Iowa 281. vide Actual and constructive possession (distinguished. J 3 Lea 241; 9 Humph. 771; 1 Lea 746. , Possession actual vide Actual possession. 474 ADJUDGED WORDS AND PHRASES. possession post Possession by relation op law is where the party in actual possession becomes dis- possessed, and is afterwards restored, by re-entry or m some other lawful manner ; he is then, during the period which has intervened between the disposses- sion and the restoration, deemed in possession by relation of law. Bacon vs. Sheppard, 6 Halst. (N. J.) 198. Possession constructive vide Constructive possession. Possession in fact is where the party is in the actual use and enjoyment of the land or other real estate. Bacon vs. Sheppard, 6 Halst. (N. J.) 197. Possibility. The word possibility has a general sense, in which it includes even executory interests, which are the objects of limitation. But in its more specific sense, it is that kind of contingent benefit which is neither the object of a limitation, like an executory interest, nor is founded in any lost, but recoverable seizin, like a right of entry. And what is termed a bare or mere possibility, signifies nothing more than an ex- pectancy, which is specifically applied to a mere hope of succession unfounded in any limitation, pro- vision, trust, or legal act whatever; such as the hope which an heir, apparent or presumptive, has of succeeding to the ancestor's estate. Needles, Exr. vs. Needles et al., 7 Ohio St. 443. 3 T. E. 93 ; 46 Barb. 87. (Quoting Smith on B. & P. Prop. 192.) Post (military) means a military establishment where a body of troops is permanently fixed. CaldioeWs Case, 19 Wallace (U. S.) 268. Post obit contract. This is an agreement, on the receipt of a sum of money by the obligor, to pay a larger sum, exceeding the legal rate of interest, on the death of the person from whom he has some expectation, if the obligor be then living. Boynton vs. Hubbard, 7 Mass. 119. Post obit agreements, or bonds, are those given by a ADJUDGED WORDS AND PHRASES. 475 POST POWEE borrower of money, by which he undertakes to pay a large sum, exceeding the legal rate of interest, on or after the death of a person from whom he has ex- pectations, in case of surviving him. Craivford vs. Bussdl, 62 Barb. (N. Y.J 95. Post office. In its ordinary use, the term embraces the business of keeping, forwarding and distributing mailable matter, equally with the place where such business is con- ducted. U. S. vs. Marselis, 2 Blatdif. (U. S. C. C.) 110. Pound, ex vi termini, is an enclosed piece of land, secured by a firm structure of stone, or of posts and timber, placed in the ground. Wooley vs. Inhab. of Groton, 2 Cush. (Mass.) 309. Pound (English money.) A pound is a definite quantity of gold, with a mark upon it to determine its weight and fineness. Borie vs. Trot, 5 Phila. B. 403. Power. It is an authority enabling one person to dispose of the interest which is vested in another. Goodill vs. Brigham, 1 B. & P. 197. A power is not an estate or interest in lands ; unex- ercised, it is an encumbrance ; and when exercised, the act performed by virtue of it is considered and construed as done by the donor of the power. Thompson vs. Laing, 8 Bosworth (N. Y.) 482, An authority enabling a person, through the medium of the statute of uses, to dispose of an interest in real property, vested either in himself or in another per- son. Burleigh vs. Clough, 52 N. Ramp. 271. (Quoting Bouvier L. Diet.) Poweb and authority (in city charter,) mean duty and obligation. Fhjnn vs. Canton Co. of Baltimore, 40 Md. 319. Power appendant is where a person has an estate in the land, and the estate to be created by the power, is to (or may) take ■\ effect in possession, "during the continuance of the 476 ADJUDGED WORDS AND PHRASES. POWER POWER estate to which the power is annexed, as a power to tenant for life in possession, to make leases. Wilson vs. Troup, 2 Cowen (N. Y.J 236. Power coup:led with an interest is a right or authority to do some act, together with an interest in the subject on which the power is to be exercised. Clark vs. Hornthal, 47 Miss. 534 Power coupled with an interest is a power which accompanies or is connected with an interest. The power and the interest are united in the same person. Hunt vs. Rousmanier's Admrs., 8 Wheaton ( XI, S.J 204. A power, coupled with an interest, must create an interest in the thing itself upon which the power is to operate ; the power and estate must be united, or be coexistent, and this class of powers survive the principal and may be executed in the name of the attorney. JBonney vs. Smith, 17 111. 533. 45 Ind. 205 ; 11 Ark. 78 ; 28 Tex. 257 ; 2 Ct. of CI. 594. Power in gross. A power in gross is, where the person to whom it is given has an estate in the land, but the estate to be created under or by virtue of the power, is not to take effect till after the determination, of the estate to which he relates. Wilson vs. Troup, 2 Goto. (N. Y.J 236. Power in trust is a mere authority, or right, to limit a use. Fellows vs. Heermans, 4 Lansing (N. Y.J 256. Power in trust and estate in trust (distinguished.) A power in trust is a mere authority or right to limit a use, while an estate in trust is an estate or interest in the subject. A trustee is always invested with the legal estate, but this is not necessary with respect to the donee of the power. In the case of a power in trust there is always a person other than the donee or grantee of the power, which person is called the appointee, answering to the cestui que trust in a simple trust. Sterricker vs. Dickinson, 9 Barb. (N. Y.J 519. ADJUDGED WORDS AND PHRASES. 477 power predominant Power to license vide License, power to. Power to negotiate a bill or note is the power to endorse and deliver it to another so that the right of action thereon shall pass to the en- dorsee or holder. Weckler vs. First Nat. Blc, 42 Md. 592. Powers (in U. S. judiciary acts.) The word powers is employed to denote the process, the means, the modes of proceeding, which the courts are authorized to use in exercising their jurisdiction in the cases specially enumerated in the law as com- mitted to their " cognizance." Kendall vs. United States, 12 Peters (U. S.) 636. Practical construction By practical construction I do not mean judicial deci- sion, but practice sanctioned by general consent. Bank vs. Smith, 3 S. & R. (Pa.) 69. vide Construction. Practice . in its larger sense denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding the court is to admin- ister the machinery as distinguished from its product. Poyser vs. Minors, 7 Q. B. Div. 333. Praying judgment of the indictment means no more than praying judgment on the in- dictment. The King vs. Shakespeare, 10 East 87. Prebend. A prebend is an endowment in land or pension in money given to a cathedral or conventual church in praebendam ; that is, for a maintenance of a secular priest or regular canon, who was a prebendary, so supported by the said prebend. Randolph vs. Milrnan, L. R. 4 C. P. 111. Predominant is understood to be something greater or superior in power and influence to others, with which it is con- nected or compared. Mathews vs. Bliss, 17 Pick. (Mass. J 53. 478 ADJUDGED WORDS AIQ) PHRASES. PRE-EMPTION PREMIUM Pbe-emption CLAIMANT. One who has settled upon land subject to preemp- tion, with the intention to acquire its title, and has complied, or is proceeding to comply, m good faith, with the requirements of the law to perfect his right to it. Hosmer vs. Wallace, 7 Otto (U. S.J 581. Preemption bight. It is a right to purchase at a fixed price in a limited time in preference to others. Sowers vs. Keesecher, 14 Toiua 307. The exclusive right which a person has to purchase a quantity of land belonging to the United States, in consequence of having complied with the laws of congress upon the subject of preemption. Dillingham vs. PisJier, 5 Wis. 480. Preferred dividend. A preferred dividend is that which is paid to one class of shareholders in priority to that to be paid to another class. Taft, trustee vs. H. P. & F. R. R. Co., 8 R. I. 333. vide Dividend preferential. Preference (of creditors) is a payment to one creditor which will give him an ad- vantage over the others, or which may possibly do so. Re Hapgood, 2 Lowell ( U. S. D. C.J 202. Pregnant with a quick child. A woman is " pregnant with a quick child " when the child has become quickened in the womb. Evans vs. People, 49 JSF. Y. 89. vide Quick with child. Prejudice. It must mean an opinion or judgment in regard to the case, formed beforehand, without examination, or a prepossession. Hungerford vs. Cushing, 2 Wis. 405. Premium. vide Prize. Premium and wager (distinguished) vide Wager, &c. ADJUDGED WORDS AND PHRASES. 479 PREPARATION PRESUMPTION Preparation and attempt (distinguished.) Preparation consists in devising and arranging the means or measures necessary for the commission of the offense ; the attempt is the direct movement to- ward the commission after the preparations are made. People vs. Hurray, 14 Gal. 159. Preponderance (of evidence) is something more than weight. It is superiority of weight, out-weighing. Shinn vs. Tucker, 37 Ark. 588. The preponderance of testimony means the weight, credit and value of the aggregate evidence on either side, upon the issues joined, and not upon particular facts. Hills vs. Goodyear, 4 Lea (Tenn.) 243. Prerogative. That power, pre-eminence or privilege which the king hath and claimeth over and beyond other persons, and above the ordinary course of the common law, in right of his crown. Atty. Gen. vs. City of Eau Claire, 37 Wis. 443. (Quoting Jacob's L. Diet.) Prescription is a title acquired by possession had during the time and in the manner fixed by law. Applegate vs. Morse, 7 Lansing (N. Y.) 61. A prescription is a title, the validity of which de- pends upon continual and peaceable usage from time whereof the memory of man is not to the contrary. Simpson vs. Coe, 4 N. Hamp. 302. 51 N. H. 329. Present (in indictment.) The word "present" means nothing more than that the jury "represent" or "show" to the court that a certain person has committed a certain offence. Com. vs. Keefe, 9 Gray (Mass.) 292. Presumption is the inference of the truth or falsehood of a pro- position, drawn by a process of probable reasoning, in the absence of its actual certainty. It is the pro- bability of the proposition being true or false, de- duced from its conformity or repugnancy to our gen- eral knowledge, observation and experience. * * 430 ADJUDGED WORDS AND PHRASES. PRESUMPTION PRESUMPTIONS It is the inference of the existence of one fact, from _ the existence of some other fact, founded on previous experience of their connection. Snediker vs. Everingha.m, 3 Dutch. (N. J.) 153. A presumption of any fact is, properly, an inferring of that fact from other facts that are known ; it is an act of reasoning ; and much of human knowledge on all subjects is derived from this source. The King vs. Burdeit, 4 B. & A. 161. Presiimption is the evidence of things not seen; where, from an apparent effect, you may infer a prob- able cause. Fanshaiv vs. Bother am, 1 Eden Ch. 284. Presumption is a probable inference which one's common sense draws from circumstances usually oc- curring in such cases. Oaks vs. Wetter, 16 Vermont 11. A presumption is an inference as to the existence of a fact not actually known, arising from its usual con- nection with another which is known. Insurance Co. vs. Weide, 11 Wallace (U. S.J 441. Presumption may be denned to be an inference as to the existence of one fact, from the existence of some other fact, founded upon a previous experience of their connection. To constitute such a presumption, it is necessary that there be a previous experience of the connection between the known and inferred facts, of such a nature that as soon as the existence of the one is established, admitted or assumed, the infer- ence as to the existence of the other immediately arises, independently of any reasoning upon the sub- ject. Welch vs. Sackett, 12 Wis. 257. vide Legal presumption; Natural presumption. 97 Penn. St. 34; 11 Me. 146; 7 Wend. 66; 2 Hurlst & N. 668; 66 Ind. 432; 26 Ala. 30; 3 Bland Ch. 71. Peesumptions OF FACT are in truth but mere arguments, and differ from pre- sumptions of law in this essential respect, that while those are reduced to fixed rules, and constitute a branch of the particular system of jurisprudence to which they belong, these merely natural presump- tions are derived wholly and directly from the cir- cumstances of the particular case, by means of the ADJUDGED WORDS AND PHRASES. 481 PRESUMPTIONS PRIMA FACTE common experience of mankind, without the aid or control of any rules of law whatever. Snediker vs. Everingham, 3 Butch. (N. J.) 150. Presumptions of fact are inferences from evidence, and they may be resisted by evidence leading to an opposite conclusion. Bow vs. Allenstoicn, 34 N. Samp. 365. Presumptions of law are such as are conclusive or absolute, that is, such as are not permitted to be overcome by proof that the fact is otherwise, or such as are termed disputa- ble presumptions, that is, such as admit of contrary proof, but which, in the absence of all opposing evi- dence, make a prima facie case, and throw the bur- then of proof on the other party. bnediker vs. Everingham, 3 Dutch. (N. J.) 150. They are conclusive when the law makes an inference so peremptorily that it will not allow it to be over- turned by any contrary proof, however strong. And they are disputable when the law makes an inference which will stand until invalidated by proof. Lyon vs. Guild, 5 Heisk. (Term.) 182. vide Legal presumptions. Previous chaste character (in seduction) means that she shall possess actual personal virtue, in distinction to a good reputation. People vs. Clarlc, 33 Mich. 118. Previous demand means a demand made on a substantially different occasion. Tyler vs. Bland, 9 M. & W. 340. Previously. The word previously is an adverb of time, used in comparing an act or state named, to another act or state, subsequent in order of time, for the purpose of asserting the priority of the first. Lebreht vs. Wilcoocon, 40 Iowa 94. Prima facie evidence. It is such as, in judgment of law, is sufficient to es- tablish the fact ; and if not rebutted, remains suffi- cient for the purpose. Kelly vs. JacJcson, 6 Peters (U. 8.) 632. 482 ADJUDGED WORDS AIJD PHRASES. PRIMA FACIE PRINCIPALS It is an inference or presumption of law affirmative or negative of a fact, in the absence of proof ; or un- til proof can be attained or produced to overcome the inference. " It is that which not being inconsistent with the falsity of the hypothesis, nevertheless raises such a degree of probability in its favor that it will prevail if accredited by a jury, unless it be rebutted or the contrary proved." Jackson vs. Thatcher, 1 N. T. Sup. Ct. (T. & C.J 167. (Quoting 1 Stark, on Ev. 244.) 14 Peters 347 ; 97 Mass. 243 ; 8 Heisk. 14. Primage (in shipping.) The word primage denotes a small payment to the master for his care and trouble, which he is to re- ceive to his own use, unless he has otherwise agreed with his owners. Peters vs. Speights, 4 Md. Ch. 381. It was called hat-money, sometimes pocket-money. Charleton us. Cotesworth, By an and Moody B. 177. Primage and petilodmanage is due to the master and mariners for the use of his cables and ropes to dis- charge the goods, and to the mariners for unloading the vessel ; it is commonly about 12d. per ton. Ibid, note. Principal. One primarily and originally concerned, and who is not an accessary, or auxiliary. Adams vs. Whittlesey, 3 Conn. 567. Principals (in crime.) Principals are such either in the first or second de- gree. Principals in thefirst degree are those who are the immediate perpetrators of the act. Principals in the second degree are those who did not, with their own hands, commit the act, but were present, aiding and abetting it. Mitchell's Case, 33 Gratt. (Fa.) 868. The term principle is equivocal, it may denote either the radical elementary truths of a science, or those consequential axioms which are founded on radical truths, but which are used as fundamental truths by those who do not find it expedient to have recourse to first principles. Boulton vs. Bull, 2 H. Bl. 478. ADJUDGED WORDS AND PHEASES. 483 PRINCIPLE PRIVATE Principle and conscience (distinguished) vide Conscience, &c. Private acts are rather exceptions than rules, being those which only operate upon particular persons and private concerns. Allen vs. Hirsch, 8 Oregon 422. vide Special or private acts. 7 Nev. 350 ; 9 Nev. 218 ; 8 Tex. App. U»7. Private and public acts (distinguished) vide Public, &c. Prtvate and public corporation (distinguished) vide Corporation public and private, &c. Private and public waters (distinguished) vide Public, &c. Private bill (legislative.) Every bill for the particular benefit of a person or company, or a locality in which the whole commu- nity is not interested, is, in a parliamentary sense, a private bill. People vs. Supervisors of Chatauqua, 43 N. Y. 17. ParvATE carrier is one who, without being engaged in such business as a public employment, undertakes to deliver goods in a particular case, for hire or reward. Pennenwill vs. Cullen, 5 Harring. (Del.) 242. vide Common and special carrier, &c. Private corporations are those which are created for the immediate bene- fit and advantage of individuals, and their franchises may be considered as privileges conferred on a num- ber of individuals to be exercised and enjoyed by them in the form of a corporation. Dartmouth College vs. Woodward, 1 N. Hamp. 1 15. Private institutions are those which are created or established by private individuals for their own private purposes. Toledo Bank vs. Bond, 1 Ohio St. 643. Prtvate law is one which relates to private matters, which do not concern the public at large. Mart vs. Baltimore & 0. R. B. Co., 6 W. Va. 349. (Quoting Bouvier L. Diet. ) 484 ADJUDGED WORDS AlO) PHKASES. PKIVATE PBTVATE Pbivate nuisance is anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. Burditt vs. Swensen, 17 Texas 502. A private nuisance is an act done, unaccompanied by an act of tresspass which causes a substantial preju- dice to the hereditaments, corporeal or incorporeal, of another. Galhraith vs. Oliver, 3 Pittsburgh (Pa.) 81. (Quoting Adam's Equity 210.) 7 Ga. 311 ; 80 N. Y. 582 ; 27 Barb. 211. Private eight op way. A private right of way is defined to be that right which one man has of going over another's land, and is confined either to the inhabitants of a particular district, or to those occupying or owning certain estates, or it extends to one or more individuals in certain. To every private way there are two essen- tial requisites, first, the terminus a quo, or the point or place from which the grantee is to set out in order to use the way, and the terminus ad quern, the place where the way is to end ; and, second, that the grantor has the right, not the mere revocable permis- sion, of setting out from the terminus a quo, and pro- ceeding to and entering the terminus ad quern. * * It is simply an easement, or a privilege, conferring no interest in the land. Garrison vs. Eudd, 19 III. 563. Private roads are such as are used for private individuals only, and are not wanted for the public generally. Witham vs. Osourn, 4 Oregon 324. (Quoting Bouvier L. Diet. ) Private statutes. Such as concern the particular interest or benefit of certain individuals or particular classes of men oper- ating upon a particular thing or private persons. People vs. Supervisors of Chatauqua, 43 iV. T. 16. Private wat is 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 main- ADJUDGED WORDS AND PHKASES. 485 MUTATE PRIVILEGE tained and kept in repair by those for whose accom- modation they were established. Jones vs. Andover, G Pick. (Mass.) GO. A private way is one laid out by the public author- ities for the accommodation of individuals, and at their expense. But when once laid out, the ease- ment is as public as in highways laid out for the accommodation of the public. Clark vs. B., C. & M. B. B., 24 N. Hamp. 118. vide Way ; Bight of way. Private wkongs. Private wrongs or -civil injuries are an infringement or privation of the civil rights which belong to indi- viduals, considered merely as individuals. Com. vs. Dunham et al., Thatcher's Cr. Cas. 550. (Quoting 4 Bl. Com. 5. ) Pktvilege. The word privilege may be defined as a right peculiar to an individual or body. Bipley vs. Knight, 123 Mass. 519. The exercise of an occupation, or business, which requires a license from some proper authority, desig- nated by a general law, and not open to all, or any one, without such license. Mayor, etc. of Columbia vs. Guest, 3 Head (Tenn.) 414. The word privilege taken in its active sense, is a par- ticular law or a particular disposition of the law, which grants certain special prerogatives to some persons, contrary to common right. Laicyers' Tax Cases, 8 Heisk. (Tenn.) 649. A privilege is a right or franchise created by legislative grant that cannot be exercised by any citizen without some statutory provision conferring upon some one or more individuals the right of doing some partic- ular thing. Languille vs. The State, 4 Texas App. 317. A privilege is a right or immunity by way of exemp- tion from the general law. L. & N. B. Co. vs. Gaines, 3 Fed. Bcp. 278. The term "privilege " includes in its ordinary defini- tion an exemption from such burthens as others are 486 ADJUDGED WORDS AND PHRASES. PEIVTLEGED PBIVILEGED subjected to, as the privilege of being exempt from arrest, or from taxation. State vs. Betts, 4 Zab. (N. J.) 557. 7 Heisk. 44; 3 Cooper Ch.' 591 ; 3 Sneed 121 ; 3 Lea 277 ; 8 Heisk. 475. Privileged (as applied to a libellous communication.) The term "privileged," as applied to a communica- tion alleged to be libellous, means simply that the circumstances under which it was made were such as to repel the legal inference of malice, and to throw upon the plaintiff the burden of offering some evi- dence of its existence beyond the mere falsity of the charge. Lewis vs. Chapman, 16 N. Y. 373. By an absolutely privileged communication is not to be understood a publication for which the publisher is in no wise responsible ; but it means a publication in respect of which, by reason of the occasion upon which it is made, no remedy can be had in a civil ac- tion or libel. A conditionally privileged communi- cation is a publication made on an occasion which furnishes a prima facie legal excuse for the making of it, and which is privileged unless some additional fact is shown which so alters the character of the oc- casion as to prevent it furnishing a legal excuse. Buohs vs. Backur, 6 Heisk. (Tenn.) 405. Where a person is so situated that it becomes right in the interests of society that he should tell to a third person certain fact's, then if he bona fide and without malice does tell them it is a privileged com- munication. Davies vs. Snead L. B., 5 Q. B. 611. According to Harrison vs. Bush, 5 E. & B. 344, a com- munication which a person makes bona, fide in dis- charge of a moral or social duty of imperfect obliga- tion, is privileged. To which I may add, that such is the case where the person giving the information bona fide thinks that lie is discharging a moral or social duty. Waller vs. Loch, 7 Q. B. Div. 621. A privileged communication means nothing more than that the occasion of making it rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, ADJUDGED WORDS AND PHRASES. 487 PEIVILEGED PKIVIES and throws upon him the onus of proving malice in fact ; but not of proving it by extrinsic evidence only ; he has still a right to require that the alleged libel itself shall be submitted to the jury, that they may judge whether there is evidence of malice on the face of it. Wright vs. Woodgate, 2 Cromp. M. & E. 573. A communication made bona fide upon any subject- matter in which the party communicating has an in- terest, or in reference to which he has a duty, is privil- eged, if made to a person having a corresponding in- terest or duty, although it contained crimatory matter which, without this privilege, would be slanderous and actionable. Harrison vs. Bush, 5 El. & B. 348. A communication is privileged when made in good faith in answer to one having an interest in the in- formation sought ; and it will be privileged if volun- teered when the party to whom the communication is made has an interest in it, and the party to whom it is made stands in such a relation to him as to make it a reasonable duty, or at least proper that he should give the information. Erber vs. Bun, 12 Fed. Rep. 530- A publication fairly made by a person, in the dis- charge of some public or private duty, whether legal or moral, comes within the class of privileged or au- thorized communications. The communication, be- ing made in confidence and kindness, and the defend- ant not being actuated by any malicious motive, be- comes clearly privileged. Toogood vs. Spryling, 1 Cromp. M. & R. 193. It comprehends all cases of communications made bond fide, in performance of a duty, or with a fair and reasonable purpose of protecting the interest of the party using the words. SumerviUe vs. Hawkins, 70 Eng. C. L. (10 C. B.J 589 vide Liberty of the press. 48 N. H. 166; 3 Q. B. D. 242; 3 How. (U S.)287. Privies. Persons who are partakers, or have an interest in any action or thing, or any relation to another. Lord vs. G. N. & P. S. Co., 4 Saw. (U. S. C. C.J 300. Privies are persons who are parties to, or have an 488 ADJUDGED WORDS AND PHRASES. PRIVITY PPJVY interest in, any action or thing, or any relation to another ; they are of several kinds — privies in blood, as heir and ancestor ; privies in representation, as the executor or administrator to the deceased ; pri- vies in estate, as the relation between donor and donee, lessor and lessee ; privies in respect to con- tracts ; and privies on account of estate and contract together. Gouraud vs. Gouraud, 3 Bed/. Surr. Rep. (N. Y.) 267. ( Quoting Bouvier L. Diet. ) vide Privity. Privity. "The term privity denotes mutual or successive rela- tionships to the same rights of property ; and privies are distributed into several classes, according to the manner of this relationship. Thus, there are privies in estate, as donor and donee, lessor and lessee and joint tenants ; privies in blood, as heir and ancestor and coparceners ; privies in representation, as ex- ecutors and testator, administrators and intestate ; privies in law, where the law, without privity of blood or estate, casts the land upon another, as by escheat." (Quoting 1 Greenl Ev. § 189.) * * * A derivative kind of interest, founded upon or grow- ing out of the contract of another, as that which subsists between an heir and his ancestor, between an executor and testator, and between a lessor or lessee and his assignee. (Quoting BurrilVs L. Did.) Coan vs. Osgood, 15 Barb. (N. Y.) 588. Privity of estate is identity of title to an estate — the relation which subsists between a landlord and his tenant. Society vs. Varney, 54 N. Hamp. 378. 20 Minn. 431 ; 41 Iowa 516 ; 3 Ga. 430 ; 64 Perm. St. 246 ; 48 Barb. 82 ; 4 Lea 128 ; 7 Ct. of CI. 526. Privy. A person who has an interest in an estate created by another ; a person having an interest derived from a contract or conveyance, to which he is not himself a party. Thus an heir is privy to the conveyance of his ancestor, an executor to the contract of his tes- tator, and an assignee of a lessor to the contract of the original parties. Coan vs. Osgood, 15 Barb. (N. Y.) 588. vide Primes. 48 Barb. 82. (Quoting BurrilVs L. Did.) ADJUDGED WORDS AND PHRASES. 489 privy prize Peivy in estate is any person who must necessarily derive his title to the property in question from a party bound by a judgment, &c, subsequently to such judgment. Dickinson vs. Lovell, 35 N. Hamp. 1G. Peivy teedict is one given out of court, before one of the judges thereof ; and it is called privy, being to be kept secret from the parties until it is affirmed in court. Commonwealth vs. Heller, 5 Phila. B. 124. (Quoting Jacob' sL. Diet. tit. Verdict.) A privy verdict is when the judge hath left or ad- journed the court ; and the jury, being agreed, in order to be delivered from their confinement, obtain leave to give their verdict privily to the judge out of court, which privy verdict is of no force, unless afterwards affirmed by a public verdict given openly in cou::t ; wherein the jury may, if they please, vary from the prior verdict, Willard vs. Shaffer, G Phila. R. 520. Peize is ordinarily some valuable thing, offered by a per- son for the doing of something by others, into the strife for which he does not enter. Harris vs. White, 81 K Y. 539. A Prize is properly something taken on the High Sea from a common Enemy against whom War is declared. Beak vs. Tyrrell, Cartlieiu 32. Property taken from an enemy. * * Any goods, the subject of marine capture. Groning vs. Union Ins. Co., 1 Nott & McC. (S. C.J 539. Peize couet. A prize court is, in effect, a court of all the nations in the world, because all persons in every part of the world are concluded by its sentences in cases clearly coming within its jurisdiction. Penhallow vs. Doane's Admrs. 3 Dallas ( U„ S.J 91. Peize couet and instance couet (distinguished) vide Instance court, &c. 490 ADJUDGED WORDS AND PHRASES. pbobable pbobable Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief, that the person accused is guilty of the offence with which he is charged. Munns vs. Dupont, 3 Wash. (U. 8. G. C.) 37. Probable cause consists in that degree of evidence, which would induce a reasonable man to believe the accused party guilty ; such as would convince or satisfy men of the usual and ordinary caution and judgment, when not governed by malice. Bacon vs. Towne, 4 Cush. (Mass.) 233. Probable cause may be defined to be that apparent state of facts found to exist upon reasonable inquiry; that is, such inquiry as the given case rendered con- venient and proper, which would induce a reasonably intelligent and prudent man to believe the accused person had committed, in a criminal case, the crime charged ; and in a civil case, that the cause of action existed. Lacy vs. MitcMl, 23 Ind. 67. Probable cause is the existence of such facts and circumstances as would excite the belief, in a reason- able mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Wheeler vs. Neslit, 24 Howard ( U. 8.) 551. A belief honestly entertained, and derived from facts and evidence which in themselves are sufficient to justify a man who is calm, and not governed by pas- sion, prejudice, or want of ordinary caution and care, in believing the party guilty. Belief and reasonable grounds for that belief, are undoubtedly both essen- tial elements in the justification of probable cause. Humphries vs. Parlcer, 52 Maine 505. Probable cause does not, therefore, depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party prosecut- ing. Greer vs. Whitfield, 4 Lea (Tenn.) 90. Probable cause in general may be understood to be such conduct on the part of the accused, as may in- ADJUDGED WORDS AND PHRASES. 491 PKOBATE PROCESS duce the court to infer that the prosecution was un- dertaken from public motives. Uhner vs. Leland, 1 Greenl. (Me.) 135. 20 Ohio 129 ; 17 HI. 65 ; 70 111. 546 ; 6 Barb. 86 ; 2 Denio 019 ; 2 Hil- ton 495 ; 28 Iowa 49 ; 69 HI. 379 ; 30 Ind. 460 ; 76 111. 42 ; 37 Md. 318, 371 ; 45 Tex. 544 ; 7 Robertson (N. Y.) 66 ; 1 Am. Lead. Cases 213 ; 9 Brad-well (HI.) 394 ; 42 Md. 61 ; 45 Md. 205 ; 8 Barb. 431 ; 9 Hun. 179 • 1 Matthews (Va.) 180. Probate. The proof of a will or testament made by the exec- utor before an officer appointed by law, and termed ordinary, surrogate or probate judge. Mitchell vs. Mitchell, 6 Phila. JR. 352. (Quoting SumU's L. Diet. ) The probate of "Wills has been held by this Court to be, in its nature, a proceeding in rem, and obligatory alike upon all persons, whether parties to it or not. Ford vs. Ford, 2 Goldw. (Tenn.) 15. Proceeding. In its general sense, in law parlance, it means all the steps or measures adopted in the prosecution or de- fense of an action. Gordon vs. The State, 4 Kansas 501. 6 N. Y. 319. Proceeding (in court.) A proceeding in court, we understand to be, an act which is done by the authority or direction of the court, express or implied. Frazer vs. Phelps, 3 Sandf. (N. Y.) 741. Proceeding in rem is that in which the process is served on the thing itself ; and the mere possession of the thing itself, by the service of the process and making proclama- tion, authorizes the court to decide upon it, without notice to any individual whatever. Stroupper vs. McCauley, 45 Georgia 77. Process is so denominated, because it proceeds or issues forth in order to bring the defendant into court, to answer the charge preferred, and signifies the writ or judi- cial means by which he is brought to answer. In criminal cases, that proceeding which is called a warrant before the finding of a bill is termed pro- 492 ADJUDGED WORDS AUD PHRASES. PROCESS PROCESS cess when issued after the indictment has been found by the grand jury. City of Davenport vs. Bird, 34 Iowa 527. The word process usually signifies a writ or warrant ; but it means a good deal more. It means all the proceedings in a cause, after the first step. People vs. Nevins, 1 Hill (N. Y.J 169. In a general and comprehensive sense the term pro- cess signifies all the proceedings in an action from its inception to its conclusion. Cook vs. Gray, 2 Houst. (Del.) 473. The word process has, in law, a well established legal meaning in its application to the commence- ment of the proceeding ; it is used to designate the writ or other judicial means by which a defendant is brought into court to answer a charge, though there may afterwards be issued, in the progress of the case, interlocutory and final process. City of Pliila. vs. Campbell, 11 Phila. P. (Pa.) 164. It comprehends any lawful warrant, authority or proceeding by which a man may be arrested. Pro- cess of law is two fold, viz., by the King's writ, or by due proceeding and warrant either in deed or in law, without writ. People vs. Nevins, 1 Hill (N. Y.J 170. Process is taken in Law in two Significations, in one largely, and in the other strictly ; and in the large Sense it is taken for all the Proceedings in all Real and Personal Actions, and in all Criminal and Com- mon Pleas. BlacTeamore' s Case, 8 Coke 157 b. But, generally, it imports the writs which issue out of any court to bring the party to answer, or for doing the execution. Fluester vs. McClelland, 98 Eng. C. L. 359. Process, in a large acceptance, comprehends the whole proceeding after the original and before judg- ment, but generally it imports the writs which issue out of any court to bring the party to answer, or for doing execution and all process out of the king's courts ought to be in the name of the king. It is called process because it proceeds or goes out upon former matter either original or judicial. Gilmer vs. Bird, 15 Florida 421. ADJUDGED WORDS AND PHRASES. 498 PROCESS PROCLAMATION Process has two significations. First, it is largely taken for ail the proceedings in any action or prose- cution, real or personal, civil or criminal, from the beginning to the end ; secondly, that is termed the process by which a man is called into any temporal court, because it is the beginning or principal part thereof, by which the rest is directed or taken; strictly, it is the proceeding after the original, be- fore judgment. Perry vs. Lorillard Ins. Co., 6 Lansing (N. Y.J 204. 27 La. An. 457 ; 1 New Mex. 385. (Quoting Jacob's L. Did.) Process (in patent law.) A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be trans- formed and reduced to a different state or thing. Cothrane vs. Deener, 4 Otto ( U. S.J 788. 12 Fed. Rep. 618. Process verbal is a true relation in writing, in due form of law, of what has been done and said verbally in the pres- ence of a public officer and what he himself does upon the occasion. It is a species of inquisition of office. Hall vs. Hall, 11 Texas 539. (Quoting Bovm.tr L. Diet. ) PSOCHEIN AMI. A prochein ami or guardian ad litem for an infant party to an action, is a species of attorney whose duty it is to prosecute for the infant's rights, and to bring those rights directly under the notice of the court ; but he can do nothing to the injury of the infant, and there- fore, cannot compromise or settle his suit, and a pay- ment to him is not a legal satisfaction, unless ratified by the infant on obtaining his majority. Leopold vs. Meyer, 10 Abbott's Pr. R. (N. Y.J 40. A prochein ami is one admitted by the court to prose- cute for an infant. Tucker vs. Dabbs, 12 Heisk. (Tenn.) 19. Proclamation. Proclamation — proclamatio — is a notice publicly given of anything whereof the king thinks fit to advertise his subjects. Lepeyre vs. United States, 17 Wallace (U. S.J 195. l N. M. 336 494 ADJUDGED WORDS AND PHRASES. proctors profits Proctors are officers established to represent in judgment the parties who empower them (by warrant under their hand, called a proxy) to appear for them, to explain their rights and instruct their cause, and to demand judgment. Stephenson vs. Higginson, 3 Ho. of Lords Cases 686. Professional employment can only relate to some of those occupations univer- sally classed as professions, the general duties and character of which courts must be expected to under- stand judicially. Pennock vs. Fuller, 41 Mich. 155. Profit a prendre consists of a right to take a part of the soil or pro- duce of the land, in which there is a supposable value. Pierce vs. Keator, 70 M. Y. 421. A profit d, prendre in the land of another, when not granted in favor of some dominant tenement, cannot properly be said to be an easement, but an interest or estate in the land itself. Post vs. Pearsall, 22 Wend. (N. Y.) 433. This right of profit a prendre, if enjoyed by reason of holding certain other estate, is regarded in the light of an easement appurtenant to an estate ; whereas, if it belongs to an individual, distinct from any own- ership of other lands, it takes the character of an in- terest or estate in the land itself, rather than that of a proper easement in or out of the same. Pierce vs. Keator, 70 N. Y. 422. Profit on cargo (in insurance) means the improved value of the cargo when it has been loaded at its destined port. Halhead vs. Young, 36 Eng. L. & Eq. 113. Profits. The word "profits" has a fixed and definite mean- ing, and * * imports the net amount made after deducting any proper expense incident to the busi- ness. Jones vs. Davidson, 2 Sneed (Tenn.) 452. Profits and income (distinguished) vide Income, &c. ADJUDGED WORDS AND PHRASES. PROHIBITION PKOMISSOEY Prohibition (writ of) is, in effect, a proceeding between two courts — a su- perior and an inferior — and is the means whereby the superior exercises its due superintendence over the inferior, and keeps it within the limits and bounds of the jurisdiction prescribed to it by law. Mayo, Mayor, &c. vs. James, 12 Gralt. (Va.) 23. Promise is a declaration, verbal or written, made by one per- son to another for a good or valuable consideration, by which the promissor binds himself to do or for- bear some act, and gives to the promisee a legal right to demand and enforce fulfillment. Newcomb vs. Clark, 1 Denio (N. Y.J 229. Promise and representation (distinguished) vide Representation, &c. Promissory note. A promise or agreement in writing to pay a spe- cified sum, at a time therein limited or on demand, or at sight; to a person therein named, or his order, or to bearer. Walters vs. Short, 10 III. 259. (Quoting Chitty on Bills 516.) A written promise to pay money absolutely and at all events. Lowe vs. Bliss et al., 24 III. 170. (Quoting Bayley on Bills 1. ) A written engagement by one person to pay another person therein named, absolutely and uncondition- ally, a sum of money certain at a time specified therein. Whiteman vs. Childress, 6 Humpli. (Tenn.) 304. A promissory note is a promise to pay money, re- duced to writing. Longivell vs. Day, 1 Mich. Nisi Pr. 288. The essential qualities of a bill or note, are 1. That it be payable at all events : not dependent on any contingency, nor payable out of a particular fund ; and 2. That it be for the payment of money only, and not for the performance of some other act, or in the alternative. Cook vs. Saterlee, 6 Cowen (N. Y) 108. A written engagement by one person, to pay abso- 496 ADJUDGED WORDS AND PHRASES. PROOF PROPERTY lutely and unconditionally to another 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. Hall vs. Farmer, 5 Denio (N. Y.J 486. 