1. in_ernet_dli_2015_169477_2015_169477_A-Dictionary-Of-American-And-English-Law-Vol-Ii

acceptor of a bill of exchange. Byles Bills (11 edit.) 5, 215.

MAKING.

MAKING A LIBEL,

MAKING AN ARTICLE,

MAKING LAW.— Clearing one's self of an action, &c., by an oath and the oath of neighbours.—O. N. B. 161; Kitchin 192.

MAKING OF THE SALE,

MAL.— A prefix meaning bad, wrong, fraudulent; as mal-administration, mal-practice, malversation, &c.

MALA.— (1) Bad. (2) A mail, or portm ail; a bag to carry letters, &c.

MALA FIDES.— Bad faith. The opposite of bona fides (q. v.)

Mala grammatica non vitiat chartam. See in expositione instrumento-rum mala grammatica quoad fieri possit evitanda est (6 Co. 39): Bad grammar does not vitiate a deed. But in the exposition of instruments, bad grammar, as far as it can be done, is to be avoided.

MALA IN SE— MALA PROHIBITA.— Mala in se are acts which are wrong in themselves, such as murder, as opposed to mala prohibita (mala quia prohibita), or those acts which are only wrong because they are prohibited by law, such as smuggling. The distinction was formerly of importance with reference to the exemption of ambassadors, which, according to the earlier writers, only extended to mala prohibita; but this is no longer the case. 2 Steph. Com. 486. See AMBASSADOR.

MALA PRAXIS.— This is where a medical practitioner injures his patient by neglect, want of skill, or for experiment. Ordinary cases of mala praxis give rise to a right of action for damages. (See TORT.) In some cases of gross misconduct the party may be indicted. 3 Steph. Com. 376. See, also, Miscarriage.

MALA PROHIBITA.— See MALA IN SE.

MALANDRINUS.— A thief or pirate. Wals. 388,

MALBERGE.— A hill where the people assembled at a court, like the English assizes; which by the Scotch and Irish were called "parley hills."—Du Cange.

MALE.— The sex which begets off spring; also, a member of that sex.

MALE CHILDREN,

MALE CHILDREN,

MALE CREDITUS.— One of bad credit, who is not to be trusted. Fleta 1. 1, c. xxxviii.

Maledicta est expositio quæ corrumpit textum (4 Co. 35): It is a bad exposition which corrupts the text.

MALEDICTION.— A curse, which was anciently annexed to donations of lands made to churches or religious houses, against those who should violate their rights.—Cowell.

MALEFACTION.— A crime, an offense.

MALEFACTOR.— One who has committed a criminal offense; also, one convicted of crime.

Maleficia non debent remanere impunita; et impunitas continuum affectum tribuit delinquenti (4 Co 45): Evil deeds ought not to remain unpunished; and impunity affords continual incitement to the delinquent.

Maleficia propositis distinguuntur (Jenk. Cent. 290): Evil deeds are distinguished from evil purposes.

MALEFICIUM.— In the civil law, waste; damage; injury.

MALESON, or MALISON.— A curse.—Bailey.

MALESWORN, or MALSWORN.— Forsworn.—Cowell.

MALETOLT— MALETOUTE.— A toll for every sack of wool. Stat. 25 Edw. I. c. 7.

MALFEASANCE.— The doing of an unlawful act, e. g. a trespass. (Britt. 72a; Cro. Jac. 266; 3 Steph. Com. 363.) Norman-French, mau or mal, wrongly, and feasance, to do. See MISFEASANCE; NONFEASANCE; TORT.

MALFEASANCE,

MALICE— MALICIOUS.— LATIN: malitia, fraud, dishonesty, evil intention, from malus, bad. Dirksen Man. Lat.

§ 1. Malice in law.— "Malice, in the legal acceptation of the word, is not con-

MALICED. (784) MALICIOUS.

fined to personal spite against individuals, but consists in a conscious violation of the law to the prejudice of another." (Per Lord Campbell in Ferguson v. Earl of Kinnoul, 9 Cl. & F. 321, cited Shortt Copyr. 389.) "Malice, in common acceptation, means ill-will against a person; but in its legal sense, it means a wrongful act done intentionally without just cause or excuse. If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally, and without just cause or excuse. . . . If I am arraigned of felony, and willfully stand mute, I am said to do it of malice, because it is intentional, and without just cause or excuse." Per Bayley, J., in Bromage v. Prosser, 4 Barn. & C. 255, cited Ib. See Steph. Cr. Dig. 144.

§ 2. Malice in fact.—Personal spite or ill-will is sometimes called "actual malice," "express malice," or "malice in fact," to distinguish it from "malice in law." See Toogood v. Spyring, 1 Cromp. M. & R. 193; Wright v. Woodgate, 2 Id. 577, cited Shortt 428; per Brett, L. J., in Clark v. Molyneux, 3 Q. B. D. 247; Capital and Counties Bank v. Henty, 5 C. P. D. 514. As to the effect of actual malice in questions of libel and slander, see Privilege.

§ 3. Malice aforethought.—In the definition of murder, malice aforethought exists where the person doing the act which causes death has an intention to cause death or grievous bodily harm to any person (whether the person is actually killed or not), or to commit any felony whatever, or has the knowledge that the act will probably cause the death of or grievous bodily harm to some person, although he does not desire it, or even wishes that it may not be caused. Steph. Cr. Dig 144; 1 Russ. Cr. 641. See Homicide; Manslaughter; Murder.

Malice, (defined). 1 Hughes (U. S.) 525, 528; 4 Mas. (U. S.) 115; 20 Ga. 156; 1 Ind. 341; 36 Ga. 480, 484; 66 Id. 324; 111 Mass. 498; 9 Metc. (Mass.) 93, 115; 35 Mich. 16; 30 Miss. 673; 31 Mo. 147; 48 Id. 152, 323; 74 Id. 211; Wright (Ohio) 20, 392; Add. (Pa.) 156; 2 Browne (Pa.) 251; 58 Pa. St. 9; 12 Phil. (Pa.) 553; 8 Tex. App. 90, 626; 3 Crim. L. Mag. 217; 9 West. L. Jour. 407; 2 Barn. & C. 257, 268; 4 Id. 255; 1 T. R. 518; 1 Chit. Gen. Pr. 46; 2 Stark. Ev. 902.

(what constitutes). 122 Mass. 235, 239; 9 Metc. (Mass.) 410; 15 Pick. (Mass.) 337

Malice, (not synonymous with "spite" or "hatred"). 77 Ill. 32.

(when implied in law). 50 Vt. 130.

(to support action for malicious prosecution). 77 Ill. 32.

(in action of libel). 3 Barn. & C. 584.

(in action of slander). 4 Barn. & C. 247, 254.

(in act of congress). 1 Curt. (U. S.) 501; 2 Sumn. (U. S.) 584.

MALICE AFORETHOUGHT.—See Malice, § 3.

Malice aforethought, (defined). 35 Mich. 16; 74 Mo. 211; 1 Hale P. C. 450; Stark. Cr. Pl. 83.

(what constitutes). 2 Mas. (U. S.) 91; 29 Ga. 594; 5 Cush. (Mass.) 306; 13 Mo. 382; 49 N. H. 399; 58 Pa. St. 9.

(means malice with premeditation). 70 Mo. 594.

(synonymous with "premeditated design"). 58 Miss. 778.

Malice express, (defined). 3 Harr. (Del.) 373; 26 Ga. 156; 37 Me. 403; 1 Ashm. (Pa.) 289.

(what is). 21 Miss. 263

(distinguished from "implied malice"). 12 Phil. (Pa.) 553.

Malice, implied, (defined). 3 Harr. (Del.) 373.

(what is). 21 Miss. 263; 2 Hilt. (N. Y.) 40.

Malice in fact, (defined). 66 Me. 202; 2 Stark. Ev. 904.

Malice in law, (defined). 2 Stark. Ev. 903.

Malicious, (defined). 1 Dak. T. 472; 9 La. Ann. 35.

(in slander). 14 Vr. (N. J.) 21.

MALICIOUS ABANDONMENT.—See Abandonment, § 5.

MALICIOUS ARREST.—This is where a person maliciously, and without reasonable cause, procures another to be arrested. He thereby makes himself liable to an action for damages. The term is practically confined to cases of arrest in civil cases. Underh. Torts 738; Broom Com. L. 738 See Debtor's Act; False Imprisonment; Malice; Tort.

Malicious arrest, (defined). 1 Chit. Gen. Pr. 48.

Malicious injuries, (in a declaration). 1 Mau. & Sel. 304.

MALICIOUS INJURIES TO THE PERSON.—Every one who unlawfully and maliciously wounds or causes any grievous bodily harm to any person, or shoots or attempts to shoot him with the intent in any such case to maim, disfigure

disable, or do some grievous bodily harm to him, is guilty of felony, and liable, in England, to penal servitude for life, (Stat. 24 and 25 Vict. c. 100, § 18 et seq; Steph. Cr. Dig. 156;) and in Anserica, to imprisonment for various terms of years, according to the statutes of the several States. See MAYHEM.

MALICIOUS INJURIES TO PROPERTY.—Those injuries to property which proceed rather from malicious or wanton motives than from any proposed gain to the offender. They are in many cases criminal acts. They include, among other offenses, arson (q. v.), causing injuries to buildings, &c., by gunpowder, destroying trees, cattle, &c., exhibiting false signals, removing buoys, &c., causing injuries to machinery, goods in process of manufacture, canals, telegraphs, ships, &c. Actual malice against the owner of the property is not essential. 2 Russ. Cr. 832.

MALICIOUS MISCHIEF.—See Malicious Injuries to Property.

MALICIOUS MISCHIEF, (what is). 3 Dev. & B. (N. C.) L. 130. — (indictment for). 65 Ga. 410.

MALICIOUS PROSECUTION is where a person maliciously institutes proceedings, civil or criminal, against another without probable cause, i. e. believing that he is innocent. For the damage thereby caused to the accused he can sustain an action against the wrong-doer. Broom Com. L. 741; Underh. Torts 99. See MALICE; TORT.

MALICIOUS PROSECUTION, (defined). 1 Chit. Gen. Pr. 48. — (what constitutes). 6 Dowl. & Ry. 8. — (when action lies). Penn. (N. J.) 978.

MALICIOUSLY, (defined). 122 Mass. 19, 35. — (as indicating intent). 116 Mass. 343. — (as meaning a wicked intent to injure). 30 Conn. 80. — (as used in an indictment). 127 Mass. 15.

— (in an indictment for perjury). 5 Barn. & C. 246, 250. — (in 2 declaration). 13 Serg. & R. (Pa.) 233; 1 Saund. 242 n. — (in a statute). 5 Mas. (U. S.) 192; 1 Sumn. (U. S.) 394; 3 Cush. (Mass.) 558; 105 Mass. 463.

MALICIOUSLY AND FELONIOUSLY, (in an indictment). 127 Mass. 15, 17.

MALICIOUSLY KILLING THE BEAST OF ANOTHER, (what constitutes). 7 Ala. 728; 1 Minn. 292; 3 Yerg. (Tenn.) 278.

MALICIOUSLY REFUSING A VOTE, (what will establish a charge of). 2 La. Ann. 968.

MALIGNARE.—To malign or slander; also, to maim.

MALITIA PRÆCOGITATA.—Malice aforethought. See MALICE, § 3.

Malitia supplet ætatem (Dyer 104b): Malice supplies [the want of] age. In the case of infants, between the ages of seven and fourteen years, committing crimes (other than the crime of rape, which with them is a legal impossibility), the child's criminal capacity, i. e. intelligence, may be proved by showing that, notwithstanding his tender years, he was fully aware of the character of the criminal act, his supplying the lack of age, upon this maxim, "Malice supplies the defect of years." It is doubtful if the maxim applies to children under the age of seven years; but the corresponding maxim of evidence, sapientia supplet ætatem does, undoubtedly, apply even to them.

MALO GRATIA.—In spite; unwillingly

MALT LIQUOR, (in liquor act). 55 Ala. 158; 67 Me. 242.

MALT MULNA.—A quern or malt mill

MALTREATMENT, (synonymous with "bad treatment"). 2 Alien (Mass.) 142.

MALT-SHOT, or MALT-SCOT.—A certain payment for making malt.—Somner.

MALUM IN SE.—See MALA IN SE.

Malum non habet efficientem, sed deficientem causam (3 Inst. Proem.); Evil has not an efficient, but a deficient cause.

Malum non præsumitur (4 Co. 72): Evil is not presumed.

MALUM PROHIBITUM.—See MALA PROHIBITA.

MALUM PROHIBITUM, (distinguished from "malum in se"). 7 Wend. (N. Y.) 279; 1 Bl. Com. 54; 2 Stark. Ev. 88, n.

Malum quo communis eo pejus: The more common an evil is, the worse.

Malus in uno malus in omnibus: Bad in one respect, bad in all. This maxim is like that other maxim, falsus in uno falsus in omnibus, and both maxims are most dangerous in their indiscriminate application. As applied to witnesses, it means that where their testimony is discredited or falsified in one thing, it is discredited and falsified in whole, whereas, in point of fact, the utmost effect of the partial discredit should be to render one's

VOL. II. 22

MALUS.

judgment of the rest more severely careful. The maxim expresses a small truth in a very exaggerated form.

Malus usus est abolendus (Litt. § 212) : An evil or invalid custom [or an abuse] ought to be abolished.

MALVEILLES.—Ill-will; crimes and misdemeanors; malicious practices.—Cowell.

MALVEIS PROCURORS.—Such as used to pack juries, by the nomination of either party in a cause, or other practice. (Art. super Chart. c. x.)—Cowell.

MALVEISA.—A warlike engine to batter and beat down walls.

MALVERSATION.—Misbehavior in an office, employment, or commission, as breach of trust, extortion, &c.

MAN.—A human being of the male sex who has arrived at the age of puberty. The word is often used, however, as including the entire human race; and in old English law, it meant a vassal, or feudatory.

MAN, (in a statute). 31 Ark. 268, 271. — (when does not include “woman”). Wilberf. Stat. L. 123.

MAN, DOG, OR CAT, (in a statute). Wilberf. Stat. L. 216.

MANA.—An old woman.—Jacob.

MANACLES.—Chains for the hands; shackles.

MANAGE, (in a will). 7 Johns. (N. Y.) 558. MANAGE AN ESTATE, (in a will). 7 Cow. (N. Y.) 81.

MANAGE AND SUPERINTEND, (in sole trader act). 15 Nev. 45.

MANAGED CARELESSLY AND NEGLIGENTLY, (in a declaration). 10 R. I. 22.

MANAGER.—

§ 1. Chancery practice.—In English Chancery practice, when a receiver (q. v.) is required for the purpose not only of receiving rents and profits, or of getting in outstanding property, but of carrying on or superintending a trade or business, he is usually denominated a “manager” or a “receiver and manager.” The most usual cases in which managers are appointed, are those in which partnership trades are to be carried on, or which relate to mines or collieries. Dan. Ch. Pr. 1617. See ADMINISTRATION, § 1.

§ 2. If the trade or property is abroad, or in one of the colonies, and the manager must necessarily be resident there, it is usual to add to the order directing the appointment of a manager an order for the appointment of one or more consignee or consignees resident in this country, to whom the produce of the property in question may be remitted, and by whom it may be disposed of. Ib.

As to the appointment of a manager by way of execution of a judgment, see EXECUTE, § 7.

§ 3. Bankruptcy.—In bankruptcy, a manager of the business of the debtor may be appointed by the court at any time after the presentation of the petition for adjudication or arrangement by liquidation or composition. A manager may also be appointed by the creditors themselves in an arrangement by liquidation or composition. English Bankr. Act, 1869, § 13; Bankr. Rules (1870) 260; Robs. Bankr. 335, 053.

§ 4. Parliamentary.—In parliamentary practice, where the two houses of parliament have a conference (e. g. to settle amendments to a bill as to which there is a difference between the two houses), each house appoints managers (the same as the American “conference committee;” see CONFERENCE, § 2,) to represent it, and the conference is held between the managers. (May Parl. Pr. 454.) As to managers on an impeachment, see that title.

MANAGER, (in companies act). L. R. 10 Q. B. 329.

MANAGING, (in a statute). 6 Pet. (U. S.) 517. MANAGING AGENT, (in a statute). 13 Hun (N. Y.) 150; 19 Id. 405, 403.

MANAGING OWNER OF SHIP. —The managing owner of a ship is one of several co-owners, to whom the others, or those of them who join in the adventure, have delegated the management of the ship. He has authority to do all things usual and necessary in the management of the ship and the delivery of the cargo, to enable her to prosecute her voyage and earn freight, with the right to appoint an agent for the purpose. It seems that it is a question to be decided in each case, whether a managing owner has been appointed by all his co-owners or only by some of them, and consequently whether he has power to bind all of them or only some of them; “he binds those whom agent he is; he binds nobody besides.” Per Bowen, J., in Frazor v. Cuthbertson, 3 Q. B. D. 93; see Coultburst v. Sweet, L. R. 1 C. P. 649. See, also, SHIP'S HUSBAND.

§ 2. Registration.—Under the English Merchant Shipping Act, 1876, § 36, the name and address of the managing owner for the time being of every registered British ship must be registered; or if there is no managing owner, the ship's husband or other person to whom the management of the ship is entrusted, must be registered.

MANAGIUM.—A mansion-house or dwelling-place.—Cowell.

MANAGIUM.

MANBOTE.(787)MANBOTE.—A compensation or recompense for homicide, particularly due to the lord for killing his man or vassal, the amount of which was regulated by that of the wer.—Anc. Inst. Eng.MANOA, MANOOS, or MANOUSA.—A square piece of gold coin, commonly valued at thirty pence.—Cowell.MANOEPS.—A farmer of the public revenues; one who sold an estate with a promise of keeping the purchaser harmless; one who bought an estate by outcry; one who undertook a piece of work and gave security for the performance.—Wharton.MANCHE—PREESENT.—A bribe; a present from the donor's own hand.MANCIPATE.—To enslave; to bind; to tie.MANCIPATIO.—In Roman law, a process of conveyance applicable only to res mancipi. It was effected by means of a balance and scales, with a piece of bronze to represent the purchase money or price (per aes et libram); and the ceremony of the mancipatio took place in the presence of five witnesses and of the libripens (balance—holder), and of the emptor (purchaser), making, in all, seven persons who were witnesses of the act of the vendor. In case the vendor was the true owner, the munci—pation at once transferred the dominium to the purchaser; but otherwise, the process of usucapio was required to complete the conveyance of the dominium. Where traditio of a res mancipi was made, then traditio plus usucapio equalled (in effect) mancipatio. There could be no mancipatio of res nec mancipi; and in Justinian's time, there being no res mancipi, it followed that there was no mancipatio, but only delivery (traditio), and which delivery (when made by the true owner) had the same effect as the old mancipatio in transferring the dominium; but traditio (when made otherwise) required usucapio or longi temporis possessio to complete that transfer.—Brown.MANCIPI VEL NEO MANCIPI.—In Roman law, a division of res (i. e. things). It corresponded as nearly as may be to the early distinction of English law into real and personal property—res mancipi being objects of a military or agricultural character, and res nec mancipi being all other subjects of property. Like personal estate, res nec mancipi were not originally either valuable in use or valued. The distinction was completely obsolete in Justinian's time, both classes having then the same level.—Brown.MANCIPIUM.—In Roman law, the moment—ary condition in which a filius, &c., might 'be when in course of emancipation from the potestas, and before that emancipation was absolutely complete. The condition was not like the dominica potestas over slaves; but slaves are frequently called mancipia in the non—legal Roman arthors.—Brown.

MANCIPLE.—A clerk of the kitchen, or caterer, especially in colleges.—Cowell.MANDAMUS.—The writ of mandamus is so called from the words 'quod mandamus, "we command you," with which, when the writ was in Latin, the mandatory part commenced (See the formsgi:en in Tapping 437, 438 and 11 Co 93a Bagg's Case') Originally, "mandamus" was the generic name for a class of writs varying in their form and object, (or examples, see Termes de la Ley; Tapping 1. n. (a).) but totally different from the modern prerogative writ, for the sake of distinc—tion, was called "special mandamus" (R v. Gower, 3 Salk . 30) In the fourteenth, and the beginning of the fifteenth century, the writ was in form a mere letter—missive from the sovereign During the latter half of the fifteenth century, the writ was directed to is—ue on a petition to parliament for redress It thus became in form a parliamentary writ, and, being then chiefly used to enforce restitution to public of—fices was com—monly known as the "writ of restitution" Finally it became an original writ, issuable by the Court of King's Bench in all cases where there was a legal right, but no other specific remedy. Tapping 3.§ 1. A writ is issued in certain cases to compel the performance of a duty. It is directed to the person who is subject to the duty, and not to a sheriff or similar officer. Writs of mandamus are of two kinds.§ 2. Prerogative writ of man—damus.—The prerogative writ of man—damus issues in the name of the sov—ereignty, from the highest court of general jurisdiction, "in some cases where the injured party [the prosecutor] has also another more tedious method of redress, as in the case of admission or restitution to an office; but it issues in all cases where the party hath a right to have anything done, and hath no other specific means of compelling its performance," (3 Bl. Com. 110; 3 Steph. Com. 630,) especially where the obligation arises out of the official status of the respondent, and is hence of a public or quasi—public char—acter. Thus, the writ is used to compel the election of corporate officers; to compel public officers to perform duties imposed upon them by common law or by statute; to compel inferior courts to proceed in matters within their juris—diction, (see Procedendo; Prohibi—tion); to compel the lord of a manor to admit a person as tenant of copyholds. (See Admittance.) It is also applicable in certain cases where a duty is imposed by statute for the benefit of an individual. Thus, it lies to compel a railway company to comply with the provisions of its char—ter for the benefit of private persons, e g. to build a bridge, open a road, &c. The writ recites the facts giving rise to the

obligation, and commands the defendant to do the act or show cause why he does not. He may excuse himself by showing that the prosecutor on his own showing is not entitled to the writ, or by traversing some material fact alleged in the writ, or by alleging fresh matter as an answer to the prosecutor's case. If the return is insufficient or false, the prosecutor may move to quash it, or may traverse, plead or demur to it, or may bring an action to recover damages for a false return. (See Return.) In any case, if the prosecutor is successful the court awards a peremptory mandamus, to which no excuse or other return, except performance of the act required, is allowed. (3 Bl. Com. 111; Tapping 7, 400 et seq. An appeal may be brought from the granting of a peremptory mandamus; Reg. v. All Saints, Wigan, 1 App. Cas. 611.) By the English Common Law Procedure Act, 1854, § 77, the provisions of that act, and of the Common Law Procedure Act, 1852, so far as they are applicable, are extended to the pleadings and proceedings upon the prerogative writ of mandamus.

§ 3. Mandamus for the examination of witnesses.-When witnesses whose evidence is required in a case pending in the English High Court, are resident in India or other parts of the queen's dominions abroad, a writ in the nature of a mandamus may be issued requiring the judges of the principal court in the colony to examine the witnesses and send over the depositions to be used at the trial. Chit. Gen. Pr. 345 ; Sm. Ac. 95. See Commission to take Testimony.

§ 4. Action of mandamus.-By the C. L. P. Act, 1854, (§§ 68-74,) the plaintiff in any action in any of the superior courts (except replevin and ejectment) might claim a writ of mandamus, commanding the defendant to fulfill any duty in the fulfillment of which the plaintiff was personally interested. The construction put upon this section limited it to cases where the duty is of a public or quasi-public nature, (e. g. to compel a railway company to carry out a compulsory purchase (Fotherby v. Met. Rail. Co., L. R. 2 C. P. 188,)) and not merely personal, such as that arising out of a contract. (Benson v. Paul, 6 El. & B. 273 ; 25 L. J. Q. B. 274.) If the plaintiff recovered judgment the court might, besides issuing execution in the ordinary way for the costs and damages, issue a peremptory writ of mandamus directed to the defendant and commanding him forthwith to perform the duty to be enforced. (Day C. L. P. Acts 319 et seq.; Republic of Costa Rica v. Stronsberg, 11 Ch. D. 323.) The Judicature Acts contemplate actions of mandamus, (Judicature Act, 1875, App. A., part II., § 4,) but contain no provisions on the

subject; the provisions of the C. L. P. Act, 1854, therefore appear to remain in force, subject to the interpretation above mentioned.

§ 5. Interlocutory mandamus.-By the English Judicature Act, 1873, and under the provisions of numerous reformed codes of proceeding in America, an interlocutory mandamus may be granted in any case in which it shall appear to the court to be just or convenient. See Injunction.

Mandamus, (defined). 56 Ala. 596. (is a "suit" within United States constitution). 2 Pet. (U. S.) 449 ; 14 Id. 564.

MANDANT.-The principal in the contract of mandate.

Mandata licita strictam recipiunt interpretationem; sed illicita latam et extensam (Bac. Max. Reg. 16) : Lawful authority is to receive a strict interpretation; unlawful authority a wide and extended interpretation. See per Byles, J., in Parkes v. Prescott, 38 L. J. Ex. 111, and L. R. 4 Ex. 182.

Mandatarius terminus sibi positos transgredi non potest (Jenk. Cent. 53) : A mandatory cannot exceed the bounds placed upon himself.

MANDATARY.-He to whom a mandate, charge, or commandment is given; also, he that obtains a benefice by mandamus.

MANDATE.

§ 1. Judicial.-A judicial command, charge, commission.

§ 2. Bailment.-A bailment of goods, without reward, to be carried from place to place, or to have some act performed about them. The person employed is called, in the civil law, "mandatary" or "mandatory," and the person employing "mandatary" or "mandatory." The distinction between a mandate and a deposit is, that in the latter the principal object of the parties is the custody of the thing; and the service and labor are merely accessorial. In the former the labor and service are the principal objects of the parties, and the thing is merely accessorial. Three things are necessary to create a mandate: (1) that there should exist something which should be the subject of the contract, or some act or business to be done; (2) that it should be done gratuitously; (3) that the parties should voluntarly intend to enter into the contract. A mandatary incurs three obligations: (1) to do the act which is the

MANDATE.

orject of the mandate, and with which he is charged; (2) to bring to it all the care and diligence that it requires; (3) to render an account of his doings to the mandator. A mandator contracts to reimburse a mandatary for all expenses and charges reasonably incurred in the execution of the mandate, and also to indemnify him for his liability on all contracts which arise incidentally in the proper discharge of his duty. The contract of mandate may be dissolved either by the renunciation of the mandatary, at any time before he has entered upon its execution, or by his death; fur, being founded in personal confidence, it is not presumed to pass to his representatives, unless there is some special stipulation to that effect. But if the mandate be partly executed, there may, in some cases, arise a personal obligation on the part of the representatives to compel it. Story Bailm. c. iii.

§ 3. In the canon law, a rescript of the pope, by which he commands some ordinary zollator or precentor to put the person there nominated in possession of the first benefice vacant in his collation. As to their abuses, see 2 Hall. Mid. Ages 212.

§ 4. Royal mandates to judges for interfering in private causes, constituted a branch of the royal prerogative, which was given up by Edward I. And the 1 W. & M. st. 2, c. 2, declared that the pretended power of suspending or dispensing with laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.—Wharton.

§ 5. A direction or request.—Thus a check is a mandate by the drawer to his banker to pay the amount to the transferee or holder of the check. Smith v. Union Bank, 1 Q. B. D. 38.

Mandate, (defined). 42 Miss. 525.

— (in the code). 5 La. Ann. 672; 7 Id. 207.

MANDATOR.—Director. See Mandate, § 2.

MANDATORY.—Imperative; compulsory. The mandatory part of a writ is that part by which the person to whom it is directed is commanded to do the act required of him; the mandatory part of a statute is that part which must be obeyed or the act done is void, as distinguished from the "directory" part of the law, disregard of which is not necessarily fatal.

MANDATORY INJUNCTION, (when may be granted). 20 Am. Dec. 390 n., 396 n.

MANIFESTA.

MANDATUM.—See Bailment, § 2.

MANDAVI BAILIVO.—I have commanded the bailiff. If a bailiff of a libety have the execution and return of a writ, the sheriff may return that he commanded the bailiff to execute it; and if the bailiff have not made a return, the sheriff should return that fact accordingly (mandavi ballivo, qui nullum dedit responsum); or if he have made a return, the sheriff should return it. 1 Chit. Arch. Prac. (12 edit.) 628.

MANENTES.—Tenants. Obsolete.—Cowell.

Manerium dicitur a manendo, secundum excellentiam, sedes magna, fixa, et stabilis (Co. Litt. 58): A manor is so called from manendo, according to its excellence, a seat, great, fixed, and firm.

MANGONARE.—To buy in a market. Leg. Etheld. c. 24.

MANGONELLUS.—A warlike instrument for casting stones against the walls of a castle.—Cowell.

MANHOOD, (defined). 1 Dev. & B. (N. C.) Eq. 535.

MANIA. — Mental alienation (q. v.) See, also, INSANITY; LUNACY.

MANIA, (defined). 2 Abb. (U. S.) 507.

MANIA A POTU.—Otherwise delirium tremens (q. v.), a disease induced from the intemperate use of spirituous liquors or certain other diffusible stimulants.

MANIFEST.—In commercial navigation, a document signed by the master, containing the names of the places where the goods have been laden, and the places for which they are destined, the name and tonnage of the vessel, the name of the master, and the place to which the vessel belongs, a particular description of the packages on board, marks, numbers, &c., the goods contained in them, and the names of the shippers and consignees, as far as known. The manifest must be made out, dated and signed by the captain, at places where the goods, or any part, are taken on board.—Wharton.

Manifesr, (in a statute). 71 N. Y. 481, 486.

Manifesta probatione non indigent (7 Co. 40): Things manifest do not require proof.

MAˉNIFESTO.

(790)

MANOR.

MANIFESTO.—A public declaration made by a prince, in writing, showing his intentions to begin a war or other enterprise, with the motives that induce him to it, the reasons on which he founds his rights and pretensions.—Encycl. Lond.

MANIPULUS.—A handkerchief, which the priest always had in his left hand.—Blount.

MANNER AFORESAID, (in pleading). Plowd. 39.

MANNER AND FORM, (in articles of marriage settlement). 1 Sim. & S. 477.—(in an indictment). 3 Stark. Ev. 1588.—(in pleading). Gould. Pl. 316.—(in verdict of jury). 2 Serg. & R. (Pa.) 43.

MANNER AND FORM FOLLOWING, THAT IS TO SAY, (in an indictment). 1 Doug. 193.

MANNER AND PROPORTION AS HE SHALL THINK PROPER, IN SUCH, (in a devise). 4 Call (Va.) 477.

MANNER FOLLOWING, (in a deed). 5 T. R. 522.

MANNER, IN LIKE, (in a statute). 8 Nev. 15, 29 ; 81 Pa. St. 27, 31.

MANNER, IN SUCH, (in a statute). 36 Conn. 447 ; 75 Pa. St. 39, 54.

MANNER, IN THE, (in an agreement). 2 Serg. & R. (Pa.) 544.

MANNING.—A day's work of a man.—Cowell. A summoning to court.—Spel. Gloss.

MANNIRE.—To cite any person to appear in court and stand in judgment there ; it is different from bannire; for though both of them are citations, this is by the adverse party, and that is by the judge.—Du Cange.

MANNOPUS.—Goods taken in the hands of an apprehended thief.—Cowell. See Manu Opera.

MANNUS.—A horse.—Cowell.

MANOR.—Manor is derived from the Norman-French: manoir, maners, (Latin: manerium from manere, to remain or dwell,) a dwelling or habitation, originally applied to the mansion of the lord. (Dupon et 1.ab. Gloss. v.; 2 Bl Com 90, n. (13); Perkins § 670) It is now generally supposed that manors were not a creation of the Norman conquest, but an adaptation to the Norman rules of tenure of the institutions which existed among the Saxons. Wms Real Prop. App. C.; Wins Seis 13; Maine Early Inst. 6; Digby Hist. R P 11, 34, and the works there referred to, especially Stubbs

§ 1. Properly speaking a manor is a district of land of which the freehold is vested in a person called "the lord of the manor," of whom two or more persons, called "freeholders of the manor," hold other land, in respect of which they owe him certain free services, rents or other duties.* Hence every manor must be at least as old as the Statute of Quia Emptores (q. v.); in-deed, immemorial existence is essential to a

manor. (Co. Copyh. § 31.) The land which is vested in the lord is called the "demesnes" (q. v.) and comprises (1) the land of which the lord is seised, and which may be wholly in his own occupation or in that of his lessees for years, but in most manors is to a great extent in the occupation of the copyhold and customary tenants of the manor, (though copyholders are not essential to a manor; see an instance of a manor without copyholders in Warrick v. Queen's College, L. R. 6 Ch 716.), and (2) the waste lands of the manor, usually subject to the tenants' customary rights of common. (See Common.) A court baron for the freeholders, and a customary court for the copyholders (if any), are necessary incidents to every manor, and the principal manor in a parish usually has an advowson appendant to the demesnes. (1 Elt. Copyh. 14.) There are also, in general, either annexed or appurtenant to the manor, a variety of franchises (q. v.) exercisable by the lord, such as the right to have a court leet, the right to waifs and strays, treasure trove, wreck, the liberties of holding fairs and markets, of taking tolls and the like. Accordingly, a manor proper is shortly defined as consisting of demesne lands, jurisdiction in a court baron, and services of free tenants in fee, who are liable to escheat

(q. v.) and owe attendance at the court; or more shortly still, as consisting of demesnes and services. See Demesne, § 4; Service.

§ 2. Manor by reputation.—If the number of free tenants is reduced below two, the court baron cannot be held, and the manor ceases to exist, but may survive as a manor by reputation, for the purpose of making a title to franchises or for holding copyholders' courts.

§ 3. Extinguishment and suspension of manor.—If all the demesnes are alienated, the manor is extinguished, and becomes merely a "lordship in gross;" while a temporary severance of all the demesnes, as by a lease for years, causes a suspension of the manor. Ibid. 11; Burt. Comp. 1026; Cruise Dig. Copyhold 2; 1 Dav. Conv. 89; Co. Litt. 5 a.

§ 4. Customary manor.—If a copyhold tenement has, by immemorial custom, been treated as if it were itself a manor, e. g. by holding courts, granting part of it to be held of himself as copyhold, &c., this forms a customary or copyhold manor, and the tenant is called a "customary lord," although, as far as regards the principal manor, he is himself merely a copyholder of that manor, and pays fines, &c., like the other tenants. (Co. Litt. 5 b; Neville's Case, 11 Co. 17.

§ 5. "Manor" may mean the district actually or formerly comprised in a manor in the strict sense, although the land may have been separated from it by enfranchisement. Elt. Copyh. 15; citing Delacherois v. Delacherois, 11 H. L. Cas. 62.

§ 6. In American law.—A tract of land held of a proprietor by a feo-farm rent in money or in kind, and descending

• Strictly speaking, the land vested in the free-holders does not form parcel of the manor. (Wms. Seis. 30.) On the contrary, it is often

said to be held of the manor, which is here personified so as to represent the lord. See Ancient Demesne.

MANOR.

to the oldest son of the proprietor, who in New York was formerly called a "patroon."—Bouvier.

MANOR, (grant of). Cro. Eliz. 18.

(what passes by grant of). Shep. Touch. 89; 1 Vin. Abr. 118.

MANORS, (in a statute). 9 Wheat. (U. S.) 278.

MANORS OR OTHER ROYALTIES, (in a statute). Wilbert. Stat. L. 183.

MANQUEILLER.—A murderer.

MANRENT.—A kind of bond between lord and vassal, by which protection was stipulated on the one hand, and fidelity with personal service on the other.

MANSE.—A house or habitation, either with or without land.

MANSE, or MANSUM PRESBYTERI.—The dwelling-house of the clergyman. (Par. Antiq. 431.) Sometimes called presby-terium.

MANSER.—A bastard.—Cowell.

MANSION.—The lord's house in a manor.

MANSION, (synonymous with "dwelling-house," "house," "messuage," and "burgage"). 1 Chit. Gen. Pr. 167.

(devise of). 2 Dowl. & Ry. 508.

MANSION-HOUSE.—A dwelling-house. 3 Inst. 64.

Mansion-house, (defined). 1 Hale P. C. 559.

(a church is). 4 Com. Dig. 764.

(in an indictment). 3 Serg. & R. (Pa.) 199.

Mansion-house and messuage, (in a statute). 4 Blackf. (Ind.) 331.

Mansion-house in which he then lived, (in a devise). 1 Barn. & C. 350, 356.

MANSLAUGHTER.—The crime of unlawful homicide, without malice aforethought. The most frequent instances occur (1) where death is caused accidentally by an unlawful act, as where A. strikes at B. with a small stick, not intending either to kill him or to do him grievous bodily harm, and the blow kills him; (2) where death is caused by culpable negligence, as where A., whose duty it is to put a stage at the mouth of a colliery shaft, omits to do so from mere negligence, in consequence of which B. is killed; (3) where death is caused by an act done in the heat of passion, caused by provocation, as in the case of an aggravated assault, or a fight, or unlawful imprisonment.

MANSLAUGHTER, (defined). 10 Mich. 219; 25 Id. 406; 30 Id. 16; 74 Mo. 216; 2 Halst. (N. J.) 243; 1 Hale P. C. 466.

(distinguished from "murder"). 5 Cush. (Mass.) 307; 5 Cow. (N. Y.) 51.

MANSO, or MANSUM.—A mansion, or house.—Spel. Gloss.

MANSTEALING.—Kidnapping (q. v.)

MANSUM CAPITAL.E.—The manor-house, or lord's court. Par. Antiq. 150.

MANSURA.—The habitation of people in the country.—Domcsday.

MANSUS.—A farm.—Seld. Hist. Tithes 62. A house; a messuage.—Spel. Gloss.

MANTEA.—In old records, a long robe or mantle.

MANTHEOFE.—A horse-stealer.

MANTICULATE.—To pick pockets.—Bailey.

MAN-TRAPS.—Engines to catch trespassers, now unlawful, unless set in a dwelling-house for defense between sunset and sunrise. 24 and 25 Vict. c. 100, § 31.

MANU FORTI.—With strong hand. A phrase used in old writs of trespass, and in pleading in cases of forcible entry.

MANU OPERA.—Cattle, or implements of husbandry; also, stolen goods taken from a thief caught in the fact.—Cowell.

MANUAL EXERCISE, (in a statute). 15 East 161.

MANUAL OCCUPATION, (in a statute). 15 East 167.

MANUALIA BENEFICIA.—The daily distributions of meat and drink to the canons and other members of cathedral churches for their present subsistence.—Cowell.

MANUALIS OBEDIENTIA.—Sworn obedience or submission upon oath.—Cowell.

MANUCAPTIO.—A writ that lay for a man taken on suspicion of felony, &c., who cannot be admitted to bail by the sheriff or others having power to let to mainprise.—F. N. B. 249.

MANUCAPTOR.—One who stands bail for another.

MANUFACTURE.—Anything made by art. As to a patent for a manufacture, see PATENT.

MANUFACTURE, (defined). 2 H. Bl. 468.

(loss of articles during). 2 Wheel. Am. C. L. 140, 142.

MANUFACTURED. (792)

Manufactured, (in a contract to prepare rock for masons). 6 Robt (N. Y.) 251,257.

(in a statute). 8 Johns. (N. Y.) 304.

Manufactured article, (in the tariff act). 7 How. (U. S) 735.

Manufacturer, (in bankrupt act). 6 Bankr. Reg. 238; 18 Id. 319; 100 Mass. 183; 1 Utah T. 47.

Manufactures, (what are). Fess. Pat. 367.

(in a statute). 2 H. Bl. 473; Fess. Pat. 81.

Manufacturing company, (in a statute). 100 Mass. 183, 184; 4 Lans. (N. Y.) 611.

Manufacturing corporations, (in a statute). 100 Mass. 135.

Manufacturing establishment, (includes what). 6 Coldw. (Tenn.) 310.

Manufacturing process, (in a statute). L. R. 5 Q. B. 19.

Manufacturing starch, (in an insurance policy). 18 Ill. 553.

MANUMISSION. - The making of a bondman free, which in the feudal ages was a frequent occurrence. (See ENANCIPATION, § 2.)

Manumission was either express or implied. Manumission express was done by the lord granting to his villein a deed of enfranchisement.

Manumission implied was done by the lord entering into an obligation with his villein to pay him money at a certain day, or granting him an annuity, or leasing lands to him by deed for a term of years, or doing any other similar act which would imply that he treated with his villein upon the footing of a freeman. (Termes de la Ley.)

Similar modes of dealing with a servus had, in Roman law, the like effect of an implied manumission ; and in particular the mere circumstance of the master describing him a slave in a written document as his son (filius), had the effect of rendering him a freeman, altho not a son. (1 Just. Inst. 11, 12.)

The modes of express manumission in Roman law were anciently three only, that is to say, by the rod (vindicta), by the census (censu), and by will (testamento); but in later times, many new and simpler modes were introduced (favor libertatis), so much so that any declaration of intention to manumit, if made in presence of a magistrate (e. g. even at a street-crossing), would suffice.-Brown.

Manumission, (what amounts to). Coxe (N. J.) 4.

(instrument of, how executed). Penn. (N. J.) 10-21.

Manumittere idem est quod extra manum vel potestatem ponere (Co. Litt. 137): To manumit is the same as to place beyond hand and power.

MANUNG, or MONUNG.-The district within the jurisdiction of a reeve, apparently so called from his power to exercise therein one of his chief functions, viz., to exact (annamian) all fines.-Anc. Inst. Eng.

MANUPASTUS.-A domestic; perhaps the same as hlafsta.-Anc. Inst. Eng.

MANUPES.-A foot of full and legal measure.

MARCHIES.

MANURABLE.—Admitting of tillage.

Manure, (in a covenant). 1 Man. & G. 511.

(not incorporated with the soil is personal property). 3 N. H. 484; Toll. Ex. 150; 8 Wheel. Ain. C. L. 211.

(will pass by deed of the land as incident thereto). 3 N. H. 503; 2 Hill (N. Y.) 142.

(outgoing tenant is not entitled to). 6 Greenl. (Me.) 252; 21 Pick. (Mass.) 367; 15 Wend. (N. Y.) 169.

MANUS.—(1) the hand; (2) an oath, from the ceremony of laying the hand on the book; also the person taking an oath, or compurgator; (3) a condition of subjection into which females might come in Roman law, either by coemptio, (to their husband or a stranger,) or by manus or confarreatio (to their husband). It became obsolete with the establishment of the new subjection of women that was introduced by Christianity.

MANUSCRIPT.—An unpublished writing. See COPYRIGHT, § 8.

Manuscript, (defined). 3 Chit. (U. S.) 557.

MANUTENENTIA.—The old writ of maintenance. 3 Reg. Orig. 182.

MANWORTH.—The value or price at which a man is estimated, according to his degree; apparently synonymous with were-gild. It occurs only in the laws of Ethelhuere and Eadric.—Anc. Inst. Eng.

MANY YEARS ABSENCE, (presumption of death). 3 Serg. & R. (Pa.) 493.

MARA.—A mere, lake, or great pond, that cannot be drawn dry. Flet. Antiq. 418; Mon. Ang. tom. 1, p. 666.

MARAUDER.—A soldier who commits a larceny or robbery in the neighborhood of the camp, or while wandering away from the army. (Merl. Répert.)—Bouvier.

MAROATUS.—The rent of a mark by the year anciently reserved in leases, &c.

MARCH.—In the Scotch law, a boundary line.—Bell. Dict.

MARCHERS, or LORD MARCHERS.—Those noblemen who lived on the marches of Wales and Scotland, who, in times past, had their own and regal power, until they were abolished by Stat. 27 Hen. VIII. c. 26.

MARCHES.—The boundaries of countries and territories; the limits between England, Wales and Scotland. Also, in Scotland, the boundaries between private properties. Co. Litt. 106 b.

MARCHES.

MARCHES, COURT OF.—An abolished tribunal in Wales, where pleas of debt or damages, not above the value of £50, were tried and determined. Cro. Car. 384.

MARCHET.—NORMAN-FRENCH: marche (Britt 97 b; this author also calls it "redemption of blood" or "redemption of flesh and blood," 78 a, see Spel. Gloss s v. Grimm, D. R. A. 383), marchet (Loys. Inv.t Cout. Gloss ), from Latin, mercatus, a buying and selling

A fine which some tenants had to pay to their lord for liberty to give away their daughters in marriage. According to the old writers, no free man could be liable to pay such a fine, but only villeins (Bract. 208 b, 26 a), and therefore it could not be claimed by custom against all the tenants of a manor. (Litt. § 209.) But in later times a free man could take lands to hold by the service of marchet, if he liked to do so. (Id. § 194.) The tenure by marchet seems to have been long obsolete.

MARCHIONESS.—A dignity in a woman answerable to that of marquis in a man, conferred either by creation, or by marriage with a marquis.—Wharton.

MARE.—The sea.

Mare, (includes "horse"). 2 Car. & P. 351. (not included in "cattle"). 2 W. Bl. 721; 2 East P. C. 107½.

MARE CLAUSUM.—The sea closed, or close. The title of a famous work by Selden, intended as an answer to the Mare Liberum of Grotius.

MARE LIBERUM.—The sea free. The title of a famous treatise by Grotius, written to show that all nations have an equal right to use the sea.

Mares, colts and horses, (in a statute). 1 Leuch C. C. 83.

MARESCHALL, or MARSHAL.—A marshal.

MARETTUM. — Marshy ground overflowed by the sea or great rivers. Co. Litt. 5.

Margin, (applied to price of stock, defined). 3 Abb. (N. Y.) Pr. N. s. 286; 49 Barb. (N. Y.) 462, 465.

Margin of the stream, (in a deed). 6 Cow. (N. Y.) 518, 547

MARGINAL NOTES.—An abstract of a reported case, a summary of the facts, or brief statement of the principle decided which is prefixed to the report of the case, sometimes in the margin, is spoken of by this name. The marginal notes which appear in the statute books have not the authority of the legislature, and cannot alter the interpretation of the text. See Marriage v. Grent Eastern Ry. Co., 9 H. L. Cas. 83, and 31 L. J. Ex. 78.

Margins, (in a statute). 53 Ind. 575.

MARINARIORUM CAPITANEUS.—An admiral or warden of the ports.—Par. Antiq.

MARINARIUS.—A mariner or seaman.—Par. Antiq.

MARINE.—Belonging or relating to the sea. A general name for the navy of a kingdom or state; as also the whole economy of naval affairs, or whatever respects the building, rigging, arming, equipping, navigating and fighting ships. It comprehends also the government of naval armaments, and the state of all the persons employed therein, whether civil or military. Also, one of the marines. See Marines.

MARINE CONTRACT.—A contract which has relation to business to be done at sea, or to matters particularly connected with commerce, and over which a court of admiralty commonly has jurisdiction concurrent with that of the common law courts.

MARINE CORPS.—The aggregate body of the marines (q. v.)

MARINE COURT IN THE CITY OF NEW YORK.—A local court originally erected for the determination of controversies between seamen, but now a court of record, possessing general jurisdiction of controversies involving not more than $2000, and special jurisdiction of civil actions for injuries to person or character, without regard to the amount of damages claimed.

MARINE INSURANCE.—See Insurance, § 3.

MARINE INTEREST.—See Maritime Interest.

MARINE LEAGUE.—A measure of distance on the sea, equal to one-twentieth part of a degree of latitude. See League.

MARINE RISK.—The perils necessarily incident to navigation.

MARINE SOCIETY.—A charitable institution for the purpose of apprenticing boys to the naval service, &c., incorporated by 12 Geo. III. c. 67.

MARINER.—One engaged in navigating vessels upon the sea. See SEAMEN; Shipping Articles.

Mariner, (defined). 4 Sawy. (U. S.) 105. — (includes whom). 4 Biailf. (N. Y.) 154; 8 Month. L. Rep. N. s. 672.

— (a mate is) 1 Pet. (U. S.) Adm. 246. — (a pilot is). 2 Wils. 264. — (a nurse is). 80 N. Y. 80. — (in act of 1837). 7 How. (N. Y.) Pr. 89.

— (in a statute). 4 Mass. 230, 670; 14 Id. 394; 17 Id. 49; 2 Pick. (Mass.) 597; 8 Johns. (N. Y.) 157; 1 Tuck. (N. Y.) 44.

Mariners and seamen of the United States, (in 2 Stat. at L. 203). 3 Sumn. (U. S.) 115.

MARINES.—A military force drilled as infantry, whose especial province is to serve on board ships of war when in commission. The force was first established in England about the middle of the last century.

Maris et feminæ conjunctio est de jure naturæ (7 Co. 13) : The connection of male and female is by the law of nature.

MARISCHAL.—An officer in Scotland, who, with the lord high constable, possessed a supreme itinerant jurisdiction in all crimes committed within a certain space of the court wherever it might happen to be.—Wharton.

MARISCUS.—A marshy or fenny ground. — Domesd.; Co. Litt. 5 a.

MARITAGIO AMISSO PER DE- FALTAM.—An obsolete writ for the tenant in frank-marriage to recover lands, &c., of which he was deforced.

MARITAGIUM.—The portion which is given with a daughter in marriage. Also, the power which the lord or guardian in chivalry had of disposing of his infant ward in matrimony.—Spel. Gloss. See 1 Reeves (Finlason's edit.) 171.

Maritagium est aut liberum aut servitio obligatum; liberum maritagium dicitur ubi donator vult quod terra sic data quieta sit et libera ab omni seculari servitio (Co. Litt. 21) : A marriage portion is either free or bound to service; it is called frank-marriage when the giver wills that land thus given be exempt from all secular service.

MARITAGIUM HABERE.—To have the free disposal of an heiress in marriage.

MARITAL.—Pertaining to a husband; incident to a husband.

MARITAL COERCION.—Coercion of the wife by the husband. Thus, if a married woman commit an offense other than homicide, treason, or other heinous crime, by compulsion or coercion of her husband, he, not she, is deemed in law the guilty; and in many cases his presence at the time of the commission of the offense by the wife being proved, marital coercion will be presumed.

MARITAL PORTION.—That part of a deceased husband's estate to which, according to the law of Louisiana, the widow is entitled.

MARITAL RIGHTS.—The rights of a husband. The expression is chiefly used to denote the right of a husband to property which his wife was entitled to during the treaty of marriage. If, after the engagement to marry, she makes a voluntary conveyance of any part of that property without notice to the intended husband, it is considered a fraud on his marital rights, and therefore liable to be set aside, although he may not have known that she was entitled to the property. Swell Eq. 319; Wms. Pers. Prop. 446. See Jus Mariti.

MARITATED.—Having a husband.

MARITIMA ANGLIÆ.—The profits and emolument arising to the crown from the sea, which anciently was collected by sheriffs; but it was afterwards granted to the lord high admiral. 1 Par. 8 Hen. III. m. 4.

MARITIMA INCREMENTA.—Maritime increases, i. e. lands gained from the sea. See ALLUVION.

MARITIME CAUSE.—A cause of action originating on the high seas, or growing out of a maritime contract. 1 Kent Com. 367 et seq.

MARITIME CONTRACT.—See Marine Contract.

Maritime contract, (what is). 2 Gall. (U. S.) 398. — (what is not). 23 Ohio St. 505.

Maritime employment, (what is not). 7 Pet. (U. S.) 342.

MARITIME INTEREST.—The interest payable on hypothecations and bottomry and respondentia bonds is so called; and, on account of the extraordinary risk attaching to such loans, the rate of interest is usually very high, and there was never any restriction upon its amount. (See

MERC. Law (8 edit.) 410.) The phrase is sometimes applied loosely to the interest payable by ordinary agreement upon money advanced to be hazarded in a commercial speculation.—Brown. See Bottomry; Respondentia.

MARITIME JURISDICTION, (what is). 6 Am. L. J. 557.

MARITIME LAW.—The law relating to harbors, ships and seamen. An important branch of the commercial law of maritime nations; divided into a variety of departments, such as those about harbors, property of ships, duties and rights of masters and seamen, contracts of affreightment, average, salvage, &c. No system or code of maritime law has ever been issued by authority in America or Great Britain. The laws and practices that now obtain in these countries have been founded on the practice of merchants, the principles of the civil law, the laws of Oleron and Wisby, the works of jurisconsults, the judicial decisions of our own and foreign countries, &c. Though still susceptible of amendment, the present systems correspond more nearly than any others of maritime law with those universally recognized principles of justice and general convenience on which merchants and navigators should act. See Admiralty; Affreightment; Bill of Lading; Charter-Party; Insurance, § 3; Lien, § 6; Merchant Shipping; Underwriter.

MARITIME LIEN.—A lien attaching to ship and freight for damage occasioned by ship, and which lien affords the ground of an action in rem in the Court of Admiralty; this lien does not attach to the cargo. The lien attaches as from the date of the damage occurring, and has precedence accordingly over all subsequent liens and rights arising ex contractu, excepting, semble, subsequent bottomry bonds. The liability of the owners of the ship is limited by the amount of the security, i. e. the ship and freight, but as regards the costs of the proceedings, the owners are personally liable. Kay-Sh. & S. 917-919. See Lien, § 6.

MARITIME LOAN.—See Bottomry; Hypothecation; Maritime Interest; Respondentia.

MARITIME NATURE, (in constitution of United States). 1 U. S. L. J. 385.

MARITIME STATE.—This consists of the officers and mariners of the British navy, who are governed by express and permanent laws, or the articles of the navy, established by act of parliament.

MARK.—(1) A token; an impression; a proof; an evidence; license of reprisals; also, formerly, a coin of the value of 13s. 4d. (2) In commerce and manufacture, a certain character struck or impressed on various kinds of commodities, either to show the place where they were made and the person who made them, or to witness that they have been viewed and examined by the officers charged with the inspection of manufactures, or to show that the duties imposed thereon have been paid. It is also used to indicate the price of a commodity. If one use the mark of another, to do him damage, an action on the case will lie, and an injunction may be obtained in Chancery. (2 Cro. 471. See Trade Mark.) (3) Those who are unable to write sign a cross, for their mark, when they execute any document. 1 Steph. Com. (7 edit.) 493. See Marksman.

Mark, (of a manufacturer). 1 Nev. & M 353.

(instrument executed by). 12 Pet. (U. S.) 151; 1 Moo. & M. 516.

(of a witness to a will). 5 Johns. (N. Y.) 144; 7 Halst. (N. J.) 70; 8 Ves. 185, 504; 5 Wheal. Am. U. 220; 8 Id. 397.

(in a statute). 7 Halst. (N. J.) 159, 165.

MARK DISTINCTLY, (in a statute). 78 Pa. St. 166, 171.

MARKED, (of a tree). 5 Whart. (U. S.) 308.

MARKETPENNY.—A penny anciently paid at the town of Maldon by those who had gutters laid or made out of their houses into the streets. 15 Edw. I.

MARKET.—A place set apart for the public sale and purchase of commodities. The right to hold a market, including the right to charge tolls for its use by persons selling goods therein, and the right to prevent others from setting up a new market so near as to diminish the custom of the old one, is a franchise (q. v.) 1 Steph. Com. 662 et seq.; see Mayor of Penryn v. Best, 3 Ex. D. 292.

MARKET, (defined). 21 Barb. (N. Y.) 294, 296; 70 N. C. 14, 184; 1 Wyo., T. 897.

MARKET.

(796)

MARRIAGE.

MARKET GELD.—The toll of a market.

MARKSMAN.—Where a person who cannot write is desirous of subscribing his name to a document, another person writes it for him, and he identifies it as his signature by inscribing over it, or near it, a mark, usually a cross. He is hence called a "marksman." It seems that if there is any peculiarity about the mark, evidence ex visu scriptionis is admissible to prove it as the handwriting of the marksman, but not otherwise. Best Ev. 329. See HANDWRITING.

MARKET OVERT.—

§ 1. Open market. In English law, market overt, in ordinary market towns, is only held on the special days provided for particular towns, by charter or prescription, but in the city of London every day, except Sunday, is market day. The market place, or spot of ground set apart by custom for the sale of particular goods, is also in ordinary towns the only market overt, but in the city of London every shop in which goods are exposed publicly for sale is market overt, though only for such things as the owner professes to trade in. (2 Steph. Com. 73.) That part of London not within the city does not seem to have the privilege of market overt. (Wms. Pers. Prop. 461.) The law of market overt has never been adopted in the United States.

§ 2. Sale in market overt.—The doctrine of market overt is that all sales of goods made therein are not only binding on the parties, but also on all other persons: so that if stolen goods are sold in market overt, the purchaser, if acting in good faith, acquires a valid title to them against the true owner, unless the latter has prosecuted the thief to conviction, in which case the goods revest in the true owner, and the buyer is left to obtain compensation out of any money which may have been taken from the thief on his apprehension. Stat. 30 and 31 Vict. c. 35, § 9. As to negotiable instruments and other valuable securities, see Stat. 24 and 25 Vict. c. 96, § 100; Wms. Pers. Prop. 462.

§ 3. The doctrine of market overt does not apply to goods belonging to the crown, and in the case of horses it is subject to statutory restrictions. 2 Steph. Com. 73 et seq. See HORSE.

MARKET PLACE, (defined). 70 N. C. 14, 18.—(what is). 49 Ga. 476.—(in market act). L. R. 6 H. L. 303.

MARKET PRICE.—See VALUE.

MARKET PRICE, (defined). 2 Wash. (U. S.) 493.—(what is). Chip. Cont. 33.—(of an annuity). 2 Bro. Ch. 179 n.

MARKET, TO, (synonymous with "to sell"). 20 Barb. (N. Y.) 37.

MARKET TOWNS.—Those towns which are entitled to hold markets. 1 Steph. Com. (7 edit.) 130.

MARKET VALUE, (defined). 69 N. Y. 448.—(what is). 99 Mass. 845.—(in a statute). 4 Cliff. (U. S.) 96.

MARKETABLE.—Such things as may be sold; those for which a buyer may be found.

MARKETABLE TITLE, (what is). 6 Taunt. 263.

MARKETZEILD.—See MARKET GELD.

MARLEBRIDGE, STATUTE OF.—The Stat. 52 Hen. III. A. 1). 1267, enacted at Marlbridge, now said to be Marllorough. See Bart Ob. Stat. 60; 2 Reeves vii. 62; and Hale C. L. n. (b).

MARQUE.—See LETTERS OF MARQUIE.

MARQUE, LETTERS OF, (ships sailing under, distinguished from "privateers"). 13 Mass. 127.

MARQUIS, OR MARQUESS.—One of the second order of nobility; next in order to a duke.

MARQUISATE.—The seigniory of a marquis.

MARRIAGE.—

§ 1. Marriage is the voluntary union for life of one man and one woman to the exclusion of all others, for the purpose of living together and procreating children, entered into in accordance with the rules as to the consanguinity (q. v.) or affinity (q. v.) of the parties, and their capacity to enter into and perform the duties of matrimony, prevailing in the place of domicile of the parties, and in accordance with the rites or formalities required by the law of the place where the marriage takes place. (Britt. 246b; Macq. Hush. & W. 1; Browne Div. 53; 2 Steph. Com. 238; Phillim. Ecc. L. 705; Hyde v. Hyde, 1 P. & D. 130.) A marriage must not contravene the fundamental principles of Christianity, and hence a polygamous marriage, although valid according to the lex loci, is no marriage according to our law. Browne Div. 58.

§ 2. It is sometimes said that marriage is a contract, but this is an incomplete designation; it is true the agreement of the parties is essential to a valid marriage (see AGREEMENT, § 1); but when it has been solemnized, marriage is not only a

contract, but also a personal relation of a very special kind, (Hyde v. Hyde, L. R. 1 P. & D. 133; Sottomayer v. De Barros, 5 P. D. 101,) somewhat resembling a natural relationship.

§ 3. Effect on property.—Marriage affects the property as well as the person. (See Wats. Comp. Eq. 316 et seq) For many purposes the husband and wife are one person in law, and hence the husband cannot, at common law, give or grant property to his wife inter vivos (Litt. § 168), though he can under the Statute of Uses, (Wms. Real Prop. 218; and without the aid of that statute, under the provisions of most of the recent married women's acts passed in many of the States;) and a grant of land to the husband and wife by a third person, gives them an estate by entireties (q. v.) The general rule, at common law, is, that the husband becomes by the marriage entitled absolutely to all the choscs in possession belonging to his wife in her own right (see Reduction into Possession), and to the whole of the rents and profits of her land during the continuance of the coverture, (Macq. Husb. & W. 17; Wms. Real. Prop. 214; he may also grant leases for twenty-one years of any land of which she is seized in fee under the Engl. Settled Estates Act, 1877, § 40; see Settled Estates Act,) and to her chattels real if he survives her (see Survivorship); but this rule has had many exceptions engrafted on it; first, by the doctrines of equity, which allow a wife to hold separate estate (q. v.) and, secondly, by the Married Women's Property Acts (q. v.) Moreover, these rights of the husband do not extend to property held by the wife in auter droit, e. g. as executrix.

§ 4. Another rule is, that if the husband survives the wife he has (in certain cases) an interest in her lands and tenements during his life (see Curtesy), and vice versa if she survives him (see Dower); but these interests are not now of frequent occurrence in England, other provisions being generally made by a settlement executed on the marriage. Wms. Real Prop. 220. See Settlement.

§ 5. Husband's liability for debts.— On the other hand, a husband was formerly liable for all the debts and liabilities of his wife contracted before the marriage, but this rule has been altered by statute, both in England and in most, if not all, of the States, so that the husband shall be liable (if at all) for his wife's debts and liabilities to the extent of the property belonging to the wife which he shall have acquired by the marriage, or which he might have acquired (Wms. Pers. Prop 443), and in some jurisdictions the rule is swept away altogether. See Assets, § 1.

§ 6. A wife is not criminally liable for an offense committed by her under the coercion of her husband, except in the case of treason or murder, and other heinous crimes. Rosc. Cr. Ev. 990. See

Marital Coercion.

§ 7. Marriage of ward by tenure.— Marriage formerly signified not only the union of man and wife, but also the right of a guardian by tenure to bestow his ward in marriage, "which the law gave to the lord, not for his benefit onely, but that he should match him [the ward] vertnously and in a good family without disparagement." (Co. Litt. 76 a.) If an infant tenant by knight's service refused such a marriage, the lord was entitled to the value of the marriage, i.e. to the amount which he would have received for giving his ward in marriage (Litt. § 110), but a guardian in socage could make no profit by the marriage of his ward. Id. § 123. See Bigamy; DivorcE; Hus-Band and Wife; Marital Rights; Neces-saries; Settlement; Survivorship.

MARRIAGE ACTS.—

§ 1. Marriage by banns or license.— The principal English Marriage Acts are the Stats. 4 Geo. IV. c. 76, and 6 and 7 Will. IV. c. 85. The former act provides for the publication of banns on three successive Sundays before the celebration of a marriage, unless it takes place by ecclesiastical license, (see Licensie, § 4,) and requires that it shall be solemnized by a person in holy orders and before two credible witnesses at least. It also provides for the case of one of the parties being under age, and for the consent of his or her parent or guardian being given. In certain cases marriages not solemnized in accordance with the provisions of the act are made void, and where a marriage is solemnized between persons, one of whom is under age, by means of the false oath or fraudulent procurement of one of the parties, the person so offending is liable to forfeit all property which would otherwise accrue to him or her from the marriage.

§ 2. Marriage by registrar's certificate.—The Stat. 6 and 7 Will. IV. c. 85 (amended by Stats. 7 Will. IV. and 1 Vict. c. 22; 3 and 4 Vict. c. 72; 19 and 20 Vict. c. 119, and 23 Vict. c. 18,) introduced two new modes of celebrating marriages, by a certificate of the superintendent registrar of marriages with or without license. To obtain the certificate with—

MARRIAGE.

out license, public notice of the intended marriage must be given for twenty-one days; the certificate with license only requires one day's notice. Under a registrar's certificate, marriages may be solemnized in any religious building registered for the purpose (except that under a certificate with license a marriage may not be solemnized in a church or chapel of the Church of England), or it may be solemnized at the registrar's office. Browne Div. 55 et seq.; 2 Steph. Com. 246.

§ 3. Foreign and colonial marriages. —Stats. 4 Geo. IV. c. 91, and 12 and 13 Vict. c. 68, provide for the marriage of British subjects abroad; and 23 and 29 Vict. c. 64, make colonial marriages valid everywhere, subject to certain restrictions. See DOMICILE, § 2.

§ 4. Royal marriages.—Under Stat. 12 Geo. III. c. 11, no descendant of King George II. other than the issue of princesses married into foreign families, may, except in certain cases, contract matrimony without the previous consent of the sovereign. 2 Steph. Com. 454.

Marriage, (defined). 53 Ala. 190; 19 Ind. 53; 4 How. (N. Y.) Pr. 107.

(what constitutes). 10 East 290; 49 Miss. 357 ; 26 Barb. (N. Y.) 177 ; 4 Bradf. (N. Y.) 28; 1 Hill (N. Y.) 270; 4 Johns. (N. Y.) 52; 4 N. Y. 230 ; 15 Id. 345 ; 23 Id. 00 ; 8 Paige (N. Y.) 574; 7 Wend. (N. Y.) 47, 50.

(has two senses). 6 P. D. 47.

(what requisite to the validity of). 7 Mass. 48 ; 1 Hill (N. Y.) 270; Co. Litt. 79b; 1 Hagg. Cons. 216 ; 13 Mees. & W. 261.

(contracts in restraint of, void). South. (N. J.) 756; Reeve Dom. Rel. 220.

(from what may be inferred). 4 Johns. (N. Y.) 52.

(what is evidence of). 1 Mass. 242; 4 Halst. (N. J.) 45.

(in a statute). 9 H. L. Cas. 193.

(nullity of, by reason of insanity). 1 Hagg. Cons. 414.

(when annulled for fraud). 5 Paige (N. Y.) 43.

(valid in State where male, valid everywhere). 16 Mass. 157.

(conditions against, are unlawful). 1 Atk. 361, 365.

(unqualified restrictions on, are void). 3 Mass. 181.

(a partial restraint of, is illegal). 9 East 170.

(what is a contract in restraint of). 10 East 22.

(action lies upon a parol promise of). 10 Ves. 429.

(devise to be paid on the day of her). 1 Eq. Cas. Abr. 112.

MARRIAGE ARTICLES.—The heads or jottings of the provisions to be embodied in a marriage settlement; and they usually specify the several fortunes of the respective marrying parties which are to be brought into settlement. They should invariably be in writing and signed by the parties, in order to satisfy the

Statute of Frauds. In case of any variance between the settlement and the articles, the settlement will usually be rectified in accordance with the articles, unless it can be inferred from all the circumstances that the settlement was intended to express a new agreement of the parties. (Snell Eq. (5 edit.) 441-2.)— Brown.

MARRIAGE ARTICLES, (with female infant, invalid). 8 Wend. (N. Y.) 267.

—MARRIAGE, BREACH OF PROMISE OF.—See BREACH, § 4.

Marriage, breach of promise of, (in an action for an express promise need not be proved). 2 Stark. Ev. 942 a.

MARRIAGE-BROKAGE.--A marriage-brokage contract is an undertaking for reward to procure a marriage between two persons. Such a contract is void. Chit. Cont. 618. See TOLER.

MARRIAGE CONSIDERATION. —The highest consideration recognized by law. A marriage consideration, in a settlement made prior to marriage, or in pursuance of articles entered into before marriage, runs through the whole settlement, as far as it relates to the husband and wife and issue, and protects them.

Marriage contract, (what is). 4 Ind. 161.

Marriage, in case a should die before, (in a will). 8 Petersd. Abr. 237.

Marriage, limitation in restraint of, (what is). 6 Mass 169.

MARRIAGE PORTION.—The portion of one given in marriage.

MARRIAGE SETTLEMENT.—An arrangement made before marriage, and in consideration of it (the highest consideration known to the law), whereby a jointure is secured to the wife, and portions to children, in the event of the husband's death. If made after marriage, it will, as a general rule, be fraudulent and void against all persons who are creditors of the husband at the time of the settlement, unless such settlement contain a provision for debts, or is made in pursuance of articles made before marriage, or unless it be against a single debt, or the debt be secured by mortgage, in which case it would not affect the settlement,

MARRIAGE.

(799)

MARSHAL.

for to do that it seems the party must be insolvent at the time. These settlements are of less importance in England than formerly owing to the operation of recent married women's acts, and are rare in the United States for the same reason.

MARRIAGE WITH CONSENT OF THE MOTHER, (in a will). Com. 748 ; 2 Vern. 223.

MARRIED, (in act of congress). 7 Wall. (U. S.) 496.

MARRIED MAN, (who is). 1 Oreg. 153.

MARRIED, WITHOUT BEING, (in a will). 7 Ves. 453, 458.

MARRIED WOMEN'S PROPERTY ACTS.—

§ 1. In English law.—The Statutes 33 and 34 Vict. c. 93, and 37 and 38 Vict. c. 50. They provide, in effect, that (1) the earnings of a married woman derived from her own exertions; (2) personal property coming to her during marriage, either (a) under any deed or will (not exceeding in the latter case £200); and (3) the rents and profits of real estate descending upon her during marriage, shall belong to her, to her separate use; but in the case of property coming under (2) and (3) the rule only applies to women married after 9th August, 1870. Provision is also made for the registration of shares, stock, &c., in the name of a married woman so as to make them her separate property, and for actions being brought in her own name in respect of her separate property, (Griffith's Married Women's Property Act; In re Voss, 13 Ch. D. 501); and as to the liability of her husband for her debts, &c., as to which see MARRIAGE, § 5; see also SEPARATE ESTATE; SEPARATE USE.

§ 2. In American law.—Statutes framed to protect the property rights of married women have been enacted, generally, throughout the United States; the first notable one being the New York Act of 1848, (Laws 1848, ch. 200,) followed in that State in 1860 and 1862 by further enactments having the same aim in view. (Laws 1860, ch. 90; Laws 1862, ch. 172.) These statutes have been very extensively copied and used as bases for similar laws in other States, more especially in those in which the common law doctrine of the merger of the wife's entity in that of the husband, has been found to be incompatible with the present condition of society. Many of these statutes, especially those of New York, are more advanced than the English Acts, i. e. they confer more rights, and abolish more wrongs upon married women than parliament has yet seen fit to do. Some States, how—

ever, among them New Jersey, cannot be said to have passed the English limit, or even to have reached it A general review of these statutes being beyond the scope of this work, the reader is referred to the statute books of the several States.

MARROW.—The author of a famous book, written in the reign of Henry VII, and said to be still in manuscript, on the office of a justice of the peace—a work which has been quoted by later writers, such as Fitzherbert and Lambard, with great commendation, and seems to have been followed by them on the subject. 4 Reeves Hist. Eng. Law c. xxvii., 136.

MARRY, (devise to a wife if she dies not). 3 Lev. 125.

MARRY, (in bigamy act). Wilberf. Stat. L. 136.

MARRY B., CONSENT TO, (in a devise). 4 Mod. 67, 69.

MARRY, IF SHE, (in a devise). 1 Mod. 272; 1 Wils. 135.

MARRY INTO THE FAMILIES OF A. or B., (in a will). 1 Bro. Ch. 55.

MARRY, SHOULD SHE, DURING THE LIFE-TIME OF HER MOTHER, (in a will). Pr. Ch. 348.

MARRY WITH CONSENT OF A., (in a will). 1 Mod. 300, 302; 1 Sim. & S. 165, 304; 1 Wils. 159.

MARRY WITH CONSENT AND APPROBATION OF A., (in a will). Amb. 256, 259.

MARRY WITH CONSENT OF HER FATHER AND MOTHER, (in devise). 9 Mod. 210, 211.

MARRY WITH CONSENT OF THEIR MOTHER, (in a will). Cas. t. Talb. 212.

MARRY WITHOUT A COMPETENT PORTION, (in a devise). 1 W. Bl. 630.

MARRY WITHOUT CONSENT OF A., (in a will). 2 Atk. 616, 620; 3 Id. 330, 334, 364, 368; 1 Mod. 86; 3 Id. 32; 1 P. Wms. 234; 2 Id. 547, 626, 628; 1 Pr. Ch. 227, 562; 1 Vern. 20, 412; 2 Id. 333, 572, 580; 3 Ves. 89; 10 Id. 230; 19 Id. 130.

MARRY WRITTEN MOTHER'S CONSENT, (in a will). 2 Vern. 357.

MARRYING, (a devise on condition of not, is void). Lute. Wills 171.

MARSHAL.—

§ 1. In American law—A federal officer whose duty it is to execute the process of the courts of the United States. His functions within his particular district are very similar to those of a sheriff. See U. S. Rev. Stat. §§ 776—783, 943, 944.

§ 2. In English law—Judge's marshal.—In the practice of the Queen's Bench Division of the High Court, a marshal is an officer who attends each judge on circuit. He is the personal officer of the judge, as an aide-de-camp is of a general, and he performs the duties

of secretary. He is not a permanent officer, neither is he continuously employed. He has to swear the grand jury, and to make an abstract or note for the judge of the nature of the actions tried before him. Second Report of Legal Dep. Comm. (1874) 21.

§ 3. Admiralty marshal.—The marshal of the Probate, Divorce and Admiralty Division in admiralty matters is entrusted with the following duties: Execution of all warrants issued by the court; appraisement and sale of condemned ships and cargoes; removal of ships, sub judice, from port on removal being ordered; receipt and subsequent payment into court of all money arising out of execution of process; ascertaining the sufficiency or otherwise of bail, and the custody of embargoed ships. Second Report of Legal Dep. Comm. (1874) 89. See Action, § 12 et seq., and the titles there referred to.

MARSHAL OF THE QUEEN'S BENCH.—An officer who had the custody of the queen's bench prison? The 5 and 6 Vict. c. 22 abolished this office, and substituted an officer called keeper of the queen's prison.

MARSHALING.—

§ 1. The act of arranging or of putting into proper order. In the distribution of assets, marshaling takes place where there are two claimants, A. and B., and two funds, X. and Y., both of which are available to satisfy A.'s claim, but only Y. is available for that of B., and A. is compelled to have recourse to the X. fund in order that the Y. fund may be left for B. Or, what is the same thing, if A. has been paid out of the Y. fund, B. is allowed to have recourse to the X. fund, against which he had originally no claim. (Wats. Comp. Eq. 36; 2 White & T. Lead. Cas. 66; Snell Eq. 281.) Thus, if a legacy is given to A. charged on real estate, and another not so charged is given to B., the personal estate not being sufficient to pay both, A. will be compelled to satisfy his legacy wholly or partially out of the real estate, so that B.'s legacy may be paid in full out of the personalty. Bligh v. Earl of Darnley, 2 P. Wms. 619.

§ 2. Charities.—A testator is said to “marshal his own assets” in favor of a charity when he directs a legacy to be paid out of his pure personal estate, for the law does not marshal assets in favor of charities, and, therefore, with-

out such a direction, the legacy would abate in the proportion of the impure to the pure personalty. Robinson v. Gelderts, 3 Macn. & G. 735; Wats. Comp. Eq. 55. See Abatement, § 4; Mortmain.

§ 3. Mortgages.—The doctrine of marshaling also applies to mortgages. Thus, if the owner of two estates mortgages them both to one person, A., and then one of them to another, B., without B. having notice of A.'s mortgage, B. may insist that A.'s debt shall be satisfied out of the other estate (the one not mortgaged to B.) so far as it will extend. 2 Fish. Mort. 704.

MARSHALING OF ASSETS.—See Marshaling, §§ 1, 2.

MARSHALING OF SECURITIES.—See Marshaling, § 3.

MARSHALSEA.—The Court of the Marshalsea had jurisdiction in actions of debt or torts, the cause of which arose within the verge of the royal court. It was abolished by Stat. 12 and 13 Vict. c. 101. 4 Steph. Com. 317 n. id).

MARSHALSEA PRISON. This prison, which was also styled the “Prison of the Marshalsea of Her Majesty's Household,” was a prison for debtors, and for persons charged with contempt of the Queen's Court of the Marshalsea; by 5 & 6 Vict., 22, this prison and the Fleet and the Queen's Bench prisons were consolidated into one prison, called the “Queen's Prison.” (6 Jur. 254.)—Browne.

MART.—A place of public traffic or sale.

MARTIAL LAW.—The law which is properly designated “martial law,” consists of no settled code; but of the will and pleasure of the sovereign or military power of the State; for in the time of war, on account of the great necessity there is for guarding against dangers that often arise, and which require immediate attention, the military power is necessarily absolute. Nevertheless, martial law, in that sense, does not exist in time of peace (Grant v. Gould, 2 H. Bl. 69, 100); and the law of courts martial, sometimes called military and naval law, is to be distinguished from it, as that law which governs soldiers and sailors as such, in times of peace, and for the due administration of

which there are special courts military or courts naval provided. Yet so jealous of these jurisdictions was the common law of England that they had continuance for one year only, being annually reconstituted by the Mutiny and Marine Mutiny Acts, which were passed at the beginning of each session of parliament; and in the Army Discipline Act Commencement Act, 1879, (42 and 43 Vict. c. 32,) for putting in force the Army Discipline Act, 1879, (42 and 43 Vict. c. 33,) the like constitutional principle is preserved, a short commencement act being rendered necessary in every year. 42 and 43 Vict. c. 33, § 2.

Martial law, (defined). 44 Ill. 142. (what is). 5 Blatchf. (U. S.) 319; 21 Ind. 470.

MARTINMAS.—The feast of St. Martin of Tours, on the 11th of November; sometimes corrupted into “martilmas,” or “martlemas.” It is the third of the four cross quarter-days of the year.—Wharton.

MARTYRIA.—A figure by rhetoric, by which the speaker brings his own experience in proof of what he advances.

MASAGIUM.—A message.

MASCULINE.—Of the male sex. A statute frequently declares that words in it which import the masculine gender, shall be deemed to include females, unless there is something in the act inconsistent therewith; and by 13 and 14 Vict. c. 21, § 4, it is enacted that in all acts passed after the commencement of the next session, such words shall be deemed to include females, unless the contrary is expressly provided.

Masculine gender, (in a statute). 9 Geo. IV. c. 54, § 35.

Mask, dress or other attire, (in statute punishing escapes). Wilberf. Stat. L. 185.

MASTER.—A director; a governor; a teacher; one who has servants; the head of a college; the chief functionaries of courts of law.

MASTER AND APPRENTICE.—See APPRENTICESHIP; INDENTURE OF APPRENTICESHIP.

Master and mariners, (does not include purser). 14 Hun (N. Y.) 100.

VOL. II.

MASTER AND SERVANT.—§ 1. The relation of master and servant exists where one person, for pay or other valuable consideration, enters into the service of another and devotes to him his personal labor for an agreed period. (2 Steph. Com. 226.) The test of such a service seems to be, first, that the servant is bound to obey the reasonable commands of his master to do all acts falling within the scope of his employment, and, secondly, that the master has the power of dismissing the servant on his neglecting his duty, or for incompetence or gross misconduct, or on giving notice of dismissal in accordance with the express or implied terms of the contract. It would also seem that a material difference in social position is essential to the relation of master and servant, for tutors, clerks, governesses, opera singers, and the like, are not servants; and that the service must be exclusive, i. e. that the servant cannot work for any one else, without his master's permission, unless his service is limited to certain times or otherwise. The relationship between a master and a servant creates superiority and power on the one hand, and duty, subjection, and, as it were, allegiance on the other; Bac. Abr. tit. Master and Servant; see, also, Sm. Mast. & S. 106; Lumley v. Gye, 2 El. & B. 216; Bowen v. Hall, 6 Q. B. D. 333.

§ 2. Servants are generally divided into menial or domestic servants, laborers and workmen, and apprentices. The rules of law as to the respective rights and duties of the master and servant in the absence of express agreement vary to some extent according to the nature of the employment.

§ 3. Rights and duties of strangers.—As regard strangers, the relation of master and servant affects them chiefly in the following respects: The master may bring an action against any person for beating or maining his servant, if he thus loses the services of his servant, and thereby suffers actual damages, (see SEDUCTION; Tort;) and the master has an action against any person who knowingly entices away a servant, or harbors and detains him after having been apprised of the former contract. (Sm. Mast. & S. 124; Underh. Torts 152.) This principle also

applies to contracts of service where the

relation of master and servant does not

strictly exist. (Bowen v. Hall, 6 Q. B. D.

3:3 ) On the other hand, the servant is

frequently the agent of his master for cer-

tain purposes, and accordingly has power

to bind him by his acts, (Sm. Mast. & S.

219; see AGENT;) and if the servant in the

course of his employment tortiously causes

injury to any person, the master is liable.

Therefore, if a servant in driving his mas-

ter's carriage on his master's business in-

jures a person by negligent driving, and

not willfully, the master is liable in dam-

ages to that person, even although the

servant may have gone out of his proper

course for his own business or amusement;

but if the servant takes the carriage out

without his master's orders and for his

own business or amusement, then the

master is not liable for his negligence.

Joel v. Morrison, 6 Car. & P. 501; Sm.

Mast. & S. 271.

§ 4. Master and Servant Acts.—Under

the Stats. 20 Geo. II. c. 19; 6 Geo. III. c. 25; 4

Geo. IV. c. 34; the Master and Servant Act,

1877; and the Employers and Workmen Act,

1875, justices of the peace have jurisdiction in

many cases where questions arise as to the rights

or liabilities of either party to a contract of ser-

vice, and, under the last-mentioned act, county

courts also have jurisdiction in some of those

matters. Sm. Mast. & S. 446; see, also, Stats. 7

and 8 Vict. c. 101; 14 and 15 Vict. c. 11; and

24 and 25 Vict. c. 100, § 26, relating to appren-

tices. See COUNCIL of CONCILIATION; EM-

BEZZLEMENT; Factories; FALSE CHARACTER.

MASTER AT COMMON LAW.—

The title of officers of the English superior

courts of common law appointed to record the

proceedings of the court to which they belong;

to superintend the issue of writs and the formal

proceedings in an action; to receive and account

for the fees charged on legal proceedings, and

moneys paid into court. There are five to each

court. They are appointed under Stat. 7 Will.

IV. and 1 Vict. c. 30, passed in 1837. Mozley

& W.

MASTER IN CHANCERY.—An

officer of the Court of Chancery, whose

duty it is to make inquiries (when so re-

quired by the court) into matters which

the court cannot conveniently, without

assistance, make for itself, and to report to

the court his findings or conclusions with

respect to such matters. The duties of

the master are of a mixed character, being

partly judicial and partly ministerial, the

powers which he possesses in both respects

having been delegated to him by the

court. Whenever a master has acted in

obedience to the directions of the court,

he informs the court, by a document in

writing, of what he has done, or what con-

clusion he has come to; and in most cases

this document is called the "master's

report." In many jurisdictions the duties

of this officer are now performed by

clerks, commissioners, and referees.

MASTER OF A SHIP.—

§ 1. The person intrusted with the care

and navigation of a ship, possessing what

foreign jurists have called "exercitatorial

power" over her. The master may dele-

gate his power whenever it may be for the

welfare of the ship and the accomplish-

ment of the voyage.

§ 2. The master of a ship is the conti-

dential servant or agent of the owners;

and the owners are bound to the perform-

ance of all his contracts as to the usual

employment of the ship. It follows that

the owners must answer for a breach of

contract, though committed by the mas-

ter or mariners against their will, and

without their fault. The owners, by

selecting a person as master, hold him

forth to the public as worthy of trust and

confidence. And in order that this selec-

tion may be made with due care, and that

all opportunities of fraud and collusion

may be obviated, it is indispensable that

they should be made responsible for his

acts.

§ 3. The master may hypothecate or

pledge both ship and cargo for necessary

repairs in foreign ports during the voyage;

but neither the ship nor cargo for repairs

at home.

§ 4. The master has no lien upon the

ship for his wages, nor for money ad-

vanced by him for stores or repairs.

§ 5. The master is bound to employ his

whole time and attention in the service

of his employers, and may not enter into

any engagement that may occupy any

portion of his time; and if he do so, and

the price of such engagement happen to

be paid to his owners, they may retain the

money.

§ 6. During war, a master should be

attentive to the regulations as to sailing

under convoy; for beside his responsibil-

bility to his owners or freighters, he may be prosecuted by the Court of Admiralty, and fined and imprisoned, if he willfully disobey the signals, instructions, or commands of the commander of the convoy, or desert it without leave.

§ 7. A penalty, in addition to the payment of the wages due, is imposed on every master of a vessel who having, on the voyage, left any seafaring men at any foreign port or place, shall neglect or refuse to deliver an account of the wages due to him, and to pay the same.

§ 8. The law makes no distinction between carriers by land and carriers by water. The master of a merchant ship (except where he confines the credit to the owner and excludes any liability on his own part) is, in the eye of the law, a carrier, and is as such bound to take care of the goods committed to his charge, and to convey them to the place of their destination, the act of God and the public enemy only being excepted. He would not, for example, be liable for damage done to goods on board in consequence of a leak in the ship occasioned by the violence of a tempest, or other accident; but if the leak were occasioned by rats he would be liable, for these ought to have been exterminated by ordinary care, as by putting cats on board, &c. So if the master run the ship in fair weather against a rock, or shallow, known to expert mariners, he is responsible. See 6 Com. B., N. s., 894; and Maud & P. Mer. Sh. (3 edit.) 111, 459. —Wharton.

MASTER OF THE CROWN OFFICE. —The queen's coroner and attorney in the criminal department of the Court of Queen's Bench, who prosecuted at the relation of some private person or common informer; the crown being the nominal prosecutor. (6 and 7 Vict. c. 20.) He is now an officer of the Supreme Court, see last title. The practice of the court (now the Queen's Bench Division of the High Court) on its crown side, is unaltered. Jud. Act, 1875, Ord. lxii. See CROWN OFFICE.

MASTER OF THE FACULTIES.— See FACULTY.

MASTER OF THE HORSE.—The third great officer of the royal household, being next to the lord steward and lord chamberlain. He has the privilege of making use of any horses, footmen, or pages, belonging to the royal stables.

MASTER OF THE MINT.—An officer who receives bullion for coinage, and pays for it, and superintends everything belonging to the mint. He is usually called the "warden of the mint." It is provided by the 33 Vict. 10, § 14, that the chancellor of the exchequer for the time being shall be the master of the mint.

MASTER OF THE ORDNANCE.— A great officer, to whose care all the royal ordnance and artillery were committed. (39 Eliz. c.7.) But, see 18 and 19 Vict. c. 117.

MASTER OF THE ROLLS.—The office of master of the rolls is one of great antiquity and high rank. He was originally keeper of the records, and acted as assistant to the lord chancellor, like the other masters in chancery. (See MASTERS, § 3.) Subsequently, in the reign of Edward I., he acquired judicial authority in matters within the jurisdiction of the Court of Chancery, and in the reign of Henry VI., bills for relief were addressed to him as well as to the lord chancellor. In more modern times, any suit, petition, &c., could be heard in the first instance by the master of the rolls, as well as by the vice chancellors. (Spenc. Eq. 357; Hunt. Eq. 7; Haynes Eq. 47.) By the Judicature Act, 1873, the master of the rolls was made a member of the High Court of Justice (§ 4), and an ex officio member of the Court of Appeals (§ 6; see those titles), but he still retains his non-judicial duties as custodian of the records. He is the head of the petty bag office, and admits solicitors of the Supreme Court. (§ 87.) The Judicature Act, 1881, enacts that from the 27th August, 1881, the master of the rolls shall cease to be a judge of the High Court of Justice, but shall continue, by virtue of his office, to be a judge of the Court of Appeal. Every master of the rolls appointed after the passing of the act is to be under an obligation to go circuits. The act authorizes the appointment of a puisne judge of the High Court in place of the master of the rolls.

MASTER OF THE TEMPLE.—The chief ecclesiastical functionary of the Temple Church.

MASTERS.—Officers attached to the principal English courts of justice. § 1. Of Supreme Court.—The masters of the Supreme Court perform the duties formerly performed by the masters and associates of the Queen's Bench, Common Pleas and Exchequer Divisions, the queen's coroner and attorney, the master of the crown office, and the record and writ clerks. (Judicature (Officers) Act, 1879.) The duties of the masters of the Queen's Bench, Common Pleas and Exchequer Divisions, and of the crown office, were to attend in rotation the sittings of the divisions to which they were attached, hear summonses and applications in chambers, tax bills of costs, examine witnesses before trial, and report upon matters referred to them by the court. (Sm. Ac. 17; Second Rep. Leg. Dep. Comm. 15.) As to the duties of the associates, queen's coroner and record and writ clerks, see those titles. As to the distribution of business, see CENTRAL OFFICE.

§ 2. Masters of the Chancery Division.—In the Chancery Division of the High Court the masters tax bills of costs, (Second Rep. Leg. Dep. Comm. 54; see TAXATION;) the duties which, in the Queen's Bench Division, are performed by the masters, are, in the Chancery Division, performed by the chief clerks and registrars (q. v.)

§ 3. Originally the masters in chancery acted as assessors and assistants to the chancellor, who delegated to them many of his judicial duties; the most important being that of taking accounts and inquiries in suits, and reporting the result to the chancellor. (Spence Eq. 359 et seq.; Haynes Eq. 47.) The master of the rolls, who was one of them, afterwards acquired jurisdiction as a judge of first instance; the other masters were abolished in 1852, and their duties transferred to a new class of officers—the chief clerks (q. v.) Rep. Leg. Dep. Comm. 58.

MASTERS IN LUNACY.—Officers of the lord chancellor, as guardian of lunatics. Their duties are of two kinds: (1) to hold commissions or inquiries to find whether persons alleged to be insane are incapable of managing themselves and their affairs; (2) to inquire as to the property, relations, &c., of persons found lunatic, and to superintend the management and employment of the property for the benefit of the lunatic. Pope Lun. 80; 16 and 17 Vict. c. 70, § 6 et seq. See COMMISSION OF LUNACY; LUNACY; REPORT.

MASTERS IN LUNACY, (who are). 2 Steph. Com. 511–513.

MASTS, (distinguished from “logs”). 40 Me. 145.

MASURA.—In old records a decayed house; a wall; the ruins of a building; a certain quantity of land, about four oxgangs.

MATE.—The deputy of, or officer next in rank to, the master, in a merchant ship. There are sometimes one, sometimes two, three, or four, styled first, second, third, or fourth mate.

MATELOTAGE.—The hire of a ship or boat.

MATER-FAMILIAS.—In the civil law, the mother or mistress of a family. A chaste woman, married or single.—Civ. Lex.

MATERIAL—MATERIALITY.—The question whether an untrue representation or a concealment, avoids a contract to the subject-matter of which it relates, or whether an erasure or alteration avoids a written instrument, depends in general upon whether the misrepresentation, concealment, erasure or alteration is material; and the question whether it is material, depends partly on the facts of the case and partly on the nature of the transaction. Thus, altering the date of a check, is a material alteration. (Vance v. Lowther, 1 Ex. D. 176; Leake Cont. 426; Suffell v. Bank of England, 7 Q. B. D. 270. See ALTERATION.) So, if during the negotiation of a marine insurance, a statement is made which has no real bearing on the risk, but which, nevertheless, influences the mind of the underwriter, as, for instance, an assertion that previous insurance has been obtained on the same ship at a low premium, the misrepresentation will avoid the policy. (Munde & P. Mer. Sh. 397, 401.) So, also, the question whether false testimony amounts to perjury, depends upon whether such testimony was material to the issue upon the trial of which it was given. See PERJURY; UBI RERIMÆ FIDEI.

MATERIAL, (in the code). 4 Sandf. (N. Y.) 668.

MATERIAL ALTERATION, (defined). 10 Am. Dec. 269 n.

MATERIAL DEFENDANT, (in a statute). 54 Ala. 440.

MATERIAL FACTS, (how pleaded). Gould Pl. 63, 64.

MATERIAL ISSUE, (what is). 6 How. (N. Y.) Pr. 145, 151.

MATERIALMEN.—Persons who furnish lumber or any other material to be used in the construction or building of ships, houses or other buildings. They are generally entitled to a lien upon the vessel (if a foreign one), which may be enforced in admiralty, and upon the building in question, under the mechanics' lien laws (q. v.)

MATERIAL REPRESENTATIONS, (what are not, in effecting insurance). 6 Wheel. Am. C. L. 204.

MATERIALITY.—See MATERIAL.

MATERIAIS, (defined). 71 Pa. St. 293.

MATERIAIS FOR BUILDING, (what are not). 38 Wis. 29.

MATERIAIS, WORK, LABOR AND, (in a declaration). 3 Campb. 337.

MATERNAL.—See DESCENT, § 12.

MATERTERA.—A maternal aunt; the sister of one's mother.

MATERTERA MAGNA.—A great maternal aunt.

MATHE.—A moving.

MATRICIDE.

(805)

MATTER.

MATRICIDE.—(1) The murder of a mother; (2) one who has slain his mother.

rial difference between a matter of record and some matter recorded for the purpose

MATRICULA.—(1) A register of the admission of officers and persons entered into any body or society, whereof a list is made. Hence, those who are admitted into universities are said to be "matriculated"; (2) a kind of alms-house, which had revenues appropriated to it, and was usually built near the church, whence the name was given to the church itself.—Encycl. Lond.

of custody only—a record being an entry of judicial matters or proceedings which have taken place in a court of record, and of which the court takes judicial notice, as matter coming peculiarly under its own cognizance, whereas the enrollment of a deed is a private act of the parties concerned, of which the court takes no cognizance at the time when it is done. This phrase is also equivalent to "matter of fact" (q. v.)

MATRICULATE.—To enter a university.

Matrimonia debent esse libera (Halk-erston 86) : Marriages ought to be free.

Matter in demand, (in a statute). 44 Conn. 188.

MATrimonial causes.—These causes, in English law, include suits for divorce, nullity of marriage, judicial separation, damages for adultery, restitution of conjugal rights, and suits of jactitation of marriage. See the various titles; also Alimony; Probate, Divorce and Admiralty Division.

Matter in dispute, (what is). 3 Cranch (U. S.) 159 ; 2 La. Ann. 793, 911 ; 7 Id. 109 ; 10 Id. 170 ; 12 Id. 87.

MATrIMONIUM.—(1) Marriage; (2) the inheritance descending to a man ex parte matris. See Descent, § 12.

— (in a statute). 3 Dall. (U. S.) 404 ; 1 Wall. (U. S.) 337.

Matrimonium subsequens tollit pcc-catum præcedons (Juv. Civ.) : Subsequent marriage cures preceding criminality.

— (in act of congress). 2 Yeates (Pa.) 276.

MATrIMONY.—Marriage; the nuptial state; the contract of man and wife. See Husband and Wife; Marriage.

— (in California constitution). 13 Cal. 28.

Matrimony, (who cannot contract). 12 Mass. 303.

— (in submission to arbitration). 1 Wheel. Am. C. L. 427 ; 2 T. R. 645.

MATRINA.—A godmother.

Matter in difference, (in submission to arbitration). 1 Wash. (Va.) 305, 306 ; 8 East 445 ; 11 Id. 193.

MATRIX ECCLESIA.—The mother church, i. e. the cathedral, so called in relation to the parochial churches within the same diocese, or a parochial church in relation to chapels depending on it. Leg. Hen. I. c. 19.

— (in an award). 4 T. R. 146.

MATRON.—A married woman; a mother of a family. See Jury, § 10.

Matter in ley ne serra mise in bouche del jurors (Jenk. Cent. 180) : Matter of law shall not be put into the mouth of the jurors.

Matter depending in the court, (in a statute). 7 Dowl. & Ry. 382.

Matter in controversy, (what is). 1 Serg. & R. (Pa.) 289 ; 2 Munf. (Va.) 542.

Matter in controversy between the same parties, (what is). 4 Serg. & R. (Pa.) 79.

Matter in deed.—Some private matter or thing contained in a deed between two or more parties; as the covenants or recitals in a lease; and these, although recorded, do not thereby become matter of record, but are simply deeds recorded or enrolled and there is a mate-

Matter in pais.—Matter of fact, probably so called because matters of fact are triable by the country, i. e. by a jury.

Matter of fact.—That which is to be ascertained by the senses, or by the testimony of witnesses describing what they have perceived. The decision of such matters is the province of the jury.

Matter of law.—That which is to be ascertained by reasoning from the established rules of law, or from the enactments of the legislature. The court is to determine matters of law.

Matter of law, (defined). Gould Pl. 347 n.

— (what is). 70 N. C. 187.

Matter of record.—Some judicial matter or proceeding entered upon one of the records of the court, and of which the court takes peculiar cognizance. Thus, the judgments in actions in the courts of record, being matter which is entered upon the records of the court

and filed with its officer, are thence termed matters of record.—Brown.

Matter to be charged, (in an information for libel). Cowp. 683.

Matters and proceedings in bankruptcy, (in United States constitution). 72 N. Y. 159, 167.

Matters of subsistence for man or beast, (in a statute). 19 Gratt. (Va.) 813, 819.

Mature cause of action, (means suable). 82 N. Y. 18.

Matured, (in a statute). 59 Ind. 341.

Maturiora sunt vota mulierum quam virorum (6 Co. 71): The desires of women are more mature than those of men.

Maturity.—The time when a bill of exchange or promissory note becomes due.

Maturity, (in a promissory note). 26 La. Ann. 436.

Maturity, (when means “puberty”). 6 Call (Va.) 55.

Maturity, (not synonymous with “legal majority”). 2 Beas. (N. J.) 375.

Maturity, (when used in reference to a bond). 1 Otto (U. S.) 72.

Maundy Thursday.—The day preceding Good Friday, on which princes give alms.

Maxim.—An axiom; a general principle; a leading truth; so called, says Coke, quia maxima est ejus dignitas et certissima auctoritas, atque quod maxime omnibus probetur. 1 Inst. 11.

Maxime paci sunt contraria vis et injuria (Co. Litt. 161): Force and injury are chiefly contrary to peace.

Maximus erroris populus magister (Bacon): The people is the greatest master of error.

May.—This word in a statute is to be construed “must,” or “shall,” whenever it can be seen that the legislative intent was to impose a duty, and not simply a privilege or discretionary power; and the same rule prevails where third persons or the public have a right de jure that the power conferred shall be exercised. In deeds and other private writings, the construction of the word depends upon the circumstances of each particular case.

May, (in a statute, when imperative). 9 How. (U. S.) 248, 259; 22 Id. 422; 1 Pet. (U. S.) 46; 4 Wall. (U. S.) 435; 5 Id. 705; 28 Ala. 28; 9 Port. (Ala.) 390; 45 Cal. 696; 44 Conn. 534; 13 Ill. 3; 68 Id. 144; 70 Id. 587; Gen. Pr. 38.

77 Id. 271; 84 Id. 471, 476; 7 Ind. 122; 18 Id. 27; 61 Me. 566; 16 Gray (Mass.) 168; 110 Mass. 233, 239; 111 Id. 407; 125 Id. 198, 201; 11 Minn. 92, 101; 48 Mo. 167; 3 Neb. 224; 4 Id. 150; 11 Nev. 260; 39 N. H. 435; 2 Harr. (N. J.) 171; South. (N. J.) 357, 358; 11 Abb. (N. Y.) Pr. 90, 93; 51 Barb. (N. Y.) 270; 1 Den. (N. Y.) 457; 12 How. (N. Y.) Pr. 224, 231; 17 Hun (N. Y.) 142; 25 Id. 17; 3 Lans. (N. Y.) 160; 51 N. Y. 401, 406; 72 Id. 583, 586; 11 Wend. (N. Y.) 159; 14 Id. 647; 3 Serg. & R. (Pa.) 151; 14 Id. 429; 36 Wis. 498; 15 Am. Dec. 464, 467 n.; 9 East 394; 2 Salk. 609; 5 T. R. 538; 1 Vern. 153 n.; 5 Com. Dig. 330; Wilberf. Stat. L. 196, 197, 199, 201.

May, (in a statute, when permissive only). 1 Pet. (U.S.) 46, 64; 71 Me. 20; 107 Mass. 191, 197; 39 Mo. 521; 3 Dutch. (N. J.) 407; 50 Barb. (N. Y.) 339, 340; 5 Cow. (N. Y.) 188, 192; 1 Duer (N. Y.) 599, 600; 10 How. (N. Y.) Pr. 237; 5 Johns. (N. Y.) Ch. 101, 113; 24 N. Y. 405; 23 Wend. (N. Y.) 156; 9 Wis. 309.

May advance, (in a memorandum). 2 Mont. D. & DeG. 587.

May be made, (in a lease). 6 Wend. (N. Y.) 582.

May contract, (in an agreement). 2 Campb. 413.

May exempt, (in a statute). 1. R. 8 (C. B. 481.

May give, (in a devise). 10 Mod. 404.

May have, (in a will). 1 Ves. & B. 422.

May in any wise, (not always synonymous with “may by any possibility,” or “may under any circumstances”). 6 Halst. (N. J.) 62.

May pay, (equivalent to “liable to pay”). 83 Pa. St. 397.

May receive, (in a will). 2 Vern. 559.

May receive, (in an agreement). 41 Conn. 470.

Mayhem.—

§ 1. This crime consists in violently depriving another of the use of a member proper for his defense in fight, such as an arm, a leg, an eye, &c. (3 Bl. Com. 121; Co. Litt. 126a, 288a.) It was originally both a civil injury and a criminal offense, but by modern statutes the law relating to felonious maiming and wounding has been amended, so that there is no legal difference between depriving a person of a member proper for his defense in fight and causing him any other grievous bodily harm (see Malicious Injuries to the Person), except that every one has a right to consent to the infliction upon himself of any bodily harm not amounting to a mayhem. Steph. Cr. Dig. 129.

§ 2. Mayhem, as a civil injury, noems still to exist, but the use of the word is rare. See Appeal, § 8.

Mayhem, (defined). 7 Mann. 247; 1 Chit. Gen. Pr. 38.

MAYHEM.

MAYHEM, (what constitutes). 7 Pac. C. L. J. 640.

— (what is not). 8 Port. (Ala.) 472.

MAYOR.—The chief executive officer of a city. See MUNICIPAL CORPORATION.

MAYOR, (defined). 12 Ind. 569.

— (in a statute). 3 Yeates (Pa.) 426.

MAYOR'S COURT.—The name of a court usually established in cities, composed of a mayor, recorder, and aldermen, generally having jurisdiction of offenses committed within the city, and of other matters specially given them by the statute.—Bouvier.

MAYOR'S COURT OF LONDON.—

§ 1. An inferior court having jurisdiction in civil cases where the whole cause of action arises within the city of London; if, however, the debt or damage claimed in an action does not exceed £50, the court has jurisdiction, provided that the defendant dwelt or carried on business within the city at the time the action was brought, or that part of the cause of action arose within the city. (Stat. 20 and 21 Vict. c. xlvii., § 12; Mayor of London v. Cox, L. R. 2 H. L. 239 ; Haves v. Pavely, 1 C. P. D. 418.) Actions of ejectment, and actions under the Bills of Exchange Act, may be brought in the court, and also certain proceedings peculiar to the city. Caud. M. C. Pr. 69, 121 ; Yeatnm. M. C. Pr. xxxix., iii.

§ 2. The court has two "sides" or divisions—a legal and an equitable—but of late years the equitable jurisdiction has almost fallen into disuse. Yeatnm. M. C. Pr. ii.

§ 3. An ordinary action is commenced by the plaintiff entering at the office of the registrar of the court what is called "an action," which is in the nature of a præcipe (q. v.), giving the names of the parties and the nature of the claim; a copy of this action, together with a notice to the defendant to appear to the action, and particulars of the claim, is then issued and served on the defendant; this document is sometimes called a "copy action and notice," but more commonly a "plaint." (See Caud. M. C. Pr. 71 ; Yeatnm. M. C. Pr. 66.) The subsequent proceedings are similar to those in actions at law before the Judicature Acts, 1873 and 1875, as to which, see CONCESSIT SOLVERE; PLEADING; POSTEA; RECORD.

§ 4. Suits on the equitable side of the court follow the practice of the Court of Chancery, (Id. xix.); as to which, see DECREE, § 1 ; PLEADING. As to the procedure in foreign attachment, see that title. The judge of the court is the recorder, or, in his absence, the common serjeant. Section 43 of the act. See CITY OF LONDON COURT.

MAYORALTY. — The office of a mayor.

MAYORESS.—The wife of a mayor.

MEAD, OR MEADOW. — Ground somewhat watery, not ploughed, but covered with grass and flowers.—Encycl. Lond.

Meadow, (a sedge-flat is not). 34 Conn. 429.

Bing. 90.

— (in a covenant). 8 Mod. 311, 312.

MEAL-RENT.—A rent formerly paid in meal.

MEAN, or MESNE.—A middle between two extremes, whether applied to persons, things, or time. See MESNE.

MEANDER.—To follow a winding or flexuous course. A term used in the Western States to designate the survey of a stream of water according to its actual course. 2 Wis. 317.

Meaning, (in an indictment). Stark. Cr. Pl. 129.

MEANS, (synonymous with "acts"). 1 Barn. & C. 457, 459.

— (in a covenant). 2 Dowl. & Ry. 665.

MEANS, BY ANY OTHER, (in a statute). 29 Mich. 50.

MEANS OF SUPPORT, (in civil damage law). 71 Ill. 241 ; 74 N. Y. 526.

MEANS OF SUPPORTING A FAMILY, (in a statute). 5 Watts (Pa.) 337.

MEANTIME, IN THE, (in a will). 3 Atk. 43 ; 5 Ves. 388, 393; 8 Id. 227, 239.

MEASE, or MESE.—Norman-French for a house. Litt. §§ 74, 251.

MEASON-DUE.—A house of God; a monastery; religious house or hospital. See Stat. 39 Eliz. c. 5.

MEASURE.—That by which the quantity of anything is ascertained; the rule by which anything is adjusted or proportioned.

MEASURE OF DAMAGES.—See DAMAGES, § 1.

MEASURE OF VALUE.—In the ordinary sense of the word, measure would mean something by comparison with which we may ascertain what is the value of anything. When we consider further, that value itself is relative, and that two things are necessary to constitute it, independently of the third thing, which is to measure it, we may define a measure of value to be something by comparing with which any two other things, we may infer their value in relation to one another. 2 Mill Pol. Ec. 101.

MEASURED. (808) MEETING.

MEASURED, (distinguished from "estimated"). 1 Ves. & B. 377.

MEASURED JUSTLY, (in a declaration). Cro. Jac. 391.

MEASURED, TO BE, (in a covenant). Cro. Jac. 472.

MEASURER, or METER.—An officer in the city of London, who measured woolen clothes, coals, &c. See ALNAGER.

MEASURING MONEY.—A duty which some persons exacted by letters-patent, for every piece of cloth made, besides alnage. It is abolished.—Wharton.

MEAT AND DRINK, (in a covenant). 1 Day (Conn.) 30.

MECHANIC, (defined). 32 Ark. 433.

MECHANIC'S LIEN.—A species of remedy allowed by the statute laws of most of the States to persons furnishing materials or labor towards the construction of a building, whereby, in proper cases, payment of their demands may be enforced out of the realty.—Abbott.

MEDALS, (in a will). 3 Atk. 202.

MEDDLE, (covenant not to, with real estate). Reeve Dom. Rel. 181.

MEDERIA.—In old records, a house or place where metheglin, or mead, was made.

MEDFEE.—A reward; a bribe; that which is given to boot.—Cowell.

MEDIÆ ET INFIRMÆ MANUS HOMINES.—Men of a middle and base condition.—Blount.

MEDIANUS HOMO.—A man of middle fortune.

MEDIATE TESTIMONY.—Secondary evidence (q. v.)

MEDIATION.—The act of bringing or persuading two contending parties to agree, compromise, or settle their differences; arbitration (q. v.) seems to express a similar idea. The word is also used in a diplomatic sense, to describe a sort of intervention by one nation in the affairs of others—with a view, by the exercise of the "good offices" of the mediating state, to restore peace and good order. See INTERVENTION.

MEDIATOR.—One who interposes between parties at variance, with their consent, for the purpose of reconciling them.

MEDIATORS OF QUESTIONS.—Six persons authorized by statute, who, upon

any question arising among merchants, relating to merchantable wool, or undue packing, &c., might, before the mayor and officers of the staple, upon their oath, certify and settle the same; to whose order and determination therein the parties concerned were to give entire credence, and to submit. Stat. 27 Edw. III. st. 2, c. 24.

MEDICAL EVIDENCE. — Testimony given by physicians or surgeons in their professional capacity as experts, or derived from the statements of writers of medical or surgical works.—Bouvier.

MEDICAL JURISPRUDENCE.—See Forensic Medicine.

MEDICAL PRACTITIONER.—See Physician.

MEDICAL SERVICES, (what are). 59 Me. 181.

MEDICINE, (in pharmacy act). I. R. 5 Q. B. 290.

MEDICO-LEGAL.—Relating to the law concerning medical questions.

MEDIETATIS LINGUÆ.—See Jury, § 9.

MEDIO ACQUIETANDO. —A judicial writ to distrain a lord for the acquitting of a mesne lord from a rent, which he had acknowledged in court not to belong to him. Reg. Jur. 129.

MEDITATIO FUGÆ.—A debtor in meditatione fugæ (meditating flight) may, by the law of Scotland, be arrested by warrant obtained for that purpose.

MEDIUM TEMPUS.—Mean time; meantime profits.—Cowell.

MEDLEFE—MEDLETA.—MEDLE-TUM.—A sudden scolding at and beating one another. Bract. 1, 3, c. xxxv.

MED-SCEAT.—A bribe; hush money.—Anc. Inst. Eng.

MEDSYPP.—A harvest supper or entertainment given to labourers at harvest-home.—Cowell.

MEET, (in revised statutes, ch. 51, § 11. 10 Cush. (Mass) 499.

MEETING.—§ 1. Of creditors.—In the law of bankruptcy and insolvency (including proceedings for liquidation and composition), the most important kind of meeting in the first meeting of creditors, which is described under the titles BANKRUPTCY; COMPOSITION; LIQUIDATION. The trustee in a

bankruptcy or liquidation, in England, is bound to follow the directions of the creditors in administering the estate, and he may from time to time summon general meetings of the creditors for the purpose of ascertaining their wishes; in certain cases he is required to do so. (Rob8. Baukr. 519.) A member of the committee of inspection or the registrar of the court may also summon a general meeting, e.g. for the purpose of removing the trustee or appointing a new trustee.

§ 2. Corporation, Ordinary-Extraordinary.—In the law of corporations meetings are of two kinds, ordinary and extraordinary, or, as they are also called, general and special. Ordinary or general meetings are usually held at stated times and for the transaction of business generally. Extraordinary or special meetings are held as occasion may require for the transaction of some particular business, which ought to be specified in the notice convening the meeting. One meeting may be both ordinary and extraordinary. (Lind. Comp. 572.) Every company formed under the English Companies Act, 1862, is bound to hold a general meeting within four months after its registration, (Companies Act, 1867, § 39,) and once at least in every year thereafter. (Companies Act, 1862, § 49.) It has been decided that a single person cannot constitute a meeting. Sharp v. Dawes, 2 Q. B. D. 26. See Resolution.