49 Me. 518 ; 4 Baxter 442 ; 47 "Wis. 555 ; 95 111. 144 ; 10 Neb. 287 ; 21 La. An. 122 ; 53 Wis. 606 ; 6 Humph. 304. Proof, in strict legal construction, means evidence before a court or jury, in a judicial way. Lenox vs. U. S. Ins. Co., 3 Johns. Cases (N. Y.J 225. In a legal sense, proof signifies the effect of evidence, as contradistinguished from evidence which implies the medium or means of proof. But in ordinary language the terms are used interchangeably, and the word "proof" is, used when evidence only is meant. Perry vs. Dubuque S. W. Ry. Co., 36 Iowa 106. Proof is that quantity of approximate evidence which produces assurance and certainty. B. &c. R. R. Co. vs. Reynolds, 6 Row. Pr. R. (N. Y.) 98. This a techinical word, used in a technical sense, and implies the application, to some extent, of those rules under which evidence is ordinarily admitted. JEKllet al. vs. Hunt et al., Spencer (N. J.) 478. Proof and evidence (distinguished.) There is an obvious difference between the words evidence and proof. The former in legal acceptation, includes the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. The latter is the effect or result of evidence. ScJdoss vs. His Creditors, 31 Cal. 203. vide Proof. Property. The highest right a man can have to anything ; being used for that right which one hath in lands or tene- ments, goods or chattels, which no way depends on another man's courtesy. Sliefvs. Hart, 1 N. Y. 24. (Quoting Jacob's L. Diet. ) Property is the exclusive right of possessing, enjoy- ADJUDGED WORDS AND PHRASES. 497 PBOPERTT . PKOPERTY ing and disposing of a thing which is in itself valua- ble. It is ownership. Jones vs. Van Zandt's Admr., 4 McLean ( U. S. C. C.) 603. Property, in its appropriate sense, means that domin- ion or indefinite right of user and disposition which one may lawfully exercise over particular things or subjects, and generally to the exclusion of all others. * * Yet the term is often used to indicate the res or subject of the property, rather than the property itself. Rigney vs. City of Chicago, 102 III. 77. The word "property" denotes the interest one may have in lands and chattels to the exclusion of others. Ayres vs. Lawrence, 59 N. Y. 198. An exclusive right to things, containing not only a right to use those things, but a right to dispose of them, either by exchanging them for other things, or giving them away to any other person without con- sideration, or even throwing them away. Wynehamer vs. People, 13 N. Y. 397. (Quoting Bouvier L. Diet. ) The right and interest a man has in lands and chat- tels. It is the right to enjoy and dispose of certain things in the most absolute manner, as he pleases, provided he makes no use of them prohibited by law. Dow vs. Gould & Cully, S. M. Co. 31 Col. 637. (Quoting Bouvier L. Diet.) Property consists of those things which belong to us by that exclusive right which enables us to exclude all others from having anything at all to do with them. * * Property, considered as an exclusive right to things, contains not only a right to dispose of them, either by exchanging them for other things, or by giving them away to any other person, without any valuable consideration in return, or even of throwing them away, which is usually called relin- quishing them. Toledo Bank vs. Bond, 1 Ohio St. 662. The term property, although frequently applied to the thing itself, in strictness means only the rights of the owner in relation to it ; and these are the rights of use, enjoyment, and disposal. Dorman vs. State, 34 Ala. 239. Property consists in the free use, enjoyment, and 498 ADJUDGED WORDS AND PHRASES. PEOPEETY , PEOSECUTION disposal by a person of all his acquisitions, without any control or diminution, save only by the laws of the land. Stevens et al. vs. The Stale, 2 Ark. 299. The unrestricted and exclusive right to a thing ; the right to dispose of the substance of a thing in every legal way, to use it and exclude every one else from interfering with it. Brush vs. Carter, 3 Vroom (N. J.) 861. (Quoting Bouvier L. Diet.) The sole and exclusive dominion which one man claims and exercises over the external things of this world, in total exclusion of the right of any other in- dividual in the universe. Law of Burial, 4 Brad/. Surr. R. (N. T.) 516. vide Right of property. 2 Parker Cr. B. 459 1 17 John 583 ; 24 N. Y. 384 ; 12 How. Pr. E. 255; 36 Wis. 155; 1 111. 382 ; 35 Geo. 294 ; 43 .N. Y. Superior Court, (1 Sheldon) 340 ; 9 Cal. 143. Property ratione privilegii is the right which, by a peculiar franchise anciently granted by the Crown by virtue of its prerogative, one may have the right of killing and taking animals ferae naturae on the land of another ; and in like manner the game when killed or taken by virtue of the privilege, becomes the absolute property of the owner of the franchise. Blades vs. Higgs, 106 Eng. C. L. 810. Property ratione soli is the common law right which every owner of land has to kill and take all such animals ferae naturae as may from time to time be found on his land, and as soon as the right is exercised, the animal so killed or caught becomes the absolute property of the owner of the soil. Blades vs. Higgs, 106 Eng. C. L. 870. Prosecution. The well-understood legal signification of the word " prosecution " is, a criminal proceeding at the suit of the government. Tennessee vs. Davis, 10 Otto (II. S.) 269. It is not an action, it is not a suit ; none of our books confound it with those two words. It is the follow- ing up or carrying on of an action or suit already commenced, until the remedy be attained. The State vs. Hardenburgh, Penn. (N. J.) 360. 6 Halst. 321. ADJUDGED WORDS AND PHRASES. 499 peostitute protestation Prostitute is a female given to indiscriminate lewdness for gain. State vs. StoyeU, 54 Maine 21. Prostitution. By the word prostitution in its most general sense, is understood, the act of setting one's self to 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, &c. In a more restricted sense, tlie word means, the act or practice of a female offering her body to an indiscriminate intercourse with men ; the common lewdness of a female. Carpenter vs. People, 8 Barb. (N. Y.J 610. The common lewdness of a woman for gain. State vs. Buhl, 8 Iowa 454. 52 Ind. 528. (Quoting Bouvier L. Diet. ) Protest. Although in a technical sense, the term protest means only a formal declaration drawn up and signed the notary, yet as used by commercial men it includes all the steps necessary to charge an indorser. Crossen vs. Earhart, 8 Oregon 370. Protest is a solemn declaration of the holder, against any loss to be sustained by the non-acceptance or non-payment of the bill ; and in a more popular sense, it includes all the steps, after the dishonor of nego- tiable paper, necessary to charge a party to it. Ocoee Bank vs. Hughes, 2 Uoldto. ( Temi.J 54. At common law, the protest was a formal declaration of the notary of a presentation, demand, and that the holder looked to all the parties for payment. The notice was no part of the protest. Walker vs. Turner, 2 Gratt. ( Va.) 536. A protest is a constituent part of a b:ll of exchange, indispensibly necessary to be made, to entitle the holder to recover the amount from the other parties to the bill. Spies vs. Newberry, 2 Doug. (Mich.) 428. 2 Ohio St. 353 ; 3 Coldw. 48 ; 1 Swan 423. Protestation is a saving to the party who takes it from being con- cluded by any matter alleged or objected against him, upon which he cannot join issue, and it is no more 500 ADJUDGED WORDS AND PHRASES. PROTESTED PKOXIMATE than an exclusion of a conclusion, for lie that takes it excludes the other from concluding him ; and it ought to be consistent with the sequel of the plea. Graysbrook vs. Cox, Plowden, 276. Protested fob nonpayment means that the process necessary to dishonor the bill, to wit, demand, refusal of payment, and the drawing up of a formal protest, has been gone through with. All this is included in and meant by the term pro- tested. Spies vs. Newberry, 2 Doug. (Mich.) 428. 8 Cal. 637 ; 28 N. Y. 554 ; 12 Barb. 250. Proviso (in statute.) A proviso is something engrafted on a preceding en- actment, by way of limitation or otherwise, and is held to operate as a repeal of the purview of the act where it is inconsistent with it, as expressing the last inten- tion of the lawgiver. Waffle vs. Goble, 53 Barb. (N. Y.) 522. The office of a proviso, generally, is either to .except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought within its purview. Minis vs. United States, 15 Peters (U. S.J 445. 78 Penn. St. 71. Proviso and exception (distinguished) vide Exception, dec. Proximate (consequence of negligence) means closeness of casual connection, and not near- ness in time or distance, and is intended to qualify the generality of the idea expressed by the word natural. Kulm vs. Jewett, 5 Stew. Eq. (N. J.) 649. Proximate cause. In the use of the words, "approximate cause," is meant negligence occurring at the time the injury happened. Stuclce vs. M. &. M. R. R. Go., 9 Wis. 214. 37 Mo. 552. Proximate damages. The ordinary and natural results of the negligence > ADJUDGED WORDS AND PHRASES. SOI PROXIMATE PUBLIC such as are usual and as, therefore, might have been . expected ; and this includes in the category of re- mote damages such as are the result of an accidental or unusual combination of circumstances, which would not be reasonably anticipated, and over which the negligent party has no control. Henry vs. S. P. B. B. Co., 50 Cat 183. 70 Ind. 175. Proximate dominion in the obtaining possession by delivery of the things sold, which, without anything else, being preceded by the title, vests the right in the thing, which is the dominion. Coles vs. Perry, 7 Texas 136. vide Dominion. Public. What is meant by the public is not any corporation like a city, town or county, but the body of the peo- ple at large. The people of the neighborhood, — the community at large, — without reference to the geographical limits of any corporation, constitute the public. * * . The people are the public. Baker vs. Johnson, 21 Mich. 335. Public act is a universal rule that regards the whole commu- nity ; and of this the courts of law are bound to take notice judicially and ex officio. Allen vs. Hirsch, 8 Oregon 422. Public acts relate to the Kingdom at large. People vs. Chautauqua, 43 N. Y. 16. 7 Nev. 350 ; 9 Nev. 218. Public and pbivate acts (distinguished.) Public acts relate to the public at large, and private acts concern the particular interests or benefit of certain individuals, or of particular classes of men. Dervine vs. Cook County, 84 III. 592. (Quoting Potter's Dwarris 52.) • A public act is a universal rule that regards the whole community, and private acts are those that concern only a particular species, thing or person. Winooski vs. Golcey, 49 Vermont 285. 10 Wis. 178 ; 35 How. Pr. B. 132 ; 3 Abb. Pr. B. N. S. 479 ; 22 La. An. 548. 602 ADJUDGED WOEDS AND PHRASES. PUBLIC PUBLIC Public and petvate cobpoeation (distinguished) vide Corporation public, dec. Public and private watees (distinguished.) Waters in which the tide «bbs and flows — so far only as the sea flows and reflows, are public waters, and those in which there is no ebb and flow of tide, are private waters. Cobb vs. Davenport, 3 Vroom (N. J.) 378. Public coepoeations are such as are created by the government for politi- cal purposes, as counties, cities, towns and villages ; they are invested with subordinate legislative powers to be exercised for local purposes connected with the public good, and such powers are subject to the con- trol of the legislature of the state. County Commissioners vs. King, 13 Florida 470. Public corporations are political corporations or such as are founded wholly for public purposes, and the whole interest in which is in the public. Ten EycJe vs. D. & R. Canal Co., 3 Harr. (N. J.) 203. Public corporations are to be governed according to the laws of the land, and the government has the Bole right, as trustee of the public interest, to inspect, regulate, control, and direct the corporation, its funds and franchises. That is the essence of a public cor- poration. But it has no such right in relation to eleemosynary corporations, or the management of Til PI T* H TTfl 1 "P^ ' Beg. of XL, &c, vs. Williams, 9 Gill & J. (Md.) 401. An investing the people of a place with the local gov- ernment thereof. The People vs. Morris, 13 Wend. (N. Y.) 334. Public corporations are generally esteemed such as exist for public political purposes only, such as towns, cities, parishes, and counties ; and in many respects they are so, although they involve -some private in- terests ; but strictly speaking, public corporations are such only as are founded by the government for public purposes, where the whole interests belong also to the government. Dart. College vs. Woodward, 4 Wheaton (U. S.J 668. vide Corporation public andprii-ate, &c. 15 How. (U. S.) 276; 12 Wis. 106; lPittsb. K. (Pa.) 221; 37 Iowa 543; 71 111. 322. ADJUDGED WORDS AND PHRASES. 503 PUBLIC PUBLIC Public enemy (as to common carriers.) The term " public enemy " as applicable to the undertaking of a common carrier must be construed to mean the enemy of the state or government of which the common carrier is a citizen or member. K & C. B. B. Co. vs. Estis, 7 Heisk. (Tern. J 625. The term " public enemy " or enemy of the country has, in general, a technical legal meaning. It is understood to apply to foreign nations, with whom there is open war, and to pirates, who are considered at war with all mankind ; but it does not include robbers, thieves, or rioters or insurgents, whatever be their violence. Southern Express Co. vs. Womack, 1 Heisk. (Tenn.) 269. Public institutions are those which are created and exist by law or pub- lic authority. Toledo Bank vs. Bond, 1 Ohio St. 643. Public lands. The words " public lands " are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws. Newhall vs. Sanger, 2 Otto (U. S.J 763. Pulic law is one which affects the public, either generally or in some classes. Hart vs. Baltiwore & Ohio B. B. Co., 6 W. Va. 349. (Quoting Bouvier L. Diet.) Public money. The term " public money," as used in the statutes of the United States, ordinarily means the money of the Government, received from the public revenues or intrusted to its officers charged with the duty of receiving, keeping or disbursing the same whatever it may be. Branch vs. United States, 12 Court of Claims B. 289. Public nuisance is an offence against the public, either by doing a thing which tends to annoying the public, and com- mon against all, or by neglecting to do anything which the comir.^n good requires. Coe vs. Schultz, 2 Abbott's Br. B. N. S. (N. Y.J 195. 504 ADJUDGED WORDS AND PHRASES. PUBLIC PUBLIC, A nuisance' is public when it affects the rights en- joyed by citizens as part of the public. King vs. M. & E. E. E., 3 C. E. G. Eq. (N. J.) 399. A nuisance is said to he public, when it affects the sur- rounding community generally, and impairs the rights of neighboring residents as members of the public, and private when it especially injures individuals. Chesbrough vs. Commissioners, 37 Ohio St. 516. Public nuisance and puepeestuee (distinguished.) A public nuisance must be something which subjects the public to some degree of inconvenience or annoy- ance ; but a purpresture may exist without putting the public to any inconvenience whatever. Att'y Gen. vs. Evart Booming Co., 34 Mich. 473. Public office is an employment on behalf of the government in any statute or public trust, not merely transient, occa- sional, or incidental. Matter of Hathaway, 71 N. Y 244. A public office is a right to exercise a public employ- ment, and to take the fees and emoluments thereunto belonging. Attorney Gen. vs. Barstow, 4 Wis. 646. (Quoting 2 Bl. Com. 36.) x Every office is considered public, the duties of which concern the public. The People vs. Mayes, 7 How. Pr. E. (N. Y.J 250. Public opfcee. A public officer is one who has some duty to perform concerning the public. Mil vs. Boyland, 40 Miss. 625. Every one who is appointed to discharge a public duty, and receives a compensation, in whatever shape, whether from the crown or otherwise, is constituted a public officer. Henly vs. Mayor of Lyme, 5 Bing. 91. Every man is a public officer who hath any duty con- cerning the public, and he is not the less a public officer when his authority is confined to narrow limits ; because it is the duty and nature of that duty which makes him a public officer, and not the extent of his authority. Burin vs. People, 45 III. 400. ADJUDGED WORDS AND PHRASES. 505 PUBLIC 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 con- cerning the public, assigned to him by law, he must be regarded as a public officer. Bradford vs. Justices Inferior Ct., 33 Georgia 336. -»ide Office. 2 Sandf. 368 ; 49 Ala. 89 ; 34 N. Y. 398 ; 7 How. Pr. E. 250 ; 52 Vt. 104. Public place does not mean a place devoted solely to the uses of the public ; but it means a place which is, in point of fact, public, as distinguished from private — a place that is visited by many persons, and usually accessi- ble to the neighboring public. Parker vs. The State, 26 Texas 201. Public boad. A road dedicated to, and kept up by the public, as contra-distinguished from private ways or neighbor- hood roads, which are not so kept up. Mills vs. State, 20 Ala. 88. A public road is that of which even the soil is pub- lic ; it is not in a public road as in a private one, the soil of which does not belong to the public, while we have only the right of walking and driving over it ; the soil of a public road is public. Morgan vs. Livingston, 6 Martin (La.) 232. 30 Ala. 531. Public steeam. Any stream capable of being used in the transporta- tion of any kind of property to market, whether in boats, rafts or single pieces, whether guided by the hand of man or floated at random on the water, is a public stream, and subject to the public easement. Ryan vs. Brown, 18 Mich. 199. Public tbust The words public trust appear to include every agency in which the public, reposing special confidence in particular persons, appoint them for the performance of some duty or service. Matter of Daniel Wood, Hopkins Ch. (N. Y.J 8 Public use means a daily disposition of the property by the peo- 506 ADJUDGED WORDS AND PHARSES. PUBLIO PUBLICATION' pie of the commonwealth in their aggregate capacity, to be enforced, if necessary, by the exercise of power. Gilmer vs. Lime Point, 18 Cal. 238. Public use consists in the possession, occupation and enjoyment of the land itself by the public, or public agencies, and not in any incidental benefits or ad- vantages which may accrue to the public. Whiting vs. 8. & F. du L. R. R. Co., 25 Wis. 195. The term " public use " evidently means for the ben- efit of the public. In the matter of Peter Townsend, 39 N. Y. 182. Public use is one which concerns the whole com- munity in which it exists, as contradistinguished from a particular individual or numbers of individ- uals. Keller vs. Corpus Christi, 50 Texas 629. It is sufficient to say that the use of a thing may be considered public, so far as to justify the exertion of the legislative prerogative in question, if it be devoted to the object of satisfying a reasonable pervading pub- lic demandfor facilities for travel, for the transmission of intelligence, and of commodities not extraordinary, as compared with those enjoyed by communities of like pursuits. Concord R. R. vs. Greely, 17 N. Eamp. 61. Public use (property taken for.) Private property is taken for public use. when it is appropriated to the common use of the public at large. Own. of G. vs. M. of Albany, 15 Wend. (N. J.) 376. Public wae is that state in which a nation prosecutes its rights by force, and is carried on in the name of the gov- ernment, and by its order. Slocum vs. Wheeler, 1 Conn. 441. Public wrongs. Public wrongs or misdemeanors are a breach and violation of the public rights and duties, due to the whole community, considered as a community in its social, aggregate capacity. Com. vs. Dunham et al., Thatcher's Cr. Cos. 550. (Quoting 4 El. Com. 5. ) Publication is the act by which a thing is made public. When it ADJUDGED WORDS AND PHRASES. 607 PUBLICATIOK PUBLISHER refers to a libel, it is its communication to a second or third person, or a greater number. Grigsby vs. Breckinridge, 2 Bush (Ky.) 507. 3 Sawyer (TT. S. C. C.) 377. Publication (of a will.) I do not know what the publication of a will is. I can only suppose it to be that, by which a person designates that he means to give effect to a paper as his will. Moodie vs. Reid, 7 Taunt. 362. It is a communication to others of the nature of the act done, and not of the contents of the instrument. King vs. Burdett, 4 B. & A. 112. Publication of a will is the act or acts of the party, by which he manifests that it is his intention to give effect to the paper, as his last will and testament. Watson vs. Pipes, 32 Miss. 466. Publication of a will signifies the act of declaring or making known to the witnesses, that the testator un- derstands and intends the instrument subscribed by him to be his last will and testament. Lewis vs. Lewis, 13 Barb. (N. Y.J 23. 3M.4W. 471. Publication of an award must be the reading and filing it in court. Pancoast vs. Curtis, 1 Halst. (N. J.) 415. Published. The word " published," when applied to an award of arbitrators, is satisfied by the award's having been made, and notice having been given to the parties, that it is within their reach on payment of just and reasonable expenses. Knowlton vs. Homer, 30 Maine 556. 9 Bing. 605. Publisher. One who by himself or his agent makes a thing publicly known ; one engaged in the circulation of books, pamphlets and other papers. Leroy vs. Jamison, 3 Sawyer (U. 8. C. C.J 377. (Quoting Bowvier L. DM.) Publisher of a libel. Any one who knowingly communicates a libel, or 508 ADJUDGED WORDS AND PHEASES. PTTEBLO PURCHASE causes it to be communicated, is a publisher of the libel. Steele vs. Southwick, 1 Am. Lead. Cases 114. Pueblo, in its original signification, means people or popula- tion, but is used in the sense of the English noun "town." Trenouth vs. San Francisco, 10 Otto (U.S.) 251. Puis daeeien continuance in effect means a pleading of facts occurring since the last stage of the suit, whatever that stage may be, provided it precedes the trial. Waterbury vs. McMillan, 46 Miss. 640. PUECHASE. The term includes all modes of acquiring property, except by descent. McCartee vs. Orphan Asylum 9 Cowen (N. T.) 490. It comprehends every species of acquisition in con- tradistinction to hereditary descent and escheat. James vs. Morey, 2 Cowen (N. Y.J 290. A purchase, in its largest sense, is the possession of lands * * which a man hath by his own act or agreement ; and in this sense, he who takes by gift, * * or by alienation, is regarded by the law as a purchaser. Grant vs. Bennett, 96 III. 535. A purchase is the acquisition of something for an equivalent ; it is a quid pro quo. The King vs. Warblington, 1 T. R. 248. A purchase, in the ordinary and popular acceptation, is the transmission of property from one person to another by their voluntary act and agreement, founded on a valuable consideration. But in judgment of law it is the acquisition of land by any lawful act of the party in contradistinction to operation of law, and it includes title by deed, title by matter of record, and title by devise. MaydeU vs. May dell, 9 Heish. (Tenn.) 577. (Quoting 4 Kent's Com. 509.) The word purchase in common sense means no more than when a man gives money for any thing ; but in a legal sense every man is a purchaser of an estate who does not take it by descent. Martin vs. Strachan et al., 1 Wils. 72. ADJUDGED WORDS AND PHRASES. 509 PURCHASE PURCHASER The possession of lands or tenements that a man hath by his deed or agreement, with which he com- eth not by title of descent from any ancestor or cousin, but by his own deed. Priest vs. Cummings, 20 Wend. (N. Y.J 356. 34 Me. 572 ; 28 Barb. G58. Purchase and descent (distinguished) vide Descent, &c. Purchase and sale. The words purchase and sale, are correlative, and denote a contract in which two individuals agree, the one to give the other a certain thing, for a determi- nate price. He who gives the thing we call the vendor, and he acquires the action of sale, which is the right which belongs to him, to claim the contract price. He who gives the price, we call the purchaser, who has in his favor the action of purchase, in virtue of which he claims the thing pur- chased. Coles vs. Perry, 7 Texas 135. Purchase money. It is the common understanding of the term purchase money, that it means money paid for the land or the debt created by the purchase. Austin vs. Underwood, 37 III. 441. The terms " purchase money "do not include any money that may be borrowed to complete the pur- chase, but that which is stipulated to be paid by the purchaser to the vendor, as between them only it is purchase money ; as between the purchaser and lender, it is borrowed money. Henisler et al. vs. Niclcum, 38 Md. 279. Purchaser. The word purchaser * * embraces every holder of the legal title to real or personal property, where such title has been acquired by deed. Halbert vs. McCulloch, 3 Met. (Ky.) 457. vide Purchase and sale. Purchaser for a valuable consideration. By a purchaser for a valuable consideration is meant one who has paid a fair value, or something ap- proaching to a fair value, for the premises, Clark vs. Troy, 20 Cal. 223. 510 ADJUDGED WORDS AND PHRASES. PURPORT PUKPRESTTJRE PURPORT. The word " purport " means no more than the sub- stance of the instrument which appears to every eye that can read. State vs. Ferity, 18 Mo. 454. 5 Blackf . 458 ; 1 Head 140. Purport and tenor (distinguished.) Purport means the substance of an instrument as it appears on the face of it to every eye that reads it, and tenor means an exact copy of it ; and therefore, where the instrument is stated according to its tenor, the purport of it must necessarily appear. Fogg vs. The State, 9 Yerg. (Tenn.) 394. 1 Cash. 65 ; 5 Blackf. 458 ; 2 Leach Cr. C. 757. PUEPRESTURE means an encroachment upon, and an enclosure of, the property of the crown in a highway, river, or harbour. Atty. Gen. vs. Utica Ins. Co., 2 John. Ch. (N. Y.J 381. Purpresture signifies a close, or enclosure ; that is, when one encroacheth and maketh that serviceable to himself which belongs to many. And because it is properly, when there is a house builded or an en- closure made of any part of the king's demesne, or of a highway, or a common street, or public water, or such like things, it is derived of the French word pourpris, which signifies an inclosure. City of Columbus vs. Jacques, 30 Georgia 512. An anauthorized encroachment upon, and appropria- tion of land or water which are common and public. Moore vs. Jackson, 2 Abbott's New Cas. (N. Y.J 215. Purpresture is the encroachment by any person, by building or otherwise, on a street or some part of it, or such an enclosure, impediment or obstruction of it thereby, as to amount to the exclusion and hin- drance of the citizens and the public from the full and beneficial use and enjoyment of it as a public street. Brake vs. H. It Ii. E., 7 Barb. (N. Y.J 548. A purpresture may be defined as an enclosure by a pri- vate party of a part of that which belongs and ought to be open and free to the enjoyment of the public at large. Atty. Gen. vs. Evart Booming Co., 34 Mich. 472. 5 Port. (Ala.) 290 ; 28 N. T. 397 ; 2 Ct. of CI. 401. ADJUDGED WORDS AND PHRASES. 511 PURSE QUALIFIED PUKSE vide Prize. PURVIEW. The purview is all that part of an Act which lies be- tween the caption and the repealing clause. Thus, it seems that it means nothing more than the body of the Act. Smith vs. Hickman's Heirs, Cooke (Tenn.) 337. The meaning usually attached to this term by writers on law, seems to be the enacting part of a statute in contradistinction to the preamble ; and we think the provision of the act repealing all acts or parts of acts coming within its purview, should be understood as repealing all acts in relation to all cases which are provided for by the repealing act ; and that the pro- visions of no act are thereby repealed in relation to cases not provided for by it. Payne vs. Conner, 3 Bibb (Ky.) 181. Qualification (official) means the endowment or acquirement which renders eligible to place or position. Hyde vs. State, 52 Miss. 672. The word implies not only the presence of every re- quisite which the constitution demands, but also the absence of every disqualification which it imposes. Hall vs. Hostetter. 17 B. Mon. (Ky.) 786. 10 Bush. 744. Qualified (for office) imports nothing more than that the person elected has complied with the requisitions of the statute, by giving bond and taking the oath of office. State vs. Niebling, 6 Ohio St. 44. Qualified endorsement. A qualified endorsement is one which does not affect the negotiability of the instrument, but simply quali- fies the duties, obligations and responsibilities of the endorser, resulting from the general principles of law. Any words in an endorsement, which clearly demonstrate the intention of the endorser to make it a qualified one, will have the effect to make it such. Hailey vs. Falconer, 32 Ala. 539. Qualified fee. A limited or qualified fee simple is such as has some 612 ADJUDGED WOKDS AND PHRASES. QUALIFY QUASI collateral matter annexed to it whereby it is made by some means determinable, viz. by limitation or condition. Lott vs. Wyckoff, 1 Barb. (N. Y.J 575. vide Base fee ; Determinable fee. Qualify, The word "qualify," in its legal sense, means to take an oath to discharge the duties of an office, and when an executor named in a will alleges that he desires to qualify as such, and the court orders that letters tes- tamentary issue to him upon his complying with the requisites of the law, we understand that they are to be issued to him when he shall have taken the oath well and faithfully to discharge the duties of his trust. Hale vs. Salter et'al., 25 La. Ann. 324. Quabby. The word "quarry" is derived from the French word " quarriere." In the Latin of the lower ages, quadraiarius was a stonecutter qui marmaro quadrat, and hence quarriere, the place where he quadrates, or cuts the stone in squares ; the place where he cuts the stone in squares ; generally a stone pit ; clearly, therefore, referring to a place upon or above, and not under, the ground. Bell vs. Wilson, L. R. 1 Ch. App. Cases 309. Quash and dismiss (distinguished.) The term " quash," as applied to writs of error or other writs, is predicated of some defect in the writ itself, or in the form of the writ, which defect does not reach the merits of the case. * * The term " dismiss " was not originally applied to common law proceedings, but seems to have been borrowed from proceedings in the court of chancery, where in .prac- tice the term is applied to the removal of a cause out of court, without any further hearing. Boseley vs. Bruner, 24 Miss. 462. Quash from the French quasser, is defined to mean to over- throw — annul. Cranford vs. Stewart, 38 Penn. St. 36. Quasi. The word quasi is a Latin word, in frequent use in the civil law, signifying as if almost. It marks the ADJUDGED WORDS AND PHRASES. 518 QUASI QUIT-CLAIM resemblance, and supposes a little difference between two objects. People vs. Bradley, 60 III. 402. Quasi corporation. It is a phrase generally applied to a body which ex- ercises certain functions of a corporate character, but which has not been created a corporation by any stat- ute, general or special. School District vs. Ins. Co., 13 Otto (U. 8.) 708. Quasi crimes. All offenses not crimes or misdemeanors, but that are in the natiire of crimes — a class of offenses against the public which have not been declared crimes, but wrongs against the general or local pub- lic which it is proper should be repressed or pun- ished by forfeitures or penalties. Wiggins vs. City of Chicago, 68 III. 375. Quay designates a space of ground appropriated to the public use ; such use as the convenience of commerce requires. New Orleans vs. United States, 10 Peters (U. S.J 715. Quia timet bills. Bills quia timet are in the nature of writs of preven- tion to accomplish the ends of precautionary justice. They are ordinarily applied to prevent wrongs or anticipated mischiefs, and not merely to redress them when done. Bryant vs. Peters, 3 Ala. 169. Quick with child is having conceived. Begina vs. Wyclwrly, 8 C. & P. 262. A woman is " quick with child " from the period of conception and the commencement of gestation. Evans vs. People, 49 N. T. 89. vide Pregnant, &c. Quit-claim deed. A quit-claim, or release deed, is one of the regular modes of conveying property known to the law, and it is almost the only mode in practice, when a party sells property and does not wish to warrant the title. Ely vs. Stannard, 44 Conn. 533. vide Deed of release. 514 ADJUDGED WORDS AND PHRASES. QUO WARRANTO RAILWAY QUO WARRANTO is in the nature of a "writ of right for the King, against him, who claims or usurps any office, fran- chise, or liberty, to inquire by what authority he supports his claim, in order to determine the right. Lindsey vs. Atty. Gem,., 33 Miss. 523. It is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpa- tion of the franchise, as to oust him, or seize it for the crown ; but it hath long been applied for the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only. The State vs. Gleason, 12 Florida 219. (Quoting 3 Bl. Com. 263.) A writ, commanding the defendant to show by what warrant he exercises any franchise, having never had a grant of it, or having forfeited it by neglect or abuse. Thompson vs. People, 23 Wend. (N. Y.) 577. (Quoting 3 Bl. Com. 262.) Kailkoad is a public highway for the public benefit. Sharpless vs. Mayor, &c, 21 Penn. St. 169. By the rail road is intended the road bed and track* with its superstructure— all that enters into and forms a part of a completed road. Beardsley vs. Ontario Bank, 31 Barb. (N. Y.J 624. Baelroad bridge. The qualified phrase, "railroad bridge," means a viaduct constructed for the exclusive use of railroad transportation. L. & P. B. B. Co. vs. L. C. By. Co. 2 Duv. (Ky.) 178. 2 Beasl. Ch. 503. Batlway. The term " railway " by itself includes all works au- thorized to be constructed ; and for the purpose of constructing the railway the company are authorized to construct such stations and other works as they may think proper. Cother vs. Mid. By. Co., 2 Phillips Ch. 474. 12 Ct. of CI. 54. ADJUDGED WORDS AND THRASES. 515 bank ratification* Bank. Bank is often used to express something different from office. It then becomes a designation or title of honor, dignity, or distinction conferred upon an officer in order to fix his relative position with refer- ence to other officers in matters of privilege, prece- dence, and sometimes of command, or by which to determine his pay and emoluments. Wood vs. United States, 15 Court of Claims 159. Ransom. A ransom is only a redemption for money or other consideration of that which is taken in war. Havelock vs. Bockivood, 8 T. B. 21*1. Rape. The carnal knowledge of a woman by a man forcibly and unlawfully against her will. Croghan vs. State, 22 Wis. 445. (Quoting Bouvier L. 3icl.) 29 Mich. 284; 25 Mich. 359; 11 Ark. 409; 9 Fla. 182; 11 Not. 257. Bate.' A public valuation or assessment of every man's es- tate, or the ascertaining how much tax every one should pay. Atty. Gen. vs. City of Eau Claire, 37 Wis. 426. The term " rate " may apply either to the percentage of taxation, or to the valuation of property. ' State ex rel. M. B. L. Ins. Co. vs. Utter, 5 Vr. (N. J.) 494. Ratification is in general the adoption of a previously formed con- : tract ; and by the very nature of the act of ratifica- tion, confirmation or affirmance (all these terms are in use to express the same thing), the party affirming becomes a party to the contract, he that was not bound becomes bound by it, and entitled to all the proper benefits of it ; he accepts the consideration of the contract as a sufficient consideration for adopting it, and usually this is quite enough to support the ratification. Negley vs. Lindsay, 67 Penn. St. 228.' A ratification is equivalent to an express authority. Delafieldvs. State of Illinois, 26 Wend. (N. Y.J 228. 516 ADJUDGED WORDS AND PHRASES. RATIFICATION EEAL A subsequent sanction is considered the same in ef- fect as an assent at the time. McLean vs. Drew, 4 Bing. 722 A ratification of an act, done by one assuming to be an agent, relates back, and is equivalent to a prior authority. Davis vs. ScJiool District, 44 N. Hamp. 407. Ratification is an agreement to adopt an act performed. by another for us, and is either express or implied. Halton vs. Stewart, 2 Lea (Term.) 235. (Quoting Bouvier L. Diet.) Any act or ^declaration which recognizes the existence of the promise as binding. Harris vs. Wall, 1 Exch. 129. 1 Heisk. 294 ; 9 Baxt, 505. Rational DOUBT. The "rational doubt" which should result in acquit- tal, is a doubt as to all or any one of the constituent elements essential to legal responsibility or punish- able guilt ; and, unless they all concur, acquittal is the legal consequence. Smith vs. Com. 1 Duval (Ky.) 228. vide Reasonable doubt. Real actions are those brought for the specific recovery of lands, tenements or hereditaments. Hall vs. Decker, 48 Maine 255. Real and personal effects are synonymous to substance, which includes every- thing that can be turned into money. Beall vs. Holmes, 6 Harr. & J. (Md.) 214. Real composition is an agreemeet, by which the land-owner on the one part, and the parson, patron, and ordinary on the other, contract that the parson shall not receive „ tithes in kind, but, in lieu of them, and, as a compen- sation for them, shall have land, or some other emolument. Lediard vs. Austie, 3 Younge & Jer. 560. vide Composition real. Real effects mean real property. Beall vs. Holmes, G Harr. <& J. (Md.) 214. ADJUDGED WORDS AND PHRASES. 5l7 REAL REASONABLE Eeal ESTATE is something that may be held by tenure, or will pass to the heir of the possessor at his death instead of his executor, including lands, tenements and here- ditaments, whether the latter be corporeal or incor- poreal. GiUett vs. Gaffney, 3 Colorado 360. (Quoting Bouvier L. Diet.) Eeal estate embraces not only lands, but all improve- ments of a permanent character placed upon real es- tate are regarded as a part of the land. Matlws vs. Dobschuetz, 72 III. 441. The interest which a man has in lands, tenements or hereditaments. Lessee of Avery vs. Dufrees et al., 9 Ohio 147. 78 HI. 480. Seasonable care. The term " reasonable care " has no fixed, definite signification, but is a relative term. The caution which persons of ordinary prudence would exercise in any given case, is " reasonable care," as the term is used in the law. That which under some circum- stances would be reasonable care, might under other circumstances be gross negligence. Bead vs. Morse, 34 Wis. 318. That care and foresight which men of ordinary pru- dence are accustomed to employ, and which, placed in like circumstances * * they probably would have employed. Johnson vs. H. R. R. R. Co., 6 Buer (N. Y.J 646. Eeasonable cektainty is the being free from reasonable doubt. State vs. Shaw, 4 Jones Law (N. C.J 443. Eeasonable diligence is that which a prudent man would use in respect of his own property ; and depends on the subject of the bailment. Chase vs. Mayberry, 2 Harring. (Del. J 261. 26 Wis. 150. Eeasonable doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they 618 ADJUDGED WORDS AND PHRASES. REASONABLE REASONABLE cannot say they feel an abiding conviction to a moral certainty of the truth of the charge * * a cer- tainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. Com. vs. Webster, 5 Cush. (Mass.) 320. A reasonable doubt exists, when the evidence is not sufficient to satisfy the judgment of the truth of a proposition, with such certainty that a prudent man would feel safe in acting upon it in his own impor- tant affairs. Arnold vs. State, 23 Ind. 170. Seasonable doubt, of course— that is, not a far fetched one ; it is not a speculative one ; it is not an arbi- trary one ; but it is just what it assumes to be, a rea- sonable doubt. If you after looking over the testi- mony, and considering all the facts proven to your satisfaction in the case, aud the natural circumstances that surround those facts — if you are still unable to pay that the prisoner is guilty, it is your duty to ac- quit. And that we apprehend, is what is understood by reasonable doubt in the law. Mc Quire vs. People, 44 Mich. 290 n. A reasonable doubt is a fair doubt growing out of the testimony in the case ; it is not a mere imaginary, captious or possible doubt, but a fair doubt based upon reason and common sense ; it is such a doubt as may leave your minds after a careful examination of all the evidence in the case, in that condition that you cannot say you have an abiding conviction to a moral certainty of the truth of the charge. People vs. Finley, 38 Mich. 483 n. A reasonable doubt is an honest uncertainty existing in the minds of a candid, impartial, diligent, jury after a full and careful consideration of all the testi- mony with a single eye to the ascertainment of the truth, irrespective of the consequences of their find- ing. It is nofc a mere speculative doubt voluntarily excited in the mind, in order to furnish a pretext for avoiding the rendition of a disagreeable verdict. Such a doubt is considered by the law as merely captious. The St. of 0. vs. Summons, 9 West Law Journ. 415 . A reasonable doubt is an honest misgiving as to the ADJUDGED WORDS AND PHKASES. 519 REASONABLE REBUTTING guilt of the defendant upon the proof, which the rea- son entertains and sanctions as a substantial doubt. Furkey et al. vs. The State, 3 Heisk. (Tenn.J 28. vide Rational doubt. 6 Nevada 341; 72 Mo, 376; 42 N. Y. 6; 2 Dutch. (N. J.) 615. Reasonable skill. By reasonable skill is understood such as is ordin- arily possessed and exercised by persons of common capacity, engaged in the same business or employ- ment. Meclianics' Bk. vs. Merchants' Bk., 6 Met. (Mass.) 26. vide Ordinary skill. 71 Me. 41. Reasonable T ime means as soon as circumstances will permit. Goodwin vs. Creveley, 4 Hurlst & N. 633. In all mercantile transactions reasonable time is ex- tremely short. Jackson vs. Saunders, 1 Sclio. & Lef. 461. Eeasonable time will not begin to run, until some one interested in the matter calls for something to be done respecting it. Graham vs. Van Die. Ld. Co. 30 Eng. L. & Eq. 579. 30 vt 636. Eeasonable time (for consignee to take goods from carrier) is such as would give a person residing at the place, to which the goods are consigned, and informed of the usual course of business on the part of the com- pany, a suitable opportunity within business hours after the goods are ready for delivery, to come to the place of delivery, inspect the goods, and take them away. Finney vs. Railroad, 19 Minn. 253. Rebellion. This term is applied only to such an insurrection against lawful authority as is void of all appearance of justice. Hubbard vs. Harndon Ex. Co., 10 R. I. 247. Rebutting. The word " rebutting " has a two-fold signification, both in common and legal parlance. It sometimes means contradictory evidence only ; at other times conclusive or overcoming testimony. KiUiam vs. Killiam, 25 Georgia 186. 520 ADJUDGED WORDS AND PHRASES. m \ keceipt beoeiveb Receipt. A receipt may be defined to be such a written acknowledgement by one person of bis having re- ceived money from another, as will be prima facie evidence of that fact in a court of law. Kegg vs. State, 10 Ohio 79. A receipt is the written acknowledgement of the re- ceipt of money, or a thing of value, without contain- ing any affirmative obligation upon either party to it— a mere admission of a fact in writing. Krutzvs. Craig, Admr. S3 Ind. 574. A receipt is an acknowledgement of payment or de- livery, and may contain a contract to perform some- thing in relation to the thing delivered. Steamboat Missouri vs. Webb, 9 Mo. 194. A receipt is a written admission made by the party signing it, of the fact which it recites, and is evidence against him, at all times, that the fact so 1 admitted is true. Pendexter vs. Carlton, 16 JSf. Hamp. 489. IKieh. (S. C.)33. Receipt and acceptance of goods (stat. of frauds.) There must be a delivery of the goods by the vendor, with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter, with an intention of taking to the pos- session as owner. Phillips vs. Bristolli, 2 B. & C. 511. 12 Barb. 669. Receipt and release (distinguished) vide Release, &c. Receivee. A receiver is an officer of the court, appointed for the benefit of all parties who may establish rights in the same, the funds in his hands being in custodia legis, for all who can make, out title to it. Boss vs. Williams, 11 Heislc. (Term.) 412. A receiver is a person standing indifferent between the parties, who is appointed by the court of chan- cery to take the charge and management of the prop- erty in controversy for the benefit of the person who may ultimately be entitled to it. Merritt vs. Lyon, 16 Wend. (N. Y.) 421. ADJUDGED WORDS AND PHRASES. 521 RECEIVER EECOGNIZANGE A receiver is an indifferent person between parties, appointed by the court to receive the rents, issues, or profits of land, or other thing in question in this court, pending the suit, where it does not seem rea- sonable to the court that either party should do it. Booth vs. Clark, 17 Howard (U. S.J 331. A receiver is an officer of the court bound to obey its orders in regard to the management and care of prop- erty placed m his hands. Hackly vs. Draper, 4 K Y Sup. Ct. (T. & C.J 622. CO Ala. 331 ; 11 Heisk. 210 ; 9 Yerg. 107. Receivek pendente lite is a person appointed to take charge of the fund or property to which the receivership extends while the case remains undecided. Keeney vs. Home Ins. Co., 11 N. Y. 401. Reciting a statute, is quoting or stating its contents. Hart vs. Baltimore & 0. B. B. Co., 6 W. Va. 348. Recognizance. A recognizance is an obligation of record. Without record there is no recognizance ; and in an action on such obligation it should be alleged that the same was a record. Mendocino Co. vs. Lamar, 30 Col. 629. A recognizance is a lien on all the lands which the cognizor had at the time of its acknowledgment, and also upon all those which he afterwards acquires ; so that no alienation by him will defeat the cognizee. It is a direct lien upon the lands. State vs. Winn, 3 Sneed (Tenn.J 396. A recognizance is a debt of record, and is of the na- ture of a conditional judgment, which the recorded default makes absolute ; subject only to such matters of legal avoidance, as may be shown by plea, or to such matters of relief as may induce the court to re- mit or mitigate the forfeiture ; and the object of the scire facias is to notify the cognizor to show cause why execution should not issue for the sum acknowledged. The State vs. Warren, 17 Texas 288. A recognizance is an obligation of record which a man enters into before some court of record, or mag- 522 ADJUDGED WORDS AND PHRASES. RECOGNIZANCE RECOGNIZANCE istrate duly authorized, with, condition to do some particular act. State vs. Walker, 56 N. Hamp. 178. (Quoting Jacob's L. Did. ) A recognizance is a matter of record ; it is in the na- ture of a judgment, and the process upon it, whether a scire facias, or summons, is for the purpose of carry- ing it into execution, and is vathev judicial than origi- nal; it is no farther to be reckoned an original suit, than that the/Defendant has a right to plead to it ; it is founded upon the recognizance, and must be con- sidered as flowing from it, and partaking of its na- ture ; and when final judgment shall be given the whole is to be taken as one record. Respublica vs. Cobbett, 3 Dallas (U. S.J 475. It is an obligation of record, founded upon an ac- knowledgment of an existing indebtedness by the person to be bound. The State vs. Weatherwax, 12 Kansas 4G5. A recognizance is an acknowledgment of a debt of record ; it has many of the attributes of a judgment. It binds the lands of the cognizor, and an execution may be issued upon it as upon a judgment. People vs. Van Eps, 4 Wend. (N. Y.) 390. A recognizance is an obligation of record, entered into before a court or officer duly authorized for that purpose, with a condition to do some act required by law to be done, or to refrain from, some act forbidden by law, which is therein specified. State vs. Dowd, 43 N. Hamp. 455. It is an obligation of record, and when forfeiture is declared and entered by the court, it becomes a judg- ment. Schultze vs. State, 43 Md. 306. A recognizance at common law, was an obligation en- tered into before some court of record, or magistrate duly authorized, with a condition under written, to do some particular act, as to keep the peace, or ap- pear and answer to a criminal prosecution. Shattuck vs. People, 5 III. 479. 121 Mass. 84; 25 Miss. 54; 7 Watts. (Pa.} 199; 37 Penn. St. 181; 5 Kan. 566; 3 Blaokf. 336; 53 111. 436; 33 Ind. 219; 1 Ohio St. 401; 3 Iowa439; 2 Head 236; 19 Pick. 138; 2 Oregon 316; 5 Tex. 271; 1 MorrisSt. Cas. (Miss.) 638; 73 Me. 554; 6-Wend. 330; 36 Barb. 433. ADJUDGED WORDS AND PHRASES. KECOKD EECOEDINa Record. A written memorial made by a public officer author- ized by law to perform that function, and intended to serve as evidence of something written, said, or done. Leathers vs. Cooky, 49 Maine 345. A record is a memorial or history of the judicial pro- ceedings in a case, commencing with a writ or com- plaint, and terminating with the judgment. * * A record, therefore, must be precise and clear, con- taining proof within itself of every important fact on which the judgment rests ; and it cannot exist partly in writing and partly in parol. Sayles vs. Briggs, 4 Met. (Mass.) 423. A record is a memorial or monument of so high a nature as to import in itself absolute verity ; and it has this sovereign privilege, it can be tried only by itself. Mur/ree vs. Carmack. 4 Yerg. (Tenn.) 276. A record is a memorial or remembrance in rolls of parchment of the proceedings and acts of a court of justice which hath power to hold plea according to the course of the common law, of real or mixed actions. Matter of Christern, 11 Jones & Spencer (N. Y.) 531. At the common law a record signifies a roll of parch- ment upon which the proceedings and transactions of a court are entered or drawn up by its officers, and which is then deposited in its treasury in perpet- uam rei memoriam. Eahn vs. Kelly, 34 Col. 422. 1 B. &A. 156 ; 44 Conn. 53 ; 6 Ohio 427 ; 7 Ohiopt. 1,258 ; 7 Baxt. 56. .Record (judicial) is a precise history of the suit from its commence- ment to its termination, including the conclusion of law thereon, drawn up by the proper officer, for the purpose of perpetuating the exact state of facts. Davidson vs. Murphy, 13 Conn. 217. Recording means the copying of the instrument, to be recorded, into the public records * * in a book kept for that purpose, by or under the superintendance of the officer appointed therefor. Sawyer vs. Adams, 8 Vermont 175. 624 ADJUDGED WOBDS AND PHRASES. records recoupment Eecokds are the memorials of the proceedings of the legisla- ture, and of the king's courts of justice, preserved in rolls of parchment, and they are considered of such authority that no evidence is allowed to contradict them. Murrdh vs. State, 51 Miss. 656. Records are the rolls or memorials of the judges of the courts of record, and import in themselves such untrolable verity that they admit of no averment to the contrary. Davies vs. Pettit et at, 11 Ark. 355. (Quoting Co. IMt. 260 a.) Eecoupe is synonymous with defalk or discount. It is keeping back something which is due, because there is an equitable reason to withold it. Ives vs. Van Epps, 22 Wend. (N. Y.) 156. 1 Bland Ch. 79. Recoupment, in its origin, was a mere right of deduction from the amount of the plaintiff's recovery, on the ground that his damages were not really as high as he al- leged. Grand Lodge vs. Knox, 20 Mo. 437. The term is of French origin, and signifies cutting again, or cutting back, and as a defence, means the cutting back on the plaintiff's claim by the defendant. Davenport vs. Hubbard, 46 Vermont 207. It is in the nature of a cross action. The right of the plaintiff to sue is admitted ; but the defendant says, he has been injured by a breach of another branch of the same contract on which the action is founded, and he claims to stop, cut off, or keep back so much of the plaintiff's damages as will satisfy the damages which have been sustained by the defendant. Nichols vs. Dusenbury, 2 N. Y. 286. The meaning of recoupment is, a reduction of the dam- ages claimed ; and it is not in theory and contempla- tion of law, a complete bar. McGullough vs. Cox, 6 Barb. (N. Y.) 391. 14 111. 426 ; 3 Mich. 290 ; 95 El. 476. ADJUDGED WORDS AND PHRASES. 525 RECOUPMENT EEFUSINa Recoupment and set-off (distinguished) vide Set-off, &c. Recover. " To recover " in law is to recover anything, or the value thereof, by judgment ; as if a man sue for any land or other thing, movable or immovable, and have a verdict or judgment for him. Norton vs. Winter, 1 Oregon 48. ( Quoting Jacob's L Diet. ) Recovery is the actual possession of anything or its value, by judgment of a legal tribunal. Strobecker vs. Farmers' Bank, 6 Penn. St. 45. The obtaining of any thing by judgment or trial at law. Hoover vs. Clark's Admr. 3 Murph. (N. C.J 171. 66 Barb. 257. Recovery and fine (distinguished) vide Fine, &c. Eed-tape is order carried to fastidious excess — system run out into trivial extremes. Webster et al. vs. TJwmpson et al., 55 Georgia 434. Refinement (in stating a criminal charge.) A refinement is understood to be the verbiage, which is frequently found in indictments, in setting forth what is not essential to the constitution of the of- fence, and therefore not required to be proved on the trial. State vs. Gallimore, 2 Ired. Law (N. C.J 377. 2 Jones Law (N. C.)432. Reformation of a contract (in equity.) To reform an instrument in equity, is to make a de- cree, that a deed or other agreement shall be made or construed, as it was originally intended by the par- ties, when an error, as to fact, has been committed. Lumber t vs. Hill, 41 Ifaine 482. (Quoting Bouvier X. Diet.) Refusing and failing (distinguished.) The first is an act of the will, the second may be an act of inevitable necessity. Taylor vs. Mason, 9 WJwaton (U. S.J 344. 526 ADJUDGED WORDS AND PHRASES. regardant release Regardant denoted the relation between a villain and the manor to which he belongs. N. Ips. Fac. vs. Batchelder, 3 N. Hamp. 192. Regulate (bawdy houses.) The term " to regulate " means to prescribe the rule, by which they are to be governed. State vs. Clarke, 52 Mo. 20. Rejoining gratis (in pi.) The term " rejoining gratis " means only that the de- fendant will rejoin without putting the plaintiff to the necessity of obtaining a rule to rejoin. Adkins vs. Anderson, 10 M. & W. 14. Relation is a very general word, and takes in any kind of con- nection, but the most common use of it is to express some sort of kindred, either by blood or affinity, though properly by blood. Davis vs. Bailey, 1 Vesey Sen. 84. 3 Bradi Surr. R. 385. Release is the giving or discharging of the right of action which a man hath, or may have or claim, against an- other man, of that which is his. Or it is the convey- ance of a man's interest or right which he hath unto a thing to another that hath the possession thereof, or some estate therein. Field vs. Columbert, 4 Saivyer (U. S. C. G.J527. (Quoting 1 Shep. ToucA. 320.) A release is a ^remission of some right or claim by which the releasor remits the same, and estops him- self from again setting up his claim. Power vs. Lester, 17 Hoiu. Pr. Ii. (N. Y.) 416. vide Deed of release. Release and extinguishment op debt (distinguished.) A release is a discharge of a debt by act of the party ; an extinguishment is a discharge by operation of law. Baker vs. Baker, '4 Dutch. (N. J.) 20. Release and receipt (distinguished.) A release annihilates the debt, but a receipt is only evidence of payment, and if it be proved that in point ADJUDGED WORDS AND PHRASES. 527 RELEVANCY REMAINDER of fact no payment "was made, it cannot operate against sucli proof. Boives vs. Foster, 2 Hurlst & N. 788. Relevancy is that which conduces to the proof of a pertinent hypothesis. Hence it is relevant to put in evidence any circumstances which tend to make the proposi- tion at issue more or less improbable. State vs. Witham, 72 Maine 537. Relevant. The meaning of the word relevant, as applied to tes- timony, is that it directly touches upon the issue which the parties have made by their pleadings, so as to assist in getting at the truth. It comes from the French reliever, which means to assist. Plainer vs. Plainer, 78 K Y. 95. Testimony cannot be excluded as- irrelevant, which would have a tendency, however remote, to establish the probability of the fact in controversy. Trull vs. True, 33 Maine 367. Religious society is a body of persons associated together for the pur- pose of maintaining religious worship only, omitting the sacraments. Silsby vs. Barlow, 16 Gray (Mass.) 330. vide Congregation. Remainder. A remainder is an estate limited to take effect and be enjoyed after another estate is determined. Todd vs. Jackson, 2 Dutch. (N. J.) 540. A remnant of an estate in land, depending on a par- ticular prior estate, created at the same time and by the same instrument, and limited to arise immedi- ately on the determination of that estate, and not in abridgment of it. Bennett vs. Oarlock, 10 Hun (N. T.) 337. 2Lea(Tenn.) 69. Remainder vested in interest. A remainder is vested in interest where the person is in being and ascertained, who will, if he lives, have an absolute and immediate right to the possession of the land upon the ceasing or failure of all the precc- 528 ADJUDGED WORDS AND PHRASES. REMEDIAL REMUNERATION dent estates, provided the estate limited to him by the remainder shall so long continue. Hawley vs. James, 5 Paige Ch. (N. Y.J 466. Bemedial and penal statutes (distinguished.) The one is remedial and seeks indemnity against a party made liable by law to repair the loss he has occasioned ; the other is penal and seeks to punish the party for the violation of duty imposed by law. Beid vs. Worthfield, 13 Pink. (Mass.) 102. 12 Heisk. 594. Remedy. The means employed to enforce a right, or redress an injury. Matter of Henry W. Cooper, 22 N. Y. 87. (Quoting Bouvier L. Diet.) A remedy as understood in legal phraseology, is a mode prescribed by law to enforce a duty or redress a wrong, and not an obligation to guarantee a right or to indemnify against a wrong. State vs. Poulterer, 16 Cal. 528. Remedy pertains more properly to those modes of procedure and pleading which lead up to and end in the judgment. Johnson vs. Fletcher, 54 Miss. 631. 20 How. Pr. R. (N. Y.) 8 ; 6 Wheat. 407. Remote damages vide Proximate damages. Remote dominion is the title which vests a right to a thing, and gives cause of action against the vendor who has not de- livered the thing sold. Coles vs. Perry, 7 Texas 136. vide Dominion. Removal from office foe cause vide For cause. Remuneration (of attorneys) consists in the taxable costs, according to the rate of attornies' fees, as established by the fee bill, and such counsel fees, as from the importance of the sub- ject matter in controversy and the nature of the liti- gation, may be deemed proper. McFarland vs. Crary, 6 Wend. (N. Y.J 317. vide Honorarium. ADJUDGED WORDS AND PHKASES. 529 rendering ' rent Rendering judgment is the annunciation or declaring the decision of the court indicated by the rule for judgment. Fleet vs. Youngs, 11 Wend. (N. Y.J 528. Renew (a charter) To reneio a charter is to give a new existence to one which has been forfeited, or which has lost its valid- ity by lapse of time. Moers vs. City of Beading, 21 Penn. St. 201. Bent is a tribute which issues out of land, as part of its actual or supposed profits. People vs. Van Rensselaer, 8 Barb. (N. Y.J 200. Rent is a noun of multitude, meaning not one single sum due at some one moment, which may be recov- ered by action, and may be lost if not, but meaning a succession of sums of money payable yearly or at shorter intervals during the whole term specified. Zouche vs. Dalbiac, L. B. 10 Exch. 177. Rent is compensation for the premium of a corporeal inheritance, and a profit either in money or some other thing, etc., issuing out of land in return for its use. Bloodworth vs. Stevens, 51 Miss. 480. Rent is a certain profit issuing yearly out of lands ; and is a return to the landlord for their annual use. Boyd vs. McCombs, 4 Penn. St. 147. Rent is a sum stipulated to be paid for the actual use and enjoyment of another's land, and is supposed to come out of the profits of the estate. Marsh vs. Butterworth, 4 Mich. 577. Rent, or render, reditus, signifies a compensation, or return ; it being in the nature of an acknowledgment or recompense given for the possession of somecor^ poreal inheritance. It must be a certain profit issu- ing out of lands and tenements corporeal ; that is, from some inheritance whereunto the owner or gran- tee of the rent might (anciently) have recourse to distrain. Van Wichlen vs. Paulson, 14 Barb. (N. Y.J 655. 43 Penn. St. 410 ; 37 Wis. 426 ; 41 N. Y. 483. Rent chaege is a rent granted out of lands by him who is the owner thereof, with an express clause of distress, and 530 ADJUDGED WORDS AND PHRASES. KENT KEPAIR it is called a rent charge because the lands were charged with the distress, and the grantee, without the clause, had no right of distress, because there was no fealty annexed to the grant. Spencer vs. Austin, 38 Vermont 265. Bent charge, is a rent reserved where the landlord has no reversionary interest. He would have, for such rent, no right to destrain, unless the power be contained in the lease. Cornell vs. Lamb, 2 Cowen (N. Y.) 659. 21 Barb. 648. Rent-chaege and annuity (distinguished.) A rent charge is a burden imposed upon and issuing out of lands, whereas an annuity is chargeable only upon the person of the grantor. Wagstqffvs. Lowerre, 23 Barb. (N. Y.J 216. Eent seck. is nothing more than a rent for the recovery of which no power of distress is given, either by rules of the common law or the agreement of the parties. Wallace vs. Harmstad, 44 Penn. St. 495. 2 Cowen 659. Eent seevice is where the tenant holdeth his land of his lord by fealty and certain rent, or by homage fealty and cer- tain rent, or by other services and certain rent. Ingersoll vs. Sergeant, 1 Whart. (Pa.) 347. So called, because it had some corporal service inci- dental to it, at least fealty, or the feudal oath of fidelity. Cornell vs. Lamb, 1 Cowen (N. Y.) 659. 44 Penn. St. 495. Renunciation. A renunciation is an act whereby a person, named in a will as an executor, declines to take on himself the burthen of that office. The act is therefore predica- ted of an existing office. It presupposes the existence of the will. In the Matter, &c., ofJno. S. Maxw. 2 Gr. Ch.fN. J.J 614. Repaie means to restore to sound or good condition, after injury or partial destruction. Railway Co. vs. Pittsburgh, 80 Penn. St. 76. ADJUDGED WORDS AND PHRASES. 531 replevin representation Beplevin is a justicial writ to the sheriff, complaining of an un- just taking and detention of goods or chattels, com- manding the sheriff to deliver back the same to the owner, upon security given to make out the injustice of such taking, or else to return the goods and chat- tels. Williamson vs. Ringgold, 4 Cranch (U. S. C. C.) 42. (Quoting G-ilbeii on Replevin 50. ) A replevin is a civil suit or action, in which both parties are actors, and in cases of rent, the avowant is the principal actor. Roe vs. McCrea. 1 Ashm. (Pa.) 17. 1 Sch. & Lef. 327 n. Eeplevy. The term "replevy" means, to redeliver goods which have been destrained, to the original possessor of them, on his giving pledges, &c. Kirk vs. Morris, 40 Ala. 229. (Quoting Bouvier L. Diet.) Representation (in definition of estoppel in pais.) The term " representation " here employed is used, for convenience, to indicate active and passive con- duct, words and silence, acts and concealment. Stevens vs. Dennett, 51 N. Hamp. 334. Repkesentation (in insurance) is a matter of collateral information or intelligence relative to the subject and nature of the risk to be assumed, which in itself must have been calculated to increase the responsibility of the underwriter, or to have induced him to assume the risk for a smaller premium than he would otherwise have required. Far. I. & L. Co. vs. Snyder, 16 Wend. (N. Y.J 488. A representation is a state of the case, not a part of the written instrument, but collateral to it, and en- tirely independent of it. Maclcie vs. Pleasants, 2 Binn. (Pa.) 372. A statement in regard to a material fact made by the ' applicant for insurance to the insurer, with reference to a proposed contract of insurance. Buford vs. JV. Y. Life Ins. Co., 5 Oregon 339. vide Affirmative warranties. 532 ADJUDGED WOKDS AND PHRASES. REPRESENTATION REPUTATION Representation and promise (distinguished.). A representation applies to the present, a promise to the future. Murdoch vs. Chenango Ins. Co., 2 N. Y. 220. Representation and warranty (distinguished) vide Warranty, &c. Representative. One who represents or is in the place of another. Delaunay vs. Burnett, 9 III. 494. (Quoting Bouvier L. Diet. ) Representatives. The words "representative," or "legal representa- tive," or "personal representative " primarily mean executors and administrators, and in order to put any- other meaning on them, you must find in the context some special reason for so doing. Stockdale vs. Nicholson, L. R. 4 Equity Cases 367. Representatives of a deceased person are real or per- sonal ; the former being the heirs at law, and the lat- ter, ordinarily, the executors or administrators. Lee vs. Dill, 39 Barb. (N. Y.J 520. vide Personal representative. 12 Abb. Pr. (N. Y. ) 3. Reprieve. A reprieve, from reprendre, to take back, is the with- drawing of a sentence, for an interval of time, whereby the execution is suspended. It operates only in capital cases, and is granted either by the favor of his majesty himself, or the judge or justices 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. Sterling vs. Brake, 29 Ohio St. 460. The term " reprieve," as applied to convicts, has a definite meaning. It postpones the time of execution to a definite day. Carnal vs. People, 1 Parker Cr. R. (N. Y.) 266. Reputation is no other than the hearsay of those who may be supposed to have been acquainted with the fact, handed down from one to another. Higham vs. Ridgway, 10 East 120. ADJUDGED WORDS AND PHRASES. 533 REPUTATION RES GESTAE Eeputatio est vulgaris opinio, ubi non est Veritas. Adams & Lambert's Case, 4 Coke 107. 3 Allen 301. Eeputation and character (distinguished) vide Character, &c. Bequest by mail. A request by mail is a familiar phrase, and has a well understood meaning. It does not import that the person to whom it is addressed shall receive it, but only that the person by whom it is to be made shall deposit in the post-office a written request, duly di- rected, so that, in the usual course of mail, it will reach its destination. Lothrop vs. Greenfield Ins. Co., 2 Allen (Mass.) 85. l Pick. 405. Ees adjudicata. In order to make a matter res adjudicata there must be a concurrence of the four conditions following, namely : 1st, identity in the thing sued for ; 2d, identity of the cause of action ; 3d, identity of per- sons, and of the parties to the action ; 4th, identity of the quality in the persons for or against whom the claim is made. A. T. & S. F. B. R. Co. vs. Com., etc., 12 Kansas 135. Ees gestae mean the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character. Carter vs. Buchannon, 3 Georgia 517. Those circumstances which are the undesigned inci- dents of a particular litigated act, which are admis- sible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of any one concerned, whether participant or bystander ; they may comprise things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary inci- dents of the litigated act ; necessary, in this sense, that they are part of the immediate preparations for, or emanations of such act, and are not produced by the calculated policy of the actors. Hunter vs. State, 1 1 Vroom (N. J. ) 538. (Quoting 1 Whart. on Ev. § 259.) 534 ADJUDGED WORDS AND PHRASES. RES GESTAE RESERVATION Two things must concur to render declarations admis- sible as part of the res gestae. 1. The facts themselves must be relevant and mate- rial, independently of what was said ; and, 2. The declaration must relate to those facts, and must be explanatory of them. Morrill vs. Foster, 32 N. Hamp. 360. 76 Ind. 222, 46 Conn. 464. Rescue. A rescue is defined to be, when a man, lawfully ar- rested, is set at large wrongfully. State vs. Mazyck, 3 Rich. (8. C.) 292. (Quoting Com. Dig. Mescous. A. 272.) At common law, a rescue is defined as the taking away and setting at liberty against law, a distress, taken for rent, or services, or damage feasant. State vs. Barrett, 42 N. Hamp. 469. Reservation. A reservation is a clause in a deed, whereby the gran- tor doth reserve some new thing to himself out of that which he granted before. This doth differ from an exception, which is ever part of the thing granted, and of a thing in esse at the time : but this is of a thing newly created, or reserved out of a thing de- mised, that was not in esse before. Craig vs. Wells, 11 N. Y. 321. (Quoting Shep. Touch. 80.) A reservation is never any part of the estate granted, but must be of some new thing issuing out of it, as rent and the like. Ryckman vs. Gillis, 6 Lansing (N. Y.) 81. A reservation is something taken from the whole thing covered by the general terms making the grant,_ and cuts down and lessens the grant from what it would be except for the reservation. Miller vs. Lapham, 44 Vermont 434. A reservation is denned to be a keeping aside, or providing, as when a man lets, or parts with his land, but reserves, or provides himself a rent out of it, for his livelihood. Parsell vs. Stryker, 41 N. Y. 483. vide Exception, &c- 4 Nev. & M. 807 ; 18 Iowa 358 ; 59 Me. 340 ; 22 Wis. 547 ; 41 Me. 185 ; 51 Me. 498 ; 38 Conn. 542. ADJUDGED WOKDS AND PHRASES. 535 BESERYATION RESIDENCE Resekvation and exception (distinguished) vide Exceptions, <&c. Eesebye cometh of the Latin reserve-, that is to provide for store ; as when a man departeth with his land, he reserveth or provideth for himself a rent for his own livelihood. Bowman vs. Waihen, 2 McLean (U. 8. G. G.J 392. The word " reserve " sometimes hath the force of saving and excepting. Sometimes it serveth to re- serve a new thing, viz., a rent, and sometimes to ex- cept a part of the thing in use that is granted. Rychman vs. Gillis, 6 Lansing (N. Y.) 81. 46 Penn. St. 198. (Quoting Co. litt. 47 a, 143 a.) Residence. By legal residence, I mean the place of a man's fixed habitation ; where his political rights, such as the right of the elective franchise, are to be exercised, and where he is liable to taxation. Crawford vs. Wilson, 4 Barb. (N. Y.J 522. It means domicile or home. Lambe vs. Smytiie, 15 M. & W. 434. It may safely be asserted that where one has a home, as that term is ordinarily used and understood among men, and he habitually resorts to that place for com- fort, rest, and relaxation from the cares of business and restoration to health, and there abides in the in- tervals when business does not call — that is his resi- dence, both in the common and legal meaning of the term. Chaine vs. Wilson, 1 Bosioorth (N. Y.J 685. Residence is made up of fact and intention, there must be the fact of abode and the intention of re- maining. Estate of Heron, 6 Phila. R. 90. Tide Inhabitancy; Some; Domicil; Place of abode. 25 "Wis. 607 ; 22 Mich. 197. ' Residence (of a corporation.) A joint stock company resides where its place of incorporation is, where the meetings of the whole company, or those who represent it, are held, and where its governing body meets in bodily presence for the purposes of the company, and exercises the 536 ADJUDGED WORDS AND PHRASES. RESIDENCE EESIDUE powers conferred upon it by statute and by the arti- cles of association. Calcutta Jute Mills Co. vs. Nicholson, 1 Ex. Div. 445. Eesidence and domicil (distinguished.) A residence is generally transient in its nature ; it becomes a domicil when it is taken up animo manendi. Ball vs. Hall, 25 Wis. 607. The derivation of the words domicil and residence, fully points out the distinction in their meaning. A home (domus,) is something more than a temporary place of remaining (residendi,) however long such stay may continue. BurriU vs. Jewett, 2 Bdbertson (N. Y.) 12. Eesident. An inhabitant, or resident, is a person coming into a place with an intention to establish his domicil, or permanent residence ; and in consequence, actually resides. United States vs. Penelope, 2 Peters Adm. Dec. 450. Eesidue is what remains after some prior purpose is thereout satisfied. Cole vs. Turner, 4 Russell 376. That only can be residue which remains after dis- charging all legal and testamentary claims upon the estate, Eyre vs. Marsden, 4 Myl. & Craig 243. That which remains of something after taking away a part of it ; the residue of an estate is what has not been particularly devised by will. Phelps vs. Bobbins, 40 Conn. 264. (Quoting Bouvier L. Did.) Eestdue (of estate) means whatever is not specifically devised or be- queathed, and in whatever part of a will it may hap- pen to be found it ought to have that meaning, un- less the whole will taken together shows clearly that it was not so intended. WiUard's Appeal, 68 Penn. St. 332. The residue means, ex vi termini, what may be left after satisfying the debts, legacies, &c. Choat vs. Yeates, 1 Jac. & Walk. Ch. 105. ADJUDGED WORDS AND PHRASES. 537 RESIGNATION RESULTING- Resignation (of an office) implies that the person resigning has been elected into the office which he resigns. A man cannot re- sign that which he is not entitled to, and which he has no right to occupy. Queen vs. Blizzard, L. B. 2 Q. B. 57. Resist (an officer.) The opposition of force to force. The word is Latin, and its use seems to be singularly true to its ety- mology and to retain the exact classical meaning. State vs. Welch, 37 Wis. 201. Eespite is a temporary suspension of the execution of a sen- tence — a delay, forbearance or continuation of time. Misixkr vs. Com., 62 Venn. St. 60. Respondentia properly applies to the loan of money upon merchan- dise laden on board a ship, the repayment whereof is made to depend upon the safe arrival of the mer- chandise at the destined port. The Brig Atlantic, 1 Newberry (U. S. D. C.J 516. Restraining power is when he who is the owner of land, and might alien- ate it by any mode of legal conveyance, does by the instrument by which he conveys his estate to trus- tees, subject to such power, confine himself not to alienate by any other means, or under any other cir- cumstances, than those which, by the terms of the power he prescribes to himself. S lifer vs. Beates, 9 S. & B. (Pa.) 179. Resulting tkust. That which arises where one person buys an estate and pays the purchase money, but takes the deed in the name of another person, then a trust results, by construction, in favor of the person who pays the money. Keller vs. Kunkel, 46 Md. 569. A trust will not result to one who pays a part only of the consideration on the purchase of land con- veyed to another, unless it be some definite part of the whole consideration, as one third, one half, or the like. Sayre vs. Toivnsend, 15 Wend. (N. Y.) 651. A resulting trust is a mere creature of equity, as a 538 ADJUDGED WORDS AND PHRASES. RESULTING RETRAXIT resulting use is of law ; and it cannot, therefore, arise where there is an express trust declared by the par- ties, and evidenced by a written declaration of such express trust. Leggett vs. Dubois, 5 Paige Ck. (N. Y.J 117. Resulting trusts arise by construction of law, upon the acts of the parties based upon confidence, which equity will enforce without an express trust. Bunnels vs. Jackson, 1 How. (Miss.) 360. A resulting trust can only arise at the time of the transaction. Hix vs. Gosling, 1 Lea (Tenn.) 569. 25 Iowa 45. Eetainee. The right of retainer is a remedy by mere act and operation of law, and is grounded upon this reason : That an executor or administrator cannot, without apparent absurdity, commence suit against himself as representative of the deceased, to recover that which is due to him in his private capacity ; but, having the whole personal estate in his hands, so much as is sufficient to answer his whole demand, is by operation of law, applied to that particular pur- pose, to the exclusion of other creditors in equal de- gree, in case of a deficiency of assets to pay the whole of that class of claims against the estate of the testa- tor or intestate. Paschall vs. Hailman, 9 III. 300. 63 Ala. 483 ; 6 Pla. 29. Retraxit. An open and voluntary renunciation by a plaintiff of his suit in court, made when the trial is called on, by which he forever loses his action, or is barred from commencing another action, for the same cause. Barnard vs. Daggett, 68 Ind. 310. It is where a plaintiff cometh personally into court where his action is brought, and saith that he will not proceed in it; and this is a bar to that ac- tion iorever. Dowry vs. McMillan, 8 Penn. St. 163. A retraxit is an open and voluntary renunciation, by the plaintiff of his suit, in court, and by this he ever loses his action. Loomis vs. Green, 7 Greenl. (Me.) 391. 17 Ga. 251. ADJUDGED WORDS AND PHRASES. 589 RETRAXIT REVERSIONARY Betraxit and nonsuit (distinguished) vide Nonsuit, &c. Eetreating to the wall. By ' retreating to the wall ' is only meant, that the party must avail himself of any apparent and reason- able avenues of escape, by which his danger might be averted, and the necessity of slaying his assailant avoided. But if the attack is of such a nature, the weapon of such a character, that to attempt to re- treat might increase the danger, the party need re- treat no farther. People vs. Jarvis, 57 Col. 120. Betrospecttve law. A law infringing or divesting vested rights. Wynne's Lessee vs. Wynne, 2 Swan (Tenn.) 410. Bevendication is the right of an unpaid vendor, upon the insolvency of the vendee, to reclaim, in specie, such part of the goods as remains in the hands of the vendee entire, and without having changed its quality. Benedict vs. Schaettle, 12 Ohio St. 520. 2 Nev. & M. 650 n. ; 6 Mart. (La.) 520. Beteksion. A reversion is the residue of an estate left in the grantor, to commence in possession after the deter- mination of some particular estate. Todd vs. Jackson, 2 Dutch. (N. J.) 540. This word has a double meaning ; the one is the es- tate left in him that makes the particular estate, and ia jus revertendi, for the land shall revert to the estate left : The other is the land itself when it is revert- ing, and that is the proper definition of the word. For reversio is a Latin word, and in Latin it is called a noun-verbal, which is as much as to say, a noun de- rived from a verb, and so it is, for it is derived from this verb (reverter) and in English it is called (re- turning.) So that reversio terras is in English, the returning of the land, which is as much as to say, tlie land returning. Throckmorton vs. Tracy, Plowden 158. Beversionaby interest is the residue of an estate left in the grantor, to com- 54a ADJUDGED WODS AND PKHRASES. REVOCATION RIGGING mence in possession after the determination of some particular estate granted out by him. People vs. Lawrence, 54 Barb. (N. Y.) 619. Revocation (of will) is an act of the mind ; it consists in the will and pur- pose to destroy, or annul the operation of the in- strument. Beauchamp's loill, 4 T. B. Mon. (Ky.) 363. A will is only the signification of a man's piirpose how his estate should go after his death, and if he does any intermediate act whence it must necessarily be inferred such intention did not continue, it is a revocation, Goodtitle vs. Otway, 1 B. & P. 618. Revocation is an act done by the party, by which he recalls his will. Lathrop vs. Dunlop, 4 Hun (N. Y.) 215. Revolt (a vessel's crew to make.) We think an offence consists in the endeavor of the crew of a vessel, or any one or more of them, to over- throw the legitimate authority of her commander, with intent to remove him from his command, or against his will to take possession of the vessel by assuming the government and navigation of her, or by transferring their obedience from the lawful com- mander to some other person. United States vs. Kelly, 11 Wheaton (U. S.J 418. 