Meeting, (in summaries act). 2 Q. B. D. 26.

Meeting of the Qualified Voters, (in an indictment). 122 Mass. 12.

MEGBOTE.—In Saxon law, a recompense for the murder of a relation.

MEIGNE, or MAISNADER.—A family.

MEINY, MEINEI, or MEINIE.—The royal household; a retinue.

MELANCHOLIA.—The ancient term for "monomania" (q. v.)

MELDFEOH.—The recompense due and given to him who made discovery of any breach of penal laws committed by another person, called the promoter's (i. e. informer's) fee.

Melieur terra prize pour le roy (Jenk. Cent. 192): The best shall be taken for the king.

MELIOR-MELIUS.—Better; the better.

Melior dabit nomen rei (Bac.): The better will give a name to a thing.

Melior est conditio defendentis.—The condition of the party in possession is the better one, i. e. where the right of the parties is equal.

Melior est conditio possidentis, et rei quam actoris (4 Inst. 180): The condition of the possessor is the better, and the condition of the defendant than that of the plaintiff.

Melior est conditio possidentis ubi neuter jus habet (Jeuk. Cent. 118): The condition of the possessor is the better where neither of the two has a right.

Melior est justitia vere præveniens, quam severe puniens (3 Inst. Epil.): Justice truly preventing is better than severely punishing.

MELIORATING WASTE.—See

MELIORATIONS.—In the Scotch law, improvements.

Meliorem conditionem ecclesiæ suæ facere potest prælatus, deteriorem nequaquam (Co. Litt. 101); A bishop can make the condition of his own church better, but by no means worse.

Meliorem conditionem suam facere potest minor, deteriorem nequaquam (Co. Litt. 337): A minor can make his own condition better, but by no means worse.

Melius est in tempore occurrere, quam post causam vulneratum remedium quærere (2 Inst. 299): It is better to meet a thing in time, than after an injury inflicted, to seek a remedy.

Melius est omnia mala pati quam malo consentire (3 Inst. 23): It is better to suffer every ill than to consent to ill.

Melius est recurrere quam male currere (4 Inst. 176): It is better to run back than to run badly; it is better to retrace one's steps, than to proceed improperly.

Melius est petere fontes quam sectari rivulos: It is better to go to the fountain head than to follow little streamlets.

MELIUS INQUIRENDUM.—If an office or other inquisition is found against the crown, a melius inquirendum, i. e. a further (literally "better") inquiry under the former commission may be awarded for the crown. But no melius inquirendum is usually awarded in such case unless some prima facie ground is shown for supposing the inquisition to be wrong. A melius inquirendum may also be awarded if the former

inquisition is on the face of it incomplete or uncertain. Chit Prer. 258; Co. Litt. 77 b. See Inquest of Office; Inquisition.

MEMBER.—(1) A limb of the body capable of use in self-defense. (2) One who belongs to a partnership, company, or corporation. (3) One who belongs to a legislative or judicial body; as, a member of congress, a member of the court, &c.

Member, (in a statute). 1 Mass. 392. — (of a corporation, who is). 16 Mass. 94, 100; 4 Pick. (Mass.) 405. — (of a corporation, distinguished from “stockholder”). 1 Whart. (Pa.) 461, 468. — (of a corporation, liability of). 17 Mass. 330.

MEMBER OF CONGRESS.—A member of the senate or house of representatives of the United States. See Congress.

MEMBER OF PARLIAMENT.—One having the right to sit in either house of parliament. See House of Commons; House of Lords.

MEMBERS.—Places where anciently a custom house was kept, with officers or deputies in attendance. They were lawful places of exportation or importation. 1 Beaw. Lex. Mer. (6 edit.) 246.

Members, (synonymous with “stockholders” in insurance law of 1853). 7 N. Y. 114. Members being communicants, (in charter of religious congregation). 11 Serg. & R. (Pa.) 39.

MEMBRANA.—Parchment; a skin of parchment. Hale Hist. Com. L. 17. MEMBRUM.—A slip or small piece of land.

MEMORANDUM.—Be it remembered. (1) Anciently the initial word of the record in the Court of King's Bench, when legal documents were written in Latin. (2) An informal writing intended to evidence some fact or agreement, formerly commenced with this word, and the translation is still used, both in such writings and in court records.

Memorandum, (defined). 32 Conn. 517. — (what is). 117 Mass. 18; 6 Barn. & C. 117, 121; 1 Bing. 9; 2 B. & P. 229; 1 Wils. 118; 2 Mau. & Sel. 280; 2 Moo. & P. 375. — (what is not). 9 Barn. & C. 706; 3 Car. & P. 296. — (in policy of insurance). 2 Selw. N. P. 948. — (on a promissory note). 10 Pick. (Mass.) 228.

Memorandum (under statute of frauds). 57 Ala. 258; 7 Mass. 233; 13 Id. 87; 17 Id. 131; 3 Johns. (N. Y.) 399, 419; 12 Id. 102; 14 Id. 434; 3 Wend. (N. Y.) 336; 16 Id. 31; 24 Id. 322; 2 Barn. & C. 945, 948; 6 East 307; 7 Id. 558, 567; 15 Id. 103.

MEMORANDUM ARTICLES.—Articles enumerated in the “memorandum clause” (q. v.) in a marine policy of insurance.

MEMORANDUM CHECK.—A check often given by a merchant obtaining a temporary loan from another, in the place of giving a promissory note, and intended not to be presented at the bank for payment, but to be redeemed by the maker at a time agreed upon. Such understanding is denoted by the word “mem.” written upon the check. But the making of a check in this way does not affect its negotiability, or alter the right of the holder to present it to the bank and demand payment immediately. 11 Paige (N. Y.) 612.

Memorandum check, (what is). 12 Abb. (N. Y.) Pr. N. S. 200.

MEMORANDUM CLAUSE.—In a policy of marine insurance the memorandum clause is a clause inserted to prevent the underwriters from being liable for injury to goods of a peculiarly perishable nature, and for minor damages. It begins as follows: “N. B.—Corn, fish, salt, fruit, flour and seed are warranted free from average, unless general or the ship be stranded;” meaning that the underwriters are not to be liable for damage to these articles caused by sea-water or the like. (Mudd & P. Mer. Sh. 371.) See Average; Policy of Insurance.

MEMORANDUM OF AGREEMENT.—See Statute of Frauds.

MEMORANDUM OF ALTERATION.—Formerly, in England, where a patent was granted for two inventions, one of which was not new or useful, the whole patent was bad, and the same rule applied when a material part of a patent for a single invention had either of these defects. “To remedy this the Stat. 5 and 6 Will. 4, c. 83, empowers a patentee (with the fiat of the attorney-general) to enter a disclaimer (q. v.) or a memorandum of an alteration in the title or specification of the patent, not being of such a nature as to extend the exclusive right granted by the patent, and thereupon the memorandum is deemed to be part of

MEMORANDUM. (811) MENSALIA.

the letters-patent or the specification. Johns. Pat. 151; Stat. 15 and 16 Vict. c. 83, § 39.

MEMORANDUM OF ASSOCIATION.—A document by the registration of which a company is formed under the English Companies Act, 1862. It specifies the name of the proposed company, the part of the United Kingdom in which the registered office of the company is to be, and the objects for which the company is established. (Companies Act, 1862, § 10.) If the company is to be limited by shares, the memorandum must also contain the amount of the capital and the number of shares. (§ 8. As to companies limited by guarantee, see § 9.) The memorandum must be signed by seven persons at least (§§ 6, 11), who are called the "subscribers." It cannot be altered, except that a company limited by shares may increase its capital or alter the division of its capital into shares, &c. See ARTICLES OF ASSOCIATION; COMPANIES ACTS; REDUCTION OF CAPITAL.

MEMORANDUM OF ASSOCIATION, (what is). 3 Steph. Com. 20.

MEMORANDUM IN ERROR.—A document alleging error in fact, unaccompanied by an affidavit of such matter of fact. Stat. 15 and 16 Vict. c. 76, § 158. See ERROR.

MEMORIAL.—

§ 1. Land registries.—In the land registries of Middlesex, York, &c., which are registries of deeds and not of titles, the registration of a deed or other document is effected by leaving it at the registry together with a memorial under the hand and seal of one of the parties to the deed. The memorial is an abstract of the material parts of the deed, with the parcels (q. v.) at full length, and concludes with a statement that the party desires the deed to be registered. The execution of the deed and memorial is proved by the oath of an attesting witness. See LAND REGISTRY.

§ 2. Petition.—"Memorial" also signifies a petition or statement submitted to a person or body.

MEMORIAL, (is a record). 32 Conn. 517.

MEMORY.—(1) Understanding; mental capacity either to make contracts or to commit a crime, so far as intention is necessary. (2) The reputation, good or bad, which a man leaves at his death.—Bouvier.

MEMORY, LEGAL, (what is). Co. Litt. 115 a

MEMORY, TIME OF.—In the old books, when a person alleges in legal proceedings, that a custom or prescription has existed from time whereof the memory of man runneth not to the contrary, that is as much as to say that no man then alive hath heard any proof of the contrary.

This is also called "time of living memory," as opposed to "time of legal memory," which runs from the reign of Richard I., because the Statute of Westminster I. (3 Edw. I. c. 8) fixed that period as the time of limitation for bringing certain real actions. (Litt. § 170. See LIMITATION, § 6.) As to the practical importance of the distinction, see ANCIENT MESSUAGES; CUSTOM, § 5; LOST GRANT; PRESCRIPTION.

MEMORY, TIME OF, (commences when). 8 Pick. (Mass.) 504; 3 Halst. (N. J.) 125.

MEN OF LEGAL ATTAINMENTS, (in a statute). 4 Ind. 7.

MEN OF STRAW.—Men who used in former days to ply about courts of law, so called from their manner of making known their occupation (i. e. by a straw in one of their shoes), recognized by the name of straw-shoes. An advocate or lawyer who wanted a convenient witness, knew by these signs where to find one, and the colloquy between the parties was brief. "Don't you remember?" said the advocate (the party looked at the fee, and gave no sign: but the fee increased, and the powers of memory increased with it)—"To be sure I do." "Then come into court and swear it!" And straw-shoes went into court and swore it. Athens abounded in straw-shoes. Quart. Rev. xxxiii. 344.

MENACE.—A threat. By 24 and 25 Vict. c. 96, § 45, it is made felony to demand with menaces property, money, &c., with intent to steal; similar statutes are in force in most of the States. See THREATS.

MENAGIUM.—A family.

MENDLEFE.—See MEDLEFE.

MENIALS.—Those servants who live within their master's walls.—Termes de la Ley. See DOMESTICS.

MENS.—Mind; intention; meaning; understanding; will.

Mens testatoris in testamentis spectanda est (Jenk. Cent. 277): The intention of the testator is to be regarded in wills.

MENSA.—(1) Patrimony, or goods, and necessary things for livelihood.—Jacob. (2) A table; the table of a money changer. D. 2, 14, 47.

MENSA ET THORO.—See DIVORCE; LIMITED DIVORCE; SEPARATION.

MENSALIA.—Personages or spiritual livings united to the tables of religious houses, and called mensal benefices amongst the canonists.—Cowell.

MENSULARIUS. (812) MENTAL.

MENSULARIUS.—In the civil law, a money-changer. D. 2, 14, 47, 1.

MENSURA.—In old English law, a measure.

MENSURA DOMINI REGIS, or MENSURA REGALIS.—The royal standard measure, which was kept in the exchequer, according to which all measures were to be made.

MENTAL ALIENATION.—Insanity (q. v.)

§ 1. "Many attempts have been made by psychologists to define insanity; but the definitions hitherto given are so imperfect that it would be difficult to find one which includes all who are insane and excludes all who are sane . . . These definitions are defective, inasmuch as they are not adapted to the various forms of the disease." 2 Tayl. Med. Jur. (2 edit.) 476.

§ 2. The different species.—The subject was thus classified by Esquirol, at least, in its main features: (1) Mania, a hallucination which extends to all kinds of objects, accompanied with excitement. (2) Monomania, confined to a single or a small number of objects. (3) Dementia, an incapacity of reasoning in consequence of functional disorder of the brain, not congenital. It appears under two different degrees of severity, which are designated as "acute" and "chronic." (4) Idiotism, congenital, from original mal-conformation in the organ of thought. The most striking physical trait of idiocy, and one seldom wanting, is the diminutive size of the head, particularly of the anterior-superior portions, indicating a deficiency of the anterior lobes of the brain. In imbecility, the development of the moral and intellectual powers is arrested at an early period of existence. It differs from idiocy in the circumstance that while in the latter there is an utter destitution of everything like reason, the subjects of the former possess some intellectual capacity, though infinitely less than is possessed by the great mass of mankind. (5) Moral Insanity, i. e. a morbid perversion of the natural feelings, affections, inclinations, and moral dispositions, without any notable lesion of the intellect, or knowing and reasoning facul-

ties, and particularly without any maniacal hallucination. (Consult the interesting paper on insanity by Dr. Prichard, in Cyc. of Prac. Med.) In many it displays itself in an irresistible propensity to murder (homicidal monomania), in others, to theft (kleptomania); while some are impelled to set fire to buildings (pyromania). Their whole character is changed; the pious become impious; the liberal, penurious. (6) Demonomania, a variety of melancholy arising from mistaken ideas on religious subjects. (7) Nymphomania, or furor uterinus, a raving mania of females, connected with disorder of the generative organs.

"The law of England recognizes two states of mental disorder or alienation: (1) Dementia naturalis, corresponding to idiocy, and (2) Dementia adventitia, or accidentalis, signifying general insanity, as it occurs in persons who have once enjoyed reasoning power. To this state the term lunacy is also applied . . . Besides the terms 'idiocy,' and 'lunacy,' we find another frequently employed in legal proceedings—viz., unsoundness of mind (non compos mentis), of the exact meaning of which it is difficult to give a consistent definition." 2 Tayl. Med. Jur. (2 edit.) 479.

Medical jurists treat of inferior degrees of diseased minds; as the delirium of fever resembling mania; hypochondriasis, like to melancholy; hallucination, i. e. an idle representation produced by the memory, associated and embodied by the imagination; epilepsy, tending to dementia; nostalgyia, a form of melancholy originating in despair, from being separated from one's native country; intoxication, producing delirium tremens, and the dementia of old age.—Wharton.

MENTAL IMBECILITY, (analogous to "childishness," and "dotage"). 17 Am. Dec. 311.

MENTAL RESERVATION.—A silent exception to the general words of a promise or agreement not expressed, on account of a general understanding on the subject. But the word has been applied to an exception existing in the mind of the one party only, and has been degraded to signify a dishonest excuse for evading or infringing a promise.—Wharton.

MENTIONED.

(813)

MERCHANT.

Mentioned and comprised, (in a statute). 1 W. Bl. 533, 534.

MERCHANDISE, transportation of, (in a charter). 2 Story (U. S.) 16, 53.

MENTITION.—The act of lying; a falsehood.

MERCHANDISE MARKS ACT, 1862.—The statute 25 and 26 Vict. c. 88. Its object is to prevent the fraudulent marking of merchandise and the fraudulent sale of merchandise falsely marked. Its principal provisions are to make forging or falsely applying any trade mark a misdemeanor, and to impose penalties for wrongfully selling goods with forged or false trade marks, or for marking false indications of quantity on articles for sale, or selling articles so marked. There are also various provisions as to procedure, &c. See Lud. & Jenk. 19 et seq. See, also, Trade Mark.

MEPRIS.—Neglect; contempt.

MERCHANT.—One who traffics to remote countries; also, any one dealing in the purchase and sale of goods and merchandise. See Josselyn v. Parson, L. R. 7 Ex. 127.

MER, or MERE.—A fenny place.—Cowell.

Merchant, (who is). 2 Duv. (Ky.) 107; 2 Salk. 445.

MERA NOCTIS.—Midnight.—Cowell.

— (a speculator in stocks is not). 8 Ben. (U. S.) 563.

MERANNUM.—In old records, timbers; wood for building.

— (in condition of bond). L. R. 7 Ex. 127.

MERCABLE.—To be sold or bought.

— (in liquor law). 9 Bush (Ky.) 509.

MERCANTANT.—A foreign trader.

— (in a statute). 2 Atk. 612.

MERCANTILE LAW.—That law which treats of matters of trade between merchant and merchant, whether trading alone, or in partnership, or as members of a company or corporation. It is largely occupied with bills of exchange and other negotiable instruments; contracts of carriage and affreightment; contracts of insurance and of guarantees; and with questions of lien, stoppage in transitu, and the like.

— (in statute of frauds). 7 Cranch (U. S.) 102.

MERCAT.—Market; trade.

Merchant and merchant, accounts between. (in statute of limitations). 6 T. B. Mon. (Ky.) 11; 1 Halst. (N. J.) 379; 5 Wheel. Am. C. L. 352; 19 Ves. 130.

MERCATIVE.—Belonging to trade.

MERCHANT APPRAISEMENT.

MERCATURE.—The practice of buying and selling.

MERCHANT APPRAISERS.—See Appraisement.

MERCOEDARY.—One that hires.

Merchant appraisers, (who are). 24 How. (U. S.) 521.

MERCENARIUS.—A hireling or servant.—Jacob.

MERCHANT SHIPPING.—The law relating to the ownership, registration and transfer of British merchant ships, to the qualifications and control of masters, mates, pilots, engineers, &c., and to the protection and relief of ordinary seamen, is contained in the Merchant Shipping Act, 1854, and the various acts amending it, down to the Merchant Shipping Act, 1876, for the prevention of casualties by unseaworthy ships and overloading, the Merchant Shipping Acts, 1880, and the Merchant Shipping (Carriage of Grain) Act, 1880, for enforcing precautions to prevent grain cargoes from shifting. The law of merchant shipping also deals with affreightment, marine insurance, hypothecation, salvage and wreck (q. v.) Maude & P. Mer. Sh.; Sm. Merc. L. 178; 3 Steph. Com. 148.

MERCEN-LAGE.—The mercian laws, which were observed in many of the midland counties, and those bordering on the principality of Wales, the retreat of the ancient Britons.—Wharton.

MERCES.—In the civil law, a reward of labor in money or other things.—Calv. Lex.

MERCHANDISE.—Commodities; articles of personal property ordinarily dealt in by merchants and traders; things bought to be sold again. See Goods.

Merchandise, (defined). 3 Daly (N. Y.) 512.

— (embraces what). 20 Mich. 353.

— (in an insurance policy). Anth. (N. Y.) 114; 43 Pa. St. 350.

— (in a statute). 8 Pet. (U. S.) 277.

— (in act of 1821). 22 Vt. 655.

— (within the statute of frauds). 60 Me. 430; 2 Mo. App. 61.

Merchandise, grain and other, (in an insurance policy). 20 Ind. 294.

MERCHANT.

(814)

MERGER.

MERCHANT VESSEL, (what is). 9 Wend. (N. Y.) 13.

MERCHANTABLE, (in a contract). 11 Ct. of Ch. (N. Y.) 419; 5 Me. 419.

MERCHANTABLE ORDER, (in a contract). 34 Barb. (N. Y.) 204, 206.

MERCHANTMAN.—A ship or vessel employed in commerce or in the merchant-service.

MERCHANTS' ACCOUNTS.—See Account, § 2.

MERCHANTS' ACCOUNTS, (what constitute). 4 Cranch (U. S.) C. C. 696; 7 Miss. 328; 1 Edw. (N. Y.) 417; 6 Jones (N. C.) L. 335; Ang. Lim. § 161; 8 Com. Dig. 717.

(what are not). 20 Johns. (N. Y.) 576; 5 Johns. (N. Y.) Ch. 522; Ang. Lim. § 164.

(in a statute). 5 Cranch (U. S.) 15; 7 Id. 350; 1 Cranch (U. S.) C. C. 433, 452; 2 Johns. (N. Y.) 200.

MERCHET.—See Marchet.

MERCIAMENT.—An amerciainent, penalty, or fine (qq. v.)

MERCI-MONIATUS ANGLIÆ.—The impost of England upon merchandise.—Cowell.

MERCY.—Formerly when the judgment in an action was for the plaintiff, the defendant was said to "be in mercy" (misericordia), i. e. amerced or fined for his delay of justice; and when the judgment was for the defendant, the plaintiff was said to "be in mercy" for his false claim. The phrase has been long obsolete.—Brown.

MERCY, PREROGATIVE OF.—The executive may pardon a criminal after conviction, and without assigning any cause for so doing; but the improper exercise of the prerogative would reflect upon the government. The prerogative does not extend to exempt the accused from undergoing his prosecution. See Commutation, § 1; Pardon.

MERE MOTION,—The free and voluntary act of a party himself, without the suggestion or influence of another person. The phrase is used in letters-patent, whereby the king grants, "of his (especial grace, certain knowledge, and) mere motion" (mero motu), his license, power and authority to the patentee to use and enjoy, exclusively, the new invention, the grant being assumed to be of the free and unfettered will of the sovereign. (Webst. Pat. 76, n. (d).) The expression is also applied

to the occasional interference of the court, who, under certain circumstances, will (ex mero motu), 'of their own motion," object to an irregularity in the proceedings of the parties, though no objection be taken to the informality by the plaintiff or defendant himself. (1 Bing. N. C. 258; 1 Bos. & P. 366.)—Brown.

MERE RIGHT.—The right of property (the jus proprietatis), which a person may have in anything, without having either possession or even the right of possession, is frequently spoken of under the name of the "mere right," and the estate of the owner is, in such cases, said to be totally divested and put to a right. Co. Litt. 345.

MEREMNIUM.—Timber.—Cowell.

MERGED, (when estates in land are). Davies 12.

MERGER.—Norman-French: to drown.

§ 1. That operation of law which extinguishes a right by reason of its coinciding with another right, of greater legal worth, in the same person. By "operation of law" is meant that it may take place independently of the wishes or intention of the parties; and by "greater legal worth" is meant that one right in estimation of law, though not necessarily in fact, is of higher value than the other.

§ 2. Rights of action.—In the law relating to rights of action, when a person takes or acquires a remedy or security of a higher nature, in legal estimation, than the one which he already possesses for the same right, then his remedies in respect of the minor right or security merge in those attaching to the higher one. (Leake Cont. 506; Price v. Moulton, 10 Com. B. 561) Thus, if a bond is taken for a simple contract debt, the remedy upon the simple contract is extinguished, and therefore an action for the debt must be brought on the bond; again, if judgment is recovered in such an action, the right of action on the bond is merged in the judgment, and therefore no second action can be brought on the bond. In re European Central Rail. Co., 4 Ch. D. 33.

In the law of property, merger takes place either according to the rules of law or according to those of equity.

MERGER.

(815)

MERITORIOUS.

§ 3. Estates at law.—At law, when a greater and a less estate meet in the same person without any intermediate estate, the less estate is merged in the greater, so as to cease to exist. The greater estate is thus accelerated, but not enlarged. (3 Pres. Conv.7. See Enlargement.) Thus, if A. is tenant for life of land, and the reversion in fee afterwards descends to, or is otherwise acquired by him, his estate for life merges in the fee, and he thus becomes tenant in fee in possession. But if a person has two estates in different rights, as where he has one in his own right, and the other in right of his wife, or as executor, there will in general be no merger. An estate for life being, in the estimation of the law, greater than any term of years, however long, it follows that when a person holding a term for one thousand years becomes entitled to the land for an estate for life, the term merges in the life estate. (2 Bl. Com. 177 and notes; Burt. Comp. R. P. §§ 747, 896; 8 Jarman & B. Conv. 1, n. (a.) Merger, or its consequences, are in some instances prevented by statute. Thus, in England, an estate tail does not merge in the free-hold (Stat. 13 Edw. I. c. 1 (De Donis). See as to the preservation of the rights incident to a reversionary term which has merged, 8 and 9 Vict. c. 106, § 9: Wms. Real Prop. 251. See Enlargement); and now by the Judicature Act, 1873, there can be no merger, by operation of law only, of any estate the beneficial interest in which would not be deemed to be merged or extinguished in equity. (Sect. 25, § 4.) This enactment is apparently meant to recognize the rule which prevailed in equity before the act, namely, that where the estate of a trustee accidentally merges, the cestui que trust shall not thereby be injured. Wms. Real. Prop. 415.

§ 4. In equity, where a legal and equitable estate, equal and co-extensive, unite in the same person, the latter merges in the former. (Wats. Comp. Eq. 619; Spence Eq. 879; Burt. Comp. R. P. § 1388.) Where an estate of inheritance in land and the right to a charge upon it become vested in the same person absolutely (as where a person entitled to have a portion raised out of land becomes entitled to the land

§ 5. Crown grants.—In the law relating to grants by the crown, it is the rule that when a right belonging to the crown by virtue of its prerogative (such as the right to wreck) is granted to a subject as an appendency to land, then if the land comes into the hands of the crown the right merges in the jus coronae, and does not pass by a grant of the land, but must be created again. Rights vested in the crown otherwise than jure coronae (such as warrens, fairs, &c.) do not merge. (Case of the Abbot of Strata Marcella, 9 Co. 24; Heddy v. Wheelhouse, Cro. Eliz. 591; Duke of Northumberland v. Houghton, L. R. 5 Ex. 127.) As to the merger of tithes, see that title; also Extinguishment.

§ 6. In criminal law.—The merger of a lesser in a graver offense which is necessarily included in the commission of the latter. Thus, burglary often includes larceny; battery includes assault, &c., &c. Where the two offenses are of equal degree there can be no merger.

Merger, (defined). 89 Ill. 170; 2 Cow. (N. Y.) 300; 5 Watts (Pa.) 456; 1 Hill (S. C.) Ch. 276.

(history of the doctrine). 4 Greenl. (Me.) 164.

(how considered in law and equity). Co. Litt. 338 b, n. 4.

(when takes place). 15 Barb. (N. Y.) 70, 75; 2 Cow. (N. Y.) 246; 3 Johns. (N. Y.) Ch. 53; 5 Id. 35; 6 Id. 393, 417; 4 Paige (N. Y.) 578, 642; 1 Sim. 298.

(when will not take place). 1 Paige (N. Y.) 192; 2 Plowd. 418.

(when the civil remedy is merged in the felony). 15 Mass. 78; 4 N. H. 239; 1 Wheel. Am. C. L. 232.

MERITORIOUS CAUSE OF ACTION.—A person is sometimes said to be the meritorious cause of action when the cause of action, or the consideration on which the action was founded, originated with, or was occasioned by, such person. Thus, in an action by husband and wife for the breach of an express promise to the wife in consideration of her personal labor and skill in curing a wound, she would be termed the meritorious cause of action. So in an action by husband and wife upon an agreement entered into with her before marriage, she would be the

MERITORIOUS.

meritorious cause of action; fur it originated or accrued out of a contract entered into with her. So a promissory note made to the wife during coverture in her own name is presumed to be made upon a consideration moving from her. Leake Cont. 240-41.

MERITORIOUS CONSIDERATION.—One founded upon some moral obligation; a valuable consideration in the second degree.

MERITS.—A person is said to have a good cause of action or defense on the merits when his claim or defense is based on the real matters in question, and not on any technical ground. Thus, in England, before the judicature acts, a defense based on the misjoinder or nonjoinder of parties by the plaintiff would not have been a defense on the merits. If a defendant inadvertently allows judgment to go by default, the court will not, as a rule, set the judgment aside and allow him to defend unless he makes an affidavit of merits, i. e. an affidavit showing that he has a substantial ground of defense to the action.

Merits. (affidavit of, when defective). 2 Hill (N. Y.) 359.

(in code of procedure, § 349). 2 Daly (N. Y.) 203; 4 How. Pr. 329; 3 Sandf. 750; 1 E. D. Smith 349.

(defense on the). 1 Pa. 291; 1 Dowl. & Ry. 155.

MERO MOTU.—See Ex Mero Motu; Mere Motion.

MERS CUM.—A lake; also, a marsh, or fen-land.

MERSE-WARE.—The ancient name for the inhabitants of Romney Marsh, Kent.—Cowell.

MERTLAGE.—A church calendar or rubric.—Cowell.

MERTON, STATUTE OF.—The Stat. 20 Hen. III., is so called because it was passed in the convent of St. Augustin, at Merton, in Surrey. The particular provisions of the statute regarded (1) legitimacy of children; (2) division of common lands; and (4) wardships.—Brown.

MESCROYANTS.—Unbelievers.

MESE.—A house and its appurtenance.—Cowell.

MESNALTY.—The tenure or seigniory of a mesne lord. "If there he lord [paramount], mesne [lord]1, and tenant [paravail], and . . . if the lord paramount purchase the tenancie [of the tenant paravail] in fee, then . . . the seigniorie of the mesnalty is extinct." Litt. § 231.

MESNE.—Norman-French: meen; Modern French, moyen, from late Latin, medianus, medium, middle. Brit 58 a, Diez Etym Wortb i 270.

§ 1. Middle, intervening, or intermediate. Thus, in framing an assignment of a lease which has already passed through several hands since it was originally granted, it is usual to refer to all the assignments before the last as "mesne assignments." So, if property is mortgaged first to A. and then to B., and is subsequently mortgaged to A. a second time, B. is said to be a mesne incumbrancer, or to have a mesne incumbrance, because his mortgage stands between the two mortgages to A. See Priority; Tacking.

§ 2. Profits.—When a person is wrongfully in possession of land, and the rightful owner brings an action to recover possession, he usually sets up in addition, either in the same or a separate action, a claim for "mesne profits," i. e. for the benefit which the defendant has derived from his wrongful occupation of the land between the time when he acquired wrongful possession and the time when the possession was taken from him. (1 Steph. Com. 294.) It was formerly called an action of trespass for mesne profits, being a species of the action of trespass vi et armis. (See Trespass; Ad. Eject. 379. See Joinder; also, Double Rent; Double Value.) In the old books "mesne" often denotes "mesne lord." Co. Litt. 152 b.

§ 3. The writ of mesne was a writ which a tenant paravail had to compel his immediate lord (the mesne) to protect or acquit him against the lord paramount. (Litt. § 142. See Acquit, § 2.) It was abolished by Stat. 3 and 4 Will. IV. c. 27.

MESNE ASSIGNMENT.—See Mesne, § 1.

MESNE INCUMBRANCES.—See Mesne, § 1.

MESNE LORD.—See Lord; Mesnalty.

MESNE PROCESS.—See Process.

Mesne process, (what is). 2 Barn. & Ald. 56, 63.

MESNE. (817) METECORN.

Mesne process, (in a statute). 1 Dowl. & Ry. 377.

MESSUAGE, (includes the curtilage). T. Jones 227.

MESNE PROFITS.—See Mesne, § 2.

— (includes curtilage, but not garden). Co. Litt. 5 b, n. 11.

Mesne profits, (whether included in “damages,” quære). Coxe (N. J.) 125.

— (distinguished from “house”). 2 T. R. 498, 502.

— (when the statute abolishing the action for). 6 Hill (N. Y.) 328, 333.

— (synonymous with “dwelling-house”). 2 Bing. N. C. 617.

— (when recoverable). Coxe (N. J.) 466. Thom. Co. 215, 216 n.; 2 Saund. 410, n. (2);

— (may be recovered in an action of | Shep. Touch. 94.

ejectment). 2 Stark. Ev. 544.

— (synonymous with “mansion,” “dwelling-house,” “house and burgage”). 1 Chit. Gen. Pr. 167.

— (cannot be recovered in an action of | (what passes by grant of). 4 Com. Dig. 542, 544; Shep. Touch. 93.

account-render). 5 Watts (Pa.) 474.

— (in dower act). 4 Blackf. (Ind.) 331.

— (action for, distinguished from action | (in a deed). 3 Atk. 82; 2 Saund. 400; 1 Chit. Gen. Pr. 153, 175; Co. Litt. 56 b.

for use and occupation). 60 Barb. (N. Y.) 463.

— (demise of). 2 W. Bl. 503.

MESNE TENURE.—See Tenure.

— (in a will). 5 Barn. & Ald. 407, 411; MESNE, WRIT OF.—See Mesne, § 3.

2 W. Bl. 727; 1 Bos. & P. 53, 57; 7 Co. 23; Mess pork, (in a contract). 2 Bing. N. C. Cro. Eliz. 89; 15 East 309; 4 Mau. & Sel. 550; 668, 677.

1 Meriv. 450; 8 Moo. 665; 1 Myl. & K. 571; 2 Sim. 150, 151; 3 Wils. 141, 143; 1 Chit. Gen. MESSARIUS.—A chief servant in husbandry; a bailiff. Mong. Ang. t. ii. 832.

Pr. 159; Com. L. & T. 75, 76.

MESSUAGE, all my freehold, (in a will). MESSE THANE.—One who said mass; a priest.—Cowell.

2 Bing. 456; 10 Moo. 158.

MESSUAGE AND HOUSE, (in a will). 4 Com. MESSENGER.—

Dig. 154.

§ 1. One who carries an errand; a forerunner.

MESSUAGE AND TENEMENT, (in a declara- | MESSUAGE, farm AND lands, (in a will). 9 tion). 1 Moo. & P. 330.

East 448, 460.

§ 2. Messengers are certain officers employed, MESSUAGE or tenement, (in a declaration). in England, under the direction of the secre- | 3 Wils. 23.

taries of state, and always ready to be sent with MESSUAGE with the appurtenances, (in despatches, foreign and domestic. They were a will). 2 W. Bl. 1148, 1151 n.

employed with the secretaries’ warrants to arrest MESSUAGES, (in a devise). 2 Bos. & P. 303 persons for treason, or other offenses against the State, which did not so properly fall under the 4 Dowl. & Ry. 246.

cognizance of the common law, and, perhaps, were not properly to be divulged in the ordinary MESSUAGES, all my, (in a will). 1 Marsh. course of justice. 2 Hawk. P. C. c. xvi. § 9.

61; 5 Taunt. 321.

§ 3. There are other officers distinguished by this appellation, as the messengers of the lord METACHRONISM.—An error in computation of time.

chancellor, privy council, and exchequer, &c. Also, in bankruptcy, persons officially appointed METALS, (does not include “gold and silver”). who seize a bankrupt’s property. The office of 2 Barn. & Ad. 592, 597.

messenger of the great seal has been abolished by 37 and 38 Vict. c. 81.—Wharton.

— (in 17 Stat. at L. 230). 1 Otto (U. S.) MESSINA.—Harvest.—Cowell.

Messis sementem sequitur: Harvest follows the sower. See EMBLEMENTS.

METATUS.—A dwelling; a seat; a station; quarters; the place where one lives or METAYER SYSTEM.—Under this, the land is divided in small farms, among single stays.—Spel. Gloss.

families, the landlord generally supplying the stock which the agricultural system of the country is considered to require, and receiving, in METECORN.—A measure or portion of corn, given by a lord to customary tenants as a lieu of rent and profit, a fixed proportion of the produce. This proportion, which is generally reward and encouragement for labor.—Cowell.

paid in kind, is usually (as is implied in the words métayer, mezzaiuolo and medietarius), one- half. (1 Mill Pol. Ec. 296, 363, and 2 Smith Wealth of Nat. 3 c. ii.)—Wharton.

MESSUAGE.—Norman-French: message, a house. Liber Albus 201 a.

A house. As a word of conveyance, “messuage” includes not only the buildings, but also the curtilage, orchard and garden belonging thereto. (Co. Litt. 5 b,

56 b.) A “capital messuage” is the chief mansion-house of an estate. 1 Dav. Prec. Conv. 89.

Messuage, (includes a church). 1 Chit. Gen. Pr. 168.

VOL. II.

3 B

METEGAVEL.—A tribute or rent paid in victuals.—Cowell.

METER.—An instrument of measurement, as a coal-meter, a land-meter.

METES AND BOUNDS.—In ordinary cases where a widow is entitled to dower of land, her share is ascertained and set apart to be held by her in severalty, and she is then said to hold it "by metes and bounds," i. e. by measurement and boundaries. Litt. §§ 36, 44; Co. Litt. 32 a, b. See ADMEASUREMENT.

METES AND BOUNDS, (description of lands by). 8 Conn. 19; 4 Wheel. Am. C. L. 255; 8 Id. 286.

METEWAND, or METEYARD.—A staff of a certain length wherewith measures are taken.

METHEL.—Speech, discourse; mathlian, to speak, to harangue.—Anc. Inst. Eng.

METHOD, (defined). Fess. Pat. 80, 127.

(synonymous with "art"). 4 Fish. (U. S.) Pat. Cas. 175.

(equivalent to "the mode of doing a thing"). Fess. Pat. 87.

(in a statute). 8 T. R. 106.

METHODS OF OPERATING, (in a statute). Fess. Pat. 99.

METRIC SYSTEM.—A system in numbering of coinage, weights, measures, &c., wherein the integer is divided into fractions of a tenth, hundredth, &c., and no others. Contracts may now be made on this system. See 27 and 28 Vict. c. 117, which recites that "for the promotion and extension of our internal, as well as our foreign trade, it is expedient to legalize the use of the metric system of weights and measures." See, also, U. S. Rev. Stat. §§ 3569, 3570, also legalizing the system (subject to the approval of the authorities of the several States) in America.

METROPOLITAN.—The archbishop of Canterbury is styled "Primate of all England and the Metropolitan," because the province of Canterbury contains within it the metropolis or chief city. The archbishop of York is metropolitan of the province of York.—Brown.

METROPOLITAN BOARD OF WORKS.—An authority created by the English Metropolis Local Management Act, 1855, (amended by the acts of 1856, 1862, 1871, 1875, 1876, 1877, 1878, 1879 and 1880.) The general scheme of these acts is to provide for the formation of district boards of works by the union of the smaller parishes of the metropolis into groups, and for the formation of a corporation called the "Metropolitan Board of Works," representing the whole metropolis. The metropolitan board has jurisdiction in matters affecting the metropolis at large (e. g. the main sewers, the naming and numbering of streets, executing public improvements, &c.), while the vestries of the large parishes, and the district boards formed as above mentioned, have jurisdiction in matters affecting their respective districts (e. g. the local sewers and drains, new buildings, paving, lighting and cleansing streets, removing nuisances, &c.). The powers and authorities exercisable in other places by local boards and other sanitary authorities (q. v.) are thus, in London, divided between the metropolitan board on the one hand, and the parishes and district boards on the other. See POLICE; RATE.

METTESHEP, or METTENSCHEP.—In old records, an acknowledgment paid in a certain measure of corn; or a fine or penalty imposed on tenants for default in not doing their customary service in cutting the lord's corn.

METUS.—In the civil law, fear of great evil; such fear as a brave man could feel, as the apprehension of loss of life or limb.—Crab. Lex.

MEUBLES.—In the French law, the movables of English law. Things are meubles from either of two causes: (1) From their own nature, e. g. tables, chairs; or (2) from the determination of the law, e. g. obligations.

MEUBLES MEUBLANS.—In the French law, the utensils and articles of ornament usual in a dwelling-house.—Brown.

MEYA.—A mow or heap of corn. Blount Ten. 130.

MICEL-GEMOTE.—See MICEL-GEMOT.

MICHAELMAS.—The feast of the Archangel Michael, celebrated in England on the 29th of September, and one of the usual quarter days.

MICHAELMAS HEAD COURT.—A meeting of the heritors of Scotland, at which the roll of freeholders used to be revised. Stat. 20 Geo. II. c. 50. See BELL DICT.

MICHAELMAS TERM.—This begins in England on the 2d and ends on the 25th of November on every year. This division of the legal year into terms is abolished, so far as relates to the administration of justice. Jud. Act, 1873, § 26

MICHEL-GEMOTE.—The great meeting or ancient parliament of the kingdom. 1 Bl. Com. 147.

MICHEL-SYNOTHE.—The great council of the Saxons. 1 Bl. Com. 147.

MICHERY.—Theft; cheating.

Middle letter, (effect of omission of). 3 P.et. (U. S.) 7; 14 Id. 322; 2 Cow. (N. Y.) 463; 1 Hill (N. Y.) 102; 5 Johns. (N. J.) 130; 5 Halst. (N. J.) 230.

MIDDLE THREAD.—See Ad Filum Medium Aquæ.

MIDDLE-MAN.—An agent between two parties; a broker between producers and consumers; an agent who employs a sub-agent. In Ireland a person who takes land in large tracts from the proprietors, and then leases it out to the peasantry in small portions at a greatly enhanced rent.

MIDDLESEX.—

§ 1. Land Registry.—The Middlesex Land Registry is a registry of assurances relating to land situate in the county of Middlesex. (See Land Registries, §§ 3, 6.) It is regulated by Stat. 7 Anne, c. 20, which makes every such deed fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless it has been registered before the purchaser's or mortgagee's deed. (Wms. Real Prop. 196.) A will of lands in the county also requires registration within six months of the testator's death, or before the registration of an assurance to a purchaser or mortgagee from the testator's heir-at-law. Id. 223; Vendor and Purchaser Act, 1874, § 8.

§ 2. Sessions.—The sessions of the peace for the county of Middlesex are held twice in every month, the first sessions in January, April, July, and October being the general quarter sessions. At the hearing of appeals and trials of felonies or misdemeanors, the sessions are presided over by an assistant judge appointed by the crown. Stats. 7 and 8 Vict. c. 71; 22 and 23 Vict. c. 4; 4 Steph. Com. 320. See Justices of the Peace; Session of the Peace.

MIDDLESEX, BILL OF.—See Bill of Middlesex.

MIDDLE TERM.—In logic, the term which occurs in both of the premises in the syllogism, being the means of bringing together the two terms in the conclusion. See Syllogism.

MIDSHIPMAN. — A kind of naval cadet in a ship of war whose business it is to record and transmit the orders of the superior officers, and assist in the management of the ship and its armament.— Webster.

MIDSUMMER-DAY. — The summer solstice, which is on the 24th day of June, and the feast of St. John the Baptist, a festival first mentioned by Maximus Tauricensis, A. D. 400. It is generally a quarter day for the payment of rents, &c.— Wharton.

MIDWIFE.—A woman who attends upon other women when in child-bed; an accoucheuse.

Might, (in a charter). 5 Barn. & Ald. 692 n.; 1 Dowl. & Ry. 148.

MILE.—A measure of length or distance, containing eight furlongs, or seventeen hundred and sixty yards, or five thousand two hundred and eighty feet.

Mile, within half a, (in a covenant). 9 Barn. & C. 774, 779.

MILEAGE.—Traveling expenses, at a given rate per mile, which are allowed to members of legislative bodies, witnesses, sheriffs and bailiffs.

MILES.—Generally, a soldier; particularly, a knight.

Miles, (how to be computed). 2 W. Bl. 969; 1 Cro. 267.

Miles, statute, (how to be computed). 1 Cro. 212.

MILITARE.—To be knighted.

MILITARY.—Anything pertaining to war, or to the army.

MILITARY BOUNTY LANDS.—See Bounty Lands.

MILITARY CAUSES.—All matters concerning the discipline of the army, and contracts, &c., relating to deeds of arms and war.

MILITARY COURTS.—In England, the Court of Chivalry and courts martial; in America, courts martial and courts of inquiry. See Court Martial; Court of Chivalry.

MILITARY FEUDS.—The genuine or original feuds which were in the hands of military men, who performed military duty for their tenures. See Tenure.

MILITARY JURISDICTION, (in United States constitution). 4 Wall. (U. S.) 2, 141.

MILITARY LAW.—See Martial Law.

MILITARY OFFENSES. — Those offenses which are cognizable by the courts military, as insubordination, sleeping on guard, desertion, &c.

MILITARY OR USURPED POWER, (in insurance policy). 5 Otto (U. S.) 127; 40 Conn. 582.

MILITARY.

(820)

MILITARY SAVINGS BANKS.—By 22 and 23 Vict. c. 20, (which repealed former acts,) the queen may establish or continue military or regimental savings banks, for the receiving sums of money from such of the non-commissioned officers and soldiers employed in her service, either in the United Kingdom or upon foreign stations (India alone excepted), as may be desirous of depositing the same, and for receiving deposits of any money or funds whatsoever raised or paid for objects or purposes connected with non-commissioned officers and soldiers, which her majesty may from time to time think fit to authorize to be deposited in such savings banks. The regulation and the management of such institutions are intrusted to the secretary at war for the time being, in concurrence with the commander-in-chief, and the commissioners of the treasury. (See, also, 26 and 27 Vict. c. 12.)—Wharton.

MILITARY SERVICE, (in life policy). 48 N. Y. 34; 8 Am. Rep. 518.

(in act of March 3d, 1849). 18 Wall. (U. S.) 34.

MILITARY SERVICE, ACTUAL, (in a statutory exemption). 18 Iowa 513.

MILITARY STATE.—The soldiery of the kingdom of Great Britain.

MILITARY STATION, (synonymous with "military post"). 4 Otto (U. S.) 219.

MILITARY TENURES.—The various tenures by knight-service, grand-serjeanty, cornage, &c., are frequently called "military tenures," from the nature of the services which they involved. 1 Steph. Com. 204. See SERVICE; TENURE.

MILITARY TESTAMENT.—A nuncupative will, i. e. one made by word of mouth, by which a soldier in actual service may dispose of his goods, pay, and other personal chattels, without the forms and solemnities which the law requires in other cases.

MILITARY TRIBUNAL, (in United States constitution). 11 Op. Att. Gen. 297.

MILLITES.—Knights; and in Scotch law, freeholders.

MILITIA.—The national soldiery, as distinguished from the regular forces or standing army, being the inhabitants, or trained bands of a town or county, who are armed on a short notice for their own defense. In America the militia constitute in each State the organization known as the national guard.

MILITIA, (in a statute). 5 Dutch. (N. J.) 232.

Militia, calling forth the, (in United States constitution). 3 Serg. & R. (Pa.) 593, Sup.

Militia officers, (in a statute). 5 Wheat. (U. S.) 46.

MILL.—(1) A machine for grinding, sawing, manufacturing, &c.; also, the building containing such machinery. (2) The tenth part of a cent.

MILL, (defined). 30 Conn. 20.

(includes what). 6 Greenl. (Me.) 436.

(what passes by a conveyance of). 10 Serg. & R. (Pa.) 63.

(what will not pass with). 3 Salk. 40.

(machinery of, is part of the freehold). 2 Dowl. & Ry. 1.

(when not part of the inheritance). 5 Barn. & Ald. 826, 829.

(when cannot be taken in execution under a fi. fa.) 4 J. B. Moore. 281.

(mortgage of). 4 Man. & Ry. 277.

(in a deed). 1 Brod. & B. 506, 510; Ang. Waterc. § 90.

(in a devise). 3 Mns. (U. S.) 280.

MILL WITH THE APPURTENANCES, (demise of). 1 Lev. 131.

MILL-DAM, (what is not). 35 Wis. 41.

MILL PRIVILEGE, (what is). 2 Watts (Pa.) 329.

(equivalent to "mill site"). 35 Conn. 512.

(in a deed). 16 Me. 63; 20 Me. 61; 7 Mass. 409.

MILL SAW, (is not a tool). 10 Me. 135.

MILL SITE, (defined). 35 Conn. 158, 512.

(what is conveyed by). 32 Me. 383.

(in a grant). 6 Cow. (N. Y.) 677.

MILLBANK PRISON.—Formerly called the "Penitentiary at Millbank." A prison at Westminster, for convicts under sentence of transportation, until the sentence was executed, or the convict was entitled to freedom, or be removed to some other place of confinement. This prison is placed under the inspectors of prisons appointed by the secretary of state, who are a body corporate, "The Inspectors of the Millbank Prison." The inspectors make regulations for the government thereof, subject to the approval of the secretary of state, and yearly reports to him, to be laid before parliament. The secretary also appoints a governor, chaplain, medical officer, matron, &c. (5 and 6 Vict. c. 18; 6 and 7 Vict. c. 26; 11 and 12 Vict. c. 104; 13 and 14 Vict. c. 39; 23 and 24 Vict. c. 60; and 32 and 33 Vict. c. 95.)—Wharton.

MILLEATE, or MILLI-EAT.—A trench to convey water to or from a mill. Stat. 7 Jac. I. c. 19.

MILLED MONEY.—Coined money. Leach C. C 718.

MILL-HOLMS.—Low meadows and other fields in the vicinity of mills, or watery places about mill-dams.—Encycl. Lond.

MILLS. (821) MINES.

Mills, (what passes by a grant of). Shep. Touch. 89.

(in a mortgage). 124 Mass. 71.

Mills with the appurtenances, (in a conveyance). 4 Rawle (Pa.) 342.

MINA.—A measure of corn or grain.—Cowell; Spel. Gloss.

MINAGE.—A toll or duty paid for selling corn by the mina.—Cowell.

MINARE.—To dig mines.—Cowell.

MINATOR.—In old records, a miner.

MINATOR CARUCÆ.—A ploughman.—Cowell.

Minatur innocentibus, qui parcit nocentibus (4 Co. 45) : He threatens the innocent who spares the guilty.

Mine, (when applied to coal means a worked vein). 85 Pa. St. 344.

(cestui que use for life cannot open). 2 P. Wms. 242.

(in a statute). 2 East 167.

MINERALS—MINES.—

§ 1. In the most general sense of the term, minerals are those parts of the earth which are capable of being got from underneath the surface for the purpose of profit.

The term, therefore, includes coal, metal ores of all kind, clay, stone, slate, and coprolites.

("Surface" means that part of the land which is capable of being used for agricultural purposes.

Midland Co. v. Checkley, L. R. 4 Eq. 19; Heat v. (Gill, 7 Ch. 669; Att.-Gen. v. Tomline, 5 Ch. D. 762.)

A mine is a work for the excavation of minerals, by means of pits, shafts, levels, tunnels, &c., as opposed to a quarry, where the whole excavation is open.

While unsevered, minerals form part of the land, and as such, are real estate.

When severed, they become personal chattels.

Bain. M. and M. 1.

§ 2. Royal mines are mines of gold or silver, and, in England, belong to the sovereign, in whose-soever land they may be found.

(1 Bl. Com. 295.)

As to mines of lead, &c., containing also gold or silver, see Stats. 4 W. & M. st. 1, c. 80, and 5 W. & M. c. 6.

There are no royal mines in this sense in America.

§ 3. In other cases, mines and minerals belong prima facie to the owner of the surface of the land, though they may be, and frequently are, held by different persons.

sons.

It follows from the nature of copyhold tenure that the minerals under copyhold land belong to the lord, though he cannot work them without the tenant's consent, except by a local custom.

(See Copyhold, § 3.)

In many places, customs or prescriptions exist, by virtue of which persons are entitled to work mines in land, the freehold of which is vested in another person.

Such is the rule in California.

5 Cal. 36, 97, 308; 6 Id. 148; Bain. M. & M. 543 and seq.

See Gale; Stanneries; Tin-Bounding.

§ 4. Confirmation of Sales Act, 1862.—In consequence of an English judicial decision (Buckley v. Howell, 29 Beav. 546), that the ordinary power of sale contained in settlements does not authorize the trustees to sell the settled lands without the minerals, or the minerals without the lands, the Confirmation of Sales Act, 1862, (Stat. 25 and 26 Vict. c. 168,) was passed to confirm all such sales theretofore made, and to authorize such sales to be made in future, with the sanction of the Chancery Division.

Wms. Real Prop. 311.

§ 5. As to the rights of adjoining owners in respect of minerals, see Barrier; Boundaries, § 4; Easement, § 1; Support.

§ 6. By modern statutes, numerous obligations have been imposed on mine owners for the protection of the public, and of persons employed in mines.

The principal acts now in force in Great Britain, are the Coal Mines Regulation Act, 1872, and the Metalliferous Mines Regulation Acts, 1872 and 1875.

(See Fence, § 4.)

The right to work minerals under railways, canals, water-works and highways, is restricted by the acts relating to those matters.

Mineral, (oil is). 3 Pittsb. (Pa.) 201, 204.

Mineral, or magnesia of any kind, (in a deed). 5 Watts (Pa.) 34.

Mineral products, (in revenue law). 3 Pittsb., (Pa.) 201.

Minerals, (in a deed). 2 Stockt. (N. J.) 128; L. R. 1 Ch. 303.

(in statute, when not confined to metals). Wilberf. Stat. L. 126.

MINERATOR.—In old records, a miner.

Mines, (when subject to dower). 1 Taunt. 402.

(in a deed). 2 Stockt. (N. J.) 128; 1 Chit. Gen. Pr. 184.

(in a lease). 2 Mod. 193.

Mines and minerals, (in reservation in a conveyance). L. R. 7 Ch. 609.

(in a statute). L. R. 4 Eq. 19.

Mines and mining claims, (in constitution of Nevada). 5 Sawy. (U. S.) 575.

Mines, clay, (what constitute). 3 Barn. & Ad. 424, 426.

Mines, coal, (in a statute). 2 Barn. & Ad. 65, 73.

MINIMA.

(822)

MINISTRY.

Ltiuma pœna corporalis est major quamdet pecuniaria. (2 Inst. 220) : The

smailest bodily punishment is greater than any

pecuniary one.

Minime mutanda sunt quæ certam habent interpretationem (Co. Litt. 365) :

Things which have a certain interpretation are

to be altered as little as possible.

MINIMENT.—See MUNITIONS.

Minimum est nihilo proximum: The

smallest is next to nothing.

MINING COMPANIES.—This des-

ignation was formerly applied in England

to the associations formed in London in

1825 for working mines in Mexico and

South America; but at present it com-

prises, both in England and America, all

mining projects carried on by joint-stock

associations or corporations.

MINISTER.—(1) An agent; one who

acts not by any inherent authority, but

under another. (2) In politics, one to

whom a sovereign intrusts the administra-

tion of government. In Great Britain,

the word ministry is used as a collective

noun for the heads of departments in the

state. (3) In religion, a pastor of a church,

chapel, or meeting-house, &c. (4) As to

the use of the word in international law,

see Ambassadors.

Minister, (in a statute). 1 Mass. 32; 5 Id.

524; 6 Id. 401; 7 Id. 60, 230; 2 Pick. (Mass.)

403; 8 Ad. & E. 181, 182.

— (holds parsonage lands in right of his

parish). 2 Mass. 500.

— (does not hold office at the will of the

parish). 3 Mass. 160, 170.

Minister of the GOSPEL, (who is). 1

Greenl. (Me.)102.

Minister, other public, (in a statute). 1

Taunt. 106.

Minister, public, (in a statute). 1 Baldw.

(U. S.) 234.

Minister, stated and ordained, (who is).

1 Pick. (Mass.) 235.

MINISTERIAL is opposed to judicial

or discretionary. Thus, a ministerial

office or duty is one which merely in-

volves the following of instructions; in

other words, one which can be performed

without the exercise of more than ordi-

nary skill, prudence, or discretion, e. g. the

payment or receipt of money, the execu-

tion of a deed, or the like (see Lew. Trusts

18. ; while a judicial or discretionary office

or duty involves the exercise of judgment

or discretion (q. v.) (As to the ministerial

office of a coroner, see CORONER, § 1.) The

phrase is often used in speaking of a dele-

gation of authcrity; the general rule being

that an executor, trustee, agent, &c., can

delegate his authority so far as to empower

another person to do a merely ministerial

act for him, but not to empower another

person to exercise a discretion vested in

him (the executor, trustee, agent, &c.)

Thus, an executor cannot (it is conceived)

authorize another person to dispose of his

testator's estate, or compromise claims by

creditors; but if he has entered into an

agreement for the sale of the property, or

for the compromise of a claim, he may

appoint another person to carry out the

agreement by receiving or paying the

money. Ib. See Agency.

Ministerial, (defined). 1 Am. L. J. 453.

Ministerial act, (defined). 51 Ind. 376;

18 Am. Dec. 236 n.

(what is). 23 Wend. (N. Y.) 324; 1

Wash. (Va.) 305, 306; 40 Wis. 175; 7 Wheel.

Am. C. L. 144 n.

(what is not). 2 Munf. (Va.) 492.

Ministerial officer, (defined). 2 Wheel.

Cr. Cas. 559.

(who is). 49 Ala. 311; 1 Dana

(Ky.) 447; 3 Serg. & R. (Pa.) 20, 33; 1 Wils.

283; 1 Bl. Comm. 334.

(tenure of). 5 Serg. & R. (Pa.) 451;

7 Wheel. Am. C. L. 144.

MINISTERIAL POWERS. In

English conveyancing law, these powers, as the

name indicates, are given for the good, not of

the donee himself exclusively, or of the donee

of them necessarily at all, but for the good of

several persons, including or not including the

donee also. They are so called because the

donee of them is as a minister or servant in his

exercise of them. As to the ministerial powers

of a tenant for life, see Brown.

MINISTERIAL TRUSTS. See

Trust.

MINISTRANT.—The party erroneously examin-

ing a witness under the old system of the

ecclesiastical courts.

MINISTRI REGIS. Ministers of the

king; applied to the judges of the realm, and to

all those who hold ministerial offices in the

government. 2 Inst. 208.

MINISTRY.—Office; service. Those

members of the government who are in

the cabinet. See Minister.

Ministry, the, (in a grant to). 3 Pick.

(Mass.) 158.

MINOR.

(823)

MINUTES.

MINOR.—(1) An infant; a person who has not yet arrived at majority (q. v.) (2) Of less importance; lower. See Child; Guardian; Infant.

Minor, (nature and extent of the paternal power). 1 Mas. (U. S.) 71.

— (enlistment of, without consent of parent). 9 Johns. (N. Y) 239.

— (when may make contract to serve in navy). 4 Binn. (Pa.) 487.

— (in a statute). 10 Tex. App. 412; 11 Mass. 63, 67.

Minor ante tempus agere non potest in casu proprietatis nec etiam con-venire; differetur usque ætatem; sed non cadit breve before majority cannot act in a case of property, nor even agree; it should be deferred until majority; but the writ does not fail.

(2 Inst. 291): A minor

Minor jurare non potest (Co. Litt. 172 b): A minor cannot swear. Obsolete.

Minor 17 annis, non admittitur fore executorem (6 Co. 68): A minor under seventeen years of age is not admitted to be an executor.

Minor minorem custodire non debet; alios enim præsumitur male regere qui seipsum regere nescit (Co. Litt. 88): A minor cannot be guardian to a minor, for he is presumed to direct others badly who knows not how to direct himself.

Minor non tenetur respondere durante minori ætate; nisi in causa dotis, propter favorem (3 Bulst. 143): A minor is not bound to reply during his minority, except as a matter of favor in a cause of dower.

Minor, qui infra ætatem 12 annorum fuerit, ultagari non potest, nec extra legem poni, quia ante talem ætatem, non est sub lege aliqua, nec in decenna (Co. Litt. 128): A minor who is under twelve years of age cannot be outlawed, nor placed without the law, because before such age he is not under any law, nor in a decennary.

MINORA REGALIA.—The lesser prerogatives of the crown, relating to the revenue.

MINORITY.—(1) The state of being under age, i. e. twenty-one years. (See Full Age; Guardian; Infant.) (2) The smaller number. The term is opposed to "majority" (q. v.) in both senses.

MINT.—

§ 1. The place where money is coined. See Coin; Master of the Mint.

§ 2. A place of privilege in Southwark, near the queen's prison, where persons formerly sheltered themselves from justice under the pretext that it was an ancient palace of the crown.

privilege is now abolished, and the Stats. 8 and 9 Will. III. c. 27; 9 Geo. I. c. 28; 11 Id. 22, and 1 Geo. IV. c. 116, enact that persons opposing the execution of any process in such privileged places within the bills of mortality, or abusing any officer in his endeavor to execute his duty therein, so that he receives bodily hurt; and all persons aiding and abetting such opposition shall be felons, and shall be punished accordingly.

MINT-MARE.—The masters and workers of the English mint, in the indentures made with them, agree "to make a privy mark in the money they make, of gold and silver, so that they may know which moneys were of their own making;" after every trial of the pix, having proved their moneys to be lawful they are entitled to their quietus under the great seal, and to be discharged from all suits or actions.

MINT-MASTER.—One who manages the coinage. See Master of the Mint.

MINTAGE.—That which is coined or stamped.

MINUTE.—(1) A measure of time equal to sixty seconds, or the sixtieth part of a degree or hour. (2) A memorandum. (3) Small.

MINUTE TITHES.—Small tithes, such as usually belong to a vicar, as of wool, lambs, pigs, butter, cheese, herbs, seeds, eggs, honey, wax, &c.

MINUTES.—

§ 1. Notes or records of a transaction. Thus, the record of the proceedings at a meeting of directors or shareholders of a company is called the "minutes."

§ 2. Agreed minutes of order, &c.—When the parties to an action, petition, or other proceeding in the English Chancery Division, are agreed to the order or judgment which should be made on an application to the court, they usually (especially if the matter is complicated) draw up beforehand minutes of the order or judgment (formerly called "minutes of decree"), containing in outline all the provisions which are thought necessary. The minutes are afterwards put into the form of an order by the registrar. See Pass; Settle.

§ 3. Registrar's minutes.—Formerly, in Chancery suits, when an order or decree had been made, the registrar did not draw it up in full in the first instance, but framed an outline giving the substance of the order, copies of which were delivered to the parties, to be settled by them in his presence, if necessary. For some time past the practice has been to draw up the order or decree complete in the first instance, and copies of the draft are delivered to the parties. In practice these copies are still called "minutes;" and when any dispute arises on the form of the order which has to be referred to the court, the cause is put into the paper "to be spoken to on the minutes." Hunt. Suit 86. See Enter; Pass; Settle.

MIRROR.

MIRROR DES JUSTICES.—This singular work has raised much doubt and difference of opinion concerning its antiquity. Some have pronounced it older than the Conquest, others have ascribed it to the time of Edward II. Both these opinions may be partly right. There may perhaps have been a work by this name as early as the first date supposed; but whoever judges from the internal evidence of this book will be satisfied that great part of it is of a period much later, and certainly written after Fleta and Britton; for it states many points of law, as it were, in a stage of progression somewhat receding from those writers, and approaching nearer to those of later times. It is probable that Andrew Horne, whose name it bears, might take up an ancient book of that name, and work it into the volume we now see, in the reign of Edward II., or at the end of the former reign; and if so, we should expect that whatever it pro-pounds was actually law in the reign of Edward II. This book treats of all branches of the law, whether civil or criminal. Besides this, it gives a cursory retrospect of some changes ordained by former kings; enumerates a list of abuses, as the author terms them, of the common law, proposing, at the same time, what he considers to be desirable corrections. He does the same with Magna Charta, the Statutes of Merton and Marl-bridge, and some principal acts in the reign of Edward I. This book should be read with great caution and some previous knowledge of the law as it stood about the same period, for the author certainly writes with very little precision. This, with his assertions about Alfred, and the extravagant punishments inflicted by that king on his judges, have brought his credit under some suspicions. When read with these hints, The Mirror of Justices is certainly a curious, interesting, and, in some degree, an authentic tract upon the old law; though considering the achronisms in legal knowledge (if they may be so called) with which it abounds, that the antiquated law is promiscuously blended with that of the time in which it was revised, and that the date of such revision is very uncertain, it is to be wondered that some great writers have relied so much upon this author, as to pronounce upon the antiquity of many articles of our law merely on his authority. (2 Reeves Hist. Eng. Law c. xii. 358.)—Wharton.

MIS.—An inseprable particle used in composition, to mark an ill sense or depravation of the meaning, as miscomputation or misaccounting, i. e. false reckoning. Several of the words following are illustrations of the force of this monosyllable.—Todd Johnson’s Dict.

MISA.—In old records, a compact; a firm peace.

MISADVENTURE, HOMICIDE BY.—See HOMICIDE, § 3.

MISALLEGE.—To cite falsely as a proof or argument.

MISAPPROPRIATION.—This is not a technical term of law, but it is sometimes applied to the misdemeanor which is committed by a banker, factor, agent, trustee, &c., who fraudulently deals with money, goods, securities, &c., entrusted to him, or by a director or public officer of a corporation or company who fraudulently misapplies any of its property. Steph. Cr. Dig. 257 et seq. See FRAUD, § 18; PUBLIC OFFICER.

Misappropriation, (of commercial paper). 13 Vr. (N. J.) 179.

MISBEHAVIOR, (in a statute). 37 How. (N. Y.) Pr. 20; 10 Wend. (N. Y.) 589. (in answer to a bill for divorce). 2 Atk. 337.

MISBEHAVIOR IN OFFICE, (what is). 4 Hen. & M. (Va.) 522.

MISCARRIAGE.—

§ 1. In criminal law.—A woman who, being with child, unlawfully administers to herself any drug, or uses any other means to procure her own miscarriage, is guilty of felony, as is also any person who administers any drug or uses any other means to procure the miscarriage of a woman, whether she be with child or not. 4 Steph. Com. 83.

§ 2. In statute of frauds.—The original statute (29 Car. II. c. 3, § 4,) provides that “no action shall be brought to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, unless the agreement,” etc., “shall be in writing,” etc. The word “miscarriage,” in this connection, means such a wrongful act as the wrongdoer would be responsible for, at law, in a civil action.

Miscarriage, (distinguished from “debt” and “default”). 2 Barn. & Ald. 613, 616. (in an indictment). 33 Me. 48, 60.

MISCIIIEF.—This word is often used as signifying the evil or danger which a statute is meant to cure or avoid.

Mischievously, (in an indictment). 2 Hawks (N. C.) 460.

MISCOGNIZANT.—Ignorant of; unacquainted with.

Misconduct, (what is). 1 Den. (N. Y.) 267. (in a statute). 37 How. (N. Y.) Pr 20; 78 N. Y. 248.

MISCONDUCT. (825) MISERICORDIA.

Misconduct in office, (in a statute). 60 Me. 58.

Miscontinuance. - Cessation; intermission; an improper continuance.

Miscreant. - An apostate; an unbeliever; one who totally renounced Christianity. 4 Bl. Com. 44.

Misdemeanor. -

§ 1. Any crime or indictable offense not amounting to felony, such as perjury, battery, libel, conspiracy and public nuisances.

§ 2. At common law, misdemeanors are generally punishable by fine and imprisonment without hard labor. (Russ. Cr. & M. 187, 197; Steph. Cr. Dig. 14.) In many cases special punishments have been attached to misdemeanors by statute.

§ 3. High misdemeanor. - Under the Stat. 5 and 6 Vict. c. 51, whoever shoots or strikes at the queen, or does certain other acts with intent to alarm her, is guilty of a high misdemeanor and is liable to be sentenced to seven years' penal servitude, or three years' imprisonment, with or without whipping.

Misdemeanor, (defined). 47 Cal. 477; 1 Chit. Gen. Pr. 14.

(what is). 9 Wend. (N. Y.) 212, 222; 12 Id. 314; 2 Phil. (Pa.) 337.

(when act in furtherance of, is subject of indictment). 2 Hill (N. Y.) 558.

(in a statute). 12 Wend. (N. Y.) 346; 16 Id. 561; 21 Wis. 684; 4 Burr. 2540.

Misdescription. -

§ 1. In certain cases, when a contract contains a material misdescription, i. e. when the description of the subject-matter of the contract is incorrect or misleading in a material and substantial point, the contract is voidable at the option of the party misled, independently of fraud, concealment, or misrepresentation (q. v.)

Thus, in a contract of fire insurance, if the building is so described by the assured as to make the risk appear less than it really is, the insurer is entitled to avoid the contract. (In re Universal, &c., Co., L. R. 19 Eq. 485; Lachlan v. Reynolds, Kay 52.) So, in a sale of land, a misdescription materially affecting the value, title, or character of the property sold, will make the contract voidable at the purchaser's option. (Flight v. Booth, 1 Bing. N. C. 870; Poll. Cont. 454.) The test of materiality seems to be whether, if the subject-matter had been correctly described, the

party misled would have entered into the contract. Ib.

§ 2. A wrong description does not affect the validity of the transaction if there is no mistake as to the identity of the person or thing intended to be described, as where a person is called by a wrong name, according to the maxim falsa demonstratio non nocet.

Misdirection. - An error in law made by a judge in charging a jury. This, if prejudicial to the losing party, is generally, and in criminal cases always, sufficient ground for a new trial. See New Trial; Non-direction.

Mise. - (1) In the obsolete writ of right (q. v.), 'mise' was the same thing as the issue in an ordinary action, and was so called because the tenant put himself upon the grand assize, i. e. chose it as the mode of trial. (Co. Litt. 294 b; Britt. 266 b). (2) Disbursement; costs; (3) A tax or tollage, &c.

Mise-money. - Money paid by way of contract or composition to purchase any liberty, &c. - Blount.

Miselli. - Leprous persons. - Cowell.

Misera est servitus, ubi jus est vagum aut incertum (4 Inst. 245) : It is a wretched state of slavery which subsists where the law is vague or uncertain.

Miserabile depositum. - In the civil law, an involuntary deposit under pressing necessity.

Miserere. - Have mercy. The name and first word of one of the penitential psalms, being that which was commonly used to be given by the ordinary to such condemned malefactors as were allowed the benefit of clergy: whence it is also called the psalm of mercy. - Wharton.

Misericordia. - (1) An arbitrary amercement or punishment imposed on any person for an offense. It is thus called, according to Fitzherbert, because it ought to be small and less than that required by Magna Charta. - Anc. Inst. Eng. (2) A discharge of all manner of amercements, which a person might incur in the forest. See Capias pro Fine.

Misericordia communis. - A fine set on a whole county or hundred.

Misericordia domini regis est, qua quis per juramentum legalium hominum de vicineto eatenus amerciaudus est, ne aliquid de suo honorabili contenemento amittat (Co. Litt.): The mercy of our lord the king is that by which every one

is to be amerced by a jury of good men from his immediate neighborhood, lest he should lose any part of his own honorable tenement.

MISEVENIRE.

MISEVENIRE.—To fail or succeed ill.

MISFEASANCE—MISFEASOR.

—Norman-Frenche: mis, wrongly, and fere, to do.

§ 1. Misfeasance is either the doing of a wrongful act or the improper performance of a lawful act; as where a person is guilty of negligence in performing a contract. Misfeasor is a person who does a misfeasance.

§ 2. In the old books, misfeasance was used especially to signify trespasses and other offenses in parks, forests, &c. (See Stat 1 Westm. c. 19; 2 Inst. 198.) At the present day it is chiefly used to signify negligence. (Underh. Torts 27; 3 Steph. Com.363.) As to misfeasance by an officer of a company under § 165 of the English Companies Act, 1862, see McKay's Case, 2 Ch. D 1; Coventry and Dixon's Case, 14 Ch. D. 660. See Malfeasance; Nonfeasance; Tort.

Misfeasance, (defined). 1 Stew. (N. J.) 578.

—(what is). 33 Conn. 109.

—(in a statute). 104 Mass. 376.

MISJOINDER.—

§ 1. Of parties.—This is where persons are wrongly joined as plaintiffs or defendants in an action: in other words, where persons are made parties who ought not to be. The rule in England, before the Judicature Acts, was that in an action of contract a misjoinder of plaintiffs led only to increased costs, while a misjoinder of defendants was fatal; and that in an action of tort a misjoinder of plaintiffs or defendants led only to increased costs. (Dic. Part. 502 et seq.) No action can now be defeated by a misjoinder. Rules of Court, xvi. 13. See Joinder.

§ 2. Of causes of action.—The combining in one bill, declaration, complaint or petition of distinct demands, which, of right, ought to be the subjects of separate actions or suits. See Joinder.

MISKENNING.—A wrongful citation, or summoning to court.—Du Cange; Anc. Inst. Eng.

MISLEADING.—Calculated to deceive, or guide into error. Instructions to

the jury, which are so framed as to be misleading, are often good cause for reversal and new trial.

MISNOMER.—A wrong name. In real and mixed actions at common law a misnomer was a ground of abatement, but not in any personal action; but in all cases in which a misnomer would, but for the following act, have been pleadable in abatement, the defendant was at liberty to cause the declaration to be amended at the plaintiff's cost by inserting the right name. The remedy is now by amendment.

MISPLEADING.—Pleading incorrectly, or omitting anything in a pleading, which is essential to the maintenance or defense of an action; as in the case of a plaintiff not merely stating his title in a defective manner, but setting forth a title which is essentially defective itself. Also, in Chancery suits, it is a mispleading in certain cases if the defendant does not allege the absence of notice.

Mispleading, (defined). 22 Wend. (N. Y.) 369, 375.

MISPRISION.—Old Frenche: mes, wrongly, and prendre, to take; to commit an error. Litt. s. v. Misprandre; Shaks. Hen. IV. (1st part) I. 3.

§ 1. Misprision, "in its larger sense, is used to signify every considerable misdemeanor which has not a certain name given to it by the law; and it is said that a misprision is contained in every treason or felony whatsoever, and that one who is guilty of felony or treason may be proceeded against for a misprision only." (1 Russ. Cr. & M. 187; see Statut. P. C. & Pr. 37.) The term is, however, rarely if ever used in this sense, it being now practically confined to the two phrases, misprision of treason and misprision of felony.

§ 2. Of treason.—Misprision of treason is where a person who knows that some other person has committed high treason does not within a reasonable time give information thereof to a judge or magistrate or justice of the peace. The punishment is imprisonment for life and forfeiture of the offender's goods, &c. Steph. Cr. Dig. 63.

§ 3. Of felony.—Misprision of felony is where a person who knows that some other person has committed felony conceals or procures the concealment thereof.

MISPRISION. (827) MISTAKE.

In ordinary cases the offense is a misdemeanor; if the offender is a sheriff or coroner, or the bailiff of either officer, a special punishment is inflicted. Steph. Cr. Dig. 93; Stat. 3 Edw. I. c. 9.

Misprision, (what is). 1 Hawk. P. C. ch. 20. Misprision of treason, (defined). 1 Hale P. C. 371.

MISRECITAL.—A wrong recital. If it is in the beginning of a deed, and does not go to the end, it will not hurt, but if it goes to the end of a sentence, so that the deed is limited by it, it is vicious. Cart. 143.

MISREPRESENTATION.—

§ 1. Misrepresentation is where one of the parties to an intended contract conveys to the other a false impression as to some matter relating to the contract, whether by an express statement (active) or by silence (passive).

§ 2. False, or fraudulent.—False or fraudulent misrepresentation is a representation contrary to the fact, made by a person with a knowledge of its falsehood, and being the cause of the other party's entering into the contract. Attwood v. Small, 6 Cl. & F. 232. See Dolus Dans Contractui; Fraud.

§ 3. Negligent misrepresentation is a false representation made by a person who has no reasonable grounds for believing it to be true, though he does not know that it is untrue, or even believes it to be true. Reese River Silver Mining Co. v. Smith, L. R. 4 H. L. 79.

§ 4. Innocent misrepresentation is where the person making the representation had reasonable grounds for believing it to be true. Kennedy v. Panama, &c., Co., L. R. 2 Q. B. 580.

§ 5. Consequences of.—When a person has been induced to enter into a contract by fraudulent or negligent misrepresentation, he may in general either (1) affirm the contract and insist on the misrepresentation being made good, if that is possible, so as to be put in the same position as if it had been originally true, or (2) rescind the contract (see Rescission), or (3) bring an action for damages (Poll. Cont. 482), or (4) rely upon the misrepresentation as a defense to an

action on the contract. Hirschfeld v. L. B. & S. C. Rail. Co., 2 Q. B. D. 1.

§ 6. An innocent misrepresentation has no effect on the contract unless it produces mistake excluding the true consent, (Kennedy v. Panama, &c., Co., supra; Manson v. Thacker, 7 Ch. D. 620,) (error in substantia, as to which, see Mistake, § 10); or unless it amounts to a warranty or condition, or unless the contract is one in which good faith is especially required, such as contracts of insurance and family settlements. Fane v. Fane, L. R. 20 Eq. 698; Poll. Cont. (2 edit.) 462.

Misrepresentation, (defined). Baldw. (U. S.) 331, 337. (to avoid policy of insurance). 5 Cranch (U. S.) 100; 12 Cush. (Mass.) 416, 425; 16 Wend. (N. Y.) 488. Misrepresentation, actionable, (defined). 2 Stew. (N. J.) 257, 262.

MISSA.—The mass.

MISSÆ PRESBYTER.—A priest in orders.—Blount.

MISSAL.—The mass-book.

MISSING SHIP.—A ship which has been at sea and unheard from for so long a time as to give rise to the presumption that she has perished with all on board.—Bouvier.

Mississippi currency, (in a note). 2 La. Ann. 404.

MISSIVES.—In the Scotch law, writings passed between parties as evidence of a transaction.—Bell Dict.

MISSTAICUS.—In old records, a messenger.

Misstatement, (in conditions of sale of land). 1 Campb. 340; 1 Meriv. 26.

MISSURA.—The ceremonies used in the Romish Church to recommend and dismiss a dying person.

MISTAKE.—

§ 1. Although mistake and ignorance are, strictly speaking, not identical, the one being positive and the other negative, they are commonly used as convertible terms in law, their effects being identical. (3 Sav. Syst. 326; Ahr. Jur. Encycl. 618. See, however, Lord Chelmsford's remarks in Beauchamp v. Winn, L. R. 6 H. L. 230.) Mistake then may be defined as a mis-

MISTAKE.

(828)

MISTAKE.

apprehension as to the existence of a thing, arising either from ignorance in the strict sense, i. e. absence of knowledge on the subject, or from mistake in the strict sense, i. e. a false belief on the point.

§ 2. Mistake per se.—Where, however, mistake produces a legal effect, not of itself, but because it coincides with some other fact, the effect is not attributed to the mistake, but to the whole transaction. Thus, mistake is essential to the idea of fraud, because no one can be defrauded unless he is misled, and to many cases where negligence or bona fides is of importance; but no one would treat these subjects as instances of mistake. In practice, therefore, the term “mistake” is limited to cases where the effect produced is attributed to it alone. Sav. 340.

Mistake is either of law or of fact.

§ 3. Mistake of law.—Mistake of law (error or ignorantia juris) is a mistake as to a general rule of law: as where a testator thinks that to disinherit his heir it is necessary to give him a nominal bequest, or where a person does not know that a contract not to be performed within a year must be in writing. The general rule is that such a mistake does not affect the transaction, whether in civil or in criminal law. (Snell Eq. 345; 4 Bl. Com. 26; Poll. Cont. 308; for exceptions, see Id. 301.) Thus, in the first of the above cases the executor could not refuse to pay the bequest, and, in the second, the contract would be void for want of the formality of writing.

§ 4. Mistake of fact.—Mistake of fact (error or ignorantia facti) is either as to the existence of a fact or as to the existence of a right depending on questions of mixed law and fact. (3 Sav. 327, 338; Cooper v. Phibbs, L. R. 2 H. L. 149.) Thus, where A., believing that under deed of grant he had merely a right of warren over certain land, entered into an agreement for an exchange of properties with a neighboring proprietor, who was also under the belief that A. was only entitled to the right of warren, but it was afterwards discovered that under the deed of grant A. was entitled to the land itself: it was held that the mistake was one of fact, and that, therefore, (under the rule stated

infra, § 10,) A. was entitled to have the agreement rescinded, although it had been partially carried out. (Beauchamp v. Winn, L. R. 6 H. L. 223. See, also, Daniell v. Sinclair (6 App. Cas. 181), where the court remarked that “in equity the line between mistakes in law and mistakes in fact has not been so clearly and sharply drawn” as at common law.) Questions of foreign law being questions of fact, a mistake as to foreign law is a mistake of fact. See Fact.

§ 5. Fundamental mistake.—A mistake is fundamental when it prevents an act from producing its legal effect, because it excludes the necessary intention. Such a mistake may be either unilateral or bilateral.

§ 6. Unilateral.—Instances of unilateral mistake excluding intention occur both in civil and criminal law. Thus, if A. signs a document by mistake, thinking it to be another document, his signature is ineffectual, because he did not intend to sign it. (Foster v. Mackinnon, L. R. 4 C. J. P. 704.) So if A. takes away a thing belonging to B., believing it to be his own, he does not commit a theft, because the necessary criminal intention is absent. 4 Bl. Com. 232.

§ 7. Bilateral.—Bilateral mistake excluding intention, occurs only in civil law. Thus, if A. and B. enter into a contract of sale for an estate called Dale, there being in fact two estates called Dale, A. meaning one and B. the other, the consent or common intention necessary to constitute a contract is absent, and there, therefore, is no contract (error in corpore). Raffles v. Wichelhouse, 2 Hurlst. & C. 906; 3 Sav. 272.

§ 8. Collateral mistake.—Collateral mistake is where the necessary intention is present, but it is induced or accompanied by a mistake. The mistake may be either unilateral or mutual.

§ 9. Unilateral.—As a general rule unilateral mistake has no legal effect at all. (Sav. 341; Poll. Cont. 358. For exceptions to the rule, see Id. 359.) Thus, if A. purchases property from B. under a mistaken belief as to its qualities, he can—

not set aside the sale or recover damages from B. on the ground of his mistake, unless there was misrepresentation or a guaranty on the part of B. (Poll. Cont. (2 edit.) 420.) The principal exception to the rûle is that if money is paid under a mistake of fact it may be recovered back. Id. 397. As to collateral mistake in criminal law, see Reg. v. Prince, L. R. 2 C. C. R. 154.

§ 10. Mutual mistake - Error in substantia.-Mutual mistake is where the parties have a common intention, but it is induced by a common or mutual mistake. The most important instance of this kind is where there is a common mistake as to the substance of the thing (error in substantia). Thus, if A. and B. enter into a contract of sale for a vessel, each believing it to be of gold, while it is in fact of brass, either may rescind the contract. Gompertz v. Bartlett, 2 El. & B. 849; Cox v. Prentice, 3 Mau. & Sel. 344; Kennedy v. Panama, &c., Co., L. R. 2 Q. B. 580; 3 Kay. 276 et seq. For another example, see above, § 4.

§ 11. Mistake in expression.-Again, if a mistake occurs in expressing the terms of an agreement, it will, as a general rule, be corrected, either when proceedings are taken to enforce it or by substantive proceedings taken for the purpose. (See RECTIFICATION.) The most obvious example is that of clerical errors made in reducing a contract to writing. Poll. Cont. 406.

MISTAKE, (in a statute). 51 Me. 78; 46 Wis. 118.

(in a will). 8 Jur. 166; 3 Hare 265; 13 Ia. J. N. s. 136.

MISTAKE OR IGNORANCE, (in a statute). 1 Dowl. & Ry. 539.

MISTERY.-A trade or calling.-Cowell. See ADITION.

MISTRESS.-The proper style of the wife of an esquire or a gentleman in England.

MISTRIAL.-An erroneous trial.

MISUSE, ABUSE AND ILL-TREAT, (include acts injurious to the mind and morals). 1 Browne (Pa.) 29.

MISUSER.-Abuse of any liberty or benefit which works a forfeiture of it.

MISUSER, (what is). 23 Wend. (N. Y.) 193.

MITIGATION -Where a defendant or prisoner whose responsibility or guilt is not in dispute proves facts tending to reduce the damages or punishment to be awarded against him, he is said to show facts in mitigation of damages, or of sentence, as the case may be. Thus, the defendant in an action of seduction may prove the bad character of the woman in mitigation of damages. Underh. Torts 157.

MITIOR SENSUS.-The more favorable acceptation.

Mitius imperanti melius paretur (3 Inst. 24): He is better obeyed who commands leniently.

MITTENDO MANUSCRIPTUM PEDIS FINIS.-An abolished judicial writ addressed to the treasurer and chamberlain of the Exchequer, to search for and transmit the foot of a fine acknowledged before justices in eyre, into the Common Pleas. Reg. Orig. 14.

MITTER LE DROIT-MITTER L'ESTATE.-See RELEASE.

§ 1. In English law.-A writ used in sending a record or its tenor from one court to another. Thus, where a nul tiel record is pleaded in one court to the record of another court of equal or superior jurisdiction, the tenor of the record is brought into Chancery by a certiorari (q. v.), and thence sent by mittimus into the court where the action is. (Tidd 745.) It is apprehended that since the Judicature Acts this writ will not be much used in England.

§ 2. In criminal law.-A precept or warrant for the committal to jail of a person accused of a crime in a case where bail is not allowed or is not given; a commitment.

Mittimus, (defined). 112 Mass. 62.

MITTRE A LARGE.-To set or put at liberty.

MIXED ACTION.-See ACTION, § 15.

MIXED ACTIONS, (what are). 48 Me. 255.

MIXED CONTRACT.-In the civil law, one in which one of the parties confers a benefit on the other, and requires of the latter something of less value than what he has given; as a legacy charged with something of less value than the legacy itself.

MIXED FUND.-See BLENDED FUND.

MIXED GOVERNMENT.-A form of government, combining monarchy,

aristocracy and democracy, like that of the British Empire.

MIXED LARCENY. - Otherwise called "compound" or "complicated larceny," that which is combined with circumstances of aggravation or violence to the person, or taking from a house. See Larceny.

MIXED LAWS.—Those which concern both persons and property.

Mixed liquors, (defined). 3 Harr. (N. J.) 321.

MIXED PERSONALITY.—Impure personalty. See Abatement, § 4; Charity; Personality.

MIXED PRESUMPTIONS.—Presumptions of mixed law and fact, i. e. presumptions of fact recognized by law, e. g. presumptions which juries are commonly recommended to draw as inferences from the facts that are proved.

MIXED PROPERTY.—A compound of realty and personalty.

Mixed property, (defined). 2 Steph. Com. 214.

—— (in a will). 106 Mass. §85.

MIXED QUESTIONS.—(1) Those which arise from the conflict of foreign and domestic laws; (2) questions arising on a trial involving both law and fact. See Fact, § 3.

MIXED SUBJECTS OF PROPERTY.—Such as fall within the definition of things real, but which are attended nevertheless with some of the legal qualities of things personal, as emblements, fixtures, and shares in public undertakings, connected with land. Besides these, there are others which, though things personal in point of definition, are, in respect of some of their legal qualities, of the nature of things real; such are animails feræ naturæ, charters and deeds, court rolls, and other evidences of the land, together with the chests in which they are contained, ancient family pictures, ornaments, tombstones, coats of armor, with pennons and other ensigns, and especially heirlooms.—Wharton.

MIXED TITIIES.—Tithes of wool, milk, pigs, &c., consisting of natural products, but nur-

tured and preserved in part by the care of man. See Com. Dig. "Dismes."; also, 2 Inst. 649.

Mixed war, (defined). 1 Hill (N. Y.) 377, 415.

Mixing trust funds, (by trustee). 2 Myl. & K. 655.

MIXTION.—Confusion of goods (q. v.)

MIXTUM.—A breakfast, or a certain quantity of bread and wine — Cowell.

MIXTUM IMPERIUM.—Mixed authority; a kind of civil power. A term applied by Lord Hale to the power of certain subordinate civil magistrates, as distinct from jurisdiction. (Hale Anal. § 11).—Burrill.

MOB.—An assemblage of many people, acting in a tumultuous and riotous manner, calculated to put good citizens in fear, and endanger their persons and property.

MOBILIA.—Movables (q. v.)

Mobilia sequuntur personam (Story Confl. L. § 376). Movables follow the person.

MOBLES.—Movable goods; furniture. Obsolete.

MOCKADOES.—A kind of cloth made in England, mentioned in Stat. 23 Eliz. c. 9.

MODEL.—A representation or copy of a thing. A fac simile of something invented, made on a reduced scale, in compliance with the patent laws.

MODERAMEN INCULPATÆ TUTELÆ.—In the Roman law, the regulation of justifiable defense. The term expresses that degree of force which a person might lawfully use in defense of his person or property, even though it should occasion the death of the aggressor.—Crab. Law; Bell Dict.

MODERATA MISERICORDIA.—See De Moderata, &c.

MODERATE CASTIGAVIT.—He moderately corrected. A plea of justification in an action for assault and battery. See Manus Imposit.

MODERATOR.—A president or chairman of a public meeting, e. g. a church meeting, or town meeting in New England.

Modes of proceeding, (in act of congress). 1 How. (U. S.) 301, 306; 14 Pet. (U. S.) 301, 316; 16 Id. 303, 313; 17 Id. 201.

Modes of process, (in act of congress). 9 Pet. (U. S.) 329, 330; 10 Wheat. (U. S.) 1, 20.

MODIATIO.—A certain duty paid for every tierce of wine. Mon. Ang. t. ii. p. 194.

MODIFICATION. (831) MODIFICATION.—

§ 1. Of contract.—Change. Thus, where parties to a contract, either at the time of making it, by inserting a condition subsequent having that effect, or after its execution, by mutual consent, alter its provisions, this is called a “modification of the contract.”

§ 2. In Scotch law.—The term usually applied to the decree of the Teind Court, awarding a suitable stipend to the minister of a parish. Bell Dict.

MODIUS.—A measure; usually a bushel.

MODIUS TERRÆVEL AGRi.—A quantity of ground containing in length and breadth one hundred feet. Mon. Ang. iii. 200.

MODO ET FORMA.—In manner and form. A phrase formerly used in pleading. It was the nature of a traverse to deny the matter of fact in the adverse pleading in the manner and form in which it was alleged, and, therefore, to put the opposite party to prove it to be true in manner and form as well as in general effect. The plea of non est factum, and the replication de injuria, were the only negative traverses not pleaded modo et forma. These words were in no case strictly essential, so as to render their omission a cause of demurrer.—Wharton.

MODUS.—Custom; manner; means; way.

Modus de non decimando non valet. —An agreement not to take tithes avails not.

MODUS DECIMANDI.—Is where there exists by custom a particular manner of tithing, i. e. of paying tithes, different from the general rule. This is sometimes a pecuniary composition, such as twopence an acre for the tithe of land; sometimes it is a compensation in work and labor, as that the parson shall have only the twelfth cock of hay, and not the tenth, in consideration of the owner’s making it for him, or the like. (2 Bl. Com. 29; Phillim. Ecc. L. 1502; Stat. 2 and 3 Will. IV. c. 100, fixing the time for claiming a modus by prescription.) Moduses are within the Tithe Commutation Acts, and have probably been commuted in most if not in all cases. See TITHEs; DE NON DECI- MANDo; COMPOSITION, § 5.

Modus et conventio vincount legem (2 Co. 73): Custom and agreement overrule law. This maxim forms one of the first principles relative to the law of contracts. The exceptions to the rule here laid down are cases against public policy, morality, &c.

MODUS HABiLIS.—A valid manner.

Modus legem dat donationi (Co. Litt. 19): Custom gives law to the gift.

MODUS TENENDI.—The manner of holding, i. e. the different species of tenures by which estates are held.

MODUS TRANSFERRENDI. — The manner of transferring.

MOERDA.—The secret killing of another; murder. 4 Bl. Com. 194.

MOHATRA.—In the French law, a fraudulent contract to screen usury.—Wharton.

MOIDORE.—A gold coin of Portugal, value twenty-seven English shillings.

MOIETY.—This word is used in the old books in the sense of “half.” “If a joint estate be made of land to a husband and wife, and to a third person, in this case the husband and wife have in law in their right but the moiety, and the third person shall have as much as the husband and wife, viz., the other moiety. And the cause is, for that the husband and wife are but one person in law.” (Litt. § 291.) The word is, however, frequently, but inaccurately, used to signify any equal part, such as a third, fourth, &c.

Moiety, (defined). 6 Mod. 231.

Moiety, (in a deed). 5 Taunt. 257.

MOLENDINUM.—In old records, a mill.

MOLENDUM.—A grist; a certain quantity of corn sent to a mill to be ground.

Molest, (in a devise). 2 Mod. 7.

MOLESTATION.—

§ 1. In English law.—Molesting a person by following him in a persistent or disorderly manner, or by hiding his property, or by besetting his place of work or residence, with the view of compelling him to do, or abstain from doing, an act, is forbidden by Stat. 38 and 39 Vict. c. 86, repealing Stat. 34 and 35 Vict. c. 32. The term “molestation” was used in the latter act, but is omitted from the former. See INTIMI- DATION; TRADES UNIONS.

§ 2. In Scotch law.—The name of an action for disturbance of the possession of land. See DISTURBANCE, §§ 1, 3.

Molesied, (in a note). 1 Root (Conn.) 400.

MOLITURA, or MOLITA.—The toll or multure paid for grinding corn at a mill.—Cowell.

MOLITURA LIBERA.—A free grinding or liberty of a mill without paying toll.—Par. Antiq. 238.

MOLLITER MANUS IMPOSUIT. —This is the compendious name for the de-

MOLMAN.

(832)

MONEY.

fense set up to an action for assault and battery, where the defendant alleges that the battery complained of was lawful, and that he "laid hands on the defendant gently," i. e. used no more force than was necessary; as where a churchwarden turns a man out of church to prevent him from disturbing the congregation. 3 Steph Cum. 375. See JUSTIFICATION.

MOLMAN.—In old records, a man subject to do service.

MOLMUTIAN, or MOLMUTIN LAWS.—The laws of Dunvallo Molmutius, sixteenth king of the Britons, who reigned above four hundred years before the birth of Christ. They obtained in England until the reign of the Conqueror. These were the first published laws in Britain; and together with those of Queen Mercia, were translated by Gildas into Latin. (Usher Primord. 126)— Wharton.

MOLNEDA—MULNEDA.—A mill— rd or pond. Par. Antiq. 135.

MOLTA.—See MOLTURA.

MOLTURA.—See MOLTURA.

MONA.—A name for the Isle of Anglesea or the Isle of Man—perhaps for both.— Wharton.

MONACHISM.—The state of monks.— Milt. Hist. Eng.; Bingh. Christ. Antiq.

MONARCHY.—Greek: μοναρχος. A government in which the supreme power is vested in a single person. Where a monarch is invested with absolute power, the monarchy is termed despotic; where the supreme power is virtually in the laws, though the majesty of government and the administration are vested in a single person, it is a limited monarchy. It is hereditary, where the regal power descends immediately from the possessor to the next heir by blood, as in England; or elective, as was formerly the case in Poland.— Wharton.

MONASTERIUM.—A monastery; a church.— Spel. Gloss.

MONASTICON.—A book giving an account of monasteries, convents and religious houses.

MONETA.—Money (q. v.)

Moneta est justum medium et mensura rerum commutabilium, nam per medium monetæ fit omnium rerum conveniens et justa estimatio (Dav.

18): Money is the just medium and measure of commutable things, for by the medium of money a convenient and just estimation of all things is made.

MONETAGIUM, MONYA, or MONEYAGE.—Called also fornagium, a certain tribute formerly paid by tenants to their lord every third year, that he should not change the money which he had coined, when it was lawful for certain great men to coin money, but not of silver and gold, in their territories. Abrogated by Stat. 1 Hen. I. c. 2. (Hale Hist. Eng. L. 217) Also, a mintage, and the right of coining or minting money.— Wharton.

Monetandi jus comprehenditur in regalibus quæ nunquam a regio sceptro abdicantur (Dav. 18): The right of coining money is included in those rights of royalty which are never separated from the kingly sceptre.

MONEY.—"The name given to the commodity adopted to serve as the marchandise bannale, or universal equivalent of all other commodities; and for which individuals readily exchange their surplus products or services."— Brande.

The materials of which it is now usually made are gold, silver, or other metal, and paper; its currency and the intrinsic or denominated value put upon it are by virtue of the prerogative of the sovereign.

It may be said that the substitution of paper for gold or silver replaces a very expensive medium of commerce by one much less costly, and sometimes more convenient, the expediency and operation of which substitution belongs to the political economy of a State. See CASH; CURRENCY; EARMARK; GOODS; SPECIE; TENDER.

Money, (defined). 5 Hamm. (Tenn.) 140; 44 Tex. 620; 45 Id. 305; 2 Wheel. Cr. Cas. 620; 2 Wheel. Am. C. L. 177.

(in technical sense). 2 Dana (Ky.) 298.

(what is). 1 Hamm. (Ohio) 178; 2 Nott. & M. (S. C.) 519; 4 Bsp. 267; 5 Com. Dig. 158.

(distinguished from "currency"). 2 Dav. (Ky.) 33; 4 B. Mon. (Ky.) 547; 2 J. J. Marsh. (Ky.) 464.

(when means "currency of the union"). 3 Litt. (Ky.) 245.

(synonymous with "coined metal"). 45 Tex. 305.

(when bank notes are). 4 N. H. 198, 173; 1 Hill & J. (Md.) 54; 15 Pick. (Mass.) 173; 1 Ohio 189, 524.

(when bank notes are not). 2 Harr. (Del.) 235, 252; 1 Halst. (N. J.) 222, 228; South. (N. J.) 58; 13 Wend. (N. Y.) 107.

(depreciated bank paper is not). 2 J. J. Marsh. (Ky.) 49.

MONEY.

MONEY, (includes goods and chattels). 2 Wend. (N. Y.) 339 ; 12 Wend. (N. Y.) 586.

(paper currency is not). 1 McCord (S. C.) 115.

(stock is not). 7 Com. Dig. 373.

(table fees or drinks are, within penal statutes). 3 Tex. App. 675, 676.

(treasury notes are not). 3 Conn. 534.

(in a deed). 2 East 137.

(in annuity act). 3 T. R. 554; 6 Id. 333.

(in a statute). 19 Johns. (N. Y.) 145.

(in a will). 48 Cal. 165; 17 Am. Rep. 422; 4 B. Mon. (Ky.) 549; 1 Metc. (Mass.) 446; 14 Johns. (N. Y.) 1; 1 Johns. (N. Y.) Ch. 231; 1 Grant (Pa.) Cas. 158; 31 Tex. 10; 51 Wis. 60; 3 Harr. Dig. 2213; 1 Atk. 508; 20 Beav. 221; 26 Id. 452; 34 Id. 490; 2 Dru. & W. 51; 4 Kay & J. 436; 2 Keen 14; L. R. 4 Ch. 574; L. R. 11 Eq. 232; 16 Id. 475; 3 Myl. & C. 661; 1 Myl. & K. 56; 1 P. Wms. 540; 4 Russ. 360; 1 Turn. & R. 260, 272; 11 Ves. 504; 15 Id. 320, 326; Jarm. Wills ch. 24; 2 Redf. Wills (2 edit.) 111, 437 n.; 2 Wms. Ex. 1025.

(when may be taken in execution). 1 Cranch (U. S.) 116, 133; 1 Harr. (N. J.) 305; 12 Johns. (N. Y.) 220 395.

(when cannot be taken in execution). 9 East 48.

MONEY, ALL HIS READY, (in a will). 3 Jones & La T. 565.

MONEY, ALL MY, (in a will). 8 C. E. Gr. (N. J.) 229.

MONEY, ALL MY READY, (in a will). 7 Jur. 457.

MONEY, ALL THE REST OF HIS, (in a will). 1 Chit. (Gen. Pr. 91, 297 n.

MONEY, ALL THE REST OF HIS READY, (in a will). 1 Younge & Coll. C. C. 290;

MONEY AND LANDS, (in a will). 12 Ves. 161.

MONEY AND STOCK, (will not pass by a grant of goods and chattels). 5 Price 217.

MONEY-BILL.—

§ 1. In parliamentary language an act by which money is directed to be raised from the people, for any purpose or in any shape whatsoever, either for governmental purposes, and collected from the whole community generally, or for the benefit of a particular district, and collected in that district, as parish rates.

§ 2. With respect to these bills, in England, the House of Commons are so reasonably jealous of their privilege of imposing new taxes upon the subject, that they will not suffer the House of Lords to exert any other power but that of rejection; they will not pass a money-bill introduced in the House of Lords, nor permit the least alteration or amendment to be made by the House of Lords in the

mode of taxing the people by bills of this nature. See 1 Bl. Com. 170, 184.

§ 3. The constitution of the United States provides that "all bills for raising revenue shall originate in the house of representatives; but the senate may propose or concur with amendments, as on other bills ;" but the term "appropriation bill" is the more common one for this class of statutes. See APPROPRIATION, § 6.

MONEY-BILL, (defined). 126 Mass. 549, 557 et seq.

(what is). May Parl. Pr. ch. 22.

MONEY-BROKER.—A money-changer; a scrivener or jobber; one who lends or raises money to or for others.

MONEY CLAIMS. —See MONEY COUNTS.

MONEY COUNTS. —Simple contracts, express or implied, resulting in mere debts, are of so frequent occurrence as causes of action, that certain concise forms of counts were devised for suing upon them. These are called the "indebitatus" or "money counts." See COMMON COUNTS; COUNT, § 2.

MONEY, CURRENT, (not synonymous with "currency") 3 T. B. Mon. (Ky.) 166.

MONEY, CURRENT LAWFUL, (in a statute). 1 Dall. (U. S.) 175.

MONEY DEMANDS. —Such demands as are certain beforehand, or ascertainable by calculation, without the intervention of a jury; and, as being such, are usually contradistinguished from damages.

MONEY DEPOSITED IN COURT, (in a statute). 2 Gall. (U. S.) 146.

MONEY DUE AT MY DECEASE, (in a will). L. R. 17 Eq. 76.

MONEY HAD AND RECEIVED.—MONEY PAID.—See CONTRACT, §§ 6, 8; QUASI CONTRACT.

MONEY LAND.—In equity, land articled or devised to be sold, and turned into money, is considered as money; and money articled or bequeathed to be invested in land, has, in equity, many of the qualities of real estate, and is descendible and devisable as such according to the rules of inheritance in other cases, and this upon the ground that equity regards substance and not form, and will further the intention of parties. See CONVERSION, §§ 1-6; LAND.

MONEY.

MONEY, LOAN OF, (loan of a check is). 3 Wend. (N. Y.) 302.

MONEY LOANED, (what is not). 34 Mich. 490.

MONEY OF ADIEU.—In the French law, earnest money. It was so called because given at parting in completion of the bargain. Poth. Sale 507.

MONEY OF THE UNITED STATES, (what is). 3 Crancb (U. S.) C. C. 441, 458.

MONEY OUT AT INTEREST, (in a statute). 6 East 182.

MONEY, READY, (in a will). 9 Ir. Eq. 398; 1 Phillim. 356, 360.

MONEY RECEIVED TO HIS USE, (what is). 1 Str. 407.

MONEY WHICH HE MIGHT HAVE IN THE BANK OF ENGLAND, (in a will). 5 Beav. 158.

MONEYAGE.—See MONETAGIUM.

Moneyed demand, (in a statute). 58 Ala. 458.

Moneys, (distinguished from “personal property”). 2 McCart. (N. J.) 108.

— (in a will). 9 Barb. (N. Y.) 35; 4 Jones (N. C.) Eq. 244; 31 Eng. L. & Eq. 452; L. R. 12 Eq. 455.

Moneys expended, (defined). 19 Me. 394.

Moneys LEFT AFTER MY DECEASE, (in a will). 8 Ch. D. 789.

MONGER.—(1) A dealer or seller. It is seldom or never used alone, or otherwise than after the name of any commodity, to express a seller of such commodity. (2) A little fishing vessel. Stat. 13 Eliz. c. 11.

MONIERS, or MONEYERS.—Ministers of the mint; also, bankers.—Cowell.

MONIMENT.—A memorial, superscription, or record.

MONITION.—

§ 1. Admiralty.—In admiralty practice, a monition is a formal order of the court commanding something to be done by the person to whom it is directed, (Wms. & B. Adm. 297,) and who is called the person monished. Thus, when money is decreed to be paid, a monition may be obtained commanding its payment. (Ib.) A monition is granted either on motion or on application in chambers, and, if not obeyed, may be enforced by attachment (q. v.) Id. 298.

§ 2. Monition for process.—In ecclesiastical appeals to the privy council (and formerly also in admiralty appeals), as soon as the petition of appeal is lodged, a “monition for process” issues, calling upon the judges of the court below to transmit the proceedings in the cause to the registry of the court of Appeal. Id. 314; Macph. Jud. Com. 175 See PROCESS.

§ 3. Monitions in divorce practice are now disused, orders having taken their place. Browne Div. 254.

§ 4. Ecclesiastical law.—In ecclesiastical procedure, a monition is an order monishing or warning the party complained against to do or not to do a certain act “under pain of the law and contempt thereof.” Thus, there may be a monition for personal answers, for payment of costs, requiring a clergyman to reside, &c. (Phillim. Eccl. I 1257.) A monition may also be appended to a sentence inflicting a punishment for a past offense: in that case the monition forbids the repetition of the offense. See Martin v. Mackonochie, 3 Q. B. D. 730; 4 Q. B. D. 697. See ADMONITION.

Monition, (in ecclesiastical law). 6 App. Cas. 437.

MONITORY LETTERS.—Communications of warning and admonition sent from an ecclesiastical judge, upon information of scandal and abuses within the cognizance of his court.—Wharton.

MONOCRACY.—A government by one person.

MONOGAMY.—Marriage of one husband to one wife.

MONOMACHY.—A duel; a single combat. It was anciently allowed by law, for the trial of proof of crimes. It was even permitted in pecuniary causes, but it is now forbidden both by the civil and canon laws. See BATTLE.

MONOMANIA.—Insanity upon a particular subject. See MENTAL ALIENATION.

Monopolia dicitur, cum unus solus aliquod genus mercature universum emit, pretium et summ libitum statu-ens (11 Hen. 8,1): It is said to be a monopoly when one person alone buys up the whole of one kind of commodity, fixing a price at his own pleasure.

MONOPOLIES, STATUTE OF. The Stat. 21 Jac. I. c. 3.

MONOPOLY.—

§ 1. A license or privilege allowed by the sovereign for the sole buying and selling, making, working, or using of anything whatsoever. Monopolies were made illegal by Stat. 21 Jac. I. c. 3, except in the case of patents for new inventions and a few other instances. See PATENT.

§ 2. The popular meaning of “monopoly” at the present day seems to be, the sole power (or a power largely in excess of that possessed by others) of dealing in some particular commodity, or at some particular place or market; or of carrying

on some particular business. It is generally obtained by engrossing the market

or the getting up of a "corner" in the thing proposed to be made the subject-

matter of the monopoly. See CORNER; ENGROSS, § 3.

Monopoly, (defined). 11 Pet. (U.S.) 420, 567; 25 Conn. 38.

(what is not). 5 Heisk. (Tenn.) 475.

MONSTER.—In the technical sense, a "monster" is a child "which hath not

the shape of mankind." (Co. Litt. 7b; "non humanae figurae, sed alterius, magis

animulis quam hominis." Dig. L. 16 fr. 135.)

It cannot inherit or purchase land (Co. Litt. 7b, 3b); and, therefore, the birth of

a monster does not entitle a husband to curtesy. (Id. 29 b) As to the rules of the

Roman law, see Dig. I. 5. fr. 14.; L. 16 fr. 135; 2 Sav. Syst. 9.

MONSTRANS DE DROIT. — The remedy which a subject has when the crown is

in possession of property belonging to him, and title of the crown appears from facts set forth

upon record. In such a case the claimant may present a monstrans de droit ("manifestation of

right"), either showing that upon the facts as recorded he is entitled to the property, or setting

forth new facts showing that he is entitled.

Thus, if A. disseises B. of land and then dies without heirs, whereupon the land is adjudged

to the crown by inquest of office (q. v.), here the crown's title appears upon record, and B.'s remedy

is therefore by monstrans de droit, setting forth his disseisin by A. 3 Steph. Com. 656;

Man. Exch. Pr. 86; Stat. 30 Edw. III. c. 13. See Ousterlemain; Petition of Right;

Traverse.

MONSTRANS DE FAITS OU RECORDS. — Showing of deeds or records.

Upon an action brought upon an obligation,

after the plaintiff had declared he ought to have shown his obligation, and so also of records.

Monstrans de faits differed fromoyer de faits in that he who pleaded the deed or record, or de-

clared upon it, ought to have shown it, and the defendant might demand oyer of the same.—

Cowell.

MONSTRAVERUNT.—A writ which lay for tenants in ancient demesne who held

lands by free charter, when they were distrained to do unto their lords other services and customs

than they or their ancestors used to do. It is, however, abolished.—Wharton.

MONSTRUM.—A box in which relics are kept; also, a muster of soldiers.—Cowell.

MONTESQUIEU.—Charles de Sécondat, Baron de la Brède et de Montesquieu, was born 1st January, 1689, and died 10th

February, 1755. He wrote L'Esprit des Lois, and various historical and other works.—Holtz. Encycl.

MONTHS.—The first subdivision of a year. Months are either lunar, consisting

of twenty-eight days, and of which thirteen make a year: or calendar, which

are of unequal length according to the almanac or common calendar, and of

which twelve make a year. By the common law, a "month" means, in matters

temporal, a lunar month: in matters ecclesiastical, a calendar month; (1 Steph.

Com. 283;) but in acts of parliament,

"month" means calendar month. Stat. 13 and 14 Vict. c. 21, § 4; see Migotti v. Colville, 4 C. P. D. 233. See the references

given below.

Month, (defined). 21 Cal. 392; 32 Id. 347; 4 Bibb (Ky.) 105.

(when means calendar month). 4 Bibb (Ky.) 104; 6 Serg. & R. (Pa.) 539; 8 Wheel. Am. C. L. 145; 12 N. Y. Week. Dig.

545; Cro. Jac. 141; 1 Chit. Bills 373; 13 and 14 Vict. c. 21, § 4.

(when means lunar month). 2 Harr. (Del.) 548; 8 Cow. (N. Y.) 260; 15 Johns. (N. Y.) 119; 3 Johns. (N. Y.) Ch. 74; 4 Wend. (N. Y.) 512; 1 W. Bl. 450; 3 Burr. 1455; Cro. Jac.

166; Doug. 463; Chit. Bills 373; 1 Chit. Gen. Pr. 775; 2 Id. 147, 148; 1 Com. Dig. 628.

(in an agreement). 6 Moo. 433.

(in a charter party). 1 Esp. 186.

(in a contract or deed). 2 Wall. (U. S.) 177.

(in commercial instruments, &c.) 1 Johns. (N.Y.) Cas. 99; 6 Pa. 179.

(in mercantile contracts). 2 Mass. 170 n.; 4 Id. 460.

(in an obligation). 4 Bibb (Ky.) 104, 6 Serg. & R. (Pa.) 539.

(in a patent). 2 Campb. 294.

(in general railroad law, section 8). 16 Ind. 275.

(in act of 1843). 21 Ala. 42.

(in a statute). 2 Dall. (U. S.) 302; 4 Id. 143; 31 Cal. 173; 5 Conn. 357, 360; 2 A. K. Marsh. (Ky.) 245; 3 J. J. Marsh. (Ky.)

638; 7 Id. 202; 2 Mass. 170; 4 Id. 460, 461; 19 Pick. (Mass.) 532; 37 Miss. 567; 3 Halst. (N. J.) 232; 1 Cow. (N. Y.) 482 n.; 2 Id. 518; 1 Johns. (N. Y.) Cas. 200; 3 Serg. & R. (Pa.) 169; 10 Wend. (N. Y.) 395; 1 Bail. (N. C.) 611; Treadw. (S. C.) 606; 2 Vt. 138; 5 Gratt. (Va.) 285; 3 Atk. 346; 1 Bing. 307, 310; 2 Dow. & Ry. 727; 2 East 333; 3 Id. 407; 1 Esp. 240; 5 Id. 169; 6 Mau. & Sel. 227; 4 Moo.