4 Wash. (U. S. 0. C.) 530 ; Crabbe (XL S. D. C.) 560. Reward means compensation or remuneration for services ; a sum of money paid or taken for doing or forbearing to do some act. State vs. Church, 5 Oregon 377. (Quoting Burrill's X. Diet. ) Rigging the market is going into the market pretending to buy shares by a person whom you put forward to buy them, who is not really buying them, but only pretending to buy them, in order that they may be quoted in the public papers as bearing a premium, which premium is never paid. Rubery vs. Grant, L. R. 13 Eq. Cases 447. ADJUDGED WORDS AND PHRASES. 541 EIGHT EIGHT Eight of a shaeeholdee (in a corporation.) The right is, strictly speaking, the right to partici- pate, in a certain proportion, in the immunities and benefits of the corporation. This is a right of pro- perty as distinct from the capital stock of the com- pany, or property of the company, as a debt is dis- tinct from the debtor, or the mortgage debt from the mortgaged premises. Porter vs. R. R. I. & St. L. R. R. Co., 76 III. 567. Eight of common is an incorporeal hereditament, being a profit which one man hath in the land of another. Smith vs. Floyd, 18 Barb. (N. T.) 527. A right of common, is a right or privilege which sev- eral persons have to the produce of the lands or waters of another. Van Rensselaer vs. Radcliff, 10 Wend. (N. Y.j 647. Eight of dowee in a married woman is a mere intangible, inchoate, contingent expectancy, and even in a widow, until it is assigned, it is no estate in the land, but is a right resting in action only, and cannot be aliened. Blain vs. Harrison, 11 III. 385. 51 Hi. 190. Eight of lien. The word lien is of the same origin as the word lia- ble, and the right of lien expresses the liability of certain property for a certain legal duty, or a right to resort to it in order to enforce the duty. Wood's Appeal, 30 Perm. St. 277. vide Lien. Eight of the postliminii is that in virtue of which persons and things taken by the enemy are restored to their former state on com- ing again into the power of the nation to which they belonged. Leitensdorfer vs. Webb, 1 New Mexico 44. (Quoting Vattel b. 3 c. 14, sec. 204.) Eight of peopeety is that sole and despotic dominion which one man claims and exercises over the external things of the 542 ADJUDGED WORDS AND PHRASES. BIGHT EIGHT world, in total exclusion of the right of any other in- dividual in the universe. Brush vs Carter, 3 Vroom (N. J.) 562. (Quoting 2 Bl. Cam. 2.) The right of property consists in the absolute do- minion over a thing, in the use, enjoyment, and dis- posal of it, without any control or diminution, save only by the laws of the land. Toledo Bank vs. Bond, 1 Ohio St. 662. The word " rights" as applied to property refers to the free use, enjoyment and disposal of it. Ammidown vs. Granite Bank, 8 Allen (Mass.) 290. -vide Property. 11 Howard's Pr. K. 317; 9 Barb. 545; 20 Barb. 191 Eight of redeeming mortgaged lands. By the phrase " the right of redeeming mortgaged lands " is meant the debtor's equitable interest in the estate which is mortgaged ; and that any interest which the debtor has in the lands, and of which the legal title remains in him, not covered by the mort- gage, can only be taken by a levy in the usual mode, and is not the subject of a sale. Laflin vs. Crosby, 99 Mass. 447. Eight op redemption vide Bight to redeem. Eight op trial by jury. It is a right guaranteed to every citizen to have the facts involved in any litigation which he may have tried and determined by "twelve good and lawful men." Neely vs. The State, 4 Baxter (Tenn.) 180. Eight op way means 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 ; and how frequently is im- material, provided it occurred as often as the claim- ant had occasion or chose to pass. Bodfish vs. Bodfish, 105 Mass. 319. A right of way is an easement, or incorporeal heredi- tament, in alieno solo. It is an inheritable estate, not belonging to the person of the occupant, but annexed to, and forming part of the lands or estate he pos- sesses. It descends to the heir with the manor, and needs no special words to convey it : a grant of the ADJUDGED WORDS AND PHRASES. 543 RIGHT RIGHT lands or the manor carries with it the right of way, which is annexed to, and a part of the lands or manoi. * * A right of way, in the legal sense of the term, is a right to pass, for all, or for certain purposes, at all, or at certain times, over and upon another man's land, or close. Stuyvesant vs. Woodruff, 1 Zob. (N. J.) 136. By the term "right of way," is generally meant a private way, which is an incorporeal hereditament of that class of easements, in which a particular per- son, or particular description of persons, have an in- terest and a right, though another person is the owner of the fee of the land, in which it is claimed. Wild vs. Deig et at, 43 Ind. 458. By the " right of way " can only be understood the land used as a way for the road, and not such addi- tional ground as may be used for the convenience of the road, but not as a part of its " way." The G. B. & Q. R. R. Co. vs. Paddock, 15 III, 620. The privilege which an individual, or a particular description of persons, such as the inhabitants of the village of A., or the owners or occupiers of the farm of B., may have of going over another person's grounds. Dineliart vs. Wells, 2 Barb. (N. Y.J 435. Bight of way, in its strict meaning, is the right of passage over another man's ground ; and in its legal and generally accepted meaning, in reference to a railway, it is a mere easement in the lands of others, obtained by lawful condemnation to the public use or by purchase. Williams vs. Railway Co., 50 Wis. 76. vide Way; Private way. 50 Miss. 413. Eight to dowek is an interest contingent during the life of the hus- band, but rendered absolute by his death. Smith vs. Hines, 10 Florida 283. Bight to redeem. The term, " right of redemption," or " right to re- deem," is familiarly used to describe the estate of the debtor when under mortgage, to be sold at auction, in contradistinction to an absolute estate, to be set off by appraisement. White vs. Whitney, 3 Met (Mass.) 86. 544 ADJUDGED WORDS AND PHARSES. eights road Eights of conscience are simply a right to worship the Supreme Being ac- cording to the dictates of the heart ; to adopt any creed or hold any opinion whatever on the subject of religion ; and to do, or forbear to do, any act for con- science sake, the doing or forbearing of which, is not prejudicial to the public iveal. Com. vs. Lesher, 17 S. & B. (Pa.) 160. 8 Penn. St. 322. ElOT is a tumultous disturbance of the peace, by three or more persons, assembling together, of their own au- thority, with an intent mutually to assist one another, against any who shall oppose them, in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbu- lent manner, to the terror of the people — whether the act intended were of itself lawful or unlawful. State vs. Russell, 45 iV. Samp. 84. 1 Rice (S. 0.) 260 ; 1 Hill (S. C.) 362 ; 1 Ired. 31 ; 2 McC. (S. C.) 120 ; 21 Ark. 185 ; Thatch. Cr. Cas. 121. Bisk (in insurance) does not mean the " danger," but the circumstances which give rise to it. Stokes vs. Cox, 1 Hurlst & N. 334. BrvEK. , The word river is derived from the Latin word rivus, which again is derived from a Greek verb to flow. In the classic authors it is used in a sense implying a current, a flowing of water from one point to another. State vs. Gilmanton, 14 N. Hamp. 477. 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 by walls or banks. Alabama vs. Georgia, 23 Howard ( U. S.J 513. It consists of water, bed and banks. Garit vs. Chambers, 2 Ohio 497. 3 Gratt. 492. EOAD. The term, "road," applies in its ordinary accepta- tion to a place set apart and appropriated, either de jure or de facto, to the purpose of passing with car- ADJUDGED WORDS AND PHBASES. 545 ROAD KOUCi riages, whether by public authority, or by the gen- eral license and permission of the owners. Com. vs Gammons, 23 Pick. (Mass.) 203. A passage through the country for the use of the people. Mining Co. vs. Kennedy et al., 3 Nevada 373. (Quoting Bouvier L. Diet. ) Roadstead is a place where ships may ride at anchor at some distance from the shore. The Steamer J. W. Everman, 2 Huglis ( U. S. C. C.) 28. EOBBERT. The stealing or taking from the person of another, or in the presence of another, property of any amount, with such a degree of force or terror as to induce the party to part with the property unwill- United States vs. Wilson, Baldwin ( U. S. C. C.J 93. A felonious and violent taking of any money or goods from the person of another, putting him in fear. Donally's Case, 1 Leach's Cr. Cos. 231. A felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence, and putting him in fear. State vs. Sowls, Phillips' Law (N. C.) 153. The true nature and original definition of robbery, was a felonious taking of property from the person of another by force, in which there were three things to be observed : first, that it must be done feloni- ously, which went to the intent of the taker. Sec- ondly, that it must be taken from the person of an- other. Thirdly, that it must be taken by force. Turner vs. State, 1 Ohio St. 425. 5 Blatchf. 11; 3 Keyes 19; 12 Ga. 315; 6 Lea 373; 1 Idaho 769. HOLL. A schedule of parchment, which may be turned up with the hand in the form of a pipe or tube, sheet to 1 sheet, tacked together in such manner that the whole length might be wound up together in the form of spiral rolls. Colman vs. ShattucJc, 2 Run (N. Y.) 502. 54« ADJUDGED WORDS AlfD PHRASES. ROLLING SALARY BOLLING STOCK (of a E. E.) embraces the moveable property belonging to the cor- poration. By moveable property is plainly meant such property as in its ordinary use is taken from one part of the line to another, such as cars, &c. 0. & M. B. B. Co. vs. Weber, 96 IU. 448. Bc-UTE. A way used for going from one place to another. And corresponding with its defined meaning, its com- mon acceptation excludes terminal points, and makes it dependent on them. Atty. Gen. vs. West Wis. By. Co., 36 Wis. 494. BUNNING AT LAKGE (stock.) The words " running at large " import that the stock are not under the control of the owner ; that they are not confined by inclosures to a certain field or place, nor under the immediate care of a shepherd or herds- man ; that they are left to roam wherever they may go. Hinman vs. C. B. I. & P. B. B. Co., 28 Iowa 494. ElXNNTNG SWITCH. To make a "running switch," a train approaches with considerable speed, and while so approaching the car to be left is disconnected ; the forward part of the train then passes rapidly over the switch, the rear part is somewhat checked, and the intermediate car to be left is switched off, and the switch is re- placed in season for the rear part to unite with the front part thereof, without stopping. Brown vs. K Y. C. B. B., 32 K Y. 597 n. vide Flying switch. Euptuee (of steam boiler.) A steam boiler is said to rupture when the failure is not accompanied by the sudden or extraordinary de- velopment of elastic force, the material giving way by cracking or splitting open, and affording an outlet for the water and steam. Evans vs. Ins. Co., 43 N. Y. 151. Salary is the per annum compensation to men in official and some other situations. The word salary is derived from solarium, which is from the word sal, salt, being an article in which the Eoman soldiers were paid. Cowdin vs. Huff, 10 Ind. 85. ADJUDGED WORDS AND PHRASES. 547 sale sale Sale. A sale is a transfer of the absolute title to property for a certain agreed price. It is a contract between two parties, one of whom acquires thereby a property in the thing sold, and the other parts with it 1'or a valuable consideration. Creveling vs. Wood et aL, 95 Penn. St. 158. (Quoting Slory on Hales, § 1. ) Sale is a transmutation of property from one man to another, in consideration of some price or recompense in value. Parker vs. Donaldson, 2 Watts & S. (Pa.) 19. It is an executed contract, to constitute which, deliv- ery, in fact, or in law, is indispensible, and it cannot be given of a thing which has not fully come into ex- istence. Clemens vs. Davis, 7 Penn. St. 264. A transfer of the absolute or general property in a thing for a price in money. Wittkowsky vs. Wasson, 71 N. C. 455. (Quoting Benjamin on Saks.) Competent parties to enter into a contract, an agree- ment to sell, and the mutual assent of the parties to the subject matter of the sale and to the price to be paid therefor. * * If any of these ingredients be wanting, there is no sale. Gardner vs. Lane, 12 Allen (Mass.) 43. A sale ex vi termini means a conveyance for a fair con- sideration. Laird vs. Seott et al., 5 Heish. (Tenn.) 348. An agreement by which one of the contracting par- ties, called the seller, gives a thing and passes title to it, in exchange for a certain price in current money, to the other party, who is called the buyer or pur- chaser ; who, on his part, agrees to pay such price. Eldridge vs. Kuehl, 21 "'Iowa 173. (Quoting Bouvier L. Diet.) A sale is a transferring of property from one person to another. Edwards vs. Farmers Ins. Co., 21 Wendell (N. Y.) 494. A sale is a parting with one's interest in a thing for a valuable consideration. Western Mass. Ins. Co., vs. Biker, 10 Mich. 281. A sale, in the legal import of the word, implies the 548 ADJUDGED WORDS AND PHRASES. SALE SALE transferring of property from the seller to the buyer for a price, and includes not only the idea of divest- ing the seller of the title, but also of vesting it in the buyer. The State vs. Wentworth, 35 N. Ramp. 443. A sale means at all times a contract between parties, to give and to pass rights of property for money, — which the buyer pays or promises to pay to the seller for the thing bought and sold. Williamson vs. Berry, 8 Howard (U. S.) 544. The thing sold must have an actual or potential ex- istence, and be capable of redelivery, otherwise it is not strictly a contract of sale, but a special or execu- tory agreement. Payne vs. Lassiter, 10 Yerg. (Tenn.) 512. (Quoting 2 Kent's Com. 486. ) Three particulars are included in a valid sale, viz.: a thing which is the subject of it, a price, and the con- sent of parties. If the subject of the intended sale have no existence, actually or potentially, there can be no valid sale. Schermerhorn vs. Talman, 14 (N. T.) 117. (Quoting Long on Spies, 3. ) 13 N. Hamp. 285 ; 26 Conn. 31 ; 83 N. C. 670 ; 71 111. 217 ; 20 Mo. 257 ; 54 Ala. 258 ; 85 Penn. St. 163 ; 6 Gray 8 ; 38 Penn. St. 398 ; 1 Curtis 245 ; 13 Barb. 71 ; 37 Ark. 418. Sale and bailment (distinguished) vide Bailment, &c. Sale and barteb (distinguished.) To sell property is, in the strict signification of the word "sell," to transfer it from one to another, in consideration of a price paid or agreed to be paid in current money. A sale differs from a barter in this, that in the latter, the consideration instead of being paid in money, is paid in goods or merchandise sus- ceptible of a valuation. Com. vs. Davis, 12 Bush (Ky.) 241. 37 Ark. 418. Sale by the candle vide Auction. Sale executed. 1 A sale executed is where nothing remains to be done ADJUDGED W0KD8 AND PHRASES. 549 SALE SALVAGE by either party to effect a complete transfer of the subiect matter of the sale. Smith vs. Supervisors, dec, 44 Wis. G91. Sale foe cash. means that the money is paid when the property is delivered. Bliss vs. Arnold, 8 Vermont 255. Sale of eeal estate, ex vi termini, means an absolute transfer of the prop- erty. t Freligh vs. Piatt, 5 Cowen (N. Y.J 496. A sale of real property is an agreement by the vendor to convey the title thereto or an estate therein to the vendee for a certain valuable consider- ation then or thereafter to be paid. A conveyance is not a part of the sale, but only a consequence of it ; and the former is complete without the latter, even if it is not followed by it. Watson vs. Brooks, 13 Fed. Rep. 541. Sale shokt (among brokers) means a sale of that which the seller has not, but what he expects to buy in at a lower price than that for which he sells. Appleman vs. Pislwr et al., 34 Md. 549. Saleable (underwoods.) The word saleable has not a very precise definite mean- ing ; it may mean when they are in a fit state for sale, referring to the time when they are cut ; or it may mean such as are intended or destined for sale, in contradistinction to such as are to supply the land with estovers for fuel and the other purposes of the estate. The King vs. Inhabitants of Mixfield, 10 East 224. Salt lick is so called in the western country, from the fact that deer and other wild animals resort to it, and lick or drink the brackish water. Indiana vs. Miller, 3 McLean (U. S. C. C.J 154. Salvage. It is an allowance for saving a ship or goods at sea, or both, from dangers, fire, pirates or enemies. Saa vs. Ship Alexander, 2 Paine ( U. S. C. C.J 4G9. Salvage is compensation for maritime services ren- 550 ADJUDGED WORDS AXD PHRASES. SALVAGE SALVAGE dered in saving property or rescuing it from impend- ing peril on the sea, or on a public navigable river or lake where interstate or foreign commerce is carried On. The old Natchez, 9 Fed. Rep. 480. The compensation to which any person may be en- titled for services rendered to a ship in distress, by saving it, or its cargo, from impending perils, or re- covering the same, after actual abandonment or loss. Baker vs. Hoag, 7 Barb. (N. Y.j 116. The compensation allowed to persons by whose as- sistance a ship or vessel, or the cargo of the same, or the lives of the persons belonging to the ship or vessel, are saved from danger or loss in cases of shipwreck, derelict or capture, or other marine mis- a pi T7 (* n Tl 7 Yf* Q The Clarita* 23 Wallace (U. S.) 16. Salvage, in so far as it is a claim to which the in- surer is liable, designates an expenditure necessarily laid out in preserving the subject of an insurance from loss, for which the insurer would be liable un- der the policy. Lohre vs. Aitchison, 3 Q. B. Div. 568 (Quoting 2 Arnold on Insurance, 776. ) 2 Bond (U. S. C. C.) 375; 11 Otto 384; 7 N. Y. 559; 1 Cliff. 220 ; 1 Suam. 216. Salvage seevice is a service which is voluntarily rendered to a vessel needing assistance, and is designed to relieve her from some distress or danger either present or to. be reasonably apprehended. McConnochie vs. Kerr, 9 Fed. Rep. 53. To constitute a salvage service it is not necessary that the duties should be actual or immediate, or that the danger should be imminent or absolute ; but it is sufficient if, at the time the assistance is rendered, the vessel has encountered any damage or misfortune which might possibly expose her to destruction if the services were not rendered. The Saragossa, 1 Benedict ( U. S. D. G.J 553. * The degree of danger is immaterial in considering the nature of the service. The Westminster, 1 W. Robinson 232. ADJUDGED WORDS AND PHRASES. 551 salvor sanction Salvor. A person who, without any particular relation to the ship in distress, proffers useful service and gives it as a volunteer adventure without any pre-existing contract that connected him with the duty of employ- ing himself for the preservation of the vessel. The Clarita, 23 Wallace (U. S.J 16 Whenever upon the high seas, or upon the sea coast, or elsewhere within the admiralty and maritime jur- isdiction, (which is ordinarily limited to places within the ebb and flow of the tide), any services are ren- dered by persons not composing the ship's crew, to ships in distress, by saving them or their cargoes from impending perils or losses, or by recovering . them after they have been lost, or by bringing them in and preserving them, when found derelict, in order to have them restored to the rightful owners, such persons are denominated salvors ; and they are en- titled to a compensation for their services, which is known by the name of salvage. Baker vs. Hoag, 7 N. Y. 559. 12 Peters 122 ; 1 Hagg. Adm. 237 ; 5 McLean 363 ; 2 Paine 472. Same cause of action. What is meant by the same cause of action, is where the same evidence will support both the actions, although they happen to be grounded on different writs. Bull vs. Hopkins, 7 John. (N. Y.J 21. Sample. The word sample, both in its legal' and popular acceptation, means that which is taken out of a large quantity as a fair representation of the whole — a part shown as a specimen. Webbefs Case, 33 Gratt. (Va.J 904. Sanction op an oath is a belief, that the Supreme Being will punish false- hood, and whether that punishment 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 a belief, that God is the avenger of false- hood. Blocker, Admr. vs. Burness, 2 Ala. 355. 552 ADJUDGED WORDS AND PHRASES. SATISFACTION SATISFIED Satisfaction (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 of the donee. It usually arises in a court of equity as a matter of presump- tion, where a man, being under an obligation to do an act (as to pay money), does that by will, which is capable of being considered as a performance or sat- isfaction of it, the thing performed being ejusdem gen- eris with that he has engaged to perform. Under such circumstances, and in the absence of all coun- tervailing circumstances, the ordinary presumption in courts of equity is, that the testator has done the act in satisfaction of his obligation. Green vs. Green, 49 Ind. 423. 2 Lead. Cas. in Eq. 566. (Quoting Story's Eq. Jut., § 1099.) Satisfaction (of a judgment.) Satisfaction is a technical term, and in its applica- tion to judgments, it means the payment of the money due by the judgment, which payment must be entered of record, and nothing but this is a legal sat- faction of the judgment. Planters Bank vs. Calvit, 3 8. & M. (Miss.) 194. A legal satisfaction in any way produces a permanent and irrevocable discharge, after which the judgment cannot be restored. Young vs. Fugett et al., 1 Lea (Tenn.) 450. Satisfaction and performance (distinguished) vide Performance, &c. Satisfaction of the debt, and extinguishment by merger of the security (distinguished) vide Extinguishment by merger, &c. Satisfactory evidence. By satisfactory evidence, which is sometimes called sufficient evidence, is intended that amount of proof, which ordinarily satisfies an unprejudiced mind, be- yond a reasonable doubt. Mayer vs. Boyle, 30 Maine 481. 1 Lea 504. (Quoting 1 Oread, on Ev. § 2.) Satisfied. The term satisfied, in legal understanding, when ap- plied to a note or a bond, is, that it is paid. Beynolds et al. vs. Thomas et al., 1 Boot (Conn.) 306. ADJUDGED WORDS AND PHRASES. 553 savings scire facias Savings bank. Any institution in the nature of a bank formed for the purpose of receiving deposits of money for the benefit of the persons depositing; to accumulate the pror duce of so much thereof as shall not be required by the depositors, their executors or administrators, at compound interest, and to return the whole, or any part of such deposit, and the produce thereof, to the depositors, their executor or administrators, deduct- ing out of such produce so much as shall be re- quired for the necessary expenses attending the man- agement of such institution, but deriving no power whatsoever from any such deposit or the produce thereof. Johnson et al. vs. Ward, 2 Bradwell (III.) 274. (Quoting Grant on Banking 614.) Scandal, and slander, mean the same, in the language of the law. Sharff vs. Com. 2 Binn. (Pa.) 519. Scandalous and impeetinent matter (in pi. distinguished) vide Impertinent, dec. Science. The very notion of science springs from the recogni- tion of the existence of general truths or laws, to which the relation of things and their operation upon each other conform. These laws or truths ascer- tained by the investigation of men devoted to partic- ular departments of inquiry, constitute science. Harris vs. Panama R. R. Co., 3 Bosicorth ( N. Y.) 13. The knowledge of many, orderly and methodically arranged, so as to become attainable by one. Jackson vs. Waldron, 13 Wend. (N. Y.) 205. Scilicet vide Videlicet. SCIEE FACIAS. A scirefacias is a writ judicial, founded on some mat- ter of record ; as judgments, recognizances, and let- ters patent, on which it lies to enforce the execution of them, or to vacate or set them aside. Portevant vs. Pendleton, 23 Miss. 3d. It is sometimes the commencement of a new action, as when it is issued to repeal a patent, vacate a char- 554 ADJUDGED WORDS AND PHBASES. SCOLDS SEAL ter, and the like (there being no action on which it can be founded) ; it is in other cases the continuation of a suit — as when brought to revive a judgment after a year and a day from its rendition, or upon the mar- riage or death of parties. The State vs. Scott, 2 Sivan (Term.) 335. 9 Yerg. 472; 77 111. 349; 8 111. 330; Minor (Ala.) 34; 3 Ark. 318; 39 N. H. 137; 43 N. H. 455; 4 Heisk. 33. Scolds, in a legal sense, are troublesome and angry women, who, by their brawling and wrangling amongst their neighbors, break the public peace, increase discord, and become a public nuisance to the neighborhood. They are indictable in the sheriff's tourn, and pun- ished by the cucking-stool. United States vs. Roy all, 3 Cranch (JJ. S. C C) 622. Scot and lot. Certain duties which must be paid by those who claim to exercise the elective franchise within cities and boroughs before they are entitled to vote. Mc Coffer ty vs. Guyer, 59 Perm. St. 116. (Quoting HbUhouse L. Diet.) Scrambling possession. By a scrambling possession is meant a struggle for possession on the land itself — not such a contest as is waged in the courts. Spiers vs. Duane, 54 Col. 177. Sea. "Waters within the ebb and flow of the tide are to be considered the sea. Baker vs. Hoag, 3 Barb. (N. Y) 206. Sea shore vide Shore. Seal. A seal, according to Lord Coke (3 Inst. 169.), is wax with an impression. Sigillum est cera impressa, quia cera sine impressione non est sigillum. , Warren vs. Lynch, 5 John. ( N. Y.) 245. At the common law, a seal is an impression upon wax, wafer, or some other tenacious substance. An im- pression upon paper alone is not a seal, except where it is made so by statute. Coit vs. MilUkin, 1 Denio (N. Y) 377. 5 Pick. 497; 13 Ga. 162; 2 Eedf. Surr. B. 366. ADJUDGED WORDS AND PHRASES. 655 SEA-LETTER, SECURITY Sea-lettek and passport, (distinguished) vide Passport. Seaworthiness is well understood to mean that measure of fitness which the particular voyage or particular stage of the voyage requires. Colin vs. Davidson, 2 Q. B. Div. 461. Sea-worthy (vessel.) In its more literal sense, it signifies capable of navi- gating the sea ; but more exactly it implies a condi- tion to be and remain in safety, in the condition she is in, whether at sea, in port, or on a railway stripped and under repairs. Capen vs. Washington Ins. Co., 12 Cush. (Mass.) 521. It means, that she must be tight, staunch and strong, well furnished, manned, victualed and in all respects equipped in the usual manner for the trade in which she is engaged. She must be adapted to the cargo and to the service in which she is employed. Collier vs. Valentine, 11 Mo. 306. She must be equipped with everything essential to her navigation during the voyage, and she must have a sufficient crew, both as to numbers and efficiency ; and last, though by no means least, she must have a master or commanding officer of competent skill, prudence and experience, at least, to conduct the navi- gation of the vessel, if not to meet the responsibilities of those sudden and decisive emergencies in which by his own act he often determines the rights and lia- bilities of the parties to the contract. Draper vs. Com. Lis. Co., 4 DuerfN. Y.) 240. Secret partnership is where the existence of certain persons as partners is not avowed or made known to the public by any of the partners. U. 8. Bank vs. Binney, 5 Mason (U. S. C. C.J 186. vide Dormant partner. 49 N. H. 227. Security. That which renders a matter secure ; an instrument which renders certain the performance of a contract. Storm vs. Waddell, 2 Sandf. Ch. (N. Y) 506. (Quoting Bouvier.L. Diet.) 556 ADJUDGED WORDS AND PHRASES. seduce seizin Seduce. The word " seduce," although a general term, and having a "variety of meanings according to the sub- ject to which it is applied, has, when it is used with reference to the conduct of a man towards a female, a precise and determinate signification, and is uni- versally understood to mean an enticement of her on his part to the surrender of her chastity, by means of some act, influence, promise or deception calcula- ted to accomplish that object, and to include the yielding of her person to him, as much as if it was expressly stated. State vs. Bierce, 27 Conn, 320. No woman is seduced * * until fornication has been committed on her body. Dinkey vs. Com., 17 Penn. St. 130. 27 Conn. 321 ; 38 Iowa 224. Seduction. The act of a man in seducing a woman to commit un- lawful sexual intercourse with him. Leucker vs. Steileu, 89 III. 547- Seduction is the offence of a man who abuses the simplicity and confidence of a woman to obtain by false promises what she ought not to give. Brown vs. Kingstey, 38 Iowa 224. (Quoting Bouvier L. Diet. ) The word " seduction," when applied to the conduct of a man towards a female, is generally understood to mean the use of some influence, promise, arts, or means on his part, by which he induces the woman to surrender her chastity and virtue to his embraces. Croghan vs. State, 22 Wis. 445. In order to constitute seduction the defendant must use insinuating arts to overcome the opposition of the seduced, and must by his wiles and persuasions, without force, debauch her. Hogan vs. Cregan, 6 Robertson (N. T.J 150. 27 Conn. 321 ; 77 Ind. 334. Seizin is a technical Term, to denote the Completion of that Investiture, by which the Tenant was admitted into the Tenure ; and without which no Freehold could be ADJUDGED WORDS AND PHRASES. 557 SEIZIN SEIZURE constituted or pass. Sciendum, est Fevdum, sine In- vestitura, nullo modo constitui posse. Kilivick vs. Maidman, 1 Burr. 107. Seizin denotes, ordinarily, a possession in fact by one having or claiming a freehold interest, which is known as a seizin in deed, or a right of immediate posses- sion, which is a seizin in law. There may be a con- structive seizin, the equivalent of a seizin in deed. Jenkins vs. Faliey, 73 N. Y. 362. In strictness there is no such thing as seizin of land; the seisin is of an estate in the land, and not of the land itself. And although the expression, seized of land, is sometimes used, it means only that the party is seized in fact of a present freehold estate, which may be for life or in fee in the land. Van Rensselaer vs. Foucher, 5 Denio (N. Y.) 44. A seizin, in the sense of the ancient law, was the com- pletion of the feudal investiture by which the tenant was admitted into the feud, and performed the rights of homage and fealty. A seizin in fact, is now under- stood to be a possession with intent on the part of him who holds it to claim a freehold ; while a seizin in law, is the right of immediate possession, accord- ing to the nature of the estate. Upchurch vs. Anderson et at, 3 Baxter (Tenn.) 411. Seizin is the possession of land under a claim, either express or implied by law, of an estate amounting at least to a freehold. Toiole vs. Ayer, 8 N. Samp. 59. Seizin signifies in the common law, possession. Frost vs. Cloutman, UN. Hamp. 15. At common law, it imported a feudal investiture of title by actual possession. Ford vs. Garner's Admr. 49 Ala. 603- 36 K. H. 119; 1 Matthews (Va.) 135. Seizuee (in insurance.) The word "seizure," as applied to the contract of in- surance, may be said to import the taking possession of a ship or vessel by superior force, or by violence from without, and not a barratrous conversion of her by the officers and crew, or either of them. Greene vs. Pacific Hut. Ins. Co., 9 Allen (Hass.) 221. 558 ADJUDGED WORDS AND PHRASES. SEIZUEE SEPARATE Seizure and capture (distinguished) vide Capture, &c. Select and set apart. To " select and set apart " means the taking one or more articles from other articles of a like character. The State vs. Haggard 1 Humph. ( Tenn.J 392. Self-defense. It may be divided into two general classes, to wit, perfect and imperfect right of self-defense. A perfect right of self-defense can only obtain and avail where the party pleading it acted from necessity, and was wholly free from wrong or blame in occasioning or producing the necessity which required his action. If, however he was in the wrong — if he was himself violating or in the act of violating the law — and on account of his own wrong was placed in a situation wherein it became necessary for him to defend him- self against an attack made upon himself which was superinduced or created by his own wrong, then the law justly limits his right of self-defense, and regu- lates it according to the magnitude of his own wrong. Such a state of the case * * would be an imper- fect right of self-defense. Heed vs. The State, 11 Texas App. 507. vide Excusable homicide. Sentence. A sentence is a judicial determination of a cause agi- tated between real parties, upon which a real inter- est has been settled ; in order to make a sentence, there must be a real interest, a real argument, a real prosecution, a real defence, a real decision. Of all these requisites, not one takes place in the case of a fraudulent and collusive suit. Lee vs. Lee, 55 Ala. G02. Sentence (in criminal law) vide Judgment fin criminal law.) 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. Petty vs. Malier, 14 B. Mon. (Ky.) 247. By the common law, the idea attached to separate ADJUDGED WORDS AND PHRASES. 559 SEPARATION SERVICE Sroperty in the wife, and which forms a portion of its efinition is that it is an estate, held as well in its use as in its title, for the exclusive benefit and advan- tage of the wife. Karth vs. Light, 15 Gal. 324. 2 Bush 115: 31 Cal. 637. SEPARATION OE A JURY is a departure of one or more jurors from their fel- lows, or the whole of the jurors departing from each other. State vs. Perry, Busbee (N. C.) 331. Servant a hireling who makes a part of a man's family, em- ployed for money, to assist in the economy of the family, or in matters connected with it. Boniface vs. Scott, 3 S. & R. (Pa.) 353. Where a person in the employment of another is, in the discharge of his duties, subject to the immediate direction and control of his employer, he is properly described as a servant. Gravatt vs. State, 25 Ohio St. 168. A servant is 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 employer, and subject to his direction and con- trol therein, and who is, generally liable to be dis- missed. Hcygood vs. State, 59 Ala. 51. None are servants in a legal sense, but those who act in subordination to others, under whose order, direction, and control they are acting for the time being. Williamson vs. Wadswortli, 49 Barb. (N. Y.) 298. The word servant ordinarily indicates a person hired for wages, to work as the employer may direct. Morgan vs. Bowman, 22 Mo. 548. Service in its restricted sense is the service of military func- tions in the enemy's country in the time of war, or the exercise of military functions in the soldier's own state or country in case of insurrection or invasion. Van Deuzer vs. Gordon, 39 Vermont 118. 560 ADJUDGED WOKDS AJJD PHRASES. SERVICE SESSIONS Service (of papers.) The judicial delivery or communication of papers ; execution of process. The delivery or communica- tion 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. Walker vs. State, 52 Ala. 193. Service (of writ) means serving the defendant with a copy of the pro- cess, and showing him the original if he desires it. Goggs vs. Huntingtower, 12 M. & W. 504. 16 How. Pr. K. 152. Service real. A service which one estate owes to another, or, the right of doing something or having a privilege in one man's estate for the advantage and convenience of the owner of another estate. To constitute such a service there must be two estates, the one giving, and the other receiving the advantage. Karmuller 'vs. Krotz, 18 Iowa 357. 20 Ohio 409. Servitude and easement (distinguished) vide Easement, dec. Session. The time during which a legislative body, a court or other assembly sits for the transaction of business ; as a session of congress, which commences on the day appointed by the constitution and ends when congress finally adjourns before the commencement of the next session ; the session of a court, which commences at the day appointed by law and ends when the court finally rises. People vs. Aud. Pub. Accounts, 64 III. 86. (Quoting Bouvier L. Diet.) The term session, when applied to courts, means the whole term ; and in legal construction, the whole term is construed but as one day, and that day is always re- ferred to the first day or commencement of the term. Dew vs. Judges of Siveet Springs, 3 H. & M. (Fa.) 27. Sessions op the peace. A court of record held before two or more justices of the peace for the execution of the authority given them by their commission and certain acts of Parlia- ADJUDGED WORDS AND PHKASES. 561 SET SET-OFF ment, and the justices of the sessions have power to hear and determine trespasses against the public peace, and many offences by statute. The term Sessions of the Peace is used to designate a sitting of justices for the execution of those pur- poses which are confided to them by their commis- sion and by several acts of Parliament ; of these Ses- sions there are four kinds — Petit, Special, Quarter and General. The People vs. Powell, 14 Abbott's Pr. R. (N. Y.) 93. Set aside. There is no particular magic about the words " set aside." They simply mean to annul ; to make void. State vs. Primm, 61 Mo. 171. Set at liberty (slave) denotes the putting of him in a permanent condition of freedom, and implies the extinguishment of the right, which the master had over his slave, and not the temporary cessation of actual authority. Columbia vs. Williams, 3 Conn. 471. Set-off. A set-off means a cross-claim, for which an action might be maintained against the plaintiff, and is very different from a mere right to a deduction from, or reduction of, his demand, on account of some matter connected therewith. Annan vs. Houck, 4 Gill (Md.) 331. A debt for which an action might be maintained by the defendant against the plaintiff; that is, a debt for a certain specific pecuniary amount, and recover- able in an action ex contractu. It is in a strict sense a " cross " debt or demand due to the defendant, un- connected with the plaintiff's claim, so that it could not be shown in payment or reduction of the amount due thereon at common law. Cook vs. Mills, 5 Allen (Mass.) 37. A set-off is a money demand by the defendant against the plaintiff, and refers to a debt or demand inde- pendent of and unconnected with the plaintiff's cause of action. Boston Mills vs. Evil, 37 How. Pr. R. (N. Y.J 301. 5 Jones (N. C.) 361; 31 Conn. 401; 2 Swan 496. 562 ADJUDGED WORDS AND PHRASES. SET-OFF SET-OFF ; Set-off and countek-claim (distinguished.) A set-off would seem to be of a different nature from a defense, inasmuch as a set-off appears to show a debt balancing the debt claimed by the plaintiff, and thus leaving nothing due him ; while a counter-claim, it would seem, consists of a cross-claim, not neces- sarily extinguishing or destroying the plaintiff's de- mand. In other words, a set-ofi appears to consist of a defence to the original claim of the plaintiff; a counter claim is the assertion of a separate and in- dependent demand, which does not answer or destroy the original claim of the plaintiff. Stooke vs. Taylor, 5 Q. B. Div.571. (Quoting Pitt. Lewis on County Court Practice 321.) 17 Ch. Div. 182. Set-off and discount (distinguished.) '■■ A set-off and a discount are separate and distinct matters. The first is an independent debt or de- mand, which the debtor has against the creditor, and which he can use to counter -balance the demand of the latter against him, either in whole or in part. The second is a right which the debtor has to an; abatement of the demand against him, in consequence of a partial failure of the consideration or on account of some equity arising out of the transaction on which the demand is founded. Trabue's Exr. vs. Harris, 1 Met. (Ky.) 598. Set-off and eecoupment (distinguished.) A set-off is a counter-demand which a defendant holds against a plaintiff, arising out of a transaction extrinsic of the plaintiff's cause of action. Recoup- ment is distinguished from a set-off in these particu- lars : 1st. It arises out of matters connected with the transaction or contract on which the plaintiff's cause of action is founded. 2d. It matters not whether it be liquidated or unliquidated. 3d. It is not depend- ent on any statutory regulation, but is controlled by the principles of the common law. Raymond vs. State, 54 Miss. 563. A set-off does not defeat the plaintiff's cause of ac- tion, but the law permits a distinct cause of action against the plaintiff, in the defendant to be interposed, affecting in whole or in part the amount of damages. Eecoupment differs from set-off in that, in regard to ADJUDGED WORDS AND PHRASES. 583 SETTLE SHAM the former, both the cause of action in the plaintiff and the right to recoup in the defendant, grow out of the same subject matter and are correlative. Boclcwell vs. Daniels, 4 Wis. 440. 49 Mo. 572. Settle. The word " settle " is sometimes used in the sense of " paying," as if, upon a balance being struck, one says, " T have not the money now, but will call in a few days and settle it." Here, a promise to settle is a promise to pay. At other times "settle" is used in the sense of accounting together and striking a bal- ance by computation. When so used, a promise to settle implies a promise to pay the balance. * * At other times it is used in the sense of adjusting mat- • ters of controversy, about which there had been a difference of opinion, and striking a balance by agree- ment. Moore vs. Hyman, 13 Ired. Law (N. C.) 274. The word " settle " has an established legal meaning, and implies the mutual adjustment of accounts be- tween different parties, and an agreement upon the balance. Baxter vs. State, 9 Wis. 44. Shall be lawful. The meaning to be attributed to the phrase " it shall be lawful " in a statute must depend on the subject- matter in every instance. * * Prima facie those words import a discretion, and they must be con- strued as discretionary unless there be anything in the subject-matter to which they are applied, or in any other part of the statute, to show that they are meant to be imperative. The Queen, vs. Bishop of Oxford, 4 Q. B. Div. 257. 4 Q. B. D. 553. Sham answer. A sham answer and defence is one that is false in fact, and not pleaded in good faith. Brown vs. Jenison, 3 Sandf. (N. Y.) 732. A sham answer is one good in form but false in fact, and not pleaded in good faith. Piercy vs. Sabin, 10 Gal. 29. 45 N. T. 471 ; 18 Cal. 388 ; 22 How. Pr. K. 345 ; 57 Oal. 287. 564 ADJUDGED WORDS AND PHEASES. sham shave Sham plea is one entered for mere purposes of delay ; it must be of a matter which the pleader knows to be false. Darrow vs. Miller, 5 How, Pr. R. (N. Y.) 248. 6 How. Pr. K. 356 ; 57 Cal. 288. Share (in a stock corporation.) A share or interest in the capital stock of a stock bank, or other stock corporation, may be defined as the right to a pro rata periodical dividend of all profits, and if the corporation is not immortal, a right to a pro rata distribution of all its effects, after payment of its debts, on its death. People vs. Commrs. of Taxes, &c, 40 Barb. (N. Y.J353. A share in a corporation is a right to participate in the profits, or in a final distribution of the corporate property pro rata. Field vs. Pierce, 102 Mass. 281. L. K. 10 Ch. App. Cases 155. Sheriff. The word " sheriff" technically means an officer who acts within a county under a commission for a limi- ted time. Tichenor vs Hewson, 2 Green. (N. J.) 32. SMreve is a word compounded of two Saxon words, viz., Shire and reve. Shire, satrapia, or comitatus, cometh from the Saxon verbe shiram, i. e., partiri, for that the whole realme is parted and divided into shires; and reve is praefectus ; so as shireve is the reve of the shire. Co. Litt. 168 a. 56 Penn. St. 275. Shave. The word shave is sometimes used to denote the act of obtaining the property of another by oppression and extortion ; that is by taking an inequitable and unconscientious advantage of his situation to fleece or strip him of his property. The word shave is also used to denote the buying of existing notes and other securities for money at a discount beyond the nomi- nal amount of the debt and interest due or to become due on such notes or securities. Stone vs. Cooper, 2 Denio (N. Y.) 300. ADJUDGED WORDS AND PHRASES. 565 shipment shoee Shipment means delivery on board. Fisher vs. Minot, 10 Gray (Mass.) 2G2. Shipped. The word " shipped," in common maritime and mer- cantile iisage, means placed on board of a vessel for the purchaser or consignee, to be transported at his risk. Fisher vs. Minot, 10 Gray (Mass.) 262. Ship's husband designates the person who, in some home port, where the vessel belongs, does what the owner would other- wise do, obtains a cargo for her, and attends to every- thing essential to the due prosecution of the voyage for which the cargo has been obtained. * * Ac- cording to Beawes, he collects the freight both at home and abroad, pays all the ships disbursements, and makes out an account of all these transactions for his employers, the owners of the ship. Gillespie vs. Winberg, 4 Daly Com. PI. (N. Y.) 322. Shipwreck is when the ship is so broken, disjointed, or other- wise injured, that it no longer exists in its original nature and essence. * * * There are two kinds of shipwreck ; the first when the ship is submerged or sunk so that no permanent vestige remains upon the surface of the water ; the second, when the ship, being stranded, has an opening through which the sea water is admitted so as to fill her hold, though she does not absolutely disappear. Peele vs. Merchants Ins Co., 3 Mason, (U. 8. C. 0.) 423. Shiee. Scyran in the Saxon tongue signifieth partiri, because everie Countie or Shire is divided and parted by cer- tain metes and bounds from another. Co. Litt. 50, a. Shore. The sea-shore must be understood to be the margin of the sea, in its usual and ordinary state. Thus, when the tide is out, low water mark is the margin of the sea ; when the sea is full, the margin is high water mark. The sea-shore is therefore all the 566 ADJUDGED WORDS AND PHRASES. SHORE SINGLE ground between the ordinary high, water mark and low water mark. Storer vs. Freeman, 6 Mass. 439. Shore is that space of land on the borders of the sea which is alternately covered and left dry by the rising and falling of the tide — or in other words that space between high and low water mark. Church vs. Meeker, 34 Conn. 424. (Quoting Bouvier L. Diet.) Lands adjacent to navigable waters, where the tide flows and reflows, which at high tides are submerged and at low tides are bare. Bell vs. Gough, 3 Zab. (N. J.) 683. 123 Mas. 361 ; 17 Ala. 791 ; 31 Cal. 121 ; 23 Tex. 358 ; 40 Conn. 400. Shoet ENTKY. In London it was a custom for bankers to receive bills for collection and to enter them immediately in their customers' accounts, but never to carry out the proceeds in the column to their credit until actually collected ; and this was called a " short entry," or " entering short." Blaine vs. Bourne, 11 B. I. 121. Sign means, to write one's name on paper or to show or declare assent or attestation by some sign or mark. James vs. Patten, 6 -ZV. Y. 13. 26 Wend. 356. SlGNATUKE. A signature consists both of the act of writing a party's name, and of the intention of thereby authenticating the instrument. Watson vs. Pipes, 32 Miss. 466. £1 Ark. 312. iSlMTLAE. The word " similar " is often used to denote partial resemblance ; also to denote sameness in all essen- tial particulars. Com. vs. Fontain, 127 Mass. 454. Simony is giving something for spiritual preferment. Wright vs. Davies, 1 C. P. Div. 649. Single bond. vide Bond. ADJUDGED WOBDS AND PHRASES. 567 sinking sodomy Sinking fund is a fund arising from particular taxes, imposts, or duties, which is appropriated toward the payment of the interest due on a public loan and for the pay- ment of the principal. U. P. R. R. vs. Buffalo County, 9. Nebraska 453. Slaveky. An institution by which one man is made the prop- erty of another. Douglass vs. Ritchie, 24 Mo. 180. Slavery is a relation founded in force, not in right, existing, where it does exist, by force of positive law, and not recognized as founded in natural right. Ser- vitus est constitutio juris gentium, qua quis dominio alieno contra naturam subjicitur. Com. vs. Aves, 18 Pick. (Mass.) 215. Slight neglect is the omission of that diligence which all circum- spect and thoughtful persons use in securing their own goods and chattels. French vs. B., N. Y. & E. R. R. Co., 4 Keyes (N. Y.J 113. 32 Barb. 151. Slight negligence is only an absence of that degree of care and vigilance which persons of extraordinary prudence and fore- sight are accustomed to use. Griffin vs. Town of Willoiv, 43 Wis. 512. Slight negligence is the want of great care and dili- gence. ' C. W. D. Ry. Co. vs. Klauber, 9 Bradwell (III.) 623. 45 Wis. 199. Slip is an opening between two pieces of land or wharves. Corporation vs. Scott, 1 Caines (N. Y) 549. 11 N. Y. 120; 3 Sandl 499. Smuggle. The idea conveyed by it is that of a secret introduc- tion of goods, with intent to avoid payment of duty. U. 8. vs. Clafiin, 13 Blatchf. (U. S. C. C.) 184. Sodomy is a connection between two human beings of the 568 ADJUDGED WORDS AND PHRASES. SOJOURNING SOLVENCY same sex — the male — named from the prevalence of the sin in Sodom. Ausman vs. Veal, 10 Ind. 356. Sojourning. The term sojourning, means something more than " travelling," and applies to a temporary, as contra- distinguished from a permanent, residence. Henry vs. Ball, 1 Wkealon (U. 8.) 5. SOJOUENMENT is derived from the French substantive sejour, or the French verb sejourner, which means a temporary residence or dwelling for a short time. To the word Jour, which literally signifies a day, is prefixed the personal pronoun se, which gives it a personal signi- fication, and restricts its application to persons. Hence the literal meaning of the word, is a dwelling in a place for a day only ; and by an extended, and somewhat figurative mode of expression, it is used to signify a dwelling in a place for a short time, without ascertaining the precise length of time. Baptiste vs. DeVolunburn, 5 Harr. & J. (Md.J 88. Solar month. A solar month is the time in which the sun runs through one entire sign of the Ecliptic, the mean quantity of which is thirty days, ten hours, twenty minutes, and five seconds, being one twelfth of the time composing the whole year. Bives vs. Guthrie, 1 Jones Law (N. C.J 87. Soldier in the military service. "When we speak of a " soldier in tJie military service," we mean one in the war or military department, rather than in the naval service. Abrahams vs. Bartlet, 18 Iowa 514. Solemnize (a marriage.) To solemnize means nothing more than to be present at a marriage contract, in order that it may have due publication before a third person or persons, for the sake of notoriety and the certainty of its be- ing made. Pearson vs. Hoivey, 6 Hoist. (N. J.) 19. Solvency means something more than an ability to pay at the option of the debtor ; it means that the debtor is in ADJUDGED WORDS AND PHRASES. 569 SOLVENCY SOUND such a condition that the demand may be collected out of his property by due course of law. Huffman vs. Hulbert, 13 Wend. (N. Y) 378. Solvency consists alone of the present ability of the debtor to pay, without regard to the efficiency or in- efficiency of legal process to compel payment. Eddy vs. Baldwin, 32 Mo. 374. Solvency is ability to pay all debts or just claims ; insolvency, is inability to pay such debts. McKown vs. Furgason, 47 Iowa 637. vide Insolvency. Solvent. The term solvent, in law, means, that a man is able to pay all his debts from his own means, or that his property is in such a situation that all his debts may be collected out of it by legal process. Herrick vs. Borst, 4 Hill (N. Y.) 652. vide Insolvent. 4 Robertson (N. Y.) 434. Solvent debtor. A " solvent debtor " is a person who has sufficient property to pay all his debts, and against whom col- lection of such debts may be enforced, out of his property, by due process of law. People vs. Halsey, 53 Barb. (N. Y.) 554. vide Insolvent debtors. 36 How. Pr. R. 505. Sound (animal) means free from any defect, by which it is unfitted for the services usually performed by animals of the like kind. Bell vs. Jeffreys, 13 Ired. Law (N. C.) 357. I think the word " sound " means what it expresses, namely, that the animal is sound and free from dis- ease at the time he is warranted to be sound. Kiddell vs. Burnard, 9 31. & W. 670. Sound and disposing mind and memory Cof testator.) In other words, he ought to be capable of making his will, with an understanding of the nature of the busi- ness in which he is engaged ; a recollection of the propertv 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 not neces- sary that he should view his will with the eye of a 570 ADJUDGED WORDS AND PHARSES. SOUND SOVEREIGNTY lawyer, and comprehend its provisions in their legal form. It is sufficient, if he has such a mind and memory as will enable him to understand the ele- ments of which it is composed — the disposition of his property in its simplest forms. Harrison vs. Rowan, 3 Wash. (U. 8. C. G.J 585. vide Disposing, &c. ; Testamentary capacity. 1 Green Ch. 85 ; 2 Green Ch. 571; 4 Wash. 268. Sound memory and discretion, person of (in definition of murder) is one who has sufficient knowledge to understand the nature of the act, and that it is in violation of his moral and social duty, and will subject him to pun- ishment. Commonwealth vs. Moore, 2 Pittsburgh (Pa.) 503. Sound mind. A sound mind is one wholly free from delusion, all the intellectual faculties existing in a certain degree of vigor and harmony ; the propensities, affections and passions being under the subordination of the judgment and will, the former being the controlling power, with a just perception of the natural connec- tion or repugnancy of ideas. Duffield vs. Morris Exr., 2 Harring. (Del.) 379. Sovereignty is the ultimate, absolute, uncontrollable power "of government ; of making laws and enforcing obedience to them, which, in all societies, must be vested some- where. Mayor & G. G of Balto. vs. Marriott, 9 Md. 166. Sovereignty is the supreme power which governs the body politic or society that constitutes the state. Gilmer vs. Lime Point, 18 Gal. 250. The right, or power, to govern, including the power to make, administer and execute the laws. State vs. Floyd, 9 Ark. 304. It is the exercise of, or right to exercise, supreme power, dominion, sway ; and as applied to a state, it is the right to exercise supreme power, dominion, authority, * * * the elemental prerogative of a nation, an essential attribute that gives to it being, life and character, and without which it can have no existence. Territory vs. Lee, 2 Montana 130. ADJUDGED WORDS AND PHRASES. 571 SPEAKING SPECIAL SPEAKING DEMUEEEB. A speaking demurrer is one which introduces some new fact, or averment, which is necessary to support the demurrer, and which does not appear distinctly upon the face of the bill. Brooks vs. Gibbons, 4 Paige Ch. (N. Y.) 375. 1 Sim. 8. Special (as applied to cases, &c.) It is used in opposition to general, and thus means a designating of a species or sort — a separation of a part from the whole. Beecher vs. Allen, 5 Barb. (N. Y.) 175. Special cases (in N. Y. const.) designates or was designed to designate a particular " sort," possessing certain characteristics which dis- tinguish them from those ordinary cases which the common law had arranged and classified ; cases which are extraordinary in this sense, and " peculiar," and which in general are authorized by the law to " sub- serve a particular purpose." Kundolfvs. ThaUwimer, 12 K Y. 596. Special acts vide Private acts. Special agency. A special agency properly exists where there is a delegation of authority to do a single act. F'm. & Meek B'kvs. Butch. & Drov. B'k, 16 (N. Y.J148. (Quoting Story on Agency, § 17.) vide Agent general and special, &c. Special agent is one employed to do a specific act, or certain spe- Scott vs. McGrath, 7 Barb. (N. Y.) 55. One constituted for a specific act and under an ex- press power. Cooley vs. Perrine, 12 Vroom (N. J.) 324. vide Agent gen,eral and special, &c. 16 N. Y. 148; Meigs 508. Special and common caeeiee (distinguished) vide Common and special, &c. 572 ADJUDGED WORDS AND PHKASES. special special Special case. It is a case unknown to the general frame-work of courts of law or equity. People vs. Kern Co,, 45 Cal. 679. vide Special: Special damage is that which the law does not necessarily imply that the plaintiff has sustained from the act complained of.. It is often very difficult to distinguish general from special damage. Tomlinson vs. Town of Derby, 43 Conn. 567. Special deposit. A special deposit is where the specific money, the very gold or silver coin, or bills deposited, are to be returned, and not an equivalent. Talladega Ins. Co. vs. Landers, 43 Ala. 138. Special law. A law which applies only" to an individual or to a number of individuals selected out of the class to which they belong, is a special and not a general law. State vs. Cal. Mining Co., 15 Nevada 249. vide Special act. Special lien is the right to retain the property of another, on ac- count of labor bestowed or money expended on the same property, and is established by the common law and by express agreement. Crornrn. vs. N. Y. & H. R. Co. 10 Bosw. (N. T.J 80. vide General lien. Special limitation is a qualification serving to make out the 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. A special limitation may be created by the words "until," " so long," "if," " whilst " and " during." Henderson vs. Hunter, 59 Penn. St. 340. Special or private acts are rather exceptions than rules, being those which operate only upon particular persons and private ADJUDGED WORDS AND PHRASES. 578 SPECIAL SPECIAL concerns, such as the Romans entitled senatus decreta, in contradistinction to the senatus consulta, which re- garded the whole community, and of these (which are not promulgated with the same notoriety as the former) the judges are not bound to take notice, un- less they be formally shown and pleaded. Unity vs. Burrage, 13 Otto (U. 8.) 454. (Quoting 1 Bl. Com. 86.) vide Private acts. Special pbopeety, in a strict sense, may be said to consist in the lawful custody of the goods, with a right of detention against the general owner. Eisendrath vs. Knauer, 64 IU. 402. Special sessions. Sessions holden on a special occasion for the exe- cution of some particular branch of the authority of justices of the peace. The People vs. Powell, 14 Abbott's Pr. R. (N. Y.) 93. vide General sessions. Special teaveese. A special traverse is a mode of spreading upon the record and submitting to the judgment of the court a defence, consisting sometimes of new matter not appearing by the preceding pleading, which operates as an indirect denial of some fact or facts on which the case made by the preceding pleadings depends ; and although the matter pleaded by way of induce- ment does not directly answer the preceding plead- ing, for which purpose the absque hoc_ clause is neces- sary to form the perfect issue, yet it is a fundamental rule, that the inducement should be such as in itself amounts to a sufficient answer in substance to the last pleading. Allen vs. Stevens, 5 Dutch. (N. J.) 513. A special traverse is one preceded by introductory affirmative matter, called the inducement to the tra- verse. Chambers vs. Hunt, 3 Harr. (N. J.) 352. Special veedict is where the jury find the facts of the case, leaving the ultimate decision of the cause upon those facts, to the court, concluding conditionally, that if upon the 574 ADJUDGED WOKDS AND PHRASES. SPECIALTY ■ SPECIFIC whole matter thus found, the court should be of opinion that the plaintiff had a good cause of action, they then find for the plaintiff, and assess his dam- ages ; if otherwise, then for the defendant. WaUington vs. Dunlap, 14 Penn. St. 33. vide Verdict. Specialty, in the strict and early use of the word, was regarded as only applicable to bonds, deeds, or other instru- ments under seal. * * It has long been used as embracing debts upon recognizances, judgments, and decrees, and (in England certainly) debts upon stat- utes. Stockioell vs. Coleman, 10 Ohio St. 40. A specialty is a contract executed with the solemni- ties of sealing and delivery, and is emphatically styled a deed. Helm vs. Eastland, 2 Bibb (Ky.) 194. Debts by specialty are such whereby a sum of money becomes or is acknowledged to be due, by an - instrument under seal. Jannary vs. Goodman, 1 Dallas (TJ. S.) 208. A specialty is a writing sealed and delivered, contain- ing some agreement. Lane vs. Morris, 10 Georgia 167. A writing sealed and delivered which is given as a se- curity for the payment of a debt in which such debt is particularly specified. Seymour vs. Street, 5 Nebraska, 87. 15Ind. 282. (Quoting Bac. Abr. Obligation A.) Specie. Hard money, or specie, is a coin of the precious metals, of a certain weight and fineness, with the gov- ernment stamp thereon, denoting its value as a me- dium of exchange, or currency. Henry vs. Bank of Salina, 5 Hill (N. Y.J 53C. The meaning of this word is well understood to be metalic money issued by public authority, and it is generally used in contradistinction to paper money. Walkup vs. Houston, 65 N. C. 502. Specific and general legacies (distinguished.) The former are considered as severed from the bulk of the testator's property, by operation of the Will, ADJUDGED WORDS AND PHRASES. 575 SPECIFIC SPECIFIC from the death of the testator, and as specifically ap- propriated with the increase and emolument, for the benefit of the legatee from that period ; so that inter- est is computed on them from the death of the testa- tor ; and it is immaterial whether the enjoyment of the principal is postponed by the testator to a future period, or not. Not so with the latter, or general legacies. They, in their nature, carry interest as in the case of other claims, with that incident, but the interest is computed from the time the principal is due and payable, if such time can be inferred from the Will ; but if not, and if no time of payment is fixed, the law, for convenience, has prescribed the general rule that interest shall be computed from the end of one year from the testator's death. Darden Exr. vs. Or gain et al., 5 Coldw. (Term.) 214. vide General, dec. Specific legacy. A specific legacy is one that can be separated from the body of the estate and pointed out so as to indi- vidualize it, and enable it to be delivered to«the leg- atee as a thing sui generis. Harper vs. Bibb, 47 Ala. 553. A specific legacy, as its term imports, is a bequest of a particular article or articles capable of being designated and identified. Matter of Estate of Woodworth, 31 Gal 601. (Quoting Ram. ore Assets, 467.) The bequest of a particular thing or money specified and distinguished from all other of the same kind, as a house, a piece of plate, money in a purse, stock in the public funds, a security for money, which would immediately vest with the assent of the execu- tor. Graham vs. Graham, Busbee Eq. (N. C.) 207. (Quoting 1 Roper ore Leg., 149.) A specific legacy is a disposition of a certain thing, which may be known and distinguished from any other thing of the same kind, — so that the legatee may say, I have a right to this very thing. Brainerd vs. Cowdrey, 16 Conn. 7. It is specific, when it is a bequest of a specified part of the testator's personal estate which is so distin- guished. Tift vs. Porter, 8 N. Y. 518. 576 ADJUDGED WORDS AND PHRASES. SPECIFIC SPURIOUS The criterion of a specific legacy is, that it is liable to ademption ; that, when the thing bequeathed is once gone, it is lost to the legatee. Coleman vs. Coleman, 1 Hov. Supp. 312. There are two kinds of gifts which by us are reck- oned under the name of specified legacies. First. When a particular chattel is specifically de- scribed, and distinguished from all other things of the same kind. Secondly. Something of a particular species which the executor may satisfy, by delivering something of the same kind, as an horse, &c. Purse vs. Snaplin, 1 Atlc. 417. vide General legacy. 1 Halst. 140 ; 2 Lead. Cases in Eq. 479 ; 41 N. H. 394. Spirituous LIQUORS embrace all those procured by distillation, but not those procured by fermentation. Fritz vs. State, 1 Baxter (Tenn.) 17. The discovery of the art of distillation belongs to the alchemists, who made it in the course of their investigations after what they called the elixir vitae, a liquid the discovery of which was to render man immortal. When by distillation they had procured pure alcohol, judging from its effects, they for a while were deluded by the hope that the grand secret had been discovered, and called it aqua vitae — water of life. Caswell vs. The State, 2 Humph. (Tenn.) 403. Spoliation. The mutilation of instruments by a stranger is termed "spoliation," as contradistinguished from "altera- tion," and is very different in its consequences and effects. Crockett vs. Thomason, 5 Sneed (Tenn.) 344. Spoliation and alteration of instruments (distinguished) vide Alteration, dec. Spurious bill. A spurious bill may be a legitimate impression from the genuine plate, but it must have the signatures of persons not the officers of the bank whence it pur- ports to have issued, or else the names of fictitious persons. A spurious bill, also, may be an illegiti- ADJUDGED WORDS AND PHRASES. 577 STAKE STANDING mate impression from the genuine plate, or an im- pression from a counterfeit plate, but it must have such signatures or names as we have just indicated. Eirby vs. State, 1 Ohio St. 187. Stake (in betting) vide Bet. Stakeholder. A stakeholder is a mere depositary for both parties of the money advanced by them respectively with a naked authority to deliver it over upon the proposed contingency. Fisher vs. Hildreth, 117 Mass. 562. A stakeholder is one who has received the funds of another, or others, in special deposit for a given pur- pose, to be paid to one party, or divided between both or among all the parties, on the happening or not happening of some anticipated event, of which the stakeholder is often the judge ; and such property he is bound to hold separately from his other funds. Oriental Bank vs. Tremont Ins. Co., 4 Met. (Mass.) 10. 48 Me. 107. Standing .by ' may not import actual presence, but implies knowl- edge under such circumstances as to render it the duty of the possessor to communicate. Bichardson vs. Pickering, 41 N. Hamp. 386. The standing by, spoken of in the books, does not mean an actual presence, a meeting face to face of both vendor and purchaser at the final consummation of the bargain. The application to him for informa- tion, is equivalent to bringing him to the treaty ground, and making him witness it ; and if at any stage of the negotiation, he is present, and fails to apprise the purchaser of his right, his silence is treated as an assurance that the vendor has the right, or at least that he himself has none. Morrison vs. Morrison's ividow, 2 Dana (Ky.) 16. The term "standing by " is used in law as implying knowledge under such circumstances as render it the duty of the possessor to communicate it, and it is such knowledge, and not the mere fact of "standing by," that lays the foundation of responsibility. State vs. Holloway, 8 Black/. (Ind.) 47. 6 Ind. 292. 578 ADJUDGED WORDS AND PHRASES. STANDING STATE Standing or plying foe hike (coach.) Those words must mean that the carriage is to be at the disposal of any one of the public who may think fit to hire it. Case vs. Story, L. R. 4 Excli. 323. Staple pkoductions are such productions of the soil as have an estab- lished and defined character in the commerce of the country. Keeran vs. Griffith, 34 Cal. 581. State. A people permanently occupying a fixed territory, bound together by common laws, habits, and customs (or by a constitution,) into one body politic, exercis- ing, through the medium of an organized government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace, and of entering into international re- lations with other communities. Roche vs. Washington, 19 Ind. 56. A state, whatever may be the form of its internal gov- ernment, and by whatever appellation it may be known, is, in the language of Vattel, " a moral per- son, having an understanding and a will, capable of possessing and acquiring rights, and of contracting and fulfilling obligations. Republic of Mexico vs. Be Arangoiz, 5 Duer (N. Y.) 637. A complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. Chrisholm vs. Georgia, 2 Dallas (U. S.J 455. A political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. Texas vs. White, 7 Wallace (U. S.) 721. vide Nation. State debt. A state debt always meant, as it still means, a moral duty on the part of the proper organs of the govern- ment to faithfully administer and call forth so much ADJUDGED WORDS AND PHRASES. 579 STATE STATUTE of the resources of the state as may be necessary to comply with its undertakings. Rodman vs. Munson, 13 Barb. (N. Y.) 192. State of cultivation must be the converse of a state of nature ; and when- ever lands have been wrought with a view to the pro- duction of a crop, they must be considered as becom- ing and continuing in a "state of cultivation" until abandoned for every purpose of agriculture, and designedly permitted to revert to a condition similar to the original one. Johnson vs. Perley, 2 N. Harnp. 57. State pkison means a place of confinement for state prisoners ; that is persons charged with political offences and confined for reasons of state. Martin vs. Martin, 47 iV. Hamp. 52. Statement (in Pa. act) is an immethodical declaration, stating in substance, the time of the contract, the sum, and on what founded, whether a verbal promise, book account, note, bond, single or penal bill, with a certificate of the belief of the plaintiff, or his agent, of what is really due. Dixon vs. Sturgeon, 6 S. & R. (Pa.) 28. Station (military) means a place or department where a military duty is to be discharged, or the synonym of " depot," a place where military stores or supplies are kept, or troops assemble. GoMweWs Case, 19 Wallace (U. S.) 2S8. vide Military station. Statute. It is an act or ordinary legislation, by the appropriate organ of the government ; the provisions of which are to be executed by the executive or judiciary, or by officers subordinate to them. Ealcin vs. Raub, 12 8. & R. (Pa.) 348. Statute and common law (distinguished.) The statute is like a tyrant, where he comes, he makes all void ; but the common law is like a nursing father 680 ADJUDGED WORDS AKD THRASES. STATUTE STOCK makes void only that part where the fault is, and preserves the rest. Maleverer vs. Bedolww, 1 Mod. R. 35. 9 Peters 679; 10 Peters 361; 9 Ala. 710. Statute law is the express written will of the legislature, rendered authentic by certain prescribed forms and solemni- ties. Rohrbacher vs. Jackson, 51 Miss. 773. 15 Barb. 114. Statutes in pari materia. Statutes in pari materia which relate to the same per- son or thing, or to the same class of persons or things. The word par must not be confounded with similes. It is used in opposition to it, as in the ex- pression " magis pares sunt quam similes ;" intimating not likeness merely, but identity. It is a phrase applicable to public statutes or general laws, made at different times and in reference to the same sub- ject. fVater/ord, &c. T. Co. vs. ThePeo., 9 Barb. (N. Y.J 169. ' Steal. The word " steal " has a uniform signification, and in common as well as legal parlance, means the feloni- ous taking and carrying away, of the personal goods of another. State vs. Chambers, 2 Greene (Iowa) 311. Steeility (of soil) ex vi termini imports a ungrateful soil : a sort of natural and constitutional infecundity resisting the ordinary means properly applied to render it other- wise. Warwick vs. Collins, 2 M. & S. 359. Stock. The word stock used in connection with farm or land has a settled meaning, whereby it is restricted to the animals which are used with, supported by, or reared upon it. Graham vs. Davidson, 2 Dev. &Bat. Eq. (N. C.J 171. 51 Wis. 546. . Stock (in a corporation) is the aggregate of the property and effects of the ADJUDGED WORDS AND PHRASES. 581 STOCK STOPPAGE company, which as a principal or capital fund ia em- ployed in, or made subservient to the prosecution of the specific business for which the company was char- tered. In its original form, it is the sum of the moneys, contributed infixed proportions, for the pur- poses of the adventure, by the persons willing to take part in it, but, by speedy conversion, it becomes lands, rights of way, roadbed, &c. The individual contributories are denominated "stockholders." State vs. Hood, 15 Rich. Law (S. G.J 185. It is personal property merely, of a peculiar kind, it is true, but still a personal and marketable commod- ity, having a market value the same as any other commodity, which is the subject of bargain and sale in the market. Hart vs. Lawman, 29 Barb. (N. Y.J 418. Stockholders is the phrase employed to signify members of a cor- poration. State vs. Gilmore, 24 K Hamp. 470. vide Stock (in a corporation.) Stoppage in transitu is the right which arises to an unpaid vendor to re- sume the possession, with which he had parted, of goods sold upon credit, before they come into the possession of a vendee who has become insolvent, bankrupt, or pecuniarily embarassed. Inslee vs. Lane, 57 N. Hamp. 457. The right of stoppage in transitu is nothing more than extension of the right of lien, which by the common law the vendor has upon the goods for the price, orig- inally allowed in equity and subsequently adopted as a rule of law. Rowley vs. Bigelow, 12 Pick. (Mass.) 313. The right of a stoppage in transitu is an extension, by the law merchant, of the lien for the price, which the vendor has before delivery, after a contract of sale. Grout ct al. vs. Hill eta!., 4 Gray (Mass. J 366. The right of stoppage in transitu is an equitable ex- tension, recognized by the courts of common law, of the seller's lien for the price of goods of which the buyer has acquired the property, but not the posses- sion. Potts vs. N. Y. & N. E. R. R. Co., 131 Mass. 457. 582 ADJUDGED WORDS AND PHBASES. STOPPAGE STRANDING The privilege to stop goods in transitu, is a qualified extension in equity of that rule of mutual contract by which, either party may withhold performance, on the other becoming unable to perform his part. Benedict vs. Schaettle, 12 Ohio b't. 520, The right which the vendor, when he sells goods on credit to another, has, of resuming the possession of the goods while they are in the hands of a carrier or middleman, in their transit to the consignee or vendee, and before they arrive into his actual pos- session, or to the destination which has been ap- pointed for them, upon his (the vendee's) becoming bankrupt or insolvent. Hause et al. vs. Judson et al., 4 Dana (Ky.) 10. vide Revindication. 15 Me. 318. Stoking (in policy.) A keeping for safe custody, to be delivered out in the same condition, substantially, as when received ; and applies only where the storing or safekeeping is the sole or principal object of the deposit, and not where it is merely incidental, and the keeping is only for the purpose of consumption. Equitable Ins. Co. vs. Langdon, 6 Wend. (N. Y.) 628. 3 N. T. 127 ; 16 Barb. 129 ; 3 Harr. (K J.) 483 ; 5 Minn. 503. Straddle (among brokers.) It means the double privilege of a " put " and "call:" and secures to the holder the right to de- mand of the seller at a certain price within a certain time a certain number of shares of specified stock, or to require him to take, at the same price within the same time, the same shares of stock. Harris vs. Tumbridge, 83 iV. Y. 95. Stranding (ship) in its fair legal sense implies a settling of the ship ; some resting, or interruption of the voyage, so that the ship may pro tempore be considered as a wreck. M 1 Bougie vs. Royal Exchange Ass. Co., 4 M. & 8. 505. If she is forced ashore, or is driven on a bank, and remains for any time upon the ground, this is a stranding, without reference to the degree of dam- ages she thereby sustains. Harman vs. Vaux, 3 Campb. 431. Whare a vessel takes the ground in the ordinary and ADJUDGED WORDS AND PHKASES. STRANDING STREET usual course of navigation and management in a tide river or harbor, upon the ebbing of the tide, or from natural deficiency of water, so that she may float I again upon the flow of tide or increase of water, such ! an event shall not be considered a stranding. But where the ground is taken under any extraordinary circumstances of time or place, by reason of some unusual or accidental occurrence, such an event shall be considered a stranding. Wells vs. Hopwood, 4 B. & Ad. 34. Stranding is understood to be the striking of a vessel upon a rock, bank, reef or the like. Strong et al. vs. Sun Mutual Ins. Co., 31 N. Y. 106. Ex vi termini stranding means lying on the shore, or something analogous to that. To use a vulgar phrase, which Las been applied to this subject, if it is " touch and go" with the ship, there is no stranding. McDougle vs. Royal Exch. Assurance, 4 Campb. 474. 13 Ohio 66; 8 Bing. 464; 5 Q. B. Div. 542, Stray BEAST is one that has left an inclosure, and wanders at large without its owner, and beyond his control. Sturges vs. Raymond, 27 Conn. 474. Stream of water implies a continuous current in one direction. Murdoch vs. Stickney, 8 Cush. (Mass.) 117. 94 El. 421. Steeet. A street or highway is a portion of land set apart for passage or travel. Ferrin vs. N. Y Central R. R. Co., 36 N. Y. 126. A street is not only a public highway over and upon which all the citizens of the land have a right to pass and repass at pleasure, but it is a public highway of a city, town or village. The State vs. Moriarity, 74 Ind. 104. A street is another name for a road or highway, in a village or city. „ ,„ „ , „ Kelsey vs. King, 33 Hoiv. Pr. R. (N. Y.J 43. The fundamental idea of a street is not only that it is public, but public for all purposes of free and un- 584 ADJUDGED WOKDS AND PHRASES. STREET STRUMPAGE obstructed passage, which is its chief and primary but by no means sole use. City of Quincy vs. Jones et al., 16 III. 244 . "Street" means more than the surface, it means the whole surface and so much of the depth as is or can be used, not unfairly, for the ordinary purposes of a street. It comprises a depth which enables the ur- ban authority to do that which is done in every street, namely, to raise the street and to lay down sewers ; for at the present day, there can be no street in a town without sewers, and also for the purpose of lay- ing down gas and water-pipes. Coverdale vs. Charlton, 4 Q. B. Div. 121. 5Sandf. 