465; 1 Saund. 251 n.; 2 Sch. & L. 521; 3 T. R. 623; 6 Id. 224; 15 Ves. 248.

Month after return day, for the space of one, (equivalent to "one month from the return day"). 7 T. B. Mon. (Ky.) 520.

Month next following, within one, (in a covenant). 4 Mod. 183, 186.

MONTH. (836) MORATUR.

Month's notice, (what is). 2 Abb. (N. Y.) Pr. 28.

Months, (in act of 1790, ch. 101). 17 Md. 260.

—— (in a statute). 2 Root (Conn.) 380.

Months, in about three, (in a letter). 2 Marsh 41.

Months, six, (in bank charter). 3 Cranch (U. S.) C. C. 218.

—— (in a statute). 4 Mod. 95, 96.

Months, within three, (in a statute). 1 Barn. & C. 500, 502.

Months, within twelve calendar, (in a corenant). 3 Brod. & B. 186, 187.

MONUMENT.—(1) An erection in some public place, intended to preserve and perpetuate the memory of some one deceased; (2) a landmark permanently fixed for the more easy ascertainment of boundaries.

Monumenta quæ nos recorda vocamus sunt veritatis et vetustatis vestigia (Co. Litt. 118) : Monuments, which we call records, are the vestiges of truth and antiquity.

MONYA.—See Monetagium.

MOOR.—An officer in the Isle of Man, who summons the courts for the several sheadings. The office is similar to the English bailiff of a hundred.

MOOT COURT—MOOT CASE.— See Moots.

MOOT HALL, or MOOT HOUSE.— A council-chamber; hall of judgment; town-hall.

MOOT HILLS.—Hills of meeting, on which the early ancestors of the English held their great courts. Many of these still exist not only in the British dominions, but also in the Netherlands. They commonly consist of a central eminence, on which sat the judge and his assistants ; beneath was an elevated platform for the parties, their friends, and “compurgators,” who sometimes amounted to one hundred, or more; and this platform was surrounded with a bench to secure it from the access of the spectators.—Encycl. Lond.

MOOT MAN.—One of those who used to argue the reader's cases in the Inns of Court. See Moots.

MOOTA CANUM.—A pack of dogs.— Cowell.

MOOTING.—The chief exercise formerly performed by students in the Inns of Court.

MOOTS.—Exercises in pleading, and in arguing doubtful cases and questions, by the students of an inn of court or law school, (q. v.) before the benchers of the inn or professors of the school. See Man. S. ad L. 262; Reeves Hist. Eng. Law 247.

MORA.—(1) In old English law, a moor; marsh land; a heath ; fen land ; barren and unprofitable ground. (Co. Litt. 5a.) (2) In the civil law, delay ; and, as applied in Roman law, the basis upon which interest is allowed upon money due and payable, but which remains unpaid, or the payment of which is said to be in morâ.

MORA MUSSA.—A watery or boggy moor; a morass. Mon. Ang. tom. i. 306.

Mora reprobatur in lege (Jenk. Cent. 51): Delay is reproved in law.

MORAL ACTIONS.—These are defined by Rutherford to be those only in which men have knowledge to guide them and a will to choose for themselves. Inst. Nat. Law lib. 1. c. i.

MORAL CERTAINTY.—That high degree of probability, though less than absolute assurance, upon which prudent and conscientious men may unhesitatingly act in matters of the gravest importance, e. g. in convicting one accused of crime. A certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. Commonwealth v. Webster, Bemis' Report 470.

Moral certainty, (equivalent to “proof beyond a reasonable doubt”). 118 Mass. 1.

MORAL CONSIDERATION.—A mere moral consideration will not support a promise, and is nothing in law, per Parke, B., 9 Mees. & W. 511. A subsequent express promise will not convert into a debt that which was not, of itself, a legal debt. See Flight v. Reed, 10 Jur. N. s. 1016, per Wilde, B. See Consideration, § 9.

Moral obligation, (defined). 3 Kent & P. 251 n.

MORAL INSANITY.—See Mental Alienation.

Morality, (defined). 23 Ohio St. 211, 243.

MORATUR IN LEGE.—He demurrs, because the party does not proceed in pleading, but rests or abides upon the judgment of the court on a certain point, as to the legal sufficiency of his opponent's pleading. The court deliberate and determine thereupon. See Demurrer.

MORAVIAN.

MORAVIAN.—Otherwise called "Herrhutters" or "United Brethren." A sect of Christians whose social polity is particular and conspicuous. It sprung up in Moravia and Bohemia, on the opening of that reformation which stripped the chair of St. Peter of so many votaries, and gave birth to so many denominations of Christians. They give evidence on their solemn affirmation. 2 Steph. Com. (7 edit.) 338 n.; 3 Id. 536 n.; 4 Id. 336 n. See Affirm, § 3.

MORE OR LESS.—These words in a contract, which rests in fieri, will only excuse a very small deficiency in the quantity of an estate, for if there is a considerable deficiency, the purchaser will be entitled to an abatement. Hill v. Buck-ley, 17 Ves. 394; and see Cross v. Eglin, 2 Barn. & Ad. 106; Sugd. Vend. & P. (14 edit.) 324.

More or less, (meaning of, generally). 1 Bland (Md.) 109; 1 Allen (Mass.) 546; 1 Munf. (Va.) 332.

(in a bill of lading). 3d Me. 554.

(in a bond conditioned to convey land). 2 Johns. (N. Y.) 37.

(in a contract to sell lands). 9 Ct. of Ch. 244; 11 Id. 522; 4 Ill. 385; 5 Bush (Ky.) 663; 3 Dana (Ky.) 25; 3 Met. Ch. 24; 99 Mass. 231; 40 Mo. 79; 14 N. Y. 143; 9 Paige (N. Y.) 168; 2 Pa. 211; 13 Serg. & R. (Pa.) 136; Rice (S. C.) Eq. 55; 2 Barn. & Ad. 106, 109; 2 Russ. 571; 1 Ves. & B. 376; 8 Com. Dig. 362.

(in a contract to sell certain goods). 6 Otto (U. S.) 171.

(in a lease). 4 Serg. & R. (Pa.) 456; 2 Esp. 229.

(in a description in a deed). 4 Mass. (U. S.) 414, 418; Pet. (U. S.) C. C. 49; 19 Ark. 102; 2 Bibb (Ky.) 82, 270; 3 Id. 46; 2 Dana (Ky.) 261; 3 Id. 310; 1 A. K. Marsh. (Ky.) 343; 5 J. J. Marsh. (Ky.) 181; 1 Bland (Md.) 103; 29 Md. 305; 4 Md. Ch. 95; 103 Mass. 344; 20 Pick. (Mass.) 62; 23 Minn. 62; 24 Miss. 597; 62 Mo. 405; 1 C. E. Gr. (N. J.) 290, 297; 3 Gr. (N. J.) Ch. 212; 8 Benw. (N. Y.) 528; 1 Ciai. (N. Y.) 493; 7 N. Y. 210; 6 Binn. (Pa.) 102; 3 Pa. 195; 4 Serg. & R. (Pa.) 488, 494; 5 Id. 260; 10 Id. 280; 6 Watts (Pa.) 117; 1 Deans. (S. C.) 433; 2 Strobh. (S. C.) 374; 24 Tex. 345; 1 Call (Va.) 301; 4 Id. 489; 5 Id. 1d., 238; 6 Id. 218; 2 Hen. & M. (Va.) 164; 1 Munf. (Va.) 336, 337; 2 Id. 178, 179 n.,*290; 6 Id. 188; 8 Wheel. Am. C. L. 286; 4 Kent Com. 467; 6 Ves. 328, 340; 17 Id. 394; 1 Chit. Gen. Pr. 180; Pow. Mortb. 445, n. (a); 3 S.ark. Ev. 16, 28; Sugd. Vend. & P. 324.

Moreover, (in a devise). 1 Whart. (Pa.) 264.

MORGANATIC MARRIAGE.—The name denotes its Germanic origin, and it is even yet not out of use in that country, under the appellation of a left-handed marriage; but the earliest and clearest description of it is in the Book of Feuds, though wrongly attributed to the Salic law, in which no trace of it appears,

by the mistake of referring all customs of the Franks to that code. It is defined to be the lawful and inseparable conjunction of a man, of noble or illustrious birth only, with a woman of inferior station, upon condition that neither the wife nor her children shall partake of the titles, arms, or dignity of the husband, or succeed to his inheritance, but be contented with a certain allowed rank assigned to them by the morgannatic contract. But since these restrictions relate only to the rank of the parties and succession to property, and without affecting the nature of a matrimonial engagement, it must be considered as a just marriage. The marriage ceremony was regularly performed; the union was indissoluble; the children legitimate. This connexion was very usual in Europe; but there is not proof that the concubines of Charlemagne and the early kings of France were wives of this description, nor is there occasion to resort to that supposition in defense of their conduct, since the state of concubinage itself was little inferior to this in the public estimation. (See Croke's Introd. to Horner v. Liddiard, 115-117, A. D. 1800.)—Wharton.

MORGANGINA, or MORGAN-GIVA.—A gift on the morning after the wedding; dowry; the husband's gift to his wife on the day after the wedding.—Du Cange; Cowell.

MORGUE.—A place where the bodies of persons found dead are kept for a limited time to the end that their friends may identify and claim them. See Mortuary.

MORINA.—Murrrain; also, the wool of sick sheep, and those dead with the murrrain. Fleta, l. ii. c. 79, p. 6.

MORLING, or MORTLING.—Wool from the skin of dead sheep.—3 Jac. l. c. 18; 11 Car. II. c. 88.

MORMONISM.—A social and religious system prevailing in the territory of Utah, whereby plurality of wives is not only permitted, but enjoined. These marriages are not recognized by English law. (See L. R. I P. & D. 130; 35 L. J. P. & M. 57.) Nor are they legal according to the law of the United States, persons entering into them being indictable, even under the laws of the territory, for bigamy.

MOROSUS.—Marshy. See Mora.

MORS—MORTEM.—Death.

Mors dicitur ultimum supplicium (3 Inst. 212): Death is denominated the extreme penalty.

Mors omnia solvit (Jenk. Cent. 100): Death dissolves all things, e. g. abates an action.

MORSELLUM.

(838)

MORTGAGE.

MORSELLUM, or MORSELLUS TE:IR.A -1 small parcel or bit of land. Mon. Ang. 232.

§ 2. The term mortgage is most commonly used as applied to land or other realty and leaseholds (2 Dav. Prec. Conv. 549 et seq.), but personalty may also be mortgaged, although the transaction is not always called a mortgage, except in the case of ships (as to which see Wms. & B. Adm. 27, and infra, § 17,) and choses in action (e.g. policies of insurance, copyrights, &c.) A mortgage of chattels in possession, such as furniture, is called, in England, a "bill of sale" (q. v. § 4), and in America a "chattel mortgage" (q.v)

MORT CIVILE.—In the French law, civil death, as upon conviction for felony. It was nominally abolished by a law of the 31st of May, 1854, but something very similar to it, in effect at least, still remains. Thus, the property of the condemned, possessed by him at the date of his conviction, goes and belongs to his successois (héritiers), as in case of an intestacy; and his future acquired property goes to the State by right of its prerogative (par droit de déshérence), but the State may, as a matter of grace, make it over in whole or in part to the widow and children.—Brown.

§ 3. A mortgage of stock in the funds, or of a public company, &c., may be made. (Langton v. Waite, 1. R. 2 Eq. 165; 4 Ch. 402.) Such a mortgage must be distinguished from what is technically called a "stock mortgage," which is where A. has sold a sum of stock (e.g. consols), and advanced the proceeds to B., who covenants to replace the stock (i.e. to purchase and transfer to A. a like amount of stock) at a future time, and executes a mortgage of land or other property to A. as security for the covenant. The object of such a mortgage generally is that the mortgagee may obtain a higher rate of interest than that paid on the stock, and that he may be protected from the risk of the stock rising in price before the mortgage debt is repaid. See Blyth v. Carpenter, L. R. 2 Eq. 501; Whitney v. Smith, 4 Ch. 513.

MORT D'ANCESTOR.—See Assize of Mort D'Ancestor.

MORTALITY.—See Bill of Mortality.

MORTGAGE.—NORMAN-FRENCH: mort, dead, gage, a pledge, from Low Latin; vadium, which in its turn comes from either Latin; vellus, a bond, or from a combination of the two (Littre, Dict v Gage). Notwithstanding the authority of Littleton, who says that a mortgage is so called because if the teoffee does not pay on the appointed day the land is dead to him, and if he does pay then it is dead to the teoffee, (§32.) it seems quite clear that "mortgage" originally denoted a pledge of land under which the creditor took the rents and profits for himself, so that it was dead or profitless to the debtor, as opposed to a pledge under which the rents and profits went in reduction of the debt (vif gage, vivum vadium). (See Glanvil x 6 8; Loyse! Inst. (int. 483; Fisher 2, n. (c)) For another instance of mort in the sense of profitless, see Mortmain For the history of pignus in Roman law, which strikingly resembles that of our own law of mortgage, see Kuntze, Cursus, § 549 et seq.. and for the theory of mortgage in general, see Vangerow, Pandecten 1.797.

§ 1. A mortgage is where one person (the mortgagor) secures to another (the mortgagee) the payment of money (whether already owing, or advanced at the time, or to be advanced subsequently) by vesting in him some property or interest in property, subject to the mortgagor's right to redeem or buy it back by paying the money within a certain time, whilc the mortgagee has the right, after the lapse of a certain time, of enforcing his security, or making it available in obtaining payment of the money advanced. The sum secured by the mortgage is called the "mortgage debt," although there is not necessarily any personal liability on the part of the mortgagor (as, for instance, in case of a mortgage by trustees for raising portions). The term "mortgage debt" is also used to signify the security of the mortgagee, i.e. his interest in the property mortgaged, and his other rigirts and remedies for obtaining satisfaction of the debt.

Mortgages are of three kinds, legal, equitable and statutory.—

§ 4. Legal.—A legal mortgage (so called because it was formerly the only one recognized at common law) is where A. conveys property to B. by deed, as a security for the repayment of money. If the property mortgaged consists of the fee-simple of land, the deed contains a conveyance in the ordinary form. If the mortgagor is the owner of the fee simple, and grants a term of years as the mortgage security (formerly a common mode of mortgaging land), it is called a "mortgage by demise." If the owner of a term or lease wishes to mortgage it, he may do so either by an assignment or by under-lease. If the terms of the lease are onerous, the mortgagee generally prefers the latter mode, as he thus escapes liability to

We original lessor. (Dav. ubi supra.) A egal mortgage may take one of five forms (See 2 Hayes Conv. 119):

§ 5. Upon condition.—The old English form (which is the one now in use in America) was a conveyance, with a condition that it should be void on payment of the debt on a fixed day. In such a case the mortgagee had at common law an estate upon condition, and was called "tenant in mortgage." (Litt. §§ 332, 333.) The condition was sometimes called a "defeasance" (q. v.) When the time for payment expired, the estate of the mortgagee became absolute at law, but remained redeemable in equity, whence the mortgagor was said to have an "equity of redemption" (q. v.) This form of mortgage has long been obsolete in England, in all cases except mortgages of copyholds (see Surrender); and as the rules of equity now prevail, it seems that a conditional conveyance by way of mortgage cannot become absolute until foreclosure.

§ 6. With proviso for redemption.—At the present day, in English law, a mortgage is, in ordinary cases, effected by an absolute conveyance, followed by a proviso or agreement (express or implied) called the "proviso for redemption," by which the mortgagee agrees to reconvey the property to the mortgagor on payment of the debt and interest by a certain date. Formerly, if the money was not repaid on the day, the mortgage became irredeemable at common law, but the mortgagor had an equity of redemption until foreclosure or sale. (Wins. Real Prop. 421; 2 White & T. Lead. Cas. 919.) The common law rule no longer exists. Judicature Act, 1873, § 25, § 11.

*The English Conveyancing Act, 1881, repeals those sections of the Trustee and Mortgagee (Clauses Act, 1860, which give mortgagees powers of sale, &c., and reenacts them in an extended form. The provisions of the act only apply to mortgages which are made by deed executed after the 31st December, 1881, and only so far as we no contrary intention is expressed in the deed. They confer on the original mortgagee, and any person deriving title under him, (1) a power to sell the mortgaged property, as soon as the money has become due; (2) a power to insure the property against fire, and to add the premiums to the mortgage debt, unless an insurance is kept up by the mortgagor; (3) a power to appoint a receiver as soon as the

§ 7. Foreclosure.—Incident to both these kinds of mortgage is the right of foreclosure, a right which entitles the mortgagee to compel the mortgagor either to pay off the debt within a reasonable time, or to lose his equity of redemption. See Foreclosure.

§ 8. Power of sale.—In addition to the rights thus created by operation of law, a legal mortgage sometimes contains elaborate stipulations and provisions, especially in the interest of the mortgagee. The principal of these are the power of sale, which enables the mortgagee to take possession of and sell the property, if default is made in payment of the principal or interest beyond a certain period; and the various powers of leasing and managing the property, and appointing a receiver, which are necessary for the proper management of a landed estate.* See Mortgage in Possession.

§ 9. With trust for sale.—A mortgage may also take the form of a conveyance by the borrower to the lender (or his nominee), upon trust to sell the land, and, after satisfying the debt and expenses, &c., to pay the surplus proceeds (if any) to the mortgagor. Such a mortgage does not give the right of foreclosure (2 Hayes Conv. 119 n.), but in all other respects it seems to be similar to an ordinary mortgage; and hence, if the mortgagee remains in possession for more than twelve years, without giving a written acknowledgment of the mortgagor's title, the mortgagor's right to redeem is gone. Stat. 3 and 4 Will. IV. c. 27; 37 and 38 Vict. c. 57, § 7; In re Alison, 11 Ch. D. 284.

§ 10. Welsh mortgage.—A Welsh mortgage is said to be a mortgage under which the mortgagee is let into possession of the mortgaged money has become due. The power to sell, or appoint a receiver, is not exercisable unless the mortgagor has failed for three months to comply with a notice requiring him to pay off the mortgage debt, or unless interest is in arrear for two months, or there has been a breach of covenant, &c.; but these restrictions do not affect the title of a purchaser buying under the power of sale. As to the other powers of a mortgagee, see Mortgagor in Possession; Payment into Court; Redeem.

The same act gives to the court very wide powers of directing the sale of mortgaged property in any action brought respecting a mortgage, whether for redemption, foreclosure, or otherwise.

land until the rents and profits repay the principal and interest, the property being redeemable at any time on payment of the amount remaining due. (Wats. Comp. Eq.) But this is sometimes described as "a mortgage in the nature of a Welsh mortgage," a genuine Welsh mortgage being defined as the conveyance of an estate redeemable at any time on payment of the debt, without payment of interest by the borrower, or account of the rents and profits by the lender, who is let into possession from the beginning, and takes the rents in lieu of interest. (5 Byth. Conv. 96.) A Welsh mortgage does not admit of foreclosure, as the mortgagee does not stipulate for redemption. Fish. Mort. 5, 11.

§ 11. Sub-mortgage.—A sub-mortgage is a mortgage by a mortgagee of his mortgage debt (§ 1) with a transfer of the mortgage security; the original mortgagee is then called "sub-mortgagor" in respect of the sub-mortgage.

§ 12. Further charge.—A further agreement that a subsisting mortgage shall be a security for a further advance by the mortgagee.

§ 13. Further security.—A further security is a mortgage of some additional property, or a grant of additional remedies to secure a subsisting mortgage debt.

§ 14. Equitable.—An equitable mortgage is one which passes only an equitable estate or interest, either (1) because the form of transfer or conveyance used is an equitable one, i. e. operates only as between the parties to it, and those who have notice of it, or (2) because the mortgagor's estate or interest is equitable, i. e. consists merely of the right to obtain a conveyance of the legal estate.

§ 15. Of the former class, the principal kinds are (Fish. Mort. 33) (1) an agreement to execute a legal mortgage; (2) a deposit of title deeds, share certificates, land certificates, or other documents of title, either with or without a memorandum of deposit, i. e. a statement in writing that the documents are deposited by way of security. (Russel v. Russel, 1 Bro. C. C. 269; 1 White & T. Lead. Cas. 603.) As to the difference between a mortgage by deposit and a lien, see 2 Dav. Prec. Conv. 86 n.

§ 16. An equitable mortgage of the second class occurs in the case of a mortgage of an equity of redemption. Thus, if A. mortgages his estate to B., and then mortgages it again to C., though in terms professing to convey the legal estate, C. has an equitable mortgage, because it is in effect only a charge on A.'s equity of redemption.

§ 17. Statutory.—A statutory mortgage is one which, by virtue of the provisions of a statute, produces almost the same effect as an ordinary mortgage, without operating as a transfer or conveyance of the property. Thus, a mortgage of land registered under the English Land Transfer Act, 1875, is effected by an "instrument of charge" executed by the mortgagor and entered on the register. (§ 22 et seq.; General Rules 20) et seq., Form 20.) So, a "mortgage" of a ship does not operate as a conveyance, but merely gives the mortgagee a charge with a power of sale. Maud & P. Mer. Sh. 33 et seq.

§ 18. A statutory mortgage of freehold or leasehold land, operating by conveyance, may be made under the English Conveyancing Act, 1881, § 26. The act also provides for the transfer and reconveyance of a statutory mortgage. §§ 27-29. See Charge; Consolidation of Securities; Pawn; Pledge; Receiver; Reconveyance; Tacking.

Mortgage, (defined). 1 Pet. (U. S.) 386, 441; 57 Ala. 53; 22 Conn. 550; 1 Scam. (Ill.) 140; 44 Mo. 429; 9 Bosw. (N. Y.) 323; 26 Wend. (N. Y.) 407, 475; 4 Rawle (Pa.) 255; 4 Kent Com. 136.

(what constitutes). 21 How. (U. S.) 414; 2 Woodh. & M. (U. S.) 371; 38 Ala. 185; 48 Ind. 99; 1 Cal. 242; 1 Day (Conn.) 139; 2 Root (Conn.) 69; 4 Ind. 101; 7 Id. 359; 22 Id. 427; 16 Iowa 422; 3 Dana (Ky.) 170; 1 Hard. (Ky.) 6; 1 A. K. Marsh. (Ky.) 298; 3 La. Ann. 150; 24 Me. 185; 44 Id. 286; 2 Allen (Mass.) 115; 2 Mass. 491; 4 Id. 413, 414; 5 Id. 109; 3 Pick. (Mass.) 484; 5 Id. 181; 7 Id. 157; 5 Miss. 317; 20 Id. 306; 3 Gr. (N. J.) 370; 1 Gr. (N. J.) Ch. 261; Sax. (N. J.) 531; 36 Barb. (N. Y.) 622; 9 Bosw. (N. Y.) 323; 2 Cow. (N. Y.) 324; 3 Id. 166; 4 Id. 401; 2 Hall (N. Y.) 1, 13; 3 Hill (N. Y.) 95; 5 Johns. (N. Y.) 258; 8 Id. 96; 9 N. Y. 213; 31 Id. 512; 1 Paige (N. Y.) 48, 56; 5 Id. 9; 9 Wend. (N. Y.) 80; 13 Id. 485; 23 Wend. (N. Y.) 653, 658; 3 Jones (N. C.) 481; 73 Pa. St. 65; 16 S. C. & R. (Pa.) 361; 3 Watts (Pa.) 188; 6 Id. 126, 161; 2 Dana. (S. C.) 570; 4 Sneed (Tenn.) 465; 3 Yerg. (Tenn.) 513; 25 Vt. 558; 2 Cull (Va.) 421; 4 Hen. & M. (Va.) 101; 2 Munf. (Va.) 401; 2 Wash. (Va.) 11, 127; 7 Wheat. Am. (1st ed.) 1 Atk. 165; 2 Id. 495; 3 Esp. 103; 2 Ves. 378; 3 Young & J. 150.

(what is not). 9 Ga. 151; 29 Id. 186; 40 N. H. 34; 1 C. E. Gr. (N. J.) 189; 3 Johns. (N. Y.) Ch. 435; 6 Paige (N. Y.) 480; 18 Wend. (N. Y.) 319; 2 Yerg. (Tenn.) 215.

(distinguished from "pledge"). 4 Abb. (N. Y.) Pr. 106, 109; 1 Abb. (N. Y.) Pr. n. s. 63; 43 Barb. (N. Y.) 607, 610; 1 Robt. (N. Y.) 160; 24 Wend. (N. Y.) 117; U. S. Dig. tit. Bailm. II. 2; Mortgage XII. 1.

. MORTGAGE. (841) MORTMAIN.

Mortgage, (not an assignment or conveyance). 10 Cal. 280, 294.

(of real, distinguished from that of personal property). 6 Paige, (N. Y.) 586.

(may be given to secure future debts). 1 Pet. (U. S.) 336; 2 Cow. (N. Y.) 247.

(when merely a security). 1 Houst. (Del.) 320; 5 Ind. 393; 7 Id. 213; 27 Id. 472.

(when a sale). 55 Me. 355; 4 Abb. (N. Y.) Pr. 106.

(in an agreement). 11 Gray (Mass.) 492.

(in practice act, § 120). 8 Cal. 260.

(in act of October 20th, 1807). 25 Mo. 182.

(in act of 1789, § 26). 6 So. Car. 316.

(in a power of attorney to). 2 Cow. (N. Y.) 109.

(in a will). 2 Ld. Raym. 834.

Mortgage, assign and transfer, (in a deed). 8 Blackt. (Ind.) 140.

MORTGAGE BY DEPOSIT.—See Mortgage, § 15.

Mortgage, Chattel, (defined). 7 Greenl. (Me.) 211; 52 Barb. (N. Y.) 367.

(what constitutes). 13 Ark. 112; 16 Ind. 380; 3 Md. Ch. 521; 97 Mass. 452, 489.

MORTGAGE DEBT.—See Mortgage, § 1.

Mortgage, Equitable, (defined). 58 Ala. 39; 1 Chit. Gen. Pr. 335.

(what constitutes). 2 Sumn. (U. S.) 486; 38 Ala. 643; 6 Gill & J. (Md.) 275; 1 Chit. Gen. Pr. 469.

MORTGAGE OF GOODS.—See Chattel Mortgage; Mortgage, § 2.

MORTGAGEE.—He that takes or receives a mortgage.

MORTGAGOR, or MORTGAGER.—He that gives a mortgage.

MORTGAGOR AND MORTGAGEE IN POSSESSION.—§ 1. Mortgagor.—A mortgagor in possession is in the same position as an ordinary landowner, except that he must not prejudice the security by committing waste. In English law, he is entitled to collect rents under leases granted before the mortgage, until the mortgagee gives the tenants notice of the mortgage; and,

• By the English Conveyancing Act, 1881, a mortgagor or mortgagee of land, while in possession, has a power of making binding leases of the mortgaged land, subject to certain limitations and restrictions as to the length of the term, the rent, &c. § 18.

By the same act, a mortgagee in possession of under section 25 of the Judicature Act, 1873, he may bring actions in his own name in respect of the possession or rents of the land. A limited power of leasing is sometimes given to the mortgagor by the mortgage.

§ 2. Mortgagee.—A mortgagee in possession is bound to account to the mortgagor for the rents and profits which he has received, or ought with proper management to have received, and is liable for waste. (Wats. Comp. Eq. 670. As to the effect of the ordinary attornment clause in a mortgage in making the mortgagee a mortgagee in possession without any act on his part, see In re Stockton Iron Co., 10 Ch. D. 335, 356; Ex parte Punnett, 16 Id. 226) Powers of leasing and management, and of appointing a receiver, are frequently given by the mortgage deed.* See Mortgage, § 8.

MORTH.—Murder, answering exactly to the French assassinat or meurtre de guet-apens.

MORTHLAGA.—A murderer.—Cowell.

MORTHLAGE.—Murder.—Cowell.

MORTIFICATION.—A term of Scotch law, synonymous with the English "mortmain" (q. v.)

MORTIS CAUSA DONATIO.—See Donatio Causa Mortis.

MORTMAIN.—Norman-French: morte main; (Britt. 32b; Loysel Int. Cout. gloss.;) Low Latin: mortua manus, a dead hand. because "the lands were said to come to dead hands, as to the lords, by alienation in mortmain they lost wholly their escheats, and it effect their knight service for the defence of the realm; wards, marriages, reliefs, and the like; and therefore was called a dead hand, for that a dead hand yeeldeth no service." Co. Litt. 2b.

The term "mortmain" is applied to two classes of statutes.

§ 1. Statutes of mortmain. —The statutes prohibiting alienation in mortmain, in the strict sense of the word, i. e. alienation of land to corporations, are Magna Charta, the Stat. De Viris Religiosis (7 Edw. I.), Stat. Westminster II. (13 Edw. I. c. 32), and 15 Rich. 2.

Those statutes prohibited not only direct grants of land to corporations, whether sole or aggregate, but also several contrivances by which the land has power to cut and sell timber and other trees ripe for cutting, not being used for shelter or ornament. § 19.

These provisions only apply to mortgages made after the 31st December, 1881, and only so far as a contrary intention is not expressed by the parties.

MORTMAIN.

especially directed, attempted to elude their provisions. (See Use.) Their effect was, that if land was granted to a corporation without a license from the crown, and from the feudal lords, of whom it was mediately or immediately holden, then, within a certain time, the immediate lord might enter on or take possession of the land, which thus became forfeited to him; or, if he failed to do so, each lord paramount had the right to enter in his turn, and in default of all of them the crown. In modern times, however, the rights of intermediate lords became unimportant, and by the Stat. 7 and 8 Will. III. c. 37, it was enacted that the crown for the future may grant licenses to alien or take land in mortmain, of whomsoever it may be holden. Many corporations are exempt from the operation of the Statutes of Mortmain: such are the universities and colleges of Oxford and Cambridge, associations formed under the Companies Acts, the Building Societies, Friendly Societies, and Industrial and Provident Societies Acts, &c. Britt. 90 a; Co. Litt. 2 b, 93 b; 2 Bl. Com. 267; 1 Steph. Com. 454; Tud Char. Trusts 36; Digby Hist. R. P. 98, 150, 256, 325. See, also, the acts of 18 and 19 Vict. c. 124, and 33 and 34 Vict. c. 34, enabling charities, &c., to invest money in real securities.

§ 2. Charitable Uses, or Mortmain Act.—In the popular use of the word, the Mortmain Act is the act of 9 Geo. II. c. 38, (more accurately called the “Charitable Uses Act,”) which prohibits gifts of land or of money to be laid out in the purchase of land for any charitable purposes, except by absolute and immediate conveyance by deed, executed and enrolled with certain formalities, the object being to prevent improvident alienations or dispositions of land by languishing or dying persons to the disherison of their lawful heirs. There-fore, all gifts by will of land or of money arising out of or connected with land, for charitable purposes, are void.* The act was passed to supplement the provisions of the Statutes of Mortmain, (supra, § 1,) and of the act against superstitious uses (q. v.); because, although charities are not generally corporations, yet gifts to them are practically in perpetuity, and are, therefore, contrary to the policy of the law, which favours free dealing in land. The Charitable Uses Act is, however, quite distinct from the Statutes of Mortmain; and, therefore, a corporation which has power to hold land in mortmain cannot take land by a gift contravening the provisions of the Charitable Uses Act. Luckraft v. Pridham, 6 Ch. D 205.

Mortmain, (statute of). 1 Watts (Pa.) 213; 3 Wl zel. Am. C. L. 466.

MORTUARY.—

§ 1. Public health.—In the modern sense of the word, a mortuary is a place for the reception of dead bodies before interment. Under

the Public Health Act, 1875, §§ 141, 142, every local sanitary authority is empowered to provide a mortuary, and to cause dead bodies to be removed to it in cases where their retention in dwelling-houses might be prejudicial to the health of the inmates.

§ 2. In church law, mortuaries are a sort of ecclesiastical heriots, being a customary gift claimed by and due to the minister in very many parishes on the death of one of his parishioners. The nature of the gift formerly varied according to the custom of the place, being frequently the next best chattel of the deceased, after the lord's heriot. But by Stat. 21 Hen. VIII. c. 6. mortuaries were fixed at certain sums, in no case exceeding 10s. 2 Bl. Com. 425; Phillim. Ecc. L. 873; and see Stats. 13 Ann. c. 6; and 28 Geo. II. c. 6.

MORTUUM VADIUM.—A dead pledge or mortgage. See Mortgage.

MORTUUS.—Dead.

Mortuus exitus non est exitus (Co. Litt. 29): A dead issue is no issue.

Mos retinendus est fidelissime vetustatis (4 Co. 78): A custom of the truest antiquity is to be retained.

Most punitur reatus, (in a statute). 6 Pick. (Mass.) 276; 3 Johns. (N. Y.) Ch. 339; 6 Id. 331; 1 Serg. & R. (Pa.) 127.

MOTE.—A meeting; an assembly. Used in composition, as burgmote, folkmote, &c. See Gemot.

MOTE-BELL.—The bell which was used by the Saxons to summon people to the court.—Cowell.

MOTEER.—A customary service or payment at the mote or court of the lord, from which some were exempted by charter or privi-lege.—Cowell.

MOTHER-OTURCE.—See Matrix Ec-clesia.

MOTHERING.—A custom of visiting parents on Mid-Lent Sunday.—Jacob.

MOTIBILIS.—One that may be moved or displaced; also, a vagrant. Fleta 1. 5, c. vi.

MOTION.—

§ 1. A motion is an application to a court or a judge. Some motions are made summarily, without reference to any proceeding, as where application is made for a writ of habeas corpus (q. v.) Oliver

and the effect of a bequest to a charity out of a fund partly arising from land, see Wills Comp., Eq. Abatement, § 4, and Devisee; Attrce v. Hawe, 9 Ch. D. 337; Ashworth v. Munn, 15 Ch. D. 363.

MOTION.

motions are employed to obtain a judgment on the main question in an action (see MOTION FOR JUDGMENT); but these are not motions in the sense in which the word is commonly used, namely, to denote an interlocutory application in an action. Motions may be made either in court or in chambers; but, in England, as a general rule, a motion is an oral application to a petition, which is a written application, and to a summons, which is made in chambers. Dan. Ch. Pr. 1437; 3 Steph. Com. 627; Wms. & B. Adm. 302.

§ 2. On notice.—Ex parte.— Ordinarily a motion is only made after notice has been given to the other side; sometimes, however, a motion is made ex parte. In common law practice, too, a motion is sometimes for a rule to show cause; in such a case the applicant moves ex parte for a rule calling upon the other side to show cause to the court on a day named why the order asked for should not be made upon him. See ORDER; RULE.

§ 3. Of course.—A motion which is granted by the court as a matter of course.

§ 4. Saving motion.—In English Chancery practice, if counsel is unable to make a motion on the day for which notice has been given, he is entitled, as a matter of right, "to save the motion" i. e. to adjourn it to the next motion day by mentioning it to the court, without the consent of the other side. Dan. Ch. Pr. 1414.

§ 5. Abandoned motion.—If counsel does not either bring on or save his motion on the day for which notice has been given, (provided, of course, he has had an opportunity of being heard), the motion is said to be abandoned, and the other side is entitled to his costs of it.

Motion, (defined). 41 Cal. 645. (in the code). 3 How. (N. Y.) Pr. 287.

MOTION FOR DECREE.—Under the chancery practice, the most usual mode of bringing on a suit for hearing when the defendant has answered, is by motion for decree. To do this the plaintiff serves of the defendant notice of his intention to move for a decree. Hunt. Suit 59; Dan. Ch. Pr. 722. See DECREE, § 1; FURTHER CONSIDERATION.

MOTION FOR DIRECTIONS.—Formerly, in English divorce and probate practice, after the pleadings had been concluded, it was

necessary to make a motion to obtain the directions of the court as to the manner in which the questions of fact raised by the pleadings were to be tried. (Browne Div. 229; Browne Prob. Pr. 290. See Rules of Court xxxvi., 5.) This practice has recently been abolished, and a cause at issue is now set down for trial in accordance with a general order of the court. Probate, Divorce and Admiralty Rules, § 205, (10th August, 1880.)

MOTION FOR JUDGMENT.— § 1. This is the mode of obtaining the judgment of a court of record in an action in all cases where no other mode of obtaining it is prescribed. (Sm. Ac. 146.) Thus, if at the trial of an action the judge does not direct any judgment to be entered, the proper course is for the party who thinks the result of the trial in his favor to move for judgment on the verdict or findings at the trial. So, if the defendant makes default in delivering his defense, the plaintiff must set down the action on motion for judgment, unless it is of such a nature that he may enter judgment for his claim at once, (e.g. where it is for a debt, damages, recovery of land, or the like.)

§ 2. A motion for judgment ordinarily requires to be set down in the cause list, and notice of it given to the other side.

MOTION FOR NEW TRIAL.— See TRIAL.

MOTION IN ARREST OF JUDGMENT.—See ARREST OF JUDGMENT.

MOTION TO SET ASIDE JUDGMENT.—This is a step taken by a party in an action who is dissatisfied with the judgment directed to be entered at the trial of the action, on the ground either that the finding of the jury has been wrongly entered, or that the judgment itself is wrong.

MOTIVE.—That which moves to action; the inducement, cause or reason why an act is done.

MOTU PROPRIO.—The commencing words of a certain kind of papal rescript Mould, (defined). 2 W. Bl. 822.

MOULT.—A mow of corn or hay.—Par. Antiq. 401.

MOUNTAIN LAND, (does not describe situation but quality). 1 Burr. §29; 1 Str. 71.

MOUNTAIN.

MOVABLE.

(844)

MULTIFARIOUSNESS.

Movable effects, (in a will). 18 Wend (N. Y.) 208.

Movable estate, (in a will). Penn. (N. J.) 602.

Movable every, (in a devise). 2 Dall. (U. S.) 142.

Movable goods and chattels, (in a will). 1 W. Jones 225; 2 Com. Dig. 661.

Movable property, (defined). 19 Conn. 238, 245; 6 Dana (Ky.) 343.

(in a bequest). 2 Ired. (N. C.) Eq. 292.

MOVABLES.—Goods; furniture; personalty.

Movables, in-door, (in a bequest). 17 Pick. (Mass.) 404.

Movables or goods, (may include bonds). 4 Wheel. Am. C. L. 386.

MOVING FOR AN ARGUMENT.—Making a motion on a day which is not motion day, in virtue of having argued a special case; used in the Exchequer after it became obsolete in the Queen's Bench.—Wharton.

Muck and manure, (in a covenant). 5 Barn. & Ald. 416, 418.

MULATTO.—The offspring of parents one of whom is white and the other black.

Mulatto, (defined). 18 Ala. 276, 720; 3 Har. & M. (Md.) 506; 7 Mass. 88; 1 Bail. (S. C.) 270, 275.

(in a statute). 13 Mass. 549, 553.

MULCT —MULCTA.—A fine; a pecuniary punishment.

Mulcta damnum famæ non irrogat (Cod. 1, 54): A fine does not involve loss of character.

MULIER. — Norman-French: mulier, from Latin, mulier, a wife Bract. 208 b; Co. Litt. 243 b.

In the old books "mulier" is applied to a son, daughter, brother, sister, &c., to signify one born in lawful wedlock, or legitimate, as opposed to a bastard. The expression was formerly of importance in what was called the case of "bastard eigné and mulier puisné" ("eldest son a bastard and younger son legitimate"), which occurred where a man had a bastard son, and afterwards married the mother and by her had a legitimate son. If the father died and the bastard entered on his land and died seized of it, so that it descended to his issue, the mulier puisné was barred of his right to the land. (Litt. § 399 et seq.) The doctrine seems to have been abolished by 3 and 4 Will. IV. c. 27, § 30. 2 Bl. Com. 248, n. (14). See BASTARD.

MULIERATUS. — A legitimate son.—Gloss.

MULIERTy.—[Lawful issue, because begotten e muliere (of a wife), and not ex concubina.

Co. Litt. 352.

MULLONES FŒNI.—Cocks or ricks of hay.—Cowell.

MULMUTIAN LAWS.—See Molmutian Laws.

MULNEDA.—A place to build a watermill.

MULTA, or MULTURA EPISCOPI.—A fine or final satisfaction, anciently given to the king by the bishops, that they might have power to make their wills; and that they might have the probate of other men's wills, and the granting of administration. 2 Inst. 291.

Multa conceduntur per obliquum, quæ non conceduntur de directo (6 Ch. 47): Many things are indirectly conceded which are not conceded directly.

Multa ignoramus quæ nobis non laterent si veterum lectio nobis fuit familiaris (10 Co. 73): We are ignorant of many things which would not be hidden from us if the reading of old authors was familiar to us.

Multa, in jure communi contra rationem disputandi, pro communi utilitate, introducta sunt (Co. Litt. 70): Many things contrary to the rule of argument are introduced into the common law for common utility.

Multa multo exercitatione facilius quam regulis percipies (4 Inst. 50): You will perceive many things much more easily by practice than by rules.

Multa non vetat lex, quæ tamen tacite damnavit: The law forbids not many things which yet it has silently condemned.

Multa transeunt cum universitate quæ non per se transeunt (Co. Litt. 12): Many things pass in the whole, which do not pass by themselves.

Multi multa, nemo omnia novit (4 Inst. 3-8): Many men have known many things; no one has known everything.

MULTIFARIOUSNESS. — Under the practice of courts of Chancery, a bill of complaint is open to a demurrer for multifariousness when it attempts to embrace too many objurgations or cumulations of suit. (Dan. Ch. Pr. 283.) Under the new English practice, a plaintif may include as many causes of action as he pleases in one writ, except in the case of actions for the recovery of land, actions by executors and trustees in bankruptcy, &c., and in the case of one action being brought for several claims which cannot be conveniently disposed of together. Rules of Court, xvii. See JOINDER, § 1.

MULTIFARIOUSNESS. (845) MUNICIPAL

Multifariousness, (defined). 44 Mo. 350. — (in bill in equity). 5 Paige (N. Y.) 160, 254; 15 Am. Dec. 427 n.; 7 Md. L. Rec., No. 8.

MULTIPARTITE.—Divided into several parts.

MULTIPLEPOINDING.—A proceeding in Scotch law, of the same nature as the English and American "interpleader" (q. v.)

Multiplex et indistinctum partit confusionem; et quæstiones quo simpliciores, eo lucidiores. (Hob. 335): Multiplicity and indistinctness produce confusion; and questions, the more simple they are, the more lucid.

Multiplicata transgressione crescat pœnæ inflictio (2 Inst. 479): Let infliction of punishment increase with multiplied crime.

MULTIPLICITY.—A bill in equity may be objectionable for an undue dividing or splitting up of a single cause of suit, and thus multiplying subjects of litigation. Equity discourages unreasonable litigation. It will not, therefore, permit a bill to be brought for a part of a matter only, where the whole is the proper subject of one suit. Upon a somewhat analogous ground, if an ancestor has made two mortgages, the heir will not be allowed to redeem one without the other; for in such a case, the equity of the heir, like that of the ancestor, is to redeem the whole or neither. Story Eq. Pl. 234.

MULTIPLY.—When a thing is divided into several parts, and something which was dependent on or annexed to it thenceforward becomes dependent on or annexed to each part of it, the accessory is said to be multiplied. Thus, if a copyhold tenement for which a heriot is due to the lord on the death of each successive tenant, is divided into parcels and conveyed to different persons, the heriot will be multiplied, i. e. a heriot will be due for each parcel. Elit. Copyh. 183, citing Attrec v. Scutt, 8 East 481. See APPORTIONMENT; ENTIRE.

MULTITUDE. — According to some old writers, an assembly of ten or more persons, but others claim that there is no fixed minimum number.

Multitude, (in a statute). 104 Mass. 597.

Multitudinem decem faciunt (Co. Litt. 257): Ten make a multitude.

Multitudo errantium non parit errori patrocinium (11 Co. 75): The multitude of those who err gives no excuse to error.

Multitudo imperitorum perdit curiam (2 Inst. 219): A multitude of ignorant persons destroys a court.

MULTO.—In old records, a wether sheep.

MULTO FORTIORI.—See A Fortiori.

Multo utilius est pauca idonea effundere quam multis inutilibus homines gravari (4 Co. 20): It is more useful to pour forth a few useful things than to oppress men with many useless things.

MULTURE.—A grist or grinding; the corn ground; also the toll or fee due for grinding.

MUMMING.—Antic diversions in the Christmas holidays, suppressed in Queen Anne's time. See Stat. 3 Hen. VIII. c. 9.

MUND.—Peace; whence mundbryc, a breach of the peace. Leg. H. 1 c. 37.

MUNDBYRD—MUNDEBURDE.—A receiving into favor and protection.—Cowell.

MUNERA.—Portions of lands distributed to tenants, and revocable at the lord's will, under the early feudal system.

MUNICIPAL.—Belonging to a city or municipal corporation.

MUNICIPAL BONDS.—Negotiable bonds issued pursuant to statutory authority, by a municipal corporation, to secure its indebtedness. Their payment, when due, is effected by means of taxation. See BOND, § 5.

MUNICIPAL CLAIMS, (does not apply to registered taxes). 72 Pa. St. 92.

MUNICIPAL CORPORATION.—

§ 1. In American law.—A public corporation, created by government for political purposes, and having subordinate and local powers of legislation; e. g. a county, incorporated town, city, etc. 2 Kent Com. 275.

§ 2. In English law.—A corporation consisting of all or part of the inhabitants of a town, and having the power and duty of enforcing the good rule and government of the place, including the lighting, cleansing, paving, and improving of the streets, the prevention of nuisances, &c. (Grant Corp. 16; 3 Steph. Com. 31 et seq.) Most municipal corporations (London being the principal exception) are regulated by the Municipal Corporations Act, 1835, (see the Municipal Corporations (New Charters) Act, 1877,) which fixes the qualification for the burgesses or members of the corporation, and provides for the election in each borough of a mayor, aldermen, and council; for the appointment of a watch committee to regulate the

police of the borough, and for the payment of

the expenses of the borough out of the borough

fund and rate. Most municipal corporations are

also the authorities for carrying out the pro-

visions of the Public Health Act, 1875, the

Artisans' Dwellings Act, 1875, and similar acts,

in their respective districts.

§ 3. Corporations regulated by the M. C. Act,

1835, are trustees of the corporate property for

the benefit of their respective boroughs. Grant

Corp. 108; Att.-Gen. v. Mayor of Brecon, 10 Ch.

D. 204. See Borough; Justice of the

Recorder.

Municipal corporation (defined). 7 Cal.

361; 16 Id. 222; 1 Dak. T. 247.

— (distinguished from "private corpora-

tion"). 84 Pa. St. 487, 493.

Municipal courts, (defined). 22 Cal. 473.

Municipal law.—See Law, § 3.

Municipal purposes, (in a statute). 43

Ala. 598.

Municipal regulation, (defined). 4 Crim.

Law Mag. 81.

Muniment.—Title deeds and other

documents relating to the title to land are

sometimes called "muniments," from the

Latin word munio, which signifies to defend

or fortify, because they enable the owner

to defend his estate.—Termes de la Ley.

Muniment-house, or Muni-

ment-room.—A house or room of

strength, in cathedrals, collegiate churches,

castles, colleges, public buildings, &c., purposely

made for keeping deeds, charters, writings, &c.

3 Inst. 170.

Munitions of war, (in a statute). 9 Cranch

(U. S.) 243.

Murage.—Money paid to keep walls in

repair.—Cowell.

Muratio.—A town or borough sur-

rounded with walls.—Jacob.

Murder.—The crime of unlawful

homicide with malice aforethought, (see

Homicide; Malice), as where death is

caused by an act done with the intention

to cause death or bodily harm, or which is

commonly known to be likely to cause

death or bodily harm. Thus, if A. finds

B. asleep on some straw and lights the

straw, whether he means to kill B., or

whether he means to do B. serious injury

without killing him, in either case, if B. is

burnt to death, A. is guilty of murder.

So, if A. shoots at B., intending to kill

him, and kills C. instead, A. is guilty of

murder.

§ 2. Murder is punishable by death

(q. v.); attempts to murder are punishable

by imprisonment for life or a term of

years. Steph. Cr. Dig. 144 et seq.; 1 Russ.

Cr. & M. 641 et seq.

§ 3. Self-murder.—A person who kills

himself in a manner which, in the case of

another person, would amount to murder,

is guilty of self-murder or suicide (q. v.)

See Felo de se.

Murder, (defined). 4 Dall. (U. S.) 145; 25

Cal. 361; 27 Id. 572; 41 Id. 96; 1 Dak. T. 458;

14 Bush 340; 5 Cush. (Mass.) 306; 8

Mich. 320, 337; 10 Id. 219; 2 Halst. (N. J.)

243; 5 Id. 174; 5 Cow. (N. Y.) 39, 51; 13

Wend. (N. Y.) 159, 167; 12 Phil. (Pa.) 533; 58

Pa. St. 10; 84 Id. 80; 4 Humph. (Tenn.) 136.

(what constitutes). 4 Dall. (U. S.)

428; 1 Wash. (U. S.) 463; 25 Ark. 405; 29 Id.

248; 56 Cal. 36; 33 Ia. 303; 49 Id. 182; 22

Ind. 1; 11 Bush (Ky.) 575; 101 Mass. 1; 30

Mich. 16; 69 Mo. 391; 2 Park. (N. Y.) Cr. 28;

19 Wend. (N. Y.) 615; Leach C. C. 112; 1

Moo. C. C. 334.

(what killing is not). 74 Ind. 1; 53

Vt. 560.

(distinguished from "manslaughter").

1 Hawks (N. C.) 78; 55 Pa. St. 10; 2 Va.

Cas. 78.

(in an indictment). 24 Ia. Ann. 493;

50 Wis. 516.

Murder in the first degree, (defined).

17 Cal. 389; 39 Id. 691; 43 Id. 552; Wright

(Ohio) 20; 2 Ashm. (Pa.) 41, 69; 75 Pa. St.

403; 18 Am. Dec. 770, 774 n., 784 n.

(what constitutes). 49 Cal. 167; 23

Ind. 281; 54 Mo. 153; 64 Id. 191, 319; 9

Humph. (Tenn.) 660; 1 Tex. App. 159, 501;

53 Vt. 377.

(what is not). 54 Ind. 128.

(distinguished from "murder in the

second degree"). 21 Cal. 17; 25 Id. 361; 34

Id. 211; 58 Pa. St. 10; 4 Humph. (Tenn.) 136;

53 Vt. 560.

Murder in the second degree, (defined).

52 Ala. 348; 39 Cal. 691; 18 Am. Dec. 770,

774 n., 784 n.

(what constitutes). 33 Iowa 270; 19

Ind. 170; 23 Id. 231.

Murderment.—An obsolete term for

murder.

Murdrum.—The secret killing of

another, also the amerciment to which the vill

wherein it was committed, or, if that were too

poor, the whole hundred, was liable. As to the

rates of compensation for murder among the

Anglo-Saxons, see 2 Hall. Mid. Agen 275.

Muritorium operatio.—The service

of work and labor done by inhabitants and

adjoining tenants in building or repairing the

walls of a city or castle; their personal service

was commuted into murage (q. v.).—Cowell.

Music.—See Copyright; Right of

Representation and Performance.

MUSSA.—A moss or marsh ground; or a place where sedges grow; a place overrun with moss.—Cowell.

M I s T R, (in a statute, when directory only). 1 Civ. I'ro. (N. Y.) 126.

— (in New York code). 61 How. (N. Y.) Pr. 225.

Munt vest in interest, (in New York revised statutes). 5 Paige (N. Y.) 463.

MUSTER-BOOK.—A book in which the forces are registered.—Termes de la Ley.

MUSTER-MASTER.—One who superintended the muster to prevent frauds. Stat. 35 Eliz. c. 4.

MUSTER ROLL.—The formal list of a body of soldiers, or of a ship's company.

Mustering into the service, (construed). 8 Allen (Mass.) 480.

MUTA-CANUM.—A kennel of hounds; one of the mortuaries to which the crown was entitled at a bishop's or abbot's decease. 2 Bl. Com. 426.

MUTATIS-MUTANDIS.—With the necessary changes in points of detail.

MUTE.—A prisoner is said to stand mute when, being arraigned for treason or felony, he either makes no answer at all, or answers foreign to the purpose, or with such matter as is not allowable, and will not answer otherwise. In the first case, a jury must be sworn to try whether the prisoner stands mute of malice (i. e. obstinately), or by visitation of God (e. g. being deaf or dumb). If he is found mute by visitation of God, the trial proceeds as if he had pleaded not guilty; if he is found mute of malice, or if he will not answer directly to the indictment, the court may order a plea of not guilty to be entered, and the trial proceeds accordingly. (4 Steph. Com. 391; Stat. 7 and 8 Geo. IV. c. 28.) In Reg. v. Berry (1 Q. B. D. 447) a plea of "not guilty" was ordered to be entered for a prisoner who stood mute by visitation of God.

MUTILATION.—Deprivation of a limb or any essential part. See MAYHEM.

MUTINY.—Open and violent resistance of their superior officers, by soldiers or seamen, or opposition to their lawful authority.

MUTINY ACT.—§ 1. The English Bill of Rights (Stat. 1 W. & M. (2) c. 2) declares that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. Therefore, to enable the army to be kept up, an act of parliament is annually passed authorizing this to be done. Formerly this annual act contained elaborate provisions for the enlistment, payment and billeting of soldiers, for the punishment of mutiny and desertion, and generally for the government of the army (2 Steph. Com. 589), and was hence called the Mutiny Act; but these provisions have recently been consolidated in one act, called the Army Discipline and Regulation Act, 1879; and, therefore, in the annual act it is sufficient to provide that the Army Discipline and Regulation Act, 1879, shall remain in force for one year.

§ 2. The Army Discipline and Regulation Act, 1879, has been supplemented and amended by various acts, especially the Regulation of the Forces Act, 1881, and has now been repealed by the Army Act, 1881, which consolidates its provisions with those of the amending acts.

Mutual accounts, (what constitutes). 2 Gr. (N. J.) 545; 17 Serg. & R. (Pa.) 347; 6 Wheel. Am. C. L. 472; 1 Chit. Gen. Pr. 777; 1 Eq. Cas. Abr. 8.

— (what are not). 15 Wend. (N. Y.) 554.

— (under statutes of limitation). 17 Cal. 344, 594; 35 Id. 122; 12 Ind. 174; 38 Me. 149 51 Id. 104; 5 Bosw. (N. Y.) 226.

Mutual combat, (defined). 46 Ga. 148, 158.

MUTUAL CREDITS — MUTUAL DEALINGS.—The phrase "mutual credits" used in the English Bankruptcy Acts denotes such dealings between two persons as must in their nature terminate, or have a tendency to terminate, in debts. (Robs. Bankr. 312; Chit. Cont. 785; Rose v. Hart, 8 Taunt. 449; 2 Sim. Lead. Cas. 296.) The "mutual credit clauses" in the acts provide that where there have been mutual credits, mutual debts, or other mutual dealings between the bankrupt and one of his creditors, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against any sum due from the other party, and the balance of such account, and no more, shall be claimed or paid on either side respectively. (Bankruptcy Act, 1869, § 39. See Bankruptcy Act, 1849, § 171.) The effect produced by the mutual credit clause is, therefore, a species of set-off (q. v.), but differs from the ordinary set-off between solvent persons in having for its object, not to prevent cross actions, but to avoid the injustice, which would otherwise arise, of compelling a creditor to pay the trustee in bankruptcy the full amount of the debt due from him to the bankrupt, while the creditor would perhaps only receive a small dividend under the bankruptcy on the debt due from the bankrupt to him. Robs. Bankr. 308, 314. See Astley v. Gurney, L. R. 4 C. P. 714; In re Winter, 8 Ch. D. 225.

MUTUAL.

(848)

MY.

Mutual credit, (within the Stat. 5 Geo II. c 30, § 28). 5 Barn. & Ald. 861, 866; 2 Brod. & B. 89, 96.

Mutual credits, (what constitute). 85 N. Y. 580; 1 Atk. 228, 230, 235; 1 Barn. & Ald. 471, 472; 1 Eng. Com L. 45; Holt 408; 2 J. B. Moo. 547; 1 P. Wms. 326; 4 Taunt. 888; 5 Id. 56; 8 Id. 156, 499; 3 T. R. 507, 509.

1 Barn. & C. 777, 783; 4 Eng. Com L. 22; 1 J. B. Moo. 451; 4 Id. 515; 5 Price 593; 4 Taunt. 775; 8 Id. 21.

(within 6 Geo. IV. c. 16, § 50). 1 Barn. & Ad. 521, 526.

(in a statute). 1 T. R 112; 4 Id. 211; Chit. Bills 740; 1 Chit. Gen. Pr. 140.

MUTUAL DEBTS.—Money due on both sides between two persons. (3 Bl. Com. 305)—See Counter-claim; Set-off.

Mutual debts, (defined). 1 Hempst. (U. S.) 155.

(what are). 8 Wend. (N. Y.) 113; 5 Wheel. Am. C. L. 322.

(what are not). 43 Conn. 80; 15 Mass. 415.

(in a statute). 2 Johns. (N. Y.) 150, 155.

Mutual demands, (what are). 2 Rand. (Va.) 449.

MUTUAL INSURANCE.—See Insurance.

MUTUAL MISTAKE.—See Mistake, § 10.

Mutual mistake, (defined). 45 Barb. (N. Y.) 478, 481.

Mutual open account current, (what is). 27 Ark. 343, 346.

MUTUAL PROMISES.—See Consideration, § 5; Promise.

MUTUAL TESTAMENT.—Wills made by two persons who leave their effects reciprocally to the survivor.

MUTUALITY.—

§ 1. Mutuality of assent.—In every agreement the parties must, as regards the principal or essential part of the transaction, intend the same thing, i. e. each must know what the other is to do; this is called "mutuality of assent." Chit. Cont. 13.

§ 2. Mutuality of obligation.—In a simple contract arising from agreement, it is sometimes the essence of the transaction that each party should be bound to do something under it. This requirement is called "mutuality." Thus, an agreement by A. to refer a question between him and B. to arbitration is not enforceable, unless B. also agrees to be bound by the award; and an agreement by C. with D. to learn a trade is not binding unless there is also an undertaking by D. to teach him. (Chit. Cont 14.) This may be called "mutuality of obligation"

§ 3. Mutuality of remedy.—Mutuality of remedy is where each party can enforce the contract against the other. Thus, a vendor of land can enforce specific performance of the contract by the purchaser, because the purchaser could have done the same to him. On the other hand, mutuality of remedy does not exist where one of the parties to a contract is under disability, or where it is required by the Statute of Frauds to be in writing, and he has not signed it, because, though he can enforce it, the other party cannot. Id. 13.

Mutuality, (of a contract, defined). 26 Md. 37.

Mutually agreed, (in a contract to carry freight). 10 East 311.

MUTATION.—The act of borrowing.

MUTUO.—To borrow.

MUTUS.—Silent, not having anything to say. See Mute.

MUTUS ET SURDUS.—Dumb and deaf.

MUTUUM.—A loan, whereby the absolute property in the thing lent passes to the borrower, it being for consumption, and he being bound to restore, not the same thing, but other things of the same kind. Thus, if corn, wine, money, or any other thing which is not intended to be returned, but only an equivalent in kind, is lost or destroyed by accident, it is the loss of the borrower; for it is his property, and he must restore the equivalent in kind, the maxim ejus est perietum, ejus est dominium — applying to such cases. In a mutuum the property passes immediately from the mutuor or lender to the mutuary or borrower, and the identical thing lent cannot be recovered or reclaimed. Jones Bailm. 64.

My, (in a will). 3 Watts (Pa.) 335.

My certificates, (in a will). 11 Wall. (U. S.) 382.

My children, (in a will, when excludes after-born children). 11 Johns. (N. Y.) 337.

My estate, (in a will). Myr. (Cal.) 133; 1 Jac. & W. 582, 585.

My family, (in a will). Turn. & R. 153, 158.

My half part, (in a will). 11 East 168.

MY.

(849)

NARRATIO.

My house and all that shall be in it at my death, (in a will). 11 Ves. 662; 8 Com. Dig. 468.

My nearest surviving relations, (in a will). 8 Com. Dig. 474.

My property, (in a will). 17 Johns. (N. Y.) 281.

My real and personal estate, (in a will). 4 Ves. 766.

My twenty-five shares, (in a will). 5 Ves. 461.

My watch, (in a will). 1 Atk. 416.

My wife and children, (in a will, excludes children of wife by former marriage). 20 Tex. 731.

MYNSTER-HAM.—Monastic habitation; perhaps the part of a monastery set apart for purposes of hospitality, or as a sanctuary for criminals.—Anc. Inst. Eng.

MYSTERY.—An art, trade, or occupation.—Cowell. See ADDITION.

Mystery, (what employments are). Stark. Cr. Pl. 55.

(housewifery is). 1 Browne (Pa.) 197.

MYTACISM.—In rhetoric, the too frequent use of the letter M.—Encycl. Lond.

N.

N. L.—See Non Liquet.

N.A.AM.—The attaching or taking of one's movable goods. It was called vif or mort, according to whether the chattels were living or dead.—Termes de la Ley.

N.AIL.—A lineal measure of two inches and a quarter.

NAKED.—See Nude.

Naked, (defined). 126 Mass. 46.

N.A.M.—(1) Distress; seizure.—Anc. Inst. Eng. (2) For; a word frequently used in introducing the quotation of a Latin maxim.

NAMATION.—The act of distraining or taking a distress.—Cowell.

NAME.—The discriminative appellation of an individual. Proper names are either christian-names, as being given at baptism, or surnames, from the father. (4 Co. 170. See Surname.) Names of persons not christened are surnames only. (1 Ld. Raym. 305. As to the name of a bastard, see Co. Litt. 36, and 1 Moo. C. C. 402.) As to the designation of parties to bills of exchange by the initials or some contraction of the christian-name, see 3 Wm. IV. c. 42, § 12. A man may have divers names at divers times, but not divers christian-names. (2 Bro. C. C. 170.) Any one may take on himself whatever surname or as many surnames as he pleases, without statutory license. See Falconer on Surnames, and 3 Mau. & Sel. 250. See, also, Misnomer; Partnership.

Name, (defined). 8 Cow. (N. Y.) 102, 106. (in a grant). 9 Cow. (N. Y.) 140.

Name, (mistake of, in a will). 3 Pick. (Mass.) 232.

(devise to one on condition of changing his). 1 W. Bl. 607.

(variance of a letter in). 3 Cai. (N. Y.) 219.

(middle letter is no part of). 1 Hill (N. Y.) 102; 5 Johns. (N. Y.) 84.

(use of wrong, in publication of marriage bans). 1 Barn. & Ad. 190; 1 Hagg. Cons. 394.

(title of dignity is part of). 1 Ld. Raym. 303.

(when misspelling is not fatal). 7 Serg. & R. (Pa.) 479; 1 Com. Dig. 60.

NAME AND ARMS CLAUSE.—The popular name in English law, for the clause, sometimes inserted in a will or settlement by which property is given to a person, for the purpose of imposing on him the condition that he shall assume the surname and arms of the testator or settlor, with a direction that if he neglects to assume or discontinues the use of them, the estate shall devolve on the next person in remainder, and a provision for preserving contingent remainders. 3 Dav. Con. 277.

Name, christian, (the law knows but one). 14 Pet. (U.S.) 322; 2 Cow. (N. Y.) 463.

Namesake, my, (legacy to). 19 Ves. 381.

NAMIUN,—A distress. 2 Inst. 140.

NAMIUN VETITUM.—An unjust taking of the cattle of another and driving them to an unlawful place, pretending damage done by them. 3 Bl. Com. 149. See Replevin.

NANTISSEMENT.—In French law, is the contract of pledge; if of a movable, it is called gage; and if of an immovable, it is called antichrèse.—Brown.

NARR.—A common abbreviation of narratio, (q. v.) A declaration in an action.—Jacob.

NARRATIO.—A count; a declaration.

VOL. II.

3D

NARRATIVE.

NARRATIVE.—In Scotland, that part of a conveyance which contains the description of the grantor, and person in whose favor the grant is made, and which states the cause (consideration) of granting.—Bell Dict.

NARRATOR.—A pleader, or reporter.—Cowell.

NARROW SEAS.—Those seas which run between two coasts not far apart. The term is sometimes applied to the English channel.—Wharton.

NASCITURUS.—Yet to be born; an unborn child. See Natus.

NATALE.—The state and condition of a man acquired by birth.

NATHWYTE.—See Laiwite.

NATI ET NASCITURI.—Born and to be born. All heirs, near and remote.

NATIO.—In old records, a native place.—Cowell.

NATION.—A people, distinguished from another people, generally by their language, origin, or government; an assembly of men of free condition, as distinguished from a family of slaves.—Wharton.

Nation, (defined). 6 Pet. (U. S.) 519.

NATIONAL BANK, or BANKING ASSOCIATION.—A banking institution created under the laws of the United States, as distinguished from a “State bank” which is organized under the law of the State in which it does business. See U. S. Rev. Stat. §§ 5133-5243; 8 Wall. (U. S.) 533.

NATIONAL CHURCH.—The Protestant Church of England, of which the sovereign is the head and supreme governor. 26 Hen. VIII. c. 1; 1 Eliz. c. 1.

NATIONAL CURRENCY.—Notes issued by national banks, and by the United States government. By many, the phrase “national currency” is limited to the first class of notes above mentioned, the term “greenbacks” being applied to the latter class.

National Currency of the United States, (in an indictment). 25 Gratt. (Va.) 965.

NATIONAL DEBT.—The money owing by government to some of the pub-

lic, the interest of which is paid out of the taxes raised by the whole of the public. See Fund, § 3.

National debt, (defined). 2 Steph. Com. 574.

NATIONALITY.—That quality or character which arises from the fact of a person's belonging to a nation or State. Nationality determines the political status of the individual, especially with reference to allegiance (q. v.), while domicile determines his civil status. Nationality arises either by birth or by naturalization (q. v.) See 8 Sav. Syst. § 346 where “nationality” is also used as opposed to “territoriality” (q. v.) for the purpose of distinguishing the case of a nation having no national territory, e. g. the Jews; Westl. Pr. Int. Law 5; Udny v. Udny, L. R. 1 H. L. (Sc.) 441.

NATIONS, LAW OF.—See International Law. The principal offences against the law of nations are: (1) Violations of safe conducts; (2) infringement of the rights of ambassadors; and (3) piracy. See the works of Grotius, Vattel, and others.

NATIVE CITIZEN.—See Citizen, § 1.

Natives, (defined). 2 Kent Com. 39.

NATIVI CONVENTIONARII. Villeins or bondmen by contract or agreement Leg. II. 1 c. 76.

NATIVI DE STIPITE.—Villeins or bondmen by birth or stock. —Cowell.

NATIVITAS.—The servitude, bondage, or villeinage of women.—Leg. Wm. l. See Nativi.

NATIVO HABENDO.—See De Nativo Habendo.

NATUS.—A servant born.—Spel. Gloss.

NATURA.—Nature.

Natura appetit perfectum; ita et lex (Job 14) : Nature desires perfection; so also law.

Natura non facit saltum ; ita, noo lex (Co. Litt. 238) ; Nature takes no leap ; so neither does law.

Natura non facit vacuum, neo lex supervacuum (Co. Litt. 79) : Nature makes no vacuum ; law no supervacuum.

NATUREÆ vis maxima; natura bis maxima (2 Inst. 564); The force of nature is greatest; nature is doubly greatest.

NATURAL AFFECTION.—That love which one has for his kindred. It is held to be a good consideration for certain purposes. See Consideration, § 7; Covenant to Stand Seized.

NATURAL ALLEGIANCE.—That perpetual attachment which is due from all natural-born subjects to their sovereign; it differs from local allegiance, which is temporary only, being due from an alien or stranger-born for so long a time as he continues within the sovereign’s dominions and protection. Fost. 184. See Allegiance, § 1.

NATURAL AND REASONABLE WEAR AND TEAR EXCEPTED, (in an agreement for the sale of property). Spenc. (N. J.) 544.

NATURAL-BORN SUBJECT.—See Allegiance; Citizens, § 1; Nationality; Naturalization, § 4.

NATURAL CHILD.—The child in fact; the child of one’s body. Some children are both the natural and legitimate offspring of a marriage, i. e. those duly born in wedlock. Some are the legitimate but not the natural offspring of a marriage, i. e. those who are born in wedlock, and never bastardized, although begotten in adultery and the natural children of a stranger. Some are natural children only, i. e. bastards, born out of wedlock, and those born in wedlock, who are bastardized, and hence the word is sometimes popularly used as though it were simply equivalent to bastard. (See Bastard.) The only natural obligation which the law imposes upon the parents of natural children is their maintenance. See 7 and 8 Vict. c. 101, and 8 Vict. c. 10; also, Saunders on Affiliation.

NATURAL DAY.—See Day, § 1.

NATURAL EQUITY.—That which is founded in natural justice, in honesty and right, and which arises ex æquo et bono.—Bouvier.

NATURAL FOOT.—One born an idiot (q. v.)

NATURAL FRUITS.—See Fructus Naturales.

NATURAL GUARDIAN, (when father is). 7 Wheel. Am. C. L. 168; 2 Kent Com. 217.—(when mother is). 2 Root (Conn.) 320.—(rights of). 6 Conn. 494; 1 Johns. (N. Y.) Ch. 4; 7 Wend. (N. Y.) 354; 15 Id. 631.

NATURAL HEIR, (in Indiana act of 1855). 9 Am. L. Reg. 747.

NATURAL HEIRS, (in a will). 19 Conn. 112; 78 N. C. 372.

NATURAL INFANCY.—A period of non-responsible life, which ends with the seventh year of a person’s age. See Capax Doli.

NATURAL LAW.—See Law, § 2, and note.

NATURAL LIBERTY.—The power of acting as one thinks fit, unrestrained by any other power than the law of nature. 1 Bl. Com. 125.

NATURAL LIFE.—The period between birth and natural death, as distinguished from civil death (q. v.)

NATURAL OBLIGATIONS.—Duties which have a definite object, but are not subject to any legal necessity.—Wharton.

NATURAL PERSONS.—Such as we are formed by the Deity, as distinguished from artificial persons or corporations, formed by human laws, for purposes of society and government.

NATURAL PRESUMPTION.—A presumption of fact arising from a probability discerned in a fact, as distinguished from a legal presumption. See Presumption, § 1.

NATURAL RIGHTS.—Those rights which supplement the direct rights of ownership (q. v.) by imposing duties on other persons. Thus, every owner of land has primâ facie the right to prevent his neighbors from polluting the air passing over his land, and from disturbing, diminishing, or polluting the water flowing through his land. He is also entitled to so much support from his neighbor’s land as is necessary to keep his own land at its natural level. These are called “natural

rights," as opposed to acquired rights,

such as easements, profits à prendre, franchises, &c. Some writers use the term

"natural rights" to include all rights

arising from ownership, (Phear Rts. W.

7,) but this is inconvenient and unnecessary. See Proprietary Rights. See the

various titles; also, Access ; Air; Navigation; Support; Water.

Naturale est quidlibet dissolvi eo

modo quo ligatur (Jenk. Cent. 66): It is natural for a thing to be unbound in the same way in which it was bound.

NATURALIZATION.—

§ 1. This takes place when a person

becomes the subject or citizen of a state

to which he was before an alien. The effect

of naturalization is that the naturalized

subject or citizen thereby acquires all

political and other rights, powers and

privileges, and becomes subject to all obli-

gations to which natural-born members

of the state are entitled and subject,

except that, according to English law, he

cannot divest himself of his obligations

towards the state of which he was for-

merly a subject, without the consent of

that state. See Expatriation.

§ 2. English procedure.—An alien

becomes a naturalized British subject by

obtaining a certificate of naturalization

from a secretary of state in accordance

with the provisions of the Naturalization

Act, 1870, which enlarges the powers given

by 7 and 8 Vict. c. 66; a special certificate

of naturalization may be obtained for the

purpose of quieting doubts as to the right

of a person to be a British subject (§ 7).

(Cutler Naturalization ; Block Dict. ; Holtz.

Encycl.) Since the passing of the above-

mentioned acts, naturalization by private

act of parliament, which was formerly the

only method of becoming naturalized (1

Bl. Com. 374), has become unusual save

in exceptional cases. Rep. on Natur.

App. 8.

§ 3. American procedure.—By the

constitution of the United States, (Art. I.,

§ 8,) the power to establish a uniform

system of naturalization is vested in

congress, and various laws have been

passed by that body from time to time, in

pursuance of this authority. See U. S.

Rev. Stat. §§ 2165–2174.

§ 4. The term “naturalization’ is also

sometimes applied to that operation of

law by which the children and grand-

children born abroad of natural-born sub-

jects or citizens, are themselves natural-

born subjects or citizens “to all intents,

constructions and purposes.” Stat. 7 Ann

c. 5; 13 Geo. III. c. 21 ; as to the proper

construction of the acts, see Westl. Pr Int.

Law 11. See Allegiance, § 1; Denizen;

Expatriation; Nationality.

Naturalization, (power of, is exclusively

in congress). 2 Wheat. (U. S.) 259, 269

Naturalized, (femme covert may be without

her husband's consent). 16 Wend. (N. Y.) 617.

NATURALIZED CITIZEN.—One

who, being an alien by birth, has received

citizenship under the constitution and

laws of the United States.

Nature, guardian by, (rights of). 2

Wend. (N. Y.) 153.

Nature of a will, (writing in). 1 P. Wms.

741, 742.

Nature of interest, (in statute, when in-

cludes quantity). Wilberf. Stat. L. 111.

Nature or kind soever, (in a will). 1 P.

Bl. 223; 6 T. R. 610.

Natus.—Born, as distinguished from nas-

citurus, about to be born.

Nauclerus.—In the civil law, the

master or owner of a merchant vessel.—Cide.

Naufrage.—Shipwreck.

Naulage.—The freight of passengers in

a ship.—Johnson; Webster.

NautaE.—Sailors; carriers by water.

Navagium.—A duty on certain tonnage

to carry their lord's goods in a ship. 1 Mon.

Ang. 922.

NAVAL.—Appertaining to the navy

(q. v.)

NAVAL COURTS.—Courts held abroad

in certain cases to inquire into complaints by the

master or seamen of a British ship, or as to the

wreck or abandonment of a British ship. A

Naval Court consists of three, four, or five mem-

bers, being officers in her majesty's navy, com-

sular officers, masters of British merchant ships

or British merchants. It has power to superin-

tend the inquiry is held, to discharge any of the men,

men, to decide questions as to wages, send home

offenders for trial, (Mer. Sh. Act, 1851, § 261 et

seq.; Mand & P. Mer. Sh. 103,) or try certain

offenses in a summary manner. Mer. Sh. Act

1855, § 28.

NAVAL

(853)

NAVIGATION.

NAVAL COURTS-MARTIAL.—

Tribunals for the trial of offenses arising

in the management of public war vessels.

NAVAL OFFICER.—(1) A customs

officer of the United States, charged with

the duty of estimating customs duties,

countersigning permits, clearances, &c.,

certifying the returns of the collectors,

and other similar duties. (See U. S. Rev.

Stat. § 2626.) (2) One of the officers of a

man-of-war.

NAVIGABLE—NAVIGATION.—

§ 1. The right of navigation is the right

of the public to use an arm of the sea, a

river, or other piece of water, as a high-

way for shipping, boating, &c., including

the right to anchor in it. (Gann v. Free

Fishers of Whitstable, 11 H. L. C. 192;

Couls. & F. Waters 396.) It is a right of

way, and not a right of property, and,

therefore, the owner of the bed of a river

over which the public have by user ac-

quired a right of navigation may make

any erection on it which does not interfere

with the navigation warranted by that

user. (Orr Ewing v. Colquhoun, 2 App.

Cas. 839; Phear Rts. W. 53. See HIGH-

WAY.) In the case of estuaries and navi-

g able tidal rivers, however, the beds of

which are primâ facie vested in the gov-

ernment the ownership of the soil is

wholly subject to the public right of navi-

gation, and no part of it can be used so

as to derogate from or interfere with that

right. (Couls. & F. Waters 413.) A river

which is subject to a right of navigation is

said to be “navigable.” As to navigation

on the sea, see HIGH SEAS.

§ 2. The question whether a river is nav-

igable or not seems to depend partly on

its size and the formation of its bed, and

partly on the use to which it has been put.

If a river will admit ships, and it has been

used for shipping purposes by the public,

it is a navigable river, whether it be tidal

or non-tidal, and whether it flow through

the sovereign. (See Hale De Jur. Mar.

part 1. c. 3; Lyon v. Fishmongers’ Co., 1

App. Cas. 662; Original Hartlepoole Col-

liries Co. v. Gibb, 5 Ch. D. 713.) As a

rule, however, an arm of the sea or a

tidal river with a broad and deep channel

is navigable. Couls. & F. Waters 413.

§ 3. Where the public have acquired the

right of navigation on a private or non-

tidal river, the original exclusive right of

the riparian owners to fish in it is not

thereby affected, in England. Id. 59. See

FISHERY.

§ 4. Obstructing the navigation of a

navigable water is a public nuisance. Id.

421. See NUISANCE.

NAVIGABLE, (defined). 28 Ind. 257, 270 ; 5

Wend. (N. Y.) 460 ; 23 Ohio St. 523.

NAVIGABLE RIVER, (defined). 6 Cow. (N.

Y.) 518, 528 ; 1 Campb. 517 n.

(what is). 3 Mass. 267 ; 5 Pick.

(Mass.) 199 ; 3 Greenl. (Me.) 269 ; 7 Me. 273 ;

42 Pa. St. 219, 230 ; 1 McCord (S. C.) 580 ; Ang.

Waterc. § 535 ; 2 Barn. & Ald. 662 ; 1 Marsh.

313 ; 5 Taunt. 705 ; 7 Com. Dig. 291.

(what is not). Sax. (N. J.) 187 ; 2

Stockt. (N. J.) 211 ; 2 Binn. (Pa.) 475, 479 ; 4

Barn. & C. 598.

(is a public highway). Sax. (N. J.)

(rights of the public in). 13 Wend.

(N. Y.) 355 ; 8 Wheel. Am. C. L. 369.

(rights of owners of land on). 5 Paige

(N. Y.) 143, 157 ; 17 Wend. (N. Y.) 591 ; 7

Com. Dig. 781.

(right of fishing in). 2 Conn. 481 ; 17

Johns. (N. Y.) 211 ; 20 Id. 98 ; 1 Wend. (N. Y.)

237 ; 5 Wheel. Am. C. L. 414.

NAVIGABLE STREAM, (what is). 1 McLean

(U. S.) 337 ; 3 Metc. (Mass.) 202 ; 21 Pick.

(Mass.) 344 ; 2 Dev. (N. C.) L. 30 ; 2 Swan

(Tenn.) 9.

(what is not). 28 Ind. 257, 270 ; 50

Me. 479 ; 6 Barb. (N. Y.) 265.

NAVIGABLE WATERS, (defined). 1 Pick.

(Mass.) 180, 181.

(synonymous with “tide waters”).

108 Mass. 447.

(not synonymous with “natural

streams”). 1 Newb. (U. S.) Adm. 101.

(what are). 20 Conn. 227 ; 108 Mass.

436 ; 19 N. Y. 523.

(what are not). 20 Conn. 217.

(in United States constitution). 3

Cow. (N. Y.) 748, 755.

(In Comp. L. § 5944). 8 Mich. 320.

NAVIGABILITY, (the test of). 3 Iowa 1 ; 3

Dev. (N. C.) L. 59.

NAVIGATION, (defined). 9 Barn. & C. 820.

(“commerce” comprehends). 9 Wheat.

(U. S.) 190, 215.

(in United States revised statutes). 9

Ben. (U. S.) 339.

NAVIGATION ACTS.—Various stat-

utes (especially 12 Car. II. c. 18) passed for the

encouragement and protection of British ship-

ping by excluding foreign ships from trading

with British colonies and even with Great Brit-

ain. They have now been almost wholly re-

pealed, the principal exceptions being certain

provisions designed to enforce reciprocity in

commerce between British and foreign countries,

i. e. to prevent British shipping from being

placed at a disadvantage in foreign countries ;

for this purpose the privy council has power to impose retaliatory restrictions and duties on foreign shipping. 3 Steph. Com. 143 ; Stat. 16 and 17 Vict. & 324 et seq.; Customs Consolidation Act, 1876.

NAVIGATION, RULES OF.— The sailing and steering rules which prescribe the course to be taken by sailing vessels and steamships upon meeting each other, especially when there is any risk of collision between them. These rules have been established in England partly by statute, partly by the Trinity House, and partly by the Board of Trade. (Kay Sh. & S.; Maud & P. Mer. Sh ) For the American rules consult the revised statutes of the United States, and the cases referred to in Rap. Fed. Ref. Dig., title COLLISION.

NAVY.—An assemblage of ships, commonly ships of war; a fleet; the warships, and their armaments, used for the defense of a nation, or waging its wars, upon the sea.

NAVY, (in a libel). 1 Samd. 243 n.

(in a treaty). 6 How. (U. S.) 92,100.

NAVY BILLS.—Bills drawn by officers of the English navy for their pay, &c. It is a felony to forge them. 11 Geo. IV. and 1 Will. IV. c. 20, & 83.

NAVY DEPARTMENT.—One of the executive departments of the general government of the United States, presided over by the secretary of the navy (see CABINET), and having in charge the defense of the country by sea, by means of ships of war and other naval appliances.

NAVY YARD, (includes what). 1 Hughes (U. S.) 588.

NAZIRANNA.—A sum paid to government as an acknowledgment for a grant of lands, or any public office.—Encycl. Lond.

NE.—Not. A Latin negative occurring in several maxims and phrases, such as the following—

NE ADMITTAS.—That you admit not. A prohibitory writ directed to the bishop at the request of the plaintiff or defendant, where a quare impedit is depending, when either party fears that the bishop will admit the other’s clerk during the suit between them; it ought to be issued within six calendar months after the avoidance, before the bishop may present by lapse; for it is in vain to sue out this writ when the title to present has devolved upon the bishop.—F. N. B. 37.

NE BAILA PAS.—He did not deliver. A plea by the defendant in detinue.

NE DISTURBA PAS.—The general issue in quare impedit. It simply denied that the defendant obstructed the presentation, and was adapted to no other ground of defence.

NE DONA PAS, or NON DEDIT.— The general issue in a formedon, now abolished. It denied the gift in tail to have been made in manner and form as alleged; and was, therefore, the proper plea, if the tenant meant to dispute the fact of the gift, but did not apply to any other case. 5 East 289.

NE EXEAT.—A writ which issues from a court of equity to restrain a person from going out of the country without the leave of the court. It is a high prerogative writ, which was originally applicable, in England, to purposes of state only, but was afterwards extended to private transactions. (Dan. Ch. Pr. 1518; Hunt. Suit 145; Story v. Story. 1 Atk. 15 Eq. 220; Beawm. Ne Ex.; Rules of Court (August, 1875), r. 10.) It is employed when a person, against whom another has an equitable claim for a sum of money actually due, is about to leave the country for the purpose of evading payment, and the absence of the defendant would materially prejudice the plaintiff in the prosecution of his action. (Draper v. Beyer, 13 Ch. D. 242. See Debtors’ Act, 1869, & 2.) In American practice, it is little more than a mere process of holding to bail, and in New York has been altogether abolished. A simple order of arrest being considered an equally sufficient remedy.

NE INJUSTE VEXES. A writ founded on Magna Charta that lay for a tenant distressed by his lord, for more services than he ought to perform; and it was a prohibition to the lord unjustly to distrain or vex his tenant; in special use it was where the tenant had prejudiced himself by doing greater services or paying more rent, without constraint, than his needed; for, in that case, by reason of the lord's seisin, the tenant could not avoid it by averrry, but was driven to his writ for remedy. 4 N. 10. Abolished by 3 and 4 Wm. IV. c. 27, & 36

NE LUMINIBUS OFFICIATUR.—A servitude restraining the owner of a house from obstructing the light of his neighbor.

NE RECIPIATUR.—A replet entered by a defendant to prevent a plaintiff from trying his cause at a certain sittings, where the cause was not entered in due time. It. 43, II. T. 1853.

NE RECTOR.

NE RECTOR PROSTERNAT ARBORES.—The Stat. 35 Edw. I. s. 2, prohibiting rectors, i. e. parsons, from cutting down the trees in churchyards. In Rutland v. Green, 1 Keb. 557, it was extended to prohibit the opening new mines and working the minerals therein.—Brown.

NE RELISSA PAS.—He did not release. A replication to defendant's plea of release.

NE UNQUES ACCOUPLE IN LOYAL MATRIMONIE.—A plea whereby a tenant in the real action of dower unde nihil, controverted the validity of the defendant's marriage with the person out of whose estate she claimed dower. To this plea, the defendant replied that she was accoupled in lawful matrimony at A., in such a diocese, upon which a writ issued to the bishop of such diocese, requiring him to certify the fact to the court. Co. Ent. 180.

NE UNQUES EXECUTOR. — The plea by which, under the common law practice, a person sued as executor of a deceased person denies that he filled that office—similarly with the plea ne unques administrator. Wms. Ex. 1794.

NE UNQUES SEISIE QUE DOWER.—A plea in dower which was often called the "general issue," but it did not seem to fall strictly within the definition of that term. It did not, properly speaking, contain any denial or traverse of the count, and must, therefore, be considered as an anomaly or exception in the system of pleading. See Com. L. P. Act, 1860, §§ 25, 27.

NE VARIETUR.—That it be not changed. A phrase sometimes written by a notary upon a bill or note, the better to identify it. Its negotiability is not thereby diminished.

Near, (in a statute). 1 Cai. (N. Y.) 177; 18 Johns. (N. Y.) 397; 19 Wend. (N. Y.) 56; 1 W. Bl. 20; Dwar. Stat. 748; Willierf. Stat. L. 249.

(in subscription of stock). 44 Mo. 197, 202.

(in a will). 1 Moo. 274.

Near an election ground, (in a statute). 3 Heisk. (Tenn.) 315.

Near, at, in or, (in a devise). 3 Barn. & Ad. 453.

Near, at or, (in a charter). 5 Allen (Mass.) 221.

Near the mouth of the river, (in a call). 8 Pet. (U. S.) 84.

Near open port, (in insurance policy). 7 Johns. (N. Y.) 303.

Near the place, (in a statute). 14 East 267.

Near relations, (in a will). 2 Ves. Sr. 526; 2 Com. Dig. 655.

Near to such fits, (in a plea). Willes 362.

Nearest of kin, (who is). 1 Ld. Raym. 684; 1 Salk. 251.

Nearest, (in a statute). 105 Mass. 304.

Nearest of kin, (in a deed). 3 Barn. & Ald. 474.

NECCESSARIES.

Nearest of kin, (in a will). 8 Jur. 161.

Nearest of kin of my own family, (in a will). 5 Myl. & C. 108.

Nearest of my kindred, (in a will). 15 Ves. 92.

Nearest public thoroughfare, (in licensing act). 1 Q. B. D. 1, 3.

Nearest relations, (in a will). 1 Taunt. 269.

Nearest relative, (in a will). Amb. 70.

Nearly, (in a grant). 2 Wheat. (U. S.) 211.

Nearly as possible, as, (in a declaration of the performance of a covenant). 8 Wend. (N. Y.) 399.

Nearly two acres, (in a description of land). 4 Leigh (Va.) 627.

NEAT, or NET.—The exact weight of a pure commodity alone, without the cask, bag, dross, &c. See Net Price; Net Profits.

Neat cattle.—Oxen or heifers.

Neat cattle, (defined). 32 Tex. 479.

Neat cattle, (in a promissory note). 1 N. H. 95; 7 Johns. (N. Y.) 321.

NEAT-LAND.—Land let out to the yeomanry.—Cowell.

Neat profits, (in an agreement). 13 East 538, 543.

Nec tempus nec locus occurrit regi (Jenk. Cent. 190): Neither time nor place affects the king.

NECATION.—The act of killing.

NECESSARIES.—

§ 1. Infant.—Notwithstanding the general rule that an infant is incapable of binding himself by a contract, he may make a contract for necessaries: and the word "necessaries" is not confined in its strict sense to such articles as are necessary to the support of life, but extends to articles fit to maintain the particular person in the state, degree and station of life in which he is. Co. Litt. 172 a; Chit. Cont.138; Poll. Cont. 46 ; Peters v. Fleming, 6 Mees. & W. 46; Ryder v. Wombwell, L. R. 4 Ex. 32. See Infant.

§ 2. Lunatic.—The same doctrine applies to lunatics. Pope Lun. 239; Poll. Cont. 74; Baxter v. Earl of Portsmouth, 5 Barn. & C. 170; 7 Dowl. & Ry. 614.

§ 3. Married woman.—As a general rule, every wife has an implied authority to contract with tradesmen for necessaries suitable to the degree and estate of her husband, so as to make him liable to the

NECESSARIES.

(856)

NECESSARY.

tradesmen, unless he has sufficiently supplied her with articles of the kind in

question, or unless she has a separate income. If the husband and wife are

living together, this authority is implied, in the case of ordinary household neces-

saries, from the usual practice of persons in the particular class of life, according to

which a wife has the management of such matters; if, therefore, the husband wishes

to put an end to this authority, he must give notice to the tradesmen that it is

withdrawn. But this principle does not apply to such things as dresses, jewelry,

&c.; and, therefore, the husband need not give notice to the tradesmen that his wife

has no authority to pledge his credit for such things, unless, by his previous con-

duct (as by habitually allowing his wife to purchase such things on credit and by pay-

ing for them), he has given her an implied authority to do so. Where, however, the

husband turns the wife out of doors, or so conducts himself that she is obliged to

leave him, he is under a legal duty to maintain her; and if he does not do so,

she has power to provide for herself at his expense, by pledging his credit for neces-

saries, such as food, apparel, lodging, &c. And as this authority is conferred on her

by the law, and not by the husband, he cannot revoke or destroy it. (Debenhami

v. Mellon, 5 Q. B. D. 398; S. C., 6 App. Cas. 24.) The older authorities (Manly v.

Scott, Montague v. Benedict, Jolly v. Rees, &c.,) will be found fully discussed in 2 Sm.

Lead. Cas. 429.

§ 4. Merchant shipping.—In the case of ships, the term "necessaries" means

such things as are fit and proper for the service in which the ship is engaged, and

such as the owner, being a prudent man, would have ordered if present; e. g. an-

chors, rigging, repairs, victuals. (Maude & P. Mer. Sh. 71, 118.) The master may

hypothecate the ship for necessaries supplied abroad so as to bind the owner. Id.

68. See Bottomry; Respondentia.

§ 5. Criminal law.—In criminal law, the willful neglect to provide necessaries

for children or apprentices is a misde-

meanor. Stat. 24 and 25 Vict. c. 100, § 26; 31 and 32 Vict. c. 122, § 37. See, also, the

statutes passed to prevent parents from allowing their children to become charge-

able to the parish. 2 Steph. Com. 290 et seq.; and consult the statutes of the sev-

eral States.

Necessaries, (defined). 18 Conn. 423; 5 Bush (Ky.) 61; 38 Iowa 166.

(what are, generally). 31 Conn 306; 42 Id. 203; 9 Allen (Mass.) 106; 54 N. H. 539; 7 Serg. & R. (Pa.) 259, 260.

(what are not). 40 Conn. 75; 1 N. Y. Leg. Obs. 322.

(for which husband is chargeable). 57 Ala. 320; 17 B. Mon. (Ky.) 555, 556; 7 Bush (Ky.) 157; 2 Metc. (Ky.) 253; 3 Id. 331; South. (N. J.) 773; 1 Mod. 124, 139.

(for an infant, what are). 12 Cush. (Mass.) 512; 3 Wheel. Am. C. L. 341; 6 Id. 41; 7 Id. 32, 113; 3 Car. & P. 114; 2 Esp. 211; 1 Holt 77; 1 St. 168, 173.

(liability of infant for). 70 N. C. 110; 7 Wheel. Am. C. L. 183; Cro. Jac. 491; Reeve Dom. Rel. 227; Long Sales 4.

(for a ship). 7 Ben. (U. S.) 418; 4 Barn. & Ald. 352; L. R. 1 A. & E. 20; 3 Id. 522.

(in a bill of sale of a vessel). 3 Kent (N. Y.) 363.

(in bankrupt act). 5 Ben. (U. S.) 230; 2 Low. (U. S.) 180.

Necessaries furnished him or his fam-

ily, (in a statute). 61 Me. 523.

Necessarium est quod non potest aliter se habere (Bacon): That which is

necessary cannot be otherwise.

Necessary, (defined). 2 A. K. Marsh. (Ky.) 75, 80; 8 Allen (Mass.) 1, 6; 2 Mo. App. 105, 115.

(in railroad charter). 9 C. F. Gr. (N. J.) 223; 6 Vr. (N. J.) 537; 7 Id. 95, 108.

(in a statute). 27 Ind. 191; 4 Cush. (Mass.) 359; 8 Vr. (N. J.) 61; 15 N. Y. 9, 168

(not synonymous with "indispensable"). 2 Duv. (Ky.) 26.

(in constitution of United States). 23 Ind. 141.

(equivalent to "public convenience requires"). 5 R. I. 325.

(means "reasonably necessary"). 12 R. I. 227, 232.

Necessary and proper, (in United States constitution). 4 Wheat. (U. S.) 316, 413.

Necessary and useful for public or private purposes, (in railroad act). 3 Pittsb.

(Pa.) 504.

Necessary apparatus, (defined). 7 J. J. Marsh. (Ky.) 113.

Necessary carriage, (defined). 3 Met. 191.

Necessary carriage, (in a statute). 112 Mass. 1, 3; 18 Johns. (N. Y.) 242.

Necessary disbursements, (includes what). 3 How. (N. Y.) Pr. 280.

(in a statute). 21 Wend. 54.

Necessary domicile. — See Domicile, §§ 5, 6.

Necessary expenses, (in a statute). 4 Pet. (U.S.) 171.

NECESSARY.

(857)

NEED.

Necessary for support of life, (in a statute). 24 Conn. 338, 346.

Necessary for supporting life, (in a statute). 43 Conn. 528.

Necessary implication, (defined). 1 Mc-Cart. (N. J.) 70; 1 Ves. & B. 422, 466.

Necessary joiner's work, (what includes). 5 Mart. (La.) 336.

Necessary outgoings, (which trustee may deduct). L. R. 1 Ex. 288.

Necessary provisions, (in a statute). 16 Gray (Mass.) 211.

Necessary repairs, (what are). 3 Sumn. (U. S.) 223 ; Sax. (N. J.) 123, 139 ; 1 Ball & B. 385 ; 1 Bos. & P. 303, 305.

Necessary team, (physician's horse is). 5 How. (N. Y.) Pr. 288.

Necessary tools of trade, (in a statute). 2 Whart. (Pa.) 26, 31.

NECESSITAS.—Necessity (q. v)

NECESSITAS CULPABILIS.— A blamable necessity. As the necessity which compels one to kill another in self defense. See Homicide, § 3.

Necessitas est lex temporis et loci (Hale P. C. 54): Necessity is the law of time and place.

Necessitas excusat aut extenuat delictum in capitalibus, quod non operatur idem in civilibus (Bacon): Necessity excuses or extenuates a delinquency in capital cases, which has not the same operation in civil cases.

Necessitas facit licitum quod alias non est licitum (10 Co. 61): Necessity makes that lawful which otherwise is not lawful.

Necessitas inducit privilegium quoad jura privata (Bac. Max. 25): Necessity gives a privilege with reference to private rights. The necessity involved in this maxim is of three kinds, viz.: (1) Necessity of self-preservation; (2) of obedience; and (3) necessity resulting from the act of God, or of a stranger.—Noy's Max. 32.

Necessitas non habet legem (Plowd. 18): Necessity has no law.

Necessitas publica major est quam privata (Bacon): Public necessity is greater than private. "Death," it has been observed, "is the last and furthest point of particular necessity, and the law imposes it upon every subject, that he prefer the urgent service of his king and country before the safety of his life."—Noy's Max. 34.

Necessitas quod cogit, defendit (Hale P. C. 54): Necessity defends what it compels.

Necessitas sub lege non continetur, quia quod alias non est licitum necessitas facit licitum (2 Inst. 326): Necessity is not restrained by law; since, what otherwise is not lawful, necessity makes lawful.

Necessitas vincit legem ; legum vincuia irridet (Hob. 144): Necessity overcomes law ; it derides the fetters of laws.

NECESSITY.—

§ 1. A constraint upon the will, whereby a person is urged to do that which his judgment disapproves, and which, it is to be presumed, his will (if left to itself) would reject. A man, therefore, is excused for those actions which are done through unavoidable force and compulsion.

§ 2. Compulsion or necessity may arise (1) from civil subjection ; (2) from duress per minas; (3) from the choice of the less pernicious of two evils, one of which is unavoidable, or (4) from want or hunger, which is, however, no legitimate excuse. 4 Bl. Com. 27.

Necessity, (defined). 1 Blatchf. & H. (U. S.) 465, 470; 56 Miss. 36; 47 Vt. 28, 32.

(nearly synonymous with "expediency"). 7 Cow. (N. Y.) 583, 606.

(when it will excuse a violation of the law). 3 Wheat. (U. S.) 68.

(in a trustee's bond). 10 Johns. (N. Y.) 359.

(right of way from). 2 McCord. (S. C., 444; 1 Saund. 323 n.

NECESSITY, HOMICIDE BY.— A species of justifiable homicide, because it arises from some unavoidable necessity, without any will, intention or desire, and without any inadvertence or negligence in the party killing, and, therefore, without any shadow of blame. As, for instance, by virtue of such an office as obliges one, in the execution of public justice, to put to death a malefactor who has forfeited his life to the laws of his country. But the law must require it, otherwise it is not justifiable. 4 Bl. Com. 178.

Necessity, moral, (distinguished from a "legal" or "physical" necessity). 4 Car. & P. 276, 282.

Necessity or charity, (in Sunday law). 55 Ga. 126, 128; 31 Ind. 189; 65 Me. 34; 4 Cush. (Mass.) 243 ; 17 Am. Rep. 119, 221 ; 19 Id. 111, 306, 431 ; 20 Id. 673 ; 21 Id. 533.

NECK-VERSE.—The Latin sentence miserere mei Deus, (Ps. li. 1,) because the reading of it was made a test by which to distinguish those who, in presumption of law, were qualified in point of learning, and admissible to benefit of clergy (q. v).—Wharton.

Need, (in a will). 107 Mass. 474.

NEEDFUL.

(858)

NEGLIGENCE.

Needful, (authority to attorney to do what is). 4 Esp. 66.

NEFAS.—Wrong; contrary to right, or the divine law. The opposite of fas (q. v)

Negatio conclusionis est error in lege (Wing. 268): The denial of a conclusion is error in law.

Negatio destruit negationem et am-bæ faciunt affirmativum (Co. Litt. 146): A negative destroys a negative, and both make an affirmative.

Negatio duplex est affirmatio: A double negative is an affirmative.

NEGATIVE.—In general, a negative cannot be proved or testified by witnesses. (2 Inst. 652.) But this rule does not apply where one party charges another with a culpable omission or breach of duty. In such a case, the person who makes the charge is bound to prove it, though it may involve a negative, for it is one of the first principles of justice not to presume that a person has acted illegally till the contrary is proved. Where the presumption of law is in favor of a defendant, then the plaintiff must disprove the defense, though he may have to prove a negative. 1 Phil. Ev. c. vii. § 4.

NEGATIVE AVERMENT.—As opposed to the traverse or simple denial of an affirmative allegation, a negative averment is an allegation of some substantive fact, e. g. that premises are not in repair, which although negative in form is really affirmative in substance, and the party alleging the fact of non-repair must prove it.—Brown.

NEGATIVE CONDITION.—A condition where the thing which is the subject of it must not happen.—Bouvier.

NEGATIVE PREGNANT.—In pleading, a negative pregnant is where a person gives an evasive answer to an allegation of his opponent by answering it literally, without answering the substance of it. Thus, if it is alleged that A. received a certain sum of money, and he denies that particular amount, this is a negative

pregnant, because the substance of the allegation is the receipt of some money, and not the particular amount received. A. should, therefore, answer either that he did not receive any money at all, or state how much he received. Similarly, when something is alleged to have happened under certain circumstances, it is not sufficient to deny that it happened under those particular circumstances; but the party must state whether it happened at all.

NEGATIVE STATUTE.—A statute which is expressed in negative terms; one which prohibits the doing of a thing, or declares what shall not be done.

Negative words, (in a statute). 7 Barn. & C. 12; 9 Dowl. & Ry. 772.

NEGGILDARE.—To claim kindred.—Jacob.

Neglect, (defined). 54 N. Y. 262.

(what is). 2 Grant (Pa.) Cas. 60, 65.

(as meaning “culpable neglect”). 2 Dowl. & Ry. 238.

Neglect or refuse, (in a deed). 4 Cush. (Mass.) 135.

Neglect or refuse to pay, (in a statute). 6 Gray (Mass.) 224.

NEGLIGENCE.—

§ 1. Negligence is want of proper care, and may consist in doing something which ought not to be done, or in not doing something which ought to be done.* The legal effect of negligence is either civil or criminal.

In civil law, negligence may operate either to create or to defeat a right of action.

§ 2. Towards strangers.—Negligence which creates a right of action in a stranger of tort or injury giving rise to a right to damages, and may exist either (1) where the parties are strangers, or (2) where they stand in a special relation to one another.

To the first class belong those cases where one person by want of care in the use of his own property, or in the pursuit of his own private advantage or pleasure, causes injury to some one else. (Comyn. Neg.

• See Smith v. L. & S. W. Rail. Co., L. R. 5 C. P. 102; Underh. Torts 135. Mr. Campbell (Law of Negligence, passim.) follows Austin in defining negligence as the state of mind of the doer or omiter; but in ordinary parlance negli-

gence means both the state of mind and the act or omission, and there is no reason why it should not. One without the other would give no right of action.

ings in a bad state of repair, is liable for any injury caused thereby to a person having a right to be in or near them.* So where a man's land is subject to an easement for the support of the buildings on his neighbor's land, and he excavates his land, so that the buildings are injured, he is liable to an action, no matter how carefully he may have done it; hence, this kind of negligence (meaning the invasion of a jus in rem) is sometimes called "negligence in law," to distinguish it from "negligence in fact." Gale Easm. 394.

§ 3. Arising from contract—Slight, ordinary, and gross.—To the second class belong those cases in which a person by entering into a contract with another puts himself under an obligation to exhibit a certain degree of care, and fails to do so, whether the obligation is created by the contract itself or is imposed by law. It is with reference to these cases that the division of negligence into slight, ordinary and gross, becomes important. Thus, the general rule in the law of bailment (q v.) is that when a bailment is made for the sole benefit of the bailee, he is liable for slight negligence; when it is made for the benefit of both, he is liable for ordinary negligence; and when it is made for the sole benefit of the bailor, the bailee is only liable for gross negligence. (Coggs v. Bernard, 1 Sm. Lead. Cas. 147.) Ordinary negligence is the want of that care which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would presumably have exercised under the circumstances of the particular case (Smith v. L. & S. W. Rail. Co., L. R. 5 C. P. 102); and slight negligence is the want of a greater degree of care.

§ 4. Gross negligence in concreto.—The term "gross negligence" is chiefly used to mean, not that the person accused of it has used less care than a reasonable man would have used, but that he has used less care than he himself would presumably have used if he had been acting in his own affairs, so that what would be gross negligence in a prudent man may not be so in a reckless one.

man may not be so in a reckless one. Thus, if a man for his own convenience places goods for safe-keeping, without reward, with a man who "is an idle, careless, drunken fellow, and comes home drunk, and leaves all his doors open, and by reason thereof the goods happen to be stolen and his own, yet he shall not be charged, because it is the bailor's own folly to trust such an idle fellow." (Coggs v. Bernard, 1 Sm. Lead. Cas. 155) The modern civilians distinguish negligence with reference to the individual and negligence with reference to the diligens paterfamilias as culpa in concreto and in abstracto. Kuntze, Cursus des R. R. 481.

§ 5. — in abstracto.—It is, however, also used to signify the want of that skill and care which persons exercising certain employments are bound to exhibit, even when they act gratuitously, as in the case of physicians, attorneys, &c.; it is, therefore, ordinary negligence committed by a gratuitous agent or bailee; the term "gross" seems to have been applied to these cases in order not to disturb the symmetry of the rule that a gratuitous agent is only liable for gross negligence. See Campb. Neg. 15; 1 Sm. Lead. Cas. 615.

§ 6. Negligence by estoppel, and contributory negligence.—Negligence operating to defeat a right of action is either negligence amounting to estoppel (as to which see Estoppel, § 5), or contributory negligence, which occurs where the injury complained of has been caused partly by the negligence of the plaintiff and partly by that of the defendant: thus, if A. and B. are both driving negligently, and their carriages come into collision, so that A. is injured, he cannot sue B. if his own negligence contributed to the accident, i. e. if he could by ordinary care have avoided the consequence of the other's negligence. Dic. Part. 412; Oppenheim v. White Lion Hotel Co., L. R. 6 C. P. 515; 1 Sm. Lead. Cas. 298; Campb. Neg. 179.

§ 7. Criminal law.—As to the effect of negligence in criminal law, see Homicide. See, also, Act of God; Scienter.

*Terry v. Ashton, 1 Q. B. D. 314. See, also, Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 93; Rylands v. Fletcher, L. R. 3 H. L. 330 (negligent use of property); Worth v. Gelling, L. R. 2 C. P. 1 (negligent keeping of a ferocious dog), Gautret v. Egerton, L. R. 2 C. P. 371 (distinction between invitation to use dangerous property and mere license or permission).

NEGLIGENCE. (860) NEGOTIABLE.

NEGLIGENCE, (defined). 15 Wall. (U. S.) 524 ; 29 Ala. 302 ; 34 Cal. 63 ; 37 Id. 409, 423 ; 29 Iowa 99 ; 10 Bush (Ky.) 677 ; 48 N. H. 41 ; 5 Den. (N. Y.) 255, 266 ; 1 Duer (N. Y.) 571, 583 ; 4 N. Y. 349 ; 35 Pa. St. 60 ; 3 Phil. (Pa.) 76 ; 9 N. W. Rep. 192 ; 36 Eng. L. & Eq. 506.

(what is). 32 Barb. (N. Y.) 144 ; 62 Id. 150 ; 6 Phil. (Pa.) 537 ; 70 N. C. 380.

(what is not). 17 Ill. 169.

NEGLIGENCE, CONTRIBUTORY, (defined). 36 Iowa 262.

NEGLIGENCE, GROSS, (defined). 6 El. & B. 891, 899.

(what is). 3 Campb. 4.

(what is not). 17 Mass. 501, 507.

(who guilty of). 13 Serg. & R. (Pa.) 318, 319.

(in an insurance policy). 73 Ill. 230.

NEGLIGENCE, ORDINARY, (defined). 1 Edw. (N. Y.) 513, 543.

NEGLIGENCE, WILLFUL, (what constitutes). 20 Ill. 235.

NEGLIGENT ESCAPE.—The escape of a person from the custody of the sheriff or other officer. See ESCAPE, § 3.

Negligentia semper habet infortunium comitem (Co. Litt. 246): Negligence always has misfortune for a companion.

NEGLIGENTLY PROVIDED, (in a declaration). 4 Wheel. Am. C. L. 195.

NEGOCE.—Business; trade; management of affairs.

NEGOTIABLE.—

§ 1. An instrument is said to be negotiable when any person who has acquired it in good faith and for value can enforce the contract or right of property of which it is evidence against the person originally liable on it, although the person from whom he acquired it may have had a defective title, or none at all. In the first of these respects, negotiable instruments were always an exception to the rule that choses in actions are not assignable (a rule which can now be hardly said to exist); and, in the latter respect, they are an exception to the rule which denies to the transferee of property a title superior to that of the person from whom he receives it. (Sol. J., July 10th, 1875, 687; Sm. Merc. Law 199; Miller v. Rice, 1 Burr. 452 ; 1 Sm. Lead. Cas. 538 ; Crouch v. Crédit Foncier of England, L. R. 8 Q. B. 374 ; Re Agra and Masterman’s Bank, L. R. 2 Ch. 397 ; Fuentes v. Montes, L. R. 3 C. P. 276.) Moreover, the benefit of the contract or other right is attached to the possession of the document, which, according

to ordinary rules, would be only evidence of the right. (Poll. Cont. 206.) Negotiable instruments are, therefore, altogether anomalous institutions. They exist primarily for the convenience of commerce.

Goodwin v. Robarts, L. R. 10 Ex. 76, 337 ; 1 App. Cas. 476 ; Rumball v. Metropolitan Bank, 2 Q. B. D. 194.

Negotiability is either absolute or qualified.

§ 2. Absolute.—When an instrument is transferable so as to give the transferee all the rights originally created by it without affecting him with any equities between prior holders, its negotiability is said to be “absolute.” An ordinary bill of exchange, promissory note, or check is an instance. Thus, if A., being indebted to B., gives him a promissory note on the condition that it is to be regarded as a security only, and not to be negotiated before a certain time, B. may nevertheless transfer it to C. for value; and if C. has no notice of the arrangement between A. and B., he may enforce payment of it against A. (Ex parte Swan, L. R. 6 Eq. 344.) So, if B. steals a bill and transfers it to C. for value, and without notice of the theft, C. may enforce it against the parties liable on it, although B. had in fact no title to transfer.

§ 3. Qualified.—When an instrument is transferable only to certain persons, or in a certain manner, or so as to make the transferee take it subject to equities affecting it in the hands of prior holders, while preserving the other incidents of negotiability, its negotiability is said to be “qualified” or “restrained.” Thus, in the first instance given above, if the promissory note was transferred after maturity, the transferee would take subject to the arrangement between A. and B. Ib.; Sol. J., Dec. 18th, 1875, 134. See EQUITY, § 10 et seq.; CUNEX, § 3 et seq.

§ 4. Quasi-negotiable.—“Negotiable” is also used in a wide sense to denote an instrument transferable from one person to another by indorsement or delivery, but wanting in the essential of giving the transferee a good title notwithstanding any defect of title in his transferor. This quality is also called “quasi-negotiability,” to distinguish it from negotiability in the

NEGOTIABLE.

(861)

NEMO.

true sense. See DEBENTURE, § 1, note to p. 350; Exchequer Bills; Scrip.

reason for requiring him to exert the requisite skill and knowledge to accomplish the object or business which he undertakes; to do everything which is incident to or dependent upon that object or business, and to finish whatever he has begun. Without such an obligation, every person in the community would be at the mercy of ignorant and officious friends. Story Bailm. 204.

Negotiable, (defined). 19 Ind. 247, 250; 33 Mich. 299.

(not synonymous with "payable"). 3 Cranch (U. S.) C. C. 698.

NEGOTIABLE BONDS.—See Municipal Bonds; Negotiable, § 1.

Negotiable note, (in a statute). 9 Johns. (N. Y.) 120; 19 Id. 144; 23 Wend. (N. Y.) 71.

Negotiable notes, (what are not). 14 Pet. (U. S.) 293.

Negotiable security, (in a statute). 2 Mass. 524.

NEGOTIATE.—To negotiate a bill of exchange, promissory note, check, or other negotiable instrument for the payment of money, is to transfer it for value by delivery or indorsement. See Sharples v. Rickard, 2 Hurlst. & N. 57; Griffin v. Weathersby, L. R. 3 Q. B. 753.

Negotiate, (defined). 6 Gray (Mass.) 420; 69 N. Y. 382, 386.

(in a statute). 5 Duer (N. Y.) 373.

NEGOTIATION.—Treaty of business, whether public or private.

Negotiation, (defined). 19 Ind. 247, 250.

(what is not). 10 Pet. (U. S.) 578, 577.

NEGOTIORUM GESTOR.—A person who spontaneously, and without the knowledge or consent of the owner, intermeddles with his property, as to do work on it, or to carry it to another place, &c.

In cases of this sort, as he acts wholly without authority, there can, strictly speaking, be no contract. But the Roman law raises a quasi-mandate, by implication, for the benefit of the owner in many of such cases. Nor is an implication of this sort wholly unknown to the common law, where there has been a subsequent ratification of the acts by the owner; and sometimes where unauthorized acts are done, positive presumptions are made by law for the benefit of particular parties.

Thus, if a stranger enter upon a minor's lands, and take the profits, the law will, in many cases, oblige him to account to the minor for the profits as his bailiff; for it will be presumed that he entered to take them in trust for the infant.

As the negotiorum gestor interferes without any actual mandate, there is good

Negro, (defined). 18 Ala. 720; 5 Jones (N. C.) 11.

(who is). 9 Ired. (N. C.) 334.

(who is not). 28 Gratt. (Va.) 939.

Negroes, (covenant to pay in). 4 Bibb (Ky.) 97.

Neife.—The technical name for a female villein. (Litt. § 186) Originally, however, the word signified a villein of either sex, and "nayfe" meant the status of villein. It is derived from the Latin nativus, there having been apparently at one time a distinction between villeins by birth and freemen who had become villeins, e. g. by confession in a court of record. Britt. 77 b, and note in Nichol's edit. (p. 195); Loysel Inst. Cout. Gloss. v. Naif. See Confession, § 4.

Neighborhood, (in a statute). 33 Iowa 484.

(in an indictment). 1 Com. Dig. 166.

(in an information). 4 Mau. & Sel. 532.

Neighborhood, immediate, (what constitutes). 1 Pa. 32, 40.

Neighboring port, (what is). 5 Binn. (Pa.) 544, 548.

NEMBDA.—A jury. 3 Bl. Com. 350.

NEMINE CONTRADICENTE.—This phrase, commonly abbreviated nem. con., is used to signify the unanimous consent of the members of a legislative body to a vote or resolution; it is analogous to the term nemine dissentiente (nem. dis.) used in the English House of Lords, and also frequently found in the older reports to indicate the unanimity of the judges.

Neminem oportet esse sapientiorem legibus (Co. Litt. 97 b): No man ought to be wiser than the laws.

Nemo admittendus est inhabilitare seipsum (Jenk. Cent. 40): No man is to be admitted to incapacitate himself.

Nemo agit in seipsum (Jenk. Cent. 40): No one impeads himself.

Nemo alienæ rei, sine satisdatione, defensor idoneus intelligitur: No man is deemed a competent defender of another's property, without security.

NEMO.

Nemo alieno nomine lege agere potest (D. 50, 17, 123): No one can sue in the name of another.

Nemo allegans suam turpitudinem est audiendus: No one alleging his own baseness is to be heard. The courts of law have properly rejected this as a rule of evidence. 7 T. R. 601.

Nemo allegans suam turpitudinem est audiendus, (applied). 1 Cai. (N. Y.) 238, 270; 3 Johns. (N. Y.) Cas. 185, 189, 192.

Nemo cogitur rem suam vendere, etiam justo pretio (4 Inst. 275): No person is obliged to sell his own property, even for the full value.

Nemo contra factum suum venire potest (2 Inst. 66): No one can go against his own deed. See Estoppel, § 3.

Nemo dat qui non habet (Jenk. Cent. 250): He who hath not can not give. See remarks of Willes, J., in Chidell v. Galsworthy, 6 Com. B. N. S. 478.

Nemo de domo sua extrahi potest (D. 50, 17, 103): No one can be dragged out of his own house. In other words, every man's house is his castle.

Nemo debet bis puniri pro uno delicto (4 Co. 40, 43): No one ought to be punished twice for the same offense. See 2 Hurlst. & N. 248.

Nemo debet bis vexari, si constat curiæ quod sit pro una et eadem causa (5 Co. 61): No man ought to be twice put to trouble, if it appear to the court that it is for one and the same cause.

In civil actions, the general rule is that the judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar, or as evidence, conclusive between the same parties upon the same matter directly in question in another court. The exception to this rule is in the action of ejectment. 2 Selw. N. P. 763.

It is also well established in the criminal law, that when a man is indicted for an offense, and acquitted, he cannot afterward be indicted for the same offense, provided the first indictment was such that he could have been lawfully convicted upon it by proof of the facts contained in the second indictment. Arch. Cr. Pl. (17 edit.) 130-4.

Nemo debet esse judex in propria causa (12 Co. 113): No one should be judge in his own cause.

Nemo debet immiscere se rei ad se nihil pertinente (Jenk. Cent. 18): No one should intermeddle with a thing that in no respect concerns him.

Nemo debet locupletari aliena jactura: No one ought to be enriched by another's disaster. Cited per Bovill, C. J., in Fletcher v. Alexander, L. R. 8 C. P. 381.

Nemo debet rem suam sine facto aut defectu suo amittere (Co. Litt. 263 a): No one ought to lose his property without his own act or default.

Nemo duobus utatur officiis (4 Inst. 100): No one should hold two offices-i. e. at the same time.

Nemo ejusdem tenementi simul potest esse hæres et dominus: No one can at the same time be the heir and the owner of the same tenement. See 1 Reeves Hist. Eng. Law 106.

Nemo enim aliquam partem recte intelligere possit antequam totum iterum atque iterum perlegerit (Broom Max. (5 edit.) 593): No one is able rightly to understand one part before he has again and again read through the whole.

Nemo est hæres viventis: No man is heir of a living person. See Heir, § 7.

Nemo est hæres viventis, (applied). 6 Stew. (N. J.) 47.

Nemo ex alterius facto prægravari debet: No one ought to be burthened by the act of another.

Nemo ex consilio obligatur: No one is bound in consequence of his advice.

Nemo ex dolo suo proprio relevatur, aut auxilium capiat (Jir. civ.): Let no one be relieved or gain an advantage by his own fraud.

This rule is set aside in certain cases by several positive enactments of the legislature, as the Statute of Frauds, the English Marriage Act, 3 and 4 Geo. IV. c. 76, § 22. But the judges always lean towards giving effect to the maxim of the civil law.

Nemo ex proprio dolo consequitur actionem (Broom Max. (5 edit.) 297): No one maintains an action arising out of his own wrong.

Nemo ex suo delicto meliorem suum conditionem facere potest (11 Co., 17; 131, § 1): No one can make his condition better by his own misdeed.

Nemo in propria causa testis esse debet (3 Bl. Com. 371): No one ought to be a witness in his own cause.

Nemo inauditus condemnari debet si non sit contumax (Jenk. Cent. 18): No one ought to be condemned without being heard, unless he be contumacious.

Nemo militans Deo implicetur sæcularibus negotiis (Co. Litt. 70 b): No man who is warring for God should be involved in secular matters.

Nemo nascitur artifex (Co. Litt. 97): No one is born an artificer.

NEMO. (863) NEMO.

Nemo patriam in qua natus est exuere nec ligeantiæ debitum ejurare possit (Co. Litt. 129) : No man can disclaim the country in which he was born, nor abjure the bond of allegiance.

Nemo prohibetur pluribus defensionibus uti (Co. Litt. 304 a): No one is prohibited from making use of several defenses.

Nemo plus commodi heredi suo relinquit quam ipse habuit (D. 50. 17, 120): No one leaves a greater benefit to his heir than he had himself.

Nemo punitur pro alieno delicto (Wing. Max. 336): No one is punished for another's wrong.

Nemo plus juris in alium transferre potest quam ipse habet: No one can confer a better right to another than he has himself. But see Miller v. Race, 1 Sm. Lead. Cas. 516.

Nemo punitur sine injuria, facto, seu defalto (2 Inst. 287) : No one is punished unless for some injury, deed, or default.

Nemo potest contra recordum verificare per patriam (2 Inst. 380) : No one can verify by the country [i. e. by jury] against a record.

Nemo sibi esse judex vel suis jus dicere debet (Broom Max. (5 edit.) 117) : No one ought to be his own judge, or the tribunal in his own affairs. See Wildes v. Russell, L. R. 1 C. P. 722, 747.

Nemo potest esse simul actor et judex (Broom Max. (5 edit.) 117) : No one can be at once suitor and judge.

Nemo tenetur ad impossibile (Jenk. Cent. 7) : No one is bound to an impossibility.

Nemo potest esse tenens et dominus (Gilb. Ten. 142) : No one can be tenant and lord.

Nemo tenetur armare adversarium contra se (Wing. Max. 665) : No one is bound to arm his adversary against himself.

Nemo potest facere per alium, quod per se non potest (Jenk. 237) : No one can do through another what he cannot do through himself.

Nemo tenetur divinare (3 Co. 28) : No one is bound to foretell.

Nemo potest facere per obliquum quod non potest facere per directum (1 Eden 512) : No man can do that indirectly which he cannot do directly.

Nemo tenetur edere instrumenta contra se: No man is bound to produce writings against himself.

Nemo potest mutare consilium suum in alterius injuriam (D. 50, 17, 75) : No one can change his purpose to the injury of another.

Nemo tenetur informare qui nescit sed quisquis scire quod informat (Branch Pr.) : No one is bound to give information about things he is ignorant of, but every one is bound to know that which he gives information about.

Nemo potest plus juris ad alium transferre quam ipse habet (Co. Litt. 309 ; Wing. Max. 56) : No one can transfer a greater right to another than he himself has.

Nemo tenetur jurare in suam turpitudinem (Halk. 100) : No one is bound to testify to his own baseness.

Nemo presumitur alienam posteritatem suæ præetulisse (Wing. Max. 285) : No one is presumed to prefer the posterity of another to his own.

Nemo tenetur prodere seipsum : No one is bound to betray himself. In other words, no one can be compelled to criminate himself.

Nemo præsumitur esse immemor suæ æternæ salutis, et maxime in articulo mortis (6 Co. 76) : No one is presumed to be forgetful of his own eternal welfare, and particularly at the point of death.

Nemot enetur seipsum accusare (Wing. Max. 486) : No one is bound to accuse himself.

Nemo præsumitur malus: No one is presumed to be bad.

Nemo tenetur seipsum infortuniis et periculis exponere : No one is bound to expose himself to misfortunes and dangers.

Nemo præsumitur tudere in extremis : No one is presumed to trifle at the point of death.

Nemo unquam judicet in se : No one can ever be a judge in his own cause. If a cause come to be tried in which the judge or one of them have ever so little interest, as if one of the parties be a company in which he has one share, he retires from the court, or adjourns the cause, at all events he does not proceed without the consent of the parties.

Nemo prohibetur plures negotiationes sive artes exercere (11 Co. 54) : No one is restrained from exercising several businesses or arts.

Nemo unquam vir magnus fuit, sine aliquo divino afflatu (Cic.) : No one was ever a great man without some divine inspiration.

Nemo videtur fraudare eos qui sciunt et consentiunt (D. 20, 17, 145) :

No one is supposed to defraud those who know and assent.

NEPHEW.-The son of a brother or sister. A nephew, according to the civil law, is in the third degree of consanguinity; but, according to the canon law, in the second.

NEPHEW, (in a will). 1 Abb. (N. Y.) App. Dec. 214; 3 Barb. (N. Y.) Ch. 466; L. R. 2 P. & D. 8.

NEPHEWS, (in a will). 13 Cent. L. J. 5, and cases cited.

NEPHEWS AND NIECES, (in a will). L. R. 6 Ch. 351; 8 Id. 928.

NEPHEWS AND NIECES, ALL MY, (in a will). 42 Pa. St. 25.

NEPHEWS AND NIECES OF EVERY DESCRIPTION, (in a will). 2 Yeates (Pa) 196, 198.

NEPOS.-A grandson.

NEPTIS.-A grand-daughter.

NERVING, (defined). Ry. & M. C. C. 290. - (renders a horse unsound). Oliph. Hors. 47.

NET BALANCE, (defined). 71 Pa. St. 89.

NET EARNINGS, (defined). 10 Blatchf. (U. S.) 271. - (how determined). 9 Otto (U. S.) 455. - (in a contract). 22 Wall. (U. S.) 146. - (in a statute). 69 Pa. St. 137.

NET INCOME, (in a devise). 5 Me. 199.

NET PRICE.-The lowest price, after deducting all discounts.

NET PROCEEDS, (in an agreement). 1 Rich. (S. C.) Eq. 272.

NET PROFITS.-Clear profits after all deductions.

NET PROFITS, (defined). 12 Allen (Mass.) 334. - (in articles of copartnership). 105 Mass. 103.

NET RENT, (defined). 3 Car. & P. 96.

NETHER HOUSE OF PARLIAMENT.-The House of Commons was so called in the time of Henry VIII.

NEUTRALITY.-The condition in which a third nation is when it holds aloof from two other nations who are at war with each other. See Foreign Enlistment Act.

NEVER INDEBTED, PLEA OF.-A species of traverse which occurs in actions of debt on simple contract, and is resorted to when the defendant means to deny in point of fact the existence of any express contract to the effect alleged in the declaration, or to deny the matters of fact from which such contract would by law be implied. Steph. Pl. (7 edit.) 153, 156.

NEVER TO PAY, WHICH I PROMISE, (in a promissory note). 2 Atk 31, 32.

NEVER WAS INDEBTED IN MANNER AND FORM, (in a replication). 3 Q. B. 239.

NEVERTHELESS, (in a statute). 1 Str. 516.

NEVICULAR DISEASE, (what is). Oliph. Hors. 91.

NEW AND IMPROVED, (respecting a design). 7 Fed. Rep. 475

NEW ASSETS, (what are not). 117 Mass. 222.

NEW ASSIGNMENT.-Under the common law practice, where the declaration in an action is ambiguous and the defendant pleads facts which are literally an answer to it, but not to the real claim set up by the plaintiff, the plaintiff's course is to reply by way of new assignment, i. e. allege that he brought his action not for the cause supposed by the defendant, but for some other cause to which the plea has no application. 3 Steph. Com. 507.

NEW BUILDING, (in a statute). L. R. 9 C. P. 30.

NEW CAUSE OF ACTION, (defined). 68 Me 167.

NEW FOR OLD.-A term in the law of marine insurance in cases of adjustment of partial loss. In making such adjustment, the rule is to apply the old materials towards the payment of the new, by deducting the value of them from the gross amount of the expenses for repairs, and to allow the deduction of one-third new for old upon the balance. 3 Kent Com. 339.

NEW GRANTS, (in a statute). 14 Pet. (U. S.) 353.

NEW HISTORY OF A COUNTRY, (what is not). 3 Car. & P. 336.

NEW INN.-An Inn of Chancery. See Inns of Chancery.

NEW INVENTION, (what is). 1 U. S. L. J. 571; Fess. Pat. 45. - (patent for). 2 H. Bl. 463.

NEW MACHINE, (what is not). 8 Taunt. 375.

NEW MANUFACTURE, (what is). 4 Man. & G. 580; 2 Marsh. 211.

NEW MATTER, (in the code). 33 Barb. (N. Y.) 627, 629.

NEW NATURA BREVIUM.-See Fitzherbert.

NEW.

New parish, (in a statute). L. R. 8 Q. B. 217.

NEW PROMISE.-A contract made after the original promise has, for some cause, been rendered invalid, by which the promiser agrees to fulfill such original promise.-Bouvier.

New promise, (insufficient under statute of frauds.). 8 Johns. (N. Y.) 408.

New street, (in a statute). 6 Ch. D. 539. 1 Ex. D. 223; 4 Id. 239; L. R. 6 Q. B. 164; 7 Id. 183; L. R. 9 Q. B. 278.

NEW STYLE.-The modern system of computing time was introduced into Great Britain A. D. 1752, the 3d of September of that year being reckoned as the 14th. See New Year's Day.

New succession, (in a statute). L. R. 5 Ex. 263.

NEW TRIAL.-See Trial.

New trial, (defined). 45 Conn. 401.

NEW WRIT.-A new writ for the election of a member of parliament, upon the existing representative vacating his office or dying, is issued from the office of the clerk of the Crown in Chancery under the speaker's warrant and (if the house be sitting) by its own order; but upon a general election, the new writ is issued out of Chancery by advice of the privy council. See Bushby's Election Manual (5 edít.) 1880.

NEW YEAR'S DAY.-The 1st of January, and the day on which is commemorated the circumcision of the Saviour as being the eighth from the 25th of December, his supposed day of nativity. The 25th of March was the civil and legal New Year's Day, till the alteration of the style in 1752, when it was permanently fixed at the 1st of January. In Scotland the year was, by a proclamation, which bears date 27th of November, 1599, ordered thenceforth to commence in that kingdom on the 1st of January instead of the 25th of March.-Encycl. Lond.

NEWLY DISCOVERED EVIDENCE.-Evidence of some new and material fact or facts which have been ascertained since the verdict was rendered. The discovery of such evidence will often afford a ground for a new trial, provided the new evidence be not merely cumulative, manifestly insufficient to change the result, or intended to be used merely to impeach or discredit a witness.

NEWSPAPER.-§ 1. A periodical publication containing intelligence of passing events. Newspapers have from time to time been the subject of enactments for their general regulation. The principal of these in England, were the 60 Geo. III. and 1 Geo. IV. c. 9; 11 Geo. IV. and 1 Will. IV. c. 73; and 6 and 7 Will. IV. c. 76. But these have now been all repealed by the 32 and 33 Vict. c. 24, and 33 and 34 Vict. c. 99.

§ 2. The English Newspaper Libel and Registration Act, 1881, provides for the establishment of a register of proprietors of newspapers, and for annual returns being made by the printers and proprietors of every newspaper, giving particulars of its title and its proprietors. The returns are entered in the register, which is open to public inspection.

§ 3. By the same act, any report published in a newspaper of the proceedings of a public meeting is privileged (i. e. not libelous), if the meeting was lawfully convened for a lawful purpose and open to the public, and if such report was fair and accurate, and published without malice for the public benefit; but this protection is not available as a defense to any proceeding, if the defendant refused to insert in his newspaper a reasonable explanation or contradiction by the plaintiff.

§ 4. No criminal prosecution for a libel contained in a newspaper can be commenced without the fiat of the director of public prosecutions (§ 3). Charges of libels contained in newspapers may be tried summarily. §§ 4, 5.

Newspaper, (defined). 75 Ill. 51, 54; 4 Op. Att. Gen. 10.

(is necessarily public). 50 Me. 171.

(in a statute). 25 Minn. 146, 148.

NEXT.

NEXT.-Among the Romans, persons free-born, who, for debt, were delivered bound to their creditors, and obliged to serve them until they could pay their debts.

Next, (in a contract). 3 Cai. (N. Y.) 89.

(in a statute). 1 Mass. 411; 4 Johns. (N. Y.) Ch. 26; 3 Brod. & B. 217, 223; Willberf. Stat. L. 133.

Next advowson, (grant of). Dyer 35 a. NEXT AND NEAREST OF KIN, (in a will). 1 Cromp. & M. 598.

Next court, (in act of 1799). 7 Ga. 107.

Next day, (in law of notice). 1 Hill (N. Y.) 263.

Next devisee, (in a will). South. (N. J.) 709, 710.

Next ensuing, (in an agreement). Cro. Jac. 677, 678.

(in a bond). Cro. Jac. 646.

(in a statute). 1 Dyer 376 a.

Next ensuing tile date hereof, (in a bond). 1 Cro. 420.

Next following, (in a bond). Cro. Jac.

NEXT FRIEND.-§ 1. An infant who desires to bring an action, must, as a rule, do so through the intervention of a person called a "next friend," (or, in some jurisdictions, a "guardian ad litem," ) generally a relation

NEXT.

(866)

NEXT.

The same rule generally applies where a married woman sues without her husband, or an action requires to be brought by a person of unsound mind who has no committee or has a committee whose interest is adverse to his own. Pope Lnn. 298.

§ 2. Every next friend is responsible for the propriety of the proceedings taken in his name. (Dan. Ch. Pr. 67.) According to Coke, the phrase "next friend," as applied to an infant heir in socage, meant next of blood, and this is borne out by the way in which the phrase is used by Littleton. § 123; Co. Litt. 88 a. See Guardian ad Litem.

NEXT FRIEND, (who is not). 1 Serg. & R. (Pa.) 366, 367.

NEXT GENERAL OR QUARTER SESSIONS, (in a statute). 15 East 632.

NEXT HEIR, (in a will). 1 Co. 66; 2 Str. 729.

NEXT MALE HEIR, (in a will). 3 Serg. & R. (Pa.) 451.

NEXT OCTOBER, (in a writ). 1 Root (Conn.) 199.

NEXT OF KIN.—

§ 1. Next in degree of kindred.—In the strict sense of the term, the next of kin of a deceased person are those who are next in degree of kindred to him, i. e. are most closely related to him in the same degree. The degrees of kindred are reckoned according to the Roman law, both upwards to the ancestor and downwards to the issue, each generation counting for a degree. Thus, from father to son is one degree, from grandfather to grandson, or vice versâ, is two degrees, and from brother to brother, or vice versâ, is three degrees. In tracing the degrees of kindred in the distribution of an intestate's personal estate (infra, § 2.) no preference is given to males over females, nor to the paternal over the maternal line, nor to the whole over the half blood, nor do the issue of a deceased person stand in his place, as in the case of descent of real estate. Wms. Pers. Prop. 421. See Descent.

§ 2. Under Statutes of Distribution.—More commonly the "next of kin" of a person who has died intestate signifies those persons who are entitled to his personal property, after payment of his debts, under the Statutes of Distribution. (See Distribution.) If the intestate leaves a widow and any child or children or descendant of any child, the English rule is that the widow takes a third and the issue take two-thirds per stirpes (q. v.), subject to the rule as to advancement (q v., § 2). If he leaves no widow, his issue take the whole in the same manner. If he leaves a widow but no issue, the widow takes a half, and the other half, or if there is no widow, the whole goes as follows: first to the father, if living; then to the mother, brothers and sisters, or such of them as shall be living, in equal shares, the children of any deceased brother or sister standing in their parent's place, provided the mother or any brother or sister of the deceased is living; and if there is neither mother, brother nor sister living, then to those who are next of kindred to the deceased in the same degree. (Supra, § 1.) The husband of a woman dying intestate takes the whole of her personal property. (Id. 419.) Some of the State Statutes of Distribution differ from the English one in minor particulars. See the statutes of any State in question.

§ 3. In wills.—When a testator gives his property to the "next of kin" of himself or another, the expression is construed to mean "next of kin" in the strict sense of the word (supra, § 1); and, therefore, does not include persons claiming by representation (e. g. children of a deceased brother), unless there is an express or implied reference to the Statutes of Distribution. 2 Jarm. Wills (5 Am. edit.) 653. Even then "next of kin" does not include the husband or wife of the deceased. Id. 660.

NEXT OF KIN, (defined). 13 N. W. Rep. 401. (who are). 2 Hill (S. C.) Ch. 416; 12 Iowa 389; 1 P. Wms. 45; 4 Grifl. L. R. 125; Wills 80; Reeve Dom. Rel. 18; Rep. Leg. 115.

equivalent to "nearest of kin"). 2 Myl. & K. 780.

(when includes widow). 88 N. Y. 493 et seq.

(in a conveyance). 4 Ired. (N. C.) Eq. 50.

(in articles of marriage settlement). 18 Ves. 49, 56.

(in a deed of settlement). 28 How (N. Y.) Pr. 417.

(in a statute). 5 Binn. (Pa.) 160; 1 Black (U. S.) 458; 5 Cal. 63; 3 Day (Conn.)

166; 43 Ill 338; 4 Abh. (N. Y.) Pr. 312; 13 Id 110; 32 Barb. (N. Y.) 25, 28; 34 Id. 410; 15 How. (N. Y ) Pr. 182; 17 Ohio St. 367; 28 Id. 192; 4 Dousaus. (S. C.) 409 u.

NEXT OF KIN, (in a will). 113 Mass. 430; 11 Metc. (Mass.) 23; 43 Barb. (N. Y.) 147; 63 How. (N. Y ) Pr. 360, 361; 67 N. Y. 387; 69 Jl. 36; 5 Iled. (N. C.) L. 382; 63 N. C. 242; 3 East 278, 290; Forrester 251 n ; 3 L. J. Ch. n. s. 17; 4 Idl. 206; L. R. 3 Ch. 505; 13 Lr. 303; 9 Jl. 622; 4 Ves. 649; 14 Id. 372; 15 Id. 536; 4 Com. Dig. 154; 8 Id. 474.

NEXT OF KIN IN EQUAL DEGREE, (in a will). 12 Ves. 433, 8 Com. Dig. 429.

NEXT OF TESTATOR'S NAME, (in a will). Cro. Flis. 532.

NEXT PERSONAL REPRESENTATIVE, (in a will). L. R. 4 Eq. 339.

NEXT PORT, (notice by, in law of bills and notes). 5 Cow. (N. Y.) 307.

NEXT PRESENTATION.—

§ 1. In the law of advowsons, the right of next presentation is the right to present to the first vacancy of a benefice. When an advowson is sold during an existing incumbency, the right of next presentation passes to the grantee, unless the owner reserves it or has already sold it to some one else, as he may do. But when a vacancy has actually occurred, the right of presenting to it is considered to be of such a personal nature that it cannot be sold ; if, therefore, the owner sells the advowson at such a time, the next presentation will not pass to the grantee; and if the owner of the advowson dies intestate during a vacancy, the next presentation goes to his executor, while the advowson goes to his heir.

§ 2. A next presentation, when granted separately from the advowson, is personal estate. Wms. Real Prop. 346; 2 Steph. Com. 717. See SIMONY.

NEXT REGULAR SESSION, (in constitution). 61 Ill. 256.

NEXT RELATIONS, (in a will). 1 Cox Ch. 236.

NEXT SESSIONS, (in a warrant). 8 T. R. 110. —— (in a statute). 1 Doug. 192; 15 East 200, 201.

NEXT SUCGEEDING COURT, (in a statute). 11en. & M. (Va.) 217.

NEXT SURVIVING SON, (in a will). Jz. R. 3 Ired. 487.

NEXT TERM, (in a statute). 1 Morr. (Iowa) 97; 9 Cushl (Mass.) 403; 5 Mass. 435, 437, 460; 4 Yeates (Pa.) 512.

NEXUM.—In Roman law, this word expressed the tie or obligation involved in the old conveyance by mancipatio ; and came latterly to be used interchangeably with (but less frequently than) the word obligatio itself.—Brown.

NICOLE.—An ancient name for Lincoln.—Cowell.

NIDERLING, NIDERING, or NITHING.—A vile, base person, or sluggard ; chicken-hearted.—Spel. Gloss.

NIECE.—The daughter of a brother or sister. See NEPHEW, as to the degree of consanguinity.

Niece, (in a will). 3 Barb. (N. Y.) Ch 466. Nieces, (in a will). 13 Cent. L. J. 5, and cases cited.

NIEF.—See NEIFE.

NIENT COMPRISE.—Not contained. An exception taken to a petition, because the thing desired is not contained in the deed or proceeding upon which the petition is founded.

NIENT CULPABLE.—Not guilty. A plea in criminal prosecutions.

NIENT DEDIRE.—Norm an-French: "not deny." In the old common law practice, when a suggestion (q. v.) was entered on the record in an action, and the opposite party did not wish to deny it, he made an entry on the record to that effect, which operated as a confession of the truth of the suggestion, and was called a nient dedire. Lex inhabitauts of Norwich, S tr. 177; Banewall v. Sutherland, 9 Com. B. 380.

NIENT LE FAIT.—Not his deed. See Non est Factum.

NIGER LIBER.—The black book or register in the Exchequer; chartularies of abbeys, cathedrals, &c.

NIGHT.—As to what, by the common law, is reckoned night and what day, i t seems to be the general opinion that it there be daylight, or crepusculum, enough begun or left to discern a man's face, that is considered day; and night is when it is so dark that the countenance of a man cannot be discerned. (1 Hale P. (C. 350.) However, the limit of 9 P. M. to 6 A. M. has been fixed, by statute, in England, as the period of night, in prosecutions for burglary and larceny. 24 and 25 Vict. c. 96, § 1. See DAY.

NIGHT, (in a criminal statute). 1 Chit. Crim. Pr. 401.

NIGHT MAGISTRATE.—A constable of the night; the head of a watch-house.

NIGHT-WALKERS.—Vagrants; pilferers; disturbers of the peace. They may be arrested by the police, and committed to custody till the morning. 2 Hale P. C. 90.

NIHIL.—Nothing. A return made by a sheriff, &c., when the circumstances warrant it. See Nulla Bona.

Nihil aliud potest rex quam quod de jure potest (11 Co. 74): The king can do nothing except what he can by law do.

NIHIL.

NIHIL CAPIAT PER BREVE.—That he take nothing by his writ. Where an issue, arising upon a declaration or peremptory plea, is decided for the defendant, the judgment, is generully, that the plaintiff take nothing, &c., and that the defendant go thereof without day, &c., which is a judgment of nihil capiat, &c.

Nihil consensui tam contrarium est quam vis atque metus (D. 50, 17, 116): Nothing is so opposed to consent as force and fear.

Nihil de re accrescit ei qui nihil in re quando jus accresceret habet (Co. Litt. 188): Nothing of a matter accrues to him who, when the right accrues, has nothing in that matter.

Nihil dictum quod non dictum prius (Hard. 464): Nothing is said which was not said before. Said of a case where former arguments were repeated.

Nihil est magis rationi consentaneum quam eodem modo quodque dissolvere quo conflatum est (Shep. Touch. 323): Nothing is more consonant to reason, than that a thing should be dissolved or discharged in the same way in which it was created.

Nihil facit error nominis cum de corpore constat (11 Co. 21): An error as to a name is nothing when there is certainty as to the person.

Nihil habet forum ex scena (Bacon): The court has nothing to do with what is not before it.

NIHIL HABUIT IN TENEMENTIS.—A plea pleaded in an action of debt only, brought by a lessor against lessee for years, or at will, without deed. If both lessee and lessor executed a lease, the former was estopped from pleading this plea to an action of debt for rent by the lessor. It has, however, been held to be a good plea on a demise by deed poll, because as to the lessee, it is no estoppel. It could be pleaded by a lessee in any case where orcupation was enjoyed, for a tenant cannot impeach his landlord's title. In debt on bond conditioned for the payment of rent reserved upon a demise according to certain articles, the defendant is estopped from saying that he had not anything in the land demised by the articles. In debt for rent by husband and wife, upon a lease by her and her first husband, it is a good defense that her husband was solely seised, and that she had nothing in the land. In ussumpsit, for use and occupation, this is a bad defense. It is also no defense in bar of an avowry under 11 Geo. II. c. 19. Woodf. Land. & T. (10 edit.) 677.

Nihil in lege intolerabilius est eandem rem diverso jure censeri (4 Co. 93 a): Nothing is more intolerable in law than that the same thing should be judged by a different rule.

Nihil magis justum est quam quod necessarium est (Dav. 12): Nothing is more just than what is necessary.

Nihil nequam est præsumendum (2 P. Wms. 533): Nothing wicked is to be presumed.

Nihil perfectum est dum aliquid restat agendum (9 Co. 9 b): Nothing is perfect while something remains to be done.

Nihil peti potest ante id tempus quo per rerum naturam resolvi possit (D. 50, 17, 186): Nothing can be demanded before the time when, by the nature of things, it can be paid.

Nihil possumus contra veritatem (Doct. & S. dial. 2, c. 6): We can do nothing against truth.

Nihil præscribitur nisi quod possidetur (Lord Hale, "De jure maris" 32): Nothing is prescribed except what is possessed.

Nihil quod est contra rationem est licitum (Co. Litt. 97): Nothing that is contrary to reason is permitted.

Nihil quod est inconveniens est licitum (Co. Litt. 66 a): Nothing that is inconvenient is allowed.

Nihil simul inventum est et perfectum (Co. Litt. 230): Nothing is invented and perfected at the same moment.

Nihil tam conveniens est naturali æquitati quam unumquodque dissolvi eo ligamine quo ligatum est (2 Inst. 359): Nothing is so consonant to natural equity as that a thing should be dissolved by the same means by which it was bound.

Nihil tam conveniens est naturali æquitati quam voluntatem domini rem suam in alium transferre ratum habere (1 Co. 100): Nothing is so consonant to natural equity as to regard the intention of the owner in transferring his own property to another.

Nihil tam naturale est, quam eo genere quidque dissolvere, quo colligatum est; ideo verborum obligatio verbis tollitur, nudi consensus obligatio contrario consensu dissolvitur (D. 50, 17, 35): Nothing is so natural as to dissolve anything in the way in which it was bound together; therefore the obligation of words is taken away by words, the obligation of mere consent is dissolved by the contrary consent.

Nihil tam proprium est imperii quam legibus vivere (2 Inst. 63): Nothing is so much the property of sovereignty as to live according to the laws.

NIHILS.

NOBILITY.

NIHILS, or NICHILS.—Issues which a sheriff, apposed in the Exchequer, said were nothing worth and illeviable, for the insufficiency of the parties from whom due. Sheriffs' accounts are now passed by the commissioners for auditing the public accounts. 3 and 4 Will. IV. c. 99.

Nil consensui tam contrarium est quam vis atque metus (D. 50, 17, 116) : Nothing is so opposed to consent as force and fear.

NIL DEBET.—He owes nothing. The old form of the general issue in all actions of debt not founded on a specialty. This plea was not allowed in England after Reg. Gen. T. T., 1853, r. 11.

NIL DICIT, JUDGMENT BY.—See Judgment, § 7.

Nil facit error nominis cum de corpore vel persona constat (11 Co. 21) : A mistake in the name does not matter when the body or person is manifest. See 11 Com. B. 406.

Nimia subtilitas in jure reprobatur (Wing. Max. 26) : Too much subtlety in law is blamed.

Nimium altercando veritas amittitur (11ob. 344) : By too much altercation truth is lost.

NIMMER.—A thief; a pilferer.

NISI.—A decree, order, rule, declaration, or other adjudication of a court is said to be made nisi when it is not to take effect unless the person affected by it fails to show cause against it within a certain time, i. e. unless he appears before the court, and gives some reason why it should not take effect. See Absolute; Decree, § 3; Rule.

NISI PRIUS.—

§ 1. In the practice of the English High Court, a trial at Nisi Prius is where an action is tried by a jury before a single judge, either at the sittings held for that purpose in London and Middlesex, or at the assizes (q. v. § 2). Formerly, all common law actions were tried at bar, i. e. before the full court, consisting of several judges; and, therefore, the writ for summoning the jury commanded the sheriff to bring the jurors from the county where the cause of action arose to the Court at Westminster. But when the Stat. 18 Edw. I. directed the justices of assize to try issues in the county where they arose,

the sheriff was thenceforth commanded to bring the jurors to Westminster on a certain day, "unless before that day" (Nisi Prius) the justices of assize came into the county. (Sm. Ac. (11 edit.) 134. See Banc; Trial..) In American law, a trial at Nisi Prius means simply a trial of an issue of fact in a civil action before a judge and jury.

§ 2. A Chancery action—which is to be tried by a jury, in England, must be tried at Nisi Prius, and not before a judge sitting in the Chancery Division. Warner v Murdoch, 4 Ch. D. 750. See West v. White, Ic. 631; Wood and Ivery v. Hamblet, 6 Ch. D. 113. See Feigned Issue.

NISI PRIUS RECORD.—An instrument in the nature of a commission to the judges at Nisi Prius for the trial of a cause, written on parchment and delivered to the officer of the court in which the cause was to be tried. Any variance between the record and the issue should have been objected to at the time of trial, but the judges had power to amend variances. 9 Geo. IV. c. 15; 3 and 4 Wm. IV. c. 42, § 23; C. L. P. Act, 1852, § 222; and 1 Chit. Arch. Pr. (12 edit.) 361.

NIVICOLLINI BRITONES.—Welshmen, because they live near high mountains covered with snow.—Du Cange.

NO AWARD.—The name of a plea to an action or award. (2 Ala. 520; 1 N. Chip. (Vt.) 131; 3 Johns. (N. Y.) 367.)—Bouvier.

NOBILE OFFICIUM.—The equitable jurisdiction of the Court of Session in Scotland.

Nobiles magis plectuntur pecunia; plebes vero in corpore (3 Inst. 220) : The higher classes are more punished in money; but the lower in person.

Nobiles sunt, qui arma gentilitia antecessorum suorum proferre possunt (2 Inst. 595) : The gentry are those who are able to produce armorial bearings derived by descent from their own ancestors.

Nobiliores et benigniores præsumptiones in dubiis sunt præferendæ (Leg. Jur. Civ.) : In cases of doubt, the more generous and more benign presumptions are to be preferred.

Nobilitas est duplex, superior et inferior (2 Inst. 583) : There are two sorts of nobility, the higher and the lower.

NOBILITY.—A division of the English people, comprehending dukes, marquesses, earls, viscounts and barons. These had, anciently,

duties annexed to their respective honors; they are created either by writ, i. e. by royal summons to attend the house of peers, or by letters-patent, i. e. by royal grant of any dignity and degree of peerage; and they enjoy many privileges, exclusive of their senatorial capacity. 1 Bl. Com. 396.

NOCENT.—Guilty; criminal.

NOCITANTER.—By right. An abolished writ which issued out of Chancery, and returned to the Queen's Bench, for the prostration of inclosures, &c. 7 and 8 Geo. IV. c. 27.

NOCTES and NOCTEM DE FIRMA.—Entertainment of meat and drink for so many nights.—Domest.

NOCUMENTUM.—In old English law, a nuisance.

NODFYRS, or NEIDFRI.—Necessary fire.

Nol. pros., (defined). 12 Allen (Mass.) 218.

NOLENS VOLENS.—Whether willing or unwilling.

NOLLE PROSEQUI.—

§ 1. In civil practice.—An acknowledgment or undertaking entered on record by the plaintiff in an action, to forbear to proceed in the action, either wholly or partially. It has been superseded in most cases by the modern practice of discontinuance (q. v.) but it seems to be still applicable in some cases. Arch. Pr. 1201.

§ 2. In criminal prosecutions by indictment or information, a nolle prosequi to stay proceedings may be entered, in England, by leave of the attorney-general at any time before judgment. (Arch. Cr. Pl. 109.) In some States the leave of the court must first be obtained, but generally the prosecuting officer may enter a nol. pros. at his discretion, at any time before the jury is impaneled, and afterwards by the consent of the defendant.

Nolle prosequi, (effect of). 2 Mass. 172; 7 Pick. (Mass.) 179; 8 Wheel. Am. C. L. 33.

Nolo contendere, (effect of plea of). 9 Pick. (Mass.) 206; 6 Wheel. Am. C. L. 30.

NOMEN.—A name. See Agnomen; Cognomen.

NOMEN COLLECTIVUM.—A singular noun of multitude; a name for a class of persons or things.

NOMEN GENERALISSIMUM.—A most universal term, as land.

NOMEN JURIS.—A name of law; a legal name or designation; a technical term.

Nomina si nescis perit cognitio rerum; et nomina si perdas, certe distinctio rerum perditur (Co. Litt. 86) : If you know not the names of things, the knowledge of things themselves perishes; and if you lose the names, the distinction of the things is certainly lost.

Nomina sunt mutabilia, res autem immobiles (6 Co. 66) : Names are mutables, but things immutable.

Nomina sunt notæ rerum (11 Co. 20) : Names are the notes of things.

Nomina sunt symbola rerum (Godb.) : Names are the symbols of things.

NOMINA TRANSCRIPTITIA. — In the Roman law, obligations contracted by literæ (i. e. literis obligationes) were so called because they arose from a peculiar transfer (transcriptio) from the creditor's day-book (adversaria) into his ledger (codex). See Literis Obligatio.

NOMINA VILLARUM.—An account of the names of all the villages and the possessors thereof, in each county, drawn up by several sheriffs (9 Edw. II.) and returned by them into the Exchequer, where it is still preserved.

NOMINAL DAMAGES.—See Damages, § 3.

NOMINAL DEFENDANT.—Otherwise called a merely formal defendant, is a person whom the exigencies of legal procedure oblige the litigant to make a party to his action or other legal proceeding, but as against whom no relief whatsoever is claimed in the action, or at all events no immediate relief. Such a defendant usually incurs no costs or only the smallest possible costs, and he is entitled to be paid by the plaintiff all costs necessarily incurred by him in the action from having been made a party thereto.—Brown.

NOMINAL PARTNER.—One who has not any actual interest in the trade or business, or its profits; but, by allowing his name to be used holds himself out to the world as apparently having an interest. “If a person will lend his name as a partner,” said Lord Chief Justice Eyre, (Waugh v. Carver, 2 H. Bl. 235.) “he becomes, as against all the rest of the world, a partner, not upon the grounds of the real transaction between them, but upon

principles of general policy, to prevent the frauds to which others would be liable, if they were to suppose they lent their money upon the apparent credit of three or four persons, when in fact they lent it only to two of them, to whom, without the others, they would have lent nothing.

However, to render a person responsible as a nominal partner, positive consent, or at least a knowledge by him of the assumption of his name, from which his acquiescence will be inferred, must be shown. See 2 Steph. Com, (7 edit.) 102. See Partnership.

Nominal party, (who is not). 59 Me. 505. Nominal plaintiff, (assent of, to bring suit). 15 Wend. (N. Y.) 640.

NOMINATE CONTRACTS.—In the civil law, those contracts distinguished by particular names.

NOMINATIM.—By name; expressed one by one.

NOMINATING AND REDUCING.—A mode of obtaining a panel of special jurors in England, from which to select the jury to try a particular action The proceeding takes place before the under-sheriff or secondary, and in the presence of the parties' solicitors. Numbers denoting the persons on the sheriff's list are put into a box and drawn until forty-eight unchallenged persons have been nominated. Each party strikes off twelve, and the remaining twenty-four are returned as the panel (q. v.) This practice is now only employed by order of the court or judge. Sm. Ac. 130; Juries Act, 1870, § 17.

NOMINATION.— § 1. Friendly societies.—A member of a friendly society in England, or an industrial or provident society, may by writing under his hand, delivered at or sent to the registered office of the society, nominate any person to whom his share or interest in the society is to belong at his death. Such a nomination may be revoked or varied by the nominator, and must not dispose of a share or interest exceeding £50. (Friendly Soc. Act, 1875, § 15, § 3; Id., 1876, § 10; Industrial P. Soc. Act, 1876, § 11, § 5.) It is in the nature of a testamentary disposition, and seems to be allowed in this form because members of the working classes do not generally leave wills. Compare the subsections following those above cited.

§ 2. Benefice.—In ecclesiastical law, the owner of an advowson may grant the right of nomination to another, and then the grantor is bound to present for institution any clerk whom the grantee shall name. Phillim. Eccl. L. 348. See Presentation.

NOMINATIVUS PENDENS.—A nominative case grammatically unconnected with the rest of the sentence in which it stands. The opening words in the ordinary form of a deed inter partes (This indenture, &c., down to whereas,) though an intelligible and convenient part of the deed, are of this kind.

NOMINE PENÆ.—A penalty incurred in the lease or agreement for payment thereof. Strictly no forfeiture is nomine penæ, unless for non-payment of rent; but it is usual, in English leases, to mention stipulated penalties for non-payment of a collateral sum, ploughing up ancient meadows, or above a certain number of acres in one year, for changing the character of particular premises, &c., by the general name of nomine penæ. Where a penalty is annexed to the non-payment of rent, and distress given for it, a demand must be made, and the penalty is waived by acceptance of rent. Cowp. 247.

NOMINEE.—One named or proposed for an office, either appointive or elective.

NOMOCANON.—(1) A collection of canons and imperial laws relative or conformable thereto. The first nomocanon was made by Johannes Scholasticus in 554. Photius, patriarch of Constantinople, in 883, compiled another nomocanon, or collection of the civil laws with the canons; this is the most celebrated. Balsamon wrote a commentary upon it in 1180. (2) A collection of the ancient canons of the apostles, councils and fathers, without any regard to imperial constitutions. Such is the nomocanon by M. Cotelier.—Encycl. Lond.

NOMOGRAPHER.—One who writes on the subject of laws.

NOMOGRAPHY.—A treatise or description of laws.

NOMOTHETA.—A law giver, or law commissioner.

NOMOTHETICAL.—Legislative.

NON.—Not; no. The Latin negative particle commencing many maxims and phrases, such as—

NON ACCEPTAVIT.—He did not accept. This was a plea which put in issue the fact of a bill of exchange being due at the time of action brought, being a denial of a defendant having accepted such a bill as was described in the declaration. Hinton v. Duff; 10 W. R. 295.

Non accipi debent verba in demonstrationem falsam quæ competunt in limitationem veram (Bacon) : Words which agree in a true meaning ought not to be received in a false sense.

NON ACCIPI DEBENT VERBA IN DEMONSTRATIONEM FALSAM QUÆ COMPETUNT IN LIMITATIONEM VERAM, (applied). 13 Vr. (N. J.) 588.

Non alio modo puniatur aliquis quam secundum quod se habet con-

demnatio (3 Inst. 217): A person may not be punished differently than according to what the sentence enjoins.

Non aliter a significatione verborum recedi oportet quam cum manifestum est aliud sensisse testatorem (2 De G. M. & G. 313) : It behooves us not to depart from the literal meaning of words, unless it is evident that the testator intended some other meaning.

Non-arrival, (in a charter-party). 2 Barn. & C. 564.

NON ASSUMPSIT.—In the action of assumpsit (q. v.) the name for the plea by which the defendant avers that "he did not promise" as alleged, and thus raises the general issue. See General Issue.

NON ASSUMPSIT INFRA SEX ANNOS.—He did not promise within six years. The form of pleading the Statute of Limitations.

Non auditur perire volens: He who is desirous to perish is not heard. See Best Ev. 423, § 385.

NON-BAILABLE.—Not admitting of bail ; not requiring bail. See Bailable.

NON BIS IN IDEM.—Not twice tried for the same offense.

NON CEPIT.—He took not. A plea by way of traverse, which occurs in the action of replevin. It applies to the case where the defendant has not, in fact, taken the cattle or goods, or where he did not take them or have them in the place mentioned in the declaration, the place being a material point in this action.

NON COMPOS MENTIS.—Not sound in mind. This is properly a generic term, in which are included four species : "(1) Ideota [an idiot], which from his nativity, by a perpetual infirmity, is non compos mentis; (2) hee that by sicknesse, griefe, or other accident, wholly loseth his memory and understanding; (3) a lunatique that hath sometime his understanding and sometime not, aliquando gaudens lucidis intervallis, and, therefore, he is called 'non compos mentis' so long as he hath not understanding; (4) lastly, hee that by his owne vitious act for a time depriveth himselfe of his memorie and understanding, as he that is drunken. But that kind

of non compos mentis shall give no privilege or benefit to him or to his heires." Co. Litt. 247 a; 4 Co. 124 b; Pope Lun. 18. See Drunkenness; Insanity; Lunacy.

Non compos mentis, (defined). 4 Cow. (N. Y.) 207 ; 3 Den. (N. Y.) 37, 41 ; 12 Ves. 450 (who is). 2 Johns. (N. Y.) Ch. 233; 3 Add. 79, 204; 3 Atk. 173. (who is not). 8 Mod. 59, 60 (synonymous with "unsound mind"). 16 Barb. (N. Y.) 259.

Non concedantur citationes priusquam exprimatur super qua re fieri debet citatio (12 Co. 47) : Summonses should not be granted before it is expressed what matter the summons ought to be made.

NON CONCESSIT.—He did not grant. A plea resorted to by a stranger to a deed, because estoppels do not hold with respect to strangers. This plea brings into issue the title of the grantor as well as the operation of the deed.

Non consentit qui errat (Bract. 41) : He who mistakes does not consent.

NON CONSTAT.—It is not clear; it does not follow.

NON CULPABILIS.—Sometimes abbreviated non cul. Not guilty.

NON DAMNIFICATUS.—Not injured. This is a plea in an action of debt on an indemnity bond, or bond conditioned "to keep the plaintiff harmless and indemnified, &c." It is in the nature of a plea of performance; being used where the defendant means to allege that the plaintiff has been kept harmless and indemnified, according to the tenor of the condition. Steph. Pl. (7 edit.) 300—1.

Non dat qui non habet (Lofft 258) : He who has not does not give.

Non debeo melioris conditionis esse quam auctor meus a quo jus in me transit (D. 50, 17, 175, § 1) : I ought not to be in a better condition than my author from whom the right passes to me.

Non debet actori licere quod reo non permittitur (17 Mod. 50, 17, 41) : A plaintiff ought not to be allowed what is not permitted to a defendant.

Non debet adduci exceptio ejus rei cujus petitur dissolutio (Jenk. Cent. 37) : An exception of the thing whose abolition is sought ought not to be adduced.

NON DEBET.

Non debet alteri per alterum iniuqua conditio inferri (D. 50, 17, 74): An unjust condition ought not to be imposed upon one by another.

Non debet cui plus licet, quod minus est non licere (D. 50, 17, 21): A man having a power may do less than such power enables him to do.

Non debet dici tendere in præjudicium ecclesiasticæ libertatis quod pro rege et republica necessarium videtur (2 Inst. 625): That which seems necessary for the king and the state ought not to be said to tend to the prejudice of spiritual liberty.

NON DECIMANDO.—See DE NON DECIMANDO.

Non decipitur qui scit se decipi (5 Co. 60): He is not deceived who knows himself to be deceived.

Non definitur in jure quid sit conatus (6 Co. 41): What an attempt is, is not defined in law.

But see Russ. Cr. & M. (4 edit.) 83 et seq.

NON DETINET.—A plea by way of traverse, which occurs in the action of detinue. This plea alleges that the defendant did not detain “the said goods in the said declaration specified, &c.” It operates accordingly as a denial of the detention of the goods. But under this plea the defendant cannot deny that they are the plaintiff's. Steph. Pl. (7 edit.) 154, 163.

NON DIMISIT.—He demised not. (1) A plea resorted to where a plaintiff declares upon a demise without stating the indenture in an action of debt for rent; (2) a plea in bar, in replevin, to an avowry for arrears of rent, that the avowant did not demise.

NON-DIRECTION.—Omission on the part of a judge to enforce a necessary point of law upon a jury.

NON DISTRINGENDO.—A writ not to distrain.

Non effecit effectus, nisi sequatur effectus, sed in atrocibus delictis punitur affectus, licet non sequatur effectus (2 Rol. Rep. 89): The intention fulfills nothing unless an effect follow. But in the deeper delinquencies, the intention is punished, although an effect follow not.

Non est arctius vinculum inter homines quam jusjurandum (Jenk.

(873) NON-FORFEITING.

Cent. 126): There is no tighter bond among mankind than an oath.

Non est consonum rationi, quod cognitio accessorii in curia christianitatis impediatur, ubi cognitio causæ principalis ad forum ecclesiasticum noscitur pertinere (12 Co. 65): It is unreasonable that the cognizance of an accessory matter should be impeded in an ecclesiastical court, when the cognizance of the principal cause is admitted to appertain to an ecclesiastical court.

Non est disputandum contra principia negantem (Co. Litt. 343) : We cannot dispute against a man who denies first principles.

NON EST FACTUM.—A plea by way of traverse, which occurs in debt on bond or other specialty, and also in covenant. It denies that the deed mentioned in the declaration is the defendant's deed; under this, the defendant may contend at the trial that the deed was never executed in point of fact; but he cannot deny its validity in point of law.

NON EST INVENTUS.—The name of the return made by a sheriff or other officer to a writ directing him to arrest a person, when he is unable to find him. See Attachment; Capias ad Satisfacien-dum; Return.

Non est novum ut priores leges ad posteriores trahantur (D. 1, 3, 36): It is no new thing that prior statutes should give place to later ones.

Non est regula quin fallat: There is no rule which may not fail.

Non ex opinionibus singulorum sed ex communi usu nomina exaudiri debent (D. 33, 10, 7, 3): Names ought to be regarded not by the opinions of individuals, but by the common use.

Non facias malum, ut inde veniat bonum (11 Co. 74): You are not to do evil that thence good may arise.

NON FECIT.—He did not make it. A plea in an action of assumpsit on a promissory note. 3 Man. & G. 446.

NON FECIT VASTITUM CONTRA PROHIBITIONEM.—He did not commit waste against the prohibition. A plea to an action founded on a writ of estrepement for waste. 3 Bl. Com. 226, 227.

Non-Forfeiting Life Policy, (indorsed on a policy of insurance). 67 Me. 35.

NON HÆC. (874) NON PONENDIS.

Non hæc in fædera veni: I did not agree to these terms.

Non impedit clausula derogatoria quo minus ad eandem potestate res dissolvantur a qua constituuntur (Bacon): A derogatory clause does not impede things from being dissolved by the same power by which they are created.

NON IMPEDIT.—He did not disturb or hinder. The plea of the general issue in the action of quare impedit.

NON IMPLACITANDO ALIQUEM DE LIBERO TENEMENTO SINE BREVI.—A writ to prohibit bailiffs, &c., from distraining or impleading any man touching his freehold without the king's writ.—Reg. Orig. 171.

Non in legendo sed in intelligendo leges consistunt (8 Co. 167): The laws consist not in being read, but in being understood.

NON INFREQUIT CONVENTIONEM.—A plea which raised a substantial issue in an action for non-repair according to covenant, whether there was a want of repairs or not.

NON INTROMITTANT CLAUSE.—A clause exempting a smaller jurisdiction from being included in a larger.

NON INTROMITTENDO, QUANDO BREVE PRÆCIPE IN CAPITE SUBDOLE IMPETRATUR.—A writ addressed to the justices of the bench, or in eyre, commanding them not to give one who, under color of entitling the king to land, &c., by holding of him in capite, had deceitfully obtained the writ called præcipe in capite, any benefit thereof, but to put him to his writ of right.—Reg. Orig. 4.

NON JURIDICUS.—Not juridical. See Dies Non.

Non juridicus, dies, (defined). 74 N. C. 187, 193.

Non jus sed seisina facet stipitem (Fleta l. vi.): Not right, but seisin, makes a stock.

Non licet quod dispendio licet (Co. Litt. 127): That which is permitted at a loss is not permitted.

NON LIQUET.—It does not appear clear. A verdict given by a jury, when a matter was to be deferred to another day of trial.

The same phrase was used by the Romans; after hearing a cause, such of the judges as thought it not sufficiently clear to pronounce upon, cast a ballot into the urn with the two letters N. L., for non liquet.

NON MERCHANDIZANDA VICTUALIA.—An ancient writ addressed to justices of assize, to inquire whether the magistrates of a town sold victuals in gross or by retail, during the time of their being in office, which was contrary to an obsolete statute; and to punish them if they did.—Reg. Orig. 184.

NON MOLESTANDO.—A writ that lay for a person who was molested contrary to the king's protection granted to him.—Reg. Orig. 184.

Non observata forma infertur annullatio actus: When form is not observed, a failure of the action ensues.

NON OBSTANTE.— Notwithstanding. A license from the crown to do that which could not be lawfully done without it. Also, a clause frequent in statutes and letters-patent, importing a license from the crown to do a thing, which by common law might be done, but being restrained by act of parliament could not be done without such license. Plowd. 501; 2 Reeves c. viii. 83.

But the doctrine of non obstante, which sets the prerogative above the laws, was effectually demolished by the Bill of Rights at the Revolution; for it is enacted by 1 W. & M. st. 2, c. 2, that no dispensation, by non obstante of or to any statute, or any part thereof, shall be allowed, but that the same shall be hold void and of none effect, except a dispensation be allowed in such statute.

NON OBSTANTE VEREDICTO.—Notwithstanding the verdict. A judgment non obstante veredicto, is a judgment entered, by order of the court, for the plaintiff in an action at law, notwithstanding a verdict in favor of the defendant. It is always upon the merits, and never apparent to the court from the defendant's own plea that he can have no merits. (2 Tidd Pr. 922).—Burrill.

NON OMITTAS.—A clause usually inserted in writs of execution, in England, directing the sheriff "not to omit" to execute the writ by reason of any liberty, because there are many liberties or districts in which the sheriff has no power to execute process unless he has special authority. 2 Steph. Com. 630.

Non omnia quæ a majoribus nostris constituta sunt ratio reddi potest (D. 1, 3, 20): A reason cannot be given for all the laws which have been established by our ancestors.

Non pertinet ad judicem secularem cognoscere de iis quæ sunt mere spiritualia annexa (2 Inst. 488): It belongs not to the secular judge to take cognizance of things which are merely spiritual.

NON PLEVIN.—Default in not replevying land in due time. See 9 Edw. III. c. 2.

NON PONENDIS IN ASSISIS ET JURATIS.—A writ formerly granted for freeing and discharging persons from serving on assizes and juries.—F. N. B. 165.

NON POSSESSORI.

(875)

NON VALEBIT.

Non possessori incurabit necessitas probandi possessiones ad se pertinere (Broom Max. (5 edit.) 714): A person in possession is not bound to prove that the possessions belong to him.

Non potest adduci exceptio ejus rei cujus petitur dissolutio (Bac. Max. 22): An exception of the same thing whose avoidance is sought, cannot be made.

Where the legality of some proceeding is the subject in dispute between two parties, he who maintains its legality, and seeks to take advantage of it, cannot rely upon the proceeding itself as a bar to the adverse party; for otherwise the person aggrieved would be clearly without redress.

Non potest probari quod probatum non relevat (1 Exch. 91, 92): That cannot be proved, which, if proved, is immaterial.

Non potest rex gratiam facere cum injuria et damno aliorum (3 Inst. 236): The king cannot confer a favor on one subject which occasions injury and loss to others.

Non potest videri aesisse habere qui nunquam habuit (D. 50, 17, 208): One who never did possess cannot be considered to have ceased to possess.

NON PROCEDENDO AD ASSISAM.—See De Procedendo, &c.

NON PROS.—Abbreviation for non prosequitur. If in the proceedings of an action at law the plaintiff neglected to take any of those steps which he ought to take within the time prescribed by the practice of the courts for that purpose, the defendant might enter judgment of non pros. against him, whereby it was adjudged that the plaintiff did not follow up (non prosequitur) his suit as he ought to do, and, therefore, the defendant ought to have judgment against him. (3m. &c. 96.) And in such a case, the defendant would, under the present practice in England and most of the States, have to dismiss the plaintiff's action for want of prosecution.

Non quod dictum est, sed quod factum est, inspicitur (Co. Litt. 36a): Regard is to be had, not to what is said, but what is done.

The words of the parties are not conclusive of their intention, where these words are at variance with their actual conduct, e.g. it may be expressed that some specified sum is “liquidated damages,” and yet the specified sum may be in fact only the outside limit of uncertain and unliquidated damages, when the nature of the contract or bond is regarded. Kemble v. Farren, 6 Bing. 141.

Non refert an quis assensum suum præfert verbis, aut rebus ipsis et factis (10 Co. 52): It matters not whether a man gives his assent by his words or by his acts and deeds.

Non refert quid ex æquipollentibus fiat (5 Co. 122): It matters not which of [two] equivalents happen.

Non refert quid notum sit judici, si notum non sit in forma judicii (3 Buls. 115): It matters not what is known to the judge, if it be not known in a judicial form.

Non refert verbis an factis fit revocatio (Cro. Car. 49): It matters not whether a revocation is made by words or deeds.

NON-RESIDENT, (who is). 5 Barn. & Ald. 908; 4 Moo. 356; 10 Jd. 522.

(who is not). 7 Moo. 613.

(in tax law). 4 La. 11.

NON-RESIDENTS, (in a statute). 3 J. J. Marsh. (Ky.) 415.

Non respondebit minor; nisi in causa dotis, et hoc pro favore doti (4 Co. 71): A minor shall not answer; unless in a case of dower, and this in favor of dower.

NON-SANE MEMORY, (defined). 2 Sch. & L. 301.

NON SEQUITUR.—It does not follow.

Non solent quæ abundant, vitiare scripturas (D. 50, 17, 94): Surplusage is not wont to vitiate writings.

NON SOLVENDO PECUNIAM AD QUAM CLERICUS MULCTATUR PRO NON-RESIDENTIA.—A writ prohibiting an ordinary to take a pecuniary mulct imposed on a clerk of the sovereign for non-residence.—Reg. Writ. 59.

NON SUBMISSIT.—He did not submit.

A plea to an action of debt, on a bond to perform an award, to the effect that the defendant did not submit to the arbitration.

NON SUI JURIS.—The opposite of sui juris (q. v.)

NON SUM INFORMATUS.—A formal answer made of course by an attorney, that he was not informed to say anything material in defense of his client; by which he was deemed to leave it undefended, and so judgment passed against his client.

Non temere credere est nervus sapientie (5 Co. 114): Not to believe rashly is the nerve of wisdom.

NON TENENT INSIMUL.—They do not hold together. A plea in partition, by which defendant denies that he holds the property in suit, as a tenant in common with the plaintiff.

NON TENUIT.—A plea in bar to replevin, to avowry for arrears of rent, that the plaintiff does not hold in manner and form, as the avowry alleges.

Non valet felonis generatio, nec ad hæreditatem paternam vel maternam; si autem ante feloniam generatio fuerit, talis generatio suam

NON VALET.

(876)

NONCONFORMIST.

cedit in hæreditate patris vel matris a quo non fuerit felonia perpetrata (3 Co. 41) : The offspring of a felon cannot succeed either to a maternal or paternal inheritance; but if he had off spring before the felony, such off-spring may succeed as to the inheritance of the father or mother by whom the felony was not committed.

This is not now the rule, for descendants can trace through a felon ancestor.

Non valet confirmatio, nisi ille, qui confirmat, sit in possessione rei vel juris unde fieri debet confirmatio; et eodem modo, nisi ille cui confirmatio fit sit in possessione (Co. Litt. 295): Confirmation is not valid unless he who confirms is either in possession of the thing itself, or of the right of which confirmation is to be made, and, in like manner, unless he to whom confirmation is made is in possession.

Non valet exceptio ejusdem rei cujus petitur dissolutio (2 Eden 134) : A plea of the same matter the dissolution of which is sought, is not valid.

Non valet impedimentum quod de jure non sortitur effectum (4 Co. 31 a) : An impediment which does not derive its effect from law, is of no force.

Non verbis, sed ipsis rebus, leges imponimus (Cod. 6, 43, 2) : We impose laws, not upon words, but upon things themselves.

Non videntur qui errant consentire (D. 50, 17, 116, § 2) : They are not considered to consent who commit a mistake.

Non videtur consensum retinuisse si quis ex præscripto manantis aliquid immutavit (Bacon): He does not appear to have retained consent, who has changed anything through menaces.

Non videtur perfecte cujusque id esse, quod ex casu auferri potest (D. 50, 17, 139, 1) : That does not seem to be completely one's own, which can be taken from him on occasion.

Non videtur quiquam id capere quod ei necesse est alii restituere (D. 50, 17, 51) : No one is considered entitled to recover that which he must give up to another.

Non videtur vim facere, qui jure suo utitur et ordinaria actione experitur (D. 50, 17, 155, 1) : He is not deemed to use force, who exercises his own right, and proceeds by ordinary action.

Non vult ulterius prosecuí, (an entry upon a record). Cro. Jac. 211.

NON-ABILITY.—Inability; an exception against a person.—F. N. B. 35, 65. See DISABILITY.

NON-ACCEPTANCE.—The refusal of acceptance.

NON-ACCESS.—In the law of husband and wife, non-access is the absence of access (q. v. § 2). If non-access for above nine months is proved, by showing that the husband and wife were separated and born of the wife during that period are bastards. 2 Steph. Com. 285.

NON-ADMISSION.—The refusal of admission.

NONÆ ET DECIMÆ. — Payments made to the church, by those who were tenants of church-farms. The first was a rent or duty for things belonging to husbandry, the second was claimed in right of the church.

NONAGE.—The period of infancy, i. e. the age of a person under twenty-one years. Litt. § 258. See AGE.

NONAGIUM, or NON-AGE.—A ninth part of movables which was paid to the clergy on the death of persons in their parish, and claimed on pretence of being distributed to pious uses.—Blount.

NON-APPEARANCE.—The omission of timely and proper appearance; a failure of appearance. See APPEARANCE.

NON-CLAIM.—

§ 1. At common law, the levying of a fine (q. v. § 9) barred the right of all persons, whether parties, privies or strangers, unless they put in their claim within a year and a day. (Litt § 411 ; 2 Bl. Com. 354.) This was called being barred by non-claim. Alterations were afterwards made in the time allowed for claiming, (Stat. 34 Edw. III. c. 16; 4 Hen. VII. c. 24,) but the subject is now of no practical importance, fines having been abolished. Stat. 3 and 4 Will. IV. c. 74,

§ 2.

§ 2. There was also a non-claim in a writ of right. Co. Litt. 262a.

NONCONFORMIST.—One who refuses to comply with others; one who refuses to join in the established forms of worship in England. Nonconformists are of two sorts: (1) Such as absent themselves from divine worship in the established church through total irreligion, and attend the service of no other persuasion; (2) such as attend the religious service of another persuasion. See DISSENTERS.

NONES.

NONES.—Days in the Roman calendar, so called because they reckoned nine days from them to the Ides. The seventh day of March, May, July and October, and the fifth day of all other months.—Kenn. Antiq. 92.

NON-EXISTING GRANT. — See Lost Grant.

NONFEASANCE.—The neglect or failure of a person to do some act which he ought to do. The term is not generally used to denote a breach of contract, but rather the failure to perform a duty towards the public whereby some individual sustains special damage, as where a sheriff fails to execute a writ. 3 Bl. Com. 165; Broom Com. L. 655; Borough of Bathurst v MacPherson, 4 App. Cas. 256. See Malfeasance; Tort.

NON-ISSUABLE PLEAS.—Those upon which a decision would not determine the action upon the merits, as a plea in abatement. 1 Chit. Arch. Pr. (12 edit.) 249.

NON-JOINIDER is where a person who ought to be made party to an action is omitted. The general rule is that in an action on a contract all the parties to it who are entitled or liable jointly should be joined as plaintiffs and defendants, and that in an action of tort persons who have a joint interest ought to sue jointly for an injury to it; persons who have a separate interest, but sustain a joint injury, may sue either jointly or separately. Joint wrong-doers may be sued either jointly or separately. Dic. Part. 11 and passim. See Joint; Misjoinder.

Non-joinder is cured by making an application to the court to add the necessary parties.

NON-JURING.—To swear. Applied to those who would not swear allegiance to the Hanoverian family.—Encycl. Lond.

NONJUROR.—One who (conceiving the Stuart family unjustly deposed) refused to swear allegiance to those who succeeded them.

NON-RESIDENCE.—In ecclesiastical law, non-residence is where a spiritual person holding a benefice does not keep residence on it. It is in ordinary cases an offence, and is punishable by monition and sequestration of the benefice, and by the compulsory appointment of a curate. Licenses for non-residence may be granted by the bishop in certain cases. Phillim. Ecc. L. 1149; Stat. 1 and 2 Vict. c. 106.

NON-RESIDENT.—

§ 1. One who is not a dweller within some jurisdiction in question; not an inhabitant of the State in which some action or proceeding has been or is about to be commenced.

§ 2. As applied to a trading corporation, non-resident signifies that it has no place of business in the jurisdiction. The question is of importance with reference to the liability of such a corporation to be sued in any particular jurisdiction, and to the manner in which it should be served with process. Westman v. Aktiebolaget, &c., 1 Ex. D. 237. See Domicile, § 3; Jurisdiction.

NON-RESIDENTIO PRO CLERICO REGIS.—A writ, addressed to a bishop, charging him not to molest a clerk employed in the royal service by his non-residence; in which case he is to be discharged.—Reg. Orig. 58.

NON-RESISTANCE. — The extreme votaries of the royal power in the stormiest times of English history, finding the royal commands at variance with their ideas of duty to themselves and the State, invented a compromise (which is expressed by this word) whereby, although they felt bound to offer no active opposition to the royal ordinance, they felt justified, in such a case, in taking a course of passive disobedience, and obeying only in the event of being otherwise compelled to take arms against the royal authority. The word has now only an historical value.

NON SANE MEMORY.—A person laboring under mental alienation (q. v.)

NONSENSE.—Where a matter set forth is grammatically right, but absurd in the sense and unintelligible, some words cannot be rejected to make sense of the rest, but they must be taken as they are; for there is nothing so absurd but what, by rejecting, may be made sense; but where a matter is nonsense, by being contradictory and repugnant to somewhat precedent, there the precedent matter which is sense shall not be defeated by the repugnancy which follows; but that which is contradictory shall be rejected.

NONSUIT.—Norman-Fr. non-suit; non-sue, “he does not prosecute his action.” See Co. Litt. 138 b. Nonsuit is where the plaintiff in an action abandons his case at the trial before

the jury have given their verdict, whereupon judgment of nonsuit is given against him. (See JUDGMENT, § 8.) Formerly the advantage of this practice (which was peculiar to the common law courts) was that the plaintiff could bring another action against the defendant for the same cause of action; but under the new English practice any judgment of nonsuit, unless the court otherwise directs, has the same effect as a judgment on the merits, i. e. it bars the plaintiff from bringing another action for the same cause, but in case of mistake, surprise or accident, a judgment of nonsuit may be set aside by the court. (Rules of Court, xli. 6; Singer, &c., Co. v. Wilson, 2 Ch. D.438.) The prevailing American rule is that a judgment of nonsuit is no bar to a new action.

NONSUIT, (is not a final judgment). 1 Pet. (U. S.) 471.

NON-SUMMONS, WAGER OF LAW OF.—The mode in which a tenant or defendant in a real action pleaded, when the summons which followed the original was not served within the proper time. 31 Eliz. c. 3, § 2; 2 Saund. 45 c.

NON TENURE.—A plea in bar to a real action, by saying that he (the defendant) held not the land mentioned in the plaintiff's count or declaration, or at least some part thereof. It was either general, where one denied ever have been tenant of the land in question, or special, where it was alleged he was not tenant on the day wheron the writ was purchased. (1 Mod. 181.) The distinction between real and personal actions has now practically ceased to exist. See ACTION, § 15.

NON-TERM.—The time of vacation between term and term.—Cowell.

NON-TERMINUS.—The vacation between term and term, formerly called the time or days of the king's peace.

NON-USER is where a person ceases to exercise a right. The term is principally used with reference to easements, profits à prendre, and similar rights, which may be extinguished by non-user for a certain number of years, which apparently must not be less than twenty; but the nonuser must be of such a nature as to show an intention to abandon the right, as where it amounts to acquiescence in an unlawful interruption. (Gale Ensm. 619 et seq. See INTERRUPTION.) A public office is liable

to forfeiture for non-user or neglect to perform the duties. Co. Litt. 233 a.

NOOK OF LAND.—Twelve acres and a half. Dugd. Warwick 665.

NORMAL.—Opposed to exceptional; that state wherein any body most exactly comports in all its parts with the abstract idea thereof, and is most exactly fitted to perform its proper functions, is entitled "normal."

NORMAN-FRENCH.—The tongue in which several formal proceedings of state are still carried on in England. The language having remained the same since the date of the Conquest, at which it was introduced into England, is very different from the French of this day, retaining all the peculiarities which at that time distinguished every province from the rest. A peculiar mode of pronunciation (considered authentic) is handed down and preserved by the officials, who have, on particular occasions, to speak the tongue. Norman-French was the language of our legal procedure till the 36 Edw. III.

NORROY.—The title of the third of the three kings-at-arms, or provincial heralds. See HERALD.

NORTH, (in a deed). 2 Pick. (Mass.) 576; 5 Watts (Pa.) 459.

NORTH AMERICA, UNITED STATES OF, (in a bond). 10 Pet. (U. S.) 363.

NORTH BRITAIN.—Scotland.

NORTHERLY, (equivalent to "due north"). 25 Cal. 296.

— (not synonymous with "north"). 115 Mass. 577; 13 Ill. 117.

— (in a deed). 2 Pick. (Mass.) 576.

— (in a grant). 1 Johns. (N. Y.) 156.

NORTHWARD, (in a grant).• 3 Cai. (N. Y.) 293,

NORTHWARDLY, (defined). 21 Barb. (N. Y.) 398, 404.

— (synonymous with "north"). 1 Bibb (Ky.) 53.

Noscitur a sociis: It may be known or explained from its associates.

This refers to the construction of words and clauses in contracts and written instruments. Thus, where there is a string of words in a statute, and the meaning of one of them is doubtful, that meaning is given to it which it shares with the other words. So, if the words "horse, cow, or other animal" occur, "animal" is held to apply to brutes only. See EJUSDEM GENERIS.

NOSCITUR.

(879)

NOTE.

Noscitur a sociis, (applied). 124 Mass. 18 126 Id. 46.

Noscitur ex socio, qui non cognoscitur ex se (Moore 817) : He who cannot be known from. himself may be known from his associate.

NOSOCOMI.—In the civil law, managers of pauper hospitals.

Not accountable for depreciation, (in a will). 9 Ch. D. 95.

Not exceeding eight days, (equivalent to "within eight days"). 15 Serg. & R. (Pa.) 44.

Not exceeding eighty acres, (in homestead law). 56 Ala. 50.

NOT FOUND.—No true bill. See Ignoramus.

NOT GUILTY.—

§ 1. Criminal law.—The appropriate plea to an indictment where the prisoner wishes to raise the general issue. See Issue, § 10; Plea.

§ 2. Civil actions.—It is also a plea used in common law actions of tort under the old practice, when the defendant simply denies that he has committed the wrong complained of. (See General Issue.) Under the present system of pleading, in England and most of the States, a defendant must deal specifically with all allegations made by the plaintiff which he does not admit, and therefore a plea of "not guilty" is no longer, as a general rule, permissible. There are, however, certain statutes which provide (principally for the protection of constables, inspectors, and other public officers,) that in all actions for anything done in pursuance of the act or in execution of the powers and authorities thereof, the defendant may plead "not guilty," which entitles him to give the special matter in evidence at the trial; i. e. he may prove the facts of the case and show that he acted in pursuance of the statute, so that such a plea has the same effect as if he had pleaded the facts and his defense specifically. (See, for instance, Stat. 5 and 6 Will. IV. c. 76, § 76; Id. c. 68, § 39. See, also, Stat. 5 and 6 Vict. c. 97, § 8.) This is called pleading "not guilty by statute," and may still be done in England under the new practice, but the defendant cannot plead any other defense without leave (Rules of Court xix, 16); and he must insert in the margin of the plea the words "by statute," together with the year, chapter, and section of the act or acts on which he relies, and specify whether they are public or private. Reg. Gen. T. T. 1853; 1 El. & B. lxxxii.

NOT POSSESSED.—A plea formerly interposed in an action of trover, alleging that defendant was not possessed, at the time of action brought, of the chattels alleged to have been converted by him.

NOT PROVEN.—A verdict allowed to be given in criminal trials in Scotland.

Not to appear, I promise, (in a bond). 2 Rawle (Pa.) 23, 24; 1 Wheel. Am. C. L. 326.

Not to be paid by us in any event within one year from date, (added to indorsement of promissory note). 7 Minn. 74.

Not to pay, (in a bond). 2 Salk. 463.

NOTARIAL.—Taken by a notary.

NOTARY PUBLIC.—A person who attests the execution of any deeds or writings, or makes certified copies of them in order to render the same authentic, especially for use abroad. (See Legalization.) In England, he is appointed to his office by the Archbishop of Canterbury, (Phillim. Ecc. L. 1232; Stats. 41 Geo. III. c. 79, and 6 and 7 Vict. c. 90,) in America, usually by the governor of the State, by and with the advice and consent of the State senate. An important branch of his duties is the protesting of bills of exchange and promissory notes. (See Protest.) In Ireland, he also makes a record of the proceedings in an ecclesiastical cause. Id. 1243.

Notary public, (defined). 6 Serg. & R. (Pa.) 486.

(duties of). 2 Hill (N. Y.) 227.

(history of the office of). 2 Chit. Gen. Pr. 36.

NOTATION.—In English probate practice, notation is the act of making a memorandum of some special circumstance on a probate or letters of administration. Thus, where a grant is made for the whole personal estate of the deceased within the United Kingdom, which can only be done in the case of a person dying domiciled in England, the fact of his having been so domiciled, is noted on the grant. Coote Prob. Pr. 36.

Note, (in statute of frauds). 2 Johns. (N. Y.) 430; 7 Id. 321; 3 Wend. (N. Y.) 459; 5 Barn. & C. 583; 6 Id. 437; 9 Id. 561; 1 Bing. 9; 1 Bos. & P. N. R. 252; 8 Dowl. & Ry. 343; 6 East 807.

NOTE.

(880)

NOTICE.

Note, accommodation, (what is). 7 Serg. & R (Pa.) 465.

Note, destroyed, (how declared upon). Ohio (Cond.) 234.

NOTE OF A FINE.—A brief of a fine made by the chirographer before it was engrossed. Abolished by 3 and 4 Will. IV. c. 74.

NOTE OF ALLOWANCE.—This was a note delivered by a master to a party to a cause, who alleged that there was error in law in the record and proceedings allowing him to bring error. (See Com. L. I’F. Act, 1852, § 149.) Error has now, however, been abolished in England. (Judicature Act, 1875, Ord. LVIII. r. 1.) Proceedings in error in law were deemed a supersedeas of execution from the service of the copy of such note, together with the statement of the grounds of error intended to be argued. (Com. L. P. Act, 1852, § 150.) Now, by the Judicature Act, 1875, Ord. LVIII. r. 16, an appeal shall not operate as a stay of execution or of proceedings under the decision appealed from, except so far as the court appealed from, or any judge thereof, or the court of appeal may so order; and no intermediate act or proceeding shall be invalidated, except so far as the court appealed from may direct.

NOTE OF HAND.—A promissory note.

NOTE OF PROTEST.—A note or memorandum of the protest, made on the bill or note by the notary, at the time of protest, to be filled out at his leisure.

Note, promissory, (what are the essential parts of). (N. Y.) 108.

— (expressing no time for payment, when payable). 15 Wend. (N. Y.) 308.

Noted its contents, (in a letter). 4 Metc. (Mass.) 12.

NOTES.—Memoranda made by a judge on a trial, as to the evidence adduced, and the points reserved, &c. A copy of the judge's notes may be obtained from his clerk. See Minutes.

Notes, (in New York act, April 9th, 1850, § 2.) 2 Blatchf. (U. S.) 165, 180.

Notes of hand, aliis his, (in a bequest). 2 Dev. (N. C.) Eq. 488.

NOTHUS.—A natural child, or a person of spurious birth.

NOTICE.—

§ 1. Judicial.—Primarily, “notice” means knowledge or cognizance; and, therefore, when we speak of a court taking judicial notice of a fact, we mean that the court recognizes the fact without evidence to prove it. Thus, the courts notice

the political constitution of our own government, the existence and title of every State and sovereign recognized by our government, the dates of the calendar, &c. Best Ev. 354.

§ 2. To give notice of a fact to a person is to bring it to his knowledge. When the circumstances are such that he is either actually aware of the fact, or might or ought to be aware of it, he is said to have notice of it.

Notice is either actual (express) or constructive.

§ 3. Express —Actual or express notice is that given in plain words from one person to another, either verbally or in writing. When a written notice purports on the face of it to be a notice it is called a “formal notice.”

§ 4. Constructive.—Constructive notice is where knowledge of the fact is presumed from the circumstances of the case. Thus, where a person has actual notice of a charge or incumbrance on certain property, he is held to have constructive notice of facts which he would have been led by an inquiry into the charge or incumbrance, whether his abstention from inquiry was fraudulent or merely negligent. (Jones v. Smith, 1 Hare 55; 2 White & T. Lead. Cas. 55; Dart Vend. 861.) So notice to an agent, solicitor, &c., is constructive notice to the principal or client. (Le Neve v. Le Neve, Amb. 436; 2 White & T. Lead. Cas. 43; Dart Vend. 858,) on the presumption that the agent did his duty by communicating the notice to his principal; therefore, that presumption may be rebutted if it appears that the agent was a party to a fraud, or otherwise acted in such a way as to raise a presumption that he would not communicate the notice to his principal. Cave v. Cave, 15 Ch. D. 639; Patman v. Harland, 17 Ch. D. 353; Williams v. Williams, Id. 437.

§ 5. The doctrine of notice (formerly an equitable doctrine) is that a person who purchases an estate, although for valuable consideration, after notice of a prior equitable right, makes himself a mala fide purchaser, and will not be enabled, by getting in the legal estate, to defeat that right, but will be held a trustee for the benefit of the

person whose right he sought to defeat. (Basset v. Nosworthy, Rep. t. Finch 102; 2 White & T. Lead. Cas. 1.) Thus, if a vendor contract with two different persons for the sale to each of them of the same estate, and if the person with whom the second contract is made acquires notice of the first contract, and then procures a conveyance of the legal estate in pursuance of his own contract, the court will order him to convey the property to the first purchaser. Potter v. Saunders, 6 Hare 1. As to the doctrine of notice generally, Mark. El. L. § 487.

§ 6. As to notice of the assignment of a chose in action, see CHOSE, § 3. See, also, Lis Pendens; Priority; Registration; Tacking.

Notice, (what is). 7 Cranch (U.S.) 547; 3 Day (Conn.) 353, 492; 3 Hen. & M. (Va.) 144. (what is not). 5 Rawle (Pa.) 51; 5 Serg. & R. (Pa.) 253, 322; 16 Id. 160; 2 Watts (Pa.) 75. (when must be in writing). 3 Gr. (N. J.) 178; 19 Barb. (N. Y.) 537, 540; 14 Wend. (N. Y.) 539, 540. (when may be by parol). 5 Hill (N. Y.) 101; 15 Wend. (N. Y.) 427. (equivalent to "information," "intelligence," or "knowledge"). 4 3 Conn. 54. (of a deed, what is). 8 Pet. (U. S.) 38. (of prior conveyance, what is). 15 Wend. (N. Y.) 588. (of unregistered conveyance, what is). 6 Wend. (N. Y.) 226. (of a lien, effect of on a purchaser). 1 Munf. (Va.) 38. (to a corporation, what is). 1 Hall (N. Y.) 480. (decree when not considered, to purchasers). Tol. Lix 270. (a clerk by the year, when may be discharged without). 4 Car. & P. 208. (a servant, when entitled to, of dismissal). 3 Esp. 235. (an advertisement in a newspaper, when not considered notice). 2 Campb. 157. (what is sufficient, of the condition of a sale at auction). 3 Esp. 271. (to an agent, when good). 4 Paige (N. Y.) 127, 136; 3 Madd. Ch. 40. (limiting a common carrier's liability). 2 Stark. 279. (what is not within 30 Geo. III. c. 69, § 185). 1 Holt N. P. 27. (when registry is not considered). 1 Sch. & L. 103. (in insurance policy). 1 Gr. (N. J.) 121; 7 Cow. (N. Y.) 645; 9 Wend. (N. Y.) 163.

(in a statute). 52 Miss. 645; 32 Mo. 205; 1 Gr. (N. J.) 65; 18 Barb. (N. Y.) 393; 25 Id. 635; 53 Id. 407; 35 How. (N. Y.) Pr. 193; 3 Johns. (N. Y.) Cas. 108; 14 Wend. (N. Y.) 544.

VOL. II. 87

Notice, actual, (what is). 14 Ga. 145. Notice, constructive, (what is). 2 Mas. (U. S.) 536; 14 Ga. 145; 1 Sax. (N. J.) 204; 6 Paige (N. Y.) 189; 5 Sandf. (N. Y.) 157, 165; 18 Wend. (N. Y.) 407; 5 Binn. (Pa.) 134; 6 Serg. & R. (Pa.) 118, 124; 10 Id. 39. Notice, due, (what is). 1 McAll. (U. S.) 419. Notice, implied, (of prior unregistered deed, what is). 3 Pick. (Mass.) 149.

NOTICE IN LIEU OF SERVICE.— In lieu of personally serving a writ of summons (or other legal process), in English practice, the court occasionally allows the plaintiff (or other party) to give notice in lieu of service, such notice being such as will in all probability reach the party (Orders ix. and x). This notice is peculiarly appropriate in the case of a foreigner out of the jurisdiction, whom it is desired to serve with a writ of summons. 10 Ch. D. 550.

Notice in writing, (in a statute). 68 Me. 511. Notice, legal, (what is). 5 Binn. (Pa.) 129.

NOTICE OF ACTION.—When a statute imposes public or quasi-public duties on a person, such as a magistrate, constable, surveyor of highways, or the like, it frequently provides that before any action is brought against him for acts done in execution of his office, one month's notice of the intended action shall be served on him. Chit. Gen. Pr. 1303 et seq. See, also, Amends; Not Guilty.

NOTICE OF ADMISSION.—See Admission, § 2. NOTICE OF APPEARANCE.—See Appearance, § 3. NOTICE OF BREACHES.—See Particulars of Breaches and Objections. NOTICE OF CLAIM.—See Citation, § 2, n.

NOTICE OF DECREE OR ORDER. —In the English Chancery Division, when an action is instituted for the administration of the estate of a deceased person, or for the execution of the trusts of an instrument, by or against one member of a class of persons, (e. g. one of the executors, administrators, residuary legatees, next of kin, trustees, or cestuis que trust,) it is not necessary to join the other members of the class as plaintiffs or defendants in the action, provided they have served with notice of the decree or order directing the administration of the estate or execution of the trusts. After being so served they will be bound by the proceedings in the action in the same manner as if they had been originally made parties. (Stat. 15 and 16 Vict. c. 86; Dan. Ch. Pr. 858.) Thus,

NOTICE.

if an administration action is commenced by an

executor against one of the residuary legatees,

the other residuary legatees must be served with

notice of the decree or order. If a person so

served wishes to see that the action is properly

conducted, he should obtain an order for leave

to attend the proceedings (Id. 363), on which

he is entitled to be heard as if he were a party.

NOTICE OF DISHONOR.—See

Bill of Exchange, § 5.

NOTICE OF INQUIRY.—The plaintiff

must give a written notice of executing a writ

of inquiry to the defendant or his attorney.

Notice of inquiry, and of continuance of inquiry,

had to be given in town; but countermand of

notice of inquiry might be given either in town

or country, unless otherwise ordered by the

court or a judge. Ten days' notice shall be

given unless it is to be short notice, and then

four days are sufficient. 2 Chit. Arch. Pr. (12

edit.) 908. See Notice of Trial; Writ of

Inquiry.

NOTICE OF JUDGMENT.—A writ-

ten notice required by statute in some of

the States, to be served by the party enter-

ing a judgment upon his adversary or his

attorney, informing him of the time of

entry and character of the judgment.

Until this notice is served the time within

which the unsuccessful party may appeal

from the judgment does not commence to

run.

NOTICE OF LIS PENDENS.—A

notice that a suit is pending, filed to notify

all persons not to deal with defendant, in

respect to the subject-matter of the suit,

except at their peril. See Lis Pendens.

NOTICE OF MOTION.—A notice

in writing, entitled in a cause, dated and

signed by the attorney of the party in

whose behalf it is given, and addressed to

the opposite party or his attorney; stating

that, on a certain day designated, a mo-

tion will be made to the court for the

purpose or object stated.—Burrill.

NOTICE OF OBJECTIONS.—

See Particulars of Breaches and Objec-

tions.

NOTICE OF PROTEST.—See Bill of

Exchange, § 5.

NOTICE OF PROTEST, (effect of). 9 Pet. (U.

S.) 33; 10 Id. 580; 1 Harr. (N. J.) 397; 5

Wend. (N. Y.) 44, 587; 15 Id. 304; 2 Ad. & E.

N. s. 388, 410; 13 L. J. N. s. Exch. 17; 12

Mees. & W. 51.

(882)

NOTICE.

NOTICE OF TRIAL.—As soon as

the pleadings in an action are closed, the

plaintiff may give the defendant notice of

trial of the action, and thereby specify the

mode in which he desires the action to be

tried. If the plaintiff fails to give such a

notice within a certain time, the defendant

may give notice of trial, or move to dis-

miss the action for want of prosecution.

The action will be tried in the manner

mentioned in the notice, unless it is a case

in which the party to whom it is given is

entitled to have the action tried before a

jury and gives a counter-notice to that

effect, or unless the court orders it to be

tried in a particular way. Metropolitan

I. C. Rail. Co. v. M. Rail. Co., 5 Ex. D. 196.

See Action; Trial.

NOTICE OF WRIT OF SUM-

MONS.—

§ 1. Service on foreigner.—In an action

in the English High Court, when the defendant

is a foreigner, and is out of the jurisdiction, and

the plaintiff has obtained leave to serve him out

of the jurisdiction, the defendant is served with

a notice giving the substance of the writ of

summons, and stating what will be the result of

his not entering an appearance within the time

allowed. (Rules of Court, xi.; Forms (A) 1. 3;

Westman v. A. E. M. Snickarefabrik, 1 Ex. (1).

237; In re Howard, 10 Ch. D. 550.) This is

done in lieu of serving the defendant with the

writ of summons itself, because it is considered

inappropriate to serve the subject of a foreign

State with a mandate in the queen's name.

§ 2. Substituted service.—When a

defendant is suspected of keeping out of the

way to avoid service, the court sometimes allows

substituted service to be effected by notice of the

writ being given to the defendant, (Rules of

Court, ix. 2, x.,7.) e. g. by advertisement. See

Service.

Notice, presumptive, (defined). 1 Cow.

(N. Y.) 623, 612.

Notice, reasonable, (what is). 1 Pa. 462.

Notice, three months', (in an agreement).

3 Campb. 510.

NOTICE TO ADMIT.—In the practice

of the English High Court, either party to an

action may call on the other party by notice to

admit the existence and execution of any docu-

ment, in order to save the expense of proving it

at the trial; and the party refusing to admit

must hear the costs of proving it, unless the

judge certifies that the refusal to admit was

reasonable. No costs of proving a document

will in general be allowed, unless such a notice

is given. Rules of Court, xxxii. 2.

NOTICE TO PLEAD.—This was

necessary in all cases before the plaintiff

could sign judgment for want of a plea.

NOTICE.

It was usually indorsed on the declaration when delivered, and was generally a notice to plead within eight days. See 1 Chit. Arch. Pr. (12 edit.) 32, 244, 575, 588.

NOTICE TO PRODUCE.—

§ 1. At trial.—If one of the parties to an action is in possession of any document which would be evidence for the other party if produced, the latter may give him notice to produce it at the trial, and, in default of production, may give secondary evidence of it. Best Ev. 611; Common Law Proc. Act, 1852, § 119.

§ 2. Interlocutory.—At any time before the trial of an action, any party to an action or other proceeding may give any other party notice to produce for his inspection any document referred to in the pleadings or affidavits of the party to whom the notice is given. If he refuses to produce them without good cause, an order for inspection may be obtained from the court. See Inspection; Production.

NOTICE TO QUIT.—

§ 1. Where there is a tenancy of land from year to year, or from two years to two years, or other like indefinite period, a notice to quit is required, to enable either the landlord or the tenant to determine the tenancy without the consent of the other. As a general rule, no particular form is required, but the notice is usually in writing and formal.

§ 2. In some cases the length of notice required is fixed by special agreement between the lessor and lessee, in other cases it is fixed by a local custom, and in other cases by the general law of the land. Where a tenancy from year to year exists without a special agreement or local custom as to its determination, half a year's notice, expiring at the end of the first or some other year of the tenancy, must be given, in England; thus, if the tenancy commenced on the 25th March, notice to quit must be given on or before the 28th September, expiring on the 25th March following.

§ 3. In the case of land subject to the English Agricultural Holdings Act, 1875, a year's notice to quit is required instead of half a year. Woodf. Land. & T. 800 et seq.; Chit. Cont. 814.

…

NOTICE TO THIRD PARTY.—See NOTICE TO TREAT.— The notice which a railway company or other public body having compulsory powers for the purchase of land is bound to give to the persons interested in any land which it is empowered and desires to purchase. The notice demands particulars of the estate and interest of the persons to whom it is given, and states that the company is willing to treat for the purchase of the land. When a person receives such a notice, he may send a notice of claim to the company, stating his interest in the land, and the compensation he claims, and requiring the amount to be settled by arbitration in case of dispute. In other cases the compensation is fixed by a jury. Lands Clauses Act, 1845, § 18 et seq.; Hodg. Railw. 170 et seq.

NOTIFIED, (defined). 31 Conn. 381.

NOTING.—In the law of bills of exchange, noting is a minute or memorandum made by a notary on a bill which he has presented, and which has been dishonored. It consists of his initials and charges, and the date, and, in the case of foreign bills, is considered as preparatory to a formal protest (q. v.) Byles Bills 257.

NOTITIA.—Knowledge; information; intelligence; notice.

NOTORIAL.—The Scotch form of notarial (q. v.)—Bell Dict.

NOTORIOUS.—In the law of evidence, matters deemed notorious do not require to be proved. There does not seem to be any recognized rule as to what matters are deemed notorious; cases have occurred in which the state of society or public feeling has been treated as notorious, e. g. during times of sedition. Best Ev. 354.

NOTOUR.—In Scotch law, open; public; notorious; applied to such acts as adultery, bankruptcy, &c.—Bell Dict.

NOTWITHSTANDING, (in articles of marriage settlement). 1 Atk. 439.

(in a covenant). 8 Barn & C. 185; 3 Lev. 46; Litt. 62, 65, 80.

(in a will). 12 Wend. (N. Y.) 664.

NOTWITHSTANDING ANY ACT, (in a bond). 7 Serg. & R. (Pa.) 40.

NOTWITHSTANDING ANY ACT DONE, (in a covenant). 1 Saund. 60.

NOTWITHSTANDING ANY ACT DONE BY HIM, (in a covenant). Cro. Car. 496.

NOTWITHSTANDING ANY ACT MADE BY THE TESTATOR OR HIS ANCESTORS, (in a covenant). Cro. Car. 107.

NOUGHT, (defined). 4 Watts (Pa.) 374.

NOVA. (884) NUCES.

Nova constitutio futuris formam imponere debet non præteritis (2 Inst. 292): A new state of the law ought to affect the future, not the past.

NOVA CUSTOMA.—An imposition or duty. See Antiqua Custuma.

NOVA OBLATA.— See Oblata.

NOVA STATUTA.—The statutes beginning with Edward III. See Vetera Statuta.

NOVÆ NARRATIONES.—New counts. The collection called Novæ Narrationes contains pleadings in actions during the reign of Edward III. It consists principally of declarations, as the title imports; but there are sometimes pleas and subsequent pleadings. Articuli ad Novas Narrationes is usually subjoined to this little book and is a small treatise on the method of pleading. It first treats of actions and courts, and then goes through each particular writ, and the declaration upon it, accompanied with directions, and illustrated by precedents. 3 Reeves c. xvi. 152.

NOVALE.—Land newly ploughed and converted into tillage, and which had not been tilled before within the memory of man; also, fallow land.

NOVATIO.—Novation. (q. v.)

Novatio non præsumitur: A novation is not presumed.

NOVATION is where the promisee in a contract agrees to accept another person as the person to be bound in lieu of the original promisor. The term is practically confined to cases where a company or partnership transfers its liabilities to another company or partnership, in which case the question frequently arises whether there has been a novation, i. e. whether the creditors or promisees have agreed to accept the liability of the new company or partnership in discharge of the old company or partnership. (1 Lind. Part. 450; Wilson v. Lloyd, II. R. 16 Eq. 60; Bilborough v. Holmes, 5 Ch. D. 255.) The term is borrowed from the Roman law. Hint. Rom. L. 445 et seq.

NOVATION, (defined). 43 Miss. 451; 13 Am. Dec. 298 n.

NOVEL ASSIGNMENT.—See New Assignment.

NOVEL DISSEISIN.—See Assize of Novel Disseisin.

NOVELLÆ.—See Corpus Juris Civilis.

NOVELTY.—An objection to a patent on the ground that the invention is not new or original, is called an objection for want of novelty. It is a fatal objection, even if it only applies to part of the invention, unless the patentee has filed a disclaimer. See Disclaimer, § 2; Patent Right.

NOVITAS.—Novelty ; newness.

Novitas non tam utilitate prodest quam novitate perturbat (Jenk. Cent. 167): A novelty does not benefit so much by its utility, as it disturbs.by its novelty.

NOVITER PERVENTA, or NOVITER AD NOTITIAM PERVENTA.—In ecclesiastical procedure, facts "newly come" to the knowledge of a party to a cause. Leave to plead facts noviter perventa is generally given, in a proper case, even after the pleadings are closed, (Phillim. Eccl. L. 1257; 1iing. Eccl. L. 723,) or on appeal. Macph. Jud. Com. 213.

Novum judicium non dat novum jus, sed declarat antiquum; quia judicium est juris dictum et per judicium jus est noviter revelatum quod diu fuit velatum (10 Co. 42): A new adjudication does not make a new law, but declares the old ; because adjudication is the utterance of the law, and by adjudication the law is newly revealed which was for a long time hidden.

NOVUS HOMO.—A pardoned criminal or discharged insolvent is so called.

Now, (in an agreement). 4 Man. & G. 95, 90. — (in a deed). 5 Halst. (N. J.) 26. — (in Jen. Stat. ch. 22, § 28). 20 Kan. 390, 396. — (in a will). 1 Barn. & C. 350; 1 P. Wms. 597. — (in a will, when refers to its date). 1 Jarm. Wills 277, 278.

Noxa sequitur caput (Jur. Civ.): Guilt follows the person.

Where a slave did any damage, his master became liable therefor in a noxal action to the injured ; and this liability attached to the master for the time being, i. e. followed the principal (capt.). The master might deliver up the slave as a noxa, and so discharge himself of liability.—Brown.

NOXAL ACTION.—An action for damage done by slaves, or irrational animals. Fand. Inst. (5 edit.) 457.

Noxious, (defined). Burr. 337. — (in statute punishing abortion). 14 Vr. (N. J.) 80, 91.

NUCES COLLIGERE.—To collect nuts, This was formerly one of the works or services imposed by lords upon their inferior tenants. Par. Antiq. 495.

NUDA.

(885)

NUISANCE.

NUDA.— NUDE — NUDUS.— Naked; bare; void of consideration.

Nuda pactio obligationem non parit (D. 2, 14, 7, § 4): A naked agreement (i. e. without consideration) does not beget an obligation.

NUDE CONTRACT.— One made without any consideration, upon which no action will lie, in conformity with the maxim ex nudo pacto non oritur actio. 2 Bl. Com. 445; Add. Cont. (6 edit.) 3-8.

NUDE MATTER.— A bare allegation of a thing done.

NUDUM PACTUM.— See Nude Contract.

Nudum pactum, (defined). 1 Fonbl. 335 n. (what is). 1 Cai. (N. Y.) 584; 5 Serg. & R. (Pa.) 358, 361.

— (what is not). 5 Serg. & R. (Pa.) 8.

Nudum pactum est ubi nulla subest causa prceter conventionem; sed ubi subest causa, fit obligatio, et parit actionem (Plowd. 309): A naked contract is where there is no consideration except the agreement; but where there is a consideration, it becomes an obligation and gives a right of action.

NUISANCE is either public (common) or private.

§ 1. Public, or common.— A public or common nuisance is an act which interferes with the enjoyment of a right which all members of the community are entitled to, such as the right to fresh air, to travel on the highways, not to be exposed to danger to health from infectious diseases, unwholesome food, &c. Hence, if a person carries on a manufacture from which noxious fumes are emitted, or exposes for sale unwholesome food, or stops up or obstructs a highway, or allows buildings belonging to him near a highway to become ruinous, he commits a public nuisance. The remedy for a public nuisance (which is a misdemeanor) is by indictment or information, (Steph. Cr. Dig. 108 et seq.; 4 Steph. Com. 270; where a number of statutory nuisances (many of which are now rarely met with) are referred to,) and in certain cases by abatement (q. v.); and if special damage is caused to an individual, he has an action for damages or injunction against the wrong-doer. (Broom Com. L. 718, 914; Hill v. Metropolitan Asylums Board, 4 Q.

B. D. 433; 6 App. Cas. 193.) Modern legislation has also provided a summary mode of dealing with nuisances. Thus, under the English Public Health Acts, local sanitary authorities are required to ascertain by inspection what nuisances exist within their districts, and the local magistrates are empowered to deal summarily with such as are found to exist.

See the Public Health Act, 1875, § 91 et seq.; as to the Metropolis, see the acts mentioned in the fifth schedule to that act.

§ 2. Private nuisances.— A private nuisance is such a continuous infringement of a natural right of property as would in process of time give the wrong-doer an easement or prescriptive right to do an act which was originally tortious. (Gale Easem. 482, 502.) The infringement of an acquired right (e. g. an easement) is properly called a “disturbance” (q. v.)

Thus, if a man builds a house so close to mine that his roof overhangs mine, and the water flows off his roof upon mine, this is a nuisance for which an action will lie. Similarly, if my neighbor carries on a noisy or offensive trade, or if any one injuriously interferes with my water-course, market, ferry, or the like. The remedy for a nuisance is either by abatement (q. v. § 1), or by action for damages, injunction, or mandamus. 3 Steph. Com. 402 et seq. See Vernon v. Vestry of St. James, 16 Ch. D. 449. See Disturbance; Prescription; Tort.

Nuisance, (defined). 14 Conn. 317; 5 Barb. (N. Y.) 79, 82; 32 Tex. 208.

(what is). 2 Black (U. S.) 418; 3 Cr. (U. S.) C. 620; 12 Pet. (U. S.) 91; 31 Conn. 479, 487; 4 Ind. 264; 29 Id. 517; 3 Barb. (N. Y.) 157; 9 Id. 161, 350; 18 Id. 222; 33 Id. 282, 286; 4 Cow. (N. Y.) 351; 6 Id. 189; 83 Id. 146; 5 Hill (N. Y.) 121; 1 Hilt. (N. Y.) 126, 128; 24 How. (N. Y.) Pr. 301; 13 Johns. (N. Y.) 312; 26 N. Y. 287, 298; 28 Id. 396; 63 Id. 508; 9 Paige (N. Y.) 575; 4 Robt. (N. Y.) 449; 15 Wend. (N. Y.) 397; 23 Id. 354, 446; 70 N. C. 67; 5 Binn. (Pa.) 277; 19 Pa. St. 412; 52 Id. 243; 74 Id. 230, 241; 6 Phil. (Pa.) 82; 4 McCord (S. C.) 472; 3 Sneed (Tenn.) 134; 13 Rep. 555.

(what is not). 2 Black (U. S.) 485; 13 How. (U. S.) 518; 5 McLean (U. S.) 425; 21 Conn. 213; 28 Ind. 79; 10 La. Ann. 431, 438; 34 Mich. 212, 218; 2 C. E. Gr. (N. J.) 75; 9 Id. 49; 1 Stockt. (N. J.) 186; 7 Vr. (N. J.) 283; 2 Barb. (N. Y.) 104; 3 Hill (N. Y.) 604; 25 Pa. St. 161, 182; 73 Id. 29, 38; 2 Sneed (Tenn.) 263.

(in a covenant). L. R. 11 Eq. 338.

NUISANCE.

(886)

NULLITY.

Nuisance, (in statute for removal of). 1. R. 7 Q. B. 550.

(remedies for). 1 Chit. Gen. Pr. 383.

Nuisance, common, (defined). 5 Port. (Ala.) 279, 311 ; 8 Bac. Abr. tit. Nuisance.

Nuisance, public, (what is). 2 Ind. 440; 8 Barb. (N. Y.) 427 ; 7 Hill (N. Y.) 575 ; 25 How. (N. Y.) Pr. 139 ; Bright. (Pa.) 318; Pa. St. 463 ; 3 Am. L. Reg. 26, 79, 87.

(what is not). 9 Mass. 555; 34 Pa. St. 275.

(how abated). 14 Wend. (N. Y.) 250.

Nuisance, private, (what is). 4 Sandf. (N. Y.) Ch. 357.

Nul.—No; none. A law-French negative particle commencing many phrases, among which are—

Nul agard.—No award. A plea in an action on an arbitration bond, denying the making of any legal award.

Nul charter, nul vende, ne nul done vault perpetualment, si le donor n'est seise al temps de contracts de 2 droits, sc. del droit de possession et del droit de proprietie (Co. Litt. 266) : No grant, no sale, no gift, is valid forever, unless the donor, at the time of the contract, is seised of two rights; namely, the right of possession, and the right of property.

Nul disseisin, plea of.—A traverse in real actions, that there was no disseisin ; it was a species of the general issue.

Nul prendra advantage de son tort demesne (2 Inst. 713) : No one shall take advantage of his own wrong.

Nul sans damage avera error ou attaint (Jenk. Cent. 323) : No one shall have error or attaint unless he has sustained damage.

Nul-tiel agard.—No such award. A plea traversing an award. Under this plea defendant could not object to the award in point of law. 1 Saund. 327 a.

Nul tiel record.—The name given to that plea or defense which a defendant sets up to an action brought against him on some matter of record, when he avers that "no such record" as that alleged by the plaintiff exists. 3 Bl. Com. 330. See Contracts, § 10; Judgment; Mittimus; Record; Trial.

Nul tort, plea of.—A traverse in a real action that no wrong was done; it was a species of the general issue.

Nul waste.—A plea raising the general issue in the old action of waste.

Null.—Not of any effect or validity ; having no force or efficacy. Usually coupled with "void" by means of the conjunctive "and."

Null and void, (in a statute). 2 Ad. & E. 84, 94.

Nulla bona.—No goods. The name given to the return made by a sheriff, sequestrator, or other officer, to a writ or warrant authorizing him to seize the chattels of a person, when he has been unable to find any to seize. It is a not unfrequent return to a writ of fi. fa. (q. v.)

Nulla curia quæ recordum non habet potest imponere finem, neque aliquem mandare carceri; quia ista spectant tantummodo ad curias de recordo (8 Co 60) : No court which has not a record can impose a fine, or commit any person to prison ; because those powers belong only to courts of record.

Nulla impossibilia aut inhonesta sunt præsumenda; vera autem et honesta et possibilia (Co. Litt. 78) : Impossibilities or dishonesty are not to be presumed; but honesty, and truth, and possibility.

Nulla pactione effici potest ut dolus præstetur: I cannot effectually contract with any one that he shall charge himself with the fraud which I commit.

Nulla virtus, nulla scientia, locum suum et dignitatem conservare potest sine modestia (Co. Litt. 304) : Without modesty, no virtue, no knowledge, can preserve its place and dignity.

Nullity.—Want of force or efficacy; an error in litigation which is incurable, and thus differs from an irregularity which is amendable.

Nullity, (defined). 1 Cal. 281.

(distinguished from an irregularity). 40 Wis. 363.

(in legal proceedings). 42 Mich. 469; 1 T. R. 462.

NULLITY OF MARRIAGE.—Where a marriage is void, on the ground that it was to the knowledge of both parties celebrated without the proper formalities, or that one of them was not single at the time, or that they are within the prohibited degrees of consanguinity or affinity, or that one or both of them were not consenting to the marriage, or are unable to perform the duties of matrimony, then either of them, unless the default or defect invalidating the marriage lies in him or her only, may present a petition to the

proper court and obtain a decree declaring

the nullity of the marriage. Browne Div.

52 et seq. See DECREE, § 3; DIVORCE.

NULLIUS FILIUS.—A son of nobody,

i. e. a natural child.

Nullius hominis auctoritas apud nos

valere debet, ut meliora non sequemur si quis auctoritates (Co. Litt. 383): The

authority of no man ought to prevail with us, so

that we should not adopt better things, if another

bring them to us.

NULLUM ARBITRIUM.—A plea the

same as nul agard (q. v.)

Nullum crimen majus est inobedi-

entia. (Jenk. Cent. 77): No crime is greater

than disobedience.

A maxim applicable to the refusal by a sheriff

to return a writ.

Nullum exemplum est idem omni-

bus (Co. Litt. 212): No example is the same

in every part.

Nullum iniquum est præsumendum

in jure (7 Co. 71): No iniquity is to be pre-

sumed in law.

Nullum simile est idem nisi quatuor

pedibus currit (Co. Litt. 3): No like is

identical, unless it run on all fours.

NULLUM TEMPUS ACT.—See next

title.

Nullum tempus aut locus occurrit

regi (2 Inst. 273; Jenk. Cent. 83): No time

or place affects the king.

This is a maxim grounded on the principle

that no laches can be imputed to the sovereign,

whose time and attention are supposed to be

occupied by the cares of government (Chit.

Prerog. 379); and, therefore, the ordinary Stat-

utes of Limitations do not bind the crown. But

by the Nullum Tempus Act (9 Geo. III. c. 16),

and Stat. 24 and 25 Vict. c. 62, the common law

rule has been altered, and the crown is barred

by lapse of time in cases within those acts. The

Stats. 7 and 8 Vict. c. 106; 23 and 24 Vict. c.

53, and 24 and 25 Vict. c. 62, apply to the lands

of the Duchy of Cornwall. Brown Lim. 239

et seq.

Nullum tempus occurrit regi (applied).

2 Mas. (U. S.) 312; 23 Wend. (N. Y.) 446; 1

Bay (S. C.) 26; 1 Hen. & M. (Va.) 85; 6 Munf.

(Va.) 240.

NULLUS.—No; no person. The com-

moning word of several phrases and maxims,

such as the following—

Nullus alius quam rex possit epis-

copo demandare inquisitionem faci-

endam (Co. Litt. 134): No other than the

king can command the bishop to make an inqui-

sition.

Nullus commodum capere potest de

injuria sua propria (Co. Litt. 148): No

one can obtain an advantage by his own wrong.