312; 27 N. Y. 271. Stkike. A strike is a combination among laborers, those em- ployed by others, to compel an increase of wages, a change in the hours of labor, some change in the mode and 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. D. L. & W. B. B. Co. vs. Bowns, 58 N. Y 582. A strike is properly defined as a simultaneous cessa- tion of work on the part of the workmen. Farrer vs. Close, L. B. 4 Q. B. 612. That it was an indictable offence at common law is established by legal adjudications. People vs. Fisher, 14 Wend. (N. Y.J 15. Struck off (at auction.) Property is understood to be " struck off " or " knocked down " when the auctioneer by the fall of his hammer or by any other audible or visible announcement, sig- nifies to the bidder that he is entitled to the property on paying the amoiint of his bid, according to the terms of the sale. Sherwood vs. Beade, 7 Eill (N. Y.J 439. Stumpage (in Maine.) It means the sum by agreement to be paid an owner for trees standing (or lying) upon his land, the party purchasing being permitted to enter upon the land and to cut down and remove the same away. In other words, it is the price paid for a license to cut. Blood vs. Drummond, 67 Maine 418. ADJUDGED WORDS AND PHRASES. 585 sub-contract subrogation Sub-contract. A contract subordinate to another contract made or intended to be made between the contracting parties on one part, or some of them and a stranger. Coope et al. vs. Eyre et al., 1 H. Bl. 45. Subject. It refers to one who owes obedience to the laws, and is entitled to partake of the elections into public of- fice. Respublica vs. Chapman, 1 Dallas (U. S.J 60. The word subject, (which is from the Latin subjectus, participle of subjicio, to lie under), signifies the thing forming the groundwork. It may contain many par- ticulars which grow out of it, and are germain to it, and which if traced back, will lead the mind to it as the generic head. O'Leary vs. County of Cook, 28 III. 537. Subject matter (of litigation) is the right which one party claims as against the other, and demands the judgment of the court upon. Jacobson vs. Miller, 41 Mich. 93. Submission. That act is called a " submission " by which parties refer any matter in dispute between them to the de- cision of a third person ; the person to whom the reference is made is an arbitrator ; the judgment pronounced by an arbitrator is an award. Garr vs. Gomez, 9 Wend (N. Y.J 661. A submission is a contract between two or more parties, whereby they agree to refer the subject in dispute to others and to be bound by their award, and the sub- mission itself implies an agreement to abide the re- sult, even if no such agreement were expressed. Witcher vs. Witcher, 49 N. Harnp. 180. 7 Coldw. 9. SUBOEN. The word suborn, * * which is a technical word, means the same as unlawfully procure; and conse- quently, unless there be an unlawful procuring, there cannot be a suborning. Bush vs. Railing, Sayer's R. 292. Subrogation is a term borrowed from the civil law. It is denned 586 ADJUDGED WORDS AND PHRASES. SUBEOGATION SUBSCRIBING as the substitution of a new for an old creditor ; or in its more general sense, the act of putting by trans- fer, a person in the place of another, or a thing in the place of another thing. Knighton vs. Curry, 62 Ala. 408, Subrogation is limited to those cases where the re- lation in which the parties stand to each other, is such as to make it the duty of him against whom it is sought, to pay primarily in ease of the party who seeks it, or to render the latter a purchaser on pay- ment ; and hence it will not be enforced, as between those who are equally and jointly bound as co-part- ners, co-obligors, or co-contractors. Bering vs. Earl of Winchelsea, 1 Lead. Cas. in Eg. 153. The familiar doctrine of subrogation is, that when one has been compelled to pay a debt which ought to have been paid by another, he is entitled to a ces- sion of all the remedies which the creditor possessed against that other. McCormick vs. Irwin, 35 Penn. St. 117. It is the act of the law, and the creature of a court of equity, depending not upon contract, but upon the principles of equity and justice. Gatewood vs. Gatewood et al., 1 Matthews ( Va.J 411. 25 Ala. 257 ; 13 Fed. Rep. 58. Subscribe. To subscribe is to set one's hand to a writing. Pridgen vs. Pridgen, 13 Ired. Law ( N. C.J 260, The etymology and definition of the word subscribe, shows that its meaning when applied to the signa- ture to an instrument in writing, is the signature or writing of one's name beneath or at the end of the in- strument. James vs. Pattzn, 6 N. T. 12. 36 Ala. 502; 26 Wend. 357. Subscribed in its habitual use, and^ according to both its popular and literary signification, requires a signature at the end of a printed or written instrument. Coon vs. Rigden, 4 Colorado 282. Subscribing witness. One was present when the instrument was executed and who at that time, at the request or with the as- ADJUDGED WORDS AND PHRASES. 587 SUBSCBIPTION SUFFICIENT sent of the party, subscribed his name to it as a wit- ness of the execution. Tate vs. Lawrence, 11 Heislc. (Tenn.) 510. (Quoting 1 Greenl. on Ev. § 569. ) Subscription and attestation (distinguished) vide Attestation, &c. Substance. That which is essential ; it is used in opposition to form. Douglass vs. Beasley, 40 Ala. 148. (Quoting JBouvier L. Diet. ) Substance (in will.) It is every property a man has. Hogan vs. Jackson, 1 Cowp. 307. Substantial bight. A substantial rigid is something to which, upon proved or conceded facts, a party may lay claim as matter of law — which a court may not legally refuse — and to which it can be seen that the party is entitled within well settled rules of law. The People vs. The JV. Y. C. R. R. Co., 29 N. Y. 430. Substantive felony is that which depends upon itself, and is not depend- ent upon another felony, which is established by the conviction of the one, who committed it, alone. State vs. Richer, 29 Maine 89. Substitute is that which is put in the place of another thing, or used instead of something else. Henderson vs. State, 59 Ala. 91. Succession by law is the title by which a man, on the death of his an- cestor, dying intestate, acquires his estate, whether real or personal, by the right of representation as his next heir. Hunt vs. Hunt, 37 Maine 344. Sufficent distress. The terms "sufficient distress " are not equivalent to sufficient property to satisfy the rent, they refer to property not only sufficient in kind and value for the purpose, but which, in addition, is subject by law to be distrained and sold in satisfaction of the rent in arrears. Hosford vs. Ballard, 39 How. Fr. R. (N. Y.J 167. 588 ADJUDGED WORDS AND PHKASES. sufficient suit Sufficient evidence vide Satisfactory evidence. Suicide. Suicide is self-destruction. It is a self-inflicted vio- lent and summary severance of relations, contrary to the ordinary laws of nature. It is a refusal to obey nature's law, and therefore, in the light of the present state of science, such an unnatural proceeding, that eminent men of great learning and research insist, that suicide is necessarily an insane act, while oth- ers contend that it is only prima facie evidence of in- sanity. Coffey vs. Home Lifelns. Co., 44 How. Pr. R. (N. Y.J 489. Suicide involves the deliberate termination of one's existence, while in the possession and enjoyment of his mental faculties. Self-slaughter by an insane man or a lunatic is not an act of suicide within the meaning of the law. Breasted vs. Farmers' L. & T. Co., 4 Hill (N. Y.J 75. Kfelo de se is he that deliberately puts an end to his own existence, or commits any unlawful, malicious act, the consequence of which is his own death. * * The party must be of years of discretion, and in his senses, else it is no crime. I/ife Ass. of America vs. Waller, 57 Georgia 536. vide Death by Wis own hand. 7 Heisk. 574 ; 3 Jones & Spencer (N. Y. ) 325. Suit. The prosecution, or pursuit, of some claim, demand, or request. It is the prosecution of some demand in a court of justice. Cohen vs. Virginia, G Wheaton (U. S.J 407. It is the pursuit of a right or remedy in form of law. In matter of Jenckes et al., 6 12. I. 22. The legal demand of one's rights. Peeler vs. Norris, 4 Yerg. (Tenn.J 339. (Quoting 3 EL Com. 116.) The term is certainly a very comprehensive one and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice, which the law affords him. * * If a right is litigated between parties in a court of ADJUDGED WORDS AND PHRASES. 589 SUIT STJPEKSEDED justice, the proceeding by which the decision of the court is sought, is a suit, Weston vs. City of Charleston, 2 Peters (U. 8. J 464. The prosecution or presentment of some claim, de- mand or request. The prosecution of some demand in a court of justice. Overseers of the Poor vs. Bcedle, 1 Barb. (N. Y.J 15. In its most extended sense the word " suit " includes not only a civil action, but also a criminal prosecu- tion, and a conviction by a magistrate. United States vs. Moore, 11 Fed. Pep. 251. (Quoting Bouvier L. Diet. Til. Suit.) 48 Tex. 433; 35 Conn. 312; 9 Barb. 300 ; 4 Conn. 322. Suit and action (distinguished.) Usually the words " suits " and " actions " are held as synonymous terms, although the term suit is of more general meaning, and is indefinitely applied to pro- ceedings in law as well as equity, while the word "ac- tion " is applicable to proceedings at law. McPike vs. McPilce, 10 Bradwell (III.) 333. Summons. The name of a writ, commanding the sheriff or other authorized officer to notify a party to appear in court to answer a complaint. Bairdvs.Pridmore, 31 How. Pr. R. (N. Y.J 3G2. (Quoting Bouvier L. DM.) Supernumekaey (military.) An officer whose battalion or corps has been reduced or disbanded, or so arranged in some way, as to leave him for the present, no command. Lilly's Case, 1 Leigh ( Va.J 529. Supersedeas is a writ that lies in a great many cases, and signi- fies, in general, a command to stay some ordinary proceedings at law, on good cause shown, which ought otherwise to proceed. Perteet vs. People, 70 III. 177. (Quoting Jacob's L. Diet. ) Superseded (military officer) means to have one put in the place, which, by the ordinary cause of military promotion, belongs to another. Ex parte Hall, 1 Piclc. (Mass. J 262. 590 ADJUDGED WORDS AND PHRASES. supplemental surety Supplemental bill is merely in continuation of the original suit, and filed for the purpose of filling up such a deficiency, as does not cause a material alteration in the matter in litigation, or a change in the principle parties. Bowie vs. Minter,2 Ala. 411. A supplemental bill is merely an addition to the original bill, in order to supply some defect in its original frame or structure. Ely vs. Wilcox, 26 Wis. 98. A supplemental bill, properly so called, is a bill filed for the purpose of supplying a defect, which has arisen in the progress of the suit, by the happen- ing of some event subsequent to the filing of the original bill ; and is in continuation of the original suit. Sutler vs. Cunningham, 1 Barb. (N. T.j 87. 22 Barb. 166. Suppress. To suppress must mean to prevent, and not to license or sanction the act to be suppressed. Schwushow vs. Chicago, 68 III. 448. Suechabge and FALSITY (distinguished.) 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 debts, and supposes that the item is wholly false or in some part erroneous. Bailey vs. Westcott, 6 Phila. JR. 527. If either party can show an omission, for which an entry of debit or credit ought to be made, such party surcharges, that is, adds to the account, and if any- thing should be inserted which is wrong, he is at liberty to show it, and this is falsification. Phillips vs. Belden, 2 Ediv. Ch. (N. T.J 23. 2 Barb. 592. Surety A surety is one bound that something shall be done, not by himself in the first instance, but by some other hand, and in case of default by this prime agent, that the obligor shall perform the act, or compensate for non-performance. Sherman's Adrnr. vs. Shaver et al., 1 Matt. (Va.)4. ADJUDGED WORDS AND PHRASES. 591 suretyship survey Suretyship is a contract, by which a person obliges himself on behalf of a debtor to a creditor for the payment of the whole, or a part of what is due from such debtor, by way of accession to his obligation. Ringgold Admr. vs. Neiolrirlc, 3 Ark. 108. A lame substitute for a thorough knowledge of hu- man nature. Jones vs. Whitehead, 4 Georgia 402. Surplus earnings is an amount owned by the company, over and above the capital and actual liabilities. People vs. Commissioners, 76 N. Y. 74. 5 Vroom 482. Surprise, in the legal sense of the term, that would defeat a judgment, always involves the idea that there has been active misconduct on the part of the plaintiff amounting to much the same thing as fraud. In pri- vate transactions it is an undue advantage taken of a party under circumstances which mislead, confuse, or disturb the just results of his judgment, and thus expose him to be the victim of the artful, the impor- tunate, and the cunning. Turley vs. Taylor, 6 Baxter (Tenn.) 390. (Quoting 1 Story Eq. Jur. § 251.) Surrender (of an estate) is the yielding up of an estate for life or years to him that hath the immediate reversion or remainder, wherein the particular estate may merge or drown by mutual agreement between them. Scott's Exrs. vs. Scott, 18 Gratt. (Va.) 159. 12 John 361; 8 Wis. 40; 27 How. Pr. R. 451; 30 N. Y. 462. Surrender (of lease) is the yielding up of the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties. Martin vs. Stearns, 52 Iowa 347. Survey, The actual measurement of land, ascertaining the contents by running lines and angles, making the same, and fixing corners and boundaries. Winter et al. vs. U. S., Hemp. (U. S. D. C.) 371. 502 ADJUDGED WORDS AND PHRASES. SURVEY TARE Survey (of a vessel.) A survey is a common public document, looked to both by underwriters and owners, as affording the means of ascertaining upon the very spot, at the very time, the state and condition of the ship, and other property at hazard, Potter vs. Ocean Ins. Co., 3 Sumner (U. 8. C. C.J 43. 8 Bosw. (N. Y.) 68. SURVIVE. To survive means simply to remain in life after the death of another. Hawley vs. Northamton, 8 Mass. 31. Suspension op commercial intercourse vide Interdiction, die. Taking (private property, &c.) The actual seizing or direct taking of specific prop- erty for public use, as distinguished from incidental injury to it when not taken, on the one hand, or the levying of taxes in the form of money or labor, or even of specific goods, on the other, for the public service. In matter of Dorrance Street, 4 R. I. 245. Tales. A tales is a supply of such men as are summoned on the first panel, in order to make up the deficiency. 0' Connor vs. The State, 9 Florida 225. Talesman. A talesman is a juror summoned to fill up a panel, for the trial of a particular cause. Shields vs. Niagara Savings Bank, 3 Hun (N. Y.)479. Tallage. Tallagium or tailagium, coming from the French tailler, to share or cut out a part, and metaphorically is taken when the king or any other hath a share, or part of the value of a man's goods or chattels, or a share or part of the annual revenue of his lands, or puts any charge or burden upon another. People vs. Mayor, dec., of Brooklyn, 9 Barb. (N. Y.J550. Tare and draft (distinguished) vide Draft, die. ADJUDGED WORDS AND PHRASES. 598 TAX TAX Tax. A tax is an import levied by authority of government, upon its citizens or subjects, for the support of the state. City of Camden vs. Allen, 2 Butch. (N. J.) 398. A tax is properly a charge apportioned among the people of a tax district, so that each individual within its boundaries shall pay his proportionate share of the public burdens, and hence a state tax is appor- tioned throughout the state, a county tax throughout the county, and a city tax throughout the city. Turner vs. Althaus, 6 Nebraska 77. The word tax means burden, charge or imposition, put or set upon persons or property for public uses. Mitchell vs. Williams, 27 Ind. 63. Tax is a generic term, and includes under it, first, direct taxes, secondly, duties, imposts, and excises ; thirdly, all other classes of an indirect kind, and not within any of the classifications enumerated under the preceding heads. Binehart vs. Schuyler, 7 III. 539. A tax is an imposition for the supply of the public treasury, and not for the supply of individuals or pri- vate corporations, however benevolent they may be. People vs. McAdams, 82 III. 361. Tax is a charge upon persons or property to raise money for public purposes. It is not founded upon contract ; it does not establish the relation of debtor and creditor between the tax payer and the state ; ;t does not draw interest ; it is not the subject of at- tachment ; and it is not liable to set off. It owes its existence to the action of the legislative power, and does not depend for its validity or enforcement upon the individual assent of the tax payer. It operates in invitum. Perry vs. Washburn, 20 Cal. 350. Taxes are charges imposed by or under the author- ity of the Legislature, upon persons or property sub- ject to its jurisdiction. People vs. McCreery, 34 Cal. 454. As commonly used and understood the word " tax " signifies a sum or rate imposed by governmen- tal authority for a public object or purpose. Longmore vs. Tiernan, 3 Pittsburgh ( Pa. ) 64. ■ride Tallage. 28 Ark. 277; 39 Penn. St. 82; 17 Wall. 326; 21 La. An. 90. 594 ADJUDGED WOKDS AND PHRASES. TAX TAXATION Tax and assessment (distinguished) vide Assessment, &c. Tax fob cokpoeate purposes. We may define this phrase to mean a tax to be ex- pended in a manner which shall promote the general prosperity and welfare of the municipality which levies it. Taylor vs. Thompson, 42 III. 13. 64 111. 432 ; 84 HI. 418. Tax legislation means the mating of laws that are to furnish the measure of every man's duty in support of the pub- lic burdens, and the means of enforcing it. Phila. Association vs. Wood, 39 Penn. St. 82. Taxable peopeety means all property not exempted by law from taxa- tion. Vestry vs. City of Charleston, McMvRin Eg. (S. C.) 144. 13 Eich. Eq. (S. C.) 52. Taxation is a mode of raising revenue for public purposes. Sharpkss vs. Mayor, etc., 21 Perm. St. 169. Taxation is the exercise of the inherent powers of government to compel contributions from persons and property for public purposes, either of a general or local nature. Olive Cemetery Co. vs. City of Phila. 93 Penn. St. 131. Taxation is an incident of sovereignty, and is coex- tensive with that of which it is an incident. The People vs. Commissioners of Taxes, 35 iV. T. 447. Taxation is the absolute conversation of private property to public use. Atty. Gen. vs. City of Eau Claire, 37 Wis. 438. Taxation and eminent domain (distinguished.) Taxation exacts money, or services, from individuals, as and for their respective shares of contribution to the public burthen. Private property taken for public use by right of eminent domain, is taken not as the owner's share of contribution to a public burthen, but as so much beyond his share. * * Taxation operates upon a community or upon a class ADJUDGE© WORDS AND PHKASES. 595 TAXES TEMPORARY of persons in a community and by some rule of appor- tionment. The exercise of the right of eminent do- main operates upon an individual, and without refer- ence to the amount, or value exacted from any other individual, or class of individuals. People vs. Mayor of Brooklyn, 4 N. Y. 424. 8Mkh. 305; 7 Md. 535. Taxes are contributions imposed by government on indi- : viduals for the service of the state. Hibbard vs. Clark, 56 N. Hamp. 159. The word " taxes " means burdens, charges or impo- sitions put or set upon persons or property for pub- lic uses, and this is tho definition which Lord Coke gives to the word talliage. People vs. Mayor of Brooklyn, 9 Barb. (N. Y.J 551. vide Tallage. 42 Texas 608. Team. A team consists of one horse, or two horses, with their harness and the vehicle to which they are cus- tomarily attached for use. Dains vs. Prosser, 32 Barb. (N. Y.J 291. A horse or other animal trained and used for labor and service, when it constitutes the motive power to such labor and service, is in my opinion a team, ac- cording to the popular and statutory meaning of the word. Finnan vs. Mattoy, 1 Jones & Spencer (N. Y.J 391. 9 Hun 44. Team-woek (in exemption act) means, work done by a team as a substantial part of a man's business. Hickok vs. Thayer, 49 Vermont 375. 5 Best & Smith Q. B. 73. Technical and natural import op woeds (distinguished) vide Natural, &c. Telegeaph. The word telegraph is derived from the Greek, and signifies to write afar off or at a distance. O'BeiUy vs. Morse, 15 Hotvard (U. S.J 134. Tempobaey. That which is to last for a limited time, as, a tern- 59C . ADJUDGED WORDS AND PHRASES. TENANCY ' TENANCY porary statute, or one which is limited in its opera- tion for a particular period of time after its enact- ment ; the opposite of perpetual. LeMoyne vs. Quimby, 70 IU. 399. (Quoting Bouvier L. Diet. ) Tenancy. A tenancy exists where one has let real estate to another, to hold of him as landlord. Morrill vs. Mackman, 24 Mick. 284. Tenancy at will is an estate which simply confers a right to the pos- session of the premises leased for such indefinite period as both parties shall determine such posses- sion shall continue. Cunningham vs. Holton, 55 Maine 36. Tenancy at will is one which may be determined at the will or pleasure of either party. Davis vs. Murphy, 126 Mass. 145. Tenancy by the cuetesy is where a man marries a woman, seized at any time during the coverture of an estate of inheritance, in severalty, in coparcenery, or in common, and hath issue by her, born alive, and which might by possi- bility inherit the same estate as heir to the wife, and the wife dies in the lifetime of the husband, he holds the land during his life "by the curtesy of England." Billings vs. Baker, 28 Barb. (N. Y.J 344. Tenant by the courtesie is where a man taketh a wife seized in fee simple, or in fee taile general, or seized as heir in taile especiall, and hath issue by the same wife, male or female, born alive, albeit the issue after dieth or liveth, yet, if the wife dies, the husband shall hold the land during his life, by the law of England. Guion vs. Anderson, 8 Humph. (Tenn.) 302. At common law, four things are necessary to make a tenancy by the curtesy : — Marriage ; the having issue, which, by possibility, may inherit the land ; death of the wife ; seisin of the wife in fact, during the coverture. Gholmondeley vs. Lord Clinton, 2 Joe. & Walk. 196 m vide Curtesy; Estate by the curtesy. 2 MacArthur 63 ; 5 Heisk. 8 ; 24 Miss. 274 ; 43 Miss. 633 ; 56 Barbour 173 ; 1 McLean 478 ; 1 Sumner 271 ; 15 Ark. 483. ADJUDGED WORDS AND PHRASES. 597 tenancy tenant Tenancy in common is where two or more hold possession of lands or ten- ements at the same time, by several and distinct titles. Betts vs. Betts, 4 Abbott's New Cos. (N. Y.J 353. Tenant. A tenant is one who holds or possesses lands or tene- ments by any kind of title, either in fee, for life, for years or at will. Glift vs. White, 12 N. Y. 527. That word means holders, from the word tenes to hold. Stevens vs. Enders,.l Green (N. J.) 280. The word " tenant," when taken in its largest sense, includes every one who holds lands, whatever may be the nature or extent of his interest. Coles vs. Marquand, 2 Hill (N. Y.) 449. One who holds lands by any kind of title, whether for years, for life, or in fee, is tenant. Hosford vs. Ballard, 39 N. Y. 151. ■vide Lease. 13 Cal. 517; 3 Barb. 579. Tenant at sufferance is one who comes into possession by a lawful demise and, after his term is ended, continues wrongfully and holds over. Godfrey et al. vs. Walker et al., 42 Georgia 574. A tenant at sufferance is described to be one who comes into possession of lands or tenements by a law- ful title, but keeps them afterwards without any title at all. Pleasants vs. Claghorn, 2 Miles (Pa.) 304. Tenant at sufferance is one that comes into posses- sion by lawful title, but holdeth over by wrong. Kellogg vs. Kellogg, 6 Barb. (N. Y.J 130. Any one who continues in possession, without agree- ment, after a particular estate ended, is a tenant at sufferance. Livingston vs. Tanner, 12 Barb. (N. Y.)484. (Quoting Orabb's Law of Real Prop. § 1597. ) 12 Mich. 34; 48 111. 26. Tenant at will. If the tenant be placed upon the land, without any terms prescribed, or rent reserved, and as a mere oc- cupier, he is strictly a tenant at will. Stoltz vs. Kretschmar, 24 Wis. 284. 698 ADJUDGED WORDS AND PHRASES. tenant tender Tenant in fee simple is lie who hath lands and tenements, to hold to him and his heirs forever. Supplement, 8 Mass. 551. 8 Barb. 137. Ienent IN POSSESSION is simply one who holds the land in possession or oc- cupancy. People vs. Ambrecht', 11 Abbott's Pr. B. (N. Y.J 101. Tenant's fixtures, in its strict legal definition, is understood to signify those things which are fixed to the freehold of the de- mised premises, but which nevertheless the tenant is allowed to disannex and take away, provided he sea- sonably exert his right to do so. Wall et al. vs. Hinds, 4 Gray (Mass.) 270. Tenants in common are such as hold by several and distinct titles, but by unity of possession ; because none knoweth his own severalty, and therefore they all occupy promiscu- ously. Silloway vs. Brown, 12 AUen (Mass.) 36. (Quoting 2 Bl. Com. 191.) Tenants in common are such as hold lands and tene- ments by any kind of title, either in fee, for life, for years, or at will. Lillianslcyoldt vs. Goss, 2 Utah 297. (Quoting Bouvier L. Diet.) 5 Conn. 365 ; 8 Minn. 431 ; 4 Hun 200. Tendek. It imports, not merely the readiness and ability to pay the money, or to deliver over the deed, or the prop- erty, at the time and place mentioned in the contract, but also the actual production of the thing to be paid or delivered over, and an offer of it to the person to whom the tender is to be made. Holmes vs. Holmes, 12 Barb. (N. Y.J 144. Tender (of money.) "When a strict tender of money is required, it must be an unconditional offer of the full amount due, leaving it only at the will of the other to accept it. Irvin vs. Gregory, 13 Gray (Mass. J 218. ADJUDGED WORDS AND PHRASES. 599 TENDER TENOR A money tender means an offer to pay in specie, and in the description of coin made current by the act of Holmes vs. Holmes, 12 Barb. (N. Y.) 144. Tender is a production and manual offer of the money, and regularly it should be counted down. Blakeman vs. Pooler, 15 Wend. (N. Y.) 638. Tender (of performance of agreement.) The word "tender," as used in such a connection, only means a readiness and willingness, accompanied with an ability, on the part of one of the parties, to do the acts which the agreement requires him to per- form, provided the other will concurrently do the things which he is required by it to do, and a notice by the former to the latter of such readiness. Cook vs. Doggett, 2 Allen (Mass.) 441. 26 Conn. 119 ; 44 Ind. 9. Tenement signifies anything that may be holden, provided it be of a permanent nature, whether it be of a substantial and sensible, or of an unsubstantial, ideal kind. Mitchell vs. Warner, 5 Conn. 518. Tenement is a large word, to pass not only lands and other inheritances which are holden but also offices, rents, commons, profits apprender out of lands and the like, wherein a man hath any frank-tenement, and whereof he is seized ut de libro tenemento. The Mayor, dec, of New York vs. Mabie, 13 K Y. 159. (Quoting 1 Co. Zitt. 219.) Anything is a tenement which is a profit out of land. Tlie King vs. Inhabitants of Tolpuddle, 4 T. R. 675. 10 Paige Ch. 156 ; 17 Pick. 105 ; 53 How. Pr. R. 315 ; 23 Wend. 584 ; 73 111. 409. Tenemental-land, means that part of a manor which is granted to ten- ants, as distinguished from the demesne lands. Musgrave vs. Sherivood, 54 How. Pr. R. (N. Y.J 358. Tenok (in pi.) The word " tenor " has a technical meaning and re- quires an exact copy. People vs. Warner, 5 Wend. (N. Y.) 273. 14 Ohio St. 61 ; 1 Head. 140. 600 ADJUDGED WORDS AND PHRASES. TENOR TEEM Tenor and purport (distinguished) vide Purport, dec. Tenure. The word tenure is one of very extensive signification ; it may import a mere possession, and may include every holding of an inheritance. Hickman vs. Lippincott, 5 Dutch. (N. J.) 59. Tenure in burgage is, where an ancient borough is, of which the King is lord, of whom the tenants hold by certain rent, and it is but a tenure in socage. Blair vs. Ridgely, 41 Mo. 175. Term. The term is that period which is granted for the lessee or tenant to occupy and have possession of the premises. Young vs. DaJce, 5 JSf. Y. 467. The estate of a lessee, for years is called a term, terminus, because its duration is limited and deter- mined ; for every such estate must have a certain beginning and a certain end. Austin vs. Huntsville Coal, dec, Co., 72 Mo. 542. (Quoting Taylor L. & Ten. (6 Ed. 11.) Term when used in respect to tenancies, signifies time, duration, and it means not only the limitation of the estate granted as to time ; e. g., for life, for years, &c, as may be specified in the lease ; but it signifies the estate also, and interest that passes by the lease. Hurd vs. Whitsett, 4 Colorado 85. The Word " Term " may signify the Time as well as the Interest : For then it becomes a Question of Construction, which Sense the Word ought to be un- derstood in. Wright vs. Cartwright, 1 Burr. 282. Term and terms (distinguished.) " Term " means a limited estate ; and " terms " the limitation in the use of that estate arising out of the covenants and conditions thereto annexed. Hurd vs. Whitsett, 4 Colorado 90. Term op office. The term of office is a fixed period prescribed for holding the office. People vs. Brundage, 78 K Y. 407 • ADJUDGED WORDS AND PHRASES. 601 teems teste Teems cash necessarily import nothing more than that the arti- cles purchased are to be paid for in money, and are not to be paid for in other articles. George vs. Joy, 19 N. Hamp. 547. Teems of courts are those times or seasons of the year, which are set apart for the despatch of business in the superior courts of common law. Horton vs. Miller, 38 Perm. St. 271. Teeeitoeial jdeisdiction (of a judge.) The tract of land or district within which a judge or magistrate has jurisdiction is called his territory, and his power in relation to his territory is called his territorial jurisdiction. Phillips vs. Thralls, 26 Kansas 781. Testament is the result and effect in point of law, of what is the will. Alsop's Appeal, 9 Penn. St. 382. A testament in strictness concerns personal property merely. Conklin vs. Egertoris Admr., 21 Wend. (N. Y.J 436. vide Will. 51 Penn. St. 132. Testamentaey CAPACITY. It is essential that the testator have sufficient ca- pacity to comprehend perfectly the condition of his property, his relations to the persons who were, or should, or might have been objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language of the cases, have sufficient active memory to collect in his mind, with- out prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them. Belafieldvs. Parish, 25 N. Y. 29. vide Sound mind, &c. 3 Redf . Surr. B. 198. Teste (of a writ) means the date or time at which it is witnessed or issued. Gwin vs. Latimer, 4 Yerg. (Term.) 27. 602 ADJUDGED WORDS AND PHRASES. TESTIMONY THEFT Testimony and evidence (distinguished.) Testimony is not synonymous with evidence. , It is but a species, a class, or kind of evidence. Testi- mony is the evidence given by witnesses. Evidence is whatever may be given to the jury as tending to prove a case. It includes the testimony of witnesses, documents, admissions of parties, &c. Lindley vs. Daldn, 13 Ind. 389. That and this (distinguished) vide This and that (distinguished.) The is an article which particularizes the subject of which we speak. Sharff vs. Com., 2 Binn. (Pa.) 519. Theatre is the house in which dramatic compositions are spoken or recited, by persons called actors. Rowland vs. Kleber, 1 Pittsburgh M. (Pa.) 11. Theft is the fraudulent taking of personal property from another with intent to appropriate the same to the taker's own. use. Skipworth et al. vs. The State, 8 Texas App. 138. A popular name for larceny. People vs. Donahue, 84 iV". Y. 442. (Quoting Bouvier L. Diet.) Theft is the fraudulent taking of property, with in- tent to deprive the owner of the value of the same, and to appropriate it to the use of the person taking. The taking must be a fraud iipon the rights of another, and that must be an actual and intended fraud, and not a constructive or legal one. The crime of theft is not constituted by the taking, nor the fraudulent taking, but it also includes the purpose and intent to ' defraud. There must be an intentional taking with- out the consent of the owner, an intentional fraud, and an intentional appropriation, or the crime of theft is incomplete. Mullins vs. The State, 37 Texas 338. Theft bote is where the party robbed not only knows the felon, but also takes his goods again, or other amends, upon agreement not to prosecute. This is frequently ADJUDGED WORDS AND PHRASES. 603 THEN THINGS called compounding a felony, and formerly was held to make a man accessory ; but it is now punished only with fine and imprisonment. Forshner vs. Whitcomb, 44 N. Hamp. 16. 16 Mass. 93. (Quoting 4 Bl. Com. 133.) Then. The word " then " is an adverb of time, and usually relates to some antecedent period or event. * * Sometimes it indicates an order or succession of events. Cresson's Estate, 8 Phila. R. 208. Then, in the grammatical sense, is an adverb of time, but in limitations of estates, and framing contingen- cies, it is a word of reference, and relates to the de- termination of the first limitation in the estate where the contingency arises. Beauclerlc vs. Dormer, 2 Atk. 311. Then and theee. The words then and there, as used in an indictment, are words of reference ; and when time and place have once been named with certainty, it is sufficient to refer to them afterwards by these words : and they will have the same effect as if the time and place were actually repeated. The State vs. Colton, 24 K Hamp. 146. Therefore he beings his suit (in narr.) or according to the Norman orthography, suite, were affixed at a time when a suitor's witnesses were his followers, and equally as prompt to maintain his quarrel in the forum as in the field. Com. vs. Jolliffe, 7 Watts (Pa.) 585. Things personal are goods, money, and all other moveables ; which may attend the owner's person wherever he thinks proper to go. People vs. The Mayor, &c.,of BMyn., 9 Barb. (N. Y.J546. r J (Quoting 2 Bl. Com. 2, 16.) Things real are such as are permanent, fixed and immovable, and which cannot be carried out of their place, as lands and tenements. People vs. The Mayor, &c, of BMyn., 9 Barb. (N. Y) 546. r a (Quoting 2 Bl. Com. 2, 16.) 604 ADJUDGED WORDS AND PHRASES. THIS TITLE This and that (distinguished.) When they refer to different things before expressed, " this " refers to the thing last mentioned, and " that " to the thing first mentioned. Bussell vs. Kennedy, 66 Penn. St. 251. TlMBEB means the body, stem or trunk of a tree, or the larger pieces or sticks of wood which enter into the frame- work of a building or other structure, excluding the plank, boards, shingles or lath which may be used to complete the structure. Bablca vs. Eldred, 41 Wis, 192. Time of memory hath been long ago ascertained by law to commence from the beginning of the reign of Richard the first. Jclcerman vs. Shelp, 3 Halst. (N.J.)130. (Quoting 2 SI. Com. 31.) The time of legal memory, that is, since the return of Bichard the First from the Holy Land. Burdett vs. Abbott, 14 East 139. The period when Richard I. departed on his crusade ; from which date the time of legal memory is held to commence. 0' Connor vs. Cook, 1 Hov. Supp. 638. 8 Barb. 151 Tippling house is a place of public resort, where spirituous, fer- mented, or other intoxicating liquors are sold and drank in small quantities, without having a license therefor. City of Emporia vs. Volmer, 12 Kansas 632. Title. A title is a lawful cause or ground for possessing that which is ours. Merrill vs. Agricultural Ins. Co., 73 N. Y. 456. Titulus est justa causa possidendi id quod nostrum est ; or it is the means whereby the owner of lands has the just possession of his property. Arrington vs. Liscom, 34 Cal. 385. It signifies the means whereby a man comes to his lands or tenements. * * Title is generally ap- plied to signify the right to land and real effects. It ADJUDGED WORDS AND PHKASES. 605 TITLE TOLL is the right of possession or of property in lands, as distinguished from the actual possession. Campfield vs. Johnson, 1 Zah (N. J.) 85. 83 HI. 458 ; 3 Tex. 468 ; 4 Conn. 551. Title (in contract for good and sufficient deed in law to vest one with title) means the legal estate in fee, free and clear of all legal claims, liens, and incumbrances whatever. It is the ownership of land, the dominum directum et absolutum, without any rightful participation by any other person in any part of it. Jones vs. Gardner, 10 John. (N. Y.) 266. 2Greenl. (Me.) 26. Title unincumbeked. The words " a good unincumbered title " import an estate without any prior claim, to continue forever, and having no qualification or condition in regard to its continuance. Gillespie vs. Broas, 23 Barb. (N. Y) 375. To. vide From and to. To wit. vide Videlicet. Token. A document or sign of the existence of a fact. Jones vs. State, 50 Ind. 476. Toll is a Saxon word, originally signifying a payment in towns, markets and fairs, for goods and cattle bought and sold there. It is defined in the Institutes to be a reasonable sum of money due to the owner of the fair or market, upon sale of things tollable, within the same. Penn. Coal Co. vs. D. & H. C. Co., 29 Barb. (N. Y.) 592. A tribute or custom paid for passage, or a duty im- posed on goods and passengers travelling public roads, bridges, etc.; a tribute for passage ; a reason- able sum due to the lord of a fair for things sold there which are tollable. Penn. Coal Co. vs. D.&H.C. Co., 1 Keyes (N. Y.) 79. Tolls are defined to be dues receivable for the lib- 600 ADJUDGED WORDS ASD PHRASES. TOLL TONNAGE erty of passing over highways public or private; they are payments connected with the passing over. S. Y. li'y, &c. vs. Or. N. R'y, 22 Eng. L. & Eq. 536. It is a tribute or custom paid for passage, not for carriage — always something taken for a liberty or privilege, not for a service. Penn. R. R. Co. vs. Sly, 65 Penn. St. 210. 105 Eng. C. L. 60. Toll and duty (distinguished) vide Duty, dtc. ToLL-THOEOUGH is a sum demanded for a passage through an high- way ; or for a passage over a ferry, bridge &c; or for goods which pass by such a port in a river. County Comrs. vs. Chandler, 6 Otto (U. S.) 208. It is taken for passing over the highway, in consid- eration of repair or other benefit done by the owner of the toll, but without any interest or claim in the soil. King vs. Nicholson, 12 East 340. 12 Ct. of CI. 58. TOLL-TEAVEESE consists of a toll granted and claimed for going over the land of the grantee. Markets Co. vs. Railway Co. L. R. 7 C. P. 586. 12 East 340. Ton. A ton in measurement is forty cubic feet. A ton, in weight, is 2,240 pounds. , Roberts vs. Opdylce, 40 N. T. 262. Tonnage means the number of tons burden the ship or vessel will carry, as estimated and ascertained by the offi- cial admeasurement and computation prescribed by the public authority. State Tonnage Tax Cases, 12 Wallace (U. S.) 224. Tonnage means the contents of the vessel expressed in tons, each of one hundred cubical feet. Transportation Co. vs. Wheeling, 9 Otto ( U. S.J 284. Tonnage (tonnagium) is a custom or impost paid to the king for merchandise carried out or brought in ships, or such like vessels, according to a certain rate upon every ton. The vital principal of such a ADJUDGED WORDS AND PHRASES. C07 TONNAGE TOTAL tax or duty is that it is imposed, whatever the sub- ject, solely according to the rule of weight, either as to the capacity to carry, or the actual weight of the thing itself. Inman Steamship Co. vs. Tinker, 4 Otto (U. S.J 243. 