Nullus dicitur accessorius post felo-

niam, sed ille qui novit principalem

feloniam fecisse, et illum receptavit

et confortavit (3 Inst. 138): No one is

called an accessory after the fact but he who

knew the principal to have committed a felony,

and received and comforted him.

Nullus dicitur felo principalis nisi

actor, aut qui præsens est, abettans

aut auxilians ad feloniam faciendam:

No one is called a principal felon except the

party actually committing the felony, or the

party present aiding and abetting in its com-

mission.

Nullus idoneus testis in re sua intel-

ligitur (D. 22, 5, 10): No person is under-

stood to be a competent witness in his own cause.

Nullus jus alienum forisfacere po-

test: No man can forfeit another's right.

Nullus simile est idem, nisi quatuor

pedibus currit: No like is exactly identical

unless it runs on all fours.

Nullus videtur dolo facere qui suo

jure utitur (D. 50, 17, 55): No one is con-

sidered to act with guile who uses his own right.

NUMBER OF SEEDS, (in indictment for erect-)

ing). 15 Mass. 240.

NUMBER OF SHEEP, (in a will). 3 Atk. 121.

NUMERATA PECUNIA.—Money

counted; money paid by count.

NUMMATA.—The price of anything in

money, as denariata is the price of a thing by

computation of pence, and librata of pounds.

NUMMATA TERRÆ.—An acre of

land.—Spel. Gloss.

Nummus est mensura rerum com-

mutandarum: Money is the measure of

things to be exchanged.

NUNC PRO TUNC.—In procedure,

the court sometimes directs a proceeding

to be dated of an earlier date than that on

which it was actually taken, or directs that

the same effect shall be produced as if it

had been taken at an earlier date. Thus,

if the entry of it has been delayed by the

act of the court, or if the plaintiff has

died between the hearing and the date

when the judgment was delivered. (See

Turner v. L. & S. W. Rail. Co., L. R. 17 Eq.

561 ) This is called entering a judgment

"nunc pro tunc," i. e. "now for then."

NUNC. (888) OATH.

NUNC PRO TUNC, (entry of judgment). 5 Watts (Pa.) 104, 105.

NUNCIATIO.—In the civil law, a solemn declaration, usually in prohibition of a thing; a protest.

NUNCIO.—A messenger, servant, &c.; a spiritual envoy from the pope.

NUNCUPATE.—To declare publicly and solemnly

NUNCUPATIVE WILL.—An oral will depending merely upon oral evidence, having been declared or dictated by the testator previous to his death, before a sufficient number of witnesses, and afterwards reduced into writing. Such wills are valid in most of the States, when made by soldiers or seamen, in extremis, and while engaged in active service, and not otherwise. In England, however, all wills must now be reduced into writing at the time they are made. (1 Vict. c. 26, § 1.)

In the interval between the Statute of Frauds (29 Car. 2 c. 3) and the New Wills Act (1 Vict. c. 26) nuncupative wills were good for estates not exceeding £30 in all, where the will was pronounced before three witnesses and was reduced into writing within six days after it was made, or was proved within six months of the making; but before the Statute of Frauds they were valid without limit as to estate, just as they always were in Roman law if made in the presence of seven witnesses. Just. ii. 10, 14.

Nuncupative will, (what is). 5 C. E. Gr. (N. J.) 473; 20 Am. Dec. 44 n.

NUNDINÆ.—A fair or fairs.

NUNDINATION.—Traffic at fairs and markets; any buying and selling.

O. C.—An abbreviation for ops consilio (q. v.)

O. NI.—It was the course of the English Exchequer, as soon as the sheriff entered into and made up his account for issues, amercements, &c., to mark upon each head (1. Ni.; which denoted oneratur, nini habebat sufficientem exonerationem, and presently he became the king's debtor, and a debet was set upon his head; whereupon the parties parvoile became debtors to the sheriff, and were discharged against the king, &c. 4 Inst. 116.

But sheriffs now account to the commissioners for auditing the public accounts.—Wluarton.

NUNQUAM.—Never. The initial word of several Latin phrases and maxims, such as the following—

Nunquam concluditur in falso: We never conclude with a fiction.

Nunquam crescit ex post facto præteriti delicti æstimatio (Bac. Max. Reg. 8): The estimation of a past offense is never increased by an after fact.

Nunquam decurritur ad extraordinarium sed ubi deficit ordinarium (4 Inst. 84): Recourse is never had to what is extraordinary, till what is ordinary fails.

NUNQUAM INDEBITATUS.—See Never indebted.

Nunquam præscribitur in falso: There is never prescription in case of falsehood.

Nunquam res humanæ prospere succedunt ubi negliguntur divinæ (Co. Litt. 15) : Human things never prosper where divine things are neglected.

NUPER OBIIIT.—He lately died. An abolished writ that lay for a sister and co-heir, deforced by her coparcener of lands or tenements, whereof their father, brother, or any other common ancestor died seised of an estate in fee-simple.—F. N. B. 197.

NUPER VICECOMES.—An ex-sheriff. See Distringas, § 3.

NUPTIAL.—Pertaining to marriage; constituting marriage; used or done in marriage.

Nuptias non concubitus sed consensus facit (Co. Litt. 33): Not cohabitation but consent makes the marriage.

NURTURE.—See Guardian, § 7.

NURUS.—A daughter-in-law.

NYCTHEMERON.—The whole natural day, or day and night, consisting of twenty-four hours.—Encycl. Lond.

NYMPHOMANIA.—See Erotomania.

OATH.—

§ 1. Oaths are of two kinds, according as they relate to the truth of a statement as to past events, or to an intention to de

OATH.

(889)

OBJECTS.

something at a future time. The latter are called "promissory oaths."

§ 2. Evidentiary oaths—Judicial—Extrajudicial—Voluntary.—An oath verifying a statement as to past events is a religious asseveration by which the party calls his God to witness that what he says is the truth; consequently, an oath may be administered to a person who believes in a God, although he is not a christian; while it cannot in the case of atheists or very young children, who have no relig- ious belief. (Best Ev. 62, 228. See Af- firm, § 3.) Such an oath is called "judicial," when given in a matter pending before a tribunal, and "extrajudicial," or "voluntary" in other cases. Declarations (q. v § 6) have been substituted for extra- judicial oaths in most cases. As to the punishment for making a false oath, see False Swearing; Perjury. See, also, Affidavit; Deposition.

§ 3. Promissory oaths include the oath of allegiance, (see Allegiance; Naturalization;) the official oath, taken by certain high officers on accepting office; the parliamientary oath, taken by mem- bers of legislative bodies before taking their seats; and the judicial oath, taken by the principal judges and justices of the peace on accepting office. Jurors, execu- tors, administrators, and some other per- sons are also required to take an oath for the due performance of their duties.

Oath, (defined). 2 Ala. 354; 10 Ohio 123; 1 Leach C. C. 430.

(what is an administration of, by the court). 48 Cal. 197; 41 Coun. 206.

Oath Against Bribery.—One which could formerly have been administered to a voter at an election for members of parlia- ment. Abolished by 17 and 18 Vict. c. 102.

Oath, Corporal, (synonymous with "solemn oath"). 1 Ind. 184.

Oath of Calumny.—See Calum- niæ Jurjurandum.

Oath, on, (in an indictment). Add. (Pa.) 180.

Oath-Rite.—The form used at the tak- ing of an oath.

Oath, swear and affidavit, (in a statute, what include). 13 and 14 Vict. c. 21, § 4.

OB.—About; for; on account of. A few Latin phrases and maxims, commence with this word. See a larger number of similar ones commencing with in.

OB CONTINENTIAM DELICTI.— On account of the contuminiating character of the offense. This use of the word continentia is probably without classical authority. The phrase expresses a ground for extending a sentence of condemnation, in maritime law, to prop- erty not confiscated on other grounds; as in the case of a vessel condemned for carrying des- patches for the enemy in time of war, the sentence may be extended to the cargo ob con- tinentiam delicti. (The Atlanta, 6 Rob. Adm. 440.)—Abbott.

OB CONTINGENTIAM.—On account of contingency ; by reason of similarity. See 7 Bell App. Cas. 163.

Ob infamiam non solet juxta legem terræ alicuis per legem apparentem se purgare, nisi prius convictus fuerit vel confessus in curia (Glanv. lib. 14, c. ii.): On account of evil report, it is not usual, according to the law of the land, for any person to purge himself, unless he have been previously convicted, or confessed in court.

OB TURPEM CAUSAM.—For a base or immoral cause or consideration. See Ex Turpi Causa Non Oritur Actio.

OBÆRATUS.—Among the Romans, a debtor who was compelled to serve his creditor until his debt was discharged.

OBEDIENCIA.—(1) An office, or the ad- ministration of it; (2) a kind of rent; (3) sub- mission; obedience.

Obedientia est legis essentia (11 Co. 100): Obedience is the essence of law.

OBEDIENTIARIUS.—A monastic offi- cer.—Du Cange.

OBIT.—A funeral solemnity or office for the dead; the anniversary office. The tenure of obit, or obituary, or chantry lands is taken away by 1 Edw. VI. c. 14, and 15 Car. II. c. 9.

OBITER DICTUM.—See Dictum.

Obiter dictum, (defined). 62 N. Y. 47, 58.

Object, (in State constitution). 11 So. Car. 458.

OBJECTION.—See Exception.

Objects charged with an internal tax, (in act of July 13, 1866, § 9). 8 Blatchf. (U. S.) 257.

Objects of a power.—Where property is settled subject to a power given to any person or persons to appoint the same among a limited class, the members of the class are called the "objects of the power." Thus, if a parent has a power to

OBJURGATRICES.

appoint a fund among his children, the children are called the "objects of the power."—Mozley & W.

OBJURGATRICES.—Scolds, or unquiet women, punished with the cucking-stool. See Castigatory.

OBLATA.—Gifts or offerings made to the king by any of his subjects; old debts, brought as it were together from preceding years, and put on the present sheriff's charge.

OBLATA TERRAE.—Half an acre, or, as some say, half a perch of land.—Spel. Gloss.

OBLATI.—Voluntary slaves of churches or monasteries.

OBLATI ACTIO.—A civil law action against one who had offered to the plaintiff a stolen thing, which was found in his possession. Inst. 3, 1, 4.

OBLATIO.—Offering; tender. (1) A civil law term signifying a tender by a debtor to his creditor of money in payment of the debt; (2) an offering to the church. See Oblations.

Oblationes dicuntur quæcunque a piis fidelibusque christianis offeruntur Deo et ecclesiæ, sive res solidæ sive mobiles (2 Inst. 389) : Those things are called oblations which are offered to God and to the church by pious and faithful christians, whether they are movable or immovable.

OBLATIONS, or obventions, are offerings or customary payments made, in England, to the minister of a church, including fees on marriages, burials, mortuaries, &c., (q. v.) and Easter offerings. (2 Steph. Com. 740; Phillim. Eccl. L. 1596.) They may be commuted by agreement. Stat. 2 and 3 Vict. c. 62, § 9.

OBLIGATIO.—An obligation (q. v.); a bond; a contract, and the liabilities arising thereunder.

OBLIGATION.—

§ 1. Obligation—Right and duty.—In its most general sense, especially in jurisprudence, obligation signifies the relation between two persons, one of whom can take judicial proceedings or other legal steps to compel the other to do or abstain from doing a certain act. (See the definitions of obligation collected in Holl. Jur. 162.) Although it includes both the right of the one and the duty of the other, the term is more frequently used to denote the latter.

§ 2. With reference to the origin and nature of obligations, see Right.

With reference to their remedies, obligations are either perfect or imperfect.

§ 3. Perfect.—A perfect obligation is one which can be directly enforced by legal proceedings in the ordinary way : thus, if A. contracts to pay B. $50, B. can enforce the obligation by bringing an action against A. See Remedy.

§ 4. Imperfect.—An imperfect obligation is one which cannot be directly enforced, but still has some legal effects. Imperfect obligations may be divided into two classes (Poll. Cont. (2 edit.) 568) : (1) An obligation may have been originally perfect, but have become imperfect from the remedy having been taken away; thus, if an action on a simple contract is not brought within the time prescribed by the statutes of limitations, the remedy by action is gone, although the right still exists, and may become available in certain cases ; for instance, if a debt is barred by the statute, the debtor may nevertheless, if he has the chance, obtain payment of it by a lien or by appropriation of payment, or the remedy may be revived by an acknowledgment by the debtor (see the various titles). (2) An obligation is imperfect if no proceedings can be taken on it, because it does not satisfy the requirements of the law in regard to form or otherwise; thus, no action can be brought on a contract for the sale of land, under the Statute of Frauds, so long as the contract is not in writing signed by the party to be charged; but the contract nevertheless exists for other purposes, and, therefore, money paid under it cannot be recovered back merely on the ground of its not being enforceable by action. So attorneys, medical practitioners, &c., cannot recover remuneration for their services unless they have complied with the acts requiring them to take out certificates (q. v.) Id. 578

§ 5. Obligation—Bond.—In the technical sense of the term, an obligation is the same thing as a bond. In the case of a conditional bond, the operative part is sometimes called the obligation, to distinguish it from the condition. See Bond.

Obligation, (defined). 6 Otto (U. S.) 600, 31 Conn. 261, 265; 14 Ga. 370; 15 Id. 321, 330. (as equivalent to "legal liability" or "legal duty"). 15 How. (N. Y.) Pr. 48.

OBLIGATION. (891) OBLIGATION, (a protested draft is not). 85 Pa. St. 44. (joint and several, what is). 4 Houst. (Del.) 546. (of a contract, in United States constitution). 4 Wheat. (U. S.) 197; 12 Id. 257, 300. (in a statute). 4 Houst. Del.) 546; 5 Abb. (N. Y.) Pr. 162; 38 Barb. (N. Y.) 616; 23 Hun (N. Y.) 580.

OBLIGATION OF CONTRACTS —The United States constitution forbids the States to pass laws impairing the obligation of contracts. For a list of decisions interpreting this constitutional provision, see IMPAIRING THE OBLIGATION OF CONTRACTS.

OBLIG-ATION SOLIDAIRE. — This, in French law, denotes joint and several liability in English law, but is applied also to the joint and several rights of the creditors parties to the obligation. See JOINT, § 2 et seq.

Obligations, all the, for money due to him, (in a will). 4 Pick. (Mass.) 349. Obligations, bonds or other, (in a statute). 1 Bay (S. C.) 445. Obligatory, writing, (in a pleading). Hempst. (U. S.) 294.

OBLIGEE. — The person in whose favor an obligation or bond is entered into; a creditor. Obligee, (in a particular act). 1 Scam. (Ill.) 140. OBLIGOR. —He who enters into an obligation or bond; a debtor.

OBLIQUA ORATIO. —The manner of reporting a speech or drawing an affidavit, in which "he," not "I," stands for the speaker in giving his words; and hence the words "you," "your" never occur, and every sentence begins with the word that expressed or understood, but generally expressed in the first sentence only. It is opposed to the oratio directa, sometimes called a "speech in the first person," in which the very words of the speaker are given.

OBLITERATION. — Erasure, or blotting out of written words. See ALTERATION OF WRITTEN INSTRUMENTS. OBREPTION. — The obtaining a gift of escheat by a false suggestion. —Bell Dict.

OBROGATION. — In the civil law, the alteration of a law by the passage of one inconsistent with it. —Calv. Lex. OBSCENE—OBSCENITY. — A publication is said to be obscene when its tendency is to deprave and corrupt those

whose minds are open to such immoral influences, and into whose hands it is likely to fall. (See Reg. v. Hicklin, L R. 3 Q. B 371; cited Shortt Copyr. 312.) Obscene publications or libels are punishable with fine or imprisonment, being misdemeanors. Many statutes have been passed, both in England and America, making obscene exhibitions indictable offenses, and, in some instances, giving magistrates power to issue warrants for searching houses for obscene books, pictures, &c., and to have them destroyed. Shortt 312; Steph. Cr. Dig. 105; Stat. 14 and 15 Vict. c. 100, § 79; 20 and 21 Vict c. 83. See, also, Common-wealth v. Landis, 8 Phil (Pa.) 453, and the statutes of the several States. See INDECENCY.

Observance and performance, for the true and faithful, (in an agreement). 4 Barn. & C. 103. OBSIGNATORY. — Ratifying and confirming.

OBSOLETE. — A term sometimes applied to statutes and judicial decisions, which have become inoperative without being repealed, or expressly overruled, by subsequent statutes or decisions. "It must be a very strong case to justify the court in deciding that an act standing on the statute book, unrepealed, is obsolete and invalid. I will not say that such case may not exist — where there has been a non-user for a great number of years — where, from a change of times and manners, an ancient sleeping statute would do great mischief if suddenly brought into action — where a long practice inconsistent with it has prevailed, and especially where from other and later statutes it might be inferred that in the apprehension of the legislature the old one was not in force." Per Tilghman, C. J., in 13 Serg. & R. (Pa.) 452.

Obsolete, (when a statute 'is). 8 Wheel. Am. C. L. 153. (in a will). 2 Pa. 455. OBSTANTE. — Withstanding; hindering. See NON OBSTANTE. OBSTRICTION. — Obligation; bond.

Obstruct, (in a bill of complaint). 6 C. E. Gr. (N. J.) 27.

OBSTRUCT.

(892)

OCCUPANCY.

Obstruct, (in 9 Stat. at L. 452, § 7). 4 Am. L. J. 459, 490.

Occasioned, (in a statute). 4 Rawle (Pa.) 459.

Obstruct or hinder, (in a statute). 14 Bush (Ky.) 479.

OCCASIONEDs. —Assarts. — Spel. Gloss.; voc Essartum. See Assart.

Obstructing execution of process, (what is). 2 Tyler (Vt.) 212; 2 Wheel. Cr. Cas. xxxviii.

Occultatio thesauri inventi fraudulosa (3 Inst. 133): The concealment of discovered treasure is fraudulent.

Obstructing passage of the mail, (what 's). 3 Am. L. J. 123, 131; 2 Wheel. Cr. Cas. 513.

OBSTRUCTION. —This is the word properly descriptive of an injury to any one's incorporeal hereditament, e. g. his right to an easement, or profit à prendre; an alternative word being disturbance. On the other hand, infringement is the word properly descriptive of an injury to any one's patent rights or to his copyright. But obstruction is also a very general word in law, being applicable also to every hindrance of a man in the discharge of his duty (whether official, public or private).— Brown.

OCCUPANCY —OCCUPANT.—

§ 1. Occupancy is where a person takes possession of an ownerless thing.

Obstruction, (defined). 6 Heisk. (Tenn.) 347, 368.

§ 2. Chattels.—Occupancy, as a mode of acquiring title to personal property, is of comparatively little importance in modern law, being principally confined to the case of goods unclaimed or thrown away, (see Derelict; Estrays; Waifs.) and game or animals feræ naturæ (e. g fish in the sea or a river) when taken by the finder or pursuer. (2 Bl. Com. 402.) The doctrine has, however, served as the foundation for a theory of the origin of ownership. See Mark. El. Law § 464 et seq. See Game, § 4.

—(of highway). 39 Iowa 607.

§ 3. General, or common occupancy of land.—As regards land, the doctrine of occupancy was formerly of some importance. If A granted land to B during the life of C, and B died before C, then there was no one entitled to the land, because A had parted with his right during C's life, and B's estate had determined with his own death; therefore, any one might enter on the land and retain possession during the remainder of C's life. A person so entering was called an "occupant," "because his title is by his first occupation," (Co. Litt. 41b), or more commonly, a "general occupant," because any one might enter in this manner. (As to general occupancy in copy-holds, see Elt. (coph. 10.) This doctrine of general or common occupancy was abolished by the Statute of Frauds, (Stat. 29 Car. II. c. 3, § 12,) under which, and subsequent statutes, (Stats. 14 Geo. II. c. 20, § 9; and 1 Vict. c. 26, § § 3, 6,) a tenant pur autre vie may dispose of his interest by will, and in default of such disposition it forms part of his personal estate.

—(in consolidation act of 1854, § 28). 78 Pa St. 23.

§ 4. Special occupancay. —If A grants land to B, and his heirs during the life of C, and B dies before C., B's heir may enter and hold possession, and in such case he is called a "special occupant," having a special right of occupancy by the terms of the grant. (2 Bl. Com. 258; 1 Steph. Com. 418; Wms. Real Prop. 20.) Blackstone includes rights of water, air &c. emblements, copyright, and patents among things which are acquired by occupancy. See Estate Tail, § 9; Freehold, § 3.

Obstruction of mail, (what is not). 3 Wheel. Cr. Cas. 304.

§ 5. In international law, occupancy is regarded as the title to the ownership of newly-discovered countries; and also

—(does not include arrest of carrier). Wilberf. Stat. L. 128.

Obstruction to navigation, (what is not). 78 Pa. St. 23, 25.

Obtaining and recovering payment, (in writ of mandamus). L. R. 4 II. L. 449.

Obtemperandum est consuetudini rationabili tanquam legi (4 Co. 38): A reasonable custom is to be obeyed as a law.

OBTEST. —To protest.

OBTULIT SE. —Offered himself. The emphatic words entered on the record under the old common law practice, where one party offered himself, and the other did not appear.

OBVENTION. —See Oblations.

Obvious, (defined). 12 Conn. 219, 220.

OCCASIO. —(1) A tribute which the lord imposed on his vassals or tenants for his necessity. (2) Hindrance: trouble; vexation by suit.

Occasion must require as, (in a covenant). 1 Holt 543; 7 Taunt. 411.

Occasion shall require as, (in a power of attorney). 7 Barn. & C. 278.

OCCASIONARI. —To be charged or loaded with payments or occasional penalties.

Occasioned, (in insurance policy). 22 N. Y. 441, 447.

OCCUPANCY.

(893)

OCCUPIED.

(under the particular name of hostile capture), as the title to the ownership of newly-conquered countries.

Occupancy, (defined). 3 Gr. (N. J.) Ch. 48; 3 Cai. (N. Y.) 175.

(what constitutes). 110 Mass. 175; 25 Barb. (N. Y.) 54.

(not synonymous with "possession"). 21 Ill. 178.

(in a charter). 10 C. E. Gr. (N. J.) 218.

(in a statute). . 38 Ill. 263.

Occupancy, to finish said house ready for, (in an agreement). 119 Mass. 224, 227.

Occupant, (defined). 3 C. Opp. Att.-Gen. 126; 3 Nev. 485; 11 Abb. (N. Y.) Pr. 97, 101; 1 Oreg. 166; 1 Utah T. 129.

(who is). 3 Op. Att.-Gen. 182; 36 Mich. 226.

(who is not). 33 Me. 419.

(not synonymous with "party in possession"). 3 Nev. 485.

(of town site). 3 Minn. 448.

(in a statute). 13 Metc. (Mass) 172; 25 Barb. (N. Y.) 54; 15 Wend. (N. Y.) 348; Nov. 65, 70.

Occupant, actual, (in act of congress). 12 How. (N. Y.) Pr. 544.

Occupant of the land, (in a statute). 36 How. (N. Y.) Pr. 544.

Occupantis flunt derelicta: Things abandoned become the property of the first taker. See Derelict.

OCCUPATILE.-That which has been left by the right owner, and is now possessed by another.

OCCUPATION — OCCUPIER.—

Latin: occupatio, from capere, to take or seize. In Roman law, occupatio signified "occupancy." 2 Just. Inst 1, 12; Hunt. Rom. L. 109.

§ 1. In its usual sense, occupation is where a person exercises physical control over land. Thus, the lessee of a house is in occupation of it so long as he has the power of entering into and staying there at pleasure, and of excluding all other persons (or all except one or more specified persons) from the use of it. Occupation is, therefore, the same thing as actual possession. (See Hadley v. Taylor, L. R. 1 C. P. 53; Robinson v. Briggs, L. R. 6 Ex. 1.) Coke also speaks of the occupation of goods (Co. Litt. 172a), but this use of the word is not common. See Possession; Use and Occupation.

§ 2. Permissive.—Permissive occupation is where the occupier has merely a license or permission from the person entitled to the occupation. See Parker v. Leach, L. R. 1 P. C. 812.

§ 3. Ratable occupation.—In the English law of rating, occupation signifies actual use and enjoyment, as distinguished from mere possession.

session. Thus, a freeholder is in the possession of the minerals beneath the surface of his land, and of a house which is to let, whether empty or in the custody of a caretaker, but he is not in occupation of them for the purpose of rating.

To constitute a ratable occupation, it must be exclusive as well as beneficial; therefore, lodgers (q. v.), licensees (supra, § 2), and servants are not ratable occupiers. Cast. Ra. 26, 82; Reg. v. Malden, L. R. Q. B. 326; L. & N. W. Rail. Co. v. Buckmaster, L. R. 10 Q. B. 70, 444; Watkins v. Milton-next-Gravesend, L. R.' 3 Q. B. 350; Cory v. Bristow, 2 App. Cas. 262; Hare v. Oversears of Putney, 7 Q. B. D. 223.

§ 4. Voting.—In the law of parliamentary and municipal elections, the occupation of a dwelling-house, lands, or lodgings, is one kind of qualification, in England, for being registered as a voter. See Stats. 2 Will. IV. c. 45; 30 and 31 Vict. c. 102; 41 and 42 Vict. c. 26; Durant v. Carter, L. R. 9 C. P. 261; Robinson v. Briggs, L. R. 6 Ex. 1.

§ 5. Occupatio bellica.—In a technical sense, "occupation" is a word of art, and signifieth putting out of a man's freehold in time of warre, and it is all one with a disseisin in time of peace." (Co. Litt. 249 b) Such an occupation, however, did not produce a descent cast as a disseisin formerly did. (Litt. § 412. See Descent Cast.) And in civilized warfare at the present day, occupation of an enemy's territory is only temporary, and does not interfere with the rights of private owners, even if the territory is permanently annexed by the conquerors. (Holtz. Encycl. i. 811.) As to movables, see Capture; Prize.

Occupation, (what is not). 59 Me. 287.

(distinguished from "possession"). 19 Cal. 633.

(equivalent to "possession"). 11 Abb. (N. Y.) Pr. 97; 1 Hill. & E. 533.

(in a statute). 15 Serg. & R. (Pa.) 36.

Occupation of a, now in the, (in a will). 1 Mau. & Sel. 209; 1 Rop. Leg. 290.

Occupation of land, (in bill of sale act). L. R. 6 Ex. 1.

OCCUPATIVE. — Possessed; used; employed.

OCCUPAVIT.—A writ that lay for him who was ejected from his freehold in time of war, as the writ of novel disseisin lay for one disseised in time of peace.

Occupied, (in fire policy). 112 Mass. 422; 17 Am. Rep. 117.

(in homestead exemption act). 36 Wis. 73.

(within the meaning of a tax law). 13 Vr. (N. J ) 113.

OCCUPIED. (894) OFFENSE.

Occupied, (in a statute). 113 Mass. 518. Odiosa et inhonesta non sunt in

Occupied as a residence, (construed). 79 lege præsumenda; et in facto quod se

Ill. 455 habet ad bonum et malum, magis de

Occupied by me, (in a will). 4 C. E. Gr. bono quam de malo præsumendum

(N. J.) 471. est (Co. Litt. 78):- Odious and dishonest

Occupied by the plaintiff, (in a search warrant). 41 Me. 254. things are not to be presumed in law ; and in an

act which partakes both of good and bad, the

presumption should be more in favor of what is

good than what is bad.

OCCUPIER.—See OCCUPATION.

Occupier, (defined). 2 Saund. 7, n. (9). ŒCONOMICUS.—An executor.—Cowell.

— (who is). 1 Pa. 71 ; Burr. 1004. ŒCONOMUS.—A manager or adminis-

(synonymous with "inhabitant"). 3 trator.—Calv. Lex.

T. R. 523. ŒCUMENICAL.—See ECUMENICAL.

— (in act relative to nuisances). L. R. Of, (a more general word than "at"). 3

7 Q. B. 418. Mau. & Sel. 171, 172.

— (in a statute). 2 Mod. 188. — (equivalent to "by" ). 107 Mass. 355,

Occupier of apartments, (who is). 1 361.

Lutw. 199. — (in a bond). 1 Paine (U. S.) 336.

Occupier of real property, (in a statute). — (in a contract). 2 Bing. N. C. 668.

12 East 344. Of and concerning, (in a declaration). 16

Occupiers or inhabitants, (who are). East 58.

Cowp. 79, 83. — (in an indictment). 4 Mau. & Sel.

Occupy, (synonymous with "possess"). 84 164, 169.

Pa. St. 514. — (in an information). Cowp. 672.

— (in a deed). 4 T. R. 177, 181. — (in a statute). 4 Rawle (Pa.) 249.

— (in guaranty for rent). 12 R. I. 130. Of and concerning the matters aforesaid,

— (in a will). 1 Baldw. (U. S.) 454. (in a declaration). 3 Barn. & C. 113.

Occupy, actually, (who does not). 1 Pick. Of counsel.—A phrase commonly

(Mass.) 387. applied in practice to the counsel employed

Occupy lands, (a deed to, is a mere license). by a party in a cause.

4 Johns. (N. Y.) 418. Of course.—A step in an action or

Occupy, or continuing to occupy, (in act other proceeding is said to be of course

exempting homesteads from sale). 18 Ill. 194; when the court or its officers have no dis-

21 Id. 178. cretion to refuse it, provided the proper

Occupying, by, (in an agreement). 4 Car. formalities have been observed. In this

& P. 65. sense the issue of a writ or summons is a

matter of course. (See Writ.) The term

is most commonly applied to those orders

OCHLOCRACY.—A form of govern-

ment wherein the populace has the whole

power and administration in its own hand;

a democracy ; mob rule.

OCTAVE.—In old English law, the eighth

day inclusive after a feast; one of the return

days of writs. 3 Bl. Com. 278.

OCTO TALES.—See TALES.

Oderunt peccare boni, virtutis

amore; oderunt peccare mali, for-

midine poenæ: (Good men hate sin through love of virtue; bad men through fear of punish-

ment.

ODEIAL.—Complete property, as opposed

to feudal tenure. The transposition of the syl-

labies of odhal makes it allod'h, and hence,

according to Blackstone, arises the word allodial (q. v.) All-odl is thus put in contradis-

tinction to fee-odh. (2 Bl. Com. 45 n.)—Moxley

& W.

ODIO ET ATIA.—See De Odio et

Atia.

which are obtained by petition, or ex parte

application of course, e. g. an order ap-

pointing a guardian ad litem for an infant

defendant or respondent, orders for leave

to attend proceedings, (as to which, notice

of DECREE,) and certain orders for

amendment and revivor. An order of

course improperly obtained may be set

aside. Dan. Ch. Pr. 1435.

Of or concerning, (in a declaration is

an action of slander). 2 Mumf. (Va.) 193.

Of the country, (in pleading, is equivalent

to saying "in inhabitant of the county"). 2

Wend. (N. Y.) 329.

OFFENSE.—The word "offense" has

no technical meaning in modern law, but

it is commonly used to signify any public

wrong, including, therefore, not only

crimes or indictable offenses, but also offenses punishable on summary conviction.

Offense, (defined). 1 Dak. T. 110; 1 Gr. (N. J.) 314; 3 Wheel. Cr. Cas. 583; 2 Bulst. 299; 1 Chit. Gen. Pr. 14.

(in the declaration of rights). 127 Mass. 550, 554.

Offenses aforesaid, (in a statute). 4 Serg. & R. (Pa.) 129.

Offensive weapons, (what are not). 5 Car. & P. 326; 1 Chit. Gen. Pr. 626; 1 Leach C. C. 342 n.

OFFER.—Every agreement in substance consists of an offer made by one party and its unconditional acceptance by the other. An acceptance, with conditions or new terms added, is in effect a new offer, and does not operate as an acceptance of the original offer. An offer may be withdrawn at any time before it has been unconditionally accepted, and if the person to whom an offer is made refuses it, or neglects to accept it within a reasonable time, it is deemed to be at an end, and he cannot afterwards revive it by purporting to accept it. Chit. Cont.; Poll. Cont., passim. See ACCEPTANCE; AGREEMENT; LETTER.

Offer, (defined). 3 Johns. (N. Y.) Cas. 198. Offer and propose, (in an indictment). 1 Pa. Leg. Gaz. 455. Offer to transport, (in a statute). 1 Whart. (Pa.) 448. Offering, (distinguished from “promising”). 4 Harr. (Del.) 559.

OFFERINGS.—Personal tithes, payable by custom to the parson or vicar of a parish, either occasionally, as at sacraments, marriages, christenings, churching of women, burials, &c.; or at constant times, as at Easter, Christmas, &c. 2 and 3 Edw. IV. cc. 13, 20, 21.

OFFERTORIUM.—The offerings of the faithful, or the place where they are made or kept; the service at the time of communion.

OFF-GOING CROP.—See AWAY-GOING CROP; EMBLEMENTS, § 1.

OFFICE.—

§ 1. In general—Public, and private. —In the usual sense of the word, an office is the right and duty to exercise an employment. Thus, we speak of the office of a trustee, executor, guardian, director, sheriff, judge, &c. Offices are either public or private, a public office being one which entitles a man to act in the affairs of others without their appointment or permission. (2 Steph. Com. 620; Co. Litt. 233 a.) Public offices are granted either for a term of years, for life or during good behavior (dum bene se gesserit), or during the pleasure of the appointor (durante bene placito), and some offices in England are capable of being granted to a man and his heirs (in which case they are incorporeal hereditaments), or of being entailed, in which case they are also tenements. Co. Litt. 20 a; 2 Bl. Com. 36.

§ 2. Of trust — Ministerial. — Public offices are either offices of trust, which cannot be performed by deputy (including offices of judges, justices of the peace and other judicial offices), or ministerial offices, which may be performed by deputy. 2 Steph. Com. 621. As to offices of honor, see Co. Litt. 165 a; Stats. 5 and 6 Edw. VI. c. 16, and 49 Geo. III. c. 126, prohibit the buying and selling of public offices. See OATH, § 3.

As to private offices, see EXECUTOR; GUARDIAN; TRUSTEE; and the other titles dealing with them.

§ 3. Inquest of office.—“Office” is frequently used in the old books as an abbreviation for “inquest of office” (q. v.) When the jury on inquest of office had found the facts to be inquired into, and the verdict or inquest had been returned, the office was said to be found and returned. There are two sorts of offices; the one, called the “office of intuiting,” vests the estate and possession of the land in the sovereign, where he had only right or title before. The other, called the “office of instruction,” is where the estate is already in the sovereign, but the particularity of the land does not appear of record. Tidd 1057, n. (e); 10 Co. 115 a; Gilb. Exch. 109.

Office, (defined). 6 Wall. (U. S.) 335; 21 Ill. 65; 12 Ind. 589; 23 Id. 449; 36 Miss. 273; 37 N. Y. 518; 71 Id. 238, 243; 83 Id. 376; 42 Super. (N. Y.) Ct. 481; 2 Bl. Com. c. 3, 36.

(what it is). 28 Cal. 382; 8 Blackf. (Ind.) 329; 22 Barb. (N. Y.) 595; 1 Hopk. (N. Y.) Ch. 6; 29 Ohio St. 347; Carth. 478.

(what is not). 7 Port. (Ala.) 293, 393; 6 Cush. (Mass.) 181; 20 Johns. (N. Y.) 492; 52 N. Y. 478; 17 Serg. & R. (Pa.) 220; 1 Munf. (Va.) 483; 1 Barn. & C. 237.

(in constitution of Maine). 3 Me. 481.

OFFICE.

(896)

OFFICER.

Office, (in constitution of New York). 2 Cow. (N. Y) 13.

—— (in constitution of Pennsylvania). 3 Serg. & R. (Pa.) 145.

—— (is not property). 1 Daly (N. Y.) 219; 37 N. Y. 518.

—— (in a tenement). Burr. 1289.

—— (appointing to, distinguished from "commissioning"). 1 Cranch (U. S.) 156.

—— (covenant to procure an appointment to). 2 Car. & P. 1.

—— (how terminated). 9 Wend. (N. Y.) 258.

—— (under government). 13 Otto (U.S.) 8.

—— (in articles of association). L. R. 3 C. P. 484.

—— (in a statute). 6 Cush. (Mass.) 181; 46 N. Y. 375, 381 ; L. R. 3 Ex. 137 ; L. R. 9 Q. B. 148.

Office and employment, (in a statute). 1 Const. (S. C.) 58, 59.

Office book.—Any book for public records kept under authority of the State, in public offices not connected with the courts.

Office, civil, (what is). 41 Mo. 29.

—— (what is not). 3 Harr. (Del.) 294.

Office copy.—See Copy, § 1.

Office during pleasure, (the position of paymaster of exchequer is). 9 Bing. 692; 3 Tyrw. 509.

Office-found.—See Inquest of Office; Office, § 3.

Office grant.—A conveyance made by a public officer in certain cases, where the owner of the land conveyed is either unwilling or unable to execute the requisite deeds to pass title.

Office hours.—That portion of the day during which public offices should be open for the transaction of business.

Office, in his, (in a statute). 3 Ct. of Cl. 260.

Office, lucrative, (what is). 10 Cal. 38; 19 Ind. 351.

Office of honor, (what is). 17 Ill. 191.

Office of profit, (that of comptroller of the State is). 10 Cal. 38.

—— (in constitution of Pennsylvania). 1 Serg. & R. (Pa.) 9.

Office of profit and trust, (what is). 4 Ind. 1.

Office of public trust, (in State constitution). 52 N. Y. 478; 11 Am. Rep. 734.

Office of trust, (commissioner of the United States Centennial Commission is). 11 R. I. 638.

Office of the judge.—In ecclesiastical law, "the office of the judge is pro-

moted" when criminal proceedings are taken. The meaning of the expression is, that inasmuch as all spiritual criminal jurisdiction is in the hands of the bishop or ordinary (judex ordi-narius), his office or function is set in motion whenever such proceedings are instituted. Phillim. Ecc. L. 1087.

Office, or franchise, (the position of deputy adjutant general is). 2 Gr. (N. J.) 84.

Office, or place of profit in the government, (in a statute). Burr. 1004.

Office, public, (in State constitution). 71 N. Y. 238, 243.

Officer.—The incumbent of an office; one who is lawfully invested with an office.

Officer, (defined). 45 Ill. 397 ; 15 Mich. 366; 40 Id. 503; Carth. 478.

—— (who is). Baldw. (U. S.) 179; 20 Wall. (U. S.) 234; 22 Id. 492; 10 Ct. of Cl. 426; 8 Cal. 39; 10 Gray (Mass.) 173; Hopk. (N. Y.) 6; 26 Ohio St. 196; 5 Rawle (Pa.) 191, 203; 9 Watts (Pa.) 416; 2 Tex. App. 458.

—— (who is not). Brock. (U. S.) 447, 481; 41 Ala. 399; 28 Cal. 603; 4 Harr. (Del.) 154; 45 Ill. 397; 35 Iowa 561; 4 La. Ann. 307; 25 Id. 138; 33 Miss. 508; 1 Nev. 130; 2 Keyes (N. Y.) 192; 42 Superior (N. Y.) 481; Phill. (N. C.) L. 76; 21 Pa. St. 525; 9 Phil. (Pa.) 556; 3 Pittsb. (Pa.) 527 ; 27 Eng. L. & Eq. 190.

—— (in State constitution). 40 Mich. 503; Edm. (N. Y.) Sel. Cas. 498.

—— (in a statute). 2 Ben. (U. S.) 303, 316; 3 Cranch (U. S.) 336; 4 J. J. Marsh. (Ky.) 192; L. R. 4 Q. B. 649; 5 Mod. 431; 4 T. R. 490, 492.

Officer de facto, or de jure.—See De facto; De jure.

Officer, de facto, (defined). 33 Gratt. (Va.) 514.

—— (who is). 21 Ohio St. 610, 618; 19 Am. Dec. 61, 63 n., 66 n.

Officer, milita, (in a statute). 5 Wheat. (U. S.) 46.

Officer, public, (defined). 7 How. (N. Y.) Pr. 248.

—— (what constitutes). 33 Gr. 332; 7 Metc. (Mass.) 152; 2 N. H. 246; 2 Hill (N. Y.) 196; 7 How. (N. Y.) Pr. 248; 11 Id. 240; 22 Id. 368; 74 Pa. St. 124; Carth. 479.

—— (who is not). 20 Johns. (N. Y.) 404; 50 How. (N. Y.) Pr. 353; 70 N. C. 93; 21 Ohio St. 14; 8 Am. Rep. 24; 32 Wis. 124.

—— (in a statute). 2 Hill (N. Y.) 196.

—— (official character of, how proved). 9 Wend. (N. Y.) 18; 13 Id. 494.

Officer, public, civil, (a clergyman in the celebration of marriage is). 4 Conn. 209.

Officer of election, (who is not). 2 Ben. (U. S.) 303, 316; 2 Dill. (U. S.) 219.

Officer of the commonwealth, (in a statute). 3 Pittsb. (Pa.) 527.

Officer of the law, (in a statute). 12 R. I. 478.

Officer of the United States, (who is). 3 Blatchf. (U. S.) 425; Gilp. (U. S.) 399.

(who is not). 1 Curt. (U. S.) 15.

Officer, spiritual, (a parish clerk is). 2 Ld. Raym. 1507.

Officers, (in a statute). 3 Moo. & S. 251.

Officers and seaman, (includes whom). 8 Op. Att.-Gen. 28.

Officers, public, (in a statute). 4 Yeates (Pa.) 412.

OFFICERS OF JUSTICE.— A general name applicable to all degrees of persons concerned in the administration of the law, but it is commonly confined to the lower degrees of such persons, and almost exclusively to those who execute the processes of the courts, e. g. writs of fi. fa., of arrest, attachment, sequestration, and the like.

Officers, parish and ward, (in a statute). 7 East 182.

Officia judicialia non concedantur antequam vacent (11 Co. 4): Judicial offices should not be granted before they are vacant.

Officia magistratus non debent esse venalia (Co. Litt. 234) : The offices of magistrate ought not to be sold.

OFFICIAL.—Pertaining to a public charge or office. In the civil law, he is the minister of, or attendant upon, a magistrate. In the canon law, he is the person to whom a bishop commits the charge of his spiritual jurisdiction; there is one in every diocese, called officialis principalis. i. e. chancellor; (see Official Principal;) the rest, if there are more, are efficacias forciae, i. e. commissaries. In modern English statute, he is the person whom the archdeacon appoints as his substitute. Wood Inst. 30, 505. See Diocesan Courts.

OFFICIAL ASSIGNEE—OFFICIAL LIQUIDATOR.—See Assignee, p. 87, n; Liquidator, § 3.

Official liquidator, (defined). 3 Steph. Com. 24.

OFFICIAL LOG-BOOK.—A log-book in a certain form, and containing certain specified entries required by 17 and 18 Vict. c. 104, §§ 280—282, to be kept by all British merchant ships, except those exclusively engaged in the coasting trade. See Log-Book.

OFFICIAL MANAGERS.—Persons formerly appointed, under English statutes now repealed, to superintend the winding up of insolvency companies under the control of the Court of Chancery.—Wharton.

Official misconduct, (in a statute). 9 Tex. App. 212.

OFFICIAL OATH.—By the 31 and 32 Vict. c. 72, a form of “official oath” is prescribed, and by § 5 it is enacted that “the oath of allegiance and official oath shall be tendered to and taken by each of the officers named in the first part of the schedule annexed hereto as soon as may be after his acceptance of office by the officer, and in the manner that behalf mentioned in the said first part of the said schedule.” See Oath, § 3. See, also, the 34 and 35 Vict. c. 48.

Official papers, (what are). 6 Serg. & R. (Pa.) 215, 221; 4 Watts (Pa.) 132.

(what are not). 2 Watts (Pa.) 338.

OFFICIAL PRINCIPAL.—An ecclesiastical officer whose duty it is to hear causes between party and party as the delegate of the bishop or archbishop by whom he is appointed. He generally also holds the office of vicar general (q. v.) and (if appointed by a bishop) that of chancellor (q. v., § 5). The official principal of the province of Canterbury is called the “dean of arches” (q. v. and see Court of Arches). Phillim. Eccl. L. 1203 et seq.

OFFICIAL REFEREE.—See Referee.

Official signature, (what is). 9 Pet. (U. S.) 675.

OFFICIAL SOLICITOR TO THE COURT OF CHANCERY.—An officer in England, whose functions are to protect the suitors’ fund (q. v.), and to administer, under the direction of the court, so much of it as now comes under the spending power of the court. He acts for persons suing or defending in forma pauperis, when so directed by the judge, and for those who, through ignorance or forgetfulness, have been guilty of contempt of court by not obeying process. He also acts generally as solicitor in all cases in which the Chancery Division requires such services. (Second Rep. Legal Dep. Comm. (1874) 40.) The office is transferred to the High Court by the Judicature Acts, (Judicature Act, 1873, 77), but no alteration in its name appears to have been made.

OFFICIAL TRUSTEE OF CHARITY LANDS.—The secretary of the English charity commissioners. He is a corporation sole for the purpose of taking and holding real property and leaseholds upon trust for an endowed charity in cases where it appears to the court desirable to vest them in him. He is a bare trustee, the possession and management of the land remaining in the persons acting in the administration of the charity. Staut. 16 and 17 Vict. c. 137, § 47 et seq.; 18 and 19 Vict. c. 124, § 15.

OFFICIAL TRUSTEES OF CHARITABLE FUNDS.—Persons in whom the money, stocks or investments of any endowed

charity may be vested, in England, (either voluntarily or by order of the court, ) for the purpose of security or convenient administration. They are appointed by the lord chancellor, jointly with the secretary to the charity commissioners, and form a corporation. Stats. 16 and 17 Vict. c. 137, § 51 et seq.; 18 and 19 Vict. c. 124, § 17.

OFFICIAL USE.—An active use before the Statute of Uses, which imposed some duty on the legal owner or feoffee to uses, as a conveyance with directions for him to sell the estate and distribute the proceeds amongst B., C. and D. To enable A. to perform this duty, he had the legal possession of the estate to be sold.—Wharton.

OFFICIALITY.—The court or jurisdiction of which an official is head.

OFFICIARIIS NON FACIENDIS VEL AMOVENDIS.—A writ addressed to the magistrates of a corporation, requiring them not to make such a man an officer, or to put one out of the office he has, until inquiry is made of his manners, &c.—Reg. Orig. 126.

Officii virtute, (distinguished from “color officii ). 15 Johns. (N. Y.) 267. (when is an act done). 5 Wend. (N. Y.) 265.

OFFICINA JUSTITIAE.—A department of the common law jurisdiction of Chancery, out of which original writs issued.

OFFICIO, OATH EX.—An oath formerly administered to persons by which they were compelled to confess, accuse, or purge themselves of certain criminal or quasi-criminal (i. e. heretical) charges. This oath was made use of in the spiritual courts even in matters of civil right. It was abolished with the High Commission Court by Stat. 16 Car. I. c. 11.—Brown.

OFFICIOUS WILL.—A testament by which a testator leaves his property to his family. Sand. Inst. (5 edit.) 207.

Officium nemini debet esse damnosum: An office ought to be injurious to no one.

OFTEN IF NEED BE, AND MORE, (in a statute). Str. 1263.

Orio, (in the surveys of land, means prima facie the “Ohio river”). 2 Ind. 274.

Oil cloth foundation, (as synonymous with “floor-cloth canvas”). 1 Otto (U. S.) 362.

Old, (in a statute). 67 N. Y. 59.

OLD NATURA BREVIUM.—An old book containing an account of the writs in use in the time of Edward III. It is usually cited O. N. B., or Vet. N. B. Fitzherbert made it the model of his own treatise on the same subject. 3 Reeves Hist. Eng. Law 151.

OLD STYLE.—See NEW STYLE.

OLD TENURES.—A treatise, so called to distinguish it from Littleton's book on the same subject, which gives an account of the various tenures by which land was holden, the nature of estates, and some other incidents to landed property in the reign of Edward III. It is a very scanty tract, but has the merit of having led the way to Littleton's famous work. 3 Reeves Hist. Eng. Law 151.

OLDEST SON, (in a will). 106 Mass. 25, 28.

OLERON.—An island lying in the bay of Acqaintain, at the mouth of the river Charente, formerly in the possession of England. The inhabitants of Oleron have been able mariners for seven or eight hundred years past. They are said to have drawn up the laws of the navy, still called the “Laws of Oleron.” According to the French writers, these maritime laws were digested as the Role des Jugemens d'Oleron, by direction of Queen Eleanor, wife of Henry II. as Duchess of Guienne, and enlarged and improved by her son, Richard I.—Selden (de Dom. Mar. c. xiv.) maintains that they were compiled and promulgated by Richard I. as king of England, as Mons. Boucher, of Paris, and the English Judges, consider the whole account fallacious. The former calls the story of our Richard I. and Queen Eleanor, une chimère de plus invraisemblable Monthly Review, Dec., 1811. The Laws of Oleron were to a great extent the foundation of the maritime laws of most states of Europe.—Wharton.

OLIGARCHY.—A form of government wherein the administration of affairs is lodged in the hands of a few persons.

OLOGRAPH.—An instrument (e. g. a will) wholly written by the person from whom it emanates. See Holograph.

OLYMPIAD.—A Grecian epoch; the space of four years.

Omissio eorum quæ tacito insunt nihil operatur (2 Bls. 131): The omission of those things which are silently understood is of no consequence.

OMISSION TO APPROINT, (in probate act). 15 Minn. 159.

OMISSION TO NAME THE REAL OWNER, (in a statute). 4 Vr. (N. J.) 39.

OMITTANCE.—Forbearance.

Omne actum ab intentione agentis est judicandum; a voluntate procedit causa vitio actus virtutis (Jenk. iv.) Every act is to be estimated by the intention of the doer; the cause of vice and virtue proceeds from the will.

Omne crimen ebrietas et incendit et detegit (Co. Litt. 247): Drunkenness both kindles and uncovers every crime.

Omne jus aut consensus fecit, aut necessitas constituit aut firmavit consuetudo (D. 1, 3, 40) : Every right is either made by consent, or is constituted by necessity, or is established by custom.

Omne magis dignum trahit ad se minus dignum, quamvis minus dignum sit antiquius (Co. Litt. 355) : Everything more worthy draws to it the less worthy, although the less worthy be the more ancient.

Omne magnum exemplum habet aliquid ex iniquo, quod publica utilitate compensatur (Hob. 279): Every great example has some portion of evil, which is compensated by the public utility.

Omne majus continet in se minus, in se complectitur (Jenk. Cent. 208) : The greater contains or embraces the less.

Thus, a tender by a debtor to his creditor of more money than is actually owing is perfectly good for what actually is due.

Omne majus dignum continet in se minus dignum (Co. Litt. 43) : The more worthy contains in itself the less worthy.

Omne quod solo inædificatur solo cedit (D.47, 3, 1): Everything which is built upon the soil belongs to the soil.

Omne sacramentum debet esse de certa scientia (4 Inst. 279) : Every oath ought to be of certain knowledge.

Omne testamentum morte consum-matum est (3 Co. 29) : Every will is completed by death.

Omnes licentiam habent his, quæ pro se introducta sunt, renunciare (Broom Max. (5 edit.) 699) : Every one has the right to renounce those things which have been granted for his own benefit.

Omnes sorores sunt quasi unus hæres de una hæreditate (Co. Litt. 67) : All sisters are, as it were, one heir to one inheritance. See Coparcener.

Omni exceptione majus (4 Inst. 262) : Above all exception.

Omnia delicta in aperto leviora sunt (8 Co. 127) : All crimes done openly are lighter.

Omnia præsumuntur contra spoliatorem: Everything is presumed against a wrong-doer.

A maxim signifying "that if a man by his own tortious act withhold the evidence by which the nature of his case would be manifested, every presumption to his disadvantage will be adopted.

Thus, if a man withholds an agreement under which he is chargeable, it is presumed to have been properly stamped" (1 Sm. Lead. Cas. 367) ; so, where A. detained some jewels of unknown value belonging to B., and B. brought an action

to recover damages for the detention, their value was calculated as being that of the finest jewels of the same size. Armory v. Delamirie, 1 Str. 504.

Omnia præsumuntur contra spoliatorem, (applied). 87 Ill. 342; 6 Stew. (N. J.) 257.

Omnia præsumuntur legitime facta donec probetur in contrarium (Co. Litt. 232) : All things are presumed legitimately done, until it be proved contrariwise.

Omnia præsumuntur rite et solemniter esse acta donec probetur in contrarium (Co. Litt. 232) : All things are presumed to have been rightly and duly performed until it is proved to the contrary.

Thus, where there is a proper attestation clause to a will which appears on the face of it to be duly executed, the court assumes that the Wills Act has been complied with, even although the witness may forget the circumstances. See Vinnicombe v. Butler, 34 L. J. (P. & M.) 18.

Omnia præsumuntur solemniter esse acta (Co. Litt. 6) : All things are presumed to have been rightly.

Omnia quæ jure contrahuntur contrario jure pereunt (D. 50, 17, 100) : All things which are contracted by law perish by a contrary law.

Omnia quæ sunt uxoris sunt ipsius viri; non habet uxor potestatem sui, sed vir (Co. Litt. 112) : All things which belong to the wife belong to the husband; the wife has not power over herself, but the husband.

But see Husband and Wife.

Omnia rite acta præsumuntur (Broom Max. (5 edit.) 944) : All things are presumed to have been rightly done.

Omnis conclusio boni et veri judicii sequitur ex bonis et veris præmissis et dictis juratorum (Co. Litt. 226) : Every conclusion of a good and true judgment arises from good and true premisses, and the words of the jury.

Omnis consensus tollit errorem (2 Inst. 123): Every assent removes error.

Omnis definitio in jure civili periculosa est, parum est enim ut non subverti possit (D. 50, 17, 202) : All definition in the civil law is hazardous, for there is little that cannot be subverted.

Omnis exceptio est ipsa quoque regula: Every exception is itself also a rule.

Omnis innovatio plus novitate perturbat quam utilitate prodest (2 Bulst. 338) : Every innovation occasions more harm by its novelty than benefit by its utility.

Omnis interpretatio si fieri potest ita fienda est in instrumentis, ut

omnes contrarietates amoveantur (Jenk. Cent. 96): Every interpretation, if it can be done, is to be so made in instruments, that all contradictions may be removed.

Omnis nova constitutio futuris formam imponere debet, non præteritis: Every new enactment should lay down a rule for the future, not for the past.

Omnis nova constitutio futuris temporibus formam imponere debet, non præteritis (2 Inst. 95): Every new enactment should affect future, not past times.

Omnis privatio præsupponit habitum (Co. Litt. 339 a): Every privation presupposes former enjoyment.

Omnis querela et omnis actio injuriarum limitata est infra certa tempora (Co. Litt. 114 b). Every plaint and every action for injuries is limited within certain times.

Omnis ratihabitio retrotrahitur et mandato priori æquiparatur: Every ratification relates back and is equivalent to a prior authority. Chit. Cont. 196.

Therefore, if A. professes to enter into a contract on my behalf without my authority, and I afterwards ratify it, my ratification relates back, so as to have the same effect as if I had authorized A. to enter into the contract. See RATIFICATION.

OMNIUM.—The aggregate of certain portions of different stocks in the public funds.

Omnium, (defined). 2 Esp. 631.

Omnium contributione sarcitur quod pro omnibus datum est (4 Bing. 121): That which is given for all is recompensed by the contribution of all.

A principle of the law of general average.

On, (when means “near to”). 45 Mo. 319.

(as synonymous with “for”). 2 Brod. & B. 473, 587.

(in an indictment). 4 Rawle (Pa.) 464.

(in a statute). 3 P. D. 47, 50; Wil-berl. Stat. L. 139.

On a passage, (in marine policy). 103 Mass. 238; 4 Am. Rep. 543.

(when a ship is). 1 Bonv. Inst. 486.

On a public highway, (in act defining misdemeanors). 64 Ind. 553.

On a stream, (in a deed). 3 Sumn. (U. S.) 170.

ON ACCOUNT OF WHOM IT MAY CONCERN.—See FOR WHOM IT MAY CONCERN.

On account of whom it may concern, (in a policy of insurance). 3 Keyes (N. Y.) 17.

On all or either, (in a fire policy). 112 Mass. 136; 17 Am. Rep. 72.

On arrival, (in a contract for the sale of goods). 2 Canph. 320.

On board, (in marine policy). 16 East 240. (goods on ship, seller not bound to deliver). 3 Campb. 272.

(goods shipped on vessel and afterward unloaded and re-loaded). 16 East 177.

On call, or at any time called for, (equivalent to “demanded,” or “on demand”). 22 Gratt. (Va) 609.

On condition, (in an agreement). 8 Barn. & C. 303.

On demand, (in a mortgage). 123 Mass. 520.

(in a promissory note). 6 Dowl. & Ry 379.

On duty, (in an insurance policy). 1 Cinc. (O.) 410.

On each side of said line, (in land grant to railroad). 24 Minn. 517, 576.

On file, (when construed “deposited”). 17 Minn. 95.

On hand, all the money, (in a will). 5 Phil. (Pa.) 214.

On my side, relations, (in a will). 1 Taunt. 263, 270.

ON OR ABOUT.—A phrase used in affidavits and other instruments in reciting the date of an occurrence or conveyance, to avoid the injurious consequences of possible error in a more precise recital.

On or before, (in a bond). 1 W. Bl. 210.

(in a covenant). 1 East 619; 2 Saund. 48 n.

(in a policy of marine insurance). 4 Campb. 111.

(in a promissory note). 31 Mich. 421; 18 Am. Rep. 197.

(in a return of surveyors to lay out a road). South. (N. J.) 291, 292.

(in a statute). 21 Barb. (N. Y.) 630; 6 Wend. (N. Y.) 486.

(in a stipulation). 6 J. J. Marsh. (Ky.) 156.

On or before the trial, (in a statute). 2 Whart. (Pa.) 159.

On payment of costs, (in a judgment, with leave to plead). 6 Cow. (N. Y.) 582.

On store, (equivalent to “on land”). 1 Bos. & P. 187, 189.

On the road, (in a deed). 9 Gray (Mass.) 37, 38.

On the stocks, a bank, (in an insurance policy). 11 N. Y. 532.

On trial, (in a statute). 121 Mass. 31, 32.

On water, employed, (in a contract). 3 Jones (N. C.) L. 1.

ONCE A MORTGAGE ALWAYS A MORTGAGE.—This phrase means that an indenture which is intended in the first instance to operate as a deed of mortgage only, and not as a purchase deed, cannot by any clause or agreement therein be made to operate as a purchase or otherwise than as a mortgage upon any specified event.—Broom.

ONCE.

Once a week, (in a statute). 4 Pet. (U. S.) 361.

Once a week during three successive weeks, (in a statute). 2 Miles (Pa.) 150, 151.

ONCE IN JEOPARDY.—See Autrefois Acquit; Autrefois Convict; Jeopardy.

Once in six months, (in a statute). 1 Taney (U. S.) 143.

ONCUNNE.—Accused.—Du Cange.

One day after date, (in a promissory note). 2 Pa. St. 495.

One foot high, less than, (in an agreement). 2 Zab. (N. J.) 165.

One-half, (as used in deed, construed as "undivided half"). 2 Minn. 214.

ONE HUNDRED THOUSAND POUNDS CLAUSE.—A precautionary stipulation inserted in a deed making a good tenant to the praecipe in a common recovery. See 1 Pres. Conv. 110.

One of the printers, (in a statute). 16 Serg. & R. (Pa.) 359.

One of whom shall be on duty at all times, (in a policy of insurance). 1 Cinc. (O.) 410.

One pair of boots, (in indictment for stealing). 3 Harr. (Del.) 559.

One part of his farm to the other along the road, (in turnpike act). 4 Yeates (Pa.) 416.

ONE-THIRD NEW FOR OLD.—See New for Old.

One thousand, (defined). 3 Barn. & Ad. 23.

One thousand dollars, (bequest of). 9 Vt. 41.

ONERANDO PRO RATA PORTIONIS.—See De Onerando, &c.

ONERARI NON DEBET.—He ought not to be burdened. A form of commencement of a pleading, substituted in some few cases for actionem non. But see 1 Saund. 290, n. (b).

ONERATIO.—A lading; a cargo.

ONERATUR NISI.—See O. Nisi.

ONERIS FERENDI.—Of bearing a burden. A civil law servitude, compelling the wall or pillar of one house to sustain the weight of the neighboring house.

ONEROUS.—A contract, lease, share or other right, is said to be "onerous" when the obligations attaching to it counterbalance or exceed the advantage to be derived from it, either absolutely or with reference to the particular possessor.

OPEN.

As to disclaimer of onerous property by a trustee in bankruptcy, see DISCLAIMER, § 3.

ONEROUS CAUSE.—In the Scotch law, a good and legal consideration.

ONEROUS CONTRACT.—In the civil law, a contract entered into for a consideration given or promised, however small. (La. Civ. Code, Art. 1767).—Bouvier.

ONEROUS DEED.—In the Scotch law, a deed given for a valuable consideration.

ONEROUS GIFT.—A gift made subject to certain charges imposed by the donor on the donee.

Onerous title, (what is). 13 Cal. 471.

Only, (in a reservation in a lease). 22 Pick. (Mass.) 518, 520.

Only for his life, (in a will). Burr. 52; Fortes. 149.

Only, for life, (in a will). 2 Str. 731.

ONOMASTIC.—A term applied to the signature of an instrument, the body of which is in a different handwriting from that of the signature. Best Ev. 257, § 210.

ONUS.—(1) A burden, or load; a weight. (2) The lading or cargo of a ship. (3) A charge; an incumbance.

ONUS EPISCOPALE.—Ancient customary payments from the clergy to their diocesan bishop, of synodals, pentecostals, &c.

ONUS IMPORTANDI.—The charge of importing merchandise, mentioned in 12 Car. II. c. 28.

ONUS PROBANDI.—See Burden of Proof.

Onus probandi, (defined). 1 Houst. (Del.) 44.

OPE CONSILIO.—By aid and counsel in import to the "aiding and abetting" of the common law. Often written ope et consilio. (Inst. 4, 1, 11, 12).—Burill.

OPEN.—

§ 1. Apparent; manifest; not concealed. Also, in session, as a court is open; and to begin, as to open a cause. Also, to retract or vacate conditionally, as to open a judgment.

§ 2. At trial of action.—The trial or hearing of an action at Nisi Prius, in England, is commenced by the junior counsel for the plaintiff "opening the pleadings," i. e. stating shortly the substance of them to the jury, after which the senior counsel for the plaintiff addresses the jury on the

whole case. (Chit. Gen. Pr. 383.) In the Chancery Division, the trial or hearing of an action commences with the speech of the plaintiff's senior counsel, which is called the "opening." This latter course is the one generally pursued in American practice, where frequently the plaintiff has only one counsel, who is generally his attorney also. See REPLY.

§ 3. Opening biddings.—Formerly where an estate had been sold under the order of the English Court of Chancery, the court was in the habit of "opening the biddings," i. e. allowing a person to offer a larger price than the estate was originally sold for, and of directing a resale accordingly. But this practice has been abolished, except in the case of fraud or improper management of the sale. Stat. 30 and 31 Vict. c. 48; Wms. Real Prop. 170; Dan. Ch. Pr. 1183.

OPEN ACCOUNT. § 5.—See ACCOUNT,

Open account, (defined.) 1 Ala. 62; 6 Id. 438; 1 Gr. 275; 14 Ia. 379.

(is used in contradistinction to "stated account"). 47 Tex. 13.

(in act of March 5th, 1852, § 2). 13 La. Ann. 160.

Open accounts, (in a statute). 21 La. Ann. 406; 4 Hen. & M. (Va) 266.

Open and extend streets, (in a statute). 11 C. E. Gr. (N. J.) 248.

Open and keep in repair, (in an authority to road commissioners). 20 How. (U. S.) 135; 1 Serg. & R. (Pa.) 487.

Open and notorious insolvency, (what is). 8 Blackf. (Ind.) 304.

OPEN COURT.—A court which is in session for the transaction of all judicial business, and to which all orderly and well-behaved persons have free access as spectators.

Open court, (defined). 45 Iowa 501, 503.

Open court, at the trial in, (in a statute). 2 Barn. & C. 580, 582.

Open entry, (defined). 100 Mass. 108.

OPEN FIELDS, or MEADOWS.—In English law, fields which are undivided, but belong to separate owners; the part of each owner is marked off by boundaries until the crop has been carried, when the pasture is shared promiscuously by the joint herders of all the owners. Elt. Com. 31. See Dorr, § 1; Lot, § 2.

Open gross lewdness (in an indictment). 1 Mass. 8.

OPEN LAW.—The making or waging of law. Mag. Char. c. 21.

Open lewdness, (what constitutes). 18 Vt. 874.

OPEN POLICY.—One in which the value of the ship or goods insured is not fixed by the policy, but left to be ascertained in case of loss.

OPEN THEFT.—A theft that is manifest. Leg. Hen. 1 c. 13.

Opened and dedicated to the public use, (in a statute). 102 Mass. 480.

Opened and worked, (in a statute). 70 N. Y. 430.

OPENING A COMMISSION.—Entering upon the duties under a commission, or commencing to act under it. Thus, the judges of assize and Nisi Prius derive their authority to act under and by virtue of commissions directed to them for that purpose; and, when they commence acting under the powers so committed to them, they are said to open the commissions, and the day on which they so commence their proceedings is thence termed the "commission day of the assizes."—Brown.

OPENING A JUDGMENT.—This takes place where a judgment is so far annulled, by act of the court, that it cannot be enforced, although it still retains its binding operation as a lien upon the real estate of the defendant. It is done when some one having an interest makes affidavit to facts which, if true, would render the enforcement of the judgment inequitable.

OPENING A RULE.—The act of restoring or recalling a rule, which has been made absolute, to its conditional state, as a rule nisi, so as to re-admit of cause being shown against the rule. Thus, when a rule to show cause has been made absolute under a mistaken impression that no counsel had been instructed to show cause against it, it is usual for the party at whose instance the rule was obtained to consent to have the rule opened, by which all the proceedings subsequent to the day when cause ought to have been shown against it are in effect nullified, and the rule is then argued in the ordinary way.—Brown.

OPENING A TRIAL.—See OPEN, § 2.

OPENING BIDDINGS.—See OPEN, § 3.

OPENING PLEADINGS.—See OPEN, § 2.

Openly and publicly, (in a declaration in action of slander). 2 Cro. 801.

OPENTIDE.—The time after corn is carried out of the fields.

OPERARII.—Such tenants, under feudal tenures, as held some little portions of land by

the duty of performing bodily labor and servile works for their lord.—Wharton.

Operate on the lands, (in a contract). 20 Pick. (Mass.) 150.

Operating expenses, (in a statute). Mass. 154, 527.

OPERATIO.—One day's work performed by a tenant for his lord.

Operative, (in a statute). 2 Cush. (Mass.) 371, 373.

OPERATIVE PART.—In a conveyance, lease, mortgage, or other formal instrument, the operative part is that which carries out the main object of the instrument. Thus, in a conveyance or lease, the operative part consists of the operative words of conveyance or demise and the parcels. Sometimes everything which follows the recitals (q. v.) is called the "operative part," for the term has no fixed meaning. (See 1 Davids. Conv. 44.) In a mortgage, the operative part consists of (1) the covenant for payment of the mortgage debt; (2) the conveyance of the mortgaged property; and (3) the proviso for reconveyance. 2 Id. 508 et seq.

OPERATIVE WORDS.—In the original sense of the phrase, operative words are words which have an operation or effect in the creation or transfer of an estate. Thus, in a gift of land to A. B. and the heirs of the body of A., the word "heirs" is an operative word, because it creates an estate of inheritance in A.; and the words "of the body" are operative words, because they limit an estate tail. (Co. Litt. 26 a. See Heir, § 9.) More often, however, such words are called "words of limitation" (q. v.), and the term "operative words" is applied to those words which pass an estate. Thus, the words "enfeoff," "grant," "bargain and sell," demise," "alien," "release," and "confirm," are used in conveyances of freehold land as operative words, i. e. for the purpose of effecting an alienation of the land from the grantor to the grantee. 1 Dav. Prec. Conv. 72 et seq. See the various titles.

OPETIDE.—The ancient time of marriage, from Epiphany to Ash-Wednesday.

Opinio est duplex; scilicet, opinio vulgaria, orta inter graves et discre-

tos, et quæ vulgatum veritatis habet; et opinio tantum orta inter leves et vulgares homines, absque specie veritatis (4 Co. 107) : Opinion is of two kinds, namely, common opinion, which springs up among grave and discreet men, and which has the appearance of truth; and opinion which springs up only among light and foolish men, without the semblance of truth.

Opinion, (in an award). 1 Ry. & M. 17.

& R. (Pa.) 67.

(in report of commissioners). 14 Serg. & R. (Pa.) 67.

(Conn.) 238.

OPINION EVIDENCE.—See Evidence, § 7.

Opinion, unqualified, (defined). 16 Cal. 128.

OPORTET.—It behooves, or is necessary. The initial word of the following among other maxims—

Oportet quod certa res deducatur in judicium (Jenk. Cent. 84) : A thing certain must be brought to judgment.

Oportet quod certa sit res quæ venditur (Bract. 61 b) : It is necessary that there should be a certain thing which is sold.

Oportet quod certæ personæ, terræ, et certi status, comprehenduntur in declaratione usuum (9 Co. 9) : It is right that given persons, lands and estates, should be comprehended in a declaration of uses.

OPPOSER.—An officer formerly belonging to the green-wax in the Exchequer.

Opposing interest, (what is). 14 Bankr. Reg. 449.

(in the bankrupt act). 7 Biss. (U. S.) 280.

Opposita juxta se posita magis elucescunt (Bacon) : Things opposite are more conspicuous when placed together.

OPPOSITE.—An old word for opponent.

Opposite, (in a deed). 58 Me. 357.

OPPOSITE PARTY, (in a statute). 10 Heisk. (Tenn.) 447.

OPPRESSION.—The misdemeanor committed by a public officer, who, under color of his office, wrongfully inflicts upon any person any bodily harm, imprisonment, or other injury. 1 Russ. Cr. & M. 297; Steph. Cr. Dig. 71. See Extortion.

OPPROBRIUM.—In the civil law, ignominy; infamy; shame.

Optima est legis interpres consuetudo (Loft 237; D. 1, 3, 37) : Custom is the best interpreter of the law.

OPTIMA

(904)

OR.

Optima est lex quæ minimum relinquit arbitrio judicis; optimus judex qui minimum sibi (Bac. Aphor. 46): That system of law is best which confides as little as possible to the discretion of a judge; that the best who relies as little as possible on his own opinion.

Optima statuti interpretatrix est (omnibus particularis ejusdem inspectis) ipsum statutum (8 Co. 117): The best interpreter of a statute is [all the separate parts being considered] the statute itself.

OPTIMACY.—Nobility; a class of men of the highest social rank.

Optimus interpres rerum usus (2 Inst. 282): Custom is the best interpreter of things.

Optimus interpretandi modus est sic leges interpretari ut leges legibus concordant (8 Co. 169): The best mode of interpretation is so to interpret laws that they may accord with each other.

Optimus legum interpres consuetudo (4 Inst. 75): Custom is the best interpreter of the laws.

Thus, a uniform and invariable interpretation of any particular statute, extending over centuries, is not to be destroyed or impugned upon any grounds of argument whatsoever; notwithstanding the interpretation does not commend itself as the right one. Morgan v. Crawshay, L. R. 5 H. L. 304.

OPTION.—

§ 1. To purchase.—A lease of lands or houses may contain a provision that the lessee shall have the option of purchasing the property within a certain period, upon giving the lessor notice of his intention to exercise it. Such a notice constitutes a contract of purchase, the specific performance of which may be compelled. Wats. Comp. Eq. 101.

§ 2. The exercise of an option relates back to the date of the lease or other instrument by which it was given, so as to operate a constructive conversion of the property from that date. If, therefore, the lessor (being a freeholder) should die intestate before the option is exercised, the reversion will pass to his heir; but when the option is exercised, the reversion will become personal property, and pass away from the heir to the next of kin of the deceased. Wats. Comp. Eq. 101. See ELECTION.

§ 3. Of archbishop.—In ecclesiastical law an archbishop, when a bishop was consecrated by him, had a customary prerogative to name a clerk or chaplain of his own, to be provided for by such suffragan bishop. In lieu of this right, it was usual for the bishop to make over by deed to the archbishop the next presentation of such dignity or benefice within the bishop's see and disposal, as the archbishop should choose. Hence, this was called his "option." (2 Steph. Com. 669; Phillim. Ecc. L. 93, 1140.) This privilege was incidentally abolished by Stat. 3 and 4 Vict. c. 113, § 42, which forbids a spiritual person to assign any patronage or presentation belonging to him by virtue of his office. Ib.

OPTIONAL WRIT.—A præcipe, so called because it was in the alternative, commanding the defendant to do the thing required, or show the reason wherefore he had not done it.

OPTIONIS LEGATUM.—See LEGATUM OPTIONIS.

OPTULIT.—See OBTULIT

OPUS.—Work; labor; the product of work or labor.

OPUS LOCATUM.—(1) The product of work let for hire to another; (2) the hiring out of work or labor to be done upon a thing.

OPUS MANUFACTUM.—Manual labor.

OR.—Gold, called sol by some heralds when it occurs in the arms of princes, and topaz or carbuncle when borne by peers. Engravers represent it by an indefinite number of small points.

OR.—As to when this disjunctive particle is construed to mean "and," see the cases referred to below; also, those referred to under AND.

Or, (when construed "and"). Gilp. (U. S.) 147; 39 Ill. 301; 2 Harr. & G. (Md.) 42; 1 Harr. & M. (Md.) 465; 10 Mass. 183, 188; 14 Pick. (Mass.) 459, 463; 15 Id. 23, 27; 20 Id. 378, 384; 5 N. H. 214; 3 Cir. (N. J.) 330; 3 Halst. (N. J.) 43; 2 Harr. (N. J.) 281; South. (N. J.) 419, 420; 4 Zab. (N. J.) 686; 1 Brudf. (N. Y.) 314; 8 Barb. (N. Y.) 189; 24 N. Y. 463; 1 Murph. (N. C.) 380; 3 Id. 518; 64 N. C. 493, 563; 7 Id. 402; 2 Binn. (Pa.) 532; 82 Pa. St. 306, 320; 2 Rawle (Pa.) 28; 13 Serg. & R. (Pa.) 207; 6 Watts (Pa.) 206; 1 Yeates (Pa.) 41; 3 Id. 117; 1 Bail. (S. C.) 427; 1 Hill (Va.) 184; 24 Wis. 304, 407; 1 Dak. T. 308; 2 Wheel. Am. C. L. 326; 2 Atk. 643; 3 Id. 194, 408; 1 Barn. & Ad. 232; 2 Bos. & P. N. R. 38; 1 Com. & L. 525; 2 Cox Ch. 213, 217; 1 Cro. 832; 2 Drn. & W. 471; 9 East 360, 493; 12 Id. 288; 16 Id. 67; 3 Jur. 286; 9 Id. 209; 10 Id. 23, 768; 9 Mod. 444; 9 Poll. 645, 647; 5 Sim. 435; 8 Id. 330; 9 Id. 591; 15 Id. 83, 368; 2 Str. 1175 n.; 1 Taunt. 174, 182; 3 T. R. 470; 7 Id. 500; 3 Ves. 453; 6 Id. 341, 559; 7 Id. 128; 1 Wils. 311; 1 Wils. 140; 8 Com. Dig. 424.

(not construed "and"). 12 B. Mon. (Ky.) 647; 14 W. Va. 201; 8 Am. L. Reg. 663. (not equivalent to "but"). 1 Whart. (Pa.) 4.

OR.

OR, (in an agreement). 2 Ld. Raym. 1366; 5 Com. Dig. 338.

(in a bond). 20 Tex. 438 ; Comb. 37 ; Cro. Jac. 322, 594 ; 2 Mod. 304; 2 Dyer 108.

(in criminal complaint). 12 R. I. 285.

(in an indictment). 2 Gray (Mass.) 501, 502; 4 Park. (N. Y.) Cr. 26 ; 1 Bail. (S. C.) 144 ; 6 Wheel Am. C. L. 12; Burr. 400.

(in pleading). Chit. Pl. 206, 207.

(in a policy of insurance). 3 Mass. 476.

(in a power of attorney). 5 Pet. (U. S.) 132.

(in a promissory note). 1 Bail. (S. C.) 13.

(in specification for patent). L. R. 1 H. L. 315.

(in a statute). 2 Paine (U. S.) 162; 76 Ill. 265; 41 Iowa 563; 9 Bush (Ky.) 337; 105 Mass. 185; 20 Pick. (Mass.) 477; 1 Halst. (N. J.) 418; 6 Id. 215; 40 N. Y. 97; 74 N. C. 402; 9 Phil. (Pa) 337; 1 Serg. & R. (Pa.) 250; 6 T. R. 771; 11 Moo. P. C. 337.

(in a will). 2 Mass. (U. S.) 208 ; 3 Bradf. (N. Y.) 45, 52; 6 Johns. (N. Y.) 54; 1 Johns. (N. Y.) 220; 5 Paige (N. Y.) 512, 573; 1 Wend. (N. Y.) 396 ; 5 Binn. (Pa) 262; 1 Yeates (Pa.) 319; 2 Id. 350; 4 Wheel. Am. C. L. 365; 1 Cox Ch. 341; Cro. Eliz. 525 ; 6 East 486 ; 2 Sim. 225.

Or any other, (in a power of attorney). 5 Cush. (Mass.) 533.

Or any other banking game, (in a statute). 9 Tex. 521.

Or as agent, (in a policy of insurance). 12 Mass. 80, 84.

Or elsewhere, (in shipping articles). 2 Gall. (U. S.) 477.

Or this order only, (indorsed on a promissory note). 4 Call (Va.) 411.

Or order, (in bills and checks). 3 Abb. (N. Y.) App. Dec. 269; 5 Abb. (N. Y.) Pr. n. s. 11; 36 How. (N. Y.) Pr. 190; 3 Keyes (N. Y.) 365.

Or other cattle, (in a statute). 1 Bl. Com. 88.

Or other company, (in a statute). 8 Mass. 332.

(Or other device, (in an act forbidding gaming). 1 Cranch (U. S.) C. L. 535.

Or other officer, (in a statute). 8 Metc. (Mass.) 247.

Or other person, (in a statute). 2 Cranch (U. S.) 399.

Or other similar officers, (in a statute). 9 Cush. (Mass.) 181, 191.

Or other spirituous liquor, (in an indictment). 7 Gratt. (Va.) 592.

Or other thing, (in a statute). 126 Mass. 47.

Or other woman, (in a bond). 3 Wheel. Am. C. L. 207 n.

Or otherwise, (in a sentence of a foreign court of admiralty). 8 Mass. 543.

(in a statute). 2 Wheat. (U. S.) 119; 9 Metc. (Mass.) 253, 258 ; 4 Bing. 45, 50 ; 1 Russ. 164; 2 Eng. L. & Eq. 286.

ORA.—A Saxon coin, valued at sixteen pence, and sometimes at twenty pence.—Domesd.

ORACULUM.—A decision by a Roman emperor.

ORAL.—Delivered by word of mouth spoken, not written.

ORAL PLEADING.—Pleading by word of mouth in presence of the judges. This was the original mode of pleading; it was, however, except in criminal cases, superseded by written pleadings in the reign of Edward III.—Wharton

ORANDO PRO REGE ET REGNO.—An ancient writ which issued, while there was no standing collect for a sitting parliament, to pray for the peace and good government of the realm.

ORATIO OBLIQUA.—See Obliqua Oratio.

ORATOR.—ORATRIX.—Latin: orare, to pray.

The names for a male and female plaintiff in a Chancery suit.

ORBATION.—Privation of parents or children; poverty.

ORCINUS LIBERTUS.—In the Roman law, a freedman who obtained his liberty by the direct operation of the will or testament of his deceased master, was so called, being the freedman of the deceased (orcinus), not of the hæres.—Brown.

Ordain, (defined). 4 Conn. 134, 139.

Ordain and establish, (in constitution of United States). South. (N. J.) 38 ; Story Const. L. 118, 161, 163.

Ordained minister, (who is). 4 Conn. 134, 139.

Orchard, (in road act). 23 Wend. (N. Y.) 360.

ORDEAL.—An ancient manner of trial in criminal cases, practised amongst the Saxons, who affected to believe that God would actively interpose to establish an earthly right. There were four sorts: (1) Campfight, duellum, or combat; (2) fire ordeal; (3) hot water ordeal; (4) cold water ordeal; which titles see Ver- gestein’s Restitution of Decayed Intelligence 64; 2 Turner Ang. Sax. 532 ; 2 Hallam Mid. Ages 406.—Wharton.

ORDEIFE, or ORDELFE.—A liberty whereby a man claims the ore found in his own land; also, the ore lying under land.—Cowell.

ORDELS.—The right of administering oaths and adjudging trials by ordeal within a precinct or liberty.—Cowell.

ORDER.—

1. Bill of exchange, &c.—In its simplest sense, an order is a mandate or direction. Thus, bills of exchange, checks, &c., are said to be drawn to order when the

payee is entitled to transfer the right to claim payment. See BEARER; BILL OF EXCHANGE, § 2; DELIVERY; NEGOTIABLE; ORDER.

§ 2. Judicial.—More commonly, however, order signifies a direction or command by a court of judicature. As a general rule, “order” is opposed to “judgment;” and, therefore, denotes (1) orders made in summary proceedings on petition or summons (see SUMMARY); and (2) orders made in actions on interlocutory applications, whether before or after final judgment. (See INTERLOCUTORY.) Such are the ordinary orders for discovery and production of documents, orders for time, &c., made in the course of almost every action.

§ 3. Order to show cause.—In the practice of courts of record, an order to show cause is an order obtained by one party on an ex parte application, and calls on the other party to show cause within a certain time why a certain order should not be made; and then the order is either discharged or made absolute. The order to show cause is not granted unless the applicant has a prima facie case, and is, in general, a mere substitute for a notice of motion. In some cases an order is made ex parte absolute in the first instance. As to orders of course, see OF COURSE.

§ 4. Orders in council.—Rules of Court.—Orders are also issued by subordinate legislative authorities. Such are the English Orders in Council, or orders issued by the Privy Council in the name of the queen, either in exercise of the royal prerogative or in pursuance of an act of parliament. (H. Cox Inst. 27.) The Rules of Court under the Judicature Act are grouped together in the form of orders, each order dealing with a particular subject-matter. See RULE.

ORDER, (defined). 2 Cal. 52, 57 ; 4 How. (N. Y.) Pr. 335; N. Y. Code of Pro. § 400.

(what is). 5 Duer (N. Y.) 684.

(distinguished from “judgment”). 1 Cal. 27, 28 ; 10 How. (N. Y.) Pr. 97.

(distinguished from “requisition”). 19 Johns. (N. Y.) 7.

(a decision of the court upon a demurrer is not). 3 Code (N. Y.) Rep. 37.

ORDER, (not a bill of exchange). 1 Hill (N. Y.) 583.

(to pay out of a particular fund is an assignment of the fund). 5 Paige (N. Y.) 632.

(in a receipt). 14 Conn. 445.

(in a statute). 1 Baldw. (U. S.) 370 ; 1 Cal. 136 ; 48 N. H. 45 ; 4 Abb. (N. Y.) Pr. 90 ; 5 How. (N. Y.) Pr. 247 ; 13 Id. 193 ; 15 Id. 57, 60 ; 76 N. Y. 294, 300 ; 2 Barn. & C. 45, 53.

(in a will). 1 Wils. 178.

ORDER AND DISPOSITION.—The “order and disposition clause” of the English Bankruptcy Acts* is that on which the doctrine of reputed ownership rests. It is so called from its containing the provision that all goods and chattels being at the commencement of the bankruptcy in the possession, order or disposition (i. e. in the possession or apparent control) of the bankrupt, being a trader, by the consent and permission of the true owner, of which goods and chattels the bankrupt is reputed owner, or of which he has taken upon himself the sale or disposition as owner, shall pass to the trustee as if they belonged to the bankrupt. See BANKRUPTCY; POSSESSION ; REPUTED OWNERSHIP.

ORDER, IN GOOD, (in a bill of lading). 7 Mass. 300 ; 1 Bail. (S. C.) 174.

ORDER, KEEP IN, (in an agreement). 3 Tyrw. 907.

ORDER NISI.—A conditional order, which is to be confirmed unless something therein directed be done by a time specified.

ORDER OF DISCHARGE.—See BANKRUPTCY, p. 111, n.; DISCHARGE, § 4; INSOLVENCY, §§ 2, 3.

ORDER OF FILIATION.—See AFFILIATION.

ORDER OF REFERENCE.—See REFERENCE.

ORDER OF REVIVOR.—An order, as of course, for the continuance of an abated suit. It superseded the bill of revivor. See ABATEMENT; OF COURSE.

ORDER OR ASSIGNS, (in bill of lading). 1 R. 5 P. C. 253.

(when not necessary in a bond). 2 Halst. (N. J.) 91 n.

ORDER OR DECREE, (in United States judiciary act). 7 Cranch (U. S.) 154.

ORDER OR RULE, (in the Code is in no case synonymous with “Judgment”). 3 Code (N. Y.) Rep. 241.

• Bankr. Act, 1809, § 15, § 5; In re Blan- shard. 8 Ch. D. 601 ; 21 Jac. I. c. 19, s. 11 ; 6 Geo. IV. c. 16, § 72 ; Bankr. Act, 1849, § 125 ; see Robs. Bankr. 412 n. The Bills of Sale Act, 1878, § 20, abolished the doctrine that goods comprised in a registered bill of sale remain in the order and disposition of the grantor.

ORDERED.'

(907)

ORDERED, (in a statute). 39 Iowa 224.

(in a will, when means "authorized"). 14 Vr. (N. J.) 8.

ORDERED, IT IS, (in record of court). 1 Barn. & C. 711; 3 Dowl. & Ry. 173.

ORDERED, JUDGMENT IS, (in record of court). Penn. (N. J.) 204.

ORDERS, ALL PREVIOUS, (in the Code, Art. V., § 22). 41 Md. 419.

ORDERS OF THE CLERGY. - See Holy Orders.

ORDERS OF THE DAY. - Any member of a legislative body, such as the House of Commons or of representatives, who wishes to propose any question, or to "move the house," as it is termed, must, in order to give the house due notice of his intention, state the form or nature of his motion on a previous day, and have it entered in a book entitled the order book; and the motions so entered, the house arranges, shall be considered on particular days, and such motions or matters, when the day arrives for their being considered, are then termed the "orders of the day." May Parl. Pr.

ORDINANCE. - According to Coke, "the difference between an act of parliament and an ordinance in parliament, is, for that the ordinance wanteth the threefold consent [of lords, commons and crown], and is ordained by one or two of them." (4 Inst. 25; Co. Litt. 159 b.) According to other writers, an ordinance was in the nature of a declaration by the crown in answer to a petition by the commons, on a question as to the law applicable to a given case, while a statute was an enactment of new law. Reeves Hist. Eng. Law ch. xvi.; Bac. Abr. Statute (A).

Ordinance, (defined). 4 Crim. L. Mag. 81.

ORDINANCE OF THE FOREST. - A statute made touching matters and causes of the forest. 33 and 34 Edw. I.

Ordinance, providing by, (in charter of city of St. Louis). 56 Mo. 104.

ORDINANDI LEX. - The law of procedure as distinguished from the substantial part of the law.

Ordinarius ita dicitur quia habet ordinariam jurisdictionem, in jure proprio, et non propter deputationem (Co. Litt. 96): The ordinary is so called because he has an ordinary jurisdiction in his own right, and not a deputed one.

ORDINARY.

§ 1. In English law. - The bishop of a diocese when exercising the ecclesiastical jurisdiction annexed to his office, he being juder ordinarius within his diocese. Hale C. L. 35; Co. Litt. 96 a, 344 a. See Bishop, § 1.

§ 2. In American law. - A judicial officer, in several of the States, clothed by statute with powers in regard to wills, probate, administration, guardianship, &c.

Ordinary, (defined). 3 Burns Ecc. L. 22. (equivalent to "common" or "usual"). 37 Conn. 123, 126.

Ordinary and concise language, (in a statute). 33 Barb. (N. Y.) 627, 629.

Ordinary business. (defined). 3 Bosw. (N. Y.) 290; 19 (N. Y.) 207.

Ordinary calling, (in a statute). 14 Wend. (N. Y.) 250; 3 Barn. & C. 232; 5 Id. 406; 7 Id. 596; 4 Bing. 84, 89; 5 Dowl. & Ry. 82; 8 Id. 204.

ORDINARY CARE. - See Bailment, §§ 1, 2; Care; Negligence.

Ordinary care, (defined). 25 Ind. 185; 52 N. H. 528; 6 Duer (N. Y.) 633, 645; 35 N. Y. 9, 27; 11 Ired. (N. C.) L. 640; 3 Brewst. (Pa.) 9.

(what constitutes). 26 Ind. 334; 6 Cush. (Mass.) 292; 10 Gray (Mass.) 274.

(what is want of). 25 Md. 521.

(equivalent to "reasonable care"). 23 Conn. 437, 443; 74 Ill. 232; 3 Allen (Mass.) 38.

ORDINARY CONVEYANCES. - Those deeds of transfer which are entered into between two or more persons, without an assurance in a superior court of justice. See Deed.

Ordinary course of trade, (taking a note in). 9 Wend. (N. Y.) 170.

Ordinary diligence and care, (by carriers). 42 Ill. 132.

Ordinary domestic business of family concerns, (in turnpike act). 12 Vt. 212.

Ordinary fences, (in a statute). 37 Conn. 123, 126.

ORDINARY OF ASSIZE AND SESSIONS. - A deputy of the bishop of the diocese, anciently appointed to give malefactors their neck-verses, and judge whether they read or not; also, to perform divine services for them, and assist in preparing them for death. Wharton.

ORDINARY OF NEWGATE. - The clergyman who is attendant upon condemned malefactors in that prison to prepare them for death; he records the behavior of such persons. Formerly, it was the custom of the ordinary to publish a small pamphlet upon the execution of any remarkable criminal. - Wharton.

Ordinary language, (in Code Pro. § 149, subd. 2). 30 Barb. (N. Y.) 627, 629.

Ordinary neglect, (defined). 1 Edw. (N. Y.) 513, 543; 24 N. Y. 181.

Ordinary negligence, (what is). 10 Kan. 288.

(distinguished from "slight negligence" and "gross negligence"). 4 Keyes (N. Y.) 108.

Ordinary process of law, (in a statute). 50 Mo. 525.

Ordinary skill, (in an art). 20 Pa. St. 130.

Ordination is the ceremony by which a bishop confers on a person the privileges and powers necessary for the execution of sacerdotal functions in the church. (Phillim. Eccl. L. 110 ) He thereby becomes a clerk in holy orders, and capable of being presented and admitted to a benefice. See Admission, § 1; Benefice; Rector; Vicar.

Ordination, (defined). 4 Conn. 134, 139; 16 Mass. 512.

Ordinatione contra servientes.—A writ that lay against a servant for leaving his master, contrary to the ordinance of Stat. 23 and 24 Edw. III.—Reg. Orig. 189.

Ordine placitandi servato, servatur et jus (Co. Litt 303 a): The order of pleading being preserved, right is preserved.

Ordines.—A general chapter or other solemn convention of the religious of a particular order.

Ordines majores et minores.—The holy orders of priest, deacon, and sub-deacon, any of which qualified for presentation and admission to an ecclesiastical dignity or cure, were called ordines majores; and the inferior orders of chanters, psalmists, ostiary, reader, exorcist, and acolyte, were called ordines minores; persons ordained to the ordines minores had their prima tonsura, different from the tonsura clericalis.—Cowell.

Ordinis beneficium.—See Beneficium Ordinis.

Ordinum fugitivi.—Those of the religious who deserted their houses, and, throwing off the habits, renounced their particular order in contempt of their oath and other obligations.—Par. Antiq. 388.

Ordnance debentures.—Bills which were issued by the English board of ordnance on the treasurer of that office for the payment of stores, &c.—Wharton.

Ordnance office, or board of ordnance.—An office which was kept within the Tower of London, and which superintended and disposed of all the arms, instruments, and utensils of war, both by sea and land, in all the magazines, garrisons, and forts of Great Britain. It is divided into two distinct branches, the civil and the military. (4 and 5 Will. IV. c. 24.) But by 18 and 19 Vict. c. 117, the powers, duties, &c., of the board, were transferred to the secretary of state for war.—Wharton.

Ordo.—(1) That rule which monks were obliged to observe. (2) Order; regular succession. (3) An order of a court.

Ordo albus.—The white friars or Augustines; the Cistercians also wore white.

Ordo attachiamentorum.—The order of attachments.

Ordo judiciorum.—The order of judgments; the rule by which the due course of hearing each cause was prescribed. 4 Reeves Hist. Eng. Law 17.

Ordo niger.—The black friars. The Cluniacs likewise wore black.

Ore tenus.—Orally. See Demurrer, § 2 et seq.; Oral.

Orgild.—A delivery or restitution of cattle. But Lambarde says it is a restitution made by the hundred or county for any wrong done by one who was in pledge, or rather a penalty for taking away cattle.—Lamb. Arch. 125.

Organize, (defined). 38 Conn. 56, 60.

Orgild.—Without recompense; as where no satisfaction was to be made for the death of a man killed, so that he was judged lawfully slain.—Spel. Gloss.

Orige.—See Orwige.

Original and derivative estates.—An original is the first of several estates, bearing to each other the relation of a particular estate and a reversion. An original estate is contrasted with a derivative estate; and a derivative estate is a particular interest carved out of another estate of larger extent. Prest. Est. 125.

Original bill, (what is not). 8 Pet. (U.S.) 3.

Original bill in equity.—See Bill of complaint, § 4.

Original charter.—One by which the first grant of land is made. On the other hand, a charter by progress is one renewing the grant in favor of the heir or singular successor of the first or succeeding vassals.—Bell Dict.

Original contractor, (in mechanics' lien law). 53 Mo. 324.

Original conveyance.—See Conveyance, § 4.

Original conveyance, (defined). 2 Bl. Com. 309.

ORIGINAL.

(909)

OSCULUM.

Original discovery, (in patent law). 3 Wheat. (U. S.) 514.

Original entry.—The first entry made by a merchant, tradesman, or other person, in his account books, charging another with merchandise, materials, work or labor, or cash, on a contract made between them.—Bouvier.

Original entry, (what is). 13 Mass. 427; 4 Rawle (Pa.) 408; 4 Serg. & R. (Pa.) 3, 5; 9 Id. 285; 16 Id. 133; 2 Watts (Pa.) 347; 3 Id. 325.

___________ (what is not). 1 Halst. (N. J.) 96; 1 Rawle (Pa.) 435; 4 Id. 291, 404; 5 Serg. & R. (Pa.) 408; 13 Id. 126; 2 Watts (Pa.) 451; 5 Id. 286.

Original estate, (defined). Pres. Est. 125.

Original evidence.—See Evidence, § 8.

Original jurisdiction.—See Jurisdiction, § 3.

Original jurisdiction, (distinguished from “appellate”). 2 Minn. 86, 88.

___________ (in United States constitution). 5 Serg. & R. (Pa.) 545.

___________ (in a statute). 6 Binn. (Pa.) 5, 11.

Original owner, (defined). 61 Pa. St. 202.

Original proceeding, (what is not). 7 Pet. (U. S.) 285.

Original process.—That process which is for the defendant’s appearance. Finch Law b. 4, ch. 26. See Process; Summons; Writ.

Original suit, (what is not). 12 Pet. (U. S.) 164.

Original suits, (in a statute). 5 Paige (N. Y.) 304.

Original title.—See Title.

Original writ.—See Writ.

Original writ, (a writ of replevin is). 3 Mass. 200.

Originalia.—Transcripts sent to the remembrancer’s office in the Exchequer out of the Chancery, distinguished from recorda, which contain the judgments and pleadings in actions tried before the barons.—Wharton.

Originally discovered, (in patent act). Fess. Put. 59, 281.

Originally heard, (in a statute). 8 Mass. 91.

Origine propria neminem posse vol-untate sua eximi manifestum est (Cod. 10, 38, 4): It is evident that no one is able of his own pleasure, to do away with his proper origin.

Ornament, (in a statute). 43 N. Y. 533. Ornamental timber, (what is). 5 Paig. (N. Y.) 522; 6 Ves. 110; 16 Id. 375.

Ornest.—The trial by battle which does not seem to have been usual in England but in the time of the Conqueror, though without doubt originating in the kingdoms of the north, where it was practiced under the name of holmgang, from the custom of fighting duels on a small island or holm.—4 Inst. Eng.

Orphan.—A fatherless child or minor, or one deprived of both father and mother.

Orphan, (in a will). 33 Pa. St. 9.

Orphanage part.—That portion of an intestate’s effects which his children were entitled to by the custom of London. This custom appears to have been a remnant of what was once a general law all over England, namely, that a father should not by his will bequeath the entirety of his personal estate away from his family, but should leave them a third part at least, called the “children’s part,” corresponding to the “bairns’ part” or legitim of Scotch law, and also (although not in amount) to the legitima quarta of Roman law. (2 Just. 18.) This custom of London was abolished by the Stat. 19 and 20 Vict. c. 94.—Brown.

Orphanotrophi.—In the civil law, managers of houses for orphans.

Orphan’s business, (in constitution of Mississippi, of 1817 and 1832). 54 Miss. 289.

Orphans, (in a will). 40 Wis. 276, 290; 2 Sim. & S. 93.

Orphans’ court.—The name used in some of the States—Delaware and New Jersey, for instance—as the title of a court having jurisdiction over the probate of wills, and the administration and settlement of decedents’ estates. See Court of Probate, § 1.

Orphans’ court, (jurisdiction of). Cex3 (N. J.) 155; Sax. (N. J.) 259.

Ortelli.—The claws of a dog’s foot.—Kitch.

Ortolagium.—A garden plot or horticlage.

Orwige sine wita.—Without war or feud, such security being provided by the laws, for homicides under certain circumstance against the forth, or deadly feud, on the part of the family of the slain.—Anc. Inst. Eng.

Osculum pacis.—A former custom of the Church of England, so called because in the celebration of the mass, after the priest had spoken these words, Pax Domini vobiscum, the people kissed each other; afterwards, when this

custom was abrogated, another was introduced,

which was that whilst the priest spoke the afore-

mentioned words, a deacon offered the people an

'mage to kiss, which was commonly called pacem.

Matt. Paris, A. D. 1100.

OSTENSIBLE PARTNER. — One

whose name is made known, and appears

to the world as a partner, and is really

such. See NOMINAL PARTNER.

Ostensible partner, (who is). 2 Steph.

Com. 101-104.

OSTENSIO.—A tax anciently paid by

merchants, &c., for leave to show or expose their

goods for sale in markets.—Du Cange; Anc. Inst.

Eng.

OSWALD'S LAW.—The law by which

was effected the ejection of married priests, and

the introduction of monks into churches, by

Oswald, Bishop of Worcester, about A. D. 964.—

Wharton.

OSWALD'S LAW HUNDRED.—An

ancient hundred in Worcestershire, so called

from Bishop Oswald, who obtained it from King

Edgar, to be given to St. Mary's Church in

Worcester. It was exempt from the sheriff's

jurisdiction, and comprehends 300 hides of

land.—Cam. Brit.

OTHER, (in a statute). 1 Brock. (U. S.) 175,

187 ; 15 Wend. (N. Y.) 463; L. R. 8 Ex. 160.

OTHER ACTIONS, (in a statute). 20 Pick.

(Mass.) 201, 203 ; 23 Hun (N. Y.) 85.

OTHER ACTS, (in a will). 3 Brewst. (Pa.) 325.

OTHER BODY CORPORATE, (in a statute). 5

Mass. 101.

OTHER CASUALTY, (in a lease). 24 Wend.

(N. Y.) 254.

OTHER CONSIDERATION, (in a deed). 7

Johns. (N. Y.) 341.

OTHER CRIME, (in extradition act). 112

Mass. 409; 17 Am. Rep. 114.

OTHER EFFECTS, (in a statute). 9 Wend.

(N. Y.) 190.

(in a will). 2 Ch. D. 122; 15 Ves.

326; 8 Com. Dig. 473.

OTHER ESTATE, (in a statute). 4 Cush.

(Mass.) 448.

OTHER FEES, (in a statute). 32 Me. 180.

OTHER LANDS, (in a statute). Sax. (N. J.)

OTHER LEGAL DISABILITIES, (under statute

of limitations). 74 Ind. 518.

OTHER MEMORANDA, (in a statute). 50 Me.

OTHER METALS, ALL, (in a statute). 2 Barn.

& Ad. 592.

OTHER NECESSARIES, (in a covenant). 2

Cro. 486 ; 3 Mod. 69.

OTHER NECESSARY TOWN CHARGES, (in a

statute). 52 Me. 595.

OTHER OFFENSE, (in act of congress). Serg.

Const. L. 333.

OTHER OFFENSES, (in a statute). 3 Wheat.

(U. S.) 627.

OTHER OFFICER, (in a statute). 2 Gr. (N. J.)

191; 11 East 25.

OTHER OFFICES, (in a statute). 5 Barn. & C.

640, 644; 8 Dowl. & Ry. 393, 398.

OTHER PERSON, (in a statute). 38 Iowa 321,

OTHER PERSONAL PROPERTY, (in a mortgage).

23 How. (U. S.) 117.

OTHER PLACE, (in a statute). 3 Wheat.

(U. S.) 390.

OTHER PROOF, (in a statute). 2 Binn. (Pa.)

OTHER PROPER PERSON. (in a statute). 2

Gr. (N. J.) 499.

OTHER PROPERTY, (in a statute). 6 Cush.

(Mass.) 141, 142.

OTHER STRUCTURES CONNECTED THEREWITH,

(in mechanics' lien law). 67 N. Y. 149.

OTHER SURVIVING, (in a will). L. R. 10 Eq.

OTHER THINGS, (in a deed of assignment).

2 Watts (Pa.) 64.

(in a will). 2 Harr. & M. (Md.) 273.

OTHER TREES, (in a lease). 5 Barn. & C.

OTHERS, (in an indictment). 11 Mass. 93.

(in a statute). 2 Alk. 601; 3 Co. 82.

OTHERS, AND, (as plaintiffs in a writ of error).

8 Pet. (U. S.) 526.

OTHERWISE, (in a covenant). 1 Bro. Ch. 152.

(in a deed). 11 Pick. (Mass.) 193.

(in a marriage settlement). 8 Wend.

(N. Y.) 276.

(in an order of court). 1 Chit. 205,

OTHERWISE, (in a statute). 23 N. Y. 366; 4 Co. 1, 2.

(in a will). 2 Atk. 542; Burr. 532.

OTHERWISE, AND, NOT, (in a will). 1 Wils.

OTHERWISE, NOT, (in a covenant). 1 Gall.

(U. S.) 30.

OTHERWISE, OR ELSEWHERE, AND NOT,

(acceptance of a bill payable at a particular

place). 5 Q. B. 86.

OTHERWISE PART WITH THE PREMISES, (in

a covenant). 4 Dowl. & Ry. 226.

OUR PROPORTION, (in a release). 9 Mass.

226, 236.

OURLop.—The lierwite or fine paid to

the lord by the inferior tenant, when his

daughter was debauched.—Cowell.

OURSELVES, AND BAIL OF US, WE BIND, (in

a bond). 2 Dry (Comm.) 412.

OURSELVES, OUR HEIRS, WE BIND, (in a bond).

4 Watts (Pa.) 50.

OURSELVES, WE BIND, (in a bond). 2 Wheel.

Am. C. L. 380.

OUST—OUSTER.—To oust a person

from land is to take the possession from

him so as to deprive him of the freehold.

(Co. Litt. 181 a.) An ouster may be either

rightful or wrongful. (Litt. § 401.) A

wrongful ouster is a disseisin (q. v.) Id.

§ 279; Co. Litt. 153 b.

Blackstone divides ouster into abate-

ment, intrusion, disseisin, discontinuance

and deforcement, and also applies the

OUSTER.

term to chattels real, (3 Bl. Com. 167;)

but this use of the word does not seem to

be warranted by the old writers. See DE-FORCEMENT.

OUSTER, (defined). 30 Conn. 492, 497; 1

Chit. Gen. Pr 374.

(what constitutes). 11 Pet. (U.S.) 41;

1 Mass. 323; 3 Id. 523; 4 Id. 418.

(what is not). 7 Mass. 381.

OUSTER LE MAIN.—Beyond the sea; a

cause of excuse, if a person, being summoned,

did not appear in court.—Cowell.

OUSTERLEMAIN.—

§ 1. A writ directing the seisin or possession

of land to be delivered out of the hands of the

crown into those of a person entitled to it.

(Termes de la Ley, s. v.) It was the mode by

which an heir in ward of land held of the crown

ut de honore obtained possession of it on attaining

majority. Co. Litt. 77 a. See LIVERY; WARD-SHIP.

§ 2. Ousterlemain also meant a judgment on a

monstrans de droit, deciding that the crown had

no title to a thing which it had seized. Staunf.

P. C. & Pr. 77 b. See AMOVEAS MANUS; IN CAPITE.

Out, (an insurance upon goods). 10 Mass.

29, 30.

OUT AND OUT, (in a deed of trust). 36 Pa.

St. 204.

OUT OF COURT.—A plaintiff in an

action at common law must have declared within

one year after the service of a writ of summons,

otherwise he was out of court, unless the court

had, by special order, enlarged the time for

declaring.

OUT OF COURT, (in a rule of court). 2 Gr.

(N. J.) 315.

OUT OF HIS ESTATE {in a will). 2 Halst.

(N. J.) 41, 45.

OUT OF THE LIMITS OF THE UNITED STATES,

(in a statute). 2 Dall. (U.S.) 217; 9 Serg. & R.

(Pa.) 289; 1 Yeates (Pa.) 329.

OUT OF THE REALM.—See ABSENCE; BEYOND SEAS.

OUT OF THE STATE, (synonymous with "be-yond seas"). 3 Wheat. (U. S.) 541; 1 Harr. &

J. (Md.) 350; 2 McCord (S. C.) 331.

(in a statute). 109 Mass. 41, 43; 3

Johns. (N. Y) 261, 267.

OUT OF THEIR JOINT FUNDS, (in a promissory

note). 4 Serg. & R. (Pa) 356.

OUT OF TIME.—See OVERDUE, § 2.

OUT OF WHOM, (in an act of incorporation).

4 Hen. & M. (Va.) 315.

OUTER BAR.—In English law, barristers

are divided into two classes, viz., queen's counsel,

who are admitted within the bar of the courts,

in seats specially reserved for themselves; and

junior counsel, who sit without the bar; and the

latter are thence frequently termed barristers of

the "outer bar," or "utter bar," in contradistinc-tion to the former class. See BAR, §§ 2, 3.

OUTER DOOR, (what is). 1 Esp. 99.

OUTER HOUSE.—The name given to

the great hall of the Parliament House in Edin-burg, in which the lords ordinary of the Court

of Session sit as single judges to hear causes.

The term is used colloquially as expressive of

the business done there in contradistinction to

the Inner House, the name given to the cham-bers in which the First and Second Divisions of

the Court of Session hold their sittings.—Bell

Dict.

OUTFANGTHEF.—A liberty or privi-lege in the ancient common law, whereby a lord

was enabled to call any man dwelling in his

manor, and taken for felony in another place out

of his fee, to judgment in his own court.—Du

Cange.

OUTFIT.—

§ 1. Of whaling vessel.—A word of

originally limited meaning, as applied to

different trades and in its application to

vessels; but it has acquired an enlarged

meaning in the hands of merchants en-gaged in whaling voyages, adapted to their

growing trade. As thus used, "outfits" is

a word not clearly defined and strictly

limited in its import, but is subject to be

explained by proof of usage in the whaling

business, and of what are generally re-garded as outfits by persons in that busi-ness.

§ 2. Of foreign minister.—An allow-ance made by the government of the

United States to a minister plenipotentiary

or chargé des affaires, on going from the

United States to any foreign country.—

Bouvier.

OUTFITS, (defined). 9 Metc. (Mass.) 354, 364.

(in policy of insurance). 1 Story (U.

S.) 603; 8 East 373.

(quære whether included in the word

"cargo" in a policy of insurance). 11 Pick.

(Mass.) 227.

OUTGOING, (in contract of sale). 4 Ex. D.

OUTGOINGS, (in a covenant). L. R. 9 Ex.

OUTHEST, or OUTHOM.—A calling

men out to the army by sound of horn.—Jacob.

OUT-HOUSE.—A building belonging

to and adjoining a dwelling house.

OUT-HOUSE, (defined). 4 Conn. 446, 448; 10

Id. 144, 148; 2 Root (Conn.) 516.

OUT-HOUSE. (912) OUTVERTURE.

Out-house, (what is). 1 Moo. 398; 2 Id. 303 ; 2 McCord (S. C.) 433 ; 15 Tex. 260; 1 Car. & K. 303 ; Russ. & R. C. C. 295.

____ (what is not). 10 Conn. 144 ; 8 Barn. & C. 461 ; 5 Car. & P. 555 ; 6 Id. 402; 2 Cox C. C. 186 ; 1 Moo. 336.

____ (is included in the word "house"). 2 East P. C. 1020.

____ (in a statute). 1 Chit. Gen. Pr. 173, 174.

____ (setting fire to, what is not). 2 East P. C. 1820; 1 Leach C. C. 49.

Out-house where people resort, (in a statute). 19 Tex. 102.

OUTLAND.-The Saxon Thanes divided their hereditary lands into inland, such as lay nearest their dwelling, which they kept to their own use; and outland, which lay beyond the demesnes, and was granted out to tenants, at the will of the lord, like copyhold estates. This outland they suldivided into two parts; one part they disposed amongst those who attended their persons, called "Theodans," or "lesser Thanes:" the other part they allotted to their husbandmen, or churls.—Jacob.

OUTLAW. - Anglo-Saxon, utlaga, utlah, = out of the law. (Co. Litt 122b; Spmnd. Ges. der A n.gl. Gloss. See Outlawry.) "In the reign of king Eilred, and until a good while after the Conquest, no man could have been outlawed but for felony, the punishment whereof was death. . . . But in the beginning of the raigne of king Edward the third, it was resolved by the judges, for avoiding of inhumanity and of elfusion of Christian blood, that it should not be lawfull for any man, but the sherife only (having lawfull warrant therfore) to put to death any man outlawed, though it were for felony. Co Litt. 128 b.

A person who is put out of the protection of the law by judgment of outlawry (q. v.) See Waived.

Outlaw, (in a mortgage). 24 Mich. 18.

____ (in a statute). 40 Ala. 118, 137.

Outlawed, (defined). 37 Me. 380.