103 Mass. 405; 3 Grant's Cases (Pa.) 131. Tonnage tax is a duty levied on a vessel according to the tonnage or capacity, without reference to where her owner resides. It is a tax upon the boat as an instrument of navigation, and not a tax upon the property of a citizen of the state. The North Cape, 6 BisseU (U. 8. C. C.J 509. Tools. Those implements which are commonly used by the hand of one man in some manual labor necessary for his subsistance. Boston Belting Co. vs. Ivens & Co. 28 La. Ann. 696. (Quoting Bouvier L. Dust. ) TOET. ■To constitute tort, two things must concur — actual or legal damage to the plaintiff, and a wrongful act committed by the defendant. Wright vs. C. & N. W. R. R. Co., 7 Bradiu./Ill.J 445. Ordinarily, the essence of a tort consists in the vio- lation of some duty to an individual, which duty is a thing different from the mere contract obligation. Rich vs. N. Y C. & H. R. R. Co., 87 N. Y 390. Total failube of evidence. Judicially speaking, the total failure of evidence, does not mean only, the utter absense of all evidence ; but it means also a failure to offer proof, either positive or inferential to establish one or more of the many facts, the establishment of all of which is indispen- sible to the finding of the issue for the plaintiff. Cole vs. Hebb, 7 Gill & J. (Md.) 28. Total loss. In a literal sense, they mean complete physical anni- hilation and destruction of the thing ; in another and more literal sense, it signifies a loss total to the owner, as where the goods are seized and taken away, or are rendered worthless for the uses or purposes for which they were designed. Waller stein vs. Columbian Ins. Co., 3 Rob. (N. Y.J 536. COS ADJUDGED WORDS AND PHRASES. TOTAL TOWN Total loss (in marine ins.) Total loss is of two kinds. First, it signifies the total destruction of the thing insured, and secondly, such damage to the thing insured, though it may spe- cifically remain, as renders it of little or no value to the owner. Liver more vs. Newburyport Ins. Co., 1 Mass. 279. A total loss is of two sorts : one, where in fact the whole of the property perishes ; the other, where the property exists but the voyage is lost, or the expence of pursuing it exceeds the benefits arising from it. Mitchell vs. Edie, 1 T. R. 615. vide Actual total loss. Towage service (of a vessel) is one which is rendered for the mere purpose of ex- pediting her voyage, without reference to any cir- cumstance of danger. McConnochie vs. Kerr, 9 Fed. Rep. 53. A towage service may be described as the employ- ment of one vessel to expedite the voyage of another, when nothing more is required than the accelerating her progress. The Princess Alice, 3 TV. Robinson 139. Mere towage service is confined to vessels that have received no injury or damage, and that mere towage reward is payable in those cases only where the ves- sel receiving the service is in the same condition she would ordinarily be in without having incurred any damage or accident. The Reward, 1 W. Robinson, 177. 9 Fed. Kep. 416. Town. The word "town" philologically considered, is a change in the orthography and pronunciation of the Anglo-Saxon word "tun," from the verb "tyan," meaning to " enclose," and " tun," therefore, means an enclosure. It was used to denote a garden en- closed by a hedge, or a collection of houses en- closed by a wall. Its general and customary usage in England, as denoting a collection of houses or hamlet between a village or city, or its stricter legal or civil meaning as denoting a civil corporation of larger territory, which might include a village or city, are somewhat foreign to the use of the word, and the ADJUDGED WOKDS AND PHRASES. 609 TOWN TRADE civil and territorial subdivision or organization which it is used to signify, in this country. Its first use in this country was to define the original or primary civil or governmental organizations of the early col- onists of New England. Raihuay vs. Oconto, 50 Wis. 193. A town is a civil and political corporation established for municipal purposes. Milford vs. Godfrey, 1 Pick. (Mass.) 98. The term " town" is generic, comprehending cities. Flinn vs. State, 24 Ind. 287. Under the name of a town or village, boroughs, and it is said, cities are contained, for every borough or city is a town. Van Riper vs. Parsons, 11 Vroom (N. J.) 4. (Quoting Tomlin's L. Diet. ) Town is the generic term used in this country, as em- bracing all kinds of municipal corporations which have the right to make police rules or regulations, controlling all persons and things within certain specific limits. In this sense of the word, a city is a town. State vs. Glennon, 3 R. I. 278. The word town has, by the alteration of times and language, become a generical term, comprehending under it the several species of cities, boroughs, &c. Bd. of Comrs. vs. Mc Gurrin, 6 Daly Com. PL (N. Y.J 355. 64 N. H. 53. (Quoting 1 Bl. Com. 114.) Town-house. A house or building in which is transacted the public business of a town. French vs. Inhabitants of Quincy, 3 Allen (Mass.), 11. Trade. The word " trade," in its broadest signification in- cludes not only the business of exchanging commodi- ties by barter, but the business of buying and selling for money, or commerce and traffic generally. May vs. Sloan, 11 Otto (U. S.) 237. The business or occupation which a person has learned, and which he carries on for procuring sub- sistence, or for profit — particularly a mechanical employment, distinguished from the liberal arts and learned professions, and from agriculture. Whitcomb vs. Reid, 31 Miss. 5G9. CIO ADJUDGED WORDS AND PHRASES. TRADE TRADER Trade and cojimekce (distinguished) vide Commerce, &c. Trade-maek. The word " trade-mark " is the designation of marks or symbols as and when applied to a vendible com- modity. L. Cloth Co. vs. Am. L. Cloth Co., 4 De G. J. & 8. 142. A trade-mark may consist of a name, or a device, or a peculiar arrangement 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. Gilman vs. Hunnewell, 122 Mass. 147. A trade-mark is the name, symbol, figure, letter, form or device adopted and used by a manufacturer or merchant, in order to designate the goods that he manufactures or sells, and distinguish them from those manufactured or sold by another, to the end that they may be known in the market as his, and thus enable him to secure such profits as result from a reputation for superior skill, industry or enterprise. Newman vs. Alvord, 51 N. Y. 193. (Quoting Upton's Trade-Marks 9. ) Broadly defined, a trade-mark is a mark by which the wares of the owner are known in trade. Its ob- ject is two-fold : First, to protect the party using it from competition with inferior articles ; and, second, to protect the public from imposition. Shaw Stocking Co. vs. Mack, 12 Fed. Rep. 710. Symbols or devises used by a manufacturer or mer- chant to distinguish the products, manufactures or merchandise which he produces, manufactures, or sells, from that of others, are called and known by the name of trade-marks. Manufacturing Co. vs. Trainer, 11 Otto (U. S.) 56. 64 ni. 456 ; 45 Cal. 478 ; 97 Mass. 297 ; 61 N. Y. 229 ; 2 Sawyer 86 ; 1 Mo. App. 310 ; 8 Daly (N. Y.) 4. Trader A trader is a person who seeks his livelihood by buying and selling. King vs. Turner, 4 B. & A. 514. One who makes it his business to buy merchandise, ADJUDGED WORDS AXD PHRASES. 611 TRANSACTIONS TRANSITORY or goods and chattels, and to sell the same for the purpose of making a profit. Re Smith, 2 Loioell (U. S. D. C.) 70. (Quoting Bouvkr L. Bid. ) Transactions. Whatever may be done by one person which affects another's rights, and out of which a cause of action may arise. Scarborough vs. Smith, 18 Kansas 406. Transcript is a copy of an original record. Dearborn vs. Patton, 4 Oregon 60. (Quoting Burrill's L. Diet.) Transfer. The term transfer means to convey or pass over the right of one person to another. Innerarity vs. Mims, 1 Ala. 669. The act by which the owner of a thing delivers it to another person, with the intent of passing the right he had in it to the latter. Robertson vs. Wilcox, 36 Conn. 429. (Quoting Bovtvier L. Diet. ) Transferable is a word of the widest import, and includes every means by which the property may be passed from one person to another. Gather cole vs. Smith, 17 Ch. Div. 9. Transient (person) does not exactly mean a person on a journey from one known place to another, but rather a wanderer ever on the tramp. Middlebury vs. Waltliam, 6 Vermont 203. Transient foreigner is one who visits the country, without the intention of remaining. Yates vs. lams, 10 Texas 170. Transitory and local actions (distinguished.) Actions are deemed transitory, where the transac- tions on which they are founded, might have taken place any where ; but are local, where their cause is in its nature necessarily local. Livingston vs. Jefferson 1 Brockenb. ( U. S. C. G.) 209. 1 Abb. Pr. R. N. S, 295. 612 ADJUDGED WOKDS AND PHKASES. transportation trespass Teanspobtation vide Commerce. Teatelling means a going from one place to another. White vs. Beazky, 1 B. & A. 170. Teeason is a breach of allegiance, and can be committed by him only who owes allegiance either perpetual or temporary. United States vs. Wiltberger, 5 Wheaton ( TJ. S.) 97. Teeasuee teove, though commonly defined as gold and silver hidden in the ground, may, in our commercial day, be taken to include the paper representatives of gold and sil- ver, especially when they are found hidden with both of these precious metals. Huthmacher vs. Harris's Adm., 38 Penn. St. 499. Treasure trove is properly money supposed to have been hidden by some owner since deceased, the secret of the deposit having perished, and therefore belongs to the Crown. Regina vs. Thurborn, 1 Den. Cr. C. 390. Teeaty. A treaty is, in its nature, a compact between two na- tions, not a legislative act. Com. vs. Hawes, 13 Bush. (Ky.) 702. Teespass is an entry on another's ground without lawful authority, and doing some damage however incon- siderable to his real property. Hulich vs. Scovil, 9 III. 170. It refers to injuries which are immediate and not consequential. Roundtree vs. Brantley, 34 Ala. 554. The criterion of trespass, is force directly applied. Smith vs. Rutherford, 2 S. & R. (Pa.) 358. Force (in trespass), is not merely actual force, but also force implied by law ; and as the law always implies force where the injury is immediate to the person or property of another, it is obvious that the substantial distinction is between direct and imme- ADJUDGED WORDS AND PHRASES. 613 TRIAL TRIAL diate injuries on the one hand and those mediate or consequential on the other. Jordan vs. Wyatt, 4 Gratt. (Va.) 153. Trial. The word " trial " has in the law and in legal lan- guage, a general and restricted meaning. In its gen- eral use, it means the investigation and decision of a matter in issue between parties before a competent tribunal. Jenks vs. State, 39 Ind. 9. Trial is the examination before a competent tribu- nal, according to the laws of the land, of the fact put in issue in the cause, for the purpose of determining such issue. Darden vs. Lines, 2 Florida 573. Trial is the examination of the matter of fact in issue in a cause. Meyer vs. Norton, 9 Fed. Eep. 437. The examination and decision of an issue of fact by the jury under the supervision of the court. The State vs. Spores, 4 Oregon 199. (Quoting JBurrill's L. Diet. ) A trial is the examination before a competent tribu- nal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of deter- mining such issue. When a court hears and deter- mines any issue of fact or of law for the purpose of determining the rights of the parties, it may be con- sidered a trial, Tregambo vs. Comanche 31. & M. Co., 57 Cal. 505. A trial is the judicial examination of the issues be- tween the parties whether they be issues of law or fact. State vs. Brown, 63 Mo. 444, A trial is a judicial examination of the issiies, whether of law or fact, and not a review of such an examina- tion upon an appeal from the decision. Eldridge vs. Strews, 7 Jones & Spencer (N. $.} 300. 3 Tex. App. 433 ; 54 Wis. 545 ; 40 Ind. 179. Trial and final hearing (distinguished.) The word " trial " has reference to an action at law, and the words "final hearing" to a suit in equity; and by " the final hearing or trial of the suit " is meant 614 ADJUDGED WORDS AND PHRASES. TBIAL TETJST a hearing or trial upon the merits, such as results in a final judgment in an action at law, and a final de- cree in a suit in equity. Home Life Ins. Co. vs. Dunn, 20 Ohio St. 181. Trial appropriately designates a trial by jury of an issue which will determine the facts in an action at law, and final hearing, in contradistinction to hear- ings upon interlocutory matters, the hearing of the cause upon its merits by a judge sitting in equity. Minnett vs. M. & St. P. B'y Co., 3 Dill. ( U.S. C. C.J 464. 40Ind. 179 ; 56 N. H. 186. Trial by a juby, from time immemorial has meant a trial by a tribunal of twelve men, acting only upon a unanimous deter- mination. Kleinschmidt vs. Dunphy, 1 Montana 131. " Trial by jury " is a trial by twelve competent, im- partial men of the body of the county. State vs. Wilson, 48 N. Hamp. 398. What is meant by the expression " trial by jury " ? Does it mean a common law jury of twelve men ? * * I think there can be no doubt on this point. If the legislature may reduce a jury in number to six, they have the same right to reduce the number to one, and thus make a jury of one a compliance with the requirement of the constitution. The People vs. Kennedy, 2 Parker Cr. B. (N. Y.) 317. Trial de novo does not mean a trial on appeal and on nothing but the record to correct error, but does mean a trial of the entire cause anew, hearing evidence, whether addi- tional or not. Schultz vs. Lempert, 55 Texas 277. Trover, action op. In form, It is a fiction : In Substance, a Remedy to recover the Value of Personal Chattels wrongfully con- verted by another to his own Use. Cooper vs. Chitty, 1 Burr. 31. 1 W. Bl. 68. Trust. A confidence reposed in some other, not issuing out of the land, but as a thing collateral, annexed in privity to the estate of the land", and to the person ADJUDGED WORDS AND PHRASES. 616 TRUST TRUST touching the land, for which cestui que use has no remedy but by subpoena in chancery. Farmers Loan & T. Co. vs. Carroll, 5 Barb. (N. T.J 643. . An obligation arising out of a confidence reposed in the trustee, or him who has the legal title to prop- erty conveyed to him, that he will faithfully apply the property according to the confidence reposed ; in other words according to the wishes of the creator of the trust. Beers vs. Lyon, 21 Conn. 613. Trust is a confidence which one man reposes in an- other, and confidence is a trust. Coates' Appeal, 2 Penn. St. 133. A trust, in the most enlarged sense in which that term is used in English jurisprudence, may be defined to be an equitable right, title, or interest in property, real or personal, distinct from the legal ownership thereof. In other words, the legal owner holds the direct and absolute dominion over the property, in the view of the law ; but the income, profits, or bene- fits thereof in his hands, being wholly or in part to others. Ex parte Conway et al., 4 Ark. 381. (Quoting Story's Eq. Juris. §964.) A trust in strict technical sense is an obligation aris- ing out of confidence reposed to apply property ac- cording to such confidence. It may be express or implied ; it is implied when deducible from the trans- action as matter of intent, or when the law attaches to such transaction the incidents of a trust. Johnes vs. Wadsworth, 11 Phila. B. 229. A trust is an estate acquired upon confidence that the trustee, who holds the legal title, will dispose of the land according to the intention of the cestui que use, and suffer him to take the profits. Bunnels vs. Jaclcson, 11 How. (Miss.) 360. Trust is an equitable right, title or interest in prop- erty, real or personal, distinct from its legal owner- ship ; or it is a personal obligation for paying, de- livering or performing anything, where the person trusting has no real right or security, for by that act he confides altogether to the faithfulness ot those in- trusted. Person vs. Warren, 14 Barb. (N. 7.) 493. (Quoting Bouvier L. Diet. ) 616 ADJUDGED WORDS AND PHBASES. TRUST TRUST Trust is a confidence reposed in some other, annexed in privity to the estate of land, and to the person, touching the land, for which cestui que trust has no remedy but by subpoena in chancery. Johnson vs. Deloney, 35 Texas 51. 88 111 493 ; 5 Dana 199 ; 1 How. (Miss.) 360 ; 8 W. Va. 107 ; 1 W. BL 180 ; 57 Cal. 381 ; 5 Q. B. Div. 530 ; 10 Hun 484. Tkust ESTATE. A right in equity to take the rents and profits of lands, whereof the legal estate is vested in some other person ; to compel the person thus seized of the legal estate, who is called the trustee, to execute such conveyances of the land as the person entitled to the profits, who is called the cestui que trust, shall direct, and to defend the title to the land. Farmers Loan & T. Co. vs. Carroll, 5 Barb. (N. Y.J 643. vide Estate held in trust. Trust executed and executory (distinguished.) Executed trusts are when the trusts are directly and wholly declared by the testator, or to attach imme- diately on the lands under the will itself ; and execu- tory trusts being those which are only directory or prescribe the intended limitations of some future conveyance or settlement, directed by the will to be made for effectuating them. Carradine vs. Carradine, 33 Miss. 729. A trust created by deed or will, so clear and certain in all its terms and limitations that the trustee has nothing to do but to carry out all the provisions of the instrument according to its letter, is called an executed trust. * * On the other hand, an execu- tory trust is where an estate is conveyed to the trus- tee upon trust, to be by him settled or conveyed upon other trusts in certain contingencies or upon other events, and these other trusts are imperfectly stated, or mere outlines of them are stated, to be afterwards drawn out in a formal manner, and are to be carried into effect according to the final form which the details and limitations shall take under the directions thus given. Gushing vs. Blake, 2 Steiv. Eq. (N. J.) 403. A trust executed is when the limitations of the equi- table interest are complete and final ; in the execu- ADJUDGED WORDS AND PHRASES. 617 TRUSTS TURNPIKE-ROAD tory trust, the limitations of the equitable interest are not intended to be complete and final, but merely to serve as minutes and instructions for per- fecting the settlement at some future period. Dennison vs. Goehring, 7 Penn. St. 177. (Quoting Lewin on Trusts, 4.) Teusts express and implied (distinguished) ■vide Express and implied trusts, &c. Trustee. A trustee is a person to whom some estate, interest or power, in or affecting property of any description is vested for the benefit of another. Bobertson vs. Bullions, 9 Barb. (N. Y.) 101. (Quoting Hill on Trustees, 41.) A trustee is a person holding the legal title to prop- erty under an express or implied agreement to apply it, and the income arising from it, to the use and for the benefit of another person, who is called the cestui que trust. Wilson vs. Lord Bury, 5 Q. B. Div. 530. 10 Hun 484. (Quoting Story on Contracts, § 296.) Trustee de son tort is he, who of his own authority enters into the pos- session, or assumes the management of property which belongs beneficially to another. Morris vs. Joseph, 1 W. Va. 259. TUENPIKE COMPANY is one which has the power to collect tolls from per- sons passing over their road, and to enforce the col- lection by erecting tnrnpikes or gates, or both, to obstruct the passage till the tolls are paid. Haightvs. J. C. & P. B. Co., 3 Vroom (N. J.) 451. A turnpike company is one that owns, and receives tolls on a turnpike road. The State vs. HaigU, 1 Vroom (N. J.) 445. TUENPIKE-EOAD means a road having toll-gates or bars on it, which were originally called "turns," and were first con- structed about the middle of the last century— (1840.) Northam Bridge Co. vs. London B'y Co., 6 M. & W. 438. Why is a road termed a turnpike road ? Not because of its form, or of the material of which it is composed, but because of the form and character of the gates placed on the road to obstruct the passage of travel- 618 ADJUDGED WORDS AND PHRASES. TURNPIKE-ROAD UMPIRE lers, until they have paid the tolls always collected on such roads. The word turnpike does not mean road, but it means gate, such as are used to throw across the road, to obstruct travellers and the like, until the tolls are collected. The State vs. Haight, 1 Vroom (N. J.) 446. A turnpike road is a highway in which the public have a qualified easement ; that is the right to pass and repass upon the payment of a certain toll estab- lished by law. Heyward vs. Mayor, &c, of N. Y., 8 Barb. (N. Y.J 492 Tyrant. The term tyrant and usurper are sometimes used as synonymous, because usurper are almost always tyrants; usurpation is itself a styrannical act, but properly speaking, the words usurper and tyrant con- vey different ideas. A king may be'come a tyrant, al- though legitimate, when he acts despotically ; while a usurper may cease to be a tyrant by governing ac- cording to the dictates of justice. State vs. Mason, 14 La. Ann. 507. (Quoting Bouvier L. Diet.) Umpirage is in law, the award of the umpire alone. Powell vs. Ford, 4 Lea (Tenn.) 288. Umpike. An umpire is a third person appointed to decide be- tween two other judges or referees who differ in opinion. Bandel vs. Ches. & Bel. Canal Co., 1 Harr. (Bel.) 260 An umpire is a person whom two arbitrators, ap- pointed and duly authorized by parties, select to de- cide the matter in controversy, concerning which the arbitrators are unable to agree. His province is to determine the issue submitted to the arbitrators on which they have failed to agree, and to make an award thereon which is his sole award. * * It is his duty to hear the whole case. * * He stands, in fact, in the same situation as a sole arbitrator, and he is bound to hear and determine the case in like manner as if it had been originally submitted to his determination. Haven vs. Winnisimmett Co., 11 Allen (Mass.) 384. 75 111. 30. ADJUDGED WORDS AND PHRASES. 619 UNADJUSTED UNDUE Unadjusted (demand.) The term " unadjusted," as applied to a demand, sig- nifies that the amount is uncertain — not agreed upon. Richardson vs. Woodbury, 43 Maine 214. Unavoidable accident. "When we speak of an unavoidable accident, in legal phraseology, we do not mean an accident which it was physically impossible in the nature of things for the defendant to have prevented ; all that is meant is, that it was not occasioned in any degree either remotely or directly, by the want of such care or skill as the law holds every man bound to exercise. Dygert vs. Bradley, 8 Wend. (N. Y) 473. 2 Mich. N. P. 148. Unavoidable casualty. The term comprehends only damage or destruction arising from supervening and uncontrolable force or accident. By a strict definition as applied to the subject-matter, it signifies events or accidents which human prudence, foresight and sagacity cannot pre- vent. Welles vs. Castles, 3 Gray (Mass.) 325. Unconsttutional law. A law that is unconstitutional, is so because it is either an assumption of power not legislative in its nature, or because it is inconsistent with some pro- vision of the federal or state constitution. Com vs. Maxwell, 27 Penn. St. 456. Under-letting and assignment (distinguished) vide Assignment, &c. Undue concealment. 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 circum- stances, which one party is under some legal or equit- able obligation to communicate to the other, and which the latter has a right not merely in foro con- scientiae, but juris et dejure to know. Paul vs. Hadley, 28 Barb. (N. Y.) 524. Undue influence It is that which compels the testator to do that which is against his will, through fear, coercion, or the de- 620 ADJUDGED WORDS AXD PHRASES. UNDUE UNLAWFUL sire of peace, or some feeling which he is , unable to resist. * * Undue influence is anything which either places the party in fear of his life and health, or overpowers his nervous sensibility to such an extent as to deprive him of doing as he desired. Mooney vs. Olsen, 22 Kansas 79. Undue influence must be such as, in some measure, destroys the free agency of the testator, and prevents the exercise of that discretion which the law requires a party should possess as essential to a valid testa- mentary disposition of his property. It is not enough that by the testator's own improper conduct he has brought about a condition of things, over which, at the time of making his will, he had no control to change or remedy, but which, as a moral inducement, operated upon his mind, influencing him to make a disposition of his property which, under other cir- cumstances he might not have made. Dunlap et al. vs. Robinson, 28 Ala. 107. Unexecuted wkit (in N. J. act concerning sheriffs.) An unexecuted writ, in the sense in which that word is used, in the statute, is one, upon, or in virtue of which, nothing has yet been done. The State vs. Hamilton et al., 1 Harr. (N. J.) 156. Uniform in their operation (laws.) That is, that such laws shall bear equally, in their burdens and benefits, upon persons standing in the same category. Smith vs. Judge Twelfth Dist., 17 Cal. 554. Uniformity in taxing implies equality in the burden of taxation ; and this equality of burden cannot exist without uniformity in the mode of assessment, as well as in the rate of taxation. The uniformity must be coextensive with the territory to which it applies. * * It must be extended to all property subject to taxation, so that all property may be taxed alike, equally — which is taxing by a uniform rule. Exchange Bank vs. Hines, 3 Ohio St. 15. Unlawful assembly. Any tumultuous disturbance of the public peace by three persons or more, having no avowed or osten- ADJUDGED WOKDS AND PHRASES. 621 UNLAWFUL UNSOUND sible, legal or constitutional object, assembled under such circumstances, and deporting themselves in such manner, as to produce danger to the public peace and tranquility, and which excites terror, alarm, and consternation, in the neighborhood, is an unlaw- ful assembly. In re Iiiots of 1844, 2 Penn. Law Journ. 278. Unlawful entry. It is a peaceable entry by fraud, or without color of title. Dickinson vs. Maguirc, 9 Gal. 49. Unliquidated claim is one which one of the parties to the contract cannot alone render certain. Roberts vs. Prior, 20 Georgia 562. Unmaebied. The word unmarried may either mean never having been married at all ; or without having at the time husband or wife. Doe vs. Raioding, 2 B. & A. 449. I think that the ordinary meaning of the word " un- married " is never having been married. Mall vs. Bobertson, 21 Eng. L. & Eq. 504. 16 Ch. Div. 717. Unoccupied house. An unoccupied house is one in which there is not habitually the presence of human beings ; and for a dwelling-house to be in a state of occupation there must be in it the habitual presence of human beings, as at their usual and customary place of abode — not absolutely and uninterruptedly continuous, but it must be the place of usual return and habitual stop- page. Sonneborn vs Manuf. Ins. Co., 15 Vroom (N. J). 224. ■vide Vacant house; Occupation. 85 N. Y. 168. Unsound mind. The terms " of unsound mind" have a determined and technical import, and which is very comprehensive. They do not (when used in a legal sense,) mean im- becility of mind merely, but is synonymous with non compos mentis, and import necessarily, a total depri- vation of reason, comprehending idiocy, lunacy and ADJUDGED WORDS AND PHRASES. UNSOUND UNSUITABLENESS adventitious madness, either temporary or permanent — remediable or irremediable. Jenkins vs. Jenkins' Heirs, 2 Dana (Ky.) 103. Every person is to be deemed of unsound mind who has lost his memory and understanding by old age, sickness, or other accident, so as to render him in- capable of transacting business and of managing his property. Bennett vs. Dennett, 44 N. Hamp. 537. The words " unsound mind " are sometimes used in- discriminately to signify lunacy, which is periodical madness, but also adventitious insanity as distin- guished from idiocy. Witte vs. Gilbert, 10 Nebraska 544. 34 Wis. 137. Unsound mind and memory in the sense and use of the law, can only mean such defect of mind and memory as the law notices for some legal purpose, as of disability, of protection, or exemption. Stewart's Ext. vs. Lispenard, 26 Wend. (N. Y.J 299. Unsoundness (in a horse) is any organic defect, any infirmity which renders it unfit for use and convenience. Stucky vs. Clyburn, Cheves (S. C.) 189. If at the time of sale the horse has any disease, which either actually does diminish the natural use- fulness of the animal, so as to make him less capable of work of any description, or which, in its ordinary progress, will diminish the natural usefulness of the animal ; or if the horse has, either from disease or accident, undergone any alteration of structure, that either actually does at the time, or in its ordinary effects will diminish the natural usefulness of the horse, such horse is unsound. Kiddell vs. Burnard, 9 M. & W. GlO. 85 HI. 269 ; 2 M. & Bob. 137. Unstjitableness (of administrator 1 , &c.) implies no want of capacity or mental infirmity, but an unfitness arising out of the situation of the person in connection with the estate of which he is adminis- trator, either by reason of his being indebted to it, ADJUDGED WORDS AND PHRASES. 623 UNTIL USE or having claims upon it, or in the interest he has under a will, or his situation as an heir at law. Thayer vs. Homer, 11 Met. (Mass.) 110. Until the expiration op the lease. The words " until the expiration of the lease " mean, until it shall expire according to the terms of it, and not the termination of it by a new agreement between the parties to it. Farnum vs. Piatt, 8 Pick. (Mass.) 340. "Untrue. Prima facie it means "inaccurate," not necessarily implying anything unwilfully false. Fowkes vs. Assurance Ass., 113 Eng. C. L. 929. Usage and custom (distinguished) vide Custom, &c Usage of trade is a course of dealing ; a mode of conducting transact tions of a particular kind. Haskins vs. Warren, 115 Mass. 535. What is called the custom or usage of trade, is the law of that trade ; and to make it at all obligatory, it must be ancient, (sufficiently so at least, to be gen- erally known,) certain, uniform, and reasonable. Collings vs. Hope, 3 Wash. (U. S. C. C.) 150. Use. An Use is, where a Man has any Thing to the Use of another upon Confidence, that the other shall take the Profits : He who has the Profits, has an Use. Burgess vs. Wheate, 1 W. Bl. 180. That which has arisen from those things which a man says and does, and is of long continuance, and without interruption. Strothervs. Lucas, 12 Peters (U. S.) 445. An equitable right to take the profits of an estate, and extends to all who come in privy to the use. Storer vs. Batson, 8 Mass. 438. Use a port (in insurance.) "To use," means to employ, to hold, to occupy, to enjoy, or to take the benefit of. In connection with the word " port," it means to go into a harbor or haven for shelter, for commerce or for pleasure, and G24 ADJUDGED WORDS A1JD PHRASES. USE USUFRUCT to derive a benefit or an advantage from its protec- tion. Snow vs. Columbian Ins. Co., 48 N. Y. 627. Use and occupy. The words, the right to use and occupy, are equivalent to the right to the use and occupancy, and import a general right in the grantor to use and occupy either by himself or others ; limited only by the implied legal duty to occupy in a prudent manner. Cooney vs. Hayes, 40 Vermont 483. Useful invention means such a one as may be applied to some benefi- cial use in society, in contradistinction to an inven- tion, which is injurious to the morals, the health, or the good order of society. Bedford vs. Hunt, 1 Mason (U. 8. C. C.) 303. 13 N. H. 318. , Usual covenants (in a deed of bargain and sale of a fee simple estate.) The usual personal covenants inserted in a convey- ance in fee, as stated by Chancellor Kent, are : 1. That the grantor is lawfully seized. 2. That he has a good right to convey. 3. That the land is free from incumbrances. 4. That the grantee shall quietly en- joy. 5. That the grantor will warrant and defend the title against all lawful claims. Wilson vs. Wood, 2 C. K G. Eg. 218. Usual stopping place (in E. E. charter) means a regular station for passengers to get on and off the train. Chicago & Alton B. R. Co. vs. Flagg, 43 III. 368. Usual terms (on reference, &c.) "Usual terms" ar a commonly understood to mean that the costs of the action shall abide the event, and the costs of the reference and award shall be in the discretion of the arbitrator. Winshurst vs. Barrow Ship B. Co., 2 Q. B. Div. 338. Usufruct is the right of using and enjoying, and receiving the profits of, property which belongs to another. Cartwright vs. Cartwright, 18 Texas 628. 40 Texas 700. ADJUDGED WORDS AND PHRASES. 625 USUFRUCTUARY USURY Usufructuary. One who has the usufruct or right of enjoying any- thing in which he has no property. Cartwright vs. Cartwright, 18 Texas 628. 40 Texas 700. Usurious contract. An usurious contract, is one which stipulates for the payment of more than lawful interest, for the use of money, or forbearance of a debt. FarJiam vs. PvLliam Exr. 5 Coldw. (Tenn.) 501. Usurpation (in relation to government.) The tyrannical assumption of the government by force, contrary to and in violation of the constitution of the country. State vs. Mason, 14 La. Ann. 507. (Quoting Bouvier L. Diet ) Usurped power (in insurance) means an invasion from abroad, or an internal rebel- lion, when armies are employed to support it ; when the laws are dormant and silent, and firing of towns is unavoidable. Fire Ins. Co. vs. Corlies, 21 Wend. 370, Usurped power, according to the true import thereof, can only mean an invasion of the Kingdom by foreign enemies, to give laws and usurp the gov- ernment thereof, or an internal armed force in rebel- lion assuming the power of government, by making laws, and punishing for not obeying those laws. Drinkwater vs. London Assurance, 2 Wils. 363. 12 Blatchf. 33. Usurper (of an office.) A mere usurper is one who acts without color of title, and whose acts are utterly void. Hooper vs. Goodwin, 48 Maine 80. A mere usurper is one who intrudes himself into an office which is vacant, and ousts the incumbent with- out any color of title whatever ; and his acts are void in every respect. M'Craw vs. Williams, 33 Gratt. (Va.) 513. vide Tyrant. Usury in its original and primitive meaning, is a premium 626 ADJUDGED WORDS AND PHRASES. USUEY UTTERING or reward for the use of money or other commodities or things. Henry vs. Bank of Salina, 5 Hill (N. Y.J 528. Usury is the taking of more interest for the use of money than the law allows. Dunkle vs. Renick, 6 Ohio St. 535. Usury, according to Sir Edward Coke, is a contract upon a loan of money, or giving days for forbearance of money, debt, or duty, by way of loan, chevisance, shifts, sales of wares, or other doings whatsoever. Diercks vs. Kennedy, 1 C. K G. Eq. (N. J.J 211. Usury consists in extorting or taking a rate of inter- est for money, beyond what is allowed by law. Wilkie vs. Roosevelt, 3 John. Gas. (N. Y.J 206. 2 John. Gas. 364; 17 "Wis. 386; 5 Coldw. 501. Uttek. To utter a thing, is to offer it, whether it be taken or not. People vs. Caton, 25 Michigan 392. To utter and publish is to declare or assert, directly or indirectly, by words or actions, that it is good. Com. vs. Searle, 2 Binn. (Pa.) 339. 48 Mo. 522. Uttering and passing forged papeb (distinguished.) To utter and publish is to declare or assert directly or indirectly, by words or actions, that a note is good. To offer it in payment would be an uttering or pub- lishing ; but it is not passed until it is received by the person to whom it is offered. People vs. Brigham et at, 2 Mich. 553. The passing or delivering a paper, is putting it off or giving it in payment or exchange ; uttering it, is a declaration that the note or order is good, or an offer to pass it as good ; to merely show it, without an offer to pass it, or depositing it for safe keeping is not an uttering ; there must be an intent to pass it as good. U. 8. vs. Mitchel et al, Baldwin (U. S. C. G.J 366. 2 Mich. 553. Uttering and publishing. Any disposal or negotiation of a forged instrument to another person. The People vs. Rathbun, 21 Wend. (N. Y.) 527. (Quoting Tomlins L. Diet tit. Forgery.) ADJUDGED WORDS AND PHRASES. 627 VACANCY VALUABLE Vacancy (in office) means the want of an incumbent at the time. State vs. Johns, 3 Oregon 537. Vacant (house.) A dwelling-house does not become vacant or unoccu- pied, in the usual acceptation of such terms, when a tenant leaves it, in the ordinary course of things, for a few hours. A furnished abode would not, accord- ing to common usages, be called a vacant or unoccu- pied house, on account of a temporary absence of the tenant. When there is a cessation to use it as a dwelling, then it is properly styled a vacant house. Laselle vs. Hoboken Fire Ins. Co., 14 Vroom (N. J.) 470. vide Unoccupied house. 85 N. Y. 168. Vacant (lands) The word " vacant," when applied to lands, means those which have not been appropriated by individ- uals. Marshall vs. Bompart,, 18 Mo. 87. Validity means certainty ; and certainty truth. Ford vs. Gardner, 1 Hen. & Munf. ( Va.) 85. Valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent for the grant, and is there- fore founded in motives of justice. Potter vs. Grade, 58 Ala. 307. (Quoting 2 SI. Com. 29.'.) A valuable consideration is denned in the books, to mean money, or any other thing that bears a known value. Jackson vs. Alexander, 3 John. (N. Y.) 48D. A valuable consideration is one that is either a bene- fit to the party promising, or some trouble or preju- dice to the party to whom the promise is made. Livingston vs. Radcliff, G Barb. (N. Y.j 207. 20 Cal. 225 ; 13 Wend. 126. Valuable papers. They consist of such as are regarded by the testator as worthy of preservation ; in his estimation of some value. Hooper vs. McQuary, 5 Coldw. (Tenn.) 135. 628 ADJUDGED WORDS AND PHRASES. valuable vendor's lien Valuable security. A valuable security is one on which money is paya- ble irrespective of any contingency. The Queen vs. Tatlock, 2 Q. B. Div. 163. V.ALUE consists in the estimate, or the opinion of those in- fluencing the market, attachable to certain intrinsic qualities belonging to the article to be valued. Washington Ice Co. vs. Webster, 68 Maine 463. Value, when applied without qualification to property of any description, necessarily means the price it will command in market. It supposes that the purchaser is to acquire a perfect title, or the unlimited right to dispose of the property at pleasure. Fox vs. Phelps, 17 Wend. (N. Y.J 399. Variance. A variance is a disagreement between the allegations and the proof in some matter which, in point of law, is essential to the charge or claim. House vs. Metcalf, 27 Conn. 638. 30 Conn. 57. Variance (in pi.) A variance is understood to be a substantial depar- ture from the issue in the evidence adduced, and must be in some matter which, in point of law, is es^ sential to the charge or claim. Keiser vs. Topping et al., 72 III. 229. Venditioni exponas is a writ of execution directed to the sheriff to sell goods and chattels, and in some States lands, which he has taken in execution by virtue of a fieri facias and which remain unsold. Borden vs. Tillman, 39 Texas 273. (Quoting Bouvier L. Diet.) Vendor. He is the vendor who negotiates the sale, and becomes the recipient of the consideration, though the title comes to the vendee from another source, and not from the vendor. Rutland vs. Brister 53 Miss. 685. vide Purchase and sale. Vendor's lien. The vendor's lien upon the land sold, for the pur- chase money, is an equitable right arising from a con- ADJUDGED WORDS AND PHRASES. 