OUTLAWRY.—

§ 1. In England, where an indictment has been found against a person and summary process (see Process) proves ineffectual to compel him to appear, process of outlawry may be issued, though in practice this is rarely or never done. The preliminary process of issuing successively writs of venire facias ad resp., distringas, and capias ad resp. (see those titles), is first gone through; and if the defendant still eludes justice, a writ of exigent is awarded, by which the sheriff is required to proclaim the defendant and call him on five county court days, (this means § 8,) one after another, upon pain of outlawry. A writ of proclamation is also issued and executed. If the defendant still fails to appear, judgment of outlawry is pronounced by one of the coroners for the county. Judgment may also be signed in the crown office, and a capias utlagatum (q. v.) issued. Arch. Cr. Pl. 86.

§ 2. The effect of outlawry seems to be that the outlaw becomes liable to imprisonment, forfeits his property to the crown, (his goods imme-diately and his chattels real and the profits of

his land upon office found; see Office,) is incapacitated from maintaining civil proceedings, and becomes subject to other disabilities. 3 Bl. Com. 284; First Rep. Com. Law Comm. (1851) 5; Dan. Ch Pr. 52. See Attainder.

§ 3. Civil proceedings.—Formerly there were also two kinds of outlawry in civil proceed-ings, one, called "outlawry on mesne process," which was used to compel a defendant to appear in an action, the other, called "outlawry after judgment," which was a means of execution to enforce a judgment. (Id.; Chit. Gen. Pr. 1309 ; Com. Dig. Outlawry; Co. Litt. 259 b; Cro. Jac. 577.) The former was abolished by the Com-mon Law Procedure Act, 1852, § 21; the latter by the Civil Procedure Acts Repeal Act, 1879.

OUTPARTERS.—Stealers of cattle.—Cowell.

OUTPUTERS.—Such as set watches for the robbing any manor-house. — Cowell.

OUTRAGE AND INDIGNITY, (defined). 44 Iowa 314, 320.

OUTRIDERS.—Bailiffs-errant, employed by sheriffs or their deputies, in England, to ride to the extremities of their counties or hundreds, to summon men to the county or hundred court. —Wharton.

OUTSTANDING CORP, (in a statute). 52 Ala. 474.

OUTSTANDING LEGAL ESTATE.—Where land is vested in a trustee or mortgagee, the cestui que trust, or mort-gagor, can only deal with the beneficial or equitable interest, the legal estate in the land being, as it is said, outstanding in the trustee, or mortgagee. If the trust or mortgage is satisfied without the legal estate being re-vested in the cestui que trust, or mortgagor, and he contracts to sell the land, the purchaser may require him to get in the legal estate, i. e. to obtain a reconveyance of it from the trustee, or mortgagee. Dart. Vend. & P. 281, 501.

OUTSTANDING TERMS.—See Term.

OUTSUOKEN MULTURES.—Quantities of corn paid by persons voluntarily grinding corn at any mill to which they are not thirled or bound by tenure. See InSUCKEN Multures.

OUTWARD MARK OR FLOW OF BUSINESS, (in a covenant). 10 Ch. D. 747.

OUTWARDS, OR INWARDS, (in a statute). 11 East 684; 12 Id. 442.

OUVER TURE DES SUCCESSIONS.—In the French law, denotes the right of succession which arises to one upon the

death, whether natural or civil, of another. Such successor must not be either as yet unconceived, or a child non viable, or one civilly dead; and he must also be clear of certain moral delinquencies, for which see Code Civil 727. Bards, in case their parent leaves legitimate offspring, have one-third of the goods which, as a legitimate child, they would have received; and if the parent leaves no legitimate offspring but ascendants or collaterals (being brothers or sisters), then one-half; and if the parent leaves neither legitimate offspring nor ascendants nor collaterals (being brothers or sisters), then three-fourths: and in case of a total failure of inheritable relations, then the whole. The widow leaves no inheritable relations or bastards, and failing her, the state.—Brown.

OVELTY.—A kind of equality of service in subordinate tenures.—F. N. B. 36. See Owelty.

OVER.—In conveyancing, the word "over" is used to denote a contingent limitation intended to take effect on the failure of a prior estate. Thus, in what is commonly called the "name and arms clause" (q. v.) in a will or settlement, there is generally a proviso that if the devisee fails to comply with the condition the estate is to go to some one else. This is a limitation or gift over. Watts. Comp. Eq. 1110.

Over, (in a statute). 47 Iowa 507; 2 Allen (Mass.) 107–110.

Over due, (when a promissory note is not). 4 Barn. & C. 325.

OVER INSURANCE.—See Double Insurance.

OVERCYTED, or OVERCYHSED.—Proved guilty or convicted.—Blount.

OVERDRAW—OVERDRAFT.—To overdraw one's account is to obtain more money from one's bank or depositary, by bill, check, or order, than the state of the account authorizes.—Abbott. An overdraft is (1) the act of overdrawing, and (2) the instrument by which such act is effected.

Overdraw, (defined). 4 Zab. (N. J.) 478, 484.

OVERDUE.—

§ 1. Bill of exchange.—A bill of exchange is overdue when the time fixed for its payment is passed. Such a bill is subject to the peculiar rule, that any one taking it takes it subject to the equities of prior holders. Ex parte Swan, L. R. 6 Eq.

VOL. II.

344; Ex parte Oriental Commercial Bank, L. R 5 Ch. 358. See Bill of Exchange, § 6; Equity, § 11.

§ 2. Ship.—An overdue ship is one of which news has not been received for such a time as to give rise to the presumption or probability that she has been lost. See Stubley v. Imperial Marine Ins. Co., 1 Q. B. D. 507.

Overflowing lands, (right of, is a servitude). 4 McCord (S. C.) 96.

OVERHERNIESSA.—Contumacy or contempt of court. Leg. Ethel. c. 25.

Overlook and correct, (in letters-patent). 2 Bos. & P. 31.

OVERPLUS.—Surplus (q. v.)

Overplus of my estate, (in a will). 12 Mod. 596; 4 T. R. 605.

OVERREACHING CLAUSE.—In a resettlement, a clause which saves the powers of sale and leasing annexed to the estate for life created by the original settlement, when it is desired to give the tenant for life the same estate and powers under the resettlement. The clause is so called because it provides that the resettlement shall be overreached by the exercise of the old powers. If the resettlement were executed without a provision to this effect, the estate of the tenant for life and the annexed powers would be subject to any charges for portions, &c., created under the original settlement. 3 Dav. Prec. Conv. 489. See Resettlement.

OVERRULE.—To set aside the authority of a former decision made in an independent cause. Where a decision is annulled by a further decision by a higher court in the same cause or action, the higher court is said to "reverse" the lower.

OVERSAMESSA.—A forfeiture for contempt or neglect in not pursuing a malefactor. 3 Inst. 116.

Overseer of public road, (turnpike company is not). 3 Hillsk. (Tenn.) 120.

Overseer of the highways, (is a township officer). 2 Gr. (N. J.) 473.

OVERSEERS.—

§ 1. Of the poor.—Overseers of the poor are persons whose duty it is to see to the relief and management of the poor. See Guardians of the Poor; Rate; Vestry.

§ 2. Of a will.—Formerly it seems to have been common, in England, for a testator after appointing an executor to appoint an overseer

OVERSEERS.

who had no power to intermeddle with the administration, but only to counsel, persuade and advise the executor. (Wms. Ex. 233.) This is now obsolete.

Overseers, (may include "church wardens"). Man. & G. 404.

OVERSEERS OF HIGHWAYS. -See Commissioners of Highways.

OVERSEERS OF THE POOR, (are public officers). 77 N. C. 494.

OVERSEWENESSE.-See Overher-NISSA.

OVERSMAN.-In the Scotch law, an umpire.

Oversight, (in a will). Yelv. 73.

OVERT.-Open.

OVERT ACT.-

§ 1. Treason.-An open act, or one consisting of something stronger than mere words, and evidencing a deliberate intention in the mind of the person doing it. The phrase is chiefly used in the law of treason, it being a rule that a treason-able intention is not punishable unless it is evidenced by some overt act. Thus, to provide weapons or ammunition for the purpose of killing the king, or to assemble and consult on the means of doing so, is an overt act of treason; but the mere speaking of words is not an overt act. 4 Bl. Com. 79.

§ 2. Conspiracy.-The term is also used in the law of criminal conspiracy to signify any act done by conspirators in pursuance of their intention; the unlawful agreement of which constitutes the conspiracy. Arch. Pr. 972; R. v. Mulcahy, L. R. 3 H. L. 306.

Overt Act, (in a statute). 5 How. (U.S.) 215, 228.

OVERT WORD.-An open, plain word, not to be misunderstood.-Cowell.

OVERTURE.-An opening; a proposal.

OVRAGES, or OUVRAGES.-Day's works.

OVRES.-Acts, deeds, or works. 8 Co. 131.

OWE-OWING.-To owe a sum of noney is to be under an obligation to pay it either at once or at some future time, and such a debt is said to be "owing" as opposed to "payable." In re Stockton, &c., Co., 2 Ch. D. 103. See Due.

Owe on a bill of exchange, (in a statute). 3 Barn. & Ald. 1, 7.

OWEL.-Equal.

OWELTY. - Norman-French: owel, equal; from Latin, equalis. Brit. 187 b.

§ 1. Owelty of exchange.-Where an exchange of two pieces of land of unequal value is made, and a sum of money or some other compensation is given by the owner of the less valuable land to the owner of the other land, this compensation is said to be given for owelty of exchange, i. e. to equalize the value.

§ 2. Owelty of partition.-So, where a partition is made of property which cannot be divided into shares of equal value (as where two houses descend to coparceners, one being worth ten shillings, the other twenty shillings per annum, Litt. § 251,) the partition may be made on the terms of the person to whom the property of greater value is allotted giving something by way of owelty of partition to the other, (Co. Litt. 169 b;) as in the case supposed, by the parcener to whom the house worth twenty shillings for annum is allotted granting a rent-charge of five shillings per annum to the other, (Litt. § 251,) or paying him a lump sum. Wats. Comp. Eq. 460; 2 White & T. Lead. Cas. 432.

OWLERS.-Persons who carried wool, &c., to the sea-side, by night, in order that it might be shipped off contrary to law.-Jacob.

OWLING.-The offense of transporting wool or sheep out of the kingdom. Abolished by 5 Geo. IV. c. 107.

Own, (in a deed). 30 Comn. 98, 101.

Own account, (in a covenant). 1 Lev. 272.

Own dwelling place or shop, (in statute respecting markets and fairs). 1. R. 7 (1. H. 690.

Own occupation, (in a will). 1 March, 61.

Own premises, (in a statute). 5th Mu, 617.

Own proper hand being thereto sub-scribed, his, (in a declaration). 2 Cample. 451; 3 Car. & P. 335; Moo. & M. 182.

Own use and benefit, for her, (in a will). 5 Madd. Ch. 491.

Own use and benefit, for life, (in a will). 6 Serg. & R. (Pa.) 446; 3 Bro. Ch. 383 n.; 4 Madd. Ch. 409; 1 Swan. 547.

'Own use. her, (equivalent to "her sole and separate use"). 4 Rawle (Pa.) 68.

Owned and occupied, (in a statute). 36 Wis. 73.

Owned by them, (in a deed). 5 Cow. (N. Y.) 500, 512.

Owned or occupied, (in a statute). 37 Conn. 9; 9 Am. Rep. 299.

OWNER—OWNERSHIP.—

§ 1. Ownership is the most extensive right allowed by law to a person, of dealing with a thing to the exclusion of all other persons, or of all except one or more specified persons. It is, therefore, a right in rem. (See Right.) Ownership is essentially indefinite in its nature, but in its most absolute form it involves the right to possess and use or enjoy the thing, the right to its produce and accessions, and the right to destroy, encumber, or alien it; or, as the civilians express it, ownership gives the jus utendi, fruendi, et abutendi; but the exercise of these rights may be restricted in various manners, and the owner may part with them or limit them in favor of other persons. So long, however, as the grantees have only definite rights of user over the thing, and the original owner retains an indefinite right, he is still owner; but if he parts with the indefinite right and retains only a definite one, (e. g. a right of way, in the case of land,) he ceases to be owner. As to ownership generally, see Aust. Juris.; Mark. El. I.; Holl. Jur.

§ 2. Subjects of ownership.—Ownership may exist either in corporeal or incorporeal things. Thus, a man may be owner of an annuity, patent, or copyright, as well as of land or furniture.

With reference to the right of user and alienation, ownership is either absolute (dominium plenum), or not (minus plenum).

§ 3. Absolute.—Ownership is said to be "absolute" when it is subject only to those restrictions which are imposed by law on all owners, and are therefore implied in the idea of ownership. These restrictions may arise from the duties of the owner of the thing towards his neighbors and the world at large, which forbid him to make it hurtful or dangerous to those who happen lawfully to come in contact with it. (See Natural Rights; Nuisance.) Restrictions on alienation exist in the case of persons under disability,

and are also imposed by the rule against perpetuities and the Mortmain Acts (q. v.)

In the English law, absolute ownership can only exist in chattels, as all land is subject theoretically to the obligations of tenure; but practically the fee-simple in land gives absolute ownership. (See Estate, § 2; Fee, § 2; Tenure.) But in America, absolute ownership exists in land as well as chattels. See Allodial.

§ 4. Restricted.—Restricted ownership occurs where either concurrent or successive rights of user are vested in other persons than the owner; thus land may be subject to easements or rights of common (q. v.), or the right of user possessed by the owner for the time being may be restricted by the fact that he has only a limited interest in it, as in the case of a joint tenant, tenant for life, or lessee. See Waste.

§ 5. Modes of ownership.—Ownership may be divided among several persons in various manners, so that each is owner to a limited extent, either successively, i. e. one after another, or concurrently, i. e. at the same time. These divisions are called "modes of ownership."

Hence we obtain the following classes of owners:

§ 6. Unlimited—Limited.—As to its duration, ownership may be (1) absolute or unlimited (dominium perpetuum), as in the case of an estate in fee-simple, or (2) limited (d. temporale), i. e. liable to determine at a certain time or on the happening of a given event, as in the case of a lessee or tenant for life.

§ 7. Present—Deferred.—As to the time of enjoyment, ownership may be present, as in the case of an estate in possession, or deferred, as in the case of an estate in reversion or remainder. See Estate, § 9.

§ 8. Sole.—Ownership is called "sole," or "several," where one person only is entitled to the thing at the same time. Concurrent ownership, where several persons are entitled to the thing at the same time, takes the form either (1) of co-ownership, or (2) of nominal and beneficial ownership.

§ 9. Co-ownership. — Co-ownership occurs where several persons are entitled

OWNER.

(916)

OYER.

to the possession, user, and benefit of one

thing, pro indiviso, no one being entitled

to any specific part of it, and the right of

user of each being subject to a similar

right in the others; as in the case of joint

tenancy, coparcenary, and tenancy in

common (q. v.)

§ 10. Nominal and beneficial own-

ership.—Nominal and beneficial own-

ership occurs where two persons are

owners in respect of one thing, although

one of them either cannot derive any

benefit from it at all, or has only exactly

defined rights over it, while the other has

the real benefit of the thing. Each is

considered owner for certain purposes.

Thus, a person (A.) may be owner of a

thing as against all the world, except

another person (B.), while with regard to

that person he may have no rights of own-

ership at all, being bound, by virtue of a

personal relation between them, to allow

him to have the use and profits of the

property, or even to deal with the prop-

erty as he may direct. As the rules of the

common law only recognize A.'s rights to

the property and ignore those of B., A. is

called the "legal owner," while B. is

called the "equitable owner," because his

rights are only recognized by virtue of the

doctrines of equity. The legal owner is

the nominal owner; the equitable, the

beneficial owner. (See EQUITY; Mort-

gage; Trust.) So, if the owner of land

grants a lease of it for one thousand years,

his ownership becomes practically nomi-

nal, while the lessee acquires the bene-

ficial ownership.

§ 11. As to general and special, ordi-

nary and privileged ownership, see Prop-

ERTY. See, further, as to ownership, Es-

tate; Interest; Right; Title.

Owner, (defined). 65 Me. 591; 38 Mich.

168; 1 C. E. Gr. (N. J.) 383; 7 Vr. (N. J.) 181.

— (a tenant for life or years, or from

year to year, is). 11 R. I. 258.

— (equivalent to "proprietor"). 64 Mo.

112, 123; Cro. Jac. 302.

— (when includes "trustee"). Wilberf.

Stat. L. 125

— (as applied to lands). 1 Gilm. (Ill.)

236; 2 Id. 132.

— (in insurance policy). 1 Wend. (N.

Y.) 575.

— (in assessment act). 36 Ohio St. 26.

— (in act relative to nuisances). L. R.

7 Q. B. 418.

Owner, (as used in the homestead law). 38

Ill. 9.

— (in public health act). L. R. 6 Q. B.

— (in statute as to assessments). L. R. 3

Q. B. 714.

— (in act to prevent trespassing). 3 Scam.

(Ill.) 258.

— (in mechanics' lien law). 17 Minn.

342; 10 C. E. Gr. (N. J) 281; 11 Barb (N. Y.)

9; 1 Duer (N. Y.) 675; 9 N. Y. 435; 2 E. &

Smith (N. Y.) 681; 11 N. Y. Leg. Obs 216; 2

Ohio St. 114; 4 Id. 101.

— (in a statute). 22 Wall. (U. S.) 262;

23 Id. 35; 44 Conn. 291, 298; 3 Kan 499; 11

Cush. (Mass.) 433; 12 Id. 54, 59; 2 Gray (Mass.)

185, 189; 9 Metc. (Mass) 562; 114 Mass. 466;

57 N. H. 110, 113; 11 C. E. Gr. (N. J.) 425; 12

Abb. (N. Y.) Pr. 129; 7 Barb. (N. Y.) 498, 506;

25 Id. 52; 45 Id. 407; 13 Hun (N. Y.) 553; 4

N. Y. 66; 26 Pa. St. 238; 1 Q. B. D 65.

Owner and proprietor, (are not appropri-

ate words to describe an estate in fee-simple or

fec-tail in a petition for dower). 2 Ill. 314.

Owner of a homestead, (who is not). 20

Ohio St. 473.

Owner of lands, (in a statute). 10 Pet.

(U. S.) 23; 17 Wend. (N. Y.) 322; 2 Watts

(Pa.) 440.

Owner of lands and buildings, (in a

statute). L. R. 10 Q. B. 245.

Owner of structure, (in metropolitan

building act). 4 Q. B. D. 75.

Owners or occupiers, (in a statute).• L. R.

8 Ex. 8.

Owners or proprietors, (in a statute). 6

Nev. & M. 340.

Owner's risk, (defined). 4 Keyes (N. Y.)

— (in a contract). 3 Q. B. D. 195.

Owning, (in a statute). 8 Pet. (U. S.) 49.

OXFIELD.—A restitution anciently made by

a hundred or county for any wrong done by one

that was within the same.— Lamb. Arch. 125.

OXGANG, or OXGATE.— Fifteen acres

of land. Corrupted, in the north, to askew.—

Kelb Domes. Illustr.

Oxgang, (defined). Shep. Touch. 93.

OYER.—In old common law practice,

a defendant is said to demand or crave

"oyer" of a deed pleaded by the plaintiff

when he asks that it shall be read to him,

the generality of defendants in early times

being incapable of reading themselves;

the record then generally goes on to set

out the deed in full as having been read to

the defendant. This copy or setting out

of the deed is also called the "oyer." Litt.

§ 365; Co. Litt. 35b, 121b; 3 Bl. Com. 209.

See Profert.

OYER AND TERMINER.—In

English law, the commission of oyer and

terminer is the commission which is issued to certain judges of the High Court and other persons as their authority to "in-quire, hear, and determine" all treasons, felonies, and misdemeanors committed within the county into which they are sent. This commission only authorizes them to proceed upon an indictment found at the same assizes, for they must first "inquire" by means of the grand jury, before they can "hear and determine" by the help of the petty jury. (See Jury.) Their power to try other prisoners is conferred by the commission of gaol delivery (q. v.) (4 Steph. Com. 313; Jud. Act, 1873, §§ 16, 37.) In some of the United States, the higher criminal courts are called "Courts of Oyer

and Terminer." (See Assize, § 2; Central Criminal Court.) "Oyer and terminer" is old French for "hear and determine.' Britt. 10 a.

OYER DE RECORD.-A petition made in court that the judges, for better proof's sake, will hear or look upon any record.—Cowell.

OYEZ.-Hear ye. The introduction to any proclamation or advertisement given by the public criers, as on the opening of court. It is pronounced oh! yes! In American courts the phrase "Hear ye" is generally used.

Oyster, (included in the word "fish") 53 Me. 164.

Oyster laying, (in a lease and release). 4 Barn. & C. 485, 497.

Oyster spat, (defined). 12 Ad. & E. 13, 21.

P. O.—An abbreviation of public officer; also of post office. Under the 7 Geo. IV. c. 46, § 4, certain banking companies sue and are sued by their "Public Officer."

PAAGE.—A toll for passage through another's land.

PACARE.—To pay.

PACATIO.—Payment.—Mat. Par. A. D. 1248.

PACE.—A measure of length containing two feet and a half. The geometrical pace is five feet long; the common pace is the length of a step, the geometrical is the length of two steps, or the whole space passed over by the same foot from one step to another.—Wharton.

PACEATUR.—Let him be freed or discharged.

Paci sunt maxime contraria vis et injuria (Co. Litt. 161): Violence and injury are the things chiefly hostile to peace.

PACIFICATION.—The restoration of peace between two hostile nations; re-establishment of public tranquility.

PACK.—To pack a jury is, by contrivance and improper influence, to secure upon the panel jurors predisposed to find in favor of a particular party.

PACK OF WOOL.—A horse load, which consists of seventeen stone and two pounds, or two hundred and forty pounds weight. (Fleta I. 1. 2, c. xii.)—Cowell.

PACKAGE, SCAVAGE, BAIL-AAGE, and PORTAGE.—Duties charged in the port of London on the goods imported and exported by aliens, or by denizens being the sons of aliens. The act 3 and 4 Wm. IV. c. 66, authorized the lords of the treasury to purchase these duties from the city. This was done at an expense of about £1,400,000, and the duties were abolished.—McCull. Dict.

Package, (defined). 1 Hughes (U. S.) 529; 44 Ala. 468; 2 Duly (N. Y.) 454, 480.

PACKED PARCELS.—The name for a consignment of goods, consisting of one large parcel made up of several small ones (each bearing a different address), collected from different persons by the immediate consignor (a carrier), who unites them into one for his own profit, at the expense of the railway by which they are sent, since the railway company would have been paid more for the carriage of the parcels singly than together. See Hodg. Railw. (5 edit.) 540, n. (g); and E. W. Ry. Co. v. Sutton, L. R. 4 II. L. 226.

Packet, (defined). 1 Pick. (Mass.) 56. (in act of congress). 4 Op. Att.-Gen. 276.

Packing a Jury, (defined). 12 Conn. 263, 289.

PACT.—A contract, bargain, covenant. Pacts are of many varieties—being either (1) nuda pacta, i. e. pacts without any consideration to clothe them with the attributes of a contract; or (2) vestita pacta, i. e. pacts clothed with such a consideration. And again, pacts may be (3) pacta adjecta, i. e. pacts added to a contract, and in that

PACTA.

(918)

case either (a) adjecta ex continenti, i. e. as part and parcel of the contract and contemporaneously therewith; or (b) adjecta ex intervallo, i. e. not contemporaneously with, but some interval of time after, the contract proper; and an action may be supported upon pacts made contemporaneously, but only a defense upon pacts made after an interval of time.—Brown.

Pacta conventa quæ neque contra leges neque dolo malo inita sunt omnino observanda sunt (D. 2, 14, 27, § 4): Agreements which are neither illegal nor founded on fraud must in all respects be observed.

Pacta dant legem contractui (Hob. 118): The stipulations of parties constitute the law of the contract.

Pacta privata juri publico derogare non possunt (7 Co. 23): Private compacts cannot derogate from public right.

This maxim operates to check that other maxim, viz., modus et conventio vincunt legem (q. v.).

Pacta quæ contra leges constitutionesque vel contra bonos mores fiunt nullam vim habere, indubitati juris est (Cod. 2, 3, 6): It is undoubted law that agreements have no force which are contrary to law or the constitutions, or to good morals.

Pacta quæ turpem causam continent non sunt observanda (D. 2, 14, 27, § 4): Agreements founded on an immoral consideration are not to be observed.

PACTION.—A bargain, or covenant. In international law, a kind of contract between nations.

PACTIONAL.—By way of bargain or covenant.

Pactis privatorum juri publico non derogatur: Private contracts cannot derogate from public right.

PACTITIOUS.—Settled by covenant.

Pacto aliquod licitum est, quod sine pacto non admittitur (Co. Litt. 166): By special agreement things are allowed which are not otherwise permitted.

PACTUM.—An agreement; a pact (q. v.).

PACTUM CONSTITUTÆ PECUNIÆ.—In the civil law, an agreement by which a person appointed to his creditor a certain day, or a certain time, at which he promised to pay; or an agreement by which a person promises to pay a creditor.—Wharton.

PACTUM DE NON PETENDO.—In the civil law, an agreement made between a creditor and his debtor that the former will not demand from the latter the debt due. By this agreement the debtor is freed from his obligation. This is not unlike the covenant not to sue of our common law, as to which, see Leake Cont. 50½.—Wharton.

PAIS.

PACTUM DE QUOTA LITIS.—In the civil law, an agreement by which a creditor promised to pay a portion of a debt difficult to recover, to a person who undertook to recover it.

PADDER.—A robber; a foot highwayman.

PADDOCK.—A small inclosure for deer or other animals.

PAGARCHUS.—A petty magistrate of a pagus or little district in the country.

PAGUS.—A county.—Jacob.

PAID DEBTS AND LEGACIES, (in a will). 2 Atk. 341.

PAID IN CURRENCY THAT IS AT PAR, (in a promissory note). 37 Ga. 324; 63 N. C. 147.

PAID, NOW SO, (in a deed). 1 Dowl. & Ry. 211.

PAID OR PAYABLE, (in a will). 1. R. 2 Eq. 414.

PAID THEREOUT, (in a will). 3 T. R. 356.

PAID, TO BE, (in a will). 4 Rawle (Pa.) 115; 2 Bro. P. C. 254; 3 Mau. & Sel. 518; 13 Ves. 113.

PAINE FORTE ET DURE.—See Peine Forte et Dure.

PAINS AND PENALTIES.—Acts of parliament to attaint particular persons of treason or felony, or to inflict pains and penalties beyond or contrary to the common law, to serve a special purpose. They are in fact new laws, made pro re nata. It is an incident of such bills that persons who are to be affected by them are entitled by custom to be heard at the bar of the house in person or by counsel. But on a bill to disfranchise the borough of St. Albans, this claim was disallowed.—Wharton.

PAINTINGS, (in carrier's act). 3 Ex. D. 121, 124.

PAIRING-OFF.—A practice which is said to have originated in the time of Cromwell, whereby two members of the House of Commons of opposite opinions agree to absent themselves from voting during a given period. It is still in frequent use in legislative assemblies both in England and America. This system is known by the name of "pairs," and members acting under this arrangement are said to "pair off" upon any question in which a division of the house takes place during their absence.

PAIS—PAYS.—The country. A trial per pais signifies "a trial by the country," or, as it is

PAIS.

more commonly called, "by jury." An assurance by matter in pais is an assurance transacted

between two or more private persons in pais (in

the country), i. e. upon the very spot to be transferred. Matter in pais seems to signify "matter

of fact," probably so called because matters of

fact are mostly triable by the country ; e. g.

estoppels in pais are estoppels by conduct, as distinguished from estoppels by deed or by record.

See ESTOPPEL, § 4; IN PAIS.

PAIS, CONVEYANCES IN.—Ordinary conveyances between two or more persons

in the country, i. e. upon the land to be transferred.

PALACE COURT.—An inferior court

of the queen at Westminster. Abolished by 12 and 13 Vict. c. 101.

PALAGIUM.—A duty to lords of manors

for exporting and importing vessels of wine at

any of their ports.—Jacob.

PALATINE.—Possessing royal privileges.

See COUNTY PALATINE.

PALATINE COURTS formerly were

the Court of Common Pleas at Lancaster, the

Chancery Court of Lancaster, and the Court of

Pleas at Durham, the second of which alone

now exists. (See the respective titles.) The

Courts of the County Palatine of Chester were

abolished by Stat. II Geo. IV, and 1 Will. IV.

c. 70. (3 Bl. Com. 77 et seq., notes (6) and

(7).) Palatine courts were formerly exempt

from the control and process of the courts at

Westminster. See COUNTY PALATINE.

PALFRIDŪS.—A palfrey ; a horse to

travel on.

PALING-MAN.—A merchant denizen, or

one born within the English pale.—Cowell.

PALLIO COOPERIRE.—An ancient

custom, where children were born out of wedlock, and their parents afterwards intermarried.

The children, together with the father and

mother, stood under a cloth extended while the

marriage was solemnized. It was in the nature

of adoption. The children were legitimate by

the civil, but not by the common law.—Jacob.

PALMATA.—In old records, a handful.—Blount.

PALMER'S ACT.—The Stat. 19 and 20

Vict. c. 16, enabling a person accused of a crime

committed out of the jurisdiction of the Central

Criminal Court, to be tried in that court.

PALMISTRY OR OTHERWISE, (in vagrancy

act). 2 Ex. D. 268.

PAMPHLET.—A small book, bound

in paper covers, usually printed in the

octavo form, and stitched.

PANDECTS.—The books of the civil law

compiled by Justinian are so called. The word

literally translated means a universal collection

or compilation of passages, and denotes the universality of the subjects treated of in the Corpus

Juris Civilis ; whereas, the word Digest, which

in England is the more common of the two

words, means a methodical arrangement, and

denotes the method or order which is observed in

the arrangement of the same compilation. See

Corpus Juris Civilis ; DIGEST, § 1.

PANDOXATOR.—In old records, a

brewer.

PANDOXATRIX.—A woman that brews

and sells ale.—Cowell.

PANEL.—"Pannell is an English word, and

signifieth a part ; for a pane is a part, and a pannell

is a little part, as a pannell of wainscot, a pannell

of a saddle, and a pannell of parchment wherein the

jurors' names be written and annexed to the writ."

§ 1. Panel generally means the list, made

up by the sheriff, or other proper officer,

of the persons who have been summoned

to serve as jurors for the trial of all actions

at a particular sittings (Sm. Ac. 121); but

the term is also applied to the list of special

jurors returned by the sheriff for the trial

of a particular action after the process of

nominating and reducing (q. v.) See IM-PANEL ; JURY.

§ 2. In the Scotch law, the accused person in

a criminal trial.—Bell Dict.

Panel, (challenge to, defined). 40 Cal. 586.

PANIER.—An attendant or domestic, who

waits at table and gives bread (panis), wine, and

other necessary things to those who are dining.

The phrase was in familiar use amongst the

Knights Templars, and from them has been

handed down to the learned societies of the

Inner and Middle Temples, their modern representatives, whose buildings once belonged to that

distinguished order, and who have retained a

few of their customs and phrases. "From the

time of Chancer to the present day, the lawyers

have dined together in the ancient hall, as the

military monks did before them, and the rule of

their order requiring two and two to eat together,

and all the fragments to be given in brotherly

charity to the domestics, is observed to this day,

and attendants at table in the dining hall are

still called 'paniers.'"—Brown.

PANNAGE.—A common of pannage is the

right of feeding swine on mast and acorns at

certain seasons in a commonable wood or forest.

(1Elt. Com. 25; Wms. Com. 168.) It does not

prevent the owner of the wood from lopping and

cutting down the trees in the ordinary course of

management. Chilton v. Corporation of London,

7 Ch. D. 562.

Pannagium est pastus porcorum,

in nemoribus et in silvis, ut puta, de

glandibus, &c. (1 Bls. 7): A pannagium is

a pasture of hogs, in woods and forests, upon

acorns, and so forth.

PANNEL.—See Panel.

PANNELLATION.—The act of impaneling a jury.

PANNUS.—A garment made with skins. Fleta l. 2, c xiv.

PAPER —

§ 1. It is the practice, in England, to exhibit in each court a "paper" or list of the business to be transacted, to enable the parties to know when their presence will be required. A solicitor is bound to attend in court (personally or by a clerk) when a case in which he is concerned is in the paper, and he is entitled to charge a fee for so doing. Rules of Court (Costs), August, 1875.

§ 2. In the Queen's Bench Division there are numerous varieties of papers, the chief of which are—the crown paper, or list of cases on the crown side of the court; the new trial paper, or list of cases in which rules nisi for new trials have been granted; the special paper, or list of demurrers, special cases, appeals from inferior courts, &c.; and the peremptory paper, or list of cases ordered to stand over to a particular day in the next sittings. All these papers contain business to be heard by divisional courts, and hence the days on which such business is transacted were formerly called "paper days." The days on which the courts will sit at Nisi Prius are given in the sittings paper, while the list of actions for trial is called the "cause list." See Arch. Pr. 171, 350; Tidd Pr. 505.

Paper. (made from animal fibre). Wilberf. Stat. L. 134.

PAPER BLOCKADE.—The state of a line of coast proclaimed to be under blockade in time of war, when the naval force on watch is not sufficient to repel a real attempt to enter.

PAPER BOOKS.—(1) Formal collections or copies of the pleadings and written proceedings in a cause, prepared for the use of the judges, upon the hear ing of an argument. (2) In proceedings on appeal or error in a criminal case, copies of the proceedings with a note of the points intended to be argued, delivered to the judges by the parties before the argument. Arch. Cr. Pl. 205.

PAPER-CREDIT.—Credit given on the security of any written obligation purporting to represent property.

Paper currency, (in a statute). 2 Nott & M. (S. C.) 519.

PAPER-DAYS.—In each of the English common law courts certain days were appointed in each term, called "Special Paper-days"

because the court on those days proposed to hear the cases entered in the Special Paper for argument. There were also fixed in the Queen's Bench, Crown Paper-days for disposing of business on the crown side of the court. Arch. Pr. (12 edit.) 177.) On these days no motions were heard. Since the coming into force of the Judicature Acts arrangements similar to those above mentioned continue to be made.

Paper medium, (is not money). 1 McCord (S. C.) 115.

PAPER MONEY.—Bank-notes, bills of exchange, and promissory notes.

PAPER OFFICE.—An ancient office in the palace of Whitehall, in England, where all the public writings, matters of state and council, proclamations, letters, intelligences, negotiations of the queen's ministers abroad, and generally all the papers and dispatches that pass through the offices of the secretaries of state are deposited. —Wharton.

Also, an office or room in the Court of Queen's Bench where the records belonging to that court are deposited; sometimes called "Paper-mill." —Wharton.

Papers on appeal, (in allowance for printing). 4 Minn. 552.

PAPISM.—Popery.

PAPIST.—One who adheres to the communion of the Church of Rome. The word seems to be considered by the Roman Catholics themselves as a nickname, reproach, originating in their maintaining the supreme ecclesiastical power of the pope.—Wharton.

PAPIST LIVINGS.—Those in the gift of Roman Catholics. The right to present to them is vested and secured to the Universities of Oxford and Cambridge, according to the several counties in which they are situated.

PAR.—State of quality; equal value. Bank-notes, bills of exchange, stocks, and the like, are at par when they sell for their nominal value; above par, or below par, when they sell for more or less.—Bouvier.

Par in parem imperium non habet (Jenk. Cent. 174): An equal has no power over an equal.

PAR OF EXCHANGE.—The par of the currencies of any two countries means the equivalence of a certain amount of the currency of the one in the currency of the other, supposing the currency of both to be of the precise weight and purity fixed by their respective mints.

PAR.

(921)

PARAVAIL.

The exchange between the two countries is said to be at par when bills are negotiated on this footing, i. e. when a bill for £100 drawn on London sells in Paris for 2520 frs., and vice versâ. (Bowen Pol. Ec. 321. See 11 East 267.)—Bouvier.

Par value, (of a bond, what is). 2 Hill (N. Y.) 172; 8 Paige (N. Y.) 527.

PARACHRONISM.—Error in the computation of time.

PARACIUM.—The tenure between parceners, viz.: that which the youngest owes to the eldest without homage or service.—Domesd.

PARAGE-PARAGIUM.—An equality of blood or dignity; but more especially of land, in the partition of an inheritance between co-heirs; more properly, however, an equality of condition among nobles, or persons holding by a noble tenure. Thus, when a fief is divided among brothers, the younger hold their part of the elder by parage, i. e. without any homage or service.—Cowell. Also the portion which a woman may obtain on her marriage.—Wharton.

PARAGRAPH.—A part or section of a statute, pleading, affidavit, &c., which contains one article, the sense of which is complete.—Wharton.

Parallel, (in a patent). 2 App. Cas. 423.

Parallel lines, (in common speech, defined). 32. Cal. 219.

PARALOGY.—False reasoning.

PARAMOUNT.—

§ 1. Title.—Paramount means superior. Thus, "title paramount" means a superior title, (Co. Litt. 173b;) for instance, if A. purports to convey to B. land which really belongs to C, and C. ejects B. from the land, B. is said to be evicted by title paramount, meaning a title superior to that granted to him by A.

§ 2. Seignory.—In the law of tenure, if A. holds land in fee of B., and B. holds land in fee of C., then C. is the lord paramount, and he has the seignory paramount, as opposed to Λ. the tenant paravail, and B. the mesne, whose seignory is called "the mesnalty" (q. v.) Litt. § 583.

For the etymology of the word, see Paravail.

PARAPHERNA.—Goods brought by the wife to her husband in addition to her dower portion.

PARAPHERNALIA.—Greek: παρὰφερνα, those things which a bride brings (φερεσθαι) over and above (παρά) her dower.(Just. Cod. V. 14, 1 8.) hence bona paraphernalia. Tipping v. Tipping, 1 P. Wms. 729.

Such apparel and ornaments given to a married woman as are suitable to her condition in life, and are expressly given to her to be worn as ornaments of her person only. (Snell Eq. 297) They differ from property held by the wife for her separate use in that the husband may dispose of them during his life and that they are liable for his debts, while they differ from her ordinary chattels in that the husband has no power to dispose of them by will, so that if she survives him she is entitled to them, subject to his debts. Wms. Pers. Prop. 432; Macq. Husb. & W. 157.

Paraphernalia, (defined). Reeve Dom. Rel. 37; Love Wills 36; Toll. Ex. 229.

(what are). 5 Wheel. Am. C. L. 290; 2 Atk. 77; 3 Id. 394, 395; Pr. Ch. 26.

(what are not). 4 Ired. (N. C.) L. 301.

(when may be taken to satisfy debts). 3 Atk. 370; 2 Eq. Cas. Abr. 156; Freem. 304; Pr. Ch. 295.

PARAPHERNAL BIKNS.—In the French law, all the wife's property which is not subject to the régime dotal is called by this name; and of these the wife has the entire administration; but she may allow the husband to enjoy them, and in that case he is not liable to account.—Brown.

PARASCEVE.—The sixth day of the last week in Lent, particularly called "Good Friday." It is a dies non juridicus.

PARASITUS.—A domestic servant.—Blount.

PARASYNEXIS.—In the civil law, a conventicle, or unlawful meeting.

PARATITLA.—In the civil law, an abbreviated explanation of some titles or books of the Code or Digest. See Pandects.

PARATUM HABEo.—I have ready. One of the returns to the writ of capias ad satisfaciendum (q. v.)

PARAVAIL.—Notwithstanding Coke, who says that "the tenant of the land is called tenant per avail, because it is presumed that he hath availed and profit by the land" (Second Inst. 296), it seems clear avail—below, and paravail is compounded of par and the French amount and aval—above. Littré Dict. s. vv. amount and aval.

§ 1. Inferior or subordinate. Thus, where A. is indebted to B., and B. is indebted to C., B. is the primary debtor and A. is the sub-debtor or "debtor paravail." Man. Exch. Pr. 8, n. (o), citing Keilway 187.

§ 2. The term is chiefly used, in the English law, with reference to the tenure of estates in land, a tenant paravail being a tenant who holds lands in fee of another and has no tenant who holds of him, as opposed to a mesne lord and a lord paramount (q. v.)

PARCEL.

§ 1. In the law of real property, parcel signifies a part or portion of land. Thus, every piece of copyhold land forms parcel of the manor to which it belongs: that is to say, so far as the freehold is concerned, the copyholds belong to the lord, and form part of his lands, although his beneficial interest in them is comparatively small, being subject to the customary estates of the tenants. See COPYHOLD; DEMESNE; MANOR.

§ 2. Spoken of chattels, a small bundle or package.

Parcel, (defined). 6 Daly (N. Y.) 171. — (twenty earr of wheat is). 2 T. R. 255. — (in pleading). 2 Ld. Raym. 1529.

PARCEL MAKERS.—Two officers in the Exchequer who formerly made the parcels of the escheators' accounts, wherein they charged them with everything they had levied for the sovereign's use within the time of their being in office, and delivered the same to the auditors, to make up their accounts therewith.

Parcel of land, (in a statute). 38 Iowa 141.

Parcel, or package, (in United States Rev. Stat., § 3437). 1 Hughes (U. S.) 529. — (in carrier's act). L. R. 9 Ex. 67.

PARCELLA TERRÆ.—A parcel of land.

PARCELS.—In a conveyance, lease or other deed dealing with property, that part which follows the operative words is called "the parcels." It contains the description, either expressly or by reference, of the property dealt with, and in the case of lands generally begins with some such words as "All that piece or parcel of land," &c. Sometimes the full description is contained in a recital or in a schedule to the deed, with a reference to a map drawn on the deed. 1 Div. Prec. Conv. 79, 85. See ABSTRACT; ABUTTALS; DEED; OPERATIVE PART; PREMISES.

PARCELS, BILL OF.—An account of the items composing a parcel or package of goods, transmitted with them to the purchaser.

PARCENARY.—The tenure of lands by parceners.

PARCENER.—The old-fashioned equivalent for "coparcener" (q. v.) Litt. § 241.

PARCEMENT.—Skins of sheep dressed for writing, so called because invented at Pergamus, in Asia Minor, by King Eumenes, when paper, which was in Egypt only, was prohibited by Ptolemy to be transported into Asia. It is sometimes still used for deeds ; and was formerly used for writs.

PARCO FRACTO.—See DE PARCO FRACTO.

PARCUS.—(1) A park (q. v.) (2) A pound for stray cattle.—Spel. Gloss.

PARDON.—

§ 1. Pardon is where the government releases a person from the punishment which he has incurred for some offense. A pardon may be granted, in England, either (1) before or during a prosecution, in which case it may be pleaded in bar, or (2) after conviction, in which case it may be pleaded in arrest of judgment or in bar of execution, so that the offender is discharged from punishment. Some offenses, however, cannot be pardoned, e. g. a common nuisance while it remains undressed; and a pardon cannot be pleaded to a legislative impeachment. In America, a pardon can only be granted after conviction.

§ 2. A pardon is granted, in England, by warrant under the great seal or under the sign manual; in America, by warrant or certificate signed by the executive, or, in some States, the board of pardons. It may be either free (absolute) or conditional, i. e. the executive may annex to it a condition on the performance of which the operation of the pardon will depend. 4 Steph. Com. 468, 404. See AMNESTY; REPRIEVE.

Pardon, (defined). 7 Pet. (U. S.) 150; 14 Vr. (N. J.) 241; Phill. (N. C.) 1. 242. — (effect of). 1 Ld. Raym. 39; 12 Mod. 119. — (includes "amnesty"). 5 Otto (U. S.) 153. — (includes "release"). 28 Pa. St. 297. — (a nolle prosequi does not amount to). 2 Mass. 172.

— (power to grant, includes power to grant conditional pardon). 1 Park (N. Y.) Cr. 47.

Pardon, CONDITIONAL, (when accepted by a convict is a contract). 1 Edm. (N. Y.) Sel. Cas. 235.

PARDONERS.—Persons who carried about the pope's indulgences, and sold them to any who would buy them.

PARDONS. (923) PARIES.

Pardons, (in United States constitution). 18 How. (U. S.) 307.

PARENS.—A parent.

Parens est nomen generale ad omne genus cognationis (Co. Litt. 80): Parent is a name general for every kind of relationship.

PARENS PATRIÆ.—Father of the country. The sovereign, as parens patriæ, has a kind of guardianship over various classes of persons who, from their legal disability, stand in need of protection, such as infants, idiots and lunatics.

Parent, (defined). 65 Ga. 55, 56. — (in divorce law). 1 L. R. 1 P. & D. 231, 493.

— (in a statute). 7 Halst. (N. J.) 260; 1 Murph. (N. C.) 336; Add. (Pa.) 214; 6 Binn. (Pa.) 255; 6 Serg. & R. (Pa.) 340. — (in a will). 7 Ves. 530.

PARENT AND CHILD.—§ 1. The relation of parent and child is not one which is much interfered with by the law, almost the only duties arising from it which are capable of legal enforcement being those of maintenance and education. Every parent is bound to provide necessaries for his children if he is able to do so and they are unable to support themselves, (2 Steph. Com. 288, citing Stat. 43 Eliz. c. 2; 5 Geo. I. c. 8; 59 Geo. III. c. 12; 5 Geo. IV. c. 83; 4 and 5 Will. IV. c. 76; 7 and 8 Vict. c. 101; 11 and 12 Vict. c. 110; 31 and 32 Vict. c. 122, § 37;) and is bound to send them to school. On the other hand, the children of a poor person not able to work are bound to maintain him or her if they are able to do so. (3 Steph. Com. 56.) These reciprocal obligations of maintenance are only enforceable as public duties, and not by the person liable to be maintained. See Maintenance; Poor.

§ 2. As regards third persons, the relation gives the parent the right of protecting the person and property of his child, and vice versâ, (2 Steph. Com. 292, 296,) while in some cases the child is by a fiction considered as the servant of the parent. See Seduction; see, also, Bastard; Guardian; Infant.

PARENTELA, or DE PARENTELA SE TOLLERE.—A renunciation of one's kindred and family. This was, according to ancient custom, done in open court, before the judge, and in the presence of twelve men, who made oath that they believed it was done for a just cause. We read of it in the laws of Henry I. After such abjuration, the person was incapable of inheriting anything from any of his relations, &c.—Encyc. Lond.

PARENTHESIS.—Part of a sentence occurring in the middle thereof, and enclosed between marks like ( ), the omission of which part would not injure the grammatical construction of the rest of the sentence.—Wharton.

Parenthesis, (words of a will in, effect of). 3 Atk. 8, 9.

PARENTICIDE.—One who murders a parent.

PARERGON.—(1) One work executed in the intervals of another; a subordinate task. (2) The name of a work on the canons, in great repute, by Ayliffe.

PARES.—A person's peers or equals; as the jury for trial of causes, who were originally the vassals or tenants of the lord, being the equals or peers of the parties litigant; and, as the lord's vassals judged each other in the lord's courts, so the sovereign's vassals, or the lords themselves, judged each other in the sovereign's courts. 3 Bl. Com. 349.

PARES CURIÆ.—Peers of the court. Vassals who were bound to attend the lord's court.

PARI DELICTO.—In equal fault. See In Pari Delicto.

PARI MATERIA.—On a like subject. See In Pari Materia.

PARI PASSU.—By the same gradation. Equally, without preference.

PARI RATIONE.—For the like reason; by like mode of reasoning.

Paria copulantur paribus (Bacon): Like things unite with like.

Paribus in materiebns eadem est ratio: In like subject-matters the rule of law should be the same.

This is the maxim underlying the application of the decisions of courts to new cases, the ratio decidendi of the previous decisions being applicable whenever the circumstances of the new case correspond, and being excluded in whole or in part or being modified when these circumstances are different.

Paribus sententiis reus absolvitur (4 Inst. 64): Where the opinions are equal, a defendant is acquitted.

PARIIS.—A wall. D. 50, 16, 157.

PARIES.

(924) PARIUM.

PARIES COMMUNIS.—A common wall; a party wall. D. 29, 2. 39.

PARISH.—

§ 1. In English law.—That district which is committed to the charge of one parson or vicar, or other minister of the Church of England, having cure of souls therein. A parish is, however, a division for civil, as well as for ecclesiastical purposes; thus, the collection and application of the poor-rate is parochial. (1 Steph. Com. 117.) By modern statutes provision is made for the subdivision of parishes into districts or parishes for ecclesiastical, poor law and taxation purposes, and for the amalgamation of detached portions of parishes. Id. 22; 2 Id. 751; Phillim. Eccl. L. 2167; the principal acts are, 58 Geo. III. c. 45; 6 and 7 Vict. c. 37; 7 and 8 Vict. c. 94; 19 and 20 Vict. c. 104; 39 and 40 Vict. c. 61; Foster v. Medwin, 5 C. P. D. 87; Taxes Management Act, 1880, § 36 et seq. See Chapel, § 2; Ecclesiastical Commissioners; Overseers; Perambulation; Poor Law.

§ 2 A place not included in a parish is called "extra-parochial." Such places are, however, now in substantially the same position for civil purposes as if they were parishes, i. e. so far as regards the collection and application of rates, registration of voters, &c. 1 Steph. Com. 119 n.; 3 Id. 44 n.; Stats 20 Vict. c. 19; 25 and 26 Vict. c. 61. See Tithe.

§ 3. In American law.—In some of the New England States, a parish is a division of the people of a town, constituting a quasi-corporation, and composed of members of a particular church. (See 2 Mass. 501; 1 Pick. (Mass) 91.) In Louisiana "parish" means the same as "county" in the other States.

Parish, (defined). 1 Pick. (Mass.) 91, 97; 8 East 175; 1 Bl. Com. 111.

(may be known by several corporate names). 7 Mass. 441.

(powers of a Congregational Church as distinct from). 9 Mass. 297.

— (in poor law). Wilberf. Stat. L. 298.

PARISH APPRENTICES. — Persons who are bound out, in England, by the overseers of parishes, or by the guardians of the poor. The children of poor persons may be apprenticed out by the overseers, with consent of two justices, and by the guardians without such consent, till twenty-one years of age, to such persons as are thought fitting; who are no longer, however, compellable to take them. 7 and 8 Vict. c. 101, § 13; and 14 and 15 Vict. c. 11, and 17 and 18 Vict. c. 104, §§ 141—145; and 2 Steph. Com. (7 edit.) 230; 3 Id. 54 n.

PARISE CLERK.—This office is of extreme antiquity; next in dignity to the clergy, says Leland. Witty Fuller likens him, in his Church history, to the bat—half bird, half beast—yet so as there is more in him of the former than the latter; his clergy wings outweigh the laic or mouse part of him. He is the mouthpiece of the congregation says Hooker; mouth of mouths, according to Bishop Bull; connecting link between the minister and people; cousin, twice removed, to the vicar; note, that the curate is betwixt. Bellwether to the flock, says Bishop Andrews, speaking it in honor. Spelman doubts whether he is not entitled to a portion of the lesser tithes—from which expression we may gather in what kind of estimation antiquity has held this function.—Encycl. Lond. He is generally appointed by the incumbent, but by custom may be chosen by the inhabitants; his appointment may be by word of mouth only, and his remuneration depends altogether upon the custom of the particular parish. (58 Geo. III. c. 45; 59 Geo. III. c. 134; 19 and 20 Vict. c. 104.) He may be suspended or removed by the archdeacon for misconduct or neglect. (7 and 8 Vict. c. 59.) The company of parish clerks is the most ancient in the city of London, yet they stand at the bottom of the list, and have neither livery nor the privilege of making their members free of the city. (See 2 Steph. Com. (7 edit.) 700.)—Wharton.

PARISH CLERK, (defined). 1 Bl. Com. 395.

PARISH CONSTABLE.—A petty constable exercising his functions within a given parish.—Mozley & W.

PARISH OFFICERS.—Church wardens, overseers and constables.

PARISH OFFICERS, (defined). Burr. 1185; 7 East 182.

PARISH or PLACE, (in liquor act). L. R. 7 C. P. 878; L. R. 1 Q. B. 439; 5 Id. 391.

PARISH PRIEST.—The parson; a minister who holds a parish as a benefice. If the predial tithes are appropriated, he is called "rector;" if impropriated "vicar."

PARISH REGISTERS.—See BILL OF MORTALITY; REGISTERS.

PARISHIONER.—One that belongs to a parish. Parishioners are a body politic for many purposes—as to vote at a vestry if they pay scot and lot; and they have the sole right to raise tithes for their own relief, without the intervention of any superior court. They may make by-laws to mend the highway, and to make banks and to keep out the sea, and for repairing the church, and making a bridge, &c., or any such thing for the public good.—Encycl. Lond.

PARISHIONER, (defined). 3 Atk. 577.

(in charity scheme). 1 Ch. D. 160; L. R. 20 Eq. 606.

PARITOR.—A beadle; a summoner to the courts of civil law.

Partum eadem est ratio, idem jus : Of things equal, the reason is the same, and the same is the law.

PARTUM JUDICIUM.—Judgment of one's peers. The right of trial by one's peers;

particularly, the right of a commoner to trial by a jury of his peers; hence the right of trial by jury.

PARK.—

§ 1. An inclosure, in or near a city or town, set apart for recreation and exercise.

§ 2. In English law.—In the technical sense of the word a park is the same as a chase (q. v.) except that it is enclosed, while a chase is always open. (Manw. 7 ; Co. Litt. 233 a.) A park in the popular sense of the word, namely, one erected without lawful warrant, is sometimes called a "nominative park." (2 Inst. 199.) The parks forming part of the demesnes of the crown are called "royal parks." Stat. 35 and 36 Vict. c. 15 ; see, also, the Public Parks, Schools and Museums Act, 1871. See DEMESNE, § 5.

Park, (defined). 40 Barb. (N. Y.) 65, 69; 36 N. Y. 120, 124.

PARK-BOTE —To be quit of enclosing a park or any part thereof.

PARKER.—A park-keeper.

PARLE HILL, or PARLING HILL.—A hill where courts were anciently held.—Cowell.

PARLIAMENT.—The parliament of the United Kingdom of Great Britain and Ireland is composed of the king or queen and the three estates of the realm, viz., the lords spiritual, the lords temporal, and the commons. These several powers collectively make laws that are binding upon the subjects of the British empire, and also separately enjoy privileges and exercise functions peculiar to each. (May Parl. Pr. 2; Cox Inst. 8; Co. Litt. 109 b; 1 Bl. Com. 146; 2 Steph. Com. 318.) For details see House of Commons; Prerogative; (also Act of Parliament; Borough; Contempt of Parliament; Impeachment; Knight, § 2.

PARLIAMENTARY AGENTS.—Persons (usually solicitors) who transact the technical business involved in passing private bills through the houses of parliament. They are required to sign a declaration and give security for compliance with the rules of the House of Commons. May Parl. Pr. 725.

PARLIAMENTARY COMMITTEE.—A committee of members of the House of Peers, or of the House of Commons, appointed by either house for the purpose of making inquiries, by the examination of witnesses or otherwise, into matters which could not be conveniently inquired into by the whole house. Not only any bill, but any subject that is brought under the consideration of either house, may, if the house thinks proper, be referred to a committee; and when the inquiry is ended, the committee, through their chairman, make a report to the house of the result. All private bills, such as bills for railways, canals, roads, or other undertakings, in which the public is concerned, are referred to committees of each house before they

are sanctioned by that house. Their reports are not absolutely binding upon the house. Great weight is always attached to them, and the house seldom reverses their decision upon such matters. As to the power of such committees to administer oaths to witnesses, see 21 and 22 Vict. c 78, and 34 and 35 Vict. c. 3.

PARLIAMENTARY TAXES.—Such taxes as are imposed directly by act of parliament, i. e. by the legislature itself, as distinguished from those which are imposed by private individuals or bodies under the authority of an act of parliament. Thus, a sewers rate, not being imposed directly by act of parliament, but by certain persons termed commissioners of sewers, is not a parliamentary tax; whereas the income tax, which is directly imposed, and the amount also fixed, by act of parliament, is a parliamentary tax.

PARLIAMENTUM DIABOLICUM.—A parliament held at Coventry, 38 Hen. VI., wherein Edward, Earl of March (afterwards King Edward IV.), and many of the chief nobility were attainted, was so called; but the acts then made were annulled by the succeeding parliament.—Jacob.

PARLIAMENTUM INDOCTORUM, or INDOCTUM. —The lack-learning parliament. A parliament held 6 Hen. IV., wherein, by special precept to the sheriffs in their several counties, no lawyer, or person skilled in the law, was to come.—Jacob.

PARLIAMENTUM INSANUM.—A parliament assembled at Oxford, 41 Hen. III., so styled from the madness of their proceedings, and because the lords came with armed men to it, and contentions grew very high between the king, lords, and commons, whereby many extraordinary things were done.—Jacob.

PARLIAMENTUM RELIGIOSORUM.—In most convents there has been a common room into which the brethren withdrew for conversation; conferences there being termed "parliamentum." Likewise, the societies of two temples, or inns of court, call that assembly of the benchers or governors, wherein they confer upon the common affairs of their several houses a "parliament."—Jacob.

PAROCHE—PAROCHIA.—A parish. Parochia est locus quo degit populus alicujus ecclesiæ (5 Co. 67) : A parish is a place in which the population of a certain church resides.

PAROCHIAL.—Belonging to a parish. Parochial, (defined). 2 Barn. & Ald. 206.

PAROCHIAL CHAPELS.—Places of public worship in which the rites of sacrament and sepulture are performed.

Parochial rates, (equivalent to "taxes of the parish"). Wilberf. Stat. L. 264.

PAROCHIAN.—A parishioner.

PAROL.—Parol literally means "verbal" or "oral." In early times few persons could write, and therefore, when a document was required to record a transaction, the parties put their seals to it and made it a deed Transactions of less importance were testified ry word of mouth or by parol, and this use of "parol" to signify the absence of a deed, remained after simple writing without sealing had come into use. Wms. Real Prop 149.

Parol, in its technical sense, as applied to a legal transaction, means that it has been effected without the solemnity of a deed. Therefore, an assignment of chattels, or a contract, or a lease, which is either verbal or reduced into a writing not under seal, is called a "parol" assignment, contract or lease. (See Contract, § 1.) Similarly in the law of evidence, where the contents of a document are brought before the court, either orally or by means of a copy, this is called adducing "parol evidence" (q. v.) of its contents. (Best Ev. 311.) Parol evidence also sometimes means "extrinsic evidence." See Evidence, §§ 8, 14.

PAROL AGREEMENTS.—Such as are either by word of mouth or are committed to writing, but are not under seal. The common law draws only one great line between things under seal and not under seal. See 2 Steph. Com. (7th edit.) 55.

Parol Agreements, (defined). 3 Johns. (N. Y.) Cas. 60.

PAROL ARREST.—Any justice of the peace may, by word of mouth, authorize any one to arrest another who is guilty of a breach of the peace, in his presence.

PAROL DEMURRING.—In many real actions brought by or against an infant under the age of twenty-one years, and also in actions of debt brought against him, as heir to any deceased ancestor, either party might suggest the non-age of the infant, and pray that the proceedings might be deferred till his full age, or that "the infant might have his age, and that "the parol might demur," i. e. that the pleadings might be stayed; and then they would not have proceeded till the infant's full age, unless it was apparent that he could not be prejudiced thereby. This parol demurring was allowed by the Stnt. 11 Geo. IV. and 1 Will. IV. c. 47, as to proceedings under that statute, being chiefly decrees for the sale of real estate to pay debts. The parol demurring is not to be confounded with a parol demurrer, which was a demurrer put in for the first time at the trial or hearing of the action.—Brown. See Demurrer, § 2.

PAROL EVIDENCE. — Testimony by the mouth of a witness. It is a general rule that oral evidence cannot be substituted for a written instrument, where the latter is required by law, or to give effect to a written instrument, defective in any particular essential to its validity; nor contradict, alter or vary a written instrument required by law, or agreed upon by the parties, as the authentic memorial of the facts which it recites. But parol evidence is admissible to defeat a written instrument on the ground of fraud, mistake, &c., or to apply it to its proper subject, or, in some instances, as ancillary to such application to explain the meaning of doubtful terms, or to rebut presumptions arising extrinsically. In these cases, the parol evidence does not usurp the place of written evidence, but either shows that the instrument ought not to be allowed to operate at all, or is essential in order to give to the instrument its legal effect. (3 Stark. Ev. 752.) The general rule with regard to the admission of parol evidence to explain the meaning of, or to add to, vary, or alter the express terms of a deed, is, that it shall not be admitted, except: (1) where, although the deed is clearly enough expressed, some ambiguity arises from extrinsic circumstances; (2) where the language of a charter or deed has become obscure from antiquity; (3) where the grant is uncertain, owing to a want of acquaintance with the grantor's estate; (4) where it is important to show a different consideration consistent with, and not repugnant to, that stated in the deed itself; (5) where it becomes necessary to show a different time of delivery from that at which the deed purports to have been made; (6) where it is sought to prove a customary right not expressed in the deed, but not inconsistent with any of its stipulations; or, lastly, where fraud or illegality in the formation of the deed is relied on to avoid it. If a clause in a deed be so ambiguously or defectively expressed that a court of justice cannot, even by reference to the context, collect the meaning of the parties, it would be void on account of uncertainty.—Wharton.

Parol Evidence, (when admissible). Sax. (N. J.) 393; South. (N. J.) 452; 2 Whart. (Pa.) 75.

PAROL.

Parol evidence, (when not admissible). 6 Halst. (N. J.) 174; Penn. (N. J.) 936; 1 Hill (N. Y.) 185; 14 Wend. (N. Y.) 26, 116; 2 Whart. (Pa.) 453, 471.

PAROL LEASE.—A verbal lease. See 29 Car. II. c. 3, § 2.

Parol submission, (to arbitrators). 12 Mass. 134; 1 N. H. 68; 15 Wend. (N. Y.) 99.

PAROLE.—The promise made by a prisoner of war, when he has leave to go anywhere, of returning at a time appointed, or not to take up arms till exchanged.

PARRICIDE.—The same as patricide (q. v.) Our laws, unlike the ancient laws, distinguish in no respect between parricide, killing a husband, wife, or master, and simple murder.

PARS.—A part; a party to a deed, action, or legal proceeding.

PARS ENITIA.—See Enitia Pars.

PARS GRAVATA.—A party aggrieved.

PARS PRO TOTO.—The name of a part used to represent the whole; as the roof for the house, ten spears for ten armed men, &c.

PARS RATIONABILIS.—A reasonable part. The ancient division of a man's goods into three equal parts, of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal; or, if he died without a wife, he might then dispose of one moiety, and the other went to his children, and so è converso; but if he died without either wife or issue, the whole was at his own disposal. The shares of the wife and children were called their “reasonable parts” and the writ de rationabili parte bonorum was given to recover them. This law has been altered by imperceptible degrees, and the deceased may now by will bequeath the whole of his goods and chattels. (2 Steph. Com. (7 edit.) 180, 183, 292.)—Wharton.

PARS VICERUM MATRIS.—Part of the bowels of the mother, i. e. an unborn child.

PARSON.—

§ 1. “Persona ecclesiastica, is one that hath full possession of all the rights of a parochial church.” (1 Bl. Com. 384.) He is called “parson,” persona, because he personates or represents the church. He is a corporation sole. Ib.; Co. Litt. 300 a. See Corporation, § 2.

§ 2. “Persona impersonata, parson imparsonce, is the rector that is in possession of the church parochiall, be it presentative or impropriate, and of whom the church is full.” (Co. Litt. 800 b.) In other words, the rector of a presentative advowson is not complete parson until he has been inducted (q. v.) (Id. 119 b), while in the case of an impropriate advowson the rector is perpetual parson. 2 Steph. Com. 678. See Advowson; Rector; Vicar.

PARSON IMPARSONEE.—See Parson, § 2.

PARSON MORTAL.—A rector instituted and inducted for his own life. But any collegiate, or conventional body, to whom a church was forever appropriated, was termed persona immortalis.

PARSONAGE.—(1) The benefice of a parish. (2) The parson's house.

Parsonage, (in a grant). 1 Chit. Gen. Pr. 164.

Parsonage or vicarage, (does not include “curacy”). Wilberf. Stat. L. 249.

PART.—A share or portion. To take part in an enterprise, conveyance, or action, means to engage in it. Formerly “part” was used as the opposite of “counterpart,” in respect to covenants executed in duplicate, but now each copy is called a “counterpart.”

Part, (defined). 54 Ala. 238.

(in a statute). 2 Barb. (N. Y.) 330.

Part aforesaid, her, (in a will). 2 Barn. & C. 680.

PART AND PERTINENT.—In the Scotch law of conveyancing, formal words equivalent to the English “appurtenances.”—Bell Dict.

Part, my, (in a will). 9 Pick. (Mass.) 35; 4 Bulstr. 127; 1 T. R. 105; 2 Prest. Est. 177.

Part, my half, (in a will). 11 East 160, 163.

Part, my one-half, (in a will). 2 Barn. & C. 680.

Part of a volume, (in copyright law). 10 Ch. D. 247.

Part of the land, (a verdict in ejectment for). 5 Watts (Pa.) 79.

PART PAYMENT, as the phrase implies, is payment of part of a debt. Such a payment (independently of its effect in dispensing with the necessity of writing in contracts for the sale of goods under the Statute of Frauds (q. v.), (Chit. Cont. 373); and (2) in reviving a debt (or rather the balance of a debt) which would otherwise be barred by the Statute of Limitations, payment of part being evidence of a fresh promise to pay. (Id. 764.) Part

payment by one joint debtor does not relieve the debt against the others. Wms. Pers. Prop. 364.

PART PERFORMANCE.—See PERFORMANCE, § 3.

PARTAGE.—This is, in French law, the partition of English law, and is demandable as of right.

PARTAKER OF MY ESTATE (in a will). Penn. (N. J.) 967, 970.

Partem aliquam recte intelligere nemo potest, antequam totum, iterum atque iterum, perlegerit (3 Co. 52) : No one can rightly understand any part until be has read the whole again and again.

PARTES FINIS NIHIL HABUERUNT, &c.—The parties to the fine had nothing, &c. An exception taken against a fine levied. 3 Co. 88.

PARTIAL ACCUMULATION, (in a statute). 9 Ves. 127, 132.

PARTIAL INSANITY.—Mental unsoundness always existing, although only occasionally manifest; in fact, monomania. Dew v. Clark, 3 Add 79; Waring v. Waring, 6 Moo P. C. 341; Smith v. Tibbett, L. R. 1 P. & M. 398.

PARTIAL LOSS.—See ABANDONMENT, § 1; Loss, § 1.

Partial loss, (defined). 4 Mass. 548; 14 Steph. Com. 132, 133.—— (what is). 25 Ohio St. 50.

PARTIBILITY.—See GAVELKIND.

PARTICEPS.—(1) A part taker; a sharer. (2) Formerly, a part owner.

PARTICEPS CRIMINIS, or FRAUDIS.—A partner in crime, or fraud; an accomplice (q. v.)

Participate, (in a will). L. R. 6 Ch. 696.

Participes plures sunt quasi unum corpus in eo quod unum jus habent, et oportet quod corpus sit integrum, et quod in nulla parte sit defectus (Co. Litt. 4) : Many parcener:s are as one body, inasmuch as they have one right, and it is necessary that the body be perfect, and that there be a defect in no part.

PARTICULA.—A small piece of land.

PARTICULAR AVERAGE.—Every kind of expense or damage, short of a total loss, which regards a particular con-

cern, and which is to be borne by the proprietors of that concern alone. A loss borne wholly by the party upon whose property it takes place. 2 Phil. Ins. § 1422 et seq. See L. R. 1 C. P. 535 and 2 C. P. 357. See, also, AVERAGE, § 2.

PARTICULAR AVERAGE, (defined). 3 Bosw. (N. Y.) 385, 395.

PARTICULAR CREDIT, (of a witness, how impeached). 5 Abb. (N. Y.) Pr. N. s. 232.

PARTICULAR CUSTOM.—A custom affecting the inhabitants of some particular district only. See CUSTOM, § 4.

PARTICULAR ESTATE.—A limited interest in lands or tenements, as distinguished from the absolute fee-simple therein, is usually so termed ; and he who holds or enjoys such a limited interest therein is thence sometimes called the "particular tenant." Thus, if A. has the absolute fee-simple in certain lands, and he demises them to B. for a term of seven years, or of life, the legal interest which B. would thus acquire therein would be called the "particular estate" with reference to A.'s estate in fee-simple; i. e. it would be a particle or portion carved out of A.'s fee-simple. See ESTATE, § 9.

PARTICULAR LIEN.—A right of retaining possession of a chattel from the owner, until a certain claim upon it be satisfied. A specific lien. See LIEN, § 4.

Particular lien, (defined). 21 Wend. (N. Y.) 14.

PARTICULAR SERVICES, (of physician as witness). 59 Ind. 1, 13, 15, 18.

PARTICULAR STATEMENT, (in a statute). 25 How. (N. Y.) Pr. 58.

PARTICULAR TENANTS, ALIENATION BY.—When they conveyed by a feoffment, fine or recovery, a greater estate than the law entitled them to make, a forfeiture ensued to the person in immediate remainder or reversion. And if a tenant for his own life aliened by feoffment for the life of another or in tail or in fee, these being estates which either must or may last longer than his own, his creating them was not only beyond his power, and inconsistent with the nature of his interest, but was also a forfeiture of his own particular estate to him in remainder or reversion, who was entitled to enter immediately.

The same law which is thus laid down with regard to tenants for life held also with respect to all tenants of mere chattel interests.

This forfeiture differed materially from forfeiture by breach of condition in deed, for in that

case the reversioner is in as of his former seisin, and consequently not only the estate of the tenant himself, but all interests derived out of it (even though derived before the forfeiture) were defeated; bit in case of such particular tenants, all legal estates by them created (as if tenant for twenty years grant a lease for fifteen), and all charges by him lawfully made on the lands, would have been good and available in law. But fines and recoveries having been abolished, and a feoffment having no longer a tortious operation, (8 and 9 Vict. c. 106, § 4,) a tenant, by creating a larger interest than he has in the property, does not incur a forfeiture, for such a creation is now void as to the excess, and good for his own interest. (1 Steph. Com. (7 edit.) 463.)—Wharton.

PARTICULARITY, in a pleading, affidavit, or the like, is the allegation of particulars or details. An excess or deficiency of particularity in a pleading is equally a defect; the latter entitles the opposite party either to an order for particulars, or to an order requiring the other party to amend his pleading. See Amend-MENT.

Particularly, (in construction of will, substituted for "specifically"). 8 Com. Dig. 493.

PARTICULARS.—See Bill of Par-TICULARS.

PARTICULARS OF BREACHES AND OBJECTIONS.—In an action brought in England, for the infringement of letters-patent, the plaintiff is bound to deliver with his declaration (now with his statement of claim) particulars (i. e. details) of the breaches which he complains of. (15 and 16 Vict. c. 83, § 41.) And the defendant in an action for infringement, and the prosccutor in any proceedings by scire facias to repeal letters-patent, are bound to deliver with the plea (now statement of defense) or declaration (as the case may be) particulars of any objections to the validity of the patent on which they mean to rely at the trial. Ib.; Chit. Gen. Pr. 1-105.

PARTICULARS OF CRIMINAL CHARGES.—A prosecutor, when a charge is general, is frequently ordered to give the defendant a statement of the acts charged, which is called, in England, the "particulars" of the charges.

PARTICULARS OF DEMAND OR SET-OFF:—

§ 1. Queen's Bench Division.—In an action in the English Queen's Bench Division (following the practice of the old common law courts), where the pleadings of either party contain a general statement on some material subject, the opposite party is frequently entitled to particulars, i. e. a detailed statement of the matters intended to be covered by his opponent's pleading, so that he may be acquacinted with the precise nature of the allegation, and enabled to prepare his answer to it. There is another reason for obtaining particulars, namely, that they tie up the party in his proof, and prevent him from taking advantage, as he otherwise might, of very general and comprehensive statements in his pleading. (Sm. Ac. 105.) Particulars are generally obtained by summons. Day C. L. P. Acts 417.

§ 2. Chancery Division.—In actions in the Chancery Division there is no fixed practice as to particulars, and they are rarely asked for. Some of the judges have laid down the rule that particulars will only be ordered in "common law actions," i. e. in such actions as, before the Judicature Act, could only have been brought in a common law court. Augustinus v. Nerinckx, 16 Ch. D. 13.

§ 3. County Court.—In every English County Court action (unless it is for the recovery of a sum not exceeding forty shillings) the plaintiff must, on entering the plaint, file particulars showing the nature of his demand or cause of action, and the nature of the relief claimed : a copy is served with the summons. County Court Rules (1875) vii. 1.

§ 4. Bankruptcy.—In bankruptcy, before a creditor can issue a debtor's summons (q. v.), he must file an affidavit stating (inter alia) that an account in writing of the particulars of his demand has been sent to the debtor: another copy of the particulars of demand is served with the debtor's summons. Robs. Bankr. 140, 141; Bankr. Rules (1870) 18, 19, 20, Forms 2, 3.

PARTICULARS OF ESCAPE.—In English practice, the defendant is entitled to a statement of the escape sued for with the precise day of such escape. (2 Chit. Archb. Pr. (12 edit.) 1201.) These particulars ought now to appear in the plaintiff's statement of claim.

PARTICULARS OF PREMISES, &c.—A defendant, if there was any reasonable doubt as to the lands, &c., for which an ejectment was brought, might take out a summons before a judge, and obtain an order requiring the plaintiff to give him a bill of particulars. The court or a judge might also order the defendant to give a particular of the premises for which he defended. 2 Chit. Archb. Pr. (12 edit.) 1019.

PARTICULARS OF RESIDENCE.—Where a plaintiff was not known to a defendant, the latter might call for particulars of his profession, &c., and of his place of abode from the opposite attorney, and if he refused to give it, he was guilty of contempt, and the court or a judge might stay proceedings. C. L. P. Act (1852), §§ 7, 169.

PARTICULARS OF SALE.—When property such as land, houses, shares, reversions, &c., is to be sold by auction, it is usually described in a document called the "particulars," copies of which are distributed among intending bidders. They should fairly and accu-

VOL. II. 31

rately describe the property. Dart Vend. & P. 113; 1 Dav. Prec. Conv. 511. See Con-ditions of Sale.

PARTIES.—

§ 1. A person who takes part in a legal transaction or proceeding is said to be a party to it. Thus, if an agreement, con-veyance, lease, or the like, is entered into between A. and B., they are said to be parties to it; and the same expression is often, though not very correctly, applied to the persons named as the grantors or reasors in a deed-poll. 1 Dav. Prec. Conv. 37. See Deed, § 2.

§ 2. Instrument.—Parties to formal instruments are divided into classes or parts according to their estates or interests in the subject-matter of the transaction; thus, if A. mortgages land to B., C. and D., and they all agree to sell it to E. and F., the conveyance, according to the English rule as to the mortgagee's title, would be made between B., C. and D. of the first part, (because the legal estate, which is part of the title to the land, is vested in them jointly,) A. of the second part, (be-cause he has the equity of redemption, which is the remainder of the title to the land,) and E. and F. of the third part, be-cause the whole title is to be conveyed to them. In most of the States the above conveyance would be made by A. directly to E. and F. subject to the mortgage. As to the distinction between parties and privies, see Privity.

§ 3. Legal proceedings.—In a legal proceeding, the parties are the persons whose names appear on the record. In Chancery practice, those persons who merely have the right of attending the proceedings are sometimes called “quasi-parties,” to distinguish them from the parties in the strict sense, namely, the plaintiffs and defendants. See Notice of Deoree.

§ 4. Action.—In an action, the parties are divided into plaintiffs and defendants, and, under the English practice, if neces-sary, they are distinguished according to the manner in which they were introduced into it. Thus, if R. W. brings an action against O. S. and J. B., and the defendant O. S. in his defense raises a counter-claim against the plaintiff R. W. and also against the defendant J. B. and a third person J. W., the parties to the action are divided thus (Jud. Act, 1875, App. (C.), Form No. 14) :

Between R. W. - - - - - Plaintiff, O. S. and J. B. - - - - - Defendants. (By original action.) And between the said O. S. - - - Plaintiff, and The said R. W. and J. B. and J W. - Defendants. (By counter-claim.)

As to who should be made parties to an action, see Joinder; Misjoinder; Non-Joinder.

§ 5. Special proceeding.—In the case of a petition, the parties consist of the peti-tioners and the respondents. In the case of a summons, the persons at whose in-stance it is issued are sometimes called the “applicants,” and tho persons to whom it is addressed the “respondents.”

§ 6. Necessary party.—Proper party. —Parties to a proceeding are also divided into necessary and proper. Necessary par-ties are those who are interested in the subject-matter of the proceedings, and in whose absence, therefore, it could not be fairly dealt with. Proper parties are those who, though not interested in the proceed-ings, are made parties for some good rea-son; thus, where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the right to rescind. Bagnall v. Carlton, 6 Ch. D. 401.

§ 7. Bill of exchange.—As to the parties to a bill of exchange, see Bill of Exchange, §§ 3, 4.

Parties, (defined). 52 N. H. 162. (in a statute). 4 Wall. (U. S.) 657; 21 Ind. 29; 2 Hill (N. Y.) 456. Parties agreed, (in an agreement). 3 Dowl. & Ry. 503.

Parties grieved, (in a statute). 16 East 105; 1 Mum. & R. 526; 1 Nov. & M. 677. Parties interested, (in railway clauses act). L. R. 2 H. L. 175.

PARTITION.—

§ 1. Partition is where land belonging to two or more joint tenants, tenants in com-mon, coparceners or (in England) heirs in gavelkind, is divided among them in sev-erality, each taking a distinct part, Parti-tion is either voluntary, i. e. by agreement between the parties, or compulsory.

§ 2. Voluntary.—At the present day a

voluntary partition is effected either by a deed, which varies according to the nature

of the property and the tenancy, or (in England) by obtaining an order of exchange

from the inclosure commissioners, which takes effect without any further conveyance.

(5 Dav. Prec. Conv. (2) 1; Wms. Real Prop. 140; 2 White & T. Lead. Cas. 407. For

the old ways of making partition, see Litt. § 243 et seq ; Co. Litt. 167 a.) Coke also

uses partition in the sense of severance of the unity of title, as where he says that

the conveyance by a coparcener of her part, operates as a partition in law. Co.

Litt 167 b, Hargrave's note (2); Litt. § 309.

§ 3. Compulsory.—Compulsory partition is effected by an action for partition at

the instance of one or more of the joint owners having a legal title. In such action the

court has power to decree the sale of the property, and the distribution of the pro-

ceeds among the persons interested, in cases where that course is more convenient

than an actual division of the property itself. Wms. Real Prop. 141; Wats. Comp.

Eq 461. See Owelty.

PARTNER-PARTNERSHIP.—

Partnerships are of two kinds: (1) True partnerships, and (2) quasi-partnerships,

or partnerships as regards third persons.

§ 1. True partnership.—A true partnership is a voluntary unincorporated as-

sociation of persons, formed, mainly from personal knowledge of one another, for

the purpose of carrying out a joint operation or undertaking, with the object of

making a profit to be shared among them. (See Lind. Part.; Dix. Part., passim ; Thr.

S. Co. 2; Wats. Comp. Eq. 705; Pooley v. Driver, 5 Ch. D 458; Ex parte

Tenant, 6 Ch. D. 303 ; 1 Sm. Lead. Cas. 922.) Although these are the essential ingredi-

ents in a partnership, its legal nature cannot be understood unless the following

principles are borne in mind:

(1) Every partner is entitled and bound to take part in the conduct of the busi-

ness, unless it is otherwise agreed between them.

(2) Every partner is liable for the debts of the partnership to the whole extent of

his property. As between the partners, each partner is bound to contribute to the

debts in proportion to his share of the profits. See Contribution.

(3) As regards third persons, the act of every partner, within the ordinary scope

of the business, binds his copartners, whether they have sanctioned it or not.

(4) The relation between the partners being personal, no one of them can put a

stranger in his place without the consent of the others.

(5) In England, one partner cannot sue another (a) if any matter of partnership

account is involved in the dispute; or (b) if the damages, when recovered, will be-

long to the firm. But one partner may sue another for breach of an agreement to

contribute capital. (Lind. Part. 908.) In most if not all of the States one partner

may sue another for a balance due, or for an account of the firm transactions.

As to the analogy between a partnership and a corporation, see Firm, § 1. As to

unincorporated partnerships with transferable shares, see Association; Company, §

3 et seq. As to the distinction between partners and part-owners, see Part-

Owners.

§ 2. At will.—Where no time for the duration of the partnership is fixed, it is

called a “partnership at will,” and may be dissolved at the pleasure of any partner at

a moment's notice. (Sm. Merc. Law 26 As to the frame of partnership deeds, see

5 Dav. Prec. Conv. (2) 303.) As to other modes of dissolving a partnership,

see Dissolution, § 2. See, also, Account, § 6.

§ 3. Retiring and continuing partners.—When a partner dies or retires, and

the partnership agreement provides that the partnership shall not thereby be dis-

solved, the remaining partners are called the “continuing partners.” A retiring

partner (and the estate of a deceased partner) is not liable for the partnership

debts contracted after his connection ceased, provided, in the case of a retiring

partner, that notice of the fact is given. No notice is required in the case of a de-

ceased partner. (Lind. Part. 418 et seq.) As to the bankruptcy of partners, see Conver-

sion, § 8; Firm, §§ 3, 4; Joint, § 7.

True partnerships are of two kinds.

§ 4. General partnership.—A general partnership is where the business includes

all transactions of a particular class, as where A. and B. agree to carry on the business of bankers, grocers, &c.

§ 5. Particular, limited, or special.— In England, a particular (limited or special) partnership is where the parties agree to share the profits of one particular transaction; as where A. and B. agree to join in selling a particular cargo of goods, or in working a particular patent. In America, a limited partnership is one consisting of one or more general partners, jointly and severally responsible as ordinary partners, and by whom the business is conducted, and one or more special partners, who contribute in cash a specific sum as capital to the common stock, and who are not liable for the debts of the partnership beyond the fund so contributed. It is sometimes said that there is a third kind of partnership, called a “universal partnership,” but this seems to be inaccurate. It is true that in Roman law there was a societas omnium bonorum, (D. xvii. 2, fr. 1, § 1, fr. 3, § 1, fr. 5, fr. 73;) but societas is a very different thing from “partnership,” for a societas might be entered into for charitable purposes, mutual improvement, &c., and it is said that in reality a societas omnium bonorum only occurred between married persons. Holtz. Encycl. s. v. societas.

§ 6. Sub-partnership.—A sub-partner- ship is where a partner in a firm makes a stranger a partner with him in his share of the profits of that firm. Thus, if A. and B. carry on business as A., B. & Co. ; and B. agrees with C. to give him a share of the profits received from the business of A., B. & Co.; C. is a sub-partner with B, but not a partner in the firm of A., B. & Co. Lind. Part. 55; Wats. Comp. Eq. 769. See Firm, § 4.

§ 7. Quasi-partnerships.—A quasi- partnership, or partnership as regards third persons, is where one person is liable for the debts of another as if he were his partner, although no true partnership exists. The cases in which this occurs are referable to one of two principles.

• Lind. Part. 33 et seq.; Wats. Part. 710; Mollwo, March & Co. v. Court of Wards, I. R. 4 P. C. 419. As to whether holders of participating policies in insurance companies are liable for its debts, see In re Albion Life Ass. Co., 16 Ch. D. 83. Holders of policies in a mutual in-

§ 8. The first is, that where a person carries on business as agent for another, the latter is liable to third persons for the debts of the business. If the business is not carried on in his name, he is called a “dormant” or “undisclosed partner.” (Cox v. Hickman, 8 H. L. C. 268.) For- merly, the doctrine was carried much further, so as to make every person who received a share of the profits of a busi- ness liable for its debts, (see Waugh v. Carver, 2 H Bl. 235; 1 Sm. Lead. Cas 922;) but the better opinion now is, that an agreement entitling one person to share the profits made by another gives rise to nothing more than a presumption that the relation of principal and agent exists be- tween them,* and the passing of the Part- nership Act, 1865, (q. v.,) has deprived the question of much of its importance in England. By the operation of this act, a person who merely lends money to a firm, in consideration of receiving a share of the profits, is not a partner even as regards third persons, but in popular language he is sometimes called a “dormant partner,” (Thr. Jt. S. Co. 4; Sm. Merc. Law 20,) or commanditaire (q. v.)

§ 9. Ostensible partner—Nominal partner.—The second principle by which a person may be subjected to the liabilities of a partner is, that where a person holds himself out to third persons as a partner in the firm, he is liable to those persons for debts contracted by the firm: such a person is called an “ostensible partner.” (Lind. Part. 47 et seq.; Wats. Part. 711; Thr. Jt. S. Co. 6; Sm. Merc. Law 23.) The term seems also to be used to denote a real partner whose name appears, as opposed to a secret partner. (1 Sm. Lead. Cas. 947.) Generally, the “holding out” consists in his allowing his name to appear in the firm as if he were a partner, and he is then sometimes called a “nominal partner.” Lind. Part. 489; 1 Sm. Lead. Cas. 947, 951.

Partner, (who is). 10 Ta. Ann. 114; 21 N. Y. 11. 175; 43 Barb. (N. Y.) 435; 5 Den. (N. Y.) 638; 6 Watts & S. (Pa.) 139. surance company are not liable for its debts, unless they are members of the company. See Winstone’s Case, 12 Ch. D. 239; In re Albion Society, 16 Ch. D. 83; In re Great Britain, &c., Society, 16 Ch. D. 283.

PARTNER.

(933)

PART-OWNERS.

P ARTNER, (who is not). 1 Blatchf. (U.S.) 488; 3 Woodb. & M. (U.S.) 193; 26 Ala. 733; 36 Id. 61; 6 Gray (Mass.) 433; 20 N. H. 90; 45 Id. 113; 5 Dutch. (N. J.) 74; 1 Gr. (N. J.) 76; 1 Den. (N. Y.) 337; 2 Johns. (N. Y.) Cas. 329; 1 Hill (N. Y.) 234; 3 Id. 162; 3 N. Y. 132; 3 Robt. (N. Y.) 702; 15 Wend. (N. Y.) 187; 20 Id. 70; 14 Pa. St. 34.

— (rights and powers of). 1 Nev. 354.

P ARTNER, DORMANT, (defined). 2 Harr. & G. (Md.) 159; 4 Phil. (Pa.) 1.

— (distinguished from “nominal partner”). 19 Ves. 454–461.

— (liability of). 7 Wheel. Am. C. L. 234.

P ARTNERSHIP, (defined). 9 Cal. 616, 633; 3 Harr. (Del.) 485; 4 Houst. (Del.) 338, 397; 40 Ill. 406; 3 La. Ann. 462; 7 Hill (N. Y.) 504, 513; 11 Wend. (N. Y.) 571, 580; 7 Wheel. Am. C. L. 204; 3 Kent Com. 22; Story Part. § 2; Wats. Part. 1.

— (what constitutes). 1 Black (U. S.) 346; 1 Story (U. S.) 371; 1 Wash. (U. S.) 491; 13 Ark. 28; 33 Ga. 243; 36 Id. 332; 27 Ind. 399; 2 Greene (Iowa) 427; 11 La. Ann. 509; 14 Id. 529; 1 Sm. & M. (Miss.) Ch. 404; 54 Mo. 325; 1 Hill (N. Y.) 526; 2 Paige (N. Y.) 148; 1 Ohio 84; 2 Id. 64, 65; 4 Ohio St. 1; 7 Pa. St. 165; 6 Serg. & R. (Pa.) 261; 2 Watts (Pa.) 342; 31 Vt. 395; Davies 320.

— (what is not). 15 Ill. 31; 4 La. Ann. 216; 1 Id. 302; 6 Id. 677; 10 Id. 255; 35 Me. 302; 2 Md. 38; 17 Mass. 197; 13 Minn. 523; 15 Mo. 481; 22 Id. 177; 6 Halst. (N. J.) 181; 16 Barb. (N. Y.) 309; 19 Id. 222; 47 Id. 317; 1 Hill (N. Y.) 235; 9 Johns. (N. Y.) 470; 10 Id. 226; 4 Johns. (N. Y.) Ch. 592; 5 N. Y. 186; 1 N. Y. Leg. Obs. 38; 2 Sandf. (N. Y.) 7; 4 Id. 311; 37 Superior (N. Y.) 110; 5 Ohio 514; 1 Pa. St. 255; 15 Serg. & R. (Pa.) 86; 5 Sneed (Tenn.) 721; 10 Tex. 193; 6 Vt. 119; 10 Id. 170; 41 Id. 398; 7 Leigh (Va.) 115; 3 W. Va. 507; 1 H. Bl. 43, 48.

— (what is the true criterion of). 1 Clif. (U. S.) 28.

— (what is evidence of). 43 Ill. 437.

— (how created). 11 La. Ann. 277; 49 Me. 108.

— (what creates, as to third persons). 24 How. (U. S.) 536.

P ARTNERSHIP ACT, 1865, (also called Bovill's Act,) is the Stat. 28 and 29 Vict. c. 86. Its object was to abolish the common law rule that a person who shares in the profits of a firm is prima facie so far a partner as to be liable for the business debts of the firm. (See Lind. Part. 35; Wats. Comp. Eq. 710.) And it, therefore, provides that none of the following facts shall of itself make the person concerned a partner in the firm—(1) An advance of money in consideration of a periodical payment out of or varying with the profits; (2) remuneration of the services of a servant or agent by a share of profits; (3) the receipt of an annuity out of the profits by the widow or child of a deceased partner; (4) the receipt of a share of profits in consideration of the sale of the goodwill. If the firm becomes bankrupt, the persons who have advanced money or sold the goodwill to it in consideration of a share of the

profits, are not to recover anything until the other creditors have been paid in full. See Lind. Part. 35; Wats. Comp. Eq. 710.

P ARTNERSHIP CHARGE, (what is not). Penn. (N. J.) 609.

P ARTNERSHIP DEBT, (what is not). Sax (N. J.) 75.

P ARTNERSHIP, GENERAL, (what constitutes). 3 Abb. (N. Y.) Pr. N. s. 20.

P ARTNERSHIP, LIMITED, (what constitutes) 1 Wend. (N. Y.) 457.

P ARTNERSHIP, PRIVATE, (what constitutes). Olc. (U. S.) Adm 334.

P ARTNERSHIP PROPERTY.—It makes no difference whether partnership property, held for the purposes of a trade or business, consists of personal or movable property, or of real or immovable property, or of both, so far as the ultimate rights and interests of the partners are concerned. It is true, that at law, real or immovable property is deemed to belong to the person in whose name the title by conveyance stands. If it is in the name of a stranger, or of one partner only, he is deemed the sole owner at law; if it is in the names of all the partners, or of several strangers, they are deemed joint tenants, or tenants in common, according to the true interpretation of the terms of the conveyance. But however the title may stand at law, or in whose name or names soever it may be, the real estate of the partnership will in equity be treated as belonging to the partnership, and disposable and distributable in like manner as its personal property, and the parties in whose names it stands as owners of the legal title will be held to be trustees for the partnership, and accountable accordingly to the partners, according to their several shares, rights and interests in the partnership as cestuis que trust or beneficiaries of the same. Hence, in equity, in case of the death of one partner, there is no survivorship in the real estate of the partnership, but his share will go to his representatives. Colk. Part. 82.

P ARTNERSHIP PROPERTY, (what is). Sax. (N. J.) 441; 1 Pars. (Pa.) Sel. Cas. 270; 20 Tex. 719.

P ARTNERSHIP STOCK, (what is). 11 Mass. 469, 472.

P ART-OWNERS.—

§ 1. Persons who are entitled to property either jointly, in common, or in co-

PART-OWNERS. (934) PARTY-WALL.

parcenary. Part-owners differ from partners in several respects, the principal of which are: (1) that a partner is the agent of his copartners within the ordinary scope of the business, so that he has power to bind them towards third persons even against their will, while a part-owner, in the absence of a special agreement, has no such power, and can only deal with his own interest in the property (Lind. Part. 58); (2) that a part owner can transfer his interest to a stranger, whilst a partner cannot without the consent of his copartners.

§ 2. Ship.—The term “part-owners” in this relation chiefly occurs in the law of merchant shipping. Part-owners of a ship are tenants in common. Difficult questions often arise as to whether the co-owners of a vessel are partners in respect of her, either generally or for a particular voyage. Foard Mer. Sh. 31, et seq. See, also, Managing Owner.

Part-owners, (defined). 129 Mass. 127, 128.

PARTURITION.—The act of giving birth to a child.

Parts beyond sea, (in a statute). 11 Me. 103.

Parts of a dollar, (in a statute). 10 Pet. (U. S ) 622.

Parts of acts, (in a statute). 15 Wend. (N. Y.) 243.

Parts, their, (in a will). 2 Munf. (Va.) 458.

PARTUS.—Offspring.

Partus ex legitimo thoro non certius noscit matrem quam genitorem suum (Fortes. 42) : The offspring of a legitimate bed knows not his mother more certainly than his father.

Partus sequitur ventrem (2 Bl. Com. 390) : The offspring follows the dam. This maxim applies to the status of the issue of a female slave by a free father in countries where slavery is recognized.

PARTY.—See Parties.

Party, (defined). 21 Me. 481; 51 N. H. 71; 56 Id. 74; 8 Wheel. A m. C. L. 143, 144. (who is not). 38 Vt. 440. (equivalent to “person”). 10 Bush (Ky.) 295. (not synonymous with “person”). 3 Hen. & M. (Va.) 255. (in a deed). 5 Halst. (N. J.) 48. (in a statute). 37 Ind. 333; 10 Bush (Ky.) 295; 63 Me. 462; 41 Md. 302, 369; 17 Mass. 222; 4 Pick. (Mass) 410; 36 Mich. 331; 51 N. H. 71; 2 Gr. (N. J.) 440; 6 Halst. (N. J.) 318; 2 Harr. (N. J.) 434; 5 Abb. (N. Y.) Pr. 316; 53 Barb. (N. Y.) 63; 5 Hill (N. Y.) 441; 14 Hun (N. Y.) 157; 4 Lans. (N. Y.) 208; 6 Paige (N. Y.) 54; 1 Robt. (N. Y.) 607; 4 Sandf. (N. Y.) 115; 3 Serg. & R. (Pa.) 246; 36 Wis. 513; 40 Id. 28; 2 Ld. Raym. 1066.

Party aggrieved, (in a statute). 3 Allen (Mass.) 556; 2 Abb. (N. Y.) Pr. 390; 60 N. Y. 16; 4 Rawle (Pa.) 268, 271; 1 Ex. D. 511; 2 O. B. D. 608; 6 Id. 29, 30.

Party becoming absolutely entitled, (in land clauses act). 7 Ch. D. 708.

Party, each, (in a statute). 15 Ind. 274.

Party enabled by law to declare trust, (in statute of frauds). 7 Ch. D. 60.

Party grieved, (in a statute). 6 Q. B. D. 21; 7 Id. 465.

Party or privy, (to a conveyance). L. R. 9 C. P. 362.

Party to a suit, (who is not). 1 Pick. (Mass.) 118; 21 Mich. 509; 14 Barb. (N. Y.) 536; 6 Vt. 315, 320.

Party to an action, (in a statute). 15 Ind. 274.

Party to the action, (in a statute). 16 Abb. (N. Y.) Pr. N. s. 117.

Party to the proceeding, (defined). 37 Ind. 333.

PARTY-JURY.—A jury made up of half foreigners and half natives. See Jury, § 9.

PARTY-STRUCTURE. — A structure separating buildings, stories, or rooms which belong to different owners, or which are approached by distinct staircases or separate entrances from without; whether the same be a partition, arch, floor, or other structure. (Stat. 18 and 19 Vict. c. 122, § 3.)—Mozley & W.

PARTY-WALL.—In the primary and most ordinary meaning of the term, a party-wall is: (1) A wall of which the two adjoining owners are tenants in common. But it may also mean (2) a wall divided longitudinally into two strips, one belonging to each of the neighboring owners; (3) a wall which belongs entirely to one of the adjoining owners, but is subject to an easement or right in the other to have it maintained as a dividing wall between the two tenements (the term is so used in some of the English building acts); or (4) a wall divided longitudinally into two moieties, each moiety being subject to a cross easement in favor of the owner of the other moiety. (Watson v. Gray, 14 Ch. D. 192.) Consult the local statutes on this subject.

Party-wall, (defined). L. R. 8 Ch. 1084; 14 Ch. D. 192.

PARUM. —Little; but little.

Parum differunt quæ re concordant (2 Bulst. 86) : Things which agree in substance differ but little.

Parum est latam esse sententiam nisi mandetur executioni (Co. Litt. 289) : It is not enough that sentence be given unless it be ordered into execution.

Parum proficit scire quid fieri debet, si non cognoscas quomodo sit factu-rum (2 Inst. 503) : It profits little to know what ought to be done, if you do not know how it is to be done.

PARVA SERJANTIA. —Petty serjeanty (q. v.)

PARVISE. —An afternoon's exercise or moot for the instruction of young students—bearing the same name originally with the Par-vusæ (little-go) of Oxford. Seld. Notes, c. li.

PARVUM CAPE. —See CAPE.

PAS. —In French law, precedence; right of going foremost.

PASCH. —The passover.

PASCHA CLAUSUM. —The octave of Easter, or Low-Sunday, which closes that solemnity.

PASCHA FLORIDUM. —The Sunday before Easter, called "Palm-Sunday."

PASCHA RENTS. —Yearly tributes paid by the clergy to the bishop or archdeacon at their Easter visitations.

PASCUA. —A particular meadow or pasture land set apart to feed cattle.

PASCUAGE. —The grazing or pasturage of cattle.

PASNAGE, or PATHNAGE IN WOODS, &c. —See PANNAGE.

PASS. —

§ 1. Conveyancing. —In conveyancing, to pass is to transfer or be transferred. Thus, we may either say that a conveyance by a person entitled to make it passes the estate limited by it, (see OPERATIVE WORDS,) or that the estate passes by the conveyance.

§ 2. Chancery practice. —In the practice of the English Chancery Division, when the draft (or "minutes") of an order or judgment has been settled by the registrar in the presence of the parties, it is left for engrossment, and when it has been engrossed, the parties again attend to examine the engrossment with the draft; if it is correct they sign it, and this is

generally called "passing" the order, but strictly speaking the passing is performed by the registrar, who places his initials at the end; after which the order is entered (q.v. and see MINUTES, § 3). Hunt. Eq. 87 ; Dan. Ch. Pr. 876.

§ 3. Account. —When an account has been brought into court and vouched, the clerk or judge is said to have passed or allowed it, with or without disallowances or surcharges. The term "pass" is also applied to the accounting party who brings in the account. See ACCOUNT, §§ 6, 7.

§ 4. Statute. —When a legislative bill is finally asserted to by a majority vote of the body having its enactment in consideration, it is said to be "passed" by such body; and when also passed by the other house and approved by the executive (see VETO) such bill becomes a statute.

§ 5. In criminal law. —To pass a forged or counterfeit coin or instrument, is to circulate, put forth or utter it.

§ 6. Pass is also the name of a written permission given by some one in authority, allowing the holder to go beyond certain designated bounds, or to a specified place. These passes are most frequently issued by military officers in time of war or insurrection, but are sometimes given by sheriffs to their prisoners, and during the existence of slavery, were a sort of passport enabling slaves to leave their plantations.

Pass, (applied to counterfeit bank bills). 4 Allen (Mass.) 301. 10 Cush. (Mass.) 499.

PASS-BOOK. —A kind of memorandum book which bankers and some classes of merchants issue to their customers, adapted to be carried back and forth by the customer, and in which a record of his deposits or purchases may be made. Being in the customer's general possession, it is a check upon the entries made by the other party in his own books. The significance of the name seems to be in the fact that the book passes back and forth; the customer keeps it, but the dealer makes the entries. —Abbott.

PASSAGE. —(1) The easement of passing over a piece of private water, analogous to a right of way over land. (Alban v. Brounsall, Yelv. 168; Tailor v.

PASSAGE. (936) PASSIAGIARIUS.

Markham, 1 Brownl. 215. See Easement; Way.) (2) A voyage upon a ship or other vessel navigating the sea, or some large lake or river.

Passage, (in an indictment). 1 Mod. 73. 16 Gray (Mass.) 144; 33 Pa. St. 202.

PASSAGE COURT.—See Court of Passage.

PASSAGE-MONEY.—The sum paid for the conveyance of a person, with or without baggage, by water, as distinguished from "freight," or "freight-money," which is paid for the transportation of goods and merchandise.

Passage of this act, (in a statute): 10 R. I. 88, 90.

Passage room, (in pleading in ejectment). 2 Ld. Raym. 1470.

PASSAGIO.—An ancient writ addressed to the keepers of the ports to permit a man who had the king's leave to pass over sea.—Reg. Orig. 193.

PASSAGIUM REGIS.—A voyage or expedition to the Holy Land made by the kings of England in person.—Cowell.

PASSATOR.—He who has the interest or command of the passage of a river; or a lord to whom a duty is paid for passage.—Wharton.

Passed in the present session, any act to be, (in a statute). Dwar. Stat. 686.

PASSENGER.—A person conveyed for hire from one place to another.

§ 1. By sea.—Rights and duties of.—Passenger-ships are those peculiarly appropriated to the conveyance of passengers. In some respects, passengers by ship may be considered as a portion of the crew. They may be called on by the master or commander of the ship, in case of imminent danger, either from tempest or enemies, to lend their assistance for the general safety; and in the event of their declining, may be punished for disobedience. This principle has been recognized in several cases; but as the authority arises out of the necessity of the case, it must be exercised strictly within the limits of that necessity. (Boyce v. Buyliffe, 1 Campb. 58.) A passenger is not, however, bound to remain on board a ship in the hour of danger, but may quit it if he have an opportunity; and he is not required to take

upon himself any responsibility as to the conduct of the ship; if he incur any responsibility, and perform extraordinary services, in relieving a vessel in distress, he is entitled to a corresponding reward. The goods of passengers contribute to general average. (Abb. Sh. 3, c. x.)—Wharton.

§ 2. Liability of carrier.—Unless where any particular passenger travels with a free pass or otherwise "at his own risk," (McCawley v. Furness Ry. Co.. L. R. 8 Q. B. 57,) the carrier (whether person or company or skillfulness producing damage or death, (Crofts v. Waterhouse, 3 Bing. 319;) but the contributory negligence or unskillfulness of the passengers may relieve the carrier, (Martin v. Great Northern Ry. Co., 16 Com. B. 179.) As regards the baggage of passengers, (being articles properly so called, and not including merchandise,) it appears that the carrier is in the general case liable for its safe delivery on the platform of arrival, (Richards v. London, Brighton, and South Coast Ry. Co., 7 Com. B. 839,) and in certain cases even for its safe transfer to the agent of the passenger at the station or point of arrival, (Wil-loughby v. Horridge, 12 Com. B. 742;) and conditions of an unreasonable character exempting the company from liability for the loss or damage of baggage are void, (Cohen v. South Eastern Ry. Co., 1 Ex. D. 217; 2 Id. 253,) excepting as regards the carriage thereof on railways not belonging to the company. (Zunz v. South Eastern Ry. Co., L. R. 4 Q. B. 539;) and, see, Henderson v. Stevenson, L. R. 2 H. L. Sc. 470.)

But the passenger must travel with his baggage. (Becher v. Great Eastern Ry. Co, L. R. 5 Q. B. 241,) and must not take it (excepting at his own risk) into the carriage with him, (Talley v. Great Western Ry. Co., L. R. 6 C. P. 44.)—Brown. For the American cases on the liability of carriers of passengers, see references given under Baggage; Carrier; Common Carrier.

Passenger, (defined). L. R. 2 A. & E. 105. (who is not). 129 Mass. 500. (responsibility of carrier of). 13 Wend. (N. Y.) 626; 2 Campb. 80; 2 Esp. 533.

PASSIAGIARIUS.—A ferryman —Jacob.

Passing, (a statute). 4 T. R. 660, 662.

Passing a counterfeit note, (what is not). 3 Yerg. (Tenn.) 451.

(in a statute). 11 Mass. 136 ; 2 Binn. (Pa.) 339.

Passing a paper, (defined). 1 Baldw. (U. S.) 366.

Passing of the act, from and after the, (in a statute). 5 Com. Dig. 320.

Passing-ticket --A kind of permit, being a note or check which the toll-clerks on some canals give to the boatmen, specifying the lading for which they have paid toll.

Passio.--Pasnage, a liberty for hogs to run in forests or woods to feed upon mast. Mon. Ang. 1, 682.

Passion, (as opposed to "deliberation"). 74 Mo. 222; 1 Ky. L. J. 185.

Passive debt.--A debt upon which, by agreement between the debtor and creditor, no interest is payable, as distinguished from active debt, i. e. a debt upon which interest is payable. In this sense, the terms active and passive are applied to certain debts due from the Spanish government to Great Britain.--Wharton.

Passive trust.--A trust as to which the trustee has no active duty to perform. Passive uses were resorted to before the Statute of Uses, in order to escape from the trammels and hardships of the common law, the permanent division of property into legal and equitable interests being clearly an invention to lessen the force of some pre-existing law. For similar reasons, equitable interests were after the statute revived in the form of trusts. As such they continued to flourish, notwithstanding the singular amelioration effected at a later period in the law of tenure, because the legal ownership was attended with some peculiar inconveniences. For, in order to guard against the forfeiture of a legal estate for life, passive trusts, by settlement, were resorted to, and hence trusts to preserve contingent remainders; and passive trusts were and are created in order to prevent dower.

Where an active trust was created, without defining the quantity of the estate to be taken by the trustees, the courts endeavored to give by construction the quantity originally requisite to satisfy the trust in every event, but if a larger estate was expressly given, the courts could not reject the excess; and, although the estate taken, whether expressly or constructively, might not have exceeded the original scope of the trust, yet, if eventually no estate, or a less estate, were actually wanted, the legal ownership remained wholly or partially vested in the trustee as a merely passive trustee. 1 Hayes Conv. 103.

Passive use.--A permissive use (q. v.)

Passport.--(1) A license for the safe passage of any one from one place to another, or from one country to another. (See 2 Steph. Com. (7 edit.) 494; 4 Inst. 217.) (2) A kind of document carried by a mer-

chant vessel in time of war, intended to evidence the nationality of the vessel, and protect her from belligerents. (3) A safe conduct, or permission granted in time of war, for the removal of persons or effects from a hostile country.--Burrill.

Past members, (in companies act, 1862). L. R. 5 H. L. 711.

Pastitium.--Pasture land.--Domesd.

Pastor.--A shepherd. Applied to a minister of the Christian religion, who has charge of a congregation, hence called his "flock."

Pasturage--Pasture.--

§ 1. "Pasture" means both (1) land employed for the pasturage of cattle, &c.; and (2) the right of pasture. "If a man doth grant all his pastures, pasturas, the land itselfe imployed to the feeding of beasts doth passe, and also such pastures or feedings as he hath in another man's soile." Co. Litt. 4 b

§ 2. A right of pasture is the right of feeding animals on the grass and other wild herbage, and the leaves, mast, acorns, &c., of trees growing on land belonging to another person. Rights of pasture, in English law, are of three kinds, several, common, and seignorial.

§ 3. Several.--A several pasture is one which entitles the person having the right to exclude the owner of the land from feeding his beasts on it. (Co. Litt. 122 a.) Such a right may be created by grant or prescription. (Wms. Comm. 9) Sheepheaves (q. v.) seem to be several rights of pasture.

§ 4. Common.--A common of pasture is where the person having the right can only exercise it in common with the owner of the soil. As to the varieties of common of pasture, see Common, § 4 et seq.

§ 5. Seignorial.--A seignorial right of pasture occurs in the case of a foldcourse (q. v.)

§ 6. Regulated pasture.--By the 113th section of the General Inclosure Act, 1845, any land directed to be inclosed under that act may be set apart to be stocked and depastured in common by the persons interested therein. The valuer acting in the matter is to ascertain and allot the stints or rights of pasturage of the persons interested, the numbers and kinds of animals to be admitted to the pasture, the times during which the animals may be kept on the pasture, &c. Such a pasture is called a "regulated pasture." See Field Reeve.

Pasture, (what word in a grant will pass). Com. L. & T. 75.

Pastus.--The procuration or provision which tenants were bound to make for their lords at certain times, or as often as they made a

progress to their lands. It was often converted into money.—Wharton.

PATENT.—

§ 1. For invention.—A privilege granted by the crown or government to the first inventor of a new and useful discovery or mode of manufacture, that he alone shall be entitled, during a limited period, to use and make a profit by it. It is so called because the privilege is granted by letters-patent (q. v.) In England, a patent cannot be granted in the first instance for longer than fourteen years, but where an extension is necessary to remunerate the patentee for his expense and labor in perfecting the invention, the term may be extended by the Privy Council for another fourteen years. (Stat. 21 Jac. I. c. 3; 5 and 6 Will. IV. c. 83; 7 and 8 Vict. c. 69; 16 and 17 Vict. cc. 5 and 115; Wms. Pers. Prop. 279; 2 Steph. Com. 25 et seq.; In re Dering's Patent, 13 Ch. D 393.) In America, the term is now seventeen years and there can be no extension. See Extension of Patent.

§ 2. A patentee may grant licenses for the use of his invention, or may assign the patent by a registered instrument.

§ 3. A patent is incorporeal personal property. See Personal Property, § 6.

§ 4. The remedy for the infringement of a patent is by action for damages or injunction, or both. See Account, § 8; Injunction, § 2.

See, further, as to patents under titles, Caveat; Infringement; Injunction; Letters-Patent; Novelty; Particulars of Breaches and Objections; Scire Facias.

§ 5. For land.—A conveyance by the United States, or by a State, of a portion of the public lands. See United States Rev. Stat. tit. "The public lands."

Patent, (defined). 18 Cal. 11. 387.

—— (as equivalent to a "deed"). 20 Cal. 387.

—— (on label attached to goods). 5 Ch. D. 850.

PATENT AMBIGUITY.—See Ambiguity.

PATENT BILL OFFICE.—The attorney-general's patent bill office is the office in which were formerly prepared the drafts of all letters-patent issued in England, other than those for inventions. The draft patent was called a bill (q. v. § 5), and the officer who prepared it was called the "clerk of the patents to the queen's attorney and solicitor general." By the Great Seal Act, 1851, warrants were substituted for bills, and by the G. S. Act, 1880, the duty of preparing such warrants was transferred to the clerk of the crown in chancery (q. v.) and see Privy Seal.

PATENT FOR DESIGN.—Provision is made in the patent laws for the protection of those who devise new and ornamental designs, and patents are granted for that purpose. These patents, while of the same general nature as ordinary patents for inventions, are subject to some provisions of law peculiar to themselves, as to which see United States Rev. Stat. §§ 4929-4933. See, also, Registration of Designs.

PATENT OF PRECEDENCE.—Letters-patent granted, in England, to such barristers as the crown thinks fit to honor with that mark of distinction, whereby they are entitled to such rank and pre-audience as are assigned in their respective patents, which is sometimes next after the attorney-general, but more usually next after his majesty's counsel then being. These rank promiscuously with the king's (or queen's) counsel, but are not the sworn servants of the crown. 3 Bl. Com. 28; 3 Steph. Com. 274.

PATENT OFFICE.—

§ 1. A bureau attached to the department of the interior at Washington having charge of the issuing of patents for inventions and other business incidental thereto.

§ 2. There are two patent offices in England, namely, the office of Commissioners of Patents for Inventions, and the Great Seal Patent Office.

§ 3. Patents for inventions.—The office of the commissioners of patents is where the business relating to the granting of letters-patent for inventions is carried on. See Commissioners of Patents; Patent.

§ 4. Great Seal Patent Office.—As to the Great Seal Patent Office, see Great Seal, § 4. The chief of the office is called the "clerk of the patents." By the Great Seal (Offices) Act, 1874, power is given to abolish the office of clerk of the patents, and to transfer the duties to the Clerk of the crown in Chancery (q. v.)

PATENT RIGHT.—See Patent.

PATENT RIGHT, (in a license to use a patent). 1 Conn. 342.

PATENT RIGHT FOR SUCH AS I HAVE, (in a grant of a license). 4 Wheal. Am. C. L. 4.

PATENT-ROLLS.—Registers in which letters-patent are recorded in England.

PATENT WRIT.—An open writ; a writ not sealed up or closed. See Close Writs.

PATENTEE.—One who has obtained a patent.

Pater est quem nuptiæ demonstrant (Co. Litt. 123): He is the father whom the nuptials indicate.

This maxim it is which prevents an apparent father from bastardizing the issue born under cover of his marriage. The evidence of access or of non-access between married people living together is excluded for public reasons of decency and morality. (Rol. Abr. Bustard, B.; Co. Litt. 244 a.) But the maxim does not exclude proof of non-access, where the husband is proved to have been absent during the entire period of gestation. Morris v. Davis, 5 Cl. & F. 163; and see Banbury Peerage Case, 1 S. & S. 155; Barony of Saye and Sele, 1 H. L. C. 507.

PATER PATRIÆ.—Father of the country. See Parens Patriæ.

PATERFAMILIAS.—In the civil law, one who was sui juris and the head of a family. Sand. Just. (5 edit.) 26.

PATERNA PATERNIS.—An expression used in the French law to signify that, in a succession, the property coming from the father of the deceased descends to his paternal relations.—Bouvier.

PATERNAL.—That which belongs to the father or comes from him.

PATERNAL POWER.—The lawful authority of parents over their children.

PATERNAL PROPERTY.—Property which descends from the father and other ancestors of the paternal stock.

PATERNITY.—The state or condition of a father. It becomes a question, when a widow marries immediately after the death of her husband, and she is delivered of a child at the expiration of ten months from the death of the first husband, as to the paternity of the child. Blackstone and Coke say, that if a man die, and his widow soon after marry again, and a child is born within such a time as that by the course of nature it might have been the child of either husband, in this case he is said to be more than ordinarily legitimate, for he may, when he arrives at years of discretion, choose which of the fathers he pleases. But Hargrave suggests that the circumstances of the case, instead of the choice of the issue, should determine who

is the father. The Romans forbade a woman to marry until after the expiration of ten months from her husband's decease, which term was prolonged to twelve by Gratian and Valentinian. The French Code has adopted the same rule, viz., after ten months. It was also established under the Saxon and Danish governments. It was the law in England until the Conquest. Beck Med. Jur. 382.

PATIBULARY.—Belonging to the gallows.

PATIBULATED.—Hanged on a gibbet.

PATRIA.—The country; the men or jury of a neighborhood.

PATRIA POTESTAS.—In the civil law, paternal power. For the extent of this great power, see Sand. Just. (5 edit.) 28. The modes in which the patria potestas was ended were: (1) The death of the parent; (2) the parent or son suffering loss of freedom or citizenship; (3) the son attaining certain dignities; (4) emancipation.—Wharton.

PATRIARCH.—The chief bishop over several countries or provinces, as an archbishop is of several dioceses. Godb. 20.

PATRICIDE.—One who has killed his father. As to the punishment of that offense by the Roman law, see Sand Just. (5 edit.) 496. See Parricide.

PATRICIUS.—In the civil law, a title of the highest honor, conferred on those who enjoyed the chief place in the emperor's esteem.

PATRIMONY.—An hereditary estate or right descended from ancestors.

PATRINUS.—A godfather.

PATRICIUS.—An honor conferred on men of the first quality in the time of the English Saxon kings.

PATRON.—The patron of a living or benefice is the owner of the advowson (q. v.); and in the Roman law, the former master of a freedman was called his "patron." Also, in the French marine law, the captain or master of a vessel.

PATRONAGE.—The right of presenting to a benefice. A disturbance of patronage is a hindrance or obstruction of a patron to present his clerk to his benefice, the remedy for which was the real action of quare impedit.

PATRONATUS.—Patronage. Patronize, (defined). 9 Bradw. (Ill.) 345.

PATRONUM. (940) PAYABLE.

Patronum faciunt dos, ædificatio, fundus (Dud. Adv.7): Endowment, building and land make a patron.

PATROON.—In early New York law, the lord of a manor.

PATRUELIS.—In the civil law, a cousin-german by the father's side; the son or daughter of a father's brother.—Wharton.

PATRUUS.—An uncle by the father's side, a father's brother.

PATRUUS MAGNUS.—A grand-father's brother, granduncle.

PATRUUS MAJOR.—A great-grand-father's brother.

PATRUUS MAXIMUS.—A great-grandfather's father's brother.

Patterns, (eqnivalent to “tools”). 124 Mass. 418, 421.

PAUPER means (1) a person in receipt of relief under the poor laws; (2) a person suing or defending an action in formâ pauperis. As to the former, see Guardians of the Poor; Overseer; Parish; Poor Law; Settlement; as to the latter, see Dispuper; Dives; In Forma Pauperis.

Pauper. (defined). 30 Ark. 764; 124 Mass. 596; 11 Pick. (Mass.) 533; 3 Pittsb. (Pa.) 129; 46 Vt. 617, 620.

(who is). 14 Pick. (Mass.) 341.

(in a statute). 49 Ill. 186; 10 Cush. (Mass.) 238.

PAUPERIES.—In the Roman law, damage done by some domesticated animal during some sudden willfulness, occasioned e.g. by heat. The owner was liable.

PAVAGE.—Money paid towards paving the streets or highways.

Pave, (defined). 31 Iowa 31.

Pavement, (in a statute). 20 Hun (N. Y.) 303, 304.

Paving, (includes “flagging of sidewalks”). 76 N. Y. 174.

PAWN—PAWNBROKER.—Pawn is sometimes used (especially by the older writers) in the same sense as “pledge” (q. v.), (Coggs v. Bernard, Ld. Raym. 909; 1 Sm. Lead. Cas. 188;) but more usually at the present day it signifies “a pledge to a pawnbroker or person who keeps a shop for the purchase or sale of goods, and takes goods by way of security for money advanced thereon.” Statutory regulations have been made for preventing frauds and overcharges by pawnbrokers. Thus, in England, every pawnbroker taking a pledge for a loan not exceeding £10 is bound to give the pawner a pawn ticket, specifying the charges for interest, &c., which he is allowed by the statute to make, the period within which the pledge may be redeemed, &c.; he is also bound to keep account books showing all sales of pledges by him. (Pawnbrokers Act, 1872; Fish. Mort. 70) Similar regulations are provided by statute in the several States. He has a statutory power of sale by auction. (Fish. Mort. 503.) In other respects he is a bailee, like an ordinary pledgee. See Bailment, § 2.

PAWNAGE, or PANNAGE.—See Pannage.

PAWNEE.—The person with whom a pawn is deposited; a pawnbroker (q. v.)

PAWNER, or PAWNOR.—The person depositing a pawn.

PAX REGIS.—The king's peace; the verge of the court.

Pay, (defined). 1 Cush. (Mass.) 73; 36 Barb. (N. Y.) 614; 36 N. Y. 522, 527.

(as eqivalent to “deliver”). 1 Bouv. Inst. 459.

(condition in a bond not to). 2 Salk. 463.

Pay, I promise to, (in a note). 4 Barn. & C. 235.

Pay my debts, (in a will). 1 Root (Conn.) 343.

Pay purchase money, (the purchase of land subject to an agreement to). 3 Watts (Pa.) 60.

Pay the contents to my use, (in a promissory note). 3 Mass. 227.

PAYABLE.—A sum of money is said to be payable when a person is under an obligation to pay it. “Payable” may therefore signify an obligation to pay at a future time, but when used without qualification “payable” means that the debt is payable at once, as opposed to “owing” (q. v.) In re Stockton, &c., Co., 2 Ch. D. 103.

Payable, (in a settlement). 3 Ch. D. 654; 2 Ves. 300.

(in a will). 8 Jur. 770; L. R. 10 Eq. 224; 16 Id. 208; 5 Ch. D. 984; 17 Id. 887; 14 Ves. 470, 477; 16 Id. 172,

Payable as convenient, (in a contract). 120 Mass. 171.

Payable at twenty-one, (in a will). 10 Mod. 434; 1 Str. 238.

PAYABLE.

(941)

PAYMENT.

Payable at twenty-one or marriage, (a legacy). 2 Bro. Ch. C. 305.

directions for the payment and transfer into court of the moneys and securities belonging to the suitors; the payment by drafts on the Bank of England of sums payable out of court, and of the interest on funds in court; the keeping of the necessary accounts, and the issuing of certificates and transcripts of the accounts. See Certificate, p.186, n. (11) et seq.; Direction, § 2; Payment into Court.

Payable in currency, (in a promissory note). 8 Minn. 324.

Payable in trade, (defined). 114 Mass. 34.

PAYEE.-One to whom a bill of exchange, promissory note or check, is made payable. See the three titles.

Payee, (in a statute). 1 Scam. (Ill.) 140, 142.

Paying, (cannot mean "liable to pay"). 14 Ves. 4.

§ 1. A transfer of money from one person (the payor) to another (the payee). When made in pursuance of a debt or obligation it is sometimes called "payment in satisfaction."

(Va.) 42.

§ 2. In fact-In law.-Payment in fact is an actual payment from the payor to the payee; payment in law is a transaction equivalent to actual payment. Thus, payment in fact by a debtor to one of two or more joint creditors is payment in law to all; and retainer, set-off, allowance in account, acceptance of security, goods or other means of obtaining actual payment, and payment into court (q. v.), are said to be equivalent to payment, because they produce a satisfaction of the debt.

(in an assignment). 3 Wheel. Am. C. L. 182.

§ 3. Absolute - Conditional. - Payment in satisfaction is said to be absolute when the debt is completely discharged, as by payment of cash without stipulation; conditional payment is where the debt may afterwards revive if the mode of payment does not result in actual payment, as where a creditor is paid by a check or bill which is afterwards dishonored; whether the acceptance by the creditor of a negotiable security operates as conditional or absolute payment is a question of fact in each case.

(in a bill of sale). 8 Conn. 491.

(in a covenant). Str. 458.

(in a lease). 2 Mod. 34.

As to general and appropriated payments, see Appropriation, § 5.

(in a will). 2 Conn. 196, 199; 2 Halst. (N. J.) 378; 2 Yeates (Pa.) 367; Reeve Dom. Rel. 488; 1 Cro. 146, 204, 378, 379, 833; Cro. Jac. 527; Dyer 73 a, 348 a; Hob 65; 11 Ir. Eq. 386; 2 Mod. 25; 11 Id. 208; Poph. 11; 1 T. R. 346; 2 Vern. 106; Willes 652; 4 Bac. Abr. 324.

As to the effect of part payment, see Part Payment.

Paying freight according to charter-party, (in a bill of lading). 3 East 555.

§ 4. Payment for honor.-In the law of bills of exchange, payment for honor is where a person pays a dishonored bill for the honor of some one of the parties. The payor has the rights of a holder against the person for whose honor he has paid, and against all antecedent parties, but the subsequent parties are discharged. Byles Bills 286. See Acceptance, § 5; Honor.

Paying freight for the said goods, (in a bill of lading). 13 East 505.

Payment, (defined). 2 La. Ann. 24; 3 Duer (N. Y.) 428, 441.

Paying my debts, after, (in a will). Willis Trust. 130.

Paying my testator's lawful debts, (in a will). 2 W. Bl. 1215.

Paying out, (what is not). 5 Redf. (N.Y.) 460.

Paying out notes, (distinguished from "issuing"). 2 Cranch (U.S.) C. C. 141; 8 Mich. 104.

Paying out of the rents and profits, (in a will). 2 Pres. Est. 236.

Paying rent, (in an award). 1 Cro. 211.

Paying the rent, (in a lease). 2 Mod. 34, 35.

Paying thereout, (in a will). 3 Burr. 1533, 1618; 4 East 496, 499; 5 Id. 87; 2 Mod. 26; 1 Vern. 104; 2 Jd. 152; 8 Com. Dig. 476; ? Pres. Est. 218.

Paying yearly and every year, (in a will). 5 T. R. 13.

PAYMASTER-GENERAL.-

§ 1. In English law, the officer who makes the various payments out of the public money required for the different departments of the State, by issuing drafts on the Bank of England. For the history of the office, see Return as to Public Income, &c., 1869, part ii. 338; Cox Inst. 697.

§ 2. Chancery business. -By the Stat. 35 and 36 Vict. c. 44, the duties of the accountant-general of the court of Chancery were transferred to the paymaster-general. (See Accountant-General.) The paymaster-general carries out the duties so transferred to him at the "office of the paymaster-general for chancery business," in the Royal Courts of Justice, London. The business transacted there includes the issuing of

PAYMENT.

(942)

PECCATUM.

Payment, (what constitutes). 1 Root (Conn.) 430; 5 Mass. 299; 10 Id. 47; 5 Pick. (Mass.) 1; 12 Johns. (N. Y.) 409; 13 Wend. (N. Y.) 109; 4 Watts (Pa.) 452; 4 Bing. 112.

(what is not). 10 Wheat. (U. S.) 333; 43 Conn. 14; 6 Mass. 145; 3 Pick. (Mass.) 12, 394; 8 Id. 522; Coxe (N. J.) 85; South. (N. J.) 770; 2 Cai. (N. Y.) 117; 1 Cow. (N. Y.) 290; 1 Hall (N. Y.) 56; 1 Hill (N. Y.) 516; 2 Johns. (N. Y.) 455; 5 Id. 63; 8 Id. 79, 202, 389; 9 Id. 310; 2 Johns. (N. Y.) Cas. 433; 3 Id. 71; 11 Wend. (N. Y.) 9; 19 Id. 557; 1 Pa 381; 69 Pa. St. 334; 5 Rawle (Pa.) 166; 1 Serg. & R. (Pa.) 296; 10 Id. 314; 14 Id. 434; 2 Watts (Pa.) 122; Burr. 825; 2 P. Wms. 129.

(when presumed). 16 Johns. (N. Y.) 210.

(demand of). 1 Esp. 31.

(in a bond). Cro. Jac. 281.

(in a plea). 6 Man. & G. 40.

(evidence under plea of). 3 Cranch (U. S.) 293; 5 Id. 11; 5 Pick. (Mass.) 44; 8 Johns. (N. Y.) 374.

PAYMENT INTO COURT.—

§ 1. The deposit of money with an official or banker of a court of justice for the purposes of proceedings pending in the court.

Payment into court may be made with one of three objects.

§ 2. In satisfaction.—Where the defendant in an action for debt or damages admits the plaintiff's claim to a certain amount, he may pay that amount into court by way of satisfaction or amends, and plead the payment in as a defense. The plaintiff (unless otherwise ordered) is entitled to receive the amount paid in, and if he accepts it in satisfaction of his entire claim the defendant must pay him his costs of the action. Hawksley v. Brad-shaw, 5 Q. B. D. 22, 302.

§ 3. To abide the event.—Money may be paid into court to remain there pending litigation. Thus, where a prima facie liability is established against a defendant, the court may order him to pay the amount in question into court to remain there until the rights of the parties have been determined, or, in the language of common law, "to abide the event" of the litigation; so where a defendant is a trustee or stakeholder of a fund he may be ordered to pay it into court. (See Dan. Ch. Pr. 1619 et seq.) Payment into court is also a mode of giving security, e. g. for the costs of an appeal.

§ 4. Under Trustee Relief Act, &c.—

In the English Chancery Division of the High Court, payment into court is also a mode by which a person may relieve himself from the responsibility of distributing or administering a fund in his hands. See Lands Clauses Consolidation Act; Trustee Relief Act; also, Deposit, § 3; Paymaster-General; Transfer.

§ 5. Where land subject to any incumbrance is sold, in England, whether by the court or out of court, the court may direct or allow payment into court of a sum sufficient to provide for the incumbrance, and thereupon declare the land to be freed from it. The court may distribute or apply the fund in court according to the rights of the parties. Conveyancing Act, 1881, §§ 5, 21, § 3, 2 § vii.

Payment of a bond, (what is). Busb. (N. C.) L. 336.

(what is not). 1 Vern. 150.

Payment of a debt, (what is not). 2 Gill & J. (Md.) 493.

Payment of my just debts and funeral expenses, after, (in a will). 2 Bos. & P. 247.

Payment or satisfaction, (in a demand for). 1 Chit. Gen. Pr. 567.

Payments, (how applied). 4 Cranch (U. S.) 317; 6 Id. 8.

Payments and credits, (in mechanics' lien law). 39 Cal. 116.

Payments, yearly, (in a will). 4 T. R. 89, 92.

Pays.—See Pais.

PEACE.—In municipal (as opposed to international) law, "peace" or the "king's peace" is used to signify the law relating to public order. Hence, an indictment usually concludes with a charge that the offense complained of was committed "against the peace," &c., although the omission of the words is no defect. See Articles of the Peace; Bill of Peace; Breaches of the Peace; Commission of the Peace; Justice of the Peace.

Peace, (defined). 2 Inst. & C. 512.

Peace, breach of the, (what is). 1 Atk. 58.

Peace is made ten days after, (in a bond). 64 N. C. 582.

Peace of God and the Church.—That rest which the king's subjects had from trouble and suit of law between the terms of court.—Cowell.

Peaceable entry, (in statute of forcible entry). 38 Cal. 410, 411.

Pecata contra naturam sunt grav-issima (3 Inst. 20): Crimes against nature are the most heinous.

Peccatum peccato addit qui culpæ quam fecit patrocinia defendit ad-jungit (5 Co. 40): He adds fault to fault who sets up a defense of a wrong committed by him.

PECIA.

PECIA.—A piece or small quantity of ground.—Paroch. Antiq. 240.

PECK.—A measure of two gallons; a dry measure.

PECULATUS.—In the civil law, embezzling of public money.

PECULIARS, in ecclesiastical law, are districts exempt from the jurisdiction of the ordinary of the diocese. Royal peculiars are the king’s free chapels. (Reg. Eccl. L. 709.) Formerly the peculiar jurisdictions in England amounted to nearly three hundred; but they have been practically abolished by recent legislation. Phillim. Eccl. L. 1203. See COURT OF PECULIARS; ORDINARY.

PECULIUM.—In the Roman law, the permissive property of slaves and of children in the potestas of their masters or fathers. The peculium of the slave was and continued to be his purely on sufferance of his master; but as regards the peculium of children, the following distinctions were taken, that is to say: (1) Profectitium peculium, that arising from (profectum) the property of the father committed to the child for the purposes of trade, remained the father’s in full usufruct and dominium; (2) Adventitium Peculium, that accruing to the child from adventitious sources or from his own labor alone, belonged in usufruct only to the father, and belonged in dominium to the child; and (3) Castrense or Quasi Castrense Peculium, that coming to the child as the reward of military services or of attendance at the palace, belonged to the child in full usufruct and dominium both, so that he could make a will of it; but as regarded this last mentioned peculium, the father (if he emancipated the child) became ipso facto entitled to the usufruct in one equal half part thereof, although otherwise the child’s right thereto was not affected.—Brown.

PECUNIA.—Properly money; but generally, cattle, and sometimes other goods as well as money.

PECUNIA CONSTITUTA.—In the Roman law, money owing (even upon a moral obligation) upon a day being fixed (constituta) for its payment, became recoverable upon the implied promise to pay on that day, in an action called de pecunia constituta, the implied promise (of course) to a stipulatio.

Pecunia dicitur a pecus, omnes enim veterum divitiæ in animalibus consistebant (Co. Litt. 207): Money (pecunia) is so called from cattle (pecus), because all the wealth of our ancestors consisted in cattle. So chattels (cattle) means all tangible personality.

PECUNIA NON NUMERATA.—In Roman law, when a bond had been given for the repayment of money which at the time of giving the bond it was the intention of the obligor to borrow, and the obligee (although in possession of the bond) refused in fact to advance the money, then to an action on the bond, the de-

fense might be pleaded that the money had never been in fact advanced (exceptio de pecunia non numerata); and the onus of disproving this defense was thrown on the plaintiff (the obligee) for two years after the date of giving the bond; but after that period, the onus of proving it was left with the defendant (the obligor), because (of course) he might have been active earlier to obtain the delivery up of the bond, upon the ground of the fraud that had been practiced upon him.—Brown.

PECUNIA NUMERATA.—Counted money; money paid by count or tale. Bract. 94.

PECUNIA SEPULCHRALIS.—Money anciently paid to the priest at the opening of a grave for the good of the deceased's soul. See MORTUARY, § 2.

PECUNIA TRAJECTITIA.—Literally, money carried across the sea (quæ trans, mare vehitur). (Dig. 22, 2, 1.) Money lent to sea, or advanced (in the hazard of the lender, to carry (as was supposed) over the sea. (Moll. de J. M. 357.) Another name for fenus nauticum, or maritime interest. (See 2 Sumner (U. S.) 157, 181).—Burrill.

PECUNIARY CAUSES.—Such as arise in England, either from the withholding of ecclesiastical dues, or the doing or neglecting to do some act relating to the church whereby damage accrues to the plaintiff, to obtain satisfaction for which is permitted to institute a suit in the spiritual court.

PECUNIARY CONSIDERATION, (in a statute). 6 Gray (Mass.) 327.

PECUNIARY LEGACY.—A testamentary gift of money.

PECUNIARY PROVISION, (in a statute). 61 Mc. 395.

PEDAGE—PEDAGIUM.—Money given for the passing of foot or horse through any country.—Spel. Gloss.

PEDANEI JUDICES.—See JUDICES PEDANEI.

PEDE PULVEROSUS.—Dusty foot. Chapmen and peddlers were anciently called by this name. See COURT OF PIEPOWDRE.

PEDIGREE—

§ 1. Law of evidence.—In proceeu ings with reference to the devolution of a deceased person's property, questions as to the relationship of the claimants are called “questions of pedigree.” They are subject to peculiar rules of evidence. Thus, declarations by deceased persons (see DECLARATION, § 5; LIS MOTA); the general reputation of a family, proved by a surviving member of it; entries con-

tained in family Bibles or other books, produced from the proper custody; inscriptions on tombstones; and charts of pedigrees, made or adopted by deceased members of the family, are admissible as evidence on questions of pedigree, by way of exception to the general rule against derivative evidence. Best Ev. 633. See Evidence, § 10; Reputation.

§ 2. Chancery practice.—In English Chancery practice, when a question of pedigree arises (e. g. on an inquiry as to the next of kin or heir-at-law of a deceased person), the party having the carriage of the inquiry draws up a pedigree for the use of the chief clerk.

Pedigree, (includes what). 77 Pa. St. 507. J.) 249; 22 Wend. (N. Y.) 277.

Pedis AbScissio.—Cutting off a foot; a punishment anciently inflicted instead of death. Fleta 1. 1, c. xxxviii.

Pedis Positio (or Possessio).—An actual possession or foothold in lands.

Peddler.—A person who carries goods from place to place for sale.

Peddler, (defined). 47 Tex. 393, 402. (who is not). 41 Vt. 139; 4 Barn. & Ald. 510; Burr. 612, 613. (in a statute). 1 Barn. & Ald. 100. L. R. 8 Q. B. 302; 10 Id. 598.

Pedones.—Foot soldiers.

Peer—An equal; one of the same rank; a member of the House of Lords.

Peerage.—The English dignity of the lords, or peers of the realm. In what sense one individual can hold several peerages, may be seen from Lord Fermoy's Case, 5 H. L. Cas. 716.

Peeress.—Women may acquire peerages by creation, descent, or marriage. The 20 Hen. VI. c. 9, declares that peeresses, either in their own right or by marriage, shall be tried before the same judicature as peers of the realm. This statute is said to be remarkable, as being the only instance of a legislative explanation of any part of Magna Charta. If a woman, noble in her own right, marry a commoner, she still remains noble, and shall be tried by her peers; but if she be only noble by marriage, then by a second marriage with a commoner she loses her dignity; for as by marriage it is gained, so by marriage it is also lost. Yet, if a duchess‐dowager marry a baron, she continues a duchess still, and so forth; for all the nobility are pares, and therefore it is no degradation. A woman, noble in her own right or by her first marriage, marrying a commoner, communicates no rank or title to her husband. 1 Inst. 326.

Peers of Fees.—Vassals or tenants of the same lord, who were obliged to serve and attend him in his courts, being equal in function; these were termed peers of fees, because holding fees of the lord, or because their business, in court was to sit and judge, under their lords, of disputes arising upon fees; but if there were too many in one lordship, the lord usually chose twelve, who had the title of peers, by way of distinction; whence, it is said, we derive our common juries and other peers.—Cowell.

Peine Forte et Dure.—The strong and hard pain. A punishment, now happily abolished, by which a prisoner indicted for felony was compelled to put himself upon his trial. If, when arraigned, he stood mute, he was remanded to prison, and placed in a low dark chamber, and there laid on his back on the bare floor naked, unless where decency forbade; upon his body was placed as great a weight of iron as he could bear; on the first day he received no sustenance, save three morsels of the worst bread, and on the second day three draughts of standing water that should be nearest to the prison door; and such was alternately his daily diet till he died or answered. 3 Bl. Com. 327; 2 Reeves Hist. Eng. c. ix. 131; 4 Steph. Com. (7 ed.) 391, 518.

Pela.—A peal, pile, or fort.—Cowell.

Peles.—Issues arising from or out of a thing.—Jacob.

Pelfe, or Pelfre.—Booty; also the personal effects of a felon convict.—Cowell.

Pellage.—The custom or duty paid for skins of leather.

Pelliparius.—A leatherseller or skinner.—Jacob.

Pellicia.—A pilch or surplice.—Spel. Gloss.

Pellota.—The ball of a foot. 4 Inst. 308.

Pells, Clerk of the.—An officer in the English Exchequer, who entered every seller's bill on the parchment‐rolls, the roll of receipts, and the roll of disbursements.

Pelt‐Wool.—The wool pulled off the skin or pelt of dead sheep. 8 Hen. VI. c. 22.

Pen.—The Welsh word for a high mountain.—Camd. Brit.

Penal Action.—An action for a statutory penalty. See Action, § 9.

Penal Bill.—An instrument formerly in use by which a party bound himself to pay a certain sum or sums of money, or to do certain acts, or in default thereof to pay a certain specified sum by way of penalty, thence termed a penal sum. These instruments have been superseded by bonds in a penal sum, with conditions

PENAL JUDGMENTS, (in certain statutes construed to mean "final judgments"). 1 Minn. 401.

PENAL LAWS.—Those laws which prohibit an act and impose a penalty for the commission of it. They are of three kinds: pœna pecuniaria, pœna corporalis, and pœna exilii. 2 Cro. Jac. 415.

Penal laws, (defined). 36 Mich. 186. (as used in the constitution of 1816, art. 9, § 3). 1 Ind. 315.

PENAL SERVITUDE, in English crim- inal law, is a punishment which consists in keeping an offender in confinement and compelling him to labor. (Steph. Cr. Dig. 2.) The only distinction between penal servitude and "im- prisonment with hard labor" (q. v.) seems to be that the latter is carried out within the walls of a gaol, and cannot be inflicted for more than a comparatively short term of years, while penal servitude is carried out in any place appointed for the purpose by the proper authority, and may be for life, or any period not less than five years. Reg. v. Mount, L. R. 6 P. C. 201 ; 1 Russ. Cr. & M. 72 ; Stats. 16 and 17 Vict. c. 99 ; 20 and 21 Vict. c. 3 ; 27 and 28 Vict. c. 47 ; Pre- vention of Crime Act, 1879. See Imprisonment, § 1; Transportation.

PENAL STATUTES.—Those which impose penalties or punishments for an offense committed. As to the crown's power of remitting these penalties, see 22 Vict. c. 32.

Penal statutes, (defined). Dwar. Stat. 642.

PENAL SUM—PENALTY.— § 1. A penalty or penal sum is a sum of money payable as an equivalent or punish- ment for an injury.

§ 2. Statutory.—Some penalties are imposed by law ; thus, many statutes creating duties of a public nature contain provisions for the recovery of penalties against persons neglecting those duties. Some of these may be enforced by in- formation (q. v.), others by an ordinary action. For an instance, see Girdlestone v. Brighton Aquarium Co., 3 Ex. D. 137. See Action, § 10; Informer.

§ 3. Penal damages.—The damages recovered in certain actions for tort are in the nature of penalties. See Damages, § 4.

§ 4. Conventional penalties.—Bonds.—Penalties may also be agreed on by the parties. (Leake Cont. 573.) Thus, in a bond with a condition, the penalty or penal sum is a nominal sum (e.g. double the amount to be secured) which the obligor binds himself to pay if the condi-

tion is not complied with. When the obligee sues on it he only recovers what is due to him under the terms of the condi- tion. As to a bond for a sum payable by installments, see Protector Loan Co. v. Grice, 5 Q. B. D. 592. See Bond.

§ 5. For breach of contract.—Where the parties to a contract agree that, in the event of a breach of its provisions, the one shall pay to the other a specified sum of money, and it appears on the true con- struction of the instrument, apart from the form of words used, that the sum so specified does not represent the amount of damage caused by a breach of the con- tract, but is merely a nominal sum, as in the case of a bond, (supra, § 4,) then the sum so specified is called a penalty; and if the person injured sues on the contract, he cannot recover the penalty, but only damages for the injury which he has ac- tually sustained. (Chit. Cont. 807 ; Leake Cont. 573.) For examples, see Damages, § 2.

PENALTY, (defined). Minor (Ala.) 209, 227 ; 4 Lans. (N. Y.) 136 ; 1 Robt. (N. Y.) 391 ; 1 Dak. T. 287.

(what is). 7 Wheat. (U. S.) 17 ; 13 Abb. (N. Y.) Pr. 225, 237.

(what is not). 24 Wend. (N. Y.) 244 ; 2 T. R. 33.

(does not import punishment of the person). 3 Harr. (Del.) 77.

(is a debt). 3 Serg. & R. (Pa.) 254. (inflicted by statute). Carth. 252. (an act prohibited in a statute under). 7 Conn. 181 ; Dwar. Stat. 678. (in an agreement). 19 Cal. 676, 681 ; 6 Barn. & C. 216 ; 3 Bos. & P. 630 ; 1 Holt, N. P. 45 n. ; Fess. Pat. 357.

PENALTY, BY WAY OF, (in a bond). 1 II. Bl. 227.

PENALTY FOR NON-PERFORMANCE, (in an agreement). 13 East 345.

PENALTY OR FORFEITURE, COVENANT SE- CURED BY, (distinguished from covenants in general). 4 Burr. 2227.

PENALTY, QUESTIONS EX- POSING TO.—In cross examination of witnesses, and also in involuntary deposi- tions, these questions need not be an- swered, the privilege of witnesses extend- ing to exempt them from answering them. Sidebottom v. Adkins, 5 W. R. 743.

PENALTY, REASONABLE, (promise to give bond in). Cro. Jac. 652.

PENALTY, RELIEF AGAINST.— Whenever a penalty or a forfeiture is in-

serted in any written instrument, merely

to secure the performance of some act,

equity regards the performance of the act

as the substantial and principal intent of

the instrument, and accordingly relieves

(in the general case) against the penalty

or the forfeiture upon the substantial per-

formance of the act, or upon the payment

of adequate damages for its non-perform-

ance. This is the principle underlying the

relief given in equity from the penalty of

a bond; and the same principle has been

extended (at least in cases other than

those arising upon leases between land-

lord and tenant) to forfeiture clauses also;

and even in the case of leases, equity will

relieve from the forfeiture in a few lim-

ited cases, e. g. from forfeiture for the

unpunctual payment of rent, or for the

technical non-repair (there being a sub-

stantial repair) of the premises, and (under

statute) from breach of covenant to insure,

in each instance upon equitable terms.

(See Snell Eq. (5 edit.) 337-343.)—Brown.

PENANCE.—An ecclesiastical punishment

affecting the body of the penitent, by which he

is obliged to give public satisfaction to the

church for the scandal which he has given by

his evil example: an open confession generally

forms part of the penance, while in some cases

the penance may be commuted for a sum of

money to be applied for pious uses. But in

modern times this punishment is rarely enforced.

Phillim. Ecc. L. 1367, where instances are given.

See CENSURE.

PENDENCY—PENDENT—PENDENTE LITE.—An action, arbitration

or other proceeding is said to be pendent

after it has been commenced and before

the final judgment or award has been

given. Pendency is the state of being

pendent. "Pendente lite" means during

the pendency of a suit. See ALIMONY;

Allowance, § 2; Grant, § 8; Lis Alibi

Pendens; Lis Pendens.

Pendente lite nihil innovetur (Co. Litt.

344): During a litigation nothing new should

be introduced.

PENDENTES.—In the civil law, un-

gathered fruits. See FRUCTUS PEN-

DENTES.

Pending, (when legal proceedings are). 48

N. H. 207 ; 2 Browne (Pa.) 146; 2 Wheel. Am.

C. L. 608.

—— (in the constitution). 41 N. Y. 159.

—— (in act of congress). 3 Clif. (U. S.)

Pending in the court, (what is). 71 Pa

St. 170.

PENERARIUS.—An ensign-bearer

—Cowell.

PENETRATION.—A term used in

criminal law, and denoting (in cases of

alleged rape) the insertion of the male

part into the female parts to however

slight an extent; and by which insertion

the offense is complete without proof of

emission.—Brown.

PENITENTIARY.—A prison where

criminals are confined with (or without)

hard labor. 19 Geo. III. c. 74. See GAOL

PENNON.—A standard, banner, or

ensign carried in war.

PENNY.—An English coin, being the

twelfth part of a shilling. It was also used

in America during the colonial period.

PENNYWEIGHT.—Twenty-four

grains, troy weight.

PENSAM.—The full weight of twenty

ounces.

PENSION.—An annuity from govern-

ment for services rendered in the past. In

England, when a pension is granted by the

government to one, who though not for

the time engaged in any active duties is

still liable to be called to active service,

and is therefore to be considered in the

service of the government, as in the case

of an officer on half-pay, the pension can-

not be assigned, attached or otherwise

made liable to his debts. But a pension

granted entirely as a compensation for

past services may be assigned by the

grantee, or it may be taken in execution

by his creditors. Willcock v. Terrell, 3 Ex.

D. 323, and the cases there cited.

Pension, (defined). 15 Cal. 556.

PENSION OF CHURCHES.—Certain

sums of money paid to clergymen in England in

lien of tithes. A spiritual person may sue in the

spiritual court for a pension originally granted

and confirmed by the ordinary; but where it is

granted by a temporal person to a clerk, he can-

not; as if one grant an annuity to a parson, he

must sue for it in the temporal courts. Cro.

Eliz. 875.

PENSION OF THE INNS OF

COURT.—An annual payment made by each

member to the houses. Also, that which in the

two Temples is called a "parliament," and in

Lincoln's Inn a "council," is, in Gray's Inn,

termed a "pension," being an assembly of the

benchers, to consult upon the affairs of the

society. See Inns of Court.

PENSIONER.—

§ 1. One who is supported by an allow-

ance at the will of another; a dependent;

he who receives an annuity from govern-

ment without filling any office.

§ 2. A band of gentlemen who, in England,

attend as a guard on the royal person. It was

instituted A. D. 1539; each gentleman has an

allowance of £150 per annum, and two horses.

This band is now called the "Honorable Body

of Gentlemen-at-Arms."

§ 3. A member of a college at Cambridge who

is not on the foundation.

PENSION-WRIT.—A process formerly

issued against a member of an inn of court,

when he was in arrear for pensions, commons, or

other duties, &c.—Cowell.

PENTECOSTALS.—Pious oblations

made at the feast of Pentecost by parishioners to

their priests; and sometimes by inferior churches

or parishes to the principal mother churches.

They are also called "Whitsun-farthings"

Penultimate Judgment, (what is), 7 Conn.

431, 447.

PEOPLE.—The many, the multitude,

the inhabitants of a nation, state, town,

&c.; the state or nation in its collective or

political capacity; the commonalty or

common folk, as distinguished from the

higher classes; men; individuals.—Rich-

ard. Dict.

People, (means governing power of the

country). 4 T. R. 783, 788.

(in a grant). 8 Johns. (N. Y.) 385.

PEPPERCORN RENT.—See Rent.

PER.—By ; through ; during. As to actions

in the per, see Writ of Entry.

PER ÆS ET LIBRAM.—See Mancipatio.

PER AND POST.—To come in the per is

to claim by or through the person last entitled

to an estate, as the heirs or assigns of the

grantee; to come in the post is to claim by a

paramount and prior title, as the lord by escheat.

PER ANNULUM ET BACULUM.—

See Annulus et Baculus.

PER ANNUM.—By the year. A phrase

still in common use.

PER AUTRE VIE.—See Tenant for Life.

PER CAPITA—PER STIRPES.—

When property is given to the descend-

ants or relations of two or more persons,

the question frequently arises whether the

donees are to take per stirpes, i. e. as repre-

sentatives of their respective ancestors or

relations; or per capita, i. e. whether they

together form one class, each member of

which is to take an equal share. T·3

question chiefly arises in gifts to descend-

ants. According to the English rule, which

obtains in some of the States, if a testator

leaves property to his issue and dies leav-

ing children who are living, and grand-

children who are the issue of deceased

children, then the property is divided per

capita, i. e. each child and grandchild takes

an equal share of the whole. (2 Jarm.

Wills 101, 194.) But if there is a gift to

two or more persons, with a substitutional

gift to the children of such of them as

shall die before the gift takes effect, then

the distribution takes place per stirpes.

(Id. 195.) Thus, if there were three origi-

nal donees, A., B. and C., and B. has died

leaving three children, and C. has died

leaving two children, the property is divi-

ded into three parts, one going to A.,

another to B.'s three children, and the

third to C.'s two children. The expres-

sions per capita and per stirpes are also used

in the law of descent and distribution with

reference to the rule of representation

See Descent; Distribution; Next of

Kin; Representation.

Per capita, (in a will). L. R. 5 Eq. 51.

PER, CUI and POST.—Writs of entry,

now abolished. See Writ of Entry.

PER CURIAM.—By the court. A phrase

frequently used in the reports, to distinguish a

decision or opinion of the court from that of a

single judge. Per curiam opinions are generally

shorter and less argumentative than those ren-

dered by a single judge, as the representative of

the majority of the court.

PER EUNDEM.—This phrase is com-

monly used to express, "by, or from the mouth

of, the same judge."

Per eundem, in eadem [subaudi,

"cause."]; By the same judge, in the same

PER FORMAM DONI.—By the form of the gift. By the direction of the donor, and not by operation of the law.

PER FRAUDEM.—By fraud. A replication to a plea by which something which appears to be a discharge is set up, but which the replication claims is tainted by fraud, and therefore is invalid.

PER INCURIAM.—Through want of care.

PER INFORTUNIUM.—By mischance. See HOMICIDE, § 3.

Per mile, (in an agreement). 27 Vt. 766.

PER MINAS.—By threats. See DURESS, § 1.

PER MY ET PER TOUT.—This phrase is applied to joint tenants who are said to be seised per my et per tout; i. e. by the half or moiety and by all; i. e. they each have the entire possession as well of every parcel or piece of the land as of the whole considered in the aggregate. For one of them has not a seisin of one-half or moiety, and the other of the other half or moiety; nor can one be exclusively seised of one acre and his companion of another, but each has an undivided half or moiety of the whole, and not the whole of an undivided moiety. See JOINT TENANCY.

PER PAIS, TRIAL.—Trial by the country (i. e. by jury). See 3 Steph. Com. (7 ed.) 513.

PER QUÆ SERVITIA.—A real action by which the grantee of a seignory could compel the tenants of the grantor to attorn to himself. (Shep. Touch. 254.) It was abolished by Stat. 3 and 4 Will. IV. c. 27, § 35. See ATTORNMENT.

PER QUOD.—Whereby. In the common law system of pleading the per quod is that part of the declaration in which the plaintiff states the special damage which the wrongful act of the defendant has caused him, as in an action for slander. See DAMAGE, § 3.

Per quon, (in pleading). 3 Barr. 1879; 1 Ld. Raym. 102.

PER QUOD CONSORTIUM AMISIT.—Whereby he lost the benefit of her society. An allegation of special damage introduced into the declaration in actions by husbands for injuries to their wives, as for beating, false imprisonment, &c.

PER QUOD SERVITIUM AMISIT.—Whereby he lost the benefit of her service. See SEDUCTION; SERVICE.

Per rationes pervenitur ad legitimam rationem (Litt. § 386): By reasoning we come to true reason.

PER SE.—By itself, taken alone. Thus, in slander certain words are said to be actionable per se, i. e. no special damage need be proved in order to recover for the speaking them.

PER STIRPES.—By the right of representation—literally, according to the stocks. See Per Capita.

Per stirpes, (in a will). 8 Beav. 214; 14 L. J. Ch. N. s. 150; L. R. 5 Eq. 51.

Per stirpes, succession, (defined). 2 Dev. (N. C.) Eq. 509, 513.

PER TOTAM CURIAM.—By the voice or judgment of the whole court.

PER UNIVERSITATEM.—By the whole. Used in the civil law, of the acquisition of any property as a whole, in opposition to an acquisition by parts: e. g. the acquisition of an inheritance, or of the separate property of the person (peculium), etc. (Calv. Lex. Universitat.)—Bouvier.

Per varios actus legem experientia fecit (4 Inst. 50): By various acts experience framed the law.

PER VERBA DE FUTURO—PER VERBA DE PRÆSENTI.—When a man and woman contract marriage in Scotland [or in New York] by the interchange of words, in which each saith, that he takes the other for husband or wife, respectively, this is a complete marriage per verba de præsenti; in contradistinction to the marriage per verba de futuro; in which case there is a contract or promise to marry, each saying, I promise, &c., and this promise, in the Scotch law, is ratified and the marriage is completed by the mere act of cohabitation, or the “subsequens copula.”—Wharton.

Per year, (equivalent to “annually”). 39 N. Y. 211.

PERAMBULATION.—The act of walking over the boundaries of a district or piece of land, either for the purpose of determining them or of preserving evidence of them. Thus, in many parishes in England, it is the custom for the parishioners to perambulate the boundaries of the parish in Rogation Week in every year. Such a custom entitles them to enter any man's land and abate nuisances in their way. Phillim. Ecc. L. 1807; Hunt Bound. 109; see, also, Britt. 124 b; 4 Inst. 302. See PURLIU.

PERAMBULATIONE FACIENDA.—See DE PERAMBULATIONE FACIENDA.

PERANGARIA.—See ANGARIA.

PERCA.—A perch of land; sixteen and one half feet. See PERCH.

PERCAPTURA. (949) PEREMPTORY.

PERCAPTURA.—A place in a river properly banked for the better preserving and taking of fish.—Par. Ant. 120.

PERCEPTION.—Taking into possession; thus, perception of crops or of profits is reducing them to possession.—Abbott.

PERCH.—A measure of land, consisting of five yards and a half of the standard measure. 6 Geo. IV. c. 74.

PercuIate (defined). 7 Nev. 363.

PERDINGS.—Men of no substance. Leg. Hen. I. c. 29.

PERDONATIO UTILAGARIÆ.—A pardon for a man who, for contempt in not yielding obedience to the process of a court, is outlawed, and afterwards of his own accord surrenders. (Reg. Orig. 28.)—Wharton.

PERDUELLIO.—In the civil law, treason.

PERDURABLE.—Old French: perdurable, eternal, from Latin, per (intensive), and durabilis, lasting. Littré Dict s. v.

As applied to an estate, perdurable signifies lasting long or forever. Thus, a disseisor or tenant in fee upon condition has as high and great an estate as the rightful owner or tenant in fee-simple absolute, but not so perdurable. The term is chiefly used with reference to the extinguishment of rights by unity of seisin, which does not take place unless both the right and the land out of which it issues are held for equally high and perdurable estates. Co. Litt. 313 a, b; Gale Easem. 582.

PEREGRINI.—In the civil law, foreigners commorant or sojourning in Rome.

PEREMPT.—In ecclesiastical procedure an appeal is said to be perempted when the appellant has by his own act waived or barred his right of appeal, as where he partially complies with or acquiesces in the sentence of the court. Phillim. Eccl. L. 1275; Rog. Eccl. L. 47 ; Macph. Jud. Com. 202.

PEREMPTION.—A nonsuit, also a quashing or killing. See Nonsuit.

Peremptorily, (in a rule of court). 1 Dowl. Pr. C. 120.

PEREMPTORY.—An order, writ or other judicial command, is said to be peremptory when no excuse for non-compliance with it is admitted. Thus, a peremptory order for time is final, and the party must either take the step within the time fixed by it, or incur the consequences of not doing so.

PEREMPTORY CHALLENGE.—A privilege allowed to a prisoner in criminal cases, or at least in capital ones, in favorem vitæ, to challenge a certain number of jurors, without showing any cause for so doing. See Challenge, § 2.

PEREMPTORY DAY.—A precise time when certain business by rule of court ought to be spoken to; but if it cannot be spoken to then, the court, at the prayer of the party concerned, will give a further day without prejudice to him.

PEREMPTORY MANDAMUS.—When a mandamus has issued commanding a party either to do a certain thing or to signify some reason to the contrary, and the party to whom such writ is directed returns or signifies an insufficient reason, then there issues in the second place another mandamus, termed a "peremptory mandamus," commanding the party to do the thing absolutely, and to which no other return will be admitted but a certificate of perfect obedience and due execution of the writs. See Mandamus, § 2.

PEREMPTORY ORDER FOR TIME TO PLEAD.—See Peremptory.

PEREMPTORY PAPER.—A list of the causes which were enlarged at the request of the parties, or which stood over from press of business in court to a day which was specified in the paper, and which day was peremptory. See Paper.

PEREMPTORY PLEAS.—Pleas in bar are so termed in contradistinction to that class of pleas called "dilatory pleas." Peremptory pleas are usually pleaded to the merits of the action with the view of raising a material issue between the parties ; whilst dilatory pleas are generally pleaded with the view of retarding the plaintiff's proceedings, and not for the purpose of raising an issue upon which the parties may go to trial and settle the point in dispute. Peremptory pleas are called, also, in bar, whilst dilatory pleas are said to be in abatement only. See Abatement; Pleas, § 4.

PEREMPTORY RULE TO DECLARE.—When the plaintiff in an action was not ready to declare within the time limited,

and the defendant wished to compel the plaintiff to declare, he procured what was termed a peremptory rule to declare, which was in the nature of an order from the court, compelling the plaintiff to declare peremptorily under pain of judgment of non pros. being signed against him. But by the C. L. P. Act, 1852, § 53, rules to declare, or declare peremptorily, were abolished, and instead thereof a notice requiring the opposite party was to be given otherwise judgment; and under the present practice, the court would make an order upon the plaintiff to deliver his statement of claim peremptorily on a day specified, otherwise judgment dismissing the action.

PEREMPTORY UNDERTAKING.—The court will, in some cases, set aside a judgment for not proceeding to trial, upon payment of costs, and a peremptory undertaking to try at the next sittings or assizes, especially where the plaintiff had been delayed on account of his witnesses, or the like. (2 Chit. Arch. Pr. (12 edit.) 1509.)—Wharton.

PEREMPTORY WRIT.—An original writ, called from the words of the writ, a si te fecerit securum, and which directed the sheriff to cause the defendant to appear in court without any option given him, provided the plaintiff gave the sheriff security effectually to prosecute his claim. The writ was very occasionally in use, and only where nothing was specifically demanded, but only a satisfaction in general; as in the case of writs of trespass on the case, wherein no debt or other specific thing was sued for, but only damages to be assessed by a jury. (1 Arch. Pr. 205.)—Brown.

PERFECT.—(1) Complete; as a perfect obligation, i. e. one which is in all respects enforceable. (2) To make complete; as to perfect an appeal, or to perfect bail.

Perfect condition, (of debt sought to be set off). 82 N.Y. 17.

Perfect title, (defined). 21 Conn. 444.

PERFECT TRUST.—An executed trust. See Executed Trust.

PERFECTING BAIL.—Certain qualifications of a property character being required of persons who tender themselves as bail, when such persons have justified, i. e. established their sufficiency by satisfying the court that they possess the requisite qualifications, a rule or order of court is made for their allowance, and the bail is then said to be perfected, i. e. the process of giving bail is finished or completed. See Bail, § 3.

Perfectly good, (as equivalent to "responsible"). 7 Vt. 67

Perfectum est cui nihil deest secundum suæ perfectionis vel naturæ modum (Hob. 151): That is perfect which wants nothing, according to the measure of its perfection or nature.

PERFIDY.—The act of one who has engaged his faith to do a thing, and does not do it, but does the contrary. (Wolff, 280.)—Bouvier.

PERFORMANCE.—

§ 1. Of contract, or condition.—With reference to a contract or condition, performance is the act of doing that which is required by the contract or condition. The effect of performance, in the case of a contract, is to discharge the person bound to do the act from liability, and, in the case of a condition, to create or establish the right dependent on the condition. Thus, where A. contracts to supply goods to B., he is not only bound to supply them, but he cannot claim their price until he has done so (condition precedent); if he performs the contract by supplying them, he discharges his liability, and at the same time entitles himself to claim their price.

§ 2. Partial performance is where the contract, &c., is not fully performed; it is only in a few instances that this gives rise to any rights by the performing person. Chit. Cont. 663. See Apportionment; Freight; Quantum Meruit; Quantum Valebant.

§ 3. Part performance is where the contract has been partly carried into effect; what is called the doctrine of part performance, is the rule that where a contract is not enforceable for want of some formality, (e. g. by reason of not being in writing, as required by the statute of frauds,) and it has been partly carried into effect by one of the parties, the other cannot set up the informality as a defense; as where possession has been taken under a parol contract for the sale of land. Chit. Cont. 278; Poll. Cont. 557. As to performance generally, see Louke Cont. 435. See Part Payment.

§ 4. In equity, the doctrine of performance is applied to cases where A. has covenanted to purchase and settle or leave by will property in favor of B., and B. has obtained the benefit stipulated for, although the covenant has not been strictly perform.

ed. Thus, where A. covenanted to purchase lands of £200 a year, and settle them on his wife and the children of the marriage, and purchased lands of that value, but did not settle them, it was held that this was a performance of his covenant, and that the eldest son was therefore not entitled to have both the benefit of the lands which had descended to him as heir-at-law and to have the covenant performed by the purchase of other land. Haynes Eq. 346; Snell Eq. 184; 2 White & T. Lead. Cas. 879. See Discharge; Essence of the Contract; Payment; Satisfaction.

Performance, (in statute of frauds). 55 Mo. 97.

Performance of an Agreement, (what is). 3 Atk. 3.

Performance, part, (in statute of frauds). 1 Bro. Ch. 412.

(what is not). 3 Bro. Ch. 400; 1 Sch. & L. 41.

Performance thereof, in consideration of the, (in a covenant). 2 Saund. 155.

Performed, (in statute of frauds). 13 Wend. (N. Y.) 309; 11 East 142.

Performing well and truly, (in a covenant). 1 H. Bl. 273 n.

Periculosus.—Dangerous; perilous.

Periculosus est res novas et inusitatas inducere (Co. Litt. 379 a): It is perilous to introduce new and untried things.

Periculosum existimo quod bonorum virorum non comprobatur exemplo (9 Co. 97 b) : I consider that dangerous which is not approved by the example of good men.

Periculum.—Peril; danger; hazard; risk.

Periculum rei venditæ, nondum traditæ, est emptoris : The risk of a thing sold, and not yet delivered, is the purchaser's.

Peril, (synonymous with “danger”). 8 Serg. & R. (Pa.) 539.

Peril, all other, (in a policy of insurance). 4 East 403.

Peril of the river, (in a policy of marine insurance). 4 Bush (Ky.) 239.

(does not include “fire”). 19 How. (U. S.) 312.

Perils of the sea.—These are strictly the natural accidents peculiar to the water, but the law has extended this phrase to comprehend events not attributable to natural causes, as captures by pirates, and losses by collision, where no blame is attachable to either ship, or at

all events to the injured ship. The word “peril,” like “periculum,” from which it is derived, is in itself ambiguous, and sometimes denotes the risk of inevitable mischance, and sometimes the danger arising from the want of due circumspection. Jones Bailm 98. Consult 2 Arn. Ins. (3 edit.) 687 et seq. See Insurance, § 3; Risk.

Perils of the sea, (defined). 27 Me. 132; Bail. Perils Sea 6.

(what are). 8 Pet. (U. S.) 585; 20 Ohio 199.

(equivalent to “dangers of the river”). 3 Stew. & P. (Ala.) 135.

(what is a loss by). 1 Johns. (N. Y.) 241.

(in maritime law). 6 Cow. (N. Y.) 266.

(in a bill of lading). 19 How. (U.S.) 162.

(in an insurance policy). 14 Pet. (U. S.) 99; 3 Wash (U. S.) 159; 9 Allen (Mass.) 307, 308; 56 Barb. (N. Y.) 442; 21 Wend. (N. Y.) 190.

Perinde valere.—A dispensation granted to a clerk, who, being defective in capacity for a benefice or other ecclesiastical function, is de facto admitted to it. (Gibs. 87; 25 Hen. VIII. c. 21.)—Cowell.

Perindinare.—To stay, remain, or abide in a place.

Period.—Any portion or space of time. “The word ‘period’ has its etymological meaning, but it also has a distinctive signification, according to the subject with which it may be used in connection. It may mean any portion of complete time, from a thousand years or less to the period of a day; and when used to designate an act to be done or to be begun, though its completion may take an uncertain time, as for instance, the act of exportation, it must mean the day on which the exportation commences, or it would be an unmeaning and useless word in its connection in the statute.” Wayne, J., in Sampson v. Peaslee, 20 How. (U. S.) 579.

Periphrasis.—Circumlocution; use of many words to express the sense of one.

Perishable, (defined). 31 Conn. 495.

(in New York code). 1 Civ. Pro. (N Y.) 384, 387 n; 62 How. (N. Y.) Pr. 511.

Perishable articles, (in an insurance policy). 7 Cow. (N.Y.) 202.

PERISHABLE.

PERISHABLE GOODS.—Goods which decay and lose their value if not consumed soon; fish, fruit and the like. By the English Judicature Act, 1875, Ord. LII. r. 2, such goods, when the subject of an action, may, by order of the court or a judge, be sold. Similar statutory provisions exist in the different American jurisdictions.

Perishable property, (what is). 3 Munf. (Va.) 283.

(what is not). 54 Ill. 58.

Perjuri sunt qui servatis verbis juramenti decipiunt aures eorum qui accipiunt (3 Inst. 166): They are perjured, who, preserving the words of an oath, deceive the ears of those who receive it.

PERJURY.—

§ 1. An assertion willfully made upon an oath or affirmation duly administered in a judicial proceeding pending before a competent court, of the truth of some matter of fact material to the question depending in that proceeding, which assertion the person making it does not believe to be true, or on which he knows himself to be ignorant. (Steph. Cr. Dig.82.) In some cases a false oath amounts to perjury, although not taken in a judicial proceeding. See Arch. Pr. 851, 864.

§ 2. The evidence of two witnesses at least is required to support a conviction for perjury. 4 Steph. Com. 427. See Affirmation, § 3; Declaration, § 6; False Swearing; Oath; Subornation of Perjury.

Perjury, (defined). 1 Sprague (U. S.) 558; 44 Ala. 81; 2 Conn. 40, 47; 2 Metc. (Ky.) 10; 11 Allen (Mass.) 243; 39 Mis. 541.

(what constitutes). 4 McLean (U. S.) 113; 73 Mo. 549; 9 Tex. App. 283.

(what is not). 8 Ala. 510.

PERKINS.—The author of the "profitable boke" on the learning of conveyancing; as valuable a performance as any, perhaps, of the reign of Hen. VIII. This was first printed in 1532, with the following title: "Incipit perutilis Tractatus Magistri J. Perkins Interioris Templi Socii, &c." This book is in French. 4 Reeves Hist. Eng. Law c. xxx., 120.

Permanent, (of a sidewalk). 6 Cush. (Mass.) 224.

(an injury to land may be, without continuing forever). 1 Gr. (N. J.) Ch. 154.

Permanant (in a statute). 8 Barb. (N. Y.) 174.

Permanent abode, (in election act). 78 Ill. 170.

PERMANENT BUILDING SOCIETY.—See Building Society, § 4.

Permanent policy, (defined). 23 How. (N. Y.) Pr. 448.

Permanent sickness, (of a witness to make his deposition admissible). L. R. 1 C. P. 713.

PERMANENT TRESPASS.—See Continuendo; Trespass.

Permanently, (defined). 12 Bush (Ky.) 541.

Permission, (words of, in a charter). 5 Barn. & Ald. 691, 692; 1 Dowl. & Ry. 148; 2 Id. 176.

PERMISSIONS.—Negations of law, arising either from the law's silence, or its express declaration. Ruth. Nat. Law, b. 1. c. i.

PERMISSIVE USE.—A passive use which was resorted to before the Statute of Uses, in order to avoid a harsh law, as that of mortmain or a feudal forfeiture; it was a mere invention in order to evade the law by secrecy, as a conveyance to A. to the use of B.; A. simply held the possession, and B. enjoyed the profits of the estate. See Uses.

PERMISSIVE WASTE.—See Waste.

PERMIT.—A license or instrument granted by the officers of customs, certifying that the duties on certain goods have been paid, or secured, and permitting their removal from some specified place to another.

Permit, (defined). 9 Allen (Mass.) 271.

(in a statute). 83 N. Y. 471.

(in a will). 2 Taunt. 109.

Permit drunkenness, (in licensing act). 2 C. P. D. 74.

Permit her to receive, (in a will). 1 Rawle (Pa.) 231; 1 Whart. (Pa.) 520; 2 Id. 873.

Permitting and suffering, (not synonymous with knowing of and being privy to). 6 Barn. & C. 295, 303.

PERMUTATION, or BARTER.—The exchange of one movable subject for another. See Barter.

PERMUTATIONE, &c.—A writ to an ordinary, commanding him to admit a clerk to a benefice upon exchange made with another.—Reg. Orig. 307.

PERNANCY. (953) PERPETUITY.

PERNANCY—PERNOR.—Pernancy is the act of taking or receiving rents or other profits of land; the person who takes them is called the "pernor." (Co. Litt. 323 b, 351 a.) The terms are now antiquated. From Norman-French, pernour ; (Britt. 36 b;) from prendre; Latin, prendere, to seize.

PERPARS.—A part of the inheritance. —Fleta.

PERPETRATOR, (in a statute). 33 Iowa 47.

Perpetua lex est, nullam legem humanam ac positivam perpetuam esse ; et clausula quæ abrogationem excludit, ab initio non valet (Bacon) : It is an everlasting law, that no positive human law shall be perpetual ; and any part of an enactment which purports to admit of no repeal, is void from the first.

PERPETUAL.—That which is continuous; enduring; lasting; something unlimited in respect of time. as a perpetual statute.

PERPETUAL ADVOWSON, (in a will). 6 J. B. Moo. 159.

PERPETUAL CURATE.—See CURATE.

PERPETUAL CURATE, (who is). 2 Steph. Com. 682, 683.

PERPETUAL INJUNCTION.— Opposed to an injunction ad interim; an injunction which finally disposes of the suit, and is indefinite in point of time. See INJUNCTION, § 3.

PERPETUATING TESTIMONY.—

§ 1. A statutory method of preserving evidence to be used on some future occasion, where the witnesses are aged or infirm, or about to depart from the jurisdiction, and a trial cannot be had in time to procure their attendance in the regular way. In such cases it is usual to file a bill in equity to perpetuate and preserve the testimony of such witnesses; and the court then usually empowers certain persons to examine such witnesses, and to take their depositions. The evidence so taken is then available on any future trial, if the witness or witnesses should in the mean time have died, but not otherwise.

§ 2. By the Stat. 5 and 6 Vict. c. 69, any person who would, under circumstances alleged by him to exist, become entitled, upon the happening of any future event, to any honor, title, dignity or office, or to any estate or interest in any property, real or personal, the right or claim to which he cannot bring to trial before the happening of that event, might file a bill in chancery to perpetuate any testimony material for establishing his claim. In a proper case, the court made an order that the witnesses whose testimony was required should be examined, cross-examined and re-examined in the usual way, and, when this had been done, the cause was at an end. (Dan. Ch. Pr. 1419; Haynes Eq. 172; Snell Eq. 490.) This jurisdiction has been transferred to the High Court of Justice in the Chancery Division. (Judicature Act, 1873, § 16.) Bills to perpetuate testimony as to legitimacy were formerly of not unfrequent occurrence; but now the same object may be attained under the Legitimacy Declaration Act. Dan. See DE BENE ESSE; LEGITIMACY, § 2.

PERPETUITY.—

§ 1. Perpetuity properly signifies a disposition of property by which its absolute vesting is postponed forever; as, for instance, if property were conveyed to trustees upon trust to pay the income to A. for life, and after his death to his eldest son for life, and after his death to his eldest son, and so on. Such dispositions are contrary to the policy of the law, because they "tie up" property and prevent its free alienation. Accordingly, it has long been a rule in the law relating to contingent remainders, that an estate cannot be given to an unborn person for life, followed by any estate to any child of such unborn person. (Wms. Real Prop. 276.) But the rule which is commonly known as the rule against perpetuities is that applicable to executory interests (q. v.); it forbids any disposition by which the absolute vesting of property is or may be postponed beyond the period of the life or lives of any number of persons (sometimes limited to two persons) living at the date of the disposition, and the further period of twenty-one years and a fraction, after the death of the survivor. (Id. 820; Wats. Comp. Eq. 748.) Thus, property may be given upon trust for A. for life, and after his death for such of his children as attain twenty-one, which would let in a posthumous child.

§ 2. Hence, "perpetuity" has come to mean any disposition which is void, because it infringes this "rule against perpetuities," such as a gift to A. for life, and after his death to such of his children as shall attain twenty-five. Leake v. Robinson, 2 Meriv. 363.

PERPETUITY.

(954)

PERSONA.

§ 3. The principal exceptions to the rule are estates tail and limitations following estates tail (q. v.), charitable dispositions, and grants of property to particular families for public services. Wats. Comp. Eq. 748. See Appointment, § 1; Mortmain; Remoteness.

PERPETUITY, (defined). 5 Otto (U. S.) 312; 2 P. Wms. 688.

(in the recital of a prospectus). 4 La. Ann. 109.

PERPETUITY OF THE KING.- That fiction of the English law which for certain political purposes ascribes to the king in his political capacity the attribute of immortality; for though the reigning monarch may die, yet by this fiction the king never dies; i. e. the office is supposed to be re-occupied for all political purposes immediately on his death;

PERQUISITE.-(1) Something gained by a place or office over and above the stated wages; (2) anything gotten by industry or purchased with money different from that which descends from a father or ancestor; (3) fines of copyholds, heriots, amercements, &c.

PERQUISITOR.-A searcher.

PERSON.—

§ 1. In jurisprudence, a person is the object of rights and duties, i. e. capable of having rights and of being liable to duties, while a thing is the subject of rights and duties. See Holl. Jur. 64.

§ 2. Natural—Artificial.—Persons are of two kinds, natural and artificial. A natural person is a human being. (See Monster.) Artificial persons include (1) a collection or succession of natural persons forming a corporation (q. v.); (2) a collection of property to which the law attributes the capacity of having rights and duties. The latter class of artificial persons is only recognized to a limited extent in our law; examples are—the estate of a bankrupt or deceased person, and the assets of a company or partnership. As to the Roman law on the subject, see Hunt. Rom. L. 169, 559; 1 Holtz. Encycl. 274. See Personality; Status.

Person, (defined). 4 Cal. 304; 1 Bradw. (Ill.) 399; 1 Bl. Com. 123.

(when includes corporation). 3 Bins. (U. S.) 480; 12 Pet. (U. S.) 102; 11 Wheat. (U. S.) 392; 13 Bankr. Reg. 199, 206; 10 Ill. 48; 22 Id. 9; 12 Cush. (Mass.) 59; 7 How. (Miss.)

508; 1 Abb. (N. Y.) App. Dec. 199; 25 Ohio St. 217; 18 Am. Rep. 291; Bright. (Pa.) 121; 15 Serg. & R. (Pa.) 176; 4 Humph. (Tenn.) 157; 36 Tex. 648; 27 Gratt. (Va.) 110; 10 Wis. 351.

Person, (when does not include corporation). 8 Md. 95; 11 Metc. (Mass.) 129; 4 Halst. (N. J.) Ch. 592; 24 Ohio St. 611; 4 Cent. L. J. 174.

(the State is). 24 Tex. 61.

(does not include a State or a nation). 52 N. Y. 530.

(does not include the federal government). 4 Otto (U. S.) 315.

(in act of congress, includes "Indian"). 5 Dill. (U. S.) 453; 2 Sawy. (U. S.) 364.

(in a statute, includes both "natural and artificial"). 8 Port. (Ala.) 404.

(in marriage settlement). 1 Russ. 303, 366.

(in a statute). 69 Ind. 273; 5 Abb. (N. Y.) Pr. 316; 27 Barb. (N. Y.) 238; 56 Id. 27, 46; 1 Cow. (N. Y.) 513; 6 Hill (N. Y.) 33, 38; 15 Johns. (N. Y.) 358; 20 N. Y. 210; 22 Id. 44, 352; 1 App. Cas. 82, 90; 5 Id. 857; 3 C. P. D. 377, 380; 2 Q. B. D. 131; 4 Id. 313; 5 Id. 310.

Person aggrieved, (in bankruptcy act). 11 Ch. D. 56; 12 Id. 308; 14 Id. 71; 16 Id. 497.

Person, any, (in a statute). 5 Abb. (N. Y.) Pr. n. s. 73; 3 Daly (N. Y.) 70.

Person, any injured, (applies to damage to property). 12 Metc. (Mass.) 291.

Person, any other, (in statute). 15 Wend. (N. Y.) 147.

Person appointed to any office, (in a statute). L. R. 9 Q. B. 433.

Person by whose act or default, (in act relative to nuisances). L. R. 3 Q. B. 251.

Person, damage to the, (in a statute, does not include breach of promise of marriage). 4 Cush. (Mass.) 408.

Person deeming himself aggrieved, (in copyright act). L. R. 4 Q. B. 715.

Person entitled to vote, (in election law). L. R. 4 Q. B. 147.

Person in charge, (in merchant shipping acts). L. R. 6 Q. B. 280.

PERSON, INDECENT EXPOSURE OF.—See Indecent Exposure.

Person, injuries to the, (in a statute). 4 How. (N. Y.) Pr. 234.

Person occupying, (in a statute). 5 Abb. (N. Y.) Pr. n. s. 445, 449.

Person or persons, (may include corporations). Wilberf. Stat. L. 131.

(in a statute). 3 C. P. D. 377.

Person, other, (in a statute). 10 R. T. 79; 5 Barn. & C. 611; 7 Id. 506, 509.

Person, removal of hucit, (in a statute). 46 Vt. 60, 63.

Person whatever, for any, (in a statute). 49 Ga. 436, 439.

PERSONA.—

§ 1. A person; anybody capable of having and becoming subject to rights. See Sand. Just. (5 edit.) 13.

§ 2. The rector of a church instituted and inducted, for his own life, was called persona

mortahs; and any collegiate or conventual body, to whom the church was forever appropriated, was termed persona immortalis.—Jacob.

Persona conjuncta equiparatur interesse proprio (Bacon): The interest of a man's kindred is equivalent to his own.

PERSONA DESIGNATA.—A person pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character. Thus, if a testator bequeaths property to his children as a class, only those who fill that character at his death, i. e. the survivors, can participate in the gift, while if he bequeaths it to them as personæ designatæ, the children of such of them as have died in his life-time will take their parents' shares. (In re Stansfield. 15 Ch. D. 84. See Lapse, § 1.) So property may be given to an illegitimate child as persona designata, but not as a child simply. See Child, § 2.

PERSONA ECCLESIAE.—The parson or personation of the church.

Persona regis mergitur persona ducis (Jenk. Cent. 160): The person of duke merges in that of king.

PERSONABLE.—The being able to hold or maintain a plea in court; also, capacity to take anything granted or given.—Plowd.

PERSONAL.—

§ 1. That which has reference to the person of an individual, as in the case of a personal contract. (British Waggon Co. v. Lea, 5 Q. B. D. 149. See Contracts, § 11.) A personal injury is an injury to the person of an individual, such as an assault, as opposed to an injury to his property, such as a trespass. See Actio Personalis Moritur Cum Persona.

§ 2. Actions—Property.—In the division of actions, a personal action originally meant one which was brought to enforce a remedy against a specific person, while in a real action the remedy was against a thing. Thus, an action on a contract or tort was a personal action, while an action to recover land was a real action, because the land itself could always be recovered. (See Action, § 15; In Personam.) Hence also arose the distinction between real and personal property, as to which see the respective titles. Wms. Real Prop. 6.

Personal, (in a will). 128 Mass. 433, 434.

PERSONAL ACTION.—See Personal, § 2.

Personal action, (defined). 71 Me. 287.

(when survives). 13 Serg. & R. (Pa.) 184, 185.

(when does not survive). 13 Serg. & R. (Pa.) 416.

PERSONAL ASSETS. — Chattels, money and other personal property belonging to a bankrupt, insolvent or decedent estate, and chargeable with the debts of the estate.

Personal baggage, (what is not). 106 Mass. 146; 8 Am.Rep. 300.

PERSONAL CHATTELS.—Goods, money, or movables.

Personal chattels, (in bills of sale act). 2 C. P. D. 212.

PERSONAL CONTRACT.—See Personal, § 1.

PERSONAL ESTATE.—Personal property (q. v.)

Personal estate, (what is). 1 Myl. & K. 649.

(includes "slaves"). 1 Dana (Ky.) 102.

(in a statute). 7 Hill (N. Y.) 261; 4 Paige (N. Y.) 384; 31 N. Y. 32; 1 Russ. & G. (Nov. Sc.) 46, 48.

(in a will). 1 Ves. 522; 4 Id. 76; 1 Ves. & B. 415; 8 Com. Dig. 474.

Personal estate, property, chattels and effects, (in a will). 3 C. P. D. 344.

Personal estate within this state, (in tax act). 88 N. Y. 576.

Personal estates, (in a will). 11 East 246.

Personal goods, (does not include "bank notes," "money" and "coin"). 1 Crancb (U S.) 141; 5 Mas. (U. S.) 537, 540.

(does not include "chose in action"). 5 Mas. (U. S.) 356.

PERSONAL IDENTITY.—See Identification.

PERSONAL INJURY.—See Personal, § 1.

Personal injury, (defined). 71 Me. 229.

Personal injury, great, (equivalent to "great bodily injury"). 28 Miss. 687.

PERSONAL LAW.—As opposed to territorial law, is the law applicable to persons not subject to the law of the territory in which they reside. It is only by permission of the territorial law, that personal law can exist at the

present day ; e. g. it applies to British subjects resident in the Levant and in other Mahommedan and barbarous countries. Under the Roman Empire, it had a very wide application.—Brown.

Personal liability, (of members of a corporation). 17 Mass. 334.

— (of members of an unincorporated association). 4 Serg. & R. (Pa.) 356.

— (of stockholders of a bank). 15 Mass. 505 ; 16 Id. 9.

Personal liberty.—The right or power of locomotion ; of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law. 1 Bl. Com. 134.

Personal luggage, (in a statute). 2 Am. L. Reg. 421.

Personal occupation of lands, (in a statute). 7 Mass. 1.

Personal property, or personality.—

§ 1. This may be said generally to include (1) everything the subject of ownership not being land, or an interest in land ; and also (2) a few exceptional interests in land which from historical reasons are nevertheless personalty.

§ 2. Personal property differs from realty chiefly in the following respects : (1) Realty is in theory only capable of being held for an estate (q. v.), while personalty is essentially the subject of absolute ownership. A chattel is accordingly capable of being entailed. But limited and reversionary interests in chattels, analogous to certain estates in land, may be created under the doctrines of equity. Thus, a personal property may be vested in trustees in trust for A. for life, and after his death for B. ; but the rules governing contingent remainders in land do not apply to personal property. Chattels may also be made the subject of joint ownership and ownership in common, (see Joint ; Joint Tenancy ; Tenancy in Common,) and of appointment under a power, (see Power ; Wms. Pers. Prop. 306 et seq.)

(2) On the death of its owner, personalty (with few exceptions) passes to the executor or administrator of the deceased ; and if he died intestate, it is divisible among his next of kin according to the Statutes of Distribution, while realty passes to the devisee of its owner if he has disposed of it by will, or descends to his heir if he has died intestate, subject in either case to his debts. (Id. 381, 415.) (See Animals, § 3 ; Descent ; Donatio Causa Mortis ; Fixtures ; Goods ; Growing Crops ; Heir ; Heirloom ; Next of Kin ; Title Deeds.)

As to the administration of the real and personal property of a deceased person, see Administration, § 2; Executor. (3)

Personal property is capable of being transferred or conveyed by modes inapplicable to real property. See Assignment, § 2 et seq.

Personal property is subject to several divisions.

§ 3. As to the distinction between chattels real and chattels personal, see Chattel. Chattels personal are further divisible into choses in possession and choses in action. See Chose.

§ 4. Mixed or impure.—Mixed or impure personalty consists of leaseholds, terms of years, estates at will, land directed to be converted into money (see Conversion), and money secured on land, e. g. by mortgage. The term “impure personalty” is generally used, in England, with reference to the Mortmain Act, to denote property which, though personalty, is not allowed to be given to charitable uses by will, &c. See Charitable Trusts Act ; Debenture, p. 350, last note ; Mortmain, § 2.

§ 5. Pure.—Pure personalty comprises all personal property not connected with land in such a manner as to fall within the Mortmain Act.

§ 6. Corporeal—Incorporeal.—Personal property is also divisible into (1) corporeal personal property, which includes movable and tangible things, such as animals, ships, furniture, merchandise, &c. ; and (2) incorporeal personal property, which consists of such rights as personal annuities, stocks, shares, patents and copyrights.

Personal property, (defined). 37 Ill. 197. (distinguished from “real property”). 1 Chit. (Gen. Pr.) 145. (includes “bank notes”). 1 Ohio St. 422.

— (includes “money”). 36 Ohio St. 548. (does not include an interest under a contract). 2 Sumn. (U. S.) 278. (a dog is, and is the subject of larceny). 9 Baxt. (Tenn.) 53, 56 ; 13 N. Y. Week. Dig. 74.

PERSONAL.

Personal property, (in a conveyance). 28 Vt. 26.

(in city ordinance). 1 McCord. (S. C.) 349.

(in a statute). 54 Cal. 178; 3 Vr. (N. J.) 355; 1 N. Y. 20, 24, 31; 3 Mon. T. 173.

(in a will). 24 Pa. St. 20; 51 Wis. 60; L. R. 2 Ch. 138.

Personal replevin.—See De Homine Replegiando.

Personal representative, (who is not). 16 Minn. 45.

(an agent is not, within 3 32, ch. 63, public statutes 1858). 15 Minn. 512.

(in articles of marriage settlement). 11 Jur. 859.

(in a will). 1 Russ. & M. 587.

Personal representatives.—Executors or administrators. 2 Steph. Com. (7 edit.) 198.

Personal representatives, (the next of kin are not). Sux. (N. J.) 437.

(in articles of marriage settlement). 10 Beav. 362; 16 L. J. Ch. N. s. 503; L. R. 18 Eq. 686.

(equivalent to “executor” or “administrator”). 3 Dill. (U. S.) 124; 8 Minn. 103; 15 Id. 512; 16 Id. 45; 2 Col. 728; 10 Jur. 748; Taml. 383.

(in a statute). 34 Barb. (N. Y.) 319.

(in a will). 1 Andr. 128; L. R. 6 Eq. 589; 13 Sim. 52; 8 Com. Dig. 475.

Personal rights.—The right of personal security, comprising those of life, limb, body, health, reputation, and the right of personal liberty.—Wharton.

Personal services, (in a statute). 35 Me. 126.

Personal statutes.—Statutes confined to particular persons, e. g. authorizing a person to change his name, &c. Also, statutes affecting the person principally, and treating of property only incidentally.

Personal tithes.—Those that are paid out of such profits as come by the labor of a man’s person, as by buying and selling, gains of merchandise, handicrafts, &c.

Personal transaction, (in a statute). 11 Hun (N. Y.) 214; 81 N. Y. 626.

Personalis actio.—See Actio Personalis.

Personaliter.—In old English law, personally; in person.

Personality.—Said of an action when it is brought against the right person.—O. N. B. 92.

PERSUADING.

Personality of laws.—All laws concerning the condition, state, and capacity of persons, as distinguished from the reality of laws, which means all laws concerning property or things. Whenever foreign jurists wish to express that the operation of a law is universal, they compendiously announce that it is a personal statute; and whenever, on the other hand, they wish to express that its operation is confined to the country of its origin, they simply declare it to be a real statute. Livermore uses the words personality and reality. Henry, the words personality and reality. Story preferred the former, as least likely to lead to mistakes, as personality in our law is confined to personal estate, and realty to real estate. (Story Confl. L. 23).—Wharton.

Personally notified, (in pleading). 1 Hill (N. Y.) 597.

Personally served, (in act of March, 1877). 71 Ind. 585.

Personality.—Personal property (q. v.)

Personating a seaman, (indictment for). Russ. & R. C. C. 351, 353.

Personation.—The act of representing oneself to be some one else, whether living or dead, real or fictitious. At common law personation for the purpose of fraud is a misdemeanor. (2 Russ. Cr. 886.) By various statutes personation for the purpose of obtaining property, dividends, wages, &c., or of giving votes at elections, is made felony.

Persons, (equivalent to “men”). 56 Me. 222.

(not synonymous with “party”). 3 Hen. & M. (Va.) 255, 256.

(often applicable to one). 14 Serg. & R. (Pa.) 289.

(in a statute). Broese (Ill.) 395; 1 Bush (Ky.) 250; 18 Abb. (N. Y.) Pr. 118; 4 Cow. (N. Y.) 556; 20 Johns. (N. Y.) 726; 28 How. (N. Y.) Pr. 41; 23 N. Y. 242; 2 Utah T. 417.

Persons beyond seas, (includes persons out of the State). 3 Mich. 144.

Persons injured, (in a statute). 26 Vt. 737.

Persons, or color, (who are). 3 Ired. (N. C.) 455.

(entitled to same rights and privileges while traveling as white persons). 37 Iowa 145.

Perspicua vera non sunt probanda (Co. Litt. 16); Plain truths need not be proved.

Persuade, (in a pleading). 12 Abb. (N. Y.) Pr. N. s. 187, 190.

(in a criminal statute). 7 Q. B. D. 258.

Persuading, (in act defining treason, implies success). 1 Dall. (U. S.) 39.

PERTICATA. (958) PETITION.

PERTICATA TERRAE. - The fourth part of an acre.-Cowell.

PERTICULAS. -A pittance ; a small portion of alms or victuals. Also, certain poor scholars of the Isle of Man.-Cowell.

PERTINENT. -Material ; relevant. Proof which legitimately tends to establish the cause of action or defense is called "pertinent;" evidence which has not that tendency is called "impertinent."

PERTINENTS. -In the Scotch law, appurtenants.

PERTURBATION. -In ecclesiastical law, disturbance of pews in a church. 1 Phillim. Ecc. L. 323.

PERTURBATRIX. -A woman who breaks the peace.

PERVERSE VERDICT. -A verdict whereby the jury refuse to follow the direction of the judge on a point of law.

PERVISEI. -The palace-yard at Westminister.-Somner.

PESA. -A weight of two hundred and fifty-six pounds.-Cowell.

PESAGE. -A custom or duty paid for weighing merchandise or other goods.-Cowell.

PESSIMI EXAMPLE. -Of the worst example.

PESSONA. -Mast of oaks, &c., or money taken for mast, or feeding hogs.-Cowell.

PESSURABLE, PESTARBLE. or PESTARBLE WARES. -Merchandise which takes up a good deal of room in a ship.-Cowell.

PETER-PENCE. -An ancient levy or tax of a penny on each house throughout England paid to the pope. It was called Peter-pence, because collected on the day of St. Peter, ad vincula; by the Saxons it was called Rome-scot, and Rome-pennying, because collected and sent to Rome; and lastly, it was called hearth-money, because every dwelling-house was liable to it, and every religious house, the abbey of St. Albans alone excepted.

It was not intended a' a tribute to the pope, but chiefly for the support of the English school or college at Rome; the popes, however, shared it with the college, and at length found means to appropriate it to themselves.

At first it was only an occasional contribution, but it became at last a standing tax; being established by three laws of King Canute, Edward the Confessor, and the Conqueror. Edward III. first forbade the payment, but it soon after returned, and continued to the time of Henry VIII., when Polydore Vergil resided in England as the pope's receiver-general. It was abolished under that prince, and restored again under Philip and Mary, but was finally prohibited under Queen Elizabeth.-Chamb. Cyc.

PETIT. -Small; little ; petty.

PETIT CAPE. -See CAPE.

PETIT JURY. -See JURY, § 7.

PETIT LARCENY. -See LARCENY, § 2.

PETIT SERJEANTY. -See PETTY SERJEANTY.

PETIT TREASON. -Treason of a lesser kind. As if a servant killed his master, a wife her husband, a secular or religious man his prelate. But by the 9 Geo. IV. c. 31, § 2, every offense which, before the passing of the act, would have amounted to petit treason, shall be deemed murder only. See 24 and 25 Vict. c. 100, § 8; 4 Steph. Com. (7 edit.) 77, 150 n.

PETITE ASSIZE. -The small assize as distinguished from the "grand assize" (q. v.) It decided only as to the question of possession, not as to that of property.

PETITIO. -A count or declaration.-Glanev.

PETITIO PRINCIPII. -Begging the question, which is the taking of a thing for true or for granted, and drawing conclusions from it as such, when it is really dubious, perhaps false, or at least wants to be proved, before any inferences ought to be drawn from it. For a discussion on the question, "Is the syllogism a petitio principii?" see 1 Mill Log. b. 2, c. iii., § 1, p. 206.

PETITION. § 1. A written statement addressed to a court, public officer, or other superior authority, setting forth facts on which the petitioner bases a prayer for remedy or relief. With the exception of petitions of right (q. v.), petitions are generally merely a peculiar mode of applying to a court, and do not necessarily indicate that the right sought to be maintained is different in its nature from ordinary rights. (See Dun. Ch. Pr. 1434t. See, also, ACTION ; MOTION; SUMMONS.) The person by whom a petition is presented is called the "petitioner," and the persons on whom it is served in order that they may appear at the hearing and oppose or consent to the granting of the prayer, are called the "respondents."

§ 2. Petitions in the English High Court of Justice are practically confined to the Chancery and Probate, Divorce and Admiralty Divisions,

PETITION.

(959)

PETITORY.

although they were not unknown in the old common law courts. (See Tidd Pr. index v. Petition.) At the present day almost the only kind of petition used in the Queen's Bench Division seems to be that for admission to sue in formâ pauperis (q. v.) Arch. Pr. 1070.

Petitions in the Chancery Division are of two kinds, those presented in a pending action or suit, and summary or statutory petitions.

§ 3. Chancery-In a cause.--Petitions presented in pending actions are of various kinds according to the nature of the application; thus, if an administration action has been heard and the further consideration has not been reserved, the only way by which, while the action is still pending, a party can afterwards apply to the court to do anything not directed by the order or judgment, is by presenting a petition. As to petitions of course, see Of Course.

§ 4. Summary, and statutory petitions.--Sometimes a petition may be presented without the institution of an action. e. g. for the maintenance of an infant. (See Maintenance.) Usually these petitions are of statutory origin, having been introduced to save the expense of a regular action in simple cases. The examples of most usual occurrence, in England, are petitions under the Trustee Relief Acts, the Settled Estate Acts, the Lands Clauses Consolidation Acts, and winding-up petitions under the Companies Acts. (See those titles.) As to petitions by trustees, executors, &c., for the opinion or direction of the court, see Executor, § 10.

§ 5. Divorce.--In the Probate, Divorce and Admiralty Division every matrimonial suit is commenced by a petition praying the relief sought, e. g. a decree of nullity or dissolution of marriage, &c. (Browne Div. 195.) In addition to these original petitions, subsidiary or incidental petitions of various kinds are sometimes required to be presented in a suit, e. g. to claim the custody of children, for alimony, &c. Id. 1, 157, 202.

§ 6. Admiralty.--Formerly the pleadings in Admiralty actions commenced with a petition by the plaintiff in the nature of a declaration at common law. Wms. & B. Adm. Pr. 246. See, now, Statement of Claim; Libel, § 5; Protest.

§ 7. Bankruptcy.--In bankruptcy, a petition is the mode by which proceedings to administer an insolvent's estate are commenced. It may be a petition for adjudication presented by a creditor, or a petition for composition or liquidation, presented by the insolvent. See Adjudication; Bankruptcy, §§ 3, 4; Composition, § 1; Declaration, § 4; Liquidation, § 1.

§ 8. Petition of appeal.--In the House of Lords and Privy Council, every appeal is commenced by a petition of appeal praying that the judgment appealed from may be reversed or varied. Interlocutory petitions are also sometimes required, e. g. to extend the time for lodging the printed cases. Macph. Pr. C. Pr. 81, 87. See Appeal, p. 65 n.

§ 9. Lunacy.--Proceedings in lunacy are generally instituted by a petition for an inquiry, and after inquisition every matter requiring to be brought before the court forms the subject of a petition. See Elm. Pr. Lun. and Pope Lun. passim. See, also, Lunacy.

PETITION OF RIGHT.--

§ 1. The mode by which a subject can claim relief from the crown for certain kinds of injury arising from the acts of the crown or its servants, e. g. an illegal seizure of goods, wrongful possession of land, or a money claim consisting of a debt or damages for breach of contract. (Thomas v. The Queen, L R. 10 Q. B. 31.) The petition itself is a document in which the petitioner sets out his right, legal or equitable, to that which is demanded by him, and prays the queen to do him right and justice, and, upon a due and lawful trial of his right and title, to make him restitution. (Dan. Ch. Pr. 121.) The petitioner is called the "suppliant," and the persons against whom relief is prayed (for any person in enjoyment of the property or right claimed is made a party) are called the "respondents." The petition may be presented in any of the divisions of the High Court, on the home secretary granting his fiat for that purpose. The act regulating the proceeding by petition of right (23 and 24 Vict. c. 34) provides that, if the petition is presented in Chancery, the subsequent proceedings up to judgment are to follow those in a suit in equity; and if in one of the common law courts, they follow those in an action at law. As petitions of right are not affected by the Judicature Act, the rules of the former common law and equity practice are still applicable to them. Rustomjee v. The Queen, 1 Q. B D. 487; 2 Id. 69. See Amoveas Manus, § 2; Monstrans de Droit; Traversé.

§ 2. By the constitution of the United States, the right "to petition the government for a redress of grievances" is secured to the people. Amend. Art. I.

PETITION OF RIGHTS.--A parliamentary declaration of the liberties of the people asserted to by King Charles I., in 1629. It is to be distinguished from the Bill of Rights, 1689, which was passed into a permanent constitutional statute. See Bill of Rights.

PETITIONING CREDITOR. -- The creditor at whose instance an adjudication of bankruptcy is made against a bankrupt.

PETITORY SUITS.--In admiralty and civil law practice, suits which involve and litigate only the title to property are called "petitory," in distinction from those which seek to recover the possession, and are called "possessory."--Abbott. (See Possessory.) In the Scotch law, actions for damages are so called.

PETRA.

PETRA.—A stone weight.—Cowell.

Petroleum, (in a statute). L. R. 6 Q. B. 505.

PETTIFOGGER.—A lawyer in a mean way of business; a pretender to law, without knowledge or honesty.

Pettifogging slyster, (defined). 40 Mich. 251.

PETTY.—See Petit.

PETTY AVERAGE.—See Average, § 2.

PETTY BAG OFFICE.—The Petty Bag Office was so called because in it the proceedings in which the crown was concerned were preserved in a little sack or bag, instead of being enrolled on rolls as in the case of other proceedings. 3 Bl. Com 49; 4 Inst 80. See Chancery, § 4; Hanaper, § 1.

The principal office on what was formerly the common law side of the Court of Chancery, and is under the management of an officer called the "clerk of the petty bag." It is now an office of the High Court of Justice. Out of it issue all original writs, certain kinds of writs of error and certiorari, commissions of charitable uses, idiocy, and lunacy, commissions to seize escheated and forfeited lands, &c., writs dedimus potestatem, congé d'élire, scire facias to repeal letters-patent and enforce recognizances, &c., and writs on the calling of a new parliament. In it are filed traverses of inquisitions and returns to various commissions, including commissions for production of a cestui que vie. (See the various titles.) In it is also transacted the business connected with the admission of solicitors. (See Rep. Com. on Fees 8; Second Rep. Leg. Depart. Com. 124; 4 Inst. 80; 3 Bl. Com. 49; 3 Dun. Ch. Pr. 1910; Castro v. Murray, L. R. 10 Ex. 213; Arch. Pr. 03. See, also, Solicitors Act, 1877, § 9.) The practice of the office is regulated by the Petty Bag Office and Enrolment in Chancery Amendment Act, 1849, and the general orders. 12 and 13 Vict. c. 109; 2 Dan. Ch. Pr. 1606; Dale's Case, 6 Q. B. D. 376.

§ 2. By the Judicature (Officers) Act, 1879, § 14, the office of clerk of the petty bag will be abolished on the occurrence of the next vacancy.

PETTY CONSTABLES.—Inferior officers in every town and parish, subordinate to the high constable of the hundred. See Constables, § 2.

PETTY JURY.—See Jury, § 7.

PETTY LARCENY.—See Larceny, § 2.

PETTY SERJEANTY.—"Tenure by petite serjeanty is where a man holds his land of our soveraign lord the king, to yield to him yearly a bow, or a sword, or a dagger, or a knife, or a lance, or a paire of gloves of maile, or a pair of gilt spurs, or an arrow, or divers arrowes, or to yield such other small things belonging to

warre." (Litt. § 159.) "And such service is but socage in effect." (Id. § 160.) The act 12 Car. II. c. 24, took away from this tenure the incidents of livery and primer seisin, but does not seem to have affected it in other respects. Co. Litt. 108 b, 2 (1). See Grand Serjeanty; Socage; Tenure.

PETTY SESSIONS.—An occasional meeting, in England, of two or more justices of the peace, arranged between themselves, for the transaction of business for which the presence of more than one justice is either necessary or desirable. Petty sessions are commonly held weekly. (Stone Just. 51.) In cities, boroughs, and towns corporate having a separate commission of the peace, every sitting of justices of the peace or of a stipendiary magistrate, is deemed a petty sessions of the peace. Stat. 12 and 13 Vict. c. 18, § 1; Pritch. Quar. Sess. 2. See Special Sessions.

PEW.—

§ 1. An exclusive title to pews and seats in the body of an ordiuary parish church may be maintained, in England, in virtue of a faculty, or by prescription. All other pews and seats in the body of the church are the property of the parish; and the church wardens, as the officers of the ordinary, and subject to his control, have authority to place the parishioners therein.

§ 2. A pew annexed by prescription to an ancient messuage cannot be severed from it. (Shelf. R. P. Stat. 115.) As to the chief pew in the chancel, see Chancel.

§ 3. Church Building Acts.—In the case of churches erected under the Church Building Acts, the distribution of the pews and seats vested in the ecclesiastical commissioners and to fix rents for pews, subject to the provisions of the acts. Phillim. Ec. L. 2160.

Pew, (is real property). 10 Mass. 323; 16 Wend. (N. Y.) 28.

(right to sit in, is an incorporeal interest in real property). 1 Chit. (ien. Pr. 208.

(title to a seat in, by prescription). 2 Bulst. 151; 5 T. R. 298.

Pew-holder, (rights of ). 17 Mass. 435; 1 Pick. (Mass.) 169; 3 Paige (N. Y.). 296.

PHAROS.—A watch-tower, or sea-mark, which cannot be erected without lawful warrant and authority. 3 Inst. 204.

PHYLASIST.—A jailor.

Physical disability, (in a statute). 10 Abb. (N. Y.) N. Cas. 165; 62 How. (N. Y.) Pr. 390.

PHYSICAL FACT.—In the law of evidence, a fact, the existence of which is perceptible by the senses; such as the sound of a pistol shot; a man running; impressions of human feet on the ground. (Burrill Circ. Ev. 180.) "A fact considered

to have its seat in some inanimate being, or, if in an animate being, by virtue, not of the qualities by which it is constituted animate, but of those which it has in common with the class of inanimate beings." 1 Benth. Jud. Ev. 45.

PHYSICIAN.—One who professes the art of healing.

The English rule that nothing disclosed to a physician in the course of his profession is privileged from inquiry in a court of justice, does not prevail in most of the States, the opposite doctrine, viz., that a physician cannot be permitted, even if he so desires, to disclose statements made to him by his patient, being considered more consonant to the public welfare.

At common law, a physician could not maintain an action for his fees. (4 T. R. 317; 3 Q. B. 928.) In England, before the passing of the 21 and 22 Vict. c. 90, a physician, or medical practitioner who affected to be a physician, had no remedy at law to recover his fees (the presumption being that he acted only with a view to an honorary reward). And a physician who prepared or dispensed his own medicines could not recover for them, although they were furnished to his own patients. But by that act, a physician who is registered under the act may do so if not precluded by any by-law of the College of Physicians. That college has passed a by-law prohibiting fellows of the college from suing, but that does not apply to members. (Gibbon v. Budd, 2 H. & C. 92.) No such rule ever obtained in the United States.

PIACERE.—An obsolete term for an enormous crime.

PICAROON.—A robber; a plunderer.

PICK OF LAND.—A narrow slip of land running into a corner.

PICKAGE.—Money paid at fairs for booths.

PICKERY.—Petty theft, or stealing things of small value.—Bell Diet.

PICKETING by members of a trade union on strike consists in posting members at all the approaches to the works struck against, for the purpose of observing and reporting the workmen going to or coming from the works, and of using such influence as may be in their power to prevent the workmen from accepting work there.

(Dav. Friend. Soc. 212.) It having been found that picketing led to molestation, threats and even violence, the English Conspiracy and Protection of Property Act, 1875, (Stat. 38 and 39 Vict. c. 86, repealing 34 and 35 Vict. c. 32, containing similar provisions,) makes picketing an offense punishable by fine or imprisonment. See Molestation; Trade Unions.

PICKLE, PYKLE, or PIGHTEL.—A small parcel of land enclosed with a hedge, which, in some countries, is called a "pingle."—Encycl. Lond.

PICK-LOCK.—An instrument by which locks are opened without a key.

PICKPOCKET.—A thief who steals from the pocket or person of another without putting him in fear.

Pictures, except his, (in a will). 2 Vern. 533.

PIEDPOUDRE.—See Court of Piepooudre.

PIER (defined). 5 Robt. (N. Y.) 285.

PIERAGE.—The duty for maintaining piers and harbors.

PIERS.—Wharves. See Dock; Harbor; Port.

PIETANTIA.—A pittance; a portion of victuals distributed to the members of a college.—Encycl. Lond.

PIETANTiARIUS.—The officer in a college who distributed the pietantia.—Cowell.

PIGEON-DROPPER, (in crimes act). 59 Ind. 173.

PIGHTEL.—A little enclosure.—Cowell.

PIGNORATION.—The act of pledging.

PIGNORATIVE—PIGNORARY.—Pledging; pawning.

PIGNORIS CAPIO.—Literally, the taking of a pledge; this was one of the old Legis Actiones in Roman law, and was available as a summary remedy in certain cases by military custom, and in a certain few other cases by statute. It operated like distraining.

PIGNUS.—A pledge or security for a debt or demand. This word is derived, says Gaius (D. 50, 16, 238), from pignus, "quod pignori datur, manus traditur." This is one of several instances of the failure of the Roman jurists when they attempted an etymological explanation of words. The element of pignus (pig) is contained in the word pu(n)g and its cognate forms. A pledge was called pignus when the possession of the thing was transferred to the pledgee, and hypotheca when the pledgeor retained it in his

PIGS.

possession. (See Sand. Inst. (5 edit.) 132, 152, 325 ; 2 Steph. Com. (7 edit.) 21 n.) — Wharton.

Pigs, (are cattle within 9 Geo. I. c. 22). Russ. & R. C. C. 76.

PILA.—That side of money which was called pile, because it was the side on which there was an impression of a church built on piles. Fleta 1. 1, c. xxxix.

PILETTUS.—In ancient forest laws, an arrow which had a round knob a little above the head, to hinder it from going far into the mark. — Cowell.

Pilfer, (defined). 4 Blackf. (Ind.) 499.

PILEUS SUPPORTATIONIS.—The cap of maintenance.—Cowell.

PILFERER.—One who steals petty things.

PILLAGE.—The violent acquisition of booty in time of war. See Capture, § 3.

PILLERY.—An obsolete term for rapine; robbery.

PILLORY.—A frame erected on a pillar, and made with holes and movable boards, through which the heads and hands of criminals were put.

The punishment of the pillory, which had been abolished in all other cases, by 56 Geo. III. c. 138, was retained for the punishment of perjury and subornation ; but it is now altogether abolished in England by 7 Will. IV. and 1 Vict. c. 23. It was also long since abolished in most, if not all, of the States.

PILOTAGE—PILOTS.—

§ 1. Qualified, or licensed.—A pilot is a person who, in consequence of his special knowledge of a particular water, is taken on board a vessel to superintend the steering where the navigation is difficult and dangerous. A “qualified pilot” is a person duly licensed by a “pilotage authority,” i. e. a body or person authorized to exercise jurisdiction in respect of pilotage.

§ 2. Compulsory pilotage is where every ship navigating within a certain district (and not coming within the exemptions in favor of small ships, regular coasting vessels, &c.), is bound to employ a qualified pilot if he offers his services. In such a case the owner of the ship is not responsible for the negligence of the pilot. The Calabar, L. R. 2 P. C. 238. See The Sinquasi, 5 P. D. 241 ; Spaight v. Todcastle. 6 App. Cas. 217.

§ 3. A pilotage certificate may be granted

to the master or mate of a ship, authorizing him to pilot his ship (or any other ship belonging to the same owner) within certain limits. Maud. & P. Mer. Sh. 194 et seq.; 3 Steph. Com. 156.

PIMP-TENURE.—A very singular and odious kind of tenure mentioned by our old writers, “Wilhelmus Hoppeshort tenet dimidiam virgatam terre, per servitium custodiendi scortami-sellas, scil. meretrices, ad usum domini regis.” 12 Edw. I.

PIN MONEY.—A yearly allowance settled upon a married woman, before the marriage, for the purchase of dress or ornaments, or otherwise for her separate and private expenditure. Snell Eq. 295, citing Howard v. Digby, 8 Bligh N. R. 265 ; Elph. Conv. 330 ; Macq. Husb. & W. 355.

PINNAGE.—Poundage of cattle.

PINNER.—A pounder of cattle; a pound-keeper.

PINT.—A liquid measure of half a quart, or the eighth part of a gallon.

Pious purposes, (bequest for). 5 Wheel. Am. C. L. 308.

PIPE.—(1) A roll in the Exchequer; otherwise called the “great roll.” The pipe-office was abolished by 3 and 4 Will. IV. c. 99. (2) A liquid measure containing two hogsheads.

PIRACY.—

§ 1. Copyright.—In private or civil law, piracy is the infringement of copyright; in other words, where a person reproduces the whole or part of a work which is the subject of copyright, so as to interfere with the profit of the owner, he commits a piracy, unless the new work is a bonâ fide abridgment of the other. (Shortt Copyr. 168 et seq.) The importation of pirated copies from abroad is an infringement of copyright. The remedy for a threatened piracy or continued infringement is by injunction ; for a past infringement the remedy is damages, or in certain cases a penalty is imposed by statute. Id. 216.

In criminal law, piracy is of two kinds.

§ 2. Law of nations.—Piracy by the law of nations is the offense of taking a ship on the high seas or within the jurisdiction of the Admiralty, from the possession or control of those who are lawfully entitled to it, and carrying away the ship or any of its goods, tackle, &c., under circumstances which would have amounted

to robbery if the act had been done on land or within the body of a county. Steph. Cr. Dig. 64; Co. Litt. 391 a; Man. Int. Law 120, 159; 1 Russ. Cr. 253.

§ 3. Piracy is punishable, in England, with penal servitude for life, unless it is accomipanied by attempted murder, or violence dangerous to life, in which case the punishment is death. Stat. 1 Vict. c. 88.

§ 4. Statutory.—Several offenses have been made piracy, and punishable with penal servitude for life, by various statutes. Stats. 8 Geo. I. c. 24; 18 Geo. II. c. 30; 11 and 12 Will. III. c. 7; 1 Vict. c. 88. See Slave Trading.

Piracy, (defined). 2 Cliff. (U. S.) 394, 418; 4 Sawy. (U. S.) 501, 511; 2 Wheel. Cr. Cas. 218, 221; 1 Kent Com. 183; 33 L. J., M. C. 201.

(what constitutes). 1 Gall. (U. S.) 217, 254; 3 Wheat. (U. S.) 610, 648; 5 Id. 153, 169; 2 Wheel. Cr. Cas. 543; 7 Wheel. Am. C. L. 326.

(what is not). 2 Wheel. Cr. Cas. xxix. Pirata est hostis humani generis (3 Inst. 113): A pirate is an enemy of the human race.

Pirate, (defined). 2 Paine (U. S.) 333. Pirated prints, (what are not). 1 Barn. & Ad. 804.

Piratical, (in act to protect commerce). 2 How. (U. S.) 210.

PIRATICALLY.—A technical word which must always be used in an indictment for piracy. 3 Inst. 112; 1 Chit. Crim. L. *244.

Piratically and feloniously, (in a statute). 7 Wheel. Am. C. L. 328. Piscaria, (defined). 37 Me. 472.

PISCARY.—See Fishery. Pistareen, (a silver coin of Spain not made current by law in the United States). 10 Pet. (U. S.) 620.

Pistol, (what is not). 46 Ala. 88. Pistol, concealed, (indication for carrying). 6 Blackf. (Ind.) 31.

PIT.—A hole wherein the Scots used to drown women thieves.—Skene de Verb Signif. PIT AND GALLOWS.—See Fossa et Fussa.

Pit of water, (ejectment lies for). 1 Chit. Gen. Pr. 189.

PITCHING-PENCE.—Money; commonly a penny, paid for pitching or setting down every bag of corn or pack of goods in a fair or market.—Cowell.

PITTANCE.—A slight repast or refection of fish or flesh more than the common allowance; and the pittancer was the officer who distributed this at certain appointed festivals.—Cowell.

PIXING THE COIN.—Ascertaining whether coin is of the proper standard. The trial of the pix takes place, in England, before a jury of members of the Goldsmiths' Company. It is now regulated by 33 and 34 Vict. c. 10, §§ 12-13.

PLACARD, or PLACART.—An edict; a declaration; a manifesto. Also an advertisement or public notification.

PLACE.—See Venue. Place, (a steamboat moored at a wharf is). 34 Me. 210.

(in a statute). 55 Me. 456; 2 Vr. (N. J.) 399; 1 Cow. (N. Y.) 13; 42 Vt. 579, 582; 46 Id. 425, 432; 20 L. J., M. C. 181; L. R. 9 C. P. 339; L. R. 3 Ex. 137; L. R. 4 Q. B. 166; 10 Id. 102; Stark. Cr. Pl. 56, 67.

Place for the receipt of letters, (in a statute). 4 Car. & P. 572. Place goods at a certain price, (in a letter). 112 Mass. 14.

Place having a known and defined boundary, (in local government act). L. R. 8 Q. B. 227; 9 Id. 443.

Place having defined boundary, (in a statute). L. R. 1 Q. B. 110. Place, in any other, (in a statute). 2 Wheel. Cr. Cas. xxxiii.

Place of business, (what is not). 1 Pet (U. S.) 578.

(in a statute). 9 Cush. (Mass.) 298, 301; 98 Mass. 95; 111 Id. 320; 8 Daly (N. Y.) 185; 38 Tex. 599.

Place of destination, for sale or manufacture, (in a statute). 66 Me. 65. Place of entertainment or amusement, (in Sunday law). L. R. 10 Ex. 291.

Place of profit, (in a statute). 9 Barn. & C. 310; 4 Man. & Ry. 176.

Place of publication, (in a statute). 83 Ill. 110.

Place or office, (the practice of law is not). 1 Munf. (Va.) 468.

Place or office of profit in the government, (what is not). Burr. 1004. Place to which the public have access, (in vagrant act). L. R. 6 Q. B. 130.

Place where the owner resides, (construed). 4 Dill. (U. S.) 441.

PLACE-BILL.—The Stat. 6 Anne c. 7, excluding from the House of Commons any person holding an office created since the 25th of October, 1705, or receiving a pension during the pleasure of the crown; the act also obliged every member accepting a previously existing office to submit himself for re-election, unless the office were merely a higher commission in the army. Under the Reform Act, 1867, (30 and 31 Vict. c. 102, § 52,) mere removal of a minister from an office under the crown to another does not impose the necessity of re-election. The

PLACED.

Place Bill of 1741 excluded from the parliament a large number of officials and clerks in public departments. By the Stat. 22 Geo. III. c. 45, contractors under government are disqualified. (Taswell-Langmead, 643–45.)—Brown.

Placed seine, (in a statute). 4 Pick. (Mass.) 165.

Places, (in a statute). 5 Binn. (Pa.) 300. Placing a fence, (in a statute). South. (N. J.) 550.

Placit, or Placitum.—Decree; determination.

Placita.—The public assemblies of all degrees of men where the sovereign presided, who usually consulted upon the great affairs of the kingdom. Also, pleas, pleadings, or debates, and trials at law; sometimes penalties, fines, mulcts, or emendations. Also, the style of the court at the beginning of the record at Nisi Prius; but this is now omitted.—Cowell.

Placita Communia.—Common pleas. All civil actions between private persons.

Placita Coronæ.—Pleas of the crown. Prosecutions for crimes wherein the king is plaintiff.

Placita de transgressione contra pacem regis, in regno Angliæ vi et armis facta, secundum legem et consuetudinem Angliæ sine brevi regis placitari non debent (2 Inst. 311): Pleas of trespass against the peace of the king in the kingdom of England, made with force and arms, ought not, by the law and custom of England, to be pleaded without the king's writ.

Placitare.—To plead.

Placitator.—A pleader.—Cowell.

Placitory.—Relating to pleas or pleading.

Placitum.—See Placita; also Pleading.

Placitum, (defined). 1 Saund. 339, n. (8); Yelv. 65 n.

Placitum aliud personale, aliud reale, aliud mixtum (Co. Litt. 284): Pleas are personal, real, and mixed.

Placitum Nominatum.—The day appointed for a criminal to appear and plead and make his defense.—Leg. H. 1, c. xxix.; Cowell. Placitum fractum, when the day is past.

Plagiary, or 'Plagiary.—One who publishes the thoughts and writings of another as his own.

PLAGIARIUS.—In the civil law, one who knowingly kept in irons, or bought a citizen (whether freeborn or a freedman), or the slave of another; the offense being called plagium.

Plagiary.—A man-stealer.

Plagii Crimen, or Plagium.—In the civil law, the stealing and retaining the children of freemen and slaves.

Plague.—Pestilence; a contagious and malignant fever. By Stat. 1 Jac. I. c. 31, if any infected with the plague, or dwelling in an infected house, should be commanded by the mayor or constable, &c., to keep house, and should disobey such direction, he should be enforced with violence, by the watchmen, to obey; and if any hurt ensued by such enforcement, the watchmen were not to be impeached. And if such person went abroad and in company, if he had any infectious sore upon him uncurcd, he should suffer death as a felon; but if no such sore should be found upon him, he should be punished as a vagabond, and bound to good behavior. This act was abolished by 7 Will. IV. and 1 Vict. c. 91, § 4. See, now, 38 and 39 Vict. c 55, §§ 134–140. See, also, Public Health; Quarantine.

Plaidour.—An obsolete term for an attorney who pleaded the cause of his client; an advocate.

Plain English type, printed in, (when a notice is not). 37 Mo. 235, 237.

Plain mistake, (what is). 6 Munf. (Va.) 297.

Plain statement, (in pleading, defined). 79 N. C. 524; 5 Sandf. (N. Y.) 557, 564.

Plaint.—A plaintiff.

Plaint.—§ 1. Every action in an English county court is commenced by the registrar entering, in a book kept for the purpose, at the request of the intended plaintiff, 'a plaint in writing,' stating the names and the addresses of the parties, and the substance of the action; on this a summons is issued. (County Courts Act, 1846, § 59; Poll. C. Pr. 77. See Summons.) The registrar gives the plaintiff a note called a 'plaint note,' containing the date of the entry, the day fixed for the trial, and some notices for the guidance of the plaintiff. See County Court Forms, 1875, number 7 et seq.; Poll. C. C. Pr. 503. See, also, Particulars of Demand.

§ 2. Customary plaints.—Before the abolition of real actions a copyholder could only plead and be impleaded in respect of his copyhold land in the court of the manor, by

PLAINTIFF.—

what were called "customary plaints," which were analogous to the common law writs in real actions, and called after them, e. g. plaints in the nature of writs of entry, plaints in the nature of writs of right, &c. Scriv. Copyh. 562.

PLAINTIFF.—A person who brings an action. (See Part, § 4.) When the action is against the crown he is called, in England, the suppliant; when the action is in the form of an information, he is called the informant. He is called petitioner in an ordinary petition, and prosecutor in a prosecution. In equity, he is styled the orator.