629 VENDOR'S LIEN VEEDICT structive trust, and is independent of the possession of the land to which the lien attaches as an incum- brance ; and the same may be enforced in courts of equity by the sale of the land. Neil vs. Kinney et al., 11 Ohio St. 68. The vendor's lien consists solely in the debt, and has no form apart from it. It is a right which has no existence until it is established by the decree of the court in the particular case. Myers vs. Estell, 48 Miss. 411. Vente a eemere. A contract of sale, with the power or right of re- demption annexed. Srtwot vs. Baldwin, 1 Martin N. 8. (La.) 530. Veedict. The term " verdict," is the answer of the jury con- cerning any matter of fact, in any cause committed to them for trial ; wherein every one of the twelve jurors must agree, or it cannot be a verdict. Withee vs. Howe, 45 Maine 586. The answer of a jury given to the court concerning the matter of fact in any case committed to their trial. Morton vs. The State, 3 Texas App. 513. The determination of a jury, upon the matters of fact in issue in a cause, upon the evidence. Otis et al. vs. Spencer, 8 Hoio. Pr. E. (N. Y.J 173. A verdict may be denned to be, the answer of the jury to the questions of fact contained in the issue formed by the pleadings of the parties. It may be general or special. A general verdict directly finds or negates all the facts m issue in a general form. A special verdict is where the jury finds the facts par- ticularly, and then submits to the court the questions of law arising upon them. Day vs. Webb, 28 Conn. 144. vide Special verdict ; General verdict. 2 Texas 204. Verdict contrary to law. We think that a verdict which is contrary to law, is one which is contrary to the principles of law as ap- plied to the facts which the jury were called upon to try ; contrary to the principles of law which should govern the cause. Bosseker vs. Cramer, 18 Ind. 45. 56 Ind. 583. 630 ADJUDGED WOKDS AND PHRASES. — vest vested Yest. To vest is to give an immediate, fixed right of pres- ent or future enjoyment. Stewart vs. Harriman, 56 N. Samp. 29. (Quoting Bouvier L. Diet. ) Yested ESTATE. By a vested estate, in relation to interests of a free- hold quality is to be understood an interest clothed, as to legal estates, with a legal seizin, or, as to equit- able estates, with an equitable seizin, which enables the person to whom the interest is limited to exer-' eise the right of present or future enjoyment imme- diately, in point of estate. A vested estate is an in- terest clothed with a present legal and existing right of alienation. Hayes vs. Goode, 7 Leigh (Va.) 496. An estate is vested when there is an immediate right of present enjoyment, or a present fixed right of fu- ture enjoyment. Clark vs. McCreary, 12 S. & M. (Miss.) 347. (Quoting 4 Kent's Com. 202. ) Estates are vested when there is a person in being who would have an immediate right to the posses- sion of the lands upon the ceasing of the intermedi- ate or precedent estate. Tayloe vs. GotM, 10 Barb. (N. Y) 396. 12 N. Y. 207 ; 2 Dutch. 486 ; 1 Hun 354 ; 28 Barb. 367. Yested remainder. A vested remainder is one that takes effect in inter- est and right immediately on the death of the testa- tor, although it may not take effect, indeed if it be a remainder, it cannot take effect in possession and enjoyment until the death of the devisee for life, or other determination of the particular estate. Brown vs. Lawrence, 3 Cush. (Mass.) 397. A vested remainder, is one by which a present inter- est passes to the party, though to be enjoyed in future, and by which the estate is fixed to remain to a determinate person after the particular estate is spent. He has an immediate fixed right of future enjoyment. ( Williamson vs. Field, 2 Sandf. Ch. (N. Y) 252. A remainder is vested in interest where the person is in being, and ascertained, who will, if he lives, ADJUDGED WORDS AND PHRASES. 631 VESTED VIDELICET have an absolute and immediate right to the posses- sion of the land upon the ceasing or failure of all the precedent estates, provided the estate limited to him by the remainder shall so long continue. In other words, where the remainder-man's right to an estate in possession cannot be defeated by third persons, or contingent events, or by the failure of a condition precedent, if he lives, and the estate limited to him by way of remainder continues, till all the precedent estates are determined, his remainder is vested in interest. Hawly vs. James, 5 Paige Ch. (N. Y.J 466. A vested remainder is where a present interest passes to a certain and definite person, but to be enjoyed in futuro. There must be a particular estate to support it. The remainder must pass out of the grantor at the creation of the particular estate. It must vest in the grantee during the continuance of the estate, or so instanti that it determines. Doe, Lessee of Poor vs. Considine, 6 Wallace ( U. S.J 474. 2 Beasl. Ch. 176 ; 76 Ind. 409 ; 8 Conn. 359 ; 8 Hun 272. Vested eight. It is the privilege to enjoy property legally vested ; to enforce contracts, and enjoy the rights of property conferred by the existing law. Fisher's Negroes vs. Dabbs, 6 Yerg. (Tenn.J 154. In the widest sense, they are rights which are com- plete and consummated, so that nothing remains to be done to fix the right of the citizen to enjoy them. Moore vs. State, 14 Vroom (N. J.) 243. Vicious propensity. By vicious propensity, is included a propensity to do any act that might endanger the safety of the per- sons and property of others in a given situation. Not such only as would impair the utility of the animal for the purpose for which it was kept. Dickson vs. McCoy, 39 N. Y. 403. Videlicet. The word videlicet is from the Latin videre, to see, and licet, it is permitted. In pleading, a videlicet is used where a party alleges a fact which he does not wish to be held to prove strictly. The terms actually used for this purpose are the English " to wit," or 632 ADJUDGED WORDS AND PHRASES. VIDELICET VISIBLE " that is to say," immediately previous to the allega- tion. Ghason vs. M' Viclcar, 7 Cowen (N. Y.) 45 n. It is not a substantive clause of itself ; and therefore you can neither begin a sentence with it, nor make a sentence of it by itself ; but it is (as I may say) clau- sula ancillaris, a kind of handmaid to another clause, and to deliver her mind, nor her own. And there- fore it is a kind of interpreter ; her natural and pro- per use is to particularize that, that is before general, or distribute that, that is in gross, or to explain that, that is doubtful and obscure. Stukley vs. Butler, Hobart 172. 26 Conn. 431 ; 9 Minn. 317. Village. Any small assemblage of houses, for dwellings, or business, or both, in the country, constitutes a vil- lage, whether they are situated upon regularly laid out streets and alleys, or not. Illinois Central B. B. Go. vs. Williams, 27 III. 49. 71 Dl. 569. Vinous ltquoe, ex vi termini, means liquor made from the juice of the grape. Adler vs. State, 55 Ala. 24. Violence. The term " violence " is synonymous with physical force, and the two are used interchangeably, in rela- tion to assaults, by elementary writers on criminal law. State vs. Wells, 31 Conn. 212. Virtue of office and color of office (distinguished.) Acts done virtute officii are where they are within the authority of the officer, but in doing it he exercises that authority improperly, or abuses the confidence which the law reposes in him ; whilst acts done colore officii, are where they are of such a nature, that his office gives him no authority to do them. Beopie vs. Schuyler, 4 JSf. Y. 187. 15 John. 270. Visible propekty is something local in the place where a man inhabits. Bex vs. Inhabitants of Bingwood, 1 Cowp. 228. ADJUDGED WORDS AND PHRASES. G38 visitok void Visitor. A mere visitor is one who comes only for pleasure or health, and who engages in no business and remains only for a reasonable time. Ex parte Archy, 9 Cal. 168. VlVUM VADIUM consisted of a feoffment to the creditor and his heirs, until out of the rents and profits he had satis- fied himself his debt. The creditor took actual pos- session of the estate, and received the rents and applied them from time to time in liquidation of the debt. Kortright vs. Cody, 21 N. Y. 344. Void. "Whenever entire technical accuracy is required, the term " void " can only be properly applied to those contracts that are of no effect whatsoever ; such as are a mere nullity, and incapable of confirmation or ratification. Allis vs. Billings, 6 Met. (Mass.) 417. When the term is used in reference to the solemn judgments and acts of the Superior Courts, it means no more than voidable. Ben. ex dem. Inskeep vs. Lecony, Coxe (N. J.) 112. Whatever may be avoided, may, in good sense, to this purpose, be called void, and this use of the term void is not uncommon in the language of statutes and of courts. Somes vs. Breiver, 2 Pick. (Mass.) 191. A thing is void which is done against law, at the very time of doing it, and where no person is bound by the act. Anderson vs. Roberts, 18 John. (N. Y.) 527. 36 Iowa 204 ; 40 Wis. 140 ; 32 Barb. 176 ; 14 Ohio St. 85. Void and voidable (distinguished.) The terms void and voidable, as used in our books, seem to stand for absolutely and relatively void. That is absolutely void, which the law or the nature of things forbids to be enforced at all, and that is relatively void which the law condemns as a wrong to individ- uals, and refuses to enforce as against them. Pearsoll vs. Chapin, 44 Penn St. 15. 634 ADJUDGED WOEDS AND PHRASES. voidable ' voluntary Voidable. A thing is voidable which is done by a person who ought not to have done it, but who, nevertheless, cannot avoid it himself, after it is done. Anderson vs. Roberts, 18 John. (N. Y.) 528. 32 Barb. 176. Voluntarily means spontaneously, of one's own will, without be- ing moved, influenced or impelled by others. Kearney vs. Fitzgerald, 43 Iowa 586. Voluntary (confessions of crime) means, proceeding from the spontaneous suggestion of the party's own mind, free from the influence of any extraneous disturbing cause. People vs. McHahon, 15 N. Y. 386. 37 N. Y. 305; 57 Barb. 363. Voluntaey ASSIGNMENT means an assignment of all the debtor's property, in trust, to pay debts ; as contradistinguished from a mere sale thereof to a creditor in payment of his debt, or the pledge or hypothecation of the property to a particular creditor, as a mere security, in the nature of a mortgage. Dias vs. Boucliand, 10 Paige Ch. (N. Y.J 461. Voluntaey conveyance is a deed without any valuable consideration. Seward vs. Jackson, 8 Cowen (N. Y.) 430. 12 K H. 250 ; 4 Wend. 304 ; 21 Barb. 328. Voluntary escape is such as is by the express consent of the gaoler ; negligent, when the prisoner escapes without the knowledge or consent of the gaoler. Adams vs. Turrentine, 8 Ired. Law (N. C.) 152. A voluntary escape, is when a person having a felon lawfully in his custody, voluntarily permits him to escape from it, or to go at large ; and this is felony, in case the person be imprisoned for felony ; and treason, in case the person be imprisoned for trea- son, etc.; but the person or officer voluntarily per- mitting such escape, is not to be tried until the prin- cipal offender escaping is convicted. Martin vs. The State, 32 Ark. 126. vide Escape. ADJUDGED WORDS AND PHBASES. G35 VOLUNTARY VOUCHER VOLUNTARY MANSLAUGHTER vide Manslaughter. Volunteers (in contracts) are persons who receive a voluntary conveyance. Mitchell vs. Mitchell, 40 Georgia 16. (Quoting Bouvier L. Did.) Vote. A vote is but the expression of the will of the voter; and whether the formula to give expression to such a will be a ballot or viva voce, the result is the same : either is a vote. The People vs. Pease, 27 N. Y. 57. 37 Ohio St. 230. Voter and elector (distinguished.) The voter is the elector who votes — the elector in the exercise of his franchise or privilege of voting — and not he who does not vote. There would be no propriety in saying, in the sense of his having voted, that an elector was a voter at a meeting or election which he did not attend. Sanford vs. Prentice, 28 Wis. 362. Vouched by witnesses. The phrase vouched by witnesses, seems to import the same as testified by witnesses called into court, and in this sense, a note subscribed by two persons as and for witnesses, cannot be said to be vouched by two witnesses, until those persons are vouched, or called and do testify before the court respecting it. Barker vs. Coit et al., 1 Root (Conn.) 225. Voucher. The term "voucher" designates an account book in which charges and acquittances are entered, and it signifies also, any acquittance or receipt, discharg- ing a person, or being evidence of payment. Whitwell vs. Willard, 1 Met. (Mass.) 218. The word "voucher" would seem to mean or imply evidence, written or otherwise, of the truth of a fact— that the services had been performed or the expenses paid or incurred. People ex rel. vs. Green, 2 N. Y. Sup. Ct. (T. & C.) 20. The word has several meanings ; but, in its ordinary signification, it means a document which serves to 636 ADJUDGED WORDS AND PHRASES. VS. "WAGEK vouch the truth of accounts, or to confirm and estab- lish facts of any kind. The People vs. Green, 5 Daly Com. PI. (N. Y.J 199. 3 Halst. 301. Vs. stands for " versus." Smith vs. Butler, 25 N. Hamp. 523. ' Wagee is something hazarded on the issue of some uncer- tain event. Cassard vs. Hinman, 1 Bosworth (N. Y.J 212. A wager is the bet or stake laid upon the result of the game. Woodcock vs. McQueen, 11 Ind. 15. It means the contract by which a bet is made ; and it is applied, also, to the thing or amount bet. Smoot vs. State, 18 Ind. 19. In ordinary acceptation, a wager is the placing of something valuable, belonging in part to each of two individuals, in such a position, that it is to become the sole property of one, upon the result of some un- settled question. Edson vs. Pawlet, 22 Vermont 293. A wager is a contract by which two parties or more ageee, that a certain sum of money or other thing, shall be paid or delivered to one of them on the hap- pening or not happening of an uncertain event. Ex parte Young, 6 BissellfU. S. C. G.J 67. vide Bet. 4A How. Pr. (N. Y.) 207. (Quoting Bouvier L. Diet.) Wagee and game (distinguished) vide Game, &c. Wagee and peemtum (distinguished.) In a wager or bet, there must be two parties, and it is known before the chance or uncertain event upon which it is laid is accomplished, who are the parties who must either lose or win. In a premium or re- ward, there is but one party until the act, or thing, or purpose, for which it is offered, has been accom- plished. A premium is a reward or recompense for some act done ; a wager is a stake upon an uncer- tain event. In a premium it is known who is to give ADJUDGED WORDS AND PHRASES. 637 WAGER WAIVER before the event ; in a wager it is not known till after the event. Alvord vs. Smith, 63 Ind. 62. 64Ind. Wager policy. A wager policy is one which shows on the face of it that the contract it embodies is really not an insur- ance, but a wager ; a pretended insurance founded on an ideal risk, where the assured has no interest in the thing insured. Sawyer vs. Dodge County Ins. Co., 37 Wis. 539. (Quoting Arnold on Ins. 17. ) A mere wager policy is that in which the party as- sured has no interest in the thing assured, and could sustain no possible loss by the event insured against, if he had not made such wager. Amory vs. GUman, 2 Mass. 7. vide Gambling policies. 50 Mo. 47. "Wages. The word wages means the compensation paid to a hired person for his services. This compensation to the laborer may be a specified sum for a given time of service, or a fixed sum for specified work ; that is payment may be made by the job. It means compensation estimated in either way. Ford et al. vs. St. L. K. & N. W. R. Co., 54 Iowa 728. 1 M. & S. 629. "Waives. A waiver is the intentional relinquishment of a known right, and there must be both knowledge of the exist- ence of the right and an intention to relinquish it. Hoxie vs. Home Ins. Co., 32 Conn. 40. A waiver to be operative, must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on performance of the contract or forfeiture of the condition. Ripley vs. JEtna Ins. Co., 30 K Y. 164. "Waiver is the relinquishment or refusal to accept a right. Cole vs. Dial, 12 Texas 102. To make out a case of abandoment or waiver of a legal right, there must be a clear, unequivocal and de- 638 ADJUDGED WORDS AND PHRASES. WAIVING WAR cisive act of the party, showing such a purpose, or acts amounting to the estoppel on his part. Boss vs. Swan, 7 Lea (Term.) 467. 83 Penn. St. 275 ; 50 Me. 134 ; 100 Mass. 395 ; 7 Heisk. 534. Waiving a tort. This phrase means no more than that by treating the matter as a contract, he waives his right to pursue it as a tort with the peculiar remedies, penalties and consequences belonging to it in that character. Harwayvs. Mayor, dec, of N. Y. City, 1 Hun(N. Y.J630. Wantonness is reckless sport, wilfully unrestrained action, run- ning immoderately into excess. Cobb vs. Bennett, 75 Penn. St. 330. Wantonness consists in the doing that which will an- noy another and which the party doing it knows will produce no results to himself. Clarke vs. Hoggins, 103 Eng. C. L. 552. A licentious act of one man toward another without regard to his rights. WelcJi vs. Durand, 36 Conn. 184. War. It is a contest carried on between independent per- sons for the sake of asserting their rights. Bynkershoeck, 128. War is that state in which a nation prosecutes its right by force. Vattel, 368. JJ. S. vs. Schooner Active, 3 Wheeler Cr. Cases 265. War is an armed contest between different states upon a question of public right. Brown vs. Hiatt, 1 Dillon ( JJ. S. C. C.J 380. Every contention by force between two nations, in external matters, under the authority of their re- spective governments, is not only war, but public Avar. If it be declared in form, it is called solemn, and is of the perfect kind ; because one whole nation is at war with another whole nation ; and all the mem- bers of the nation declaring war, are authorized to commit hostilities against all the members of the other, in every place, and under every circumstance. Bos vs. Tingy, 4 Dallas (JJ. S.) 40. 3 Gratt. 441 : 25 Wend. 576; SI Me. 470. ADJUDGED WORDS AND PHRASES. 639 war warranty "War, time of. When by invasion, insurrection, rebellions, or such like, the peaceable course of justice is disturbed and stopped, so as the courts be, as it were shut up, et silent inter leges arma, then it is said to be time of war. Skeen vs. Monkeimer, 21 Ind. 3. Ward. The term ward, as well in its popular as in its tech- nical acceptation, is applicable only to a person un- der the age of twenty-one years, and subject to the guardianship of another. Darland vs. Justices of Mercer, 4 Bibb (Ky.) 524. Warehouseman. A warehouseman is a person who receives goods and merchandise to be stored in his warehouse for hire. Titsworth vs. Winnegar, 51 Barb. ( N. Y.J 153. (Quoting Bouv. Inst. 406 § 1011.) Warrant. A writing from a competent authority in pursuance of law, directing the doing of an act, and addressed to an officer or person competent to do the act and affording him protection from damage, if he does it. People vs. Wood, 11 N. Y. 376. Warrant (for land.) It is the evidence which the state, on good considera- tion, gives that the person therein named is entitled to the quantity of land therein specified, the bounds and description of which the owner of the warrant may fix, by entry and survey, in the section of coun- try set apart for its location and satisfaction. Neal vs. East Tenn. College, 6 Yerg. (Tenn.) 205. Warranty. A warranty is an express or implied statement of something which the party undertakes shall be a part of the contract ; and though part of the con- tract, yet collateral to the express object of it. Chanter vs. Hopkins, 4 M. & W. 404. A warranty is a contract by which the person who makes it engages to become responsible to the other party for damages which he may sustain by a breach Patton & Burgin vs. Porter, 3 Jones Law (N. C.) 539. A warranty, says Sir Edward Coke (1 Inst. 365, a.) is G40 ADJUDGED WORDS AND PHRASES. WARRANTY WARRANTY a covenant real, annexed to lands or tenements, whereby a man and his heirs are bound to warrant the same ; and to yield other lands and tenements to the value of those that shall be evicted by a former title. Mitchell vs. Warner, 5 Conn. 521. A warranty on the sale of a chattel is, in legal effect, a promise that the subject of sale corresponds with the warranty, in title, soundness or other quality to which it relates. Cary vs. Gruman, 4 Hill (N. Y.J 626. "Warranty (in ins.) is a part of the contract evidenced by the policy, and a binding agreement that the facts stated are strictly true. Buford vs. N. Y. Life Ins. Co., 5 Oregon 339. (Quoting 1 Phil, on Ins. 754-6.) Warranty and guaranty (distinguished) vide Guaranty, &c. Warranty and representation (distinguished.) The former is an affirmance of some fact always in- serted in the policy and forming a condition which must be strictly complied with by the assured ; while the latter is a statement of some collateral circum- stances not embodied in the policy, although made before the contract is completed. Callaghan vs. Atlantic Ins. Co., 1 Edw. Ch. (N. Y.) 74. The former is a stipulation inserted in writing on the face of the policy and made a part of it, on the literal truth or fulfillment of which the validity of the en- tire contract depends. A representation is a verbal or written statement made by the insured to the un- derwriter before the subscription of the policy, as to the existence of some fact or state of facts, tending to induce the underwriter more readily to assume the risk by diminishing the estimate he would other- wise have formed of it. Pierce vs. Empire Ins. Co., 62 Barb. (N. Y.J 644. 4 Hun. 786. Warranty op soundness is a contract to indemnify the purchaser against any loss arising from the unsoundness of the thing sold. Wood vs. Ashe, 1 Strob. (S. C.J 412. ADJUDGED WORDS AND PUBISES. 641 WASTE WASTE Waste is spoil or destruction committed in houses or other corporeal hereditaments to the injury of one who has the remainder or reversion in fee. McCullough vs. Irvine's Exrs., 13 Perm. 8k 449. Whatever does lasting damage to the freehold. Jackson vs. Tibbitts, 3 Wend. (N. Y.J 342. (Quoting 2 Bl. Com. 281.) Waste has a technical meaning when it is used to denote spoliation or destruction to lands or other corporeal hereditaments by a tenant to the prejudice of the reversioner or remainder-man ; but it is not unfrequently used in a different and more compre- hensive sense, and may be applied to any squander- ing or misapplication of property or fund by trustees or others charged with a duty, or any abuse of trust or of duty by which property is lost or an estate or trust fund diminished in value. Aytrs vs. Laivrenee, 59 N. Y. 197. Waste is a spoil and destruction of the estate, either in houses, woods or lands, by demolishing not the temporary profits only, but the very substance of the thing. Parrott vs. Barney, 1 Sawyer (TJ. S. C. G.J 437. Any act, or omission of duty, by a tenant of land, which does a lasting injury to the freehold, tends to the permanent lqss of the owner of the fee, or to destroy or lessen the value of the inheritance, or to destroy the identity of the property, or impair the evidence of title. Bandlow vs. TMeme, 53 Wis. GO. (Quoting 6 Wait's Actions & Defenses 203. ) The destruction of such things on the land by a ten- ant for life or years as are not included in its tempo- rary profits. In other words, it consists in such acts as tend to the permanent loss of the owner in fee, or to destroy or lessen the value of the inherit- ance. Profflitt vs. Henderson, 29 Mo. 327. Waste is the abuse, or destructive use of property by him who has not an absolute unqualified title. Duvall vs. Waters, 1 Bland Ch. (Md.J 572. Waste, as ordinarily understood, implies wrongful 642 ADJUDGED WORDS AND PHKASES. WATER "WATER taking of property without right, -without sanction of law, in violation of right or of liens thereon. 62 How. Pr. R. (N. T.) 212. 10 K. T. 117 ; 6 Fla. 480; 3 Penn. L. Journ. 96; 2 Abb. (U. S. C. C.) ' 209; 11 Met. (Mass.) 310; 44 Barb. 449; 51 Barb. 255; 3 N. H. 107. Water course. „ A channel or canal for the conveyance of water, par- ticularly in draining lands. It may be natural, as when it is made by the natural flow of the water, caused by the general superficies of the surrounding land, from which the water is collected into one channel, or it may be artificial, as in the case of a ditch, or other artificial means, used to divert the water from its natural channel, or to carry it from low lands, from which it will not flow, in consequence of the natural formation of the surface of the sur- rounding land. Earl vs. DeHart, 1 Beasley Oh. (N. J.) 283. A water course is a stream of water, usually flowing in a definite channel, having a bed and sides or banks, and usually discharging itself into some other stream or body of water. LuiJier vs. Winnisimmet Co., 9 Gush. (Mass.) 174 It is a stream of water flowing in a certain direction by a regular channel with banks or sides, though it is not essential, to maintain that character, that the water should flow continually. Eulrioh vs. Richter, 41 Wis. 320. A water course consists of bed, banks and water ; yet the water need not flow continually ; and there are many water courses which are sometimes dry. Fryer vs. Warne, 29 Wis. 515. (Quoting Anyell on Water Courses, § 4.) 37 Wis. 2S8 ; 6 Hun 638 ; 51 Me. 525 ; 67 Me. 356 ; 27 Wis. 661 ; 16 Nev. 286 ; 75 Ind. 253. Water power (belonging to riparian owner) The water power to which a riparian owner is entitled consists of the fall in the stream when in its natural state, as it passes through his land, or along the boundary of it, or in other words, it consists of the difference of level between the surface where the stream first touches his land, and the surface where it leaves it. McCalmout vs. Whitalcer, 3 Rawle (Pa.) 84. lOEart). 521. adjudged words and phrases. 643 "way welsh Way is the right of going over another man's ground. Hart vs. CI talker, 5 Conn. 314. A way is an easement, and consists in the right of passing over another man's ground. Mining Co. vs. Kennedy et al., 3 Nevada 373. The word "way" is derived from the Saxon, and means a right of use for passengers. It may be pub- lic or private. Wild vs. Deig, 43 Ind. 458. (Quoting Angell on Highways, 1, 2.) ■vide Rigid of way. 23 Me. 82; 24 Cal. 487; 1 Ashm. 421; 4 Zab. 490. Week is a definite period of time, commencing on Sunday and ending on Saturday. Ronkendorf vs. Taylor's Lessee, 4 Peters ( U. S.J 361. Weighage. A duty or toll imposed by the English law, to be paid for weighing merchandise, as for weighing wool at the king's beam, or for weighing other avoirdupois goods. Hoffman vs. Jersey City, 5 Vroom (N. J.) 176. ' Weight of evidence and burden of proof (distinguished) vide Burden of proof, dec. Weir. It is a dam across a river. Arnold vs. Mundy, 1 Halst. (N. J.J 55. Well supplied with water (land represented to be) must be taken as a representation that the property in question is supplied with water by a spring rising in it, or by a running stream passing through or into it, and so supplied as a matter of right belonging or incident to the property, without rent or payment of any kind for the water or its use. Leyland vs. Illingworth, 2 Be G. F. & J. 252. Welsh mortgage is where the mortgagee enters at once and takes the rents instead of interest, and is by agreement or dis- tinct understanding to have no remedy for the prin- Bmtley vs. Phelps, 2 Woodb. & Minot, ( U. S. C. C.J 444. 644 ADJUDGED WORDS AND PHRASES. wharf whoee "Whaef. , A wharf is a structure erected on a shore below high water-mark, and sometimes extending into the chan- nel, for the laying vessels alongside to load or un- load, and on which stores are often erected for the reception of cargoes. Doane vs. Broad Street Ass., 6 Mass. 334. A sort of quay, constructed of wood or stone, on the margin of a road-stead or harbor, alongside of which ships or lighters are brought for the sake of being conveniently loaded or unloaded. Geiger vs. Filor, 8 Florida 332. Whaefage. A toll or duty for the pitching or lodging of goods upon a wharf. Money paid for landing goods at a wharf or quay, or taking goods into a boat and from thence. Kusenberg vs. Browne, 42 Penn. St. 179. 3 Bland. Ch. 173. "Wharfinger A wharfinger is one who keeps a wharf for receiving goods for hire. And his responsibility begins when the goods are delivered at, or rather on, the wharf, and he has either expressly, or by implication, so received them. Bodgers vs. Stopkel, 32 Penn. St. 113. "When (in will.) Standing unqualified and uncontrolled it is a word of condition ; denoting the time when the gift is to take effect in substance. Hanson vs. Graham, 6 Vesey 243. Whom it may conceen (in policy of ins.) is understood to mean, not any and every body who may chance to have an interest in the thing insured, but only such as are in the contemplation of the contract. Newson's Admr. vs. Douglass, 7 Harr. & J. (Md.J 450. "Whoee. A whore is a woman who practices unlawful com- merce with men, particularly one that does so for hire ; a harlot ; a concubine ; a prostitute. Sheehey vs. GoJcley, 43 Iozva 185. ADJUDGED WORDS AND PHKASES. <545 WHORE WILL Whore is the synonym for a prostitute, or lewd, or in- continent woman. Scott vs. McKinnish, 15 Ala. 664. Whoredom. Any act of sexual intercourse between a married fe- male and a male person not her husband, or between an unmarried female and a male person, is whoredom. Rodebaugh vs. Mollingsworth, 6 Ind. 343. "Widow. A woman whose husband is dead. Com. vs. Powell, 51 Penn. St. 440. 73 Me. 308. Wilful act. A wilful act is one done designedly, intentionally . or purposely, as contradistinguished from accident or absence of intention or design. Com. vs. Pervier, 3 Phila. R. 232. Wtlful misconduct. "Wilful misconduct" means misconduct to which the will is a party, something opposed to accident or negligence ; the misconduct, not the conduct, must be wilful. Lewis vs. Gt. Western By., 3 Q. B. Div. 206. Wilfully, in the ordinary sense in which it is used in statutes, means not merely " voluntarily," but with a bad pur- pose. Com. vs. Kneeland, 20 Pick. (Mass.) 220. It is frequently understood, as signifying an evil in- tent without justifiable excuse. Felton vs. United States, 6 Otto ( U. S.) 102. (Quoting 1 Bish. Cr. L. §428.) 34 Wis. 683. Wilfully (in definition of estoppel.) By the term " wilfully," we must understand, if not tliat the party represents that to be true which he knows to be untrue, at least that he means his repre- sentation to be acted upon, and that it is acted upon accordingly. Drew vs. Kimball, 43 N. Hamp. 285. Will. A will is an instrument by which a person makes a disposition of his property to take effect after his 646 ADJUDGED WORDS AND PHRASES. WILL WILL decease, and which is, in its own nature, ambulatory and revocable during his life. McDaniel vs. Johns, 45 Miss. 641. A will is so called because it expresses the will of the maker as to the direction his property shall take. McKee's Admr. vs. Means, 34 Ala. 361. It is a just and complete declaration of a man's mind, or last will of what he would have done with his es- tate after his death ; or according to some, a will is the declaration of the mind either by word or writ- ing, in disposing of an estate, and to take effect after the death of the testator. McGee vs. McCants, 1 McCord (S. C.) 522. A last will is a lawful disposing of that which any would have done after death. Morrow vs. Morrow, 2 Coop. Ch. (Tenn.J 563. A declaration of the mind, either by word or writing, in disposing of an estate ; and to take place after the death of the testator. It is in Latin called testamentum, i. e. testatio mentis, the witness of a man's mind ; and to devise by testament is to speak by a man's will, what his mind is, to have done after his death. . Hubbard vs. Hubbard, 12 Barb. (N. Y.J 153. A will is a> disposition of lands/rom the heir. It is an appointment of the person who shall take the speci- fic land. It is also an appointment of the specific estate, and so far it is in the nature of a conveyance. George vs. Green, 13 N. Hamp. 526. A will, or, as it is more properly called, a devise of real estate, is of an entirely different and opposite character to a testament. Conklin vs. Egerton's Adm., 21 Wend.- (N. Y.J 436. The legal declaration of a man's intentions, which he wills to be performed after his death. Smith vs. Bell, 6 Peters (U. S.J 75. (Quoting 2 SI. Com. 499.) A will is to be considered in two lights, as to the testament and the instrument. The testament is the result and effect in point of law, of what is the will; and that consists of all the parts ; and a codicil is then a part of the will, all making but one testament. Fuller vs. Hooper, 2 Ves. Sen. 242. vide Revocation ; Testament. 2 Geo. 36 ; 4 S. & P. (Pa.) 547; 71 Penn. St. 458 ; 80 Perm. St. 178 ; 2 Vesey Sen. 242 ; 1 B. & P. 618 ; 12 Phila. B. 71 ; 55 Ala. 71 ; 2 Head. 563 ; 9 Penn. 382. ADJUDGED WORDS AND PHRASES. 647 WILL WITNESS Will (in rape.) The word will, as employed in defining the crime of rape, is not construed as implying the faculty of mind by which an intelligent choice is made between objects, but rather as synonymous with inclination or desire ; and in that sense it is used with propriety in reference to persons of unsound mind. Croswcll vs. People, 13 Mich. 437. With all faults (selling.) The meaning of selling with all faults, is, that the purchaser shall make use of his eyes and understand- ing to discover what defects there are. But the ven- dor is not to make use of any artifice or practice to conceal faults, or to prevent the purchaser from dis- covering a fault, which he, the vendor, knew to exist. Smith vs. Andrews, 8 Ircri. Law (N. C) 6. Without negligence (where property is fired by a loco- motive) means the exercise of reasonable care and diligence on the part of the company, to avoid as far as practi- cable, injury to property along the line of its road ; that is to say, by having its engines properly con- structed and in good condition, and placed in the charge of skilful and prudent persons, and managed by such persons in a skilful and prudent manner ; and in keeping its road-b3d in proper condition by preventing the negligent accumulation of combusti- ble material. B. & 0. B. B. Co. vs. Shipley, 39 Md. 254. Without prejudice (withdrawal of suit by plaintiff) means that the position of the plaintiff is not to be unfavorably affected by the act of withdrawal. All his rights were to remain as they then stood. Creicjhton vs. Kerr, 20 Wallace (U. S.) 12. Without recourse (indorsement.) A special endorsement, in the words usually em- ployed, " without recourse" is an express declaration of the absence of responsibility. , / Bankhead vs. Owen, 60 Ala. 461. Witness. A witness is one, who being sworn or affirmed ac- 648 ADJUDGED WOKDS AND PHBASES. WITNESS WBECK cording to law, deposes as to his knowledge of facts in issue between the parties in the cause. The word witness is a most general term, including all persons, from whose lips testimony is extracted to be used in any judicial proceeding. Bliss vs. S human, 41 Maine 251, 2. " Witnesses," in a technical sense, are persons sworn to testify, or offered to testify in a cause. M'Chesney vs. Lansing, 18 John. (N. Y.J 389. The term witness in its strict legal sense, means one that gives evidence in a cause before a court. Barker vs. Goit et al., 1 Root (Conn.) 225. Wokds are the common signs that mankind make use of to declare their intention to one another ; and when the words of a man express his meaning plainly, dis- tinctly, and perfectly, we have no occasion to have recourse to any other means of interpretation. Pea Patch Island, 1 Wallace, Jr. (U. S. C. C.J cxlv. Woek hobse (in Ala. exemption act) means one that performs the common drudgery of the homestead. Noland vs. Wickham, 9 Ala. 172. WOEKING-TEAM. A laboring horse is of itself a "working-team." Finnin vs. Mallory, 1 Jones & Spencer (N. Y.J 392. Woeeying (in dog law) does not imply tearing with the teeth, but if a dog pursues and barks at the sheep, it is worrying under the statute. Finley vs. Aiken, 1 Grant's Cases (Pa. J 83. Wound is a solution of continuity in the soft parts, suddenly occasioned by external causes, and generally at- tended at first with hemorrhage. Bex vs. Wood, 4 C. & P. 381 n. Any injury to the person, by which the skin is broken. Moriarty vs. Brooks, 6 C. & P. 686. 22 Mo. 451. Weeck. The ruins of a ship which has been stranded or ADJUDGED WORDS AND PHRASES. 649 WRECK WRIT dashed to pieces on a shelf, rock, or lee shore by tempestuous weather. liesp. vs. LeCaze, 1 Teates (Pa.) 59. Such goods as after a shipwreck, are cast upon land by the sea, and left there, within some county ; for they are not wrecks so long as they remain at sea in the jurisdiction of admiralty. Baher vs. Hoag, 7 N. Y. 558. Goods cast into the sea to unburthen a ship in a storm, and never intended for Merchandise, are wreck, when cast on shore without any shipwreck. Shepherd vs. Gosnold, Vaugh. 168. A ship becomes a wreck when in consequence of the injury she has received, she is rendered absolutely innavigable, or unable to pursue her voyage, without repairs exceeding half of her value. Wood vs. Lincoln, &c, Ins. Co., 6 Mass. 482. 7 Barb. 115. Weit is, in its general meaning, a mandatory precept, is- sued by the authority and in the name of the sov- ereign or the state, for the purpose of compelling the defendant to do something therein mentioned. Baird vs. Pridmore, 31 How. Pr. 11. (N. Y.) 362. (Quoting Bouvier L. Diet. ) Weit of assise. The writ of assise is a remedy which the law has provided for a freehold rent, when it is unjustly taken away. Farley vs. Craig, 6 Hoist. (N. J.) 272. Weit op eeeoe is a process of common law origin, and it removes nothing for reexamination but the law. Wiscart vs. Dauchy, 3 Dallas (U. S.) 327. A writ of error is defined to be 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 examination, to affirm or reverse the same, according to law. Cohens vs. Virginia, 6 Wheaton (TJ. S.) 409. A writ of error is an original writ, issuing out of the court of chancery, in the nature as well_ of a certiorari to remove a record from an inferior into a 650 ADJUDGED WORDS AND PHRASES. WHIT WRITS superior court, as of a commission to the Judges of such superior court to examine the record and to affirm or reverse it, according to law ; and lies where a party is aggrieved by any error in the foundation, proceeding, judgment, or execution, of a suit in a court of record. Lowe vs. Morris, 13 Georgia 148. A writ of error is in the nature of a new suit, brought to obtain redress against an erroneous adjudication or proceeding. Hurchman vs. Cook, Spencer (N. J.) 2T3. A writ of error is an adversary suit ; it is a new suit, and must have the requisite parties. Gisna vs. Beach, 15 Ohio 301. 6Ha. 289; 61 Ala. 484; 7 Craneh. Ill; 9 Bradwell (111.) 457; 20 Geo 535. Writ op error and appeal (distinguished) vide Appeal, &c. Writ op prohibition is a writ issuing properly out of the court of King's Bench, being the king's prerogative writ, but for the furtherance of justice directed to the judge and parties of a suit in any inferior court, commending them to cease from the prosecution thereof upon a sugges- tion that either the cause originally, or some collat- eral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court, or if in handling of matters clearly within their cognizance they transgress the bounds pre- scribed to them by the laws. Doughty et al. vs. Walker, 54 Georgia 59S. (Quoting 3 Bl. Com. 112.) Writ op review. A writ of review is a writ of right, in the nature of a scire facias to hear errors, in a record or process re- maining with the court. BurreUvs. Burrell, 10 Mass. 222. Writs or other process (in int. rev. act.) They comprehend any instrument or paper whatever which in effect transfers a cause from an inferior to a superior court. Mussellman vs. Mauk, 18 Iowa 240. ADJUDGED WORDS AND PHRASES. 651 writing &g. Writing obligatory. The words " writing obligatory," technically, mean a written contract, under seal. Watson vs. Hoge, 7 Yerg. (Tenn.J 350. & stands for " and." Hunt vs. Smith, 9 Kansas 153. &G. (and etc.) respectively stand for " and so forth." Hunt vs. Smith, 9 Kansas 153. &c. (at end of plea) means every necessary matter that ought to be made out. Sayer vs. PococJc, 1 Gowp. 408. It doth imply some other necessary matter. Bards. & L. B. B. Go. vs. Metcalfe 4 Met. (Ky) 211. 1 Cowen 114 ; 4 Zab. (N. J.) 554. vo Ju'8'^D a^ >=+Ar^?3^WW f .*2Sii^ m -.«««».'>'