Plaintiff, (defined). 4 Bibb (Ky.) 251.

(in a statute). 49 Ala. 182; 55 Me. 453; 5 Hill (N. Y.) 523, 538, 547.

PLAINTIFF IN ERROR.—The party who sues out a writ of error to review a judgment; the prosecutor in a writ of error.

PLANS.—Upon the sale of lands a plan may be (and usually is) so incorporated into, as to control, the contract, (Nene Valley Drainage v. Dunkley, 4 Ch. D. 1.) Old maps, plans, tracings, &c., are frequently admissible in evidence against (but not, semble, for) persons claiming under former proprietors by whose direction or for whose use they were made; (Bull. N. P. 283 a;) also maps, plans, &c., made or recognized by persons having adequate knowledge, and who were since deceased, may be admissible as evidence of reputation. (Reg. v. Milton, 1 Car. & K. 58.)—Brown.

PLANT.—The fixtures, tools, machinery, and apparatus which are necessary to carry on a trade of business.

Plant, (defined). 7 Com. 186, 201.

(does not include young fruit trees). 1 Moo. & M. 341.

PLANTATION.—(1) In English law, a colony. (2) In the Southern States, a farm.

Plantation, (defined). 38 Cal. 291, 295; 7 Ired. (N. C.) L. 431; 3 Mc-Cord (S. C.) 363.

(devise of). 8 Serg. & R. (Pa.) 289.

(in act to encourage silk culture). 38 Cal. 291.

(in a will). 2 Binn. (Pa.) 18, 31 · 1 Sim. 435, 459.

Plantations, (in the navigation acts). 1 Dow 191, 197.

PLAT, or PLOT.—A map of a piece of land on which are marked the courses and distances of the different lines, and the quantity of land it contains.—Bouvier.

Plate, (in a policy of insurance). 2 Hall (N. Y.) 490.

(in a will). 2 Atk. 103.

PLAY-DEBT.—Debt contracted by gaming. See Gaming.

Playing or betting, (in vagrant act). L. R. 6 Q. B. 130, 514.

PLEA.—

§ 1. To writ, &c.—A plea is a mode of putting forward a defense to certain proceedings. Thus, if a writ of scire facias, prohibition or the like is issued against a person, and he wishes to put forward facts in answer to the writ, he does so by plea; or, if a return is made to such a writ, and the person at whose instance the writ was issued wishes to contest it, he puts in a plea (or demurrer) to the return. Lee v. Bude, &c., Railway Co., L. R. 6 C. P. 576. See an instance of a plea to the return to a mandamus, The Queen v. Postmaster-General, 1 Q. B. D. 658. See Traverse.

§ 2. To indictment.—In a criminal prosecution, the prisoner has to plead to the indictment, which he may do either (1) by pleading to the jurisdiction, i. e. alleging that the court has no jurisdiction to try him; or (2) by demurring (see Demurrer, § 3); or (3) by pleading in abatement, i. e. showing some defect in the indictment in point of form; or (4) by pleading some plea in bar, namely, either a general plea "guilty," or "not guilty," or a special plea, such as "autrefois acquit," "autrefois convict," or "pardon." (Broom Com. L. 992, 993, n. (p) ; Rosc. Cr. Ev. 202; 4 Steph. Com. 397; Arch. Cr. Pl. 128. See the various titles.) As formal defects are now almost always capable of amendment, in the English practice, pleas in abatement are practically obsolete. Arch. Cr. Pl. 130.

§ 3. Ecclesiastical practice.—In the English ecclesiastical courts, all the pleadings are called "pleas." The first plea is either articles or a libel, and every subsequent plea is an allegation. Phillim. Ec. L. 1254. See those titles.

§ 4. Common law practice.—Under the common law practice a plea is the

PLEA.

(966)

PLEAD.

princinal mode of putting forward a defense to a civil action or suit. In an action at common law, the plea is similar to the statement of defense under the present English practice, and to the answer under the practice of the Code States, in so far that it states facts as an answer to the declaration, as opposed to a demurrer (q. v.); but differs from a statement of defense or answer in stating the facts vaguely and in a peculiar form. Pleas are of two kinds, dilatory and peremptory. The first class includes pleas to the jurisdiction, i. e. pleas denying the jurisdiction of the court, and pleas in abatement; the second class consists of pleas in bar. See 11 Sm. Ac. 85 et seq.; 5 Steph. Pl. 50 et seq.; Fish. Dig. Pleading, v., vi.

§ 5. A plea in abatement does not give an answer to the plaintiff's case, but shows that he has committed some informality, e. g. that he has not joined the proper parties to the action.

§ 6. A plea in bar shows a substantial defense to the action, either by traverse or by confession and avoidance (q. v.)

§ 7. Pleas are distinguished as general issues, in which the defendant simply traverses the plaintiff's allegations, and special pleas, in which the defendant states the grounds of his defense; from the latter term arose the expression special pleading. 5 Steph. Pl. 189. See General Issue; Pleader.

§ 8. A plea puis darrein continuance ("after the last continuance") is a plea setting up a ground of defense which has arisen after the defendant has pleaded in the ordinary course; thus, if after the defendant has delivered his plea, the plaintiff gives him a release, the defendant can set up the release by plea puis darrein continuance. 11 Sm. Ac. 108; Chit. Pr. 919. See Continuance.

§ 9. Chancery practice.—In equity, pleas are somewhat rare in practice, and are generally only used in cases where the defendant is in a position to state one or more facts, which if inserted in the bill would make it demurrable; in such a case the defendant, by filing a plea, (which generally has to be sworn to by him,) may avoid putting in an answer, and bring the suit to an end at once. Pleas are of

various kinds, of which pleas to the jurisdiction and pleas in bar are the principal. Hunt. Eq. 36; Mitf. Pl. 218; Dan. Ch. Pr. 520. As to pleas in probate causes, see Browne Prob. Pr. 285.

§ 10. Pleas of the crown—Plea side.—In its original sense, "plea" meant any legal proceeding. "Pleas of the crown" were criminal proceedings, while civil actions were called "common pleas" or "pleas," simply. (Co. Litt. 287 a.) The Court of Queen's Bench was formerly said to have a crown side and a plea side, the former being its jurisdiction in crown business, and the latter its jurisdiction in ordinary actions; so the jurisdiction of the Court of Exchequer in ordinary actions was called its "plea side," as opposed to its jurisdiction in revenue matters. 3 Steph. Com.332, 340. See Pleading. 431, 436.

Plea, (equivalent to "defense"). 7 Conn.

Plea, or pleading, (not equivalent to "demurrer"). 2 Mo.App. 303.

PLEA IN ABATEMENT.—See Abatement, § 5, 6; Plea, § 5.

PLEA IN BAR.—See Bar, § 6; Plea, § 6.

PLEA SIDE.—See Plea, § 10.

PLEAD.—

§ 1. In its general sense, to plead, is to answer the previous pleading of the opposite party in an action or other proceeding by denying the facts therein stated, or by alleging some fresh facts; pleading is opposed to demurring; the former raises a question of fact, the latter a question of law. Thus, if a plaintiff delivers a statement of claim, declaration or complaint, which is not only demurrable, but also fails in stating the facts correctly, the defendant may apply for leave to plead and demur, and, if he obtains leave to do so, he delivers a statement of defense, plea or answer, and a demurrer.

§ 2. To plead also signifies to plead a plea; thus, in a criminal prosecution the prisoner pleads "guilty" or "not guilty," &c.; and under the common law practice, a defendant is said to "plead to the jurisdiction," to "plead in bar," &c., according to the nature of his plea. To "plead issuably," is to demur or plead some substantial defense to the action, so that it may be determined on its merits. 11 Sm. Ac. 101; Chit. Gen. Pr. 247.

§ 3. Pleading over.—In criminal prac-

felony is said to "plead over" when in addition to, or after, pleading in abate-

ment or specially, he pleads "not guilty." Arch. Cr. Pl. 128, 139 ; Rose. Cr. Ev. 205.

See Plea, § 2; Respondeat Ouster.

Plead, (in an order of the court to). 2 Gr. (N. J.) 344.

PLEADER.-A person whose business it is to draw pleadings. Formerly, when pleading at common law was a highly technical and difficult art, there was a class of men known as "special pleaders not at the bar," who held a position intermediate between counsel and attorneys. The class is now almost extinct, and the term "pleaders" is generally applied, in England, to junior members of the common law bar.

PLEADING. - Norman-French: pie, plee, an action or suit. (Britt. 23a;) which meant (1) a constitution or statute. (Dirkson, Man. Lat. in Placito; Placitum) and (2) meet-

ings of legislative and judicial bodies for passing laws and deciding litigation, and (3) the suits themselves (Diez Etym Wortb. v. Plaido; Steph. Pl. App. n 1) In the early ages of the common law, the pleadings were oral statements, the parties or their counsel, made alternately until the question in dispute was ascertained. 11 Sm Ac. 77; 12 Id. 58; Steph Pl. 23.

§ 1. The pleadings in an action in a court of record are written or printed statements delivered alternately by the parties to one another, until the questions of fact and law to be decided in the action have been ascertained. They begin after the defendant has appeared, except where the plaintiff's first pleading is served with the process. See Action, § 2.

§ 2. Each pleading commences with the title of the action, and states concisely the material facts (as to what are material facts, see Millington v. Loring, 6 Q. B. D. 190,) on which the party pleading relies, but not the evidence by which they are to be proved.

§ 3. The first pleading is the plaintiff's statement of claim, declaration or complaint (qq. v.), unless the indorsements on the writ or summons are so full that either the plaintiff or the defendant considers a further statement of the cause of action unnecessary.

§ 4. The next pleading is delivered by the defendant, and is either a plea, answer, demurrer, a statement of defense, a statement of defense and counter-claim (q. v.), or a combination of these.

§ 5. The next pleading is either a demurrer or a reply (q. v.), or a combination of both.

§ 6. If the reply is not merely a joinder of issue (q. v.), the next pleading is delivered by the defendant. This and the subsequent pleadings, if any, follow the names of the old pleadings at common law, viz., rejoinder, surrejoinder, rebutter and surrebutter (q. v.); but the rule generally in force, that no pleading subsequent to reply, other than a joinder of issue, shall be pleaded without leave of the court or a judge, coupled with the power (see Issue, § 4,) and the power of amendment (q. v.), will in general prevent the pleadings from going so far.

§ 7. In any case, however, unless either party demurs simply, or makes default, or unless issues are settled, the ultimate result must be that one party joins issue upon the preceding pleading of his adversary, and then the pleadings are said to be closed.

§ 8. If the plaintiff does not deliver a reply or demurrer, or any party does not deliver any subsequent pleading within the proper time, the pleadings are then deemed to be closed, and the statements of fact in the pleading last delivered are deemed to be admitted. The next step is the notice of trial (q. v.) As to judgment by default in other cases, see Judgment, § 7.

§ 9. Miscellaneous proceedings.— There are some miscellaneous proceedings in which the pleadings are different from those in an action, e. g. petitions of right (q. v.), in which the pleadings after the petition itself follow the same course as those in an action at law or suit in equity under the old practice, (infra, §§ 11, 12;) and proceedings by scire facias, extent, traverse of office or inquisition, and criminal proceedings, as to which see Indictment; Information, § 7 et seq.; Plea.

§ 10. Common law.—Different systems of pleadings, except as to demurrers, prevail in the common law and equity courts. In a common law action, the pleadings consist of (1) the declaration; (2) plea; (3) replication; (4) rejoinder; (5) surre-

joinder; (6) rebutter; (7) surrebutter. Co. Litt. 303 b ; 11 Sm. Ac. 77 et seq.; Steph. Pl. passim.

§ 11. Chancery.—In a suit in equity, the pleadings consist of (1) the bill of complaint; (2) either (a) a demurrer, (b) a plea, (c) an answer, (d) a disclaimer, or (e) a combination of these; and (3) replication. (Hunt. Eq. 12 et seq.; Mitf. Pl. passim.) Formerly rejoinders were also used in Chancery pleadings. (Mitf. Pl. 323.) According to modern practice, if the plaintiff requires to state fresh facts after the defendant has filed his answer or plea, he amends his bill.

Pleading, (defined). 57 Ala. 145; 1 Minn. 17.

— (an affidavit is not). 7 Kan. 359.

— (in a statute). 109 Mass. 331.

PLEADING ISSUABLY.—See Plead, § 2.

PLEADING OVER.—See Plead, § 3.

PLEAS OF THE CROWN.—The criminal law department of English jurisprudence, so called because the sovereign, in whom centers the majesty of the whole community, is supposed by the law to be the person injured by every wrong done to that community, and is, therefore, in all cases, the proper prosecutor for every such offense. See the works on this subject, of Coke (3 Inst.), Hale, or Hawkins.

Pleasure, at her, to sell and dispose of, (in a will). Boyl. Char. 307.

Pleasure carriage, (defined). 9 Conn. 371, 374; 11 Id. 185, 191.

— (in a statute). 18 Johns. (N. Y.) 128; 19 Id. 444.

PLEBANUS.—A rural dean.—Cowell.

PLEBEITY, or PLEBITTY.—The common or meaner sort of people; the plebeians.

PLEBIANA.—In old records, a mother church.

PLEBISCITE, or PLEBISCITUM.—Among the Romans, a law enacted by the comitia of the people, at the request of the tribune or some other plebeian magistrate, without the intervention of the senate; more particularly applied to the law which the people made, when, upon some misunderstanding with the senate, they retired to the Aventine mount.

PLEDGE.—

§ 1. A pledge is where the owner of a chattel agrees with another person that it shall be held by the latter (the pledgee) as security for the payment of a debt or performance of an obligation. This entitles the pledgee to hold the chattel until payment or performance, and, upon failure

of payment or performance at the proper time, to sell it; but until he does so, the pledgor may redeem it by payment or performance. Fish. Mort. 7, 485.

§ 2. Specific appropriation is sometimes called an "equitable pledge." Ranken v. Alfaro, 5 Ch. D. 786. See Appropriation, § 3; see, also, Antichresis; Bailment; Charge; Mortgage; Pawn.

Pledge, (defined). 37 Cal. 15; 8 Mart. (La.) 20, 57; 4 Den. (N. Y.) 227; 1 Sandf. (N. Y.) 243, 252; 6 Ired. (N. C.) L. 309; 3 Wheel. Am. C. L. 341; 2 Kent Com. 577.

— (what constitutes). 37 Cal. 15, 16; 6 Mass. 422; 10 Pick. (Mass.) 528; 43 Barb. (N. Y.) 607; 10 Johns. (N. Y.) 471; 12 Id. 146; 9 Wend. (N. Y.) 80.

— (what is not). 5 Pick. (Mass.) 59.

— (who may make). 5 Pick. (Mass.) 178.

— (what is sufficient consideration for). 12 Mass. 300.

— (effect of). 8 Mass. 150.

— (is a mortgage). 8 Cal. 260.

— (distinguished from "mortgage"). 2 Pick. (Mass.) 607; 1 Abb. (N. Y.) Pr. n. s. 63; 43 Barb. (N. Y.) 607; 8 Johns. (N. Y.) 96.

— (in a statute). 24 Wend. (N. Y.) 117.

PLEDGEE.—One who receives pledges; a pawnee.

Pledgee, (rights of, in the thing pledged). 15 Mass. 389; 5 Binn. (Pa.) 457.

PLEDGERY.—Suretyship, or an undertaking or answering for another.

PLEDGES TO RESTORE.—In England, before the plaintiff in foreign attachment can issue execution against the property in the hands of the garnishee, he must find "pledges to restore," consisting of two householders, who enter into a recognizance for the restoration of the property, as a security for the protection of the defendant; for, as the plaintiff's debt is not proved in any stage of the proceedings, the court guards the rights of the absent defendant by taking security on his behalf, so that if he should afterwards disprove the plaintiff's claim he may obtain restitution of the property attached. (Brand. For. Att. 93.) A similar practice prevails in America, the terms "bond" or "undertaking" being used to designate the security required to be given. See Foreign Attachment.

PLEGII DE PROSEQUENDO.—Pledges to prosecute with effect an action of replevin.

PLEGII DE RETORNO HABENDO.—Pledges to return the sulject of distress, should the right be determined against the party bringing the action of replevin. 3 Steph. Com. (7 edit.) 422 n.

PLEGIIS ACQUIETANDIS.—See De Plegiis Acquietandis.

PLEDGOR.—One who offers a pledge; a pawner.

PLENÂ ÆTAS.—Full age (q. v.)

Plena et celeris justitia fiat partibus (4 Inst. 67) : Let full and speedy justice be done to the parties.

PLENA FORISFACTURA.—A forfeiture of all that one possesses.

PLENA PROBATIO.—Full proof; proof by the evidence of two witnesses, or the production of a public document.

PLENARTY.—Under the old ecclesiastical practice, when a defendant in an action of quare impedit pleaded that the church was full (i. e. that a clerk had been previously presented and instituted), he was said to plead plenarty. 2 Inst. 360. See Vacation.

PLENARY.—

§ 1. Confession.—An admission or confession, whether in civil or criminal law, is said to be plenary when it is, if believed, conclusive against the person making it. Best Ev. 664; Rosc. Cr. Ev. 39.

§ 2. As to plenary causes in ecclesiastical or admiralty practice, see Cause, § 3.

PLENE ADMINISTRAVIT.—The name given to the defense set up by an executor or administrator when sued upon a debt of his testator or intestate, which he has no assets to satisfy ; if he has some assets, but not enough to satisfy the debt, his defense is called a plea of plene administravit preter. Wms. Ex. 1803 et seq. See Judgment, § 12.

PLENE COMPUTAVIT.—He has fully accounted. A plea in an action of account rendered. to the effect that defendant has already fully accounted to the plaintiff.

PLENIPOTENTIARY.—A person who has full power and commission to do anything. A term applied, in international law, to ministers and envoys of the second rank. See Ambassador; Minister.

PLENO LUMINE.—See In Pleno Lumine.

PLENUM DOMINIUM.—In the civil law, a title combining the right and the corporal possession of property, which possession could not be acquired without both an actual intention to possess, and an actual seisin or entry into the premises, or part of them, in the name of the whole.

PLEVIN.—A warrant or assurance.

PLIGHT.—This word signifies an estate, with the habit and quality of the land; it extends to a rent-charge and to a possibility of dower. Co. Litt. 221 b.

PLOK PENNIN.—A kind of earnest used in public sales at Amsterdam.

PLOT.—See Plat.

PLOUGH-ALMS.—The ancient payment of a penny to the church from every plough land. 1 Mon. Ang. 256.

PLOUGH BOTE.—An allowance of wood which tenants are entitled to, for repairing their implements of husbandry.

PLOUGHLAND, or PLOWLAND.—A quantity of land "not of any certain content, but as much as a plow can by course of husbandry plough in a year." Co. Litt. 69 a.

PLOUGH-MONDAY.—The Monday after Twelfth-Day.

PLOUGH-SILVER.—Money formerly paid by some tenants, in lieu of service to plough the lord's lands.

Plow land, (synonymous with "hide of land"). Shep. Touch. 93.

PLUNDERAGE.—In maritime law, embezzling goods on shipboard.

PLURAL.—Latin: pluralis, from plus, pluris, containing more than one; consisting of or designating two or more.—Webster.

Pluralis numerus est duobus contentus (1 Roll. 476): The plural number is satisfied by two.

PLURALIST.—One that holds more than one ecclesiastical benefice, with cure of souls.

PLURALITIES.—By several modern statutes no spiritual person can hold any two benefices at the same time, except in certain cases, in some of which a license or dispensation by the bishop is required. These are acts forbidding pluralities, i. e. the holding of benefices in plurality. Stats. 1 and 2 Vict. c. 106 ; 13 and 14 Vict. c. 98; 4 and 5 Vict. c. 39 ; Phillim. Ec. L. 1170. See Cession.

PLURALITY.—A candidate at an election who receives more votes than any other single candidate, but not more than all the others combined, is said to have received a plurality of the votes; if he had

received more than one-half the number

of votes cast he would have had a "major-

ity."

Plures cohæredes sunt quasi unum

corpus propter unitatem juris quod

habent (Co. Litt. 163): Several co-heirs are,

as it were, one body, by reason of the unity of

right which they possess.

Plures participes sunt quasi unum

corpus, in eo quod unum jus habent

(Co. Litt. 164): Several parceners are as one

sody, in that they have one right.

PLURIES. - When an original and

alias writ have been issued and proved

neffectual, a third writ, called a "pluries

writ," may frequently be issued ; it is to

the same effect as the two former, except

that it contains the words "as we have

often commanded you" (" sicut pluries præ-

cepimus") after the usual commencement

"we command you." 3 Bl. Com. 283;

Arch. Pr. 585. See ALIAS.

Plus exempla quam peccata nocent:

Examples hurt more than crimes.

Plus peccat auctor quam actor (5

Co. 93) : The causer offends more than the per-

former.

PLUS PETITIO.-In the Roman law, a

phrase denoting the offense of claiming more than

was just in one's pleadings. This might be

claimed in four different respects, viz., (1) Re, i.e. in amount (e. q. £50 for £5) ; (2) Loco, i. e. in

place (e. g. delivery at some place more difficult

to effect than the place specified); (3) Tempore,

i. e. in time (e. g. claiming payment on the 1st of August of what is not due till the 1st of Sep-

tember) ; and (4) Causâ, i. e. in quality (e. g.

claiming a dozen champagne, when the contract

was only for a dozen of wine generally). Prior

to Justinian's time, this offense was in general

fatal to the action ; but under the legislation of

the emperors Zeno and Justinian, the offense (if

re, loco, or causâ) exposed the party to the pay-

ment of three times the damage (if any) sus-

tained by the other side, and (if tempore) obliged

him to postpone his action for double the time

and to pay the costs of his first action before

commencing a second.-Brown.

Plus valet consuetudo quam con-

cessio : Custom is more powerful than grant.

Probably, the effect of this maxim, in law, is

simply this, that the words of a deed not being

inconsistent with the custom will not exclude the

custom, which will therefore operate. See Ex-

TRINSIC EVIDENCE.

Plus valet quod agitur quam quod

simulate concipitur : What is done more

wrails than what is pretended to be done.

Plus valet unus oculatus testis

quam auriti decem (4 Inst. 279) : One

eye-witness is of more weight than ten ear-wit-

nesses (or those who speak from hearsay).

PLYING FOR HIRE, (in act relative to public

carriages). L. R. 6 Q. B. 357.

POACH.-To steal game on a man's land.

POACHING.-The popular name for the

offense of unlawfully taking or destroying game

(q. v.)

Pocket of A., (indicates a pocket in the

clothing worn by A.) 105 Mass. 171.

POCKET-JUDGMENT.-A statute-mer-

chant which was enforceable at any time after

non-payment on the day assigned, without fur-

ther proceedings. See STATUTE-MERCHANT.

POCKET-SHERIFF.-When the Eng-

lish sovereign appoints a person sheriff who is

not one of the three nominated in the lixchequer,

he is called a pocket-sheriff. 1 Bl. Com. 342.

PŒNA.-Punishment.

PŒNA CORPORALIS.-Corporal pun-

ishment.

Pœna, ex delicto defuncti, hæres

teneri non debet (2 Inst. 198) : The heir

ought not to be bound in a penalty for the crime

of the defunct.

Pœna non protest, culpa perennis

erit: Punishment cannot be, crime will be

lasting.

PŒNA PILLORALIS.-Punishment of

the pillory.

Pœnæ potius molliendæ quam ex-

asperandæ sunt (3 Inst. 220)) : Punish-

ments should rather be softened than aggravated.

POINDING.-The Scotch term for taking

goods, &c., in execution, or by way of distress.

It is defined to be "the diligence (process) which

the law has devised for transferring the property

of the debtor to the creditor in payment of his

debt." It is either real or personal; not that

any inheritance is conveyed by poinding, but

real poinding is a power of carrying off the

effects on the land in payment of such debts as

are debiti fundi, or heritable; personal poinding

is the poinding of movables for debt or rent,

&c. There is also a species of poinding by

attaching cattle trespassing. See Bell Dict.

POINDING OF THE GROUND.-A

poinding in Scotland, founded on heritable

security, or other debitum fundi, for poinding or

taking in execution all the goods on the lands

over which the security extends.

Pointed out, (in a statute). 100 Mass 195.

POINTS. - In the paper books points

are the chief grounds or heads of argu-

ment on which each party relies, on an argument of a question of law.

POISON.—A substance which, on being applied to the human body, internally or externally, is capable of destroying the action of the vital functions, or of placing the solids and fluids in such a state as to prevent the continuance of life.

The means of ascertaining the traces of poison, either on the living or dead body, is one of the most important subjects in legal medicine, and its importance is only equalled by its difficulty.

Poisons may be introduced into the system in various ways; through the nose, in the form of odors; through the lungs, by inspiration by the mouth and œsophagus; in the form of food; by the rectum, in the form of injection; through the skin, in some instances, by absorption.

The rapidity of the action of poisons varies considerably. Concentrated hydrocyanic acid destroys an adult man almost in an instant. Other poisons take away life within an hour, a few hours, a day, or a longer period. Some prove fatal after months.

It is murder if the poisoned man die within a year and a day.—Wharton.

Poison, (defined). 53 Cal. 147.

(in a pharmacy act). L. R. 5 Q. B. 296.

(in indictment for causing death by). 4 Car. & P. 571.

POLIE.—A measure of five and a half yards.

POLICE.—The regulation and government of a country or city, so far as regards its inhabitants; also, the officers appointed to preserve the peace and property of the citizens.

Police, (defined). 6 Oreg. 219, 222.

POLICE COURTS.—

§ 1. In America.—Inferior courts in Massachusetts, New Hampshire, New York, and perhaps some other States, having a jurisdiction wholly or chiefly criminal in its nature, and very limited in its extent. In respect to important offenses, they usually discharge merely the functions of justices of the peace, but have power to try some minor offenses in a summary manner. A limited civil jurisdiction is sometimes also conferred upon them.

§ 2. In London.—Courts in which stipendiary magistrates, chosen from barristers of a certain standing, sit for the dispatch of business Their general duties and powers are the same as those of the unpaid magistracy, except that one of them may usually act in cases which would require to be heard before two other justices.

POLICE DE CHARGEMENT.—In the French law, a bill of lading (q. v.)

POLICE JURY.—In Louisiana, a board of officers in a parish (county) corresponding to the “county commissioners” or “supervisors” of other States.

Police laws, (general principle of). 7 Cow. (N. Y.) 349.

POLICE OFFICER, or POLICEMAN.—See Police.

Police purposes, (what includes). 20 Ohio St. 349.

POLICE REGULATIONS.—See Police.

POLICE SUPERVISION. — In England, subjection to police supervision, is where a criminal offender is subjected to the obligation of notifying the place of his residence and every change of his residence to the chief officer of police of the district, and of reporting himself once a month to the chief officer or his substitute. (Stat. 34 and 35 Vict. c. 112; Prevention of Crime Act, 1879; Steph. Cr. Dig. 5; 1 Russ. Cr. 68, 78.) Offenders subject to police supervision are popularly called “habitual criminals.”

POLICIES OF INSURANCE, COURT OF.—See Court of Policies of Insurance.

POLICY.—Greek: πολιτεία, from πόλις, a city or State; mediæval Latin: politia, government of a State. Diez Etym. Wortb. v. Politia.

§ 1. As applied to a statute, regulation, rule of law, course of action, or the like, policy refers to its probable effect, or object, considered with reference to the social or political well-being of the State.

§ 2. Public policy. — Thus, certain classes of acts are said to be against public policy when the law refuses to enforce or recognize them on the ground that they have a mischievous tendency so as to be injurious to the interests of the State, (Chit. Cont. 613; Chesterfield v. Janssen, 1 White & T. Lead. Cas. 483,) apart from illegality

POLICY.

(q. v.) or immorality (q. v.) Thus, trading with an enemy without license from the crown (Potts v. Bell, 8 T. R. 548), marriage brokerage contracts (Cole v. Gibson, 1 Ves. 503), and agreements in general restraint of marriage or trade (q. v.) are instances of acts against public policy. Mitchel v. Reynolds, 1 Sm. Lead Cas. 356 ; 2 White & T. Lead. Cas. 125 ; Egerton v. Brounlow, 4 H. L. Cas. 1. For further details, see Chitty, ubi supra; Poll. Cont. 251 et seq.

§ 3. Policy of the law.—The “policy of the law” seems to be the same thing as public policy.

§ 4. Policy of a statute.—The “policy of a statute,” or “of the legislature,” as applied to a penal or prohibitive statute, means the intention of discouraging conduct of a mischievous tendency. See Barton v. Muir, L. R. 6 P. C. 134; Bensley v. Bignold, 5 Barn. & Ald. 335; Poll. Cont. 235. See, also, Mala in se.

POLICY OF INSURANCE.—Ital. polizza, an instrument under seal, from Latin: pollex, in its secondary sense of “seal.” Diez. Etym. W orth v Polizza.

§ 1. A policy is an instrument containing a contract of insurance, and is called a “maritime” (or marine), “fire,” “life or accident” policy, according to the nature of the insurance.

§ 2. Maritime: Open—Valued.—Maritime policies are either open or valued. An open policy is where the value of the thing insured is not stated in the policy, and must therefore be proved if a loss happen. A valued policy is where the value of the thing is settled by agreement between the parties and inserted in the policy. Sm. Merc. Law 344; Maud & P. Mer. Sh. 343.

§ 3. Voyage—Time.—An insurance may be effected either for a voyage or for a number of voyages, in either of which cases the policy is called a “voyage policy;” or the insurance may be for a particular period, irrespective of the voyage or voyages upon which the vessel may be engaged during that period, and the policy is then called a “time policy.”

§ 4. Mixed.—In addition to the two last-mentioned kinds of policy, there is a third, which is usually called a “mixed policy,” as, for instance, where a ship is insured “from A. to B. for a year.” This is in effect a time policy with the voyage specified. Id. 345.

§ 5. “Interest or no interest,” or wager policies.—Before the acts forbidding insurances by persons having no interest in the subject-matter of insurance, it was sometimes provided in the policy that it should be valid whether the insurer had any interest or not, in order to dispense with proof of interest in case of loss ; these were called “interest or no interest policies” or “wager policies.” Maud & P. Mer Sh. 333. See Interest, § 7.

§ 6. Life: Whole life policies.—Life policies for the whole life of the cestui que vie, i. e. payable whenever the death happens, are called “whole life policies;” a policy for a term of years gives no right to the sum insured, unless the life drops within the period or the policy be an endowment policy, which is made payable at death or the expiration of a specified term of years, whichever event first happens.

§ 7. Fire: Time—Floating.—When a fire insurance is made for a limited period (e. g. a year) it is called a “time policy.” (Isaacs v. Royal Insurance Co., 1. R. 5 Ex. 296.) When it is made to insure not any specific goods, but the goods which may be in a certain building, it is called a “floating policy.” North British, &c., Co., v. London, &c., Co., 5 Ch. D. 560.

§ 8. As to the assignment of life and marine policies, see Assignment, § 1. Fire Lost or Not Lost; Memorandum; Underwriter.

POLICY OF INSURANCE, (what is). 9 Bing. 320.

POLICY OF THE LAW, (in a statute). 75 Pa. St. 433.

POLITICAL ARITHMETIO.—An expression sometimes used to signify the art of making calculations on matters relating to a nation; the revenues, the value of land and effects, the produce of lands and manufactures, the population, and the general statistics of a country.—Wharton.

POLITICAL, or CIVIL LIBERTY.—Natural liberty, restrained by human law so far as is necessary and ex-

POLITICAL.

pedient for the public advantage. See 2 Steph. Com. (7 edit.) 466.

POLITICAL ECONOMY.—The science which treats of the administration of the revenues of a nation ; or the management and regulation of its resources, and productive property and labor. See Smith Wealth of Na.; Mill Pol. Ec.

POLITICS.—The science of government; the art or practice of administering public affairs.

POLITY.—The form of government; civil constitution.

POLL.—The head ; a catalogue or list of persons ; a register of heads. Also, the act of giving, receiving and registering votes at an election. See Challenge, § 2; Deed, § 2; Poll Tax ; Polling the Jury.

POLLARDS, or POLLENGERS.—Trees which have been lopped, distinguished from timber trees. Plowd. 649.

Poll-evil, (defined). Oliph. Hors. 49.

POLLICITATION.—In the civil law, a promise before it is accepted.

POLLING THE JURY.—To poll a jury is to require that each juror shall himself declare what is his verdict. This may be done, at the instance of either party, at any time before the verdict is recorded, according to the practice in some States. (See 3 Cow. (N. Y.) 23; 18 Johns. (N. Y.) 183; 1 Hill. 109; 7 Id. 342; 9 Id. 336.) In some States, it lies in the discretion of the judge. (1 McCord (S. C.) 24, 525 ; 22 Ga. 431.)—Bouvier.

POLLS.—The place where electors cast in their votes.

POLLS, CHALLENGE TO THE.—See Challenge, § 2.

Polls, ratable, (in the constitution). 7 Mass. (Supp.) 523.

POLL-TAX.—A capitation tax. It was formerly assessed, in England, by the head on every subject according to rank, and is still assessed in a few of the States, and its payment insisted on as a prerequisite to the right to vote; but this would seem to be inconsistent with the

American idea of the freedom of the ballot.

POLYANDRY.—The state of a woman who has several husbands. See Bigamy.

Polygamia est plurium simul virorum uxorumve connubium (3 Inst. 88): Polygamy is the marriage with many husbands or wives at one time.

POLYGAMY.—Plurality of wives or husbands. (See Bigamy.) It is prohibited by the Christian religion, but it is permitted by some others.

POLYARCHY.—That kind of government which is in the hands of many.

POND.—A small lake or pool of standing water. See Pool.

Pond, (includes what). 1 Chit. Gen. Pr. 189

Ponderantur testes, non numerantur: Witnesses are weighed, not counted.

PONDUS.—Poundage, i. e. a duty paid to the crown according to the weight of merchandise.

PONDUS REGIS.—The standard weight appointed by the ancient English kings.—Cowell.

PONE.—If goods had been replevied by virtue of a replegiare facias (which was rarely if ever the case), the plaint in a county court was removed by writ of pone. It was an original writ obtained from the cursitor, bearing teste after the entry of the plaint in the county court, and returnable on a general day in term, where-soever, &c. It was also the proper writ to remove all suits which were before the sheriff by writ of justices. 3 Steph. Com. (7 edit.) 280.

PONE PER VADIUM.—An obsolete writ to the sheriff to summon the defendant to appear and answer the plaintiff's suit, on his putting in sureties to prosecute. It was so called from the words of the writ, pone per vadium et salvos plegios, "put by gage and safe pledges, A. B., the defendant." It issued out of the Common Pleas, being grounded on the non-appearance of the defendant, at the return of the original writ; and thereby the sheriff was commanded to attach him by taking gage, i. e. certify that his goods which he should forfeit if he did not appear, or by making him find safe pledges or sureties, who should be amerced in case of his non-appearance. 3 Bl. Com. 210.

PONENDIS IN ASSISIS.—An abolished writ to impanel juries.—F. N. B. 165.

PONENDUM IN BALLIUM.—A writ commanding that a prisoner be bailed in cases bailable.—Reg. Orig. 133.

PONENDUM SIGILLUM AD EXCEPTIONEM.—See De Ponendo Sigillum, &c.

PONIT SE SUPER PATRIAM.—He puts himself upon the country. A phrase expressing, in English criminal law, that the plea is not guilty. The plea is entered of record usually by the abbreviation po. se.

PONTAGE.—Duty paid for the reparation of bridges; also, a due to the lord of the fee for persons or merchandises that pass over rivers, bridges, &c.—Cowell.

PONTIBUS REPARANDIS.—A writ directed to the sheriff, &c., requiring him charge one or more to repair a bridge.—Reg. Orig. 153.

POOL.—A small pond of standing water. By the grant of a pool, both the land and water will pass. Co. Litt. 5.

POOR.—The poor the law takes notice of are: (1) Poor by impotency and defect; as the aged or decrepit, fatherless or motherless, those under sickness, and persons who are idiots, lunatics, lame, blind, &c., these the overseers of the poor are to provide for. (2) Poor by casualty; such as housekeepers decayed or ruined by unavoidable misfortunes, poor persons overcharged with children, laborers disabled, and these, having ability, are to be set to work, but, if not able to work, they are to be relieved with money. (3) Poor by prodigality and debauchery, also called “thriftiless poor;” as idle, slothful persons, pilferers, vagabonds, strumpets, &c., who are to be sent to the house of correction, and be put to hard labor to maintain themselves, or work is to be provided for them, that they do not perish for want; and, if they become impotent by sickness, or if their work will not maintain them, there must be an allowance by the overseers of the poor for their support.—Jacob.

Poor, (defined). 14 Kan. 418, 422. (in bequest to). 3 Wheel. Am. C. L. 467; 7 Ch. D. 745.

POOR DEBTOR'S OATH.—By statute, in some of the States, one who is arrested or imprisoned for debt, or on mesne process in an action on contract, may obtain his discharge on making oath that he has no property with which to pay the debt.

Poor inhabitants, (legacy to). Amb. 422.

POOR LAW.—§ 1. That part of the law which relates to the public or compulsory relief of the indigent poor. The subject is regulated, in England, by a series of acts of parliament from 27 Hen. VIII. c. 25, to the pre-

sent time. (See the Index to the Statutes, tit. Poor, and the notes to 3 Steph. Com. 42 et seq.) By Stat. 43 Eliz. c. 2, overseers of the poor were appointed in every parish, to provide for the relief of paupers settled in their parish, (see Settle,) the necessary funds being produced by a poor-rate levied on property within the parish. (See Rate) The system of overseers being unsatisfactory, the Stat 22 Geo. III. c. 83, authorized any parish to appoint guardians in lieu of overseers, and also to enter into a voluntary union with one or more other parishes for the more convenient accommodation, maintenance and employment of their paupers in common. (See Guardians of the Poor; Overseer; Vestry.) In 1833, the general management of the poor, and of the funds for their relief, was placed under the superintendence and control of a body called the “poor law commissioners,” whose functions were in 1847 transferred to a new authority called the “poor law board,” and in 1871 to the local government board, (q. v.), who have the power of making general poor law rules (subject to the approval of the Privy Council), and of compulsorily consolidating any two or more parishes into one union for the relief and management of their paupers, (Stat. 34 and 35 Vict. c. 70; 28 and 29 Vict. c. 79,) or for constituting separate parishes or amalgamating parts of parishes with other parishes. (Stat. 39 and 40 Vict. c. 61; Poor Law Act, 1879.) Each State has its own system of poor laws, but all are more or less founded upon the early English statutes above mentioned.

§ 2. All those who stand in need of relief are entitled to be relieved in the parish (or township) in which they happen to be, whether they are “settled” or “casual” poor. (See Settlement; Removability.) But in many cases there is a person bound to maintain a pauper in exoneration of the parish or town; as where the pauper has a wife, husband, child, parent or grandparent, able to maintain him. There are also numerous statutes imposing penalties and punishments on persons who refuse or neglect to work to maintain their families, or desert them, leaving them chargeable to the parish. 3 Steph. Com. 56 et seq.

POOR. (975) PORT.

POOR LAW GUARDIANS.—See Guardians of the Poor.

Poor of the parish, (bequest to). 5 Har. & J. (Md.) 392.

Poor people, (in preamble of a statute). Boyl. Char. 31.

(devise to). 1 Verm. 225.

Poor person, (in a statute). 10 Cush. (Mass.) 233.

POOR RATE.—See Rate.

Poor relations, (in a will). 17 Ves. 371; 8 Com. Dig. 474.

Poorest relations, (in a will). Amb. 595.

POPE.—The bishop of Rome, and supreme head of the Roman Catholic Church. 4 Steph. Com. (7 edit.) 168-185.

POPE NICOLAS' TAXATION.—

The first fruits (primitia or annates) were the first year's profits of all the spiritual preferments in the kingdom according to a rate made by Walter, Bishop of Norwich, in the time of Pope Innocent II., and afterwards advanced in value in the time of Pope Nicholas IV. This last valuation was begun A. D. 1288, and finished 1292, and is still preserved in the Exchequer. The taxes were regulated by it till the survey made in the 26th year of Henry VIII. 2 Steph. Com. (7 edit.) 532.

POPERY.—The religious doctrines and practices adopted and maintained by the Church of Rome. Consult 2 Steph. Com. (6 edit.) 401; 4 Id. 168-185; and 4 Broom & H. Com. 61-66.

POPULACE, or POPULACY.—

The vulgar; the multitude.

POPULAR ACTIONS.—Such actions as are maintainable by any one for recovery of the penalty incurred under some penal statute. It is called a popular action because it is a proceeding which may be taken not by any one person in particular, but by any of the people who think proper to prosecute it. These are the Publica (i.e. Populica) Judicia of Roman law.—Brown. See Action, § 9.

POPULISCITUM.—In the Roman law, the name of an enactment, law or ordinance made by the populus, or whole Roman people, assembled in comitia centuriata.

PORRECTING.—Producing for examination or taxation, as porrecting a bill of costs, by a proctor.

PORT.—

§ 1. A port (or port of entry, as it is frequently called,) is a harbor where customs officers are established, and where goods are either imported or exported to foreign countries, as distinguished from a mere harbor or haven, which is simply a place, natural or artificial, for the safe riding of ships. It is said that every port comprehends a city or borough (sometimes called caput portûs), with a market and accommodation for sailors. No person may land customable goods on his own land or elsewhere than at a port. In England, the privilege of erecting ports and taking dues and tolls as incident thereto is part of the royal prerogative, and can only belong to a subject as a franchise by grant or prescription from the crown, or by act of parliament. The owner of the port is bound to keep it in repair. (Couls. & F. Waters 42.) Under the Customs Laws Consolidation Act, 1878, (§ 11,) the commissioners of the treasury may, for the purpose of the customs laws, appoint ports and quays, and alter or annul any existing port. See Toll.

§ 2. In other respects a port is the same thing as a harbor (q. v.) See Sanitary Authority.

Port, (in a policy of insurance). 10 Johns. (N. Y.) 120, 126; 11 Id. 9; 4 Bligh. n. s. 578.

(in a statute). 2 Barn. & Ad. 43; L. R. 6 Q. B. 632, 642.

(synonymous with "district"). 3 Mas. (U. S.) 153, 155.

(synonymous with "harbor"). 9 Metc. (Mass.) 371, 377.

(synonymous with "water"). 1 Cowp. 107.

PORT CHARGES, DUES, or TOLLS.—Pecuniary exactions upon vessels availing themselves of the commercial conveniences and privileges of a port.—Abbott.

Port of Boston, (what is included within). 119 Mass. 179, 185.

Port of destination, (in an insurance policy). 12 Gray (Mass.) 501, 516; 103 Mass. 241; 8 Am. L. Reg. 362.

Port of discharge, (what is). 13 East 397.

(what is not). 1 Conn. 184, 195.

(in a policy of insurance). 1 Conn. 333; 8 Mass. 527; 104 Id. 510; 6 Am. Rep. 261; 15 East 295.

PORT OF ENTRY.—See Port, § 1.

Port or ports of loading, (in marine policy). L. R. 4 Q. B. 523; 5 Id. 584.

Port risk, (in marine policy). 71 N. Y. 453.

PORTABLE.

Portable, (synonymous with "movable"). 83 N. C. 123.

PORTATICA. — Port-duties charged on ships.

PORTER.—An officer who carries a white or silver rod before the justices in eyre, so called à portando virgam; also, a person employed to carry messages, parcels, &c.

PORTERAGE.—A kind of duty formerly paid at the English custom-house to those who attended the water-side, and belonged to the package-office; but it is now abolished. Also, the charge made for sending parcels.

PORTGREVE, or PORTREEVE.— A magistrate in certain sea-coast towns.—Cowell.

PORTION.—

§ 1. That part of the estate of a parent, or of one standing in loco parentis, which is given to a child.

§ 2. In England, when land is settled in strict settlement, that is to say, on the husband for life, with remainder in tail to the eldest son, it is usual to provide for the payment to the “younger children” (i. e. all except the one who takes the estate) of gross sums of money, on their attaining twenty-one, or, in the case of daughters, marrying. To enable these portions to be raised, the land is generally limited to trustees for a long term of years with power to mortgage it. Elph. Conv. 355 ; Wats. Comp. Eq. 586. See Settlement ; Term.

§ 3. As to the operation of the rule against double portions, by which a child is prevented from taking both a sum paid to him as a portion and a legacy bequeathed to him as a portion, see Satisfaction.

Portion, (defined). 2 Atk. 522.

— (in a marriage settlement). 1 P. Wms. 418, 448 ; 2 Id. 436.

— (in a will). 12 Mass. 491 ; 2 P. Wms. 669, 672 ; 1 T. R. 105.

PORTION DISPONIBLE.— In the French law, a parent having one legitimate child may dispose of one-half only of his property ; leaving two, one-third only; and leaving three or more, one-fourth only; and it matters not whether the disposition is inter vivos, or by will.—Brown.

Portion of my property remaining, (in a will). 13 B. Mon. (Ky.) 291.

Portion of tithes, (what it is). 4 Co. 35.

Portions, (in a will). 1. R. 7 Ch. 356.

PORTIONER.—

§ 1. In old English law.—A minister who serves a benefice, together with others, so called because he has only a portion of the tithes or profits of the living; also, an allowance which a vicar commonly has out of a rectory or impropriation.—Cowell.

§ 2. In the Scotch law.—The proprietor of a small fen or portion of land.—Bell Dict.

PORTMEN.—The burgesses of Ipswich and of the Cinque Ports.—Camden.

PORTMOTE.—A court held in haven towns or ports, and sometimes in inland counties.—Termes de la Ley.

PORTORIA.—In the civil law, duties paid in ports on merchandise.

PORTS.—See Port.

Ports, (in a policy of insurance). 2 Dow. & C. 129.

Ports and havens, (in a statute). 108 Mass. 169.

PORTSALE.—A public sale of goods to the highest bidder; also, a sale of fish as soon as it is brought into the haven.—Cowell.

PORTSOKA, or PORTSOKEN.— The suburbs of a city, or any place within its jurisdiction.—Somner; Cowell.

PORTUAS.—A breviary.—Cowell.

Portus est locus in quo exportantur et importantur merces (2 Inst. 148): A port is a place where goods are exported or imported.

POSITIO.—A claim.

POSITIVE CONDITION.—See Condition, § 12.

POSITIVE EVIDENCE.—Proof of the very fact, opposed to negative evidence.

POSITIVE FRAUD.—Actual fraud. See Fraud, § 1 et seq.

POSITIVE LAW.—Law which is not an enforcement of the moral law, and to which disobedience is malum prohibitum, not malum in se. See Mala Prohibita; Mala in se.

Posito uno oppositorum negatur alterum (3 Rolle 422): One of two opposite positions being affirmed, the other is denied.

POSSE.—A possibility. A thing is said to be in posse when it may possibly be; in esse when it actually is.

POSSE COMITATUS.—The power of the county. An assemblage of the able-bodied male inhabitants of a county, except peers and clergymen. The sheriff of the county may summon the posse comitatus to assist him in maintaining law and order.

POSSESSED. (977) POSSESSION.

tatîs either to defend the county against the king's enemles, or to keep the peace, or to pursue felons. Persons failling to obey the summons are li:ble to fine and imprisonment. 2 Steph. Com. 628; 4 Id. 254; Stat. 13 Hen. IV. c. 7.

Possessed, (defined). 1 Wash. (Va.) 52. — (equivalent to "ownership" in a will). 22 Conn. 462, 472. — (in tax act). 3 Mass. 428, 429.

POSSESSIO.— Possessio, in its primary sense, is the condition or power by virtue of which a man has such mastery over a corporeal thing as to deal with it at his pleasure, and to exclude other persons from meddling with it. This condition or power is detention ; and it lies at the bottom of all legal senses of the word "possession." This possession is no legal state or condition, but it may be the source of rights, and it then becomes possessio in a juristical or legal sense. Still, even in this sense, it is not in any way to be confounded with property (pro-prietss). A man may have the juristical possession of a thing without being the proprietor, and a man may be the proprietor of a thing without having the juristical possession of it, and consequently without having the detention of it. (D. 41, 2, 12.) Ownership is the legal capacity to operate on a thing according to a man's pleasure, and to exclude everybody else from doing so. Possession, in the sense of detention, is the actual exercise of such a power as the owner has a right to exercise. The term possessio occurs in the Roman jurists in various senses. There is possessio generally, and possessio civilis, and pos-sessio naturalis.

Possessio denoted, originally, bare detention; but this detention, under certain conditions, becomes a legal state, inasmuch as it leads to ownership through usucapio. Accordingly the word possessio, whith required no qualification so long as there was no other notion attached to possessio, requires such qualification when detention becomes a legal state. This detention, then, when it has the conditions necessary to usucapio, is called possessio civilis, and all other possessio as opposed to civilis is naturalis.—Smith Dict. Antiq.; Sand. Just. (5 edit.) 135 et seq.

POSSESSIO CIVILIS.—In the Roman law, a legal possession, i. e. a possessing accompanied with the intention to be or thereby to become owner; and as so understood, it was dis-

• "Whoever holds a piece of gold in his hand is the possessor of it, of this there is no doubt; and from this and similar cases the iden: of actual bodily contact has been abstracted, and thus is made the essential in every acquisition of possession. But in the above case something else exists, which is not necessarily connected with any bodily contact, viz., the physical power of dealing with the subject immediately and of excluding any foreign agency. . . . Whoever at any moment is able to take up something which lies before him has just as much uncontrollable dominion over it as if he had in fact taken it manu ponat." VOL. II.

tinguished from possessio naturalis, otherwise called nuda detentio, which was a possessing without any such intention. Possessio civilis was the basis of usucapio or of longi temporis possessio, and was usually (but not necessarily) adverse possession.—Brown.

POSSESSIO FRATRIS.—Under the old l:iw of descent, where A. had a son and a daughter by one marriage, and another son by a subsequent marrlage, and died intestate seized of land in fee-simple, then if the eldest son entered on the land and died without issue, the daughter took the land, because the descent was traced from the person last seized; and in this case the younger son, being of the half-blood to his brother, could not inherit to him. This was called a possessio fratris, the rule being possessio fratris de feodo simplici facit sororem esse heredem (the possession of the brother makes the sister heir). (Litt. § 8; Co. Litt. 14 b.) Now descent is traced from the purchaser and not from the person last seized, so that the possessio fratris has been abolished. Wms. Seis. 76.

Possessio fratris de feodo simplici facit sororem esse heredem (3 Co. 41): The brother's possession of an estate in fee-simple makes the sister to be heir.

POSSESSIO LONGI TEMPORIS.—See Usucapio.

POSSESSIO NATURALIS.—See Possessio Civilis.

POSSESSION.— § 1. In its primary sense, possession is the visible possibility of exercising physical control over a thing, coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First, there must be actual or potential physical control.* Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has not possession of it.† Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of

• "Whoever holds a piece of gold in his hand up." (Savigny Possession § 15.) See further as to possession, Bruns (Das Recht des Besitzes im Mittelalter), 1 Holtz. Encycl. 292; 1 Ben-tham's Works 327 et seq.; Aust. Juris. 53; Hunt. Rom. L. 193 et seq., where a new theory of the doctrine of possession in Roman law is developed, and the whole subject discussed with much learning.

† "Furiosus, et pupillus sine auctoritate, non potest incipere possidere, quia affectionem ten-endi non habent, licet maxime corpore suo rem contingant, sicuti si quis dormienti aliquid in manu ponat." Dig. xli. 2, fr. 1, § 3. 3M.

being under the control of any one, it is not possessed; hence, if a piece of land is deserted and left without fences or other signs of occupation, it is not in the possession of any one, and the possession is said to be vacant. The question whether possession of land is vacant is of importance in actions for recovering possession, as in such cases service of the writ is effected by posting a copy of it on part of the land. Rules of Court, ix. 8. See SERVICE.

§ 2. "Possession" as opposed to "enjoyment," "reversion," &c.—Possession does not necessarily imply use or enjoyment; thus, a warehouseman has possession of the goods entrusted to him, without having the use of them. But inasmuch as the use of property cannot be had without possession, the term "possession" is frequently used as implying use and enjoyment, and in this sense is opposed to "reversion," "expectancy," "action," &c.; thus, a tenant for life in possession is one who has the immediate benefit of the property, (e.g. by occupation, receipt of the rents or income, &c.,) as opposed to a tenant in remainder, whose right to the enjoyment of the property is deferred (see ESTATE, § 9 et seq.); a chose in possession is a chattel which can be immediately used, such as a book, while a chose in action is merely the right to obtain possession of a chattel, as in the case of a debt. 2 Bl. Com. 396. See CHOSE; REDUCTION INTO POSSESSION.

§ 3. Right of possession.—Possession gives rise to peculiar rights and consequences. The principal is that a possessor is presumed to be absolute owner until the contrary is shown, (Wms. Seis. 7; Best Ev. 477,) and is protected by law in his possession against all who cannot show a better title to the possession than he has. Thus, if a person takes possession of a piece of deserted land no one can eject him from it except the rightful owner, (similarly in the case of a chattel: Armory v. Delamire, 1 Str. 504; 1 Sm. Lead. Cas. 357,) and even he only by taking legal proceedings to prove his title. (As to the reason for this protection, see Savigny, § 6;

*It is hardly necessary to point out the distinction between the right of possession and the right to possession. Supra, § 2, and infra, § 5.)

Holl. Jur. 129.) This is called the "right of possession."* Ordinarily, possession (unless combined with other elements) does not affect the question of ownership; and, therefore, if A., being wrongfully in possession of a thing, conveys it to B., B. cannot retain it against the true owner, even though he may have believed A. to be the true owner and paid him the value of the thing. But in a few cases possession is sufficient to enable a person without title to give a perfect title to a bonâ fide acquirer. Thus, if A. steals money or a negotiable instrument from B. and transfers it for value to C., who has no notice of the theft, B. cannot claim it from C. (Miller v. Race, 1 Burr. 452; 1 Sm. Lead. Cas. 538. See EARMARK; MARKET OVERT; NEGOTIABLE.) So, under the English Factors Acts (q. v.), a person in possession of goods belonging to another may, in certain cases, sell or pledge them, so as to give a good title to the purchaser or pledgee. As to long-continued adverse possession, see infra, § 10.

§ 4. Criminal law.—In criminal law, possession frequently gives rise to a presumption against the possessor, so as to shift the burden of proof on him. Thus, the possession of stolen goods, where recent and exclusive, is in many cases sufficient to raise a presumption of larceny against the possessor, which he must rebut by showing that he came honestly by them. Best Ev.293.

With reference to its origin, possession is either with or without right.

§ 5. Rightful possession.—Rightful possession is where a person has the right to the possession of (i.e. the right to possess) property, and is in the possession of it with the intention of exercising his right. This kind of possession necessarily varies with the nature of the right from which it arises; a person may be in possession of a thing by virtue of his right of ownership, or as lessee, bailee, &c.; or his possession may be merely permissive, as in the case of a licensee; or it may be a possession coupled with an interest, as in the case of an auc-

The latter is one of the rights of ownership (q. v.)

tioncer. (Willianis v. Millington, 1 H. Bl. 81, cited in Woolfe v. Horne, 2 Q. B. D. 358.) So the right may be absolute, i. e. good against all persons; or relative, i e. good against all with certain exceptions. Thus, a carrier or borrower of goods has a right to their possession against all the world except the owner.

§ 6. Derivative possession.—Injurisprudence, the possession of a lessee, bailee, licensee. &c., is called "derivative possession," while in law the possessory interest of such a person, considered with reference to his rights against third persons who interfere with his possession, is usually called a "special" or "qualified property," meaning a limited right of ownership. Holl. Jur 127 et seq. See Property.

§ 7. Wrongful possession.—Possession without right is called "wrongful" or "adverse," according as the rights of the owner or those of the possessor are considered. Wrongful or naked possession is where a person takes possession of property to which he is not entitled, so that the possession and the right of possession are in one person, and the right to possession in another. Where an owner is wrongfully dispossessed he has a right of action to recover it, or, if he has an opportunity, he can exercise the remedy of recaption in the case of goods, or of entry in the case of land. (See Entry, § 3; Recaption.) Formerly, the doctrine of wrongful possession was of more importance than now, owing to the peculiar rules applicable to disseisin, intrusion, feoffments, &c. See the subject discussed in Taylor v. Horde, 1 Burr. 60; 2 Sm. Lead. Cas. 681.

§ 8. Adverse possession.—Adverse possession is a possession inconsistent with the right of the true owner; in other words, where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than as owner, i. e. with the intention of excluding all persons from it, including the rightful owner, he is in adverse possession of it. Thus, if A. is in possession of a field of B.'s, he is in adverse possession of it, unless there is something to show that his possession is consistent with a recognition of B.'s title. Ward v. Carttar, L. R. 1 Eq. 29.

§ 9. Adverse ab initio, or by matter subsequent.—Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so by matter subsequent. Thus, if a mere trespasser takes possession of A.'s property, and retains it against him, his possession is adverse ab initio. But if A. grants a lease of land to B., or B. obtains possession of the land as A.'s bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. In the case of a lessee, his possession becomes adverse (1) if he discontinues payment of rent. (Stat. 3 and 4 Will. IV. c. 27, § 3.) This section abolished the contrary rule which formerly prevailed, and it is hence sometimes said that the statute abolished the old rule of non-adverse possession. Or (2) if he pays rent to a person claiming the land adversely to the rightful owner, and does not afterwards pay any rent to the rightful owner; in the latter case the rule only applies, in England, if the rent amounts to 20s. or upwards. (Id. § 9.) In the case of persons other than lessees, the rule seems to be that possession is never considered adverse if it can be referred to a lawful title, and that where a person obtains possession by a permissive or fiduciary title, or by his own agreement, or by judgment of law (e. g. under an elegit), he and all claiming under him are presumed to hold possession according to that right. Thomas v. Thomas, 2 K. & J. 83; Pells v. Bascomb, 4 Giff. 394; Saunders v. Annenley, 2 Sch. & L. 73; Nepean v. Doe, 2 Sm. Lead. Cas. 584, and the cases referred to in Shelf. R. P. Stat. 148.

§ 10. Effects of adverse possession. —Adverse possession not only entitles the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, (supra, § 3,) but also, if the adverse possessor remains in possession for a certain period of time, produces the effect either of barring the right of the true owner, (the Land Transfer Act, 1875, provides (§ 21) that as against a registered proprietor under the act there is said to be no acquisition of title by adverse possession,) and thus converting the possessor into the owner, or of depriving the true owner of

POSSESSION. (980) POSSESSION.

his right of action to recover his property,* (see Limitation, § 6; Prescription;) and this although the true owner is ignorant of the adverse possessor being in occupation. Rains v Buxton, 14 Ch. D. 537.

With reference to the mode of its exercise, possession is of several kinds.

§ 11. Actual, or in fact.—A person has actual possession (de facto possession, possession in fact,) of a thing when he exercises physical control over it. Thus, a person who holds a thing in his hand has actual possession of it, and the lessee of a house is in actual possession of it while he occupies it. For instances of actual possession, see Lows v. Telford, 1 App. Cas. 414; Coverdale v. Charlton, 4 Q. B. D. 118. As to what is "actual possession" within the meaning of the Reform Act, see Wms. Sett. 14; Hadfield's Case, L. R. 8 C. P. 306.

§ 12. Constructive, or in law.—A person has constructive possession (or possession in law) (1) when some one representing him has actual possession of the thing. Thus, if A., the owner of the land, leases it to B., A. has constructive possession by B., and if A. dies intestate, leaving C. his heir, C. is immediately in constructive possession of the land by B., although he has never had actual possession; (2) a person may have constructive possession of one thing because he has actual possession of another; thus, if a person is in legal possession of a house, he is ordinarily in constructive possession of the goods in it, or if he is in legal possession of a portion of an estate or firm, he is in constructive possession of the whole of it. The doctrine of constructive possession does not apply to a wrongdoer or person without title. Ex parte Fletcher, 5 Ch. D. 809; Bristow v. Cormican, 3 App. Cas. 661; Coverdale v. Charlton, 4 Q. B. D. 114. See, also, Kiusman v. Rouse, 17 Ch. D. 104.

§ 13. Joint, or concurrent.—Joint or concurrent possession, is where two or more persons have possession of the same

• 2 Sm. Lead. Cas. 681 et seq. Formerly the term adverse possession was used to signify the possession of a person who had ousted the seisin of the true owner, e. g. by disseisin, abatement, &c., as opposed to non-adverse possession, which existed when a person was in the actual enjoyment of land without having technically disseised the owner, so that during that time the period of limitation under the Stat. 21 Jac. I. c. 16, did not run. Thus doctrine was abolished by Stat. 3 and 4 Will. IV. c. 27; 2 Bl. Com. 266 n

thing at the same time. In re Fells, 4 Ch. D. 509.

§ 14. Apparent and formal possession.—Under the Bills of Sale Act, (Stat 41 and 42 Vict. c. 31; Robs. Bankr. 459,) the validity of an unregistered bill of sale frequently depends upon whether the owner of the goods remains in "apparent possession" of them, having merely given "formal possession" to the creditor. Thus, where the holder of an unregistered bill of sale of furniture put a man into the house, but did not interfere with the furniture in such a manner as to show that it had been taken out of the debtor's control, it was held that the possession so taken was merely formal, and that the goods remained in the apparent possession of the debtor. (Ex parte Lewis, L. R. 6 Ch. 626. See § 4 and 8 of the act.) As to possession excluding the doctrine of reputed ownership, see Ex parte National Ass. Co., 10 Ch. D. 408. See Bill of Sale, § 4, n.

As to possession in the law of bankruptcy, see Order and Disposition; Reputed Ownership.

§ 15. Criminal law.—In criminal law, possession is sometimes distinguished from custody. Thus, if the owner of a chattel gives it to his servant to keep for him for a specific purpose, or until he requires it again, the chattel is in the custody of the servant and in the possession of the master; if, however, the servant receives anything for his master from a third person (not being a fellow-servant), e. g. a tradesman, he has the possession, and not merely the custody of it until he places it in his master's possession by putting it into a place or thing belonging to his master, or by some similar act. The importance of the distinction is with reference to the difference between larceny and embezzlement (q. v.) Steph. Cr. Dig. 195, 376. See Custody.

§ 16. Possession—Seisin.—Possession is sometimes used in the old books in the technical sense of seisin or feudal possession of land. "It is to be knowne that there is a jus proprietatis, a right of ownership; jus possessionis, a right of seisin or possession, and jus proprietatis et possessionis, a right both of property and possession; and this is antiently called jus duplicatum, or droit droit. For example, if a

man be disseised of an acre of land, the disseisee hath jus proprietatis, the disseisor hath jus possessionis (but see 2 Bl. Com. 195); and if the disseisee release to the disseisor, hee hath jus proprietatis et possessionis." Co. Litt. 266 a. See Seisin; Droit; Possessio Fratris.

§ 17. Possession and seisin.—Possession is also sometimes opposed to seisin. "The difference between possession and seisin is : lessee for years is possessed, and yet the lessor is still seised; and therefore the terms of law are, that of chattels a man is possessed, whereas in feoffments, gifts in tail, and leases for life, he is described as seised." Noy Max. 64; see Savigny, § 8, p. 67; and for a classification of "possessions," see 1 Benth. Works 451 et seq. See Enjoyment; Quasi-Possession.

Possession, (defined). 1 Cal. 255, 262; 87 Ill. 148; 25 Barb. (N. Y.) 54; 10 Bosw. (N. Y.) 505.

(what constitutes). 4 Bibb (Ky.) 559, 563; 2 Dana (Ky.) 127, 148, 149; 4 T. B. Mon. (Ky.) 442; 8 Johns. (N. Y.) 464; 1 Ired. (N. C.) L. 535.

(what is not). 2 Dana (Ky.) 271; 3 Johns. (N. Y.) 388.

(how proved). 3 Stark. Ev. 1190.

(is an interest in lands). 7 Johns. (N. Y.) 205.

(presumption of grant from). 10 Ired. (N. C.) L. 516.

(in a contract). L. R. 3 Ch. 61.

(in a covenant to give). 2 Gr. (N.J.) 461.

(in statute of limitations). 28 Tex. 560.

Possession, actual, (what constitutes). 61 Ill. 106; 3 Litt. (Ky.) 19, 20; 4 Ired. (N. C.) L. 310; 1 Grant (Pa.) Cas. 150.

(how may be divested). 2 Dana (Ky.) 354.

(a deed is not evidence of). 16 Serg. & R. (Pa.) 44.

Possession, adverse, (what is). 9 Pet. (U. S.) 405; 11 Id. 41; 5 Day (Conn.) 181; 5 Penn. (N. J.) 440, 446; 1 Cow. (N. Y.) 605; 5 Id. 92; 4 Johns. (N. Y.) 390; 9 Id. 174; 13 Id. 118; 8 Wend. (N. Y.) 440; 12 Id. 603; 13 Id. 227; 24 Id. 587; 3 Pa. 134; 7 Serg. & R. (Pa.) 134; 10 Id. 305; 13 Id. 356; 3 Watts (Pa.) 74; 2 Aik. (Vt.) 364.

(what is not). 5 B. Mon. (Ky.) 458; 5 Wend. (N. Y.) 552; 15 Id. 597; 6 Serg. & R. (Pa.) 21; 15 Vt. 672; 5 Wheel. Am. C. L. 31.

(how proved). 9 Johns. (N. Y.) 163.

(is a question of law). 2 Watts (Pa.) 27.

(is a question for the jury). 8 Pet. (U. S.) 251; 4 Halst. (N. J.) 149; 9 Johns. (N. Y.) 102.

(residence is not necessary to constitute). 10 Pa. St. 282; 3 Serg. & R. (Pa.) 291.

Possession by relation of law, (defined). 6 Halst. (N. J.) 197.

Possession, constructive, (what is essential to). 23 Wend. (N. Y.) 316.

Possession, estate in, (defined). 19 Mich. 116, 123.

Possession, having in, (in a statute). 42 Vt. 495, 505.

Possession in fact, (defined). 6 Halst. (N. J.) 197.

Possession in good faith, (what is). 15 Am. Dec. 351 n.

Possession is nine-tenths of the law; This adage is not to be taken to be true to the full extent, so as to mean that the person in possession can only be ousted by one whose title is nine times better than his, but it places in a strong light the legal truth that every claimant must succeed by the strength of his own title and not by the weakness of his antagonist's. For instance, if the claimant be able to show a descent from the grantor of the estate, and the man in possession be a perfect stranger, the latter shall keep the estate; and so, also, if the claimant be a natural son of the last owner and adopted by him, and declared by him to be designed as his heir, yet if he die without making a will in his favor, a stranger in possession has a better title.—Wharton.

POSSESSION MONEY.—The fee to which a sheriff's officer is entitled for keeping possession of property under a writ of execution. Sneary v. Abdy, 1 Ex. D. 299. See Poundage.

Possession, natural, (distinguished from "civil possession"). 1 Cal. 255, 263.

Possession, notorious, (is constructive notice). 6 Serg. & R. (Pa.) 118.

Possession of counterfeit coin, (what is). 11 Iowa 245.

Possession of game, (what is not). 10 East 19.

Possession of land, (what is not). 1 Jones (N. C.) L. 406.

POSSESSION OF STOLEN GOODS.—See Possession, § 4.

Possession of the premises, (in a statute). 126 Mass. 146.

Possession, reversion or remainder, (in statute of wills). 3 Marsh. (Ky.) 508.

Possession should come into, (in a deed). 3 Bro. Ch. 180.

Possession, true, (distinguished from "actual possession"). 1 Cal. 255, 263.

POSSESSION VAUT TITLE.—In English law, as in most systems of jurisprudence, the fact of possession raises a prima facie title or

a presumption of the right of property in the thing possessed; in other words, the possession is as good as the title (about).—Brown.

POSSESSION, WRIT OF.—The process of execution in an action of ejectment. A judgment for the recovery, or for the delivery of the possession, of land may be enforced by writ of possession. Where by any judgment any person therein named is directed to deliver up possession of any lands to some other person, the person prosecuting such judgment shall, without any order for that purpose, be entitled to sue out a writ of possession on filing an affidavit showing due service of such judgment and that the same has not been obeyed. See EJectment; Habere Facias Possessionem.

Possessions, (in a will). 69 Me. 306.

POSSESSOR.—One who possesses; one who has possession. See Possessio; Possession.

Possessor in good faith, (construed). 1 Cal. 255, 273.

POSSESSORY.—That which arises out of or is concerned with possession. Thus, a possessory action, in the days of real actions, was an action to recover the possession of land (see Droit). An action of possession is a different thing. As to possessory liens, see Lien, § 4.

POSSESSORY JUDGMENT.—In the Scotch law, a judgment which entitles a person who has uninterruptedly been in possession for seven years, to continue in possession until the question of right be decided in due course of law.—Bell Dict.

POSSIBILITAS.—An act willfully done, as impossibilitas is a thing done against the will. Possibilitas post dissolutionem executionis nunquam reviviscatur (1 Rolle 321); Possibility is never revived after the dissolution of the execution.

POSSIBILITY.—

§ 1. Bare—Coupled with an interest.—A future event, the happening of which is uncertain. In the law of real property, the term also signifies an interest in land which depends on the happening of such an event. In this sense a possibility is said to be either bare or coupled with an interest. Thus, in England, the expectation of an eldest son of succeeding to his father's land is a bare possibility, which is not recognized by law as being capable of transfer, though it may form the subject of a covenant to settle after-acquired property. If land is conveyed to A. for life, and if C. should be living at his death, then to B. in fee, B.'s contingent remainder is a possibility coupled with an interest; such a possibility may be devised by will or conveyed by deed. 1 Steph. Com. 229; Wms. Real Prop. 279. When an estate in fee-simple conditional at the common law is created, the donor has what is called a "possibility of reverter," as to which see Reverter.

§ 2. Common or near—Double or remote—Possibility on possibility.—In the old books a distinction is drawn between (1) a common or near possibility, and (2) a double or remote possibility, or possibility on a possibility. Thus, the chance that a man and a woman, both married to different persons, shall themselves marry one another, is a common possibility, and, therefore, a gift to two such persons, and the heirs of their two bodies, give them an estate tail; but "if land is given to a man and two women and the heirs of their bodies begotten, in this case they have a joint estate for life and every of them a several inheritance, because they cannot have one issue of their bodies, neither shall there be by any construction a possibility upon a possibility, viz., that he shall marry the one first and then the other." Co. Litt. 27b, 184a; Wms. Real Prop. 275; Wms. Seis. 124. See, further, as to the effect of a gift of this kind, under titles Estate Tail, § 4; Inheritance, § 5.

§ 3. Formerly, also, there was a rule that a contingent remainder could not be created to take effect on the happening of a double possibility. But this is now obsolete. Wms. Real Prop. 275. See Tenant in Tail After Possibility of Issue Extinct.

POSSIBILITY COUPLED WITH AN INTEREST.—See Possibility, § 1.

POSSIBILITY ON A POSSIBILITY.—See Possibility, § 2.

Possible to see, (in a statute). 19 Mich. 482, 505.

POST.—A conveyance for letters or dispatches. The word is derived from positi, the horses carrying the letters or dispatches being kept or placed at fixed stations. The word is also applied to the person who conveys the letters to the houses where he takes up and lays down his charge, and to the stages or distances between house and house. Hence the phrases, post-boy, post-man, post-horse, post-house, &c.

POST.—After; afterwards. Thus, occurring in a report or a text-book, post is used to send the reader to a subsequent part of the book.

POST, ACTIONS IN THEE.—See WRIT OF ENTRY.

POST AND PER.—See PER AND POST.

POST CONQUESTUM.—After the Conquest. Words inserted in the king's title by King Edward I., and constantly used in the time of Edward III.—Tomlins.

POST, CONTRACTS BY.—See LETTER.

POST-DATED.—Dated ahead. An instrument dated after the true time at which it is made, is said to be post-dated. It is now settled that, in general, a bill or note may be post-dated. (See Byles Bills (11 edit.) 78.) A check may also be post-dated. Byles 17.

POST DIEM.—After the day. A plea of payment post diem is a plea that the money was paid after the day it became due.

POST DISSEISIN.—See DE POST DISSEISINA.

POST ENTRY.—When goods are weighed or measured, and the merchant has got an account thereof at the custom house, and finds his entry already made too small, he must make a post entry or additional entry for the surplusage, in the same manner as the first was done. As a merchant is always in time, prior to the clearing of the vessel, to make his post, he should take care not to over-enter, to avoid as well the advance as the trouble of getting back the overplus.—McCull. Dict.

Post executionem status lex non patitur possibilitatem (3 Bult. 108): After the execution of the estate the law suffers not a possibility.

POST FACTO.—See EX POST FACTO.

POST-FINE.—A duty formerly paid to the king for a fine acknowledged in his court; it was paid by the cognizee after the fine was fully passed. See FINE.

POST LITEM MOTAM.—See LIS MOTA.

POST-MAN.—“In the Court of Exchequer, two barristers, called the 'post-man' and the 'tub-man' (from the places in which they sit), have a precedence in motions.” (See R. v. Bishop of Exeter, 7 Mees. & W. 188; 3 Steph. Com. 274 n.) This right of pre-audience would seem not to have been abolished by the merger cf the Court of Exchequer into the Queen's Bench Division of the High Court (q. v.), the judges having intimated that whenever a divisional court might be sitting in the old Court of Exchequer, the tub-man would be permitted to retain his right of precedence. Sol. J., 11th June, 1881.

POST-MARK.—A stamp or mark put upon letters in the post-office. Such mark is evidence of a letter's having passed through the post-office.

Post-mark, (how proved). 5 Bing. 299.

POST-MORTEM.—After death, as a post-mortem or necroscopic examination. See CORONER.

POST-NATI.—See ANTE-NATUS; CALVIN'S CASE.

POST-NOTE.—A bank-note, intended to be transmitted to a distant place by the public mail, and made payable to order; differing in this from a common bank-note, which is payable to the bearer.

Post-notes, (defined). 22 Pa. St. 479, 488.

POST-NUPTIAL SETTLEMENT.—A settlement made after marriage; it is generally deemed voluntary unless made pursuant to written articles entered into before the marriage. See 2 Steph. Com. (7 edit.) 275.

POST-OBIT BOND.—A bond, conditioned to be void on the payment by the obligor of a sum of money upon the death of another person. In most cases the person upon whose death it is so payable is one from whom the obligor expects to derive some property. Post-obit bonds, and other securities of a like nature, are set aside, when made by heirs and expectants, as frauds upon the parents and other ancestors, unless the obligee or person dealing with such heir can prove satisfactorily that the stipulated payment is not

more than a just indemnity for the hazard. Even the sale of a post-obit bond at public auction will not necessarily give it validity, or free it from the imputation of being obtained under the pressure of necessity.

POST-OFFICE.—An office for the receipt and delivery of the m·il.—Bouvier.

Post-office, (what constitutes). 2 Blatchf. (U. S.) 108.

POST-OFFICE DEPARTMENT.—That one of the executive departments of the United States government which is charged with the business of receiving and transporting the mails.

POST-OFFICE ORDER.—A letter of credit furnished by the government, at a small charge, to facilitate the transmission of money.

POST-OFFICE SAVINGS BANKS.—These banks were established, in England, by the Stat. 9 Geo. IV. c. 92, and are now regulated partly by that statute and other statutes, but principally by the Stat. 24 and 25 Vict. c. 14, by which latter act the guarantee of the State is given to the savings depositor for any deficiency in the post-office fund, and a rate of two and a half per cent. per annum was fixed on interest on the amount of the deposits. There have been two more recent statutes bearing upon the subject, viz., 26 and 27 Vict. c. 14, and 37 and 38 Vict. c. 73, and by the former of these two acts certain private savings banks (commonly called "trustee savings banks") may, upon their closing, be (in effect) merged in the post-office savings banks.—Brown.

POST-ROAD, or ROUTE.—A road, or route, designated by law to be pursued by contractors and others in the transportation of the mails.

Post-road, (distinguished from "post-route"). 13 Ct. of Cl. 199.

POST-TERMINAL SITTINGS.—Sittings after term. See Sittings.

POST TERMINUM.—After the term.

POSTE-VENE.—To come after.

POSTAGE.—The duty or charge imposed on letters or parcels conveyed by post.

POSTAGE STAMP.—An engraved and printed ticket furnished by the government to be affixed to mailable matter, in order to entitle such matter to transmission.

POSTAL.—Relating to the mails; pertaining to the post-office.

POSTAL CONVENTION.—A treaty made at Berne, in October, 1874, for the regulation of rates of postage and other matters connected with the post-office, between England and various other countries. See 38 and 39 Vict. c. 22.

POSTAL MONEY-ORDER.—See Post-Office Order.

POSTEA.—In the common law practice, a formal statement, indorsed on the Nisi Prius record, which gives an account of the proceedings at the trial of the action. Sm. Ac. 167.

Posteriora derogant prioribus: Things subsequent supersede things prior.

POSTERIORITY.—This is a word of comparison and relation in tenure, the correlative of which is the word "priority." Thus, a man who held lands or tenements of two lords was said to hold of his more ancient lord by priority, and of his less ancient lord by posteriority. (O. N. B. 94.) But the word has also a more general application in law, and is used as opposed to priority generally.—Brown.

POSTERITY.—Succeeding generations; descendants, opposed to ancestry.

Posterity, (defined). 8 Bush (Ky.) 525.

POSTHUMOUS.—See In Ventre sa Mere, § 1.

POSTLIMINIUM.—The name given to the rule of international law by which, in certain cases, persons or property captured by an enemy revert to their original owner, when recaptured from the enemy by individuals belonging to the nation from which they were captured. To what cases the rule is applicable depends to a great extent on the practice of each particular nation; for it properly belongs to private international law, though the term postliminium is also said to apply to those cases where captured property has come into the hands of neutrals, and is reclaimed by the belligerent from whom it was taken. (Man. Int. Law 190. "Dictum est autem postliminium a limine et post . . . quia eodem limine revertebatur, quo amissus erat." 1 Just. Inst. xii. § 5; Dig. xlix. 15.) As to the English law on the subject, see Recapture; Jus Post Liminii.

POSTLIMINIUM. (985)

Postliminium fingit eum qui captus est in civitate semper fuisse: Postliminy supposes that he who was taken prisoner had always been in the State.

POSTLIMINY.—See POSTLIMINIUM.

POSTMASTER.—An officer appointed by the president to take charge of a post-office, and attend to the receipt, forwarding and delivery of letters and other matter passing through the mail.

POSTMASTER-GENERAL. — The head of the post-office department. He is one of the president's cabinet. See CABINET.

Postponement, (what is not). 13 How. (N. Y.) Pr. 89.

POSTPONEMENT OF TRIAL.— May be applied for on sufficient grounds, which must appear by affidavit. Such grounds are the absence of an important witness, who can be expected to be produced in a short time, or a state of public feeling in the present which will prevent either party having a fair trial. The postponement should be applied for before the other side has time to try, and will be allowed upon such terms as the court thinks fit. It is a ground for a new trial if a judge improperly refuse to put off a trial. See CONTINUANCE.

POSTREMO GENITURE.—Borough-English (q. v.)

POSTULATIO.—In the civil law, the first act in a criminal proceeding.

POSTULATIO ACTIONIS.— In the Roman law, the demand of an action; the request made to the prætor by an actor or plaintiff, for an action, or formula of suit; corresponding with the application for a writ in old English practice.—Burrill.

POSTULATION.—A petition. Formerly, on the occasion of a bishop being translated from one bishopric to another, he was not elected to the new see, for the rule of the canon law was electus non potest eligi; and the pretense was that he was married to the first church, which marriage could not be dissolved but by the pope, and thereupon he (sc. the pope) was petitioned, and consenting to the petition, the bishop was translated, and this was said to be by postulation; but this was restrained by 16 Rich. II. c. 5.—Cowell; Tomlins.

POTENTIA.—Possibility; power.

Potentia debet sequi justitiam, non antecedere (3 Bulst. 199): Power ought to follow justice, not go before it.

Potentia est duplex, remota et proxima; et potentia remotissima et vana est quæ nunquam venit in actum (11 Co.51): Possibility is of two kinds, remote and near; that which never comes into action is a power the most remote and vain.

Potentia inutilis frustra est (Branch Pr.): Useless power is of no avail.

POTENTIA PROPINQUA.—Common possibility. See POSSIBILITY, § 2.

Potest quis renunciare pro se, et suis, juri quod pro se introductum est (Bract. 20): One may relinquish for himself and his heirs, a right which was introduced for his own benefit.

POTESTAS.—Power; authority; dominion.

Potestas stricte interpretatur (Jenk. Cent. 17, marg.): A power is to be strictly interpreted.

Potestas suprema seipsam dissolvere potest, ligare non potest (Bac. Max. 19): The supreme power may loose, but cannot bind, itself.

POTHIER.—Robert Joseph Pothier was born on January 9th, 1699, at Orleans, where he afterwards became professor; he died on March 2d, 1772. He wrote Pandectæ Justinianeæ in Novum Ordinem Digestæ, and treatises on many important branches of private law; they enjoy considerable reputation. Complete editions of his works were published in 1820-22, 1825, 1845 and 1861. Holtz. Encycl.

Potior est conditio defendentis: The condition of a defendant is the better. See IN PARI DELICTO, POTIOR, &c.

Potior est conditio possidentis: The condition of one possessing is the better. See POSSESSION IS NINE-TENTHS OF THE LAW.

POTWALLERS, or POTWALLOPERS.—Persons who cooked their own food, and were on that account in some boroughs entitled to vote for members of parliament. See 2 Steph. Com. (7 edit.) 360.

POUND.—Old English: pond-fold, pynfold; from Anglo-Saxon, pyndan, to shut in. Muller's Etym. Wortb. vv. Pinfold Pound. See POUND-BREACH

§ 1. A pound is a building or piece of land where goods which have been seized as distress, or cattle taken up as estrays or damage feasant, are placed by the dis-

trainor or captor; as soon as this has been done the goods or cattle are in the custody of the law. Co. Litt. 47 b. See Rescue; Pound-Breach.

§ 2. Overt—Common—Special.—In English law, a pound is either overt (open) or covert (close). A pound overt is practically only used for cattle, and may be either a common pound overt, which is a pinfold or structure of wood made for such purposes on a public piece of land, (generally on the waste of a manor, and hence formerly called "the lord's pound."—Blount, s. v.) or a special pound overt, which is where the cattle were impounded on the land where the distress was made, (made lawful by Stat. 11 Geo. II. c. 19, § 10) or on that of the distrainor, or of some other person by his consent, in which two latter cases the distrainor must give notice to the owner of the cattle, because where cattle are impounded in a pound overt their owner is bound to supply them with food and drink. A pound overt is so called, either because it is open overhead (3 Bl. Com. 12, which seems to be the true reason), or because the owner of the cattle may go to it wherever it is, without being liable for a trespass. Co. Litt. 47 b.

§ 3. Covert, or close.—A pound covert or close, is where the distrainor impounds the cattle or goods in some part of a house (e. g. a stable), and then he is bound to supply the cattle with food and drink. Goods which are liable to be damaged by the weather or stolen, must always be impounded in a pound covert. Ib.

§ 4. Formerly a distrainor could not impound the distress on the land of the tenant, but had to remove it. Now, however, the distrainor may convert any part of the premises, upon which a distress is taken, into a pound pro hac vice. Stat. 11 Geo. II. c. 19.

POUND.—A certain weight, consisting in troy weight, of twelve, in avoirdupois, sixteen ounces; the sum of twenty shillings, so called because in Saxon times two hundred and forty pence weighed a pound. See Lambard 219, voc "Libra."

Pound, (defined). 36 Vt. 341; 3 Bl. Com. 12.

POUND OF LAND.—An uncertain quantity of land, said to be about fifty-two acres.

POUNDAGE.—A fee payable to an officer of a court, or to the public revenue, in respect of services performed by him; it is so called because it was originally (and is still in England) calculated at so much for every pound sterling of the amount with which he has to deal. Thus, a sheriff, on executing a fi. fa., is entitled to a poundage of one shilling in the pound if the sum levied does not exceed £100, and sixpence in the pound above that sum.

Stat. 28 Eliz. c. 4; Arch. Pr. 541. This is in addition to his fees on the warrant, &c. Id. 1483; Mortimer v. Cragg, 3 C. P. D. 216; Bissicks v. Bath Colliery Co., 3 Ex. D. 774.

Poundage, (on execution). 63 How. (N. Y.) Pr. 168.

POUND-BREACH.—Anglo-Saxon: pundbreche, i. e. "infractura parci." Leg. Hen Primi c. 40; Schmid, Ges der Angl. glossary, from which it seems that this is the only instance of the word occurring in Anglo-Saxon records. It occurs in Brit. (72 a) under the form of poundbreche.

The act of taking goods out of a pound before the distrainor's claim has been satisfied, and that whether the distress was lawfully made or not, because impounded goods are in the custody of the law. The distrainor's remedy is either by action for treble damages, or by proceeding for a penalty before justices. Co. Litt. 47 b; 3 Bl. Com. 12, 146; Stats. 2 W. & M. (sess. 1) c. 5; 6 and 7 Vict. c. 30. See Double Damages; Rescue.

POUND-KEEPER.—An officer charged with the care of a pound, and of animals confined there.

Pounds sterling, (in an affidavit). 4 Barn. & C. 886.

POUR FAIRE PROCLAMIER.—An ancient writ addressed to the mayor or bailiff of a city or town, requiring him to make proclamation concerning nuisances, &c. F. N. B. 176.

POUR SEISIR TERRES.—An ancient writ whereby the crown seized the land which the wife of its deceased tenant, who held in capite, had for her dower, if she married without leave; it was grounded on the statute De Prerogativa Regis 17 Edw. II. st. 1, c. 4. It is abolished by 12 Car. II. c. 24.

POURPARTY.—To divide the lands which fall to parceners. O. N. B. 11.

POURPRESTURE.—Anything done to the nuisance or hurt of the public demesnes, or the highways, &c., by enclosure or building, endeavouring to make that private which ought to be public. The difference between a pourpresture and a public nuisance is that pourpresture is an invasion of the jus privatium of the crown; but where the jus publicum is violated, it is a nuisance. Skene makes three sorts of this offense: (1) Against the crown; (2) against the lord of the fee; (3) against a neighbour. 2 Inst. 38; 1 Reeves Hist. Eng. Law 150.

POURSUIVANT.—A king's messenger. Those employed in martial causes were called "poursuivants-at-arms." There are at present, in the Herald's Office, four pursuivants, distin-

POURVEYANCE. (987) POWER.

guished by the names following: (1) Rouge Croix.-Instituted at an uncertain period, but generally considered to be the most ancient. The title was doubtless derived from the cross of St. George. (2) Blue Mantle.-An office instituted by Edward III. or Henry V, and named either in allusion to the color of the arms of France or to that of the robes of the Order of the Garter. (3) Rouge Dragon.-This poursui-vancy was founded by Henry VII. on the day before his coronation, the name being derived from the ensign of his ancestor, Cadwaladyr. He also assumed a red dragon as the dexter supporter of his arms. (4) Portcullis.-This office was instituted by the same monarch, from one of whose badges the title was derived.

As to the office of poursuivant of the Great Seal, see 37 and 38 Vict. c. 81.—Wharton.

POURVEYANCE, or PURVEY-ANCE.-The providing necessaries for the sovereign, by buying them at an appraised valuation in preference to all others, and even without the owner's consent. Indeed it was a royal right of spoil, and was long since abolished. 12 Car. II. c. 24 ; 3 Hall. Middle Ages c. viii. pt. 3, p. 148 ; 1 Hall. Const. Hist. c. vi, 304.

POURVEYOR, or PURVEYOR.-A buyer; one who provided for the royal house-hold.

POWER.-

§ 1. Power is sometimes used in the same sense as "right," as when we speak of the powers of user and disposition which the owner of property has over it, but strictly speaking a power is that which creates a special or exceptional right, or enables a person to do something which he could not otherwise do.

Powers are either public or private.

§ 2. Public powers.-Public powers are those conferred by the sovereign, by the legislature (parliamentary powers), or by a delegate of the sovereign or legislature for a public purpose, e. g. the construction of a railway. When a parliamentary power authorizes acts by which the rights of private persons may be affected against their will, it is called a "compulsory power;" such are the powers given to railway companies for the compulsory purchase of land required for their undertakings. See Eminent Domain.

§ 3. Private.-Private powers are those conferred on private persons. Some are created by the parties themselves, in which case the person conferring the power is called the "donor," and the person to whom it is given the "donee;" others are statutory, i. e. conferred by statute.

§ 4. Mere powers--Powers in the nature of trusts.-Powers must be distinguished from trusts : "Powers are never imperative-they leave the act to be done at the will of the party to whom they are given. Trusts are always imperative." (Att.-Gen. v. Lady Downing, Wilm. 23.) Powers are, however, sometimes divided into (1) mere, bare or naked powers (or powers in the proper sense of the word), and (2) powers coupled with a trust, or powers in the nature of trusts, which the donees are bound to exercise; they are, therefore, really trusts and powers only in form. Brown v Higgs, 8 Ves. 570, cited in Lew. Trusts 428; Sugd. Pow. 588; Co. Litt. 236 a.

§ 5. General-Special.-Powers are of two principal kinds, viz.: (1) those which are by law incident to an office (sometimes called "general powers"), such as the ordinary powers of directors, guardians, executors, trustees, &c.; and (2) those conferred specially (special powers), such as a power of sale or leasing, or an authority conferred by a power of attorney, procuration, warrant, &c. (Lew. Trusts 414.) Special powers are of infinite variety, but for practical purposes they may be divided into those which enable the donees to create or modify estates or interests in property (called in conveyancing "pow-ers" par excellence), and those conferred for other purposes.

§ 6. Powers of creating estates, &c.-Powers which enable the donees to create or modify estates or interests in property "confer the right of alienation as opposed to that of enjoyment" (Burt. Comp. § 173); i. e. the power enables the donee to declare in whom and in what manner the property is to vest, but gives him (quâ donee) no right of ownership over it. Such a power is said to be legal when it operates upon or passes the legal estate in the property, and equitable when it only operates on or passes a beneficial or equitable estate or interest. Sugd. Pow. 45.

§ 7. Legal: by use.-Legal powers (which are confined to land) operate either under the Statute of Uses, under the Statute of Wills, or by custom. Powers under the Statute of Uses operate in the following manner: If land is conveyed to A. and his heirs (A. is sometimes called

(especially in the case of settlements) the "trustee of the power." Elph. Conv. 328,) to such uses as B. shall appoint, and B. appoints or declares the uses to C. for life, and after C.'s death to himself in fee, then the legal estate passes to C. for his life with remainder to B., as if the estates had been originally so conveyed to them. See Appointment, § 1; Use.

§ 8. — by will.—Powers operating under the Statute of Wills are similar to those operating by way of use, except that they can be created and take effect with greater freedom ; thus, if a testator directs his executors to sell his land, without devising it to them, a sale by them operates as the execution of a power to dispose of the land, although they have no ownership in it, and the purchaser takes as devisee under the will. Wms. Real Prop. 314. See Executory Interest.

§ 9 — by custom.—Powers operating by virtue of a custom (e.g. a custom applicable to copyholds) resemble those under the Statute of Uses in their effect, but they are less flexible in their application. Chance Pow. 3, 27.

§ 10. Appendant, or appurtenant—In gross, or collateral.—Merely collateral, or naked.—Legal powers are (1) "appendant" or "appurtenant" when the donee has an estate in the land and the power is to take effect wholly or in part out of that estate, as in the case of a tenant for life having a power of leasing, or a mortgagee having a power of sale; (2) "in gross" or "collateral," either (a) where the donee has an estate in the land, but the power does not take effect out of it, as where a tenant for life has power to appoint an estate to commence after his death, or (b) where the donee has no present estate, but may exercise the power for his own benefit; (3) "merely collateral" or "naked," where the donee neither has an estate nor can exercise the power for his own benefit, as in the case of executors having a mere power of sale. If lands are devised to an executor with a trust or power of sale, this is sometimes called a "power coupled with an interest," to distinguish it from a bare or naked power. (Co. Litt. 113a.) This classification of powers is of importance with reference to the ability of the donee to release, suspend

or extinguish the power. Thus, executors who have a merely collateral power to sell land cannot release or extinguish it. Sudg. Pow. 46 et seq., 906 ; Co. Litt. 265 b, 237 a; Wats. Comp. Eq. 758.

§ 11. Equitable.—Equitable powers are analogous to legal powers. Thus, if land or stock is vested in trustees upon such trusts as B. shall appoint, and B. appoints it to C., the legal ownership of the land or stock remains in the trustees, but the equitable ownership passes to C., and he can compel the trustees to convey the land or transfer the stock to him. Wms. Pers. Prop. 319.

§ 12. Revocation, or appointment—Primary, or subsidiary.—Powers are also divisible into (1) powers of revocation, which give only the right of revoking existing estates, and (2) powers of appointment, which enable the donees to create or appoint new estates. When a power of appointment is not preceded by an existing estate, it is sometimes called a "primary power;" when it is preceded by an existing estate which the donee may revoke, it is called a "power of revocation and new appointment," or a "subsidiary power." (Wats. Comp. Eq. 759; Leake P. L. 374.) As to the operation of appointments with reference to the rule against perpetuities, see Appointment, § 1.

§ 13. General.—Powers are either general [absolute] or limited. A general power enables the donee to appoint the property to any person or persons (including himself), for any estates, and on any conditions, and is therefore equivalent to ownership. (Stugl. Pow. 394.) If he dies having exercised it by will in favor of a volunteer, or if he becomes bankrupt, the power forms part of his assets for payment of his debts. (Wms. Sett. 40.) In the case of a person dying after having exercised a general power by his will, the doctrine is, that by exercising it he is in ordinary cases presumed to have meant to take the property out of the instrument creating the power for all purposes, so as to make it form part of his estate; and therefore if the appointment fails (e.g. by the appointee dying in the appointor's life-time), the property results to the appointor's estate, and not to that of the donor of the power. If, however, the donee only exercises the power

partly, so that he does not appear to have induced to make the property part of his estate for all purposes, then if the appointment fails the property results to the donor of the power. (See In re Van Hagen, 16 Ch. D. 18.) An analogous rule prevails in cases of conversion (see that title, § 5). See Administration, § 2.

§ 14. Limited: Special.—A limited power is either special or particular. A special power is one which is restricted as to the nature or duration of the estates or interests to be created under it, as in the case of a power to grant leases by appointment for certain terms frequently given to the tenant for life under a settlement.

§ 15. Particular.—A particular power is one which is restricted as to its objects or the persons in whose favor it may be exercised, as in the case of a power to appoint property among a certain class only (e. g. the children of the donee); but the terms "special" and "particular" are frequently used as synonymous. Wms. Real Prop. 306 et seq; Sugd. Pow. 394.

§ 16. Distributive—Exclusive—Mixed.—When a power of appointment among a class requires that each shall have a share, it is called a "distributive" or "non-exclusive" power; when it authorizes, but does not direct, a selection of one or more to the exclusion of the others, it is called an "exclusive power," and is also distributive; when it gives the power of appointing to a certain number of the class, but not to all, it is exclusive only, and not distributive. (Leake 389.) A power authorizing the donee either to give the whole to one of a class, or to give it equally amongst such of them as he may select (but not to give one a larger share than the others), is called a "mixed power." (Sugd. 448.) Formerly, if the donee of a non-exclusive power excluded one of the objects from his appointment, or only gave him an illusory share, the appointment was held void; but this rule has been abolished. (See Appointment, § 3.) As to frauds on powers, see Fraud, § 13.

§ 17. Miscellaneous powers.—Powers not given for the purpose of creating or modifying estates or interests in property are of great variety. In most cases their names explain themselves. Thus, a power of appointing new trustees is incident to

every modern settlement created by will or deed, either by express provision or by statutory enactment. So a power of distress and entry may be inserted in a deed to enable the donee to enter and distrain on certain land of the donor, to enforce the performance of some covenant, e. g. the payment of an annuity. See Distress, § 8. For other examples of powers, see Power of Attorney.

POWER OF APPOINTMENT.—See Power, § 6 et seq.

POWER OF ATTORNEY.—

§ 1. A formal instrument by which one person empowers another to represent him, or act in his stead for certain purposes. A power of attorney is usually a special instrument in the form of a deed poll, but it may form part of a deed containing other matter. Thus, a deed of dissolution of partnership often contains a power of attorney from the retiring to the continuing partner, to enable the latter to wind up the business and collect the assets, A power which authorizes the execution of a deed must itself be conferred by deed. Stokes Pow. of Att.; 1 Dav. Prec. Conv. 475 n.

§ 2 The donor of the power is called the "principal" or "constituent;" the donee is called the "attorney."

§ 3 General, special—Limited, unlimited.—A power of attorney which authorizes the attorney to do all acts of a certain class from time to time, such as to carry on a business, collect debts, &c., is sometimes called a "general power;" as opposed to a special or particular power, or one which is confined to a specified act or acts. A limited power is one containing precise instructions as to the mode of executing it, while an unlimited power leaves this to the discretion of the attorney. See May Parl. L. 799 et seq.

§ 4. As to the persons who can empower others to act for them by power of attorney, see Agent; Authority; Delegatus Non Potest Delegare; Ministerial. As to the cases in which a power of attorney is revocable, see Authority, § 4; Revocation. By Stat. 22 and 23 Vict. c. 35, a trustee, executor or administrator making any payment or doing any act bona fide in pursuance of a power of attorney, in igno-

POWER.

ranee of the death of the person who gave the power, or of his having done some act to avoid it, is not liable for the money so paid or the act so done. Similar statutory provisions exist in many if not all of the States.

§ 5. The English Conveyancing Act, 1881, contains the following provisions in regard to powers of attorney. The donee of a power of attorney may act in and with his own name, signature and seal instead of the name, signature and seal of the donor. (§ 46.) Any person making or doing any payment or act in good faith, in pursuance of a power of attorney, is not to be liable by reason that the donor of the power had previously died, or become lunatic, or bankrupt, or revoked the power, provided such fact was not known to him at the time. (§ 47.) A power of attorney may be deposited in the central office of the Supreme Court, on its execution being verified by affidavit or otherwise. The file of powers so deposited may be searched, and an office copy of any power obtained, by any person on payment of the office fees. An office copy is sufficient evidence of the contents of the original instrument. (§ 48.) A married woman, whether an infant or not, is to have power, as if she were unmarried and of full age, to appoint an attorney on her behalf to do anything which she herself might do. § 40.

Power of attorney, (implies a power under seal). 8 Pick. (Mass.) 490.

Powers, (in a statute). 12 Pet. (U. S.) 636.

Powers, other proper and reasonable, (in a will). 6 Sim. 152.

POYNDING.—See Poinding.

POYNINGS' LAW, or STATUTE OF DROGHEDA.—An act of parliament made in Ireland, 10 Hen. VII. c. 22, A. D. 1495; so called because Sir Edward Poynings was lieutenant there when it was made, whereby all general statutes before then made in England were declared of force in Ireland, which, before that time, they were not. (12 Co. 109; 3 Hall. Const. Hist. c. xviii. 361; 1 Br. & H. Com. 112)—Wharton.

PRACTICE.—The law of practice or procedure is that which regulates the formal steps in an action or other judicial proceeding. It therefore deals with writs of summons, pleadings, affidavits, notices, summonses, motions, petitions, orders, trial, judgment, appeals, costs and execution. In jurisprudence it forms part of adjective law. See Law, § 8.

Practicable, (defined). — (not synonymous with "possible"). 54 Tex. 294.

Practical location, (identical with "actual location"). 47 Barb. (N. Y.) 287.

Practice, (to what relates). 12 How. (N. Y.) Pr. 158.

PRÆCIPE.

PRACTICE COURT, QUEEN'S BENCH.—A court attached to the Court of Queen's Bench, and presided over by one of the judges of that court, in which points of practice and pleading were discussed and decided. If any doubt arose in the mind of the presiding judge as to any question brought before him, he referred the party to the full court. See Bail Court.

Practicing as an apothecary, (in a statute). 1 Car. & P. 538; 1 Dowl. & Ry. 564.

PRACTITIONER.—He who is engaged in the exercise or employment of any art or profession.

PRÆCEPTIO, LEGATUM PER.—See Legatorum Genera Quatuor.

PRÆCEPTORIES.—A kind of benefices, so called because they were possessed by the more eminent templars, whom the chief master by his authority created and called præceptores templi. 2 Mon. Angl. 543.

PRÆCIPE.—

§ 1. In the practice of the English High Court, a præcipe is a slip of paper on which a party to a proceeding writes the particulars of a document which he wishes to have prepared or issued; he then hands it to the officer of the court whose duty it is to prepare or issue the document. Thus, when a party wishes to issue a writ of execution, he must file a præcipe containing the title of the action, the reference to the record, the date of the judgment, and the name of the party against whom the execution is to be issued. Rules of Court, xliii. 10 (rule 17 of June, 1876).

§ 2. In admiralty actions, præcipes are longer and more important than in other actions. See Rose. Adm. Pr. clxxix. et seq.; Wms. & B. Adm. Pr. 186, xlvii.

§ 3. Formerly præcipe was a species of original writ, so called because it required the sheriff to command the defendant either to do a certain thing, or to show cause why he had not done it (3 Bl. Com. 274); e. g. the præcipe quod reddat, commanding the defendant to give up land to the demandant (Co. Litt. 101 a), which was the writ by which a common recovery was commenced against the tenant of the freehold. In order to have a recovery with double voucher to bar an entail, it was usual for the tenant in tail to convey an estate of freehold to a friend, against whom the præcipe was brought; this was called making a tenant to the præcipe. 1 Steph. Com. 569. See Recovery; Voucher.

§ 4. The instructions for issuing an original writ consisted of a copy of the writ required, and therefore began with the word præcipe (Tidd 105; Lee Dict. 980); hence probably the use of the word in its modern sense.

PRÆCIPE IN CAPITE.—A writ out of Chancery for a tenant holding of the crown in capite, viz., in chief.—Mag. Char. c. 24.

PRÆCIPE QUOD REDDAT.—The form of a writ, which extended as well to a writ

of right as to other writs of entry or possession,

beginning, "Præcipe in, quod reddat B. unum

messagium," &c.—O. N. B. 13.

PRÆCIPE QUOD TENEAT CONVENTIONEM.—The writ which commenced

the action of covenant in fines, which are abolished by 3 and 4 Wm. IV. c. 74.

PRÆCIPE, TENANT TO THE.—See

Præcipe, § 3.

PRÆCIPE, WRIT OF.—See Præcipe, § 3.

PRÆCIPITIUM.—The punishment of casting headlong from some high place.

PRÆCIPUT CONVENTIONNEL.—In the French law, under the régime en communauté, when that is of the conventional kind, if the survivor of husband and wife is entitled to take any portion of the common property by a paramount title and before partition thereof, this right is called by the somewhat barbarous title of the conventional præciput, from præ, before, and capere, to take.—Brown.

PRÆCOGNITA.—Things to be previously known in order to the understanding of something which follows.

PRÆDA BELLI.—Booty; property seized in war.

PRÆDIA STIPENDIARIA.—In the civil law, provincial lands belonging to the people.

PRÆDIA TRIBUTARIA.—In the civil law, provincial lands belonging to the emperor.

PRÆDIA VOLANTIA.—In the duchy of Brabant, certain things movable, such as beds, tables, and other heavy articles of furniture, were ranked among immovables, and were called prædia volantia, or volatile estates. 2 Bl. Com. 428.

PRÆDIAL TITHEs.—Such as arise merely and immediately from the ground; as grain of all sorts, hops, hay, wood, fruit, herbs. 2 Bl. Com. 23; 2 Steph. Com. (7 edit.) 722.

PRÆDIOT—PRÆDICTUS.—Aforesaid. Hob. 6.

PRÆDIUM DOMINANS.—An estate to which a servitude is due; the ruling estate.—Colquh. Rom. Civ. Law, § 937.

PRÆDIUM RUSTICUM.—Heritage which is not destined for the use of man's habitation; such, for example, as lands, meadows, orchards, gardens, woods, even though they should be within the boundaries of a city.—Colquh. Rom. Civ. Law, § 937.

PRÆDIUM SERVIENS.—An estate which suffers or yields a service to another estate.—Colquh. Rom. Civ. Law, § 937.

PRÆDIUM URBANUM.—A building or edifice intended for the habitation and use of man, whether built in cities, or in the country.—Colquh. Rom. Civ. Law, § 937.

PRÆFATUS.—Aforesaid. Sometimes abbreviated to præfat. and p. fat. See Predict.

PRÆFECTUS URBI.—He was, from the time of Augustus, an officer who had the superintendence of the city and its police, with jurisdiction extending one hundred miles from the city, and power to decide both civil and criminal cases. As he was considered the direct representative of the emperor, much that previously belonged to the prætor urbanus fell gradually into his hands.—Colquh. Rom. Civ. Law, § 2395.

PRÆFECTUS VIGILUM.—The chief officer of the night watch His jurisdiction extended to certain offenses affecting the public peace, and even to larcenies. But he could inflict only slight punishments.—Colquh. Rom. Civ. Law, § 2305.

PRÆFECTUS VILLÆ.—The mayor of a town.

PRÆFINE.—The fee paid on suing out the writ of covenant, on levying fines, before the fine was passed. 2 Bl. Com. 350.

PRÆMIUM PUDICITIÆ.—The consideration given by the seducer of a chaste woman for her defilement. 2 P. Wms. 452.

PRÆMUNIRE.—The offense of directly or indirectly asserting the supremacy of the pope over the crown of England, as by procuring excommunications or bulls from Rome. The punishment is for the offender to be put out of the king's protection, to forfeit his lands and goods to the king, and to be imprisoned. The mandatory part of the writ used to enforce the provisions of the acts against præmunire began "præmunire facias," that you cause [the accused] to be forewarned; hence the name. It is now quite obsolete. Stats. 35 Edw. I.; 16 Rich. II. c. 5; 27 Eliz. c. 2, and many others, cited in 4 Bl. Com. 103 et seq.; 4 Steph. Com. 168 et seq.; Co. Litt. 129 b, 391 a, and Butler's note.

PRÆNOMEN.—In the civil law, the name of a person, distinguishing him from others of the same family.

PRÆPOSITUS.—An officer next in authority to the alderman of a hundred, called præpositus regis; or a steward or bailiff of an estate, answering to the vicmere.—Anc. Inst. Eng.

Also, the person from whom descents are traced under the old canons.

PRÆPOSITUS ECCLESIÆ.—A church-reeve, or church warden.

PRÆPOSITUS VILLÆ.—A constable of a town, or petty constable.

Præpropera consilia raro sunt prospera (4 Inst. 57): Hasty counsels are rarely prosperous.

PRÆSCRIPTIO.

Præscriptio est titulus ex usu et tempore substantiam capiens a.b auctoritate legis (Co. Litt. 113) : Prescription is a title by authority of law, deriving its force from use and time.

PRÆSCRIPTIONES.—In the Roman law, forms of words (of a qualifying character) inserted in the formulæ in which the claims in actions were expressed; and as they occupied an early place in the formulæ, they were called by this name, i. e. qualifications preceding the claim. For example, in an action to recover the arrears of an annuity, the claim was preceded by the words "so far as the annuity is due and unpaid," or words to the like effect ("cujus rei dies fuit").—Brown.

Præsentia corporis tollit errorem nominis; et veritas nominis tollit errorem demonstrationis (Bac. Max. 224) : The presence of the body cures error in the name; the truth of the name cures an error of description.

PRÆSTARE.—In the Roman law, præstare meant to make good, and when used in conjunction with the words dare facere oportere denoted obligations of a personal character, as opposed to real rights.

Præstat cautela quam medela (Co. Litt. 304) : Prevention is better than cure. Wherefore, preventive justice is administered by the courts issuing injunctions to prevent the continuance or recurrence of damage.

Præsumatur pro justitia sententiæ : The presumption should be in favor of the justice of a sentence.

PRÆSUMITUR.—It is presumed.

Præsumitur pro legitimatione (5 Co. 98 b) : The presumption is in favor of legitimacy.

Præsumitur pro negante : It is presumed for the negative.

The rule of the House of Lords when the numbers are equal on a motion.

PRÆSUMPTIO.—(1) Presumption (q.v.); (2) intrusion, or the unlawful taking of anything. Leg. Hen. I. c. 11.

PRÆSUMPTIO FORTIOR.—A strong presumption.

PRÆSUMPTIO HOMINIS.—See Presumption, § 4.

Præsumptio violenta plena probatio (Co. Litt. 6 b) : Strong presumption is full proof.

Præsumptio violenta valet in lege (Jenk. Cent. 56) : Strong presumption is valid in law.

PRÆSUMPTIO JURIS ET DE JURE.—See Presumption, § 2.

PRÆTEXTUS.—In old English law, a pretext; a pretense or color.

Prætextu liciti non debet admitti illicitum (Wing. 728) : Under pretext of legality, what is illegal ought not to be admitted.

PRÆTOR.—A municipal officer of Rome, so called because (præiret populo) he went before or took precedence of the people.—Bouvier.

PRÆTOR FIDEI - COMMISSARIUS.—The judge at Rome, who enforced the performance of all fiduciary obligations and confidences. See Steph. Com. (7 edit.) 358.

PRÆVARICATOR.—In the civil law, one who betrays or is unfaithful to his trust. An unfaithful advocate.

PRÆVENTO TERMINO.—A form of action anciently known in the Scotch Court of Sessions, by which a delay to discuss a suspension or advocation was avoided.—Bell Dict.

PRAGMATIC SANCTION.—In the civil law, a rescript or answer of the sovereign, delivered by advice of his council to some college, order, or body of people, who consult him in relation to the affairs of the community. A similar answer given to an individual is simply called a rescript.

PRATIQUE.—A license for the master of a ship to traffic in the ports of Italy upon a certificate that the place whence he came is not annoyed with any infectious disease.—Encycl. Lond.

PRATUM BOVIS, or CARUCÆ.—A meadow for oxen employed in tillage.

PRAXIS.—Uso; practice.

Praxis judicum est interpres legum (10b. 96) : The practice of the judges is the interpreter of the laws.

PRAY IN AID.—A petition made in a court of justice for the calling in of help from another that has an interest in the cause in question.

PRAYER FOR OTHER AND FURTHER RELIEF.—To avoid prejudice from error or deficiency in a prayer for relief, it has been usual for a plaintiff to add to the prayer a clause asking, "or that plaintiff may have such other and further relief as to the court may seem fit," or the like. Under this clause it is considered that the court is not confined, in the decree, to granting precisely the specific relief asked.—Abbott.

PRAYER FOR PROCESS.—A prayer or petition with which a bill in